Hearsay Exceptions-803,804,807 Flashcards
True or False: you must do an analysis of 801(d) before moving on to the exceptions
True. If a statement doesn’t meet the requirements of 801(a)-(c), or meets the requirements of 801(d), it is not hearsay and so doesn’t need an exception
Strong exceptions are in —
Weak exceptions are in —
What is the difference
803
804
803 exceptions are always available, whereas the 804 exceptions can only be used if the witness is unavailable
803(1) and the applicable rule
Present sense impression
Statement describing or explaining an event or condition, made while or immediately after the Declarant perceived it. Cannot be memory of impression or an “I think”
803(2) and its rule
Exited utterance-statement made in relation to startling event or condition and was made while under the stress or excitement it caused
What is the difference between present sense impression and exited utterance
Temporal. Present sense impression has an immediate requirement
803(3) and its rule
Then existing mental, emotional, or physical condition
State of mind (motive, intent, or plan) or emotional or physical condition not including a statement of memory or belief
803(4)
Statement for purpose of medical diagnosis or treatment
Made for a reasonably pertinent to medical diagnosis or treatment AND describes medical history, past or present symptoms or sensations, their inception, or general cause
The doctor’s statements generally don’t qualify
803(5)
Recorded recollection
Record that is on a matter witness once knew but has forgotten such that they cannot testify to it at all. Made or adopted by witness when matter was fresh in their memory
What is the difference between a recorded recollection and writing to refresh the witness?
The writing to refresh a witness is not evidence and is not available to the jury, and is only to aid a witness to remember. A recorded recollection takes the place of the testimony where the witness cannot remember
803(6)
Business records
What are the requirements of the business’s records exception?
1) made at or near time by-or from information transmitted by-someone with knowledge
2) kept within ordinary course of buisness
3) record was made in regular practice
4) all conditions are shown by testimony of the custodian and certified in compliance with 902
5) opponent does not show lacks trustworthiness
803(7)
Absence of a record. Similar to 803(6) but rather to show that something doesn’t exist
803(16)
Ancient documents
Documents prepared before January 1, 1998 and whose authenticity is established
803(8)
Public records
Sets out offices activities, legal duty to report
What does it meant to be “unavailable” such that 804 is accessible?
1) exempted from testifying
2) refuses to testify despite court order to do so
3) testifies does not remember subject matter
4) cannot be present due to death or then-existing infirmity
5) absent and not able to procure attendance or testimony
804 exceptions are not available if . . .
Party caused the witness’s unavailability
804(b)(1)
Former testimony
Given while witness at a trial, hearing, or deposition whether in current proceeding or different one, and is now offered against a party who had opportunity to develop it by direct, cross, or redirect
804(b)(2)
Statement in belief of imminent death
Only prosecution for homicide or civil case. Doesn’t actually have to die
804(b)(3)
Statement against interest
So contrary that has tendency to invalidate claim AND is supported by corroborating circumstances that clearly indicate trustworthiness
804(b)(4)
Personal or family history
Declarant’s own birth, adoption, marriage, divorce, etc. even if no way of acqu8ing personal knowledge of fact
OR the same of some person intimately associated with family
804(b)(6)
Forfeiture by wrongdoing
Offered against party that caused declarant’s unavailability and did so intending that result
807
Residual exception
Statement is supported by sufficient gurantees of trustworthiness and is more probative on point than any other evidence obtainable by reasonable efforts
