Reliability: Hearsay, Non-Hearsay, and Hearsay Exceptions Flashcards
What are the three elements of hearsay?
Rule 801(c). Definition of Hearsay
- A statement (“assertion” that is oral, written, or assertive conduct)
- Made out of court
- Offered in evidence to prove the truth of the matter asserted in the statement.
What are the three most common categories of non-hearsay?
- Statments that have independent legal significance.
- Prior inconsistent statements
- Statements that are offered to prove notice, knowledge, or to show the listener’s state of mind.
What 4 types of admissions by a party are not hearsay when offered against that party?
Rule 801(d)(2). Admissions by Party Opponent
- party’s own admission
- adoptive admissions (party agrees when someone else makes a statement)
- admissions by authorized persons, agents, and employees
- co-conspirator statements
What are the three types of admissible prior statements?
Rule 801(d)(1). Prior Statements by Witnesses
Admissible prior statement types:
- Prior inconsistent statement made under oath.
- Prior consistent statement offered to rebut claim of recent fabrication, improper influence, or motive (i.e., made before the motivation to lie).
- Prior statement that identifies a person that the declarant saw earlier.
How do the federal rules for prior inconsistent statements differ from the AZ rules?
FRE: Only prior inconsistent statements made under oath can be used for both impeachment and truth.
- PISs not made under oath cannot be used for truth; limiting instruction required.
AZ: All prior inconsistent statements are admissible for both impeachment and truth.
What are the three requirements for admitting a statement against interest?
Rule 804(b)(3). Statements Against Interest
- The out-of-court declarant must be unavailable.
- The statement must be against the declarant’s proprietary, pecuniary, or penal interests.
- The statement must be so contrary to the declarant’s self interest that a reasonable person in the declarant’s position would have made it only if he believed it were true.
What are the two criteria for admitting present sense impressions as hearsay exceptions?
Rule 803(1). Present Sense Impressions
The out-of-court statement must be:
- made immediately after or while perceiving event;
- describing or explaining event;
* non-testimonial, ongoing emergency or situation
Examples: 911 calls, cell phone calls.
What are the requirements for admitting evidence under the Excited Utterance exception to hearsay?
Rule 803(2). Excited Utterances
- The statement must be made under the stress of excitement from a startling event.
- The statement must relate to the startling event.
- The declarant must have personal knowledge of the event.
Does Rule 803 (Hearsay Exceptions: present sense impressions, excited utterance, then-existing mental, emotional or physical condition, etc.) require that the declarant be available as a witness?
No. The declarant does not have to be available as a witness for the evidence to be admitted.
What kinds of statements are allowed under “Statements for Diagnosis and Treatment?”
Are statements made to an “Independent Medical Examiner” included in this rule?
Rule 803(4). Statements for Diagnosis and Treatment
- made for - and is reasonably pertinent to - medical diagnosis or treatment, and
- describes medical history, past or present symptoms or sensations, their inception, or their general cause.
Statements made to an IME are included in the rule.
Is a homicide victim’s statement, “I’m going to the park tonight with Frankie” admissible under Rule 803(3) “Then Existing Mental, Emotional, or Physical Condition?”
It depends on the Jx. If the Jx follows Hillman, then the part of the statement that pertains to Frankie will not be admissible. Non-Hillman Jxs might allow it if there is other corroborating evidence that Frankie was at the park and it passes 403 balancing test.
- What kinds of cases does the “Dying Declarations” exception apply to (civil, criminal)?
- Does the declarant have to be available in court?
- Does the declarant have to actually say he thinks death is imminent?
- Dying declarations are allowed in civil cases and homicide cases (note, not all criminal cases).
- No - the declarant cannot be available, even if he didn’t actually die when he made the declaration.
- Yes - the declarant has to verbalize the belief that death is imminent.
Can any statement made immediately before death qualify as a “dying declaration?”
No.
- The statement has to be made by a declarant who believes and verbalizes the belief that death is imminent;
“Vito shot me!” NO
“Vito shot me and I’m dying” YES
- The statement has to be about the cause or circumstances of the death;
“Vito shot me last week, too!” NO
- First hand knowledge is required.
“Vito shot me with a high-powered rifle from 500’” NO
