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Evidence > Hearsay Exceptions > Flashcards

Hearsay Exceptions Flashcards

0
Q

Hearsay Exceptions -
truth producing circumstances

803(1-4) LIST

A
  1. Present Sense Impressions
  2. Excited Utterances
  3. Then Existing Mental, Emotional, or Physical Condition
  4. Made for Purpose of Medical Diagnosis or Treatment
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1
Q

Hearsay Exceptions Roadmap for Rule 803

A

803(1-4) Excerptions where statement is made under circumstances where they are likely to be true.
803(5-17) Records Made under Circumstances where they are likely to be reliable
803(18) Learned Treatise - all agree on authority
803(19-21) Reputation evidence - generally known in the community
803(22-23) Judgements

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2
Q

Present Sense Impression Defined

A

made by declarant
describing an event or condition
made while or immediately after perceiving it

declarant may available, or not, or even known.

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3
Q

Characteristics of Present Sense Impression (5)

A
  1. Spontaneous - no or little lapse of time
  2. Personal Knowledge
  3. Declarant need not be known or available
  4. Unexcited Utterance
  5. May be Oral or in writing
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4
Q

Excited Utterance Rule 803(2)

A

relates to a startling event
made under the stress or excitement
caused by event

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5
Q

Characteristics of an Excited Utterance

A

Startling Event
Personal Knowledge
declarant is still under stress of event - even if delayed

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6
Q

Then Existing Mental, Physical, or Emotional Condition Rule 803(3)

A

Statement of then existing mental, physical, or emotional condition

admissible to show Declarants state of mind.

prove intent, plan, motive, design, mental feeling, pain, or bodily health.

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7
Q

Characteristics of Then Existing Mental State Exception

A

Need not be made to medical person.

Prospective Statements of Intent - NOT retrospective.

Does not include past sensations or statements of belief.

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8
Q

Will Exception for Then Existing Emotional State Exception

A

803(3) exception generally does not cover statements of memory or belief except such statements made by a testator are admissible.

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9
Q

Statements for Purpose of Medical Diagnosis - Rule 803(4)

A

Includes descriptions of medical history, past symptoms, pain, sensation, or cause.

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10
Q

Characteristics of Statement Made for Medical Diagnosis Exception

A

Statement made to any medical personnel or family member

Must be useful for diagnosis or treatment

Statements admitting or assessing fault are not admitted.

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11
Q

Past Recollection Recorded - Rule 803(5)

A

witness has present memory problem

lacks current memory to testify fully

attempt to refresh recollection under rule 612 failed.

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12
Q

Procedural Requirements for Rule 803(5) Past Recollections Recorded

A
  1. Writing/recording is read into evidence.
  2. not received as an exhibit unless offered by adverse party.
  3. made while the matter was fresh in the witness’s mind.
  4. Authentication: writing accurately reflects prior knowledge - that the witness made or adopted the statement.
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13
Q

Rights of the Adverse Party for 803(5) Past Recollections Recorded

A
  1. Inspect the writing
  2. Cross-examine with it
  3. Show it to the jury for comparison
  4. Introduce relevant parts into evidence as substantive evidence. Not merely to impeach.
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14
Q

Cooperative Reports

A

Declarant makes a statement to a 2nd party who makes the statement to a 3rd party.

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15
Q

Records of Regularly Conducted Activity - Rule 803(6)

Definition

A 
report of acts or events
made at the time
by person with knowledge
in the course of regularly conducted activity
was regular practice to keep a record.

Shown by Affidavit, testimony of custodian, or other qualified witness.

information does not lack trustworthiness.

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16
Q

Requirements of Rule 803(6) Record of Regularly Conducted Activity

A
  1. Made in the regular course of business
  2. custodian, affidavit, or other qualified witness establishes foundation.
  3. No personal knowledge of contents required.
  4. Trustworthiness
  5. Records prepared in anticipation of litigation are NOT admissible.
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17
Q

How to Admit Police Reports

A

Police Reports - Public Records Exception - Rule 803(8)

prepared in anticipation of litigation

not 803(6) Records of Regularly Conducted Business Activity

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18
Q 
Authentication of Records of Regularly Conducted Activity
Rule 803(6)
A

Made by person with knowledge

authenticated by a custodian, other qualified witness, by stipulation, or affidavit

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19
Q

Absence of Entry in Records - Rule 803(7) and 803(10)

A

Evidence a matter is NOT included in records
Kept in accordance with the business or public records rules
may be admitted to prove the NON-OCCURRENCE of the event or the NON-EXISTENCE of the matter.

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20
Q 
Foundation Requirements for Absence of Entry in Records Exception
Rule 803(7), and 803(10)
A

Witness testifies he is familiar with records
Records diligently searched
no record was found.

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21
Q

Public Records and Reports - Rule 803(8)

A

proponent need not show the record was made or near the time.

prepared pursuant to a duty imposed by law

Include records, reports, statements, data compilations, in any form of public offices or agencies setting forth activities of a public office or agency.

22
Q

Self Authenticating Public records

A

Certified Copies of Public Records

Public records exception does not include matters observed by police in criminal matters.
Are inadmissible against the accused unless offered by the accused. Then it can be admitted.

23
Q

Records of Vital Statistics - Rule 803(9)

A

Records of births, deaths, or marriages

admissible if the report made to a public office pursuant to a duty of law.

24
Q

Rule 803(11) and 803(12)

A

Records of religious organizations 803(11)

Marriage, baptismal, and Similar certificates 803(12)

25
Q

Family Records - Rule 803(13)

A

Statements concerning family history contained in
Bibles
genealogy charts
inscriptions on family portraits
engravings on tombstones, urns, and crypts
ie. brought to prove decedents date of birth

26
Q

Rule 803(14)

A

Records of Documents Affecting an Interest in Property

27
Q

Statements in Ancient Documents - Rule 803(16)

A

documents in existence 20 years or
authenticity is established.

Authenticity - find document in a place where such documents are found.

28
Q

Market Reports and Commercial Publications - Rule 803(17)

A

Includes statements of objective facts, not opinions

Includes phone books, credit reports, KBB guide, Yellow Pages, Wall Street Journal.

29
Q

Learned Treatises - Rule 803(18) Expert Exception

A

Includes statements in text books, journals, periodicals, horn books, etc.

Authoritativeness may be established by:

  1. Judicial notice
  2. Expert Testimony
  3. Stipulation

Evidence is often offered to impeach or contradict an expert witness on cross examination. Treatise must be read aloud to the jury.

30
Q

Subject Area of Learned Treatises

A 
MASH
Medicine
Art
Science
History
31
Q

Rule 803(19) Reputation among Associates or family members concerning personal or family history

A

may testify as to name, date of birth, without having to produce a birth certificate.

32
Q

FRE 803(20)

A

Reputation concerning Boundaries or General History

33
Q

FRE 803(21)

A

Reputation as to character

Also covered in FRE 405(a) and 608(a)

34
Q

Judgement of Previous Conviction - Rule 803(22)

A

Final judgements of previous convictions for felonies are admissible.

Requires certified copy of the final judgement.

Judgements cannot be used except as to the accused,

35
Q

FRE 803(23)

A

Judgements as to Personal, Family, or General History or Boundaries

Final judgements if essential to a particular case are admissible.

36
Q

Rule 804 - Declarant Unavailable
What constitutes Unavailability?
PRISM

A

Privilege - statutory, common law, or constitutional
Refusal - despite court order
Incapacity - death,physical, or mental illness
Subpoena - good faith effort to obtain witness by subpoena
Memory - lacks present memory to testify

37
Q 
Five Areas Not Excluded by Hearsay Rule Despite Absence of Witness
Rule 804(b)(1-5)
A

(1) Former Testimony
(2) Dying Declaration
(3) Statements against Interest
(4) Statement of Personal or Family History
(5) Forfeiture by Wrongdoing

38
Q

Rule 804(b)(1) Former Testimony Exception

A
  1. statement made under oath
  2. involves same subject matter - not necessary same coa*
  3. Party had opportunity and motive to cross examine and develop testimony on direct, cross examination, or redirect, or a functional equivalent.
39
Q

Examples of Former Testimony Exception and Limits

A
  • Deposition of a witness in a civil case may be admissible in a criminal case arising out of the earlier civil case.
  • Preliminary hearing testimony against accused may be admitted as former testimony if witness is unavailable because motive test is satisfied.
  • Grand Jury testimony is not allowed because cross examination is not allowed.
40
Q

Rule 804(b)(2) Dying Declaration

A

Judge determines declarant subjective belief death was imminent.

Under federal rules death not required.

Under common law - you must die.

MBE/Federal Rules - Admissible only in a homicide or civil case for cause of death.

41
Q

Rule 804(b)(3) Statements against interest

A

Declarant Unavailable
made by a non-party
Statement against Pecuniary, Penal, or Proprietary Interest

Statement against penal interest requires corroboration to insure trustworthiness.

42
Q

Rule 804(b)(4) Statement of Personal or Family History

A

Pedigree Exception

Statements concerning the declarants own relationship by blood, adoption, marriage or other similar fact of personal or family history

43
Q

Rule 804(b)(5) Forfeiture by Wrongdoing

A

Statement offered against a party who intended to procure the unavailability of a witness.

44
Q

Giles v California - Forfeiture by Wrongdoing

A

Statements of victim to police officer did not qualify as FBW
could not be shown that D procured her absence from the proceeding.

45
Q

6th Amendment Confrontation Clause

A

criminal cases - declarant unavailable,

“Testimonial” hearsay statements inadmissible unless D has an opportunity to cross examine the declarant.

distinguish between testimonial hearsay and non-testimonial hearsay

46
Q

What Testimonial Evidence Includes

A

Public Records used against defendant
Statements made during police interrogation
Collecting information from an informant.

47
Q

Non-testimonial Evidence

A

the PRIMARY purpose of the statement is
to AID POLICE during an
ONGOING emergency.

48
Q

Cure for Testimonial evidence

A

Defendant must have an opportunity to cross examine declarant, absent forfeiture or dying declaration, otherwise the testimony is inadmissible.

49
Q

When the Criminal Defendant Forfeits Confrontation Clause rights

A

causes the unavailability of the declarant either by forfeiture by wrongdoing or dying declaration with the intent to prevent declarant from testifying at trial.

50
Q

Rule 805 - Multiple Hearsay

A

2 or more out of court statements
Both the primary statement and the included statement must have a separate basis for admissibility.

Otherwise statement is inadmissible

51
Q

Rule 806 - Attacking and Supporting Credibility of Declarant

A

Impeachment of a hearsay declarant follows the same rules as a declarant on the stand.

Hearsay declarants credibility may be attacked and declarant impeached through prior convictions, PINS, etc.

52
Q

Rule 807 - Residual Exception

A
  1. Statement is more probative on point than any other evidence.
  2. must give notice
  3. concerns a material issue
  4. judge determines in the interest of justice, statement is admitted.
53
Q

Categories to the Hearsay Exception requiring Declarant UNAVAILABLE

A
  1. Former Testimony
  2. Dying Declarations
  3. Statements against interest
  4. Personal or Family History

Evidence (10 decks)

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