Relevance Flashcards
Hearsay Definition
Declarant;
Statement;
Out-of-court;
offered for the truth of the matter asserted
Reasons to Exclude Hearsay
- Absence of Cross-examination
- Absence of Demeanor Evidence
- Absence of Oath
Hearsay Risks
Four Hearsay Risks: • Risk of Misperception • Risk of Faulty Memory • Risk of Misstatement (“ambiguity”) • Risk of Insincerity
Nonhearsay Uses
- Impeachment
- Verbal Acts
- Effect on Listener or Reader
- Verbal Objects
- Circumstantial Evidence of State of Mind
- Circumstantial Evidence of Memory or Belief
801(d) Hearsay Exclusions
- Prior Inconsistent Statements
- Prior Consistent Statements
- Prior Statements of ID
- Admissions by a Party
Individual Admissions [FRE 801(d)(2)(A)]
o Statement made by party
o Statement offered against party
Adoptive Admissions [FRE 801(d)(2)(B)]
o Statement about which party manifests an adoption or belief
o Offered against the party
Admissions by Speaking Agents [FRE 801(d)(2)(C)]
o Statement made by a person authorized to speak on the party’s behalf
o Offered against party
Admission by Employee or Agent [FRE 801(d)(2)(D)]
o Statement by a party’s agent/employee
o Concerning a matter within the scope of employment
o made within existence of agency or employment (does not mean during business hours or on duty. Means while still employed)
o offered against the party
Admission by Coconspirator [FRE 801(d)(2)(E)]
o Existence of a conspiracy
o Declarant is a member of the conspiracy
o Defendant is a member of the conspiracy
o Statement made during conspiracy (pendency)
o Statement has to be in furtherance of the conspiracy (furtherance)
o Offered against a party
803 Major Hearsay Exceptions
- Present Sense Impression
- Excited Utterance
- State of Mind
- Statements for Medical Treatment
- Past Recollection Recorded
- Business Records
- Public Records
PRESENT SENSE IMPRESISON [FRE 803(1)]
- Statement describing or explaining event or condition
* Made while declarant perceiving event or condition OR immediately thereafter
EXCITED UTTERANCE [FRE 803(2)]
- Statement relating to startling event or condition
* Made while declarant under stress of excitement of event or condition
STATE OF MIND [FRE 803(3)]
Statement regarding: • Then-existing Physical Condition; OR • Then-existing mental condition; OR • Subsequent Conduct; OR • Fact about a will
STATEMENTS FOR MEDICAL TREATMENT [FRE 803(4)]
• Statement made for purposes of medical diagnosis/treatment; and
o Statement describes medical history; or
o Statement describes past or present symptoms or sensations; or
o statement describes the inception or general character or cause; and
• Statement reasonably pertinent to diagnosis or treatment
PAST RECOLLECTION RECORDED [FRE 803(5)]
- Memorandum or record; AND
- Concerning matter about which witness once had knowledge; AND
- Now knowledge is insufficient to testify fully & accurately; AND
- Statement made or adopted by witness; AND
- Made while fresh in witness’s memory; AND
- Accurately reflects once-fresh knowledge
BUSINESS RECORDS [FRE 803(6)]
- A record of business in any form
- Record contains acts, events, conditions, opinions, diagnoses
- Record made at or near time by, or from information transmitted by, person with knowledge
- Made in the ordinary course of business
- Kept in the ordinary course of business
- Foundation laid by custodian or other qualified person
PUBLIC RECORDS [FRE 803(8)]
• Records of a public office setting forth
o Activities of the office, or
o Matters observed and reported pursuant duty, excluding reports by law enforcement personnel in criminal cases, or
o Factual findings from investigations pursuant to legal authority, except against criminal defendants
Criteria for Unavailability [FRE 804(a)]
• Declarant claims a privilege
• Declarant refuses to testify
• Declarant testifies to not remembering the subject matter
• Declarant dead or infirm
• Declarant is unavoidably absent
*Statement is available if proponents actions are keeping witness from testifying
FORMER TESTIMONY [FRE 804(b)(1)]
- Declarant Unavailable (as a Witness)
- Testimony given at a trial, hearing, or deposition in same or different case
- Offered against party who had similar motive and opportunity to examine declarant in prior proceeding
If in a civil case, predecessor in interest had similar motive and opportunity
***Leaves out Grand Jury testimony. Does not qualify as opportunity to cross-examine because it is only prosecution, grand jury, and the witness
DYING DECLARATIONS [FRE 804(b)(2)]
- Declarant unavailable
- In homicide case or civil action
- Declarant makes statement while believing death imminent
- Statement concerns cause or circumstances surrounding death
DECLARATIONS AGAINST INTEREST [FRE 804(b)(3)]
Declarations made against declarant’s interest, declarant unavailable.
STATEMENTS OF PERSONAL OR FAMILY HISTORY [FRE 804(b)(4)]
These Statements can be either
•Proclamations by the declarant describing the declarant’s familial pedigree, or
o For statements by a declarant about that declarant, other proof of relationship is probably not required. For statements made by declarant offered to prove facts about the declarant are made the court doesn’t require personal knowledge. This exception rests on the assumption that the speaker has adequate information.
• Proclamations by the declarant describing something about a person which she is closely related to.
o When it comes to statements about others, courts may require additional information proving the declarants strong relation to the family.
FORFEITURE BY WRONGDOING [FRE 804(b)(6)]
- Declarant unavailable
- Statement by declarant offered against party
- Party wrongfully caused or acquiesced in causing declarant’s unavailability
- Party specifically intended to make testimony unavailable.
