Hearsay 2: Exceptions 803 Flashcards
What is the rule for hearsay?
- hearsay os not admissible unless it falls into an exception
What hearsay exceptions do rule 803 govern?
- 803 hearsay exception appliy whether the declarant is available or not
- BROKEN DOWN:
- 1-4 —- are truth producing
- 5-17 — deal with records
- 18 —- deals with learned treatises
- 19-21 — reputations
- 22-23 — judges
What is present sense impression (803(1))?
- statement made by the declarant decribing OR explaining an event or condition
- made while OR immediately after perceiving it
- CHARACTERISTICS
- spontanity
- timing - very close
- declarant need not be know
- declarant need not be available
- the declarant just needs to have 1st hand knowledge of what he is talking about
- declarant need not be available
- it is an unexited uttererance
- can be oral or in writing
- spontanity
Example of present sense impression
EXAMPLE: Someone on the phone saying, “Joe just walked in.”
EXAMPLE: “The sky is so bright. You can see a million stars.”
EXAMPLE: Statement that does NOT qualify: Thirty minutes after the accident, declarant told the police officer, “Defendant ran the red light.”
What is an excited utterance 803(2)?
- a statement related to a startiling event
- made while the declarant was under the stress of excitment caused by the event of condition
-
CHARACTERISTICS
- starterling event
- personal knowledge required
- window a little more open
Examples of excited utterance
EXAMPLE: Statement by rape victim to her mother 90 minutes AFTER assault that “Jim attacked me.”
EXAMPLE: “My husband just tried to strangle me.” “My husband is so mad, I think he might try to kill me.”
What are statements of then existing mental, emotional or physical condition 803(3)??
- concerned with the declarant’s words
- admissible if relevant to show declarant’s state of mind
- Includes statements to prove:
- intent, plan, motive, design,mental feeling, pain or bodily health
- CHARACTERISTICS
- statements need not be made to a medical professional
- prospective statements of intent
- what they intend to do & use to prove that they acted in conformity with that intent
What statements are not included in then-existing mental, emotional or physical condition?
- DOES NOT INCLUDE
- past sensation
- statements of memory or belief inadmissible UNLESS it relates
- the execution, revocation, identification or terms of a declarant’s will
- past sensation
What are statements for purposes of medical diagnosis or treatment 803(4)?
- statements made for purposes of medical diagnosis or treatment describing medical history or past or present symptoms, pain or sensation or the cause.
- CHARACTERISTICS:
- statement can be made to any medical professional
- even family member if to promote medical treatment
- statement must be useful for diagnosis or treatment
- statement can be made to any medical professional
- NOT INCLUDED
- statements admitting or assessing fault
Example of statements for the purpose of medical diagnosis
EXAMPLE: After a car accident, “I was hit from behind.”
EXAMPLE: “I was hit from behind by a guy in a blue car, license plate XJU187.” — not relevant for treatment
What is past recollection recorded 803(5)?
- used when witness has a present memory problem
- PREREQUISITE:
- Refreshing by a leading questiion or writing must have been attempted AND
- failed
- witness must lack current memory of the vent
- Refreshing by a leading questiion or writing must have been attempted AND
- at some point in the past he remembered, so lay the foundaation for a past report/memo, authenticate it, which he now adopts, it does not come in
What are the requirements for past recollection recorded?
- writing/record read into evidence
- writing is not admitted into the record unless offered by the pty opponent
- memo must have been made while it was fresh in the witness’ mind
- Authenticated
- witness must say it accuratelyrefreshes his prior knowledge
- Cooperative reports
- declarant makes a statement to a 2nd declarant who than makes the report
- noth constituted to have adopted it
What are the rights of adverse parties in past recollection recorded
1) inspect the writing;
2) cross-examine with it;
3) show it to the jury for comparison;
4) introduce relevant portions into evidence.
What is the rule for business records 803(6)?
- records kept in the routine cpurse of business
-
Requirements:
- made in the regular course of business
- not a diary, calendar
- foundation witness
- does not have to be a person with person knowledge
- person only need be familar w/the record keeping process
- trustworthiness determined by the judge
- the record cannot be made soley in anticipation for litigation
- made in the regular course of business
Examples of routine practice
- Sales receipt,
- hospital records,
- payroll records.
NOT:
- police accident records which may be more of a public record
What is the rule for absence of entry in records 803(8)?
- evidence that a matter is not included in the records or data kept in accordance w/business or public records may be admitted to prove the non-occurence of the event or the non-existence of the matter
- foundation witness must testify that he is familar with the record
- he diligently searched
- and found no record of the event
Example of absence of entry of record
EXAMPLE: Plaintiff claims he ordered a briefcase from a company, while the company claims it did not receive the order. The company can offer into evidence the list it keeps of all orders received to prove that plaintiff’s order was not there.
EXAMPLE: Defendant is arrested and charged with carrying a firearm without a license to carry. The prosecutor can subpoena firearm license records from the department that keeps track of firearms licenses, and the prosecutor can show that a diligent search was made and no license was found for Defendant.
What is the rule for public records & reports 803(8)?
- need not show record was routinely made
- record, reports, statements or data compelation in any form
- of public offices or agencies
- setting fortht he activities of a public office or agencies
- matters observed by duty imposed by law
- certified copy self suthenticating
- DOES NOT include matters observed by police officers/law enforcement in criminal cases
- unless if offered by the accused
- In civil cases — factual findings from official invetigations pursuant to law
- All are inadmissible if lack trustworthiness
What are records of vital statistics 803(9)?
- Records or data compilations of births, deaths, or marriages are admissible if:
- report was made to a public office
- pursuant to requirements of law
What are family records 803(13)?
- Statements of fact concerning personal or family history
- contained in
- family bibles;
- genealogy charts;
- inscriptions on family portraits;
- engravings on tombstones,
- urns, crypts, etc.
What are statements in ancient documents 803(16)?
- found in a place where these items are typically found
- includes statements in a document in existence for more than 20 years
- different yr amount by state
What is required for the admissibility of learned treatises 803(18)?*********
- Includes statements made in treatises: textbooks, journals, periodicals, hornbooks
- may be read (not shown) into the record once authoritativeness established
-
REQUIREMENTS:
- Authoritiveness
- judicial notice
- expert do it (lay foundation)
- Subject area:
- Medicine
- Art
- Sicence
- History
- Authoritiveness
- FRE - use it for its substantive truth, STATES - some only to impeach
What is the rule for reputation as to character 803(21)?
- only deals with the hearsay aspect of this kind of evidence
- pay attention to whether it is a character issue or a hearsay issue
What is the rule for judgments of previous convictions 803(22)?
- final judgments of previous convictions of felonies punishable by more than one year are admissible
- a certified copy of the final judgment needed
- the judgment cannot be used except as to the accused
EXAMPLE: Defendant was convicted of being a felon in possession of a firearm. Certified copy of final judgment can be offered to prove Defendant was a convicted felon.
