MBE Evidence - Hearsay Flashcards
Hearsay
(1) An out-of-court statement of a person (2) offered to prove the truth of the matter asserted in the statement
- Inadmissible unless exception or exclusion applies
- Statement: includes oral statements and writings that are assertive. Nonassertive statements are not hearsay.
- W can be the declarant and the statement may still be hearsay because contemporaneous cross-examination is required
Non-Hearsay Purposes (Exclusions from rule)
(1) Legally operative words
(2) Statement offered to show effect on person who heard or read the statement:
(3) Statement offered as circumstantial evidence of declarant’s state of mind: not offered to prove truth, only to show declarant believed them to be true. (insanity and knowledge)
(4) Statement offered to show what machine or animal “said”.
Hearsay Exclusions
(1) Certain Prior Statements by Witness who is subject to cross:
(2) Admissions by Party-Opponent
Prior Statement by Witness:
Hearsay exclusion where witness to cross-examination AND
(1) prior statement of identification of a person
(2) prior inconsistent statement if (a) oral, (b) under oath, AND (c) made during formal trial, hearing, proceeding, or deposition
(3) prior consistent statement if being used to rebut charge of recent fabrication
MD: (4) Exclusion also applies to: prompt complaint by complaining witness in sex assault case
(5) prior inconsistent statements (a) in writing signed by witness (b) recorded by stenographic or electronic means
Admissions by Party-Opponent:
Hearsay Exclusion. Any statement made by party is admissible if offered against the party.
- Need not have been against interest at the time statement was made
- Lack of personal knowledge does not necessarily exclude
Adoptive Admissions by Party Opponent
Hearsay exclusion where party expressly or impliedly adopts statement made by another. Can be implied by silence where rxnble person would protest false statement
Admissions by Co-Parties
Exception to hearsay exclusion for admissions by party opponent. admissions of one co-party is not admissible against co-plaintiffs or co-defendants
Vicarious Admissions
Hearsay exclusion: agent/employee statement admissible against employer if within scope of employment and made during existence of employer/ee relationship
Unavailability of Witness (for hearsay exception purposes)
(1) exempted by privilege
(2) refuses to testify despite court order
(3) testifies to lack of memory
(4) death or physical illness
(5) beyond reach of subpoena
Hearsay Exceptions - Declarant Unavailable
(1) Former Testimony
(2) Statements Against Interest
(3) Dying Declarations
(4) Statements of Personal or Family History
(5) Statements Offered Against Party Procuring Declarant’s Unavailability
Former Testimony
Exception to hearsay rule that applies when declarant unavailable
(a) given at another hearing or in deposition under oath where
(b) similarity of parties and issues
(c) such that opportunity to develop testimony or cross examine at prior hearing was meaningful
- grand jury testimony is not admissible
Statements Against Interest
Exception to hearsay rule that applies when declarant unavailable
statement against pecuniary, proprietary, or penal interest of witness when made.
-Declarant must have personal knowledge of the facts
-Only applies to the actual statement, not the surrounding narrative.
Dying Declarations
- Exception to hearsay rule that applies when declarant unavailable
- in prosecution for homicide or a related civil action a declarant’s statement made while he believed death was imminent relating to cause or circumstances of death.
Hearsay Exceptions - Declarant’s Unavailability Immaterial
(1) Present State of Mind
(2) Excited Utterances
(3) Present Sense Impressions
(4) Declaration of Physical Condition
(5) Business Records
(6) Past Recollection Recorded
(7) Official Records & Other Official Writings
(8) Ancient Documents & Docs Affecting Property Interests
(9) Learned Treatises
(10) Reputation: concerning family history or concerning land boundaries
11) Family Records: statements of fact concerning family history recorded somewhere
Hearsay Exceptions & Exclusions
(1) Exclusions for non-hearsay purposes
(2) Exclusions for prior witness statements and party-opponent admissions
(3) Exceptions where declarant unavailable
(4) Exceptions where declarant unavailability is immaterial.
(5) The Residual Exception
Present State of Mind
- Hearsay exception for statement of declarant’s then-existing state of mind, emotion, sensation, or physical condition.
- admissible where (a) directly in issue and material (b) offered to show subsequent acts - intent
Excited Utterances
Hearsay exception for statement made during or soon after a startling event. Must concern facts of startling event. No time to reflect
Present Sense Impressions
Hearsay exception where persons comment on event at time perceived or immediately thereafter
Declaration of Physical Condition
- Present Bodily Condition: admissible
- Past Bodily Condition: admissible if made to assist diagnosis/treatment and made to medical personnel. FRE also allow statement about source of condition
Business Records
- Hearsay exception for any writing made if made in the regular course of business
- Entrant must have had a duty to record the data (part of his job)
- Someone must have personal knowledge of data (not necessarily declarant)
- Must be authenticated
- May be used to prove nonoccurrence of an event under modern rules if practice to record all such matters.
Past Recollection Recorded
Hearsay exception where writing made by declarant at or near time of event where memory cannot be recalled
Official Records & Other Official Writings
Hearsay exception. Writing must have been within scope of duty of employee, near time of event, and circumstances must indicate trustworthiness
NOT: prior criminal acquittal, civil case judgments in criminal proceedings and usually other civil proceedings
Ancient Documents & Docs Affecting Property Interests
Hearsay exception for authenticated docs that are 20 years or older or any doc that affects property interests
Learned Treatises
Hearsay exception. substantively admissible if (a) called to attention of expert upon cross or relied upon be him (b) established as reliable authority by testimony or admission of witness, expert testimony, judicial notice
Residual Hearsay Exception
(1) must be circumstantial guaranties of trustworthiness
(2) must be offered on a material fact and must be more probative than any other evidence so interests of justice are served
(3) proponent must give notice to adversary
Confrontation Clause & Hearsay
hearsay will not be admitted when: (1) offered against criminal D (2) declarant unavailable (3) statement was “testimonial”; and (4) accused had no opportunity to cross examine prior to trial
-Right may be forfeited by wrongdoing
-child sex abuse witness may testify by closed circuit TV if trial judge determines probable trauma to child
Testimonial: not related to ongoing emergencies.
Preliminary Facts Decided by Jury
- agency
- authenticity of document
- credibility
- personal knowledge
Preliminary Facts decided by Judge
- facts affecting competency of evidence
- requirements for privilege
- requirements for hearsay exceptions
Burdens of Persuasion/Production
(1) Burden of Production: party must produce sufficient evidence to create a question of fact and gets you past summary judgment
(2) Burden of Persuasion (Proof): Once both parties satisfy burden of production the decision of whether party (usually plaintiff/prosecution) met the burden of persuasion.
