Hearsay Flashcards
(29 cards)
What is hearsay?
an out-of-court statement offered to prove the truth of the matter asserted
what is a “statement”?
oral assertions, written assertions or nonverbal conduct if the person intended it as an assertion (nod or thumbs up)
Non-hearsay statement examples:
1) verbal acts of independent legal significance (offered to prove that the statement itself was made, regardless of its truth)
2) show the effect on the listener
3) show declarant’s mental state or state of mind and
4) impeachment purposes
prior inconsistent statements are admissible for substantive purposes if:
1) declarant is testifying at trial and is subject to cross
2) statements were previously made under penalty of perjury
3) prior statements are inconsistent with present testimony being given at trial
if prior statement were not previously made udnder penalty of perjury they can be offered ONLY for impeachment purposes
prior consistent statements are admissible to REBUT a claim that a declarant is fabricating or has motive to fabricate if:
1) declarant is testifying at trial and is subject to cross and
2) the prior consistent statement was made before the declarant had motive to fabricate the statement
prior statement of identification are admissible for substantive purposes:
if the declarant is testifying at trial is subject to cross
admissions by party opponent (prior out of court statements made by party to the current litigation that are offered by the opposing party) are:
admissible as non-hearsay:
adoptive admissions:
if the party heard and understood the statement and remained silent where a reasonable person would have denied the statement
vicarious admission
if an authorized spokesperson, agent within the scope of and during agency, co-conspirators during and in furtherance of conspiracy are considered vicarious and are imputed on the party opponent
hearsay exception - unavailable if declarant is:
1) exempted from testifying because of privilege, 2) refuses to testify despite court order, 3) testifies to not remembering subject matter 4) cannot be present or testify because of a death or infirmity phsycail or mental illness, 5) is ABSENT and the statement’s proponent has not been able by process or other reasonable means to procure the declarant’s attendance
what are the hearsay exceptions if declarant is unavailable?
1) former testimony, 2) dying declarations, 4) statements against interest, 4) forfeiture by wrongdoing
former testimony is admissible if:
1) declarant is unavailable, 2) statement was prior testimony given at trial hearing or deposition and 3) the opposing party had an opportunity and similar motive to develop the testimony through cross or direct (GRAND JURY DOES NOT COUNT)
dying declaration is admissible if
1) declarant is unavailable 2) declarant believed her death was imminent when statement was made [doesnt actually have to die] 3) statement pertains to the cause or circumstances of her death
ONLY AVAILABLE in homicide and civil cases
statement against interest admissible if:
1) declarant is unavailable, 2) statement is against declarant’s self-interest and 3) a reasonable person would NOT have made the statement unless he believe it to be true
statement of forfeiture by wrongdoing:
1) party forfeits hearsay objection if the party intentionally or wrongfully makes the declarant unavailable to testify as proven by a preponderance of the evidence
(act making the witness unavailable does not have to o be criminal to qualify) aka sending someone away to a foreign country
What are the hearsay exceptions - declarant availability immaterial
present sense impression, excited utterance, state of mind, medical diagnosis or treatment, recorded recollection, business records
present sense impression is admissible if:
declarant describes an event as it6 takes place or immediately therafter
excited utterance is admissible if:
it concerns a startling event made by the declarant when they were still under stress from the startling event
state of mind is admissible if:
their THEN EXISTING state of mind (MOTIVE INTENT OR PLAN) or emotional sensory or physical condition to prove the declarant’s state of mind or the declarant’s conduct
state of mind is NOT admissible if:
statement regarding memory, past belief or state of mind to prove the fact remembered unless it related to the VALIDITY or terms of the declarant’s will
medical diagnosis or treatment:
a person’s past or present condition as long as it is made for the purpose of medical diagnosis or treatment -
can be made to nurses, family members or non-medical individuals or: to enable a physician to testify at trial (as long as its to prove medical diagnosis or treatment
recorded recollection can be READ into evidence if the witnesss cannot recall provided that:
1) record is about a matter the witness once had personal knowledge of, 2) record was made or adopted by the witness when the matter was fresh in the witness’ mind 3) record accurately reflects the witness’ personal knowledge and 4) the witness can no longer recall the events or information well enough to testify EVEN AFTER reviewing the writing on the stand
who can enter recorded recollections as an exhibit?
opposing counsel
present recollection refreshed allows:
a witness to glance at almost ANY item to refresh her memory while on the stand (it is then taken away while testifying and not admitted into evidence)
