Hearsay Flashcards

Question

Jordan v. Binns (801d2 opposing party statement)

Answer 1

Binns hit Jordan on motorcycle Jordan said it was her fault at scene Binns wanted to admit her statement Statement was allowed and is not hearsay An Opposing Party’s Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity

Answer 2

District court relied on transcript from state court Judge will say what allegations are and then pleads guilty (using this (an out of court statement) to show he was charged) In plea he did not expressly say yes i did it he just plead guilty First statement must have been in party’s presence, second statement made would induce someone to respond if it was not true (silence as adoption)

Answer 3

Rule: Admissions by an agent of a party within the scope of his agency about any material fact at issue are admissible against that party. Dad brought suit on behalf of his minor son for injuries sustained by a wolf (owned by wild canid) Dad wanted to bring in three statements 1st: Poos left note on boss’ door that wolf bit child (excluded as admission) 2nd: Poos verbal statement to boss that wolf bit child (excluded as admission) Minutes of meeting held reflect legal implications of wolf bite (Poos was not present so did not come in) so it was hearsay and did not fall into exclusion (board is not agency) Trial court excluded all three as hearsay, jury found in favor of poos and center Appeals court reversed (1 and 2 allowed in)

Answer 4

Requirements: Must be a member of conspiracy, statement made while conspiracy in existence, statement made in furtherance of the conspiracy Greathouse an fbi worker arranged to sell coke to Lonardo for distribution, including the defendant They were arrested for conspiracy Sought to introduce evidence of phone conversation with Lonardo

Answer 5

(1) Present Sense Impression (2) Excited Utterance (3) Then-Existing Mental, Emotional or Physical Condition (4) Statement made for the Medical Diagnosis or Treatment (5) Recorded Recollection (6) Records of Regularly Conducted Activity (business records) (7) Absence of Record of Regularly Conducted Activity (8) Public Records

Answer 6

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it Trustworthiness, timing (how long it happened after event for possibility of calculated narration) is most important in determining Immediately after depends on facts and judge “whether the proximity in time is sufficient to reduce the hearsay danger of faulty memory and insincerity”

Answer 7

Seiler to White: Schindler paralyzed four patients White to Schindler: you paralyzed four patients? Actual defamatory itself is not offered for its truth because defamatory statements (independent legal significance rule) -statement has to describe the event without calculated narration Court thought there was enough time to calculate so it was not present sense** -speaker has to personally perceive event described Yes white was being talked to -statement must have been must describe an event that the declarant perceives and be made during or immediately after the perceived event. No. A statement is not admissible as a present-sense impression under an exception to the hearsay rule if the declarant deliberates about what to say or provides the statement for a particular reason. To be admissible under this exception, a statement must describe an event that the declarant perceives and be made during or immediately after the perceived event. A present-sense impression is considered to be reliable because of its spontaneity. Thus, a calculated interpretation of an event will not qualify as a present-sense impression. In this case, the district court did not abuse its discretion by excluding Schindler’s testimony about White’s statement. White’s alleged statement to Schindler about Seiler’s defamatory statement to White is inadmissible hearsay, and does not qualify as a present sense impression. White testified that he informed Schindler about disparaging comments being made because he was concerned about Schindler’s reputation. Thus, White relayed the comments to Schindler for a particular reason, and not spontaneously and immediately after hearing the comments. In fact, White never testified that he made the statement to Schindler immediately after talking to Seiler. The only evidence presented otherwise is Schindler’s own proffered testimony that White’s recitation of the defamatory statement was made immediately after White heard it. This is insufficient to prove the immediacy of White’s statement. Accordingly, Schindler’s testimony about the statement was properly excluded. The judgment of the district court is affirmed.

Answer 8

Statement relating to a startling event or condition made while declarant was under stress 911 call is example (usually) Usually more trustworthy than present sense (no time to calculate/ describe differently/ nature of events) Timing after is less important than present sense Elements: Startling event No time to fabricate State of excitement must be continuous Statement relates to the event Personal knowledge

Answer 9

Collision because no stop sign Plaintiffs suing city for notice they should have put up Plaintiff trying to establish notice by testimony that middle aged woman called city before Her statement at the scene of the accident was hearsay (if it was call to the city directly it would not be hearsay because notice is not offered to prove truth) but here it was just statement at scene Got in as excited utterance (she was shaking, emotional)

Answer 10

Current physical condition experienced by the declarant not someone else 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 feeling, pain, or bodily health), 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. Example: I’m going to New York tomorrow would not be hearsay but “I’m going to New York tomorrow with Joe” would be hearsay because we don’t know the mind of Joe

Answer 11

Hillmon left south for ranch and before departing purchased life insurance from 3 different companies, then was killed Wife notified insurance companies and fraud was suspecting Demanded corpse dug up, and company said Hillmon was not actually dead Brown said he Shot Walters not Hillmon Wife sued companies Companies tried to introduce letters (that waters was invited to ranch) and court denied based on hearsay Thus, in this case, the letters are admissible to prove Walters’s then-existing intent to join Sallie’s husband on his trip to Crooked Creek. The letters do not prove that Walters actually went to Crooked Creek, merely that he had the intention to do so. This is relevant because it makes it more probable that he did actually go to Crooked Creek and thus more probable that the body found was his. Offer of proof must be given to be heard on appeal

Answer 12

Salinas injured at work, filed workers comp, saying he had pain Doctor testified he was not seriously injured Salinas wanted to call witnesses that he told many times he was in pain Court said it was hearsay, appeals reversed, SC affirmed An out-of-court statement is admissible to prove the declarant’s then-existing physical condition. Such a statement does not need to be made to a doctor, and the veracity of the statement once admitted is a question for the jury.

Answer 13

3 part test: (A) statement is made for medical diagnosis or treatment and (B) statement describes medical history; past or present symptoms or sensations; their inception; or their general cause. (C) and is reasonably pertinent to — medical diagnosis or treatment How to find if pertinent: -established by motive of declarant -doctor relies upon Does not have to be a doctor Statements of fault: the reason I have a broken arm is because he beat me up (likely to fall within this exception)

Answer 14

Patient exhibited signs of depression and distress, and told doctor Mulkey might kill them both, gave her meds and told her to call the police She was later shot to death Prosecution called doctor as witness and said what patient told her Rule: A patient’s out-of-court statements concerning the cause of the patient’s condition made to a medical professional for the purpose of obtaining medical diagnosis or treatment are admissible if they are reasonably pertinent to the diagnosis or treatment.

Answer 15

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s prior knowledge. The document is not submitted (it is read into evidence) Depos when you agree with what is said it is considered adopted not made

Answer 16

1. Evidence must be a memorandum, report, record, or data compilation in any form 2. Evidence must be proffered by a witness who is the custodian or other qualified witness 3. Record must have been made * By a person with personal knowledge OR * From information transmitted by a person with personal knowledge 4. Record must have been made at or near time of acts, events, conditions, opinions, or diagnoses in it 5. Record must be made as part of regular practice of business 6. Record Must have been kept in the course of regularly conducted business (so if made in anticipation of trial it does not count)

Answer 17

Declarant is Whitlock who wrote the diary In diary he kept track of earnings from every night (tips) His entries were relevant for prosecution because it gives a range of how much the dealers should have been making (round figures) Was a personal business record of Whitlock, (personal is fine but still must follow requirements) Custodian was former wife, she satisfied it because she witnessed him writing the diary

Answer 18

Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

Answer 19

A record or statement of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B)the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. Example: teacher renovated her house and went to office to get paperwork/ reports Also: if they were sued and there was an investigation done by the housing department it would fall into third exception Police reports don’t fall under this exception, but can be used to jog their memory

Answer 20

Plane crashed and people passed away Family wanted to sue due to manufacturing defect (but they said it was pilot error) Statement at issue is from JAG officer, in report it said it was pilot error which judge let come in Rules: (1) Conclusions or opinions in public agency investigative reports are admissible under Rule 803(8) as long as the conclusion or opinion is based on the factual investigation. (2) If a party introduces part of a statement into evidence, the opposing party may present the remaining portions of the statement to ensure that the court has a complete understanding of the evidence. Using observations (hearsay) can be used for JAG officer to report (rely on it) but can’t be part of report or spoken to jury unless exception (1) Yes. Conclusions and opinions made pursuant to a public agency’s investigation it was required to make are admissible as long as the conclusion or opinion is based on the factual findings from the investigation. The conclusion or opinion must also satisfy a trustworthiness requirement built into Rule 803(8). This is because “factual findings” as written in Rule 803(8)(C) should not be read to literally mean “facts.” A finding of fact may also be a conclusion based on facts. Furthermore, Rule 803(8)(C) does not actually state that factual findings are admissible, but rather that “reports . . . setting forth . . . factual findings” are admissible. Thus the Rule does not specifically distinguish between facts and opinions contained in those reports. On this reading of Rule 803(8)(C), it is clear that Morgan’s conclusions in his report are admissible. His conclusions were based on his investigation and the facts that he discovered. And based on those facts, he concluded that pilot error was probably the reason for the crash. Under the plain language of 803(8)(C), such a conclusion is admissible as long as it satisfies the trustworthiness requirement. Because the trial judge found that the conclusions were trustworthy, he properly admitted the statements.

Answer 21

(1) Former testimony (2) Statement under belief of imminent death (dying declaration) (3) Statement against interest (6) Statement offered against party who wrongfully caused declarant’s unavailability (forfeiture by wrongdoing)

Answer 22

ONLY applies if the declarant is NOT available to testify ○ First, is the declarant UNAVAILABLE as defined in Rule 804(a)? ■ If NO, then no rule 804 exception can be applicable ○ Then, does one of the exceptions in Rule 804(b) apply? ■ If YES, admissible hearsay ■ If NO, inadmissible hearsay under Rule 802

Answer 23

Unavailable under 804(a) means: (only need one) ○ Declarant has a PRIVILEGE allowing them not to testify ○ Declarant REFUSES to testify after being ordered to ○ Declarant has NO MEMORY of the relevant facts ○ Declarant is DEAD or PHYSICALLY or MENTALLY ILL ○ Declarant is ABSENT despite reasonable diligence What if the proponent procures the absence of the witness? (they send the person off to Orlando so they won’t be able to testify) this does not work!!!

Answer 24

1. Declarant must be unavailable 2. Declarant must have testified in a prior proceeding 3. Party against whom the statement is offered had: An opportunity to question declarant at the prior proceeding AND A similar motive to question the declarant at the prior proceeding

Answer 25

Defendants charged with conspiracy Witnesses at the grand jury testified denying they knew about the arrangement or bid rigging schemes The prosecutor cross examined them but did not bring up the wire taps because she did not want them to know Jury indicted them At trial, the same witnesses invoked the 5th amendment (making them unavailable to testify) Trial judge refuses to admit grand jury testimony because prosecutor has different motive in grand jury indictment versus trial Trial court defines similar motive: two things to look to: same side of the issue and similar degree of interest (what was at issue in both proceedings and were they both critical?) Motive was not the same because grand jury proceedings are just deciding whether to indict when the trial is to convict This did not qualify, grand jury proceedings are pretty rare to be admitted

Answer 26

1.Declarant Unavailable 2. Criminal Prosecution for homicide or any civil case 3. Declarant believes death to be imminent 4.Statement is made about cause or circumstances of death (not something you want to happen after the death or something you wanted before) 5. Personal knowledge about the assertion of the statement If it seems like dying declaration “if i die don’t let him get away with it” and they don’t die: excited utterance

Answer 27

1.Declarant Unavailable 2.Statement was contrary to declarant’s interest -Monetary interest ( i owe someone money) or -Proprietary interest (property interest, i gave you that car as a gift) or -Exposes declarant to liability or -Renders a claim by declarant against someone else invalid 3.Person in declarant’s situation wouldn’t have made the statement if it was not true 4.If a criminal case that exposes declarant to criminal liability, need corroboration

Answer 28

) THE DECLARANT’S OWN BIRTH, ADOPTION, LEGITIMACY, ANCESTRY, MARRIAGE, DIVORCE, RELATIONSHIP BY BLOOD, ADOPTION, OR MARRIAGE, OR SIMILAR FACTS OF PERSONAL OR FAMILY HISTORY, EVEN THOUGH THE DECLARANT HAD NO WAY OF ACQUIRING PERSONAL KNOWLEDGE ABOUT THAT FACT; OR (B) ANOTHER PERSON CONCERNING ANY OF THESE FACTS, AS WELL AS DEATH, IF THE DECLARANT WAS RELATED TO THE PERSON BY BLOOD, ADOPTION, OR MARRIAGE OR WAS SO INTIMATELY ASSOCIATED WITH THE PERSON’S FAMILY THAT THE DECLARANT’S INFORMATION IS LIKELY TO BE ACCURATE.

Answer 29

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Answer 30

She killed boyfriend and was planning to kill another, and mail fraud from dead guys Trial judge admitted statements by dead boyfriend where he talked about her sketchy actions These statements can be used in any trial not just the criminal

Answer 31

6th Amendment: In all criminal prosecutions, the accused shall enjoy the right.. To be confronted with the witnesses against him Not civil cases Not statements offered against the prosecution Must be allowed by FRE and confrontation clause Requires that the criminal defendant be able to confront witnesses against him

Answer 32

1. Declarant testifies at trial and subject to cross on hearsay statement 2. Declarant unavailable at trial and prior statement was made under oath and subject to cross-examination by defendant

Answer 33

Wife of defendant made a statement to police while in custody (she was potential suspect) police was asking her leading questions and undermined her self defense claim (which was recorded) She was unavailable to testify Court found statement was reliable, appeals found not reliable, SC found it was reliable SC laid out standard: 1. Is it hearsay? 2. Does an exception apply? 3. Is it offered against a defendant in a criminal case? 4. Does it violate the confrontation clause? Witnesses= those who bear testimony Testimony= a solemn declaration or affirmation made for the purpose of establishing or proving some fac

Answer 34

NEW RULE: Only testimonial statements implicate the confrontation clause (procedural guarantee not substantive)

Answer 35

affidavits Prior testimony that defendant was not able to cross-examine (if they have been subject to cross before then you’re good) Statements taken by police officers in the course of interrogations Statements made under circumstances that would lead an objective witness to reasonably believe the statement would later be used at trial

Answer 36

Called 911 stating defendant was beating her 911 worker asked her questions like who what when where and if they left yet, name and address Officers were witnesses Primary Purpose Test: * Is the statement made under circumstances objectively indicating that the primary purpose of the statement is aimed at assisting a criminal investigation? TESTIMONIAL * Is the statement made under circumstances objectively indicating that the primary purpose of the statement is aimed at resolving an ongoing emergency? NONTESTIMONIAL

Answer 37

Police did not see anything happen, husband said it was fine Talked to wife and had her sign a battery affidavit (hit her, tore up her van) Wife testified at trial Present sense exception Primary purpose was describing past events (this does not get in) so it is testimonial But if past facts for ongoing threat it would be fine

Answer 38

State lab technician’s sworn statement declaring a substance to be cocaine is testimonial and inadmissible absent the testimony by the certifying chemist

Answer 39

Dying gunshot victim’s answers to police questions about who shot him were not testimonial because the gunman’s unknown motives, intentions, and location created an ongoing emergency

Answer 40

Clark was charged with assault to a little boy Statements at issue were those he made at school to teachers Child did not testify at trial (exception was ohio law allowing victims) Trial court said it was not testimonial, appeals and state SC said it was testimonial Applies Crawford test (Primary Purpose Test) Ongoing emergency isn’t only thing to not be testimonial Just because these statements were not made to police officers does not automatically make it non-testimonial Rare child would use these statements for criminal proceeding but did not make it a bright line rule Just because given to authorities does not make it testimonial (or if it helps prosecutions case it is not automatically testimonial) The teachers were resolving an ongoing emergency. Other factors showing that L.P.’s statement was not testimonial were the informal setting of the interrogation and L.P.’s young age. The primary purpose of the teachers’ questions was to ensure that L.P. was out of harm’s way, not to elicit testimony from him for a potential court proceeding. L.P.’s testimony is admissible because it is not testimonial and is therefore not subject to the Confrontation Clause. The state supreme court’s judgment is reversed.

Answer 41

A defendant’s wrongful conduct forfeits his confrontation right only if the conduct made a witness unavailable and the accused intended to prevent the witness’ trial testimony