Hearsay Flashcards
Statement of absence from public record
Evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove that a matter was not recorded, or, inferentially, that a matter did not occur.
Hearsay - general rule
Relevant evidence may be barred by the hearsay rule. Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. A statement for purposes of the hearsay rule is a person’s oral or written assertion or nonverbal conduct intended an an assertion. A statement that is inadmissible hearsay to prove the truth of the statement may nevertheless be admitted to show the statement’s effect on the listener or reader.
Hearsay is not admissible unless it falls within an exception to the hearsay rule. Hearsay within hearsay is an out-of-court statement that incorporates other hearsay, and is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.
Prior inconsistent statement
A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and thus may be used as substantive evidence as well as for impeachment.
Confrontation Clause - general rule
A criminal defendant has the constitutional right, under the Confrontation Clause, to confront and cross-examine the witnesses against him. A hearsay statement will not be admitted when:
1. the statement is offered against the accused in a criminal case
2. the declarant is unavailable
3. the statement was testimonial in nature; and
4. the accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial.
When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial.
Confrontation Clause - affidavits
Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine.
Hearsay exception - statement against interest
A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true. The declarant must also have had personal knowledge of the facts, and must have been made aware that the statement was against their interest when they made it.
Unavailability of witnesses
A witness is unavailable if:
- she is exempted from testifying because the court rules that a privilege apples
- she refuses to testify concerning the statement despite a court order to do so,
- she testifies to not remembering the subject matter of the statement,
- she cannot testify because she has dies or is ill, or
- she is absent and the statement’s proponent is unable to procure her attendance or testimony by process or other reasonable means.
Hearsay - present state of mind exception
A statement of the declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible.
Hearsay - business record exception
A writing or record made as a memorandum or record of any act, transaction, occurrence, or event is admissible as proof of such act, transaction, occurrence, or event if it was made in the course of a regularly conducted business activity and if it was customary to make the type of entry involved (i.e., the entrant must have had a duty to make the entry). The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The entry must have been made at or near the time of the transaction and the entry must be authenticated.
Hearsay - former testimony exception
The testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest must have been a party in the former action. Predecessor in interest includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had a adequate opportunity and motive to cross-examine them.
Hearsay - statements for medical diagnosis or treatment
A statement that describes a person’s medical history, past or present symptoms, or their cause is admissible as an exception to the hearsay rule if it was made for, and was reasonably pertinent to, medical diagnosis or treatment.
Hearsay - prior statement of identification
Hearsay is an out-of-court evidence offered into evidence to prove the truth of the matter asserted, and is not admissible unless it falls within an exception. A declarant’s prior statement identifying a person as someone the declarant perceived earlier (including photo identifications) is not hearsay if the declarant testifies at trial and is subject to cross-examination about the statement.
Hearsay - prior inconsistent statement
Where a prior inconsistent statement was made under penalty of perjury at a prior trial, hearing, or other proceeding, or in a deposition, it is admissible nonhearsay.
Hearsay - present sense impression
A present sense impression is a statement describing or explaining an event or condition while made or immediately after the declarant perceived it.
Hearsay - opposing party statement
An opposing party’s statement (i.e., a statement by or attributable to a party and offered against that party) is considered nonhearsay and therefore admissible.
