Hearsay Flashcards
Hearsay defined
An out-of-court statement offered to prove the truth of the matter asserted
** generally INADMISSIBLE**
statements not offered for truth:
- words of offer & acceptance
- libel or slander
- verbal acts to show motive/notice
Hearsay Exceptions: Present sense impression
- statement made while observing fact
- non-emotional observation
ex. “I saw a car go through a red light”
Hearsay Exceptions: Excited Utterance
- statement made while excited!!!!
Hearsay Exceptions: Then existing mental, emotional, physical state of mind
- statements of intent, emotion, or physical state
ex. I was going to NY, I’m suffering pain right now, I couldn’t have killed her, I loved her
Hearsay Exceptions: Business record
Record made in the ordinary course of business (something done all the time)
ex. time sheet
Hearsay Exceptions: Statement for medical diagnosis/treatment
- statement related to past or present symptoms
- about treatment or diagnosis
Hearsay Exceptions: recorded recollection
- Witness on the stand cannot remember
- Document made/adopted by W
- CAN be read into evidence
Hearsay Exceptions: Public record
- record or statement of a public office/agency
- observations by someone with a duty to report
Hearsay Exceptions: Learned treatise
Admissible when an expert witness is relying on the treatise
Hearsay Exceptions: Ancient document
- authentication: document must be more than 20 years old
- FRE hearsay exception: document must have been prepared before 1998
Hearsay Exceptions: Catch-all Exception
- material
- trustworthy
- in the interest of justice
Hearsay Exceptions – Unavailability Requirement
Unavailable witness = not currently at trial
- missing
- in a coma
- pleaded the 5th
- witness protection
Hearsay Exceptions – Unavailability Requirement: dying declaration
- unavailability
- belief of impending death
- about cause of death
- homicide or civil case
Hearsay Exceptions – Unavailability Requirement: statement against interest
- unavailability
- makes declarant look liable/guilty
- generally made by non-party
Hearsay Exceptions – Unavailability Requirement: former testimony
- unavailability
- opponent was a party to former case
- former case about same subject
- made under oath
- opportunity to cross-examine
Non-Hearsay: admissions
- statement made by a party
- ADMISSIBLE as non-hearsay
Non-Hearsay: vicarious admissions
statements made by employees about company
Non-Hearsay: adoptive admissions
party does NOT respond when a reasonable person would object
Non-Hearsay: prior consistent statement
- prior statement by declarant
- the same as current testimony
- to refute charge of fabrication or motive
Non-Hearsay: prior sworn inconsistent statement
- prior statement by declarant
- made under oath
- INCONSISTENT with current testimony
Non-Hearsay: prior identification
declarant testifying about an earlier identification
Right to Confrontation
Right to confront a witness concerning an out-of-court statement depends on if the statement is testimonial
-non-testimonial = ADMISSIBLE = statement made to police during emergency
-testimonial = inadmissible = statement NOT made during an emergency
Physical and Demonstrative Evidence
Generally admissible
ex. show scar; demonstrate a limp
Hearsay upon Hearsay (double hearsay)
- 2 different statements
- NOT admissible unless BOTH meet an exception or exemption to the rule
