Hearsay Flashcards
Definition
An out of court statement offered to prove the truth of the matter asserted.
Hearsay Exemptions (admissible as non hearsay)
- Prior ID statement by testifying witness
- Prior inconsistent statement by testifying witness, given under oath at prior proceeding
- Prior consistent statement offered to rehab a testifying witness
- Statements made or adopted by the opposing party
Hearsay Exceptions: Declarant Unavailable
- Former testimony given under oath (action must have been same subject matter and party against whom offered must have had a chance to develop the testimony)
- Statement was against money/property/criminal interest when made (declarant needs personal knowledge of the facts; must be corroborated in crim case)
- Dying declaration (imminent belief of death, statement concerned those circumstances) - homicide or civil ONLY
- Family history
- Party against whom offered intentionally made declarant unavailable
Hearsay Exceptions: Availability Irrelevant
- Excited utterance
- Present sense impression
- Present state of mind
- Medical diagnosis/treatment
- Biz record (or absence)
- Public records (or absence)
- Vital Stats
- Certified copy of judgment (except prior acquittals/civil judgments)
- Recorded Recollection
- Learned treatise
- Ancient docs (before 1998)
- Docs dealing with property
- Certain reputation evidence (character, fam history, boundaries, community history)
- Family records (Bibles, tombstones, etc.)
- Market reports (if generally used)
Non-Truth Purposes
- Show witness can’t be trusted (impeachment)
- Words of independent legal significance
- Show effect on listener
- Show insanity or knowledge
Adoption by Silence
Heard and understood
Capable of denying
Reasonable person would have denied
Vicarious Statements
Authorized spokesperson
Agents/employees
Partners
Co-conspirators if made in furtherance of conspiracy while participating in the conspiracy
Unavailability
Privilege
Refusal
Incapacity (death or physical/mental illness)
Subpoena failure
Memory failure
Excited Utterance
Related to startling event, made while under stress of event
Present Sense Impression
Related to an event, made while/immediately after perceiving
Present State of Mind
Related to then-existing state of mind/emotion/sensation. Can include motive/intent/plan or emotional/sensory/physical conditions.
Note present bodily condition: declaration of present physical symptoms.
Medical Diagnosis/Treatment
Made for that purpose and pertinent; can be about past or present physical conditions or their causes.
Biz Record
Made in regular course of business, near time of event, by one with personal knowledge and duty to make it
Public Record
Reports regarding activities of public agencies, or records. Made in scope of duty at/near time of event; no police reports or investigative reports in crim cases.
Recorded Recollection
Memory couldn’t be refreshed, personal knowledge, record made at/near time of event
-Read in only; no exhibit unless offered by adverse party
