Hearsay Flashcards
Hearsay - Elements (3)
- Statement - oral/written or non verbal conduct with intention
- Made by declarant outside of trial or hearing proceeding
- To prove the truth of the matter asserted
Hearsay - Gral Rule as E
EXCLUDED unless allowed by rule
Hearsay - Typical examples of NOT HEARSAY bc they are not offered to prove the truth of the matter (3)
- Statements of independent legal effect despite of their truhtness or falsity. i.e. “Ill give you my apple stocks”
- Statements offered to prove a statement was made as notice (“these steps are loose”) or reason for duress (“sign this or ill break your knees”) or other injury such as defamation (“Juan is a communist”)
- Statement offered to show declarant perception when such perception is relevant for case (i.e. for self defense. “B told me that A wanted to kill me”. Enough to generate fear of inminent harm despite of truthness or falsity of original statement)
Hearsay - Conduct as Assertion Rule
As testimony on conduct that happen out of court
- Condcut allows for inference
- I_F it was intended to assert a statement then it willbe hearsay_
i. e. To establish that iwas raining on X day, investigator asks declarant if people were walking with umbrellas that day, he said yes, hence he infers that he had knowledgeof the rain.
Hearsay - Silence as an assertion
Rules for adoptive admission appliy - hnece it can be not-hearsay despite definition
Hearsay - Examples of not hearsay despite meeting criteria - FRE 801d) (2) Main criterias
- Prior statement by witness
- Opposing party statement: a) by own party, b) adoptive statement, c) by auhtorized person, d) by agent, and e) by co-conspirator
Hearsay - Examples of not hearsay despite meeting criteria - Prior Statement by W (under oath) / gral reqs
- Made under oath at trial or hearing
- Subject to cross examination
- Admissible unless credibility of W is attacked
Hearsay - Examples of not hearsay despite meeting criteria - Prior Statement by W (under oath) / (3) types
Can be:
- Inconsistent with current testimony by W
- Consistent: made before recent lie, improper inflience, bribe - (can be used to bolster confidentiality)
- ID of person: i.e. police line
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - Own Statement /type and in what capacity
- Can be either statement or assertive conduct
- Either personally or in representative capacity (i.e. corporate officer)
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - Adoptive Statement / concept
- Statement adopted by party as his own or that believes to be true
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - Adoptive Statement / Admissible criteria (3)
- Statement was heard and understood
- Reasonable person would deny it if it wasnt true given its nature
- No response by party being capable of so - silence as assertion
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - Authorized
By auhtorized person by the party
- i.e. spokesperson
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - By Agent / 3 reqs
- By agent or employee
- Acting within scope of agency
- During the time of agency
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - Co-conspirator /Reqs + i.e.
- During or in furtherance of conspiracy
- i.e. A and B conspite to import drugs, A tells C that he and B will transact with B regarding drugs. A testiomny could be used against B.
Hearsay - Exceptions - Classifications (4)
- Admissible statements that meet PETSRR requirements of accuracy (independent of presence of declarant)
- Availability of declarant immaterial
- Declarant unavailable
- Residual exception for trustworthy statements (rarely tested)
Hearsay - Exceptions - Admissible Statements FRE 803 - Gral
- For both civil and criminal
- Statements most likely accurate
- Declarant can be present or absent (except for reading of recorded recollection)
Hearsay - Exceptions - Admissible Statements FRE 803 - Statements about PETSRR
- Present Sense Impression
- Excited Uterance
- Then existing mental/emotiona/physical condition
- Statement made for medical treatment
- Reading of recorded recollection
- Records of regularly conducted activity - “Business Record Exception”
Hearsay - Exceptions - Admissible Statements FRE- Statements about PETSRR - Present Sense Impresion /what, when
- Spontaneous describing statement
- “Contemporaneous” - During or inmediatly after happening of event
- i.e. 911 call
Hearsay - Exceptions - Admissible Statements FRE- Statements about PETSRR - Excited Uterance /what, when
- Statement related w/event or conduct
- Made under stress or excitement caused by event
- No necessary inmediacy
- i.e. isterical description of car accident
Hearsay - Exceptions - Admissible Statements FRE- Statements about PETSRR - Statement of mental/physical/ emotional condition / when, includes,
- For condition currently experienced by person making statement (“I am angry” vs “Joe look angry” which is present sense impression)
- Includes: intent, plan, motive, design, mental feeling, bodily health.
- i.e. “I intend”, “I will”, “I am”
Hearsay - Exceptions - Admissible Statements FRE- Statements about PETSRR - Statement of mental/physical/ emotional condition / EXCLUSIONS
- Statements of mental/physical/emotional conditio to prove causation
- __i.e. “I beleive my leg pain was caused by yesterday’s car collision”
- Statement on past condition UNLESS related with declarant’s will
Hearsay - Exceptions - Admissible Statements about PETSRR - for Medical Treatment / what, exclusion
- Statements relevant for doctor to make diagnose or recommend treatment
- If wiht other purpose i.e. atribute fault - then not admissible . i.e. my injuries are result of my husband beating me.
Hearsay - Exceptions - Admissible Statements about PETSRR - Recorded Recollection / when, how, i.e.
- When W needs memory refresh a record can be shown
- Record can be inspected by the other part
- Introduced as E only by the adverse party
- Best Evidence Rule Applies
- i.e. police reports, journalist’s note.
Hearsay - Exceptions - Admissible Statements about PETSRR - Recorded Recollection / Records PIFA reqs
- Pertinent: related w/matter in which W has knowledge
- Insufficient present recollection: to testify fully and accuratelly
- Fresh when adopted: record either made or adopted by W when matter fresh in W’s memory
- Accurate: record reflects W prior knowledge
Hearsay - Exceptions - Admissible Statements about PETSRR - Records of Regularly Conducted Buiness Activity / Gral
- Based on incentives for business to keeping accurate records for tax, accounting, etc.
Hearsay - Exceptions - Admissible Statements about PETSRR - Records of Regularly Conducted Buiness Activity / Reqs for records (5)
- Regularly conducted
- Near in time to activity, condition, event
- Personal knowledge of or of preparation of the records (doesnt apply for person outside of organization)
- Regular Practice (1 time doc not enough)
- Reliable: as truthful w/no apparent motive to fabricate
Hearsay - Exceptions - Where availability of declarant is inmaterial - Grounds (17)
- Absence of entry in records
- Public Records
- Public Records of Vital Stats
- Absence of public record
- Record of religious orgs
- Certificate of marriage, baptism, etc
- Family records
- Records of docs affecting interest in property
- Statements in docs affecting interest in property
- Statements in ancient docs
- Market reports and commercial publications
- Learned Treatises
- Personal and Family history or reputation
- Repudiation in community
- Reputation as to character among assocaites or community
- Judgment of previous conditions
- Judgment as to personal, family, grla history, boundaries
Hearsay - Exceptions - Where availability of declarant is inmaterial - Absence of entry in records
- When activity would otherwise have been recorded and admissible as Record of Regularly Conducted Business
Hearsay - Exceptions - Where availability of declarant is inmaterial - Public Records /when, exclusion
- When duly certified by custodial officers
- Excluded: record of opinion or discretionary finding
Hearsay - Exceptions - Where availability of declarant is inmaterial - Statements in ancient docs
- has to over 20 years
- authenticity needs to be established
Hearsay - Exceptions - Where availability of declarant is inmaterial - Learned Treatises
- Authenticated by experts
- used to supplement expert testimony OR to direct on cross examination
- Publication itself not admitted as E but only the reference
Hearsay - Exceptions - Where availability of declarant is inmaterial - Judgement of previous crimes
- Admission to prove only fact that is essential to sustain judgment
- It has to be final judgment or guilty plea on crime with death penalty or over 1 year in prison as punishment
Hearsay - Exceptions - Where Declarant is Unavailable as Witness - FABH exceptions
- Former Testimony
- Against Interest
- Belief of impending death
- Statement of personal and family History
Hearsay - Exceptions - Where declarant is unavailable as Witness - DAAL conditions for unavailable
- Death, physical or mental illness or Infirmity at time of hearing where they need to testify
- Asserted Privilege or refusal to testify
- Absence and proponent is unable to procure his attendance by process or other reasonble means (need of show of efforts)
- Lack of Memory
Hearsay - Exceptions - Where declarant is unavailable as Witness - Exception for DAAL + Forfeitrue by wrongdoing
- W not considered unavaialble if DAAL bc of procurement or worng doing from proponent with INTENTION of preventing attendance and testifying
- “Forfeiture by worngdoing” : statement offered against party who attempted unavailability
Hearsay - Exceptions - Where declarant is unavailable as Witness - Former Testimony
- former testimony by W at prior hearing/deposition
- WHEN current opponent had opp to develop testimony in direct or cross examination in previous ocasion
Hearsay - Exceptions - Where declarant is unavailable as Witness - Statement Against Interest
- Significantly contrary to declarant’s pecuniary and/or propietary interest
- Notion it would statement would be made unless it is true.
- Not merely embarrasing
- Personal knowledge required
Hearsay - Exceptions - Where declarant is unavailable as Witness - Statement Against Interest - Rule for Criminal Cases
Exception doesnt apply WHEN:
- It exposes declarant to criminal liability
- Exculpates accused
- Self inculpate’s W
Hearsay - Exceptions - Where declarant is unavailable as Witness - Belief of Impending Death
- When declaration concerns the cause or circumstances of inminent death
- In criminal case only for homicide of declarant
Hearsay within Hearsay FRE 805
Not excluded by hearsay rule IF each part of all statements are exceptions to the rule
- If any layer of hearsay does not meet an exception then the statement is inadmissible
Hearsay - Exceptions - Credibility of Declarant
Once hearsay or opposing party statement done by authorized party, the DECLARANT can be attacked as a regular W (impeach) w/o opp to defened himself
+
Possible cross exam by attacking party.
Hearsay - Exception - “Residual Exception” FRE 807 / Reqs (1+ 3)
Whne no other exception applies but hearsay statement is:
- Trustworthy
- As E of material fact
- Probative on the point more than any other E that can be procured with reasonable efforts
- Admission is on interest of justice
Hearsay - Confrontation Clause (CC) - Gral / context, relation to hearsay
- 6th amm right of criminal accused to confront W agaisnt him
- Potential conflict with hearsay rule in relation to “testimonial E “ (foreseable future prosecutorial use of statement)
Hearsay - Confrontation Clause (CC) - When does it apply
- Only in criminal trials (no pre trial or post trial hearing)
- For E from govt against accused
- For testimonial E - foreseable future use of prosecutorial statement
- i.e. testiomony obtained by police during investigation
Hearsay - Confrontation Clause (CC) - US SC “Emergency Exception”
- E not admissible if statement by police during emergency situation
- Bc there is no testimonial purpose
Hearsay - Confrontation Clause (CC) - Forfeiture of Confrontation Clause
If accused caused absence of declarant w/ specific intent to create unavailability - CAN NOT CLAIM VIOLATION OF CC
- mere causation not enough - even if accused killed declarant w/o intent to affect testiomony
Hearsay - Confrontation Clause (CC) - “Sufficient Confrontation”
- As right from criminal accused
- Sufficient confrontation is to cross examine declarants of testimonial hearsay
