Hearsay Flashcards
Not Hearsay
Verbal Acts (words have legal significance apart from truth, like tortious words (defamation), transactional words (deeds, wills, contracts), and explanatory words, like “this is a gift”)
State of Mind,
Impeachment
Non-Hearsay - Prior Statement
Prior sworn inconsistent statement
Prior consistent statement to rehabilitate witness
Prior identification
Non-Hearsay - Opposing Party’s Statement
Made by party in individual or representative capacity, adopted or believed to be true (includes adoption by silence where reasonable person would have responded), made by someone party authorized to make statement, made by employee or agent, made by co-conspirator during and in furtherance of conspiracy
What is hearsay
Oral or written assertion or nonverbal conduct made outside of the court and offered in court for the truth of the matter asserted
Non-assertive conduct is NOT hearsay
803 Exceptions - Truth Producing
Present Sense Impression - during or immediately after perceiving event
Excited Utterance - relating to startling event made when declarant still under stress of event
Then-existing mental, emotional, physical condition - like motive, intent, plan, mental feeling, pain, etc., but not including past thoughts unless about will (also condition could be part of cause of action)
Statement made for medical diagnosis - limited to statement that pertain to or further treatment
803 Exceptions - Records
Recorded Recollection
Regularly Conducted Activity - made at or near time by someone with knowledge in course of regularly conducted activity, need custodian witness
Absence of Record of Above
Public Records - sets out office activities, matter observed under legal duty to report (not police), must have indicia of trustworthiness, and in civil cases factual findings from legally authorized investigation
Public Record of Vital Statistics
Absence of Public Record
Records of Religious Organizations Personal History
Certificates of Birth, Marriage, etc.
Family Records
Records affecting property interest - kept in public office authorized by statute
Statements in records affecting property interest
Ancient Docs (20 year rule)
Market Reports
803 Exceptions - Learned Treatises
Can be used if called to attention of expert on cross or is relied on by expert on direct and is established to be reliable authority by expert, another expert, or judicial notice
Can be read into evidence, but not received as exhibit
DOES NOT EXIST at COMMON LAW
803 Exceptions - Reputation
Personal and Family History, Boundaries or General History, Character
803 Exceptions - Judges
Judgment of a Previous Conviction - final judgment by trial or plea (not nolo cont.) for a crime punishable by death or more than 1 year, admitted to prove any fact essential to judgment, judgment against defendant when pros. using it for other than impeachment
Judgments of Personal, Family, Boundaries, or General History - essential to judgment and proved by evidence of reputation
Unavailable Witness - Former Testimony
By witness at trial, hearing, or lawful deposition against party or predecessor in interest who had ability to cross examine at prior proceeding
Unavailable Witness Criteria
Privilege Refusal Memory Issue Can't Be Present - Death or Infirmity Missing
Unavailable Witness - Dying Declaration
Declarant had to subjectively believe death was imminent
Unavailable Witness - Statement Against Interest
So contrary to declarant’s proprietary or pecuniary interest or could so invalidate declarant’s claim against someone else, supported by indicia of trustworthiness
Unavailable Witness - Statement of Personal or Family History
Family matters, including about another person related to declarant or who was so intimately involved with person’s family
Unavailable Witness - Statement Against Party Who Wrongfully Caused Declarant’s Unavailability
Self-explanatory
