Hearsay Flashcards
Prior Statements EXCLUDED from Hearsay Rule
- Prior Sworn Inconsistent Statement
- Prior Consistent Statement
- Prior Identification
declarant must testify
Broad Categories of Hearsay EXEMPTIONS (2)
Declarant-Witness Prior Statements - PSInS; PCS; PI
Certain Statements Made by Opposing Party - D.A.A.V.Cc
Requirements for Prior Statements to be EXCLUDED from Hearsay rule
- Declarant must testify at trial or hearing
- is subject to cross examination
- Statement is
Prior Sworn Inconsistent Statement;
Prior Consistent Statement;
Prior Identification
Prior Sworn Inconsistent Statement
Non-Hearsay admissible as substantive evidence. they were subject to penalty of perjury depositions and grand jury testimony not affidavit.
Made under oath and subject to cross-examination.
Prior inconsistent statements not made under oath and subject to cross-examination are not hearsay when offered to impeach.
Prior Consistent Statement
admissible substantive evidence
rebut charge of recent fabrication, improper influence,or motive.
MADE PRIOR TO THE TIME THE REASON FOR BIAS OCCURRED.
Prior Identification
Statement identifies a person as someone declarant perceived earlier.
declarant (eyewitness) is presently testifying
Statements of Prior Identification are non-hearsay
Opposing Party Statements
Are Not hearsay when offered against an opponent and is: (5)
- Made by the party, agent or representative
- manifested or adopted the statement as true
- authorized by party on the subject (does not establish authority)
- party’s employee in the scope of relationship while it existed.
- made by co-conspirator in the furtherance of the conspiracy.
Admissions that are NOT hearsay
Direct Adoptive Authorized Vicarious Co-Conspirator Statements
Direct Admissions - as distinguished from statement against interest
Direct Admissions are exempt from hearsay rule
Statement is made by a party opponent may be fact or opinion PERSONAL KNOWLEDGE NOT REQUIRED - as in SAI exception which requires personal knowledge Party need not be available.
Adoptive Admissions - Characteristics
Reasonable person would have denied the assertion.
Evidence shows the party HEARD, UNDERSTOOD, and ADOPTED
Once Miranda Rights given adoptive admissions no longer apply
Hearsay Defined
Out of Court statement
Offered for
Truth of the matter Asserted
Statement - Defined
oral or written assertion, or
nonverbal conduct intended as an assertion.
Assertive Conduct - examples
conduct intended to communicate
Pointing to Identify or give directions
nodding the head in assent or shaking head No
Obscene gestures
Sketch of a police artist
Non Assertive Conduct - Implications and examples
not intended to communicate
NOT hearsay
requires no exception for admission.
Video of Defendant showing demeanor
defendant walking with a limp showing injury or impairment
Defendant hiding evidence or fleeing scene.
Who can make a statement?
Declarant must be a human.
Actions of animals or machines are not statements.
5 Step Hearsay Analysis Approach
- Isolate words
- who is the declarant
- is it an assertion
- purpose for which evidence is being offered
a. if for truth = hearsay - go to step 5
b. if not for truth = not hearsay
(1) to impeach
(2) Rule 801(d)
(3) verbal acts
(4) State of mind - Apply Hearsay Exceptions
Declarant UNAVAILABLE Exceptions - (5)
Former Testimony Dying Declarations Statement against Interest Statements of Personal or Family History Forfeiture by Wrongdoing - Statement offered against a party wrongfully causing declarants unavailability.
TOP HEARSAY EXCEPTION
Declarant IS a Party
Party admission
Statement offered by an opponent is admissible, even where the statement was not against the party’s interests when made. May be words letters or documents.
TOP HEARSAY EXCEPTIONS
Where Declarant is ANYONE
- Excited utterance
- Present Sense Impression
- Then-Existing Mental, Physical, or Emotional condition
- Medical Treatment or Diagnosis
- Business and Public Records
Evidence offered for a NON hearsay purpose
- Effect on listener - witness overhears statement to manager to clean up spill is admissible to show knowledge.
- State of mind
- Verbal Acts - words of independent legal significance
- Condition of a person
- Nature of a place
Words of Independent Legal Significance
not Hearsay
Transactional Words
Tortious Words
Vicarious Admission
NOT HEARSAY
- Statement made during employment
- concerns matter within scope of employment
Authorized Admission
NOT HEARSAY
Statement made by party’s agent or representative
Agency can be express or implied
Co-Conspirator Statements
NOT HEARSAY
- Existence of conspiracy preliminary fact to be proven court by preponderance of the evidence
- made by member of conspiracy
- in furtherance of conspiracy
- during existence of conspiracy
