Hearsay Flashcards
What is hearsay?
An out of this court statement offered for the ruth of the matter asserted
What is a statement?
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
What isn’t a statement?
Commands, questions, a verbal act w/ legally operative words
When can a command or question be a statement?
When they are used to make an assertion.
“look out for that pothole” asserts that there is a pothole
What determins if an implied assertion is a statement?
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
What kind of statements arn’t hearsay (801(d)(1-2))
A declarant witness’s prior statement (PIS, PCS,PI) & Opposing party statements
What is a prior inconsistant statement?
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.
What is not included under the rule of prior inconsistant statments?
Affidavits & statements to the police or prosecutors
When can a prior consistant statement be offered?
- 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
When can prior identification be used?
When the declarant identifies a person as someone they perceived earlier
When are PCSs used to rebut?
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.
When are PCSs used to rehab cred when attacked on another ground?
When the witness’smemory is challenged
no temporal requirement
When can an opposing party statement be offered against an opposing party (801(d)(2)
- 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
What are the non-hearsay purposes of a statement?
- 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
What are the rule 803 hearsay exceptions
Not excluded whether the declarat is available as a witness
- 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
What is a present sence impression?
A statement desribing an event or condition, made while or immediatly after the declarant perceived it
What is the rule for present sense impression?
- 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
What is an excited utterance?
A statement relating to a startling event or condition, made while the declarant was under the stress or the excitement that it was caused
What is the rule for then existing mental, emotional, or physical condition?
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
What is a statement made for a medical diagnosis or treatment?
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
What is recorded recollection?
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
