Hearsay - Declarant's Unavailability Immaterial Flashcards
What are the hearsay exceptions where declarant’s unavailability is immaterial?
- Present State of Mind (Then-Existing State of Mind)
- Excited Utterance
- Present Sense Impression
- Declarant’s Present Bodily Condition
- Statements Made for Diagnosis or Treatment
- Business Records (Regularly Conducted Business Activity)
- Past Recollection Recorded
- Official Records and Other Official Writings
- Ancient Documents
- Documents Affecting Property Interests
- Learned Treatises
- Reputation
- Family Records
- Market Reports
What is the rule re: “present state of mind” (or then existing state of mind)?
CA distinction?
A statement of declarant’s THEN-EXISTING state of mind, emotion, sensation, or physical condition IS admissible
Examples:
- I am hungry
- This really hurts
NOTE –> statement of memory or belief is NOT admissible. EXAMPLE –> I was hungry (not admissible)
NOTE –> need not be for medical advice or treatment
CA Distinction –> SAME, except judge has discretion to exclude statements made under suspicious circumstances
What is the rule re: “excited utterance”?
CA distinction ?
- statement RELATING TO A STARTLING EVENT
- MADE WHILE under stress of the event
NOTE –> sometimes a “failed” dying declaration will make it as an excited utterance
CA –> same, but called “spontaneous statement”
What is the rule re: “present sense impression”?
CA distinction?
- statement that DESCRIBES or EXPLAINS an event or condition,
- is made WHILE or IMMEDIATELY AFTER declarant perceives the event or condition
CA distinction –> NARROWER.
-statement must be made WHILE event is happening, not after
What is the rule re: “declarant’s present bodily condition”?
CA distinction?
- SPONTANEOUS declaration of
- declarant’s OWN present bodily condition (physical or mental)
NOTE –> regardless of whether made for the purpose of diagnosis or treatment
CA distinction –> same, but judge has discretion to exclude statement made under suspicious circumstances
What is the rule re: “statements made for diagnosis or treatment”?
CA distinction?
- statement DESCRIBES a person’s medical history, present or past symptoms OR their INCEPTION or GENERAL CAUSE
- IF made FOR and PERTINENT to MEDICAL DIAGNOSIS or TREATMENT
NOTE –> usually declarant will be describing their own condition, but this is not required
NOTE –> usually made to medical personnel, but this is not required
SCOPE –> narrowly determined
Example –> if person says to doctor “I was stabbed by kitchen knife. my roommate did it” - only the first portion would be admitted
NOTE –> under federal rules (unlike maj of states), statements made to doctor hired to testify of past physical condition IS admissible
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CA distinction –> admissible only if:
- made by a child-abuse or neglect victim under 12 to medical personnel
- for the purpose of obtaining medical diagnosis or treatment
What is the rule re: “Business Records”?
- writing made in the REGULAR course of business
- consisting of matters within PERSONAL KNOWLEDGE
- of one with BUSINESS DUTY to transmit
- entry must be made AT or NEAR TIME of transaction
“business” - every business, org, occupation or calling whether for profit or not
NOTE –>
- Authenticity must be established by:
1. custodian testifying that the record is a business recored; OR
2. certifying in writing that its a business record - self serving accident reports prepared for litigation are generally NOT admissible.
- police reports are generally NOT admissible against a criminal def under this exception
- business records MAY be used to prove non-occurrence of event if it was the regular practice of business to record all such matters
What is the rule re: “Public Records and Reports”?
CA distinction?
- records setting forth the activity of the office or agency
- recordings of matters observed pursuant to a duty imposed by law (except police observations in criminal cases); OR
- In civil actions (and in criminal cases ONLY against the government) records of factual findings resulting from investigation
Writing must have been made:
- by and within the scope of duty of the public employee;
- must have been made AT or NEAR the time of the event
NOTE –> an otherwise qualifying public record MAY be excluded if opponent can show circumstances indicating lack of trustworthiness
NOTE –> make sure to double check for double-hearsay
COME BACK TO –> statement of absence of public record (p43)
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CA DISTINCTION –>
1. records re: police observations in criminal cases are NOT automatically excluded
2. records of factual findings from an investigation can be used BY the gov, as well as against it in a criminal case (NOTE –> there may still be a confrontation clause issue if offered in a criminal case)
What is the rule re: “Records of Vital Statistics”?
CA ?
Records of vital statistics are admissible IF reported to a public office in accordance with a legal duty
CA –> SAME
What is the rule re: “Judgments”?
Judgment of prior FELONY conviction :
FRE –> admissible in both CIVIL and CRIMINAL case to prove any fact essential to judgment
CA DISTINCTION –> only allowed to be used in civil cases
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Judgment in former civil case:
FRE –> generally inadmissible except:
admissible as proof of matters of personal, family, or general history, or boundaries of land, if it would be provable by reputation evidence
CA –> generally inadmissible except:
- party may use final judgment against himself when he sues another for indemnification or to enforce a warranty, or to recover from breach of warranty
- final judgment against a 3rd party holding that the third party has a duty or liability, is admissible when offered in a suit between parties
What is the rule re: “Ancient Documents”?
Any authenticated document prepared before January 1, 1998
What is the rule re: “Documents Affecting Property Interests”?
A statement in a document affecting an interest in property (deed, will) is admissible IF:
-the statement is RELEVANT to the document’s purpose
HOWEVER –> exception will NOT apply if later dealings with the property are:
- inconsistent w the truth of the statement; OR
- inconsistent w intent of the document
What is the rule re: “learned treatises” ?
FRE ?
CA?
FRE –> admissible as hearsay exception if:
- called to the attention of, or relied upon by an expert witness; AND
- established as a RELIABLE AUTHORITY by:
(i) testimony of that witness; OR
(ii) testimony of other expert witness; OR
(iii) judicial notice
CA –> narrower. Only applies to facts of GENERAL NOTORIETY and interest found in published maps or charts, or books of history, science or art.
NOTE –> Art is narrowly construed, basically sciences
What is the rule re: “family records”?
CA?
Statements of facts concerning PERSONAL or FAMILY history contained in:
family bibles, jewelry engravings, tombstone engravings ETC
CA –> same
What is the rule re: “market reports”?
CA?
market reports and other published compilations, If GENERALLY USED or RELIED UPON by:
- the public; or
- persons in a particular occupation
CA –> same
