hearsay exemptions Flashcards
exemption
admissible bceause it’s not hearsay
opposing party statement not subject to personal knoweldge requirement or opinion rule
if you’re an opposing party and make a statement agianst interest it doesn’t matter if you have perosnal knowledge (e.g. plane cashes and D screams damn we were neligent again)
oppposing party statement
statemetn by a party or someone whose statement is attributable to a party, offered by a party opponent (not subject to personal knoweldge or opinion rule)
vicarious opposing party statement
statemnet by
- authorized spokesperson or (can be express or implied)
- employee of party concerning matter within scope of employemtn and made during employemnt
also see adoptive opposing party statemnte (party indicates belief in a statement) or
co conspirator statement
prior statment by testifyin W
out of court statement from declarant who now testified at trial and subejct to x exam
- prior inconsistnet staemten given undear oath
- prior consistnet statmeent - offered to rebut charge of recent fabrication or improper influence or motive, or to rebut another non chaacter attack on credibility
- statemetn of identification - of a person made after perceiving a person (that’s the person who robbed me)
hearsay exceptions that require unavailability
unvailable if
- court exempts declaranty from testifying due to privilege
- declarant is dead or sick
- proponent of statement cannot procure D’s attendance by process or other reasonable means
- declarant refuses to testify despite court order
- declarant’s memory fails
former testimony exception
admissible if
- had an opportujity to examine that person and the morive to conduct the exam was similar to motive now
- civil case - party against hwom the tesitony is now offered was not present in the earlier prceeding but has a colse privity type relationship to person who had an opportunity to examin and similar motive
remember has to be same motive (so same type of crime) and doens’t have to be in trial, can also be a deposition
CLOSE PRIVITY - remember if the two cases, the two parties trying to use the testimony in the prior case must have a close privity like relatinoship or precedeessor in interest (think estate) to use the testimony
declarant against interest exception
at the time it was made, it was against financail interest o fthe declarant or would have subjected declarant to crim liability.
for crim case, must have corroborating evidence
declarant must be unavailable
vs. opposing party statement - opposing part statemetn is a sattement of a party while a declaraiton against interest can be made by anyone. declaration against interest must be against interest when statement was made.
dying declaration
- must believe he is about to die
- must descirbe cause or circumstnace sleading to impnding death (e.g. “my will was of undue influence is not okay” because it’s not about impending death)
- admissible in civil action or in homiecide case (not even attempted murder)
- must only be unavailable.
xcited utterance
related to startling event or condition is admissible when made while declarant was still under stress or excitment…remember can even be like after they come out of a coma
unavailability not required
present sense impression
admissible
descirbing or explaining an evnet or condition made while declarant was percieving the event or condition immediately thereafter
no need for unavaialability
then existing physical or mental condition (can even be like intention)
must be THEN EXISTING physical condition or mental conditio or state of mind - amdissible to show condition or state of mind
statemetn descirbing a memory or belief is not admissible to prove the fact remembered or believed
no unavailability
exception ofr past or present mental or physicla condition made for medical diagnosis or treatment
statement sfor past or present mental or phsyical condition, or its cause, of that perosn or any other person is admissible if made for pertitent to medical diagnoiss or treatment
no need for unavailable
only statements are admissible if they are for the treatmetn (e.g. I was hit by a car is admissible if told to dr. but if say he had a suspended license, not admissible because not part of treatment)
is also admissible if someone else is speaking for the declarant (think mother calling hosptial)
business record exception
admissible if
- record of events, conditiosn or opinions or diagnosiese
- kept in course of regularly conducted biz activit
- made at or near time of the matters described
- yb person with knoweldge of the facts
- it was regular pratice of biz to make such recrods
6 authenticated by testimony or written certification - opponsent does not show untrustworthy
no worry baout unavailabiltiy
CAN COVER MULTIPLE LEVELS OF HEARSAy
public records excepetion
- record descibres actiities and policies of the office
- record descirbes matters observed pursuant to duty imposed by law
3 record contains factual findings resulting from investigation made pursuant to authority granted by law, unless opponentt show untrustworthy
in cirminal case can’t use #3
