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Flashcards in Hearsay Deck (31):

What is hearsay?

Hearsay is an out of court statement offered to prove the truth of the matter asserted in the statement.


Is hearsay usually admissible?

No hearsay is generally inadmissible, subject to exceptions.


How do you determine if the statement is hearsay?

1. find the statement
2. ask what it is offered to prove?
3. given what its offered to prove, will the jury be misled if the out of court speaker was lying or mistaken?


what is the difference between exceptions and exemptions?

exemptions = admissible bc not hearsay
exceptions = Hearsay but admissible


what are the four hearsay exemptions?

1. Opposing Party Statement

2. Prior inconsistent statement given under oath at trial or deposition.

3. Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive or to rebut another attack on credibility.

4. Statement of identification of a person made perceiving the person


what is an opposing party statement?

1. statement by party or someone whose statement is attributable to a party

2. offered by a opposing party


what are the 10 hearsay exceptions?

1. Former Testimony Exception
2. Declaration Against Interest Exception
3. Dying Declaration Exception
4. Excited Utterance Exception
5. Present Sense Impression Exception
6. Existing Physical or Mental Condition Exception
7. Statement of mental or physical condition made for medical diagnosis or treatment.
8. Business Records Exception
9. Public Records Exception
10 Judgment of Previous Conviction Exception


what is the acronym for hearsay exceptions



1. What are the elements of the Formal Testimony Exception?

1. Testimony by person in earlier proceeding or deposition is admissible if:

a. the party against whom the testimony is now offered, had during the earlier proceeding, an OPPORTUNITY to examine that person and the MOTIVE to conduct that exam was similar.

b. in civil case, the party against whom the testimony is now offered was not present in the earlier proceeding but has a close privity-type relationship with someone who was a party to that earlier proceeding and who had an opportunity and a similar motive to examine the witness in that earlier proceeding.

c. declarant must be unavailable.


when are declarants unavailable?

1. exempt due to privilege.
2. sick or dead
3. cannot procure attendance by process or reasonable means
4. refuses to testify despite court order
5. memory fails.


what is former testimony exception in simpler words?

1. the party whom testimony was offered against
2. had an opportunity and similar motive to examine that person.
3. declarant must be unavailable.


What is the declaration against interest exception?

1. Declarant's statement at the time it was made was
2. against his financial interest or
3. would've subjected declarant to criminal liability
4. if statement is offered to exculpate accused, there must be corroborating evidence.
5. Declarant must be unavailable.


What is the dying declaration exception? In what cases is it admissible?

One believing he is about to die, describes causes or circumstances leading to impending death is admissible in civil and homicide prosecution.

Declarant must be unavailable.


What is the excited utterance exception?

statement made while under stress or excitement caused by event or action.


What is the Present sense impression exception?

statement describing an event or condition made while declarant was perceiving the event or event or immediately thereof.


What is the existing physical or mental condition exception?

statement of declarant's then existing physical or mental condition or state of mind.


what is the statement of medical or physical condition made for medical diagnosis or treatment?

statement concerning mental or physical condition, or its cause, is admissible if made for and pertinent to medical diagnosis or treatment.


What is the business records exception?

admissible if
(i) a record of events, conditions, opinions, or diagnoses
(ii) kept in course of regularly conducted business activity
(iii) made at or near time of matters described
(iv) by person with knowledge of facts in the record
(v) it was regular practice of business to make such record
(vi) opponent does not show untrustworthy

not admissible if records created in anticipation of litigation.


what is the Public Records Exception?

public record admissible if within one of the following categories:

1) describes activities and policies of the office

2) record describes matters observed pursuant to duty imposed by law ( not criminal police reports)

3) record contains factual findings resulting from investigation made pursuant to authority granted by law, unless opponent shows untrustworthy (Not criminal)


what is the judgment of previous conviction

describing felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment.

doesnt count for other's convictions.


what is the significance of the Confrontation Clause?

The CC excludes an out of court statement if declarant does not testify at trial, is now unavailable, the statement is testimonial*, and defendant had no chance to cross-examine declarant about statement when it was made.

testimonial means made to further a police investigation aimed at producing evidence for a prosecution. if the admission deals with an ongoing emegency are non testmonial.


What hearsay exceptions require an unavailable declarant?

1. former testimony
2. dying declaration
3. declaration against interests


Can extrinsic evidence be used for impeachment by contradiction?

yes unless it attacks a collateral matter.


can a prior inconsistent statement be admissible?

yes if its under oath.


can extrinsic evidence be used for impeachment by prior inconsistent statement?

yes unless attacks collateral matter and if witness given opportunity to explain or deny.


can extrinsic evidence be used for impeachment by bias?

yes if given opportunity to explain.


what are the 5 impeachment catergories?

1. impeachment by contradiction

2. impeachment by prior inconsistent statement

3. impeachment by bias

4. impeachment by past conviction

5. impeachment by opinion regarding truthfulness?


is extrinsic evidence allowed to prove impeachment by contradiction?

yes, unless it attacks a collateral matter.


is extrinsic evidence allowed to prove impeachment by prior inconsistent statement?

yes if had chance to deny, but it has to be under oath.


is extrinsic evidence allowed to prove impeachment by bias?

yes if had chance to deny.


is extrinsic evidence allowed o prove past conviction?

yes as long as its not misconduct.

if felony or misdemeanor for false statement less than 10 years after being released, then no unfair prejudice est.

if felony not involving false statement court can do test

if misdemeanor not involving false statement, not admissible.

if misconduct involving acts of lying, cannot use extrinsic evidence. have to ask them.