800 Rules Flashcards
(26 cards)
Hearsay
An out-of-court statement that’s offered to prove the truth of the matter asserted.
801(a): Statement
“Statement” means a person’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion.
What are non-assertive statements?
Orders or directions
Questions
A photograph is not a statement
When should non-verbal conduct be a statement?
Pointing to identify a suspect in a line-up.
801(b): Declarant
The person who made the statement.
801(c): Hearsay
A statement that:
(1) The declarant does not make while testifying at the current trial or hearing; and
(2) A party offers in evidence to prove the truth of the matter asserted
801(d): Statements That Are Not Hearsay
(1) A Declarant-Witness’s Prior Statement
(2) Opposing Party’s Statements
A Declarant-Witness’s Prior Statement
The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
- Is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or another proceeding in a deposition;
- Is consistent with the declarant’s testimony and is offered
- to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
- to rehabilitate the declarant’s credibility as a witness when attacked on another ground; OR
- Identifies a person the declarant perceived earlier
Opposing party’s Statements
The statement is offered against an opposing party and;
- Was made by the party in an individual or representative capacity;
- Is one the party manifested that it adopted or believed to be true;
- Was made by a person whom the party authorized to make a statement on the subject;
- Was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; OR
- Was made by the party’s coconspirator during and in furtherance of the conspiracy
802: The Rue Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise:
- A federal statute;
- These rules; OR
- Other rules prescribed by the Supreme Court
803: Exceptions to Hearsay – Whether or Not the Declarant is Available as a Witness
- Present-Sense Impressions
- Excited Utterance
- Then-Existing State of Mind
- Medical Diagnosis/Treatment
- Recorded Recollection
- Business Records
Present Sense Impressions
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
Excited Utterance
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
Then-Existing State of Mind
A statement of the declarant’s then-existing state of mind, or emotional, sensory or physical condition .
Medical Diagnosis/Treatment
A statement that is 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.
Recorded Recollection
A record that:
- Is on the matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
- was made or adopted by the witness when the matter was fresh in the witnesses’s memory; and
- accurately reflects the witness’s knowledge
Business Records
- The record was made at or near the time by someone with knowledge;
- The record was kept in the course of a regularly conducted activity of business;
- Making the record was a regular practice of that activity;
- All of these conditions are shown by the testimony of the custodian or a qualified witness.
804: Exceptions to Hearsay: Declarant-Witness MUST Be Unavailable
(a) Criteria for being unavailable if declarant witness is:
- Exempted from testifying
- Refuses to testify
- Testifies to not remembering the subject matter
- Cannot be present or testify at the trial because of death or then-existing illness.
- Is absent from trial and the statement’s proponent has not been able to reasonably procure
- the declarant’s attendance; or
- the declarant’s testimony falls under a hearsay
exception
804(b): Exceptions
- Former Testimony
- Dying Declaration
- Statement Against Interest
- Forfeiture by Wrongdoing
Former Testimony
Testimony that:
- Was given at a trial or deposition, whether given during the current proceeding or a different one; and
- Is now offered against a party who had an opportunity and similar motive to develop it by direct, cross-examination, or redirect.
Dying Declarations
In a prosecution for homicide or in a civil case, a statement that the declarant, while believing their death to be imminent, made about its cause or circumstances.
Statements Against Interest
- A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because when made, it was so contrary to the declarant’s interest or had a great tendency to invalidate the declarant’s claim against someone else to expose them to civil or criminal liability; AND
- Is supported by corroborating circumstances that clearly indicate its trustowrthiness
Forfeiture by Wrongdoing
A statement offered against a party that wrongfully caused the declarant’s unavailability as a witness, and did so intending that result.
805: Hearsay Within Hearsay
Not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
