hearsay Flashcards

1
Q

Hearsay Defined

A

An out of court statement offered to prove the truth of the matter asserted.

  • Out of court means a statement that was made outside of the current proceeding.
  • Statement-a statement can be any oral or written assertion as well as non-verbal conduct intended as an assertion and must be made by a human.
  • A statement that is being offered to prove something OTHER than the truth of the matter asserted, is not hearsay.
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2
Q

Reasons a Statement is Offered if Not to Prove the Truth of the Matter Asserted

A

(1) Legally Operative Facts (i.e. contract/defamation)
(2) to prove the effect on the listener/reader
(3) circumstantial evidence of declarant’s state of mind
(4) to impeach

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3
Q

What is NOT Hearsay

A

A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding or deposition.

  • may be admissible for substantive and impeachment purposes
  • witness must be given the opportunity to explain or deny the prior inconsistent statement, and the opposing party must be given the opportunity to examine the witness PRIOR TO INTRODUCTION of the statement.
  • a prior inconsistent statement NOT made under penalty of perjury cannot be used as substantive evidence (only for impeachment purposes/attack credibility)

**Other “non-hearsay” may include (but not 100% sure)

  • prior consistent statements-if offered to rebut a charge of fabrication or improper motive or bias
  • prior statements of identification after perception (eg. the red honda just hit me and fled the scene”)
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4
Q

Hearsay Exception List

A

List of Exceptions:

  1. Opposing Party Statement
  2. 804 “reliable” hearsay of UNAVAILABLE declarant
    a. Dying declaration
    b. Statements made by deceased or mentally ill
    declarant
    c. Statement against interest
    d. Prior testimony
    e. statement by abused elderly or disabled adult
  3. 803 “reliable” hearsay (availability is irrelevant)
    a. Excited Utterance
    b. Present Sense Impression
    c. State of Mind
    d. Medical Condition
    e. Business Records
    f. Recorded Recollection
    g. Official (public records)
    h. Ancient Documents
    i. Statements in documents affecting interest in
    property
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5
Q

Admission

A

Unlike under the Federal Rules of Evidence, Florida treats (1) OPPOSING PARTY STATEMENTS as an exception to hearsay.

An opposing party statement (AKA “admission”) is:

(1) a statement made by the opposing party, and
(2) offered against that party

  • includes
  • vicarious statements
  • adoptive statements
  • guilty plea
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6
Q

Vicarious Statements

A

Statements which are attributed to opposing party, and treated as a hearsay EXCEPTION.

(1) Agent/Employeee:
Statement made by an agent/employee regarding matters within the scope of agency/employment is admissible against the principal

(2) Authorized Speaker:
Statement by one authorized by a party to speak on his or her behalf is admissible against the party

(3) Co-Conspirator:
In Florida, hearsay statements of a co-conspirator are INADMISSIBLE to prove participation of another co-conspirator in the conspiracy.

Upon request of counsel, court must instruct the jury that conspiracy must be established by INDEPENDENT evidence.
Once established, then conspirator’s statements will qualify as VICARIOUS ADMISSIONS of co-conspirators.

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7
Q

Adoptive Statements

A

Statements which are attributed to opposing party, and treated as a hearsay EXCEPTION.

silence can be considered an adoptive statement or admission if the party:

(1) heard statement
(2) understood statement
(3) was capable of responding

and

(4) a reasonable person in the party’s position would have responded

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8
Q

Judicial Admissions

A

Statements which are attributed to opposing party, and treated as a hearsay EXCEPTION.

A guilty plea is admissible in a subsequent litigation when offered by the adverse party. The plea itself is considered an ADMISSION, which is an exception to hearsay.

*does NOT include:

  • statements made during plea negotiations
  • withdrawn guilty plea
  • nolo contendere plea
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9
Q

Hearsay Exceptions Requiring the Declarant’s Unavailability (list form)

A
  1. Dying Declaration
  2. Statements made by deceased or mentally ill declarant
  3. Statement against interest
  4. Prior testimony
  5. Statement by Abused Elderly or Disabled Adult
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10
Q

Dying Declaration

A

Falls under Florida’s Rule of Evidence requiring the declarant to be unavailable.

Unlike in Federal Rules of Evidence, Florida permits the dying declaration exception to apply in all criminal and civil cases, not just civil and homicide.

In order for the dying declaration exception to apply, the statement must be made:

(1) by an unavailable declarant
(2) under the belief of impending death
(3) concerning the impending death

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11
Q

Statements Made By Deceased or Mentally Ill Declarant

A

Falls under Florida’s Rule of Evidence requiring the declarant to be unavailable.

In an action against Declarant or their estate, where declarant is unavailable due to (1) death or (2) illness, a statement by declarant is admissible ONLY IF it involves the same subject matter as previously admitted statements by the Declarant

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12
Q

Statement Against Interest

A

Falls under Florida’s Rule of Evidence requiring the declarant to be unavailable.

Interests can be:

Penal
Financial
Proprietary
Etc.

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13
Q

Prior Testimony

A

Falls under Florida’s Rule of Evidence requiring the declarant to be unavailable, however in CRIMINAL TRIALS only.

**Note: The Florida Court of Appeals held that the lack of an unavailability requirement in criminal trials was unconstitutional!

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14
Q

Statement by Abused Elderly or Disabled Adult

A

Falls under Florida’s Rule of Evidence requiring the declarant to be unavailable.
Unavailable here can be any of the traditional grounds of unavailability, as well as on the grounds that participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental , or physical harm.

There must be corroborative evidence of the abuse or offense.

**If (1) the statement is being offered in a criminal trial, and (2) the statement is TESTIMONIAL, then the additional definition of unavailability (emotional, mental, or physical harm) is unconstitutional, as it violates the CONFRONTATION CLAUSE!

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15
Q

Confrontation Clause Traps!

A

When dealing with hearsay exceptions where the declarant is unavailable, look out for Defendant’s right to face his accusers (Confrontation Clause).

(1) In a criminal trial,
(2) Introduction of a statement that is TESTIMONIAL,
(3) where the Declarant is unavailable, thus depriving the Defendant of his right to face his accusers (to examine/cross-examine) the witness
will likely be excluded under the Confrontation Clause, regardless of its satisfying an exception under Hearsay rules.

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16
Q

Hearsay Exceptions Where Availability is Irrelevant (listed)

A

Under Federal Rules of Evidence 803, there are certain circumstances where a statement made is considered so “reliable” that it survives the rule against hearsay. Whether or not the Declarant is available is often irrelevant to the matter of admitting the statement.

**Keep in mind testimonial statements in a criminal trial, if the declarant is unavailable, are inadmissible due to the Confrontation Clause.

  1. Excited Utterance
  2. Present Sense Impression
  3. Statement of then existing physical Condition for the purpose of Medical Diagnosis or Treatment
  4. State of Mind
  5. Past Recollection Recorded
  6. Business Record
  7. Public Record or Report
  8. Ancient Documents
  9. Statements in Documents relating to interest in property
17
Q

Business Record

A

Under Federal Rules of Evidence 803, there are certain circumstances where a statement made is considered so “reliable” that it survives the rule against hearsay. Whether or not the Declarant is available is often irrelevant to the matter of admitting the statement.

**Keep in mind testimonial statements in a criminal trial, if the declarant is unavailable, are inadmissible due to the Confrontation Clause.

A Business Record is considered reliable and falls under this exception when:

(1) the record/report is made in the ORDINARY COURSE OF BUSINESS
(2) for a LEGITIMATE business purpose

18
Q

Learned Treatise

A

Unlike under the Federal Rules of Evidence, there is NO EXCEPTION for Learned Treatises in Florida!

A Learned Treatise may NOT be used for any substantive purpose, nor for bolstering the credibility of an expert witness. It may be admissible only for impeachment purposes.

In order for a Learned Treatise to be used to impeach, the Learned Treatise must first be established as AUTHORITATIVE in Florida.