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A. Aaall classes > Hearsay > Flashcards

Hearsay Flashcards

1
Q

What is hearsay?

A

Out of court statement offered by someone other than declarant to prove the TOMA

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2
Q

What is hearsay within hearsay?

A

OOC statement that has other hearsay within it.

Ex: John told me that Mary said the light was red

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3
Q

When is hearsay admissible?

A

If an exception applies

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4
Q

When is hearsay within hearsay admissible?

A

only if both hearsay statements meet an exception

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5
Q

List (2)

What is a statement?

A

A person’s:

  1. Oral or written assertion - OR -
  2. Nonverbal assertive - conduct intended as an assertion (i.e. headnod)
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6
Q

Who can make statements?

A

only HUMANS

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7
Q

Can an animal or a machine make a hearsay statement?

A

NO

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8
Q

What is an OOC statement?

A

Statement NOT made at current trial

meaning hearsay statement could be made during a trial but it just cannot be made during the current trial

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9
Q

What is offered to prove the TOMA?

🍌🍌🍌

A

The statement itself is being presented to prove that the statement is true.

Ex: P slips on a banana peel. 20 mins before slipping W told D (store mananger), “there is a banana peel on the floor”. W is offering statement to prove negligence - D knew about banana peel. NOT being offered for TOMA - whether or not there actually was a banana peel on the floor.

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10
Q

List (3)

Types of statements that are not offered for the TOMA:

A

Statements offered to/as:

  1. Verbal acts or legally operative facts - i.e. words of a K or defamatory words
  2. Show effect on listener or reader - i.e. provide notice in a negligence case 🍌
  3. Circumstantial evidence of declarant’s state of mind - i.e. party trying to prove someone’s insanity or knowledge
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11
Q

*nonhearsay* list (3)

How does silence become an adoptive statement?

A
  1. Party hears and understands the statement
  2. Party is physically and mentally capable of denying the statement
  3. A reasonable person would have denied the statement
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12
Q

Why is a statement alleged to be defamatory is not hearsay

A

Because the evidence is by definition NOT offered to prove the TOMA.

It is offered only to show that the actionable statement was made.

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13
Q

Definition, *nonhearsay*

What are hearsay exclusions and what “kind” of evidence are they admissible as?

🪐🪐🪐🪐

A

statements that technically are hearsay but are excluded from the hearsay definition

THEREFORE ADMISSIBLE as substantive evidence

unless exclusion applies

Ex: 🪐 Pluto is a planet but NASA just decided it is not 🪐

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14
Q

List (2), *nonhearsay*

What are the hearsay exclusions?

A
  1. Prior statements from testifying witness
  2. Statements made by opposing party
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15
Q

definition, *nonhearsay*

What are prior statements from testifying witness

A

A WITNESS’S prior OOC statements

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16
Q

*nonhearsay*

Is a witness’s prior statement admissible?

A

inadmissible hearsay UNLESS exception applies

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17
Q

*nonhearsay*

What is the key element for a witness’s prior ooc statement to NOT be hearsay

iow: what does the witness have to be subject to?

A

Witness has to be subject to CROSS EXAMINATION

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18
Q

*nonhearsay*

A witness’s prior OOC statement is not hearsay if:

and what type of examination? cross or direct?

(aka what are the different types of prior statements that are nonhearsay)

A

Prior OOC of a testifying witness subject to cross-examination is NOT hearsay if:

  1. ID: Prior statement is one of identification
  2. PIS + Oath: Prior/previous statement which was made under oath is inconsistent with current in-court testimony
  3. Consistent: prior statement is consistent with now in-court testimony and the declarant is testifying at trial and subject to cross-examination
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19
Q

*nonhearsay*

Prior identification is considered NH only if :

A

the declarant is testifying at trial and subject to cross-examination

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20
Q

*nonhearsay*

Prior consistent statement is admissible as nonhearsay if:

A
  1. Rebut: Offered to rebut charge that W is lying/exaggerating because of motive - OR -
    1. PCS need to have been made before onset of motive
  2. Rehab: Offered to rehab witness who has been impeached on other grounds
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21
Q

*nonhearsay*

What are statements made by an opposing party?

A

Basically anything that D says, P can offer against D and vice versa

any statement made by a party - for or against - their own interests _IS_ admissible against that party

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22
Q

*nonhearsay*

Formal judicial statements are:

A

CONCLUSIVE and CANNOT be contradicted during trial

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23
Q

Informal and extra-judicial judicial statements are

A

Nonconclusive and can be explained

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24
Q

*nonhearsay*

Can a party’s formal judicial statement in one case be admitted against them as an extrajudicial statement in another case?

A

Yes

Ex: D pleads guilty to traffic charge in case 1. In case 2 - which arose out of same accident - the plea can be used as an opposing party’s statement

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25
Q

*nonhearsay*

What are adoptive statements?

A

Type of opposing statement where a party expressly or impliedly adopts the statement of another party and that adoption may be admissible against them

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26
Q

*nonhearsay* list (2)

When can vicarious statements be admissible as statements of an opposing party?

A
  1. Authorized spokesperson or
  2. Agents and employees - statement:
    1. matter within scope of employment
    2. during existence of employment
27
Q

Definition, *exceptions*

What are hearsay exceptions?

A

Statements that are hearsay but admissible because they meet an exception

28
Q

Comparison, *exceptions*

What is the difference btwn prior statement of testifying witness (pstw) and prior testimony (pt)

A

PSTW: prior statement made out of court + subj to cross at current

PT: given under oath + subj to cross and direct at prior

29
Q

*exceptions*

What makes a declarant unavailable?

“PRISM”

A
  1. Privilege (5th A, spousal etc)
  2. Refusal to testify
  3. Incapacity - Death or serious illness
  4. Subpoena (absent)- Refuse to testify, despite proponent’s attempts to procure declarant’s testimony
  5. Memory (Lack of )
30
Q

List (5), *unavailable exceptions*

What are the hearsay exceptions that are admissible which require declarant unavailability?

“aphid”

A
  1. A: Statement offered against the party that has caused the declarant’s unavailability
  2. P: prior testimony *
  3. H: Personal/family history
  4. I: Statements against interest *
  5. D: dying declarations *
31
Q

*unavailable exceptions*

A declarant who cant attend the trial but can give deposition testimony:

A

is considered available

32
Q

*unavailable exceptions*List (2)

Former testimony is admissible if

A

Oath + examine

  1. Testimony given under oath, in same or diff case
  2. Party against whom testimony is being offered, had opportunity + similar motive to develop declarant’s testimony at prior proceeding through direct or cross
    1. opportunity + similar motive: party in former case + same subj matter
    2. ex: P offers W’s former testimony from case 1 against D in current case 2. D had the opportunity in case 1 to cross-examine W.
33
Q

Comparison, **unavailable exceptions*

Grand jury testimony is ____________ against a D as former test**i**mony

A

inadmissible because no opportunity to direct/cross-examine in prior trial

34
Q

Comparison, *nonhearsay exceptions*

Grand jury testimony is ____________ against a D as prior inconsistent statement

A

ADMISSIBLE because can direct/cross in current trial

35
Q

*unavailable exceptions*; hint 3 Ps

Statements against interest

Against what interests are SAIs offered?

A

Statements against person’s pecuniary (money), proprietary (property), or penal (criminal) interests at time it was made

36
Q

Is a deed, will, or other document establishing or affecting an interest in property admissible under the Federal Rules?

A

Yes, as a hearsay exception, regardless of the document’s age

37
Q

*unavailable exceptions*

In criminal cases SAI must be:

A

corroborated

38
Q

*exceptions* list (3)

How does silence become an adoptive statement?

A
  1. Party hears and understands the statement
  2. Party is physically and mentally capable of denying the statement
  3. A reasonable person would have denied the statement
39
Q

*unavailable exceptions*

Dying declaration

A
  1. Believe death was imminent
  2. Statement concerned cause or circumstances of impending death
40
Q

Dying declaration?

The plaintiff is suing the defendant for serious, life-threatening injuries she suffered when the defendant’s car collided with the plaintiff’s at a busy intersection. At trial, the plaintiff testified that the light was green when she entered the intersection. She was not cross-examined. She also testified that she lost consciousness after the collision but awoke to find a witness comforting her as she lay on the ground. The plaintiff calls the witness to testify that, when she awoke, she said, “Help, I’m dying! Why did [the defendant] enter the intersection when the light was green for me?”

Is this a dying declaration?

A

NO - The witness’s testimony is admissible as an excited utterance.

The apparent dying declaration is a favorite trick on the MBE. Remember that if the victim does not die, she must be unavailable to testify before the dying declaration is admissible on those grounds. Here she is available so the statement cannot come under dying declaration

41
Q

*unavailable exceptions*

In what type of criminal cases can dying declarations be used?

A

Apply only for HOMICIDE cases

42
Q

list (2)

Statements of personal or family history

A
  1. Declarant is a member of family or intimately associated
  2. Statements based on facts or knowledge of family’s history
43
Q

Statement offered against the party that has caused the declarant’s unavailability

A

Motivation was to prevent declarant from testifying

44
Q

List, *immaterial exceptions*

What are hearsay exceptions that are admissible immaterial of declarant availability?

  • Rich Men say Bullshit,*
  • Especially In Monaco*
A
  1. Excited utterance *
  2. Present sense impression *
  3. Present state of mind - concerning mental or physical condition
  4. Medical statements - diagnosis, treatment
  5. Business records *
  6. Recorded recollection*
45
Q

*immaterial exceptions*

Excited utternance

A

OOCS relating to startling event while under stress of event

46
Q

*immaterial exceptions*

Present sense impressions

A

Describes event while or immediately after

47
Q

*immaterial exceptions*

Present state of mind

A

The then present state of mind, including statements of intent and physical condition at that time

Note: memory/belieft not admissible under this exception

48
Q

*immaterial exceptions*

Statements about medical diagnosis or treatment

A

medical history + inception of or general cause past or present symptoms

49
Q

*immaterial exceptions*

Statements about medical diagnosis or treatment are admissible hearsay if

A

statements made for the purpose of medical treatment or diagnosis usually made to medical personnel

CANNOT talk about fault

50
Q

*immaterial exceptions*

Business records

A

Memo made of any act, event, condition, opinion, or diagnosis

********NEED FOUNDATION*************

51
Q

*immaterial exceptions* list (2)

Business records entry need be made during:

A
  1. regular course of business
  2. business records regularly makes these kinds of records
52
Q

Are business records prepared in anticipation of litigation admissible under hearsay exception?

A

Generally NO

court will exclude reports prepared primarily for litigation

FRE deal with this problem by giving the trial court discretion to exclude any business record if circumstances indicate the record lacked trustworthiness.

53
Q

What is the point of a recorded recollection

A

used to substitute for the forgotten memory

54
Q

hint: admissibility of evidence, *immaterial exceptions*

Recorded recollection

A

can be read into evidence

CANNOT be admitted as an exhibit

55
Q

hint: admissibility of evidence, *immaterial exceptions*

Learned Treatises

A

can be read into evidence

CANNOT be admitted as an exhibit

56
Q

“immaterial exceptions*

Ancient documents

A

admissible if authenticated + prepared BEFORE Jan 1, 1998

57
Q

List (3)

Catch-all exception

A

Last ditch attempt when other exceptions dont apply

  1. Trustworthiness - hearsay statement must posses sufficient guarantee of trustworthiness
  2. Necessity - statement strictly necessary
  3. Notice - give reasonable notice to opponent
58
Q

List (4)

Confrontation Clause

A

Hearsay statement not admitted if:

  1. Offered against accused in criminal case
  2. Declarant unavailable
  3. Statement was testimonial
  4. No opportunity to cross-examine declarant prior to trial
59
Q

Confrontation Clause forfeited if

A

D commits a wrongful act intended to keep W from testifying

60
Q

Non-testimonial or Testimonial?

Statements made to law enforcement (ie police) to aid in emergency

A

NOT testimonial

61
Q

Non-testimonial or Testimonial?

Statements made to law enforcement to provide info (for later prosecution)

A

Testimonial

62
Q

no flip side

The fact that evidence is self-serving is often just another way of saying that it is hearsay.

A
63
Q

Is a misdemeanor conviction hearsay? Is it admissible under an exception to the hearsay rule?

A

hearsay; not admissible

64
Q

Is a felony conviction hearsay? Is it admissible under an exception to the hearsay rule?

A

hearsay; admissible

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