Hearsay Exceptions Flashcards
Opposing Part Statements
Any statement offered into evidence by opponent. No personal knowledge requirement or opinion rules.
Statement of another may be attributed vicariously to the party if made by:
- employee
+ matter within scope of employment
+ made during employment relationship
+ CA: negligent employee conduct basis for employer liability - authorized spokesperson (express/implied)
- co-conspirator
+in furtherance of conspiracy
MOST COMMON: Adoptive opposing party statement - non party statement, party indicates they believe it is true (adopt as their own)
Former Testimony (Unavailable Witness)
Earlier proceeding/deposition: evidence is against someone who had the opportunity and similar motive to examine
Earlier civil testimony: non-party had similar opportunity and motive to examine (CA); under FRE predesesor in interest (i.e., CEO of company X, now acquired by company Y)
Statement Against Interest (Unavailable Witness)
Knew/reasonably believed
+ at the time
+ statement against financial or ownership or penal interests (CA: or social interests - hatred/ridicule/social disgrace)
If criminal trial
+corroborating circumstances indicating trustworthiness
Dying Declarations (Unavailable Witness)
Believes they are dying
+ describes cause/circumstances leading to impending death
+ unavailable (CA: must have died)
+ civil cases and homocide criminal cases (CA: all criminal cases)
Forfeiture by Wrongdoing (Unavailable Witness)
Party’s deliberate wrongdoing
+ intended to make witness unavailable
Excited Utterance
Relates to startling event/condition
+ while under stress of excitement
WHILE is key. Look for an emotional state.
Business Records
Business record of events, conditions, opinions, or diagnosis
+ recorded by someone under duty to record/report that info.
+ recorded by someone with personal knowledge of that info.
+ at or near the time of the matter described
+ kept in the ordinary court of a business
Cannot be prepared in anticipation of litigation.
Assumes recorder is trutworthy unless opponent shows source/method lacks trustworthiness.
Past/Present Mental or Physical Condition (Unavailable Witness) (CA)
CA only: Admissible to prove condition if it is at issue (not for medical diagnosis, like federal rule).
Past/Present Mental or Physical Condition for Medical Diagnosis
Describing past or present
+ mental or physical condition
+ of declarant or another
+ made for / pertinent to medical diagnosis or treatment
Needn’t be to a doctor.
CA distinction: only if declarant is minor, describing act of child abuse/neglect
Then-Existing State of Mind
Describes then-existing
+ state of mind (physical or emotional feeling / an intention)
Cannot be a memory or mere belief.
Present Sense Impressions
Describes or explains event/condition
+ made while perceiving or immediately thereafter
CA distinction: only declarant describing declarant’s own conduct (not observer) WHILE engaging in it
Public Records
Activities of office / matters observed pursuant to legal duty to report / factual findings from legally authorized investigation
+ unless opponent shows untrustworthy
Not facts in police reports against criminal defendants
Statements in Learned Treatises, Periodicals or Pamphlets
Used by expert witness (in direct or cross exam)
+ reliable authority
then it may be read into evidence (not received as an exhibit)
Judgments of Previous Conviction (Federal Rule vs. CA Rule)
In criminal and civil trials (fed) vs in civil trial only (CA)
+ prosecution may offer (fed) vs. prosecution/defense may offer (CA)
+ judgment for prior felony conviction punishable by death or prison for > 1 year (fed) vs. misdemeanor or felony involving moral turpitude
+ of defendant only (fed) vs. of any witness (CA)
+ to prove any fact essential to judgment (fed) vs. to impeach a witness (CA)
Moral turpitude: most crimes, not mere assualt (unless intent to inflict harm to protected class)
Recorded Recollection
Witness doesn’t recall (after refreshed)
+ document created by them/under their direction/adopted by them
+ written/adopted at time when facts were fresh in mind
+ accurate when made
then it may be read into evidence (not received as an exhibit)
Residual Hearsay
More probative on the point than any other reasonably available evidence
+ sufficient guarantee of trustworthiness (not credibility of witness, but considering corroborating evidence/totality of the circumstances)
+ sufficiently advance written notice (with name) to adverse party (pre-trial)
Confrontation Clause
Criminal case
+ “testimonial” statement made in court or to further police investigation to produce evidence
+ declarant did not testify at trial and is now unavailable
+ defendant had no opportunity to cross examine declarant when statement was made
6th amendment of the consitution protects this right, even if admissible under exception to hearsay, must be excluded under “confrontation clause”
Statement Describing Infliction or Threat of Physical Abuse
CA Only: Describes/explains infliction of injury/threat
+ made at/near time
+ declarant unavailable
+ written/recorded and given to police OR given to trusted medical professional
Tip: May interact with confrontational clause
Statement Describing Infliction or Threat of Physical Abuse
CA Only: Describes/explains infliction of injury/threat
+ made at/near time
+ declarant unavailable
+ written/recorded and given to police OR given to trusted medical professional
Tip: May interact with confrontational clause
Deposition Testimony (CA)
Unavailable or lives more than 150 miles away
Testimony Offered in Prior Proceeding (CA)
Now offered today, against that party
