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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

what is hearsay?

A

an out of court statement by a declarant offered to prove the truth of the matter asserted

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2
Q

when is hearsay within hearsay admissible?

A

only when both the outer hearsay and inner hearsay statements fall within an exception to the hearsay rule (each must be admissible on its own)

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3
Q

what is a “statement” for the purposes of hearsay? (2)

A

either a person’s…
1) oral or written assertion, or
2) nonverbal conduct intended as an assertion (ie–a nod of the head)

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4
Q

true or false: testimony about what a radar gun read or what a drug sniffing dog did IS a statement for hearsay purposes.

A

FALSE (no nonhuman statements)

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5
Q

what does “out of court” mean for hearsay purposes?

A

the statement was not made by the declarant at the CURRENT trial or hearing (ie–prior statements in court during another trial are hearsay)

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6
Q

what are some common non-truth purposes for offering a statement? (nonhearsay)

A
  • verbal acts or legally operative facts (ie–defamatory words or assent to K)
  • statements offered to show their effect on the listener or reader (ie– to show notice)
  • statements offered as CIRCUMSTANTIAL evidence of declarant’s state of mind (ie–party trying to prove insanity or knowledge)
    **NOTE = direct evidence of declarant’s state of mind IS hearsay (but is subject to an EXCEPTION)
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7
Q

what are exemptions/exclusions to the rule?

A

statements that MEET the basic definition of hearsay but have been specifically designated as NONHEARSAY under the federal rules
**NOTE = these are NOT exceptions, these are NONHEARSAY altogether

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8
Q

what are the 2 general categories of nonhearsay exclusions?

A

1) prior statements of a testifying witness who is subject to cross exam (that are made for a specific purpose – 3 options), and
2) statements by or attributable to an opposing party

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9
Q

true or false: witnesses can generally testify to their own hearsay.

A

FALSE

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10
Q

what are the three situations where a prior statement by a TESTIFYING witness who is subject to cross exam is NOT hearsay?

A

if the prior statement is…
1) one of identification of a person as someone who the witness perceived earlier (whether or not they remember),
2) inconsistent with the declarant’s in court testimony and was given under oath at a prior proceeding, or
3) a valid rehabilitation = consistent with the declarant’s in court testimony and is either (1) offered to rebut a charge that they’re lying due to motive or (2) offered to rehab a witness’s credibility attacked on other grounds

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11
Q

true or false: a statement must be against the declarant’s interest to be admitted as a statement of an opposing party.

A

FALSE (any statement of an opposing party is OK)

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12
Q

true or false: the declarant must have personal knowledge of the statement to have it admitted as an opposing party statement.

A

FALSE (no personal knowledge required)

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13
Q

true or false: an opposing party’s statement can only be admitted as nonhearsay if it’s being used against the party who made the statement.

A

TRUE (party can’t bring their own statement in)

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14
Q

true or false: a party’s formal judicial statements in pleadings, stipulations, etc are conclusive and CANNOT be contradicted during trial.

A

TRUE

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15
Q

true or false: a party’s informal judicial statements made during testimony and extrajudicial (out of court) statements are conclusive and CANNOT be explained/contradicted.

A

FALSE (they are NOT conclusive and can be explained)

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16
Q

true or false: a party’s formal judicial statement in one case can be admitted against them in another case as an extrajudicial statement.

A

TRUE

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17
Q

when may a statement be considered “adopted” for purposes of an opposing party’s statement?

A

where a party expressly or impliedly adopts or acquiesces in the statement of another, it may be admissible against them

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18
Q

when is silence considered an implied acquiescence? (3 requirements)

A

if a party remains silent in the face of an accusatory statement, their silence may be considered acquiescence if…
1) the party heard and understood the statement,
2) the party was physically and mentally capable of denying the statement, and
3) a reasonable person would have denied the accusation

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19
Q

true or false: silence in the face of accusations by police in a criminal case are almost never considered and admission of a crime (not usable as an opposing party statement).

A

TRUE

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20
Q

what are vicarious statements?

A

certains statements made by other persons that are admissible against a party because of the RELATIONSHIP between them

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21
Q

true or false: statements of co-parties are admissible against their other co-parties because of their relationship to each other.

A

FALSE (this is an insufficient relationship)

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22
Q

true or false: a statement by a person authorized by a party to speak on their behalf is admissible against the party.

A

TRUE

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23
Q

when is a statement by an agent or employee admissible against the principal? (2 requirements)

A

when the statement…
1) concerns any matter within the SCOPE of their agency/employment, and
2) was made DURING the existence of the agency/employment relationship
**NOTE = doesn’t have to happen ON the job so long as the relationship exists

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24
Q

what kinds of statements by partners are admissible against their other partners?

A

statements relating to matters within the scope of the partnership business

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25
Q

when are statements by co-conspirators admissible against other co-conspirators? (2 rqmts)

A

when statements of one conspirator are made to a third party (1) in FURTHERANCE of a conspiracy to commit a crime/civil wrong (2) at a time when the declarant was PARTICIPATING in the conspiracy

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26
Q

by what standard must a court determine the existence of a conspiracy/declarant’s participation in it?

A

by a preponderance of the evidence (more likely than not)

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27
Q

true or false: in state court, statements of joint owners are admissible against each other.

A

TRUE

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28
Q

true or false: in state court, statements of a former owner of real prop made at the time they held title are admissible against those claiming under them (ie–grantees, heirs, etc).

A

TRUE

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29
Q

true or false: the state court rules on statements of joint owners and grantors are also applicable in federal court as opposing party statements.

A

FALSE (not admissible as opposing party statements but MAY be admissible under an EXCEPTION to the hearsay rule)

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30
Q

what must a court do before admitting a statement as a vicarious statement of an opposing party?

A

make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered
**EXAMPLES = whether declarant is party’s agent/employee, whether declarant was authorized to speak for party, whether the declarant and party were co-conspirators

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31
Q

true or false: the statement alone is sufficient to establish the required relationship for vicarious statements.

A

FALSE (some independent evidence is required)

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32
Q

true or false: the court, in making preliminary determinations, MUST consider the contents of the statement.

A

TRUE

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33
Q

what are hearsay EXCEPTIONS?

A

statements that ARE hearsay but are nevertheless admissible because they are considered to be especially necessary or reliable

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34
Q

what are the two general categories of hearsay exceptions?

A

1) hearsay exceptions conditioned on the declarant’s unavailability
2) hearsay exceptions where declarant availability is immaterial

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35
Q

what circumstances will make a declarant unavailable? (5)

A

1) unable to testify due to death or physical/mental illness
2) exempt from testifying because of privilege
3) refuse to testify despite court order
4) testify that they do not remember the subject matter, or
5) are absent and proponent is unable to procure their attendance or testimony by process or other reasonable means

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36
Q

true or false: declarant is considered unavailable even where proponent of the statement procured or wrongfully cause the declarant’s unavailability.

A

FALSE (declarant will still be considered available – these unavailability exceptions won’t be available)

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37
Q

when is former testimony of an unavailable witness admissible? (2 elements)

A

admissible if…
1) testimony was given under oath at a trial, hearing, deposition (in the same case or different one), AND
2) party against whom the testimony is being offered (or in civil case, predecessor in interest) had an opportunity and similar motive to develop the declarant’s testimony a the prior proceeding (thru cross, direct, etc)

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38
Q

what does “predecessor in interest” mean?

A

a person in a privity relationship with the party (ie – grantor/grantee; testator/executor)

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39
Q

what does the “opportunity and similar motive” requirement mean? (2 elements)

A

1) party against whom testimony is being offered/predecessor in interest must have been a PARTY in the former action AND
2) the former action must have involved the same subject matter (but CoAs need not be the same)

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40
Q

true or false: grand jury testimony of an unavailable declarant is ADMISSIBLE against a defendant under the former testimony exception.

A

FALSE (grand jury testimony is NOT admissible as former testimony because the accused does NOT have an opportunity to develop the declarant’s testimony – no cross, redirect, etc)

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41
Q

true or false: grand jury testimony is ADMISSIBLE as a prior inconsistent statement given under oath both for impeachment AND as substantive evidence.

A

TRUE (different than for former testimony – grand jury testimony is NOT admissible in that case)

42
Q

when is a statement against interest made by a now unavailable witness admissible? (3 elements)

A

admissible if
1) the statement was against their pecuniary, proprietary, or penal interests when made (such that a reasonable person in their position wouldn’t have made the stmt if it wasn’t true)
2) the declarant had personal knowledge of the facts
3) the declarant was aware that the statement was against their interest when they made it

43
Q

what is the additional limitation on statements against PENAL interests in a CRIMINAL case?

A

the statements must be corroborated (by other evidence, not just the stmt)

44
Q

if a declaration includes both a statement against interest and a statement that’s not, what parts (if any) of the declaration are admissible under the exception?

A

only the parts that inculpate the declarant, not the entire extended declaration

45
Q

when will statements by an unavailable declarant be admissible under the dying declaration exception? (3 elements)

A

if…
1) case is either a homicide prosecution or ANY civil case
2) declarant believed their death was imminent
3) statement concerned the cause or circumstances of what the declarant believed to be their impending death **NOTE = MUST be based on declarant’s perceptions and firsthand knowledge of what happened (mere speculation or unsupported opinion is NOT enough)

46
Q

true or false: the declarant must die for their dying declarations to be admissible under the exception.

A

FALSE (this is no longer the rule)

47
Q

true or false: dying declarations cannot be admitted in civil cases.

A

FALSE (may be admitted in any civil case and any homicide prosecution)

48
Q

when will statements of personal/family history by an unavailable declarant be admissible under the exception? (3 elements)

A

admissible if…
1) stmts concern births, marriages, divorces, relationships, genealogical status, etc
2) declarant is a member of the family OR intimately associated with it, and
3) stmts are based on declarant’s personal knowledge of the facts OR knowledge of family reputation

49
Q

true or false: statements of a now unavailable declarant are ADMISSIBLE if offered against a party who engaged OR acquiesced in wrongdoing to intentionally procure the declarant’s unavailability.

A

TRUE (can’t benefit from making a declarant absent)

50
Q

true or false: statements by a declarant whose absence was procured by a party may be offered against that party even if their motive in procuring their absence was NOT to prevent them from testifying.

A

FALSE (motive MUST be to prevent their testimony)

51
Q

what are the 5 hearsay exceptions conditioned on a declarant’s unavailability?

A

1) former testimony
2) statements against interest
3) dying declarations
4) statements of family/personal history
5) statements offered against party procuring declarant’s absence

52
Q

what are 12 hearsay exceptions that apply REGARDLESS of whether the declarant is available?

A

1) excited utterance
2) present sense impressions
3) present state of mind
4) statements made for medical diagnosis/treatment
5) records of regularly conducted activity (business records)
6) official records/writings
7) recorded recollection
8) learned treatises
9) ancient documents
10) documents affecting property interests
11) reputation evidence
12) catch-all exception for sufficient trustworthiness/need

53
Q

what is an admissible “excited utterance”? (2 elements)

A

an out of court statement…
1) relating to a startling event,
2) made while still under the stress of the excitement from the event
**RATIONALE = excitement suspends a declarant’s capacity to fabricate

54
Q

what is an admissible “present sense impression”? (2 elements)

A

a statement that…
1) describes or explains an event or condition, and
2) is made while or immediately after the declarant perceives the event/condition
**RATIONALE = declarant has no time to fabricate their statement

55
Q

what is an admissible statement of “present state of mind”? (2 options)

A

statement of either …
1) a declarant’s then existing state of mind OR
2) their current emotional, sensory, or physical condition
**RATIONALE = contemporaneous statements and declarant has unique knowledge of their own conditions

56
Q

true or false: generally, a statement of memory or belief is NOT admissible to prove the truth of the fact remembered or believed (for present state of mind exception).

A

TRUE

57
Q

true or false: “state of mind” DOES include statements about the declarant’s intent to do something in the future.

A

TRUE

58
Q

true or false: “state of mind” does NOT include statements of future intent to engage in conduct with ANOTHER PERSON.

A

FALSE (intent to engage in future conduct with others is ADMISSIBLE as a statement of the declarant’s present state of mind)

59
Q

true or false: the present state of mind exception covers a declarant’s statement about their CURRENT physical condition but not in reference to a PAST condition.

A

TRUE

60
Q

what is an admissible statement made for purposes of medical diagnosis/treatment?

A

a statement that…
1) describes a person’s medical history, past or present symptoms or their inception/general cause, and
2) is MADE FOR and was reasonably PERTINENT TO medical diagnosis or treatment

61
Q

true or false: a declarant’s statements made for medical diagnosis must be describing their OWN condition to be admissible.

A

FALSE (could be seeking assistance for spouse, family member, etc)

62
Q

true or false: a declarant’s statement made for medical diagnosis must be made to a MEDICAL PROFESSIONAL to be admissible.

A

FALSE (but this is usually the case)

63
Q

generally, if one part of a statement is made for medical treatment and another part assigns blame, what parts (if any) of the statement are admissible under the exception?

A

only the part that was made for purposes of medical treatment

64
Q

in what limited circumstance will a court allow admission of the whole statement even if part of it assigns blame/is not for the purpose of medical treatment?

A

when the statement was made by a child abuse victim who identifies their abuser in the course of the treatment

65
Q

true or false: declarations of physical condition made to a doctor employed to testify as an expert are NOT admissible as a statement for medical treatment.

A

FALSE (statements for medical diagnosis INCLUDE diagnoses for the purpose of giving an expert opinion)

66
Q

what is a “record of a regularly conducted activity”? (business records)

A

any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis (admitted to show its occurrence)

67
Q

what are the 5 requirements for a business record to be admissible as a hearsay exception?

A

1) record was made by a business
2) record was made in the course of that business
3) the business regularly kept such records (ie–entrant had a duty to make entries)
4) record was made at or near the time of the event
5) record consists of matters within the personal knowledge of the entrant OR within the knowledge of someone with a duty to transmit such matters to the entrant (ie–coworker)

68
Q

who else is required to be “present” to admit business records into evidence under the exception?

A

authenticity of the record must be established by a sponsoring witness or custodian of records (someone who knows about the business’ recordkeeping)
**NOTE = need not be the exact recordkeeper

69
Q

in what 2 ways can a sponsoring witness/record custodian establish a record’s authenticity?

A

either by…
1) testifying that the record meets the requirements of the business records exception, or
2) certifying in writing that the record meets the requirements of the exception

70
Q

when may a valid business record be used to prove the NONOCCURRENCE of a matter?

A

when its shown that it was the regular practice of the business to record all such matters

71
Q

true or false: even if a business record meets the requirements, a can be excluded by the court if the COURT determines the circumstances of the record indicate a lack of trustworthiness.

A

FALSE (it can be excluded, BUT it is the OPPONENT’S burden to show that the record is not trustworthy, NOT the court)

72
Q

what kinds of records of a public office or agency are admissible under the official writings exception? (3)

A
  • records setting forth the activities of the office or agency (ie–payroll)
  • recordings of matters observed pursuant to a duty imposed by law (BUT NOT including police observations in crim cases)
  • in CIVIL actions and AGAINST the government in criminal cases, records of factual findings resulting from an investigation authorized by law (NOT ok if offered against DEFENDANT in criminal case)
73
Q

what are the requirements for official writings/records? (2)

A

must be…
1) made by and within in the scope of duty of the public employee who made it
2) made at or near the time of the event

74
Q

true or false: the court can exclude otherwise valid official records if the opposing party successfully shows that circumstances of the record indicate a lack of trustworthiness.

A

TRUE (just as with the business records exception)

75
Q

true or false: generally, police reports CAN be admitted under the official records exception.

A

TRUE (even includes factual conclusions/opinions, BUT not legal)

76
Q

true or false: police reports CAN be admitted under either the official records exception or the business records exception against a criminal defendant.

A

FALSE as to both

77
Q

when are records of vital statistics admissible? if reported to a public office in accordance with a legal duty.

A

if they are reported to a public office in accordance with a legal duty.

78
Q

when is the absence of an official record admissible to prove that a matter was not recorded OR did not occur?

A

when it comes in the form of testimony or certification from a records custodian that they have diligently searched and failed to find the record

79
Q

true or false: a criminal defendant has a right to compel a records custodian to court to testify as to an absent record.

A

TRUE (per the confrontation clause)

80
Q

when is mere CERTIFICATION from a records custodian about the absence of a record admissible against a criminal defendant?

A

only if…
1) the prosecution notifies the defense at least 14 days before trial, and
2) the defense does not object in writing within 7 days of receiving the notice

81
Q

true or false: a certified copy of a judgment is ALWAYS admissible to prove that a judgment has been entered.

A

TRUE

82
Q

for what purpose is the judgment of a prior FELONY conviction admissible under the official records exception?

A

(in both civil and criminal cases)
admissible to prove ANY fact ESSENTIAL to the judgment

83
Q

true or false: the official records exception applies to records of prior acquittals.

A

FALSE (these are NOT admissible under the exception)

84
Q

true or false: generally, the official records exception allows prior civil judgments to be admissible in both civil and criminal cases.

A

FALSE as to BOTH (generally excluded, absent statutory specification)

85
Q

if a testifying witness’ memory CANNOT be revived, what kind of evidence may a party introduce? (recorded recollection)

A

a memo or other record that the witness made or adopted at or near the time of the event (hearsay)

86
Q

true or false: records offered by the questioning party after a witness’ memory cannot be revived can be ADMITTED into evidence as well as READ into the record.

A

FALSE (CAN’T be admitted by the questioning party, can only be read into the record)

87
Q

true or false: records introduced under the recorded recollection exception CAN be admitted into evidence if offered by an adverse party.

A

TRUE

88
Q

when are statements in a learned treatise (authoritative works) admissible for their substantive truth? (2 elements)

A

admissible if…
1) treatise is established as reliable authority, and
2) the excerpt is either:
- relied upon by an EW during direct examination, or
-brought to and EW’s attention on cross examination

89
Q

true or false: statements in learned treatises are NOT allowed to be admitted into evidence; they only can be READ into the record.

A

TRUE (similar to recorded recollection)

90
Q

what statements are admissible under the “ancient documents” exception?

A

statements made in any authenticated document prepared BEFORE january 1, 1998

91
Q

generally, when is a statement in a document affecting a property interest (ie–deed, will) admissible?

A

admissible if the statement is relevant to the document’s purpose

92
Q

even if a statement is valid under the docs affecting property exception, when will the exception NOT apply?

A

if later dealings with the property are inconsistent with the truth of the statements asserted or the intent of the document (no longer reliable)

93
Q

what are the 4 purposes for which reputation evidence is admissible (hearsay exceptions)?

A

admissible if offered to prove…
1) character
2) personal or family history
3) land boundaries
4) a community’s general history

94
Q

when is a statement admissible under the catchall hearsay exception? (3 rqmts)

A

admissible if…
1) statement possesses sufficient guarantees of trustworthiness
2) statement is strictly necessary
3) proponent gives reasonable notice before trial to their adversary of the intent to offer the statement that includes:
- the substance of the statement, and
- the name of the declarant

95
Q

what things must a court consider in determining whether a statement has “sufficient guarantees of trustworthiness” for the catchall exception?

A

court must consider…
1) totality of the circumstances in which the statement was made, and
2) any evidence that corroborates the statement

96
Q

when is a statement “strictly necessary” for the purposes of the catchall exception?

A

when the statement is more probative as to the fact for which it is being offered than any other evidence that the proponent can reasonably produce

97
Q

under the confrontation clause, when will a hearsay statement NOT be admitted? (4 rqmts)

A

1) statement is being offered against the accused in a criminal case,
2) the declarant is unavailable,
3) the statement was “testimonial” in nature, and
4) the accused had no opportunity to cross examine the declarant’s testimonial statement before trial

98
Q

when will a defendant nonetheless forfeit their right to bar admission of hearsay under the confrontation clause?

A

if they committed a wrongful act that was intended to keep the witness from testifying

99
Q

true or false: statements made to law enforcement for the primary purpose of enabling the police to help in an ongoing emergency are NOT testimonial.

A

TRUE

100
Q

true or false: statements made to police for the primary purpose of establishing or proving past events that are potentially relevant to a later prosecution ARE testimonial

A

TRUE

101
Q

true or false: affidavits/etc that summarize forensic analysis and have the effect of accusing a targeted individual of a crime are NOT testimonial.

A

FALSE (these ARE testimonial)

102
Q

true or false: hearsay rules or other exclusionary rules CANNOT be applied where to do so would deprive the accused of their right to a fair trial or their right to compulsory process.

A

TRUE (due process trumps the rules of evidence)

Evidence (9 decks)

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