Short and Happy Guide Chapter 6: Hearsay Flashcards
________ refers to an out-of-court statement.
Hearsay
The foundation of the _______ rule is that out-of-court statements generally should not be used, unless there is a likelihood that the statements are accurate.
hearsay
The reliability of out-of-court statements has to do with the degree to which believing the evidence requires unsupported reliance upon the four things we call the __________ _______ of the person making the statement.
testimonial capacities
Testimonial capacities are known as:
1.
2.
3.
4.
- Sincerity
- Perception
- Narration
- Memory
By way of example, consider Tina’s statement about stealing cash from the cash register. Let’s examine the testimonial capacities in light of her hearsay statement:
Maybe she lied (she wanted you to get into trouble).
Sincerity
By way of example, consider Tina’s statement about stealing cash from the cash register. Let’s examine the testimonial capacities in light of her hearsay statement:
Maybe her vision was bad (she thought she saw you but she actually saw someone else that looked like you).
Perception
By way of example, consider Tina’s statement about stealing cash from the cash register. Let’s examine the testimonial capacities in light of her hearsay statement:
Maybe she said it was you (but she really meant to say Bob).
Narration
By way of example, consider Tina’s statement about stealing cash from the cash register. Let’s examine the testimonial capacities in light of her hearsay statement:
Maybe she lied (she wanted you to get into trouble).
Memory
In theory, when statements that would otherwise be excluded under the hearsay rule are admitted, they are admitted on the basis that the exceptions have “safeguards” against these testimonial capacities’ proclivities for inaccuracy. True or False.
True
Step 1: Determine whether the evidence is a ________ as defined by Rule 801(a).
If YES, then goto step 2. If NO, then the evidence is not hearsay. Therefore, it is not excluded under the hearsay rule.
statement
Step 2: Was the statement made at the _____ ____ or ______? FRE 801(c)(1)
If NO, then go to step 2. If YES< then the evidence is not hearsay.
current trial or hearing
Step 3: Is the statement being offered to prove the ________ of the ______ _______ in the statement?
If YES, then go to step 4. If NO, then the evidence is not hearsay.
truth of the matter asserted
Step 4: Does the statement meet one of the definitions of “______________” in Rule 801(d)(1)-(2)?
If NO, then go to step 5. If YES, then the evidence is not hearsay BECAUSE the rule says it is not.
non-hearsay
Step 5: Does the statement meet an ______ to the rule excluding hearsay? FRE 803, 804, 807.
If NO, then go to step 6. If YES then the evidence is NOT EXCLUDED by the hearsay rule.
exception
Step 6: The statement will be _______ by the hearsay rule. FRE 802. STOP
excluded
The starting point on any analysis is the determination of whether a particular pice of evidence is _________ by using the definition in the rule.
hearsay
The Rule Against Hearsay.
What rule?
FRE 802
This rule provides that hearsay is not admissible unless one of a number of conditions is met.
FRE 802
The starting point is whether the piece of evidence is __________ as defined by FRE 801.
hearsay
The starting point is whether the piece of evidence is hearsay as defined by FRE 801. Next, if it is hearsay, you must determine whether one of the conditions is met that would permit its admission. Rule ______ tells us that hearsay will not be admissible unless any of the following provide otherwise:
1.
2.
3.
802
- federal statute
- federal rules of evidence or
- other rules prescribed by the Supreme Court
Before you can determine what is NOT hearsay, you must determine what is hearsay. !!
!!
At the most basic level, for evidence to be considered hearsay, it must satisfy four requirements of Rule 801:
1. ?
2.
3.
4.
If all four of these requirements are not met, then the statement is not considered Hearsay.
- It must be a statement FRE 801(a)
At the most basic level, for evidence to be considered hearsay, it must satisfy four requirements of Rule 801:
1.
2. ?
3.
4.
If all four of these requirements are not met, then the statement is not considered Hearsay.
- The statement must have been made by a declarant FRE 801(b)
At the most basic level, for evidence to be considered hearsay, it must satisfy four requirements of Rule 801:
1.
2.
3. ?
4.
If all four of these requirements are not met, then the statement is not considered Hearsay.
- The statement must have been made out of court FRE 801(c)(1) AND
At the most basic level, for evidence to be considered hearsay, it must satisfy four requirements of Rule 801:
1.
2.
3.
4. ?
If all four of these requirements are not met, then the statement is not considered Hearsay.
- It must be offered for the truth of the matter asserted in the statement. FRE 801(c)(2).
Rule 801(a) defines a statement as a ________ oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion.
person’s
Rule 801(a) defines a statement as a person’s _______ ________, _______ _______, or ________ ________ if the person intended it as an assertion.
oral assertion
written assertion
nonverbal conduct
Rule 801(a) can be broken down into three parts:
1.
2.
3.
- Who made the statement?
- What kind of statement is it? and
- Is it intended as an assertion
Rule 801(a) the first inquiry, who made the statement? is usually easy to ascertain. The “who” must be a person and this person is what the rule calls a _______.
declarant
Rule 801(b) defines the _________ as the person making the statement in question.
declarant
Rule 801(b) defines the declarant as the person making the __________ in question.
statement
Assume Officer Jones wrote a police report. The report said that Sam, the victim, told Officer Jones that “The truck rear-ended me.” At trial, Officer Jones testifies as to what Sam told him at the scene of the accident.
Who is the declarant
The declarant is Sam, not the police officer.
We are concerned with who made the statement being offered. In this case, Sam’s statement, “The truck rear-ended me.” Is being offered, so he is the declarant under 801(b).
What about a parrot?
A parrot, that repeats what a human said, cannot produce hearsay.
What about a printout? It comes from a computer, doesn’t it? And a computer clearly isn’t a person. But the answer depends on the _______ of the information.
source
Consider a spreadsheet that reflects data entered by a person. yes, it’s still a printout but it was generated by a person and the printout reflects the statement of the person. The spreadsheet would be considered a ________ by a person.
statement
Automated Printouts: maybe a stock report or measurements from a weather station; or a list of telephone calls made from a particular phone number. These examples would or would not be considered statements?
WOULD NOT
They do not come from a person as required by the rule.
The next inquiry is “What kind of statement is it?” One can usually discern whether we are dealing with an _______, _______ or _______ ________. The more difficult part is discerning whether the statement meets the final requirement of 801(a), which we discuss next.
oral,
written,
non-verbal communication
The last requirement of this part of the rule is that the statement be intended as an _________.
assertion
Determining whether an _______ has been made can be challenging.
assertion
An ____________ is an intent to communicate something.
assertion