Hearsay Flashcards

the 800s

1
Q

What are the elements of Hearsay? (FRE 801)

A
  1. Out of Court
  2. Statement
  3. By a qualifying declarant
  4. Offered for Truth of the Matter Asserted (TOMA)
  5. Not subject to 801(d)
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2
Q

What are some Non-TOMA purposes?

A
  1. Impeachment (inconsistent statements)
  2. Verbal act (magic words)
  3. Effect on the listener/reader
  4. Verbal objects (show affiliation)
  5. Circmstantial evidence of state of mind
  6. Circumstantial evidence of specific knowledge
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3
Q

What 801(d) for Hearsay analysis?

A

Testimony is NOT hearsay if:
1. A person is in court and could be brought under oath and is availible for cross
2. Admissions by Party Opponent (APO)
3. Specific types of declarant-witness’ prior statements

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4
Q

When is a declarant-witness’ prior statement NOT hearsay? (FRE 801(d))

A

They will testify and be availible for Cross AND:
1. the statement is INCONSISTENT with the declarant’s testimony prior to the official proceeding OR
2. the statement is CONSISTENT with the declarant’s testimony and is offered to:
a. rebut an express/implied charge of recent fabrication of testimony/improper motive
b. rehabilitate the declarant’s credibility as a witness when attacked on another ground OR
3. Identifies a person as someone the declarant percieved earlier

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5
Q

What encompasses an APO? (FRE 801(d)(2))

A
  1. individual/representitive capasity
  2. adoption (not post-Miranda silence)
  3. authorized to make statements on the subject
  4. agent/employee within scope of relationship
  5. conspirator statement during and in furtherance of criminal conspiracy
    Circumstances of the statement are NOT relevant
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6
Q

What are the BROAD categories of unrestricted hearsay exceptions? (FRE 803)

A
  1. Spontaneous
    a. Present Sense Impression (PSI)
    b. Excited utterances
  2. Self-referential (declarant)
    a. mind/bodily condition
    b. medical diagnosis/treatment
  3. Document/recording
    a. Past recollection recorded
    b. Business Records/records of routine activity
    c. Absence of a business record
    d. Public record
    e. Learned Treatise (authoritative tomes)
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7
Q

What are the elements of a Present Sense Impression (PSI)? (FRE 803(1))

A
  1. Immediacy (within 5 seconds)
  2. Perception (any sense)
  3. Description (of events)
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8
Q

What are the elements of an Excited Utterance? (803(2))

A
  1. Exciting Stimulus
  2. Excitement continues to utterance (10 min for adults)
  3. Relation of statement to exciting stimulus
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9
Q

What are the elements of a statement concerning the state of mind/bodily condition? (FRE 803(3))

A
  1. Description of a THEN-EXISTING mental/bodily condition
  2. ABOUT A WILL: memories/beliefs of condition okay
  3. Hillman Doctrine: covers statement of intent to show that declarant does what they intended
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10
Q

What are the elements of a statement in aid of medical diagnosis/treatment? (FRE 803(4))

A
  1. Must relate to medical condition/symptoms
  2. Medical purpose
  3. Pertinent to treatment/diagnosis
  4. Medical audience
  5. by a person with some reation to “doctor’s team” or “patient’s team”
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11
Q

What are the elements of a Past Recollection Recorded? (FRE 803(5))

A
  1. Witness lacks sufficient memory
  2. prior statement correctly reflects witness’ memory
  3. prior statement made/adopted by witness at time of recording
  4. prior statement made when memory was fresh
  5. prior statement can only be read to the jury by the proponent, not opponent (but opponents may offer the rest of the statement as evidence to consider)
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12
Q

What are the elements of a Business Record/Record of Routine Activity? (FRE 803(6))

A
  1. Information from people knowledgeable of and have a duty to the org
  2. records made close in time to the event
  3. making the record was routine
  4. keeping the record was routine for that person/business
  5. proponent lays the foundation
  6. court must consider the trustworthiness
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13
Q

What are the elements of an absense of business record hearsay exception? (FRE 803(7))

A
  1. Records regularly kept for this kind of matter
  2. Evidence admitted that the record is missing
  3. Opponent does not show source of the information expected
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14
Q

What are some examples of a Public Record? (FRE 803(8))

A
  1. Records of agency’s own activities
  2. People inside an agency’s observations about external matters
  3. Reports setting forth investigative findings
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15
Q

What are the elements of a Public Record for purposes of a Hearsay exception? (FRE 803(8))

A

Presumption of good intent
1. Government record (not police though)
2. Source must be trustworthy

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16
Q

What is a Learned Treatise/Authoritative Tome? (FRE 803(18))

A
  1. Tied to expert testimony
  2. Publication is established as a reliable authority
  3. If admitted: read into the record, not recieved as an exhibit
17
Q

What is the test to determine whether a witness is unavailible for testimony (for a Hearsay exception) (FRE 804(a))

A
  1. Priviledge invoked (attorney-client; 5th amend silence)
  2. Refusal to testify (after judicial prompting)
  3. Lack of memory (unable to be jogged)
  4. Death/medical issue
  5. Unavoidable absence
    a. Cannot be found/served/beyond subpoena power of the court
    b. Party misconduct (unclean hands will not trigger hearsay exception) (Preponderance of evidence)
18
Q

If a witness is unavailible, when can former testimony be introduced? (FRE 804(b))

A
  1. Unavailible for any reason
  2. Proponent attempted to bring them to court
  3. Opportunity and motive to ‘develop’ testimony prior to the trial
  4. Opportunity of the opponent to cross that prior testimony:
    a. Crim: same opponents (confrontation clause)
    b. Civil: any opponent needed opportunity for cross WITH privity/community interest/similar motivation
19
Q

When may a Dying Declaration be used as a Hearsay Exception? (FRE 804(b))

A
  1. Unavailibility
  2. Settled expectation of imminent death
  3. Statement related to cause/circumstances of death
  4. For civil cases or crim homicide cases
20
Q

What is acceptable hearsay for when witnesses are unavailible? (FRE 804(b))

A
  1. Former Testimony
  2. Dying Declarations
  3. Statements against interest of the declarant
  4. Statements of personal/family history
  5. Statements offered against wrongdoer
21
Q

When may statements against the interests of the declarant be allowed in for a hearsay exception? (FRE 804(b))

A
  1. Unavailability
  2. Statement against the interests of the declarant (knowingly)
  3. Unique corroboration by someone not subject of today’s trial
  4. Totality of circumstances
22
Q

What is double hearsay? (FRE 805)

A

hearsay within hearsay. Use two rationales to satisfy double hearsay

23
Q

May hearsay be used for imeachment and rehabilitation? (FRE 806)

A

Yes. Proponents of the witnesses must open the door first.

24
Q

Under what circumstances can hearsay be admitted even if not explicitly covered? (Catch-all) (FRE 807)

A
  1. Materiality
  2. Relative pribity (Last resort)
  3. URGENT interests of justice
  4. Trustworthy circumstances
  5. PRETRIAL NOTICE