HEARSAY Flashcards
EXCEPTION TO THE HEARSAY RULE
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a) dying declaration
b) statement of decedent or person of unsound mind
c) declaration against interest
d) act of declaration about pedigree
e) family reputation or tradition regarding pedigree
f) common reputation
g) part of the res gestae
h) records of regularly conducted business activity
i) entries in official records
j) commercial lists and the like
k) learned treatises
l) testimony or deposition at a former proceeding
m) residual exception
Reasons for exceptions to the hearsay evidence rule
- The person whose assertion is offered may now be dead, or out of jurisdiction, or insane or otherwise unavailable for may purpose of testing like the dying declaration this is a commoner and palpable reason
- The assertion may be such that we cannot expect , again or at this time, to get evidence of the same value from the same or other sources.
Dying declaration , REQ
- consciousness by the declarant of his impending death\
- communication by the declarant of the cause and surrounding circumstance of his looming death
- competence of the declarant to testify
- declaration is offered in any case relative to declarant’s death as the subject inquiry
- completeness of declaration
declaration against interest, REQ
o The declarant is dead / unable to testify
o Adverse statement is made by the declarant on an actual or real interest in cognizant thereof
o Declarant believes the statement to be true
o Where the statement is one against penal interest which exculpates the accused in a criminal trial, there must be corroboration tending to guarantee the statements trustworthiness
ACT OF DECLARATION ABOUT PEDIGREE
o The actor / declarant is dead or unable to testify
o Declarant is related to the subject either by birth, adoption, marriage or family that they are intimately associated wit as to be likely to have accurate information concerning the pedigree
o Proof of relationship between he declarant and subject is established by evidence
o The act of declaration was made previous to the controversy \
family reputation or tradition regarding pedigree
o The witness who testifies is related to the subject either by consanguinity, affinity or adoption
o Existence of such reputation or tradition in the family was previous to the controversy
PARTS OF RES GESTAE
Res gestae= “things done” exclamations and spontaneous reactions inspired by the excitement of the occasion and declarant had no opportunity to fabricate it
2 parts
o Spontaneous exclamation
o Verbal act
Spontaneous exclamation (req) RES GESTAE
o There is a startling occurrence as the principal act
o There is no opportunity to contrive
o The statement under the stress of excitement caused by the occurrence
records of regularly conducted business activity, REQ
o writing or other recordation of declarant’s hearsay statement
o Regularity of record keeping
o Entry is made as a routine in a regular course of conduct of a business activity
o Entry is affected forthwith to precluded lapsed memory
Verbal act (req), RES GESTAE
o An equivocal principal act
o A statement to the issue
o The statement must accompany the main act
o The utterance must provide legal significance or elucidate the act
entries in official records , REQ
o Entries were made by a public officer in the regular performance of their duties or a person with duties enjoined by law
o Personal cognition of the facts stated on the entry or such facts were acquired from official information
REASON: accept the narration of facts on the official record of a public officer as prima facie evidence thereof by reason of the disputable presumption
COMMERCIAL LIST AND THE LIKE
o It is a statement of matters of interest to persons engaged in an occupation
o Such statement is contained in a list , register, periodical or other published compilation
o Said compilation is published for the used of persons engaged in that occupation and
o It is generally used an relied upon by persons in the same occupation
LEARNED TREATIES
- Permits presentation of evidence of publicly acclaimed materials on history , law , science , arts or establish the truth of the matter
- Admissibility of the learned treatises may be conditions upon alternative course
o The court takes judicial notice
o The work is testified to by a witness
TESTIMONY OR DESPOSITION TO FORMER PROCEEDING
- Witness
o Testimony can be used from prev proceedings if dead or unable to testify
o Refusal is not equal to unable to testify - Testimony
o Restricted to only recorded statements that are made under oath and subject to prosecution for perjury
Doctrine of independently relevant statement
If the secondhand evidence from the witness is NOT AN ASSERTION OF THE TRUTH of what is imparted to the court, but simply a depiction of the tenor of the external evidence , it can be JUDICIALLY PERMITTED if relevant to the fact in issue
residual exception
- catch all provision of hearsay evidence xpn
- used if no other xpn might render hearsay statement admissible
ELEMENTS:
o the statement must possess circumstantial guarantee of trustworthiness akin to specific hearsay xpns
o the statement is offered as evidence of material fact
o the statement is more probative on the point for which it is offered than any other evidence whither the proponent can procure through reasonable efforts the proponent notifies the opponent of the intention to offer the statement , with details of the name and address of the declarant, sufficiently in advance of the hearing , or pre-trial conference as prelude to trial , for the adverse party’s fair opportunity to meet the intention
common reputation
- General or undivided reputation
