Hearsay Flashcards
What is a prior identification?
A prior statement by a witness, if that witness is testifying and available for cross-examination, is not hearsay and is admissible, if it is one of identification of a person made after perceiving the person.
A prior identification by a witness is specifically excluded from the definition of hearsay.
What is recorded recollection?
A past recollection recorded would indicate the introduction of a writing made at or near the time of the event. There is no mention of any writing in the fact pattern, just the photographs.
When to use business records exception or routine practices of a company?
Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event is admissible in evidence as proof of that act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of such business to make it at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter. Fed. R. Evid. 803(6).
Use business records when establishing an exception to hearsay regarding the truth of the matter asserted. Use business habit for notice or anything else.
Analysis
The question does not provide nearly enough information to conclude that the journal was a business record. The business records exception to the hearsay rule requires that: (i) the record was made in the regular course of business; (ii) making such records was a normal practice for the entity; and (iii) it was made at or near the time of the event being recorded by someone with knowledge (though this knowledge need not be gained from being involved in the incident directly). There is no evidence in this question that the journal was made at or near the time by a person with knowledge, that it was kept in the course of a regularly conducted business activity, or that it was the regular practice of that business to make the journal. In addition, there has been no testimony by the custodian or another qualified witness as to the journal.
The journal, although containing statements made out-of-court and offered for the truth of the matter asserted, is nevertheless admissible as an adopted admission of a party-opponent, as explained above.
Can absence of a business record serve as an exception to the hearsay rule and will this exception apply to an employees notes?
Yes. The notes do not qualify as business records because they were prepared on the witness’s own initiative to help her remember what had happened at the meetings. The business records exception to the hearsay rule requires that it be a regular practice of a business (not simply an individual employee) to make such records and that the records are kept in the course of regularly conducted business activity.
D is incorrect. As explained above, the notes do not qualify as a past recollection recorded because there has been no foundation laid to establish that: (i) the witness’s memory is in question; or (ii) they are an accurate reflection of her knowledge when it was fresh in her mind. The notes are also inadmissible because under the Rule, a recorded recollection may be read into evidence but cannot be an exhibit unless it is being offered by an adverse party.
What is recorded recollection?
Witnesses are permitted to refresh their memories by looking at almost anything—either before or while testifying. However, if a witness’s memory cannot be revived, a party may wish to introduce a memorandum that the witness made or adopted at or near the time of the event. Use of the writing to prove the facts contained therein raises a hearsay problem; but if a proper foundation can be laid, the contents of the memorandum may be introduced into evidence under the past recollection recorded exception to the hearsay rule. Fed. R. Evid. 803(5). Normally, the “record” under the past recollected recorded exception will be a writing. However, this is not a formal requirement. If a witness makes a tape recording of the facts known to him, the tape recording is probably admissible under the exception.
Records, reports, statements, or data compilations, in any form, of a public office or agency, are admissible to the extent that they set forth: (i) the activities of the office or agency; (ii) matters observed pursuant to a duty imposed by law (excluding police observations in criminal cases); or (iii) in civil actions and proceedings and against the government in criminal cases, factual findings (including opinions and conclusions) resulting from an investigation made pursuant to authority granted by law. Fed. R. Evid. 803(8).
A is correct. The witness has testified that he now has insufficient recollection to enable him to testify fully and accurately, but that he once had knowledge of the license plate number. The witness has also testified that the tape recording is a record, which he adopted when the matter was fresh in his memory, in which the witness’s knowledge of the license plate number is correctly contained. Playing the tape recording into evidence is therefore admissible under the recorded recollection exception to the hearsay rule.
What is a public record exception?
Under FRE 803(8), law enforcement records (including investigative reports) are generally inadmissible against a criminal defendant. As explained above, the recording should be played because it satisfies the recorded recollection exception.
Analysis
The report is admissible as a public record under Rule 803(8) of the Federal Rules of Evidence (FRE). The facts of the problem indicate that the fire marshal had a legal duty to report. The fact that the fire marshal issued the citation indicates that he observed gasoline being stored in the banquet hall.
This report is admissible as a public record under Rule 803(8) of the FRE.
The fact that this is a civil case does not make the report inadmissible. Public records are admissible in both civil and criminal cases. In fact, they are more broadly admissible in civil cases than in criminal cases. The report is admissible as a public record under Rule 803(8) of the FRE.
The WN does not have to be the unavailable.
What is hearsay?
The Federal Rules of Evidence (FRE) define hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered into evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c).
What are admissions by a party opponent?
Under FRE 801(d)(2), a statement by an opposing party (traditionally known as an “admission by a party-opponent”) is not hearsay. Under this Rule, when the opposing party’s statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible. A party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive admission. Fed. R. Evid. 801(d)(2)(B).
A confession of a criminal defendant is indeed a statement of a party-opponent, and statements of party-opponents are admissible under Rule 801(d)(2)(A) of the FRE. But the rules of evidence cannot alter the constitutional requirement that Miranda warnings be given before a confession made by a person under arrest and subjected to interrogation is admissible.
Under the non-hearsay exemption for admissions by a party-opponent, the party at issue need not be the one who actually made the statement for it to qualify; statements made by others, but that the party adopts as its own, are sufficient. To qualify, the statement must be offered against the party, and it must be one the party made in an individual or representative capacity or adopted as true. Here, the statement in the journal was adopted by a party-opponent - the manufacturers of insulation. (Note that the admission of a party-opponent non-hearsay category does not require that the statement was against the party-opponent’s interest when made, unlike the statement against interest exception.) The adoptive admission here can, therefore, be admitted as substantive evidence.
What is authenticity in evidence?
Before a writing or any secondary evidence of its content may be received into evidence, the writing must be authenticated by proof showing that the writing is what the proponent claims it is. Fed. R. Evid. 901-903. Contrary to the general rule, which requires testimonial sponsorship, there are certain writings that are said to “prove themselves” or to be “self-identifying” on their face. Under FRE 902, extrinsic evidence of authenticity is not required for official publications, among other documents.
Under FRE 902, certain documents are self-authenticating, including official publications such as the journal in this case. Furthermore, the authentication rule does not set a high bar for admission of evidence. It asks merely for proof that the thing is what it purports to be. An annual journal that has been named and adopted by the parties meets that requirement without additional extrinsic evidence.
Is silence an admission in civil and criminal cases?
Under the Federal Rule of Evidence (FRE) 801(d)(2)(B), a statement of a third party may be adopted by a party and may be admissible against them as substantive evidence. In special circumstances silence may be considered an adoption, sometimes called an implied admission or adoption by silence. The elements of an adoption by silence are: (i) the defendant heard the incriminating statement; (ii) the defendant had an opportunity to reply and remained silent; and (iii) the incriminating statement was such that the natural reaction of an innocent person would be to deny it.
However, there are several problems that arise when dealing with an adoption by silence in a criminal case. Many courts are reluctant to find an adoption by silence in a post-arrest situation. After an arrest, the inference becomes a fairly weak one because silence may be motivated by other factors such as on the advice of counsel or the realization that anything you say may be used against you. The idea of finding implied admissions by silence in a post-arrest situation also severely encroaches on the privilege against self-incrimination. In most situations, silence after an arrest is too ambiguous to have any probative value, and most courts will not allow it.
When can a recorded recollection be introduced in trial and offered as an exhibit?
In the case that a WN memory cannot be revived the party can admit into court. However, only the opposing party may use it as evidence.
Whether A statement that states the cause of an injury is a hearsay exception?
Yes. As a statement for medical diagnosis.
Whether plea negotiations are admissible?
Evidence of statements made during plea negotiations is not admissible, so as to promote settlement of disputes. However, in this case, formal plea negotiations had not begun. Therefore, the defendant’s statements are not protected by this rule.
What are Inconsistent statements and party admissions?
The Federal Rules of Evidence (FRE) define hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered into evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c).
Under FRE 801(d)(2), a statement by an opposing party (traditionally known as an “admission by a party-opponent”) is not hearsay. Under this Rule, when the opposing party’s statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible.
There are two types of prior inconsistent statements under the FRE. First, a witness’s prior inconsistent statement is not hearsay if it was made under penalty of perjury at a prior trial or proceeding, or in a deposition. Fed. R. Evid. 801(d)(1)(A). Such prior statements, if inconsistent with in-court testimony, would be admissible not only to impeach his credibility but also as substantive proof. Second, for the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. An inconsistent statement may be proved by either cross-examination or extrinsic evidence. To prove a statement by extrinsic evidence, certain requirements must first be met: (i) a proper foundation must be laid; and (ii) the statement must be relevant to some issue in the case (i.e., cannot be a collateral matter).
B is correct. Admissions by a party-opponent are defined as non-hearsay under FRE 801, and are admissible as substantive evidence. To qualify, the statement must be offered against the party, and it must be one the party made in an individual or representative capacity or adopted as true. Here, the defendant admitted to the police officer he was speeding. Therefore, all of the elements of an admission by a party-opponent are met, and the testimony is admissible.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. A prior inconsistent statement may be admissible substantively as non-hearsay if: (i) it was made under oath; and (ii) the defendant is currently subject to cross-examination. Here, the prior statement to the police officer was not made under oath and therefore does not meet this exemption. Prior inconsistent statements may also be admissible for impeachment purposes if: (i) the witness was given a chance to explain or deny the statement; and (ii) the adverse party is given the opportunity to cross-examine. This statement is therefore not a prior inconsistent statement for impeachment purposes because the defendant was never confronted with the statement or given a chance to explain or deny it. See Fed. R. Evid. 613; Fed R. Evid. 801(d).
C is incorrect. The requirements of an admission by a party-opponent are satisfied here, as explained above. No further foundational requirements are needed. The foundation might have been insufficient if the statement were being offered for another purpose. However, as stated above, the statement meets all the requirements for an admission.
