Hearsay Flashcards
What is Hearsay?
Rule 801(c)
“Hearsay” means a statement:
1. the declarant does not make while testifying at the current trial or hearing; and
2. a party offers in evidence to prove the truth of the matter asserted in the statement.
What is a Statement?
Rule 801(a)
A statement is a peron’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
What is the “truth of the matter asserted” for hearsay purposes?
A statement is offered for the truth of the matter asserted if there is a match between the reason the proponent introduced the statement and the assertion in the statement itself.
What is a verbal act?
A statement that has some independent legal significance, in that it triggers rights or liabilities.
It is not hearsay becasue it is not being offered for the truth of the matter asserted, but rather because of th effect it had in trigerring the legal right ot liability.
Ex: Threats: “Next time i see you, I’ll stab you.” We don’t care if it is true, only that it was uttered.
Under what circumstances is a prior inconsistent statement made by a testifying witness admissible for the truth of the matter asserted in the prior statement?
- The prior statement is inconsistent with the witness’s current testimony;
- the witness is subject to cross-examination about the earlier statement; and
- the prior statement was given under penalty of perjury at a trial, hearing, and other proceeding, or in a deposition.
If these conditions are met, the prior statment can be used as substantive evidence, not just to impeach.
Under what circumstances is a prior consistent statement made by a testifying witness admissible for the truth of the matter asserted in the prior statement?
- the prior statement is consistent with the witness’s current testimony;
- the witness is subject to cross-examination about the earlier statement;
- the statement is offered to rebut a charge that the speaker recently fabricated the statement, to rebut a charge that hte witness acted from a recent improper influence of motive in testifying, or to rehabilitate the witness’s credibility if it has been attacked on another ground; and
- the consistent statements were made before the alleged motive to fabricate arose
If these conditions are met, the prior statement can be used as substantive evidence, not just to impeach.
Under what circumstances is a declarant-witness’s prior statement of identification exempted from the hearsay rule?
A declarant-witness’s prior statement of identification is exempted form teh hearsay rule if
1. the witness testifies and is not cross-examinable regarding the statement and
2. the prior statement identified a subject that the declareant-witness perceived earlier.
In this situation, the statement of identification is not hearsay.
Is a prior out-of-court statement made by an opposing party admissible for the truth of the matter asserted in the prior statement?
Yes, always.
Any prior out-of-court stament made by an opposing party is excluded from the rule against hearsay and is admissible when offered against the party who made the statement
Is a statement made by an opposing party excluded from the rule against hearsay only if a prior out-of-court statement is being offered against the party who made the statement?
Yes. A statement made by an opposing party is only excluded from the rule against hearsay if a prior out-of-court statement is being offered against the party who made the statement, not on behalf of a party who made the statement.
A prosecutor could admit prior out-of-court inculpatory statements made by the defendant, but the defendant could not admit his own prior out-of-court exculpatory statements.
What is an adoptive admission?
An adoptive admission is a statement made by another person in which a party has manifested an adoption or belief in its truth. The hearsay exception for statements by a party opponent includes adoptive admissions. Adoption may occur
- explicitly;
- if the other person was authorized to speak about the subject matter on the party’s behalf; or
- if the other person was the party’s agent or employee, and the subject matter was within the scope of the agency or employment.
Silence may also be admissible as an adoptive statement.
Is a statement made against a party by the party’s co-conspirator during the conspiracy exempted from the rule against hearsay?
Yes. A statement made against a party by the party’s co-conspirator, during and in furtherance of the conspiracy, qualifies as a statement of a party opponent and is, therefore, exempted from the rule against hearsay. The party seeking to introduce a statement under this exemption must independently establish, by a preponderance of the evidence, the existence of the conspiracy or the party’s participation in it.
Such a statement is admissible in both criminal and civil cases, even if the party is not charged with a conspiracy. Also, the proponent of the statement does not need to establish the declarant’s personal knowledge. This exemption does not apply to statements made by one party against a mere co-party when the co-party is not a co-conspirator.
What rule governs hearsay within hearsay?
Rule 805
What rule governs present-sence impressions?
Rule 803(1)
Under what circumstances is a hearsay statement admissible as a present-sense impression?
A hearsay statement is admissible as a present-sense impression if the declarant:
1. Makes a statement describing an event or condition and
2. The statement was made simultaneously with, or immediately after, perceiving it.
The event or condition need not be startling or exciting, nor elicit any specific type of reaction in the declarant. However, the event or condition and the statement must be substantially contemporaneous.
What rule governs Excited Utterances?
Rule 803(2)
Under what circumstances is a hearsay statement admissible as an excited utterance?
A hearsay statement is admissible as an excited utterance if:
- There is a startling or exciting event,
- the declarant makes a statement while under the stress of the event, and
- the statement relates to the event.
The event and the statement do not need to be contemporaneous, but generally a statement is not an excited utterance if the declarant has an opportunity to reflect on the event.
What rule governs hearsay statements about emotional or physical conditions?
Rule 803(3)
Then-Existing Mental, Emotional, or Physical Condition
Are hearsay statements describing an emotional or physical condition generally admissible?
Yes.
Hearsay statements describing an emotional or physical condition are generally admissible. The state-of-mind exception admits statements describing the declarant’s then-existing state of mind, emotional condition, sensory condition, or physical condition.
Thus, a declarant’s statement regarding his or her current motive, intent, plan, pain, sensation, mental health, or physical health is admissible under the state-of-mind exception.
What rule governs statements for medical diagnosis and treatment?
Rule 803(4)
May a statement made for purposes of receiving medical diagnosis or treatment be admissible?
Yes. A statement made for purposes of receiving medical diagnosis or treatment is admissible if it is reasonably pertinent to such treatment and describes medical history, past or present symptoms or sensation, the symptoms’ inception, or the symptoms’ general cause. Such a statement is reliable because a person making a statement for the purpose of receiving medical treatment is unlikely to lie. The statement does not need to be made to a medical professional to be admissible, nor does the statement need to be made by the person needing treatment.
Because this exception covers both present and past symptoms, it is broader than the state-of-mind exception, which only covers present conditions. This exception does not cover statements made by a medical professional to a patient, nor statements ascribing specific blame, unless the statements relate to sexual abuse.
What rule governs recorded recollection?
Rule 803(5)
Is a recorded recollection admissible despite the hearsay bar?
Yes.
A recorded recollection, also known as a past recollection recorded, is admissible despite the hearsay bar. Although a writing made outside of court is hearsay if offered for the truth of the matter asserted in it, a witness can read a recorded recollection to the jury if:
1. The witness once knew the recorded information but cannot recall it well enough to testify fully and accurately,
2. The record was made or adopted by the witness when the matter was fresh in the witness’s memory, and
3. The record accurately reflects the witness’s knowledge at the time it was made.
The proponent cannot offer the record itself as an exhibit. However, an adverse party can offer the record as an exhibit.
Is a record made by someone other than the witness admissible as a recorded recollection?
Yes. A record made by someone other than the witness is admissible as a recorded recollection if the witness adopted the record while the subject matter was fresh in the witness’s mind. A recorded recollection can be introduced if:
1. The witness once knew the recorded information but cannot recall it well enough to testify fully and accurately,
2. The record was made or adopted by the witness when the matter was fresh in the witness’s memory, and
3. The record accurately reflects the witness’s knowledge at the time it was made.
What rule governs records of regularly conducted activity, also called business records?
Rule 803(6)
Under what circumstances is a record of a regularly conducted activity, also called a business record, admissible despite the hearsay bar?
A record of a regularly conducted activity, also known as a business record, is admissible hearsay if:
1. The record was made at or near the time of the event;
2. The record was made by, or based on information transmitted from, someone with knowledge acting in the regular course of business;
3. The record was kept in the course of a regularly conducted business activity; and
4. Making the record was a regular practice of that business.
The record’s proponent **must **show these elements are met by calling the custodian of the record, calling a different qualified witness, or offering a certification. The court can exclude the record if the opponent shows the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness.
What rule governs the absence of regularly conducted activity from records?
Rule 803(7)
Is the absence of a matter from a business record admissible under the business-records exception to the rule against hearsay?
Yes. The absence of a matter from a business record is admissible under the business-records exception to the rule against hearsay. The absence of a matter may, therefore, be used as evidence of the matter’s nonexistence if it would ordinarily have been contained in the record.
What rule governs records or statements by a public office?
Rule 803(8)
Under what circumstances is a record or statement made by a public office admissible despite the hearsay bar?
A record or statement made by a public office is admissible despite the general hearsay bar if it sets out:
1. Activities of the office (e.g., employment records or accounts payable);
2. Matters observed and reported under a legal duty (e.g., an agency charged with reporting rainfall records or traffic patterns);
3. Findings, opinions, and conclusions in legally-authorized investigations.
However, even if these requirements are satisfied, the public-records hearsay exception will not apply if an opponent shows that the evidence lacks trustworthiness, or if the evidence (1) concerns either matters observed by law enforcement or findings of legally-authorized investigations and (2) is offered against a defendant in a criminal case.
Does the public-records exception to the rule against hearsay require that the public record be kept in the ordinary course of business?
No. The public-records exception to the rule against hearsay does not require that the public record be kept in the ordinary course of business. The public-records exception also does not require a qualified witness to testify or provide an affidavit in order to admit the records.
Does the public-records exception to the rule against hearsay require that the public record be kept in the ordinary course of business?
No. The public-records exception to the rule against hearsay does not require that the public record be kept in the ordinary course of business. The public-records exception also does not require a qualified witness to testify or provide an affidavit in order to admit the records.
Is the absence of a public record admissible to prove that a particular matter did not occur?
Yes. The absence of a public record is admissible to prove that a particular matter did not occur. Testimony or a certification that a diligent search failed to disclose a public record is admissible to prove that
1. The record does not exist or
2. A matter did not occur, if the public office regularly kept records for matters of that kind.
This exception is similar to the exception that permits the admission of the absence of a business record.
If the prosecution in a criminal case intends to use a certification, rather than testimony, to prove the record’s absence, it must provide written notice 14 days in advance of trial so the defendant can object to the use of the certification.
What rule governs information absent from public records?
Rule 803(10)
Are there any exceptions to the hearsay rule that require that the out-of-court declarant be unavailable to testify in order for the exception to apply?
Yes. There are four exceptions to the hearsay rule that require that the out-of-court declarant be unavailable to testify in order for the exception to apply:
- former testimony,
- dying declarations,
- statements against interest, and
- statements of personal history.
These exceptions cover statements that are not as trustworthy as present testimony, but given the declarant’s unavailability, are better than having no evidence at all.
What rule details the criteria for being “unavailable” for hearsay?
Rule 804(a)
When is a declarant considered to be unavailable as a witness?
A declarant is considered to be unavailable as a witness if the witness is:
- exempted from testifying as a result of a privilege,
- continuously refuses to testify despite a court order to do so,
- testifies to a lack of memory about the subject matter,
- is dead or has a long-term physical or mental illness, or
- is absent and cannot be located by subpoena or other reasonable means despite a diligent search.
A judge determines a declarant’s unavailability and a declarant will not be deemed unavailable if the proffering party wrongfully caused the declarant’s unavailability.
Under what circumstances is a declarant’s former testimony from the current or a separate proceeding admissible hearsay?
A declarant’s former testimony from the current or a separate proceeding is admissible hearsay if:
1. The declarant is unavailable;
2. The prior testimony was given at a trial, hearing, or lawful deposition; and
3. The former testimony is being offered against a party who had an opportunity and similar motive to develop the testimony by direct, redirect, or cross-examination.
In a civil case, it suffices if a predecessor in interest, rather than the current party, had the similar motive and opportunity to develop the testimony.
What rule covers former testimony?
Rule 804(b)(1)
What rule governs dying declarations?
Rule 804(b)(2)
Under what circumstances is a statement under the belief of imminent death, also called a dying declaration, admissible despite the hearsay bar?What is the dying-declaration exception to the rule against hearsay?
A statement under the belief of imminent death, also called a dying declaration, is admissible despite the hearsay bar if:
- the declarant is unavailable,
- the statement is offered in a prosecution for homicide or in a civil case,
- the statement is made while the declarant believes his or her death is imminent, and
- the statement is made about the cause or circumstances of the declarant’s death.
Although the declarant must be unavailable, there is no requirement that the declarant actually die.
What rules govern statements against interest?
Rule 804(b)(3)
What is a statement against interest?
A statement against interest is a statement that is so contrary to a declarant’s penal, proprietary, or pecuniary interest, that a reasonable person in the declarant’s position would not have made it were it not true. If the declarant is unavailable, a statement against interest is admissible.
If the statement is offered in a criminal case in which the declarant is exposed to criminal liability, the statement must also be supported by corroborating evidence that supports its trustworthiness.
If a statement against interest inculpates a third party, the statement must be redacted to exclude the portion that relates to the third party. However, if a statement against interest exculpates a third party, it may be admissible in its entirety if all parts of the statement are at odds with the declarant’s interests.
What interests must be implicated for statement against declarant’s interest?
- Proprietary
- Pecuniary
- Penal
What rule governs the catch-all hearsay exception?
Rule 807
What is the catch-all hearsay exception?
The catch-all or near-miss hearsay exception is the residual exception to the rule against hearsay. Under this exception, a hearsay statement is not excluded by the rule against hearsay, even if it does not fall within an otherwise-enumerated exclusion or exception, if:
- the statement has circumstantial guarantees of trustworthiness equivalent to those in existing specific hearsay rules,
- the statement is offered as evidence of a material fact,
- the statement is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts, and
- admitting it will best serve the purposes of the Federal Rules of Evidence and the interests of justice.
Evidence is admissible under the residual exception only if the proponent provides an adverse party reasonable notice.
For the purposes of the 6th Amendment, what is testimonial hearsay?
Evidence gathering for a criminal case.
What is the 6th Amendment?
The 6th Amendment gives every criminal defendant the right “to be confronted with the witnesses against him”
What is requried for an adoptive admission?
- Heard and understood the statement;
- Was at liberty to respond;
- Circumstances naturally call for a response; **and **
- Failed to respond in a meaningful way.
Wht is required for a Co-Conspirator Admission?
- Statement made by co-conspirator of party against a party;
- Made during the course of the conspiracy; and
- Made In furtherance of the conspiracy
What is the Bruten rule?
The admission of a Defendant’s confession increiminating a co-defendant violates the 6th Amendment Confrontation Clause.
- Statements must be facially identifying/incriminating to violate.
- Inferences are allowable to a point (Ex: officer testifying, “he said, ‘I was in the car with, [redacted], and some other guy.’ After that statement, we arrested Sam.”)
What rule governs Present recollection revived?
Rule 612
What is Present Recolleciton revived?
The witness, althouth he may use the writing (or anything else) to refresh his recolleciton, must testify to the fact that he remembers it and he may not read or show the writing to the jury.
Public records under, 803(8) include what types of information?
- (A)(i): Nuts and Bolts of office activity
- (A)(ii): Mundane things (ie, weather reports)
- (A)(iii): Factual findings from legally authorized investigations
Public records are must narrower than business records.
