hearsay exclusions Flashcards
what is a “hearsay exclusion?”
A statement that is “not hearsay” according to the federal rules; it is excluded from the definition of hearsay
Contrast “hearsay exception,” which is hearsay but is admissible because it falls under an exception to the rules
what are the two broad categories of hearsay exclusions
Declarant-witness’s prior statements [prior statements of testifying witnesses who are subject to cross examination]
opposing party statements
When are prior statements of testifying witness excluded from the definition of hearsay such that they are admissible for their truth?
(A) PRIOR INCONSISTENT STATEMENT FROM PRIOR PROCEEDING
The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding
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(B) PRIOR CONSISTENT STATEMENT [2 types]
The prior statement is consistent with the declarant’s testimony and is offered:
[i] to rebut a charge that the W is lying or exaggerating because of some motive [and the statement was made before any motive to lie or exaggerate arose]
OR
[ii] to rehabilitate a witness whose credibility has been impeached on some other ground besides character for untruthfulness, such as inconsistency or faulty faculties
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(C) STATEMENT OF IDENTIFICATION
The prior statement is one of identification of a person as someone the W perceived earlier, even if W cannot remember making the identification
when are opposing party statements excluded from the definition of hearsay
include the ones laid out in the FRE and include specific types of statements that Barbri included
FEDERAL RULES OF EVIDENCE 801(D)(2)
Statement must be offered AGAINST the opposing party, AND
(A) was made by the party in an individual or representative capacity;
— regular extrajudicial statements [not conclusive, can be explained]
— informal judicial statements made during testimony [not conclusive, may be explained]
— formal judicial statements [statements made in pleadings, stipulations, etc.] [conclusive and cannot be contradicted during trial]
(B) is one the party manifested that it adopted or believed to be true;
[where a party impliedly or expressly adopts or acquiesces in the statement of another … may include silence]
(C) was made by a person whom the party authorized to make a statement on the subject;
– like an authorized spokesperson
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while [that agency relationship] existed; or
(E) was made by the party’s co-conspirator to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy.
—-court must determine the existence of a conspiracy and participation in it by a preponderance of the evidence standard
BARBRI EMPHASES
[1] Judicial and extrajudicial statements
[2] Silence
Silence may be considered an implied acquiescence to the truth of that statement if:
[a] the party heard and understood the statement,
[b] the party was physically and mentally capable of denying the statement; and
[c] a reasonable person would have denied the accusation
[3] statements of co-parties NOT admissible against one another by the other side as opposing party statements
[4] Partnerships –
After you show a partnership exists, a statement of one partner about a matter within the scope of the partnership is binding upon co-partners
can you use formal judicial statements made by defendant, Bob, during trial A, against Bob in trial B?
Yes
what does preponderance of the evidence mean
more probably true than not true
what preliminary determinations must a court make before admitting out of court statements as vicarious statements? [co-conspirators, partners, agents, authorized persons]
What must the court use to make these determinations?
Court must determine whether the vicarious relationship existed:
(1) whether declarant was authorized to speak for the party
(2) whether declarant was the party’s agent/employee
(3) whether declarant was in partnership with the party
(4) whether declarant and party were co-conspirators [preponderance of the evidence]
How the court makes these determinations – USE INDEPENDENT EVIDENCE
The court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship, there must be independent evidence
what vicarious statements are admissible against parties according to the rules of many state courts?
Privies in title and joint tenants
statements of each joint owner are admissible against the other
statements of a former owner of real property made at the time he held title are admissible against those claiming under them, such as grantees, herbs etc.
**note that they may be admissible under hearsay exception of statement against interest
what are the 24 hearsay exceptions for when the availability of the declarant is immaterial?
Explain each
(1) excited utterances
statement made while under the stress of excitement of a startling event, such that declarant had no time to reflect upon the event
Note: sometimes failed dying declarations count as this
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(2) present sense impression
statement describing or explaining an event or condition, made during or immediately after perception of event described, does not have to be startling
note: strict timing requirement
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(3) Present mental, emotional or physical condition
INCLUDES:
– state of mind (such as motive, intent to do something in the future, or plan)
– emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)
– spontaneous declaration of physical symptoms
NOT INCLUDED:
– a statement of memory or belief to prove the fact remembered or believed UNLESS it relates to the validity or terms of the declarant’s will
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(4) statement made for medical treatment or diagnosis
Statement that describes medical history; past or present symptoms or sensations; their inception; or their general cause, that is made for the purpose of diagnosis or treatment
note: does not have to be declarant’s medical history
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(5) recorded recollection
Record by witness who cannot now remember the facts, that was made while the facts were fresh in her mind
*this can only be read into evidence, cannot be offered as exhibit unless offered by adverse party
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(6) Records of a Regularly Conducted Activity/business records
- A writing or record made as a memorandum of any act, event, condition, opinion or diagnosis
- made during the regular course of business (must be regular practice of the organization, not for the purpose of litigation)
- made near in time to the event
- concerning matters within personal knowledge of the entrant or person with a duty to transmit matters to the entrant
- shown by testimony of custodian of records or qualified witness
MUST lay foundation
may be excluded if opponent shows circumstances of the record indicate lack of trustworthiness
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(7) Absence of a Record of a Regularly Conducted Activity/business records
A business record that is offered to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record all such matters
may be excluded if opponent shows circumstances of the record indicate lack of trustworthiness
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(8) Public records
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(9) Public Records of vital statistics
admissible if reported to a public office in accordance with a legal duty
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(10) Statement of absence of public records to show matter was not recorded or did not occur
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(13) family records
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(15) statements in Documents That Affect an Interest in Property
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(16) statements in ancient documents
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(17) market reports
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(18) statements in learned treatises
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(19-21) Reputation
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(22) judgement of previous conviction
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(23) Judgments Involving Personal, Family, or General History, or a Boundary
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(24) catch-all
learned treatises
Reputation
family records
market reports
ancient documents
documents affecting property interests
what are examples of business records
records from nonprofits, businesses, organization, etc.
foundation for business records exception
custodian of records or any person int he business who is knowledgeable about the business’s record keeping
(1) testifies that the record meets elements of business records exception
OR
(2) certifies in writing that the record meets the elements of the business records exception
what are public records for the purpose of the public records exception?
Overall requirements
– made by and within scope of duty of a public employee
— made at or near time of the event
— may be excluded if opponent makes showing that circumstances indicate lack of trustworthiness
TYPES OF PUBLIC RECORDS:
(1) records setting forth activities of the office or agency
(2) recordings of matters observed pursuant to a duty imposed by law, but NOT INCLUDING POLICE OBSERVATIONS IN CRIMINAL CASES [no police reports against defendants]
(3) records of factual findings resulting from an investigation authorized by law
- in civil actions
- in criminal cases, when offered against the government, but not against the Defendant
what records can be excluded if the opponent makes showing that circumstances of the record indicate lack of trustworthiness ?
(1) business record
(2) record showing absence of business activity
(2) public records
what is the absence of public record exception
Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:
(A) the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.
—– D may be able to demand presence of this person for confrontation purposes
what are the judgment exceptions to the hearsay rule?
Criminal convictions
(1) felony convictions admissible IF
– offered to prove any fact essential to the judgment in that conviction
— in a criminal case, if used by the government only against the accused [against others it is only impeachment evidence]
(2) criminal acquittals not admissible hearsay
Civil judgments generally excluded [not admissible hearsay]
….. exceptions:
(a) matters of personal or family history
(b) matters of boundaries of land
