Hearsay Rules for Quiz Flashcards
CA 1200
The Hearsay Rule
Hearsay Evidence is evidence of a statement that was made other than by a witness testifying at the hearing and that is offered to prove the truth of the matter asserted
FRE 803(1)
Present Sense Impression
A statement describing or explaining an event or condition made while or immediately after the declarant perceived it
FRE 803(2)
Excited Utterance:
A statement made relating to a startling event or condition, made while the declarant was under the stress of the excitement that caused it
FRE 803(3)
The Existing Mental, Emotional, or Physical Condition:
A statement of the declarants then existing state of mind (such as motive intent or plan) or emotional, sensory or physical condition (such as mental feeling, pain, or bodily health) but not including a statement of memory or belief to prove the fact remembered or believed unless it related to the validity or terms of the declarants will
FRE 803(4)
Statement Made for Medical Diagnosis: A statement that:
A: is made for and is reasonably pertinent to medical diagnosis or treatment
B: Describes medical history; past and present symptoms or sensations; their inception; or their general cause.
FRE 803(5)
Recorded Recollection: A record that:
A: is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately
B: was made or adopted by the witness when the matter was fresh in the witness’s memory
C: Accurately reflects witness’s knowledge
FRE 803(6)
Records of Regularly Conducted Activity:
A: Record was made at or near the time by or from someone with knowledge
B: Record was kept in course of regularly conducted activity of business
C: Making of the record was regular practice
D: All conditions are shown by testimony or certification
E: The opponent does not show that the source of information or method or circumstances indicate a lack of trustworthiness.
FRE 803(8)
Public Records: A record or statement of a public office if:
A: It sets out
(I) The office’s activities
(ii) a matter observed while under legal duty to report but not including, in a criminal case, a matter observed by law enforcement personnel or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) the opponent does not show a lack of trustworthiness from source of information
Hearsay coming in other than for the truth
1: Effect on the listener
2: State of mind
3: Legally operative facts
4:
FRE 801(d)(2)
The rule says that a statement is admissible under this exception if it is “offered against a party” and is
(A) his or her own statement, in an individual or representative capacity;
(B) a statement that the party has manifested an adoption of or a belief in its truth;
(C) a statement by someone authorized by the party to make it;
(D) a statement by the party’s agent or servant about a matter within the scope of agency or employment, made during the existence of the relationship; or
(E) a statement by the party’s co-conspirator during and in furtherance of the conspiracy.
801(d)(1)
- A witness’s own prior statements - sometimes.
A witness’s own prior oral and written statements are usually hearsay. However, under Rule 801(d)(1), if the witness-declarant testifies and is available for cross-examination concerning the prior statement, the declarant’s own statements are non-hearsay in three narrowly defined situations.
a. 801(d)(1)(a): Prior inconsistent statements under oath. If a witness testifies at trial, the witness’s prior inconsistent statements made under oath at a trial, hearing or deposition are not hearsay.
b. 801(d)(1)(b): Prior consistent statements to rebut a charge of fabrication.
c. 801(d)(1)(c): Statement of identification. If a witness testifies a trial and has trouble identifying the perpetrator, testimony that the witness previously made a statement identifying him is not hearsay.
CA and FRE Prior Inconsistent Statement Difference
CA can come in for truth or impeachment
FRE can only come in for the truth if the statement was made under oath
CA 1242
Dying Declaration:
Statement made by dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if made with personal knowledge and under sense of impending death.
(FRE does not require death) 804(b)(2)
Civil Cases and Homicide only!
FRE Declarant Unavailable
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).
FRE 804(b)(1)
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
804(b)(3)
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
804(b)(4)
(4) Statement of Personal or Family History. A statement about:
(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.
804(b)(6)
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability.
A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
