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Evidence > Hearsay exceptions > Flashcards

Hearsay exceptions Flashcards

1
Q

Definition of unavailability

A
  • 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

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2
Q

former testimony

A
  • 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)
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3
Q

personal knowledge

A

W must have heard/read statement personally

Declarant must have made statement based on personal knowledge

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4
Q

dying declarations

A
  • 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
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5
Q

declarations against interest

A
  • 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
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6
Q

forfeiture by wrongdoing

A
  • offered against party who caused declarant’s unavailability thru wrongdoing
  • caused unavailability for purpose of preventing testimony
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7
Q

statements of pedigree

A

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
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8
Q

present sense impression

A
  • statement describes or explains event/condition

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

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9
Q

excited utterance

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

bootstrapping is allowed

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10
Q

state of mind or physical condition

A

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)

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11
Q

statement for medical diagnosis/treatment

A
  • 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
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12
Q

judgement of previous conviction

A
  • 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)
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13
Q

treatises

A
  • foundation laid as authoritative text thru expert testimony or judicial notice
  • read to jury
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14
Q

pedigree, family history, land boundaries

A
  • 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
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15
Q

ancient documents

A
  • after 1/1/1998

- in condition where there is no suspicion re: authenticity

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16
Q

past recollection recorded

A
  • 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

17
Q

business records

A

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)
18
Q

public records

A

-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
19
Q

hearsay w/in hearsay

A
  • not excluded if each part of combined statements falls w/in exception
  • records w/in records need separate custodians
20
Q

confrontation clause

A

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

21
Q

refreshing recollection

A
  • 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)
22
Q

rule of completeness

A
  • comes up w/ refreshing recollection

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

23
Q

Hearsay definition

A

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

24
Q

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

A
  • 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
25
Q

Non-hearsay (exemptions to hearsay)

A 
Legally operative facts
Prior inconsistent statement
Prior consistent statement
Prior identifications
Party admissions
26
Q

legally operative facts

A

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

27
Q

prior inconsistent statements

A

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

28
Q

prior consistent statements

A

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

29
Q

prior identification

A

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

30
Q

party admissions generally

A

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
31
Q

express party statement

A

non hearsay exemption

  • offered against opposing party
  • made by party: can be oral, written, silence

criminal confession = express party statement

32
Q

adoptive admissions

A

non hearsay exemption

  • offered against opposing party
  • party appeared to adopt/accept statement as true
33
Q

agent statements

A

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
34
Q

statements in furtherance of conspiracy

A

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.)

Evidence (12 decks)

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