Hearsay Flashcards
(40 cards)
1
Q
Hearsay Definition
A
FRE 801(c)
An out of cour statement made for the truth of the matter asserted
2
Q
Hearsay Steps
A
- Identify out of court statement?
- What is the truth asserted by the statement?
- what is the statmenting being offered to prove?
- is there an exception?
3
Q
Is it a statement?
A
A statment is an assertino about a fact
- actions are usually not statments unless they are intended to substitute for a verbal statements (pointing, gestures)
- words are not deemed statmenets if they are verbal acts (contract, bribes, conspiracy, pandering, solicitation, threats, defamation
- animals and machines dont make “statemen” only people do
4
Q
Verbal Acts
A
Certain utterances should be viewed as acts when the doctrined applies evidence that describes what someone said is analytically the same as evidence describing what someone did
- statements that constitute an element of any cause of action, whether civil or cirminal can be viewed as verbal acts
- When condcut is meant to substitute for a verbal comment -assertive acts may be hearsay, non assetive acts never hearsay
5
Q
Is the statement being offered to prove the truth of the matter asserted?
A
Is the statement relevant regardless of whether true?
- to show declarant was conscious/alive
- to explain conduct
- to prove a warning was given
- to show an investigation was warranted
- to show someone had knowlege
- to show the nature of the place
- to impeach a witness
- to show the declarants state of mind (circumstantially)
- verbal acts
6
Q
Exceptions
A
- Party Opponent Admission
- adoptive admissions
- authorized/agent admissions
- co-conspirator admissions
- Prior Inconsistent Statements
- Prior consistent statements
- Statements of identification
- Excuted utterance
- Present Sense impression
- Contemperanous statements
- Then-existing state of mind
- Medica Disagnoisi/treatment
- Statements Against Interest
- Dying Declarations
- Former Testimony
- Business records
- official/public records
- learned treatieses
- commercial lists
- Judgments of conviction
- Recollection Recorded
- Recollection Refreshed
- Residual Exception
7
Q
Party Opponent Admission
A
- Anything the other party said (anything the defendant wants to illicit the plaintiff said (vice versa))
- Not required to have personal knowlege of what they are admitting too
8
Q
Adoptive Admissions
A
Defendant adopts the opinion of a 3rd party as their own.
9
Q
Admission by silence
A
would a reaosnable person in his position have disputed it if if were not true?
10
Q
Authorized admissions or agent
A
FRE 801(d)(2)(C)
- A statement made by an agent of the party or by someone authroized by the party to do so
FRE 801(d)(2)(D)
- Did the statement concern matter within the scope of the agency?
- was statment made duing existence of agency relationship?
*Preponderance
*Can consider would be admission-cant rely solely on admission
11
Q
CA: Authorized Admission or Agent
A
CEC 1222
- Did principal give express or implied authorization to make statement?
- was statement made during existence of agency relationship
- differences from federal rules
- sufficienty standard
- cant consider would be admission must only use evidence aorund circumstances
12
Q
Co-Conspirator admission
A
801(d)(2)(E)
- statement made during course of conspiracy
- declarant and party in the same conspiracy
- declarant in conspiracy when statement was made
- party in conspiracy when/after statement was made
- In furtherance of conspiracy
13
Q
Co-Conspirator Admission: Foundational Requirements
A
FRE 801
- preponderance of the evidence
- can consider would be admission to find agency
- cant rely solely on would be admissiable only judge hears extra evidence
CEC 1223
- Sufficency Standard
- cant consider would be admission must only use evidence around the circumstances
14
Q
A
15
Q
Prior Inconsistent Statements
A
FRE 801(d)
- W testifies
- Statement inconsistent with W’s trial tesitmony
- made under oath at prior/trial/hearing/deposition (FRE required if used for the truth)
- W has oportunity to explain/deny
16
Q
Prior consistent statements
A
- W testifies
- Statement consistent with W’s trial tesitmony
- Rebuts express/implied charge of recent fabrication/improper influence
- made before alleged motive/influence arose
17
Q
Statements of Prior Identification
A
- W testifies
- Statement is one of identification
- Made after observing the person
CA ONLY:
- statement made when crime/occurence fresh in W’s memory
- W testisfies made the ID and true reflectino of his opinion at time
18
Q
Present recollection refreshed
A
W reads silently- remembers
no hearsay issue
19
Q
Past Recroded Recollection
A
- W doesnt remember , doc read aloud; hearsay issue
- doc concerns matter about which W once recalled, but now doesnt
- made/adopted by W when fresh in memory; and
- reflects that knowledge correctly
20
Q
Excited Utterance
A
FRE 803(2)
- Relates to startling event or condition
- Made under stress of event or condition
- foundation: may consider utterance itself in finding there was an exciting event
CEC § 1240
- Narrates, describes, or explains (courts typically treat this the same as (FRE)
- made under the stress of event or condition
- foundation: may not consider utterance itself in finding there was an exciting event
21
Q
Present Sense Impression
A
Federal Only: FRE 803(2)
- describes/explains event of condition perceived (what is happening while you see it)
- made while percieving or immediately thereafter
22
Q
Contemperaneous Statements
A
California Only: CEC § 1240
- explains/qualifies condcut of declarant
- made while doing it or immediately after
23
Q
Then-Existing State of Mind
A
FRE 803(3)
- Declarants then-existing state of mind, physical or emotino sensation
- to prove such state, or declarants intent regarding future
- cannot be regarding past unless will or for medical diagnosis/treamtnet
CEC 1241
- court can consider trustworthiness of statement in admissibility analysis
- same regarding wills. No broad exception for medical diagnosis/treatment, but narrower one
24
Q
Statements for Medical Diagnosis/Treatment
A
FRE 803(4)
- Presnet or past medical history, condition, causes
- if relevant to medical treatment/diagnosis
- need not to be a doctor
California Differences:
- past state at issue; and
- declarant is unavailable
25
Statements against Interest
_FRE 804(b)(3)_
* W unavialble
* special definition: could have gotten testimony by other means
* against interest (penal, ecnomic, legal)
* exculpates criminal defendant, circumstances must corroborate trustworthiness
_CEC § 1230_
* no unavailability requirement
* includes social interest
* no corroboration required
26
Dying Declarations
_FRE 804(b)(2)_
* W unavailable (heigned def.)
* Under belief of impending death
* Concerns circumstances causes of death
* admissible in all civil cases
* criminal: only homicide
_CEC § 1242 differences _
* no unavailability requirement
* admissible in all criminal and civil cases
27
Former Testimony
_Federal_
* W unavailability
* no heightened definition
* form of proceeding: must be depo or earlier hearing or trial in same or previous action
* against whom can testimony be used
_California Differences_
* depo in same action doesnt count
28
Against whom can former testimony be used
* Party to 1st proceeding who had opportunity who had opportunity and similar motive to cross examine the witness
* Party who offered the testimony in 1st proceeding, or their successor in interest
* _civil cases_: party whose motive to cross examine is similar to party in 1st proceeding who had opportunity to cross examine
29
Business Records
[substantive requirements]
1. Writing prepared by business
2. made in ordinary course of business
3. kept in the ordinary course of business
4. recorded or reported by someone with personal knowlege or duty to record or report
5. made @ or near the time of the event recorded
6. circumstantial guarantees of trustworthiness
30
Business Records
[procedural requirements]
1. Testimony of custodial or other qualified witness or
* someone who keeps track of records
* someone with knowlege about how records
* relaxed personal knowlege requirement
2. Authentication by affidavidt declaration
31
Absense of Records
FRE 803(7)/CEC 1272
* Offered to prove nonoccurrence
* the regular courses of business to make records of all such acts conditions or events at or near the time of the act
* such that absence of a record of an act, condition or event is a trustworthy indication that the act or event did not occur or the conditions didn't exist
32
Official/Public Records
_FRE 803(8)_
(a) it sets out;
1. the office’s activities
2. a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
3. in a civil case or against the government in criminal case (defendant), factual findings from a legally authorized investigation
4. avoid trial by police report
5. whether the gov was in an adversarial position
(b) neither the source of info not other circumstances indicate a lack of trustworthiness
criminal cases: _can't use finding aginst criminal defendant_
_California CEC 1280_
doesn't expressly proibit but may have a controntationc clause issue
\*\*Most courts will not allow something in under the business record rule if it is excluded under official records rule as a matter of policy
33
Learned Tretises
[Federal]
_FRE 803 (18)_
* statment is in publiction concerning history, medicine or other science
* established as a reliable authority by expert or by judicial notice
* admissible: to an extent (1) relied on by an expert, or (2) called to his attendntion on cross-examination
* may be read to jury but not recieved as an exhibit
34
Learned Trestises
[California: Cross Examination of Experts]
_CEC 721_
* expert reffered to, or relied upon publication in arriving at or in forming the expert opinion or
* established as reliable authority by this or another exper or judicial notice
* [yes]: expert may be cross examined; not read into record
* publication has been admitted into evidence
* [yes]: exper may be cross examined about it; may be read to jury
35
Learned Treatises
[California: admissibility for truth- regardless of cross examination]
_CEC § 1341_
* publication used to prove facts of general notoreity not subject to dispute
* [yes]- admissible
36
Commercial Lists
_FRE 803(17)/CEC §1340_
Admissible if generally used and relied upon by the public as well as by persons in particular occupations
37
Prior Judgments
[federal]
allow the use of judgment of conviction to prove facts underlying judgment
* felondy conviction folowing guilty verdict or plea of guilty _ONLY_
38
Prior Judgment
[California]
allowed:
* felony conviction following guilty verdict or plea guilty
* felony conviction following nolo contendre plea
* civil judgment for indemnity/warranty action, or where 3party liability is at issue
\*\*Most everything allowed in
39
Risidual Exception
FRE 807
if heasay doesnt meet any exception if can still get in if:
* evidence of material fact that is more probative than any other evidence and
* circumstances give it equivalent guarantees of trustworthiness to other hearsay exceptions advance notice is given
40
Declaration by Witness Prevented from Testifying
Parties who prevent adverse witnesses from testifying.
* federal rule: if a party participated, engaged or acquiesced in wrongdoing that was intended to and did procure the unavailability of the declerant as a witness then you can use their statements against them
