Hearsay Flashcards
Hearsay: Definition
An out of court stmt by a human offered for the truth of the matter asserted (TOMA)
Statement
Spoken assertion, wrtten assertion, conduct intended as an assertion (raising hand, nodding, pointing)
Nonhearsay purposes (not TOMA)
impeachment, verbal acts, effect on listener, circumstantial evidence of state of mind
Exclusions from Hearsay Rule ie NOT HEARSAY (801)
COPPP: Coconspirator stmts, opposing party stmts, prior inconsistent stmts (if subject to X), prior consistent stmts (if subj to X), prior stmt of identification (if subj to X)
Stmt / Admission by Party Opponent
Stmt is offered against opposing party and (i) was made by the party in an individual or represenative capacity, (ii) is one the party manifested that it adopted or believed to be true, (iii) was made by a perosn whom the party authorized to make a stmt on the subject, (iv) was made by party’s agent or employee on a matter w/i scope of that relationship or (v) was made by party’s co-conspirator during and in furtherance of the conspiracy
*(iii), (iv), and (v) are vicarious admissions
Adoptive Admission by Party Opponent
A party may expressly or impliedly adopt someone else’s statement as his own; e.g. P claims an orthopedic abnormality in a suit against D. D may properly offer against P P’s prior application for a chauffer’s license which included a doctor’s stmt stating that P had no orthopedic abormality)
If a party FAILs to respond to accusatory stmt where a reasonable person would have denied the accusation, his silence is an admission if the party heard and understood the stmt and was physically and mentally capable of denying the stmt
Hearsay Exceptions: Unavailability (804)
When declarant is unavailable, hearsay is admissible under (1) former testimony, (2) dying declaration, (3) stmt against interest, (4) stmt of personal or family history)
Unavailability Criteria
PRISM: privilege, refusal to testify, informality/illness/death, service/subpoena doesnt work, memory precludes
Former Testimony 804b1
ADM if: (i) Stmt made under oath at prior trial, proceeding, or deposition (ii) is now being offered against a party to the prior proceeding (iii) party against whom settlement offered had a prior opportunity to examine the declarant at the prior proceeding (iv) prior proceeding must have been condcted essentially for the same reason as the examination at present trial (i.e., the reason or motive for examinations is similar) (v) unavailable
*grand jury testimony is INADM as former testimony
StatDying Declaration 804b2
ADM if: (i) homicide or civil case (ii) unavailable (iii) statement relates to the cause of death (iv) statement was made under belief of imminent death
Statement Against Interest 804b3
ADM if: (i) stmt was against declarant’s interest when made (ii) reasonable person wouldnt have made the statement unless she believed it to be true and (iii) unavailable
Hearsay Exceptions Regardless of Availability (803)
Most tested: PSI, EU, then-existing state of mind, stmt for purposes of medical treatment, reorded recolection, business records, absence of business records, public records, absence of public records, prior felony judgments, learned treatises
Present Sense Impression 803(1)
(i) Statement that describes or explains an event or condition (ii) made while declarant is perceiving the event or immediately thereafter
Excited Utterance 803(2)
(i) startling event (ii) causes declarant to be excited or shocked (iii) stmt relates to event and (iv) is made while declarant is under stress of the event
Present / Then Existing State of Mind 803(3)
A statement of a declarant’s then-existing SOM, emotion, sensation, or physical condition is admissible to establish intent, plan, pain, motive, or a circumstantial inference that the intent was probably carried out; also adm when SOM is directly in issue (e.g., “I plan to live in CO for the rest of my life” to show domicile if domicile is in issue).
Hillmon Doctrine (Then Existing State of Mind)
Declarations of existing state of mind are admissible if they are declarations of intent offered to show subsequent acts of the declarant (declarant did what he intended to do)
- cannot be a statement of memory (I left my keys in the car)
- *UNLESS it’s about wills. Wills allows statements of memory or belief
Statement for the Purpose of Medical Diagnosis or Treatment 803(4)
(i) stmt made by patient, family member, good sam to a doctor / medical professional (ii) for the purpose of diagnosis or treatment (iii) describes medical history, symptoms, pain or sensation, cause (BUT NOT FAULT) of injury (iv) if reasonably pertinent to diagnosis
Recorded Recollection 803(5)
W can’t recall by refreshing; (i) writing/report of an event that (ii) relates to facts W once knew of and can’t remember (iii) that were written or adopted by W (iv) when facts were fresh in W’s memory (v) BUT contents can only be read into evidence (not an exhibit) (vi) unless adverse party wants to introduce it
Business Records 803(6)
(i) authenticated (custodian/otherwise quaified W) (ii) record made contemporaneously with business transaction (at or near the time) (iii) record made by person with knowledge of facts (bookkeeper, sales clerk, etc.) and duty to report (iv) made and kept in the normal course of business and not just for litigation (v) admissible hearsay to prove contents of record UNLESS opponent shows suspicion
Types of Writings in 803(6)
Hospital records: ADM if related to medical diag or treatment
Police reports: INADM against criminal D
Records prepared for litigation: INADM
Absence of Business Records 803(7)
(i) Txns usually recorded per 803(6); (ii) all txns of this type are generally recorded (iii) custodian or person familiar with records authenticatees (iv) diligent search of records fails to show txn occurred
Public Records 803(8)
Records, reports, stmts, data compilations of a government agency that describes either (i) activities of agy (ii) any matter observed by a public official with a duty to observe and report (iii) investigative reports in civil cases and against the gov in criminal cases, including factual findings and opinions/conclusions . . . unless the opponent shows that the sources appear untrustworthy
Prior Felony Judgments 803(22)
(i) evidence of a final judgment of conviction after guilty plea or trial (ii) felony (iii) evidence is admitted to prove any fact essential to the judgment (iv) civil and criminal case, but if offered by P in criminal case, it must be judgment against D, not a 3P
Ancient Documents 803(16)
Statements in any authenticated document prepared before 1/1/98 are admissible
Document affecting property interests 803(15)
A statement in a document affecting an interest in property is adm if the statement is relevant to the doc’s purpose; does not apply if later dealings with the prop are inconsistent with the TOMA or the intent of the doc
Residual Catchall Exception 807
807 provides a general catchall exception for hearsay stmts not covered; can be admitted if there are circumstantial guarantees of trustworthiness, it is in the interests of justice to admit it, and the adverse party receives notice before trial of the statement
Confrontation Clause (6A)
Crawford Rule: In CRIMINAL cases, PROSECUTION cannot offer in (i) testimonial hearsay (even under an exception) UNLESS (a) D has opportunity to cross declarant at trial OR (b) declarant is unavailable and D had a prior opportunity to cross her
Confrontation Clause: “testimonial”
Non-emergency statement. E.g., providing information to help the police not in the 911 context; providing information after an emergency ends, forensic analysis reports, affidavits, interrogation answers that establish or prove past events relevant to a criminal prosecution
*When 911 turns to 411, it becomes testimonial!!!
Due Process Concerns
If FRE is prohibiting a piece of evidence critical to the defense, rendering a fair trial fundamentally unfair, court can relax FRE as justice requires (Chambers) [hail Mary pass of criminal defense atty]
