Hearsay Flashcards
(48 cards)
1
Q
Hearsay - Elements (3)
A
- Statement - oral/written or non verbal conduct with intention
- Made by declarant outside of trial or hearing proceeding
- To prove the truth of the matter asserted
2
Q
Hearsay - Gral Rule as E
A
EXCLUDED unless allowed by rule
3
Q
Hearsay - Typical examples of NOT HEARSAY bc they are not offered to prove the truth of the matter (3)
A
- Statements of independent legal effect despite of their truhtness or falsity. i.e. “Ill give you my apple stocks”
- Statements offered to prove a statement was made as notice (“these steps are loose”) or reason for duress (“sign this or ill break your knees”) or other injury such as defamation (“Juan is a communist”)
- Statement offered to show declarant perception when such perception is relevant for case (i.e. for self defense. “B told me that A wanted to kill me”. Enough to generate fear of inminent harm despite of truthness or falsity of original statement)
4
Q
Hearsay - Conduct as Assertion Rule
A
As testimony on conduct that happen out of court
- Condcut allows for inference
- I_F it was intended to assert a statement then it willbe hearsay_
i. e. To establish that iwas raining on X day, investigator asks declarant if people were walking with umbrellas that day, he said yes, hence he infers that he had knowledgeof the rain.
5
Q
Hearsay - Silence as an assertion
A
Rules for adoptive admission appliy - hnece it can be not-hearsay despite definition
6
Q
Hearsay - Examples of not hearsay despite meeting criteria - FRE 801d) (2) Main criterias
A
- Prior statement by witness
- Opposing party statement: a) by own party, b) adoptive statement, c) by auhtorized person, d) by agent, and e) by co-conspirator
7
Q
Hearsay - Examples of not hearsay despite meeting criteria - Prior Statement by W (under oath) / gral reqs
A
- Made under oath at trial or hearing
- Subject to cross examination
- Admissible unless credibility of W is attacked
8
Q
Hearsay - Examples of not hearsay despite meeting criteria - Prior Statement by W (under oath) / (3) types
A
Can be:
- Inconsistent with current testimony by W
- Consistent: made before recent lie, improper inflience, bribe - (can be used to bolster confidentiality)
- ID of person: i.e. police line
9
Q
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - Own Statement /type and in what capacity
A
- Can be either statement or assertive conduct
- Either personally or in representative capacity (i.e. corporate officer)
10
Q
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - Adoptive Statement / concept
A
- Statement adopted by party as his own or that believes to be true
11
Q
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - Adoptive Statement / Admissible criteria (3)
A
- Statement was heard and understood
- Reasonable person would deny it if it wasnt true given its nature
- No response by party being capable of so - silence as assertion
12
Q
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - Authorized
A
By auhtorized person by the party
- i.e. spokesperson
13
Q
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - By Agent / 3 reqs
A
- By agent or employee
- Acting within scope of agency
- During the time of agency
14
Q
Hearsay - Examples of not hearsay despite meeting criteria - Opposing Party Statement - Co-conspirator /Reqs + i.e.
A
- During or in furtherance of conspiracy
- i.e. A and B conspite to import drugs, A tells C that he and B will transact with B regarding drugs. A testiomny could be used against B.
15
Q
Hearsay - Exceptions - Classifications (4)
A
- Admissible statements that meet PETSRR requirements of accuracy (independent of presence of declarant)
- Availability of declarant immaterial
- Declarant unavailable
- Residual exception for trustworthy statements (rarely tested)
16
Q
Hearsay - Exceptions - Admissible Statements FRE 803 - Gral
A
- For both civil and criminal
- Statements most likely accurate
- Declarant can be present or absent (except for reading of recorded recollection)
17
Q
Hearsay - Exceptions - Admissible Statements FRE 803 - Statements about PETSRR
A
- Present Sense Impression
- Excited Uterance
- Then existing mental/emotiona/physical condition
- Statement made for medical treatment
- Reading of recorded recollection
- Records of regularly conducted activity - “Business Record Exception”
18
Q
Hearsay - Exceptions - Admissible Statements FRE- Statements about PETSRR - Present Sense Impresion /what, when
A
- Spontaneous describing statement
- “Contemporaneous” - During or inmediatly after happening of event
- i.e. 911 call
19
Q
Hearsay - Exceptions - Admissible Statements FRE- Statements about PETSRR - Excited Uterance /what, when
A
- Statement related w/event or conduct
- Made under stress or excitement caused by event
- No necessary inmediacy
- i.e. isterical description of car accident
20
Q
Hearsay - Exceptions - Admissible Statements FRE- Statements about PETSRR - Statement of mental/physical/ emotional condition / when, includes,
A
- For condition currently experienced by person making statement (“I am angry” vs “Joe look angry” which is present sense impression)
- Includes: intent, plan, motive, design, mental feeling, bodily health.
- i.e. “I intend”, “I will”, “I am”
21
Q
Hearsay - Exceptions - Admissible Statements FRE- Statements about PETSRR - Statement of mental/physical/ emotional condition / EXCLUSIONS
A
- Statements of mental/physical/emotional conditio to prove causation
- __i.e. “I beleive my leg pain was caused by yesterday’s car collision”
- Statement on past condition UNLESS related with declarant’s will
22
Q
Hearsay - Exceptions - Admissible Statements about PETSRR - for Medical Treatment / what, exclusion
A
- Statements relevant for doctor to make diagnose or recommend treatment
- If wiht other purpose i.e. atribute fault - then not admissible . i.e. my injuries are result of my husband beating me.
23
Q
Hearsay - Exceptions - Admissible Statements about PETSRR - Recorded Recollection / when, how, i.e.
A
- When W needs memory refresh a record can be shown
- Record can be inspected by the other part
- Introduced as E only by the adverse party
- Best Evidence Rule Applies
- i.e. police reports, journalist’s note.
24
Q
Hearsay - Exceptions - Admissible Statements about PETSRR - Recorded Recollection / Records PIFA reqs
A
- Pertinent: related w/matter in which W has knowledge
- Insufficient present recollection: to testify fully and accuratelly
- Fresh when adopted: record either made or adopted by W when matter fresh in W’s memory
- Accurate: record reflects W prior knowledge
25
Hearsay - Exceptions - Admissible Statements about PETSRR - Records of Regularly Conducted Buiness Activity / Gral
* Based on incentives for business to keeping accurate records for tax, accounting, etc.
26
Hearsay - Exceptions - Admissible Statements about PETSRR - Records of Regularly Conducted Buiness Activity / Reqs for records (5)
1. Regularly conducted
2. Near in time to activity, condition, event
3. Personal knowledge of or of preparation of the records (doesnt apply for person outside of organization)
4. Regular Practice (1 time doc not enough)
5. Reliable: as truthful w/no apparent motive to fabricate
27
Hearsay - Exceptions - Where availability of _declarant is inmaterial_ - Grounds (17)
1. _Absence of entry in records_
2. _Public Records_
3. Public Records of Vital Stats
4. Absence of public record
5. Record of religious orgs
6. Certificate of marriage, baptism, etc
7. Family records
8. Records of docs affecting interest in property
9. Statements in docs affecting interest in property
10. _Statements in ancient docs_
11. Market reports and commercial publications
12. _Learned Treatises_
13. Personal and Family history or reputation
14. Repudiation in community
15. Reputation as to character among assocaites or community
16. _Judgment of previous conditions_
17. Judgment as to personal, family, grla history, boundaries
28
Hearsay - Exceptions - Where availability of declarant is inmaterial - Absence of entry in records
* When activity would otherwise have been recorded and admissible as Record of Regularly Conducted Business
29
Hearsay - Exceptions - Where availability of declarant is inmaterial - Public Records /when, exclusion
* When duly certified by custodial officers
* Excluded: record of opinion or discretionary finding
30
Hearsay - Exceptions - Where availability of declarant is inmaterial - Statements in ancient docs
* has to over 20 years
* authenticity needs to be established
31
Hearsay - Exceptions - Where availability of declarant is inmaterial - Learned Treatises
* Authenticated by experts
* used to supplement expert testimony OR to direct on cross examination
* Publication itself not admitted as E but only the reference
32
Hearsay - Exceptions - Where availability of declarant is inmaterial - Judgement of previous crimes
- Admission to prove only fact that is essential to sustain judgment
- It has to be final judgment or guilty plea on crime with death penalty or over 1 year in prison as punishment
33
Hearsay - Exceptions - Where Declarant is Unavailable as Witness - FABH exceptions
1. Former Testimony
2. Against Interest
3. Belief of impending death
4. Statement of personal and family History
34
Hearsay - Exceptions - Where declarant is unavailable as Witness - DAAL conditions for unavailable
1. Death, physical or mental illness or Infirmity at time of hearing where they need to testify
2. Asserted Privilege or refusal to testify
3. Absence and proponent is unable to procure his attendance by process or other reasonble means (need of show of efforts)
4. Lack of Memory
35
Hearsay - Exceptions - Where declarant is unavailable as Witness - Exception for DAAL + Forfeitrue by wrongdoing
* W not considered unavaialble if DAAL bc of procurement or worng doing from proponent with INTENTION of preventing attendance and testifying
* "Forfeiture by worngdoing" : statement offered against party who attempted unavailability
36
Hearsay - Exceptions - Where declarant is unavailable as Witness - Former Testimony
- former testimony by W at prior hearing/deposition
- WHEN current opponent had opp to develop testimony in direct or cross examination in previous ocasion
37
Hearsay - Exceptions - Where declarant is unavailable as Witness - Statement Against Interest
* Significantly contrary to declarant's pecuniary and/or propietary interest
* Notion it would statement would be made unless it is true.
* Not merely embarrasing
* Personal knowledge required
38
Hearsay - Exceptions - Where declarant is unavailable as Witness - Statement Against Interest - Rule for Criminal Cases
Exception doesnt apply WHEN:
* It exposes declarant to criminal liability
* Exculpates accused
* Self inculpate's W
39
Hearsay - Exceptions - Where declarant is unavailable as Witness - Belief of Impending Death
* When declaration concerns the cause or circumstances of inminent death
* In criminal case only for homicide of declarant
40
Hearsay within Hearsay FRE 805
Not excluded by hearsay rule IF each part of all statements are exceptions to the rule
* If any layer of hearsay does not meet an exception then the statement is inadmissible
41
Hearsay - Exceptions - Credibility of Declarant
Once hearsay or opposing party statement done by authorized party, the DECLARANT can be attacked as a regular W (impeach) w/o opp to defened himself
+
Possible cross exam by attacking party.
42
Hearsay - Exception - "Residual Exception" FRE 807 / Reqs (1+ 3)
Whne no other exception applies but hearsay statement is:
1. Trustworthy
2. As E of material fact
3. _Probative on the point more than any other E that can be procured with reasonable efforts_
4. Admission is on interest of justice
43
Hearsay - Confrontation Clause (CC) - Gral / context, relation to hearsay
* 6th amm right of criminal accused to confront W agaisnt him
* Potential conflict with hearsay rule in relation to "testimonial E " (foreseable future prosecutorial use of statement)
44
Hearsay - Confrontation Clause (CC) - When does it apply
* Only in criminal trials (no pre trial or post trial hearing)
* For E from govt against accused
* For testimonial E - foreseable future use of prosecutorial statement
* i.e. testiomony obtained by police during investigation
45
Hearsay - Confrontation Clause (CC) - US SC "Emergency Exception"
* E not admissible if statement by police during emergency situation
* Bc there is no testimonial purpose
46
Hearsay - Confrontation Clause (CC) - Forfeiture of Confrontation Clause
If accused caused absence of declarant w/ specific intent to create unavailability - CAN NOT CLAIM VIOLATION OF CC
* mere causation not enough - even if accused killed declarant w/o intent to affect testiomony
47
Hearsay - Confrontation Clause (CC) - "Sufficient Confrontation"
* As right from criminal accused
* Sufficient confrontation is to **cross examine** declarants of testimonial hearsay
48
