Hearsay Flashcards
Name the exceptions to the hearsay rule that apply only if the declarant is unavailable as a witness
- Former Testimony
- Dying Declaration
- Statement Against Interest
- Statement of Personal or Family History
- Statements Offered Against a Party that Wrongfully Caused Declarant’s Unavailability
Name the exceptions to the hearsay rule that apply regardless of the declarant’s availability
- Present Sense Impression
- Excited Utterance
- Statement of Mental, Emotional, or Physical Condition
- Statement Made for Medical Diagnosis or Treatment
- Recorded Recollection
- Records of Regularly Conducted Activity (Business Records)
- Public Records
- Learned Treatises
- Judgment of Previous Conviction
(…And other minor exceptions)
Define hearsay
Hearsay is an out of court statement offered to prove the truth of the matter asserted
When is hearsay admissible?
Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion set out in the Federal Rules of Evidence, a federal statute, or a Supreme Court rule
Name four ways an out of court statements can be offered to prove something other than the truth of the matter asserted
- Legally Operative Facts (i.e., a statement offered to prove that the statement was made, regardless of its truth… not hearsay)
- Effect on Recipient (i.e., a statement offered to show the effect on the person who hear it… not hearsay)
- State of Mind (i.e., a statement offered as circumstantial evidence of the declarant’s mental state… not hearsay)
- Impeachment (i.e., a statement offered solely to impeach a witness… not hearsay)
When does a statement fall under the “dying declaration” exception to the rule against hearsay?
First, the declarant must be unavailable as a witness.
Then, a statement qualifies as a “dying declaration” if:
1) the declarant believes that her death is imminent; and
2) the statement pertains to the cause or circumstances of the death she believes is imminent.
- The declarant need not have actually died
- The dying declaration exception applies only in homicide prosecutions and civil cases
When is former testimony of an unavailable witness excepted from the rule against hearsay?
The testimony of an unavailable witness falls into an exception of the rule against hearsay when:
i) the testimony was given as a witness at a trial, hearing or lawful deposition; and
ii) the party against whom the testimony is offered had an opportunity and similar motive to develop the testimony on direct examination, redirect examination, or cross-examination.
What three types of prior statements are statutory non-hearsay?
- Prior Inconsistent Statements
A prior inconsistent statement made under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition may be admissible to impeach the declarant’s credibility and as substantive evidence. - Prior Consistent Statements
A prior consistent statement, whether made under oath or not, may be admissible to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying. Such a statement is admissible only if it was made before the declarant had reason to fabricate or the improper influence or motive arose. - Prior Statements of Identification
A previous out-of-court identification of a person after perceiving that person (e.g., a lineup or photo array) is not hearsay and may be admissible as substantive evidence. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification
When are the records of a regularly conducted activity (business records) excluded from the rule against hearsay?
A record (e.g. a memorandum, report, data compilation) of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if:
- The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
- The making of the record was a regular practice of that activity; and
- The record was made at or near the time by someone with knowledge.
When is a recorded recollection not excluded as hearsay?
If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the following foundation is established:
- The record is on a matter that the witness once knew about;
- The record was made or adopted by the witness when the matter was fresh in the witness’s memory;
- The record accurately reflects the witness’s knowledge; and
- The witness states that she cannot recall the event well enough to testify fully and accurately.
When can evidence of a criminal conviction be admissible in a subsequent civil action?
When the defendant was found guilty of a crime punishable by death or imprisonment of more than one year.
What is the definition of an excited utterance?
An excited utterance is a statement made about a startling event or condition while the declarant is under the stress of excitement that it caused.
Excited utterances are not excluded from evidence, despite being hearsay. The event must shock or excite the declarant, and the statement must relate to the event.
Can a testifying witness’s prior inconsistent statement in a civil case (A) be used as substantive evidence in a later, unrelated criminal case (B)?
Yes. A prior inconsistent statement made under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, may be admissible as substantive evidence. Even a statement made in another action that is unrelated to the current action may be admitted under this rule.
Can a criminal defendant waive the exclusion of statements made during a please negotiation?
Yes. Although statements made by a defendant during plea negotiations are generally inadmissible, the protection afforded by this rule may be waived by the defendant if done knowingly and voluntarily.
