Hearsay exceptions Flashcards
Definition of unavailability
- 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
former testimony
- 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)
personal knowledge
W must have heard/read statement personally
Declarant must have made statement based on personal knowledge
dying declarations
- 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
declarations against interest
- 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
forfeiture by wrongdoing
- offered against party who caused declarant’s unavailability thru wrongdoing
- caused unavailability for purpose of preventing testimony
statements of pedigree
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
present sense impression
- statement describes or explains event/condition
- made during even or immediately after (no time for reflection)
excited utterance
- exclamation point
- startling event
- made while declarant still excited
- re: startling event
bootstrapping is allowed
state of mind or physical condition
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)
statement for medical diagnosis/treatment
- 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
judgement of previous conviction
- 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)
treatises
- foundation laid as authoritative text thru expert testimony or judicial notice
- read to jury
pedigree, family history, land boundaries
- 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
ancient documents
- after 1/1/1998
- in condition where there is no suspicion re: authenticity
past recollection recorded
- 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
business records
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)
public records
-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
hearsay w/in hearsay
- not excluded if each part of combined statements falls w/in exception
- records w/in records need separate custodians
confrontation clause
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
refreshing recollection
- 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)
rule of completeness
- comes up w/ refreshing recollection
- once document has been introduced by opposing party, court may order other portions introduced if helps w/ context
Hearsay definition
prior statement (intended as an assertion) made by an out of court declarant offered for the truth of the matter asserted
When statements are NOT offered for truth of the matter asserted (not hearsay)
- 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
Non-hearsay (exemptions to hearsay)
Legally operative facts Prior inconsistent statement Prior consistent statement Prior identifications Party admissions
legally operative facts
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
prior inconsistent statements
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
prior consistent statements
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
prior identification
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
party admissions generally
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
express party statement
non hearsay exemption
- offered against opposing party
- made by party: can be oral, written, silence
criminal confession = express party statement
adoptive admissions
non hearsay exemption
- offered against opposing party
- party appeared to adopt/accept statement as true
agent statements
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
statements in furtherance of conspiracy
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.)
