hearsay Flashcards
(35 cards)
hearsay rule statement
a statement made outside the current court, and is being offered in evidence to prove the truth of the matter asserted.
a statement includes:
oral, written, nonverbal conduct intended as an assertion
hearsay within hearsay is admissible only if
admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.
prior statements of testifying witnesses
testifying witness who is subject to cross-examination is not hearsay if:
- identification
- inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding
- consistent with the declarant’s in-court testimony and is (1) offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement was made before any motive to lie or exaggerate arose), or (2) offered to rehabilitate a witness whose credibility has been impeached on some other ground (other than a general attack on the witness’s character for truthfulness
opposing party statement - when does silence count?
silence may be considered an implied acquiescence to the truth of that statement if the following requirements are met:
1) party heard and understood the statement;
2) party was physically and mentally capable of denying the statement; and
3) A reasonable person would have denied the accusation
*Note that silence in the face of accusations by police in a criminal case is almost never considered an admission of a crime.
opposing party statement - what type of relationship allows for vicarious statements to be admitted against party?
- authorized spokesperson
- agents and employees if: (1) concerned any matter within the scope of their agency or employment, and (2) made during the existence of the agency or employment relationship
- partners in partnerships
- Statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy (requires proof of conspiracy and participation by preponderance of evidence)
- predecessors in interest
- joint tenants *STATE COURT ONLY
vicarious statement - preliminary determinations
Before admitting as a vicarious statement of an opposing party, the court must make a preliminary determination of the relationship
Court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship; there must be some independent evidence.
declarant unavailable if:
- unable to testify due to death or physical or mental illness;
- exempt from testifying because of privilege;
- Refuse to testify concerning the statement despite a court order;
- Testify that they do not remember the subject matter; or
- Are absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure their attendance or testimony by process or other reasonable means.
declarant unavailable - what if the proponent caused the unavailability?
declarant will NOT be considered unavailable for purposes of the hearsay exception to apply
The testimony of a now-unavailable witness is admissible if
- was given under oath
- party against whom the testimony is now being offered—or, in a civil case, the party’s predecessor in interest—had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross-, or redirect examination
limitation on statements against penal interest for non-available statement
criminal cases, statements against penal interest (meaning, statements that would subject the declarant to criminal liability) must be corroborated.
dying declarations hearsay exception - a statement made by a now-unavailable declarant is admissible if:
HOMICIDE or ANY CIVIL
*requires unavailability!
1) declarant believed their death was imminent (they need not actually die); and
- statement concerned the cause or circumstances of what the declarant believed to be their impending death. (must be based on the declarant’s perceptions and firsthand knowledge of what happened)
Statements by a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that:
*requires unavailability!
1) declarant is a member of the family in question or intimately associated with it; and
2) statements are based on the declarant’s personal knowledge of the facts or their knowledge of family reputation
Statements offered against party procuring declarant’s unavailability
statement of a person (now unavailable as a witness) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability.
party’s motivation MUST BE TO PREVENT TESTIFYING. If a party killed a declarant (or otherwise prevented them from testifying) for a different reason, the declarant’s statement would not fall within this exception.
excited utterance
*does not require unavailability!
an out-of-court statement relating to a startling event, made while under the stress of the excitement from the event is admissible.
present sense impressions
*does not require unavailability!
a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition.
present state of mind
*does not require unavailability!
statement of the declarant’s then-existing (present) state of mind (including motive, intent, physical condition or plan) or their emotional, sensory, or physical condition is admissible.
a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed.
statements made for purposes of medical diagnosis or treatment
*does not require unavailability!
statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for—and was reasonably pertinent to—medical diagnosis or treatment.
business records exception + elements
*does not require unavailability!
any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurrence if the following elements are met:
1) Business
2) Entry made in regular course of business
3) Made near time of event
4) personal knowledge
business record required foundation
authenticity must be established by a sponsoring witness.
Can be accomplished by the records custodian (1) testifying that the record meets the elements of the business records exception, or (2) certifying in writing that the record meets the elements of the business records exception.
business records to prove nonoccurence
A business record that meets the requirements may also be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record all such matters.
business records - court exclusion for lack of trustworthiness
Even if a business record meets all requirements, it still may be excluded by the court if the opponent makes a showing that the circumstances of the record indicate a lack of trustworthiness.
official records/writings - what is admissible?
the following records of a public office or agency are admissible:
- Records setting forth the activities of the office or agency
- Recordings of matters observed pursuant to a duty imposed by law - but not including police observations in criminal cases; and
- In civil actions and against the government in criminal cases—but not against the defendant in a criminal case—records of factual findings resulting from an investigation authorized by law (for example, an FAA report on the cause of a plane crash)
limitation on law enforcement records
public records and reports generally are not admissible against the defendant in a criminal case
