HEARSAY AND CIRCUMSTANCES OF ADMISSIBILITY Flashcards
Hearsay def:
Hearsay is an out of court statement offered for the truth of the matter asserted
Hearsay, admissible or inadmissible?
- Start with the premise that hearsay is
inadmissible unless it meets an exception (there are exceptions and exemptions, as well as statements that are just not hearsay)
Statements NOT Offered for Truth:
- Words of Offer & Acceptance
- Libel or Slander
- Verbal Acts to show motive/notice/
what answer should you pick if you are not sure for hearsay on the MBE?
If you are not sure, pick “inadmissible as hearsay not within any exception”
What are the hearsay exceptions (without the unavailability requirement)?
- Present Sense Impression
- Excited Utterance
- Then Existing Mental, Emotional, Physical State of Mind
- Business record
- Statement for Medical Diagnosis or Treatment
- Recorded Recollection
- Public Record
- Learned Treatise
- Ancient Document
- Catch-All Exception
Present Sense Impression:
- Statement made while observing fact
- Non-emotional observation
Example:
Present Sense Impression
o “I saw the car go through the red light”
o “The man was walking down the street
wearing a black hat”
Excited Utterance:
- Statement made while excited
- Look for “!”
Then Existing Mental, Emotional, Physical State of Mind:
Statements of intent, emotion, or physical state
Example:
o “I couldn’t have killed her, I loved her”
o “I was going to New Yorkͧ
o “I was on my way to L.A.”
o “I’m suffering pain right now”
Business Record:
- Record made in the ordinary course of the business
Example:
Business Record
o President signed an invoice or piece of paper
on ABC Inc. letterhead
o Time sheet
Not Business Record:
o Christmas gift for clients on law firm letterhead
Statement for Medical Diagnosis or
Treatment:
- Statement related to past or present
symptoms - About the treatment or diagnosis
Recorded Recollection:
1) Witness on the stand cannot remember;
2) Document made/adopted by witness;
3) CAN be read into evidence
Public Record:
- Record or statement of a public oce/
agency - Observations by someone with a duty to report
Example:
o Police report
If there is an absence of Business Record or Public Record:
- Look for facts to indicate there was NO
record
Learned Treatise:
- Admissible when an expert witness is relying on the treatise
Ancient Document:
1) Authentication: document must be more than 20 years old
OR
2) FRE hearsay exception: document MUST have been prepared before 1998
Catch-All Exception:
hearsay is:
1) Material;
2) Trustworthy; and
3) In the interest of justice
HEARSAY EXCEPTIONS – Unavailability Requirement
- Dying Declaration
- Statement Against Interest
- Former Testimony
Unavailable def:
Unavailable witness means not currently
at the trial (Unavailability does not necessarily mean the witness is deceased)
Example:
o Missing
o In coma
o Pleaded the Fifth
o Witness Protection Program
Dying Declaration
1) Unavailability;
2) Belief of impending death;
3) About cause of death;
4) Homicide or civil case
Statement Against Interest:
1) Unavailability
2) Makes declarant look liable/guilty
3) Generally made by non-party
Former Testimony:
1) Unavailability
2) Opponent was a party to former case
3) Former case about same subject
4) Made under oath
5) Opportunity to cross-examine
Non-Hearsay Statements (Non-hearsay has nothing to do with the hearsay
exceptions)
- Admissions
- Vicarious Admissions
- Adoptive Admissions
- Prior Consistent Statement
- Prior Sworn Inconsistent Statement
- Prior Identification
Admissions:
- Statement made by a party
- Admissible as NON-HEARSAY
Vicarious Admissions
Statements made by employees about company
Example:
o A worker in the company saying, “We don’t fix the brakes”
o A worker in the company saying, “We are usually drunk when we drive”
Adoptive Admissions:
- Party does not respond when a reasonable person would object
Prior Consistent Statement:
1) Prior statement by declarant;
2) The same as current testimony;
3) To refute charge of fabrication or motive
Prior Inconsistent Statement:
this is an impeachment thing - can be used to impeach the declarant (or a non-testifying declarant) if:
1) Prior statement by declarant;
2) INCONSISTENT with current testimony
OR
1) declarant is not testifying (ie: not brought into ct. as a witness);
2) prior statement made by declarant is admitted into evidence under another hearsay exception;
3) non-testifying declarant’s statement is inconsistent with current witness’ testimony
Can extrinsic evidence be used to show wit’s prior inconsistent statement
yes, if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires
Prior Identification:
- Declarant testifying about an earlier
identification
Right to Confrontation
Right to confront a witness concerning an out-of-court statement depends on whether the statement is TESTIMONIAL (ie: if not testimonial then no right to confront)
Confrontation Clause - Grand Jury
A defendant is never permitted to be present during Grand Jury proceedings,
therefore, any witness testimony made during a Grad Jury proceeding MUST be blocked by the confrontation clause IF the defendant does not get a later opportunity to cross-examine the witness
Confrontation Clause simplified
if the D never got the oppty to cross-examine anyone who is TESTIFYING/providing TESTIMONY against him, then that testimony is blocked by the confrontation clause
- determine if testimony
- determine if D got to cross-examine
Definition – Testimonial
- Statement not made during an emergency
- Not Admissible
Definition – Non-Testimonial
- Statement made to police during an emergency
- are Admissible
Example:
o Statement made to the police during emergency,
“There goes the guy down the street”
Physical and Demonstrative Evidence
- is generally admissible
Example:
o Show scar
o Demonstrate limp
Double Hearsay
- TWO different hearsay statements
- NOT Admissible unless BOTH hearsay statements meet an exception
- anytime the evidence in question consists of an ooc statement by A repeating another ooc statement made by B, both statements need to have hearsay exceptions
