HEARSAY EXCEPTIONS Flashcards
HEARSAY EXCEPTIONS
Hearsay EXCEPTIONS are deemed hearsay, but still admissible.
Declarant UNAVAILABILITY Required:
1) Former Testimony Exception
2) Statements Against Interest
3) Dying Declarations
4) Statements of Personal or Family History
5) Statements Offered Against Party Procuring Declarant’s Unavailability
Declarant Unavailability Immaterial:
1) Present State of Mind
2) Excited Utterance
3) Present Sense Impression
4) Physical Condition (for medical diagnosis or treatment)
5) Past Recollection Recorded
6) Business Records
7) Public Records or Reports
8) Judgments and Prior Convictions
9) Ancient Documents
10) Documents Affecting Property Interests
11) Learned Treatises
12) Family Records
13) Market Reports
Exceptions Requiring Declarant UNAVAILABILITY
“Unavailability” refers to the declarant’s testimony. A declarant is unavailable if:
1) Privilege–Exempt from testifying due to a privilege
2) Death or Physical/Mental Sickness
3) Refusal to Testify Despite a Court Order
4) Lack of Memory
5) Absent–Beyond reach of the court’s subpoena power
A declarant must be unavailable for these exceptions to apply:
1) Former Testimony
2) Statements Against Interest
3) Dying Declarations
4) Statements of Personal or Family History
5) Statements Offered Against Party Procuring Declarant’s Unavailability
Former Testimony
Testimony given by a person in an earlier proceeding or deposition may be admissible if:
1) The declarant is unavailable
2) Declarant’s prior testimony was given under oath; AND
3) Party against whom testimony is now offered was either:
a. A party in the the previous action and had an
opportunity to cross-examine declarant
» Motive for cross-examining declarant in former
hearing must be similar to the current motive
b. A predecessor in interest of a party in the previous
action, in which there was an opportunity to cross-
examine declarant and a similar motive for doing so
» Applicable in CIVIL actions only
» Predecessor in interest is one who has a close
privity-type relationship with the party in the earlier
proceeding
Statements Against Interest
A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interests of the declarant. Requires that:
1) The declarant is currently unavailable
2) Statement was contrary to declarant’s pecuniary, propriety, or penal interest when made; AND
3) A reasonable person would not have made the statement unless he believed it to be true
Note: In CRIMINAL cases, there MUST be corroborating circumstances indicating the trustworthiness of the statement
Dying Declarations
A hearsay statement is admissible in CIVIL cases or HOMICIDE cases if the declarant made the statement (1) under the belief of impending death and (2) the statement describes the cause or circumstances of the impending death
Requires:
1) Declarant is currently unavailable
2) The out-of-court statement was made under the belief of impending death
3) The statement was made regarding cause or circumstances surrounding the belief of impending death
**Death of declarant NOT required. Declarant must only have believed he was dying when the statement was made
Present Sense Impression
A hearsay statement is admissible if it (1) describes or explains an event or condition, and (2) is made contemporaneously with the event or immediately thereafter.
TIMING IS KEY
Excited Utterance
hearsay statement is admissible if it (1) relates to a startling or exciting event or condition, and (2) was made while the declarant was under the stress or excitement of the event
DECLARANT’S EMOTIONAL DISTRESS IS KEY: Declarant must be under such excitement or stress that one would not normally have an opportunity to fabricate the statement
Statement Concerning Declarant’s Then-Existing State of Mind or Physical Condition (Circumstantial SOM)
Hearsay statements are admissible if they concern a declarant’s state of mind, emotion, sensation, or physical condition existing at the time the statement was made.
A statement of then-existing STATE OF MIND is usually offered to show a declarant’s intent at the same time the statement was made or as circumstantial evidence than an event was carried out.
A statement of then-existing CONDITION is usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement.
Note: Statements of memory or belief are INADMISSIBLE because they do not reflect on a then-existing condition
Statements of INTENT may be admissible as circumstantial evidence the an act was committed at a later time.
Statement of Physical Condition for Diagnosis or Treatment
Hearsay statements made to medical personnel for the purpose of diagnosis or treatment may be admissible. The statement must (1) be made to a medical personnel (anyone involved in treatment or diagnosis, not necessarily a doctor), and (2) the statement must be pertinent to assisting in the diagnosis or treatment of condition.
*Includes statements of past conditions if statement is made for the purpose of diagnosis or treatment.
Note: Related statements about an injury-causing event are usually INADMISSIBLE (e.g. statement by declarant to emergency room doctor that she was shot will be admissible, but the identity of the short will not, as it is not pertinent to treatment)
Business Records Exception
Hearsay statements in the form of business records are admissible if they are:
(1) A record or transaction made or record by a business (e.g. transactions, reports, patient records)
(2) Made in the regular course of business
(3) Made at or near the time of the matters described
(4) Mad bey an employee with personal knowledge of the facts recorded; AND
(5) Authenticated or certified in writing
The court may exclude an otherwise qualifying business record if the source of the information or other circumstances indicate a lack of trustworthiness.
Police Reports: In CRIMINAL cases, police reports or other criminal investigative reports are INADMISSIBLE as business records or public records
Hearsay within Hearsay: Business records often involve multiple layers of hearsay. Every level of hearsay must fall into some exception or exemption to be admissible.
Public Records Exception
Public office or agency records are admissible if the record:
(1) Describes the activities of a public office or agency
(2) Describes either:
a. Matters observed pursuant to a duty imposed by law,
OR
b. Fatual findings resulting from an investigation made
pursuant to authority granted by law
(3) AND Are made within the scope of the duty of the public employee-author and made at or near the time of the event
The court may exclude an otherwise qualifying business record if the source of the information or other circumstances indicate a lack of trustworthiness.
In CRIMINAL cases, police records or other criminal investigative reports are INADMISSIBLE.
Judgments & Prior Convictions
Certified copes of judgments are admissible in both civil and criminal cases to prove any fact essential to the judgment.
Prior convictions are INADMISSIBLE in criminal cases against non-defendant’s unless used for impeachment
Learned Treatises
Learned treatises arises with expert witness testimony only. Learned treatises are accepted authority in a given field. Experts can rely on learned treatises on direct exam or can be impeached with information from treatises on cross-exam.
If admissible, statements from learned treatises may be read into evidence ONLY.
Family Records
Statements of fact found in family keepsakes, e.g. jewelry engravings, genealogies are admissible.
Ancient Documents
Ancient documents are admissible hearsay if:
(1) They are 20 or more years old
(2) Does not preset any irregularities on its face
(3) AND Found in a place of natural custody
