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Flashcards in Hearsay Deck (24):
1

Define hearsay

(1) an out of court statement...
(2) offered to prove the truth of the matter asserted

2

What are the main categories of non-hearsay?

• Verbal act (legally operative words)
• Effect on hearer
• Speaker's state of mind (e.g., insanity, consciousness of guilt, lack of knowledge, etc.)
• Prior statement of trial witness
• Admission by party
(mnemonic: VESPA)

3

Is a witness's own prior statement hearsay if offered to prove the truth of the matter asserted? What exclusions apply?

Yes, it is hearsay unless an exception or exclusion applies.
EXCLUSIONS:
• witness's prior statement of identification of a person
• witness's prior INCONSISTENT statement if (1) oral, (2) under oath, and (3) made during formal trial, hearing, proceeding, or deposition, or
• witness's prior CONSISTENT statement if being used to rebut charge of fabrication or improper motive/influence

4

When are vicarious party admissions admissible as non-hearsay?

When the statement by the agent/EE is within the scope of agency and is made during the existence of the agency/employment relationship

5

When are co-conspirator statements admissible as party admissions?

When the statements are made (1) during and (2) in furtherance of the conspiracy

6

When does the 6th Amendment require that a criminal defendant be confronted with the witness against him?

(1) testimonial statement
(2) declarant is unavailable
(3) defendant has no opportunity for cross-exam

7

When is a statement to police testimonial for purposes of hearsay constitutionality?

TESTIMONIAL: when establishing past events potentially relevant to a later criminal prosecution
NON-TESTIMONIAL: when enabling police assistance to meet an ongoing emergency.

8

When is a forensic laboratory report testimonial?

When purpose is to accuse a targeted individual of criminal conduct

9

When does the "forfeiture" hearsay exception apply?

satisfy all:
(1) court finds by a preponderance of the evidence...
(2) defendant's conduct was designed to prevent the witness from testifying
(3) the conduct made the witness unavailable to testify

10

When does the "former testimony" exception apply?

satisfy all:
• declarant unavailable
• former testimony was given in a former proceeding or deposition
• opposing party had an opportunity and motive to cross-examine
• essentially the same issue

11

What are the grounds of unavailability for hearsay exceptions?

(1) Privilege
(2) Absence from jurisdiction
(3) Illness or death
(4) Lack of memory
(5) Stubborn refusal to testify
(mnemonic: PAILS)

12

When does the "statement against interest" hearsay exception apply? What additional element is required in criminal cases?

satisfy all:
• declarant unavailable
• when made, statement is against pecuniary, proprietary, or penal interest
EXTRA CRIMINAL ELEMENT: corroborating evidence

13

When does the "dying declaration" hearsay exception apply? In which types of cases does it apply?

ELEMENTS (satisfy all):
• declarant unavailable
• statement made under belief of impending and certain death
• statement concerns cause or surrounding circumstances of death
TYPES OF CASES:
• Criminal cases: only applies in homicide
• Civil cases: applies in any type of case

14

When does the "excited utterance" hearsay exception apply?

satisfy all:
• statement concerning a startling event
• made while declarant is still under the stress of excitement caused by the event

15

When does the "present sense" hearsay exception apply?

When declarant makes a description of the event either:
• while it is occurring, or
• immediately thereafter

16

When does the "present state of mind" hearsay exception apply?

satisfy all:
• contemporaneous statement
• concerning defendant's present state of mind, feelings, emotions

17

When does the "declaration of intent" hearsay exception apply?

satisfy all:
• statement of declarant's intent
• to do something in the future

18

When a declaration of intent is admitted that shows the declarant intended to do something with another person, what may the evidence be used to show?

• declarant's future intent
• that declarant did the thing with the other person

19

When does the "present physical condition" hearsay exception apply?

statement about the declarant's current physical condition

20

When does the "statement for purpose of obtaining medical treatment or diagnosis" hearsay exception apply?

satisfy all:
• statement made to anyone (usually medical personnel)
• for purpose of obtaining medical treatment or diagnosis
• concerning declarant's present symptoms, past symptoms, or the general cause of his condition
BUT NOT: statements describing details of liability or identity of tortfeasor, unless identity of abuser in domestic/child abuse case
NOTE: statements made by physician to patient are not covered by the exception

21

When does the "business records" hearsay exception apply?

satisfy all:
(1) records of a business of any type
(2) made in the regular course of business
(3) business regularly keeps such records
(4) made contemporaneously
(5) contents concern either info observed by the employees, or statement that otherwise falls within a hearsay exception

22

How does a party lay foundation to prove business records?

either:
• call records custodian or other knowledgable person from the business to testify to the elements of the hearsay exception, or
• written certification under oath attesting to the elements of the hearsay exception

23

When does the "public records" hearsay exception apply?

Records of a public office or agency setting forth any of the following:
• activities of the office or agency
• matters observed pursuant to a duty imposed by law, or
• findings of fact or opinion resulting from an investigation authorized by law
EXCLUSION: police reports prepared for prosecutorial purposes are not admissible against the defendant in a criminal case

24

How may a hearsay declarant be impeached?

by any impeachment method, so long as the hearsay declarant's statement was admitted into evidence