Hearsay Flashcards
What is hearsay
Hearsay is a statement by a human declarant, other than one made while testifying at trial, offered to prove the truth of the matter asserted
Can statements be made by non-humans?
No
What are types of statements?
- Intentional oral or written assetsion
- Intentionally asservice conduct
What is assertive conduct
Conduct intended to communicate as a substitute for words, including pointing fingers to give directions, shaking one’s head yes or no, sketch by a police artist
What is non-assertive conduct
Conduct not intended as a statement and not intended to communicate, including videotapes showing witnesses doing things, documenting their demeanor, etc.
Is non-assertive conduct hearsay?
No
What types of statements are non-hearsay based on not being offered for their truth?
- statements of capacity
- effect on the listening (e.g. motive, intent, actions)
- legally operative facts
- verbal acts
- impeachment
- state of mind
What are hearsay exemptions
- Statement by a party opponent
- Prior inconsistent statement
- Prior Consistent Statement
- Statement of Prior Identification
What types of statements may be deemed statements by a party opponent
- statements by a named party
- Adoptive admissions
- Authorized admissions
- Employee admissions
- Co-conspirator’s statements
What are statements by a named party
A statement of a party offered against them by their opponent - must have been said by the declarant and is being used against the declarant
What type of statement by a named party opponent qualifies as non-hearsay?
Statements of fact or opinion
Do statements by named party opponents have to be against that party’s interest?
No
Is personal knowledge required by named party opponent regarding their statement for it to be non-hearsay?
No, personal knowledge is not required so long as the statement is said by the declarant and used against the declarant
What is required for a statement to be an adoptive admission by a party opponent.
There must be sufficient evidence to show that the party heard and understood the statement and adopted it as their own
What is an authorized admission by a party opponent
A statement by a party’s agent (express or implied) or representative
How can an admission be adopted by a party opponent?
The statement can be adopted by words, conduct or silence
What is an employee admission
A statement of a party’s employee offered against the party
What is required for an employee admission to be considered non-hearsay?
The statement must
1. be made during the existence of the employment relationship
2. concern a matter within the scope of employment
When are co-conspirator’s statements non-hearsay?
Statements of co-conspirators, whether or not a conspiracy is character, can be used against all other co-conspirators
What are requirements for a declarant’s statement to be considered a co-conspirator statement?
- declarant was a member of the conspiracy
2 the statement was made in furtherance of the conspiracy - the statement was made during the existence of the conspiracy
What is required for all types of prior statements to be admissible as non-hearsay?
- the declarant must testify at the trial or hearing
- the declarant must be subject to cross-examination concerning the prior statement
- the statements must be either prior inconsistent statement offered for its truth, prior consistent statement or a statement of prior identification
When is a prior inconsistent statement non-hearsay
A prior inconsistent statement is permitted to be offered for its truth if it is “sworn” subject to the penalty of perjury under oath at a trial, deposition or other proceeding
When is a prior consistent statement admissible as non-hearsay?
Once a witness has been impeached, a prior consistent statement is a hearsay exemption and is admissible as substantive evidence
When is a statement of prior identification admissible?
An out-of-court statement of identification by a declarant after perceiving the identified person is admissible as substantive evidence
What are hearsay exceptions that don’t require the declarant to be unavailable?
- Present sense impression
- Excited Utterance
- then-existing mental, physical, or emotional condition
- statement for purposes of medical diagnosis or treatment
- past recollection recorded
- records of regularly conducted activity (business records exception)
- public records and reports
- statements in ancient documents
- learned treatises
What is present sense impression hearsay exception?
A statement describing or explaining an event or condition made while or immediately after perceiving it.
What are requirements for present sense impression hearsay exemption?
- spontaneity (said at the same time an event was occurring regarding that current event)
- declarant need not be known or available
- an excited utterance
- may be oral or in writing
What is excited utterance hearsay exception?
A statement relating to a startling event made while the declarant was under the stress of excitement cuased by the event or condition
What are the requirements for excited utterance exception
- a startling event
- personal knowledge required
- statement made while declarant was still stressed by the event, though does not need to be as immediately as present sense impression
What is then-existing mental, physical or emotional condition requirement
A statement of the declarant’s then-existing physical, emotional or mental condition is admissible if relevant to show declarant’s state of mind, and will frequently involve prospective statements of intent
Does statement regarding then-existing physical, mental or emotional condition need to be made to a medical professional.
No
What are not considered statements of then-existing mental physical or emotional conditions for purposes of hearsay exception?
- past sensations
- statements of general memory or belief
What are statements for purposes of medical diagnosis or treatment exception?
Statements made for purposes of medical diagnosis or treatment, describing medical history or past or present symptoms, pain or sensations, or the cause of them may be excluded from hearsay
To whom can statements for purposes of medical diagnosis or treatment be made?
Statements can be made to any medical personnel or family member
Must statements be useful for diagnosis and treatment to qualify for medial diagnosis or treatment exception
Yes
What types of statements are excluded from the statements for purposes of medical diagnosis or treatment exception?
Statements admitting or asserting fault are not included in exception.
When is past recollection recorded exception applicable?
Past recollection recorded exception is used where the witness lacks current memory of the event and attorney has attempted and failed to refresh the witness by a leading question or writing
What are requirements for past recollection recorded
- writing or record regarding recollection is read into evidence
2.memo regarding recollection must have been made “while the matter was fresh” in the witnesses mind - authentication through witness testimony that the writing accurately reflects the witness’s prior knowledge and that the witness made or adopted the statement
Is writing containing a recorded past recollection admitted as evidence?
The writing containing record is not received as exhibit unless offered by the adverse party
What are rights of adverse party regarding writing recording a past recollection
- inspect the writing
- cross-examine with the writing
- show the writing to the jury for comparison
- introduce relevant portions of the writing into evidence
What is records of regularly conducted activity / business records exception?
A record or report of acts or events made at or near the time by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business to make such a record or report may be admitted
When are public records or reports exceptions to hearsay?
A record or statement of a public office is admissible if it sets out a matter personally observed whic hthe person is under a legal duty to investigate and report
Is a law enforcement report included within public records or reports exception?
No, the report of law enforcement is not admissible under this exception in a criminal case against the accused based on confrontation clause problems
What is statements in ancient documents exception?
Statements in documents are admissible if found in a place where such items are typically found, including archives and libraries
What is required for ancient documents exception?
- statement is in document that existed before January 1998
- Authenticity of document is established
What are requirements for learned treatise exception?
- Foundational authoritativeness regarding treatise is established by judicial notice, expert testimony or stipulation
- treatise falls within areas of medicine, art, science or history
- treatise is read to jury
Is treatise given to jury if used in learned treatise exception?
No, the treatise isn’t physically given the the jury, it is only read.
Under what circumstances will a declarant be deemed unavailable
Burden to prove unavailability is on the proponent of the testimony and may be based on:
1. Assertion of privilege
2. Refusal to testify despite a court order
3. Incapacity due to death or then-existing physical or mental illness
4. Absence of a witness despite good-faith attempt to procure the witness’s attendance through subpoena
5. Witness testifies as to lack of memory
Which hearsay exceptions require the declarant be unavailable?
- Former testimony
- Statement made in belief of impending death (dying declaration)
- Statements against interest
When may former testimony be admitted for its truth?
- declarant made the statement under oath
- testimony was given by a witness in the same or a different but related proceeding or in a disposition
- former action involved the same subject matter (though not necessarily the same cause of action or P)
- the party against whom the evidence is being offered must have had an opportunity and similar motive to examine the witness and develop the testimony on direct, cross-examination, or re-direct
What are requirements for Dying Declaration exception?
- statement must be made about the cause of death
- declarant must be unavailable
- declarant must have had a genuine belief in their impending death
When is a dying declaration admissible?
-any civil case
-criminal case where the charge is homicide
What is standard regarding declarant’s belief of their death in a dying declaration hearsay exception?
Judge will determine whether the declarant subjectively beleived their death was imminent
Does the declarant actually need to have died for a dying declaration exception to be appropriate
Declarant does not need to have died from the incident, but the declarant must be unavailable to testify
What are requirements for statement against interest exception
- personal knowledge
- unavailable witness
- speaker is generally a non-party
- statement was against the party’s pecuniary, propriety or penal interest at the time the statement was made
What is the Confrontation Clause
In a criminal case where the declanrant is unavialable, testimonial hearsay statements will be inadmissible unless D is given an opportunity to cross-examine the declarant
What is testimonial hearsay
Testimonial hearsay is a hearsay statement about a past event that the declarant reasonably expected would be used in a subsequent prosecution, typically made to police or government employees or in formal settings like courtrooms or depositions
Exceptions to Confrontation Clause
Testimonial hearsay is admissible even if declarant is not unavailable or D didn’t have a chance to cross-examine the declarant in the following circustances:
1. dying declarations
2. child witness testifying via close circuit
3. statement is to aid police during an ongoing emergency
4. chemical analysis report with “notice and demand” statute
5. forfeiture by wrongdoing in cases where D caused the unavailability to prevent the declarant from testifying
What is “hearsay within hearsay”
Each statement must have a separate basis for admissibility otherwise the entire statement is inadmissible
What is an out-of-court statement?
A statement that declarant doesn’t make while testifying at the current trial or hearing
What are verbal acts?
Words that have independent legal probative value apart from their truth, such as explanatory words that accompany ambiguous physical actions ,are admissible as non-hearsay
What is state of mind hearsay exception?
Statements offered to prove a relevant attitude, belief or intent to either declarant or listener are admissible as non-hearsay
When are statements non-hearsay for impeachment purposes?
Statements of witness offered merely to challenge credibility or show perjury and are irrespective of their truth are admissible as non-hearsay
