Hearsay Exceptions Flashcards
What are the five exceptions to the hearsay rule that apply only if the declarant is unavailable?
Former testimony
Dying declaration
Statement against interest
Statement of personal or family history
Statement offered against a party who wrongfully caused the declarant’s unavailability
When is an unavailable declarant not actually considered unavailable?
A declarant is not deemed unavailable if the unavailability is DUE to the procurement OR wrongdoing of the proponent of the statement TO PREVENT the declarant from testifying at or attending the trial.
When is an unavailable declarant’s former testimony admissible?
Testimony that was given as a witness at a trial, hearing, or lawful deposition is not excluded as hearsay IF
-> the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination.
Is an affidavit admissible hearsay under the declarant’s former testimony exception?
No, because an affidavit does not provide a party with the ability to cross-examine the declarant.
When does a statement from an unavailable declarant qualify as a “dying declaration”?
Declarant believes her death is imminent and statement pertains to cause/circumstances of her death (need not actually die).
Applies only in homicide prosecutions and ciivl cases.
When is an unavailable declarant’s statement against interest admissible?
Statement was against declarant’s proprietary/pecuniary interest at time made and reasonable person would not have made statement unless it was true.
What must an unavailable declarant’s statement of personal/family history be about in order for ti to be admissible?
Own information regarding unavailable declarant’s birth, adoption, marriage, divorce, or other similar fact of personal or family history.
AND
Similar information about another when unavailable declarant was related or closely linked to that person.
When is an unavailable declarant’s statement against party that caused declarant’s unavailability admissible?
Statement offered against party that wrongfully caused declarant’s unavailability Is not excluded.
What are nine types of statements made by an available declarant witness not considered hearsay?
And why are they not considered hearsay?
They are not considered hearsay because it is believed the statements were inherently true when they were made.
They are
-> present sense impression
-> excited utterance
-> statement of mental, emotional, or physical condition
-> statement made for medical diagnosis or treatment
-> recorded recollection
-> business records
-> public records
-> learned treaties
-> previous convictions
What is a statement regarding present sense impressions?
Statement explaining or describing event/condition made while or immediately after declarant perceived it.
What is a statement regarding excited utterance?
Statement about startling event/condition while declarant is under stress of excitement that it caused.
What is a statement regarding a statement of mental, emotion, or physical condition?
Statement of then-existing state of mind (present intent, motive or plan) or emotional, sensory or physical condition.
What is a statement regarding statement made for medical diagnosis/treatment?
Describing medical history or past/present symptoms is not excluded as hearsay if it is made for purpose of medical diagnosis or treatment.
Can be made to physicians, other medical personnel or EVEN family members.
Need not necessarily be made by the patient.
What is a statement regarding recorded recollection (witness no longer able to testify)?
Record not excluded if on a matter that witness once knew, made when matter was fresh in witness’s memory, accurately reflects witness’s knowledge, AND witness states that he cannot recall even after consulting record on the stand.
What is a statement regarding business records (extends to any organization, including nonprofit)?
Record must be kept in course of regularly conducted business activity, making of record was regular practice, and record was made at or near the time by someone with knowledge.
What is a statement regarding public records?
Statement of public office/agency that sets out
-> activities of the public office or agency,
-> observation of person under duty to report (but not police in a criminal case),
OR
-> factual findings of a legal investigator.
Does the statement regarding public records also apply to the absence of public records?
Under the hearsay exception for absent public records, testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind.
What is a statement regarding learned treatises?
Statements in a learned treatise, periodical, or pamphlet are excepted from the hearsay rule and are admissible for their truth (i.e., substantively) when:
-> the publication is established as a reliable authority by a party’s expert or judicial notice
AND
-> the statements are called to the attention of or relied on by an expert witness during examination.
What is a statement regarding judgment of previous conviction?
Final judgment must be entered after trial or guilty plea
Conviction was for crime punishable by death or imprisonment for more than 1 year
Evidence offered to prove any fact essential to sustain judgment
This exception does not include judgment of acquittal as that is simply a form of hearsay in which the prosecutor failed to meet its burden of proof.
What is the residual exception for hearsay statements to be admissible?
It is a catchall exception for statement not otherwise covered by the FRE.
Statement must be
-> supported by sufficient guarantee of trustworthiness
AND
-> more probative than any other evidence that the proponent can obtain through reasonable efforts
