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Evidence > Hearsay pt. 2 > Flashcards

Hearsay pt. 2 Flashcards

1
Q

803: Except to Hearsay regardless if declarant is available

Records of a regularly conducted activity
- the record was kept

A

in course of a regularly conducted activity of a business, organization, occupation or calling, whether or not for profit

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2
Q

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

A
  • the record was made at or near the time by
  • or from information transmitted by
  • someone w knowledge
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3
Q

803: Except to Hearsay regardless if declarant is available

Records of regularly conducted activity
- making the record was

A

a regular practice of that activity

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4
Q

803: Except to Hearsay regardless if declarant is available

Records of regularly conducted activity
- all conditions must be shown by

A

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

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5
Q

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:

A
  1. The evidence is admitted to prove the matter did not occur or exist; and
  2. A record was regularly kept for a matter of that kind
  3. neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
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6
Q

803: Except to Hearsay regardless if declarant is available

Public record
- A record or statement of a public office if it sets out:

A
  1. the office’s activities
  2. a matter observed under a legal duty to report (not including a criminal case, a matter observed by law enforcment personal), OR
  3. in a civil case, or against the gov in a crim case, factual findings from a legally authorized investigation, AND
  4. neither the source of information nor other circumstances indicate a lack of trustworthiness
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7
Q

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:

A
  1. The record or statement does not exist
  2. a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind
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8
Q

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

A
  • 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
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9
Q

803: Except to Hearsay regardless if declarant is available

Records of regularly conducted activity
“a record”

A

includes all modern forms of digital data collection as well as conventional written documents

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10
Q

803: Except to Hearsay regardless if declarant is available

Records of regularly conducted activity
has to be of a

A

act, event, condition, opinion, or diagnosis

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11
Q

803: Except to Hearsay regardless if declarant is available

Records of Regularly Conducted Activity
- Records containing opinions must:

A
  1. overcome a hearsay objection AND
  2. satisfy the req’s of art VII of rules of evidence
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12
Q

803: Except to Hearsay regardless if declarant is available

Records of regualrly conducted activity
“made at or near the time”

A

Mundane and complex details should be recorded quickly bc it is likely that recollections concerning such matters will soon deteriorate

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13
Q

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:

A
  • has personal knowledge of the matters described in it OR
  • recieves input from another person who has that knowledge
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14
Q

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

A

the employee transmitting the info has personal knowledge

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15
Q

803: Except to Hearsay regardless if declarant is available

Business records exception
a declarant must be acting under a

A

business duty

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16
Q

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)

A

The part of the report remarking or based on such statements can be removed from the record, the remaining parts may qualify

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17
Q

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

A

concerns the business’s regular activity, as it is then more likely to be accuate

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18
Q

803: Except to Hearsay regardless if declarant is available

Reocrds or regularly conducted activity
- when reports prepared for litigation can be admissible

A

if both made for purpose of litigation and is also made in the regular course of business.

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19
Q

803: Except to Hearsay regardless if declarant is available

Records of regularly conducted activity
“custodian”

A

the person whose responsibility it is to maintain the files of the business

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20
Q

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:

A
  1. 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
  2. was kept in the course of the regularly conducted activity
  3. was made by the regularly conducted activity as a regular practice
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21
Q

803: Except to Hearsay regardless if declarant is available

Record of regularly conducted activity
- The propenet must provide what before using the evidence

A
  • 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
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22
Q

803: Except to Hearsay regardless if declarant is available

Record of regularly conducted activity
“business”

A

professions, occupations, calling, nonprofits

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23
Q

803: Except to Hearsay regardless if declarant is available

Public records
when factual findings from a legally authorized investigation is admissible

A

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

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24
Q

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?

A
  • public records are admissible without witness if authenticated
  • public recordsd can be self-authenticating under rule 902
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25
Q

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

a defendant in a criminal case

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26
Q

803: Except to Hearsay regardless if declarant is available

An official record can be admissible in

A

civil cases and cases against the gov. and where findings are based in part on statements who are not govermental officials

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27
Q

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

A

that he or she reviewed the records and observed there was no entry

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28
Q

804: unvailability to declarant required

Rule 804: A declarent is considered to be unavailable as a witness if the declarant:

A
  1. is exempted from testifying about subject matter of the declarants statemnt because the court rules that a privlige applies
  2. refuses to testify about the subject matter despite a court order to do so
  3. testifies to not remember the subject matter
  4. cannot be present or testify at the trial because of death or a then existing infimity, physical illness, or mental illness, OR
  5. is absent from the trial or hearing and the statements proponent has not been able, by process or another reasonable means to procure
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29
Q

804: unvailability to declarant required

does not apply if the statements proponets

A

procured or wrongfully caused the declarants unavailablity as a witness in order to prevent the declarant from attending or testifying

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30
Q

804: unvailability to declarant required

Because a statement within the hearsay execptions will be relevant regardless of the availability of the declarant,

A

unavailablity is a preliminary fact that must be decided by the court

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31
Q

804: unvailability to declarant required

Proof of the unavailability requires the propenet to demonstrate that

A

reasonable means were used to locate the declarant

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32
Q

804: unvailability to declarant required

How a declarant may be deemed unavailable even if they are in court

A

804 provides that a declarant is unavailable if she has a privilege that exempts her from testifying

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33
Q

804: unvailability to declarant required

If a party claims it was unable to secure the presence of the declarant, determine whether it..

A

shown it made reasonable efforts to secure the declarants attendance or testimony

34
Q

804: unvailability to declarant required

Former testimony
Testimony that:

A
  1. was given as a witness at trial, or lawful disposition whether given during the current proceeding or a different one, and
  2. 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
35
Q

804: unvailability to declarant required

Former testimony
When offered at the 2nd trial, witness testimony from the first trial is

A

hearsay

36
Q

804: unvailability to declarant required

Former testimony
Need:

A
  1. witness testimony at 1st trial was offered for some purpose that it is currently offered for
  2. The party who the testimony is offered had both an oppertunity to cross-examine witness at the first trial
  3. the motive to do so was identical to the motive in the 2nd trial
37
Q

804: unvailability to declarant required

Former Testimony
if a crim prosecution, the party against who m the evidence is now offered

A
  1. must have had oppertunity to develope it by direce, cross, redirect examination in a earlier trial AND
  2. must have had a “similar motive” to develop the testimony by such examination
38
Q

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

A
  1. have had an oppertunity
  2. and similar motive to develop the witness’s testimony at an earlier trial
39
Q

804: unvailability to declarant required

Former testimony
If current trial is a civil action

A

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

40
Q

804: unvailability to declarant required

Former testimony
What does it mean to have “similiar motive”?

A
  • 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
41
Q

804: unvailability to declarant required

Former testimony
The most accurate way to prove the witness’s prior testimony is by offering

A

the court reporters transcript

42
Q

804: unvailability to declarant required

Former testimony
The court reporters transcript is hearsay but will

A

qualify as the reporters recorded recollection or as public record

43
Q

804: unvailability to declarant required

2 ways to prove former testimony

A
  1. court reporters testimony
  2. call a witness with first hand knowledge of that testimony
44
Q

804: unvailability to declarant required

Calling a witness with first hand knowledge of that testimony

A
  • need not have personal knowledge of the truth of the earlier testimony
  • only need personal knowledge of the testimony itself
45
Q

804: unvailability to declarant required

Former testimony
How the best evidence rule applies when using the cort reporter transcipt

A

Only applies if the witness proposes to testify to what the transcript says

46
Q

804: unvailability to declarant required

Statement under the belief of mminent death
applies in

A

a prosecution for homicide or in a civil case

47
Q

804: unvail. to declarant required - stment under belief of imm. death

A statement that the

A

declarant made while believing the declarants death to be imminent, made about its cause or circumstances

48
Q

804: unvail. to declarant required - stment under belief of imm. death

3 prerequisites, in addition to the unavilability of the declarant

A
  1. The case in which the evidence is offered must be a civil action of a homicide prosecution
  2. the statement must have been made by the declarant while believing that his or her death was immient
  3. the statement must concern the cause or circumstances of what the declarant believed to be impending death
49
Q

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

a civil case and the declarant is unavailable

50
Q

804: unvail. to declarant required - stment against interest

A statement that:

A

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

51
Q

804: unvail. to declarant required - stment against interest

The statement needs to be supported by

A

corroberating circumstances that clearly indicate its trustworthiness

52
Q

804: unvail. to declarant required - stment against interest

Proponent must demonstrate that the statement:

A
  1. was so contrary to certain interests or
  2. had so great a tendancy to subject the declarant to certain risks
  3. that a reasonable person in the declarants position
  4. would have made the statemetn only if rhe person believed it to be true
53
Q

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

A

circumstances in which the statement was made

54
Q

804: unvail. to declarant required - stment against interest

the statement will not be admissible unless the court concludes

A

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

55
Q

804: unvail. to declarant required - stment against interest

need not be made by

A

a party

56
Q

804: unvail. to declarant required - stment against interest

Objectionable under 602 if the declarant…

A

lacks personal knowledge of the facts contained in her statement

57
Q

804: unvail. to declar. req - stment agnst pty wrngfuly cau decl unavai.

A statment

A

offered against a party that wrongfully caused or acquisced in wrongfully clausing declarants unavailability and did so intending that result.

58
Q

803 Statement made for medical diagnosis or treatment.
A statement that:

A
  1. is made for and is reasonsably pertinent to medial diagnosis or treatment and
  2. describes medical history, past or present symptoms, their inceptions, or their general cause
59
Q

Recorded recollection

A record that

A
  1. is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately
  2. was made or adopted by the witness when the matter wsa fresh in their memory
  3. accurately reflects the witness knowledge
60
Q

Recorded Recollection
If admitted the record may

A

be read into evidence but may be recieved as an exhibit only if offered by an adverse party

61
Q

612 writing used to refresh a witness memory

allows the adverse party to

A

admit the writing into evidence

62
Q

Public record exception

needs to be

A

authenticated

63
Q

public records

doesnt need to be

A

regular activity

64
Q

807: Residual Exception

A statement is not excluded by the rule of hearsay even if not specifically covered by a hearsay exception when

A
  1. The statement has equivilant circumstantial guarentees of trustworthiness
  2. it is offered as evidence of a material fact
  3. 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
  4. admitting it will best serve the purposes of these rules and the interests of justice
65
Q

807: Residual Exception

Notice
The statement is admissible only if

A

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

66
Q

807: Residual Exception

Requirements for application of the residual exception

A
  1. the court makes 4 specific preliminary findings and
  2. unless the party planning to offer hearsay under the exception has provided proper notice to the opponent
67
Q

807: Residual Exception

(reliability)
The evidence is admissible if the

A
  1. statement is not specifically covered by a hearsay exception in rule 803 and 804
  2. it has equvilant circumstantial guarentees of trustworthiness
68
Q

807: Residual Exception

(materiality)
The statement must be offered as evidence of a material fact

A

must be offerd to prove a fact that is of particular importance to the case

69
Q

807: Residual Exception

probative value

A

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

70
Q

807: Residual Exception

Interests of justice

A

The proponent must pursuade the court that “admitting it will best serve the purposes of the rules and the interests of justice”

71
Q

807: Residual Exception

Notice
Evidence may only be admitted if, before trial,

A

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

72
Q

807: Residual Exception

The proponent must have used reasonable efforts to

A

find other admissible evidence

73
Q

807: Residual Exception

The evidence must be more probative then

A

other reasonably available evidence

74
Q

807: Residual Exception

The proponent must give the adverse party

A

reasonable notice of intent to offer the statement and its content

75
Q

3 miscellaneous exceptions

A
  1. Public records of vital statistics
  2. records of religios orgs concerning personal or family history
  3. certificates of marriage, baptism, and similar ceremonies
76
Q

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:

A
  1. 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,
  2. The record is kept in a in a public office and
  3. a statute authorizes recording documents of that kind in that office
77
Q

803: Except to Hearsay regardless if declarant is available

Statements in documents that affect an interest in property

A

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

78
Q

803: Except to Hearsay regardless if declarant is available

A statement contained in a treatise, periodical, or phamplet if the statement is:

A
  1. called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination AND
  2. the publication is established as a reliable authority by the experts testimony, or by judicial notice
79
Q

803: Except to Hearsay regardless if declarant is available

A statement contained in a treatise, periodical, or phamplet
If admitted, the statement may be

A

read into evidence but not recieved as an exhibit

80
Q

A statement contained in a treatise, periodical, or phamplet

Applies as long as the treaties has been

A

established as reliable authority by the experts admission or testimony, by another experts testimony or by judicial notice

81
Q

A statement contained in a treatise, periodical, or phamplet

The treatise itself is not admissible as an exhibit, instead…

A

relevent parts of the treatise may be read into evidence

Evidence (8 decks)

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