Hearsay & Circumstances of Its Admissibility Flashcards
What’s Hearsay?
Hearsay = a previous out-of-court statement that is offered to prove the truth of the matter asserted
→ default is that Hearsay is NOT admissible – BUT there are many Exceptions you must consider…
What are examples of statements that are NOT offered for truth of matter asserted?
(i.e., that aren’t hearsay)
These examples are statements that aren’t offered for truth of matter asserted:
- Words of Offer & Acceptance
- Libel or Slander
- Verbal Acts that show motive or notice
→ so if you see ^these^, you know such statement is NOT hearsay
If you can tell a statement IS hearsay but aren’t sure it fits in an exception, what answer do you pick?
→ “inadmissible as hearsay not within any exception”
H/E: Present Sense Impression
= a Hearsay Exception (IS admissible) = a statement made while observing fact** – it’s a **NON-emotional observation
*be sure person made statement DURING MOMENT he was observing
E.g., “I saw the car go through the red light”
NOT, e.g., Call wife 12 hours later to say “I saw the car go through the red light”
H/E: Excited Utterance
= a Hearsay Exception (IS admissible) = a statement made while excited
LOOK FOR: ! (exclamation points!)
H/E: Then-Existing Mental, Emotional, or Physical State of Mind
= a Hearsay Exception (IS admissible) = a statement of one’s intent, emotion, or physical state of mind
E.g., “I was going to New York” “I was on my way to LA” “I couldn’t have killed her; I loved her” “I’m suffering from pain right now”
H/E: Business Record
= a Hearsay Exception (IS admissible) = a record made (all the time) in the ordinary course of the business
E.g., a timesheet; or a CEO signed an invoice on a piece of paper with ABC, Inc. letterhead
NOT, e.g., Christmas gift for clients that’s on law firm’s letterhead → NOT a Business Record b/c it’s not a record made all the time, so it’s inadmissible hearsay
H/E: Statement for Medical Diagnosis or Treatment
= a Hearsay Exception (IS admissible) = a statement about past OR present SYMPTOMS related to the treatment OR diagnosis (generally, statement was made to Provider while being diagnosed/treated)
H/E: Recorded Recollection
= a Hearsay Exception (IS admissible) – RULE:
(1) the Witness made OR adopted the document
(2) but now he cannot remember something
→ can put doc in front of him to refresh his memory - and the doc CAN be read into evidence
H/E: Public Record
= a Hearsay Exception (IS admissible) = a record or statement from a public office / agency that shows activities of the office OR observations by someone with a duty to report (e.g., police officer, agency official)
E.g., a police report
H/E: Absence of Business Record or Public Record
= a Hearsay Exception (IS admissible) = → look for facts that indicate there was NO [business/public] RECORD when there should’ve been a record
H/E: Learned Treatise
= a Hearsay Exception that IS admissible IF an EXPERT WITNESS is relying on the treatise
H/E: Ancient Document
= a Hearsay Exception (IS admissible) = a document that was created before January 1, 1998AND is authenticated (i.e., that there aren’t any signs of tampering)
H/E: Catch-All Exception
= a Hearsay Exception (IS admissible) = any OTHER statement that is: (1) material, (2) trustworthy, AND (3) in the interest of justice
What does it mean when a Declarant is “unavailable” as a Witness?
“unavailable” declarant = someone who’s not currently at the trial
E.g., missing; in a coma; Pleaded the Fifth; is in a Witness Protection Program
H/E: Dying Declaration
= a Hearsay Exception (IS admissible) = the Declarant…
- 1) made statement while he thinks he is imminently dying
- 2) statement is about** **WHY he’s dying (cause of death)
- 3) is currently unavailable*but doesn’t have to be dead!
- *this only applies in → Homicide OR Civil Case
H/E: Statement Against Interest
= a Hearsay Exception (IS admissible) = the Declarant made a statement that makes himself look liable/guilty, AND Declarant is currently unavailable
*TIP: don’t get this confused with an admission! → generally, a non-party Declarant makes the Statement Against Interest
*TIP: sometimes you’ll also see this in Qs that say Plaintiff/Defendant made a statement but is now unavailable
H/E: Former Testimony
= a Hearsay Exception (IS admissible) = the Declarant…
- 1) the party against whom the Former Testimony is being offered (i.e., opposing party) was a party in a former case
- 2) that former case was about same subject matter as this current case
- 3) Former Testimony was made under oath
- 4) they had the opportunity AND/OR motive to cross-examine the witness
- 5) Declarant is currently unavailable
Non-Hearsay
= things that ARE admissible substantively AND are NOT hearsay
*KEY WORDS: sometimes ans. will call these “admissible as non-hearsay” or “admissible as substantive evidence”
*these have nothing to do with the hearsay exceptions
Admissions
= NON-Hearsay (IS admissible) = a statement made by a Party admitting something, making himself look responsible or guilty
*there are TWO types of Admissions: Vicarious & Adoptive Admissions
Vicarious Admissions
= NON-Hearsay (IS admissible) = a statement made by an Employee** **about his Company & liability
E.g., a mechanic in a Company saying “we don’t fix the brakes” or a bus driver in a Company saying “we’re usually drunk when we drive” → if the Company is a Party, then those statements ARE ADMISSIBLE as Vicarious Admissions
Adoptive Admissions
= NON-Hearsay (IS admissible) = where someone says something that a reasonable person would normally object to, BUT the Party does not say anything / object to it
E.g., Someone accuses Jon of murder, and Jon does NOT respond–even though a reasonable person would’ve objected to such an accusation. → will come in as an Adoptive Admission
Prior Consistent Statement
= NON-Hearsay (IS admissible) = a prior statement by the Declarant which is the same as his current testimony** and that’s **meant to REFUTE any charge that the Declarant fabricated OR that he had an improper motive
Prior Sworn Inconsistent Statement
= NON-Hearsay (IS admissible) = a prior statement which Declarant made under OATH** that is **inconsistent with his current testimony
