Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

What is required to exclude a hearsay statement that doesn’t fall under an exception?

A

Appropriate objection.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the hear say rule?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What does hearsay rule rationale?

A

1) The adverse party was denied
2) the opportunity to cross examine the declarant
3) at time statement was made

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is hearsay within hearsay?

A

1) an out of court statement
2) that incorporates other hear say within it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

When is hearsay within hearsay admissible?

A

When BOTH outer/inner elements of hearsay meet an exception to hearsay rule.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What should you look for with hearsay within hearsay?

A

1)An out-of-court declarant who repeats

OR

2)Transcribes

3)another person’s statement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is a statement for purposes of hearsay?

A

A person’s
1) oral or written assertion

OR

2)nonverbal conduct intended as an assertion (nod of head)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What classes does hear say rule not apply to?

A

Only people. There is no animal/machine hearsay.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Is this hearsay:

What a radar gun said
What a drug sniffing dog did

A

No, no.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Can a hear say statement be made in a court room?

A

Yes, a statement made at a prior trial can be hearsay in a subsequent trial.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

When is a statement made in court not hearsay?

A

When it is offered at current trial.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are common nontruth of the matter asserted purposes that make things non hearsay?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

When is a statement made to show effect on listener/reader often used?

A

To prove notice in a negligence case.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

statements offered as CIRCUMSTANTIAL EVIDENCE OF DECLARANT’S state of mind, which is not hearsay, often used for?

A

When a party is trying to prove someone’s insanity or knowledge.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

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?

A

I am Elvis Presley it’s good to be back
vs.
I feel sad.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

MBE TIP, when deciding whether is something hearsay, what should you ask?

A

Are we relying on Declarant’s credibility? Or, does it matter if Declarant is telling the truth?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Generally, what is a witness’s own prior out of court statement?

A

Hearsay, and inadmissible absent an exception.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

If the general rule is that a witness’s own prior out of court statement is hearsay, when does the FRE except these?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Is an out of court statement of identification made by a nontestifyinf declarant admissible?

A

No, it is hearsay unless it falls under an exception

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

When is an opposing party’s statement not hearsay under FR?

A

1) When it is made by/attributable to a party
and
2) it is attributable to that party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What does an opposing party statement not have to be to qualify as non-hearsay?

A

1) against the parties interests
2) From personal knowledge

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What are a party’s formal judicial statements?

A

Conclusive, and can’t be contradicted during trial.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is a party’s informal judicial statements?

A

Statements made during:
1) testimony
2) extrajudicial statements

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What are a party’s informal judicial statements?

A

Not conclusive and can be explained.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What are examples of a party’s formal judicial statements?

A

Pleadings, stipulations etc.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Can a party’s statements change their nature?

A

Yes, a formal statement in one trial can become an informal judicial statement in another
Pleading guilty to running a red light is formal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What can a party’s silence qualify as?

A

If silence is towards an accusatory statement, an implied acquiescence to the truth of that statement IF

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What requirements need to be met for silence to be an implied acquiescence to the truth of a statement?

A

1) Party HEARD/UNDERSTOOD the statement
2) Party was capable of denying it physically/mentally
3) A REASONABLE PERSON WOULD HAVE DENIED IT

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Who has an insufficent relationship for vicarious statements to become admissible?

A

Co-parties.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Can a statement by a company’s press agent be admitted against the party

A

Yes– so long as the press officer is authorized to speak on their behalf

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

When is an agent or employer’s statement admissible against their principal?

A

1) Stmt concerned any matter WITHIN SCOPE of A/E
2) Statement was made DURING EXISTENCE of agency or employment relationship.

32
Q

If an employer made a comment within the scope of their employment shortly after they were terminated, is it admissible against the principal?

A

No. Both requirements must be met.

33
Q

When is partners within a partnership liable for their partners statements?

A

Whenever the statement of one partner relates to matter within the scope of the partnership buisness.

34
Q

When are co- conspirator statements admissible against other co conspirators?

A

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

35
Q

How does a court determine the existence of a partnership/ D’s existence within it?

A

A preponderance of the evidence standard.

36
Q

In order to get an out of court statement admitted as a vicarious statements of an opposing party, what must happen?

A

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

37
Q

In considering whether to admit an out of court statement as a vicarious statement of an opposing party, what must the court consider?

A

1) the contents of the statement
2) some other independent evidence

38
Q

In making a preliminary determination on vicarious statements, is the content of the statement conclusory in the analyisis?

A

No, there must be some independent evidence of the required relationship in addition to the statement’s contents.

39
Q

Are statements that fall under a hearsay exception hearsay?

A

Yes, but admissible because they are considered neccessary/reliable.

40
Q

Hearsay exceptions based on present unavailability:

A

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

41
Q

What is a declarant who is able to give deposition testimony but cannot attend the trial considered?

A

An available witness (except for respect to former testimony and forfeiture by wrongdoing).

42
Q

When is the former testimony of now unavailable witness available?

A

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

43
Q

In regards to a now unavailable witness’s former testimony, what does it mean on a practical level?

A

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

44
Q

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?

A

It need be the same subject matter, but not identical

45
Q

When is grand jury testimony of now unavailable witness inadmissible? Why? When is it admissible?

A

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.

46
Q

When is a statement of a person against interest, now unavailable as a witness admissible?

A

If it was against their money, property, criminal interest WHEN MADE. Declarant must have had personal Knowledge that statement was against interest when made.

47
Q

What is true statements by an opposing party?

A

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

48
Q

What is true about Stmt against interest?

A

1) Must have been against interest when made
2) Dec needs personal knowledge
3) Dec unavail
4) Dec need not be a party

49
Q

What limits on statements against penal interest in criminal cases?

A

Statements against penal interest (subject Dec to Crim Lia must be corroborated)

50
Q

What is the traditional rule of dying declarations?

A

1) Dec must have ultimately died of injury
2) Not available in civil cases

51
Q

When can dying declarations be used in modern times?

A

Homicide prosecution
Any civil case

52
Q

What must be true about a dying declarations to be used in a homicide case or ANY civil case?

A

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

53
Q

Can dying declarations be used in attempted homicide cases?

A

No.

54
Q

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?

A

No, the restraint on declarant must have been done to prevent them from testifying in their CASE.

55
Q

What hearsay exceptions require unavailability?

A

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

56
Q

What must be true for a statement to meet the excited utterance hearsay exception?

A

1) Stmt relates to startling event
2) it was made while under stress from the event

57
Q

What can’t be true for a statement to meet the excited utterance hearsay exception?

A

The declarant had time to reflect on the event

58
Q

What is the rationale for hearsay exception excited utterance hearsay exception?

A

The statement’s excitement prevented fabrication.

59
Q

If a dying declarations fails to meet that hearsay exceptions, what else could it arguably fall under?

A

Excited utterance.

60
Q

What is the different characteristics about an event between Excited utterances and PSI?

A

EU – Stmt must RELATE to a startling event
PSI – S must describe or explain an event or condition but it NEED NOT BE STARTLING

61
Q

Between the EU, and PSI hearsay exceptions, which requires an event be STARTLING?

A

Excited utterances.

62
Q

What is the time difference between EU and PSI hearsay exceptions? How would you describe the time differences?

A

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

63
Q

If on an essay you see an excited statement, how should you analyze it?

A

Under both excited utterances and PSI hearsay exceptions

64
Q

What does the present state of mind hearsay exceptions NOT allow??

A

Using the exception for a statement of memory or belief to prove the truth of the matter.

65
Q

What does the statements for Purp of med treatment/diagnosis admit?

A

A statement describing a person’s medical history, past , present symptoms

OR the inception of the systems

66
Q

Declarant tells ER doc, “I was stabbed with a kitchen knife, my room mate did it”. Is anything admissible? Why or why not?

A

Yes, “I was stabbed with a kitchen knife, but not my room mate did it.

The first portion is PERTINENT to diagnosis/treatment.

67
Q

What is the difference between statements made between Present physical condition and medical diagnosis hear say exception?

A

Med diagnosis covers past condition and present condition.

68
Q

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)?

A

Yes.

69
Q

Elements of business records exception?

A

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

70
Q

What’s an example of a document that would not meet the business records hear say exception?

A

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.

71
Q
A
72
Q

If a business record meets all of its requirements, must it be admitted under its hearsay exceptions?

A

No, court MAY exclude if opponent show a lack of trustworthiness towards it.

73
Q

What can prior felony convictions be admissible for?

A

In either criminal or civil
to prove any fact essential to the case

74
Q

When are learned treatises admissible?

A

1) Treatise must be reliable
Only if introduce in the context of expert testimony

75
Q

What is true about learned treatise admissibility?

A

Excerpts can be read into record, but cannot be received as an exhibit for the jury (like recorded recollections

76
Q

Though reputation is hearsay, what exceptions does it normally fall under?

A

1) Character
2) personal or family history
3) land boundaries
4) a community’s general history

Evidence (8 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions