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Evidence > ** Hearsay ** > Flashcards

** Hearsay ** Flashcards

1
Q

Hearsay:

Definition

General Rule

A

= an out-of-court statement presented in court to prove the truth of the matter asserted

N/a to:

  • machines (ex: clock)
  • animals (ex: K-9 unit drug team)

GEneral rule:

  • Hearsay is inadmissible unless an exclusion applies
  • (b/c opponent had no opp’y to cross ex. when statement made)
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2
Q

Hearsay:

3 common non-hearsay purposes

A

Not hearsay = An out-of-court statement which is NOT offered for its truth (so we don’t care abt credibility of declarant)

1) Legally operative words

  • legal rights/obligations attach SIMPLY b/c words were spoken
  • Includes: (where subjective understanding irrelevant)
    • Contract formation/repudiation, E.g. “I heard Trump say to Gates, ‘I accept your offer’”
    • patent
    • making a gift,
    • bribe,
    • perjury,
    • misrepresentation,
    • defamation,
    • permission

2) To show effect on listener/reader of the stmt

  • ex: Prior notice (of dangerous condition)
    • E.g. “I heard the supermarket clerk say that the floor was wet” (purpose: speaker was on notice)

3) Circumstantial evidence of declarant’s state of mind

  • Insanity,
    • E.g. “Two days before the killing, Homer said, ‘I am Elvis Presley.’”
  • lack of knowledge (implicit meaning)
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3
Q

Hearsay:

Prior TEstimony

& exceptions

What are 3 categories out-of-court statements asserted for their truth that are STILL admissible as “nonhearsay”? NOTE: NY Distinction

A

General rule: out-of-ct statements canNOT be repeated by W on the stand

3 exclusion/exceptions:

  • 1) Prior identification of a person
    • effect: substantive evidence
  • 2) Prior inconconsistent statement IF:
    • oral testimony under oath
    • effect:
      • NY: impeach only
      • FRE: impeach & substantive evidence
  • 3) Prior consistent statement
    • IF charged w/recent fabrication
    • effect:
      • NY: impeach only
      • FRE: impeach & substantive evidence
  • 3) Statements by opposing party
    • is admissible if it is o_ffered against the opposing party_
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4
Q

What are the 12 key EXCEPTIONS to the hearsay rule?

A
  • 1) Excited utterance
  • 2) Present sense impression
  • 3) Present state of mind
  • 4) Declaration of intent
  • 5) Present physical condition
  • 6) Stmt for the purpose of obtaining medical treatment/diagnosis
  • 7) Business records
  • 8) Public records
  • 9) Learned treatise
  • 10) Past recorded recollection

Requiring UNAVAILABITY of declarant…

  • 11) Forfeiture by wrongdoing (in 6th Am confrontation req on hearsay rules)
  • 12) Former testimony
  • 13) Statement against interest
  • 14) Dying declaration
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5
Q

Confrontation Clause

A

6th Amend: Criminal D’s have right to “confront witnesses” who testify against them

Applies where: prior statemnt offered against Criminal D

  1. testimonial evidence
    1. (i) grand jury/former proceeding (regulatory/judicial)
    2. (ii) sworn affidavits
    3. (iii) police interrogation IF primary prupose of questioning was to prove past events potentially relevant to criminal prosecution
      1. (primary purpose is to respond to ongoing emergency –> not)
    4. (iv) forensiv lab report IF primary purpose is to accuse a targeted suspect of criminal conduct
      1. not if used by expert as basis for opinon (jury to evaluate)
  2. & declarant is unavailable for cross-examination
  3. no opportunity to cross-examine when statement made

​(applies if:

  • affidavit of forensic evidence & lab tech is unavailable)
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6
Q

What are the grounds for UNAVAILABILITY as required by certain hearsay exceptions? NOTE: NY Distinction

A

FRE:

  • 1) Privilege
  • 2) Absence from the jx:
    • (i) can’t find declarant w/ due diligence;
    • OR (ii) declarant is beyond ct’s subpoena pwr
  • 3) Illness/death
  • 4) Lack of memory
  • 5) Declarant’s refusal to testify (even if they’d be in contempt)

NY has two ADDITIONAL grounds for unavailability (for CIVIL CASES ONLY)…

  • FRE’s 1-5
  • 6) Declarant is > 100 miles from ct house
  • 7) Declarant is a physician
    • (public policy favors that the dr. continues their work rather than testify AGAIN)
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7
Q

Hearay Exception:

Foreiture by Wrongdoing

A

Hearsay statemnt admissible agianst D whose wrongdoing made the W unavailable, if:

  • (i) D’s wrongdoing made the W unavailable
  • (ii) D’s conduct was specifically designed to prevent W from testifying

Burden of Proof:

  • FRE: Preponderance of evidence
  • NY: Clear & convincing evidence
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8
Q

Hearsay:

Former testimony exception

A

Former testimony is ADMISSABLE against a party who had:

  • i) declarant now unavailable
  • ii) Opportunity and motive to c_ross the witness_;
    • iii) The issue was essentially the same

NOTE: Don’t confuse w/prior inconsistent statement under oath in formal proceeding = nonhearsay exclusion.

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9
Q

Hearsay exception:
Statement against interest

(3 elements for civil,

4 elements for criminal)

A

Former out-of-court statements admissible IF:

  • (i) declarant unavailable
  • (ii) when made, statement was against:
    • a) pecuniary interest
      • (against financial interest)
    • b) proprietary interest
      • (against property ownership)
      • ex: gave gift to x
    • OR c) penal interest
      • (expose to criminal liability)
    • (iii) declarant knew was agianst interest
  • (iv) IF Criminal trial, corroborating evidence of statement’s truth
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10
Q

\Hearsay Exception:
Dying Declaration

A

What type of case?

  • FRE: Homicide OR civil (any type)
  • NY: Homicide only

Statement by a now-UNAVAILABLE declarant is admissible IF made:

  • (i) Declarant is unavailable
  • (ii) Declarnt under belief of impending & certain death
  • (iii) statement concerns cause/circumstances of impending death

NOTE*** Exempt from COnfrontation Clause, even if testimonial

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11
Q

What is the “excited utterance” exception to hearsay?

A

(Declarant need not be unavailable)

Excited Utterance is a

  • 1) stmt concerning startling event;
  • 2)made while declarant is still under stress of excitement it caused.
  • Factors to consider…
    • (visual clues in q- !’s, etc)
    • i) the nature of the event
    • ii) the passage of time
      • (no bright line but >1hr is less likely to be valid)
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12
Q

Hearsay Exception:

“present sense impression”

NOTE: NY Distinction

A

(Declarant need not be unavailable)

Statement:

  • i) describing event
  • i) WHILE event is occurring OR immediately thereafter (descriptive but not necessarily emotional)

NY:

    • iii) corroborating evidence of the contents of the present sense impression
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13
Q

Hearsay exception:

Present state of mind

A

(delcarant need not be unavailable)

Statement:

  • i) Statement regarding declarant’s present
    • state of mind
    • feelings
    • emotions

NOTE: Can overlap w/ non-hearsay exclusion for circumstantial evidence of declarant’s state of mind (e.g. insane)

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14
Q

Hearsay exception:

Present PHysical Condition

NOTE: NY Distinction

A

(Declarant need not be unavailable UNLESS NY + to layperson)

Statement:

  • made to ANYONE
  • about declarant’s current physical condition
  • (+ NY: if to lay person, declarant unavailable)
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15
Q

Hearsay Exception:

Statement for Medical Treatment/Diagnosis

(NY Distinction)

A

Statement is admissible IF Made:

  • 1) To ANYONE
    • need not be (e.g. doc, nurse, EMT, psychologist);
    • NY: NOT if made to expert for purpose of trial only
  • 2) Concerning past/present symptoms or general cause of condition;
  • +3) For the purpose of diagnosis/treatment

​Identification of tortfeasor?

  • NOT UNLESS ID of an abuser in a domestic/child context
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16
Q

Hearsay exception:

Declaration of Intent

NOTE: NY Distinction

A

(Declarant need not be unavailbale UNLESS NY + joint participation)

Statement of

  • (i) intent by declarant to do something
    • (ii) in the future, including w/another person.

NY: if to prove JOINT particpation of another person, must show:

  • (1) Declarant unavailable
    • (2) corroboration of existent relationship between declarant and other person
17
Q

Hearsay exception:

Business Records

A

MUST lay foundation:

  • 2 ways:
      1. W testifies as to 5 elements (has personal knowledge/knowledge of the business & records)
    • OR 2. Written certification under oath & advance notice
    • NY: must be particular type case:
      • A. Business = hospital
      • B. Business = state OR local govt
      • OR C. civil case –> business records are of NONPARTY + produced for inspection in discovery

Statements in:

  • i) business of any type
    • *hospital
    • *doctor
    • * police (not against crim D)
  • ii) in regular course of business
    • ​(not prep for trial)
  • iii) business routinely keeps such records
  • iv) made at/about time event occurred
  • v) contents are either:
    • A) info observed by employees
      • ​(NOT outsider; yes –> public records)
    • OR B) statement that falls w/in independent hearsay exception
18
Q

Hearsay Exception:

Public Records

NOTE: NY Distinction

A

Allows as ADMISSIABLE any

  • i) public record of a public office or agency
  • ii) setting forth:
    • 1) the a_ctivities of the office/agency_ (e.g. payroll records);
    • OR 2) matters observed p/t a duty imposed by law;
    • OR 3) findings of fact or opinion resulting from an investigation authorized by law
      • (even if info come fron an outsider)

EXCEPTION: the public record exception

  • does NOT include police reports prepared for prosecutorial purposes against a CRIMINAL D

​ NY:

  • this doctrine is NOT well developed in NY; usually use business records
  • conclusions/opinions contained in a gov’t investigatory report are admissable ONLY IF
    • (i) the report sets forth adequate facts;
    • AND (ii) the person giving the opinion is qualified
19
Q

How can a party impeach a hearsay declarant?

A

ANY impeachment method may be used to attack the credibility of a hearsay declarant whose stmt was admitted into evidence

20
Q

When is a “statement” subject to the hearsay exclusion rule?

A

STEP 1: Is the stmt offered to prove the matter asserted? [No = (i) legally operative words; (ii) stmts offered to show effect on hearer/reader; (iii) stmts offered to show declarant’s state of mind] YES: STEP 2 NO: NOT HEARSAY, so not subject to hearsay exclusion rule STEP 2: Is the stmt a nonhearsay exclusion? [Exclusion = (i) prior inconsistent stmt given under oath; (ii) prior consistent stmt used to rebut a charge that witness is lying/has improper motive; (iii) stmt of ID of a person; (iv) party admission] YES: NONHEARSAY, so not subject to hearsay exclusion NO: STEP 3 STEP 3: Does a hearsay exception apply? [(i) excited utterance; (ii) present sense impression; (iii) present state of mind; (iv) declaration of intent; (v) present physical condition; (vi) stmt for medical treatment; (vii) business records; (viii) public records; (ix) former testimony; (x) stmt against interest; (xi) dying declaration (xii) forfeiture] YES: ADMISSIBLE, provided it’s not excluded under any other rules (e.g. best evidence, relevancy, etc) NO: INADMISSIBLE, stmt IS excluded by hearsay rule

21
Q

What is the rule of double hearsay?

A

If a hearsay stmt is included WITHIN another hearsay stmt, the evidence is inadmissable UNLESS each stmt falls w/in a hearsay exception E.g. “A told me what B said”; to be admitted, A’s stmt may be an excited utterance in response to B’s excited utterance

22
Q

Hearsay exception: Ancient documents

A
  • Documents > __ years
    • Fed: 20 years
    • NY: 30 years
  • that is found in place would naturally find it
23
Q

Hearsay exception:

Disposition of property document

A

Docs that dispose of property = admissible as exception to hearsay exclusion

24
Q

Hearsay exception:

Past Recorded Recollection

A

Hearsay exception IF:

  1. W’s memory of the writing’s subject matter cannot be refreshed
  2. Writing made by W OR at his/her direction OR adopted by W
  3. At or near the time of the event
  4. W testifies that it was accurate at time created

Effect: can read into evidence

  • adverse party can offer as exhibit
25
Q

Hearsay exception:

Learned Treatise

A

Fed: IS admissible as substantive evidence (read in) IF:

  1. Called to attention of expert during cross OR relied upon during direct
  2. Established as reliable authority by testimony/admission of the W OR another expert
    3.
26
Q

Hearsay exception:

Public Records

A

Records of public agency ARE admissible IF sets forth either:

  1. activities of the office/agency,
  2. Matters observed pursuant to duty imposed by law
  3. OR factual findings of agency IF is:
    1. civil case
    2. criminal case, presenting against the govt
27
Q

Hearsay exception:

Record of a Prior Judgment

A

Record of a prior Civil/Criminal (NOT agency) judgment = admissible

28
Q

Hearsay exception:

For Personal & Family History

A

Evidence can be admitted if:

  1. Declarant is unavailable
  2. Declarant is member of family/otherwise intimitely associated w/the family –> likely to have accurate info
  3. Basis of knowledge = personal knowledge OR knowledge of family reputation
29
Q

Hearsay Exceptions:

Catch-all

A

Hearsay evidence may be admissible IF:

  1. is supported by “circumstantial guarantees of truthfulness”
  2. *MUST be more probative of a material fact than any other evidence which a proponent may reasonably produce
    • Proponent must give notice to other party before trial as to the nature of the evidence
30
Q

Hearsay exception:

Statements by a party opponent

A

*Always admissible IF offered against the declarant-party

NY DISTINCTION: stmt is admissible against principal/employer ONLY IF the principal/employer gave agent the authority (express or implied) to speak on the matter Co-conspirator’s stmts: a stmt of a co-conspirator is admissible against a party who was a member of the conspiracy IF the stmt was made (i) during; AND (ii) in furtherance of the conspiracy

31
Q

Hearsay:

Adoptive admission as statement

Vicarious party admission

Coconspirator statement

A

Adoptive admission: if a party expressly or impliedly adopts a stmt made by another person, it is AS THOUGH the party herself made the stmt

Vicarious party admission: stmt by AGENT/EMP is admissible against principal/employer IF:

  • FRE:
    • (i) the stmt concerns matters w/in scope of agency/employment;
      • (ii) is made during the existence of the agency/employment relationship
  • NY:
      • (iii) agent/ee was _authorized to speak on matter _
        • implicit (ee is upper level manager)
        • /explicit

Co-conspirator’s statement:

  • IS admisisble agaist party who was member of conspiracy IF:
    • (i) made during
    • (ii) + infurtherance of the conspiracy

Evidence (7 decks)

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