Hearsay Flashcards
Hearsay Exception
Recorded Recollection
1) Witness has PERSONAL KNOWLEDGE
2) MADE BY WITNESS at witness discretion
3) doc was adopted at the ??? was fresh
4) accurate
5) Witness has INSUFFICIENT recollection
** You can give anything
Definition of Statement
Verbal or written expression of a PERSON or CONDUCT by a PERSON intended to communicate (assertive conduct)
Not Hearsay Statement
1) Independent Legal Significance
2) effect on listener
3) Speaker knowledge of fact stated
4) State of mind
Not Hearsay Statement
1) Independent legal significance
- We just case that the words were stated
- There is no meaning behind the words.
“I accept” <— We only care you said it.
Not Hearsay Statement
2) Effect on listener
- Prove Notice
- The mere conveyance of the words an cause emotional distress
- KNowledge, notice, good faith, reason for action or inaction whether effect the statement has on a person who heard or read it.
Not Hearsay Statement
3) Speaker knowledge of fact stated
“Verbal acts or Legal opp facts”
Were the words spoken or written have legal significance in the case, simply by being written or spoken.
Not Hearsay Statement
4) State of mind
Evidence of insanity or knowledge.
- Intent or circumstantial evidence if was carried out
- State of mind, emotion, sensation?, or physical condition is admissible
Exemption
Admission of Party Opponent
- Not hearsay
- statement by party, or by someone whose statement is attributable to party, offered by a party opponent.
- a statement made or act that amount to prior acknowledgment by one of the parties of one of the relevant facts.
- Need not be against declarent interest when statement was made.
Exemption
NEVADA v. FED
Prior Inconsistent Statement
FED: Statements Under Oath
Nevada: Any Statement
Exception
Unavailability Required
1) Former Testimony
2) Dying Declaration
3) Statement against Interest
4) Statement of Person Family HIstory
5) Statement offered against Party procuring unavailability
Exemption
Transcript of Testimony
NEVADA ONLY
Given under oath, grand Jury
** Not Hearsay
Exception: Available
2) Excited Utterance
Is a statement made under stress of a RECENT startling event, about the event, and made without time to reflect.
1) About a startling event/condition
2) wehere declarent was under stress of excitement
3) Concerns the facts that caused or were related to the event/ condition
Exception
Availability
1) State of minds
2) excited utterance
3) Present sense impression
4) physical condition (Med Diagnosis or treatment)
5) Recorded Recollection
6) Business records
7) Public Record or Absence thereof
8) Record of vital statistics
9) Ancient Documents
10) Doc effecting property interest
11) Learned Treaties
12) Family Records
13) Market Report
14) Judgment of Prior conviction
15) reputation
Exception: Available
3) Present sense impression
Is a statement made about what a declarent PERCEIVED at the TIME of an EVENT or immediately THEREAFTER.
Exception: Available
6) Business Record
1) a record of events, condition, opinion or diagnosis
2) kept in course of regulare business conduct
3) made near time of matter described
4) by person with knowledge of facts in that record
5) regular practice of business record.
Define Hearsay
Out of court statement offered to prove the truth of the matter asserted in that statement.
Non-Hearsay
Exemptions
1) Nonassertive Conduct
2) Statement no offered for truth
3) Prior inconsistent statements
4) Prior consistent statement
5) Prior statement of Identification
6) Admission By Party Opponent.
NEVADA: 7) Transcripts of testimony given under oath at trial, hearing or grand jury proceeding.
Hearsay: Unavailable
Fed Rules: Former Testimony
Criminal
Testimony given by a person in earlier proceeding or deposition is admissible if party against whom the testimony is now offered had:
1) during an EARLIER proceeding
2) opportunity to EXAMINE that person
3) the MOTIVE to the conduct that exam was SIMILAR to the motive the party has NOW.
Hearsay: Unavailable
Fed Rules: Former Testimony
Civill
Testimony given by a person in earlier proceeding or deposition is admissible if:
1) Party against whom the testimony is being offered was NOT PRESENT in earlier proceeding,
2) close PRIVITY type RELATIONSHIP with someone who was a party to that EARLIER proceeding, and
c) a OPPORTUNITY, and SIMILAR motive to examine the witness in that earlier proceeding.
Hearsay: Unavailable
Nevada: Former Testimony
Trial
Testimony from a trial is admissible if:
1) is offered at ANOTHER trial in the SAME CASE, or
3) is offered at the trial of DIFFERENT case but against someone who either was a PARTY PRIOR CASE or in privity to and ISSUE are SUBSTANTIALLY similar.
Hearsay: Unavailable
Nevada: Former Testimony
Depo
Testimony from a deposition is admissible if:
1) Depo offered in same civil action and unavailable or 100 miles from court
2) depo in a different action in which deposition against someone who either was a PARTY PRIOR DEPO or in privity to and ISSUE are SUBSTANTIALLY similar.
Exemption: Non-Hearsay
STATEMENT OF IDENTIFICATION
“That’s the guy who robbed me!”
Business Record Exception
1) a RECORD of EVENT condition, opinion, or diagnosis
2) Kept in COURSE of BUSINESS
3) Made near TIME of matter described
4) By person with KNOWLEDGE of facts in the record
5) REGULAR practice of business to make record.
Unavailable
Statement against Interest
(NV v. Fed)
If at the time the statement was made it was against the fin interest, or would have subjected declarent to criminal liability.
If showing confession must also show corroborating evidence to admit statement.
Nevada: Also statement that tend to make declarent an object of hatred, ridicule, or social disappointed.
Exemption (Not hearsay)
Prior Consistent Statement
Are admissible to rebut a change that a witness is lying or exaggerating because of some motive.
only when made before the alleged motive to lie or exaggerated came into play.
Unavailability
Dying Declaration
Statement by a believing he is about to die and describes causing or circumstances leading to impeding death is admissible in CIVIL and HOMICIDE case.
Nevada: Any Subject
Admission Party Opponent
Vicarious Party Admission
1) Authorized spokesperson of party, or
2) Employee of party concerning matter within scope of employment and made during employment relationship
Hearsay
Declarent is unavailable if:
1) Court exempts Declarent from testifying due to privilege
2) Declarent is dead or sick
3) Proponent of St. cannot procure declarents attendance by process or other reasonable means
4) declarent refuses to testify dispute court order
5) Declarent memory fails.
