Hearsay Flashcards
Hearsay
An
1. Out of court
2. statement
3. offered to prove the truth of the matter asserted.
Note: Hearsay is not admissible unless it meets certain requirements/exceptions
Dangers of Hearsay
The use of hearsay testimony presents four main dangers: (1) ambiguity, (2) insincerity, (3) incorrect memory, and (4) inaccurate perception.
Hearsay Within Hearsay
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.
Refreshing Recollection
If a witness has difficulty remember a fact or prior statement, the witness may refresh his memory.
Recollection may be refreshed by any type of evidence, such as a writing, audio recording, or a tangible item.
At attorney must show that: (1) the witness once knew, but is now unable to recall the fact or event, and (2) an item will help the witness recall the fact or event.
- Generally, neither a writing not a tangible thing used to refresh recollection is admitted into evidence.
Non-Hearsay Exemptions
- Declarant’s State of Mind
- Effect on Hearer or Reader
- Declarant-Witness’s Prior Statements
- Statement by a Party Opponent
Declarant’s State of Mind (Non-Hearsay Exemption)
A statement offered to show the declarant’s state of mind (including knowledge and intent) is non-hearsay.
Includes statements about the declarant’s intent to do something in the future (when offered to show that the intent existed, and also when offered to show that the declarant later acted in accordance with that intent).
Ex. D is charged with statutory rape, in a jx where a reasonable mistake as to the victim’s age is a defense. Victim’s testimony, “Before we had sex, D told me, ‘I know you’re only 15.’ Offered to prove D knew victim was 15, is nonhearsay.
Effect on Hearer or Reader (Non-Hearsay Exemption)
A statement offered to show that the listener knew or didn’t know something (not offered to show the truth of the thing known or not known) is not hearsay.
Ex. D is being charged with a crime that requires that she knew fact A. Testimony that X told D “A”, offered to show that D knew A, is not hearsay.
Declarant-Witness’s Prior Statements (Non-Hearsay Exemption)
The declarant testifies and is subject to cross-x about a prior statement, and that statement:
a. Prior Inconsistent Statement: is (1) inconsistent with the declarant’s present testimony, and (2) was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.
b. Prior Consistent Statement: is (1) consistent with the declarant’s present testimony, and (2) is offered:
i. To rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
ii. To rehabilitate the declarant’s credibility as a witness when attacked on another ground.
c. Prior Statement of Identification: identifies a person as someone the declarant perceived earlier. (i.e., you are allowed to bring up past statements used by the witness to ID the Δ).
Statement by a Party Opponent (Non-Hearsay Exemption)
The statement is offered against the opposing party, and
a. Express Admission: was made by the party in an individual or representative capacity;
- this is when the party expressly said they did it.
b. Adoptive or Implied Admission: is one the party manifested that it adopted or believed to be true;
- Agreement, adoption, or silence. When they nod or silent agreement to having done it. They did not object to the idea that they did it.
c. Authorized Admission: was made by a person whom the party authorized to make a statement on the subject;
- the attorney said that they had done it.
d. Agent’s Admission: was made by the party’s agent or employee on a matter within the scope of that relationship while it existed; or
- Someone in an agent capacity who admits that they did something.
e. Co-conspirator Admission: was made by the party’s coconspirator during and in furtherance of the conspiracy.
- The coconspirator said that they had done something to further the conspiracy.
Hearsay Exceptions
- Present Sense Impression
- Excited Utterance
- Then-Existing Mental, Emotional, or Physical Condition
- Statement made for Medical Diagnosis or Treatment
- Past Recollection Recorded
- Business Records
- Absence of a Record Regularly Conducted Activity
- Public Records
- Public Records of Vital Statistics
- Absence of a Public Record
Present Sense Impression (Hearsay Exception)
A statement (1) describing or explaining an event or condition, (2) made while or immediately after the declarant perceived it, is admissible as a present sense impression.
- “Play-by-play”—something happens and immediately after, declarant says something; declarant has had no time to fabricate their claim.
Excited Utterance (Hearsay Exception)
A statement (1) relating to a startling event or condition, (2) made while the declarant was under the stress of excitement that it caused.
- Something startling has happened; the declarant is speaking after the event but are still under the stress of the situation.
Then-Existing Mental, Emotional or Physical Condition (Hearsay Exception)
A statement of (1) the declarant’s then-existing state of mind (such as motive, intent, or plan), or (2) emotional, sensory, or physical condition (such as mental feeling, pain or bodily health), but (3) NOT including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
- The declarant said that they were distraught when X happened. Ex. Debbie says, “I’m going to poison him”. They are describing their physical or mental condition when X happened. Ex. Debbie says, “I hate you.” to her bf. However, if you bring up a memory to prove that that was how an event happened, it is inadmissible.
Statement Made for Medical Diagnosis or Treatment (Hearsay Exception)
A statement that
(1) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and
(2) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
- Can be made to anybody (doesn’t have to be a medical professional) to get medical help.
Past Recollection Recorded (Hearsay Exception)
A written record of an event, made shortly after the event, if: (1) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (2) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (3) accurately reflects the witness’s knowledge.
- If you bring in a previous record (deposition, testimony from other proceeding, etc.) of witness saying they knew about something, in order to remind them of what they said bc they not say they forgot.
- If admitted, the record may be read into evidence but may be perceived as an exhibit only if offered by an adverse party.
-> Ask yourself…is the record itself being used to prove something? If so, then it must fall under this exception to be admissible.
