Hearsay Flashcards

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1
Q

what is hearsay?

A

Hearsay is an out of court statement offered to prove the truth of the matter asserted in the statement.

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2
Q

what is a statement?

A

verbal or written expression of person or conduct by a person intended to communicate.

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3
Q

what is the hearsay method?

A
  1. find the statement
  2. what is it offered to prove
  3. will jury be misled if the out of court speaker was lying or mistaken?
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4
Q

what are the exemptions to hearsay?

A
  1. Opposing Party Statement
  2. Prior Inconsistent Statement
  3. Consistent Statement
  4. Statement of Identification
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5
Q

what is the significance of exemptions to hearsay?

A

admissible because not hearsay

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6
Q

what is an opposing party statement exemption? (formerly party omission)

A

statement by party (or someone whose statement is attributable to a party) offered by opposing party.

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7
Q

does the personal knowledge requirement or opinion rule apply to the opposing party statement exemption?

A

No.

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8
Q

how do you know if a statement is attributable to a party?

A

1) authorized spokesperson of party or

2) employee of party concerning matter within scope of employment and made during employment relationship.

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9
Q

what is the prior consistent statement exemption

A

prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive or to rebut another attack on credibility

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10
Q

what is the prior inconsistent statement exemption?

A

prior inconsistent statement given under oath at trial or deposition

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11
Q

what is the statement of identification exemption?

A

statement of identification of a person made after perceiving the person.

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12
Q

what are the 10 exceptions to hearsay?

A
  1. Former Testimony (unavailable)
  2. Declaration against Interest (unavailable)
  3. Dying Declaration exception (unavailabe)
  4. Present Sense Impression Exception
  5. Business Records exception
  6. Statement of past or present mental or physical condition made for medical diagnosis or treatment
  7. Declaration of Existing Physical or Mental Condition
  8. Excited Utterance exception
  9. Public Records Exception
  10. Judgment of Previous Conviction
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13
Q

what is the Former testimony exception?

A

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.

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14
Q

whats is the exception to former testimony exception?

A

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.

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15
Q

declarant is unavailable if

A

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

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16
Q

what is the declaration against interest exception?

A

1) declarant unavailable made
2) statement
3) at time it was made, was against financial interest of declarant or would have subjected declarant to criminal liability.

if the statement is offered to exculpate accused there must be corroborating information

17
Q

what is the difference between declaration against interest and opposing party statement?

A

opposing party has to be made by a party.

Declaration against interest can be made by anyone.

opposing party statement doesnt have to be against interest.

18
Q

What is the Dying Declaration Exception?

A

statement made by unavailable declarant believing he is about to die and describes cause or circumstances leading up to his death. Applies in civil cases and homicide for criminal.

19
Q

Does the Dying Declaration Exception apply in criminal cases.

A

Yes but only for Homicide cases.

20
Q

What is the Excited Utterance Exception

A

statement made while declarant was still under stress of excitement caused by event or condition.

21
Q

What is the Present Sense Impression Exception

A

describing an event or condition while declarant was perceiving the event or condition or immediately thereafter

22
Q

What is the Declaration of then existing physical or medical condition exception?

A

statement of declarant’s then existing physical or mental condition or state of mind is admissible to show the condition or state of mind. (intent)

cannot be describing memory or belief (“i remember/i believe)

23
Q

what is the exception for statement of past or present mental or physical condition made for medical diagnosis?

A

statement by one person concerning the past or present mental or physical condition, or its cause, of that person or any other person, is admissible if made for and pertinent to medical diagnosis.

24
Q

what is the business records exception?

A

statement is admissible if

1) a record of events, opinions, or diagnoses
2) kept in course of regularly conducted business activity
3) made at time or near time of matters described
4) by person with knowledge of facts
5) it was a regular practice of business to make record
6) opponent does not show untrustworthy

cannot be recorded in anticipation of litigation

25
Q

what is the public records exception?

A

record of a public office is admissible if

i) record describes activities and policies of office
ii) record describes matters observed pursuant to duty imposed by law (but not police reports in criminal case)
iii) record contains factual findings resulting from investigation made pursuant to authority granted by law, unless opponent is untrustworthy

criminal prosecution cannot use iii)

26
Q

what is judgment of previous conviction exception?

A

statement describing felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment,

but when offered by prosecution for purposes other than impeachment, judgments against person other than the accused are inadmissible.

27
Q

what is confrontations clause?

A
inadmissible if 
witness does not tesifty at trial
is now unavailable
the statement is testiomonial
and defendant had no chance to cross examine

testimonial statement is when there is no ongoing emergency, and statement is used to further a police investigation aimed at producing evidence for prosecution.

28
Q

Business Exception to Hearsay

A
  1. Record of events
  2. kept in the course of regularly conducted business
  3. made at or near time of matter
  4. by person who has knowledge of the facts
  5. it was regular practice of business to make such records
  6. opponent is not untrustworthy
29
Q

what is the public records exception to hearsay

A
  1. record describes activities or policies of the office
  2. record describes matters observed pursuant to duty of law (but not police reports in criminal cases)
  3. factual findings resulting from investigation (prosecution cannot use this in criminal case)
30
Q

judgment of previous conviction

A

judgment of previous conviction is hearsay but admissible if it proves fact esstential to the judgment, except when prosecution offers it for other than impeachment.