Hearsay Flashcards
Definition of hearsay
An out-of-court statement made by a declarant that is offered to prove the truth of the matter asserted.
Is hearsay admissible?
No, unless exception applies
What are common purposes other than “for the truth of the matter asserted”
- Effect on the listener
- Verbal acts or legally operative facts
- Circumstantial evidence of declarant’s state of mind
When is a prior statement by a testifying W who is subject to cross-examination NOT HEARSAY?
- Prior statement is one of identification as someone the W perceived earlier
- Prior statement is inconsistent with the declarant’s in-court testimony and was given under oath
- Prior statement is consistent with declarant’s in-court testimony and is offered to show W is lying or rehab W on some ground other than truthfulness
Is an opposing party’s statement hearsay?
No - admissible
Can an opposing party adopt a statement?
Yes - admissible if they adopt another party’s statement
Can an opposing party’s silence be considered an adoption of that statement?
Yes, could be implied acquiescence IF:
- The party heard and understood the statement
- The party was capable of denying the statement
- A reasonable person would have denied the accusation
Is a co-party’s statement admissible against the party?
No
Is an authorized representative’s statement admissible as a vicarious statement?
Yes
Is an agent or employee’s statement admissible as a vicarious statement against the party?
Yes, if it (1) concerned any matter within the scope of their agency or employment, and (2) was made during the existence of the agency or employment relationship
Is a partner’s statement binding on co-partners?
Yes
Is a co-conspirator’s statement admissible against the party?
Yes, when made in furtherance of a conspiracy to commit a crime or civil wrong; court must determine the existence of a conspiracy and party’s participation in it
What are the 5 hearsay exceptions?
- Former testimony of a W
- Statements against interest
- Dying declarations
- Statements of personal or family history
- Statements of W against a party who procured the W’s unavailability
Does the declarant have to be unavailable for the 5 hearsay exceptions?
Yes
When is a declarant unavailable?
PRISM
P: Privilege
R: Refusal
I: Incapacity (death, mental illness)
S: Subpoena (failure to appear)
M: Memory (lack of memory)
When can former testimony of a W be admissible?
- W is unavailable
- W’s testimony was under oath
- The party the testimony is offered against had an opportunity or similar motive to develop the testimony
When can statements against interest be admissible against a D?
- W is unavailable
- The statement was against the declarant’s pecuniary, proprietary, or penal interest when made
When can a dying declaration be admissible against a D?
- Declarant is unavailable
- Homicide or any civil case
- Declarant believed death was imminent
- Statement concerned the cause or circumstances of their impending death
When can a statement of personal or family history be admissible?
- Declarant is unavailable
- Declarant is member of the family or intimately associated with it
- Based on personal knowledge or knowledge of family reputation
When can a statement be offered against a party that procured the unavailability of the declarant?
Only if the party’s motivation was to prevent the declarant from testifying (not for a different reason)
What is an excited utterance?
An out of court statement relating to a startling event, made while under the stress of excitement from the event
Does a declarant need to be unavailable for an excited utterance?
No
What is a present sense impression?
A statement that describes or explains an event or condition and is made while or immediately after the declarant perceives the event or condition
Does the declarant need to be unavailable for a present sense impression to be admissible?
No
What is present state of mind?
A statement of declarant’s then state of mind or their emotional, sensory, or physical condition is admissible - includes statements about intent or o do something and their physical condition
When is a statement made for purposes of medical diagnosis or treatment admissible?
When it describes a persons medical history, past, or present symptoms or cause if it was made for medical diagnosis or treatment
When are records of a regularly conducted activity admissible?
Admissible as evidence of the proof of that occurrence if the entry was made in the regular course of business and the business regularly kept such records (author had a duty to make such records), the entry was made near the time of the event, based on personal knowledge of the author
What foundation is required for a business record to be admissible?
Authenticity must be established by a sponsoring W (custodian of the records or knowledgeable person in the business). The custodian can (1) testify about the record or (2) certify
Can business records be excluded if they are untrustworthy?
Yes
What records from a public office or agency are admissible as a hearsay exception?
- Records setting forth the activities of the office or agency
- Records created pursuant to law (but not police observations in criminal cases)
- Records of findings from government investigations when offered against the government
How can police records be admitted?
Under the public records exception to hearsay. But public records are generally not admissible against the D in a criminal case.
Can a judgment be admissible?
As proof that the judgment has been entered. But to prove facts in the present case? Felony is admissible to prove any fact essential to the judgment (ex, criminal battery judgment can come in in a later civil lawsuit)
Can a civil judgment be admissible against a D in a later criminal case?
No, because of the different standards of proof.
Can ancient documents be admissible as a hearsay exception?
Yes, if they were authenticated and prepared before January 1, 1998
Is a deed or will admissible as a hearsay exception?
Yes under the documents affecting property interests exception
What is the hearsay catch-all exception?
Hearsay statement not covered by specific exception if:
- sufficient guarantees of trustworthiness
- statement is necessary
- proponent gives reasonable notice
When does the Confrontation Clause keep a hearsay statement out?
When:
- the statement is offered against the D in a criminal case
- the declarant is unavailable
- the statement was testimonial in nature
- the accused had no opportunity to cross-examine the declarant prior to trial
What is a statement that is testimonial in nature?
Includes sworn testimony, statements to law enforcement (but aiding in ongoing emergency is not testimonial), certain documents (forensic reports that point to D are testimonial)
