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bar evidence > Hearsay > Flashcards

Hearsay Flashcards

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1
Q

definition of hearsay

A

an

1) out of court statement
2) offered for the truth of the matter asserted

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2
Q

what is the rational for rule against hearsay

A

there was no chance to cross exam the declarants perception, memory, and sincerity AT THE TIME THE STATEMENT WAS MADE

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3
Q

is there a hearsay problem even if the declarant is on the stand?

A 
YESSSSSS 
- B/c want to be able to cross PMS
1) perception 
2) memory 
3) sincerity 
AT THE TIME THE STATEMENT WAS MADE
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4
Q

can conduct be intended as an assertion

A

yes

ex: gun fingaz

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5
Q

can machines and animals fall under hearsay

A

NO!

- declarants must be a human not a dog

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6
Q

what are the 5 out of court statements that ARE NOT HEARSAY at all (COPPP)

A

1) co-conspirator
2) opposing party statement
3) Prior inconsistent statements
4) prior consistent statements
5) prior identification

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7
Q

what NOT HEARSAY examples where the declarants MUST be on stand?

A

1) prior inconsistent statement
2) prior consistent statement
3) prior identification

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8
Q

what are the requirements needed for co-conspirator to not be hearsay

A

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

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9
Q

can co-consprirator statements be used for not hearsay in civil cases even where person was not charged with conspiracy

A

YES

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10
Q

can opposing party statements only be facts?

A

NO. Opposing-party statements can be both OPINIONS and LEGAL CONCLUSIONS

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11
Q

does a person need personal knowledge for opposing party statements?

A

NO.

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12
Q

can silence be considered for an opposing party statement for NOT HEARSAY

A

YES

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13
Q

what are the requirements needed for silence as opposing party statements? (HURT)

A

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)

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14
Q

can a person get HURT by silence after miranda?

A

NO. cannot get hurt by silence after MIRANDA

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15
Q

who can be a spokesperson for opposing party statement?

A

statements by a person authorized to speak n behalf of party

- President, CEO, attorney for client

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16
Q

what are the requirements needed for agency.employee statements for opposing party statement that is NOT HEARSAY

A

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

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17
Q

what are the 3 NOT HEARSAY examples where declarant must be testifying (PPP)

A

1) prior inconsistent statement
2) prior consistent statement
3) prior identification

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18
Q

what are the 2 requirements for the (PPP) for NOT HEARSAY

A

1) declarant must testify and

2) declarant must be subject to cross examination about the prior statement

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19
Q

what 2 requirements must be met for prior inconsistent statements?

A

1) declarant is testifying NOW

2) prior inconsistent statement was given UNDER OATH at prior proceeding

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20
Q

must the declarant be under oath for a prior inconsistent statement

A

YES

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21
Q

must a declarant be under oath for a prior consistent statement?

A

NO

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22
Q

what are the 2 requirements for prior consistent statements?

A

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

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23
Q

when must a prior consistent statement been made?

A

MUST HAVE BEEN MADE BEFORE the improper influence or bias arose

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24
Q

what 2 needs need to be met for prior statement of identification?

A

declarant is

1) testifying and
2) subject to cross examination about the statement

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25
Q

are prior statements of identification allowed even if the witness identifies the wrong person at trail?

A

YES.

- if witness is testifying and subject to cross

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26
Q

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?

A

NO. Need declarant to

1) testify AND
2) subject to cross examination

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27
Q

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

A

yes if declarant

1) testfying and
2) subject to cross examination

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28
Q

do prior statements of ID need to be under oath or recent?

A

NO

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29
Q

does a declarant need to be impached before they bring up prior identification?

A

NO X/C to bolstering

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30
Q

common examples of non-hearsay

A

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

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31
Q

verbal acts for non-hearsay

A

out of court words that have INDEPENDENT legal significance. The words themselves create, alter, modify, or terminate legal rights of persons

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32
Q

ex of verbal acts for non-hearsay

A

1) defamation
2) words showing joint ownership of property
3) alleged perjury statement
4) words by advesor in adverse possession
5) words of contract

33
Q

regular tested hearsay EXCEPTIONS

A

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

34
Q

what is the present sense impression x/c to hearsay?

A

1) statement oral or written which
2) describes or explains an event/condition
3) while declarant is preceving the event or
4) immediately after

35
Q

when does present sense impression for x/c hearsay need to happen?`

A

when declarent is preceving it or IMMEDIATELY after.

36
Q

what to look for in excited utterance

A

!

37
Q

how soon does it need to be for excited utterance

A

right away for SHORT after

38
Q

can the then existing mental, emotional, or physical condition (State of mind) be used for past events

A

NO. not allow for statements of memory or belief

39
Q

can the then existing mental, emotional, or physical conditions (state of mind) be used for intent and future acts

A

YES , can look forward

40
Q

X/C that state of mind must only look forward and not in the past for hearsay

A

Will exception

generally dont look back but if there is a way

41
Q

what are the requirements for statements for purposes of medical treatment or diagnosis?

A

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

42
Q

recorded recollection (past recollection recorded) x/c to hearsay

A

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

43
Q

can past recollection recorded be offered as evidence?

A

NO only read it

44
Q

may the adverse party offer the recorded recollection (past recollection recorded) into evidence?

A

YES

45
Q

what are the requirements for business records (records of regularly conducted activity) for hearsay x/c

A

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

46
Q

when are business records not allowed as hearsay exception?

A

when they are suspicious or unreliable

47
Q

absence of business records for hearsay X/C

A

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

48
Q

public records and reports exception for hearsay

A

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

49
Q

when can public records and reports not be allowed for x/c of hearsay

A

when the sources appear untrustworthy

50
Q

are law enforcement reports against a D in a criminal matter allowed under the public records and reports?

A

NO. police reports are NOT allowed.

51
Q

what type of witness MUST be required for learned treatieses X/C

A

EXPERT WITNESS ONLY

52
Q

what is the only hearsay X/C that NEITHER party can introduce in writing

A

learned treatises

53
Q

when are learned treaties fall under hearsay x/c

A

1) statements used in direct or cross of EXPERT witness and

2) are properly authenticated as published and “reliable authority”

54
Q

what are the hearsay x/c where the Declarant MUST BE UNAVAILABLE (San Fran Police Depart SFPD)

A

1) statements against interest
2) former testimony
3) pedegree of family (not really tested)
4) dying declaration

55
Q

what makes a declarant unavailable (PRISM)

A

1) privilege
2) refuse to answer
3) ill
4) service (outside subpoena)
5) memory

56
Q

what are the requirements for former testimony where declarant is unavailable?

A

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

57
Q

short hand version of requirements for former testimony where declarant is unavailable

A

1) under oath at prior proceeding
2) against party
3) opportunity to cross
4) same reason being offered in this trial as previous testimony

58
Q

what are the requirements for dying declaration for hearsay x/c (CUBA)

A

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

59
Q

what must the statement relate to for dying declaration?

A

statement must relate to cause of death

60
Q

does a declarant need to die for dying declaration be applied?

A

NO.

61
Q

when are dying declarations allowed under criminal cases?

A

ONLY homicide cases

62
Q

when are statements against interest allowed for hearsay X/C

A

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

63
Q

what is the hearsay x/c for forfeiture by wrongdoing

A

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

64
Q

what is the catch all x/c for hearsay x/c

A

allowed if sufficiently guarantees of credibility

65
Q

when does the confrontation clause come in what type of cases

A

CRIMINAL cases

66
Q

what is the confrontation clause

A

1) in criminal cases the PROSECUTION CANNOT offer
2) testimonal hearsay unless
3) D had an opportunity to cross the declarant

67
Q

is an emergency 911 call testimony under the confrontation clause?

A

NO, ongoing emergencies are not testimonial

68
Q

is a simple follow up for investigation testimonial for confrontation clause?

A

YES

69
Q

if the D had a chance to cross the declarant does the confrontation clause apply

A

NO

70
Q

difference b/w present recollection refreshed and past recollection recorded

A
  • 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.
71
Q

are legally operative facts TOMA for hearsay

A

NO, not hearsay. The words themselves are at issue Ex: words of contract, gift, defamation etc.

72
Q

Is public record an x/c to hearsay

A

yes, so public agents do not have to leave work to testify

73
Q

Does the business record apply when a witness is giving description in a police report

A

No. Not a business record because the witness was not under a business duty to convey the information to the police

74
Q

Is a misdemeanor conviction hearsay?

A

yes and no exception for misdemeanor convictions

75
Q

is a felony conviction hearsay if certified copy

A

yes but an exception. A felony conviction is admissible under exception to hearsay rule, where a certified copy of misdemeanor conviction is not.

76
Q

if using specific bad acts to impeach and show bias, is extrinsic evidence allowed?

A

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

77
Q

generally are questions considered hearsay?

A

No because not making a statement or an assertion. Just merely asking a question.

78
Q

Effect of listener on negligence cases and hearsay

A

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.

79
Q

for statement against interest, whose statement must be against the interest

A

A statement must be against the DECLARANTS own interest when made, not another’s

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