FL Evidence Part 2: § 800-920 Flashcards
(43 cards)
Define Hearsay and the Hearsay Rule.
Hearsay” is an out of court statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
A statement offered to show its effect on a listener, and not for the truth, is not hearsay. A statement is non-hearsay if it is offered to show knowledge of danger in advance, capability, on notice, ownership
Hearsay rule. Except as provided by statute, hearsay evidence is inadmissible
A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: {CHOOSE ONE}
a) Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a prior trial, hearing, or other proceeding, or in a deposition;
(b) Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or
(c) One of identification of a person made after perceiving the person.
(d) All of the Above
(d) All of the Above
**Prior sworn Inconsistent statements are not hearsay in FLORIDA (as opposed to an Exception to the Hearsay Rule)
How many enumerated exceptions are there to the Hearsay Rule, where the availability of the declarant is immaterial (not limited to situations where the W is unavailable) ?
ANSWER:
24
in 6 MAJOR GROUPINGS -
- “Admissions” by a Party-Oppornent and Former Testimony
- “Reputation” concerning personal or family history or boundaries, Character amonst associates
- “Immediate/reflective at the time:” Spontaneous Statement, Excited Utterance, and Then-Existing Mental, Emotional or Physical Condition
- “Business Records,” Statements for purposes of medical diagnosis (and Absence of entry in regular business records),a nd including Recorded Recollection,
- “Public records and reports,” including Vital statistics, (and Absence of Public Record or Entry), Records of documents affecting and interest in property recorded or filed, Ancient Documents, Records of Religious organizations, marriage, baptismal and similar certificates, family records. also Including Market reports and commercial publications
- “Special Allowance” Statement of child or eldery victim
How many Exceptions to the Hearsay Rule are there, where the defendant must be “Unavailable?
ANSWER:
6
(1) Former testimony.
(2) Dying Declaration. Statement under belief of impending death.
(3) Statement against interest.
(4) Statement of personal or family history
(5) Prior Consistent Statement - Statement by deceased or ill declarant similar to one previously admitted.
(6) Statement offered against a party that wrongfully caused the declarant’s unavailability.
“Unavailability as a witness” means that the declarant: {FILL IN BLANKS}
(a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;
(b) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so;
(c) {__________} of the subject matter of his or her statement so as to destroy the declarant’s effectiveness as a witness during the trial;
(d) Is unable to be present or to testify at the hearing because of (_______________)
(e) Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.
ANSWER
(c) Has suffered a lack of memory
(d) death or then-existing physical or mental illness or infirmity;
Hearsay Exception: Spontaneous Statement
A spontaneous statement describing or explaining an event or condition made while___________________ or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.
ANSWER
the declarant was perceiving the event or condition,
Hearsay Exception: Excited Utterance
A statement or excited utterance relating to a startling event or condition made while the declarant ______________________.
ANSWER:
was under the stress of excitement caused by the event .
An excited utterance does not have to be made at the exact time of the startling event, but must be made while the declarant is still in a state of surprise or shock from the incident.
Hearsay Exception: Present Sense Impression
aka. THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.
A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to prove: 1.___________ and 2. _____________
(The justification for the exception is that the “closeness in time between the event and the declarant’s statement reduces the likelihood of deliberate or conscious misrepresentation.”
- Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
- Prove or explain acts of subsequent conduct of the declarant.
Note, however, this subsection does not make admissible:
- An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will. OR
- A statement made under circumstances that indicate its lack of trustworthiness.
Hearsay Exception: Statements for Medical Diagnosis or Treatment
Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment,{ or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts}, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.
QUESTION: Can this include statements relating to guilt or fault for the injury? (ie Ray shot me)
ANSWER:
Generally No.
Statements concerning fault or guilt usually are NOT considered reasonably pertinent to diagnosis or treatment, and fall outside the scope of the medical treatment
Hearsay Exception: Recorded Recollection
A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly.
A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless __________
ANSWER:
offered by an adverse party.
FRE Rule 803(1) provides an exception for “[a] statement describing or explaining an event or condition made ______________
ANSWER:
while the declarant was perceiving the event or condition, or immediately thereafter.
The justification for the exception is that the “closeness in time between the event and the declarant’s statement reduces the likelihood of deliberate or conscious misrepresentation.” State v. Morgan, 359 N.C. 131, 154 (2004).
Hearsay Exception: Business Records
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge,is admissible if: {3 Requirements}
(a)
(b)
(c)
ANSWER
(a) kept in the course of a regularly conducted business activity
(b) it was the regular practice of that business activity to to do so
(c) a foundation is laid via testimony of the custodian or other qualified witness,
(unless the sources of information or other circumstances show lack of trustworthiness.)
Hearsay Exception: Business Records - Pre-requisites
A party intending to offer evidence by means of a certification or declaration shall (1) ______and (2) __________ prior to the introduction of the records.
ANSWER
(1) serve reasonable written notice of that intention upon every other party, and
(2) shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence.
A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party’s failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may allow.
HEarsay Exception - ABSENCE OF ENTRY IN RECORDS
T/F. Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, of a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved.
Answer:
TRUE
… unless the sources of information or other circumstances show lack of trustworthiness.
Hearsay Exception - Public Records and Reports
Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies…observed pursuant to duty imposed by law or a duty to report, are admissible in :
(a) civil cases
(b) criminal cases
(c) both civil and criminal cases
(d) neither civil nor criminal cases.
ANSWER
(a) Civil Cases
Excluded = in criminal cases, matters observed by a police officer or other law enforcement personnel are not automatically admissible as an exception to the Hearsay Rule.
T/F. Florida law states that a crash report made by a person involved in a crash or a statement of such person to a police officer is not admissible into evidence in any trial—civil or criminal.
ANSWER:
True
Crash reports are only used internally by the Department of Transportation in Florida, not in legal proceedings.
Hearsay Exception: Vital Statistics
T/F Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, are admissible if a report was made to a public office pursuant to requirements of law, provided that a sufficient foundation has been laid for the accuracy of the record.
ANSWER
False.
The rule does not require “a sufficient foundation to be laid for the accuracy of the record.”
Hearsay Exception: Absence of Public Record
Evidence that diligent search failed to disclose a record, report, statement, or data compilation or entry, can be offered to prove the absence of the record, if it would regularly have been made and preserved by a public office and agency.
QUESTION: How can such evidence be presented?
ANSWER:
In the form of a certification, or in the form of testimony,
Hearsay Exception : Family & Personal Records
The following are admissible in CIVIL/CRIMINAL/ANY case as exceptions to the Hearsay Rule.
RECORDS OF RELIGIOUS ORGANIZATIONS.—Statements of births, marriages, divorces, deaths, parentage, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization.
MARRIAGE, BAPTISMAL, AND SIMILAR CERTIFICATES.—Statements of facts contained in a certificate that the maker performed a marriage or other ceremony if administered by legal authority
FAMILY RECORDS.—Statements of fact concerning personal or family history in family Bibles, charts, engravings in rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones..
ANSWER:
ANY
Hearsay Exceptions: Statements in Ancient v Property Documents
What kind of Exception covers statements in a document in existence 20 years or more, which may or may not relate to an interest in property?
ANSWER:
ANCIENT DOCUMENTS.—Statements in a document in existence 20 years or more, the authenticity of which is established.
VS STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY.—A statement contained in a document purporting to establish or affect an interest in property, if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. Does not matter how old the document is.
Hearsay Exception: Commercial Publications and Market Reports
Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public are admissible in any action… What are some examples?
ANSWER:
Examples include widely published periodicals and publications, newspaper market reports, telephone directories, and city directories. The basis of trustworthiness is general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate.
Hearsay Exception: Admissions.
ADMISSIONS.—A statement that is offered against a party and is:
(a)
(b)
(c)
(d)
(e)
ANSWER:
(a) The party’s own statement
(b) A statement of another which the party has manifested an adoption or belief in its truth;
(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;
(d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or
(e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.
Hearsay Exception: Reputation Concerning Personal or Family History
Evidence of reputation concerning a person’s birth, adoption, marriage, divorce, death, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history is admissible if it is evidenced:
(a) Among members of a person’s family by blood, adoption, or marriage;
(b) Among a person’s associates;
(c) In the community;
(d) All of the Above.
ANSWER:
(d) All of the Above.
Hearsay Exceptions: Reputation re: Lands
Evidence of reputation is admissible:
(a) T/F In a community, arising before the controversy about the boundaries of, or customs affecting lands in, the community.
(b) T/F About events of general history which are important to the community, state, or nation where located.
ANSWERS
(a) TRUE
(b) TRUE
