Hearsay pt. 2 Flashcards
803: Except to Hearsay regardless if declarant is available
Records of a regularly conducted activity
- the record was kept
in course of a regularly conducted activity of a business, organization, occupation or calling, whether or not for profit
803: Except to Hearsay regardless if declarant is available
Records of a regularly conducted activity
-A record of an act event, condition, or diagnosis if
- the record was made at or near the time by
- or from information transmitted by
- someone w knowledge
803: Except to Hearsay regardless if declarant is available
Records of regularly conducted activity
- making the record was
a regular practice of that activity
803: Except to Hearsay regardless if declarant is available
Records of regularly conducted activity
- all conditions must be shown by
the testimony of the custodian or another qualified witness, or by a certification And
the source of info or the methods of circumstances of preparation indicates a lack of trustworthiness
803: Except to Hearsay regardless if declarant is available
Absense of a record of a regularly conducted activity
- evidence that a matter is not included in a record if:
- The evidence is admitted to prove the matter did not occur or exist; and
- A record was regularly kept for a matter of that kind
- neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
803: Except to Hearsay regardless if declarant is available
Public record
- A record or statement of a public office if it sets out:
- the office’s activities
- a matter observed under a legal duty to report (not including a criminal case, a matter observed by law enforcment personal), OR
- in a civil case, or against the gov in a crim case, factual findings from a legally authorized investigation, AND
- neither the source of information nor other circumstances indicate a lack of trustworthiness
803: Except to Hearsay regardless if declarant is available
Absence of a public record
- That a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:
- The record or statement does not exist
- a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind
803: Except to Hearsay regardless if declarant is available
Absence of a public record
- in a criminal case, the prosecuter 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 recieving the notice
- unless the ccourt sets a different time for the notice or the objection
803: Except to Hearsay regardless if declarant is available
Records of regularly conducted activity
“a record”
includes all modern forms of digital data collection as well as conventional written documents
803: Except to Hearsay regardless if declarant is available
Records of regularly conducted activity
has to be of a
act, event, condition, opinion, or diagnosis
803: Except to Hearsay regardless if declarant is available
Records of Regularly Conducted Activity
- Records containing opinions must:
- overcome a hearsay objection AND
- satisfy the req’s of art VII of rules of evidence
803: Except to Hearsay regardless if declarant is available
Records of regualrly conducted activity
“made at or near the time”
Mundane and complex details should be recorded quickly bc it is likely that recollections concerning such matters will soon deteriorate
803: Except to Hearsay regardless if declarant is available
Records or regularly conducted activity
“By or from information transmitted by someone with knowledge” requires that the person who makes the business record either:
- has personal knowledge of the matters described in it OR
- recieves input from another person who has that knowledge
803: Except to Hearsay regardless if declarant is available
Records or regularly conducted activity
“By or from information transmitted by someone with knowledge” The report is admissible under the business records exception as long as
the employee transmitting the info has personal knowledge
803: Except to Hearsay regardless if declarant is available
Business records exception
a declarant must be acting under a
business duty
803: Except to Hearsay regardless if declarant is available
Business record exception:
when the record contains info from someone what is not under a business duty to observe and report accuately (ex. eyewitness)
The part of the report remarking or based on such statements can be removed from the record, the remaining parts may qualify
803: Except to Hearsay regardless if declarant is available
Records of regularly conducted activity
“kept in the course of a regularly conducted activity of a business”
- reliability of business records depends whether the record
concerns the business’s regular activity, as it is then more likely to be accuate
803: Except to Hearsay regardless if declarant is available
Reocrds or regularly conducted activity
- when reports prepared for litigation can be admissible
if both made for purpose of litigation and is also made in the regular course of business.
803: Except to Hearsay regardless if declarant is available
Records of regularly conducted activity
“custodian”
the person whose responsibility it is to maintain the files of the business
803: Except to Hearsay regardless if declarant is available
Record of regularly conducted activity
The proponet may present a declaration of a qualified person certifying that the record:
- was made at or near the time of the occurance of the matters set forth by, or from information transmitted by a person with knowledge of those matters
- was kept in the course of the regularly conducted activity
- was made by the regularly conducted activity as a regular practice
803: Except to Hearsay regardless if declarant is available
Record of regularly conducted activity
- The propenet must provide what before using the evidence
- prior written notice of its intention to introduce the record
- must make the record and declaration available for inspection
- must provide the opponent with a fair oppertunity to challenge the record
803: Except to Hearsay regardless if declarant is available
Record of regularly conducted activity
“business”
professions, occupations, calling, nonprofits
803: Except to Hearsay regardless if declarant is available
Public records
when factual findings from a legally authorized investigation is admissible
in civil cases and when offered against the goverment in criminal cases
( including reports containing opinions, as long as those opinions are based on investigations by and factual findings of goverment officials
803: Except to Hearsay regardless if declarant is available
Why is it not necessary in all cases to call a foundational witness to qualify a public record?
- public records are admissible without witness if authenticated
- public recordsd can be self-authenticating under rule 902
803: Except to Hearsay regardless if declarant is available
Where an official record contains observations by law enforcement personal, or factual findings from an authorized investigation, it is not admissible against
a defendant in a criminal case
803: Except to Hearsay regardless if declarant is available
An official record can be admissible in
civil cases and cases against the gov. and where findings are based in part on statements who are not govermental officials
803: Except to Hearsay regardless if declarant is available
Where a question involves the absence of an entry in a business record, the testimony is not hearsay when the witness testifies that
that he or she reviewed the records and observed there was no entry
804: unvailability to declarant required
Rule 804: A declarent is considered to be unavailable as a witness if the declarant:
- is exempted from testifying about subject matter of the declarants statemnt because the court rules that a privlige applies
- refuses to testify about the subject matter despite a court order to do so
- testifies to not remember the subject matter
- cannot be present or testify at the trial because of death or a then existing infimity, physical illness, or mental illness, OR
- is absent from the trial or hearing and the statements proponent has not been able, by process or another reasonable means to procure
804: unvailability to declarant required
does not apply if the statements proponets
procured or wrongfully caused the declarants unavailablity as a witness in order to prevent the declarant from attending or testifying
804: unvailability to declarant required
Because a statement within the hearsay execptions will be relevant regardless of the availability of the declarant,
unavailablity is a preliminary fact that must be decided by the court
804: unvailability to declarant required
Proof of the unavailability requires the propenet to demonstrate that
reasonable means were used to locate the declarant
804: unvailability to declarant required
How a declarant may be deemed unavailable even if they are in court
804 provides that a declarant is unavailable if she has a privilege that exempts her from testifying
804: unvailability to declarant required
If a party claims it was unable to secure the presence of the declarant, determine whether it..
shown it made reasonable efforts to secure the declarants attendance or testimony
804: unvailability to declarant required
Former testimony
Testimony that:
- was given as a witness at trial, or lawful disposition whether given during the current proceeding or a different one, and
- is now offered against a party who had, or in a civil case whose predecessor in interest had, an oppertunity and similar motive to develop it by direce, cross-, or erdirect examination
804: unvailability to declarant required
Former testimony
When offered at the 2nd trial, witness testimony from the first trial is
hearsay
804: unvailability to declarant required
Former testimony
Need:
- witness testimony at 1st trial was offered for some purpose that it is currently offered for
- The party who the testimony is offered had both an oppertunity to cross-examine witness at the first trial
- the motive to do so was identical to the motive in the 2nd trial
804: unvailability to declarant required
Former Testimony
if a crim prosecution, the party against who m the evidence is now offered
- must have had oppertunity to develope it by direce, cross, redirect examination in a earlier trial AND
- must have had a “similar motive” to develop the testimony by such examination
804: unvailability to declarant required
Former testimony
If a civ case, the party against whom the evidence is now offered and was a party in the last trial , or a dedecessor in interest of that party, must
- have had an oppertunity
- and similar motive to develop the witness’s testimony at an earlier trial
804: unvailability to declarant required
Former testimony
If current trial is a civil action
Relaxes the oppertunity and motive requirement
- unless the opposing party was a party in a earlier action or a predecessor in interest of the earlier action
804: unvailability to declarant required
Former testimony
What does it mean to have “similiar motive”?
- when the earlier trial and current trial are of the same case
- and when the parties have not changed the purpose for which the witness testimony will be used
804: unvailability to declarant required
Former testimony
The most accurate way to prove the witness’s prior testimony is by offering
the court reporters transcript
804: unvailability to declarant required
Former testimony
The court reporters transcript is hearsay but will
qualify as the reporters recorded recollection or as public record
804: unvailability to declarant required
2 ways to prove former testimony
- court reporters testimony
- call a witness with first hand knowledge of that testimony
804: unvailability to declarant required
Calling a witness with first hand knowledge of that testimony
- need not have personal knowledge of the truth of the earlier testimony
- only need personal knowledge of the testimony itself
804: unvailability to declarant required
Former testimony
How the best evidence rule applies when using the cort reporter transcipt
Only applies if the witness proposes to testify to what the transcript says
804: unvailability to declarant required
Statement under the belief of mminent death
applies in
a prosecution for homicide or in a civil case
804: unvail. to declarant required - stment under belief of imm. death
A statement that the
declarant made while believing the declarants death to be imminent, made about its cause or circumstances
804: unvail. to declarant required - stment under belief of imm. death
3 prerequisites, in addition to the unavilability of the declarant
- The case in which the evidence is offered must be a civil action of a homicide prosecution
- the statement must have been made by the declarant while believing that his or her death was immient
- the statement must concern the cause or circumstances of what the declarant believed to be impending death
804: unvail. to declarant required - stment under belief of imm. death
If the declarant did not die, the statemetn will be admissible only in offered in
a civil case and the declarant is unavailable
804: unvail. to declarant required - stment against interest
A statement that:
A reasonable person in the declarants position would have made only if the person believed it to be true
- because when made it was so contray to the declarants propriety or pecuniary interest or
- had so great a tendancy to invalidate the declarants claim against someone else or
- to expose the declarant to civil or criminal liability
804: unvail. to declarant required - stment against interest
The statement needs to be supported by
corroberating circumstances that clearly indicate its trustworthiness
804: unvail. to declarant required - stment against interest
Proponent must demonstrate that the statement:
- was so contrary to certain interests or
- had so great a tendancy to subject the declarant to certain risks
- that a reasonable person in the declarants position
- would have made the statemetn only if rhe person believed it to be true
804: unvail. to declarant required - stment against interest
Whether a statement is truely against the interest of the declarant is a question that often can be answered by looking at the
circumstances in which the statement was made
804: unvail. to declarant required - stment against interest
the statement will not be admissible unless the court concludes
that it is so far against the declarants interest that a reasonable person in their position would not have made the statement unless he believed it was true
804: unvail. to declarant required - stment against interest
need not be made by
a party
804: unvail. to declarant required - stment against interest
Objectionable under 602 if the declarant…
lacks personal knowledge of the facts contained in her statement
804: unvail. to declar. req - stment agnst pty wrngfuly cau decl unavai.
A statment
offered against a party that wrongfully caused or acquisced in wrongfully clausing declarants unavailability and did so intending that result.
803 Statement made for medical diagnosis or treatment.
A statement that:
- is made for and is reasonsably pertinent to medial diagnosis or treatment and
- describes medical history, past or present symptoms, their inceptions, or their general cause
Recorded recollection
A record that
- is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately
- was made or adopted by the witness when the matter wsa fresh in their memory
- accurately reflects the witness knowledge
Recorded Recollection
If admitted the record may
be read into evidence but may be recieved as an exhibit only if offered by an adverse party
612 writing used to refresh a witness memory
allows the adverse party to
admit the writing into evidence
Public record exception
needs to be
authenticated
public records
doesnt need to be
regular activity
807: Residual Exception
A statement is not excluded by the rule of hearsay even if not specifically covered by a hearsay exception when
- The statement has equivilant circumstantial guarentees of trustworthiness
- it is offered as evidence of a material fact
- it is more probative on the point for which it is offered than any other evidence that the propenet can obtain through reasonable efforts and
- admitting it will best serve the purposes of these rules and the interests of justice
807: Residual Exception
Notice
The statement is admissible only if
the proponent gives the adverse party reasonable notice of the intent to offer the statement and its particulars including the declarants name and address, so that the party has a fair oppertunity to meet it
807: Residual Exception
Requirements for application of the residual exception
- the court makes 4 specific preliminary findings and
- unless the party planning to offer hearsay under the exception has provided proper notice to the opponent
807: Residual Exception
(reliability)
The evidence is admissible if the
- statement is not specifically covered by a hearsay exception in rule 803 and 804
- it has equvilant circumstantial guarentees of trustworthiness
807: Residual Exception
(materiality)
The statement must be offered as evidence of a material fact
must be offerd to prove a fact that is of particular importance to the case
807: Residual Exception
probative value
The evidence must be more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts
807: Residual Exception
Interests of justice
The proponent must pursuade the court that “admitting it will best serve the purposes of the rules and the interests of justice”
807: Residual Exception
Notice
Evidence may only be admitted if, before trial,
the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair oppertunity to meet it
807: Residual Exception
The proponent must have used reasonable efforts to
find other admissible evidence
807: Residual Exception
The evidence must be more probative then
other reasonably available evidence
807: Residual Exception
The proponent must give the adverse party
reasonable notice of intent to offer the statement and its content
3 miscellaneous exceptions
- Public records of vital statistics
- records of religios orgs concerning personal or family history
- certificates of marriage, baptism, and similar ceremonies
803: Except to Hearsay regardless if declarant is available
Records of documents that affect an interest in property
The record of a document that purports to establish or affect an interest in property if:
- the record is admitted to prove the content of the original recorded document along with its signing and its delivery by each person who purports to have signed it,
- The record is kept in a in a public office and
- a statute authorizes recording documents of that kind in that office
803: Except to Hearsay regardless if declarant is available
Statements in documents that affect an interest in property
a statement contained in a document that perports to establish if the matter stated was relevent to the documents purpose
UNLESS later dealings with the property are inconsistent with the truth of the statement OR the purport of the document
803: Except to Hearsay regardless if declarant is available
A statement contained in a treatise, periodical, or phamplet if the statement is:
- called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination AND
- the publication is established as a reliable authority by the experts testimony, or by judicial notice
803: Except to Hearsay regardless if declarant is available
A statement contained in a treatise, periodical, or phamplet
If admitted, the statement may be
read into evidence but not recieved as an exhibit
A statement contained in a treatise, periodical, or phamplet
Applies as long as the treaties has been
established as reliable authority by the experts admission or testimony, by another experts testimony or by judicial notice
A statement contained in a treatise, periodical, or phamplet
The treatise itself is not admissible as an exhibit, instead…
relevent parts of the treatise may be read into evidence
