My notes 2 Flashcards
E: M testifies that T (co-conspirator) said “B wasn’t involved, it was A. Admission by party opponent?
No. It wasn’t in furtherance of the conspiracy, during the course of the conspiracy, or offered against the party who spoke.
Williamson rule (for statement against interest)
Look at a statement piece by piece and only admit part that’s against interest.
Then existing mental, emotional, or physical condition
Hearsay exception.
A statement of the declarant’s 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 relates to the validity or terms of the declarant’s will.
Short version of state of mind exception
1) a statement of a) the declarant’s then-existing i) state of mind, ii) emotional condition, III) sensory condition, or iv) physical condition, 2) not including a statement of memory or belief to prove the fact remembered or believed a) unless it relates to the validity or terms of the declarant’s will.
3) statements of memory are expressly exluded from the exception
4) statements of intention are included in the exception.
State of mind vs similar that are not hearsay
State of mind = hearsay exception
Circumstantial evidence of state of mind = not hearsay
Effect on the state of mind of the hearer = not hearsay
state of mind is different than present sense impression (which is also an exception)
A: “I love sally”. Offered to prove A loved sally at that moment. Admissible?
Yes, state of mind (direct evidence) exception
B says “S is the best person in the world” offered to prove that he loves S.
Exclusion. Circumstantial evidence of D’s state of mind.
A says “I love S” to prove that B is jealous
Not hearsay because effect on hearer
W: “P is distasteful to me” admissible to show that he is distasteful to her?
Yes, hearsay but state of mind exception
W: He bought me flowers, he took me to dinner, he took me for a ride, he gave me a good time, to husband. To show D did those things?
No. This is hearsay and doesn’t fit into the exception (because its a memory showing facts remembered).
W: He brought me flowers, he took me to dinner, he took me for a ride, he gave me a good time. To show that wife wants to hurt husband’s feelings?
Yes, not hearsay because it is circumstantial evidence of state of mind.
Can you use intent to engage in a future act as a state of mind exception?
Yes.
Hillmon doctrine (statements of intenion)
Statements regarding plan or intention may be admissible to prove that the plan or intention was acted upon.
a) falls within the 803(3) exception
b) can prove that the person had that state of mind in mkaing that statement and that they acted on that intention.
W: “H poisoned me.” Admissible under SOM?
No because it is a belief/backwards looking.
Could get in as circumstantial evidence of state of mind of being non-suicidal. But it is very likely to be used for the prejudicial effect.
E: W’s letter saying he intended to go with H to Colorado. To show they both went to Colorado?
Yes, under SOM exception. This is the Hillmon doctrine. Hearsay but gets in.
L: “I’m going to meet A at 9:30 at the restaurant to pick up MJ a promised to give me? To show that L went to the restaurant? To show that L met A? To show A promised MJ?
Hillmon doctrine: yes (majority)
Hillmon doctrine: Controversial
Hillmon doctrine: NO (backwards looking).
S wants to offer testimony of B that 2 days before assault, J said “the day after tomorrow, I’m going to start a fight with S.” Admissible to show intent to start a fight?
Yes. SOM. Under Hillman Doctrine. Presumption that people will act the way they say they will act.
G said”I saw J start that fight with S.” Admissible?
No. Backwards looking so no SOM.
S charged with murdering J. S claims that she was in another city that day. P wants to present B as a witness to testify that on morning of J’s death he heard J say “I’m planning to spend some time with S this afternoon,” in order to prove that he spent time with S on the date of his death. Admissible?
Minority of courts follow leg history restriction (you can’t use Hillmon to prove actions of another person). Majority goes with ACN/Pheaster (full force Hillmon doctrine). Some courts will allow the inference when there’s some corroboration of the activity of the other individual.
“I plan to cut J out of my will.” to show that the person had that intention had carried through that intention?
Yes. SOM Hillmon. Also will exception.
“I feel sick” to prove they were feeling sick at that very moment?
Yes, statement of them existing physical condition.
“I do believe that I feel sick.” Admissible?
Yes. It’s the exact equivalent of something we would allow. You can also add “I believe” when you’re looking inward. “I believe” matters when looking outward. That is inadmissible hearsay.
“I felt sick to my stomach all last week.” Admissible?
Not under SOM because backwards looking, but maybe a statement made for medical diagnosis or treatment.
Statement made for medical diagnosis or treatment
admissible hearsay if a statement that
a) is made for – and is reasonably pertinent to – medical diagnosis or treatment; and
b) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
Note: Statement is made by the person seeking diagnosis.
Note2: Statement does not have to be to a doctor.
Statement for medical purpose shorthand
1) made for medical diagnosis or treatment, and, 2) reasonably pertinent to diagnosis or treatment, 3) describing medical history, past or present symptoms or sensations, their inception, or their general cause.
“I fell on my arm, doc, and felt the bone snap. Now it is completely numb. Offered to prove all of those things?
Yes, under medical diagnosis. Under SOM only numbness would be admissible.
J is riding as a passenger in S’s car. Moments before an accident they have, J says to S in a clam voice “hmmm that red car is kind of weaving in its lane.” Moments later there is a crash. Is this admissible?
Yes. PSI.
10 minutes after car crash, J shaking, pale, says to motorist who stopped “that fool in the red car did this to us.” Admissible?
Yes, EU
J, in slow calm voice, tells a passerby who chanced upon scene of car crash “it’s funny how peaceful I feel under these circumstances.” Admissible?
Yes, state of mind
S “my leg hurts like crazy”
Yes SOM (physical condition). Possible medical treatment based on further facts (this would be a 104(a) preliminary. Also PSI. Possibly EU depending on more facts.
45 minutes after accident, S tells ambulance attendant, after saying my leg hurts like crazy, “its the same leg that I broke five years ago.” Admissible?
Yes, if for medical diagnosis or treatment. This would be a 104(a) question.
1 hour after a crash, S says to doctor at hospital “I hurt my leg in an automobile collission.” Can it be used to show ti was hurt in an automobile collision?
Yes for medicla diagnosis or treatment. It could give the doctor better insight into the injury.
“I hurt my leg in a head on collision, when the red car crossed the line and smashed into us.” Admissible?
First half ok, second is to specific for medical diagnosis/treatment. It simply isn’t relevant.
Statement as to fault for medical/treatment exception?
Statements as to fault don’t ordinarily qualify under medical diagnosis/treatment exception (although expections for domestic violence, especially when children involved, because the perpetrator is relevant to the treatment plan).
4 months after car crash, S says to doctor hired by her lawyer to serve as an expert witness in the case “My knee slammed really hard against the dashboard during the crash, it hurt terribly and has never been the same.” Witness not hired to treat S at all. Admissible?
Current federal rules: Yes, because it is made for diagnosis.
ACN: Says they traditionally weren’t admissible, but expert could state the basis of their opinion, including statements of this kind.
Motorist who witnessed a crash approached the ambulance attendant and said, referring to S, “see those cuts, she got those when she was dragged out of the car and across the gravel.”
Admissible. It is still for medical diagnosis/treatment. It doesn’t matter that it isn’t for the speakers medical diagnosis/treatment.
Identity of the abuser relevant for medical diagnosis/treatment?
Yes.
Statement to a babysitter or caseworker identifying domestic violence perpetrator?
Not if not made for purpose of getting medical treatment (maybe if it was made so babysitter or doctor could communicate info to doctor then it would be admissible).
Statement under the belief of imminent death
Admissible if the declarant is unavailable as a witness and:
in a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
Evidence in murder trial. Just before dying, with blood spurting out, “J has killed me by stabbing this dagger into my chest.”
Admissible?
Yes, belief of imminent death.
Dying declaration shorthand
A statement 1) by an unavailable declarant, 2) made while believing death to be imminent, 3) about its cause or circumstances, 4) in a homicide prosecution or civil case.
How soon must declarant expect their death to be for dying declaration?
They have to believe it to be imminent. It doesn’t have to be immeidate. A very short distance indeed. If he thinks he will die-tomorrow it will not do.
How certain a belief of death for dying declaration to apply/
A settled, hopeless expectation of death. Abandoned all hope of living.
Where does witness knowledge have to come from when witness unavailable?
Has to come from direct observation. it can’t just be their opinion based on circumstances. Only applies to what the declarant would have been able to testify to in court, under oath.