Article 8 and related rules Flashcards

Question

Definitional Response to Hearsay Objection Example

Answer 1

Your honor, this is not hearsay b/c the out of court statement is not offered to prove the TOMA, but rather offered ... (to prove good purpose)

Answer 2

1. Effect on Hearer 2. Circumstantial state of mind 3. Impeachment 4. legal act 5. Knowledge

Answer 3

What the listener did in response to the statement. We do not care if the statement was true or not, i.e. it doesn't matter if there were actually any bees, we just care if people reacted when someone yelled "bees!"

Answer 4

Circumstantial evidence as to their state of mind, we don't care if what they were sayin is true. I.e, "I'm superman"->doesn't matter if it is true, but it shows what their state of mind is

Answer 5

The goal is to show that at equally reliable days the witness offered conflicting accounts

Answer 6

Words of independent legal significance

Answer 7

"The floor is wet"- Doesn't matter if the floor was actually wet, but matters to show a person was on notice.

Answer 8

Burden is on the proponent to prove the foundational elements. If the elements are met, the evidence is not hearsay and can be used to prove TOMA

Answer 9

Under 801(d)(2) we want to show that the party said the statement or that it can be attributed to the party in order to use the evidence to prove TOMA.

Answer 10

- Foundation: A statement + offered by a party opponent - Any statement made by a party that is introduced against a party opponent is allowed (anything that comes out their mouth) - Personal knowledge is not required, the truth of the party's statements is irrelevant as long as they said it. - Parties are estopped from using their own statements - Example: Your honor, this is a statement by a party offered by a party opponent. Therefore, you should overrule the objection and admit the evidence.

Answer 11

Declarations- Person signs a document that was written by another. Person agrees that it is their statement

Answer 12

Explicit instructions for an employee to do something, though being an employee is not required.

Answer 13

1. Ask whether it was within the employee's scope, was it fairly attributable to them and does their job match the ability to make such a statement, was it reasonable? 2. For partnerships, one partner is deemed to be the agent of the other partner.

Answer 14

1. A conspiracy 2. Party in the Conspiracy 3. Declarant in the Conspiracy 4. Statement made during the Conspiracy (ends at arrest) 5. Statement in furtherance of the conspiracy - any statement that gets the conspiracy closer to the objective. Bragging/boasting counts! - CA Distinction: statements made before you join the conspiracy can be attributed to you. You take the conspiracy as you find it.

Answer 15

Judge makes the determination under 104(a) whether there is a conspiracy; a statement alone is not sufficient, additional (even weak) evidence must be offered to show the Conspiracy's existence

Answer 16

It doesn't matter who the witness is on the stand saying the opposing party's statement b/c the government is the one offering the statement and the government is always a party opponent to the defendant.

Answer 17

Your honor, this is a statement offered by a party, the state, against (the conspirator) attributed to a co conspirator. The statement was made during a conspiracy b/c (facts). The party was part of the conspiracy b/c (facts). The declarant was in the conspiracy b/c (fact). The statement was made during the conspiracy b/c (fact). And the statement was in furtherance of the conspiracy b/c (fact). Your honor, there is no conspiracy b/c ( facts). There is nothing to show that they have carried out a conspiracy.

Answer 18

Party opponents can be on one's own side of the "v" b/c they are the opponent seeking to admit a specific statement against someone else.

Answer 19

1. Declarant testifies at trial 2. Declarant is subject to cross 3. Declarant's own prior statement is - inconsistent w/ today's courtroom testimony - was under oath (under penalty of perjury) - and was given during a proceeding (deposition, grand jury, previous trial) Can be used for impeachment and proving TOMA CA Distinction: Witness does not have to be subject to cross, nor does the prior statement have to be made under oath at trial, hearing, or deposition

Answer 20

- Memory loss, whether real or feigned, is sufficient for a witness to have been crossed. If you ask questions and your offer answers (even if you can't remember) the witness has been crossed - If a witness claims privilege (5th) then the witness has not been subjected to cross

Answer 21

The witness is offering their own out of court statement (their own quote bubble)

Answer 22

Used when the opposition accuses the witness of lying (being inconsistent) on the stand during cross. Afterwards, you may use any of their prior statements to show that they have been consistent.

Answer 23

1. Declarant testifies at trial 2. Declarant is subject to cross (same as 801(d)(1)(A)) 3. Declarant's own prior statement is - Consistent - offered to rebut a recent fabrication that the witness is lying, has a motive to lie, or was improperly influenced. - Made before a motive to fabricate a lie developed - No requirement of being under oath or at a proceeding (could have been made anywhere)

Answer 24

Your honor, this is not hearsay b/c it is a prior consistent statement which has certain foundational elements that are met (facts). The declarant is still testifying the same thing and the consistent statement was made before they had a motive to fabricate b/c (facts).

Answer 25

1. Declarant testifies at trial (witness is offering their own out of court statement) 2. Declarant is subject to cross 3. The statement identifies a person (Made after the declarant perceived the person; prior id is admissible even if the declarant cannot repeat the id in court) Generally: out of court statements are more reliable than in court IDs

Answer 26

CA distinction: Party identified must have been a participant in the crime, at the same time the statement was made the crime was fresh in the witness's memory, the evidence offered after the witness testifies both that the ID was made and it was a true reflection of their opinion at the time.

Answer 27

your honor, this is an out of court identification under rule 801(d)(1)(C) and there are several foundational elements which are met. First...

Answer 28

Burden is on the proponent to prove the foundational elements. If the P meets the elements, it can be used to prove TOMA. Concerned with reliability and sincerity. Under exceptions, we don't care if the statement itself is true, but only if the circumstances in which the statement was made is reliable. Availability of the declarant doesn't matter at trial.

Answer 29

Foundational elements: 1. statement 2. describing or explaining an event 3. Statement must be made while perceiving the event or immediately after (contemporaneously) CA distinction: CA does not have this rule

Answer 30

The judge can use any evidence to determine whether the present sense can be admitted under 104(a) without the need of any additional information

Answer 31

Your honor, while it may be hearsay, an exception applies, this is a present sense impression under Rule 803(1). The statement only offers a description of the event and it was made contemporaneously during it. Therefore, you should overrule the objection and admit the evidence. Your honor, this is still hearsay b/c this exception does not apply. The statement does not only describe the event. It offers analysis and/or interpretations / was not offered during the event. Therefore, you should use your discretion to sustain the objection and exclude the evidence.

Answer 32

Foundation 1. Declarant is excited 2. Statement related to the exciting event 3. Time- the declarant must remain excited immediately after

Answer 33

Excitement is a subjective standard. Not enough that a normal person would be excited, declarant must be excited themselves. Can't create your own excitement.

Answer 34

The length of excitement is subjective, typically a few seconds to a few minutes but could be longer depending on the event.

Answer 35

There is no bar of written materials as excited utterances (Especially with social media), but writing something down tends to show reflection and therefore a lack of excitement

Answer 36

Your honor, while it may be hearsay, an exception applies, this is an excited utterance under Rule 803(2). When the statement was made, the declarant was excited by the event, which had just occured. Therefore, you should overrule the objection and admit the evidence. Your honor, this is still hearsay because this exception does not apply. The declarant was not excited by the event/ the statement did not relate to the exciting event / the declarant was not long excited. Therefore, you should use your discretion to sustain the objection and exclude the evidence. `

Answer 37

Foundation 1. statement by a declarant 2. which expresses the declarant's internal state 3. which is "then existing" and covers - state of mind - emotion - sensation - physical condition - present intent to do a future act, such as intent, plan, motive, design, mental feeling, pain, and bodily health

Answer 38

803(3) does not include a statement of memory or belief to prove the fact was remembered or believed. Look for "I think, I believe, I remember" to exclude. Ex: "I remember high school" -> okay to use statement to show belief, but not allowed as proof of the memory.

Answer 39

Only present or future actions/thoughts. Nothing from the past. CA distinction: CA includes prior expressions of state of mind if the declarant is unavailable. "Lack of trustworthiness" renders the statement inadmissible.

Answer 40

When a statement includes a state of mind and a fact, this rule only allows in the state of ind and would required redacting the rest of the statement unless it clears hearsay hurdle independently. I'm hungry (covered) because I only had a salad for lunch (not covered)

Answer 41

Courts are split- Hillmon - You can use a person's state of mind (present intent to do a future act) as evidence that another person did an act in the future. - You can use a person's present intent to do a future act to only show that person's conduct, not anyone else's.

Answer 42

1. Statement made for the purpose of medical treatment or diagnosis 2. Statement is reasonably pertinent to diagnosis or treatment 3. Must describe: medical history; past or present symptoms; pain or sensations; the inception of general character of the cause or external thereof

Answer 43

Only applies to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under 12, describing any act or attempted act of child abuse or neglect

Answer 44

1. The statement does not have to be made directly to a doctor, anyone (mom, friend, EMT, psycologist) as long as they are seeking diagnosis or treatment 2. In describing the cause of the injury attributing it to a specific person is not allowed, unless it is for special harm such as child sexual abuse 3. Diagnosis or treatment covers just about every conceivable type of care. 4. This exception can be backward looking as well (consulting another doctor b/c of malpractice. 5. Statements from doctors to patients are not covered

Answer 45

1. If a witness can no longer recall information that they once knew and recorded it originally when their memory was "fresh" they are allowed to read the record at trial 2. Witness need not claim a complete loss of memory, rather only that they have forgotten details important to the current testimony. 3. Refreshing is always allowed and this exception only applies if after refreshment the witness is still unable to remember what they once knew, only after they are unable to remember can you move to use the recorded recollection.

Answer 46

1. Witness once knew the information but has now forgotten 2. Tried Refreshing the witness 3. After refreshing the witness is still unable to remember 4. The evidence is then read into the record, but not offered as an exhibit

Answer 47

1. Multiple levels of hearsay i.e. "within" one another 2. Statements with multiple levels of hearsay are admissible to prove TOMA as long as each level of the statement has a hearsay exception 3. Every part of the statement with multiple layers must have an exception, if not, the entire statement is excluded

Answer 48

1. A record on a act, event condition, or diagnosis (always tangible, never statements) 2. The record was made at or near the time by- or transmitted by- someone with knowledge - statements made by persons outside the company, even if kept in regular course of biz are excluded. 3. Made in the regular practice of that business 4. Kept in the regular course of business - at or near time is sufficient - ensures biz records are relied upon - opinions are fine if kept in the regular course of biz 5. All of these conditions are shown by the testimony of the record's custodian or another qualified witness or by certification - typically anyone with knowledge, doesn't have to be the exact person - custodian can send an affidavit instead of coming to trial 6. Unless the document lacks trustworthiness - Can't be created in anticipation of litigation - Post accident investigations are less reliable 6. 5. Doesn't matter if business/organization is for profit or not for profit

Answer 49

It need not be regular practice to keep the records and they do not include "opinions or diagnoses". Only acts, conditions or events. The proponent must demonstrate "trustworthiness) as a foundational requirement.

Answer 50

1. A record or statement of a public office 2. The office's activities 3. Observations while under a legal duty, EXCEPT for matters observed by law enforcement personnel, unless the observations was ministerial (i.e. administrative questions) 4. Neither the source of information nor other circumstances indicate a lack of trustworthiness. If there is a choice between public records and biz records, use public records because there are less reqs

Answer 51

Observations while under a legal duty, EXCEPT for matters observed by law enforcement personnel, unless the observations was ministerial (i.e. administrative questions) - observations that are ministerial in nature (even by law enforcement) are allowed because of their neutral nature. things such as bookings where there is no investigation - Includes opinions and conclusions of what the witnesses said to the investigator.

Answer 52

Evidence that a matter is not included in the memoranda, reports, records, or data, compilations, in any form. Generally, absence of a record can be important evidence that something didn't happen, i.e., you didn't park you car at a lot b/c there is no record of the car being there

Answer 53

1. Proponent must show that the records containing the omission are kept in accordance with 803(6)/(7) 2. If the matter was of a kind which was regularly made and preserved 3. Proponent must provide evidence the record is absent, the most common way is to call a witness with knowledge to say they were unable to find the record. 4. Unless the sources of information or other circumstances indicate a lack of trustworthiness

Answer 54

1. Document has existed for at least 20 years 2. Proponent must establish authenticity Remember to look for hearsay with in hearsay as quotes or statements in the ancient document, those still require a hearsay exception

Answer 55

1. Must be a directory, market quotation, list or other compilation 2. Proponent must show that the public generally relies upon it.

Answer 56

1. Treaties can only be introduced in connection with an expert's testimony 2. may only be read into the record (don't trust the jury with the whole thing) 3. Proponent must establish it is a reliable authority - expert or another witness can testify, judicial notice 4. Can concern almost any field.

Answer 57

1. All exceptions to hearsay under 804 require the declarant to be unavailable; the declarant is not in court and cannot be in court, if the declarant comes to court, then 804 won't apply. 2. 804(a) is the way we establish that a declarant is not available, and 804 (b) are the types of hearsay allowed in if the declarant is unavailable. 804(a) is a foundational element for every 804(b) exception, so first show the declarant is unavailable.

Answer 58

Established via 5 different ways: 1. Privilege 2. Refusal to testify 3. lack of memory (real or feigned) 4. Death, mental/physical illness 5. Absence

Answer 59

-Types include: 5th Amendment, marriage (only if your spouse is a criminal defendant)

Answer 60

1. the party who called the uncooperative witness should not suffer unduly b/c of the witness' failure to testify, therefore if the witness refuses to testify, they are unavailable. 2. The judge has ordered the declarant into court, and has ordered the declarant to testify but declarant refuses to do so 3. Declarant can be jailed for contempt of court

Answer 61

1. if the witness claims that they lack memory about the subject matter of the previous statement they are unavaible. 2. Court doesn't have to find they actually lost their memory 3. Witness must testify that they have absolutely no memory of the subject matter. lack of details is not sufficient.(entire thing)

Answer 62

1. Declarant is unavailable if dead or so physically/mentally ill that they cannot testify at the proceeding. 2. The illness must be so disabling that (1) the declarant cannot come to court to testify and (2) there is little likelihood of recovery within a reasonable time. 3. Court will require proof which be be provided by a death certificate or bringing the mentally ill declarant in.

Answer 63

1. A declarant is unavailable if a party shows that they tried to find the declarant and bring them to the hearing, but wasn't able to 2. Obligations on the party: (1) the party must use any reasonable means, in addition to a subpoena, to persuade the declarant to attend the trial, (2) the party must use reasonable means to take the declarant's depositiion. 3. Need to show a huge effort and evidence it.

Answer 64

(prior testimony made by an unavailable declarant, under oath in a proceeding, with opportunity and motive for opponent to develop testimony) 1. Declarant is unavailable 2. the prior testimony must have been at a trial, hearing, or deposition under oath 3. (civil or crim) Offered against the same party OR (civil) offered against 'predecessor in interest' 4. Opponent (the party who the statement is against) had opportunity to develop testimony (the time prior) 5. Opponent had similar motive to develop testimony (as in the prior)

Answer 65

1. If it is the same proceeding (just at trial 2 now) then the motive is always going to be the same 2. Predecessor interest requires some type of tie between the parties. Some close relationship (i.e. parent company) CA Distinction: does not require privity - merely a similar motive in developing testimony

Answer 66

1. The opposing party need not have actually conducted any exam, only need to have had the opportunity 2. Grand juries - no opportunity to develop testimony because the defense is not present.

Answer 67

1. Factors in determining if the motives were similar (a) the type of proceeding in which the testimony was given (b) trial strategy (c) the potential penalties or financial stakes, (d) the number of issues and parties.

Answer 68

1. Declarant unavailable 2. Admitted only in civil trials and homicide cases 3. Declarant's belief that death was imminent - Subjective standard - Belief that death was both imminent and inevitable, but no specific time limit - The declarant need not actually end up dying, just the subjective belief that they will 4. Statement must concern the circumstances (cause of death) CA Distinction: If a person makes a statement, knowing that they are about to die, the cause of their death is admissible. The declarant will be unavailable because they are dead EXam tip: Many dying declarations are admissible under other rules, so don't jump immediately to this rule ( excited utterances, state of mind, medical)

Answer 69

1. Declarant is unavailable 2. AT THE TIME a statement is made 3. Against the interest of the party -Propietary or pecuniary interest (financial) -Invalidates a defendant's claim against another person -exposes declarant to civil or criminal liability Exam tip: id specific interest on exam 4. A reasonable person in the declarant's position would not have made the statement unless believing it to be true. (corroborating evidence is required if it is a criminal trial and the statement exposes the declarant to criminal liability) CA Distinction: includes statements that created such a risk of making him an object of hatred, ridicule, or social disgrace in the community.

Article 8 and related rules Flashcards

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