Hearsay

Question 1

What is hearsay?

Answer 1

An out of this court statement offered for the ruth of the matter asserted

Question 2

What is a statement?

Answer 2

a person’s oral or written assertion, or non-verbal conduct, that is intended as an assertion.

An assertion happens when the speaker wants to convey information. This

Question 3

What isn’t a statement?

Answer 3

Commands, questions, a verbal act w/ legally operative words

Question 4

When can a command or question be a statement?

Answer 4

When they are used to make an assertion.

“look out for that pothole” asserts that there is a pothole

Question 5

What determins if an implied assertion is a statement?

Answer 5

whether the actor intended the act to be an assertion

Did you open the umbrella to assert that is is raining or just to get ou

Question 6

What kind of statements arn’t hearsay (801(d)(1-2))

Answer 6

A declarant witness’s prior statement (PIS, PCS,PI) & Opposing party statements

Question 7

What is a prior inconsistant statement?

Answer 7

The declarant testifies & is subject to cross, and the statement is inconsistent w/ the declarants’ testimony & was given under penalty of perjury at trial, hearing, or other proceedings or in a deposition.

admissible as substantive evidence to prove TOMA.

Question 8

What is not included under the rule of prior inconsistant statments?

Answer 8

Affidavits & statements to the police or prosecutors

Question 9

When can a prior consistant statement be offered?

Answer 9

• to rebut an express or implied charge that the declarant recently fabricated the statement or acted from a recent improper influence or motive in so testifying
• To to rehabilitate the declarant’s credibility as a witness when attacked on another ground

Question 10

When can prior identification be used?

Answer 10

When the declarant identifies a person as someone they perceived earlier

Question 11

When are PCSs used to rebut?

Answer 11

When the witness is accused of lying or having an improper purpose. Used as substantive evidence to rehabilitate the witness.

There is a temporal requirment (before there was a motive to lie.

Question 12

When are PCSs used to rehab cred when attacked on another ground?

Answer 12

When the witness’smemory is challenged

no temporal requirement

Question 13

When can an opposing party statement be offered against an opposing party (801(d)(2)

Answer 13

• The statement was made in an individual or representative capacity
• The statement was adopted or believed to be true
• Statement was made by someone authorized to make it
• Statement was made by an agent or employee within the scope of the relationship
• statement was made by a coconspiritor during and in furtherence of the conspiracy

Question 14

What are the non-hearsay purposes of a statement?

Answer 14

• Notice (usually of a dangerous condition)
• A verbal act w/ legally operatve words
• Effect on listener (Not concerned about truth; what did the words make the lister do or feel?)
• State of mind of declarant, when relevant to the case
• Impeachment: showing someone isn’t worthy of belief

Question 15

What are the rule 803 hearsay exceptions

Not excluded whether the declarat is available as a witness

Answer 15

• Present sense impression (PSI)
• Excited utterance (EU)
• Then-existing mental, emotional, or physical condition
• statement made for a medical diagnosis or treatment
• recorded recollection
• Records of a regularly conducted activity
• Absence of a record of a regularly conducted activity
• public records
• absense of public records

Question 16

What is a present sence impression?

Answer 16

A statement desribing an event or condition, made while or immediatly after the declarant perceived it

Question 17

What is the rule for present sense impression?

Answer 17

• MUST describe an event or condition w/o calculated narration
• speaker musr have personally perceived the event or condition
• The statement must have been made while the speker was perceiving the event or condition, or immediatley after

Question 18

What is an excited utterance?

Answer 18

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

Question 19

What is the rule for then existing mental, emotional, or physical condition?

Answer 19

A statement of the declarants’s then existing state of mind or emotional sensory or physical condition, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will

Backwards looking statements are generally inadmissible

Question 20

What is a statement made for a medical diagnosis or treatment?

Answer 20

A statement that:
* Is amde for & is reasonably pertinent to, a medical diagnosis or treatment
* Describes medical history; past or present symptoms or sensations; their inception; or their general cause

Question 21

What is recorded recollection?

Answer 21

A record that:
* is on a matter the witness once knew about but can’t now recall well enough to testify fully and accuratly
* Was made or adopted by the witness when the matter was fresh in their memeory
* accuratly reflects the witness’s knowledge