Hearsay exceptions

Question 1

Definition of unavailability

Answer 1

• W exercising privilege (actually invokes on stand)
• refusal to testify despite court order
• lack of memory (need not be total)
• death, mental illness, infirmity
• absent: cannot be located, outside subpoena power

unavailability CANNOT be procured by sponsoring party

Question 2

former testimony

Answer 2

• unavailable
• statement under oath
• offered against the same party
• —–criminal: same prosecutors office or same defendant
• —–civil: same party or party’s predecessor in interest
• opposing party had opportunity to develop former testimony (direct or cross)

Question 3

personal knowledge

Answer 3

W must have heard/read statement personally

Declarant must have made statement based on personal knowledge

Question 4

dying declarations

Answer 4

• unavailable (need not be dead
• homicide or civil case
• belief of impending death- look to statements and circumstantial evidence
• statement re: cause or circumstances of death

Question 5

declarations against interest

Answer 5

• unavailable
• against pecuniary, proprietary, penal interest such that reasonable person wouldnt make them untrue
• against interest at time of making
• criminal case: need corroborating interest of circumstances that indicate trustworthiness

Question 6

forfeiture by wrongdoing

Answer 6

• offered against party who caused declarant’s unavailability thru wrongdoing
• caused unavailability for purpose of preventing testimony

Question 7

statements of pedigree

Answer 7

TYPE 1

• unavailable
• statement re: declarant’s personal/family history

TYPE 2

• declarant unavailable
• statement re: someone else’s personal/family history
• declarant closely related to the other person or so intimately associated w/ their family so as to have accurate info

Question 8

present sense impression

Answer 8

• statement describes or explains event/condition

- made during even or immediately after (no time for reflection)

Question 9

excited utterance

Answer 9

• exclamation point
• startling event
• made while declarant still excited
• re: startling event

bootstrapping is allowed

Question 10

state of mind or physical condition

Answer 10

ADMISSIBLE FOR TRUTH: then existing state of mind including:

• state of mind to do future act (Hillmon)
• state of mind to do future act w/ third party (Pheaster) to show declarant acted in conformity but NOT what 3rd party did
• motive
• plan
• emotional condition
• sensory condition
• physical condition (pain)

NOT ADMISSIBLE FOR TRUTH: statement of memory or belief (Shephard)

Question 11

statement for medical diagnosis/treatment

Answer 11

• for purpose of medical diagnosis/treatment
• ok if for purpose of litigation
• doctor, nurse, etc., anyone else who overhears
• pertinent to medical diagnosis/treatment
• applies to 3rd parties getting treatment for others (i.e. parents) if personal knowledge

Question 12

judgement of previous conviction

Answer 12

• offered to prove fact essential to prior judgement
• final judgment of guilty (not nolo contendere; doesn’t matter if appeal pending)
• crime punishable by 1yr+ imprisonment
• NOT admissible in criminal trial (unless for impeachment)

Question 13

treatises

Answer 13

• foundation laid as authoritative text thru expert testimony or judicial notice
• read to jury

Question 14

pedigree, family history, land boundaries

Answer 14

• Statement re: personal/family history contained in family record (bible, genealogy, portrait inscription, etc.)
• Reputation among a persons family or associates or community re: persons birth, adoption, ancestry, etc
• Judgement to prove matter of personal/family/history/boundaries if matter was essential to judgment + could be proved by evidence of reputation
• Reputation in a community re: land boundaries

Question 15

ancient documents

Answer 15

• after 1/1/1998

- in condition where there is no suspicion re: authenticity

Question 16

past recollection recorded

Answer 16

• W unable to remember enough after refreshing recollection (need not be total memory loss)
• W made or adopted memo/record
• W had fresh memory when memo/record was made/adopted
• memo/record was accurate when made
• W had firsthand knowledge of matters in document

read to jury

Question 17

business records

Answer 17

or absence of such

• any business/institution (even illegal ones)
• record made at/near time of event OR by/from info transmitted by a person w/ knowledge
• kept in ordinary course of business AND w/in ordinary course of business to keep such records (all actors must have DUTY to report/record such info)
• need either:
  (1) custodian or other qualified W w/ sufficient knowledge of record keeping process who establishing record was based on firsthand knowledge or by someone w/ duty. they dont need to know about that particular record
  (2) written cert by custodian
• in any form
• can contain opinions/diagnosis so long as in regular course of business to do so
• not untrustworthy (i.e. purely in anticipation of litigation)

Question 18

public records

Answer 18

-trustworthy: consider timeliness of investigation, skills/experience of official, whether hearing was held, if in anticipation of litigation

• fall w/in 1 of 3 categories
  (1) activities of the agency
  (2) matters observed under duty to report
  (3) factual finding from investigation pursuant to lawful authority (ONLY civil cases)

-opinions/conclusions ok if based on factual investigation and trustworthy

If law enforcement records…

• ministerial law enforcement records ok
• no observations by law enforcement in criminal case

Question 19

hearsay w/in hearsay

Answer 19

• not excluded if each part of combined statements falls w/in exception
• records w/in records need separate custodians

Question 20

confrontation clause

Answer 20

Does not apply to:

• civil cases
• evidence offered against government
• when out of court declarant is available to testify

Testimonial hearsay statements are inadmissible UNLESS

• W is available OR
• W is unavailable and there has been prior opportunity to cross examine

Testimonial = primary purpose to establish/prove past events potentially relevant to later criminal prosecution

Question 21

refreshing recollection

Answer 21

• cannot refresh recollection b/c W answered incorrectly…they must claim to have lost memory
• any item allowed
• not read to jury or admitted into evidence
• opposing party can review, cross-examine re: it, or introduce to jury (but doesnt go to truth)

Question 22

rule of completeness

Answer 22

• comes up w/ refreshing recollection

- once document has been introduced by opposing party, court may order other portions introduced if helps w/ context

Question 23

Hearsay definition

Answer 23

prior statement (intended as an assertion) made by an out of court declarant offered for the truth of the matter asserted

Question 24

When statements are NOT offered for truth of the matter asserted (not hearsay)

Answer 24

• Mental state of the party (were actions willful, malicious, intent to murder, etc.)
• Effect on the hearer
• Knowledge or proof of notice
• State of the mind of declarant

Question 25

Non-hearsay (exemptions to hearsay)

Answer 25

``` Legally operative facts Prior inconsistent statement Prior consistent statement Prior identifications Party admissions ```

Question 26

legally operative facts

Answer 26

NON HEARSAY EXEMPTION words have independent legal significance ex: offer/acceptance; libel/slander; impersonating public official; transfer of gift; creating trust; transfer money/words of solicitation; false alarm; marriage vows

Question 27

prior inconsistent statements

Answer 27

non hearsay exemption Can be used for substance if... 1) declarant is testifying at trial and subject to cross 2) prior statement is inconsistent - ----decided by judge - ----feigning lack of memory -> inconsistent - ----actual memory loss -> not inconsistent 3) prior statement given under oath at prior proceeding - ----trial, hearing, deposition, but NOT interrogation otherwise can be used for impeachment

Question 28

prior consistent statements

Answer 28

non hearsay exemption Can be used for substance if... 1) declarant is testifying at trial and subject to cross 2) statement is consistent - ----decided by judge 3) statement is offered to: - ----Rebut express or implied charge of recent fabrication, improper influence, improper motive (statement must be before motive to fabricate arose) OR - ----Rehabilitate declarant's credibility upon attack

Question 29

prior identification

Answer 29

non hearsay exemption Requirements 1) declarant testifying at trial and subject to cross - ------declarant doesnt need to testify to ID, just someone that was there 2) prior statement was an ID- in court ID, lineup, accidental sighting, sketch, etc. - ------does NOT need to be under oath - ------no time limit 3) ID made after perceiving the person

Question 30

party admissions generally

Answer 30

non hearsay exemption 1) declarant need not testify 2) can only be introduced against party who made statement UNLESS co-party is so closely associated that they can be deemed principals or accomplices Types - express party statements - adoptive admissions - agent statements - statements in furtherance of a conspiracy

Question 31

express party statement

Answer 31

non hearsay exemption - offered against opposing party - made by party: can be oral, written, silence criminal confession = express party statement

Question 32

adoptive admissions

Answer 32

non hearsay exemption - offered against opposing party - party appeared to adopt/accept statement as true

Question 33

agent statements

Answer 33

non hearsay exemption - offered against opposing party - declarant was agent at the time of statement - authorized to make the statement OR w/in subject/scope of agency/employment

Question 34

statements in furtherance of conspiracy

Answer 34

non hearsay exemption - statement made during course of the conspiracy (doesnt matter if party joined conspiracy late) - statement made by party's co-conspirator - statement made in furtherance of conspiracy (ex: recruitment, boasting to gain confidence, etc.)