Hearsay Flashcards
(29 cards)
6 Common Nonhearsay Utterances
(1) circumstantial evidence of declarant’s state of mind
(2) verbal act/operative fact: a statement the making of which has substantive legal significance and is therefore NOT hearsay
(3) verbal parts of acts: where the utterance establishes the legal character of an act that it accompanies and is therefore NOT hearsay
(4) statements offered to show the effect on one who heard/read the statement
(5) when the value of the statement derives from the fact that the words were spoken, not from the truth of the matter asserted
(6) where words/conduct are not assertive or are assertive of something other than what they are being offered to prove
801(d)(1): Prior Witness-Declarant Statements threshold inquiries and types
threshold requirements:
• (1) the witness must testify at the current trial/hearing, AND
• (2) the witness must be subject to cross concerning the prior statement
TYPES
• (1) the statement is inconsistent with the witness’s trial testimony,
- (2) the statement is consistent with the witness’s trial testimony, OR
- (3) the statement identifies a person as someone the witness perceived earlier
801(d)(1): Prior Witness-Declarant Statements inconsistent statements
o must have been made in a prior formal proceeding (trial, hearing, depo, grand jury) under oath
o note: a statement NOT made in a formal proceeding may still be admissible if you are using it for another purpose (like impeaching the witness)
801(d)(1): Prior Witness-Declarant Statements consistent statements
o need not have made prior statement in a formal proceeding
o must be offered:
(a) to rebut an express/implied charge or recent fabrication or improper influence or motive, OR
(b) to rehabilitate declarant’s credibility as a witness when attacked on another ground (like inconsistency, faulty memory, etc.)
o prior consistent statement must have been made before the alleged improper influence/motive arose
801(d)(1): Prior Witness-Declarant Statements (identification)
does not need to be an in-person ID (can ID someone from a photo)
**general descriptions like “he’s tall and blonde like the robber” are insufficient – you need a proper identification
the prior ID need not be consistent with the witness’s testimony
801(d)(2): Elements/Types of Prior Opposing Party Statements
- (1) must be offered against the party, AND
- (2) must fall into one of these categories
o (a) the party’s OWN statement o (b) adoptive admission o (c) agency statement o (d) vicarious admission, OR made by pty’s agent/employee (with authority or not) on a matter within the scope of that relationship, AND while the relationship existed o (e) admission of a co-conspirator
• (3) note: the statement must be considered but does not by itself establish the declarant’s authority under (c), the existence/scope of the relationship under (d), or the existence of the conspiracy/participation in it under (e)
R803(1): Present Sense Impression
o subject matter reqs:
there must have been an event/condition
the statement must describe/explain that event/condition, AND
dec must have perceived it (PK)
o timing req: dec must have made the statement “while or immediately after perceiving it”
generally must be 5min or less
once dec has had time to reflect/forget, too much time has passed
R803(2): Excited Utterance
o subject matter reqs:
must have been a startling event/condition
the statement must relate to that event/condition, AND
o timing req: dec must have been under the stress/excitement that it caused when he made the statement
this will be fact-specific – could be days so long as the stress/excitement persists
factors:
• lapse of time between the event and the dec
• the age of dec
• the physical and mental state of dec
• the characteristics of the event
• the subject matter of the statements
R803(3): Then-Existing Mental/Emotional/Physical Condition (categories and rules on timing)
o Categories
(1) statements of present bodily condition
(2) statements of present SOM or emotion offered to prove a SOM or emotion of dec that is “in issue” in the case
(3) statements of present SOM (intent/plan/design) offered to prove subsequent conduct of dec in accordance with the SOM
(4) SOM statements of a testator, offered on certain issues in will cases (i.e. must relate to will execution, revocation, identification, or terms)
**distinguish from circumstantial evidence (where the first inference doesn’t match the statement) which is just flat-out not hearsay
o backward-looking statements are inadmissible
o forward-looking statements (a present SOM about the future) are admissible both to prove that a speaker had such an intention AND that the person acted upon that intention (Hillmon doctrine)
R803(4): Statement Made for Medical Diagnosis/Treatment (elements and timing req)
o Elements:
(1) made for purposes of diagnosis/treatment
(2) must be reasonably pertinent to diagnosis/treatment, AND
(3) must fall within one of these:
• describing medical history
• past/present symptoms/pain/sensations
• inception/general character of cause/external source
o **distinguish from R803(3): because now, statements related to the past and present are allowed
R803(5) Past Recollection Recorded (elements and rules on admission of the document)
o Elements
(1) witness must have PK about the matter,
(2) witness must now not be able to recall well enough to testify fully and accurately (i.e. 612 has failed),
(3) the memo or record of the witness’s knowledge must have been made or adopted by the witness when the matter was fresh in his memory, AND
(4) the memo or record must reflect the witness’s prior knowledge accurately
o **if admitted – the record may be read into evidence by the witness, but may be received as an exhibit (allowed into the jury room) only if offered by an adverse party
R803(6): Presence of Business Records (elements)
o rule: a record of an act, event, condition, opinion, or diagnosis, if:
(1) the record was made at or near the time by (or from info transmitted by) someone with knowledge,
• **“by or from” means that this exception can cover multiple layer of hearsay
(2) the record was kept in the course of regularly conducted activity of a business,
(3) making the record was a regular practice of that activity,
(4) all of these conditions are shown by the testimony of a custodian or other qualified witness under R902(11)/(12), AND
(5) the opponent does not show that the source of the info or the method/circumstances of preparation indicate a lack of trustworthiness
R803(7): Absence of Business Records
rule: evidence that a matter is not included in a record as described above is admissible if:
(1) the evidence is admitted to prove that the matter did not occur/exist,
(2) a record was regularly kept for a matter of that kind, (i.e. meets the R803(6) reqs), AND
(3) the opponent does not show that the possible source of the info or other circumstances indicate a lack of trustworthiness
R803(8): Public Records (elements and breakdown of diff types)
o rule: a record/statement of a public office if:
(1) it sets out:
• (a) the office’s internal activities,
o ex) payroll files, purchase receipts, etc.
• (b) observations made under a legal duty to report, OR
o **but not including a matter observed by law-enforcement in a criminal case
o most common is a court reporter transcript
o applies only to records that describe observed data without analysis leading to factual findings
o must be in connection w an investigation (can’t be a routine, non-adversarial observation)
• (c) the results/factual findings of a public investigation, AND
o **but not to be used against ∆ in a criminal case
o this category is ultimately broader than (b)
o includes reports (need not be based on a statement made by a public office) of an evaluative nature that produce factual findings after an investigation (ex – administrative finding about employment discrim)
o includes opinions based on factual findings
o will not extend to legal conclusions
(2) the opponent does not show that the source of info or other circumstances indicate a lack of trustworthiness
difference between public records and business records exceptions
it is not necessary to show that the public record was regular or made at/near the time of the event recorded
public records are admissible without a sponsoring witness so long as they have been authenticated (see R902 self-authentication)
R803(9)
o. a record of birth, death, or marriage if reported to a public office in accordance w a legal duty
R803(10)
o rule: testimony – or a certification under R902 – that a diligent search failed to disclose a public record/statement if the testimony/cert is admitted to prove that:
(1) the record/statement does not exist, OR
(2) a matter did not occur/exist, if a public office regularly kept a record/statement for a matter of that kind
**in a criminal case, a prosecutor who intends to offer a cert must provide written notice of that intent at least 14 days before trial, and ∆ has 7 days after receipt to object (subject to court discretion
R803(21)
reputation concerning character is admissible to prove the truth of the matter asserted
R804(a): when is a declarant deemed unavailable?
- (1) a claim of privilege
- (2) refusal to testify (in the face of an actual court order)
• (3) a claim of lack of memory (regardless of whether they truly remember)
o **only applies if dec is unable to remember the subject matter – the fact that he does not remember actually making the statements themselves is irrelevant
o can also apply if W remembers but not in sufficient detail
• (4) death or physical/mental illness or infirmity
o for illness and infirmity, the court must consider both the duration (need not be permanent) and the severity
• (5) absence from the trial or hearing and inability of the proponent to procure declarant by process or other reasonable means:
o (a) dec’s attendance in the case of a hearsay exception under R804(b)(1) or (6), OR
o (b) dec’s attendance or testimony (i.e. depo) in the case of a hearsay exception under R804(b)(2)-(4)
o **requires a genuine, good faith effort – it is gonna be fact-specific but will require more than just a letter and a phone call (can’t be perfunctory)
- **the list is nonexclusive because a child who is “incompetent” to testify on account of age is also “unavailable”
- **unavailability is ultimately determined by R104(a)
R804(b): what evidence is NOT excluded so long as the declarant is deemed unavailable?
- (1) Former Testimony
- (2) Dying Declaration
- (3) Statement Against Interest
- (4) Statement of Personal or Family History
- (6): Statement Offered Against a Party That Wrongfully Caused Dec’s Unavailability
difference between R804(b)(3) statements against interest and 801(d)(2) party admissions
R804(b)(3) must be made against interest of dec when made and need not be made by a pty
• dec must have PK
• dec must be unavailable
• designed to permit the use of OOC statements only if they were against the interest of dec when made
R801(d)(2) only applies to statements of parties (or their reps) and applies to any statement of a party, whether against interest or not
• no PK requirement
• unavailability is not required
• designed to permit the use of OOC statements only when offered against the pty
R806: Attacking and Supporting Declarant’s Credibility
rule: when a hearsay statement – or a statement described in R801(d)(2)(c), (d), or (e) – has been admitted in evidence, the declarant’s credibility may be attacked (and then supported) by any evidence that would be admissible for those purposes if the declarant had testified as a witness
R807: The Residual Hearsay Exception (“catchall exception”) - elements
Elements: under the following conditions, a hearsay statement is not excluded by R802 even if the statement is not admissible under an exception/exemption in R803 or R804
• (1) proponent must give the adverse party reasonable notice of the intent to offer the statement, including its substance and the declarant’s name
• (2) hearsay statement must be supported by sufficient guarantees of trustworthiness
o the evidence must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial (i.e. not by corroboration)
o **the restrictive definition of “statement” from Williamson applies here
- (3) statement must be more probative on the point for which it is offered than any other evidence that the proponent could obtain through reasonable effort
- (4) offered as evidence of a material fact (i.e. should not be used for trivial/collateral matters)
- (5) admitting it will best serve the purposes of these rules and the interests of justice
804(b) former testimony (elements)
• (1) Former Testimony
o Elements
the testimony must have been given as a witness at a trial, hearing, or lawful depo, whether given during the current proceeding or a different one
for criminal trials – the pty against whom the evidence is now offered must have had an opportunity to develop it by direct, cross, or redirect AND a similar motive to develop the testimony
for civil trials – the pty against whom the evidence is now offered or a predecessor in interest must have had an opportunity AND a similar motive to develop W’s testimony
