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Evidence > Article 8 and related rules > Flashcards

Article 8 and related rules Flashcards

0
Q

Authentication General Policy

A
  • If a witness is going to discuss evidence we want them to be familiar with it b/c witnesses can only testify to their own personal knowledge
  • Authentication: establishes relevance, genuineness, and gives the evidence context
  • As long as a reasonable jury could find the evidence authentic, it is admissible.
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1
Q

Things with content issue spotting checklist

A

If something has content or could have content (docs, phone calls, videos, photos…) you should automatically consider THREE things BEFORE discussing the actual content
1. Authentication (2) Best Evidence (3) Hearsay
If you see one of the following that should be a red light
(1) Witness testimony (2) Testimony about other evidence (3) Statements about something w/ content

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2
Q

FRCP 201- Judicial Notice

A

FActs not subject to reasonable dispute b/c they are commonly known nationwide or in the court’s jurisdiction–the court accepts them as true without formal presentation of the evidence

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3
Q

FRCP 901- Authentication requiring extrinsic evidence (witness sponsored docs) general provision

A

The proponent must authenticate evidence as a prerequisite to its admittance by showing that it is what the proponent claims it to be

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4
Q

901(a) Ways to establish authenticity

A

a. Distinctive features
b. Chain of custody - must call a series of witnesses, each describing how they received the evidence from the previous person
c. Handwriting (5 ways): person can id their own, someone who saw the document being signed, handwriting expert, trier of fact can compare writing, a lay witness familiar with the writing.
d. Voice ID - any witness who is familiar with the voice may id it
e. Photographs and video - must ask if this is a fair and accurate representation of the underlying scene at the relevant time
f. emails - may use any part of the email to show that it is what it claims to be, include the senders address.

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5
Q

901(a) Examples of predicate questions For documents/physical evidence

A
  1. Do you recognize this
  2. What is it
  3. How do you recognize it
  4. Is that document/physical evidence in substantially the same condition as when….
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6
Q

FRCP 902 - Self Authenticating

A
  1. Witness not needed to authenticate
  2. Public documents with seal; w/o seal and affidavit; public records; newspapers and periodicals; official publications; biz records; gov. websites; acknowledge documents; stipulations
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7
Q

902- Self Authenticating Response to Objection

A

Proponent: Your Honor, you can find based on the witness’ testimony that the item is what we claim it to be b/c

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8
Q

Best Evidence Generally

A

A. When a party relies upon a WRITING, RECORDING, or PHOTOGRAPH to prove the content of a document the party must introduce the original ( aka the “best) document
B. If a party wants to prove the content of a document they should produce the document itself (b/c we don’t want a witness’ weak account of what the content was)
C. What is original: the document itself, a counterpart intended to have the same effect, a printout if it accurately reflects the info and photo negatives or prints

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9
Q

Porter’s Ultimate Rule for Best Evidence

A

A witness’ account of something is NEVER the best evidence, we want (the detail of) the orginal

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10
Q

Best Evidence duplicates/exceptions

A

A. Duplicates allowed if generated by a method that ‘accurately reproduces the orginal’
1. Only rejected if unfair or the opponent challenges it
B. Exceptions to having to produce original or duplicate
1. all originals lost/destroyed and the proponent did not act in bad faith
2. Original can’t be obtained by judicial process
3. Opposing party has document and fails to produce
4. The document is not closely related to controlling issue

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11
Q

Best Evidence Examples

A

Phone records show that there was a call, but not the content b/c there is no transcript so a witness can testify as to the content of the call without violating the best evidence rule

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12
Q

Response to Best Evidence Objection

A

Your honor, I’ll rephrase OR Your honor, I move to bring in the document now.

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13
Q

801 Hearsay Definition

A

An out of out court statement offered for the truth of the matter asserted.

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14
Q

Hearsay Witness/ Declarant distinction

A

Witness- The one doing the quoting on the stand in court

Declarant- One being quoted ( words were originally said out of court)

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15
Q

Hearsay Policy

A

-Hearsay is bad because of problems with perception, memory, clarity and sincerity
-All of these go to reliability (trustworthiness)
= Opposing council’s opportunity to cross examine
=Jury’s opportunity to evaluate credibility ( we want them to be able to evaluate the witness on the stand)

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16
Q

801- Statement

A
  1. An oral, written, or non verbal(conduct) assertion by a human
  2. Assertive conduct is the equivalent of an oral or written statement b/c the assertion is intended to communicate something
  3. Statement test: Declarant + assertion/Human + intentional communication
  4. Animals cannot make assertions
  5. Machines
  6. Silence
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17
Q

801- Assertive Conduct

A

Assertive conduct is the equiv. of an oral or written statement b/c the assertion is intended to communicate something

  • When looking for nonverbal conduct, focus on the declarant’s intent
  • Examples: shaking a wet umbrella; “x” marked on the hand when “x” is an assertive statement by the door man that the person is underage
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18
Q

801 statement test

A

Declarant + human assertion + intentional communication

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19
Q

801- Machines and statements

A
  • Automated systems have no intention to communicate a statement
  • Statements can be made through machines if a human intended to communicate something through it, i.e. like pushing a silent bank alarm
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20
Q

801- Statements: Silence

A
  • person heard accusation against them
  • person was able to respond (deny)
  • remained silent although a reasonable person would have denied wrongdoing
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21
Q

801 - TOMA

A
  1. To prove the statement in “quotes”
  2. The proponent gets to decide what the TOMA is which means they get to decide why it is being offered (to avoid objections)
  3. If the words in quotes are what P is trying to prove, then it is HS
  4. Think of what the statement says by itself, then think what is the Proponent trying to use it to prove
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22
Q

Proponent’s 3 paths to respond to Hearsay Objection

A
  1. Definition
  2. Non Hearsay
  3. Exceptions to Hearsay
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23
Q

Proponent Responding to objection through Definition

A

Burden is on the opponent to meet the foundational elements, proponent only has to say that one of these elements are not met and the objection is overruled.

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24
Q

Definitional Response to Hearsay Objection Example

A

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)

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25
Q

5 definitional responses to Hearsay objections

A
  1. Effect on Hearer
  2. Circumstantial state of mind
  3. Impeachment
  4. legal act
  5. Knowledge
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26
Q

TOMA response: effect on hearer

A

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!”

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27
Q

TOMA response - Circumstantial state of mind (of the declarant)

A

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

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28
Q

TOMA Response- Impeachment

A

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

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29
Q

TOMA Response- legal act

A

Words of independent legal significance

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30
Q

TOMA Response- knowledge

A

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

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31
Q

Non Hearsay Response to Hearsay Objection

A

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

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32
Q

801(d)(2) (A-E)- Statements Against Parties

A

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.

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33
Q

801(d)(2)(A)- Statement by a party opponent

A
  • 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.
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34
Q

801(d)(2)(B)- Adoption by the party

A

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

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35
Q

801(d)(2)(C)- Authorization

A

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

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36
Q

801(d)(2)(D)- Agent within the scope and during their employment

A
  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.
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37
Q

801(d)(2)(E) - Co Conspirator Foundational Elements

A
  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.
38
Q

801(d)(2)(E) - Judge’s Determination of a Conspiracy

A

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

39
Q

801(d)(2)(E) - Witnesses

A

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.

40
Q

801(d)(2)(E) Conspirator Example of Objection and response

A

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.

41
Q

Statements by Party opponents on the same side of the “v”

A

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.

42
Q

801(d)(1)(A) - Prior inconsistent statements foundational elements

A
  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

43
Q

801(d)(1)(A) when declarant is subject to cross

A
  • 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
44
Q

801(d)(1)(A) when declarant testifies at trial

A

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

45
Q

801(d)(1)(B) - Prior Consistent Statements

A

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.

46
Q

801(d)(1)(B) Foundational Elements

A
  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)
47
Q

801(d)(1)(B) Response to Hearsay

A

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).

48
Q

801(d)(1)(C) - Pretrial IDs Foundational Elements

A
  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

49
Q

Pre Trial ID CA Distinction

A

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.

50
Q

801(d)(1)(C) response to objection

A

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…

51
Q

Exceptions to hearsay response to objection

A

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.

52
Q

803(1) - Present Sense Impressions (present spoken observations)

A

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

53
Q

803(1) Judge Determinations

A

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

54
Q

803(1) Example of Objection and Response

A

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.

55
Q

803(2) Excited Utterances/ statements

A

Foundation

  1. Declarant is excited
  2. Statement related to the exciting event
  3. Time- the declarant must remain excited immediately after
56
Q

803(2) Excited Declarants

A

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.

57
Q

803(2)- Time after event

A

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

58
Q

803(2) and written materials

A

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

59
Q

803(2) Example of Objection and Response

A

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. `

60
Q

803(3) State of Mind ( &body / the present intent to do a future act)

A

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
61
Q

803(3) and memory/ belief

A

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.

62
Q

803(3) and time frame

A

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.

63
Q

803(3) and compound statements

A

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)

64
Q

803(3) and 3rd party state of mind

A

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.
65
Q

803(4) Medical Treatment Foundation

A
  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
66
Q

803(4) CA Distinction

A

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

67
Q

803(4) Generally

A
  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
68
Q

803(5)- Recorded (unrefreshable) Recollection Generally

A
  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.
69
Q

803(5) Recorded Recollection Foundation

A
  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
70
Q

805- Hearsay within Hearsay Foundation

A
  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
71
Q

803(6) Business Records Foundation

A
  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
  8. Doesn’t matter if business/organization is for profit or not for profit
72
Q

803(6) CA Distinction

A

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.

73
Q

803(7) - Public Records Foundation

A
  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

74
Q

803(7) Public Records Observations

A

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.
75
Q

Absence of Records - 803(7) and 803(10)

A

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

76
Q

Absence of records Foundational Elements

A
  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
77
Q

Ancient Documents 803(16)

A
  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

78
Q

Market Reports/ Commercial Publication 803(17)

A
  1. Must be a directory, market quotation, list or other compilation
  2. Proponent must show that the public generally relies upon it.
79
Q

Learned Treatises 803(18)

A
  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.
80
Q

804 - Necessity

A
  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.
81
Q

804(a) - Unavailability

A

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
82
Q

804(a) Privilege

A

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

83
Q

804(a) Refusal to testify

A
  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
84
Q

804 (a) Lack of Memory(real or feigned)

A
  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)
85
Q

804(a) Death, Mental/physical illness

A
  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.
86
Q

804(a) Absence

A
  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.
87
Q

804(b)(1) Former Testimony (Necessity Exemptions)

A

(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)
88
Q

804(b)(1) Former testimony- offered against the same party (crim or civil) OR Offered against predecessor in interest (civil)

A
  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

89
Q

804(b)(1) Former Testimony - Opponent opp. to develop testimony

A
  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.
90
Q

804(b)(1) —Similar Motive

A
  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.
91
Q

804(b)(2) - Dying Declarations

A
  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)

92
Q

804 (b)(3) - Statements against Interest

A
  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.

Evidence (7 decks)

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