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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

FRE 801(a)

What is a statement?

A

1) Oral assertion
2) Written assertion or
3) Non-verbal conduct
- if it was intended as an assertion

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2
Q

FRE 801(b)

What is a declarant?

A

The person who made the out-of-court statement

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3
Q

FRE 801(c)

What is hearsay?

A

1) Out-of-court statement

2) Offered to prove the truth of the matter asserted

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4
Q

FRE 801(d)(1)(A) - 4 elements

A declarant-witness’s prior statement

  • Prior Inconsistent statement
A
  1. Must be an out-of-court statement
  2. Made by a person testifying at trial subject to cross-examination
  3. Inconsistent with declarant’s testimony
  4. Given under penalty of perjury.
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5
Q

FRE 801(d)(1)(B) - 5 elements

Declarant-witness’s prior statement - consistent statement

A
  1. Must be an out-of-court statement
  2. Made by a person testifying at trial subject to cross-examination
  3. Prior statement consistent with declarant’s testimony at trial
  4. Declarant is being used to rebut an accusation of improper or fraudulent motive
  5. Prior statement must have been made BEFORE the improper/fraudulent motive arose
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6
Q

FRE 801(d)(1)(C) - 3 elements

Declarant-witness’s prior statement - Prior ID of a Person

A
  1. Must be an out-of-court statement
  2. Made by a person testifying at trial subject to cross-examination
  3. Prior statement was and ID of a person
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7
Q

What is the common requirement for all subsections under FRE 801(d)(2)?

A

the out-of-court statement is offered against the opposing party

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8
Q

FRE 801(d)(2)(A) - 3 elements

Opposing Party’s Statement

A
  1. Out-of-court statement
  2. made by an opposing party
  3. Where statement was made by opposing party or their representative

o (so anything the party says, you can use against them)

o The trustworthiness of the statement does not matter

o Doesn’t go to admissibility, it goes to the weight

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9
Q

FRE 801(d)(2)(B) - 4 elements

Opposing Party’s Statement

A
  1. Out of court statement
  2. made by an opposing party
  3. but against the opposing party
  4. party manifested that it adopted/believed to be true

o verbal/non- verbal conduct sufficient to convey the belief

o adoption by silence: accusation statement is made that was heard and understood by the person; they were given time to respond but did not and there are no other factors to explain their silence

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10
Q

FRE 801(d)(2)(C)

Opposing Party’s Statement -

(the statement is used to establish the declarant’s authority, but it needs to be corroboration)

A
  1. Out of court statement
  2. made by an opposing party
  3. proposed against that party
  4. where the statement was made by authorized rep in their capacity to speak for the proponent (on the subject)
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11
Q

FRE 801(d)(2)(D) - 3 elements

Opposing Party’s Statement

(statement used to establish the existence or scope of the relationship but needs to be corroborated)

A
  1. Out of court statement
  2. made by an opposing party
  3. statement made by employee or agent

o within the scope of their employment

o during the duration of their employment

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12
Q

FRE 801(d)(2)(E) - 5 elements

Opposing Party’s Statement -

(statement used to establish existing/participation in the conspiracy, but need to be corroborated)

A
  1. Out of court statement
  2. made by an opposing party
  3. a statement made by a co-conspirator
  4. in furtherance of the conspiracy
  5. during the conspiracy
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13
Q

FRE 803

the exceptions are not excluded by the rule against hearsay, regardless of what?

A

Of whether the declarant is available as a witness

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14
Q

FRE 803(1) - 4 elements

Present sense-impression?

A
  1. Out of court statement
  2. Describing an event or condition
  3. During or just after the event/condition
  4. Where there is no time to modify the response
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15
Q

what are the safeguards for present sense impression?

A

1) Safe from the defect of memory

2) No time for calculation, fabrication

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16
Q

803(2) - 4 elements

Excited utterance?

A
  1. Out of court statement
  2. Relates to startling
  3. While declarant was under the stress of that event/condition
  4. Cause of stress must be that event/condition
17
Q

What are the safeguards for excited utterance?

A

Startling event still capacity for reflection, fabrication

18
Q

What qualifies for the 803(3) exception?

A

A statement of the OOCD’s own then-existing state of mind (including motive, intent, plan) or emotional/sensory/physical condition (including mental feeling, pain, bodily health) is admissible

19
Q

What does NOT qualify for the 803(3) exception?

A

A statement of memory or belief offered to prove the fact remembered or belief is not admissible

  • UNLESS it relates to the validity or terms of the OOCD’s last will and testament
20
Q

803(3) - 3 elements

Relating to their then-existing mental, emotional, or physical condition

A
  1. Can’t be a memory, has to be a current description
  2. Unless regarding an estate or will
  3. Has to present tense – past tense
21
Q

Hillman Doctrine

A

the intent/state of mind of one party can be used to infer their conduct, and if the intended conduct relates to another party, it may be used as circumstantial evidence to infer that party’s intent and conduct.

22
Q

803 (5) - 5 elements

Recorded Recollection

A
  1. Statement by the witness
  2. Who once had knowledge of the matter
  3. witness can no longer recall well enough to testify
  4. Adopted record on the matter when fresh on the matter
  5. Recorded accurately reflects witness’s knowledge
23
Q

803(6)

records of a regularly conducted activity

A
  1. Record made at or near the time of the event
  2. Reported by a person with knowledge of event and business duty to report
  3. Regularly maintained (person w/ knowledge can’t be an outsider)
  4. Created in the regular course of business
  5. Validated by custodian or certificate
  6. Not shown to be untrustworthy

Evidence (3 decks)

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