Hearsay, Hearsay Exemptions, and Hearsay Exceptions Flashcards
Includes Constitutional Limits
What is hearsay?
Hearsay is an out of court statement being introduced for the truth of the matter asserted.
Generally, absent an exemption or exception, such statements are inadmissible.
Under the FRE rules, what is considered “non-hearsay”?
1) Prior Inconsistent Statements
2) Opposing Party Statements
3) Prior Identifications
When can a prior inconsistent statement be admitted for it’s truth/substantive evidence?
May be introduced for substantive evidence if:
1) Statement was made under oath at a prior proceeding
2) By a witness who is on the stand and can be cross-examined about it
Hearsay: Business Record Exceptions
Records of events or conditions made in the regular course of business are admissible. Requires:
1) Record was kept in regular course of conducted business
2) Making of record was regular practice (not for litigation!)
3) Record was made at or near the time by someone with knowledge.
Hearsay: Dying Declaration
Applies when declarant is unavailable.
1) Declarant believes their death is imminent
2) Statement pertains to cause or circumstances of death.
Person does not need to die!
Hearsay: Present Sense Impression
Statement made that describes or explains an event or condition **made while or immediately ** after declarant perceived it is admissible.
Hearsay: Excited Utterance
Statement made about a startling event or condition made while the declarant was under the stress of excitement is admissible.
Hearsay: Recorded Recollection
Following an attempt to refresh a witness’s memory, a record is not hearsay if:
1) Record is on matter witness once knew about
2) Record was made or adopted by witness when matter was fresh
3) Record accurately reflects witness knowledge
4) Witness states that they cannot recall event to testify
May then be read into the record; to admit as evidence, only adverse party may do so!
Opposing Party Statement
A non-hearsay exemption.
Statement made by a party to the current litigation.
Hearsay: Statement Against Interest
Made when declarant is unavailable!
Statement was made:
1) Against declarant’s interest at time it was made
2) Would not have been made by a reasonable person, unless it were true
Effect on the Listener
Non-hearsay purpose!
Statement offered to show the effect on the person who heard it.
Opposing Party Statement: Vicarious Statements
An opposing party statemnet includes statements made by the party’s Agent or employee if it was made:
1) Concerning a matter within scope of employment
2) During the course of employment
Opposing Party Statement: Co-Conspirator Admissions
Includes when:
1) Co-conspirator
2) Makes statement
3) During and in furtherance f the conspiracy
Hearsay Exception: Legally Operative Facts
A statement offered to prove that the statement was made is not hearsay.
Regardless of it’s truth.
