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T&D.Edits.Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

What’s the goal of evidence?

A

To present a piece of evidence to the jury

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2
Q

Why is hearsay inadmissible?

A

The opponent has no opportunity to cross examine the declarant in front of this finder of fact. The statements come in for their truth without a challenge to their credibility.

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3
Q

In what circumstances will hearsay statements be allowed?

A

When there is something about them that makes them inherently truthful

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4
Q

What are the elements of hearsay?

A
  1. An out of court statement by a human
  2. Other than one made by the declarant while testifying at trial
  3. Offered to prove the truth of the matter asserted in the statement
    * More Info:* Hearsay Elements
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5
Q

What is a statement for hearsay purposes?

A
  1. Oral or written assertion intending communication
  2. Nonverbal conduct intended as an assertion (intended as a communication).
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6
Q

When can an out of court statement by a declarant be brought in?

A

When they make the statement at trial

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7
Q

If the declarant is the witness currently testifying, what is the impact on hearsay?

A

It is still hearsay. The court wants to test the statement at the time of utterance. Hearsay applies to any statement, written, oral, or assertive conduct that happened outside of court.

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8
Q

Are machine readouts considered hearsay statements?

A

No, machine readouts are not statements. Only persons make statements.

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9
Q

When is a hearsay statement not used for its truth?

A
  1. When trying to prove notice of the listener of a declarant’s statement (does not mean the statement was true, only proves the listener heard it)
  2. When the statement has independent legal significance, meaning the statement the declarant made included magic legal words, such as “Convey Blackacre”, which that matter regardless of their truth
  3. When the statement included tortious words, and the statement the declarant made includes magic words for a tort claim.
    * More Info:* Hearsay Not Used for Truth
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10
Q

What is the effect of a hearsay exception?

A

The statement will tend to prove the fact that it covers.

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11
Q

What are the hearsay exemptions and what are their effects?

A

They come in substantively for their truth:

  1. Statement by a Party Opponent (Formerly Admission)
  2. Co-Conspirator’s Statements
  3. Prior Statements
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12
Q

List the types of statements that qualify for the hearsay exemption for statement by a party opponent.

A
  1. Direct statement by a party
  2. Adoptive admission, either by conduct or silence
  3. Authorized admission
  4. Vicarious admission
  5. Admission by a co-conspirator
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13
Q

What are direct statements by an opponent party?

A

They can be any statement of fact or opinion, and anything that comes out of their mouth can be used.

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14
Q

What does an admission by silence for a party opponent require?

A

That a reasonable person would have denied the statement and the declarant did not deny it. It does not apply after a party has been advised of the right to remain silent.

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15
Q

What are the elements of the adoptive admission hearsay exemption?

A
  1. The party heard
  2. The party understood the statement
  3. The party adopted it as her own
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16
Q

What qualifies for the authorized admission hearsay exemption?

A

A statement by a party’s agent or representative

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17
Q

What qualifies for the employee admission hearsay exemptions?

A

A statement of a party’s employee offered against the party by the opponent:

  1. Made during scope of employer-employee relationship

And

  1. Within the scope of their employment
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18
Q

What is the co-conspirator hearsay exemption?

A

Statements of co-conspirators, whether or not a conspiracy is charged, can be used against all other co-conspirators, even if they are not aware that a conspiracy exists. Statement of any co-conspirator can come in against any other co-conspirator.

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19
Q

What are the elements of the co-conspiratory hearsay exemption.

A
  1. Existence of a conspiracy is a preliminary fact that must be proven to the court by a preponderance of the evidence
  2. Declarant was a member of the conspiracy
  3. The statement was made in furtherance of the conspiracy
  4. The statement was was made during the conspiracy
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20
Q

What are the three types of prior statement hearsay exclusions?

A
  1. Prior inconsistent statements
  2. Prior consistent statements
  3. Prior identifications
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21
Q

For all three types of prior statements to be exempt from hearsay, what are the requirements?

A
  1. Declarant must testify at trial

2 .Declarant must be available and subject to cross examination

  1. The statement must be either a:
    a. Prior inconsistent statement
    b. Prior consistent statement

Or

c. Prior identification

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22
Q

When is a prior inconsistent statement permitted to be offered for its truth?

A

If it is sworn during a grand jury, preliminary hearing, etc. (≠ affidavit)

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23
Q

When can a prior consistent statement be used?

A
  1. To rehabilitate the witness after an inference of recent fabrication has been raised (the prior statement must predate the motive to lie)
  2. To rehabilitate the declarant’s credibility as a witness when attacked on another ground
    * More Info:* Prior Consistent Statement
24
Q

When can a prior identification be used?

A

When a witness has identified the person prior to the trial

25
Q

For all three types of prior statements to be exempt from hearsay, there must be what?

A
  1. Declarant testimony at trial

And

  1. Declarant availability and subjection to cross examination
26
Q

What is the effect when a hearsay exception applies? What if the declarant is unavailable?

A

The evidence comes in and it does not matter whether the declarant is available or not.

27
Q

What is the hearsay exception for present sense impressions?

A

When there is no filter from the perception to the mouth, this exception may apply. The declarant said something immediately after perceiving it:

  1. Spoken very close to the time of the event (simultaneous)
  2. Declarant need not be known
  3. Can be any subject matter
  4. Can be oral or in writing
28
Q

What is the hearsay exception for excited utterances?

A
  1. A statement relating to a startling event
  2. Made while declarant was under the stress of event or condition
29
Q

When can the hearsay exception for present sense impressions be used?

A

A statement of declarant’s then-existing physical, emotional, or mental condition is admissible if it is relevant to show declarant’s state of mind.

This includes statements to prove intent, plan, motive, design, mental feeling, pain, or bodily health, when offered to prove its truth.

This does not equal past sensations or statements of memory or belief.

30
Q

Statements of memory or belief are only admissible when relating to what?

A

A will

31
Q

What is the hearsay exception for statements for purposes of medical diagnosis or treatment?

A

Includes statements made for purposes of medical diagnosis or treatment describing medical history, past or present symptoms, pain or sensation, or the cause.

They can be made to an any medical professional.

They do not equal statements about blame (only showing the doctor where it hurts comes in)

32
Q

What are the elements of the hearsay exception for past recollections recorded?

A
  1. There is an unsuccessful refreshing by a leading question, or a writing must have been attempted and failed.
  2. The witness must lack current memory of the event
  3. A memorandum of the event must have been made while the matter was fresh in the witness’ mind
  4. Authentication must occur through the witness testifying that the writing accurately reflects the witness’ prior knowledge

And

  1. The writing is not an exhibit: it is just read into the record by the witness.
    * More Info:* Past Recollections Recorded
33
Q

What are the rights of an adverse party when past recollection recorded is used?

A
  1. Right to inspect the writing
  2. Right to cross-examine with it
  3. Right to show it to the jury for comparison
  4. Right to introduce relevant portions into evidence for its truth
34
Q

What are the elements for the hearsay exception of records of regularly conducted activities?

A

Records that if not kept will be lost forever:

  1. Made in the regular course of business (≠ calendar)
  2. A foundation witness familiar with the record keeping process testifies to the process (personal knowledge of the specific writing is not required)
  3. Trustworthiness is determined by the judge
  4. Record cannot be made with anticipation of litigation
    * More Info:* Records of Regularly Conducted Activity
35
Q

What are the elements for the hearsay exception for the absence of an entry in records?

A
  1. A witness is familiar with the records
  2. The witness did a diligent search of the records
  3. The fact that the witness did not find a record may be admitted to prove the non-occurrence of the event or the non-existence of the matter
36
Q

What is the hearsay exception for public records and reports?

A

Records prepared pursuant to a duty imposed by law. This includes records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:

  1. Activities of an office or agency
  2. Matters observed pursuant to duty imposed by law as to which there was a duty to report (e.g., certified tax record, W-2 form)(≠ criminal reports)
37
Q

What is the hearsay exception for records of vital statistics?

A

Records or data compilations of births, deaths, or marriages are admissible if made pursuant to requirements of law.

38
Q

What is the hearsay exception for family records?

A

Statements of fact concerning personal or family history contained in family bibles, genealogy charts, inscriptions on family portraits, engravings on tombstones, urns, crypts, etc.

39
Q

What is the hearsay exception for ancient records?

A

Admissible:

  1. If found in a place where these items are typically found, including archives, libraries, or even a shoebox.

And

  1. Statements in a document more than 20 years old.
40
Q

What is the hearsay exception for learned treatises?

A

Authoritative textbooks can be read into evidence if:

  1. Judge takes notice
  2. Expert says is authoritative
  3. Subject area is in medicine, science, art, or history.
41
Q

When is a declarant unavailable?

A
  1. Privilege (asserted)
  2. Refusal to testify
  3. Incapacity/Incapability
  4. Subpoena failed (good faith attempt required)
  5. Witness must not remember the event. The burden of proof is on the proponent of saying they are unavailable.
    * More Info:* Unavailable Declarant
42
Q

What types of hearsay exceptions require the declarant to be unavailable?

A
  1. Former testimony
  2. Dying declaration
  3. Statements against interest
  4. Statement of personal or family history
  5. Forfeiture by wrongdoing
43
Q

When does the former testimony hearsay exception apply?

A

They may be admitted for their truth if:

  1. Declarant is unavailable
  2. Declarant made the statement under oath
  3. Given by a witness in the same or different, but related, action, or in a deposition (≠grand jury)
  4. The party against whom the evidence is being offered had an opportunity and similar motive to examine the witness and develop the testimony, on direct, cross-examination, or redirect
44
Q

When does the dying declaration hearsay exception apply?

A
  1. Declarant is speaking about cause of death
  2. Unavailable declarant (does not have to equal actual death)
  3. Declarant has a subjective belief that death is imminent. They will be admissible in a criminal case only if the charge is homicide, or in any civil case.
    * More Info:* Dying Declaration
45
Q

When does the statement against interest hearsay exception apply?

A
  1. Declarant is not a party
  2. Statement was against interest when made (ownership of property, money, crimes)

And

  1. Declarant is unavailable.

Where the defendant offers an exculpatory statement against the declarant’s penal interest, an additional element of corroboration is required.

46
Q

When does the statement of personal or family history hearsay exception apply?

A
  1. Declarant is unavailable

And

  1. Statement concerns the declarant’s own relationship by blood, adoption, or marriage, or other similar fact of personal or family history
47
Q

When does the statement of forfeiture by wrongdoing hearsay exception apply?

A
  1. Declarant is unavailable

And

  1. A party in the action made the declarant unavailable
48
Q

When does the confrontation clause apply?

A
  1. In a criminal case
  2. If the declarant is unavailable

And

  1. Testimonial hearsay statements are inadmissible unless there is an opportunity to cross examine the declarant.
49
Q

What is testimonial evidence?

A

The primary purpose of police effort is to prove past events relevant to a later criminal prosecution:

  1. Public records used againstthe defendant
  2. Statements made during police interrogation
  3. Collecting information from an informant
  4. Preliminary hearing testimony

Does not equal when the primary purpose is to help police in ongoing emergency.

More Info: Testimonial Evidence

50
Q

If hearsay is testimonial, it will only be admissible when?

A

Adverse party has an opportunity to cross-examine the declarant

51
Q

When faced with two out of court statements, what type of hearsay applies?

A

There must be two independent hearsay basises for each statement to come in

52
Q

How can impeachment of a hearsay declarant can be accomplished?

A

A hearsay declarant’s credibility may be attacked and the declarant may be impeached through evidence of bias, prior conviction, or prior inconsistent statements.

53
Q

When can the catch-all hearsay exception be employed?

A

When the statement is more probative than any other evidence

54
Q

How should a hearsay question be analyzed?

A

Step 1: Isolate the statement: Look for words like told, said, yelled, exclaimed, screamed.

Step 2: Determine who is the declarant of the statement: Party Opponent v. Available Witness v. Unavailable

Step 3: Determine if there is an assertion

Step 4: Determine what is the purpose for which the evidence is being offered (truth or less)

If not for truth, then STOP

Step 5: If used for i’s truth, look to exceptions or exemptions

Step 6: If used in a criminal case, is it testimonial evidence, does the confrontation clause apply?

55
Q

What is a better from an admissibility standpoint: statements by a party opponent v. a hearsay exception?

A

Statement by party opponent

T&D.Edits.Evidence (8 decks)

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