Hearsay Exceptions Flashcards
Declarant is Unavailable
- death or serious illness
- privilege
- lack of memory
- refusal to testify despite a court order
- absence from trial or hearing despite attempt to procure attendance or testimony
Declarant Unavailable: Former Testimony
Opportunity => party against whom testimony is offered must have been a party in former case (cross-examination)
Similar motive to develop the former testimony
Declarant Unavailable: Statement Against Interest
If statement was so contrary to their interest when made that a reasonable person would have said it only if they believed it to be true against interest at the moment it was made
- financial interest
- proprietary interest
- criminal interest
- NOT social interest
statement must be corroborated in criminal cases
- not if it’s against financial interests
- civil cases
Declarant Unavailable: Dying Declaration
Statement made while declarant believed death was imminent concerning cause or circumstances offered in homicide or any civil case
Person doesn’t have to actually die, but they have to be UNAVAILABLE
Excited Utterances
- Statement that relates to startling event
- exclamation
- crying or shaking - that was made while under the stress of excitement of the event
- continuance excitement after the event - in which the stress of the event temporarily suspends the declarant’s ability to fabricate
Can be similar to dying declaration if person does NOT die and is AVAILABLE
Present Sense Impression
Statement that the declarant made in how they perceived an event
- Describes or explains event while its happening or immediately after
Reliability is based on lack of time to come up with a different story
Present State of Mind (present mental, emotional, or physical condition)
- motives
- intent
- i’m going to get wasted tonight
- i’m going for a run in the party tomorrow morning - plans
- emotional conditions and physical symptoms
- i’m so sad
-i’m so stressed out right now - declaration of an intent to do a future act - admitted as circumstantial evidence tending to show that the intent was carried out
CANNOT be retrospective => must be present
Statements Made for Medical Diagnosis
Declarant must be seeking medical diagnosis or treatment
1. present and past physical condition
2. cause of condition
3. another person’s condition
4. must be reasonably pertinent to diagnosis or treatment
Business Records (records of a regularly conducted activity)
- regular activity
- regular practice
- at or near time of event or condition of the event being recorded
- information within personal knowledge of employees
- people who have a business duty to report must be the source of record - can be one employee who heard it from another employee
- must have observed it themselves - must be authenticated
- live testimony - custodian or someone who keeps the records
- written certification - custodian of record or qualified persons attesting on paper that all elements are met
Absence of a business record is admissible to prove something did not occur if it was a regular business practice to keep a record if it had occurred
Statements from Outsiders (no business duty to report) - not an exception
Hearsay within hearsay
Inner hearsay - outsider told employee what happened but didn’t have a duty
Public Records
- records showing activities of office or agency
- matters observed pursuant to legal duty
- findings of fact or opinion from authorized investigation
Can be admissible to show lack of trustworthiness
Police reports are NOT admissible against criminal defendant even if within public records or business records exception
Recorded Recollection (past recollection recorded)
- previously known
- unable to remember the facts
- made or adopted by the witness
- made when fresh in witness’s mind
- must have been accurate when made
Live witness who cannot remember the facts at trial but used to know the information
YOU CAN REFRESH A WITNESS’S RECOLLECTION WITH A HAM SANDWICH
Learned Treatises, Periodicals, and Pamphlets
Only be used in the conjunction with expert testimony
- called to an expert’s attention on cross
- relied upon by the expert on direct
Reliable authority
1. testifying expert
2. a different expert
3. judge
Can’t hand over treatise, but can read parts of it into evidence
