Hearsay Flashcards
What is hearsay?
Hearsay is an out of court statement offered for the truth of the matter asserted.
If you offer a statement to impeach your witness does it have to meet one of the hearsay exceptions in order to be admissible only for this purpose?
No, because it’s not being used for the truth of the matter asserted.
What is the general rule regarding admissibility of hearsay evidence?
All hearsay is inadmissible unless an exception or an exclusion applies.
Aside from written or spoken assertions what other forms of hearsay may be tested?
Conduct intended as an assertion (e.g. raising hand to answer a question)
What are the elements of hearsay?
- It is a statement
- Made by a person, not a machine or animal
- Made out of court
- Being offered to prove the matter asserted.
If a person tries to admit a statement to show the effect on the listener (I.E.that someone had notice), will this be hearsay?
Name the other 3 ways a statement can be offered into evidence and typically won’t be for its truth.
No, statements offered to show affect on a listener are not hearsay.
The other three typical non-hearsay purposes are:
— Impeachment
— Verbal acts / acts of independent legal significance
— evidence of declarant’s state of mind
Which common verbal acts will not be here say because they have independent legal significance?
Defamation
Transactional language
Transfers of land
Which are the five categories of hearsay that are EXCLUDED from the hearsay rule?
Remember: C O P P P
Co–conspirator statements
Opposing party statements
Prior inconsistent statements
Prior consistent statements
Prior statements of identification
Which of the hearsay exclusions require: (1) the declarant to testify, and (2) the declarant to be subject to cross-examination?
The 3 Ps, so:
Prior inconsistent statements
Prior consistent statements
Prior statements of identification
What are the requirements to rely on the hearsay EXCLUSION of co-conspirator statements/ what do you have to prove?
The judge must find a preponderance of the evidence that:
– a CONSPIRACY existed
– the DECLARANT was a MEMBER of the conspiracy
– statement made DURING THE COURSE of the conspiracy
– IN FURTHERANCE of the conspiracy
– statement now offered AGAINST a party opponent/ MEMBER of this conspiracy
Will the statement alone be enough to prove a conspiracy existed for the purposes of relying on the co-conspirator hearsay exclusion?
No, you need some other evidence of a conspiracy.
In order to prove the conspiracy (for the purposes of relying on the hearsay exclusion of co-conspirator statement), does there need to be a charge of conspiracy
No, the statement is admissible even if conspiracy is not yet charged
For which type of proceedings are co-conspirators statements admissible?
Civil or criminal.
What is an opposing party statement?
Any statement
Made at any point by the PARTY OF THE CURRENT CASE
Maybe OFFERED BY the PARTY OPPONENT
For the truth of the matter cited
Broadly speaking, Opposing party statements can be made in which two circumstances?
An adoptive party statement
Agent/employee admission
In order to make an ADOPTIVE party statement (words or conduct) the opposing party must… What…?
Have heard the statement
Understood the statement
A reasonable person under the circumstances would have taken exception
If all of this is true then the party is considered to have adopted that statement as if they had made it themselves.
For an employer/agent to make a statement or admission on your behalf what must be proved?
Statement made in the scope of employment
Made while the employee was employed by the company
Employee does NOT need authority to speak on behalf of the company. But there must be evidence of the employment relationship.
Does an opposing party statement need to be against the parties interests at the time it was made in order for it to be admissible as a hearsay exclusion?
No
Is personal knowledge required to use an opposing party statement?
No
For a statement to be a prior inconsistent statement, what are the requirements?
The contradictory statement or omission must be:
– under oath
– in another proceeding
If a prior inconsistent statement is admissible under the hearsay exclusion in what circumstances can it be used in evidence?
Provided the statement is made under oath in another proceeding, it can be used both as substantive evidence and to impeach.
To introduce a prior CONSISTENT statement what kind of triggering event are you looking for to rely on this hearsay exclusion? There are two ways to introduce the prior consistent statement.
- A) A charge of recent fabrication,
- B) The Prior Consistent Statement can then be offered to rebut the charge that the witness is lying
- C) Provided that the statement being offered was made before any motive to lie arose.
OR
2) To rehabilitate a witness impeached on some other ground.
— But remember that it cannot be used to rehabilitate where the witnesses’s character for truthfulness has been impeached.
In order to use a prior CONSISTENT statement does the statement have to be sworn under oath?
No.
Does a statement of prior identification need to be under oath?
No, can be lineups, show ups, photo arrays, or in court identifications a prior proceedings.
Does the statement of prior identification need to have been recent for it to be admissible?
No
Does the witness need to be impeached before you can introduce a prior identification statement?
No, as there is this exception to the role of bolstering.
If a witness is on the stand and cannot identify the defendant at trial, can the prosecution admit the prior statement of identification nevertheless?
Yes, The prior identification statement is admissible whether or not the witness can make and in court identification, provided the witness testifies and is subject to cross examination.
A witness is unavailable in which circumstances?
Remember: PRISM
Privilege (spousal or 5th Amendment)
Refusal to testify
Illness
Subpoenae won’t work
Memory (loss)
Which 3 Hearsay EXCEPTIONS require a witness to be unavailable in order for you to admit the statement?
Former testimony
Dying declaration
Declaration against interest
A witness is now unavailable and the claimant wants to offer that persons former testimony. State the circumstances in which this is permissible.
Statement made under OATH at a prior trial, proceeding or deposition
Statement is being offered against SAME DEFENDANT as prior proceeding
There was an OPPORTUNITY to EXAMINE the declarant at the last proceeding
Prior proceeding concerned the SAME SUBJECT MATTER as the present trial
Statement made under oath
Declarant it now UNAVAILABLE
What are the requirements in order to admit a statement under the hearsay exception of a dying declaration?
Remember: CUBA
Statement concerns the cause of circumstances of death
Unavailability of declarant
Believe that death was imminent
All civil or, if criminal, only homicide cases
Is personal knowledge required in order to admit a statement under dying declaration?
Yes
When is a declaration against interest admissible under one of the hearsay exceptions?
The statement was against the declarant’s PECUNIARY, PROPRIETY or PENAL interest when made
Such that a reasonable person would have only made that statement if they believed it to be true
Declarant must have had personal knowledge of the facts
The declarant must have been aware that the statement was against her interest at the time it was made
No motive to miss represent
Declarant now unavailable
What is the 4 differences between an opposing party statement and a declaration against interest?
- PERSONAL KNOWLEDGE required for Statement against interest, but not for an opposing party statement
- Declarant need not be a PARTY if making a statement against interest, but must be for an opposing party statement
- Statement Against Interest must have been AGAINST INTEREST WHEN it was MADE, unlike for an opposing party statement
- Declarant must be UNAVAILABLE if you want to introduce a Statement Against Interest, but this isn’t necessary for an opposing party statement
Which are the 9 hearsay exceptions to which unavailability is irrelevant?
- Present sense impression
- Excited utterance
- Present mental state condition
- Medical diagnosis/treatment
- Business records/absence of business records
- Public record/absence of public record
- Past recollection recorded
- Prior felony judgement
- Learned Treaties
What are the requirements to admit a statement of present sense impression under the hearsay exception?
Oral or written statement
That DESCRIBES or explains an EVENT or condition
While the declaring is PERCEIVING the event or IMMEDIATELY AFTERWARDS
The declarant had PERSONAL KNOWLEDGE
What are the requirements to admit and excited utterance statement under the hearsay exception
A STARTLING EVENT
That causes declarant excitement or SHOCK
Statement RELATES TO THE EVENT
Declarant was UNDER the STRESS of the event when they made it
PERSONAL KNOWLEDGE
What are the 3 requirements to have a statement admitted under present mental state condition?
The statement relates to the declarants then-existing state of mind, emotion, sensation, physical condition.
Admissible to prove their feeling, pain, intent, plan or motive towards future acts
Statement must look forward
When should the court exclude a statement made by the declarant under the Present State of Mind rule?
If it concerns the declarant’s WILLS
What are the requirements to admit a medical diagnosis/treatment statement under the hearsay exception?
Statement is made by the patient, family member, or Good Samaritan to a medical person
For the PURPOSE of DIAGNOSIS or TREATMENT
DESCRIBES the symptoms/pain/sensation
But NOT FAULT
Admissible if the statement is reasonably pertinent to diagnose or treat the person
What are the circumstances you’re looking for in order to consider past recollection recorded (hearsay exception)
And attempt to refresh the witness his memory, which fails
A writing that was made or adopted by the witness
The making or adoption of such writing was timely (when events were fresh in their mind)
Witness testifies that the writing is accurate
The witness is then permitted to read the words of the writing into evidence and it can be heard by the jury.
What are the requirements for past for collection recorded
Writing of an event;
Writing relates to facts witness cannot presently remember, but didn’t know earlier;
Writing was adopted by the witness when the facts were fresh in the memory;
Contents can then be read into the evidence + heard by the jury
Can the writing used as part of past recollection recorded be introduced into evidence?
Not unless it is introduced by the adverse party.
What are the requirements for introducing a statement regarding business records (hearsay exception)?
A CONTEMPORANEOUS record
Made and kept in the ORDINARY COURSE OF BUSINESS
The person who made the record had a DUTY TO CREATE IT
PERSONAL KNOWLEDGE of facts
The custodian/person familiar with the record authenticates it.
How do you prove an absence of business records?
Transactions are usually recorded per business record exception
But a diligent search fails to show the transaction occurred
What are the three things a public record must describe for it to be admitted under the hearsay exception?
In addition to the above-mentioned subject matter, what other two requirements exist to admit the public record?
Either:
– Activity of the agency
- Any matter observed by a public official with a duty to observe and report, or
- Investigative reports in civil cases and against the government in criminal cases
The records must also be (1) contemporaneous, and (2) made by an employee acting in the scope of their duties
What are the 4 requirements to admit a prior felony judgement under the hearsay exception?
Evidence of a final judgement or conviction
A felony
Evidence it is admitted to prove any fact essential to the judgement
Can be criminal or civil case (but for criminal it must be a judgement against the defendant)
During a prosecution for murder the defendant denies the victim is dead. The prosecution enters into evidence a certified copy of the judgement of a conviction of the defendant’s accomplice who had been previously tried and found guilty of the same murder. Is it admissible as a prior felony judgement to prove the victim died?
No, because this is a criminal case and the judgement is against a third party not the defendant
Hearsay within hearsay is admissible in what circumstances?
If each hearsay statement makes a hearsay exception/exclusion.
What is the rule regarding the 6th Amendment confrontation clause?
Hearsay will not be admitted into evidence (even if it meets and exception or exclusion) if:
— It’s being offered against the D in a CRIMINAL CASE
— Declarant is UNAVAILABLE
— Statement is TESTIMONIAL
— The defendant had NO prior opportunity to cross examine the declarant before this trial
Which public record specially does not fall under the Hearsay Exception?
Police reports against a D in a criminal trial
How do you show an absence of public record?
The basic requirements for the public record exception
Plus:
— A diligent search failed to reveal to record
— Testimony by a qualified witness or a certification from the custodian of the public record
The Defendant was acquitted of murder in a prior trial. A party to a current case wants to admit evidence of this acquittal under a hearsay exception. Can they?
No, it’s not admissible evidence of a prior felony judgment because acquittals are excluded.
When can you rely on the Learned Treaty Hearsay Exception?
If admitted, what is the result?
The LT is called to attention, or relied upon by, an expert witness; AND
It’s established as reliable authority by (1) that witness; (2) your own expert; or (3) through judicial notice
the LT can then be read into evidence and act as substantive evidence. Although an exhibit cannot be given to the jury.
For the purpose of the Confrontation Clause, what is “testimonial”?
Affidavits or reports summarising findings of forensic analysis that target the accused; OR
Statements made in the course of a police interrogation where the main purpose was to establish/prove past event that are potentially relevant to a future criminal prosecution
— EXCEPT: police interrogations during an ongoing emergency
