Hearsay Flashcards
What is hearsay
- Out of court
- Statement
- By qualifying declarant
- Offered for TOMA
- Outside of 801(d)
What are the 801(d) exceptions
Declarant-witness’s prior statement
- inconsistent
- consistent
- identification
APO
- Individual
- Adoption
- By person authorized to make statement
- By agent
- By co-conspirator
What are the hearsay exceptions
- Statement against interest
- Former testimony
- Dying declaration
- Statement about personal history/ unclean hands
- Excited Utterance
- State of mind/body
- Biz/ absence
- Present sense impression
- Medical
- Public record
- Learned treatise
- Recollection record
- Catch All
What are the 5 kinds unavailable exceptions
- Former testimony
- Dying declaration
- Against interest
- Personal history
- Opponent caused the absence
what 3 questions should we kick off hearsay analysis with
- who is the declarant
- what is the statement
- why is it offered
Requirements for PSI
- declarant perceived event
- declarant made statement at time or immediately after
- statement described event
Requirements for excited utterance
- exciting event
- due to event declarant was excited while making statement
- statement related to event that excited
requirements for then-existing mental/bodily condition
- statement can be used to show mental or physical condition at time of statement
- in wills cases: ok to show memory or belief
can then-existing mental/bodily condition statements be offered for truth
no– only to show the mental / physical state of declarant
what should you do if offering evidence for declarant’s state of mind
claim hearsay exception of then-existing mental condition (direct evidence) AND that it’s being offered for non TOMA purposes (circumstantial evidence)
can then-existing state of mind statement be offered to show that declarant intended to do something (and then did)
Yes, corroborating evidence is better. Unclear if this works to show later conduct by others
requirements for Medical Rx or Tx
- statement must concern symptoms, their history, cause, etc
- statement must be made for medical purpose
- statement must be made to medical personnel
- statement must be made by patient or patient’s team
can blame-placing statements be admitted via the rx tx exception
no, unless sex abuse
requirements for past recollection recorded
- witness must have no memory
- prior statement must correct reflect memory of witnesses
- prior statement must have been made/adopted by witness
- prior statement must have been made when memory was fresh
can past recollection recorded evidence be admitted
not by proponent – only read to jury. opponent can
requirement for biz record
- 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
when might a court distrust a biz record
- source has motive to lie
- record was prepared in anticipation of litigation
requirements for absence of biz record
can admit evidence that a matter is not in a record if
- evidence is admitted to prove matter doesn’t exist
requirements for public records
- record of agency activities, matters observed in course of duty, investigations
- must consider trustworthiness
can police reports be admitted in criminal cases
no
can findings of investigations by government agencies or outside sources be admitted under public records exception
yes, in civil and in criminal if against government
what are the requirements for a learned treatise
- must be authoritative
- must be linked to expert testimony
- must be read into evidence
what are the requirements for unavailable declarant
- declarant must be unavailable
- find applicable hearsay exception
when is a declarant unavailable
- invoked privilege
- refuses to testify
- lacks memory
- sick or dead
- unavoidably absent
must have tried to serve subpoena/ depose
what are the different exceptions under unavailable declarant
- former testimony
- dying declaration
- against interest
- about personal history
- opponent wrongfully caused absence
requirements for catch all exception
- statement offered to prove material fact
- statement must be more probative than any alternative evidence
- admission of statement serves interest of justice
must have given notice
