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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

rule 804: someone who believes they are about to die

A

hearsay is admissible if by someone who believed their death was imininent

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2
Q

hearsay

“dying declaration”

A

hearsay is admissible if it was made by the speaker while believing his death to be imminent

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3
Q

Preliminary fact to a “dying declaraction”

A

The victims belief that his death was imminent

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4
Q

hearsay

If the judge decides an issue for purpose of admissibility, does this undermine the jury’s power to decide the issue for purposes of determining guilt or innocense of the crime

A

No. the court cannot inform that it has a proponderance of the evidence for the issue.

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5
Q

why the court cannot inform that it has a proponderance of the evidence for the issue.

A

it would be an improper comment on the evidence that would risk unduly prejudicing the jury against the defendant

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6
Q

The Hearsay rule occurs when someone is

A

once removed

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7
Q

Hearsay

Someone is once removed when

A

they obtained information about the event, not from observing the event, but from another person who claims to have observed it.

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8
Q

Hearsay

5 cateogories of possible sources of innaccurate information:

A
  1. Perception
  2. memory
  3. sincerity
  4. narration
  5. comprehension
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9
Q

4 cateogories of possible sources of innaccurate information:

Perception

A

the accuracy of the sources perception of the event

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10
Q

4 cateogories of possible sources of innaccurate information:

Memory

A

the accuracy of the sources recollection of the event

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11
Q

4 cateogories of possible sources of innaccurate information:

Sincerity

A

the sources honesty about the event

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12
Q

4 cateogories of possible sources of innaccurate information:

Narration

A

The adequacy of the sources communication of her thoughts

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13
Q

hearsay

twice removed

A

witness source, got their knowledge through another source

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14
Q

5 factors of reliability

A
  1. perception
  2. memory
  3. sincerity
  4. narration
  5. comprehension
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15
Q

Hearsay rule does not apply to statements made by witnesses in

A

the court proceeding that is CURRENTLY taking place

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16
Q

Hearsay

Problem (the law has) when the person testifying is the source who made the out of court statement

A

the passage of time between making the statement andits repitition in court can effect hte memory or sincierity of the event

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17
Q

Rule 801 (hearsay) definition

Statement

3 types

A

A person’s oral assertion, witten asserition, or nonverbal conduct, if the person intended it as an assertion

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18
Q

Rule 801 (hearsay) definition

Declarant

A

the person who made the statement

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19
Q

Rule 801 (hearsay) definition

Hearsay, means a statement that:

A

1) The declarant does not make while tesifying at the current trial or hearing, and
2) A party offers in evidence to prove the truth of the matter asserted in the statement

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20
Q

Hearsay not admissible unless the following provides otherwise

A

1) fed. stat.
2) a rule
3) other supreme court rules

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21
Q

4 facts that must be true, for evidence to be hearsay

A

1) it must be a “statement”
2) of the “declarant”
3) made “not… while testifying at the current trial or hearing”
4) offered in evidence “to prove the truth of the matter asserted”

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22
Q

3 things that count of a statement

A

1) a persons oral assertion
2) A persons written assertion
3) A persons nonverbal conduct if the person intended it as an assertion

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23
Q

Hearsay

Whether words or conduct, a statment must be an

A

assertion

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24
Q

Hearsay

does a statement need to have words?

A

no it can be conduct

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25
Q

if words or conduct form an assertion, they…

A

constitute a statement and satisfy the first componet of the hearsay def.

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26
Q

Hearsay

To be an assertion, the words or conduct must be an attempt to

A

share information

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27
Q

Not all –, or –, —,— are statements because they are not always trying to assert something

A

questions, orders, instructions, commands

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28
Q

conduct not intended to assert a fact

A

is not a statement

therefore, not hearsay

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29
Q

Declarant

A

the person who made the out-of-court statement

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30
Q

Hearsay doctrine revolves around the

A

declarent, not the person who testifies in court

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31
Q

Sometimes the declarant and the witness is the same person

example

A

You told someone somthing that someone else said

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32
Q

Can a mechanical device or animal be a declarant?

how are they analyzed?

A

no, has to be a person making the statement
- Would be analyzed through relevance, probative value, and cross-examination

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33
Q

Hearsay

A video recording or megaphone

A

Is valid under hearsay, using a device to make the statement louder or keep it

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34
Q

The statement must have been made by the declarant… not while

A

testifying at the current trial.

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35
Q

A statement made at court can qualify as hearsay when

A

it is any statemetn not made at the trial or hearing at which it is offered

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36
Q

Hearsay

Statement in earlier trial at same case

A

can be offered as evidence at later trial following appellate reversal

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37
Q

utterances and conduct that are not hearsay

some statements or conduct do not constitute hearsay because the evidence is relevant and is

A

offered to prove something other than the truth of the matter asserted.

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38
Q

When the speaking of words constitutes an act to which, the law attaches legal significance, such as the oral formation of a contract, the words are not — but —

A

are not mere evidence of the act, but the act itself (not heresay)

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39
Q

3 Situations in which the value of the evidence derives from the fact that the words were spoken, not from the truth of the matter asserted. When the words spoken are relevant in and of itself.

A
  1. when words are being offered to show the effects on the listener rather then the truth of the matter asserted
  2. When words or conduct constitute evidence of the declarants state of mind
  3. where words or conduct are not asserting something ofther than what they are offered to prove
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40
Q

Whenever the reaction of a person who heard a statement is relevant to an issue in the case, the statement is not hearsay becasue

A

it is not asserting a fact

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41
Q

When a statement is offered to show the effect on the listener and is also relevant to prove the truth of the matter asserted

A

Problem of limited liability:
-Court can decide to (if requested) give jury limiting instructions
OR
if decided that the limiting instructions are not sufficient to reduce the danger of unfair prejudice, can exclude the evidence

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42
Q

When words or conduct constitute evidence of the declarants state of mind, the statement must be not offered… but for…

A

Not offered to prove the truth of the matter asserted, but the witnesses state of mind

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43
Q

When words or conduct constitute evidence of the declarants state of mind, the evidence has to be

A

circumstantial, not a direct quote statement like “i don’t like defendant”

Typically an ambigous statement

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44
Q

where words or conduct are not asserting something ofther than what they are offered to prove. What is non assertive conduct?

A

The conduct is relevant evidence of the fact they are trying to prove, but the actors do not intend to assert that fact

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45
Q

where words or conduct are not asserting something ofther than what they are offered to prove: Non assertive conduct is merely

A

circumstantial evidence of their state of mind

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46
Q

non assertive conduct

If a person behaves in a way that suggests that they held a certain belief, what needs to be proved

A

the fact that they believed somthing

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47
Q

Asserting that evidence is unfairly prejudicial creates the assumption that

A

the fact is relevant

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48
Q

being charged with having a gun as a felon, what is relevant evidence

A

evidence of a prior felony

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49
Q

How a judge determines if a witness is qualified as an expert

A

Judge can use material to decide, and that material does not need to be admitted into evidence.

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50
Q

Admitting evidence is for

A

the jury not the judge.

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51
Q

Statement

A

A persons
1. oral assertion
2. written assertion
3. nonverbal conduct, if the person intended it as an assertion

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52
Q

declarant

A

means the person who makes a statement

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53
Q

Hearsay: means a statement that:

A
  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
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54
Q

One person removed

A

you saw somthing, you told me you saw it

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55
Q

5 factors that may be problematic with a hearsay statement

A
  1. Percepton,
  2. memory,
  3. sincerity,
  4. narration
  5. comprehension
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56
Q

Sincerity=

A

why are you telling me this

To hurt reputation?

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57
Q

2 people removed

A

someone saw something, told someone, and they told me.

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58
Q

What to do with the five factors for hearsay? (perception, memory, sincerity, narration, comprehension)

A

Apply the 5 factors to each step of hearsay, did each person have all 5 factors?

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59
Q

Hearsay includes

A

all statements unless you are CURRENTLY sitting there testifying

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60
Q

3 statements for hearsay

A
  1. oral assertion
  2. written assertion
  3. nonverbal conduct IF intended as assertion
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61
Q

Hearsay whats the difference between 801 and 802?

A

801- defines it
802- makes it illegal

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62
Q

Hearsay rule 802:
Hearsay is not admissible unless:

A
  1. fed stat
  2. these rules,
  3. rules from sup. ct.
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63
Q

3 examples of nonverbal conduct

A
  1. pointing to
  2. thumbs up
  3. head nod
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64
Q

Hearsay within hearsay

when there is an exception for 1 statement but not the other,

A

the statement is trapped, not admissible

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65
Q

A police record that contains witness statements is what kind of problem?

A

Hearsay within hearsay

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66
Q

Hearsay v. Personal Knowledge Objections

Personal knowledge objection

A

no first hand perception of the facts to which she testifies

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67
Q

Hearsay v. Personal Knowledge Objections

Hearsay Objection

A

the witness purports to repeat an out of court statement

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68
Q

Hearsay v. Personal Knowledge Objections

If the witness quotes or paraphrases an out of court statement

A

the objection is hearsay

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69
Q

Hearsay v. Personal Knowledge Objections

If the witness does not quote or paraphrase, but simply relies on another persons perception as described in an out of court statement

A

the objection is lack of knowledge

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70
Q

Hearsay v. Personal Knowledge Objections

Ask what question to determine the correct objection

A

whether the fact that the witness testified to is litterly the fact the witness percieved. (does ft=fp)
yes: the witness hase pk and objection is earsay
no: the objection is lack of personal knowledge

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71
Q

Offering the proof got the matter asserted, is not true, is not

A

hearsay

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72
Q

if not offered for the truth of the matter asserted, object for

A

relevance

Why are we hearing about it if not for truth of matter asserted?

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73
Q

nonverbal conduct is an assertion if

A
  1. it asserted something
  2. and it was intended to be an assertion
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74
Q

def

assertion

A

conveys or states info

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75
Q

def

statement

A

an oral assertion, written assertion, nonverbal conduct intended as an assertion

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76
Q

with hearsay, we are looking for:

A

1) declarent
2) statement
3) other then while testifying

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77
Q

Primary rationale for excluding hearsay

A

Statements offered for the truth of the matter asserted but made at a time other then while testifying at the current trial or hearing are not capable of immidiate examination regarding
perception, memory, sincerity, and narration

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78
Q

Walking down the hearsay path

1-4

A
  1. Theres a declarant
  2. there is a statement
  3. not while testifying in this trial
  4. being offered to prove truth of the matter asserted
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79
Q

with layers of hearsay, need to have each layer through an

A

exception

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80
Q

typically questions that suggest the answers in the question

A

are a statement

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81
Q

Rule 105 limited admissibility

A

limiting instructions given to the jury to only look at the evidence in a certain context

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82
Q

5 reoccuring patterns of “not offered for the matter for the truth of the matter asserted”

A

1) Independant legal sig/verbal acts
2) The fact the words were spoken
3) effect on the listener
4) declarents state of mind
5) nonassertive words or conduct- not offered for truth of matter asserted

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83
Q

“not offered for the matter for the truth of the matter asserted”

Independat legal significance

A

creating a legal signigicance

ex. create a contract, slander, defemation

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84
Q

I accepted last week v. I accept

A

Hearsay, refrence to the acceptance
v.
not hearsay, legal significance

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85
Q

“not offered for the matter for the truth of the matter asserted”

The fact the words were spoken

A

1) to prove the circumstance = they were alive at the time, they were trapped in a cage
2) Just to prove the words were spoken

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86
Q

“not offered for the matter for the truth of the matter asserted”

Effect on the listener

A

you used words that caused me to do something

87
Q

“not offered for the matter for the truth of the matter asserted”

The declarants state of mind

A

I hate him= did she really hate him though

88
Q

“not offered for the matter for the truth of the matter asserted”

Nonassertive words or conduct… not offered for the truth of the matter asserted

example

A

nailing boards up on business, not proving anything BUT activiating sirens for hurricane is

89
Q

hearsay

everything we constitued as verbal assertion can be

A

substituted for written or nonverbal conduct

90
Q

Evidence for notice=

A

independant legal sig.

91
Q

can get out of hearsay if you have

A

the declarent come in

92
Q

Rule 801 Statements which are not hearsay

A statement that meets the following conditions is not hearsay: An opposing partys statment, The statement is offered aganist an opposing party and:

1-5

A

1) was made by the party in an individual or representative capacity;
2) is one they party manifested that it adopted or believed to be true;
3) was made by a person whom the party authorized to make a statemtn on the subject
4) was made by the parties co-conspirator during and in furhterance of the conspiracy
5) was made by the parties agent or employee on a matter within scope of that relationship and while it existed.

93
Q

801

If a party made a statement

A
  • The opponet is entitled to offer the statement into evidence
  • to prove the truth of ANYTHING relevant
    AKA may produce a witness to testfy about an opponets statement
94
Q

801

requires

A

1: statement made by a party
2: offered by the opponet

95
Q

801

courts do not demand what of the decalarent

A

that they have personal knowledge of the facts contained in the statement

This is the one exception to rule 601 personal knowledge req.

96
Q

801

A parties own statement

A

A party may not offer their own statement under 801

97
Q

801

When a party can offer their own statement

A

when the common law doctrine of “completeness” applies.

98
Q

Common law doctrine of completeness

A
  • If one party offers into evidence 1 part of an oral or written statement or exchange of statements
  • the opponent may offer another statement or part of the exchange if it would put the* already admitted* statement into content or otherwise correct a mistaken impression that may be left with jury
99
Q

Rule 106 Remainder of or Related Statements

if a part introduces all or part of a statements

A
  • an adverse party may req. the intro, at that time, of any other part- or any other statement
  • That fairness ought to be considered at the same time
  • The adverse party may do so over a hearsay objection
100
Q

Unless the completeness doctrine applies

A

a party may not offer her own statements merely because the opponet has offered another of her statements

101
Q

801

statements a party adopts as true

A

Through adoption a statement of one person may be attributed to a party

not hearsay if offered against that party

102
Q

801

statements a party adopts as true: Ask

A

Did the party “appear to accept or adopt” the truth of a statement made by another person

103
Q

For a party to adopt the statement of another

A
  1. he or she must repeat the statement as if it is a fact
    OR
    2, his or her conduct must clearly indicicate the statement as true
104
Q

801

Vicarious Party Statements (authorized and agency statements)

A
  • sometimes peopel authorizes others to speak for them
  • when the authorizing person is a party, the statement of the person authorized to speak is admissible unfer 801
105
Q

The authorized statmenent rule applies to statements both to the

A

outside world and within an organization

ex. corperate spokespersn and corperations internal financial records.

106
Q

A statement “made by a parties agent or employee on a matter within the scope of that relationship and while it existed” is

A

non hearsay, regardless if the agent was authorized to speak on the matter

107
Q

The authorized statement rule does not apply to

A

statements of gov agents in criminal cases (ex. police officers)

108
Q

801

What the court may use to decide if the declarent had authority to speak or the existance and scope of the agency

A

the purported authorized or agency statement itself
- althrough the rule provides that the statements themselves are not sufficent to establish any of these facts

109
Q

801

Co-Conspiritor Statements

A

Creats an exemption from the definition of hearsay for a statement “made by the party’s co-conspirator during and in furtherance of the conspiracy”

110
Q

801

Co-conspirator statements
Several preliminary fact requirements

A

1) There must have been a consipracy
2) the declarant must have been a member of the conspiracy
3) the statement must have been made while the conspiracy was in existance (during its course) AND
4) the statement must have been made in furtherance of the conspiracy

111
Q

Preliminary facts should be decided by the court pursuant to

A

Rule 104

112
Q

Co-conspirator statements

if the facts are no longer true

A

the statement is still admissible

113
Q

Co-conspirator statements

To admit evidence, the court uses what standard for preliminary evidence

A

“more likely then not” standarf that all preliminary facts are true

114
Q

Co-conspirator statements are admissible whether or not

A

consipracy is charged

115
Q

Co-conspirator statements

if declarant is not a party

A

rule still applies

116
Q

Co-conspirator statements

There is no req that the declarent

A

be produced at trial and be made subject to cross examination

117
Q

Hearsay Rule 801(d)

opposing party statement offered against an opposing party is

A

not hearsay

118
Q

Rule 602 Need for Personal Knowledge

A

testify if have personal knowledge

119
Q

Rule 701: opinion testimony by lay witness

A
  • cannot testify to opinion

experts can though

120
Q

Rule 106 Remainder of or Related Statements

A

when 1 party introduces a statement, the adverse party may introduce other parts of the statement to make it fair

in context, can do instantly, takes away delay

121
Q

Rule 104

Who makes preliminary questions

A

the judge

122
Q

silence as an adoption

problematic to bring up when

A

they have been marandized

123
Q

Silence as an adoption

Look for what in criminal cases

A

have they been marandized?

Problematic to bring up if so

124
Q

Rule 801 Exemptions from Hearsay: Prior statements of witness

The declarant….

A
  • testifies
  • is subject to cross examination
  • the statement, is consistant, inconsistnat, identifies a person
125
Q

Rule 801 Exemptions from Hearsay: Prior statements of witness

The decalarent testifies and is subject to cross-examination about a prior statement, and the statement:

A
  1. is inconsistant with the declarants testimony and was given under penelty of perjury at a trial, hearing, or other proceeding or in a disposition;
  2. Is consistant with the declarant’s testimony and is offered to rebut charge that they had improperly testified or rehabilitate their creditability on another ground
  3. identifies a person as someone the declarant percieved earlier.
126
Q

Rule 801 Exemptions from Hearsay: Prior statements of witness

When the statement is consistant with the declarants testimony and is offered to:

A
  1. 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
  2. to rehabilitate the declarants creditability as a witness when attacked on another grounds
127
Q

Some prior statements of witnesses are admissible to prove the truth of what they assert
- Rule 801 creates 3 categories of such statements

A
  1. Statements inconsistant with the witnesses trial testimony
  2. statements consistent with the witness trial testimony, and
  3. statements identifying a person and made after percieving that person
128
Q

Not all prior inconsistant, prior consistant, and prior identification statements qualify as non-hearsay under 801

A

each must meet requirements

129
Q

Rule 801 Exemptions from Hearsay: Prior statements of witness

Two common requirements for prior inconsistant, prior consistant, and prior identification statements

A
  1. The declarant must testify at the trial or hearing, and
  2. the declarant must be subject to cross examination concerning the prior statements
130
Q

Rule 801 Exemptions from Hearsay: Prior statements of witness

When a witness has memory loss

A

They are still subject to cross examination

131
Q

A witness is subject to cross examination if

A

placed on the stand, under oath, and responds willingly to questions

132
Q

Rule 801 Exemptions from Hearsay: Prior statements of witness

Prior identification Req’s

A
  1. 2 common reqs
  2. statement must identify a person as someone the decalarnt percieved earlier
133
Q

Rule 801 Exemptions from Hearsay: Prior statements of witness

Prior identification does not req

A

The witness to testify about the identification

134
Q

Rule 801 Exemptions from Hearsay: Prior statements of witness

The prior identification, must be

A

of a specific person, not about a persons description

Drafters were thinking of line ups

135
Q

Rule 801 Exemptions from Hearsay: Prior statements of witness

2 reasons a party may offer into evidence a witnesses prior inconsistant statement

A
  1. They want the fact-finder to accept the truth of the prior statement in place of the testimony offered at trial (the substantive use)
  2. they want the witness seen as less creditable (impeachment use)
136
Q

Rule 801 Exemptions from Hearsay: Prior statements of witness

The substantive use of prior inconsistant statements req’s

A
  1. the 2 common req’s
  2. The inconsistant statement was made under oath, subject to the penelty of perjury at trial, hearing, or other proceedign or in a deposition
137
Q

Rule 801 Exemptions from Hearsay: Prior statements of witness

Impeachment use of prior inconsistant statements

A

must be offered for a reason other than the matter asserted
(can offer it just to prove that they previously said something different)

138
Q

Rule 613

a) Showing or disclosing the statement during examination

when examining a witness about the witnesses prior statement

A

A party need not show it or disclose its contents to the witness.

But the party must on request, show it or dislose its contents to an adverse party’s attourny,

139
Q

Rule 613

b) extrinsic evidence of a prior inconsistant statement

is admissible only if

A
  1. The witness is given an oppertunity to explain or deny the statement
  2. an adverse party is given the oppertunity to question the witness about it, or if justice so requires
    (does not apply to opposing party statement under 801)
140
Q

Rule 613

Extrinsic evidence is admissible so long as

A
  1. the witness is afforded, at some time during the trial, an oppertunity to explain or deny the statement
    AND
  2. The opponent has a chance to examine the witness
141
Q

Rule 613

If the witness denys the prior inconsistant statement

A

extrisic evidence of the inconsistant statement is allowed

142
Q

Rule 613

A party can offer extrinsic evidence of the inconsistant statement without asking witness about it in cross examination BUT

A

The witness must be given a chance during the trial to explain the inconsistancy or deny the statement was made

143
Q

Rule 613

A party can offer extrinsic evidence of the inconsistant statement without asking witness about it in cross examination
but if the witness cannot be recalled to the stand to explain or deny the statments, the judge may

A

strike the inconsistant evidence

144
Q

Collatoral matter limit on extrinsic evidence of prior inconsistant statements

A

If the inconsistant statement has no bearings on the case the judge may allow cross examination but not to offer extrinsic evidence

145
Q

806

Prior statements of non-testifying declarants sometimes

A

may be offered as bearing on their creditability

146
Q

806: attacking and supporting the declarants creditability

When a hearsay statement or a statement described in 801 has been admitted into evidence, by any evidence that woulf be admissible for those purposes if the declarant had testified as a witness… the court may

A

admit evidence of the declarants inconsistant statement or conduct, regardless of when it occurs or whether the declarant had an oppertunity to explain it or deny it.

147
Q

806: attacking and supporting the declarants creditability

When a hearsay statement or a statement described in 801 has been admitted into evidence, by any evidence that woulf be admissible for those purposes if the declarant had testified as a witness, the court may admit evidence of the declarants inconsistant statement or conduct, regardless of when it occurs or whether the declarant had an oppertunity to explain it or deny it.

If the party whom the statement was admitted called the declarant as a witness, the party may…

A

examine the declarant on the statement as if on cross-examination

148
Q

806: attacking and supporting the declarants creditability

exempts statements of non-testifying declarants from the

A

requirement of an oppertunity to explain or deny the statement

149
Q

806: attacking and supporting the declarants creditability

establishes that extrinsic evidence of the prior statement is admissible to impeach even though

A

there is no means of providing them with an oppertunity to explain or deny the statement

150
Q

Note on limited admissibility: rule 806

When a prior inconsistent statement is only admissible to impeach, the trial court will (upon request),

A

instruct the jury about the limited purpose for which the evidence may be considered.

151
Q

Note on limited admissibility: rule 806

When a prior inconsistent statement is only admissible to impeach, the trial court will (upon request),instruct the jury about the limited purpose for which the evidence may be considered.
but the jury is likely to use it for its substantive purposes, in these cases…

A

the objecting party may ask the court to exclude the evidence altogether pursuant to rule 403 “dangers”

152
Q

Exceptions to the hearsay rule: form and structure

The exceptions to the hearsay rule are divided into 2 basic groups:

A
  1. (804) apply only if the declarant is “unavailable”
  2. (803 and 807) apply whether the witness is available or not
153
Q

Rule 803 Exception to hearsay whether declarant avail as witness or not

2 times not excluded by rule against hearsay, regarless of whether the declarant is available as a witness

A
  1. Present Sense Impression
  2. Excited Utterance
154
Q

Rule 803 Exception to hearsay whether declarant avail as witness or not

2 times not excluded by rule against hearsay, regarless of whether the declarant is available as a witness: Present Sense Impression

A

A statement describing or explaining an event or condition, made while or imediately after the declarant precieved it.

155
Q

Rule 803 Exception to hearsay whether declarant avail as witness or not

2 times not excluded by rule against hearsay, regarless of whether the declarant is available as a witness: Excited Utterance

A

A statement relating to a startling event or condition, made while the declarant was under the stress or excitement that caused it.

156
Q

Excited Utterances: Rule 803

Admits statments made by a person who

A

was under the stress of a startling event, which the court believes to be both sincere and accurate

157
Q

Excited Utterances: Rule 803

3 Prerequisites

A
  1. There must be a “starling event or condition”
  2. The statement must “relate” to that event or condition; and
  3. The declarant must have been “under the stress or excitement that it caused” when she made the statement
158
Q

The existance or non-existance of preliminary facts must be determined by

A

the court

159
Q

Excited Utterances: Rule 803

time limit
- generally
- when lengthen time
- when give additional time

A

no clear or percise limit
- generally, if sufficent time has passed to give a person time to reflect on the event, the statement will not qualify
- cts tend to lengthen time if directly involved in exciting event
- cts tend to allow for the passage of additional time if the event is severe or unusual

160
Q

Present sense impressions: Rule 803

Creates an exception for a statement

A

describing or explaining an event or condition made while the declarant was percieving the event or condition, or immediately thereafter

161
Q

Present sense impressions: Rule 803

Requirements

A
  1. There must have been an “event” or “condition”
  2. The statement must describe or explain that “event” or “condition”
  3. The declarant must have been made the statement “while or immediately after percieving it”
162
Q

Present sense impressions: Rule 803

The statement can be made to

A

anyone, they did not need to see the event as well

163
Q

Present sense impressions: Rule 803

Difference between excited utterance

A

the condition or event need not be “startling” and the declarant need not be excited

164
Q

excited utterance requires a statement relate to

A

a startling event or condition

165
Q

Present Sense requires a statement to describe

A

an event or condition

166
Q

Timing of a present sense impression

A

must be made very quickly

167
Q

If a question does not tell you how much time passes between the event or observation and the statement, the foundation is missing for a

A

present sense impression

168
Q

Excited Utterance

If a question involves an exciting event, the statement must

A

relate to the exciting event to be admissible

169
Q

803: Statements concerning state of mind and physical condition

2 types of statements not excluded by hearsay, regardless of whether the declarant is available as a witness

A
  1. Then-existing mental, emotional, or physical condition
  2. Statement made for medical diagnosis or treatment
170
Q

803: Statements concerning state of mind and physical condition

2 types of statements not excluded by hearsay, regardless of whether the declarant is available as a witness: Then existing mental, emotional, or physical condition

A

A statement of the declarants 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)

171
Q

803: Statements concerning state of mind and physical condition

2 types of statements not excluded by hearsay, regardless of whether the declarant is available as a witness: Statement made for medical diagosis or treatment
A statement that:

A
  1. is made for and is reasonably pertant to medical diagosis or treatment; and
  2. describes medical history; past or present symtoms or sensations, their inception, or their general cause
172
Q

803: Statements concerning state of mind and physical condition

Then existing mental, emotional, or physical condition does not include

A

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

173
Q

803: Then existing mental, emotional, or physical condition

difference to “state of mind” utterance

A

This is hearsay, the previoud “state of mind” utterance was not hearsay

174
Q

Then existing mental, emotional, or physical condition

3 Limitations

A
  1. Must be of the decalarants then-existing state of mind
  2. Backward looking statements are not admissible
  3. but, ones present state of mind about the future does qualify
175
Q

Then existing mental, emotional, or physical condition

includes statements of

A

emotion, physical sensations (hunger thirst, pain), and intentions (plans, desires, needs)

176
Q

Then existing mental, emotional, or physical condition

Hillmon rule: a statement of intention can be used to prove

A

the declarant acted in accord with her intention

177
Q

Then existing mental, emotional, or physical condition

A statement of intention is admissible to prove both

A
  1. the speaker had the intention
    AND
  2. The person acted upon that intention
178
Q

Then existing mental, emotional, or physical condition

A state of mind statement cannot be used to prove

A

the conduct of another

179
Q

Then existing mental, emotional, or physical condition

Not allowed to admit statements concerning a fact remembered or believed if offer to prove the

A

fact remembered or believed

180
Q

Then existing mental, emotional, or physical condition

Not allowed to admit statements concerning a fact remembered or believed if offer to prove the fact remembered or believed
EXCEPTION : A statement of memory or belief may be admitted if

A

it relates to the validity or terms of the declarants will

181
Q

803: Statement for purposes of medical diagnosis or treatment

An exception for a statement that is

A
  1. made for and is reasonably pertinent to medical diagnosis or treatment, AND
  2. describes medical history, past or present symptioms, their sensations, their inceptions, or general cause
182
Q

803: Statement for purposes of medical diagnosis or treatment

Exception only covers statements that are reasonably pertinent to

A

medical diagosis or treatment
(includes discription of events ex. I was riding my bike when a car hit me”

183
Q

803: Statement for purposes of medical diagnosis or treatment

Applies to statements made for purpose of obtaining

A

medical diagnosis or treatment
NOT to statements giving medical diagnosis or treatment

184
Q

Then existing mental, emotional, or physical condition

To be admissible the statements must assert

A

the declarants state of mind at that moment

185
Q

803

statements not excluded by hearsay, regardless of whether the declarant is available as a witness: Recorded Recollection
A record that:

A
  1. is on a matter the witness once knew but now cannot recall well enough to testify fully and accuarately
  2. was made or adopted by the witness when the matter was fresh in the witness memory and
  3. accurately reflects the witness’s knowledge
186
Q

803

statements not excluded by hearsay, regardless of whether the declarant is available as a witness: Recorded Recollection
If admitted, the record may

A

be read into evidence but may be recieved as an exhibit only if it is offered by an adverse party

187
Q

803: Recorded Recollection

Provides that if all 4 condidtions are met, the recrding may be read to the jury:

A
  1. the witness must once had personal knowledge about the matter,
  2. the witness must now not be able to recall well enough to testify fully and accurately
  3. The memorandum or record of the witness’s knowledge must have been made or adopted by the witness when the matter was fresh in the witness’s memory AND
  4. the memorandum or record must reflect the witnesses prior knowledge accurately
188
Q

803: recorded recollection

statements not excluded by hearsay, regardless of whether the declarant is available as a witness: Recorded Recollection

The witness must testify that

A
  1. she once had personal knowledge about the event or condition
  2. that when she made or adopted the memorandum or record, the matter was fresh in her mind
  3. the record accuately reflects what she knew
189
Q

803: recorded recollection

What it means to adopt the record

A

they didnt actually make the memorandum or record, but she read it when the matter was fresh in her mind and concluded it was correct

190
Q

The recorded recollection doctrine is merely a substitute for

A

oral testimony

191
Q

The recorded recollection doctrine is merely a substitute for oral testimony, this means

A

if the witnesses recollection is good enough to permit full and accurate testimony, the exception will not apply and the jury must settle for the witnesses oral testimony

192
Q

Recorded recollection

If teh opponent wishes to offer the memo or record into evidence,

A

the rule allows it. Making it an exhibit that the jurors can bring into the deliberation room

193
Q

Recorded recollection

The person whose prior knowledge is preserved in the memo or record must

A

testify in order for the exception to apply

194
Q

Recorded recollection

Who must pursuade the court that each prerquisites are satisafied?

A

The proponent of the evidence, only can be the declarant (the one who made or adopted the mem or record.)

195
Q

612: Wrting used to refresh a witnesses memory

gives an adverse party certain opetions when a witness uses writing to refresh memory

A
  1. while testifying
  2. before testifying if the court decides that justice requires a party to have those options
196
Q

612: Wrting used to refresh a witnesses memory

An adverse party is entitled to have the writing

A
  1. produced at hearing
  2. to inspect it
  3. to cross examine the witness about it
  4. introduce in evidence any portion that relates to witness testimony
197
Q

612: Wrting used to refresh a witnesses memory

If the producing party claims that the writing includes unrelated matter…

A

the court must examinine the writing in camera, delete any unrelated portions, and order that the rest be deliveted to the adverse party
- any portion deleted over objection must be preserved for the record

198
Q

612: Wrting used to refresh a witnesses memory

Failure to produce or deliver the writing

A

if a writing is not produced or is not deliveted as ordered, the court may issue any appropriate order
- but if the prosecution does not comply in a criminal case, the court must strike the witnesses testimony or if justice req’s declare a mistrial

199
Q

612: Wrting used to refresh a witnesses memory

This rule allows the opponent to examine any writing used to refresh the recollection of a witness used

A
  • during testimony
  • to refresh the witnesses recollection
200
Q

612: Wrting used to refresh a witnesses memory

this rule allows the adverse party to

A
  1. cross examine the witness concerning hte writing
  2. introduce into evidence those parts of the writing that relates to witness testimony
  3. determine if the witness is only repeating what the document says
201
Q

612: Wrting used to refresh a witnesses memory

If the court upon examination of the document determines the witness is only repeating what the document says

A

judge may strike the testimony on grounds of admissible hearsay

202
Q

612: Wrting used to refresh a witnesses memory

If the statement was not recorded by the declarant, what needs to be true?

A

the declarant needs to adopt the statement as true to be admissible

203
Q

612: Wrting used to refresh a witnesses memory

Why the declarant must testify for past recorded recollection to be admissible

A

Only the declarent can establish that he or she cannot recall enough to testify accurately

204
Q

612: Wrting used to refresh a witnesses memory

Whatever is used to refresh recollection is NOT

A

evidence

205
Q

admissibility of a document means that the jury

A

can see it

206
Q

We do not need to offer evidence for the matter asserted, if we dont then..

A

its not hearsay.

207
Q

Extrinsic evidence

A

evidence other then direct testimony of the declarant
- other then confronting the witness about it

208
Q

613: witness prior statement

when showing or disclosing the statement during examination, at some point the opponent must have

A

an oppertunity to explain or deny the statement

209
Q

612: witness prior statement

when showing or disclosing the statement during examination, at some point the opponent must have the oppertunity to explain or deny the statement.. best way to do this

A

put witness under subpenoa to stay at trial to explain or deny, usually for continuing questions after more evidence proven

210
Q

613: witness prior statement

collatoral matter as a danger

A

collatoral matter would be wasting time

211
Q

806: attacking and supporting the declarant

when a hearsay statement, has been admitted into evidence
the declarants creditability may be attacked
by

A

any evidence that would be admissible (if testified as a witness)

212
Q

806: attacking and supporting the declarant

when a hearsay statement, has been admitted into evidence
the declarants creditability may be attacked
by any evidence that would be admissible (if testified as a witness)

The ct may admit evidence of the delarants inconsistant statement regardless of

A

whether the declarant had an oppertunity to explain or deny

213
Q

806: attacking and supporting the declarant

Allows evdence to

A

attack the credtability of a declarant whose hearsay has been admitted into evidence without letting them explainor deny the statement

Evidence (8 decks)

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