Hearsay Flashcards
Definition of Hearsay
An out of court statement offered to prove the truth of the matter asserted..
- Can be spoken or written
Declarant: Person who spoke the hearsay
Exclusions (What is NOT Hearsay)
- Prior Inconsistent Statements
- Prior Consistent Statements
- Prior Statements of Identification
- Admissions of Party Opponent
- Adoptive Statements
- Vicarious Admissions
- Co-Conspirators
Prior Inconsistent Statement (Exclusion to Hearsay)
A prior inconsistent statement is excluded form hearsay if:
- The witness is the declarant and is subject to cross-examination AND
- Statement was made under oath (predisposition, etc.)
Prior Consistent Statement (Hearsay Exclusion)
Prior consistent statements can be used to rehabilitate the witness if the witness is the declarant and is subject to cross-examination
Prior Statement of Identification (Hearsay Exclusion)
A previous out-of-court identification of a person is admissible if the witness is the declarant and is subject to cross-examination.
[lineups]
Admission of Party Opponent (Exclusion Hearsay)
Generally, if a statement being introduced against a party is the party’s own prior statement, then it is admissible.
Adoptive Admissions
A statement made by someone else which is then expressly or impliedly adopted by party opponent.
Silence As Adoptive Admissions:
Rarely used, requires:
- The party heard and understood the statement;
- The party had the ability to respond; AND
- A reasonable person similarly situated would have denied the statement.
Vicarious Admissions
Statements made by a person authorized to speak on behalf of the party
Co-Conspirators
Statements made by co-conspirators during and in furtherance of a conspiracy are admissible against other co-conspirators
Former Testimony (Hearsay Exception)
Rule: Former testimony given by an unavailable witness under oath at a prior hearing/deposition is admissible in a subsequent trial IF
the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony through direct or cross-examination at that prior hearing, deposition, etc.
Dying Declaration (Hearsay Exception)
Dying declarations are admissible if:
- Individual believes they are dying
- Believes that death is imminent
- the Statement relates to the cause or circumstance of death AND
- the declarant is unavailable
Declarant does not need to die
Statements Against Interest (Hearsay Exception)
A statement that, at the time it was made, was against the declarant’s pecuniary, proprietary, civil, or penal interest such that a reasonable person would not have made the statement unless it were true.
REQUIRES declarant to be unavailable.
[Think, Person XYZ told me they committed the murders (and XYZ is the declarant)]
Statements of Personal or Family History (Hearsay Exception)
Statements made concerning the unavailable declarant’s own birth, adoption, marriage, familial relationship, etc. are admissible.
Forfeiture by Misconduct [Declarant is Unavailable due to PArty’s Wrongdoing] [Hearsay Exception]
If a party engages in wrongdoing that renders the declarant unavailable to testify, then the party cannot claim the declarant is unavailable (for hearsay purposes) AND the door is open to use anything declarant said against that party.
Present Sense Impression (Hearsay Exception)
A statement made while the declarant was perceiving the event (or immediately thereafter)
[Description or explanation of the event]
Excited Utterance (Hearsay Exception)
Statement relating to a startling event or condition while the declarant is still under the stress or excitement caused by the event or condition
State of Mind (Hearsay Exception)
Statement of a declarant’s then existing physical, mental, or emotional condition is admissible to prove the existence of that condition.
Statements Made for the Purpose of Medical Diagnoses or Treatment (Hearsay Exception)
Statements that describe a declarant’s medical history or past/present symptoms are not hearsay if pertinent to the treatment of diagnoses of that medical condition.
Past Recollection Recorded (Hearsay Exception)
When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if:
- the record concerns a matter about which the witness once had knowledge;
- the record was prepared or adopted by the witness when the matter was fresh;
- the record accurately reflects the witness’s knowledge; AND
- the witness testifies that he has insufficient memory of the event to testify fully accurately (without reading the document to the jury)
*Jury do not get to see the record, it is not put into the record unless the adversary introduces it to the Jury
Business Record (Hearsay Exception)
Any record or writing of an act or event made in the course of a regularly conducted business activity.
Admissible IF it was made:
- At or near the time of the event it records;
- By a person with knowledge of the event and under a duty to report it; AND
- It is a regular practice of business to make that kind of record
Public Records (Hearsay Exception)
Three things are admissible in public records:
- Activities
- Observations
- Factual Findings
If it is a police record, then that record cannot include observations or factual findings.
Learned Treatises (Hearsay Record)
May be used to impeach an expert witness.
Judgment of Previous Conviction (Hearsay Exception)
Admissible to prove any fact that was essential to that judgment.
