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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

What is hearsay

A
  1. Out of court
  2. Statement
  3. By qualifying declarant
  4. Offered for TOMA
  5. Outside of 801(d)
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2
Q

What are the 801(d) exceptions

A

Declarant-witness’s prior statement
- inconsistent
- consistent
- identification

APO
- Individual
- Adoption
- By person authorized to make statement
- By agent
- By co-conspirator

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3
Q

What are the hearsay exceptions

A
  1. Statement against interest
  2. Former testimony
  3. Dying declaration
  4. Statement about personal history/ unclean hands
  5. Excited Utterance
  6. State of mind/body
  7. Biz/ absence
  8. Present sense impression
  9. Medical
  10. Public record
  11. Learned treatise
  12. Recollection record
  13. Catch All
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4
Q

What are the 5 kinds unavailable exceptions

A
  1. Former testimony
  2. Dying declaration
  3. Against interest
  4. Personal history
  5. Opponent caused the absence
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5
Q

what 3 questions should we kick off hearsay analysis with

A
  1. who is the declarant
  2. what is the statement
  3. why is it offered
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6
Q

Requirements for PSI

A
  1. declarant perceived event
  2. declarant made statement at time or immediately after
  3. statement described event
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7
Q

Requirements for excited utterance

A
  1. exciting event
  2. due to event declarant was excited while making statement
  3. statement related to event that excited
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8
Q

requirements for then-existing mental/bodily condition

A
  1. statement can be used to show mental or physical condition at time of statement
  2. in wills cases: ok to show memory or belief
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9
Q

can then-existing mental/bodily condition statements be offered for truth

A

no– only to show the mental / physical state of declarant

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10
Q

what should you do if offering evidence for declarant’s state of mind

A

claim hearsay exception of then-existing mental condition (direct evidence) AND that it’s being offered for non TOMA purposes (circumstantial evidence)

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11
Q

can then-existing state of mind statement be offered to show that declarant intended to do something (and then did)

A

Yes, corroborating evidence is better. Unclear if this works to show later conduct by others

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12
Q

requirements for Medical Rx or Tx

A
  1. statement must concern symptoms, their history, cause, etc
  2. statement must be made for medical purpose
  3. statement must be made to medical personnel
  4. statement must be made by patient or patient’s team
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13
Q

can blame-placing statements be admitted via the rx tx exception

A

no, unless sex abuse

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14
Q

requirements for past recollection recorded

A
  1. witness must have no memory
  2. prior statement must correct reflect memory of witnesses
  3. prior statement must have been made/adopted by witness
  4. prior statement must have been made when memory was fresh
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15
Q

can past recollection recorded evidence be admitted

A

not by proponent – only read to jury. opponent can

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16
Q

requirement for biz record

A
  1. record was made by a qualifying business and
    - info must be from source with knowledge who acted under biz duty
    - record made at or near time of event
    - record made in regular biz practice
    - record kept in ordinary course of biz
    - court trusts document
17
Q

when might a court distrust a biz record

A
  • source has motive to lie
  • record was prepared in anticipation of litigation
18
Q

requirements for absence of biz record

A

can admit evidence that a matter is not in a record if
- evidence is admitted to prove matter doesn’t exist

19
Q

requirements for public records

A
  1. record of agency activities, matters observed in course of duty, investigations
  2. must consider trustworthiness
20
Q

can police reports be admitted in criminal cases

A

no

21
Q

can findings of investigations by government agencies or outside sources be admitted under public records exception

A

yes, in civil and in criminal if against government

22
Q

what are the requirements for a learned treatise

A
  1. must be authoritative
  2. must be linked to expert testimony
  3. must be read into evidence
23
Q

what are the requirements for unavailable declarant

A
  1. declarant must be unavailable
  2. find applicable hearsay exception
24
Q

when is a declarant unavailable

A
  • invoked privilege
  • refuses to testify
  • lacks memory
  • sick or dead
  • unavoidably absent

must have tried to serve subpoena/ depose

25
Q

what are the different exceptions under unavailable declarant

A
  1. former testimony
  2. dying declaration
  3. against interest
  4. about personal history
  5. opponent wrongfully caused absence
26
Q

requirements for catch all exception

A
  1. statement offered to prove material fact
  2. statement must be more probative than any alternative evidence
  3. admission of statement serves interest of justice

must have given notice

Evidence (8 decks)

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