Hearsay Exceptions Flashcards
List of Hearsay Exceptions (Declarant Unavailability Required)
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- F: former testimony exception
- I: statement against Interest
- D: dying declaration
- H: statement of personal or family History
- PPDU: Statement offered against Party Procuring Declarant’s Unavailability
List of Hearsay Exceptions (Declarant Unavailability Immaterial)
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F - family records
E - excited utterance
D - documents affecting property interests
C - condition (physical condition for med diagnosis/treatment)
R - recollection (past recollection recorded)
I - impression (present sense impressions)
S - state of mind (present state of mind)
P - public records or reports
L - learned treatises
B - business records
J - judgments and prior convictions
A - ancient documents
M - market reports
Hearsay Exceptions: Declarant Unavailability
Declarant is unavailable if either:
- privilege
- death or illness (physical/mental)
- refusal to testify despite a court order
- lack of memory
- absent (beyond subpoena’s power)
- Refers to declarant’s testimony (a declarant can be in court, but testimony is unavailable because of assertion of a valid privilege)
Hearsay Exceptions: Former Testimony
Former testimony is admissible if:
- declarant currently unavailable
- declarant’s prior testimony given under oath
- party against whom testimony is now offered was either a party in the previous action and had an opportunity to cross-examine, or a predecessor in interest* of a party in the previous action (in which there was an opportunity to cross)
- available in civil cases only
Statement Against Interest: Requirement
Admissible if:
- declarant currently unavailable
- statement was contrary to declarant’s pecuniary, proprietary, or penal interest when made, and
- a reasonable person would not have made the statement unless they believed it to be true
- criminal: must be a corroborating statement indicating trustworthiness of statement
Statement Against Interest: Distinguish from Party-Opponent Admissions
- party opponent admission: no need for statement to be against declarant’s interest
- statement against interest: no need for declarant to be a party to the case
Dying Declaration: Availability
Civil cases and homicide cases
Dying Declaration: Requirements
- declarant currently unavailable (does NOT need to be dead)
- statement made under belief of impending death
- statement made regarding the cause or circumstances surrounding the belief of impending death
Present Sense Impression
- describes or explains an event or condition, and
- is made while, or immediately after, the declarant perceives the condition or event described in the statement
- timing is key!
Excited Utterance
- relates to a startling or exciting event or condition, and
- was made while the declarant was under the stress or excitement of the event
- declarant must be under such excitement or stress that one would normally not have an opportunity to fabricate the statement
Hearsay Exception: Statement of Then-Existing State of Mind
Usually offered to show a declarant’s intent at the time the statement was made or as a circumstantial inference that declarant’s intent was likely carried out
- Can include emotion
Hearsay Exception: Statement of Then-Existing Condtition
Usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement
- Admissible regardless of whether made to medical personnel
Hearsay Exception: Statement of Physical Condition for Diagnosis or Treatment
Statement must be:
- made to medical personnel (anyone involved in treatment or diagnosis)
- pertinent to assisting in the diagnosis or treatment of a condition
- Related statements (such as an admission) about an injury-causing event are usually inadmissible
Business Records: Requirements
- a record or transaction recorded by a business or org (e.g. receipts, reports)
- made in the regular course of business
- made by someone with knowledge at or near the time of the matters described
- authenticated or certified in writing
Business Records: Trustworthiness
Court may exclude an otherwise qualifying record if circumstances indicate a lack of trustworthiness
