Hearsay Flashcards
What is hearsay?
Out of court statement offered by someone other than declarant to prove the TOMA
What is hearsay within hearsay?
OOC statement that has other hearsay within it.
Ex: John told me that Mary said the light was red
When is hearsay admissible?
If an exception applies
When is hearsay within hearsay admissible?
only if both hearsay statements meet an exception
List (2)
What is a statement?
A person’s:
- Oral or written assertion - OR -
- Nonverbal assertive - conduct intended as an assertion (i.e. headnod)
Who can make statements?
only HUMANS
Can an animal or a machine make a hearsay statement?
NO
What is an OOC statement?
Statement NOT made at current trial
meaning hearsay statement could be made during a trial but it just cannot be made during the current trial
What is offered to prove the TOMA?
🍌🍌🍌
The statement itself is being presented to prove that the statement is true.
Ex: P slips on a banana peel. 20 mins before slipping W told D (store mananger), “there is a banana peel on the floor”. W is offering statement to prove negligence - D knew about banana peel. NOT being offered for TOMA - whether or not there actually was a banana peel on the floor.
List (3)
Types of statements that are not offered for the TOMA:
Statements offered to/as:
- Verbal acts or legally operative facts - i.e. words of a K or defamatory words
- Show effect on listener or reader - i.e. provide notice in a negligence case 🍌
- Circumstantial evidence of declarant’s state of mind - i.e. party trying to prove someone’s insanity or knowledge
*nonhearsay* list (3)
How does silence become an adoptive statement?
- Party hears and understands the statement
- Party is physically and mentally capable of denying the statement
- A reasonable person would have denied the statement
Why is a statement alleged to be defamatory is not hearsay
Because the evidence is by definition NOT offered to prove the TOMA.
It is offered only to show that the actionable statement was made.
Definition, *nonhearsay*
What are hearsay exclusions and what “kind” of evidence are they admissible as?
🪐🪐🪐🪐
statements that technically are hearsay but are excluded from the hearsay definition
THEREFORE ADMISSIBLE as substantive evidence
unless exclusion applies
Ex: 🪐 Pluto is a planet but NASA just decided it is not 🪐
List (2), *nonhearsay*
What are the hearsay exclusions?
- Prior statements from testifying witness
- Prior ID
- PIS
- PCS
- Statements made by opposing party (aka statement by a opponent)
definition, *nonhearsay*
What are prior statements from testifying witness
A WITNESS’S prior OOC statements
*nonhearsay*
Is a witness’s prior statement admissible?
inadmissible hearsay UNLESS exception applies
*nonhearsay*
What is the key element for a witness’s prior ooc statement to NOT be hearsay
iow: what does the witness have to be subject to?
Witness has to be subject to CROSS EXAMINATION
*nonhearsay*
A witness’s prior OOC statement is not hearsay if:
and what type of examination? cross or direct?
(aka what are the different types of prior statements that are nonhearsay)
Prior OOC of a testifying witness subject to cross-examination is NOT hearsay if:
- ID: Prior statement is one of identification
- PIS + Oath: Prior/previous statement which was made under oath is inconsistent with current in-court testimony
- Consistent: prior statement is consistent with now in-court testimony and the declarant is testifying at trial and subject to cross-examination
*nonhearsay*
Prior identification is admissible as nonhearsay only if :
- the declarant is testifying at trial (aka they are available) and
- subject to cross-examination
*nonhearsay*
Prior consistent statement is admissible as nonhearsay if:
-
Rebut: Offered to rebut charge that W is lying/exaggerating because of motive - OR -
- PCS need to have been made before onset of motive
- Rehab: Offered to rehab witness who has been impeached on other grounds
*nonhearsay*
What are statements made by an opposing party?
Basically anything that D says, P can offer against D and vice versa
any statement made by a party - for or against - their own interests _IS_ admissible against that party
*nonhearsay*
Formal judicial statements are:
CONCLUSIVE and CANNOT be contradicted during trial
Informal and extra-judicial judicial statements are
Nonconclusive and can be explained
*nonhearsay*
Can a party’s formal judicial statement in one case be admitted against them as an extrajudicial statement in another case?
Yes
Ex: D pleads guilty to traffic charge in case 1. In case 2 - which arose out of same accident - the plea can be used as an opposing party’s statement
*nonhearsay*
What are adoptive statements?
Type of opposing statement where a party expressly or impliedly adopts the statement of another party and that adoption may be admissible against them
*nonhearsay* list (2)
When can vicarious statements be admissible as statements of an opposing party?
- Authorized spokesperson or
- Agents and employees - statement:
- matter within scope of employment
- during existence of employment
Definition, *exceptions*
What are hearsay exceptions?
Statements that are hearsay but admissible because they meet an exception
Comparison, *exceptions*
What is the difference btwn prior statement of testifying witness (pstw) and prior testimony (pt)
PSTW: prior statement made out of court + subj to cross at current
PT: given under oath + subj to cross and direct at prior
*exceptions*
What makes a declarant unavailable?
“PRISM”
- Privilege (5th A, spousal etc)
- Refusal to testify
- Incapacity - Death or serious illness
- Subpoena (absent)- Refuse to testify, despite proponent’s attempts to procure declarant’s testimony
- Memory (Lack of )
List (5), *unavailable exceptions*
What are the hearsay exceptions that are admissible which require declarant unavailability?
“aphid”
- A: Statement offered against the party that has caused the declarant’s unavailability
- P: prior testimony *
- H: Personal/family history
- I: Statements against interest *
- D: dying declarations *
*unavailable exceptions*
A declarant who cant attend the trial but can give deposition testimony:
is considered available
*unavailable exceptions*List (2)
Prior/Former testimony is admissible if
Oath + examine
- Testimony given under oath, in same or diff case
- Party against whom testimony is being offered, had opportunity + similar motive to develop declarant’s testimony at prior proceeding through direct or cross
- opportunity + similar motive: party in former case + same subj matter
- ex: P offers W’s former testimony from case 1 against D in current case 2. D had the opportunity in case 1 to cross-examine W.
Comparison, **unavailable exceptions*
Grand jury testimony is ____________ against a D as former test**i**mony
inadmissible because no opportunity to direct/cross-examine in prior trial
Comparison, *nonhearsay exceptions*
Grand jury testimony is ____________ against a D as prior inconsistent statement
ADMISSIBLE because can direct/cross in current trial
*unavailable exceptions*; hint 3 Ps
Statements against interest
Against what interests are SAIs offered?
Statements against person’s pecuniary (money), proprietary (property), or penal (criminal) interests at time it was made
Is a deed, will, or other document establishing or affecting an interest in property admissible under the Federal Rules?
Yes, as a hearsay exception, regardless of the document’s age
*unavailable exceptions*
In criminal cases SAI must be:
corroborated
*exceptions* list (3)
How does silence become an adoptive statement?
- Party hears and understands the statement
- Party is physically and mentally capable of denying the statement
- A reasonable person would have denied the statement
*unavailable exceptions*
Dying declaration
- Believe death was imminent
- Statement concerned cause or circumstances of impending death
Dying declaration?
The plaintiff is suing the defendant for serious, life-threatening injuries she suffered when the defendant’s car collided with the plaintiff’s at a busy intersection. At trial, the plaintiff testified that the light was green when she entered the intersection. She was not cross-examined. She also testified that she lost consciousness after the collision but awoke to find a witness comforting her as she lay on the ground. The plaintiff calls the witness to testify that, when she awoke, she said, “Help, I’m dying! Why did [the defendant] enter the intersection when the light was green for me?”
Is this a dying declaration?
NO - The witness’s testimony is admissible as an excited utterance.
The apparent dying declaration is a favorite trick on the MBE. Remember that if the victim does not die, she must be unavailable to testify before the dying declaration is admissible on those grounds. Here she is available so the statement cannot come under dying declaration
*unavailable exceptions*
In what type of criminal cases can dying declarations be used?
Apply only for HOMICIDE cases
list (2)
Statements of personal or family history
- Declarant is a member of family or intimately associated
- Statements based on facts or knowledge of family’s history
Statement offered against the party that has caused the declarant’s unavailability
Motivation was to prevent declarant from testifying
List, *immaterial exceptions*
What are hearsay exceptions that are admissible immaterial of declarant availability?
- Rich Men say Bullshit,*
- Especially In Monaco*
- Excited utterance *
- Present sense impression *
- Present state of mind - concerning mental or physical condition
- Medical statements - diagnosis, treatment
- Business records *
- Recorded recollection*
*immaterial exceptions*
Excited utternance
OOCS relating to startling event while under stress of event
*immaterial exceptions*
Present sense impressions
Describes event while or immediately after
*immaterial exceptions*
Present state of mind
The then present state of mind, including statements of intent and physical condition at that time
Note: memory/belieft not admissible under this exception
HINT:** think **mind → mental state of mind,** think ****m**ind → **m**edical for physical condition
*immaterial exceptions*
Statements about medical diagnosis or treatment
medical history + inception of or general cause past or present symptoms
*immaterial exceptions*
Statements about medical diagnosis or treatment are admissible hearsay if
statements made for the purpose of medical treatment or diagnosis usually made to medical personnel
CANNOT talk about fault
iow: can admit to talk about how pt was injured but NOT who injured the pt
*immaterial exceptions*
Business records
Memo made of any act, event, condition, opinion, or diagnosis
********NEED FOUNDATION*************
*immaterial exceptions* list (2)
Business records entry need be made during:
- regular course of business
- business records regularly makes these kinds of records
Are business records prepared in anticipation of litigation admissible under hearsay exception?
Generally NO
court will exclude reports prepared primarily for litigation
FRE deal with this problem by giving the trial court discretion to exclude any business record if circumstances indicate the record lacked trustworthiness.
What is the point of a recorded recollection
used to substitute for the forgotten memory
hint: admissibility of evidence, *immaterial exceptions*
Recorded recollection
can be read into evidence
CANNOT be admitted as an exhibit
hint: admissibility of evidence, *immaterial exceptions*
Learned Treatises
can be read into evidence
CANNOT be admitted as an exhibit
“immaterial exceptions*
Ancient documents
admissible if authenticated + prepared BEFORE Jan 1, 1998
List (3)
Catch-all exception
Last ditch attempt when other exceptions dont apply
- Trustworthiness - hearsay statement must posses sufficient guarantee of trustworthiness
- Necessity - statement strictly necessary
- Notice - give reasonable notice to opponent
List (4)
Confrontation Clause
Hearsay statement not admitted if:
- Offered against accused in criminal case
- Declarant unavailable
- Statement was testimonial
- No opportunity to cross-examine declarant prior to trial
Confrontation Clause forfeited if
D commits a wrongful act intended to keep W from testifying
Non-testimonial or Testimonial?
Statements made to law enforcement (ie police) to aid in emergency
NOT testimonial
Non-testimonial or Testimonial?
Statements made to law enforcement to provide info (for later prosecution)
Testimonial
no flip side
The fact that evidence is self-serving is often just another way of saying that it is hearsay.
Is a misdemeanor conviction hearsay? Is it admissible under an exception to the hearsay rule?
hearsay; not admissible
Is a felony conviction hearsay? Is it admissible under an exception to the hearsay rule?
hearsay; admissible
