Hearsay Flashcards
rule 804: someone who believes they are about to die
hearsay is admissible if by someone who believed their death was imininent
hearsay
“dying declaration”
hearsay is admissible if it was made by the speaker while believing his death to be imminent
Preliminary fact to a “dying declaraction”
The victims belief that his death was imminent
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
No. the court cannot inform that it has a proponderance of the evidence for the issue.
why the court cannot inform that it has a proponderance of the evidence for the issue.
it would be an improper comment on the evidence that would risk unduly prejudicing the jury against the defendant
The Hearsay rule occurs when someone is
once removed
Hearsay
Someone is once removed when
they obtained information about the event, not from observing the event, but from another person who claims to have observed it.
Hearsay
5 cateogories of possible sources of innaccurate information:
- Perception
- memory
- sincerity
- narration
- comprehension
4 cateogories of possible sources of innaccurate information:
Perception
the accuracy of the sources perception of the event
4 cateogories of possible sources of innaccurate information:
Memory
the accuracy of the sources recollection of the event
4 cateogories of possible sources of innaccurate information:
Sincerity
the sources honesty about the event
4 cateogories of possible sources of innaccurate information:
Narration
The adequacy of the sources communication of her thoughts
hearsay
twice removed
witness source, got their knowledge through another source
5 factors of reliability
- perception
- memory
- sincerity
- narration
- comprehension
Hearsay rule does not apply to statements made by witnesses in
the court proceeding that is CURRENTLY taking place
Hearsay
Problem (the law has) when the person testifying is the source who made the out of court statement
the passage of time between making the statement andits repitition in court can effect hte memory or sincierity of the event
Rule 801 (hearsay) definition
Statement
3 types
A person’s oral assertion, witten asserition, or nonverbal conduct, if the person intended it as an assertion
Rule 801 (hearsay) definition
Declarant
the person who made the statement
Rule 801 (hearsay) definition
Hearsay, means a statement that:
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
Hearsay not admissible unless the following provides otherwise
1) fed. stat.
2) a rule
3) other supreme court rules
4 facts that must be true, for evidence to be hearsay
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”
3 things that count of a statement
1) a persons oral assertion
2) A persons written assertion
3) A persons nonverbal conduct if the person intended it as an assertion
Hearsay
Whether words or conduct, a statment must be an
assertion
Hearsay
does a statement need to have words?
no it can be conduct
if words or conduct form an assertion, they…
constitute a statement and satisfy the first componet of the hearsay def.
Hearsay
To be an assertion, the words or conduct must be an attempt to
share information
Not all –, or –, —,— are statements because they are not always trying to assert something
questions, orders, instructions, commands
conduct not intended to assert a fact
is not a statement
therefore, not hearsay
Declarant
the person who made the out-of-court statement
Hearsay doctrine revolves around the
declarent, not the person who testifies in court
Sometimes the declarant and the witness is the same person
example
You told someone somthing that someone else said
Can a mechanical device or animal be a declarant?
how are they analyzed?
no, has to be a person making the statement
- Would be analyzed through relevance, probative value, and cross-examination
Hearsay
A video recording or megaphone
Is valid under hearsay, using a device to make the statement louder or keep it
The statement must have been made by the declarant… not while
testifying at the current trial.
A statement made at court can qualify as hearsay when
it is any statemetn not made at the trial or hearing at which it is offered
Hearsay
Statement in earlier trial at same case
can be offered as evidence at later trial following appellate reversal
utterances and conduct that are not hearsay
some statements or conduct do not constitute hearsay because the evidence is relevant and is
offered to prove something other than the truth of the matter asserted.
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 —
are not mere evidence of the act, but the act itself (not heresay)
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.
- when words are being offered to show the effects on the listener rather then the truth of the matter asserted
- When words or conduct constitute evidence of the declarants state of mind
- where words or conduct are not asserting something ofther than what they are offered to prove
Whenever the reaction of a person who heard a statement is relevant to an issue in the case, the statement is not hearsay becasue
it is not asserting a fact
When a statement is offered to show the effect on the listener and is also relevant to prove the truth of the matter asserted
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
When words or conduct constitute evidence of the declarants state of mind, the statement must be not offered… but for…
Not offered to prove the truth of the matter asserted, but the witnesses state of mind
When words or conduct constitute evidence of the declarants state of mind, the evidence has to be
circumstantial, not a direct quote statement like “i don’t like defendant”
Typically an ambigous statement
where words or conduct are not asserting something ofther than what they are offered to prove. What is non assertive conduct?
The conduct is relevant evidence of the fact they are trying to prove, but the actors do not intend to assert that fact
where words or conduct are not asserting something ofther than what they are offered to prove: Non assertive conduct is merely
circumstantial evidence of their state of mind
non assertive conduct
If a person behaves in a way that suggests that they held a certain belief, what needs to be proved
the fact that they believed somthing
Asserting that evidence is unfairly prejudicial creates the assumption that
the fact is relevant
being charged with having a gun as a felon, what is relevant evidence
evidence of a prior felony
How a judge determines if a witness is qualified as an expert
Judge can use material to decide, and that material does not need to be admitted into evidence.
Admitting evidence is for
the jury not the judge.
Statement
A persons
1. oral assertion
2. written assertion
3. nonverbal conduct, if the person intended it as an assertion
declarant
means the person who makes a statement
Hearsay: means a statement that:
- The declarant does not make while testifying at the current trial or hearing, and
- a party offers in evidence to prove the truth of the matter asserted in the statement
One person removed
you saw somthing, you told me you saw it
5 factors that may be problematic with a hearsay statement
- Percepton,
- memory,
- sincerity,
- narration
- comprehension
Sincerity=
why are you telling me this
To hurt reputation?
2 people removed
someone saw something, told someone, and they told me.
What to do with the five factors for hearsay? (perception, memory, sincerity, narration, comprehension)
Apply the 5 factors to each step of hearsay, did each person have all 5 factors?
Hearsay includes
all statements unless you are CURRENTLY sitting there testifying
3 statements for hearsay
- oral assertion
- written assertion
- nonverbal conduct IF intended as assertion
Hearsay whats the difference between 801 and 802?
801- defines it
802- makes it illegal
Hearsay rule 802:
Hearsay is not admissible unless:
- fed stat
- these rules,
- rules from sup. ct.
3 examples of nonverbal conduct
- pointing to
- thumbs up
- head nod
Hearsay within hearsay
when there is an exception for 1 statement but not the other,
the statement is trapped, not admissible
A police record that contains witness statements is what kind of problem?
Hearsay within hearsay
Hearsay v. Personal Knowledge Objections
Personal knowledge objection
no first hand perception of the facts to which she testifies
Hearsay v. Personal Knowledge Objections
Hearsay Objection
the witness purports to repeat an out of court statement
Hearsay v. Personal Knowledge Objections
If the witness quotes or paraphrases an out of court statement
the objection is hearsay
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
the objection is lack of knowledge
Hearsay v. Personal Knowledge Objections
Ask what question to determine the correct objection
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
Offering the proof got the matter asserted, is not true, is not
hearsay
if not offered for the truth of the matter asserted, object for
relevance
Why are we hearing about it if not for truth of matter asserted?
nonverbal conduct is an assertion if
- it asserted something
- and it was intended to be an assertion
def
assertion
conveys or states info
def
statement
an oral assertion, written assertion, nonverbal conduct intended as an assertion
with hearsay, we are looking for:
1) declarent
2) statement
3) other then while testifying
Primary rationale for excluding hearsay
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
Walking down the hearsay path
1-4
- Theres a declarant
- there is a statement
- not while testifying in this trial
- being offered to prove truth of the matter asserted
with layers of hearsay, need to have each layer through an
exception
typically questions that suggest the answers in the question
are a statement
Rule 105 limited admissibility
limiting instructions given to the jury to only look at the evidence in a certain context
5 reoccuring patterns of “not offered for the matter for the truth of the matter asserted”
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
“not offered for the matter for the truth of the matter asserted”
Independat legal significance
creating a legal signigicance
ex. create a contract, slander, defemation
I accepted last week v. I accept
Hearsay, refrence to the acceptance
v.
not hearsay, legal significance
“not offered for the matter for the truth of the matter asserted”
The fact the words were spoken
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
“not offered for the matter for the truth of the matter asserted”
Effect on the listener
you used words that caused me to do something
“not offered for the matter for the truth of the matter asserted”
The declarants state of mind
I hate him= did she really hate him though
“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
nailing boards up on business, not proving anything BUT activiating sirens for hurricane is
hearsay
everything we constitued as verbal assertion can be
substituted for written or nonverbal conduct
Evidence for notice=
independant legal sig.
can get out of hearsay if you have
the declarent come in
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
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.
801
If a party made a statement
- 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
801
requires
1: statement made by a party
2: offered by the opponet
801
courts do not demand what of the decalarent
that they have personal knowledge of the facts contained in the statement
This is the one exception to rule 601 personal knowledge req.
801
A parties own statement
A party may not offer their own statement under 801
801
When a party can offer their own statement
when the common law doctrine of “completeness” applies.
Common law doctrine of completeness
- 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
Rule 106 Remainder of or Related Statements
if a part introduces all or part of a statements
- 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
Unless the completeness doctrine applies
a party may not offer her own statements merely because the opponet has offered another of her statements
801
statements a party adopts as true
Through adoption a statement of one person may be attributed to a party
not hearsay if offered against that party
801
statements a party adopts as true: Ask
Did the party “appear to accept or adopt” the truth of a statement made by another person
For a party to adopt the statement of another
- 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
801
Vicarious Party Statements (authorized and agency statements)
- 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
The authorized statmenent rule applies to statements both to the
outside world and within an organization
ex. corperate spokespersn and corperations internal financial records.
A statement “made by a parties agent or employee on a matter within the scope of that relationship and while it existed” is
non hearsay, regardless if the agent was authorized to speak on the matter
The authorized statement rule does not apply to
statements of gov agents in criminal cases (ex. police officers)
801
What the court may use to decide if the declarent had authority to speak or the existance and scope of the agency
the purported authorized or agency statement itself
- althrough the rule provides that the statements themselves are not sufficent to establish any of these facts
801
Co-Conspiritor Statements
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”
801
Co-conspirator statements
Several preliminary fact requirements
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
Preliminary facts should be decided by the court pursuant to
Rule 104
Co-conspirator statements
if the facts are no longer true
the statement is still admissible
Co-conspirator statements
To admit evidence, the court uses what standard for preliminary evidence
“more likely then not” standarf that all preliminary facts are true
Co-conspirator statements are admissible whether or not
consipracy is charged
Co-conspirator statements
if declarant is not a party
rule still applies
Co-conspirator statements
There is no req that the declarent
be produced at trial and be made subject to cross examination
Hearsay Rule 801(d)
opposing party statement offered against an opposing party is
not hearsay
Rule 602 Need for Personal Knowledge
testify if have personal knowledge
Rule 701: opinion testimony by lay witness
- cannot testify to opinion
experts can though
Rule 106 Remainder of or Related Statements
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
Rule 104
Who makes preliminary questions
the judge
silence as an adoption
problematic to bring up when
they have been marandized
Silence as an adoption
Look for what in criminal cases
have they been marandized?
Problematic to bring up if so
Rule 801 Exemptions from Hearsay: Prior statements of witness
The declarant….
- testifies
- is subject to cross examination
- the statement, is consistant, inconsistnat, identifies a person
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:
- is inconsistant with the declarants testimony and was given under penelty of perjury at a trial, hearing, or other proceeding or in a disposition;
- 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
- identifies a person as someone the declarant percieved earlier.
Rule 801 Exemptions from Hearsay: Prior statements of witness
When the statement is consistant with the declarants testimony and is offered 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
- to rehabilitate the declarants creditability as a witness when attacked on another grounds
Some prior statements of witnesses are admissible to prove the truth of what they assert
- Rule 801 creates 3 categories of such statements
- Statements inconsistant with the witnesses trial testimony
- statements consistent with the witness trial testimony, and
- statements identifying a person and made after percieving that person
Not all prior inconsistant, prior consistant, and prior identification statements qualify as non-hearsay under 801
each must meet requirements
Rule 801 Exemptions from Hearsay: Prior statements of witness
Two common requirements for prior inconsistant, prior consistant, and prior identification statements
- The declarant must testify at the trial or hearing, and
- the declarant must be subject to cross examination concerning the prior statements
Rule 801 Exemptions from Hearsay: Prior statements of witness
When a witness has memory loss
They are still subject to cross examination
A witness is subject to cross examination if
placed on the stand, under oath, and responds willingly to questions
Rule 801 Exemptions from Hearsay: Prior statements of witness
Prior identification Req’s
- 2 common reqs
- statement must identify a person as someone the decalarnt percieved earlier
Rule 801 Exemptions from Hearsay: Prior statements of witness
Prior identification does not req
The witness to testify about the identification
Rule 801 Exemptions from Hearsay: Prior statements of witness
The prior identification, must be
of a specific person, not about a persons description
Drafters were thinking of line ups
Rule 801 Exemptions from Hearsay: Prior statements of witness
2 reasons a party may offer into evidence a witnesses prior inconsistant statement
- They want the fact-finder to accept the truth of the prior statement in place of the testimony offered at trial (the substantive use)
- they want the witness seen as less creditable (impeachment use)
Rule 801 Exemptions from Hearsay: Prior statements of witness
The substantive use of prior inconsistant statements req’s
- the 2 common req’s
- The inconsistant statement was made under oath, subject to the penelty of perjury at trial, hearing, or other proceedign or in a deposition
Rule 801 Exemptions from Hearsay: Prior statements of witness
Impeachment use of prior inconsistant statements
must be offered for a reason other than the matter asserted
(can offer it just to prove that they previously said something different)
Rule 613
a) Showing or disclosing the statement during examination
when examining a witness about the witnesses prior statement
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,
Rule 613
b) extrinsic evidence of a prior inconsistant statement
is admissible only if
- The witness is given an oppertunity to explain or deny the statement
- 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)
Rule 613
Extrinsic evidence is admissible so long as
- the witness is afforded, at some time during the trial, an oppertunity to explain or deny the statement
AND - The opponent has a chance to examine the witness
Rule 613
If the witness denys the prior inconsistant statement
extrisic evidence of the inconsistant statement is allowed
Rule 613
A party can offer extrinsic evidence of the inconsistant statement without asking witness about it in cross examination BUT
The witness must be given a chance during the trial to explain the inconsistancy or deny the statement was made
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
strike the inconsistant evidence
Collatoral matter limit on extrinsic evidence of prior inconsistant statements
If the inconsistant statement has no bearings on the case the judge may allow cross examination but not to offer extrinsic evidence
806
Prior statements of non-testifying declarants sometimes
may be offered as bearing on their creditability
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.
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…
examine the declarant on the statement as if on cross-examination
806: attacking and supporting the declarants creditability
exempts statements of non-testifying declarants from the
requirement of an oppertunity to explain or deny the statement
806: attacking and supporting the declarants creditability
establishes that extrinsic evidence of the prior statement is admissible to impeach even though
there is no means of providing them with an oppertunity to explain or deny the statement
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.
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…
the objecting party may ask the court to exclude the evidence altogether pursuant to rule 403 “dangers”
Exceptions to the hearsay rule: form and structure
The exceptions to the hearsay rule are divided into 2 basic groups:
- (804) apply only if the declarant is “unavailable”
- (803 and 807) apply whether the witness is available or not
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
- Excited Utterance
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 statement describing or explaining an event or condition, made while or imediately after the declarant precieved it.
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 statement relating to a startling event or condition, made while the declarant was under the stress or excitement that caused it.
Excited Utterances: Rule 803
Admits statments made by a person who
was under the stress of a startling event, which the court believes to be both sincere and accurate
Excited Utterances: Rule 803
3 Prerequisites
- There must be a “starling event or condition”
- The statement must “relate” to that event or condition; and
- The declarant must have been “under the stress or excitement that it caused” when she made the statement
The existance or non-existance of preliminary facts must be determined by
the court
Excited Utterances: Rule 803
time limit
- generally
- when lengthen time
- when give additional time
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
Present sense impressions: Rule 803
Creates an exception for a statement
describing or explaining an event or condition made while the declarant was percieving the event or condition, or immediately thereafter
Present sense impressions: Rule 803
Requirements
- There must have been an “event” or “condition”
- The statement must describe or explain that “event” or “condition”
- The declarant must have been made the statement “while or immediately after percieving it”
Present sense impressions: Rule 803
The statement can be made to
anyone, they did not need to see the event as well
Present sense impressions: Rule 803
Difference between excited utterance
the condition or event need not be “startling” and the declarant need not be excited
excited utterance requires a statement relate to
a startling event or condition
Present Sense requires a statement to describe
an event or condition
Timing of a present sense impression
must be made very quickly
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
present sense impression
Excited Utterance
If a question involves an exciting event, the statement must
relate to the exciting event to be admissible
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
- Statement made for medical diagnosis or treatment
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 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)
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:
- is made for and is reasonably pertant to medical diagosis or treatment; and
- describes medical history; past or present symtoms or sensations, their inception, or their general cause
803: Statements concerning state of mind and physical condition
Then existing mental, emotional, or physical condition does not include
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
803: Then existing mental, emotional, or physical condition
difference to “state of mind” utterance
This is hearsay, the previoud “state of mind” utterance was not hearsay
Then existing mental, emotional, or physical condition
3 Limitations
- Must be of the decalarants then-existing state of mind
- Backward looking statements are not admissible
- but, ones present state of mind about the future does qualify
Then existing mental, emotional, or physical condition
includes statements of
emotion, physical sensations (hunger thirst, pain), and intentions (plans, desires, needs)
Then existing mental, emotional, or physical condition
Hillmon rule: a statement of intention can be used to prove
the declarant acted in accord with her intention
Then existing mental, emotional, or physical condition
A statement of intention is admissible to prove both
- the speaker had the intention
AND - The person acted upon that intention
Then existing mental, emotional, or physical condition
A state of mind statement cannot be used to prove
the conduct of another
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
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
it relates to the validity or terms of the declarants will
803: Statement for purposes of medical diagnosis or treatment
An exception for a statement that is
- made for and is reasonably pertinent to medical diagnosis or treatment, AND
- describes medical history, past or present symptioms, their sensations, their inceptions, or general cause
803: Statement for purposes of medical diagnosis or treatment
Exception only covers statements that are reasonably pertinent to
medical diagosis or treatment
(includes discription of events ex. I was riding my bike when a car hit me”
803: Statement for purposes of medical diagnosis or treatment
Applies to statements made for purpose of obtaining
medical diagnosis or treatment
NOT to statements giving medical diagnosis or treatment
Then existing mental, emotional, or physical condition
To be admissible the statements must assert
the declarants state of mind at that moment
803
statements not excluded by hearsay, regardless of whether the declarant is available as a witness: Recorded Recollection
A record that:
- is on a matter the witness once knew but now cannot recall well enough to testify fully and accuarately
- was made or adopted by the witness when the matter was fresh in the witness memory and
- accurately reflects the witness’s knowledge
803
statements not excluded by hearsay, regardless of whether the declarant is available as a witness: Recorded Recollection
If admitted, the record may
be read into evidence but may be recieved as an exhibit only if it is offered by an adverse party
803: Recorded Recollection
Provides that if all 4 condidtions are met, the recrding may be read to the jury:
- the witness must once had personal knowledge about the matter,
- the witness must now not be able to recall well enough to testify fully and accurately
- 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
- the memorandum or record must reflect the witnesses prior knowledge accurately
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
- she once had personal knowledge about the event or condition
- that when she made or adopted the memorandum or record, the matter was fresh in her mind
- the record accuately reflects what she knew
803: recorded recollection
What it means to adopt the record
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
The recorded recollection doctrine is merely a substitute for
oral testimony
The recorded recollection doctrine is merely a substitute for oral testimony, this means
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
Recorded recollection
If teh opponent wishes to offer the memo or record into evidence,
the rule allows it. Making it an exhibit that the jurors can bring into the deliberation room
Recorded recollection
The person whose prior knowledge is preserved in the memo or record must
testify in order for the exception to apply
Recorded recollection
Who must pursuade the court that each prerquisites are satisafied?
The proponent of the evidence, only can be the declarant (the one who made or adopted the mem or record.)
612: Wrting used to refresh a witnesses memory
gives an adverse party certain opetions when a witness uses writing to refresh memory
- while testifying
- before testifying if the court decides that justice requires a party to have those options
612: Wrting used to refresh a witnesses memory
An adverse party is entitled to have the writing
- produced at hearing
- to inspect it
- to cross examine the witness about it
- introduce in evidence any portion that relates to witness testimony
612: Wrting used to refresh a witnesses memory
If the producing party claims that the writing includes unrelated matter…
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
612: Wrting used to refresh a witnesses memory
Failure to produce or deliver the writing
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
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
- during testimony
- to refresh the witnesses recollection
612: Wrting used to refresh a witnesses memory
this rule allows the adverse party to
- cross examine the witness concerning hte writing
- introduce into evidence those parts of the writing that relates to witness testimony
- determine if the witness is only repeating what the document says
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
judge may strike the testimony on grounds of admissible hearsay
612: Wrting used to refresh a witnesses memory
If the statement was not recorded by the declarant, what needs to be true?
the declarant needs to adopt the statement as true to be admissible
612: Wrting used to refresh a witnesses memory
Why the declarant must testify for past recorded recollection to be admissible
Only the declarent can establish that he or she cannot recall enough to testify accurately
612: Wrting used to refresh a witnesses memory
Whatever is used to refresh recollection is NOT
evidence
admissibility of a document means that the jury
can see it
We do not need to offer evidence for the matter asserted, if we dont then..
its not hearsay.
Extrinsic evidence
evidence other then direct testimony of the declarant
- other then confronting the witness about it
613: witness prior statement
when showing or disclosing the statement during examination, at some point the opponent must have
an oppertunity to explain or deny the statement
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
put witness under subpenoa to stay at trial to explain or deny, usually for continuing questions after more evidence proven
613: witness prior statement
collatoral matter as a danger
collatoral matter would be wasting time
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)
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
whether the declarant had an oppertunity to explain or deny
806: attacking and supporting the declarant
Allows evdence to
attack the credtability of a declarant whose hearsay has been admitted into evidence without letting them explainor deny the statement
