Hearsay Flashcards

Question

sufficient evidence of "stress of excitement" | 803(1)-(4) HEARSAY EXCEPTIONS

Answer 1

generally, descriptions of the declarant’s 1. emotional state 2. physical appearance 3. behavior 4. condition = suffice to demonstrate the stress of excitement RULE 803(2)

Answer 2

RULE 805 and RULES 803(5)-(7)

Answer 3

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule RULE 805

Answer 4

4 FOUNDATIONAL REQUIREMENTS 1. The witness must demonstrate – on the stand – the inability fully and accurately to remember something about which the witness has actual personal knowledge 2. The advocate’s efforts to refresh the witness’s recollection under FRE 612 must fail 3. The advocate must establish that the witness made or adopted a record of the matter while it was still fresh in the witness’s mind - there is no set time period for determining whether the matter was still fresh in the witness’s mind 4. The advocate must establish that the record correctly reflects the witness’s knowledge RULE 803(5)

Answer 5

1. memo or record must have been made or adopted by the witness when the matter was fresh in his mind and to reflect that knowledge correctly 2. RULE 803(5) applies only to records or memos about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately RULE 803(5)

Answer 6

3 FOUNDATIONAL REQUIREMENTS 1. the record must be made and kept in the course of a regularly conducted business activity - and as a corollary to this element, the record must be of the type regularly kept and maintained by that business 2. the record must be made at or near the time of the event recorded therein 3. the record must be made by, or from information transmitted by, a person with knowledge who had a business duty to report the information RULE 803(6)

Answer 7

variously supplied 1. by systematic checking 2. by regularity and continuity which produce habits of precision 3. by actual experience of business in relying upon them 4. by a duty to make an accurate record as part of a continuing job or occupation RULE 803(6)

Answer 8

= failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence RULE 803(7)

Answer 9

2 FOUNDATIONAL REQUIREMENTS 1. the same elements to establish a business record PLUS 2. either a. the witness must introduce the record that shows absence of entry OR b. the witness must testify that a diligent search of files revealed no record at all RULE 803(7)

Answer 10

may be admitted under 803(6) on testimony of a “qualified witness” of the incorporating entity alone if certain criteria are met RULE 803(6)

Answer 11

1. the incorporating entity must obviously procure and keep the record in the normal course of its business 2. the entity must show that it relies on the accuracy of the incorporated record in its business 3. there must “other circumstances indicating the trustworthiness of the document” RULE 803(6)

Answer 12

RULES 803(8) and 803(10)

Answer 13

allows one to prove the nonoccurrence or nonexistence of the matter RULE 803(10)

Answer 14

foundational rule for public records RULE 803(8)

Answer 15

1. The record is a certified copy of a public records or report (FRE 902(1)-(4) provides for the self-authentication of public documents and records) 2. The record meets one of the three clauses of FRE 803(8)

Answer 16

(A) the activities of the office or agency (B) matters observed pursuant to duty imposed by law as to which there was a duty to report (C) factual findings made pursuant to authority granted by law

Answer 17

= sets forth the activities of the office or agency

Answer 18

= contains matters observed pursuant to duty imposed by law as to which there was a duty to report

Answer 19

= contains factual findings from an investigation conducted pursuant to legal authority

Answer 20

no additional requirements | = clause A records simply need to be authenticated under Rule 902 to satisfy admissibility requirements

Answer 21

foundation for records of matters observed pursuant to duty imposed by law as to which there was a duty to report includes the following additional elements: 1. the government employee or agents must have firsthand knowledge of the event or condition described in the report 2. the source of the information must be under a legal duty to report the information 3. the public agency must have a legal obligation to prepare and maintain the record

Answer 22

1. the same elements to establish the existence of an actual record in which there is no entry, or the type of record where the information or matter would be recorded if it existed 2. live testimony or a certificate that complies with FRE 902 that diligent search failed to disclose the record, report, statement, or data compilation, or entry RULE 803(10)

Answer 23

in Crawford, the Supreme Court held that testimonial hearsay cannot be introduced against a criminal defendant unless the Confrontation Clause of the Sixth Amendment has been satisfied

Answer 24

confrontation is designed to weed out fraudulent analysis and incompetent analysis = “Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination”

Answer 25

- In Beech Aircraft v. Rainey (1998), the Court holds that portions of investigatory reports otherwise admissible under FRE 803(8)(C) are not inadmissible merely because they state a conclusion or opinion - As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report

Answer 26

1. Reason for unavailability | 2. Clean hands

Answer 27

1. death 2. exercise of a privilege 3. refusal to testify despite a court order 4. forgetfulness (testified to not remembering the subject matter) 5. mental or physical Illness 6. absence because legal process cannot be used to secure the declarant’s testimony RULE 804(a)

Answer 28

1. the declarant is unavailable under FRE 804(a) 2. the former statement was made in an authorized deposition or in another proceeding 3. the former statement was made under oath 4. the party against whom the statement is offered, or a predecessor in interest, had a similar motive to develop the testimony RULE 804(b)(1)

Answer 29

- Several factors influence a decision whether to admit prior testimony - Including 1. Identity of parties 2. Similarity of motives to develop testimony 3. Prior opp to develop testimony RULE 804(b)(1)

Answer 30

1. The declarant is unavailable under Rule 804(a) 2. The statement was made when the declarant believed death was imminent 3. The statement related to the cause or circumstances of what the declarant subjectively believed to be his impending death 4. The statement was based on the declarant’s first-hand knowledge of such causes or circumstances RULE 804(b)(2)

Answer 31

NOT required RULE 804(b)(2)

Answer 32

1. The declarant is unavailable to testify at trial 2. The declarant has first-hand knowledge of the factual matters in the statement 3. The nature of the statement is such that a reasonable person would not have made it unless believing it to be true 4. At the time of utterance, the statement must be contrary to the declarant’s pecuniary, proprietary, or penal interest 5. If the statement is against the declarant’s penal interest, it must be supported by corroborating circumstances that indicate its trustworthiness RULE 804(b)(3)

Answer 33

RULES 806 and 807

Answer 34

1. RULE 608 character for untruthfulness of any witness may be attacked by reputation or opinion testimony (once attacked, the witness’s character for truthfulness may be supported by the same kind of evidence) 2. RULE 609 permits witnesses to be impeached by evidence of conviction of a qualifying crime 3. RULE 613 allows impeachment by proof of prior inconsistent statements 4. witnesses may be impeached by specific contradiction or by extrinsic proof of bias or motive to misrepresent

Answer 35

1. re: extrinsic proof of inconsistent statements – 806 does away with RULE 613(b)’s requirement that the impeached witness be “afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon” 2. 806 states that if the party against whom the hearsay is offered wishes to call the hearsay declarant to the stand to be impeached, the party is permitted to examine the declarant as if on cross- examination

Answer 36

1. the proponent has provided notice to the adverse party sufficiently in advance of the trial or hearing to enable a fair opportunity for the adverse party to prepare to meet it 2. the statement bears circumstantial guarantees of trustworthiness equivalent to those of the 23 exceptions under RULE 803 and/or the 5 exceptions of RULE 804 3. the statement is offered as proof of a material fact at trial 4. the statement is more probative on the point for which it is being offered than any other evidence that the proponent can procure through reasonable efforts 5. the statement’s admission into evidence serves the general purposes of the FRE and the interests of justice 6. for testimonial statements in criminal cases, the defendant’s confrontation rights have been satisfied

Answer 37

1. the declarant’s motivation to speak truthfully or untruthfully 2. spontaneity of the statement 3. whether the statement was elicited by leading questions 4. time elapse between event and statement 5. whether the declarant was subject to cross-examination at the time the statement was made 6. relationship between declarant and the person to whom the statement was made 7. whether the declarant recanted or reaffirmed the statement 8. whether the statement was recorded or videotaped 9. whether the declarant’s first-hand knowledge is clearly demonstrated 10. comparing the characteristics of the proffered hearsay to the foundational requirements of an existing hearsay exception

Answer 38

1. Recorded Recollection v. Business Records 2. Routine or Regular Practice of a Business Activity 3. Personal Knowledge, Business Duty to Report 4. Custodians and Affidavits ?!?!?

Answer 39

statement made anywhere OTHER than witness stand at CURRENT trial

Answer 40

1. verbal acts 2. words offered to show effect on person who read/heard statement 3. circumstantial evidence of speaker's state of mind

Answer 41

= legally operative words, have legal significance whether or not spoken truthfully EXAMPLE = overhearing contract offers/acceptance, perjury, fraud, defamation

Answer 42

EXAMPLE in grocery slip 'n' fall case, overheard another customer tell employee there was a broke jar of salsa in aisle 3 = not hearsay to prove notice, hearsay to prove there was actually a broken jar of sale in aisle 3

Answer 43

EXAMPLE mr. rick tells client that he is elvis presley = not hearsay to prove that mr. rick was suffering insane delusion, hearsay to prove mr. rick is, in fact, elvis,

Answer 44

ADMISSIBLE HEARSAY EXCEPTION, | not nonhearsay

Answer 45

1. principled categories (not stated in FRE) 2. prior statements by witness 3. statements by or attributable to opposing party

Answer 46

any statement made by a party and offered against that party is not hearsay

Answer 47

need not have been against interest at the time it was made to qualify as an admission

Answer 48

may even be in the form of an opinion

Answer 49

not required | = lack of personal knowledge does not necessarily exclude a party’s admission

Answer 50

- formal judicial admissions (in pleadings, responses to requests to admit, stipulations) = conclusive - informal judicial admissions made during testimony = can be explained - extrajudicial (evidentiary) admissions = not conclusive and can be explained RULE 410

Answer 51

a party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive admission RULE 801(d)(2)

Answer 52

if a party fails to respond to accusatory statements where a reasonable person would have spoken up = his silence may be considered an implied admission AS LONG AS 1. the party must have heard and understood the statement 2. the party must have been physically and mentally capable of denying the statement 3. a reasonable person would have denied the accusation under the same circumstances (NOTE: failure to reply to an accusation or statement made by the police in a criminal case can almost never be used as an implied admission of a criminal act) RULE 801(d)(2)

Answer 53

statements of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action - if 2 or more parties, admission of a party = receivable against itself - in the absence of authority, not against her co-party RULE 801(d)(2)

Answer 54

the statement of a person authorized by a party to speak on its behalf can be admitted against the party (example = statement by company’s press agent) RULE 801(d)(2)

Answer 55

after a partnership is shown to exist, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others RULE 801(d)(2)

Answer 56

SC has held that admissions of one conspirator 1. made to 3P 2. in furtherance of a conspiracy to commit a crime or a civil wrong 3. at a time when the declarant was participating in the conspiracy = are admissible against co-conspirators reasoning = conspiracy is analogous to a partnership AKA “partners in crime”

Answer 57

- court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is being offered - court must consider the contents of the offered statement BUT the statement alone is not sufficient to establish the required relationship or authority RULE 801(d)(2)

Answer 58

gov need not demonstrate the unavailability of a non-testifying co-conspirator as a prerequisite to admission of the co-conspirator’s out-of-court statements RULE 801(d)(2)(E)

Hearsay Flashcards

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