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EVIDENCE > HEARSAY > Flashcards

HEARSAY Flashcards

1
Q

Rule 602: Personal Knowledge

A

A witness may testify to matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter

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2
Q

Lay Witness (Rule 701)

A

Based on testimony
1. Rationally based on witness’s firsthand perception
2. Helpful to understanding witness’s testimony in determining fact in issue AND
3. Not based on scientific, technical or other specialized knowledge

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3
Q

Expert Witness Testimony (Rule 702)

A
  1. Witness who is qualified as an expert by knowledge, skill, experience, training or education
  2. Testimony is based on sufficient facts or data
  3. Testimony is the product of reliable principals and methods AND
  4. The expert has reliably applied the principals and methods of the facts of the case
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4
Q

Bases of Expert’s Testimony (Rule 703)

A
  1. Facts or data that expert has been made aware of or personally observed
  2. If experts in the particular field would rely on those kinds of facts/data in forming an opinion
  3. If facts/data inadmissible, opinion may be disclosed to jury only if probative value > prejudicial effect
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5
Q

Daubert Factors of Reliability: (4)

A
  1. Whether theory or technique can be and has been tested
  2. Subjected to peer review and publication
  3. There is a high known or potential rate of error and standards
  4. Enjoys general acceptance within relevant scientific community
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6
Q

What is Hearsay? Rule 801

A
  1. A Out of Court
  2. Statement
  3. To prove the Truth of the Matter Asserted
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7
Q

What is a Statement? 801(a)

A

Means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

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8
Q

What is the Declarant? 801(b)

A

The person who made the statement

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9
Q

What is Hearsay? 801(c)

A
  1. Statement not made at current trial
  2. Party offers in evidence to prove truth of the matter
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10
Q

Is a Captain inspecting a ship before it leaves hearsay?

A

NO: unless facts indicate he was doing the inspection for an audience

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11
Q

Is General demeanor considered hearsay?

A

Rarely except where declarant was trying to use their demeanor to communicate information

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12
Q

Are lack of complaints non-verbal assertions?

A

NO: unless there are circumstances where objections are expected and silence is intended to indicate satisfaction

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13
Q

Is a Dog’s Alert of drugs considered hearsay?

A

NO because only persons can make statements

Exception: Parrot case acting as a recorder of information of a murder

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14
Q

Is a diary that details unsolved crimes with “Property of Jesse James” considered Hearsay?

A

YES:
1. Inscription in diary = out of court statement
2. Intended to indicate the owner of the diary is likely the author

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15
Q

Is an entry in a hotel guestbook that states a name and date used as evidence that the person stayed at the hotel on that date considered hearsay?

A

YES: if offered to prove that the writer is the person identified
Person writing their name and date in this manner is likely asserting their stay

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16
Q

Statements that are NOT Hearsay: 801(d)

A
  1. Declarants prior inconsistent statement
  2. Declarants prior consistent statement
  3. Prior statement of identification
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17
Q

801(d)(A) Prior inconsistent statements:

A
  1. Inconsistent with testimony
  2. Given under penalty of perjury

-Used to impeach the witness because statement goes against witness credibility

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18
Q

Impeachment v. Substantive Use of 801(d)(A): Prior inconsistent Statements

A

Impeachment: (trustworthiness)
1. Not under oath
2. Used to challenge the credibility of witness because their story could have changed overtime
3. Cannot be used for the truth of the statement itself

Substantive: (prove facts)
1. Only sworn statements (more reliable)
2. Used for the substance of the statement to prove the facts that the witness said something earlier

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19
Q

801(d)(B) Prior consistent statements:

A
  1. To rebut charges of recent fabrication or improper motive
    (Challenge opposing arguments)

OR

  1. To rehabilitate credibility if the witness’s truthfulness is otherwise attacked on grounds unrelated to motive, like a claim of poor memory
    (addresses attacks on a witness’s credibility, aiming to restore trust)
  2. Statements made before improper influence
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20
Q

801(d)(B): Prior consistent statements: Rebutting an allegation

A
  1. If the opposing party claims that a witness’s testimony has been influenced by a recent motive to lie or and outside force
  2. Show that the witness said the same thing before this alleged influence
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21
Q

801(d)(B): Prior consistent statements: Rehabilitating Witness Credibility

A
  1. Witness’s side can try to rehabilitate them to restore jury’s trust in their testimony
  2. Witness can introduce prior inconsistent statement they made before any outside influence came in
  3. Witness can explain or clarify inconsistencies
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22
Q

801(d)(C): Prior Identification Statements:

A
  1. This allows a witness’s prior out-of-court identification of a person to be admitted as evidence, even if they don’t recall or change their statement in court.

(Witness identifies suspect in police line up after robbery but says they forget later in court, statement is admissible)

23
Q

Rule 801(2): An Opposing Party’s Statement

A

Statements are not considered hearsay if offered against an opposing party and falls into one of the 5 categories:

  1. The Party’s Own Statement (express)
  2. Statement the Party Adopted (Implied)
  3. Statement by a Person Authorized by the Party
  4. Statement by the Party’s Agent or Employee
  5. Statement by Co-Conspirator
24
Q

Rule 801(2)(A): Party’s own Statement

A

Allows for admission of any statement made by the party themselves, as long as it’s used against them

Ex: “I was at the scene when it happened”

25
Q

Rule 801(2)(B): Statement the Party Adopted

A
  1. Statements that were adopted or agreed to by the party, even if someone else originally made them
  2. Explicitly agrees or implicitly adopts it by showing approval or failing to deny it in a situation where denial would be expected
  3. Agreement, Adoption or Silence

Ex: You took the money, other person says yeah so what? or stays silent: can be used as admitting

26
Q

Rule 801(2)(C): Statement by Authorized Party

A
  1. Allows statement made by a person authorized by the party to speak on their behalf: treated as persons own admission
  2. Someone’s lawyer, broker, etc.

Ex: CEO making statement against company, because CEO is authorized to speak for the company

27
Q

Rule 801(2)(D): Statement by the Party’s Agent or Employee

A
  1. Allows statements made by agents/employee of the party during their employment
  2. Statement concerns a matter within the scope of their job and was made during their employment

Ex: employee saying: we always skip maintenance to save time

28
Q

Rule 801(2)(E): Statement by Co-Conspirator

A

Elements:
1. Declarant is coconspirator with a party to the litigation (typically criminal Defendant)
2. Relevant statement made during the existence of the conspiracy
3. Relevant statement made in furtherance of the conspiracy

Ex: one conspirator to another, “We’ll meet tomorrow to go over plans”

29
Q

Rule 803: Exceptions to Hearsay: Regardless of whether the declarant is available as a witness

A
  1. Exceptions that a litigant may invoke even if the declarant is available to testify
  2. They are seen trustworthy enough to not need the declarant
30
Q

Rule 803(1): Present Sense Impression

A
  1. A statement made describing or explaining an event made while or immediately after declarant perceived it
  2. Does not matter whether declarant is participant of the event
  3. Statement does not need to be aimed at someone in particular
  4. Needs to be contemporaneous = existing, occurring or originating during the same time
31
Q

Elements for Present Sense Impression

A

a. Statement must describe an event or condition without calculated narration
b. Speaker must have personally perceived the even or condition describe and
c. Statement must have been made while the speaker was perceiving the event or condition, or immediately thereafter

32
Q

Rule 803(2): Excited Utterance

A
  1. Statement relating to a startling event or condition, made while declarant was under stress of excitement it cause
  2. Elements:
    a. Startling even occurs
    b. Declarant makes a statement under the stress of the excitement caused by the startling event
    c. Declarants statement relates to the startling event
  3. Lapse of time: declarant must have still been under the stress of the event when statement was made
33
Q

Rule 803(3): State of Mind

A
  1. A statement of the declarant’s then existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feelings, pain, or bodily health),
  2. but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity of terms of the declarants will
  3. Statement of memory or belief not admissible if offered to prove the fact that it is remembered or believed
34
Q

Mind State Statements: what is admissible v. not admissible

A
  1. Admissible:
    Those limited to present feelings/ beliefs
  2. Inadmissible:
    Those referring to prior events, perceptions, etc.
35
Q

Rule 803(4): Statements for Treatment and Diagnosis

A
  1. Declarant (subjectively) making qualifying statements must be made for the purposes of medical diagnosis or treatment AND
  2. Statements (objectively) reasonably pertinent Describes medical history; past or present symptoms or sensations; their inception or their general cause
  3. Must statements be made to be a licensed medical professional?
    a.NO: test does not mention anything about statements made to, so a statement to family member, etc. can still be admissible via 803(4)
36
Q

Rule 803(4): Statements for treatment or diagnosis: Purpose and Content

A

Purpose: person must be speaking with the intention of helping doctor diagnose or treat their condition

Content: must describe medical history, symptoms, cause or source of symptoms or condition

37
Q

Rule 803(4): Statements for treatment or diagnosis: Subjective and Objective Prong

A
  1. Subjective: what is going on in declarant’s mind when saying it? Are they saying it to seek help?
  2. Objective: Does this statement really matter objectively to someone who is trying to figure out what is going on regardless if he is a doctor or not?
38
Q

Rule 803(5): Past Recorded Recollection

A
  1. Allows for admission of recorded recollections under specified circumstances

a. Regarding a matter once known but can no longer recall well enough to recall fully and accurately

b. Was made or adopted by evidence while it was fresh in their memory

c. Accurately reflects the witness’s knowledge

d. Can be received as an exhibit only if offered by an adverse party

39
Q

What is the difference between 803(5) and Rule 612?

A
  1. 803(5) : Witness no longer recalls fully: read record into evidence (substantive evidence), used to prove something
  2. 612: Witness recalls but needs refreshing: testify to recalled fact (no substantive evidence, can read silently)
40
Q

Rule 803(6): Business Records

A
  1. The record was made at or near the time of the event: Record must have been created at or close in time the event or transaction occurred
  2. Made by Someone with knowledge: or by someone who received the info from a reliable source
  3. Kept in the regular course of business: must be part of a routine practice (logs, invoices, transactions)
  4. Regular practice of the business to make the record: record keeping must be a regular established practice within business
  5. Foundation testimony by a qualified witness: witness does not have to be the person who created the record, but must be familiar with the record keeping
  6. Lack of circumstances indicating untrustworthiness: if evidence shows that it was falsified, altered or created in anticipation of litigation, the court may exclude it
41
Q

Two main exceptions where business records MAY be inadmissible:

A
  1. Record produced in anticipation of litigation
  2. Record based on unverified data input by “outsider” (not part of the business or organization)
42
Q

Rule 803(7): Lack of Business Record

A
  1. Party may introduce evidence of a lack of a business record in situations where a record would ordinarily have been made as part of the standard procedures, yet none was made
  2. Can be proved to show that matter did not occur or exist
43
Q

Rule 803(8): Public Record

A
  1. Allows certain official documents and records created by the government agencies to be admitted as evidence
  2. Sets forth the activities of the office or agency: must relate to activities
  3. Based on personal knowledge or factual investigation: cannot be purely opinion based
  4. Must include factual findings from an investigation made under legal authority (ex: inspections)
  5. No indication of untrustworthiness:
44
Q

Incorporating Statements from Non-public employees into public records?

A

There are instances where civilians are legally obligated to report matters to the government and those reports end up as part of a government record

45
Q

Rule 804: Hearsay Exceptions: Declarant Unavailable

A
  1. When witness is considered unavailable and allows certain hearsay statements to be admissible if:

a. Privilege/ Exemptions

b. Death or illness

c. Lapse of Memory

d. Absence

e. Refuses to testify

46
Q

Rule 804 (b)(1): Former Testimony

A
  1. A statement made by the declarant during a prior proceeding or disposition where the party against whom the statement is offered had an opportunity to cross examine the declarant

ex: if a witness testified in a previous trial about an accident, and that witness is now unavailable, their prior testimony can be used at subsequent trial

47
Q

Rule 804(b)(2): Dying Declarations

A
  1. Statement made by declarant while believing they were about to die
  2. Dying Declaration must be spoken when no hope of recovery AND in shadow if impending death
48
Q

Rule 804(b)(3): Statements against interest

A
  1. Statement that was against the declarant’s interest at the time it was made, meaning that it was so contrary to their own interest that a reasonable person would not have made the statement unless they believed it to be true
49
Q

Rule 804(b)(4): Forfeiture

A
  1. A statement offered against a party wrongfully caused the declarant’s unavailability as a witness and did so intending that result:
  2. Elements:
  3. The declarant must be unavailable
  4. The opposing party must have wrongfully cause or acquiesced in the declarant’s unavailability
  5. The opposing party must have intended to make declarant unavailable
50
Q

Rule 807: The Residual Exception

A
  1. Is not admissible under another exception, and
  2. Is demonstrably trustworthy – supported by indicia of trustworthiness based on a “totality of the circumstances” assessment
  3. Probative value greater for material fact statement
    relevant to greater than that of any other admissible evidence proponent party can obtain (must
    demonstrate reasonable efforts taken to locate alternative evidence)
  4. Requires additional notice to opposing party

(Necessity of Admission and trustworthiness of hearsay statement)

51
Q

Rule 807 Criteria to admit statements not in exceptions:

A
  1. Trustworthiness
  2. Material Fact:
  3. Probative Value:
  4. Interests of Justice:
  5. Notice Requirement:
52
Q

Rule 805: Hearsay within Hearsay

A

Hearsay within hearsay is not excluded by the rule if each part of the combined statements conforms with an exception to the rule

53
Q

Rule 806: Attacking and Supporting the Declarant’s Credibility

A

Allows for hearsay statements to be considered not only for their content but also for the purpose of credibility of the declarant

  1. May impeach declarant by showing their bias, incapacity, dishonesty, or show they have been convicted of crimes
  2. Rule 801(d)(2)(C), (D), or (E) evidence has been admitted, the declarant’s credibility may be attacked, and then supported by any evidence that would be admissible for the purposes if the declarant had testified as a witness
54
Q
A

EVIDENCE (3 decks)

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