hearsay bar prep Flashcards
What is hearsay?
Statement or communication made by a human declarant out of court used to prove the truth of the matter asserted (TMA): intended to be a communication
What is non hearsay?
what is it used to show?
Mnemonic: C (see) ELVIS
Statement or communication Not used to prove the Truth of the matter asserted (TMA) but to show:
Capacity: offered to show Declarant’s capacity to speak, speak or understand a language, see, hear, smell, physically feel, etc.
EX: “That red rose smells beautiful.”
Effect on listener: offered to explain what listener heard, saw, knew EX: W testifies, “V said, ‘I’m gonna shoot you D,’” offered to explain why D hit V
LOF :a.k.a. facts of independent legal significance
EX: Words of contract, defamation, words of notice (also may be Effect on listener)
Verbal Acts :words accompanying ambiguous conduct
EX: DW says, “I saw W give P $100 bill and say, ‘Happy birthday,’” offered to show $ was a gift, and not payment of debt or loan or not returning found $.
Impeachment
State of mind (circumstantially)
• Statement offered as circumstantial evidence of declarant’s SOM - not to explain what D knew or explain what D did, but for something else.
EX: “I can fly!” offered in civil commitment (sanity) hearing or in suit for insurance death benefit to show X committed suicide when X jumped off building and therefore not entitled to policy death benefit.
NOTE: DO NOT CONFUSE with State of Mind Hearsay exception (technically, statement of declarant’s then-existing mental, physical, or emotional condition).
• EX: W testifies X said, “I’m freezing.” If offered to show X was very cold,
it’s hearsay and the SOM exception applies. If offered to show X had a
high fever, it’s non-hearsay of this type.
• EX: W testifies X said, “My arm hurts” when arm had been amputated.
If offered in damages phase of torts trial to show Declarant was in pain, it’s hearsay and the SOM exception applies. If offered in admin hearing to get insurance company to pay for prescription for Declarant’s hallucinations, it’s non-hearsay of this type.
What are the steps of analysis for a hearsay problem?
- Isolate the statement (can be verbal or non-verbal communication)
- Identify who the declarant is (eg. Party, witness ?)
- what is the purpose for the evidence being introduced?
i. If offered for its truth or TMA= hearsay
ii. If not offered for its truth= not hearsay - Apply applicable exceptions
T or F For the purposes of hearsay, a non-verbal communication is also considered
True, examples include: i. Nonverbal example- intended to communicate;( EXAMPLE: Gestures (such as pointing a finger, nodding the head, “thumbs up”), silence where it is intended to communicate, and sign language.)
What are the two categories of TMA (hearsay) exclusions ?
hint availability declarant
a. statements are admissible regardless of whether the declarant is available as a witness FRE 803 and
b. Statements which require that the declarant be unavailable for the evidence to be admissible [Fed. R. Evid. 804].
FRE rules 803: Category Sets forth Exceptions to the rule precluding hearsay where the declarant’s availability is immaterial. what are the most common exceptions under this category?
- Present sense impression
- excited utterance
- Then-existing Mental, Emotional, or Physical condition
- Medical Diagnosis or Treatment
- Absence of Entry
- Present Recollection Refreshed/ Past recollection recorded
- Public Records
- Statements made in ancient documents
- Learned treatises
- Business Record
Hearsay is NOT admissible unless? why?
a federal statute; FRE rules; or
other rules prescribed by the Supreme Court say otherwise.
for fear of conscious fabrication
What are the 4 categories of statements 801 (out-of-court statements) are specifically exempt out-of-from being hearsay, even though they are offered for their truth of the matter asserted?
- Statements made by party opponents
- prior identifications
- Prior consistent statements
- prior inconsistent statements
Under these Hearsay exceptions, the declarant must be unavailable. What are 5 reasons for being considered unavailable as a declarant ?
Hint PRISM mnemonic
Privilege: court validates Declarant’s privilege assertion
Refusal by Declarant to testify/answer questions: after court order
Incapacity: Declarant’s death or serious mental/physical illness
Subpoena: Declarant beyond subpoena power, despite best efforts
Memory: Declarant claims lack of memory
T or F, a declarant is unavailable as a witness if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying [Id.].
False, declarant is available as a witness for this purpose!
Describe the best evidence rule
Where the contents of a document are in issue, the original of the document is required – no testimony as to contents UNLESS, the original is excused.
- Applies only whenever “contents are in issue”:
- Where the testimony is reliant on the writing, not on personal knowledge, or
- Where the writing has independent significance
Applies to writings, photos, recording (including internet digital recordings).
• EFFECT of BER:
• Where BER applies, need the “original” – Can’t describe what document
says.
• Prelim Q of law for judge.
Two situations:
1. Legally operative documents–EX: check, will, written contract, etc. 2. Document- dependent testimony
EX: W to testify about train derailment only knows about from reading newspaper.
EX: W to testify about drug side effects only known about from TV ad.
Under the 403 balancing test, Otherwise relevant evidence may be excluded if the probative value is substantially outweighed by the danger of?
- Unfair prejudice
- Confusion of the issues
- Misleading the jury
- Undue delay; Waste of time
- Needless presentation of cumulative evidence
- NOTE- 403 balancing favors admission
T or F, the confrontation clause of the 6th amendment requires that the declarant is unavailable
True
- _________________where primary purpose is to obtain police assistance to meet an ongoing emergency.
- _________________ where primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Testimonial evidence will be admissible only if defendant is given an opportunity to cross-examine the declarant).
- Not “testimonial”
2. “Testimonial”
Describe the present sense impression exception to the hearsay rule. declarant availability?
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
Declarant availability: immaterial
Describe the excited utterance exception to the hearsay rule. declarant availability?
Statement relating to a startling event made while declarant was under the stress of excitement caused by the event.
made while the declarant was under the stress of excitement caused by the event or condition.
• Need NOT be contemporaneous but
excitement is required
Declarant availability is immaterial
Describe the Then-existing Mental, Emotional, or Physical Condition exception to the hearsay EXCEPTION.
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but
NOT including a statement of memory or belief to prove the fact remembered or believed… (example: the statement “I am going back to Cali” Can be used to show that the D went to Cali).
Statement
• of then-existing mental, physical, or emotional condition offered to show:
• Present feeling – mental feeling, pain, or bodily health
• Forward Looking - intent, plan, motive, design
EX: W testifies P said, “I’m in pain” – to show damages or that Declarant asked for meds not given.
EX: P calls ER doctor to testify that P said, “My neck is killing me” (OK).
• Even if just for diagnosis so doctor can be expert witness.
• Statement need not be made to a medical person.
• Party gets to offer OWN statement.
• NOT backward looking statements - Statements of memory or belief are
generally NOT admissible under this exception, UNLESS relates to declarant’s will.
Describe the Medical Diagnosis or Treatment exception to the hearsay rule
Statements made to medical personnel or a family member for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (eg. I think I might have broken my arm)
a. describes:
a. a) medical history;
b. b) past or present symptoms or sensations;
c. c) their inception; or
d. d) their general cause
Describe the steps to use the Present Recollection Refreshed/ Past recollection recorded exception to the hearsay rule.
i. First, a witness at trial can’t remember some fact even though they knew it before. (was made when the fact was fresh in the witness’s mind)
ii. Second, begin by attempting to refresh present recollection. (EXERCISE)
iii. Third, past recollection recorded—memorandum by witness, made or adopted by witness while matter fresh in mind, that witness can say is accurate. (EXTRINSIC EVIDENCE OFFERED FOR ITS TRUTH)
Describe the business records exception to the hearsay rule
Report or record concerning act or event Made at or near the time By a person with knowledge and must be Kept in the regular course of business; made at the time the event happened (has no conscious fabrication because it is prepared for routine business purposes and not for litigation)
Trustworthiness = preliminary Q determined by the judge – FRE 104.
Authentication required by custodian of records or other qualified witness (does not need to have personal knowledge of the contents) or self authentication with certificate.
EX: Sales receipt, hospital records, payroll records.
EX (NOT): Personal diaries, personal calendars, personal bank records.
Describe the Absence of Entry exception to the hearsay rule
Evidence that a matter is NOT included in records or data compilations kept in accordance with the business records rules; admitted to prove the non-occurrence of the event or the non-existence of the matter.
• Foundation: Witness must testify to being familiar with the records, that Witness performed a diligent search, and that no record of the event was found.
• Self authentication OK
Proving a negative or used to show what should be there but it is not. (eg. Sex offender violates law by not registering as a sex offender and prosecutor calls the clerk who registers sex offenders and clerk testifies that name of sex offender is not in the registry as required by law).
Describe the public records exception to the hearsay rule
records made because there is a duty imposed by law to records made because there is a duty imposed by law to make records.
i. No conscious distinctions
j. Records usually made months after something happens, not a business record with strict time requirements.
k. Police records are not considered public records. They are not admissible in court against an accused in a criminal case because police observations are presumed adversarial.
When are statements in ancient documents admissible?
Admissible if found in a place where these items are typically found. Think archives, library, even shoebox.
l.Includes statements in a document in existence before Jan. 1, 1998 or more whose authenticity is established, and cannot reasonable be questioned
When can learned treatises be read into the record in court?
Statements made in treatises may be read into evidence once authoritativeness is established but the treatise itself will not be admitted into evidence. ( may be used as substantive evidence as an exception to 803).
statements contained in treatises may be admitted into evidence during direct or cross-examination of an expert witness if:
(1) the treatise is established as a reliable authority; and
(2) the treatise is called to the attention of the expert witness during cross-examination or is relied upon by the expert in direct testimony.
What are verbal acts?
Words that have independent legal signficance such as transactional or tortious words.
.What kind of Statements are offered to prove a relevant attitude, belief, or intent of either the declarant or the listener are admissible circumstantially as non-hearsay ? What is a good example of this?
State of Mind
Example: The defendant’s knowledge that the victim made threats to attack her is admissible as non-hearsay in a claim of self-defense to prove defendant’s fearful state of mind.
What are impeachment statements?
Statements of the witness offered merely to challenge credibility or show perjury (irrespective of their truth) are non-hearsay.
Define Statements of Party Opponents exemption
Statement of a party -Oral or Written Assertion/Conduct; not hearsay if offered against opposing party.
Under what circumstances do the Statements of Party opponents apply?
- When the statement is made by the party in an individual or representative capacity
- Used against them by their opponent- Can be anything (words, letters, documents) Silence one the party manifested that it adopted or believed to be true;
- made by a person whom the party authorized to make a statement on the subject;
- d. made by the party’s agent or employee on a matter within the scope of that relationship and while it existed;
Explain prior identifications as an exemption to hearsay
one of identification made of a person after perceiving that person
a. identifies a person as someone the declarant perceived earlier.
b. statement of identification of a person, not merely a present in-court description of a prior event,
(e. g. victim identifies the suspect after viewing a line-up)
c. victim is now in court and can testify about prior ID.
* * After the victim testifies, others who were present at the line-up can also testify about the victim’s out-of court identification! **
Explain the Prior Consistent Statements Exemption to Hearsay
prior statement consistent with the declarant’s testimony
a. Is consistent with the declarant’s testimony and is offered:
(i) to rebut inference of recent fabrication made before
the motive to fabricate, or
(ii) to rehabilitate after impeachment
• Still can’t bolster W’s testimony
• Admissible as substantive evidence
What is required for a prior consistent statement to be used in court?
i. Declarant must testify at trial (under oath), AND
ii. Be subject to cross-examination AND
iii. W’s prior statement must be made BEFORE the charged fabrication arose (majority position) OR
- to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or
What are prior inconsistent statements?
statements inconsistent with the declarant’s testimony
a. A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
b. (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
What are three circumstances in which a prior inconsistent statement is admissible?
- If “sworn” under FRE 801(d)(1) statement was subject to cross-examination
- As a statement by party opponent, or
- If a hearsay exception applies
What is a present sense impression?
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
What is an excited utterance?
Statement relating to a startling event made while declarant was under the stress of excitement caused by the event.
What is the Former Testimony 804 exception?
availability of declarant?
criminal and civil case?
- declarant unavailable
• Testimony - under oath
• Transcript, commonly, testimony from deposition or after retrial.
• Same proceeding or a different but related proceeding, or in a deposition
• Party against whom the statement is offered had similar motive and
opportunity to develop the testimony in prior proceeding.
• Criminal case – same parties (retrial after appeal or mistrial) (identity of parties)
• Civil case – could be different proponent offering the FT - (identity of interests) EX: Boundary dispute: A v. B. W testifies for B; Mistrial. A sells to C, and W dies. Retrial
now C v. B; W’s transcript admissible by either party.
EX: Trial #1: P1 v. Tobacco Co.; Expert says smoking causes cancer, cross by D-Tobacco Co; Trial #2: P2 v. Tobacco Co.; Expert unavailable; P2 offers transcript of Expert = Admissible.
EX: Same as trial between P1 v. Tobacco Co. but in District Court for minimal damages; Trial #2: P2 v. Tobacco Co. in Circuit Court for substantial damages = NOT admissible because Tobacco Co. had ltd. motive to develop Expert’s testimony in Trial #1.
What must a dying declaration have?
Declarant must be unavailable
Dying Declaration - FRE 804(b)(2)
“If you’re lyin’ when dyin’, you’re fryin’” Prof. Hornstein
• In a prosecution for homicide or in a civil case (wrongful death or
survival action), Declarant’s statement made,
• while declarant subjectively believed death to be imminent,
• Death need not actually result, but the declarant must be unavailable.
• FRE 104(a) whether the declarant subjectively believed death was
imminent – preliminary question of law for judge. • about cause or circumstances of impending death.
EX: After car accident, after Declarant overhears Doctor tell nurse, “He’s not gonna make it through the night,” Declarant tells Spouse, “It was Freddy driving the other car, but I shouldn’t have been drinking.” Declarant recovers, but later dies of an unrelated disease. In civil wrongful death action v. Freddy, Declarant’s statement is admissible.
Explain the statement against interest Exception
Declarant unavailable
• Statement of an unavailable
• non-party
• that was against pecuniary, proprietary, or penal interest;
• when made.
• If SPO applies, this is not the best choice
Criminal case - Unavailable Declarant’s statement against penal interest offered to:
EXCULPATE Accused, corroboration required
EX: DW testifies Declarant told her, “I did it, not Defendant.”
INCULPATE Accused, not likely admissible because of Crawford/Confrontation Clause problem
What is a statement of Pedigree?
A statement concerning declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history.
T or F, the Then physical, mental, emotional exception does NOT including a statement of memory or belief to prove the fact remembered or believed.
True
Character evidence is not admissible when:
is inadmissible to prove that on a particular occasion he acted in accordance with that character or trait
The Prosecutor cannot introduce character evidence against a defendant except when:
In a criminal case, while the prosecution may not initially show the defendant’s bad character traits to make an inference that he is more likely to have committed the crime charged, the accused may introduce evidence of character traits inconsistent with the crime charged (for instance a reputation for being non-violent).
However, once the defendant opens the door to character evidence, the prosecution may introduce character evidence to rebut that admitted by the defense.
T or F former testimony does not require an opportunity for cross examination.
False, It does!
When is the only time a vicarious statement made by an employee is admissible?
a vicarious statement by an employee can occur only if made during the employment relationship. It cannot be at the time of the deposition if the employee no longer works for the company.
Is this situation hearsay? Does a hearsay exception apply to the following situation?
the lover offers the statement for the express purpose of proving the truth of the matter asserted, i.e., that the husband had killed his wife’s prior lover.
Yes, Here, this is hearsay because the question tells us that the lover offers the statement for the express purpose of proving the truth of the matter asserted, i.e., that the husband had killed his wife’s prior lover. The statement does not fall within any exception, thus it is not admissible.
Is there a hearsay problem when a a witness is not being asked to recount her out-of-court statement, but rather, to testify as to what she remembered seeing on the night in question. As long as the witness has firsthand knowledge, she is a proper witness to the events, and can testify as to what she saw.
No hearsay problem because witness is asked to testify about what she remembered and not her statement she made.
As long as the witness has firsthand knowledge, she is a proper witness to the events, and can testify as to what she saw.
When do the evidence rules not apply in a hearing? In other words, what can the court judge determine? Explain
FRE don’t apply when Preliminary questions concerning the qualification of a person to be a witness are asked, the existence of a privilege, or the admissibility of evidence shall be determined by the court.”
The judge is not bound by the rules of evidence at this point, except those with respect to privileges. To the extent that these inquiries are factual, the judge acts as a trier of fact. The judge’s decision is final and is not subject to a contrary determination by the jury.
What other determinations does a judge make during a trial concerning the FRE? Give an example
The judge not only decides factual issues, he also determines the applicability of any technical evidentiary rules.
Judge decides, for example, if a dying declarant had a sense of impending death; if an entry was made promptly in the regular course of business; if there was the necessary state of excitement to qualify a declaration as an excited utterance; if a witness is unavailable; or if an original document is unavailable so as to justify the admission of a copy under the best evidence rule.
In General Hearsay:
Basic Rules:
Evidence offered in hearsay form is NOT admissible unless it falls within an exception!
ØHearsay Exemption or Exception – admissible as ___________ evidence.
ØNon-Hearsay? Depends; likely limited purpose.
substantive
What are the 4 Hearsay exemptions?
Statement by a party opponent (SPO)-FRE 801(d)(2)
• 5 types of SPOs
2. A PINS made under oath at a court-type
proceeding (PINS) - FRE 801(d)(1)(A)
3. A prior consistent statement made before motive
to fabricate or rehabilitate (PCS) - FRE 801(d)(1)(B)
4. A statement of prior identification by testifying witness FRE - 801(d)(1)(C) (PID)
What are the 5 types of Statements of a party opponent? (hearsay exemption)
- Statement of a Named Party
• Relevant, and
• Offered against the declarant-party by an opponent.
• “Across the V” – P offers D’s statement; D offers P’s statement 4 “Vicarious Admissions” - Adoptive admission - by words, conduct, or silence of named party • Named party affirmatively adopted statement of another
• H.O.W. can silence be an admission? - Authorized admission
• Another given actual authority to speak for named party - Employee admission
• Made during employment, and • within scope of employment - Co-conspirator’s admission
• Conspiracy proved first by POTE
• Statement made during and in furtherance of conspiracy
To apply (other than party/SPO) Prior Witness Statements (PINS, PCS, PID : the declarant must?
To apply (other than party/SPO), Declarant must: 1. testify at the trial or hearing; AND 2. be subject to cross-examination concerning the statement during the trial or hearing
What are the characteristics of a PINS EXEMPTION?
In contrast what are the characteristics of a PINS for impeachment?
“Unlimited” Admissibility As Substantive Evidence
Must be inconsistent
Made Under Oath
Made in court-type proceeding
Limited Admissibility To Impeach ONLY
Must be inconsistent
No Oath Required
Made anywhere
For PINS, PCS, and PID, the declarant/witness must:
testify at trial, and
• be subject to cross-examination;
• otherwise, statement is hearsay AND, in a criminal case, may be a
Confrontation Clause problem
In General
• Shortened - Hearsay is (1) a statement (2) by a human declarant (3) made out-of-court (4) that’s offered for its truth (TOMA).
All EXCEPTIONS based in reliability and/or necessity
Explain and give examples of reliability and necessity.
Reliability-Circumstances=morelikelytruthful • Business Records – taxes, inventory, ER record
• Dying Declaration – “If lyin’ when you’re dyin’, you’re fryin’”
• Medical Treatment, Diagnosis – Going to give doctor about to
operate wrong info?
Necessity-May be the only way to get important evidence • Dying Declaration – only way to ID killer?
• Family History or bible – ancestors all dead
List the 4 Hearsay Observational Exceptions. hint inside and out of the body
-Present Sense Impressions;
• Excited Utterance;
• Statement of Then Existing State of Mind;
- Statement for Medical Treatment or Diagnosis.
Documents / Records Exceptions
(6) Business / Public Records?
(6) Business / Public Records • Past Recollection Recorded; • Business Records; • Absence of Business Records; • Public Records; • Records of Vital Statistics; • Absence of Public Records
Documents / Records Exceptions :
(3) Religion and Family HX Records?
(2) Real Property Related Records?
(5) MISC Records
Records of Religious
Organizations;
Certificates of Marriage; Baptism; • Family Records
(2) Real Property Related Records- Records Affecting an Interest in Real Property;
• Statements in Records Affecting
an Interest in Real Property
(5) MISC Records • Ancient Documents; • Market /Commercial Compilations, Directories; • Learned Treatises; • Judgments in Criminal Cases; • Judgments in Civil Cases
What are the reputation Exceptions (collective opinion) to hearsay?
Reputation regarding family or personal history;
• Reputation regarding land use boundaries or historically significant events;
reputation regarding character
Hearsay Exceptions where the Declarant must be unavailable when the declarant’s availability matters?
- Former Testimony;
- Statement Under the Belief of Imminent Death (Dying Declarations);
- StatementAgainst Interest;
- Statement of Personal or Family History;
- Forfeiture by Wrongdoing
describe the past recollection recorded exception to hearsay.
Declarant’s availability?
Used where the witness has a present memory problem.
• Prerequisite: FRE 612 regarding refreshing the witness’s memory must have
been attempted and failed. The witness must lack current memory of the event.
Statement
• Documented / recorded
• Made “while the matter was fresh” in the Declarant’s mind
• Declarant had personal knowledge – W once knew
• Accurately reflects the witness’s prior knowledge
• Witness made, signed, or adopted the statement her/himself
Rights of the opponent:
• inspect document; cross-examine with it; show to TOF for comparison; introduce relevant portions
KEY Point:
• The writing/record is read into evidence ONLY; the writing itself is NOT
received as an exhibit unless offered by the adverse party
A record or statement of a public office is admissible if it s
public office is admissible if it sets out:
• the office’s activities; a matter observed and reported while under a legal
duty to do so.
• Key Point: The record was prepared pursuant to a duty imposed by law. • Key Point: NOT including, in a criminal case, a matter observed by law-
enforcement offered against an accused under this exception. (Confrontation problem)
availability of declarant immaterial
Explain the records of vital statistics exception to hearsay.
Records or data compilations of births, deaths, or marriages are admissible if the report was made to a public office pursuant to requirements of law.
• Not a public record because prepared by doctor, clergy, etc., non-gov’t agency.
Explain the Family and Personal history Exception to hearsay
declarant immaterial
Statements of fact concerning personal or family history kept by religious organizations, or contained in family bibles, genealogy charts, inscriptions on family portraits, engravings on tombstones, urns, crypts, etc.
EX: Christmas Tree ornament saying “Kim Shemer, born 1980.” • REMEMBER, admissibility versus weight to be given.
Explain Docs or Statements in Doc That Affect an Interest in Property hearsay exception
Documents (EX: deeds, mortgages) kept by law in government recording offices or statements in other documents (EX: letters, contracts) that affect an interest in, typically, real property.
declarant immaterial
Explain the 3 reputation exceptions to hearsay
- Reputation as to Personal/FamilyHistory:FRE803(19)
EX: Mother told me General Sherman is my great, great uncle. - Reputation as to Boundaries and GeneralHistory:FRE803(20)
EX: That land was owned by old Jane Smith; went up to that old oak tree.
EX: George Washington slept here. - Reputation as to Character:FRE803(21)
• Reputation is what another told W and is offered for its truth = hearsay.
• FRE admits reputation evidence relating to character, as previously discussed.
• Exam Tip – focus on call; Is the question asking about character or hearsay?
Explain the judgment of previous convictions exception to hearsay.
Final judgments of felony convictions = admissible to prove a fact essential to the judgment.
• Felony=>1year
EX: D charged with “felon in possession of a firearm.” A certified copy of a final judgment can be offered to prove the defendant is a convicted felon.
EX: P sues Insurance Co. for insurance policy proceeds after fire in P’s house. P’s prior conviction for arson of the house was admissible.
• In criminal case, when offered by gov’t for other than impeachment, must be judgment of accused, not a witness or other.
• Co-conspirator’s or other’s conviction cannot be admitted against the accused (Confrontation Clause issues).
Explain the prior civil judgment exception
Final judgments of felony convictions = admissible to prove a fact essential to the judgment.
• Felony=>1year
EX: D charged with “felon in possession of a firearm.” A certified copy of a final judgment can be offered to prove the defendant is a convicted felon.
EX: P sues Insurance Co. for insurance policy proceeds after fire in P’s house. P’s prior conviction for arson of the house was admissible.
• In criminal case, when offered by gov’t for other than impeachment, must be judgment of accused, not a witness or other.
• Co-conspirator’s or other’s conviction cannot be admitted against the accused (Confrontation Clause issues).
what are the 5 hearsay exceptions where the declarant is REQUIRED to be unavailable for it to apply?
Mnemonic That is one D.A.F.T Family
DyingDeclarationException-FRE804(b)(2).
StatementsAgainstInterestException-FRE804(b)(3) 3.
Forfeiture of Wrongdoing Exception-FRE804(b)(6) 4.
Pedigree(FAMILYHistory)Exception-FRE804(b)(4) (There’s no FRE 804(b)(5))
FormerTestimonyException-FRE804(b)(1)
EXAM TIP:
• If no facts on unavailability in question, none of these can be right
answer – eliminate choice.
• If facts show W is available, none of these can be right answer –
eliminate choice.
• ONLY if facts show W is unavailable, can these be basis of admission.
Explain the Forfeiture by Wrongdoing exception to Hearsay
• A statement of unavailable declarant offered against a party who engaged in wrongdoing that was intended to render/procure the unavailability of the declarant as a witness.
• Waiver/forfeiture of right to make hearsay objection
• Judge – preliminary Q - POTE
EX: Party kills, intimidates, or pays-off W to prevent testimony.
Under the Sixth Amendment’s Confrontation Clause, in a criminal case: “Testimonial” hearsay statements are NOT admissible UNLESS:
What are Exceptions - Testimonial hearsay but admission does NOT violate Confrontation Clause:
UNLESS:
• declarant is unavailable, AND
• defendant had an opportunity to cross-examine the declarant about the
statement.
Exceptions - Testimonial hearsay but admission NOT violate Confrontation Clause:
• Child witness testifying via closed circuit TV
• Primary purpose of statement to address ongoing emergency
• Chemical analysis report with Notice and Demand statute
• By case law - dying declaration exception; forfeiture by wrongdoing exception
Explain Hearsay within Hearsay. Give some examples
Hearsay within Hearsay – FRE 805
One hearsay statement that contains one or more other hearsay statements - each must have applicable exception.
• Otherwise, the entire statement may be
inadmissible, if hearsay in primary statement can’t be redacted effectively.
EX: 911 call recording (Public Record) with person screaming “Help, he’s hitting me.” (Excited Utterance)
EX: Hospital report (Bus. Rec.) with patient’s statement about injury (Statement For Treatment or Diagnosis)
EX: Police report of auto accident (Public Record) in civil case with W statement describing what she saw (Hearsay, but no exception).
Primary Statement
Included Statement
Impeachment and Rehabilitation of Hearsay Declarants – FRE 806
• Impeachment and rehabilitation of a hearsay (out-of-court) declarant (unavailable)
• Can use any impeachment or rehabilitation method
Give an example of this exception
EX: Transcript of now unavailable Doctor’s former testimony admitted at retrial; can impeach Doctor, showing Doctor since lost medical license; can show Doctor’s license was reinstated to rehabilitate.
Define Authentication:
what types of tangible evidence can be used
What else is required?
proof that evidence is what its proponent claims it to be.
Tangible evidence- •
Types of Tangible Evidence: Condition precedent to admissibility -
• Real Evidence – THE gun, THE drugs, etc.; photo - “fair and accurate” representation
• Demonstrative Evidence – diagram - “fair and accurate” representation
- Requires someone with personal knowledge of and/or familiarity with the item of evidence.
- No necessarily photographer, creator of map
- Item still must be admissible – hearsay exception, best evidence rule, etc.
Methods of Authentication
_________ generally means a witness is required to authenticate the item.
_________ generally means the item is self-authenticating; no need for a witness.
Extrinsic
Intrinsic
How is extrinsic evidence authenticated?
Extrinsic Authentication - Sponsoring Witness Required – FRE 901
• Direct evidence – Testimony of W with personal knowledge – FRE 901(b)(1)
EX: W wrote it; saw it written; my gun; my friend’s car
• “Custodian of records” of organization
Explain intrinsic evidence
documents Mnemonic: “CONTAC”
• NO Witness needed to authenticate certain documents
Certified Documents
Official (government) Publications
EX: IRS pamphlet
Newspapers and Periodicals
EX: NYT, Car and Driver, Sport’s Illustrated
Trade Inscriptions
EX: Nike “Swoosh” to ID item as a Nike product
Acknowledged (Notarized) Documents – private docs
Commercial Paper – signed checks, certificates of deposit
The Best Evidence Rule (BER) does NOT apply if a fact to be proved
Original includes:
BER does NOT apply if a fact to be proved has a source independent from the writing, then the contents are NOT in issue
EX: W saw X pay $3. W can testify $ paid; receipt not required to prove it.
Original includes:
• Duplicate by any process that produces accurate reproduction; • Photo negative, for ESI, computer printout;
• Certified copy of a public record; and
• Summaries of voluminous records.
Admissibility of Other Evidence of Content
The original is not required, and other evidence permitted, if:
Mnemonic CLOTS
Collateral
• BER is N/A; doc not closely related to important issue
Lost or destroyed
• But no bad faith, not to deprive other of doc
Opponent – has orig. and won’t provide
EX: W testifies, recalls date of accident because his wedding announcement was published in newspaper that day; newspaper not required.
Testimony or admission by opponent - FRE 1007
Subpoena
• Original can’t be obtained even by SDT
