Hearsay Flashcards
definition of hearsay
an
1) out of court statement
2) offered for the truth of the matter asserted
what is the rational for rule against hearsay
there was no chance to cross exam the declarants perception, memory, and sincerity AT THE TIME THE STATEMENT WAS MADE
is there a hearsay problem even if the declarant is on the stand?
YESSSSSS - B/c want to be able to cross PMS 1) perception 2) memory 3) sincerity AT THE TIME THE STATEMENT WAS MADE
can conduct be intended as an assertion
yes
ex: gun fingaz
can machines and animals fall under hearsay
NO!
- declarants must be a human not a dog
what are the 5 out of court statements that ARE NOT HEARSAY at all (COPPP)
1) co-conspirator
2) opposing party statement
3) Prior inconsistent statements
4) prior consistent statements
5) prior identification
what NOT HEARSAY examples where the declarants MUST be on stand?
1) prior inconsistent statement
2) prior consistent statement
3) prior identification
what are the requirements needed for co-conspirator to not be hearsay
trial court must find by POE that
1) a conspiracy existed
2) declarant was a member of conspiracy
3) offered against a member of conspiracy (party opponent)
4) statement made during the course of conspiracy
5) statement was made in FURTHERANCE of the conspiracy
can co-consprirator statements be used for not hearsay in civil cases even where person was not charged with conspiracy
YES
can opposing party statements only be facts?
NO. Opposing-party statements can be both OPINIONS and LEGAL CONCLUSIONS
does a person need personal knowledge for opposing party statements?
NO.
can silence be considered for an opposing party statement for NOT HEARSAY
YES
what are the requirements needed for silence as opposing party statements? (HURT)
A party cannot get HURT by silence UNLESS
1) Hears the statement
2) Understood the statement
3) Reasonable person would
4) Take exception (deny it)
can a person get HURT by silence after miranda?
NO. cannot get hurt by silence after MIRANDA
who can be a spokesperson for opposing party statement?
statements by a person authorized to speak n behalf of party
- President, CEO, attorney for client
what are the requirements needed for agency.employee statements for opposing party statement that is NOT HEARSAY
statements made by employee are admissible against employer IF
1) made w/i scope of the employment
2) made while declarant is employed by party/opponent
what are the 3 NOT HEARSAY examples where declarant must be testifying (PPP)
1) prior inconsistent statement
2) prior consistent statement
3) prior identification
what are the 2 requirements for the (PPP) for NOT HEARSAY
1) declarant must testify and
2) declarant must be subject to cross examination about the prior statement
what 2 requirements must be met for prior inconsistent statements?
1) declarant is testifying NOW
2) prior inconsistent statement was given UNDER OATH at prior proceeding
must the declarant be under oath for a prior inconsistent statement
YES
must a declarant be under oath for a prior consistent statement?
NO
what are the 2 requirements for prior consistent statements?
1) triggering event (on cross must say making it up or lying)
2) timing requirement- prior consistent statement MUST HAVE been made BEFORE the alleged UNDUE INFLUENCE
when must a prior consistent statement been made?
MUST HAVE BEEN MADE BEFORE the improper influence or bias arose
what 2 needs need to be met for prior statement of identification?
declarant is
1) testifying and
2) subject to cross examination about the statement
are prior statements of identification allowed even if the witness identifies the wrong person at trail?
YES.
- if witness is testifying and subject to cross
Prior Identification: if a declarant does NOT testify or refuses to answer question on cross can a 3rd party witness testify about the id statement?
NO. Need declarant to
1) testify AND
2) subject to cross examination
Prior Identification: if a declarant DOES testify at trial but cannot recall, or makes wrong id can a 3rd party witness testify as to prior ID statement
yes if declarant
1) testfying and
2) subject to cross examination
do prior statements of ID need to be under oath or recent?
NO
does a declarant need to be impached before they bring up prior identification?
NO X/C to bolstering
common examples of non-hearsay
1) “man alive”
2) machines (radar gun, clock)
3) animals
4) not for TOMA
5) admissions
6) labels
7) impeachment- prior statement offered to show declaration not credible
8) verbal acts
9) effect on the listener
verbal acts for non-hearsay
out of court words that have INDEPENDENT legal significance. The words themselves create, alter, modify, or terminate legal rights of persons
ex of verbal acts for non-hearsay
1) defamation
2) words showing joint ownership of property
3) alleged perjury statement
4) words by advesor in adverse possession
5) words of contract
regular tested hearsay EXCEPTIONS
1) present sense impression
2) excited utterance
3) then existing state of mind
4) statement for purposes of medical treatment
5) past recollection recorded
6) business records
7) absence of business records
8) public records
9) family records
11) ancient document s
12) market reports- commercial publications
13) learned treatises
what is the present sense impression x/c to hearsay?
1) statement oral or written which
2) describes or explains an event/condition
3) while declarant is preceving the event or
4) immediately after
when does present sense impression for x/c hearsay need to happen?`
when declarent is preceving it or IMMEDIATELY after.
what to look for in excited utterance
!
how soon does it need to be for excited utterance
right away for SHORT after
can the then existing mental, emotional, or physical condition (State of mind) be used for past events
NO. not allow for statements of memory or belief
can the then existing mental, emotional, or physical conditions (state of mind) be used for intent and future acts
YES , can look forward
X/C that state of mind must only look forward and not in the past for hearsay
Will exception
generally dont look back but if there is a way
what are the requirements for statements for purposes of medical treatment or diagnosis?
statement made by
1) the patient, family member or GOOD SAMARITAN to medical person (Doctor, ambulance, EMT)
2) for the purpose of treatment or diagnosis that
3) describes medical history, symptoms, pain or sensation, the cause (BUT NOT FAULT) of injury
4) if reasonably pertinent to the treatment or diagnosis
recorded recollection (past recollection recorded) x/c to hearsay
1) writing of an event, and the writing
2) relates to facts witness cannot presently remember BUT did know earlier
3) written or adopted by witness
4) when facts were fresh in witness’s memory
can past recollection recorded be offered as evidence?
NO only read it
may the adverse party offer the recorded recollection (past recollection recorded) into evidence?
YES
what are the requirements for business records (records of regularly conducted activity) for hearsay x/c
1) custodian or otherwise qualified witness (familiar with record) or certificate field
2) record made CONTEMPORANEOUSLY with business transaction (at or near the time)
3) record made by a person WITH KNOWLEDGE of facts (ex: sales clerk, bookkeeper)
4) made and kept in NORMAL COURSE OF BUSINESS
when are business records not allowed as hearsay exception?
when they are suspicious or unreliable
absence of business records for hearsay X/C
1) transactions recorded per business records- same time, person with knowledge, regular course of business
2) all transaction of this type recorded
3) custodian or person familiar with records authenticates
4) diligent search of records fails to show transaction occurred
public records and reports exception for hearsay
records, reports, statements, data compilations (Any form) of a government which describes 3 areas:
1) the activities of the agency
2) any matter observed by a public official with a duty to observe and report
3) investigative reports in civil and against the prosecution in criminal cases including “factual findings” and opinions and conclusions
when can public records and reports not be allowed for x/c of hearsay
when the sources appear untrustworthy
are law enforcement reports against a D in a criminal matter allowed under the public records and reports?
NO. police reports are NOT allowed.
what type of witness MUST be required for learned treatieses X/C
EXPERT WITNESS ONLY
what is the only hearsay X/C that NEITHER party can introduce in writing
learned treatises
when are learned treaties fall under hearsay x/c
1) statements used in direct or cross of EXPERT witness and
2) are properly authenticated as published and “reliable authority”
what are the hearsay x/c where the Declarant MUST BE UNAVAILABLE (San Fran Police Depart SFPD)
1) statements against interest
2) former testimony
3) pedegree of family (not really tested)
4) dying declaration
what makes a declarant unavailable (PRISM)
1) privilege
2) refuse to answer
3) ill
4) service (outside subpoena)
5) memory
what are the requirements for former testimony where declarant is unavailable?
1) statement was made UNDER OATH at prior trial, proceeding or deposition
2) statement now being offered against a party at prior proceeding (or her predecessor./successor interest)
3) the party against whom statement offered had a PRIOR OPPORTUNITY to examine the declarent at prior proceeding
4) prior proceeding MUST HAVE been conducted essentially for the SAME REASON as the examination at present trial
short hand version of requirements for former testimony where declarant is unavailable
1) under oath at prior proceeding
2) against party
3) opportunity to cross
4) same reason being offered in this trial as previous testimony
what are the requirements for dying declaration for hearsay x/c (CUBA)
1) Cause of death
2) unavailable
3) belief of imminent death (need not actually die)
4) ALL civil cases and only HOMICIDE cases for criminal
what must the statement relate to for dying declaration?
statement must relate to cause of death
does a declarant need to die for dying declaration be applied?
NO.
when are dying declarations allowed under criminal cases?
ONLY homicide cases
when are statements against interest allowed for hearsay X/C
a statement of a NON-PARTY declarant if
1) statement is contrary to declarants FINANCIAL OR CRIMINAL interest OR
(a) statement renders invalid a claim by him against another (eliminates declarant’s cause of action AND
(2) reasonable person would not have made the statement unless they believed it true when they made the statement and
3) declarant is unavailable
what is the hearsay x/c for forfeiture by wrongdoing
if a party makes a hearsay declarant unavailable, automatically admissible against the party who caused declarant to not testify. EVEN if statement would otherwise be bared by hearsay
what is the catch all x/c for hearsay x/c
allowed if sufficiently guarantees of credibility
when does the confrontation clause come in what type of cases
CRIMINAL cases
what is the confrontation clause
1) in criminal cases the PROSECUTION CANNOT offer
2) testimonal hearsay unless
3) D had an opportunity to cross the declarant
is an emergency 911 call testimony under the confrontation clause?
NO, ongoing emergencies are not testimonial
is a simple follow up for investigation testimonial for confrontation clause?
YES
if the D had a chance to cross the declarant does the confrontation clause apply
NO
difference b/w present recollection refreshed and past recollection recorded
- present recollection refreshed: a witness may be shown any writing or other thing that may refresh their memory of an event . Writing need not be authenticated, is not in evidence and may be used solely to refresh their recollection
- past recollection recorded applies: when a party is seeking to introduce writing into evidence. To have this writing read into evidence, a foundation must be laid.
are legally operative facts TOMA for hearsay
NO, not hearsay. The words themselves are at issue Ex: words of contract, gift, defamation etc.
Is public record an x/c to hearsay
yes, so public agents do not have to leave work to testify
Does the business record apply when a witness is giving description in a police report
No. Not a business record because the witness was not under a business duty to convey the information to the police
Is a misdemeanor conviction hearsay?
yes and no exception for misdemeanor convictions
is a felony conviction hearsay if certified copy
yes but an exception. A felony conviction is admissible under exception to hearsay rule, where a certified copy of misdemeanor conviction is not.
if using specific bad acts to impeach and show bias, is extrinsic evidence allowed?
YES. A witness can be impeached, either on cross or by extrinsic evidence, with evidence that suggests a bias on the part of the witness, because it tends to show that the witness has a motive to lie.
- If prior bad act also helps establish BIAS, the courts have held that extrinsic evidence is admissible
generally are questions considered hearsay?
No because not making a statement or an assertion. Just merely asking a question.
Effect of listener on negligence cases and hearsay
in a negligence case, where knowledge of a danger is at issue, a person’s warning statement is admissible for the limited purpose of showing knowledge or notice on the part of the listener.
for statement against interest, whose statement must be against the interest
A statement must be against the DECLARANTS own interest when made, not another’s
