Hearsay - Evidence Flashcards
What is hearsay?
It is an out-of-court statement offered for the truth of the matter asserted.
- look for situations that do not fall into an exception (these are inadmissible): when an officer proposes to testify to what a witness said, when a witness’s notes (prepared of her own accord) try to be entered, when it is hearsay w/i hearsay and the inner/outer level is not admissible, or when the call of the question is so specific as to assert clearly that it is being offered for the TOMA.
If it is not offered for the truth of the matter asserted, what is it?
Not hearsay, that is a statement offered to show the effect on the listener OR a statement offered to show the state of mind of the declarant (what declarant believed to be true).
What if it IS an out-of-court statement and it IS offered for its truth, but it is admissible by exemption?
It is nonhearsay.
That is a
(1) prior inconsistent statement given by the declarant under penalty of perjury,
(2) prior consistent statement offered to rebut a charge that the witness is lying or exaggerating,
(3) statement of identification, or
(4) a party admission aka a statement by a party opponent that is a statement made or adopted by a party to the action by: (i) a spokesperson authorized to speak on her behalf; (ii) her agent concerning a matter within the scope of the agency; (iii) her partner within the scope of business partnership; (iv) her co-conspirator in furtherance of the conspiracy; or (v) her privy in title (state courts)
If it is hearsay, is it admissible by exception?
Yes. Check first whether (1) the declarant is and must be unavailable (2) or whether the declarant’s availability does not matter.
What are the hearsay exceptions for when the declarant is unavailable to look out for?
Statement Against Interest
Dying Declaration
Former Testimony
What is the former testimony exception, under declarant unavailable, to the hearsay rule against admissibility?
Statement made under oath at same or at other proceeding at which the party against whom it is offered had motive and opportunity to develop testimony.
What is the statement against interest exception, under declarant unavailable, to the hearsay rule against admissibility?
Statement against declarant’s pecuniary, proprietary, or penal interest when made.
AND
the stmt must be supported by corroborating circumstances that clearly indicate its trustworthiness
What is the dying declaration exception, under declarant unavailable, to the hearsay rule against admissibility?
(1) MUST be a statement concerning the death happening then,
(2) unavailable declarant - doesn’t have to die
(3) only in a criminal homicide or civil case
(4) must believe death is imminent
- look out for trials on attempted murder, or stmts concerning one’s opinion of who the killer is
Now back to -
What are the hearsay exceptions, when declarant availability is immaterial, to look out for?
Purposes of Medical Diagnosis
Present, then Existing Medical Condition
State of Mind
Present Sense Impression
Excited Utterance
Business Records/Official Records
Learned Treatise
What is the difference between PSI and EU exceptions, under declarant availability immaterial, to the hearsay rule against admissibility?
PSI is a calm description of what happened, contemporaneous to the occurrence, whereas, EU requires a startling event, too, but it is made within 30 minutes and with adjectives or exclamation points to emphasize the excited state.
What are the requirements for the business/public records exceptions, under declarant availability immaterial, to the hearsay rule of inadmissibility?
(1) kept in the ordinary regular course of business
(2) by someone whose job it was to keep them (personal knowledge)
*NOTE: stmts by private citizens may NOT be included within official records unless they fall separately within a hearsay exception.
