Hearsay Flashcards
What is required to exclude a hearsay statement that doesn’t fall under an exception?
Appropriate objection.
What is the hear say rule?
1) Hearsay is a statement
2) other than the one made by the declarant while testifying at current trial/hearing
3) offered in evidence
4) to prove the truth of the matter assted
What does hearsay rule rationale?
1) The adverse party was denied
2) the opportunity to cross examine the declarant
3) at time statement was made
What is hearsay within hearsay?
1) an out of court statement
2) that incorporates other hear say within it
When is hearsay within hearsay admissible?
When BOTH outer/inner elements of hearsay meet an exception to hearsay rule.
What should you look for with hearsay within hearsay?
1)An out-of-court declarant who repeats
OR
2)Transcribes
3)another person’s statement
What is a statement for purposes of hearsay?
A person’s
1) oral or written assertion
OR
2)nonverbal conduct intended as an assertion (nod of head)
What classes does hear say rule not apply to?
Only people. There is no animal/machine hearsay.
Is this hearsay:
What a radar gun said
What a drug sniffing dog did
No, no.
Can a hear say statement be made in a court room?
Yes, a statement made at a prior trial can be hearsay in a subsequent trial.
When is a statement made in court not hearsay?
When it is offered at current trial.
What are common nontruth of the matter asserted purposes that make things non hearsay?
1) verbal acts
2) legally operative facts (contract words/Defamatory words)
3) Statement made to show effect on listener/reader
4) statements offered as CIRCUMSTANTIAL EVIDENCE OF DECLARANT’S state of mind
When is a statement made to show effect on listener/reader often used?
To prove notice in a negligence case.
statements offered as CIRCUMSTANTIAL EVIDENCE OF DECLARANT’S state of mind, which is not hearsay, often used for?
When a party is trying to prove someone’s insanity or knowledge.
What is an example that shows the difference between circumstantial evidence of declarant’s state of mind and statements that reflect DIRECTLY on declarant’s state of mind?
I am Elvis Presley it’s good to be back
vs.
I feel sad.
MBE TIP, when deciding whether is something hearsay, what should you ask?
Are we relying on Declarant’s credibility? Or, does it matter if Declarant is telling the truth?
Generally, what is a witness’s own prior out of court statement?
Hearsay, and inadmissible absent an exception.
If the general rule is that a witness’s own prior out of court statement is hearsay, when does the FRE except these?
1) prior statement is by a testifying witness subject to cross examination and it is one of:
1) identification
2)INconsistent with Declarant’s in court testimony and was given under oath
3) PS is CONSISTENT with Dec’s in court test and is offered to Reuben a charge with is lying/exagerating because of motive
4) PS consistent but offered on some other ground like inconsistency
Is an out of court statement of identification made by a nontestifyinf declarant admissible?
No, it is hearsay unless it falls under an exception
When is an opposing party’s statement not hearsay under FR?
1) When it is made by/attributable to a party
and
2) it is attributable to that party
What does an opposing party statement not have to be to qualify as non-hearsay?
1) against the parties interests
2) From personal knowledge
What are a party’s formal judicial statements?
Conclusive, and can’t be contradicted during trial.
What is a party’s informal judicial statements?
Statements made during:
1) testimony
2) extrajudicial statements
What are a party’s informal judicial statements?
Not conclusive and can be explained.
What are examples of a party’s formal judicial statements?
Pleadings, stipulations etc.
Can a party’s statements change their nature?
Yes, a formal statement in one trial can become an informal judicial statement in another
Pleading guilty to running a red light is formal
What can a party’s silence qualify as?
If silence is towards an accusatory statement, an implied acquiescence to the truth of that statement IF
What requirements need to be met for silence to be an implied acquiescence to the truth of a statement?
1) Party HEARD/UNDERSTOOD the statement
2) Party was capable of denying it physically/mentally
3) A REASONABLE PERSON WOULD HAVE DENIED IT
Who has an insufficent relationship for vicarious statements to become admissible?
Co-parties.
Can a statement by a company’s press agent be admitted against the party
Yes– so long as the press officer is authorized to speak on their behalf
When is an agent or employer’s statement admissible against their principal?
1) Stmt concerned any matter WITHIN SCOPE of A/E
2) Statement was made DURING EXISTENCE of agency or employment relationship.
If an employer made a comment within the scope of their employment shortly after they were terminated, is it admissible against the principal?
No. Both requirements must be met.
When is partners within a partnership liable for their partners statements?
Whenever the statement of one partner relates to matter within the scope of the partnership buisness.
When are co- conspirator statements admissible against other co conspirators?
If it was:
1) made to a third party
2) IN FURTHERANCE of the conspiracy to commit crime or civil wrong
3) when Declarant was participating in conspiracy
How does a court determine the existence of a partnership/ D’s existence within it?
A preponderance of the evidence standard.
In order to get an out of court statement admitted as a vicarious statements of an opposing party, what must happen?
The court must preliminary determine:
1) whether declarant was authorized to speak for party
2) whether declarant was party’s employee/agent
3) whether declarant and party were co conspirators
In considering whether to admit an out of court statement as a vicarious statement of an opposing party, what must the court consider?
1) the contents of the statement
2) some other independent evidence
In making a preliminary determination on vicarious statements, is the content of the statement conclusory in the analyisis?
No, there must be some independent evidence of the required relationship in addition to the statement’s contents.
Are statements that fall under a hearsay exception hearsay?
Yes, but admissible because they are considered neccessary/reliable.
Hearsay exceptions based on present unavailability:
Declarant is unable to testify due to:
1) Death or physical/mental illness
2) exempt due to privilege
3) Refuse to testify despite court order
4) Testify they do not remember
5) they are absent
What is a declarant who is able to give deposition testimony but cannot attend the trial considered?
An available witness (except for respect to former testimony and forfeiture by wrongdoing).
When is the former testimony of now unavailable witness available?
Former testimony was given:
1) Under oath at trial
2) Party against whom test. is being offered/predecessor in interest had an opportunity/similar motive to develop declarant’s testimony at prior proceeding by direct/cross/ or redirecty
In regards to a now unavailable witness’s former testimony, what does it mean on a practical level?
The party against whom test is being offereded must have been:
1) A party in the former action
2) Former action was about THE SAME SUBJECT MATTER
In regards to a now unavailable witness’s former testimony, what does it mean on a practical level to be the same subject matter? What doesn’t it mean?
It need be the same subject matter, but not identical
When is grand jury testimony of now unavailable witness inadmissible? Why? When is it admissible?
It’s never admissible under the former testimony exception to hearsay.
It can be available under the prior inconsistent statements given under oath by a now testifying witness– this is admissible as substantive evidence and impeachment.
When is a statement of a person against interest, now unavailable as a witness admissible?
If it was against their money, property, criminal interest WHEN MADE. Declarant must have had personal Knowledge that statement was against interest when made.
What is true statements by an opposing party?
1) Stmt need not have been against interest when made
2) No knowledge requirement
3) Dec. need not be unavail.
4) Dec must be party to a case
What is true about Stmt against interest?
1) Must have been against interest when made
2) Dec needs personal knowledge
3) Dec unavail
4) Dec need not be a party
What limits on statements against penal interest in criminal cases?
Statements against penal interest (subject Dec to Crim Lia must be corroborated)
What is the traditional rule of dying declarations?
1) Dec must have ultimately died of injury
2) Not available in civil cases
When can dying declarations be used in modern times?
Homicide prosecution
Any civil case
What must be true about a dying declarations to be used in a homicide case or ANY civil case?
1) Dec. believed THEIR death was imminent
2) Statement was about the cause/circumstances of THEIR impending death
3) Mujst be based on first hand knowledge
Can dying declarations be used in attempted homicide cases?
No.
If a party killed a declarant because the declarant refused to cut down the tree in their back yard, is the statement of that now unavailable person admissible against the killer under Statements offered against procuring party declarant’s unavailability rule?
No, the restraint on declarant must have been done to prevent them from testifying in their CASE.
What hearsay exceptions require unavailability?
1) Former testimony
2) Statement against interest
3) Dying declarations
4) Statemewnts of personal/family history
5) Statements offered against party procuring D’s availability
What must be true for a statement to meet the excited utterance hearsay exception?
1) Stmt relates to startling event
2) it was made while under stress from the event
What can’t be true for a statement to meet the excited utterance hearsay exception?
The declarant had time to reflect on the event
What is the rationale for hearsay exception excited utterance hearsay exception?
The statement’s excitement prevented fabrication.
If a dying declarations fails to meet that hearsay exceptions, what else could it arguably fall under?
Excited utterance.
What is the different characteristics about an event between Excited utterances and PSI?
EU – Stmt must RELATE to a startling event
PSI – S must describe or explain an event or condition but it NEED NOT BE STARTLING
Between the EU, and PSI hearsay exceptions, which requires an event be STARTLING?
Excited utterances.
What is the time difference between EU and PSI hearsay exceptions? How would you describe the time differences?
EU – statement made while still under stress of excitement from event… This considers more Totality of circs
PSI – Statement must while or IMMEDIATELY after perceiving … Stricter timing requirement
If on an essay you see an excited statement, how should you analyze it?
Under both excited utterances and PSI hearsay exceptions
What does the present state of mind hearsay exceptions NOT allow??
Using the exception for a statement of memory or belief to prove the truth of the matter.
What does the statements for Purp of med treatment/diagnosis admit?
A statement describing a person’s medical history, past , present symptoms
OR the inception of the systems
Declarant tells ER doc, “I was stabbed with a kitchen knife, my room mate did it”. Is anything admissible? Why or why not?
Yes, “I was stabbed with a kitchen knife, but not my room mate did it.
The first portion is PERTINENT to diagnosis/treatment.
What is the difference between statements made between Present physical condition and medical diagnosis hear say exception?
Med diagnosis covers past condition and present condition.
Are statements made to a doctor retained for the sole purpose to testify as an expert witness admissible under hearsay exceptions (Past/present med condition)?
Yes.
Elements of business records exception?
1) Business
2) Entry made in regular course of business/business must regularly keep such records
3) Entry made near time of event
4) Personal knowledge or duty to report
What’s an example of a document that would not meet the business records hear say exception?
If a business didn’t regularly keep records, and an accident happened, so they filed a self serving accident report to get ready to sue.
If a business record meets all of its requirements, must it be admitted under its hearsay exceptions?
No, court MAY exclude if opponent show a lack of trustworthiness towards it.
What can prior felony convictions be admissible for?
In either criminal or civil
to prove any fact essential to the case
When are learned treatises admissible?
1) Treatise must be reliable
Only if introduce in the context of expert testimony
What is true about learned treatise admissibility?
Excerpts can be read into record, but cannot be received as an exhibit for the jury (like recorded recollections
Though reputation is hearsay, what exceptions does it normally fall under?
1) Character
2) personal or family history
3) land boundaries
4) a community’s general history
