Hearsay Flashcards
What is a Statement?
“Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
What is a Declarant?
“Declarant” means the person who made the statement.
What is Hearsay?
“Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
What is the first statement that is defined as not being Hearsay in Rule 801(d)?
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and 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) identifies a person as someone the declarant perceived earlier.
What is the second statement that is defined as not being Hearsay in Rule 801(d)?
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establisht he declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation it under (E).
What is the difference between Rule 803 and Rule 804?
Rule 803 applies when the declarant is available as a witness.
Rule 804 applies when the declarant is not available as a witness.
What is the first exception to Hearsay listed in Rule 803?
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
What is the second exception to Hearsay listed in Rule 803?
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
What is the third exception to Hearsay listed in Rule 803?
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but 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.
What is the fourth exception to Hearsay listed in Rule 803?
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for–and is reasonably pertinent to–medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
What is the fifth exception to Hearsay listed in Rule 803?
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
What is the sixth exception to Hearsay listed in Rule 803?
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by–or from information transmitted by–someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
What is the seventh exception to Hearsay listed in Rule 803?
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
What is the eighth exception to Hearsay listed in Rule 803?
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
What is the ninth exception to Hearsay listed in Rule 803?
(9) Public Records of Vital Statistics. A record of a birth, death or marriage, if reported to a public office in accordance with a legal duty.
What is the tenth exception to Hearsay listed in Rule 803?
(10) Absence of a Public Record. Testimony–or a certification under Rule 902–that a diligent search failed to disclose a public record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice–unless the court sets a different time for the notice or the object.
What is the eleventh exception to Hearsay listed in Rule 803?
(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.
What is the twelfth exception to Hearsay listed in Rule 803?
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:
(A) made by a person who is authorized by a religious organization or by law to perform the act certified;
(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and
(C) purporting to have been issued at the time of the act or within a reasonable time after it.
What is the thirteenth exception to Hearsay listed in Rule 803?
(13) Family Records. 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.
What is the fourteenth exception to Hearsay listed in Rule 803?
(14) Records of Documents That Affect an Interest in Property. 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.
What is the fifteenth exception to Hearsay in Rule 803?
(15) Statements in Documents That Affect an Interest in Property. 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.
What is the sixteenth exception to Hearsay in Rule 803?
(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.
What is the seventeenth exception to Hearsay in Rule 803?
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
What is the eighteenth exception in Hearsay in Rule 803?
(18) Statement in Learned Treatises, Periodicals, or Pamphlets. 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.
What is the nineteenth exception in Hearsay in Rule 803?
(19) Reputation Concerning Personal or Family History. 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.
What is the twentieth exception in Hearsay in Rule 803?
(20) Reputation Concerning Boundaries or General History. 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.
What is the twenty-first exception in Rule 803?
(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.
What is the twenty-second exception in Rule 803?
(22) Judgment of a Previous Conviction. 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.
What is the twenty-third exception in Rule 803?
(23) Judgments Involving Personal, Family, or General History, or a Boundary. 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.
When is a declarant unavailable for purposes of Rule 804?
(a) Criteria for Being Unavailable. A declarant is considered tob e unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by a process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), and (4).
But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
What is the first exception to hearsay under Rule 804?
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had–or, in a civil case, whose predecessor in interest had–an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
What is the second exception to hearsay under Rule 804?
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
What is the third exception to hearsay under Rule 804?
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
What is the fourth exception to hearsay under Rule 804?
(4) Statement of Personal or Family History. A statement about:
(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no ways of acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriages or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.
What is the exception to hearsay under Rule 805?
RULE 805. 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.
What is the exception to hearsay under Rule 807?
RULE 807. RESIDUAL EXCEPTION
(a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:
(1) the statement is supported by sufficient guarantees of trustworthiness–after considering the totality of the circumstances under which it has been made and evidence, if any, corroborating the statement; and
(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
(b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement, including its substance and the declarant’s name–so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing–or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.
What is the first of the six TOMA categories?
(1) Impeachment
See Problem 3-C “The Blue Car Ran a Red Light” on Page 132 for an example.
What is the second of the six TOMA categories?
(2) verbal acts (or parts of acts)
See Problem 3-D “Any Way You Like” on Page 133 for an example.
What is the third of the six TOMA categories?
(3) effect on listener or reader
See Problem 3-E “Whose Corn?” on Page 134 for an example.
What is the fourth of the six TOMA categories?
(4) verbal markers or objects
See Problem 3-F “I’m From the Gas Company” on Page 135 for an example.
What is the fifth of the six TOMA categories?
(5) circumstantial evidence of state of mind
See Problem 3-G “Eagle’s Rest Bar & Grill” on Page 136 for an example.
What is the sixth of the six TOMA categories?
(6) circumstantial evidence of memory or belief
See Problem 3-H “Anna Sofer’s Will” on Page 138 and Problem 3-I on Page 139 for examples.
What is the Bruten Rule?
The Bruten Rule: If a non-testifying defendant has given a post-arrest statement implicating the other defendant, that statement is inadmissible in a joint trial unless there is cross.
