Hearsay Flashcards
what is hearsay?
Hearsay is an out of court statement offered to prove the truth of the matter asserted in the statement.
what is a statement?
verbal or written expression of person or conduct by a person intended to communicate.
what is the hearsay method?
- find the statement
- what is it offered to prove
- will jury be misled if the out of court speaker was lying or mistaken?
what are the exemptions to hearsay?
- Opposing Party Statement
- Prior Inconsistent Statement
- Consistent Statement
- Statement of Identification
what is the significance of exemptions to hearsay?
admissible because not hearsay
what is an opposing party statement exemption? (formerly party omission)
statement by party (or someone whose statement is attributable to a party) offered by opposing party.
does the personal knowledge requirement or opinion rule apply to the opposing party statement exemption?
No.
how do you know if a statement is attributable to a party?
1) authorized spokesperson of party or
2) employee of party concerning matter within scope of employment and made during employment relationship.
what is the prior consistent statement exemption
prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive or to rebut another attack on credibility
what is the prior inconsistent statement exemption?
prior inconsistent statement given under oath at trial or deposition
what is the statement of identification exemption?
statement of identification of a person made after perceiving the person.
what are the 10 exceptions to hearsay?
- Former Testimony (unavailable)
- Declaration against Interest (unavailable)
- Dying Declaration exception (unavailabe)
- Present Sense Impression Exception
- Business Records exception
- Statement of past or present mental or physical condition made for medical diagnosis or treatment
- Declaration of Existing Physical or Mental Condition
- Excited Utterance exception
- Public Records Exception
- Judgment of Previous Conviction
what is the Former testimony exception?
witness who testified at trial is
(1) no longer available
(2) opposing party had opportunity to examine
(3) and the motive for opposing party to examine is similar to motive now.
whats is the exception to former testimony exception?
if testimony given by person in earlier proceeding is being used against a party who wasnt a party to the last proceeding, it can be used if that party has a close-privity type relationship with someone who was a party to that earlier proceeding and who had opportunity and similar motive to examine.
declarant is unavailable if
i) court exempts declarant from testifying due to privilege
ii) declarant is dead or sick
iii) proponent of statement cannot procure declarant’s attendance by process or other reasonable means
iv) declarant refuses to testify despite court order
v) memory fails