Pg 42 Flashcards
What is involved in the “residual exception” for hearsay?
The idea is that the hearsay ban is like Swiss cheese: there are more holes than cheese.
Even if a particular out of court statement doesn’t neatly fit into an enumerated hearsay exception, the court has discretion to allow the evidence in during a particular trial if these elements are met: - trustworthiness – important issue – best available evidence – justice is served – advance notice
Why is the residual exception to hearsay not often invoked?
It’s only discussed if there is at least a plausible argument that could be made. I.e.: if a document fails to meet technical requirements of the business records exception, such as it is not kept in the ordinary course, but the circumstances give no reason to think that it is less reliable than any other document from the organization, it may be allowed in
In a breach of contract case, if a defendant cannot call a custodian or a qualified witness because the employee that created the record of a receipt and the secretary that kept the receipt have both died, would the residual exception to hearsay apply?
Likely, because the evidence is central to the issue of whether the defendant paid, there’s nothing to suggest a lack of trustworthiness, it meets the business records except that there is no one available to lay foundation, and nothing is the defendant’s fault
In an attempted murder prosecution of the defendant, if a police officer gives testimony that as a victim was laying in a pool of blood he said, “defendant and I fought and he sliced me open.“ If the victim recovered but then moved to another country, could this fall under the residual exception?
Yes, because this can’t be a dying declaration since that only applies to homicide cases, but here just because the victim didn’t die doesn’t mean his statement was less reliable
What is involved in the trustworthiness element of the residual exception to hearsay?
A statement is allowed in if it has equivalent circumstantial guarantees of trustworthiness. This means it is as trustworthy as a statement that would fall into a recognized exception
What is involved in the element of residual exception entitled “important issue“?
This requires an out-of-court statement that must be offered as evidence of a material fact/important fact. You can’t bend the rules unless there’s a good reason for it
What is involved in the element of residual exception that calls for the best available evidence?
Evidence must be more probative on the point that it is offered than any other evidence that proponent can get through reasonable efforts. The idea is that you don’t rely on this catchall if there is easily obtainable evidence to prove the same thing
What is involved in the element of the residual exception that calls for justice to be served?
Admitting evidence will best serve the purposes of these rules in the interest of justice. The court only wants trustworthy evidence to come in, so this guarantees that
What is involved in the procedural element of the residual exception to hearsay that is entitled “advanced notice“?
Before the trial or hearing, the proponent must give the adverse party reasonable notice of his intent to offer the statement which includes: the declarant’s name and address
Reasoning: the opposing party, and prepping for trial, must be able to tell whether evidence is likely to fit in an enumerated hearsay exception or not, and this is done by giving them notice
What is the difference between California and the FRE when it comes to the residual exception to hearsay?
California doesn’t have a residual exception
What is involved in impeaching a hearsay declarant?
When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court can admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.
This means you can attack the credibility of someone that doesn’t testify in court because they are functioning just like a witness that does testify in court
What is the rationale for allowing the impeachment of a hearsay declarant?
You can impeach a hearsay declarant since their out of court statement is reporting a fact to the jury just like a live witness, and the jury needs to weigh their credibility. This can be done by introducing another out-of-court statement of the declarant for impeachment purposes, even if it wouldn’t meet the classic requirements for prior inconsistent statements of a testifying witness
What is an important thing to remember when you’re impeaching a hearsay declarant?
It can only be used for impeachment, not for truth
What is the mnemonic that Pritikin suggested for hearsay exceptions?
I can imagine a Pritikin evidence test might raise blood pressure levels, judging from dude’s scathing reports
What are the hearsay exceptions?
- I: prior inconsistent statement – Can: prior consistent statement – imagine: statement of prior identification - A: party opp admissions (5) – Pritikin: present sense impression – evidence: excited utterance – test: then-existing state – might: medical diagnosis or treatment – raise: past recorded recollection & present recollection refreshed – blood: business records – pressure: public records – levels: learned treatises – judging: prior judgements of conviction – from: former testimony – dude’s: dying declaration – scathing: statement against interest – reports: residual exception ***Missing commercial lists and impeaching the hearsay declarant