Hearsay Exceptions and Exclusions Flashcards
Present Sense Impression
Elements (3)
R. 803(1)
- A statement describing the event/condition
- Made while perceiving it
- Or immediately thereafter
Excited Utterance
Elements (3)
R. 803(2)
- Statement made under stress of excitement
- Caused by a startling event/condition
- And related to event condition
Federal rules: declarent’s stress evaluated subjectively
State of Mind
Elements (2)
R. 803(3)
- Statement of declarant’s then-existing
- State of mind
- Emotional condition
- Sensory condition (pain)
- Sensory condition (pain)
- Not including memory of belief to prove the fact remembered or belief (unless it relates to validity of declarant’s will: “I ripped up my will and cut out Jim” is an exception to prohibiting memories)
Also used for statements of intention; can also be used to prove intentions of another! (I’m going to CO with Hillmon -> Hillmon went to CO w/ declarant)
Medical Diagnosis or Treatment
Elements (3)
803(4)
- Made for purposes of medical diagnosis or treatment
- Reasonably pertinent to diagnosis or treatment
- Describes:
- Medical history
- past or present symptoms
- inception
- or general cause
PA: medical/hospital records ONLY to show facts of injury. and prescribed treatment; purely diagnostic exams or second opinions are outside exception; more narrow exception than Federal rule
Past Recollection Recorded
Elements (5)
R. 803(5)
1) Is on a matter the witness once knew about
2) But cannot recall well enough (forgetful witness)
3) Was made or adopted by the witness
4) When the matter was fresh in memory
5) AND accurately reflects the witness’s knowledge
PA: declarant testimony is required; must testify that record accurately reflects knowledge at time of making record.
Business Records
Elements (5)
R. 803(6)
- Made at or near time of act/event/condition
- By someone with knowledge
- Or from w/ info transmitted by someone with knowledge acting under a duty to impart such info in the regular course of business
- Made and kept in the course of regularly conducted activity
- No showing by opponent of untrustworthiness
Absense of records:
- FRE says lack of a record is admissible if normally would have been recorded, unless circumstances show lack of trustworthiness
- PA says absence of record is not hearsay (and thus not a hearsay exception and can be admissible as circumstantial evidence)
Public Records
Elements (2)
R. 803(8)
1) Is a record of public office setting out
a) Internal, administrative activities of the office
b) A matter observed while under legal duty to report (except by law enforcement in a criminal case.)
c) Factual findings from legally authorized investigation (except where offered against accused in a criminal case.)
2) No showing of untrustworthiness.
PA: no hearsay exception, but may be excepted as business records . By statute, public records and vital statistics are excepted from HS rules and provides for authentication.
Former Testimony
Elements (3)
R. 804(b)(1)
1) Testimony was given in a prior hearing
2) By an unavailable declarant
3) There was a opportunity and similar motive to develop the former testimony (by cross, direct exam, or re-direct)
- by the party against whom it is now offered or
- a predecessor in interest in a civil case
PA: party need to have had “adequate” opportunity to develop testimony
Dying Declaration
Elements (4)
R. 804(b)(2)
1) Statement by an unavailable declarant
2) Made while believing death to be imminent
3) About its cause or circumstances
4) In homicide prosecution or any civil case
PA: can invoke this in ANY kind of case.
Statement Against Interest
Elements (5)
R. 804(b)(3)
1) Statement by an unavailable declarant
2) So contrary to declarant’s interest when made that
3) A reasonable person would’ve made statement only if declarant believed to be true
4) The interest involved must be:
· Pecuniary (“I owe John $1M”)
· Proprietary (“This land belongs to John.”)
· Effects civil liability (“I was at fault in that accident.”)
· Penal (“I shot the sheriff.”)
5) If used against penal interest in a criminal case, the circumstances must clearly indicate statement’s trustworthiness
Opposing Party Admissions: Adoptive Admissions
Elements (2)
801(d)(2)(B).
1) A statement by another
2) that opposing party either adopts statement or believes it to be true.
Includes silence as adoption, if reasonable person would have said something to contradict statement.
Opposing Party Admissions: Authorized Statement
Elements (2)
801(d)(2)(C)
1) Statement made by a person authorized by opposing party
2) make a statement on the subject
Opposing Party Admissions: Agent Statement
Elements (3)
801(d)(2)(D)
1) Made by opposing party’s agent/employee
2) On a matter within scope of relationship
3) During the relationship’s existence
Opposing Party Admissions: Co-Conspirator Statement
Elements (3)
801(d)(2)(E)
1) Made by the opposing party’s co-conspirator
2) During the conspiracy
3) In furtherance of the conspiracy.
Prior Identification
Elements (4)
R. 801(d)(1)(C)
1) The statement identifies a person
2) As someone the declarant perceived earlier
3) The Declarant must testify
4) And be subject to cross-examination about the prior statement
