Hearsay Exclusions/Exceptions Flashcards
List of Basic FRE Exclusions (CA Exceptions)
(1) Admission of party opponents
(2) Prior inconsistent and consistent statements
(3) Prior identification (requires the opportunity to cross-examine the declarant)
(4) Vicarious admissions
Admission of a Party Opponent
Where the party says something that harms their case.
Vicarious Admissions
Where an employee makes a statement, while employed, concerning the scope of their employment.
CA: If the purpose of the evidence is to prove vicarious liability, then any statement by the employee that, if they were a party would be an admission, is an admission against the employer
Prior Inconsistent Statements
A prior inconsistent statement is used to impeach a witness and is not used for the truth of the matter asserted unless the statement was made under a prior proceeding or deposition.
CA: All prior inconsistent statements are used for impeachment and their truth.
Prior Identification of Witnesses
Where a witness at a prior time identified the person who committed the act. Requires the person to be on the stand available for cross examination
CA: Only admissible in criminal cases.
List of FRE Exceptions
(1) Present sense impression
(2) Statement for purpose of diagnosis
(3) Statement of then-existing physical or mental condition
Present Sense Impression
A statement made by the declarant while perceiving some external event or immediately after the event.
CA: No Equivalent, but for contemporaneous statements.
CA Contemporaneous Statements
Evidence of a statement is not made inadmissible by the hearsay rule if the statement is
(1) offered to explain, qualify, or make understandable conduct of the declarant; and
(2) was made while the declarant was engaged in such conduct.
Statement for Purpose of Diagnosis or Treatment
Statements made describing pain, the cause of pain, medical history, and past and present symptoms, if they are pertinent to diagnosis or treatment, are admissible.
CA: No equivalent
Statement of then-existing Mental or Physical Condition
Same as a statement for purpose of diagnosis or treatment but strictly describes something the declarant is presently feeling, as opposed to the statement for purpose of diagnosis or treatment, which can also include statements describing what the declarant felt in the past.
Former Testimony
Federal rules state that former testimony is admissible if declarant is unavailable and it s being used against the same party or a party in privity with the party it was used against in the first case and the party in the first case had a similar opportunity to cross-examine.
CA: The parties need not be in privity.
Dying Declarations
The federal rule is that it is a statement made by a person who is unavailable made while the person was under an imminent belief of death concerning the cause and circumstances of their death. Allowed in criminal cases only.
CA: Does not require unavailability. Allowed in all cases, civil and criminal.
Statements Against Interest
Declarant is unavailable and they make a statement that would be so much against their financial, criminal, or civil interest that a reasonable person would not have made it unless it was true.
CA: The statement could also be against their social interests.
Excited Utterance
Statement made while under the stress of an exciting or startling event to describe that event.
CA: It is called a spontaneous statement.
State of Mind
A statement of what a person plans or believes has to be true. Statements of intent or plan fall within the exception.
Past Recorded Recollection
Where the person has no memory of what they wrote or directed to be written, but is written at the time when it was fresh in their mind and it was accurate when written. The statement is read to the jury and not introduced into evidence.
Present Recollection Refreshed
The witness is reminded of what they though/wrote down by examining a document and then remembers the event. They testify from their memory and not from the document. THey can be cross examined with the document.
Business Records
Must be made as part of a regularly conducted activity, at or near the time of the event, by a person with knowledge, and the time and mode of preparation suggest trustworthiness.
Official Records
Made by government employees with a duty to make such records.
Property Records
Deeds and Mortgages
Judgments of Conviction
This is a California only special exception and applies to both felonies and misdemeanors.
Exceptions Requiring the Declarant to be Unavailable
(1) Former Testimony
(2) Dying Declarations
(3) Statements Against Interest
Other Exceptions
(1) Excited Utterances
(2) State of Mind
(3) Past Recorded Recollection
(4) Present Recollection Refreshed
(5) Business Records
(6) Official Records
(7) Property Records
(8) Judgment of Convictions (CA)
