Hearsay Flashcards
Hearsay
- Out-of-court statement offered to prove the truth of the matter asserted
- Hearsay is INADMISSIBLE unless it meets an exception
Statements NOT Offered for the Truth of the matter asserted
- words of Offer and Acceptance
- Libel or Slander
- Verbal Acts to show motive/notice
HEARSAY EXCEPTIONS
- Present Sense Impression
- Excited Utterance
- Then Existed Mental, Emotional, Physical State of Mind
- Business Record
- Statement for Medical Diagnosis
- Recorded Recollection
- Public Record
- Learned Treatise
- Ancient Document
10.
Present Sense Impression
- statement made WHILE observing fact
- NON-emotional observation
i.e.
“I saw the car go through the red light.”
NOT present sense
call wife 12 hours later to say “i saw the car go through the red light”
Excited Utterance
- statement made while excited
- look for “!”
Then Existed Mental, Emotional, Physical State of Mind
statements of intent, emotion, or physical state
i.e.
“I couldn’t have killed her. I loved her.”
“I was going to go to New York.”
“I’m suffering pain right now.”
Business Record
Record made in the ORDINARY course of the business
i.e. President signed an invoice or piece of paper on ABC Inc. letterhead
Statement for Medical Diagnosis or Treatment
- Statement related to past or present symptoms
- About the medical treatment or diagnosis to the physician
Recorded Recollection
1) Witness on the stand once knew about it cant remember
2) this document was made/adopted/ knew by witness
3) CAN be read into evidence
Public Record
- record or statement of a public/office agency
- observations by someone with a duty to report
i.e. public report
Hypo: Absence of Business Record or Public Record
Look for facts that indicate that was NO RECORD
Learned Treatise
- Expert witness is relying on it
- Admissible when expert witness is relaying on it
Ancient Document
- document more than 20 years old and authenticated
- FRE hearsay exception: document must have been prepared before 1998
Catch-All Exception
Any other statement that is
1) trustworthy
2) material and
3) in the interest of justice
Unavailability Requirement
Unavailable witness means not currently at trial
1) Dying Declaration
2) Statement Against Interest
3) Former Testimony
Dying Declaration
1) declarant unavailable (not necessarily dead)
2) believe of impending death
3) About cause of death (impending death)
4) Homicide or Civil case
Statement Against Interest
1) declarant unavailable
2) makes declarant look liable/guilty
3) generally made by non-party
Former Testimony
1) declarant unavailable
2) opponent was a party to former case
3) former case about same subject matter
4) former testimony was made under oath
5) opportunity or motive to cross examine the witness
Non-Hearsay
- admissible substantively
- (aka. subset of evidence)
- nothing to do with hearsay exception
Admissions
- statement made by a party admitting something
- admissible as non-hearsay
Vicarious Admissions
statements made by employees about company
i.e. worker in the company saying “we don’t fix the brakes”
Adoptive Admissions
party does not respond when a reasonable person would object to
i.e. silence to “you didn’t kill him, did you?”
Prior Consistent Statement
1) prior statement by declarant
2) the same as current testimony
3) to refute any charge of fabrication or motive
Prior Sworn Inconsistent Statement
1) prior statement by declarant
2) made under oath
3) INCONSISTENT with current testimony
Prior Identification
Declarant testifying about an someone they identified earlier
Right to Confrontation
Right to confront a witness concerning an out-of-court statement depends on if the statement is testimonial
Non-testimonial
- statements made to police during an emergency
- admissible
Physical & Demonstrative Evidence
Generally admissible
i.e.
showing scar
demonstrate limp
Double Hearsay
- Two different statements
- NOT admissible unless both meet an exception or exemption to the rule
