Hearsay Flashcards
What is the definition of hearsay?
An out-of-court statement offered for the purpose of established the truth of the matter asserted in the statement.
Why is H/S generally excluded?
It denies the opponent the opportunity to cross-examine the declarant.
Witness seeks to testify that Declarant said “I accept your offer.” Evidence is offered to prove an oral contract. Hearsay?
No. Verbal Acts or Legally Operative facts are OK.
What are Verbal Acts or Legally Operative facts with respect to H/S? Examples?
Words or written words that have relevant legal significance in the case by virtue of being spoken or written.
Words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission.
What are two ways in which an out-of-court statement can avoid the H/S rule?
If offered to show their effect on the person who heard or read the statement
If offered as circumstantial evidence of the declarant’s relevant state of mind.
When can a witness’ own prior statement be H/S?
When offered to establish its truth.
Criminal D is asked on direct “when you were arrested, what did you tell police?” D says “I told them the truth; I was innocent? H/S?
Yes
What are 3 types of prior statements of a witness, offered for their truth, that are NOT H/S?
PISs given under oath at trial, hearing, deposition, or other proceeding.
PCSs to rebut a charge of recent fabrication or improper motive/influence
Prior statements of identification made by a witness.
Six categories of exceptions/exclusions to the rule against H/S?
Admission of party (opposing party statement)
Former testimony
Statement against interest
Dying declaration
Spontaneous statements (many subcats)
Business records
What are the six types of spontaneous statements that are exempt from the rule against H/S?
Excited utterance
Present state of mind in issue
Statement of existing intent to prove intended act
Present sense impression
Declaration of present physical condition
Declaration of past physical condition
Does an admission of a party need to be against that party’s interest at the time it was made?
No
Does an admission of a party need to based on personal knowledge?
No
Can an admission of a party be in the form of a legal conclusion (e.g., I was negligent)?
Yes
When can a vicarious admission, made by the party’s agent, be admissible? Two elements
Made during the existence of the relationship
Concerning a matter within the scope of employment.
What are the 4 requirements for former testimony to be admissible?
Meaningful opportunity for cross in prior proceeding when the declarant gave live testimony
Testimony involves a similar issue/motive
Party against whom the testimony is offered must have been a party (or in privity with a party) in the first proceeding
Unavailability of declarant
Does a statement against interest require unavailability?
Yes
Against what interests must a statement against interest concern? (3)
Pecuniary, proprietary, or penal AT THE TIME THE STATEMENT WAS MADE
What is the limitation on a statement against interest at a criminal trial?
Must be supported by “corroborating circumstances that clearly indicate its trustworthiness”
How does a statement against interest differ from an admission of a party? (4)
SAI must be against the party’s interest at the time it was made
SAI can be made any person, not necessarily a party.
SAI requires personal knowledge
SAI requires unavailability
What are the requirements for a dying declaration? (4)
Made under a BELIEF of imminent death
Unavailability
Homicide or civil case
Must concern cause or circumstances of impending death.
A declaration of existing state of mind can come in when . . .
That state of mind is at issue in the case
A declaration of existing intent to do something in the future can be offered to . . .
Infer that the intended future act was committed.
What are the 3 requirements of an excited utterance?
Startling event
Made under stress of excitement
Concerning the facts of the startling event
How much time can lapse before an utterance is longer considered “excited”?
Depends. As long as the elements exist, the lapse of time does not matter (e.g., waking up from a coma).
How does a present sense impression differ from an exited utterance? (2)
Unnecessary to have a startling event or excitement
Must be contemporaneous. No time lapse is permitted.
Who is permitted to make a declaration of present pain, suffering, or physical condition?
Anyone who hears it.
What are the two requirements of a declaration of past physical condition?
Must be made to medical personnel
Must be pertinent to either diagnosis or treatment.
Who decides preliminary questions of fact upon which admissibility depends?
The judge
When deciding preliminary questions of fact upon which admissibility depends, which rules of evidence apply?
None
When a H/S statement has been admitted into evidence, what evidence may be used to attack the declarant’s credibility?
Any evidence which would be admissible for that purpose if the declarant had testified live as a witness.
What is the definition of business record?
Records of a regularly conducted business activity made at or near the time by, or from information transmitted by, a person with knowledge.
When are business records admissible?
If they are kept in the regular course of business and if it was the regular course of that business to make the record unless the source of information or circumstances of preparation indicate a lack of trustworthiness.
Admissibility of business records often turns on whether the entry is ______ to the business.
Germane.
X, an outsider, not under a business duty to obersve or report, perceives an event and reports it to ABC Co. ABC realizes that X’s statement is germane to its business and includes X’s statement in its record. Is the entry admissible under the business record exception to prove the truth of X’s statement? Why or why not?
No.
X does have the duty to accurate as a non-employee.
X wouldn’t be able to testify, so the exception can’t allow for it.
In what sort of case can a police report be considered a business record?
Civil
Even though an out-of-court statement qualifies as an exception to H/S rule, the accused _____ Amendment right of _______ may render the statement inadmissible when it is offered against the accused in a criminal case.
Sixth
Confrontation
In CRAWFORD V. WASHINGTON, the Supreme Court said that an out-of-court statement, even if it fits a H/S exception, will not be admitted IF (4 + an “unless”)
The out of court statement is offered against the accused in a criminal case; and
The declarant in unavailable; and
The statement was testimonial; and
The accused had no opportunity to cross-examine the declarant’s testimonial statement when it was made; UNLESS
The prosecution demonstrates that the defendant has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying.
What is the definition of “testimonial” statement?
Testimonial If declarant makes a statement that he or she anticipates will be used in the prosecution or investigation of the crime.
What are examples of “testimonial” statements?
Witness statements made to law enforcement in response to questioning
Formal proceeding testimony
Preliminary hearing testimony
Grand jury testimony
Motion to suppress testimony
Guilty plea allocutions of coconspirators
Forensic lab reports
What are the two tests used to determine whether a statement was testimonial?
Objective witness test
Primary purpose of police investigation test
Wife Madge makes a 911 call and tells the police responder that her husband Harvey is jumping on her, threatening her, and is now driving off. In this call, Madge identified Harvey as her attacked in response to questions from the responder. Madge did not show up and did not testify at Harvey’s trial at which he was charged with domestic assault and abuse. Is the 911 call admissible? Testimonial? Why or why not?
Yes.
Held admissible as a present sense impression and excited utterance. In DAVIS v. WASHINGTON, SCOTUS said that Madge’s statements were non testimonial.
Police were called to investigate a domestic disturbance. Wife Madge first told police that everything was OK and invited them into the house. Husband Harvey was questioned separately by one officer and he reported that he and Madge had argued, but all was OK now. Under questioning by the other officer, Madge described how Harvey had assaulted her and she signed a police statement to that effect. Madge did not show up and did not testify at Harvey’s trial. May the officer testify as to what Madge told him? Testimonial? Why or why not?
No.
Even if Madge’s statements qualified as an exception to the rule against H/S, the statements were testimonial and rendered inadmissible by the confrontation clause.
When are statements taken by police officers in the course of an investigation “non testimonial” and not subject to the confrontation clause?
When made under circumstances objectively indicated that the primary purpose of the investigation is to enable police assistance to meet an ongoing emergency.
When are statements taken by police officers in the course of an investigation “testimonial” and subject to the confrontation clause?
When the circumstances objectively indicate that there is no ongoing emergency and that the primary purpose of the investigation is to establishing or prove events potentially relevant to later criminal prosecution.
Which of the following statements would be testimonial? Statement to get help or statement to provide evidence?
Statement to provide evidence.
Which of the following motivations of the investigator/interrogator would be for a testimonial purpose? Secure the scene to get evidence or safeguard the victim?
Secure the scene to get evidence
Which of these events would lead to a testimonial statement? Ongoing emergency or Description of past events?
Description of past events
Which person is more likely to elicit a testimonial statement? Police officer responding or acquaintance/relative of the declarant?
Police officer
Which type of police questioning is likely to elicit a testimonial statement? Sustained, structured questioning or preliminary, on-scene questioning?
Sustained, structured questioning.
Can a lab report prepared by a lab technician indicating blood, alcohol, DNA, or drug results be admitted in a criminal trial without the presence of the lab technician who prepared it? Why or why not?
No. Confrontation clause issue.
When does the forfeiture by wrongdoing exception to the Confrontation Clause defense kick in?
When the defendant procured the unavailability of the declarant with the motive of keeping the declarant from testifying.
