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Flashcards in Hearsay Deck (62):

6 Exceptions to the rule against hearsay
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1. Admissions of party
2. Former testimony
3. Statement against interest
4. Dying declaration
5. Spontaneous statements (6 exceptions)
6. Business records


Six types of spontaneous statements
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1. Present state of mind
4. Present sense impression
5. Declaration of PRESENT physical condition
6. Declaration of past physical condition.
2. Statement of existing intent to prove intended act.
3. Excited utterance


Admission of a party "Statement of an opposing party"

Declaration of a party offered against the party. So statement of P against D.


Former testimony: Admissibility requires:

1. Unavailability of the declarant.
2. Meaningful opportunity to cross; and
3. Issue in both proceedings must be essentially the same.


Statement against interest: 5 requirements

1. Declarant is unavailable
2. Statement is against that person's monetary, proprietary, or penal interest,
3. At the time the STATEMENT WAS MADE
4. Had personal knowledge of the facts, and
5. Was aware the statement was against her interest with no motive to misrepresent.


Limitation on statement against interest. In a criminal case a statement against interest cannot be used by either party unless it is:

supported by CORROBORATING CIRCUMSTANCES that clearly indicate its trustworthiness.


Dying declaration: Statement made:

1. Under sense of an impending death.
2. Need not die, but must be UNAVAILABLE at time of trial.
3. Admissible in civil cases or homicide cases
4. Content MUST concern cause or circumstances of impending death.


Excited utterance: To be admissible statement must:

1. Be produced by a startling event
2. Made under the stress of excitement (most impt factor)
3. Concerning the facts of the startling event.


Present sense impression: A statement:

1. Describing or explaining an event or condition
2. Made while declarant was perceiving the event or Immediately thereafter.

NO exciting event needed.
NO appreciable time lapse.


Declaration of PRESENT pain, suffering, or physical condition is a declaration of a __ ____ ____ _____ is admissible to show the ______.

then existing physical condition is admissible to show the condition.
Ex. "It hurts!" Admissible by anyone who hears it.


Declaration of PAST physical condition must be: 2

1. Made to medical personnel, and
2. Be pertinent to either the diagnosis or the treatment.
FRE: Even if the diagnosis is only for the purpose of giving testimony.


Impeaching hearsay declarant the credibility of the declarant may be attacked by:

any evidence which would be admissible for that purpose if declarant had testified as a live witness.


2 Questions to ask when thinking about business record exceptions:

1. Is the record germane to the business?
2. Would the employee normally be able to testify to this?


Declarations of existing state of mind are admissible:

(i) when declarant’s state of mind is directly in issue, or
(ii) if they are declarations of intent offered to show subsequent acts of the declarant.


Past recollections recorded are employed when the facts that the witness cannot remember are:

too numerous to use simple refreshing recollection.
(Like a dr. using his office notes - because he has a lot of patients and needs them to fully and accurately testify about the patient's treatment, etc.)


For a valid hearsay exception for past recollections recorded four elements must be satisfied: The witness:

1. cannot testify fully and accurately on memory alone.
2. had personal knowledge when the writing was made.
3. made or adopted the writing when the witness's memory was fresh
4. testifies that the writing is true and accurate to the best of his knowledge.


For past recollections recorded the witness can refer to the writing and read from it while testifying and although the writing is admitted into evidence it:

does not go out with the jury.


Learned Treatise: In GA, the contents of a treatise cannot be used on direct examination of an expert. Only on:

cross examination.

In other words, the treatise can be used to attack, but not bolster.



1. An out of court statement (oral or written)
2. of a person (machine generated data are not hearsay - e.g. caller id)
3. offered to prove the truth of the matter asserted (the truth of the statement)


Layman definition of hearsay:

When the relevance of the OoCS asks the fact finder to ASSUME that the declarant (speaker or writer) was not lying or mistaken, then the statement is hearsay.


Non Hearsay Statements Trick: Search for a:

relevant non-hearsay use of the statement.


If an OoCS is relevant for some purpose that does NOT depend on the credibility of the declarant then:

it is admitted subject to a limiting instruction, if requested.


If a statement is truly non-hearsay then the fact that the declarant made the statement:

will be enough, by itself, to establish relevance.


Non-Hearsay: Verbal Act (Legally Operative Words) Hypo: G sues T for breach of an oral K. B takes the stand and proposes to testify as follows: "I heard T say to G: 'I accept your offer to sell Microsoft." Hearsay?

No. The fact that the statement was made is legally operative.


Non-Hearsay: Effect on Hearer: Hypo: G v. Market. G alleges that she slipped and fell on broken jar of salsa in aisle 3. P's witness takes the stand and testifies: "10 minutes before G entered aisle 3 I heard another shopper tell manager, 'there's a broken jar of salsa on aisle 3."
Hearsay if offered to prove there was salsa on 3?

Yes. Declarant could have been lying or mistaken.


Non-Hearsay: Effect on Hearer: Hypo: G v. Market. G alleges that she slipped and fell on broken jar of salsa in aisle 3. P's witness takes the stand and testifies: "10 minutes before G entered aisle 3 I heard another shopper tell manager, 'there's a broken jar of salsa on aisle 3."
Not hearsay if offered to prove:

Market had notice of a possibly dangerous condition on 3 b/f accident.


When an OoCS has both a hearsay and non-hearsay use it is:

admitted, subject to a limiting instruction, if requested and a R. 403 balancing test, if requested.


Non-Hearsay: Statement that DEMONSTRATES a relevant state of mind of the declarant. Hypo:
H is prosecuted for murder. Defense: Insanity. A witness for H proposes to testify, "Two days before the killing, H said 'I am Elvis. It's good to be back.'" How is it relevant and is it hearsay?

Relevant to prove H was delusional.
Not hearsay.


5 situations in which a testifying witness's OoCS are admissible:

1. Prior inconsistent statement (usually on cross)
2. Prior consistent statement IF being used to rebut a charge of recent fabrication or improper motive or influence. (usually on redirect)
3.W's prior statement of identification.
4. Admissible statement under a hearsay exception
5. Relevant non-hearsay use of statement.


Prior identification of a person is only admissible if:

the identifying witness is available at trial and for cross.


Testimonial Hearsay: If the hearsay statement was not made by or to an agent of the gov't then:

it is almost certainly NOT testimonial.


Testimonial Hearsay: Three situations: Statement was:

1. in response to a question by an agent of the state.
2. initiated by a citizen to the police, reporting a crime, when the declarant would be aware that his statement would be used to investigate and prosecute the perpetrator.
3. by the police or an agent of the state in regard to a specific criminal investigation.


Testimonial Hearsay: Statement in response to questions by the police: Primary purpose test: A statement is testimonial if:

the primary purpose of taking the statement was the investigation and collection of evidence concerning a crime.


Testimonial Hearsay: Statement in response to questions by the police: Primary purpose test: The statement is not testimonial if:

the primary purpose of taking the statement was to deal with an ongoing emergency.


Non-testimonial statements are admissible if:

they satisfy the hearsay rule.


Party Admissions: Any statement made by a party is admissible if it is:

offered by the opponent.


Rationale of admitting party admissions?

Party ought to bear the consequence of what he says. Can explain it to the jury. Can't complain about not being able to cross examine himself.


A party admission does not have to be:

against a party's interest at the time it was made.


Agent Admissions (Vicarious Admissions): Statement made by a party's agent or employee is admissible when offered by the opposing party if: (2 things)

1. The statement was made during the agency/employment; AND
2. the statement concerns a matter that the agent would know by virtue of his job duties.


Co-Conspirator Statements: Admissible when offered by the prosecution against the accused in a criminal case if the statement: (3 elements)

1. made by a member of the conspiracy of which D was part; AND
2. made DURING the conspiracy; AND
3. was in furtherance of the conspiracy.


Co-Conspirator Statements: Even after the crime has been committed if there is a conspiracy to conceal and avoid apprehension, statements made:

in furtherance of the conspiracy to conceal are admissible.


Necessity Exception: A hearsay statement that does not qualify for a specific exception may be admitted if: (4 things)

1. The proponent gives opposing party pretrial notice, AND
2. The statement is evidence of material fact, AND
3. The statement is more probative than any other evidence on that point, AND
4.The statement has circumstantial guarantees of trustworthiness.


Four hearsay exceptions where declarant must be unavailable to testify at trial: DAFT

1. Dying Declaration
2. Against interest declarations
3. Family and personal history statements
4. Testimony (former)


Five reasons a hearsay declarant may be "unavailable" to testify at trial:

1. Dead or too ill
2. Cannot be located by due diligence.
3. Beyond subpoena power
4. Refuse to testify
5. Lack of memory.


Forfeiture Exception: Hearsay is admissible against a party: (Related to 6th Amd. Objections)

whose wrongdoing made the witness unavailable IF the ct finds that the party INTENDED by his conduct to prevent the witness from testifying. (Thus, forfeiting his 6th Amd. objections too.)


Dying Declaration: A statement made under a:

belief of impending and certain death by a now unavailable declarant concerning the cause or surrounding circumstances of the declarant's death.


Dying Declaration: Criminal cases is admissible in:

homicide cases only


Dying Declaration: Civil cases is admissible in:

all the cases!


Statement against interest: In criminal cases these statements must be supported by:

other evidence which corroborates the truth of the statement.


Present state of mind exception:

Statement of declarant's THEN EXISTING intent to do something in the future is admissible to prove that the declarant probably did what he intended.


Present physical condition exception:

Statement describing declarants THEN EXISTING physical condition.
(Backward looking statements are not admissible under this exception. Look at the tense of the statement. Past or present?)


Statement for purpose of medical diagnosis or treatment:

Statement made to medical personnel concerning matters that are pertinent/relevant to medical treatment


Business records exception: 4 elements: KRAP

Regular Course
At or near the time
Personal Knowledge

OR if falls into a different hearsay exception.


The court may ________ portions of a business record that are inadmissible under the exception.



Business records exception: Laying foundation. You need either:

1. "qualifying witness" that can testify to the 5 elements of business records hearsay (does not need to be the author of the report) OR
2. Obtain a written certification attesting to the elements of the business records hearsay. (Pretrial notice to opposing party req'd)


Public records: 3

-Admin activities of office or agency (payroll records, driver's license data, etc.)
-matters observed pursuant to duty imposed by law (Weather bureau records, factual statements in police reports.)
-Findings of fact resulting from an investigation authorized by law. (OSHA inspection report, FAA report on airplane crash, etc.)


Limitations on public records: In criminal trials the prosecution may not use: 2

1. Investigative reports by the police or
2. Findings of fact from an investigation authorized by law.


Hearsay is defined as:
(Yes, I know this is a repeat card.)

An out of court statement of a person offered to prove the truth of the matter asserted.


Statement against interest must be against interest at the ____ __ ___ _____.
Admission is against interest at the ___ __ ___ _____.

Admission: at the time of the trial.


Statement against interest may be made ______. Admission may be made ________.

SAI: can be made by ANYONE
Admission: made Only by the party


Statement against interest requires ______.
Admission the declarant is:

SAI: unavailability of the declarant.
Admission: declarant is USUALLY there


Statement against interest requires declarant have:

personal knowledge of the facts.