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
