Hearsay Flashcards
801(c): definition of hearsay
Hearsay is a statement that the declarant does not make while testifying at the current trial and is offered for the truth of the matter asserted
801(d): not hearsay (2)
declarant witness’s prior statement, opposing party statement
801(d)(1): Declarant-Witness Prior Statement (3)
declarant testifies and is subject to cross about a prior statement and the statement is
a) inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding
b) is consistent with declarant’s testimony and is offered to rebut an express or implied charge of fabrication or improper influence, to rehabilitate declarant’s credibility
c) identifies a person as someone the declarant perceived earlier
801(d)(2): Opposing Party Statement (5)
statement is offerent against an opposing party and
a) was made by the party in an individual or representative capacity
b) is one the party manifested that it adopted or believed to be true
c) was made by a person whom the party authorized to make a statement on the subject
d) was made by the party’s agent or employee on a matter within the scope of that relationship while it existed
e) was made by the party’s coconspirator during and in furtherance of the conspiracy
803: Exceptions - regardless of whether the declarant is available as a witness (7)
1) present sense impression
2) excited utterance
3) then existing condition
4) statement made for medical diagnosis or treatment
5) Recorded recollection
6) records of a regularly conducted business activity
7) public records
803(1): present sense impression
a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it
803(2): Excited Utterance
statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused
803(3): then-existing mental, emotional, or physical condition
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will
803(4): statement made for medical diagnosis or treatment
a) made for and is reasonably pertinent to medical diagnosis or treatment
b) describes medical history, past or present symptoms, their inception, or general cause
803(5): recorded recollection
recollection on the matter the witness once knew but now cannot recall well enough to testify; was made or adopted by the witness when the matter was fresh in the witness’s memory; accurately reflects the witness’s knowledge
may only be read into evidence; able to be received as an exhibit if offered by an adverse party
803(6): Records of a regularly conducted activity
requirements:
a) record was made at or near the time by, or from information transmitted by, someone with knowledge
b) record was kept in the course of a regularly conducted activity
c) making the record was a regular practice of that activity
d) all conditions were shown by the testimony of the custodian or another qualified witness or by certification
e) opponent does not show that the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness - record made in anticipation of trial
803(8): public records
record or statement of a public office:
a) sets out the offices activities, matter observed while under legal duty to report;
civil case or against the government in a criminal case - factual findings from a legally authorized investigation
b) opponent does not show that the source of the information or other circumstances indicate a lack of trustworthiness
statement of a party opponent - adoptive admission elements (4)
a) hear and understand
b) at liberty to respond
c) circumstances naturally call for a response
d) failed to respond
statement of a party opponent - co-conspirator elements
1) made by a coconspirator of opposing party
2) made in the course of a conspiracy
3) made in furtherance of a conspiracy
verbal act of legal signifcance
not hearsay
eg agreeing to a contract
confrontation clause - primary purpose test
if primary purpose of statement is testimonial, then confrontation clause applies
testimonial - primary purpose is gathering evidence for a criminal trial
not testimonial - collecting information regarding an ongoing emergency
804: hearsay exceptions when the declarant is unavailable (4)
1) former testimony
2) statement of belief of imminent death
3) statement against interest
4) statement offered against a party that wrongfully caused the declarant’s unavailability
804(a): criteria for being unavailable (5)
1) exempted from testifying about the subject matter because of priviliege
2) refuses to testify despite a court order to do so
3) testifies to not remembering subject matter
4) cannot be present because of death or then-existing injury or illness
5) absent and statement’s proponent has not been able to procure attendance by reasonable means
804(b)(1): former testimony
given as a witness at trial and is now offered against a party who had an opportunity and similar motive to develop it by direct cross or redirect exam
804(b)(2): statement under belief of imminent death
-prosecution for homicide or civil case
-declarant believed death to be imminent
-statement was made about its cause or circumstances
804(b)(3): statement against interest
a) a reasonable person in declarant’s position would have made only if the person believed it to be true because it was so contrary to declarant’s interest
b) supported by corroborating circumstances that clearly indicate trustworthiness
804(b)(6): statement offered against a party that wrongfully caused declarant’s unavailability
statement offered against a party that wrongfully caused the declarant’s unavailability as a witness and did so intending that result
807: residual exception
1) not admissible under 803 or 804
2) statement is supported by sufficient guarantee of trustworthiness
3) more probative than other evidence
