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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

Hearsay Exceptions- BAD

A

Hearsay Exceptions
BAD SPLITS PEPPI F

B- business records
A- admission by party opponent
D-dying declaration

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2
Q

Hearsay- Test

A

3 part test to determine if something is NOT hearsay

  • is there an out-of-court statement- yes, continue/no-not hearsay
    • oral
    • written
    • conduct intended as a substitute for words
  • what is the evidence being offered to prove- determine
    • statement offered for one purpose may be hearsay; for another, not hearsay
  • does the probative value of the statement depend on the credibility of the declarant- yes- hearsay/no- not hearsay
    • if all we care about is whether the statement was made by declarant= no hearsay
    • if we care about declarant’s credibility; if probative value depends on whether declarant was lying or mistaken= hearsay
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3
Q

Hearsay Exceptions- SPLITS

A

S- spontaneous statements
P- public records
L- learned treatise
I- interest, declaration against
T- testimony, former
S- state of mind or condition

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4
Q

Hearsay Exceptions- PEPPI F

A

P- past recollection recorded
E- equivalent (hearsay statements that have outside guarantees of reliability)
P- prior inconsistent statements
P- prior consistent statements
I- identification

F- forfeiture

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5
Q

Hearsay Exceptions- 804- Declarant Unavailable

A

D- dying delcaration
I- interest, declaration against
F- former testimony
F- forfeiture

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6
Q

Hearsay Exceptions- Rule 804 Process

A

two step process under 804

  • first ask if the declarant is unavailable (104(a) question)
    • five ways to be unavailable under 804
    • privilege is asserted
    • declarant refuses to testify
    • declarant doesn’t remember
    • dead
    • declarant cannot be located or brought to court by reasonable means
  • then ask if there is a hearsay exception
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7
Q

Hearsay Exceptions- Business Records

A

Business records: Records are admissible if they are:


  • Made in the regular course of business;
  • Records about which the witness has personal knowledge; and
  • Made contemporaneous to the event to which they refer.


Absence of records is admissible: The absence of a record where one would normally exist is admissible to prove the nonoccurrence of an event or nonexistence of a fact.

Official records: Records, reports, or data compilations of public agencies and officials made within the scope of their duties are admissible for their truth.


Exception: Police investigative reports are inadmissible against a defendant in a criminal case.

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8
Q

Hearsay Exceptions- Admissions by a Party Opponent

A

Party admission: An out-of-court declaration of a party to the lawsuit is admissible if the statement is:


  1. Offered against that party; and
  2. Inconsistent with the party’s present position.


Co-conspirator statements admissible: Statements by a co-conspirator in a crime are admissible against a party, as if the party had made the statements herself.

Employee’s statements admissible if within scope.

Adoptive admissions admissible: A person may adopt the statement of another person, and such adoption is admissible as evidence, if they remain silent where a reasonable person would have denied the statement (e.g., an accusation).

Personal knowledge of facts not required: The declarant need not have knowledge of the facts to which they refer in order for the evidence to be admissible

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9
Q

Hearsay Exception- Dying Declaration

A

Dying declaration: Statements made while a declarant:

  • expectation of impending death (whether or not he or she actually died)
  • about the cause or circumstances that gave rise to the expectation.


Dying declarations are admissible in any civil action or homicide prosecution, but they are inadmissible in any other criminal prosecutions.

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10
Q

Hearsay Exceptions- Spontaneous Statements

A

Present sense impression: A spontaneous statement made by a declarant that describes an event at the time it is happening, or very shortly thereafter, is admissible.

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11
Q

Hearsay Exceptions- Public Records

A

Official records: Records, reports, or data compilations of public agencies and officials made within the scope of their duties are admissible for their truth.


  • Exception: Police investigative reports are inadmissible against a defendant in a criminal case (admissible in civil).
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12
Q

Hearsay Exceptions- L

A

Learned Treatises: To the extent they are relied upon by an expert witness, statements contained in learned treatises (i.e., scholarly materials) may be read into evidence (but not received as exhibits).

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13
Q

Hearsay Exceptions- Interest, Declaration Against

A

Declaration against interest: A declaration of a person now unavailable that was against that person’s pecuniary or proprietary interests at the time of the statement, is admissible for its truth.


  • Corroboration required in criminal cases: When a statement against penal interests is offered to help the accused (e.g., another person’s confession), corroboration is required for it to be admissible.
  • Note: Unlike the party admission nonhearsay exception, this exception requires the statement to be against the declarant’s interests at the time of the statement.
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14
Q

Hearsay Exceptions- Testimony, Former

A

Former sworn testimony: When a now-unavailable declarant testified in a former trial, his or her testimony is admissible if it is:


  • The same subject: The testimony regarded the same subject matter as the current proceeding.

  • Cross-examined: The declarant was cross-examined by the same party or a party in privity with the party against whom it is offered.


Note: Do not confuse this hearsay exception with the exception admitting prior inconsistent statement given under oath. In that case, the declarant is the witness. Under this exception, the declarant must be unavailable.

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15
Q

Hearsay Exceptions- S2

A

State of Mind or condition-

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16
Q

Hearsay Exceptions- P

A

Past Recollection Recorded-

  • present sense impression- a statement describing or explaining an event or condition, made while or immediatly after the declarant perceived it.
    *
17
Q

Hearsay Exceptions- E

A

Equivalent (hearsay statements that have outside guarantees of reliability)

  • more probative than any other reasonably avail. evidence to prove the fact, and ‘will best serve…the interest of justice’
  • must give prior notice to other party of what you want to admit
18
Q

Hearsay Exceptions- P2 & 3

A

Declarant-Witness’s testifies and is subject to cross examination about a prior statement and the statement:

P- prior inconsistent statements- inconsistent with declarant’s testimony and statement was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.

P-prior consistent statements- is consistent with the declarant’s testimony and is offered to rebut an express or implied change that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying

19
Q

Hearsay Exceptions- I2

A

I- identification (prior)

20
Q

Hearsay Exceptions- F

A

F- forfeiture- a party forfeits their rights to object on hearsay grounds if they have caused the situation that makes the situation hearsay

21
Q

Hearsay Exceptions that Require the Declarant be Unavailable

A

Some hearsay is only available if the declarant is unavailable to testify at trial (since some hearsay is somewhat reliable- only avail if person isn’t available)
Only 5 require a showing declarant is unavailable

D- dying declaration
I- interest, declaration against
F- forfeiture
T- testimony, former

P- personal history

22
Q

Hearsay- Determining if someone is unavailable

A

two step process under 804

1)first ask if the declarant is unavailable (104(a) question)

  • five ways to be unavailable under 804
    • privilege is asserted
    • declarant refuses to testify
    • declarant doesn’t remember
    • dead
    • declarant cannot be located or brought to court by reasonable means

2) then ask if there is a hearsay exception

  • Dying declaration
  • Interest, declaration against
  • Forfeiture
  • Testimony, former
23
Q

Hearsay within Hearsay

A

steps

  1. is the entire statement hearsay
  2. break the combined statement into separate elements
  3. evaluate each statement and find an exception
  4. if any part doesn’t clear with an exception, you’re done-not admissible
24
Q

Hearsay Exeptions- B

A

Business records

  • applies to any ‘record’ (any kind of info. that an org. documents, regardless of format)
  • must have been either recorded by a person with personal knowledge of the data or a person who recieved that info from someone else with this personal knowledge
  • the org. must have made the record in the course of a regularly conducted business activity with a regular practice of keeping such records
  • a qualified witness must introduce the record into evidence
  • NOT admissible if the source of info or method or circumstances of preparation indicate a lack of trustworthiness
  • ‘business’ is defined very broadly
25
Q

Hearsay Exceptions- A

A

Admissions by a party opponent

  • any out of court statement made by an opposing party is admissible
  • based on an estoppel theory
  • must be offered against a party by the opposing party
  • statements may be adopted
    • explicity
    • or by silence (except in criminal trials)
26
Q

Hearsay Exceptions- D

A

Dying declaration-

  • doesn’t need to have died, just be unavailable
  • applies only in homicide prosecutions and civil proceedings
  • declarant must believe that death is imminent when he makes the statement
  • context of the statement must concern the cause or circumstances of the declarant’s death
27
Q

Hearsay- Crawford

A
  • 6th Amend. Confrontation Clause guarantees right to confront ‘witnesses’
  • only applies to evidence offered against the accused
  • if non-testimonial, no 6th Amend. issues
  • if testimonial, admissible only if:
    • D can cross examine the declarant at trial; OR
    • declarant is unavail. AND D had prior opportunity to cross examine.
  • a witness is someone who bears ‘testimony’, thus whether something is ‘testimonial’ determines whether the Conf. clause prohibits hearsay from being admitted
  • Testimonial-
    • solemn declaration…made for the purpose of establishing or proving some fact.
    • primary purpose of creating an out-of-court substitute for trial testimony
    • primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.
  • the Crawford court said that what is testimonial could include three things
    • ex parte in court testimony or its functional equivalent
    • extra-judicial statements contained in formalized judicial materials
    • statements that are made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial
28
Q

Hearsay- Davis

A
  • a statement made to L.E. is not ‘testimonial’ and thus not subject to the Conf. Clause when it is made in the course of an interrogation, and under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
    • i.e. statements to a 911 operator from a DV victim
  • a statement made to L.E. is testimonial, and therefore subject to the Conf. Clause when i the circumstances indicate that there is no ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events, potentially relevant to a later criminal prosecution
    • statements made to police investigating a DV

Hearsay exception under the forfeiture by wrongdoing exception

  • these cases also apply to the Confrontation Clause
  • forfeit the right to confrontation if he is responsible for the declarant not being available to testify
29
Q

Hearsay- Crawford/Davis and beyond

A
  • Melendez-Diaz- testimonial because ‘made undercircumstances which would lead an objective witness reasonably to believe that the statement would be avail. for use at later trial.’
  • Williams v. Illinois- lab tech created DNA profile from rape kit. Specialist searched DNA database and found suspect. Specialist testified/lab tech didn’t
  • non testimonial if:
    • not ‘primary purpose of accusing a targeted individual of …criminal conduct.’ - 4 votes
    • lab report was not ‘formalized’- 1 vote
  • dying declarations are ‘probably’ grandfathered in because historically they didn’t bother the 6th Amendment
  • 804(b)(6) forfeiture also forfeits the 6th Amend. right

Evidence (3 decks)

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