Hearsay Flashcards
(37 cards)
Nonhearsay Statements
FRE 801(d)
Out-of-court statement admissible if witness subject to cross-examination & prior statement:
Statement by declarant-witness
1) is inconsistent with current testimony & was made under penalty of perjury
2) is consistent with current testimony & offered to (1) rebut charge of fabrication/improper influence or (2) rehabilitate witness or
3) identifies person witness perceived earlier
* Out-of-court statement admissible if offered against opposing party & statement was:*
Statement by Party-Opponent
1) made or adopted by party
2) made by person authorized by party
3) made by party’s agent/employee on matter within scope of relationship or
4) made by party’s coconspirator during & in furtherance of conspiracy
Nonhearsay
Statement by declarant-witness
An out-of-court statement is excluded from the hearsay rule (i.e., is nonhearsay) and admissible as substantive evidence if (1) the declarant testifies and is subject to cross-examination at trial and (2) the declarant’s statement satisfies any of the following criteria:
1) it is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, deposition, or other proceeding
2) it is consistent with the declarant’s testimony and offered to (1) rebut an allegation that the declarant recently fabricated that testimony or has testified due to recent improper influence or (2) rehabilitate the declarant’s credibility when attacked on other grounds or
3) it identifies a person as someone the declarant perceived earlier.
A declarant’s prior statement that identifies a person as someone the declarant perceived earlier is nonhearsay if the declarant testifies and is subject to cross-examination about the statement.
EXAMPLE: If the witness returned to her home country before trial, she is unavailable to testify and is not subject to cross-examination about her statement. Therefore, the statement is not admissible as nonhearsay. And if no other hearsay exclusion or exception applies, the court should not allow the statement into evidence.
Previous out-of-court identification
A previous out-of-court identification of a person after perceiving that person is not hearsay and may be admissible as substantive evidence by the testimony of the declarant-witness.
Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification.
Nonhearsay
Adoptive Admission
An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own. Fed. R. Evid. 801(d)(2)(B).
Silence in response to a statement is considered an adoptive admission if:
i) The person was present and heard and understood the statement;
ii) The person had the ability and opportunity to deny the statement; and
iii) A reasonable person similarly situated would have denied the statement.
Post-arrest silence by a defendant who has received Miranda warnings may not be used as an adoptive admission of a statement made by another person (e.g., a police o”cer). Doyle v. Ohio, 426 U.S. 610 (1976).
Hearsay Exception
Business Records
Under this exception, business records are admissible if they are:
i) made at or near the time of the recorded event
ii) made by or based on information from someone with personal knowledge of the event and
iii) made and kept as a regular practice in the course of regularly conducted business activities.
However, this exception does not apply to records prepared in anticipation of litigation because they lack trustworthiness.
Hearsay Exception
Public Records
“Under the hearsay exception for absent public records, testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind.”
- Existing public records (FRE 803(8))
Records or statements of public office/agency admissible if they set forth:
i) activities of office or agency
ii) matters observed pursuant to legal duty (excluding police observations in criminal cases) OR
iii) factual findings from legal investigation if offered in civil case or against government in criminal case
2. Absence of public records (FRE 803(10))
Evidence that diligent search failed to locate public record or statement admissible if:
i) introduced through testimony or self-authenticating evidence certified under FRE 902 AND
ii) in criminal cases, prosecutor gives written notice of intent to offer certification 14 days before trial & defendant does not object in writing within 7 days of receiving notice
Present recollection refreshed v. Past recollection recorded
- Refreshing recollection (FRE 612)
Any item may be used to refresh witness’s memory regardless of admissibility if:
i) witness once knew but is now unable to recall fact or event AND
ii) item will help witness recall that information
2. Recorded recollection (FRE 803(5))
Record is admissible hearsay and allowed to be *read into evidence* if it:
i) contains information witness once knew but cannot recall well enough to testify fully & accurately
ii) was made or adopted by witness when matter was fresh in his/her mind AND
iii) accurately reflects witness’s knowledge at time record was made
Hearsay Exception
Past Recollection Recorded
The past recollection recorded hearsay exception allows a record to be read into evidence if it:
(1) concerns a matter that a witness once knew but cannot recall at trial,
(2) was made or adopted by the witness when the matter was fresh in his/her mind, and
(3) accurately reflects the witness’s personal knowledge at the time it was made.
Before invoking this exception, the party should attempt to refresh the witness’s memory under FRE 612.
If the witness still cannot sufficiently recall the events recorded, the past recorded recollection may be utilized.
However, only the party opposing the use of the record may introduce it as an exhibit.
Hearsay Exception
Former Testimony
The former testimony exception allows an *unavailable declarant’s* former testimony to be admitted if:
i) the testimony was given at a trial, hearing, or deposition in the current case or a different proceeding that involved similar parties and issues AND
ii) the party against whom the testimony is offered had an opportunity and similar motive to develop that testimony through direct or cross-examination of the declarant.
***An affidavit does not fall under the former testimony exception because it is not given during a trial, hearing, or deposition and the other party has no opportunity to cross-examine the affiant.***
Hearsay Exclusion
Prior inconsistent statement
“A prior inconsistent statement may be used to impeach a witness on a material issue even when it is not admissible substantively.”
A prior inconsistent statement is a past statement that is contrary to a witness’s present testimony.
Such statements are subject to the rule against hearsay and—unless excluded or excepted from hearsay—cannot be offered as substantive evidence.
A prior inconsistent statement may be used to impeach a witness on a material issue even when it is not admissible substantively. A party may impeach the witness with the statement by:
i) examining the witness about the statement OR
ii) introducing the statement through extrinsic evidence if:
(1) the witness has an opportunity to explain or deny—and the opposing party has the opportunity to question the witness about—the statement OR
(2) justice so requires.
Hearsay Exception
Statement Against Interest
The statement against interest exception applies to hearsay statements that:
(1) are contrary to an unavailable declarant’s proprietary or pecuniary interest,
(2) tend to invalidate the declarant’s claim against someone else, OR
(3) expose the declarant to civil or criminal liability.
Hearsay Exception
Dying Declaration
The “dying declaration” exception applies to statements that
(1) were made while an unavailable declarant believed his/her death was imminent AND
(2) concerned the circumstances of that impending death.
Hearsay Exception
Excited Utterance
The “excited utterance” exception applies to statements that
(1) relate to a startling event or condition AND
(2) were made while the declarant was still under the stress of excitement caused by that event or condition.
Hearsay Exception
Then-existing state of mind
The “then-existing state of mind” exception applies to statements about the declarant’s motive, intent, or plan.
But this exception does not apply to mere statements of memory or belief—e.g., the nephew’s recounting of taking the woman’s car—unless they relate to the declarant’s will.
A prior inconsistent statement is admissible nonhearsay if:
A prior inconsistent statement is admissible nonhearsay if:
(1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding AND
(2) the declarant testifies and is subject to cross-examination.
****It can also be introduced extrinsically for impeachment purposes if the witness has the opportunity to explain or deny, and the adverse party can examine the witness about, the statement.****
Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to…
Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to
(1) have the writing produced for inspection,
(2) cross-examine the witness about the writing, and
(3) introduce into evidence any portion of the writing that relates to the witness’s testimony.
Is evidence that a party was (or was not) covered by liability insurance admissible as substantive prrof of negligence or wrongdoing?
NO.
Under FRE 411, evidence that a party was (or was not) covered by liability insurance is not admissible as substantive proof of negligence or wrongdoing.*
- *However, evidence of liability insurance is admissible for nonsubstantive purposes (e.g., to impeach a witness).
This is true even if the evidence is in the form of the party’s own statement.
FRE 411 helps to ensure that the jury will not infer fault based on the existence of coverage or base its verdict on the party’s or insurer’s ability to pay.
Can a witness use the item that refreshed their recollection to testify?
NO.
The witness may not use the item to testify but must do so from his/her refreshed memory. As a result, the item need not be independently admissible to be used for this purpose
Refresh recollection
Any item (e.g., a writing, photograph) may be used to refresh a witness’s memory when:
(1) the witness once had personal knowledge of a matter but is now unable to recall it AND
(2) the item will help the witness recall that matter.
Hearsay
Statements offered for some other purpose
The hearsay rule bars out-of-court statements that are offered to prove the truth of the matter asserted therein, but not those that are offered for some other purpose—e.g., to illustrate the declarant’s world view or belief system.
Hearsay Exception
then-existing state of mind
Statements concerning the declarant’s then-existing state of mind (e.g., statements of motive, intent, or plan) are excepted from the rule against hearsay.
Hearsay Exception
Former Testimony
One exception to the hearsay rule permits the admission of an unavailable declarant’s former testimony if:
i) that testimony was given at a trial, hearing, or deposition in the current case or a different proceeding AND
ii) the party against whom the testimony is offered had an opportunity and similar motive to develop that testimony through direct or cross-examination of the declarant.
Hearsay
what is a statement?
The rule against hearsay bars the admission of out-of-court statements offered to prove the truth of the matter asserted therein unless excluded or excepted from the rule.
A statement is defined as a person’s (1) oral or written assertion or (2) nonverbal conduct that was intended as an assertion.
Under the recorded recollection exception to hearsay, can a recording be played to the jury without being admitted as an exhibit?
YES.
Example: Here, the witness no longer remembers the license plate number, even though she knew it at one time and the record was made when the information was fresh in her memory.
- Accordingly, the recording would be admissible under this hearsay exception.
Note that the recording could be played for the court to hear, but would not actually be admitted as an exhibit unless the defense decided to do so.
