Hearsay Flashcards
Definitions
(1) statement
o Oral or written assertion
o Assertive conduct
o Silence: H (heard) O (Opportunity W (Would have responded i.e., not between friends)
Also can’t use defendant’s silence after Miranda warnings where co-defendant says something
(2) by a human declarant
o Not animals or machines
(3) while out of court
o Testifying witness’s prior statements count
(4) to prove the truth of the matter asserted
o Does declarant want the actual words spoken to believed?
If it meets an exception, it comes in as substantive evidence
o non-hearsay comes in for limited purpose
Analysis
- What is the out-of-court statement?
- Who is the declarant?
- What is the purpose of the evidence being offered?
- Do any exceptions apply?
Non-Hearsay
C Elvis
Statement of Capacity to see, hear, or speak
Effect on listener (rebut intent (I thought it was a gift), heard a warning about a dangerous condition)
Legally operative facts (Shabam!)
Verbal acts (clarify ambiguous conduct)
Impeachment and rehabilitation
State of mind (circumstantially like “I’m Batman”
Exemption: Statements by party opponent
Statement by a named party
Named party, relevant, and offered against the declarant-party by opponent
Does not have to be against interest at time it was made
Adoptive admission
Party heard and understood and adopted the statement through words, conduct, or silence
Authorized admission
Statement by agent or representative
Employee admission
During employment while acting within SoE
Co-conspirator admission
Doesn’t matter if conspiracy is charged
Exemption: Statements of prior identification
Official identification proceeding like a lineup or mug book
Must testify and be subject to cross; if met, a witness to the declarant’s statement can testify to the statement
Exemption: Prior consistent or inconsistent statements
Prior Consistent Statements
o Must testify and be subject to cross
o Admissible as substantive evidence as soon as witness is impeached
Prior Inconsistent Statements
o Must testify and be subject to cross
o Under oath at trial, deposition, or other proceeding
Observational Exceptions: Present sense impressions
Made while or immediately after perceiving event or condition (present tense=present sense)
Oral or written; declarant must have firsthand knowledge
Observational Exceptions: Excited utterance
Startling event, made while declarant is under stress from the event
Observational Exceptions: Statement of then existing state of mind
Offered to prove what the declarant was thinking or feeling at the moment or to explain future behavior (intent, plan, motive, design)
Look for present tense verbs
Statements of memory relating to execution, revocation, identification, or terms of declarant’s will are admissible under this rule
Observational Exceptions: Statement for medical treatment or diagnosis
Made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation
pathologically germane statement
Applies even if pt speaks to doctor so doctor can testify as an expert in a later trial
Business/Public Records: Past recollection recorded
- Diminished memory, personal knowledge, made while matter was fresh, signed or adopted the document
- Record is read not received as exhibit
- Opponent has same rights as refreshing memory plus can use it substantively
Business/Public Records: Business records
(1) A memorandum, record, or report; (2) of business-related acts or events; (3) made at or near the time of the event; (4) by a person with knowledge; (4) if kept in the course of a regularly conducted business activity – the record serves some business purpose (e.g., taxes, inventory, etc.); and (5) if it was the regular practice of that business to make such a record or report – mandatory, business policy provided the information does not lack trustworthiness.
Cannot be produced solely in anticipation of litigation
Need to be authenticated by self-authentication or testimony of custodian
Business/Public Records: Absence of business records
Witness is familiar with records, type of record kept in accordance with the business, diligent search, no record was found
Business/Public Records: Public records
- Sets out a matter personally observed, person is under legal duty to investigate and report
- police records do not count in criminal case against the accused
- authentication: self-authenticating if certified or under seal or by custodian
Business/Public Records: Records of vital statistics
• Records or data compilations of births, marriages, deaths; public officer, compilation required by law
Business/Public Records: Absence of public records
Same as public records rule
Religion and Family History
- Authorized by religious organization or by law
* Also old family records
Real Property
Records and statements affecting an interest in real property
• Documents kept by law in recording office or statements in other documents
Ancient documents
• Older than January 1, 1998, in place where these items are typically found
Market/commercial compilations, directories
• Generally relied on by public or persons in particular occupations
Learned treatises
If called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination, authoritative (judicial notice, expert testimony, or stipulation) and MASH subject (medicine, art, science, history)
Judgments in criminal cases
- Felonies to prove essential element of action (922(g))
* Authentication by self-authentication
Judgments in civil cases
Admitted to prove matter of personal, family, or general history, or boundaries fi matter was essential to judgment and could be proved by evidence of reputation
Reputation
Reputation regarding family or personal history, land use boundaries, or historically significant events
Reputation regarding character
Unavailability triggering events
Privilege: based on judge’s ruling
Refusal: despite court order
Incapacity: death or then-existing physical or mental illness
Subpoena: good faith attempt to procure witness
Memory: witness testifies
Unavailability Required: Former Testimony
Under oath, testifying in proceeding or deposition that involves the same or related subject matter where opponent had opportunity and similar motive to examine the witness
Unavailability Required: Dying declarations
Homicide or civil case; (2) subjective belief death was imminent; (3) about cause or circumstances of their impending death
Unavailability Required: Statement against interest
Against declarant’s pecuniary, proprietary, or penal interest
Doesn’t have to be a party
In criminal case, exculpatory evidence needs corroboration; inculpatory evidence has Crawford problem
Unavailability Required: Statement of personal or family history
Declarant’s relationship by blood, adoption, or marriage or other similar fact
Unavailability Required: Forfeiture by wrongdoing
Party caused unavailability
Crawford
testimonial hearsay is inadmissible unless declarant is unavailable and criminal defendant had prior opportunity to cross the declarant
Testimonial: declarant reasonably expected would be used in a subsequent prosecution
Exceptions
• Dying declarations
• Child witness testifying via closed circuit
• Ongoing emergency: purpose is to aid police during the emergency
• Waiver through forfeiture by wrongdoing
