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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

Hearsay Definition

A

FRE 801(c)

An out of cour statement made for the truth of the matter asserted

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2
Q

Hearsay Steps

A
  1. Identify out of court statement?
  2. What is the truth asserted by the statement?
  3. what is the statmenting being offered to prove?
  4. is there an exception?
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3
Q

Is it a statement?

A

A statment is an assertino about a fact

  • actions are usually not statments unless they are intended to substitute for a verbal statements (pointing, gestures)
  • words are not deemed statmenets if they are verbal acts (contract, bribes, conspiracy, pandering, solicitation, threats, defamation
  • animals and machines dont make “statemen” only people do
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4
Q

Verbal Acts

A

Certain utterances should be viewed as acts when the doctrined applies evidence that describes what someone said is analytically the same as evidence describing what someone did

  • statements that constitute an element of any cause of action, whether civil or cirminal can be viewed as verbal acts
  • When condcut is meant to substitute for a verbal comment -assertive acts may be hearsay, non assetive acts never hearsay
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5
Q

Is the statement being offered to prove the truth of the matter asserted?

A

Is the statement relevant regardless of whether true?

  • to show declarant was conscious/alive
  • to explain conduct
  • to prove a warning was given
  • to show an investigation was warranted
  • to show someone had knowlege
  • to show the nature of the place
  • to impeach a witness
  • to show the declarants state of mind (circumstantially)
  • verbal acts
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6
Q

Exceptions

A
  1. Party Opponent Admission
    1. adoptive admissions
    2. authorized/agent admissions
    3. co-conspirator admissions
  2. Prior Inconsistent Statements
  3. Prior consistent statements
  4. Statements of identification
  5. Excuted utterance
  6. Present Sense impression
  7. Contemperanous statements
  8. Then-existing state of mind
  9. Medica Disagnoisi/treatment
  10. Statements Against Interest
  11. Dying Declarations
  12. Former Testimony
  13. Business records
  14. official/public records
  15. learned treatieses
  16. commercial lists
  17. Judgments of conviction
  18. Recollection Recorded
  19. Recollection Refreshed
  20. Residual Exception
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7
Q

Party Opponent Admission

A
  • Anything the other party said (anything the defendant wants to illicit the plaintiff said (vice versa))
  • Not required to have personal knowlege of what they are admitting too
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8
Q

Adoptive Admissions

A

Defendant adopts the opinion of a 3rd party as their own.

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9
Q

Admission by silence

A

would a reaosnable person in his position have disputed it if if were not true?

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10
Q

Authorized admissions or agent

A

FRE 801(d)(2)(C)

  • A statement made by an agent of the party or by someone authroized by the party to do so

FRE 801(d)(2)(D)

  • Did the statement concern matter within the scope of the agency?
  • was statment made duing existence of agency relationship?

*Preponderance

*Can consider would be admission-cant rely solely on admission

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11
Q

CA: Authorized Admission or Agent

A

CEC 1222

  • Did principal give express or implied authorization to make statement?
  • was statement made during existence of agency relationship
  • differences from federal rules
    • sufficienty standard
    • cant consider would be admission must only use evidence aorund circumstances
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12
Q

Co-Conspirator admission

A

801(d)(2)(E)

  • statement made during course of conspiracy
    • declarant and party in the same conspiracy
    • declarant in conspiracy when statement was made
    • party in conspiracy when/after statement was made
  • In furtherance of conspiracy
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13
Q

Co-Conspirator Admission: Foundational Requirements

A

FRE 801

  • preponderance of the evidence
  • can consider would be admission to find agency
  • cant rely solely on would be admissiable only judge hears extra evidence

CEC 1223

  • Sufficency Standard
  • cant consider would be admission must only use evidence around the circumstances
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14
Q
A
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15
Q

Prior Inconsistent Statements

A

FRE 801(d)

  • W testifies
  • Statement inconsistent with W’s trial tesitmony
  • made under oath at prior/trial/hearing/deposition (FRE required if used for the truth)
  • W has oportunity to explain/deny
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16
Q

Prior consistent statements

A
  • W testifies
  • Statement consistent with W’s trial tesitmony
  • Rebuts express/implied charge of recent fabrication/improper influence
  • made before alleged motive/influence arose
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17
Q

Statements of Prior Identification

A
  • W testifies
  • Statement is one of identification
  • Made after observing the person

CA ONLY:

  • statement made when crime/occurence fresh in W’s memory
  • W testisfies made the ID and true reflectino of his opinion at time
18
Q

Present recollection refreshed

A

W reads silently- remembers

no hearsay issue

19
Q

Past Recroded Recollection

A
  • W doesnt remember , doc read aloud; hearsay issue
    • doc concerns matter about which W once recalled, but now doesnt
    • made/adopted by W when fresh in memory; and
    • reflects that knowledge correctly
20
Q

Excited Utterance

A

FRE 803(2)

  • Relates to startling event or condition
  • Made under stress of event or condition
  • foundation: may consider utterance itself in finding there was an exciting event

CEC § 1240

  • Narrates, describes, or explains (courts typically treat this the same as (FRE)
  • made under the stress of event or condition
  • foundation: may not consider utterance itself in finding there was an exciting event
21
Q

Present Sense Impression

A

Federal Only: FRE 803(2)

  • describes/explains event of condition perceived (what is happening while you see it)
  • made while percieving or immediately thereafter
22
Q

Contemperaneous Statements

A

California Only: CEC § 1240

  • explains/qualifies condcut of declarant
  • made while doing it or immediately after
23
Q

Then-Existing State of Mind

A

FRE 803(3)

  • Declarants then-existing state of mind, physical or emotino sensation
  • to prove such state, or declarants intent regarding future
  • cannot be regarding past unless will or for medical diagnosis/treamtnet

CEC 1241

  • court can consider trustworthiness of statement in admissibility analysis
  • same regarding wills. No broad exception for medical diagnosis/treatment, but narrower one
24
Q

Statements for Medical Diagnosis/Treatment

A

FRE 803(4)

  • Presnet or past medical history, condition, causes
  • if relevant to medical treatment/diagnosis
  • need not to be a doctor

California Differences:

  • past state at issue; and
  • declarant is unavailable
25
Q

Statements against Interest

A

FRE 804(b)(3)

  • W unavialble
    • special definition: could have gotten testimony by other means
  • against interest (penal, ecnomic, legal)
  • exculpates criminal defendant, circumstances must corroborate trustworthiness

CEC § 1230

  • no unavailability requirement
  • includes social interest
  • no corroboration required
26
Q

Dying Declarations

A

FRE 804(b)(2)

  • W unavailable (heigned def.)
  • Under belief of impending death
  • Concerns circumstances causes of death
  • admissible in all civil cases
    • criminal: only homicide

_CEC § 1242 differences _

  • no unavailability requirement
  • admissible in all criminal and civil cases
27
Q

Former Testimony

A

Federal

  • W unavailability
    • no heightened definition
  • form of proceeding: must be depo or earlier hearing or trial in same or previous action
  • against whom can testimony be used

California Differences

  • depo in same action doesnt count
28
Q

Against whom can former testimony be used

A
  • Party to 1st proceeding who had opportunity who had opportunity and similar motive to cross examine the witness
  • Party who offered the testimony in 1st proceeding, or their successor in interest
  • civil cases: party whose motive to cross examine is similar to party in 1st proceeding who had opportunity to cross examine
29
Q

Business Records

[substantive requirements]

A
  1. Writing prepared by business
  2. made in ordinary course of business
  3. kept in the ordinary course of business
  4. recorded or reported by someone with personal knowlege or duty to record or report
  5. made @ or near the time of the event recorded
  6. circumstantial guarantees of trustworthiness
30
Q

Business Records

[procedural requirements]

A
  1. Testimony of custodial or other qualified witness or
    • someone who keeps track of records
    • someone with knowlege about how records
    • relaxed personal knowlege requirement
  2. Authentication by affidavidt declaration
31
Q

Absense of Records

A

FRE 803(7)/CEC 1272

  • Offered to prove nonoccurrence
    • the regular courses of business to make records of all such acts conditions or events at or near the time of the act
    • such that absence of a record of an act, condition or event is a trustworthy indication that the act or event did not occur or the conditions didn’t exist
32
Q

Official/Public Records

A

FRE 803(8)

(a) it sets out;

  1. the office’s activities
  2. a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
  3. in a civil case or against the government in criminal case (defendant), factual findings from a legally authorized investigation
  4. avoid trial by police report
  5. whether the gov was in an adversarial position

(b) neither the source of info not other circumstances indicate a lack of trustworthiness

criminal cases: can’t use finding aginst criminal defendant

California CEC 1280

doesn’t expressly proibit but may have a controntationc clause issue

**Most courts will not allow something in under the business record rule if it is excluded under official records rule as a matter of policy

33
Q

Learned Tretises

[Federal]

A

FRE 803 (18)

  • statment is in publiction concerning history, medicine or other science
  • established as a reliable authority by expert or by judicial notice
  • admissible: to an extent (1) relied on by an expert, or (2) called to his attendntion on cross-examination
    • may be read to jury but not recieved as an exhibit
34
Q

Learned Trestises

[California: Cross Examination of Experts]

A

CEC 721

  • expert reffered to, or relied upon publication in arriving at or in forming the expert opinion or
  • established as reliable authority by this or another exper or judicial notice
  • publication has been admitted into evidence
35
Q

Learned Treatises

[California: admissibility for truth- regardless of cross examination]

A

CEC § 1341

  • publication used to prove facts of general notoreity not subject to dispute
    • [yes]- admissible
36
Q

Commercial Lists

A

FRE 803(17)/CEC §1340

Admissible if generally used and relied upon by the public as well as by persons in particular occupations

37
Q

Prior Judgments

[federal]

A

allow the use of judgment of conviction to prove facts underlying judgment

  • felondy conviction folowing guilty verdict or plea of guilty ONLY
38
Q

Prior Judgment

[California]

A

allowed:

  • felony conviction following guilty verdict or plea guilty
  • felony conviction following nolo contendre plea
  • civil judgment for indemnity/warranty action, or where 3party liability is at issue

**Most everything allowed in

39
Q

Risidual Exception

A

FRE 807

if heasay doesnt meet any exception if can still get in if:

  • evidence of material fact that is more probative than any other evidence and
  • circumstances give it equivalent guarantees of trustworthiness to other hearsay exceptions advance notice is given
40
Q

Declaration by Witness Prevented from Testifying

A

Parties who prevent adverse witnesses from testifying.

  • federal rule: if a party participated, engaged or acquiesced in wrongdoing that was intended to and did procure the unavailability of the declerant as a witness then you can use their statements against them

Evidence (14 decks)

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