Hearsay Flashcards
Opposing party statements
any statement made by a party and offered against that party is not hearsay. Must make a preliminary determination of the relationship between the parties in vicarious statments.
agents and employees
a statement by an agent or employee is admissible against the principal if the statement
1) concerned any matter within the scope of her agency or employment and 2) was made during the existence of the agency or employment relationship
partners
after a partnership is shown to exist, a statement of one partner relating to matters within the scope of the partnership business is binding upon her co-partners.
Co-Conspirators
statements of one conspirator made to a third party in furtherance of a conspiracy or commit a crime or civil wrong at a time when the declerant was participating in the conspiracy, are admissible against co-conspirators.
unavailability
a declerant is unavailable if he
- is exempt from testifying because of a privilege
- refuses to testify
- testifies that he does not remember
- dead or physical or mental illness
- beyond the court’s reach.
unavailable required
- former testimony
- dying dec
- statement against interest
- statement of personal or family history
- statement offered against party procuring decelerator’s unavailability
Former testimony
elements
- testimony was given under oath at a trial, hearing, or deposition in the same case or in a different case
- the party against whom the testimony is now being offered (or in a civil case) the party’s predessesor in interest had an opportunity and similar motive to develop the declerants testimony at the prior proceeding (party in former action)
grand jury testimony
not admissible as former testimony but is admissible as evidence for impeachment and substantive under prior inconsistent statement.
statements against interest
statement by a person, who is now unavailable may be admissible if it was against that person’s pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true. need not be a party.
dying declarations
In a homicide prosecution or in any civil action, a statement made by a now-unavailable declarant is admissible if:
- the decelerate believed his death was imminent and
- the statement concerned the cause r circumstances of what he believed to be his impending death. based on perceptions and firsthand knowledge
statement of personal or family history
statement of person or family history made by a family member or one intimately associated by the family
Staetment offered against party procuring defendant’s unavailability
statement of unavailable declerant offered against party who intentionally procured declarant’s unavailability.
Hearsay exceptions availability immaterial
excited utterance present state impression present state of mind present physical condition statement for medical diagnosis or treatment recorded recollection business records of absence of them public records or reports records of vital stats judgment of prior convictions ancient documents documents affecting property interest learned treatis reputation family records market records
excited utterance
an out of court statement relating to a startling event, made while under the stress of the excitement of the event.
present state impression
a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition.
present state of mind
a statement of the declarant’s then existing state of mind (e.g., motive, intent, or plan) or emotional, sensory, or physical condition is admissible. it is usually offered to establish a person’s intent or as circumstantial evidence that the intent was carried out. statement of memory or belief is not admissible to prove the truth of the fact remembered or believed.
present physical condition
a spontaneous decleration of a declerants own present bodily condition is admissible as an exception to he hearsay rule regardless of whether it was made for the purpose of diagnosis or treatment
statements made for diagnosis or treatment - includes past conditions
a statement that described a person’s medical history, past, or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for and was reasonably pertinent to medical diagnosis or treatment.
recorded recollection
record by witness who cannot now remember the facts, made while the facts were fresh in her mind.
business records
record made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to transmit. Lack of such record may be used to show nonoccurence of the event.
Public Records and Reports or Absence thereof; records of vital stats
Records and reports of public agencies regarding their activities, and records of births, deaths, marriages, etc. Absence of public record is admissible to show nonexistence of matter.
Judgments
A copy of a judgment of a prior felony conviction is admissible to prove any fact essential to the judgment. In a criminal case, it may be used for this purpose only against the accused.
Ancient documents
statements authenticated documents prepared before January 1, 1998
Documents affecting property interests
statements in a document affecting an interest in property such as a deed or a will
Learned treatise
Statements from authoritative works admitted if called to attention of expert witness and established as reliable authority.
reputation
reputation evidence concerning a person’s character, a person’s personal or family history, land boundaries, or a community’s general history
Family records
statements of fact found in family Bibles, jewelry engravings, tombstones, etc.
Market Records
market reports and public compilations generally relied on by the public or persons of a particular occupation
When a statement is not hearsay
verbal acts and legally operative facts words of k or defamation
statements offered to show affect on the listener or reader (notice or knowledge)
circumstantial evidence or declerant’s state of mind (evidence of insanity or knowledge)
Confrontation clause
a hearsay statement will not be admitted even if it falls within a hearsay exception if 1. is offered against the accused in criminal case; 2. the declerant is unavailable, 3. the statement was tetimonial in nature, 4. the accused had no opportunity to cross-examine the the declerant’s testimonial statement prior to trial. right is forfeited if he commits a wrongful act to keep witness from testifying
what is testimonial
in response to police interrogation to establish or prove events for later prosecution, affidavits, certificates, or other written reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct.
