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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

What is the definition of hearsay? (2 elements)

A

Hearsay is:

  1. An out-of-court statement by a person (oral or in writing)
  2. Offered to prove the truth of the matter asserted in the statement
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2
Q

What is NOT hearsay?

A

Any statement not offered to prove the truth of the matter asserted

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3
Q

What are the principal categories of non-hearsay purposes?

A
  1. Verbal act / Verbally operative words (e.g., Words of contract formation or slanderous statement – we don’t care about the credibility of the parties, only whether the words were spoken)
  2. Words used to show effect on person who heard or read the statement (e.g., Person hears someone make a statement that may be relevant to put someone on notice of something, create fear, provide motive, etc.)
  3. Circumstantial evidence of speaker’s state of mind (e.g., Witness testifies that, days before X killed Y, X said he was Elvis, suggesting X was crazy)
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4
Q

What is the verbal act that is non-hearsay?

A

Legally operative words

(Rights and obligations attach with the words; state of mind is irrelevant)

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5
Q

When is a witness’s own prior statement admissible?

A

Inadmissible to prove the truth of the matter asserted under hearsay, unless an exception or exclusion applies

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6
Q

What are the exclusions to witness’s own prior statement admissibility?

(MBE)

(NY nuances)

A

A witness’s own prior statement may be admissible IF witness is currently subject to cross AND the statement was:

  1. Witness’s prior statement of identification of a person [NY: called exception];
  2. Witness’s prior INconsistent statement (if oral, under oath, and made during formal testimonial hearing) [NY: admissible only to impeach]; OR
  3. Witness’s prior consistent statement to rebut charge of recent fabrication, contention of inconsistency, or sensory deficiency [NY: admissible only to rehabilitate]
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7
Q

What is a party admission?

A

Any statement by an opposing party is admissible for its truth if it is offered against the opposing party

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8
Q

What is an adoptive admission?

A

Party expressly or impliedly adopts a statement made by another person

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9
Q

When does adoptive admission occur BY SILENCE?

A

A statement by another party is impliedly adopted by a party’s silence IF

the party hears the statement and remains silent under circumstances in which a reasonable person would have protested if the statement were false

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10
Q

What is a vicarious party admission?

A

Statement by agent/employee is admissible against principal/employer IF:

  1. Statement concerns matter within the scope of agency/employment AND
  2. Statement is made during the existence of agency/employment relationship (NY: only if there is authority)
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11
Q

When is a co-conspirator’s statement admissible?

A

Co-conspirator’s statement against a party who was a member of the conspiracy is admissible IF statement was:

  1. made during the conspiracy, AND
  2. made in furtherance of the conspiracy.
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12
Q

What are the TWELVE hearsay exceptions?

A
  1. Forfeiture by wrongdoing
  2. Former testimony
  3. Statement against interest
  4. Dying declaration
  5. Excited utterance
  6. Present sense impression
  7. Present state of mind
  8. Declaration of intent
  9. Present physical condition
  10. Statement for the purpose of obtaining medical treatment or diagnosis
  11. Business records
  12. Public records
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13
Q

What is the rule for hearsay for prosecution in criminal trial?

A

May not use a hearsay statement against a criminal defendant if:

  1. the statement is testimonial,
  2. the declarant is unavailable, AND
  3. the defendant has had no opportunity for cross-examination
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14
Q

What statements are considered testimonial? (2)

A
  1. Grand jury testimony; AND
  2. Statements in response to police interrogation IF the primary purpose is to establish or prove past events potentially relevant to criminal prosecution
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15
Q

When are statements in response to police interrogation non-testimonial?

A

If the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency

(N.B. If crime ended, can be emergency if suspect is armed and at large)

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16
Q

What documents are testimonial?

A
  1. Sworn affidavits AND
  2. Forensic laboratory reports IF primary purpose is to accuse a targeted individual of criminal conduct (need to call the forensic author)
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17
Q

What documents are not testimonial?

A
  1. Business records; AND
  2. DNA report if it analyzes a sample of bodily fluid from crime scene for the purpose of developing a DNA profile IF no particular person is suspected at the time
18
Q

What is the “forfeiture hearsay exception” to the general inadmissibility of hearsay?

(i.e., When declarant is unavailable due to D’s wrongdoing)

A

Any type of hearsay statement IS admissible against a defendant whose wrongdoing made the witness unavailable IF court finds,

  1. by a proponderance of the evidence [NY: clear and convincing], that
  2. Defendant’s wrongdoing was DESIGNED to prevent the witness from testifying.
    (i. e., By making the witness unavailable through his own wrongdoing, e.g., by threatening/killing/etc. the witness, the D forfeits the hearsay exception AND his 6th Am. right to cross-examination)
19
Q

What is burden of proof for the forfeiture hearsay exception?

(FRE/MBE)

(NY)

A

FRE: preponderance of the evidence

NY: clear and convincing

20
Q

When is former testimony admissible? (3 times)

A

The former testimony of (1) a now-unavailable witness is admissible if (2) it was made at a prior proceeding or deposition and (3) its admission is against a party who, on the prior occaison, had an opporutnity and motive to cross-examine or develop the testimony of the witness.

(N.B. Issue in both proceedings must be essentially the same)

(Grand jury against prosecution might be admissible)

21
Q

What are the grounds for unavailability of a witness?

(MBE/FRE: 5 grounds)

(NY: 5+2 grounds)

A
  1. Privilege (e.g., spousal immunity against testifying as a witness);
  2. Absence from the jurisdiction (e.g., Witness cannot be found with due diligence or is beyond court’s subpoena power);
  3. Witness’s illness or death;
  4. Lack of memory; AND
  5. Stubborn refusal to testify.

[NY: two extra grounds, IN CIVIL CASES ONLY:

  1. Declarant is located 100 or more miles from the courthouse; AND
  2. Declarant is a physician.
22
Q

What is a statement against interest?

A

Statement of unavailable declarant that is against

  1. Pecuniary interest,
  2. Proprietary interest, OR
  3. Penal interest

(In criminal cases: must be supported by circumstances showing trustworthiness of the statement)

23
Q

How is a statement against interest different from party admission?

A
  1. Must be against interest when made
  2. Any person (not just party) can make statement against interest
  3. Personal knowledge is required
  4. Declarant must be unavailable
24
Q

What is a dying declaration?

A

A dying declaration is:

  1. A statement made under belief of impending and certain death (given up all hope of survival)
  2. By a now-unavailable declarant
  3. Concerning the cause or surrounding circumstances of declarant’s death
25
Q

When is a dying declaration admissible?

(MBE)

(NY)

A

Criminal: homicide only

Civil: any type

In NY: criminal homicide only (when made police officers, admissible despite confrontation)

26
Q

What is an excited utterance?

A

Statement concerning startling event made while declarant is still under the stress of excitement cause by the event

27
Q

What are the three factors to consider in determining an excited utterance?

A
  1. Nature of the event
  2. Passage of time
  3. Visual clues: exclamatory phrase; excitement-oriented verbs; exclamation point
28
Q

What is present sense impression?

(MBE)

(NY nuance)

A

Description of an event made while the event is occurring or immediately thereafter

NY: need additional, corroborating evidence

29
Q

What is the present state of mind?

A

Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions

30
Q

What is a declaration of intent?

A

Statement of declarant’s intent to do something in the future (incl. intent to engage in conduct with another person)

[Look for NY exception]

31
Q

NY QUESTION

What is the NY extra elements for declaration of intent?

A

If offered to prove joint participation, need:

  1. Corroborating evidence of a relationship between the declarant and the other person AND
  2. The declarant is unavailable
32
Q

What is the present physical condition hearsay exception?

(+NY nuance)

A

Statement made to anyone about declarant’s current physical condition

NY: if made to layperson (rather than medical professional), declarant must be unavailable

33
Q

What are the requirements for a statement for the purpose of obtaining medical treatment or diagnosis?

A

Statement made to anyone for the purpose of obtaining medical treatment or diagnosis (incl. expert testimony) IF it concerns declarant’s:

  1. Present symptoms,
  2. Past symptoms, OR
  3. General cause of the condition (not incl. details of liability or identity of tortfeasor, unless it is identity of abuser in domestic or child abuse)

(N.B. Does not apply to physician’s oral statements)

(NY: does not apply to statements made to physician for his expert testimony)

34
Q

What are the elements for business records? (5 elements)

A
  1. Records of a business of any type
  2. Made in regular course of business
  3. Business routinely keeps such records
  4. Made at or about the time of the event recorded
  5. Contents: information observed by employees OR statement that falls within an independent hearsay exception
35
Q

How do you prove business records foundation?

A

Call sponsoring witness to testify to all elements (need not be author) OR

Written certification under oath attesting to the elements of the exception (look for NY exception)

36
Q

NY QUESTION

What is the NY exception to proving business records foundation?

A

Certification permitted only IF:

  1. Civil case: business records are those of nonparty
  2. Any case: business records are those of a hospital
  3. Any case: business records are those of state or local government
37
Q

What are public records?

A

Records of public office or agency setting forth:

  1. Activities of the office or agency
  2. Matters observed pursuant to a duty imposed by law OR
  3. Findings of fact or opinion resulting from an investigation authorized by law
38
Q

What is excluded from public records exception?

A

Police reports prepared for prosecutorial purposes are not admissible against defendant in a criminal case

NY: not well developed, most often introduced through business records

39
Q

[To The 12 Days of Christmas]

There are twelve hearsay exceptions, and you must remember them…

A
  1. For-feit by wrong-doing
  2. For-mer testi-mo-ny
  3. State-ment a-gainst in-trest
  4. Dy-ing de-clar-ation
  5. An Ex-cited ut’-rance
  6. Pres-ent sense im-press-ion
  7. Pres-ent state of mi-ind
  8. De-clar-ing an in-ten-tion
  9. PRES-ENT PHYS-I-CAL CON-DITION!
  10. Statement for the purpose of obtaining med-ic-a-al treatment; plus
  11. Business records and
  12. Public records…
40
Q
A

Evidence (3 decks)

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