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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

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

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.

51
Q

Statement

A

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

52
Q

declarant

A

means the person who makes a statement

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
54
Q

One person removed

A

you saw somthing, you told me you saw it

55
Q

5 factors that may be problematic with a hearsay statement

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

Sincerity=

A

why are you telling me this

To hurt reputation?

57
Q

2 people removed

A

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

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?

59
Q

Hearsay includes

A

all statements unless you are CURRENTLY sitting there testifying

60
Q

3 statements for hearsay

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

Hearsay whats the difference between 801 and 802?

A

801- defines it
802- makes it illegal

62
Q

Hearsay rule 802:
Hearsay is not admissible unless:

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

3 examples of nonverbal conduct

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

Hearsay within hearsay

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

A

the statement is trapped, not admissible

65
Q

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

A

Hearsay within hearsay

66
Q

Hearsay v. Personal Knowledge Objections

Personal knowledge objection

A

no first hand perception of the facts to which she testifies

67
Q

Hearsay v. Personal Knowledge Objections

Hearsay Objection

A

the witness purports to repeat an out of court statement

68
Q

Hearsay v. Personal Knowledge Objections

If the witness quotes or paraphrases an out of court statement

A

the objection is hearsay

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

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

71
Q

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

A

hearsay

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?

73
Q

nonverbal conduct is an assertion if

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

def

assertion

A

conveys or states info

75
Q

def

statement

A

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

76
Q

with hearsay, we are looking for:

A

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

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

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
79
Q

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

A

exception

80
Q

typically questions that suggest the answers in the question

A

are a statement

81
Q

Rule 105 limited admissibility

A

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

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

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

84
Q

I accepted last week v. I accept

A

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

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

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
A

Evidence (6 decks)

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