Hearsay Flashcards
Hearsay
Out of court (not made in the current hearing)
Statement
of a person (not an animal, machine, or times stamp)
offered to prove the truth of the matter asserted
Not Hearsay
Verbal Act (Legally Operative Facts)
Offered for the Effect on the Listener or Reader
Circumstantial Evidence of Declarants State of Mind
Legally Operative Facts
Contract offer or cancellation, making a gift, bribe, perjury, fraud, defamation, or words accompanying ambiguous acts.
Hearsay Exclusions
Witness’s prior statement of identification
Witness’s prior inconsistent statement under oath
Witness’s prior consistent statement when offered to rehabilitate the witness
Opposing Party Statements
Adoptive Statements (including silence)
Vicarious Opposing Party Statements
Opposing Party Statements
Any statement made by a party is admissible against that party.
Adoptive Statements
A party may adopt the statement of someone else either expressly or by remaining silent in the face of an accusation that a reasonable person would deny if true.
Vicarious Opposing Party Statements
Statements of a third party that are admissible against the plaintiff or defendant because of the relationship between the two:
Agent/Employee again Principal/Employer if statements concern a matter within the scope of the agency/ employment and are made during the agency/employment.
Statement by a co-conspirator that is made during and in furtherance of the conspiracy.
Hearsay Exceptions (Declarant Unavailable)
Former Testimony of a now-unavailable witness
Statements Against Interest
Dying Declarations
Grounds for Unavailability
Death or Illness Absence from Jurisdiction Privilege Stubborn Refusal to Testify Lack of Memory
Former Testimony of a Now-Unavailable Witness
Admissable if given during a former proceeding where the adverse party had the opportunity to cross-examine and develop the testimony of the witness. The issue in the previous proceeding must have been substantially the same as the issue in the present proceeding.
Statements Against Interest
Only admissible if the witness is now unavailable. The statement must be against the declarants pecuniary, proprietary, or penal interest. It must be against interest when made and personal knowledge is required.
In criminal cases, statements against penal interest must be corroborated.
Dying Declarations
Statement made under belief of imminent and certain death by a non-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death. Only available in civil cases and criminal homicide trials.
Hearsay Exceptions (do not require unavailability)
Excited Utterance
Present Sense Impression
Then-Existing Mental or Physical Condition
Statements for Medical Diagnosis or Treatment
Regularly Conducted Business Records
Public Records
Excited Utterance
Statement concerning a startling event and made while the declarant is still under the stress of excitement caused by the event.
Present Sense Impression
Description of an event made while the event is occurring or immediately thereafter. The theory is that the declarant had no time to fabricate the statement.
Then-Existing Mental or Physical Condition (Present State of Mind)
Contemporaneous statement concerning declarant’s own present state of mind, feelings, emotions, or physical condition. Includes declaration of intent to do something in the future and present physical condition.
Statement for Purposes of Medical Diagnosis or Treatment
Statement made to anyone concerning past or present symptoms or general cause of condition for the purpose of treatment or diagnosis.
Medical diagnosis includes diagnosis for the purpose of giving an expert opinion.
Business Records (Records of Regularly Conducted Business Activity)
Records of any type of business or organization
Made in the regular course of business
The business regularly keeps such records
Made at or near the time of the event recorded
Contents consist of information observed by employees of the business
A statement by an outsider is only admissible if it falls within an independent hearsay exception.
Requires a sponsoring witness to testify to or an affidavit/declaration attesting to the elements of the business records hearsay exception requirements.
Public Records
Records of a public agency or office setting forth:
The activities of the agency or office
Findings of fact or opinion resulting from an investigation authorized by law
Police reports and investigatory findings are not admissible against the defendant in a criminal case.
Hearsay and the Confrontation Clause
Regardless of whether a hearsay exception is satisfied, the Sixth Amendment Right to Confrontation prohibits the use of “testimonial” hearsay statements against a criminal defendant if the declarant is unavailable and the defendant has not had the opportunity for cross-examination.
Testimonial Evidence
Includes sworn testimony but also includes statements to police officers and certain documents.
Providing information to aid police in an ongoing emergency = nontestemonial
Providing information to help police gather information for eventual prosecution = testemonial.
Forensic Analysis that has the effect of accusing a targeted person of criminal conduct will not be admissible if the analyst who drafted the report is unavailable to testify.
