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FL EVID > Heresay > Flashcards

Heresay Flashcards

1
Q

What is heresay?

A

Out of Court Statement (oral/written/non verbal)
Offered by Declarant (human)
for the trust of the matter asserted (prove element in the case)

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2
Q

What is the general heresay rule?

A

Exclude it unless an exception applies.

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3
Q

Does FL have a catch all heresay exception?

A

No

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4
Q

What is required for a statement not be heresay?

A

One element of the heresay definition is missing.

Run through the definition and see what is missing.

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5
Q

Is Copy of verdict or conviction heresay?

A

Yes - in Florida it is heresay and automatically excluded.

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6
Q

What are situations where an out of court statement is not heresay at all?

A

Statement is used to show

1) Word of legal consequence
2) Acceptance/Consent/ Waiver/ Permission
3) Conspiracy
4) Not in for truth but to prove a different fact (state of mind/ownership/knowledge)

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7
Q

What is the rule regarding statements determined to be non-hearsay?

A

Not hearsay because the statement is a special prior statement of the Witness or Parties made under oath

Not heresay if

1) Declarant must testify at trial; and
2) Must be subject to cross examination about prior statement.

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8
Q

Is a prior inconsistent statement under oath heresay?

A

No - it is non-hearsay

Must be at a court proceeding.

Can be used to impeach

Can be used for the truth of the matter

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9
Q

Is a prior consistent statement under oath heresay?

A

No - admissible for rehabilitation or rebuttal

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10
Q

Is a prior statement of ID under oath hearsay?

A

No is it non hearsay.

Must be about a person

Must be testifying.

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11
Q

What are examples of reliable hearsay where the testimony or declarant availability not matter?

A

1) Excited Utterance
2) Present Sense Impression
3) State of Mind
4) Statement of medical diagnosis
5) Recorded recollection
6) Business Record
7) Public Records
8) Market Report/Ancient Document
9) Admission by party opponent (generally hs unless the statement is by the defendant and offered agianst them)
10) Learned Treatise - only used to impeach an expert witness

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12
Q

What are reliable heresay where the Defendant must be unavailable?

A

1) Former Testimony
2) Dying Declaration
3) Statement by ill or deceased
4) Statement v. Interest

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13
Q

Statement by Deceased or Ill Declarant

A

1) Must be unavailable - death or illness
2) Action against estate or trust of deceased person
3) Oral or written statement admissible
4) if it involves the same subject matter as a previously admitted statement made by the same declarant

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14
Q

In Florida, what are statements by Opposing Parties/ Admissions treated as?

A

An exception to the hearsay rule.

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15
Q

Are hearsay statements of a co-conspirator admissible to prove participation of another co-conspirator?

A

No - In admissible hearsay. Participation should be established by independent evidence.

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16
Q

True or False: Once a conspiracy is established, the conspirator’s statement will qualify as a vicarious admission of co-conspirator.

A

True

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17
Q

Former Testimony

A

1) Criminal Proceeding -Declarant must be unavailable
2) Civil Proceeding - unavailability not matter

Court of Appeals held that lack of unavailability requirement was unconstitutional.

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18
Q

True or False: A declarant must be unavailable for a dying declaration.

A

True

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19
Q

True or False: Dying declaration is admissible in a civil case.

A

True

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20
Q

True or False: Dying declaration is not admissible in a criminal case.

A

False - it is admissible.

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21
Q

Does Fl provide a hearsay exception for an out of court statement of elderly or abused adult describing acts of abuse, negligence, or violence?

A

Yes

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22
Q

What are the requirements for the heresay exception regarding elder abuse?

A

1) There must be corroborative evidence of abuse
2) The declarant must be unavailable.

Declarant’s unavailability can be due to the fact that trial could cause sever emotional, mental, or physical harm.

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23
Q

What are classic grounds establishing unavailability?

A

1) Death
2) Infirmity
3) Lack of Memory

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24
Q

What is the issue with the hearsay exception for elder abuse?

A

The unavailability requirement presents issues under the confrontation clause when it relates to a criminal case.

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25
Q

True or False: Unde the public records and reports factual findings resulting from legally authorized investigations are admissible.

A

False - They are inadmissible.

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26
Q

Does FL recognize a hearsay exception for criminal convictions.

A

No - they are not admissible as substantive evidence.

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27
Q

What is the ancient document hearsay exception?

A

1) Unavailability not matter

2) Applies to statement authenticated in a document that is at least 20 years old.

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28
Q

Does FL recognize a hearsay exception for learned treatise?

A

No - there can only be used to attack the creditability of an expert once it has been established as authoritative.

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29
Q

Does FL have a hearsay exception for statements of a victim with a physical, mental, emotional, or development age of 16 or less?

A

Yes - if it describes any act of child abuse, neglect or sexual abuse.

Admitted:
1) the time, content, and circumstances of statement provide sufficient safeguards or reliability
and
2) child either testifies or is unavailable as a witness.

If the child is unavailable, there must be trustworthy corroborative evidence of the crime.

Found in criminal cases to violate the confrontation clause.

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30
Q

Reasons for excluding hearsay

A

1) The party had no chance to test declarant’s perception
2) issue with memory
3) issue with sincerity
4) ability to relate the statement - did they mean to say what they said

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31
Q

State of Mind

A

Exception to hearsay - statements that reflect directly on the declarant’s state of mind.

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32
Q

Is there such a thing as animal or machine heresay?

A

No - must be out of court statement of a human.

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33
Q

Is a person who testifies as to what the clock said testifying as to heresay?

A

No - they are just saying what the machine says - this is not hearsay.

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34
Q

Is this hearsay: D told me the light was red.

A

Hearsay

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35
Q

Prosecution introduces lab report to prove envelop contained hereoin

A

Hearsay

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36
Q

Written receipt describing property in question

A

Heresay

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37
Q

Where is hearsay within a hearsay admitted?

A

When both the inner and outer hearsay statement are admissible under the hearsay rules.

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38
Q

Prior Inconsistent Statement

A

Not Hearsay

No hearsay if made under penalty of perjury at a prior trial or proceeding or deposition.

Admissible to impeach/substantive proof

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39
Q

Prior Consistent Statement

A

Admissible if offerred to rebut an express or implied charge that witness is lying because of statement made before

or to rehab witness whose credibility has been impeached on some non-character ground like lie or exaggeration.

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40
Q

Prior Statement of ID

A

A witness’ prior statement identifying a person he perceived earlier is not heresay.

Applies even if the W lacks memory and cannot testify as to basis of prior ID.

41
Q

What does it mean for a party to be unavailable?

A

1) Dead or ill
2) Privilege
3) Refuses to testify despite court order
4) Doesn’t remember subject matter
5) Absent and can’t compell attendance.

42
Q

What is a statement against interest?

A

Hearsay Exception

Statement of a person, now unavailable, which is admissible if it was against a person’s pecuinary, proprietary or penal interest when made.

Declarant must have personal knowledge.

Declarant must have been aware that statement was against interest and had no motive to lie when statement was made.

43
Q

What is a recorded recollection?

A

Witnesses are permitted to refresh their memories by looking at almost anything before or while testifying. (present recollection revived)

If that fails, extrinsic evidence can be introdced if a proper foundation is laid - the record was made by an observer when the facts were still fresh in their mind.

44
Q

What is admission by party opponent?

A

A statement by an opposing party.

The party who made the statement cannot comply about the opportunity not to cross examine itself.

Need not be against interest when it was made.

Lack of personal knowledge does not disqualify the statement.

Former judicial statement - conclusive
Informal statements during testimony - can be explained
Extra judicial statements - not conclusive and can be explained

45
Q

Does FL recognize Deadman Statute?

A

No

46
Q

What are hearsay exceptions when the Declarant must be unavailable?

A

1) Former Testimony
2) Dying Declaration
3) Statement v. Interest
4) State of personal or family history
5) Statement of ill or deceased declarant similar to admitted statement

47
Q

What is a Dying Declaration?

A

Exception to Heresay

Admissible in criminal and civil cases

1) Declaration must be made
2) By the now unavailable declarant
3) While believing that death was imminent
4) that concerns the circumstance of what he believed to be impending death.

48
Q

What is Prior Statement of Identification?

A

Non-Hearsay

A victim’s description of her assailant to a

49
Q

Is a Victim’s description of her assailant to a third party a prior “ID” of a person after perceiving him?

A

No - it is hearsay

50
Q

Under Florida Law is an Admission by Party Opponent nonhearsay?

A

No - it is treated as an exception to the hearsay rule

51
Q

What are three reasons that declarant statements are not hearsay?

A

1) Not hearsay - an element is missing
2) Nonhearsay because special prior statement by witness or party
3) Reliable hearsay that falls within an exception.

52
Q

Are operative facts or verbal acts heresay?

A

No - there are words of offer, acceptance, conspiracy, defamation, misrepresentation, waiver, etc.

53
Q

Are statements offerred to show the effect on listener or reader hearsay?

A

No - to show notice or to show reason for action or inaction.

54
Q

Is state of mind hearsay?

A

No - statements are offered not for their truth but as circumstantial evidence of Declarant’s state of mind.

55
Q

What are the three statements of a testifying witness that are not hearsay?

A

1) Prior inconsistent statement given under oath
2) Prior consistent statements
3) Prior statement of ID

56
Q

What is required for a statement of a testifying witness not be hearsay?

A

1) Declarant must testify at trial

2) Declarant must be subject to cross exam

57
Q

Prior Inconsistent Statement

A

Non Hearsay

1) Statement must be made at a trial, hearing , depo or other proceeding.
2) Declarant must testify at trial
3) Declarant must be subject to cross exam

58
Q

Prior Consistent Statement

A

Non-Hearsay

1) Statement must be used to rebut charge of recent fabrication or improper influence or motive (statement made before motive arose.
or
Can be used to rehab a witness.

2) Declarant must testify at trial
3) Declarant must be subject to cross exam

59
Q

Prior ID

A

1) Must be of a person
2) Declarant must testify at trial
3) Declarant must be subject to cross exam

60
Q

In Florida, is Admission by Party Opponent non-hearsay?

A

No - it is an exception to the hearsay rule.

61
Q

Admissions by Party-Opponent

A

Exception to Hearsay

Statement attributable to a party offered against that party.

No need to be against interest at the time made so no special reliability required.

Need not be based on personal knowledge.

Can be in the form of a legal conclusion.

Type of Statement:

1) Statements made or adopted by the party.
2) Statement made by their spoke’s person
3) Statements made by their agent within the scope of the relationship
4) Co-conspirator statement made during and in furtherance of the conspiracy.

62
Q

True or False: If a reasonable person would be expected to answer and didn’t the statement can be taken as being an admission.

A

True

63
Q

Can a statement made to police after a conspiracy come in as a co-conspirator statement against all parties?

A

No - the statement must have been made during the course of a conspiracy.

Can be brought in vs. the party that made the statement.

64
Q

Excited Utterances

A

It is a hearsay exception.

Requires:

1) A startling event
2) A statement made while under the stress of excitement
3) Statement must be related to the startling event.

65
Q

Present Sense Impression

A

Exception to hearsay

A statement describing or explaining an event or condition while the declarant was perceiving the event or condition immediately thereafter.

Outward looking statement.

66
Q

What is the difference between an Excited Utterance and Present Sense Impresison?

A

No startling event is required for Present Sense Impression.

There can be no time lapse between the event and the statement with respect to Present Sense Impression.

67
Q

Declarant’s State of Mind

A

Exception to Hearsay
Includes:
1)Declaration of intent - to do something in the future
2) Declarant of present mental or physical condition - a declaration of a then-existing mental or physical condition.

68
Q

Statements for Purpose of Medical Diagnosis or Treatment

A

Exception to Hearsay

Statement made for:

1) Medical diagnosis or treatment; and
2) Describing medical history or past symptoms or causes as it relates to treatment.

This covers statements of past physical condition and statements made about someone elses conditions.

69
Q

What is the difference between Declarant’s state of mind and Statement for Medical Diagnosis or Treatment?

A

Statement for medical diagnosis covers a past physical condition and statements made about someone else’s conditions to seek medical help.

70
Q

Declarant’s Recorded Recollection

A

Exception to Hearsay

W makes prior statement and forgets.

The document can only be read into evidence, not introduced as an exhibit unless the adverse party chooses to offer it.

71
Q

Private Business Record

A

Exception to Hearsay

Records of a regularly conducted activity made at or near the time by or from information transmitted by a person with knowledge are admissible if kept in the ordinary course of business.

1) Personal knowledge - someone in the business chain
2) At or near time of obtaining info
3) Regular business activity
4) Regularly made record
5) Burden on opponent to establish

72
Q

What is the function of the business record hearsay exception?

A

The document is a substitute for the in court testimony of the employee.

73
Q

How do you authenticate a business record?

A

Call records custodian or employee to testify that the elements of the business record have been met or

Written certification under oath attesting to elements of business records hearsay exception.

74
Q

If a business record contains a statement within the record, what is the rule?

A

Both the document and statement must abide by the hearsay rule.

75
Q

Public Record

A

Hearsay Exception

Records of a government agency that concern:

1) Activities of the agency
2) Any matter observed by a public official with duty to observe and report
3) Investigative reports in civil cases and against the government in criminal cases

76
Q

How can an opponent prevent a business record or public record from being admitted?

A

Show that the sources of the information or other circumstances appear untrustworthy.

77
Q

Are public police reports or any public reports against a criminal defendant admissible under hearsay rules?

A

No - not admissible against an accused in a criminal case because we want live testimony and an opportunity for D to confront the W.

78
Q

What can the absence of a business record prove?

A

That a matter did not occur or exist if the business regularly records such matters.

79
Q

Are learned treatises hearsay exception in FL?

A

Only admissible to impeach an expert - not to bolster or as substantive evidence.

80
Q

What are market reports?

A

Exception to hearsay

Compilations of generally relied upon list or information in the market place by the public or financial occupations.

81
Q

Anciety Documents

A

Exception to hearsay

Documents over 20 years old.

82
Q

What are the 4 hearsay exceptions where the declarant must be unavailable?

A

1) Former Testimony
2) Statement v. Interest
3) Dying Declarations
4) Statement by Ill or Deceased

83
Q

What does it mean for a declarant to be unavailable?

A

Testimony is unavailable either because privilege, memory failure, dead, or can’t procure attendance.

84
Q

Former Testimony

A

Hearsay Exception - D must be unavailable

Testimony given in an earlier proceeding by someone who is unavailable.

Admissible if the testimony is now offered against a party who had an opportunity or similar motive to develop the testimony by direct, cross, or redirect.

The party against whom the testimony is offered must have been a party in the first proceeding (criminal) or at least in privity (civil)

85
Q

Statement v. Interest

A

Hearsay Exception - D must be unavailable

Can be made by any person need not be party to the case.

Requires personal knowledge.

Must be against a person’s pecuniary, proprietary, or penal instrument - or statement which would expose D to civil liable or which would tend of defeat a civil claim made by D at the time the statement was made.

A statement that exposes D to criminal liable and offered in a criminal case must be corroborated with evidence.

86
Q

Dying Declarations

A

Hearsay Exception - D must be unavailable

87
Q

Statement by Ill or Deceased

A

Hearsay Exception - D must be unavailable

88
Q

Would the grand jury testimony of an unavailable declarant that is offered against the accused in a criminal case be a former testimony?

A

No because the accused does not have an opportunity to cross examine grand jury witness

89
Q

What is the rule regarding Statement v. Interest in a criminal case?

A

A statement that exposes D to criminal liable and offered in a criminal case must be corroborated with evidence.

90
Q

Can the defendant’s guilty plea in a case be allowed in as an exception to hearsay?

A

Yes - as a party opponent admission.

91
Q

What can a party opponent admission be used for?

A

It is fully admissible both as substantive evidence and to impeach.

92
Q

If an impeaching statement is found in D’s deposition, is it admissible.

A

Yes - generally fully admissible.

Since it is made under oath, it is nonhearsay and fully admissible. It can be used to impeach, substantive proof of the fact stated, and to prove the truth of the matter asserted.

93
Q

Unavailable of defendant is not required in ____ cases regarding former testimony.

A

Civil

94
Q

When is a statement by deceased or ill admissible?

A

When it involves the same subject matter as previously admitted statement made by the same declarant.

95
Q

Is there a special hearsay exception for disabled adults or elderly abuse?

A

Yes - when it relates to act of abuse or neglect or any violent act committed against them.

Must be unavailable.
Must have corroborative information.

96
Q

Are criminal convictions admissible as substantive evidence?

A

No

97
Q

Does FL have a special exception to hearsay for child abuse?

A

Yes

Statement of victim with physical/mental/emo/ deve
Under 16
Describing abuse/neglect

Child can testify or be unavailable.
If unavailable, need additional information.

98
Q

Do the hearsay exceptions for Elder or Disabled Adults or abused children present any issues?

A

Yes in criminal cases with respect to the confrontation clause.

FL EVID (7 decks)

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