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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

What is the analysis to determine hearsay

A

1) is it a statement?
Rule - a statement is an oral assertion, written assertion, or nonverbal conduct if intended to communicate (FRE 801(a))

2) was it made out of court
3) is it being offered to prove the fact it asserts

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2
Q

Data points for non-verbal assertion

A

1) Money signal about bike (meant to communicate that he didn’t have money)
2) Blast sight director taking family to blast sight with media (meant to communicate to media that sight was safe)
3) Wright v. Tatham - Captain inspecting ship (not meant to communicate anything)

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3
Q

How should close cases of assertions be resolved?

A

In favor of admissibility (Advisory Committee Notes)

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4
Q

Statement of Party Opponent exception

A

FRE 801 (d)(2)(a) - statement by opposing party being offered against an opposing party

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5
Q

Is personal knowledge required for all Hearsay exceptions?

A

No, not the 801(d) exceptions

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6
Q

What is the adoptive admission rule?

A

801(d)(2)(B) -

1) Heard and understood
2) at liberty to respond
3) circumstances called for a response (as in innocent people will respond to something that incriminates them)
4) Failed to respond or rebut

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7
Q

data points for adoptive admission rule

A

801(d)(2)(b)

Franklin v. Duncan - Father pointed at recording sign in prison when daughter asked why he wouldn’t tell the truth court held AA

US v. Beckham - “You can get another from my buddy” to cop and then def. walked up. didn’t protest that he couldn’t. Therefore, enough for AA

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8
Q

Rule for statement by agents

A

801(d)(2)(C),(D)

1) offered against the party
2) statement made by agent
3) Matter was w/in the scope of the relationship
4) While the relationship existed.

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9
Q

What is true of al 802 (d)(2) exceptions

A

they must be offered against the opposing party.

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10
Q

Data points for statements by agents

A

Mahlandt v. Wild Canid - note stating that wolf bit child was admissible against poos (under 801(d)(2)(a)) and employer b/c poos was an agent.

Pappas - statement of guy with bucket about day shift guys going home early was admissible b/c he was an agent. (note- needed more than statement to prove he was an agent)

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11
Q

Rule for coconspirator statements

A

801(d)(2)(E)

1) must be a joint venturer (doesn’t have to be charged w/ conspiracy)
2) Made during the conspiracy
3) Made in furtherance of the conspiracy

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12
Q

Data points for Coconspirator statements

A

Bourjaily -

US v. Abourmoussalem

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13
Q

What is the difference between 104(a) and 104(b)

A

104(a) - default rule, judge gets to decide preliminary questions by the preponderance of the evidence (e.g. was there a conspiracy in Bourjaily)

Questions of fact to determine conditional relevance go to jury (Huddleston) (104(b)) - e.g., are the TV’s stolen, Did cox learn of bond hearing (cox v state)

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14
Q

What is the difference between 801 (d)(1)(A) and FRE 613.

A

in the 801 exception the statement is being offered for the truth. In FRE 613 the statement is being offered to demonstrate inconsistencies and to undermine credibility.

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15
Q

What is the rule for prior inconsistent statements

A

801(d)(1)(A) - the prior statement must be

1) subject to perjury (under oath)
2) at a hearing at the time of statement
3) and subject to cross NOW

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16
Q

What is the rule for prior CONSISTENT statements

A

Prior consistent statements are admissible ONLY if they were made prior to the improper influence/motive to lie.

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17
Q

Why are prior CONSISTENT statements used?

A

Used to rebut a claim that the declarant witness fabricated a statement or acted from a recent improper motive or influence

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18
Q

Prior consistent statements data points

A

Tome v. US - Statements of child abuse victim to mother/doctor/social worker about father’s abuse were NOT allowed because they post date the custody battle and living with Mother was motive to lie.

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19
Q

What is the rule for statement of ID?

A

Rule 801(d)(1)(C) - admissible so long as the declarant is subject to cross.

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20
Q

Data point for Statement of ID

A

US v. Owens - Corrections officer was severely beaten by inmate. officer made ID while in hospital but doesn’t remember making the ID. Court allowed ID because the witness was available for cross during trial.

21
Q

What is the analysis for unavailable declarant

A

1)does the person qualify as unavailable (804(a))

2) is there an applicable exception? 
•	Former testimony?
•	Dying declaration?
•	Statement against interest?
•	Statement of personal or family history?
•	Forfeiture?
22
Q

What is the rule for being unavailable?

A

804(a)

o Privilege (spousal, attorney–client, 5th Amend.)
o Refuses to testify despite court order
o Testifies to not remember the subject matter
o Death or then-existing infirmity, physical illness, or mental illness
o Absent from hearing/trial and unable to procure the declarant’s attendance through reasonable means (i.e. subpoenaed and never shows up)

23
Q

What is the test for “former testimony” under unavailable

A

804(b)(1) 3 requirements

1) testimony given as a witness
2) at a trial, hearing, or deposition
3) opposing party had opportunity to cross (or predecessor in interest in a civil case (see alvarez)

24
Q

Data points for “former testimony”

A

DiNapoli - motive for cross was not similar enough at grand jury hearing to allow former testimony. evidence out

Lloyd - Coast guard hearing had same interest so opportunity for cross was there. Former testimony IS allowed (Civil case only)

25
Q

What is the rule for “dying declarations”?

A

rule 804(b)(2)

statement made why the declarant believed death was imminent, evidence is allowed.

26
Q

dying declaration data points

A

804(b)(2)

US v. Shepard - victim states to nuse that “[def.] poisoned me” but the declarant lasted for a month. Therefore, statement not in because not impending enough (if there is time to deliberate than there is time to lie).

27
Q

Rule for statements against interest

A

804(b)(3)

3 requirements:

1) Unavailable
2) Against interest under Williamson test
3) corroboration (if crim. exposing declarant to criminal liability.

28
Q

What is the Williamson test and what exception is it for.

A

Williamson test is for statement against interest exception 804(b)(3)

when the statement sufficiently against the interest of the declarant at the time it was made, so that a reasonable person would not have made the statement unless true, it’s admissible under 804(b)(3) (Williamson v. U.S.)

29
Q

Data points for statements against interest

A

Williamson - witness didn’t want to testify against def. b/c he was scared of retaliation. made statements to the police that incriminated him and the def. Court held that only the statements that incriminated himself were allowed.

30
Q

When is a statement against interest.

A

if it is against the declarant’s proprietary or pecuniary interests (exposes one to civil or criminal liability)

e.g., fatal attraction clip does not expose declarant to civil/criminal liability

31
Q

What must the court do if the statement is offered in a criminal case b/c the statement exposes the declarant to criminal liability.

A

Court must use the following AC factors to indicate trustworthiness

1) timing & circumstances of the statement
2) declarant’s motive in making statement, reason to lie
3) declarant repeated statements, under different circumstances
4) party or parties to whom the statement was made
5) relationship of declarant to opponent of the evidence
6) nature and strength of independent evidence

compare with Harrison ford clip (“Yeah, I did it”)

32
Q

What is the rule for forfeiture

A

804(b)(6)

3 parts:

1) party against whom the statement if offered engaged or acquiesced in wrongdoing
(2) intended to render the declarant unavailable as a witness
3) wrongdoing did render declarant unavailable

33
Q

Forfeiture data points

A

US v. Gray - wife kills husband so he won’t testify against her in a criminal case. DA is allowed to use his statement against her in a later case about mail fraud. Doesn’t have to be for the specific case.

34
Q

What is the present sense impression rule?

A

803(1)

2 elements:

1) describing or explaining event or condition
2) during or immediately after event

35
Q

What is the rule for excited utterance

A

803(2)

2 elements:

1) stressful event
2) statement made under the stress of excitement
a) test to determine “how long” - Has the declarant regained “the capacity for reflection and [the ability to] produce utterances of conscious fabrication?”

36
Q

What is the rule for then existing condition

A

803(3)

Statement of the declarant’s then-existing state of mind or physical condition offered to prove future events and/or intentions!

37
Q

Data points for then existing condition

A

Hillmon - Letter admitted that shows 2 things: Friend of deceased is going to leave to Wichita; and Friend is going to travel with Hillmon

Shephard - Statements of wife that husband poisoned her were NOT allowed to show that she wasn’t suicidal (not allowed for dying declaration) b/c they were not intentions of the future.

Advisory notes - ok to allow for intentions of declarant but not intention of 3rd party

38
Q

Rule for statements for medical Diagnosis

A

803(4)

2 elements:

1) statements made for medical diagnosis/treatment
2) describes: medical history, symptoms/sensations, their inception or their general cause

what is allowed; not who

39
Q

What is the exception for “who” Statements in medical diagnosis exception?

A

Child abuse cases b/c the doctor needs to know if it’s a family member in order to prevent further abuse (US v. Joe)

40
Q

test for first prong of medical diagnosis test

A

803(4) Reasonably pertinent for medical history test (From Iron Shell)

1) consistent motive w/ purpose of rule
2) reasonable for doctor to rely on statements

41
Q

What is the rule regarding writings used to refresh memory?

A

FRE 612

can use writing to refresh memory before or during testimony but must produce, be subject to cross, and opposing party can enter

42
Q

Recorded Recollections Rule

A

803(5)

Elements:

(1) witness once had knowledge
(2) now has insufficient recollection to testify fully
(3) statement made or adopted when matter fresh in memory
(4) and statement accurately reflects knowledge

43
Q

Recorded recollection data points

A

Rathbun - envelope with license plate on it not allowed because it wasn’t adopted when fresh in memory.

44
Q

Can the jury see a writing that’s admitted for recorded recollection?

A

No, it must be read into the record

45
Q

What’s the difference between recorded recollection (803(5)) and FRE 612?

A

612 doesn’t require a statement written or adopted by the witness, just has to refresh the witnesses memory

46
Q

What is the rule for business records?

A

803(6)

4 elements

1) made at or near the time incident/conduct
(2) made by (or from information transmitted by) a person with knowledge
(3) regularly conducted business activity
(4) it’s the business’s regular practice to make such records

47
Q

Business Record data points

A

Palmer v. Hoffman - RR company Record detailing accident in preparation not a business record b/c not regular course of business to prepare for litigation

Vigneau - records don’t extend to statements by people outside of business. In this case, statements to western union cashier b/c there is no reliability.

48
Q

What is the rule for public records?

A

803(8)

Evidence (8 decks)

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