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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

definition

HEARSAY

A

a. an out of court “statement” by declarant’s
b. that is offered for the truth of the matter asserted IN THE STATEMENT

RULE 801(c)

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2
Q

general rule

HEARSAY

A

INADMISSIBLE unless exception applies

RULE 802

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3
Q

definition

DECLARANT

A

person who made the statement

RULE 801(b)

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4
Q

definition

WITNESS

A

person who will be introducing the declarant’s statement into the courtroom, either by testifying to it or by introducing the statement in the form of a document

RULE 801

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5
Q

definition

STATEMENT

A

a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion

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6
Q

definition

ASSERTION

A

declaration of fact or allegation of fact or opinion

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7
Q

questions

ASSERTION

A

need not be expressed as declarative statements, can also be questions

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8
Q

non-verbal conduct

ASSERTION

A

non-verbal conduct can also be a statement if declarant intends conduct to be assertive

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9
Q

reasons to offer out-of-court statement OTHER THAN for truth of the matter asserted
HEARSAY

A
  1. Context
  2. Notice
  3. Effect on the Listener
  4. Verbal Act
  5. Circumstances Evidencing State of Mind
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10
Q

3 categories EXEMPT from hearsay rule under 801(d)(1)

NONHEARSAY

A

NOT exceptions = FRE excludes 3 types of statements from declarant-witnesses from definition of hearsay

A. SWORN TESTIMONY = prior inconsistent statements made under oath at a trial, hearing, other proceeding, or deposition
B. CREDIBILITY = prior consistent statements offered to rebut an express or implied charge of recent fabrication or to rehabilitate the declarant’s credibility as a witness when attacked on other grounds
C. ID = out of court identification

RULE 801(d)(1)(A)-(C)

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11
Q

2 foundational requirements

SWORN TESTIMONY 801(d)(1) NONHEARSAY

A

SWORN TESTIMONY requires the following to be exempt from hearsay rule:

  1. the declarant must testify at the proceeding and
  2. the opponent must have an opportunity to cross-examine the declarant about the statement
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12
Q 
definition
801(d)(2) OPPOSING PARTY'S STATEMENT AS NONHEARSAY
A

= any statement made or adopted by a party, by someone authorized by the party, by a party’s employee within the scope of employee, or, in criminal cases, by a co- conspirator within the scope and in furtherance of the conspiracy

RULE 801(d)(2)

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13
Q

confession required

801(d)(2) OPPOSING PARTY’S STATEMENT AS NONHEARSAY

A

NO, statement does not need to be a confession

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14
Q

bias required

801(d)(2) OPPOSING PARTY’S STATEMENT AS NONHEARSAY

A

NO, statement does not have to be against interest at the time it is made

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15
Q

possible format

801(d)(2) OPPOSING PARTY’S STATEMENT AS NONHEARSAY

A

statement can be verbal or written

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16
Q 
2 examples (from class) of opposing party's statements 
NONHEARSAY
A

statement is offered against an opposing party and either:
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy

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17
Q

3 rules

HEARSAY EXCEPTIONS

A
  1. RULE 803
  2. RULE 804
  3. RULE 807
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18
Q

RULE 803 overview

HEARSAY EXCEPTIONS

A

23 hearsay exceptions under which evidence can be admitted REGARDLESS of whether the declarant is available to testify in court

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19
Q

RULE 804 overview

HEARSAY EXCEPTIONS

A

4 hearsay exceptions under which evidence can be admitted only when the declarant is UNAVAILABLE to testify in court

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20
Q

RULE 807 overview

HEARSAY EXCEPTIONS

A

additional exception for hearsay that does not meet the criteria in FRE 803 and FRE 804, but that nevertheless has EQUIVALENT circumstantial guarantees of trustworthiness

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21
Q

present sense impression

803(1)-(4) HEARSAY EXCEPTIONS

A
  1. The declarant must make the statement while actually perceiving an event or immediately thereafter (passage of even a few minutes’ time is enough to defeat the exception)
  2. The explanation of the event must be a simple description of the observed event or condition
  3. The declarant must have personal knowledge of the described event

RULE 803(1)

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22
Q

excited utterance

803(1)-(4) HEARSAY EXCEPTIONS

A
  1. There must be a startling event
  2. The declarant must perceive the event
  3. The event must trigger the “stress of excitement” in the declarant
  4. The statement must relate to the startling event itself

RULE 803(2)

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23
Q

then-existing mental, emotional, or physical condition

803(1)-(4) HEARSAY EXCEPTIONS

A
  1. The declarant’s bodily, emotional, or mental condition must be at issue in the case
  2. The statement must be a present or contemporaneous statement and NOT a statement of past feelings or conditions
  3. The statement must be of the declarant’s state of mind, not someone else’s

RULE 803(3)

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24
Q

statements for the purposes of medical diagnosis or treatment
803(1)-(4) HEARSAY EXCEPTIONS

A
  1. The statement must relate to the cause or condition
    - statements describing what happened are admissible insofar as they are related to treatment
  2. The statement must be made for the purpose of obtaining treatment
    - whether made directly to medical personnel or even to a family member or caregiver, the key element is the declarant’s understanding that the statement is related to receiving treatment

RULE 803(4)

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25
Q

sufficient evidence of “stress of excitement”

803(1)-(4) HEARSAY EXCEPTIONS

A

generally, descriptions of the declarant’s
1. emotional state
2. physical appearance
3. behavior
4. condition
= suffice to demonstrate the stress of excitement

RULE 803(2)

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26
Q

rules

HEARSAY WITHIN HEARSAY + PAST RECOLLECTION RECORDED + BUSINESS RECORDS

A

RULE 805 and RULES 803(5)-(7)

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27
Q

double hearsay

HEARSAY WITHIN HEARSAY + PAST RECOLLECTION RECORDED + BUSINESS RECORDS

A

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule

RULE 805

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28
Q

recorded recollection

HEARSAY WITHIN HEARSAY + PAST RECOLLECTION RECORDED + BUSINESS RECORDS

A

4 FOUNDATIONAL REQUIREMENTS

  1. The witness must demonstrate – on the stand – the inability fully and accurately to remember something about which the witness has actual personal knowledge
  2. The advocate’s efforts to refresh the witness’s recollection under FRE 612 must fail
  3. The advocate must establish that the witness made or adopted a record of the matter while it was still fresh in the witness’s mind
    - there is no set time period for determining whether the matter was still fresh in the witness’s mind
  4. The advocate must establish that the record correctly reflects the witness’s knowledge

RULE 803(5)

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29
Q

actual personal knowledge requirement

RECORDED RECOLLECTION

A
  1. memo or record must have been made or adopted by the witness when the matter was fresh in his mind and to reflect that knowledge correctly
  2. RULE 803(5) applies only to records or memos about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately

RULE 803(5)

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30
Q

records of a regularly conducted activity

HEARSAY WITHIN HEARSAY + PAST RECOLLECTION RECORDED + BUSINESS RECORDS

A

3 FOUNDATIONAL REQUIREMENTS

  1. the record must be made and kept in the course of a regularly conducted business activity
    - and as a corollary to this element, the record must be of the type regularly kept and maintained by that business
  2. the record must be made at or near the time of the event recorded therein
  3. the record must be made by, or from information transmitted by, a person with knowledge who had a business duty to report the information

RULE 803(6)

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31
Q

element of unusual reliability of business records

RECORDS OF A REGULARLY CONDUCTED ACTIVITY

A

variously supplied

  1. by systematic checking
  2. by regularity and continuity which produce habits of precision
  3. by actual experience of business in relying upon them
  4. by a duty to make an accurate record as part of a continuing job or occupation

RULE 803(6)

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32
Q

admissibility

ABSENCE OF A RECORD OF A REGULARLY CONDUCTED ACTIVITY

A

= failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence

RULE 803(7)

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33
Q

foundational requirements

ABSENCE OF A RECORD OF A REGULARLY CONDUCTED ACTIVITY

A

2 FOUNDATIONAL REQUIREMENTS

  1. the same elements to establish a business record PLUS
  2. either
    a. the witness must introduce the record that shows absence of entry OR
    b. the witness must testify that a diligent search of files revealed no record at all

RULE 803(7)

34
Q

admissibility

RECORD INCORPORATED BY SECOND ENTITY

A

may be admitted under 803(6) on testimony of a “qualified witness” of the incorporating entity alone if certain criteria are met

RULE 803(6)

35
Q

foundational requirements

RECORD INCORPORATED BY SECOND ENTITY

A
  1. the incorporating entity must obviously procure and keep the record in the normal course of its business
  2. the entity must show that it relies on the accuracy of the incorporated record in its business
  3. there must “other circumstances indicating the trustworthiness of the document”

RULE 803(6)

36
Q

rules

HEARSAY AND PUBLIC RECORDS

A

RULES 803(8) and 803(10)

37
Q 
purpose/use
RULE 803(10) ABSENCE OF PUBLIC RECORD OR ENTRY
A

allows one to prove the nonoccurrence or nonexistence of the matter

RULE 803(10)

38
Q 
purpose/use
RULE 803(8) PUBLIC RECORDS AND REPORT
A

foundational rule for public records

RULE 803(8)

39
Q 
2 requirements
RULE 803(8) PUBLIC RECORDS AND REPORT
A
  1. The record is a certified copy of a public records or report
    (FRE 902(1)-(4) provides for the self-authentication of public documents and records)
  2. The record meets one of the three clauses of FRE 803(8)
40
Q 
3 categories of public records
RULE 803(8) PUBLIC RECORDS AND REPORT
A

(A) the activities of the office or agency

(B) matters observed pursuant to duty imposed by law as to which there was a duty to report

(C) factual findings made pursuant to authority granted by law

41
Q 
(A) the activities of the office or agency 
RULE 803(8) PUBLIC RECORDS AND REPORT
A

= sets forth the activities of the office or agency

42
Q 
(B) matters observed pursuant to duty imposed by law as to which there was a duty to report 
RULE 803(8) PUBLIC RECORDS AND REPORT
A

= contains matters observed pursuant to duty imposed by law as to which there was a duty to report

43
Q 
(C) factual findings made pursuant to authority granted by law
RULE 803(8) PUBLIC RECORDS AND REPORT
A

= contains factual findings from an investigation conducted pursuant to legal authority

44
Q 
foundational elements for clause (A)
RULE 803(8) PUBLIC RECORDS AND REPORT
A

no additional requirements

= clause A records simply need to be authenticated under Rule 902 to satisfy admissibility requirements

45
Q 
3 additional foundational elements for clause (B)
RULE 803(8) PUBLIC RECORDS AND REPORT
A

foundation for records of matters observed pursuant to duty imposed by law as to which there was a duty to report
includes the following additional elements:
1. the government employee or agents must have firsthand knowledge of the event or condition described in the report
2. the source of the information must be under a legal duty to report the information
3. the public agency must have a legal obligation to prepare and maintain the record

46
Q 
foundational requirements
RULE 803(10) ABSENCE OF PUBLIC RECORD OR ENTRY
A
  1. the same elements to establish the existence of an actual record in which there is no entry, or the type of record where the information or matter would be recorded if it existed
  2. live testimony or a certificate that complies with FRE 902 that diligent search failed to disclose the record, report, statement, or data compilation, or entry

RULE 803(10)

47
Q

crawford rule

CONFRONTATION

A

in Crawford, the Supreme Court held that testimonial hearsay cannot be introduced against a criminal defendant unless the Confrontation Clause of the Sixth Amendment has been satisfied

48
Q

purpose

CONFRONTATION

A

confrontation is designed to weed out fraudulent analysis and incompetent analysis

= “Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination”

49
Q

investigatory reports that state a conclusion or opinion

HEARSAY AND PUBLIC RECORDS

A
  • In Beech Aircraft v. Rainey (1998), the Court holds that portions of investigatory reports otherwise admissible under FRE 803(8)(C) are not inadmissible merely because they state a conclusion or opinion
  • As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report
50
Q

2 broad requirements

HEARSAY EXCEPTIONS REQUIRING UNAVAILABILITY OF DECLARANT

A
  1. Reason for unavailability

2. Clean hands

51
Q

6 reasons for unavailability

HEARSAY EXCEPTIONS REQUIRING UNAVAILABILITY OF DECLARANT

A
  1. death
  2. exercise of a privilege
  3. refusal to testify despite a court order
  4. forgetfulness (testified to not remembering the subject matter)
  5. mental or physical Illness
  6. absence because legal process cannot be used to secure the declarant’s testimony

RULE 804(a)

52
Q 
foundational requirements
RULE 804(b)(1) FORMER TESTIMONY
A
  1. the declarant is unavailable under FRE 804(a)
  2. the former statement was made in an authorized deposition or in another proceeding
  3. the former statement was made under oath
  4. the party against whom the statement is offered, or a predecessor in interest, had a similar motive to develop the testimony

RULE 804(b)(1)

53
Q 
factors
RULE 804(b)(1) FORMER TESTIMONY
A
  • Several factors influence a decision whether to admit prior testimony
  • Including
    1. Identity of parties
    2. Similarity of motives to develop testimony
    3. Prior opp to develop testimony

RULE 804(b)(1)

54
Q 
foundational requirements
RULE 804(b)(2) STATEMENT UNDER BELIEF OF IMPENDING DEATH
A
  1. The declarant is unavailable under Rule 804(a)
  2. The statement was made when the declarant believed death was imminent
  3. The statement related to the cause or circumstances of what the declarant subjectively believed to be his impending death
  4. The statement was based on the declarant’s first-hand knowledge of such causes or circumstances

RULE 804(b)(2)

55
Q 
proof of declarant’s death 
RULE 804(b)(2) STATEMENT UNDER BELIEF OF IMPENDING DEATH
A

NOT required

RULE 804(b)(2)

56
Q 
foundational requirements
RULE 804(b)(3) STATEMENT AGAINST INTEREST
A
  1. The declarant is unavailable to testify at trial
  2. The declarant has first-hand knowledge of the factual matters in the statement
  3. The nature of the statement is such that a reasonable person would not have made it unless believing it to be true
  4. At the time of utterance, the statement must be contrary to the declarant’s pecuniary, proprietary, or penal interest
  5. If the statement is against the declarant’s penal interest, it must be supported by corroborating circumstances that indicate its trustworthiness

RULE 804(b)(3)

57
Q

rules

OTHER HEARSAY RULES

A

RULES 806 and 807

58
Q

methods for attacking credibility

RULE 806 ATTACKING / SUPPORTING DECLARANT’S CREDIBILITY

A
  1. RULE 608 character for untruthfulness of any witness may be attacked by reputation or opinion testimony
    (once attacked, the witness’s character for truthfulness may be supported by the same kind of evidence)
  2. RULE 609 permits witnesses to be impeached by evidence of conviction of a qualifying crime
  3. RULE 613 allows impeachment by proof of prior inconsistent statements
  4. witnesses may be impeached by specific contradiction or by extrinsic proof of bias or motive to misrepresent
59
Q

changes to traditional methods of impeachment

RULE 806 ATTACKING / SUPPORTING DECLARANT’S CREDIBILITY

A
  1. re: extrinsic proof of inconsistent statements – 806 does away with RULE 613(b)’s requirement that the impeached witness be “afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon”
  2. 806 states that if the party against whom the hearsay is offered wishes to call the hearsay declarant to the stand to be impeached, the party is permitted to examine the declarant as if on cross- examination
60
Q

foundational requirements

RULE 807 RESIDUAL HEARSAY

A
  1. the proponent has provided notice to the adverse party sufficiently in advance of the trial or hearing to enable a fair opportunity for the adverse party to prepare to meet it
  2. the statement bears circumstantial guarantees of trustworthiness equivalent to those of the 23 exceptions under RULE 803 and/or the 5 exceptions of RULE 804
  3. the statement is offered as proof of a material fact at trial
  4. the statement is more probative on the point for which it is being offered than any other evidence that the proponent can procure through reasonable efforts
  5. the statement’s admission into evidence serves the general purposes of the FRE and the interests of justice
  6. for testimonial statements in criminal cases, the defendant’s confrontation rights have been satisfied
61
Q

10 examples of establishing trustworthiness

RULE 807 RESIDUAL HEARSAY

A
  1. the declarant’s motivation to speak truthfully or untruthfully
  2. spontaneity of the statement
  3. whether the statement was elicited by leading questions
  4. time elapse between event and statement
  5. whether the declarant was subject to cross-examination at the time the statement was made
  6. relationship between declarant and the person to whom the statement was made
  7. whether the declarant recanted or reaffirmed the statement
  8. whether the statement was recorded or videotaped
  9. whether the declarant’s first-hand knowledge is clearly demonstrated
  10. comparing the characteristics of the proffered hearsay to the foundational requirements of an existing hearsay exception
62
Q

um…topics

HEARSAY WITHIN HEARSAY + PAST RECOLLECTION RECORDED + BUSINESS RECORDS

A
  1. Recorded Recollection v. Business Records
  2. Routine or Regular Practice of a Business Activity
  3. Personal Knowledge, Business Duty to Report
  4. Custodians and Affidavits

?!?!?

63
Q

“out-of-court statement” meaning

HEARSAY

A

statement made anywhere OTHER than witness stand at CURRENT trial

64
Q

principled categories of nonhearsay

NONHEARSAY

A
  1. verbal acts
  2. words offered to show effect on person who read/heard statement
  3. circumstantial evidence of speaker’s state of mind
65
Q

verbal act

NONHEARSAY

A

= legally operative words, have legal significance whether or not spoken truthfully

EXAMPLE = overhearing contract offers/acceptance, perjury, fraud, defamation

66
Q

words offered to show effect on person who read/heard statement
NONHEARSAY

A

EXAMPLE
in grocery slip ‘n’ fall case, overheard another customer tell employee there was a broke jar of salsa in aisle 3

= not hearsay to prove notice, hearsay to prove there was actually a broken jar of sale in aisle 3

67
Q

circumstantial evidence of speaker’s state of mind

NONHEARSAY

A

EXAMPLE
mr. rick tells client that he is elvis presley
= not hearsay to prove that mr. rick was suffering insane delusion,
hearsay to prove mr. rick is, in fact, elvis,

68
Q

direct evidence of speaker’s state of mind

HEARSAY

A

ADMISSIBLE HEARSAY EXCEPTION,

not nonhearsay

69
Q

3 types of

NONHEARSAY

A
  1. principled categories (not stated in FRE)
  2. prior statements by witness
  3. statements by or attributable to opposing party
70
Q

admissions by party-opponent

NONHEARSAY

A

any statement made by a party and offered against that party is not hearsay

71
Q

against interest

NONHEARSAY PARTY-OPPONENT ADMISSIONS

A

need not have been against interest at the time it was made to qualify as an admission

72
Q

opinion

NONHEARSAY PARTY-OPPONENT ADMISSIONS

A

may even be in the form of an opinion

73
Q

personal knowledge

NONHEARSAY PARTY-OPPONENT ADMISSIONS

A

not required

= lack of personal knowledge does not necessarily exclude a party’s admission

74
Q

judicial and extrajudicial admissions

NONHEARSAY PARTY-OPPONENT ADMISSIONS

A
  • formal judicial admissions (in pleadings, responses to requests to admit, stipulations) = conclusive
  • informal judicial admissions made during testimony =
    can be explained
  • extrajudicial (evidentiary) admissions = not conclusive and can be explained

RULE 410

75
Q

adoptive admissions

NONHEARSAY PARTY-OPPONENT ADMISSIONS

A

a party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive admission

RULE 801(d)(2)

76
Q

silence

NONHEARSAY PARTY-OPPONENT ADMISSIONS

A

if a party fails to respond to accusatory statements where a reasonable person would have spoken up = his silence may be considered an implied admission
AS LONG AS
1. the party must have heard and understood the statement
2. the party must have been physically and mentally capable of denying the statement
3. a reasonable person would have denied the accusation under the same circumstances

(NOTE: failure to reply to an accusation or statement made by the police in a criminal case can almost never be used as an implied admission of a criminal act)

RULE 801(d)(2)

77
Q

vicarious admissions of co-parties

NONHEARSAY PARTY-OPPONENT ADMISSIONS

A

statements of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action

  • if 2 or more parties, admission of a party = receivable against itself
  • in the absence of authority, not against her co-party

RULE 801(d)(2)

78
Q

vicarious admissions of authorized spokesperson

NONHEARSAY PARTY-OPPONENT ADMISSIONS

A

the statement of a person authorized by a party to speak on its behalf can be admitted against the party
(example = statement by company’s press agent)

RULE 801(d)(2)

79
Q

vicarious admissions of partners

NONHEARSAY PARTY-OPPONENT ADMISSIONS

A

after a partnership is shown to exist, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others

RULE 801(d)(2)

80
Q

vicarious admissions of co-conspirators

NONHEARSAY PARTY-OPPONENT ADMISSIONS

A

SC has held that admissions of one conspirator
1. made to 3P
2. in furtherance of a conspiracy to commit a crime or a civil wrong
3. at a time when the declarant was participating in the conspiracy
= are admissible against co-conspirators

reasoning = conspiracy is analogous to a partnership AKA “partners in crime”

81
Q

preliminary determination of agency/conspiracy for vicarious admissions
NONHEARSAY PARTY-OPPONENT ADMISSIONS

A
  • court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is being offered
  • court must consider the contents of the offered statement BUT the statement alone is not sufficient to establish the required relationship or authority

RULE 801(d)(2)

82
Q

unavailability of non-testifying co-conspirator

NONHEARSAY PARTY-OPPONENT ADMISSIONS

A

gov need not demonstrate the unavailability of a non-testifying co-conspirator as a prerequisite to admission of the co-conspirator’s out-of-court statements

RULE 801(d)(2)(E)

Evidence (10 decks)

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