Hearsay Flashcards
Hearsay: definition
1) out of court statements
2) offered to prove truth of the matter asserted
Common Non-hearsay Purposes
1) verbal act: legally operative words
2) show effect on person who heard or read the statement
3) circumstantial evidence of speaker’s state of mind
Hearsay: prior statements of trial witnesses, general rule
a witness’s own prior statement if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSIBLE unless an exception or exclusion applies
Hearsay: prior statements of trial witnesses, exceptions
1) identification of person
2) prior inconsistent statement IF oral, under oath, made during formal hearing, deposition, or trial
3) prior consistent statement IF being used to rebut charge of recent fabrication or improper motive or influence
Hearsay: party admissions (opposing party statements) general rule
1) any statement made or adopted by a party is admissible for the truth of the matter asserted
2) if offered against a party
Hearsay: adoption by silence
1) party who hears another person’s statement
2) remains silent under circumstances in which a reasonable person would protest if the statement was false
Hearsay: vicarious party admission
1) statement by employee/agent
2) ADMISSIBLE against employer/principal
3) IF concerns matter within scope of employment/agency
4) and is made during the existence of the employment/agency relationship
Hearsay: co-conspirator’s statement
1) ADMISSIBLE if
2) made during and in furtherance of the conspiracy
Hearsay: exclusions, or “non-hearsay”
1) identification of person
2) prior inconsistent statement IF oral, under oath, made during formal hearing, deposition, or trial
3) prior consistent statement IF being used to rebut charge of recent fabrication or improper motive or influence
4) party admissions
5) Vicarious party admissions
6) co-conspirator’s statements
Hearsay: exceptions
1) forfeiture by wrongdoing
2) former testimony
3) statement against interest
4) dying declaration
5) excited utterance
6) present state of mind
8) declaration of intent
9) present physical condition
10) statement for purpose of medical treatment or diagnosis
11) business records
12) public records
Confrontation Clause: rule
1) 6th amend
2) prosecution may not use hearsay statement against criminal D IF:
3) statement is testimonial
4) declarant is unavailable
5) D has had no opportunity for cross-exam before, after, during trial
Confrontation Clause: grand jury
testimonial
Confrontation Clause: testimonial statements in response to police interrogation
1) primary purpose of questioning
2) is to establish or prove
3) past events potentially relevant to later criminal prosecution
Confrontation Clause: non-testimonial statements in response to police interrogation
1) primary purpose of questioning
2) is to enable police assistance
3) to meet an ongoing emergency
Confrontation Clause: ongoing emergency
1) situation in which the crime has recently ended
2) perpetrator is armed
3) he still poses a threat to the victim
4) OR the police or public at large
Confrontation Clause: documents
1) business record = non-testimonial
2) sworn affidavits = testimonial
3) forensic lab report = testimonial if primary purpose is to accuse a targeted individual
Confrontation Clause: forensic lab reports
1) testimonial if primary purpose is to accuse a targeted individual
2) DNA report is non-testimonial if analyzes a sample of fluid collected from crime scene for the purpose of developing a DNA profile if no particular person is suspected
3) no violation if prosecutor calls testifying expert who performed an independent analysis of the data and the expert only generally refers to the report to show a partial basis for her opinion without reading the report to the jury or introducing it as an exhibit
Hearsay exception: forfeiture
1) declarant unavailable due to D’s wrongdoing
2) court must find:
3) by preponderance of evidence
4) D’s conduct designed to prevent
5) witness from testifying
6) also a confrontation clause waiver
Hearsay exception: former testimony of now-unavailable witness
1) if given at a former proceeding or in a deposition
2) admissible against a party
3) who had prior opportunity and motive to cross-exam or develop the testimony of the witness
4) issue in both proceedings must be essentially the same
5) NOTE: grand jury testimony not ok for prosecution witness but Ok for defense b/c prosecution had opportunity and motive to develop testimony
Hearsay exception: grounds for unavailability of witness
1) privilege
2) cannot find witness with due diligence
3) beyond the court’s subpoena powers
4) illness or death
5) lack of memory which cannot be refreshed
6) stubborn refusal to testify
Hearsay exception: statement against interest
1) applies to all unavailable witnesses
2) must be against pecuniary, proprietary, or penal interests
Hearsay exception: statement against interest vs. party admission
1) against interest when made vs. offered against
2) any person vs. party
3) personal knowledge is required for against interest
4) declarant must be unavailable vs. party
Hearsay exception: statement against penal interest in criminal case
must be supported by circumstances showing trustworthiness of the statement
Hearsay exception: dying declaration
1) statement made under belief of impending and certain death by a now-unavailable declarant concerning cause or surrounding circumstances of the declarant’s death
2) criminal for homicide cases
3) civil for any case
Hearsay exception: Excited Utterance
1) statement concerning a startling event
2) and made while declarant is still under the stress of excitement caused by event
Hearsay exception: Excited Utterance what to look for
1) nature of event
2) passage of time
3) visual clues: exclamatory phrase, excitement oriented verbs, exclamation point
Hearsay exception: present sense impression
1) description of an event made while the event is occurring or immediately thereafter
2) immediately means seconds
Hearsay exception: present state of mind
1) contemporaneous statement
2) concerning declarant’s present state of mind, feelings, emotions
Hearsay exception: declaration of intent
1) statement of declarant’s intent
2) to do something in the future including
3) intent to engage in conduct with another person
Hearsay exception: present physical condition
1) statement made to anyone
2) about declarant’s current physical condition
Hearsay exception: statement for purpose of medical treatment or diagnosis
1) may be made to anyone, but most often medial personnel
2) for the purpose of obtaining medical treatment or diagnosis
3) IF it concerns declarant’s
4) present symptoms
5) past symptoms
6) general cause of condition
7) not including statements describing details of liability or identity of tortfeasor unless in an abuse case
8) does not include statements made by doctor to patient
Hearsay exception: business records, elements
1) records of a business of any type
2) made in the regular course of business
3) the business regularly keeps such records
4) made contemporaneously
5) contents consist of information observed by employees of the business or statement that falls within an independent hearsay exception
Hearsay exception: proving business records foundation
1) call sponsoring witness to testify to 5 elements
2) witness need not be author of report, just a knowledgeable person in business or records custodian
3) written certification under oath attesting to elements of business records with advance notice to opposing party
Hearsay exception: public records
Records of public office or agency setting forth:
1) activities of the office or agency
2) matters observed pursuant to a duty imposed by law
3) findings of fact or opinion resulting from an independent investigation authorized by law
4) POLICE REPORTS excluded in criminal cases when prepared for prosecutorial purposes
Impeachment of Hearsay declarant’s
1) any impeachment method
2) if inconsistent statement, the usual requirement that the declarant be given an opportunity to respond is waived
