Hearsay - Declarant is Unavailable Flashcards
Hearsay is a declarant’s out court statement that is offered to prove the ____ of the _____ asserted.
truth of the matter asserted.
STATE OF MIND EXCLUSION A statement offered as circumstantial evidence of the declarant’s mental state is not ____.
hearsay
LEGALLY OPERATIVE FACTS A statement offered to _____ that the statement was made regardless of its _____ is not hearsay.
prove
truth
EFFECT ON RECIPIENT EXCLUSION A statement offered to show the effect on the person who heard it is not ____.
hearsay
IMPEACHMENT A statement offered solely to impeach a witness is not being introduced for its ____ and therefore is not _____.
truth
it is not hearsay
Declarant’s-witness’s prior statements are not hearsay if the witness who made the statement testifies at the present trial and is subject to cross examination.
- Prior ______ statements made under penalty of perjury at a trial, hearing or other proceeding, or in a deposition may be admissible to impeach the declarant’s credibility AND AS ________ EVIDENCE. (not made under penalty of perjury = may only be used to impeach)
- Prior consistent statements, whether made under ____ or not, may be admissible to ____ an express or implied charge that the declarant recently fabricated it or acted from an recent improper influence OR to rehabilitate the declarant’s credibility. May only be admitted it it was made _____ the declarant had reason to fabricate or the improper influence or motive arose.
- Prior statement of identification. A previous out of court identification of a person after perceiving that person is _____ hearsay and may be admissible as ________ evidence. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross exam about the prior identification.
- Prior inconsistent statements, made under penalty of perjury at a trial, hearing or other proceeding, or in a deposition may be admissible to impeach the declarant’s credibility AND AS SUBSTANTIVE EVIDENCE. ( If the inconsistent statement was not made under penalty of perjury = may only be used to impeach)
- Prior consistent statements, whether made under oath or not, may be admissible to rebut an express or implied charge that the declarant recently fabricated it or acted from an recent improper influence; OR to rehabilitate the declarant’s credibility.
May only be admitted it it was made before the declarant had reason to fabricate or the improper influence or motive arose.
- Prior statement of identification. A previous out of court identification of a person after perceiving that person is NOT hearsay and may be admissible as SUBSTANTIVE evidence. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross exam about the prior identification.
A statement made by a party to the ____ litigation is not hearsay if it is offered by an ____ party.
This is was traditionally known as an admission of a party opponent.
It may have been made by the party in his _____ or ______ capacity.
A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party.
This is was traditionally known as an admission of a party opponent.
It may have been made by the party in his individual or representative capacity.
A declarant is unavailable when:
1) he is exempt on the grounds of a _____;
2) he refuses to testify despite a court ____ to do so;
3) he lacks _____ of the subject matter of the statement;
4) he is unable to testify due to death, _____, or physical or mental disability;
5) he is absent and cannot be subpoenaed or otherwise made _____.
A declarant is unavailable when:
1) he is exempt on the grounds of a privilege;
2) he refuses to testify despite a court order to do so;
3) he lacks memory of the subject matter of the statement;
4) he is unable to testify due to death, infirmity, or physical or mental disability;
5) he is absent and cannot be subpoenaed or otherwise made present.
Dying declaration exception applies only in homicide prosecutions and ____ cases.
Dying declaration exception applies only in homicide prosecutions and civil cases.
If declarant is unavailable what 5 type of hearsay are admissible?
1) dying _____;
2) former ______;
3) statement _____ interest;
4) statement of ____ or family history;
5) statement offered against a party that _____ caused the declarant’s unavailability.
If declarant is unavailable what 5 type of hearsay are admissible?
1) dying declaration;
2) former testimony;
3) statement against interest;
4) statement of personal or family history;
5) statement offered against a party that wrongfully caused the declarant’s unavailability.
To qualify as admissible, when a declarant is unavailable, former testimony given as a ____ at a trial, hearing or lawful deposition is not excluded as hearsay if the party against whom the testimony is being offered (or in civil case the party’s predecessor) had an _____ and _____ motive to develop the testimony by direct examination, redirect or cross examination.
To qualify as admissible, when a declarant is unavailable, former testimony given as a witness at a trial, hearing or lawful deposition is not excluded as hearsay if the party against whom the testimony is being offered (or in civil case the party’s predecessor) had an opportunity and similar motive to develop the testimony by direct examination, redirect or cross examination.
A statement qualifies as a dying declaration if the declarant believes that her death is _____ and the statement pertains to the _____ or circumstances of the death.
She doesn’t actually have to be _____ for this exception to apply but she does have to be ______.
A statement qualifies as a dying declaration if the declarant believes that her death is imminent and the statement pertains to the cause or circumstances of the death.
She doesn’t actually have to be dead for this exception to apply but she does have to be unavailable.
A statement made by a declarant who is unavailable to testify is ____ excluded as hearsay if the statement was made
against the declarant’s interest at the time it was made; and
would not have been made by a reasonable person unless he believed it to be _____.
The statement against interest may be made by a ____ - party, declarant must be _____, and the statement must have been against the declarant’s interest at the time it was made.
Whereas an opposing party’s statement, must have been made by a party, and the statement need not have been against the party’s ____ when it was made.
A statement made by a declarant who is unavailable to testify is NOT excluded as hearsay if the statement was made
against the declarant’s interest at the time it was made; and
would not have been made by a reasonable person unless he believed it to be true.
The statement against interest may be made by a non - party, declarant must be unavailable, and the statement must have been against the declarant’s interest at the time it was made.
Whereas an opposing party’s statement, must have been made by a party, and the statement need not have been against the party’s interest when it was made.
