Hearsay Flashcards
(142 cards)
1
Q
What is the basic idea behind Hearsay?
A
We want the jury to hear directly from people who saw stuff and we want every first-hand perceiver to be under oath and subject to cross-examination
2
Q
Who decides what is hearsay?
A
The judge
3
Q
Who is the hearsay declarant?
A
The person who actually uttered or wrote the out-of-court statement
4
Q
Who is the hearsay witness?
A
The person who is present in court and is relaying the declarant’s statement to the jury
5
Q
What is a hearsay document?
A
A document produced out of court that reflects a statement by the declarant
6
Q
What is double hearsay?
A
An out of court statement that refers to another out of court statement
Not admissible unless the proponent can find an exception that applies to both layers
7
Q
What are the 4 hearsay steps to follow?
A
- Is the evidence relevant?
- is the evidence hearsay?
- if the evidence is hearsay, does an exception apply?
- Would the prejudicial effect of admitting the evidence substantially outweigh its probative value?
8
Q
What is required for relevancy?
A
the hearsay must have materiality and probative value
9
Q
What are the 5 requirements for a statement to be classified as hearsay?
A
- out-of-court
- statement
- by a qualifying declarant
- offered for TOMA
- Outside of 801(d)
If the answer is yes to all of the above, hearsay!
10
Q
What makes a statement “out of court?”
A
- Outside the courroom OR
- Inside the courtroom but in some proceeding other than the present trial
Statements made to this jury on a prior day of a long trial don’t count as hearsay as long as statements were sworn.
11
Q
What is a statement?
A
- All verbal utterances or writings
- non-verbal conduct (only counts if the actor intended it to be assertive, regardless of how others perceive it)
12
Q
What is the test to determine whether a non-verbal act is a statement?
A
Whether the conduct is subjectively intended as an assertion
Examples:
Someone raising their hand in class is an assertion, but someone stretching - even if the prof calls on them, thinking they raised their hand - is not an assertion
a truck starts moving at a stoplight, and a maserati takes that as a sign that the light is green - this isn’t an assertion because the truck was not intending to signal to the maserati that it was safe to go
Someone standing is not an assetion (Wright)
13
Q
Are implied hearsay statements allowed
A
No
E.g., At trial, an attorney questioned a witness by asking them to discuss conversations with a 3rd party without revealing what the 3rd party said. The court held that this is not allowed because the 3rd party’s statements were implied. (Check)
14
Q
Who is a qualifying declarant?
A
Human being
Animals do not qualify
15
Q
Can a machine be a qualifying declarant?
A
Yes, but ONLY if the machine is a vehicle for human speech (i.e., did a machine do the thinking or did the human?)
a machine does not qualify if it generated the message
16
Q
When is a statement offered for TOMA
A
a statement is offered for TOMA when the proponent is trying to prove the proposition that the statement supports
17
Q
What are the 6 Non-TOMA purposes?
A
- Impeachment
- verbal act
- effect on listener or reader
- verbal object/marker
- circumstantial evidence of state of mind
- circumstantial evidence of unique knowledge
18
Q
Non-TOMA Purposes defined
Impeachment - what is it?
A
showing the inconsistency between present testimony and a prior statement by the same witness (not necessarily under oath), as opposed to proving the TOMA in the prior inconsistent statement
19
Q
Non-TOMA Purposes Defined
Verbal Act - what is it?
A
Proving an act (or part of an act) that is completed merely by the utterance, writing, or possession of words, especially when such use of the words is an element of the plaintiff’s claim or is an element of the offense in a criminal case
Sometimes words have verbal significance independent of their truth; sometimes a legally significant act is completed upon utterance, dissemination, or possession of words
20
Q
What statements are verbal act (6)?
A
- Words are an element of the crime
- Words are an element of a tort
- Offer and acceptance
- Statements affecting adverse possession
- Possession of words (prisoners possession violent literature)
- When the fact of speaking or writing is important for something else (i.e., to show: Declarant is alive at X time, Declarant can speak X language, Declarant knows how to write)
21
Q
Non-TOMA purposes defined
Effect on Listener or Reader - What is it?
A
Utterance or writing of words has some legally signficant effect, independent of their truth, on listener or reader, such as putting them on notice, because the point is to show how another person reacted to the words
22
Q
What 4 types of utterances are in the Effect on the Listener or Reader category?
A
- Words giving notice that you’re under attack
- False words intended to get a reaction of listener
- Product warnings
- Statement that somebody gave a tip to another person
23
Q
What question should you ask when trying to determine if a statement falls within the Effect on the Listener/Reader category?
A
Is the proponent trying to get in the head of the declarant or their audience?
DON’T CITE THIS NON-TOMA PURPOSE WHEN YOU’RE TRYING TO SHOW THE EFFECT OF THE WORDS ON THE DECLARANT! ONLY CITE THIS PURPOSE WHEN YOU’RE TRYING TO SHOW THE EFFECT OF THE WORDS ON SOMEONE ELSE!
Cite this if you’re trying to show the audience’s reaction was reasonable or unreasonable.
24
Q
QUESTION BREAK
Helpful e.g.s of utterances 4 the non-TOMA purpose of effect on listener
A
- If I’m in a parking lot and someone charges me with a knife yelling, “I’m going to cut you up because you prosecuted my brother,” and I kill that person in self-defense, my lawyer could offer the decedent’s statement for the non-TOMA purpose of showing its effect on the listener – i.e., showing that I acted reasonably in self-defense, even if the declarant did not actually intend to cut me with a knife
- Spider on shoulder Customs trick to illicit response from people claiming not to know English.
- Testimony of Douglas Faneuil about his “tip” to Martha Stewart to show that she had the requisite mens rea for trading on inside information
25
# Non-TOMA purposes Defined
Verbal Object/Marker - What is it?
relying on words as an identifier, instead of for their assertive aspect; words introduced to show the origin or owner of an item bearing those words
| Mostly used to show the origin or owner of an item bearing those words
## Footnote
E.g., Stakes for M.C. Lininger and Sons Construction Co., bearing the slogan “We’re paving the road to a bright future!” If these stakes were found at the site where toxic chemicals had been dumped illegally, the stakes could be offered in a criminal prosecution as evidence that Lininger Co. had been involved in dumping the chemicals
26
# Non-TOMA purposes Defined
Circumstantial evidence of state of mind - what is it?
proving indirectly the mental sate of the person who made the statement
## Footnote
If you are invoking this non-TOMA purpose, make sure you're using the statement as evidence of the DECLARANT's state of mind, not someone else's state of mind.
If the words directly prove the declarant's state of mind, they are hearsay due to their directly assertive aspect, but may be admissible under FRE 803(3) - Self referential
27
QUESTION BREAK
Examples of Circumstantial evidence of state of mind
* Fast speech the speaker was nervous
* Speaker saying, “2+2=5” -->speaker has lost their marbles or isn’t very smart
* Somebody leaving their spouse out of their --> will animus toward spouse
* Sexist joke by supervisor --> supervisor’s discriminatory state of mind
28
# Non-TOMA purposes defined
Circumstantial Evidence of Unique Knowledge - what is it?
When the mere utterance or writing of words indicates a person has very distinctive knowledge, which is evidence without considering the asserive content or truth of the words
29
QUESTION BREAK
Examples of Circumstantial Evidene of Unique knowledge
## Footnote
Look for words being very unique to a certain place or group such that only one who has been there would know them
* A little girl is kidnapped and held at the kidnapper’s residence, but she later escapes. She talks to a police officer and recites the exact words of some bizarre poetry that was scrawled on the kidnapper’s walls. At the trial of the kidnapper, a question arises about whether the little girl was really in the defendant’s residence. She doesn’t remember the words on the wall anymore, but the officer may testify that she recited these words in a statement to the officer shortly after the incident.
* A question arises as to whether a witness has ever been to a clandestine drug lab that is the subject of a prosecution. A diary entry of the witness recounting the unique inscription on the front door of the lab might be admissible as evidence that the witness did go to the lab.
30
QUESTION BREAK
Lininger's checklist for identifying the 6 non-TOMA purposes
1. look for the two non-TOMA purposes that are easy to recognize: impeachment (is the statement inconsistent with a prior statement?) and verbal marker (are the words essentially just a label?)
2. If neither of these are applicable, I look to see if the statement is offered to give us insight into the declarant’s state of mind or another person’s state of mind. If it’s the latter, I consider whether the statement may be offered for the non-TOMA purpose of showing its effect on the listener or hearer.
3. If the statement is offered to give us insight into the declarant’s state of mind, then I ask whether the statement proves state of mind directly or indirectly. (It’s probably admissible either way!) If the statement proves state of mind directly, it comes in under FRE 803(3), which we’ll discuss later. If the statement provides only indirect proof of state of mind, then it can be offered as circumstantial proof of state of mind, which is a non-TOMA purpose. Examples: the statement “I can’t think clearly today” is direct proof of state of mind, and the statement “2+2=5” is circumstantial proof
4. The next non-TOMA purpose I consider is proof of unique knowledge. This purpose will apply if we only care about how the declarant acquired the knowledge – not what the knowledge tells us about the declarant’s own state of mind. Usually, we’re talking about knowledge that is so unique it could only have been acquired under certain circumstances (e.g., the little girl in the kidnapper’s apartment).
5. Finally, we need to think about verbal acts. THESE ARE ALMOST ALWAYS A.P.O.S! It’s easier to admit them as A.P.O.s than as verbal acts. If no provision of FRE 801(d)(2) is applicable, consider the four most common categories of verbal acts
31
What are the two broad categories that make a statement outside of 801(d)?
1. Certain prior statements by witnesses who are now testifying and are available for cross
2. Admissions by party opponents
32
What are the three different types of prior statements?
1. Prior inconsistent statement in right setting
2. Prior consistent statement anywhere but but that meets the sequence requirements
3. Prior statement of identification
33
What are the 3 requirements for a Prior inconsistent statement?
1. Available for cross
2. Made a prior inconsistent statement
3. P.I.S was made in one of the 4 magic settings: (**Trial, hearing, other proceeding [usually grandy jury], or deposition**)
## Footnote
Example case:
*Smith* illustrates the minority view:
* D made a sworn statement to the police (via an affidavit)
* Later at trial, D made an inconsistent statement
* Court admitted the P.I.S. as non-hearsay by extending 801(d)(1)(A) to affidavits (arguing affidavits fell under “other proceeding”)
Remember, this is the minority view!
34
What are the 4 magic settings for a prior inconsistent statement?
1. trial
2. hearing
3. other proceeding (nearly always a grand jury)
4. deposition
35
What are the three requirements for a prior consistent statement?
1. Available for cross
2. Made a prior consistent statement
3. Proper temporal sequence (if W is accused of fabricating testimony OR offered to rebut accusation of bad memory)
## Footnote
E
36
What are the two requirements for Prior statements of Identification?
1. Available for cross
2. Prior statement is one of identification (usually a police ID)
37
What are the 5 Categories of APOs?
1. Admission by party themself
2. Adoptive admissions
3. Admissions by authorized representative
4. Admissions by agent
5. Co-conspirator statements
38
Are admissions by party opponents (APOs) hearsay
No
39
What are adoptive admissions?
Answering a question - omission (silence can indicate adoption, like affirmation, but not post-Miranda silence), gesturing (nod/shake), answering (yes/no, etc.)
40
In what circumstances can a co-conspirator's statement be considered an APO?
When a co-conspirator statement is made:
1. during the conspiracy period
2. in Furtherance of conspiracy
## Footnote
This trumps *Bruton* which held that a post arrest statement accusing today's co-defendant isn't coming in without cross of the person pointing the finger.
41
Does an admission need to be a concession
Nope! and admission is simply a statement
42
# APOs
What is the main requirement for an admission by a party themself?
The declarant is a party opponent
43
# APOs
What are the limitations for an admission by a party themself
1. Nolo contendre pleas (Guilty plea could be admissible)
2. Statements by a non-testifying D can't be admitted WITHOUT CROSS if they implicate a co-defendant (but note:co-conspirator statement exception)
## Footnote
Example case:
Bruton
* D told a cop, “Me and B committed a crime”
* Proponent wants to bring in this statement
* Court didn’t allow this because it implicated another co-defendant
* Holding: a post-arrest statement by one D accusing another D is not admissible in a joint criminal trial without cross examination of the declarant pointing the finger
How proponents can dodge the Bruton problem:
* Try Ds separately
* Redact references to the co-defendants from the APO
44
# APOs
What are the 2 requirements for adoptive admissions?
1. PO is **aware** of and understands statement
2. PO **manifests adoption**(can be with words, gestures, or silence)
| Silence can be an adoption, but post-miranda silence cannot
## Footnote
Example Cases:
Hoosier
* D’s girlfriend said to a trusted 3rd party, “you should’ve seen the money we had in the hotel room”
* Boyfriend was right there and said nothing
* This counted adoption, because if it was wrong, D would’ve said something
* Holding: a silent adoption is outside of 801(d)
Doyle
* D was arrested and the officer said, “if you have a good excuse, you’ll say it now”
* D remained silent
* This silence was not admissible
* Holding: post-Miranda silence is not adoption
45
# APOs
What are admissions by authorized representatives?
If a lawyer/communication director/other person hired to speak makes a statement, the person who hired them is responsible.
46
# APOs
What are the 2 requirements for Admissions by Agents
1. Statement made during agency relationship
2. Agent must be speaking about a matter within the scope of their duties
| Agency only runs up, not down - pricniples don't bind agents
## Footnote
Doesn't matter if agent is not at work/not authorized to make statement. If you make a statement about your work, you might qualify (unless it's so far afield from you job duties)
Case Example:
Wolf attack case
* A family sued a Wolf Center & its employee because their son was attacked by a wolf
* Family wanted to introduce minutes from a Wolf Center Board of Directors meeting that said, “wolf bit Danny”
* Court said this APO could get in against the Wolf Center because the Board members were agents of the Wolf Center, BUT the APO couldn’t get in against the employee because he wasn’t involved in the Board meeting
* Takeaway: Agency only runs up, not down – principals don’t bind agents the way agents can bind principals.
47
What are the three requirements for co-conspirator statements?
1. Statement made by co-conpsirator
2. During conspiracy period (which starts during planning period and continues to covering tracks)
3. In furtherance of the conspiracy
48
What are the 4 Main Categories of Hearsay Exceptions?
1. Spontaneous
2. Self-Referential
3. Document/Recording
4. Unavailable
49
What broad category of hearsay exceptions is "restricted"
Unavailable
## Footnote
this category is restricted because the proponent must first show that the declarant is unavaialble to testify
50
What are the 2 sub-categories of the Spontaneous hearsay exception category
1. Present sense impression
2. Excited utterance
51
What is the main idea behind Present Sense Impression?
We admit statements describing/explaining an event made while or immediately after the declarant perceived it
52
What are the 3 elements of Present Sense Impression?
1. immediacy (seconds)
2. Perception
3. Description
53
What are the limitations of PSI (2)?
1. Immediately means immediately. If it's more than a few seconds, it might not count as a PSI
2. A statement describing/explaining something that is itself inadmissible is not allowed. If declarant merely heard a hearsay statement and then described it, the hearsay statement will not be admitted.
54
What is the main idea behind excited utterance?
We admit statements relating to a startling event/condition, made while the declarant was under the stress of excitement that it caused.
55
What are the 3 elements of an excited utterance?
1. Exciting/alarming stimulus
2. Excitement at time of utterance (pendency/continuation)
3. Relation of statement to purpose
## Footnote
If it has been longer than 15 minutes, doesn't satisfy pendency element.
56
What is are the 2 sub-categories for the self-referential hearsay exception category?
1. Statement concerning mind or bodily condition
2. Statement in aid of medical diagnossis or treatment
57
What is the Hillmon Doctrine?
You can help prove the declarant did something by offering evidence that they indended to do it.
58
What is the difference between circumstantial evidence of state of mind and direct evidence of state of mind?
801(c) allows circumstantial evidence of state of mind as non-hearsay
803(3) allows in direct evidence of state of mind under a hearsay exception
## Footnote
Limitations: You cannot admit one declarant's statement to prove another person's statem of mind - has to be one's own state of mind
59
What are two main ideas for a statement in aid of medical diagnosis or treatment?
We admit statements that:
1. are **made for** - and are reasonably pertinent to - **medical **diagnoses or treatement AND
2. **describe medical **history; past or present symptoms/sensations; their inception; or their general cause.
60
What are the 5 elements for statements made in aid of medical diagnosis or treatment?
1. relates to medical condition or symptoms
2. made for medical purposes
3. pertinent to treatment
4. made in conversation involving medical personnel
5. made by patient or patient's "team" (patient's spouse or good samaritan)
61
Does a doctor need to know the identity of the alleged assailant?
Yes, the doctor needs to know who caused the harm, so they don't release their patients back into the custody of the assailant
## Footnote
1. docs want safe environments for patients, including protection from future harm. Also need to know about STDs, availability of abortion may depend on incest, etc.
2. Identity of assailant could be important for sex crimes cases, especially involving a minor.
62
What are the 5 types of Documents or Recordings?
1. Past recollection recorded
2. business records
3. absence of business record
4. public record
5. learned treatise
63
What is the main idea behind past recollection recorded?
We allow the proponent to read a document or play a recording when a witness is forgetful
64
What are the 5 requirements for Past Recollection recorded?
1. Wtiness is now REALLY **foregetful**
2. Prior statement **correctly** reflects witness's memory
3. Prior statement was **made** or adopted **by witness**
4. Prior statement was made when **memory** of event was **fresh**
5. Proponent can only **read** the **statement** to the jury
65
can a prior statement for past recollection recorded be made by someone other than the witness?
Nope!
66
Is there a timeframe requirement for when the prior statement for past recollection recorded was made in relation to when the event was fresh?
No hard and fast rule. A longer limit is allowed if it was a very significant event in W's life. (i.e., the more significant the event recorded, the longer the timeline allowed.
67
Can an opponent of a past recollection recorded statement introduce the document into evidence?
Yup.
68
# past recollection recorded
Must you establish that the witness is forgetful?
Yes, you can't rush to introduce document
69
What is the main idea behind business records?
we admit records of routinely conducted activities that people who run organizations keep for their own future reference
70
What are the 6 requirements for the business record hearsay exception?
1. Source with knowledge under business duty
2. Close in time
3. Routine making
4. Routine Keeping
5. Proponent must lay foundation
6. Trustworthiness
71
# Business Record Exception
How close in time must the record have been made in relation to the event?
At or near time of event - a few days is not a big deal, but the longer the timespan the less reliable the record
72
# Business Record Exception
What does proponent must lay foundation mean?
Proponent must call somebody who is familiar with how the organization is run
73
Is a doctor's record admissible?
Yes, but direct quotes from patient are not because it fails the source with knowledge and trustworthiness requirements
74
What is the main idea behind an Absence of business record?
We admit records that show something did not occur or exist
75
What are the requirements for absence of a business record?
1. record must be regularly kept for a matter of that kind
2. source of information, method, circumstances of preparation cannot indicate lack of trustworthiness
## Footnote
e.g., List of college graduates—if someone’s name isn’t on there, they didn’t graduate
76
What's the main idea behind admitting public records?
WE admit public records of internal activities, external observations, and investigative reports
77
What are 3 types of public records?
1. Reports regarding agency's own activities (internal activities)
2. Reports of matters observed pursuant to duty (external observations)
3. Investigative reports
78
What is an IMPORTANT exception to the public record exception?
POLICE REPORTS
79
# Records of Internal activities
When is a record or statement of a public office allowed?
If it sets out the offices activites
80
# Record of external observations
What is required for a statement or record of public office to be allowed in?
It will be allowed as long as it sets out a matter observed while under a legal duty to report
| but may be excluded if record is untrustworthy
## Footnote
Example: a NOAA worker has a duty to report weather, but not how good the food is that they’re eating at work
81
What is required to admit investigative reports in a civil case?
sets out factual findings
82
What is required to admit an investigative report in a criminal case?
1. IT sets out factual findings from an investigative report
2. the report is used against the government
83
Can investigative reports be based on information from outside sources?
Yes, but it only lets in the official findings of the agency, not the outsider's findings or conclusions.
84
Do we directly admit Learned Treatises?
We allow proponent to read reliable sources of information (like treatise, periodical, or pamphlet) into the evidence (but we don't directly admit it)
## Footnote
READ BUT NOT ADMITTED
85
What 2 elements are required to admit a learned treatise?
1. Linked to testimony of the expert
2. authoritiative (reliable authority)
86
# Learned Treatise
Can a treatise be offered out of the blue?
No.
87
# Learned Treatise
When can a treatise be introduced
1. When it is called to expert's attention OR
2. Relied upon by expert on direct
88
# Learned Treatise?
What is way for the treatise to be considered authoritative?
Expert testifies that it is authoritative
89
# Learned Treatise
When an expert testifies that a treatise is authoritative, do they need to agree with everything in it?
Nope!
90
# Learned Treatise
Is a showing that the treatise is published enough for it to be considered authoritative?
Nope - needs more to show reliable
91
# Learned Treatise?
What are two examples of a learned treatise
DSM
Kelley Blue Book
92
What are 5 ways to show a declarant is unavailable?
1. Invokes privilege
2. Refuses to testify
3. Lacks memory
4. Is dead or has medical problem
5. Is unavoidably absent
93
# Unavailability
What are two examples of privileges that a witness can invoke that make them unavailable?
1. self incrimination
2. attorney client privilege
94
# Unavailability
What are the two requirements to satisfy refusal to testify?
1. persistent refusal despite a court order
2. Declarant must've been called to the stand and actually defied court's order to testify
95
# Unavailability
What does it mean for a declarant to be unavailable when they lack memory?
If declarant testifies to not remembering the subject matter.
## Footnote
Note: a declarant can be unavailable concerning a portion of the statement at issue, even if they remember making the entire statement and even if they recall other portions of the statement
96
# Unavailability
What is required to show declarant unavoidably absent
1. The witness has been subpoenaed but doesn't come OR
2. the witness can't reasonably be subpoenaed
97
# Availability - Unavoidably Absent
In state court, what is the subpoena power?
State boundary
98
# Availability - Unavoidably Absent
In federal court, in a civil case, what is the court's subpoena power?
District boundary
99
# Availability - Unavoidably Absent
In federal court, in a criminal case, what is the court's subpoena power?
Nationwide
100
# Unavailabilty
What does the doctine of unclean hands have to do with unavailability?
If you made someone unavailable - through murder, bribery, intimidation, etc. - you can't invoke FRE 804 to keep out former testimony, dying declarations
101
What are the 5 exceptions to unavailability?
1. Former testimony
2. Dying declarations
3. Statements Against interest
4. Statement of personal or family history?
5. STatement offered against wrongdoer
102
What 3 elements are required to satisfy the former testimony exception for unavailability?
1. Unavailability
2. Prior hearing or proceedings
3. Opportunity and motive to develop testimony
103
Do you need to have the same opponents to use the former testimony exception for unavailability?
Only in criminal cases.
104
In civil cases, what needs to be present to use the former testimony exception for unavailability?
The former testimony needs have a predecessor in interest (privity: successive ownership of property or company).
105
# Unavailability exception: Former Testimony
Must the issues in former proceeding vs. present civil proceeding be identical to presnt former testimony?
No
106
# Unavailability exception: Former Testimony
Must the issues in former proceeding vs. present criminal proceeding be identical to presnt former testimony?
Nope!
107
# Unavailability exception: Former Testimony
Must the parties in former proceeding vs. present criminal proceeding be identical to present former testimony?
YES
108
# Unavailability exception: Former Testimony
Must the parties in former proceeding vs. present civil proceeding be identical to present former testimony?
No, but they need to be a predecessor in interst.
## Footnote
The focus is whether adverse party's motivation to cross examination was similar
109
# Unavailability exceptions
What are the 3 requirements for admitting a dying declaration?
1. Unavailability
2. settled expectation of iminent death
3. Statement concerns cause/circumstances of death
110
# Unavailability exceptions
What types of cases allow admission of dying declarations in the civil context?
Any
111
# Unavailability exceptions
What types of cases allow admission of dying declarations in the criminal context?
only homicide cases
112
# Unavailability exceptions
Does the declarant actually have to die to use the dying declaration exception
No, the declarant just has to believe that death is minutes, hours, or days away.
## Footnote
Month is too long
113
# Unavailability exceptions
What are the 3 requirements for statements against interest?
1. Unavailable
2. Statement against interest
3. Corroboration
114
# Unavailability exceptions - Statements against interest
Must the declarant understant it's against their intest?
Yes, it must be subjectively and objectively understood as being against their interest.
115
# Unavailability exceptions - Statements against interest
What does corroboration mean?
EVidence that is independent from the statement at issue - this is to prevent one co-D from taking the fall for all
116
# Unavailability exceptions - Statements against interest
What happens when a statement against interest is long and contains other statements that are not against the declarant's interests?
Long narrations will be broken into smaller statements and analyzed separately.
117
# Unavailability exceptions - Statements against interest
What is a really common stituation you should look for when presented with a suspected statement against interest?
IT could be an APO!
118
# Unavailability exceptions - Statements against interest
What are 2 situations where a statement is not against interest but might seem like it?
1. Post-arrest statement ot officers that implicate co-Ds
2. Immunized statements in proffers
119
# Unavailability exceptions
What are the requirements for statement of person or family history exception to unavailability?
1. One's own personal family/history
2. Another person's account of personal/family history (if they're a family memver or really close to the family)
120
# Unavailability exceptions
What are the two requirements for the Statements offered against wrongdoer exception to unavailability?
1. Unclean hands
2. Specific intent to make the witness unavailable
## Footnote
just need preponderance of evidence
121
What type of unavailability is required for Former Testimony exception?
Unavailable at present trial
122
What type of unavailability is required for Dying Declarations exception?
Super unavailability (could not come to hearing/trial/depo)
123
What type of unavailability is required for Statement Against Interest exception?
Super unavailability
124
What type of unavailability is required for Statement of personal or family history exception?
Super unavailability
125
What type of unavailability is required for Statement Offered Against Wrongdoes exception?
Any availability
126
What is the hearsay within hearsay rule?
When a fact pattern has 2+ layers of hearsay, solve for each layer
127
# Impeachment and rehabilitation of hearsay declarants
What is the rule of completeness?
You can impeach a hearsay declarant with other hearsay
128
What are the 5 elements for FRE 807 (the catch all exception)
1. Materiality
2. Relative probity
3. Interests of Justice
4. Trustworthiness
5. Notice
129
# FRE 807 - Catch All Exception
What does relative probity mean?
More probative on the point for which it's offered than any other evidence the proponent can reasonably obtain
| no other evidence can prove the point
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# FRE 807 - Catch All Exception
What does the interests of justice mean?
Must prove justice **requires** admission
| more about reliability and fairness
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# FRE 807 - Catch All Exception
What does trustworthiness mean?
Show some circusmtance that makes this evidence trustworthy.
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# FRE 807 - Catch All Exception
Is corroboration enough to show trustworthiness?
Yes.
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# FRE 807 - Catch All Exception
Is corroboration the only way to show trustworthiness?
It is not necessary but it is sufficient.
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# FRE 807 - Catch All Exception
What is required for notice?
You need to give the opponent reasonable notice of intent to offer the statement and its particulars
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# FRE 807 - Catch All Exception
When you give tour opponent notice, what do you need to include?
1. Statment and its particulars
2. declarant's name
3. declarant's address
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What is the confrontation clause?
When the government brings in **testimonial** hearsay against a **criminal** defendant, if there is no **confrontation,** we won't admit the hearsay
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# Confrontation clause
That does testimonial mean?
Statement that declarant made when they reasonably believed it'd be used at trial
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# Confrontation Clause
What are examples of testimonial statements?
1. Prior testimony (prior trial, hearing, deposition, grand jury)
2. Known government official asking questions in a setting where it will be used later (police interrogation, 911 call)
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# Confrontation Clause
What is an exception to the testimonial requirement?
When there is an ongoing emergency (*Davis*)
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# Confrontation Clause
What is the **only** setting where the confrontation clause applies?
Criminal trials
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# Confrontation Clause
Can you admit testimonial hearsay when the declarant is unavailable for cross?
No, testimonial hearsay requires cross (confrontation)
## Footnote
*Crawford*
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# Confrontation Clause
What are some more examples of things that are plainly testimony?
1. affidavit
2. station house statements
3. statements to known police officers/govt officials
4. prior trials
## Footnote
UNLESS ONGOING EMERGECNY
