Hearsay Flashcards
(20 cards)
Hearsay - General
Out of court statement offered to prove truth of matter asserted
- Statement: person, not animal or machine unless output of person’s statement
- Not for truth: (1) Ind Legal Sig [creates K, tort, adv. poss., prop. tx], (2) show effect on listener, (3) Circ. E of declarant’s state of mind
2 Hearsay Exemptions
- Opposing Party Statement: statement of party offered by party opponent
- -Vicarious: (a) Auth’d Spokesman, (b) P-A, (c) Co-Consp in scope, (d) Adoptive, (e) EEE in scope [CA: EEE only if respondeat superior] - W’s Prior Statement:
(a) PCS to rehab
(b) PIS [fed: must be under oath at trial/depo]
(c) ID
[CA: These two are just exceptions]
3 [5] Hearsay Unavailable Exceptions
- Prior Trial/Depo Testimony
- Declaration Against Interest
- Dying Declaration
[4. Statement Re Injury/Threat]
[5. Statement Re Past Phys/Ment Condition When At Issue]
Prior Trial Depo/Testimony
Unavailable hearsay exception
opponent (or privity) had opportunity + similar motive to examine declarant before
[CA: no privity requirement, just that someone before had opp. + similar interest]
Unavailability
privilege refusal incapacity subpoena failure memory lack
Declaration Against Interest
Unavailable hearsay exception
against financial and penal [CA: + social] interest when made
Fed: if to exculpate accused, need corroborating E
Dying Declaration
Unavailable hearsay exception
belief death imminent + re cause/circ’s (knowledge, not mere suspicion)
Fed: civil + homicide
CA: civil + all criminal, but must be dead
Statement Re Injury/Threat
CA unavailable hearsay exception
made at/near time + to a cop or medical professional + circ’s indicate trustworthy
potential Conf. Clause issues
Statement Re Past Phys/Ment Condition When At Issue
CA unavailable hearsay exception
Excited Utterance [Spontaneous Statement]
Hearsay exception
re exciting event while still under stress of excitement
PSI / Contemporaneous St.
Hearsay exception
Fed: describing event while or immediately after perceiving it
CA: describing declarant’s conduct while engaged in it (more limited)
Present Physical Condition or State of Mind
Hearsay exception
statement of declarant’s condition (regardless of purpose); intent can be circulated E of act in accordance therewith (but not memory or belief)
Past Physical Condition or State of Mind
Hearsay exception
Fed: statement of anyone’s condition + pertinent to medical diagnosis/treatment
CA: limited to kids explaining abuse/neglect
Business Records
Hearsay exception
kept in ord. course + made at/near time by one w/ knowledge and authorized to report + opponent doesn’t show untrustworthy
CA: only simple opinions/diagnoses
Public Records
Hearsay exception
- Fed Civil: (a) record of activities/policies, (b) record describing matter observed pursuant to legal duty (police report), (c) legal investigation fact finding (unless opp. shows untrustworthy)
- Fed Crim: (a) + (b) excluding police reports
- CA: broad; recorded at/near time by one w/in scope of duties + circ’s indicate trustworthy
Learned Treatise
Hearsay exception
Established by Expert W or Judicial Notice
anything w/in can be introduced [CA: limited to matters of general notoriety]
Recorded Recollection
Hearsay exception - Read into E
Conviction Judgment
Hearsay exception - OK to prove fact essential to judgment
If for something other than impeachment, can only be used against the accused
CA: civil only, but comes in criminal cases through public records exception anyway
Catchall
> probative re material fact than any other E proponent can reasonably produce + circ’s indicate trustworthy + advance notice to adverse parties
Confrontation Clause
No out of court testimonial statement against ∆ unless (1) declarant unavailable and (2) ∆ had prior opp. to cross-examine
Testimonial: testimony, forensic results, W statement to further prosecution (as opposed to aid ongoing ER)
