Hearsay Exceptions Flashcards
What is the rule for impeachment of a hearsay declarant?
When an out-of-court statement comes in under a hearsay exception, the declarant is acting like a witness and can be impeached.
What are the exceptions when a declarant availability is immaterial?
Present Sense Impression: while perceiving the event and describes event.
Excited Utterance: made under the stress of event and startling. need not be immediately during the event.
State of Mind: Then-existing physical or mental or emotional condition admissible to prove existence of condition. Can also prove conforming conduct.
Statements for Purpose of Medical Treatment/Diagnosis: Past/present symptoms, cause of injury, if pertinent. Need not be made by patient or to doctor.
Past Recollection Recorded: witness may read to jury if (1) record contains a matter about which witness once had knowledge; (2) record was prepared or adopted when matter was fresh; (3) record accurately reflects witness knowledge; and (4) witness testifies he has insufficient memory. Note: not introduced into evidence, Adversary may introduce it though.
Business Record: regularly conducted, made at time of events by someone with knowledge, as part of regular practice. If made for litigation, not admissible.
Public Records
Learned Treatise: Can be introduced for impeachment and as substantive evidence.
What are the exceptions requiring declarant unavailability?
Former Testimony: under oath at prior hearing or deposition. Allowed in subsequent trial if other party had opportunity and similar motive to develop by direct or cross.
Dying Declaration: individual believes they are dying, believes death is imminent, relates to cause. Admissible in homicide and civil cases only. Declarant need not actually die.
Statements Against Interest: when made, statement was against defendant’s pecuniary, proprietary, civil, or penal interest, such that a reasonable person would not have made the statement unless true. If statement subjects person to criminal liability must be supported by corroborating evidence.
Statements of Personal or Family History
Note: Forfeiture by Misconduct
When is a declarant unavailable?
Privilege
Refuses to testify
Lacks memory of subject
Is dead or too ill
Absent and cannot be subpoenaed.
Note: not unavailable if a party wrongfully renders the declarant unavailable for purposes of preventing testimony.
What are the hearsay exclusions for admissions of a party-opponenet?
Note: apply to anything party said. Offered by opposing party.
Adoptive statements: (“yes” and “did you rob bank”)
Note: Silence. party heard and understood,; ability to respond, a reasonable person in a similar position would have denied statement.
Vicarious Admissions: scope of employment
Co-Conspirators: during and in furtherance of conspiracy .
What are the hearsay exclusions for prior statements of testifying witness?
Prior Inconsistent Statement: made under oath at trail, hearing, or deposition. Can be used as substantive evidence. Can be used for impeachment, need not be at trial, deposition, or hearing.
Prior Consistent Statement: used to rehabilitate or as substantive evidence.
Prior Identification
Note: Declarant must testify as witness and be subject to cross-examination.
