Hearsay Flashcards

Question 1

Q

Hearsay

Statements offered for Non-Truth purposes

(therefore are not hearsay)

Answer

A

Verbal acts
Legally operative words that create rights and obligations
Acceptance to form a contract
Contract offers
Perjury, fraud, defamation
etc
Words offered to show the effect on the person who read/heard the statement
Notice
Motive
Circumstantial evidence of the speaker’s state of mind
Ex. Insanity defense

Question 2

Q

Hearsay Definition

Answer

A

1. An out of court statement of a person
  * Any statement made out of the witness stand at the current trial
  * Includes affidavits, depositions, discovery
  * Can be oral or written
  * Made by a person
  - *Info generated by a machine is not hearsay
1. Offered to prove the truth of the matter asserted in the statement
  * If these are the same, then this is true
  - 1. Identify the proposition that the statement is being offered to prove
  - 1. Look at the statement itself and identify what is the fact or belief asserted in the statement

Question 3

Q

Statement is NOT hearsay if offered for these purposes

Answer

A

Knowledge of the speaker
Notice to a listener
Publication in a defamation case
Effect on the listener
Legally binding statement (such as in a contracts case)
Impeachment is a classic hearsay exception
Prior inconsistent statement is not hearsay when used to impeach witness

Question 4

Q

Hearsay

A statement is:

Answer

A

A declarant making an assertion. A human intentionally communicating something
Either oral or in writing
or by action/conduct,
- such as nodding one’s head or pointing
Not all examples of conduct are statements-
- Do we need to assess the actor’s sincerity in order to rely upon the conduct? If so, it’s hearsay
Photos, videotapes, audiotapes, and machine-generated data constitute statements under some circumstances, but not others
- Fully automatic processes: not a statement
- Information or signal originates from a human: statment
Silence
- Can be communicative

Question 5

Q

Hearsay

Statements offered for Non-Truth purposes

(therefore are not hearsay)

Answer

A

Verbal acts
- Legally operative words that create rights and obligations
  - Acceptance to form a contract
  - Contract offers
  - Perjury, fraud, defamation
  - etc
Words offered to show the effect on the person who read/heard the statement
- Notice
- Motive
Circumstantial evidence of the speaker’s state of mind
- Ex. Insanity defense

Question 6

Q

Hearsay

Statements that meet the definition, but are excluded from the hearsay rule

Answer

A

Statements of trial witnesses
- Prior statement of identification
- Prior inconsistent statement
  - If it was under oath and made during a formal proceeding
  - For impeachment or substantive purposes
- Prior consistent statements
  - Prior statement used to rebut charges of recent fabrication or improper motive or influence
    - Shows that they’ve been saying the same thing the whole time
Statement of an Opposing party
- Any statement by a party, against that party
- A party cannot offer their own statements.
- Policy: A party must bear the consequences of what they’ve said

Question 7

Q

Hearsay

Common Exceptions

Answer

A

Requires unavailability
- Former testimony
- Statement against interest
- Dying declaration
Spontaneous statements
- Excited utterance
- Present sense impression
- Present state of mind
- Declaration of intent
- Present physical impression
- Statement for purposes of medical treatment
Business records
Public records
Past recollections recorded
Learned treatises

Question 8

Q

Hearsay Exceptions

Burden of Proof

Answer

A

The proponent of a hearsay statement bears the burden of proving by a preponderance of the evidence that the statement meets one of the exceptions.

Question 9

Q

Hearsay EXEMPTIONS

801(d)(1)

Exempts some prior statements by witnesses

Answer

A

Statements that meet the following are not hearsay
- (1) Witness testifies
- (2) Witness is subject to cross-examination about the statement
  - (If a witness is claiming a privilege, they are NOT subject to cross-examination)
If the above conditions are met, these types of prior witness statements are admissible
- 1. Statements that are inconsistent w/the witness’s courtroom testimony
    * If it was made under the penalty of perjury;
    * and it occurred during a proceeding
- 1. Statements that are consistent w/the testimony
    * A party must show
    - That the witness’s credibility has been attacked
    - That the prior consistent statement is probative for rehab of credibility
    - Look at timing… statement must be from before what happens to attack credibility
- 1. Pretrial identification of a person
    * No requirements! (of an oath or preceeding, etc)

Question 10

Q

Hearsay

Prior inconsistent statements

CALIFORNIA

Answer

A

CALIFORNIA (different rule!!)

We let prior inconsistent statements in for everything- impeachment or substance. No requirement for oath or proceeding.

Question 11

Q

Hearsay

CALIFORNIA

Excited Utterance & Present Sense Impression

Answer

A

The Excited Utterance exception is the same, but called a “spontaneous statement.”

Present Sense Impression (Contemporaneous Statement) is narrower. CEC 1241:

(a) Is offered to explain, qualify, or make understandable the conduct of the declarant; and
(b) Was made while the declarant was engaged in such conduct.

Question 12

Q

Hearsay Exception

803(1) Present Sense Impressions

Answer

A

Statements that describe or explain an event as it unfolds

Question 13

Q

Hearsay exception

803(2) Excited utterances

Answer

A

Statements that come from excited people responding to a startling event
Comment must be related to the event

Question 14

Q

Hearsay Exception

803(3)

Current state of mind or a mental or physical condition

Answer

A

Includes physical sensations like hunger, thirst, and pain
Includes emotional states like fear, anger, happiness, and calm
Includes cognitive schemes like intent, motive, or plan
A declarant’s expressed intention is admissible to prove the declarant’s subsequent acts (but not to prove another person’s actions)
DOES not include external facts
Examples
- I’m hungry, I’m angry, I’m planning to cut class

Question 15

Q

Hearsay Exception

803(4) Medical Treatment

Examples that may be asserted for the truth of the matter

Answer

A

My stomach hurts and I feel like I am going to throw up
I fell off the roof and I heard my leg crack when I hit the ground
I’ve been sick as a dog for hours and I need help getting to the doctor (said to wife)
Statement can be made by a person other than who is suffering

Question 16

Q

Hearsay Exception

803(4) Medical Treatment

Requirements

Answer

A

1. The statement must be made for a medical diagnosis or treatment
1. The statement must be reasonably pertinent to diagnosis or treatment
1. Must be within these 3 categories
  * 1. Accounts of medical history
  * 2. Descriptions of past or present symptoms or sensations
  * 3. Reports about the “inception” of the condition or its “general cause”
Statements related to domestic or sexual abuse
- Identifying the abuser is usually found to be pertinent (but is controversial)
- CALIFORNIA ONLY: Has to be specifically about child abuse
  - Declarant <12yrs
  - Statement must describe child abuse or neglect
Excluded: statements that blame a particular person or organization for causing the condition

Question 17

Q

Hearsay Exception

803(5) Recorded Recollection

Answer

A

When a witness lacks current memory of an event, this rule allows introduction of a recorded recollection
- Records include “a memorandum, report, or data compilation”.
- Does not require a “writing” but it must be memorialized in some way
Requires that the declarant actually be available, because they must testify as a witness
The recorded recollection must be read by the witness into the record.
- It can only be introduced as an exhibit if the adverse party chooses for it to be
Elements
- There is a record
- Witness made or adopted the record
- Witness once had personal knowledge
- Witness made or adopted the record when that knowledge was fresh
- Witness testifies that the info was accurate
- Witness has forgotten
CALIFORNIA: same

Question 18

Q

805 Hearsay within Hearsay

Answer

A

Each embedded statement must fit within a hearsay exception
CALIFORNIA: same

Question 19

Q

Hearsay exception

803(6) Business Records

Requirements

Answer

A

1. A business and some records
  * Nonprofits and organizations count
  * Records can include opinions, impressions
1. A qualified witness or certification (document) to lay the foundation
1. The foundation
  * Record was made by a person with knowledge
  * At or near the time of the event
  * In the course of a regularly conducted business activity
  * It was the business’s regular practice to make the record
However, it can still be challenged as untrustworthy if there is an incentive to falsify
- Especially if it was prepared for litigation

Question 20

Q

Hearsay exception

803(6) Business Records

more considerations

Answer

A

Watch out for double hearsay.
- Statements by customers and third parties are only admissible if they fall wi/in another hearsay exception.
Can’t bring in outside information. Must be w/in the organization.
Content consists of info observed by employees of the business
CALIFORNIA: substantially similar
- Proponent has burden of trustworthiness
- Tighter control on opinions- readily observable ones are ok

Question 21

Q

Hearsay Exception

803(7) & (10) Absence of Records

Answer

A

Admit the absence of a business or public record to show that the event not recorded did not happen.

Must lay a foundation and a witness must testify

Question 22

Q

Hearsay exception

803(16) Ancient Documents

Answer

A

Documents that were prepared before 1998 and have been properly authenticated
Separate exceptions must support double hearsay
CALIFORNIA: documents over 30yrs old.
- He says he’ll test this.

Question 23

Q

Hearsay Exception

803(17) Market Reports and Similar Commercial publications

Answer

A

Admits directories, lists, and other published compilations if they are generally relied on by the general public or by people in a specific occupation

Phone books, etc

CALIFORNIA: Same

Question 24

Q

Hearsay Exception

803(18) Learned treatise

Answer

A

1. May come from any field
1. Offer substantive evidence
1. As long as accepted as reliable authority
1. Two peculiarities:
  * –Must accompany expert witness
  * –Expert reads excerpts into record

CALIFORNIA

Much more limited. Only facts of “general notoriety”
Such as dictionary definitions, interest tables
NOT medical treatises

Question 25

Q

There are 5 circumstances under which a declarant is considered “unavailable” to testify in court

Answer

A

1. Privilege
  * Must call the declarant to the stand and question her
  * UNLESS it’s the privilege against self incrimination. Judges usually accept the unavailability of these declarants w/out calling them to the stand
  * Example: spousal privilege
1. Refusal to testify
  * Must call the declarant to the stand
1. Lack of memory
  * Must call the declarant to the stand
1. Death, physical illness, mental illness
  * Introduce death certificate
  * Illness: must introduce documentary evidence (or live testimony)
  - If illness is temporary, the trial can be continued if a delay would not prejudice the parties
1. Absence
  * Must serve a subpoena
  * Must use “reasonable means” to persuade declarant to attend trial

Question 26

Q

Hearsay Exception

Rule 804(b)(1): Admissibility of former testimony

(witness must be unavailable)

Answer

A

Prior testimony must have been given at a trial, hearing, or deposition
- Need not be part of the same lawsuit
Opposing party must have had an opportunity to question the declarant in the prior proceeding
- If questioning did not actually happen, then it is less likely that a court will admit the testimony
- GRAND JURY does NOT count (because it’s one-sided)
Opponent had a similar motive to develop testimony
Criminal cases
- previous opposing party must be the same as in current case
Civil cases
- former opposing party must be a “predecessor in interest”
  - Includes any party that had a similar motive and interest in developing the testimony in the prior proceeding as the current opposing party has

Question 27

Q

Hearsay exception

804(b)(2): Dying declarations

(witness must be unavailable)

Answer

A

Applies only in homicide prosecutions and civil proceedings
- Does NOT apply in most criminal prosecutions
Declarant subjectively believed death was imminent when he made the statement
The content of the statement must concern the cause or circumstances of the declarant’s death
Judge decides admission by a preponderance of the evidence as to whether the state of mind existed
CALIFORNIA
- admissible in all actions criminal and civil

Question 28

Q

Hearsay Exception

804(b)(3) Statement against declarant’s interest

(witness must be unavailable)

Answer

A

1. Only if the declarant is unavailable at trial
1. Must be against the declarant’s interest when made
1. Against declarant’s interest
  * Statement is contrary to proprietary, pecuniary, or penal interest
  * Renders invalid their claim against another person
  * Exposes the declarant to civil or criminal liability
1. Objective standard- reasonable person
1. In criminal trials, requires corroboration to indicate the
  * (1) declarant’s and the
  * (2) statement’s trustworthiness
CALIFORNIA
- Also includes against SOCIAL interest.
  - Language of CEC 1230 “risk of making him an object of hatred, ridicule, or social disgrace.”

Question 29

Q

Hearsay exception

804(b)(6) Admits hearsay against party that intentionally and wrongfully procured witness’s unavailability

Answer

A

The declarant must be unavailable
The opposing party must have “wrongfully caused” the declarant’s unavailability
The opposing party must have intended to make the declarant unavailable

Question 30

Q

Hearsay exception

801(d)(2) “Party-Opponent” Every statement by an opposing party is exempted from hearsay rule

Answer

A

Both civil and criminal
Most commonly used exception to the hearsay rule
Any statement by a party is exempt from the hearsay rule when offered against that party
1. The statement is offered against an opposing party AND
Was made by the party in an individual or representative capacity
Is a statement that the party adopted or believed to be true
- (for example, by signing a document prepared by others)
- (silence can constitute an adoption of someone else’s statement)
Was made by an authorized person
Was made by the party’s agents or employees
Does not require availability to testify
A party may not introduce their own out-of-court statements

Question 31

Q

Hearsay Exception

FRE 801(d)(2) Statements by opposing parties

Continued

Answer

A

“Same side” of litigation issue
- Some courts allow a defendant to introduce statements about other defendants (or plaintiff against other plaintiffs)
- Stephen Smith’s position is that if your interests are adverse, then it should be admissible. And he is writing the exam. :)
Spillover effects in civil cases
- Authorizes introduction of an out-of-court statement against the party who made the statement, but not against other parties. The judge will protect the other parties by redacting or issuing a limiting statement
In a criminal case
- A limiting instruction is not good enough
A party admission has to be by the party. You don’t get to make admissions for someone else (but see co-conspirators)
CALIFORNIA is the same

Question 32

Q

Hearsay exception

FRE 801(d)(2)(E) Co-Conspirators

Answer

A

Holds co-conspirators accountable for statements made by any member of the conspiracy.
Cannot rely on the statement itself to prove the existence of the conspiracy. There must also be other evidence of the conspiracy.
Requirements
- 1. The statement must be made by a co-conspirator
- 1. … in furtherance of the conspiracy
- 1. … during the course of the conspiracy (not before or after)
An arrest almost always ends a conspiracy. Therefore post-arrest statements are not admissible
CALIFORNIA is the same

Question 33

Q

Hearsay Exception

807 Residual exception

(Admits some hearsay falling outside enumerated exceptions)

Answer

A

1. Judge must determine that the statement has sufficient guarantees of trustworthiness
1. Must be the most effective way to prove a fact in consequence (material fact), despite reasonable efforts to find otherwise admissible evidence
1. Must give notice of intent to use the statement at trial
Covers “near misses” for other exceptions
CALIFORNIA does not have this official exception, but under common law, the judge can make one.

Question 34

Q

Impeaching Hearsay Declarants

806 Parties can impeach declarants w/Article VI Tools

Answer

A

Declarant does not have to appear as a witness
806
- When a hearsay statement has been admitted in evidence
  - The declarant’s credibility may be attacked
  - And then supported
- By any evidence that would be admissible for those purposes if the declarant had testified as a witness
  - Evidence of bias, prejudice, or interest in the case
  - Statements made by the declarant that are inconsistent with the hearsay statements
  - Evidence that the declarant lacks personal knowledge or the capacity to testify truthfully
  - Reputation or opinion evidence, given by a character witness, that the declarant is untruthful
  - Any criminal convictions allowed by 609
Once a declarant’s credibility has been attacked, the other party may rehabilitate the declarant in any way that is allowed with witnesses
Can present a declarant’s inconsistent statements w/out giving the declarant an opportunity to explain or deny those inconsistencies
Either party may impeach

Question 35

Q

3 rules for 6th amendment obligations

Answer

A

The prosecutor may introduce nontestimonial hearsay as long as those statements comply with the hearsay rules.
The prosecutor may introduce testimonial hearsay if the statements comply with the hearsay rules, and the declarant is available as a witness.
- Under those circumstances, the defendant has a chance to cross-examine the declarant about the prior testimonial statement.
If the hearsay statement is testimonial and the declarant is unavailable at trial, the prosecutor may offer the statement only if the defendant had a prior opportunity to cross-examine the declarant.

Question 36

Q

Confrontation clause

principles

Answer

A

1. The evidence must satisfy a hearsay exception
1. Applies only to evidence offered against the accused (not the prosecution)
1. If a statement is non-testimonial, there is no problem, it’s admissible
1. If a statement IS testimonial, the D must have a chance to cross-examine the declarant
1. If the D can’t examine the declarant at trial (is unavailable), then the prosecutor must establish
  * (a) unavailability &
  * (b) prior opportunity to examine

Question 37

Q

Confrontation Clause

Testimonial vs. Nontestimonial

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Hearsay Flashcards

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