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Evidence Midterm > Hearsay > Flashcards

Hearsay Flashcards

1
Q

Hearsay - Elements

A

Hearsay is:
1. statement
2. Declarant makes it
3. NOT made while testifying at the current trial or hearing (OOCS)
4. offered to prove the truth of the matter asserted in the statement (TOMA).

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2
Q

Statement (Hearsay Definition)

A

a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

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3
Q

Non-Hearsay Definition

A

When out of court statement by a human declarant is NOT offered for its truth

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4
Q

6 Types of Non-Hearsay

A
  1. Capacity
  2. Effect on listener
  3. Legally Operative Facts
  4. Verbal Acts
  5. Impeachment
  6. State of Mind
    (I C ELVIS)
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5
Q

Capacity (Non-Hearsay)

A

OOCS offered to show Declarant’s capacity to speak, hear, understand, see, hear, smell, physically feel, etc.

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6
Q

Effect on Listener (Non-Hearsay)

A

OOCS offered to show what listener/hearer (NOT speaker/declarant) heard, saw, knew, thought, etc.

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7
Q

Legally Operative Facts (Non-Hearsay)

A

OOCS offered because merely speaking the words had some legal significance or consequence

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8
Q

Verbal Acts (Non-Hearsay)

A

Statements accompanying ambiguous conduct offered to show their meaning/intent

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9
Q

Impeachment (Non-Hearsay)

A

OOCS offered to show W should not be believed

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10
Q

State of Mind (Non-Hearsay)

A

Statement offered as circumstantial evidence of declarant’s SOM – what speaker was thinking, feeling – NOT for TOMA, but for something else.

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11
Q

Hearsay Exemptions

A
  1. Prior Witness Statements
  2. Opposing Party Statements
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12
Q

Opposing Party Statements (Exemptions)

A
  1. Named Party Statement
  2. Adopted Statement
  3. Authorized Statement
  4. Agent/Employee Statement
  5. Co-Conspirator’s Statement
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13
Q

Prior Witness Statements (Exemptions)

A
  1. PINS (Prior Inconsistent Statement)
  2. PCS (Prior Consistent Statement)
  3. PIDS (Prior Identification Statement)
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14
Q

Named Party Statement

A

(1) Statement offered against an opposing party
(2) Made by a party (named in case caption)
(3) individual or representative capacity

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15
Q

Adopted Statement

A

(A) Statement (NOT by named party) offered against an opposing party
(B) The party manifested that it adopted / believed it

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16
Q

Authorized Statement

A

(A) Statement (not by named party) offered against an opposing party
(B) Speaker was authorized by named party
(C) express or implied authority
(D) To make a statement on the subject

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17
Q

Agent/Employee Statement

A

(A) Statement (not by named party) offered against an opposing party
(B) Speaker was agent or employee of named party
(C) W/in scope of employment
(D) During employment

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18
Q

Co-Conspirator Statement

A

(A) Statement (not by named party) offered against an opposing party
(B) Speaker was coconspirator of named party
(C) Speaking during conspiracy – while existed
(D) Speaking in furtherance of the conspiracy

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19
Q

PINS (Prior Inconsistent Statement)

A

1) Declarant testifies, subject to CX about OOCS
2) inconsistent with Declarant’s testimony
3) under oath
4) at a trial, hearing, or other proceeding or in a deposition

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20
Q

PCS (Prior Consistent Statement)

A

1) Declarant testifies, subject to CX about OOCS
2) Statement is consistent w/ Declarant’s prior testimony (typically, DX testimony)
3) PCS is offered either to rehabilitate:
a) to rebut charge of recent fabrication / improper bias, OR
b) after impeachment on other grounds

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21
Q

PIDS (Prior Identification Statement)

A

1) Declarant testifies, subject to CX about OOCS
2) identifies a person
3) Declarant perceived earlier

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22
Q

Hearsay Exceptions (Regardless of Declarant Availability)

A
  1. Observational Exceptions
  2. Document Exceptions
  3. Reputation Exceptions
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23
Q

Observational Exceptions (4)

A
  1. Present Sense Impression
  2. Excited Utterance
  3. Then Existing Mental, Emotional, or Physical Condition
  4. Statement Made for Medical Diagnosis or Treatment
    (ALL SUBSTANTIVE EVIDENCE)
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24
Q

Document Exceptions (16)

A
  1. Recorded Recollection
  2. Records of Regularly Conducted Activity
  3. Absence of Record of Regularly Conducted Activity
  4. Public Records
  5. Public Records of Vital Statistics
  6. Absence of Public Record
  7. Records of Religious Organizations Concerning Personal or Family History
  8. Certificates of Marriage, Baptism, and Similar Ceremonies
  9. Family Records
  10. Records of Documents That Affect an Interest in Property
  11. Statements in Documents That Affect an Interest in Property
  12. Statements in Ancient Documents
  13. Market Reports and Similar Publications
  14. Statements in Learned Treatises, Periodicals, or Pamphlets
  15. Judgment of a Previous Conviction
  16. Judgments Involving Personal, Family, or General History, or a Boundary
25
Q

Reputation Exceptions

A
  1. Reputation Concerning Personal or Family History
  2. Reputation Concerning Boundaries or General History
  3. Reputation Concerning Character
26
Q

Hearsay Exceptions (Declarant Unavailability Required)

A
  1. Former Testimony
  2. Statement Against Interest
  3. Family History
  4. Dying Declarations
  5. Forfeiture by Wrongdoing
    (Former Statements From Dying Wrongdoers)
27
Q

Criteria for Being Unavailable

A
  1. Privilege – validly asserted
  2. Exhaustion of memory
  3. Refusal to testify – despite court order to answer
  4. Inability to procure attendance – despite good faith, reasonable effort to procure
  5. Sick – mentally or physically
  6. History, as in Witness is history – as in dead!
    (To be unavailable, W must PERISH)
28
Q

Present Sense Impression

A
  1. statement
  2. describing or explaining
  3. an event or condition – typically, something outside the body
  4. made while or immediately after the declarant perceived it – contemporaneously
29
Q

Excited Utterance

A
  1. statement
  2. relating to a startling event or condition
  3. NOT an unrelated excited statement
  4. made while still excited
  5. the event / condition caused the excitement – causation
30
Q

Then Existing Mental, Emotional, or Physical Condition

A
  1. Statement
  2. declarant’s then-existing – at the moment, present tense
  3. state of mind (motive, intent, plan), or
  4. emotional, sensory, or physical condition (mental feeling, pain, or bodily health)

The statement MUST be offered to show, either:
1) Present feeling – thinking, feeling, pain, sensation, bodily health, etc. at the moment; or
2) Forward Looking - intent, plan, motive, design
(allows party to offer own statements, BUT not backward looking statements)

31
Q

Statement Made for Medical Diagnosis or Treatment

A
  1. Statement
  2. made for medical diagnosis or treatment
  3. to medical personnel or family member or another
  4. reasonably pertinent to thereto (“pathologically germane”) and
  5. describes medical history; past or present symptoms or sensations; their inception; or their general cause
32
Q

Recorded Recollection

A
  1. record (document)
  2. matter W once knew about
  3. W cannot now recall sufficiently
  4. statement was made or adopted by W
  5. statement made when matter was fresh in mind
  6. statement accurately reflected W’s knowledge
    (The writing is read into evidence ONLY; Writing NOT admitted as an exhibit unless opponent offers it)
33
Q

Records of Regularly Conducted Activity

A
  1. record (document)
  2. business-related event
  3. contemporaneously made
  4. by - or from info from - someone w/ personal knowledge
  5. kept in the course of regularly conducted business activity
  6. business, organization, occupation, or calling
  7. making the record was a regular practice of that activity
  8. properly authenticated
  9. no indicia of untrustworthiness
34
Q

Public Records

A
  1. record or statement (document)
  2. of a public office
  3. If:
    (i) office activities, OR
    (ii) matter observed w/ legal duty to report, (BUT not including a in criminal case matter observed by law-enforcement;) OR
    (iii) civil case, or against government in a criminal case, factual findings from a legally authorized investigation;
  4. AND, no indicia of untrustworthiness
35
Q

Public Records of Vital Statistics

A
  1. record
  2. of a birth, death, or marriage,
  3. if reported to a public office
  4. in accordance with a legal duty
36
Q

Records of Religious Organizations Concerning Personal or Family History

A
  1. A statement of:
    (i) birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or
    (ii) similar facts of personal or family history,
  2. contained in a regularly kept record of a religious organization.
37
Q

Certificates of Marriage, Baptism, and Similar Ceremonies

A
  1. A statement of fact contained in a certificate:
  2. made by a person who is authorized by a religious organization or by law to perform the act certified;
  3. attesting that the person performed a marriage or similar ceremony or administered a sacrament; and
  4. purporting to have been issued at the time of the act or within a reasonable time after it.
38
Q

Family Records

A

A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker

39
Q

Records of Documents that Affect an Interest in Property

A

The record of a document that purports to establish or affect an interest in property if:
(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in that office.

40
Q

Statements in Documents that Affect an Interest in Property

A

A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose — unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.

41
Q

Statements in Ancient Documents

A

A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

42
Q

Market Reports and Publications

A

Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

43
Q

Statements in Learned Treatises, Periodicals, or Pamphlets

A

A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
(If admitted, the statement may be read into evidence but not received as an exhibit.)

44
Q

Judgement of a Previous Conviction

A

Evidence of a final judgment of conviction if:
(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;
(C) the evidence is admitted to prove any fact essential to the judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.
(The pendency of an appeal may be shown but does not affect admissibility)

45
Q

Judgements Involving Personal, Family, or General History, or a Boundary

A

A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.

46
Q

Absence of…Business Records, Vital Statistics, Public Records

A
  1. Evidence offered (document or testimony)
  2. Absence of
    (3.Business record 803(6)or Public Record 803(8) or Vital Statistics record 803(9)
  3. If offered to prove:
    (i) matter/record did not occur/exist or does not exist
    record of kind was regularly kept, and
    ii) no indicia of untrustworthiness (diligent search done for public record)
47
Q

Reputation Concerning Personal or Family History

A

A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

48
Q

Reputation Concerning Boundaries or General History

A

A reputation in a community — arising before the controversy — concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

49
Q

Reputation Concerning Character

A

A reputation among a person’s associates or in the community concerning the person’s character.

50
Q

Former Testimony

A
  1. Declarant is unavailable
  2. Testimony (had given prior testimony)
  3. Given as a witness at a court type proceeding (current or different)
  4. Offered against a party (In a civil case, whose “predecessor in interest”, In a criminal case, must be the same parties)
  5. Had an opportunity to develop the testimony and
  6. Had a similar motive to develop the testimony
51
Q

Statement Against Interest

A
  1. Unavailable Declarant
  2. Declarant made OOCS
  3. would not have said unless believed it was true
  4. when made
  5. contrary to Declarant’s proprietary, pecuniary or penal interest
    (“not made merely to minimize or curry favor”)
52
Q

Family History

A
  1. Statement of unavailable declarant (NOT record or reputation)
  2. Doesn’t require personal knowledge
  3. Same facts about another person if declarant was related or very close to person
53
Q

Dying Declarations

A
  1. Unavailable declarant
  2. Criminal homicide or in a civil case
  3. Declarant made an OOCS
  4. Believing death to be imminent (Subjective belief of declarant)
  5. Made about it’s cause or circumstances of declarant’s death
54
Q

Forfeiture by Wrongdoing

A
  1. Unavailable declarant
  2. Statement by declarant – NOT a party
  3. Offered against a party
  4. Opponent wrongfully causes declarant’s unavailability
  5. Intending that result to prevent testimony
55
Q

Crawford v. Washington

A

Testimonial hearsay statements are NOT admissible, UNLESS:
1. Declarant is unavailable, AND
2. D had an opportunity to cross examine declarant about statement
(ONLY USED IN CRIMINAL CASES)

56
Q

Testimonial Hearsay

A

primary purpose of interrogator or declarant that declarant’s statement would be used to establish facts for later prosecution (e.g., police interrogations, affidavits, prior testimony, formal Q&A)

57
Q

Hearsay within Hearsay

A

occurs when a statement contains another statement, and both are offered as evidence
(hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule)

58
Q

Steps to Answering a Hearsay Question

A
  1. WHAT is the Evidence (Is there a document or testimony that contains a statement made by anyone made other than while on the witness stand in this proceeding?) -If so, you MIGHT have a hearsay issue
  2. Find and put statement at issue in quotes
  3. Is it an intentionally assertive statement?
  4. Is it by a human declarant?
  5. When was it made – other than on stand in current case?
  6. Read the words of the statement – is their literal meaning and truth essential to the reason they are offered?

If NO to any one of 2 – 6, it’s NOT hearsay (no need for exemption or exception)

If YES, to all of 2 – 6, look for an exemption or exception

Evidence Midterm (5 decks)

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