Hearsay Exceptions (Availability of Declarant Immaterial) Flashcards
Hearsay Exceptions (Availability of Declarant Immaterial) - Still hearsay, but letting it in
- Present Sense Impression
- Excited Utterance
- Statement of Declarant’s Existing State of Mind, emotion, or physical condition (such as intent, plan, motive, mental feeling, pain and bodily health)
- Statements for Medical Diagnosis or treatment
- Recorded Recollection
- Records of Regularly conducted Business Activity
- Public Records and reports (such as records, reports, or date compilations of public offices or agencies)
- Records of Vital Statistics (such as records of births, deaths or marriages)
- Family Records (such as inscriptions on family portraits or tombstones)\
- Ancient Documents
- Market Reports, Commercial Publications
- Learned Treatises
Availability
General Rule:
• Certain exceptions do not care if the declarant who made a statement is available to testify or not in the courtroom
• Other exceptions require the declarant who made the hearsay statement be unavailable to testify in court, for that statement to be admissible into evidence
(1) Present Sense Impression
General Rule: A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(Theory: Mind has not had enough time to lie about it)
- Declarant describes what he sees or hears as he sees it
- A present sense impression is a statement made while describing an event as it takes place or shortly thereafter
- A statement is offered contemporaneously to explain, qualify or make understandable the conduct of a declarant while the declarant was engaged in that conduct
- CA calls this rule: Contemporaneous statement
Elements:
(1) Immediacy – no material time may pass (*Contrast w/ excited utterance)
(2) Description – statement must describe or explain the event that the declarant has
perceived
(3) Perception: Declarant must be the percipient witness to the event and have personal knowledge of the event (had to witness it)
(4) Opinion: Declarant may express an opinion, so long as it is an attempt to explain something that the declarant perceives
(5) Corroboration is not required – statement alone is enough to establish the event the declarant is talking about
(2) Excited Utterance
General Rule: A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Theory: When worked up, under adrenaline rush of what happened, your mind does not have time to lie
- Declarant sees a startling event that rivets his attention, and then or shortly later, but while still under the effect of the event, he speaks in reaction
- CA calls it “Spontaneous Statement” exception but everyone calls it excited utterance
Elements:
• Immediacy
- An excited utterance is a statement made in response to a startling or exciting event
- Statement made either during or immediately contemporaneous to event
- Such event is objectively something a person would be startled by
• Under Influence of the event
- Person must still be under the influence of the event when statement made
• Description of the event
- Person need not describe the exact event (*How differs from present sense impression)
- Person can just make any statement in reaction to the event (as long as relevant)
• Opinion
- Person may be making an opinion about the event, even though the person is
not an expert
• No independent corroboration is necessary
- Statement alone can be enough to show the event occurred
• Person can be anonymous – hear someone in crowd scream something out in response to startling event and I can testify – don’t need to describe declarant/know who it is
United States v. Arnold
- Gordon called 911 and said defendant threatened her with a gun. Officers arrived, visibly shaken, explained had argument w/ Arnold.
- Arnold came back in car w/ her mother – got excited/cried/pointed at him
- Can these statements come in? Can bring in all 3.
(1) 911 call – “he’s fixing to shoot me”
(2) Initial statements to police – want to have cop testify
a. Police show up within 5-20 minute – still shaken up
b. Visibly agitated – crying/shaking
(3) Statements when man returned
a. Prior ID only applies when she is on the witness stand
b. Police officer – say that guy is the one she screamed at – bring in under excited utterance
(3) Statement of Declarant’s Existing State of Mind, Emotion, or Physical Condition
General Rule: A statement of the declarant’s then existing state of mind, future intention, emotion, sensation, or physical condition.
- Such as one’s future intent, plan, motive, design, mental feeling, pain and bodily health
- Cannot be past tense
- Not including a statement of memory or belief to prove the fact remembered or believed, unless it relates to execution, revocation, identification, of wills
4 Areas
• Then existing physical condition;
• Then existing mental or emotional condition;
• Subsequent conduct (what you are going to go do);
• Facts about declarant’s will (b/c declarant usually dead)
Elements
(1) A person makes a statement;
(2) The statement is in the present tense describing the declarant’s
a. Physical feelings (aches, pains, etc.); or
b. Mental state (happy, sad, angry, fright, confused, etc.); or
c. Intent to do something in future (I’m planning to meet Jessica on Tuesday, etc.)
(3) Relevancy: State of mind must be an issue in the case - examples
1. Murder trial where self defense is asserted (but not otherwise)
2. Civil case where pain and suffering is issue
3. Alibi defense
4. Feeling threatened - Extortion
What is the difference between non hearsay state of mind and hearsay exception state of mind?
Usually in the actual words whether they literally are stating a state of mind or whether its inferring knowledge of a state of mind
- “I have a tooth ache” = hearsay exception
- Conduct – infer in pain = nonhearsay
- I feel like my brakes are bad = then existing feeling about something right then – much more literal = hearsay exception
- “I should really get my brakes checked” = nonhearsay – implying you have knowledge that something could be wrong w/ brakes
United States v. Pheaster
Show someone was at another location through girlfriend’s statement that he was going to that location. Want to show missing/dead by this. Can use worry as circumstantial evidence. Subsequent conduct.
(4) Statements to physicians
General Rule: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment (want help)
• Statements made about present bodily condition or past bodily condition for purposes of diagnosis or treatment
- Ex. Doctor asks what happened?
• Statements as to fault or ID of who did it, generally not admissible
- Ex. Doctor asks who did it?
- Does not need to have an MD – usually allow physicians assistant, etc. (definitely a medical professional – Federal)
- CA might say statement to anybody
Blake v. State
Is statement made by child victim to medical professional admissible? Usually yes, even if an ID (exception to normal rule). Very liberal with sex crimes – want to get danger out of house (not as liberal for domestic violence – would have to go to excited utterance route)
(6) Business Records
General Rule: Records made in regular course of business are admissible
Elements:
• Records regularly kept and recorded as regular course of business;
- Is this what this person/business normally does?
• A custodian of records (familiar w/ business/records/how the records were entered into a particular system – manager, or in charge of records) testifies to:
o How he is familiar with those records;
o How a person who made the regular entry had personal knowledge of the information entered;
- Contemporaneity: The entry was made at or near the time of the act condition, or event (not really a modern issue b/c instantaneously computerized)
- General trustworthiness of the records
Hearsay within records
So long as source of hearsay within records appears to be acting in the regular course of business, hearsay information comes in under this exception.
*Caveat: If scientific conclusion (lab report, coroner’s report)
Records that Contain Expert Opinions (as opposed to basic facts regarding transaction)
- Expert opinions may be admissible within the report, subject to the court’s discretion.
- The more speculative the opinion, the greater the probability of exclusion.
- Lay opinion generally excluded – have to bring witness in.
Absence of Business Records – what if no records exist? (On exam)
The fact in and of itself that no entry was made can come in to show that no records of a particular business transaction occurred on a particular date/time frame.
Petrocelli v. Gallison
- Wife said Doctor said he severed nerve. Want to bring in other doctors’ reports. How do those other doctors know if first doctor severed nerve? Did patient tell doctor? Unreliable hearsay – exclude. Conclusion that it was a severed nerve was hearsay, too far removed/from various sources.
- Too many levels, not reliable.
• If had made it clear that doctor’s did exam to find severed nerve – goes to different issue altogether (opinion – still want on stand)
