Hearsay Exemptions and Exceptions Flashcards
Statement of a party opponent
A statement
1. made by a party and
2. offered against that party
is admissible as non hearsay
Can be made through an authorized spokesperson, coconspirator, agent, or employee within the scope of her employment.
Adoptive admission
A party may admit something made by another person as non hearsay.
Can be via silence
Prior inconsistent statement
A prior inconsistent statement is admissible when the declarant testified and is subject to cross, the prior inconsistent statement was given under penalty of perjury.
Prior consistent statement
A prior consistent statement is admissible nonhearsay when
1. the declarant testified and is subject to cross about the prior statement,
2. the statement is consistent with the declarants testimony,
3 and the statement is offered to rebut a charge that the declarant recently fabricated it or acted from recent or improper influence or motive.
Prior identification
A prior identification of a person is admissible nonhearsay
1. when the declarant testified and is subject to cross about the prior identification and
2. identifies a person as someone the declarant perceived earlier.
Former testimony
A court may admit prior trial, deposition, or hearing testimony of an unavailable witness
1. if the former action involved the same subject matter,
2. the prior testimony was under oath, and
3. the party against whom the testimony is offered had the opportunity to develop the declarant’s testimony at a proceeding.
Unavailability is required.
Statement against interest
A statement against interest is a statement that was
1. against a person’s pecuniary, proprietary, or Penal interests when it was made,
2. a reasonable person in the declarant’s position would only have made it if it was true,
3. and the declarant knew it was against her interest at the time she made it.
Unavailability is required.
Dying declaration
A statement that is made about the cause of death while under belief of imminent death is a dying declaration. The declarant need not have actually died. Dying declarations are only admissible in homicide prosecutions and civil cases.
Unavailability is required.
Present state of mind
A statement regarding the declarant’s
1. then existing state of mind is admissible to prove the declarant’s emotion, sensation, physical condition
2. or that the declarant has the present intent to act at the time he made the statement.
Present sense impression
A present sense impression is a statement
1. about an event or condition
2. made while or immediately after the declarant perceives that event or condition.
Excited utterance
An excited utterance is a statement
1. relating to a startling event made
2. while under the stress of the event.
Business records
business records are excepted from hearsay to prove an act or transaction, if they are writings or recordings made to memorialize the act or transaction.
The records must be made:
1. at or near the time of the event,
2. in the regular course of business
3. by someone with personal knowledge of the matters being recorded or by someone who entered data given to them by someone with personal knowledge.
Business records can be authenticated through the written or oral testimony of a company’s custodian of records.
The absence of records can be used to prove the nonoccurrence of an event when the business has a practice of maintaining business records.
Learned treatises
Treatises may be offered as substantive proof if they are:
1. called to the attention of, or relied on by an expert witness; and
2. established as reliable authorities through expert testimony or judicial notice.
Statements made for medical diagnoses and treatments
A statement made to assist in the diagnosis or treatment of a condition is excepted from hearsay, including statements about the source of a condition.
Past recollection recorded
A past recollection recorded is a record that is admissible when the
1. witness has personal knowledge of the information in the record,
2. the events were fresh when the record was made,
3. the record was accurate when written,
4. and the witness cannot now presently recall the information.
The record may be read into evidence but may not be received as an exhibit unless offered by an adverse party.
Compare to present recollection refreshed: allows a witness to use a writing to refresh their recollection before or while testifying. The witness testifies from their memory and does not read the refreshing item into evidence. Opposition can inspect and introduce the evidence.
