Hearsay and Circumstances of its admissibility Flashcards
(24 cards)
What is hearsay and is it admissible?
Generally no. It is an out of court statement used to prove the truth of the matter asserted.
What are the hearsay Exceptions:
TESLA B RAPP
> T hen existing mental, emotional or physical state of mind
> E xcited Utterance
> S tatement for medical diagnosis or treatment
> L earned Treatise
> A bsence of business record or public record
> B usiness Record
> R ecorded Recollection
> A ncient Document
>P resent Sense Impress ion
> P ublic Record
> Catch all exception
Present Sense Impression
Hearsay exception
Statement was made while observing a fact
There is no emotion. Its the who, what and where. Non emotional observation of fact while observing it
Excited Utterance
Hearsay exception
Statement made while I am excited.
Usually exclamation point or john yelped, streaked ect.
Then existing mental, emotional or physical state of mind
Hearsay exception
What was in my head, Statements that gen go to my intent or emotion.
I was going to go to NY.
I couldn’t have killed her because I love her
I have a headache now.
Motive intent, love, planning traveling or love or hate
Business Record
Hearsay exception
Where record made in ordinary course of the business. Must be done all the time every day no matter what.
Ie: time sheet
Statement for medical diagnosis or treatment
Hearsay exception
Statement related to past or present symptoms relating to diagnosis or treatment. Treatment made related to being treated. More about the treatment itself.
Gen making to someone whos doing the treatment or diagnosis
Aka: Statement related to past or present symptoms
About treatment or diagnosis
Recorded Recollection
Hearsay exception
The witness once knew about this document but now cant remember. This document was either made by the witness or he adopted it ie knew about it and accepted it as something he knew of. This can be put in front of witness to verify memory.
Key is this may be read into evidence. (recorded).
Public Record
Hearsay exception
Record or statement of a public office or agency that shows activities of the office or observations of a person under duty to report.
Ie: police report
Absence of business record or public record
Hearsay exception
Looking for hypo where they say there was no business or public record absence of.
Learned Treatise
Hearsay exception
Looking if an expert witness is relying on it and then that can come in as hearsay exception
Ancient Treatise
Hearsay exception
Document that is more than 20 years old and authenticated meaning no signs of tampering.
If less than 20 years old prob wont come in under this exception and will choose the inadmissible not within any hearsay exception
Catch All Exception
Hearsay exception
Any other kind of statement that is trustworthy, material and in the interest of justice we should admit it then it will come in under the catch all exception.
Exceptions where unavailability is unimportant
STD
Unavailable: Not currently at the trial
> Dying declaration
Statement against Interest
Former Testimony
Dying Declaration
Unavailability is unimportant
The declarant must be unavailable (dnt mean dead), the declarant has to believe that they are dying, the statement is about why they are dying (in this position), it only applies in homicide or civil case.
Statement Against Interest
Unavailability is unimportant
AKA: Unavailability, makes declarant look liable/ guilty, generally made by nonparty
If they tell you the declarant was unavailable that’s how u know to pick this one and not an admission
This is where the declarant makes a statement making themselves look liable or guilty about something. This looks like an admission but its not.
Former Testimony
Unavailability is unimportant
The declarant unavailable. A party against whom the former testimony was offered was a party in a former case, the former case is about the same subj matter as the current case, the former testimony was made under oath and they had the opportunity and/ or motive to examine or cross examine the witness.
Non hearsay (not exceptions)- Admissible as substantive Evidence
APPS
Admissible as non hearsay have nun to do with the hearsay exceptions.
> Admissions
Prior Consistent Statements
Prior ID
Prior Sworn Inconsistent Statements
Admissions
Non hearsay
o Admissions: A statement made by one of the parties, that makes them look guilty or liable and they are admissible as nonhearsay.
2 kinds:
o Vicarious Liability: statements made by EEs of a company. Making statements about the company and liability.
o Adoptive Admissions: Statements where they are not really statements: silence, when no respond when an innocent person would normally protest, object. Party does not respond when a reasonable person would.
Prior consistent statement
Non hearsay
AKA
1. prior statement by declarant
- The same as current testimony
- To refute charge of fabrication or motive.
> brining in something that the declarant already said before just to refute the idea that I would be lying or made something up.
Statement made earlier by the declarant (which is the same as the current testimony).
Prior sworn inconsistent statement
Non hearsay
A prior statement made under oath/ trial/ proceeding that’s inconsistent with my current testimony.
Prior ID
Non hearsay
Declarant is presently testifying about a person they identified earlier.
Testimonial vs non testimonial Statements
Testimonial: Not made during an emergency= Not Admissible
Non- Testimonial: Made during and emergency= AAdmissible
Hearsay upon hearsay
2 diff statements, it is not admissible.
