Hearsay Flashcards
Req for hearsay within hearsay?
Both must fall under exception
“I heard him say, ‘I accept your offer for the contract’.” Hearsay?
No, because legally operative facts
Is it hearsay to offer a statement to show the effect of the statement on the listener?
No
“It was raining but the employee said, ‘Look at that, I do love white christmases.’” Hearsay in a negligent hiring action?
No because it shows employee’s state of mind
Prior statement by testifying witness (subject to cross-exam) is not hearsay if:
Statement is identification,
It’s inconsistent with in-court testimony and was given under oath at prior proceeding, OR,
Statement is consistent and is offered to rebut an attack that witness is lying or exaggerating because of a motive OR offered to rehabilitate credibility on another ground than truthfulness
Does “admission” of opposing party need an actual admission to not be hearsay?
No
Formal judicial statements— conclusive or non conclusive?
Conclusive and can be admitted against them as an opposing party’s statement
Adoptive statement by silence requires:
Party heard and understood the statement, was physically and mentally capable of denying, and a reasonable person would have denied
Vicarious statements: at least (3)
Authorized spokesperson
Agents/employees if it concerned a matter within scope of employment and was made during employment relationship
Partners
Co-conspirators,
Privies in title and joint tenants (state courts only)
Note: court must make prelim determinations of relationship between parties
Declarant unavailable if: (5 options)
Unable to testify due to death or physical/mental illness Exempt bc of privilege Refuse to testify despite a court order Do not remember Absent
Former testimony exception requires (2 elements)
Unavailable declarant gave testimony under oath
Adverse party had an opportunity and similar motive to develop declarant’s testimony at prior proceeding
Statement against interest by unavailable witness must be against either: (3 things)
Pecuniary, proprietary, or penal interests when it was made
Dying declarations can only come in during these cases:
Homicide prosecution
Any civil case
Dying declarations require:
Belief in imminent death
Statement concerns cause or circumstances of impending death
Declarant’s statement against a person who intentionally procured that declarant’s unavailability— admissible?
Yes if that person’s motivation was to prevent declarant from testifying
Exception to present state of mind?
Cannot admit statement of memory or belief to prove the truth of the fact remembered or believed (except certain facts about someone’s will)
Does present state of mind include statements of intent to do something in the future?
Yes, so it’s admissible
Statement made for medical diagnosis/treatment: “I was stabbed with a knife. My roommate did it.” All admissible?
No, only the first part
Elements of business records exception: (4)
Must be a business
Entry was made in regular course of business
Entry was made near time of event
Entrant had personal knowledge or duty to transmit the matters to the entrant
Foundation for business records is laid thru custodian with knowledge of record keeping, who either:
Testifies or certifies that record meets elements of the business record exception
Public records exception made by outsiders— admissible?
No, unless there’s an independent basis to admit
Public records and reports generally not admissible against D in Crim case— true/false?
True
Catchall exception requires (3):
Statement must have sufficient trustworthiness
Must be strictly necessary to come in
Proponent must give reasonable notice including substance of statement and name of declarant
Confrontation clause exclusion requires (4):
Statement against accused, unavailable declarant, testimonial in nature, and no opportunity to cross-exam
Statement made to aid in ongoing emergency— testimonial or non?
Non testimonial
Statement made to provide info for later prosecution— testimonial or non?
Testimonial
Declarant must be unavailable to testify for these exceptions to apply: (3)
Former testimony
Dying declaration
Declaration against interest (penal, pecuniary, proprietary)
