Hearsay + Confrontation Clause + Judicial Notice Flashcards
(33 cards)
What is the definition of Hearsay according to FRE 801(c)?
Hearsay is an
1. out-of-court
2. statement
3. that is offered in court to prove the truth of the matter asserted.
What does it mean for a statement to be made ‘out-of-court’?
A statement is made ‘out-of-court’ when it is made outside the proceedings of the current case.
What constitutes a ‘statement’ for hearsay purposes?
A statement is an assertion made by a human being, including oral assertions, written assertions, or nonverbal conduct intended as an assertion.
Do noises made by animals or machines count as statements for hearsay?
No, noises made by animals or machines do not constitute statements for hearsay purposes.
What is required for an out-of-court statement to be considered hearsay?
It must be offered to prove the truth of the matter asserted.
Are statements offered to show the effect on the listener considered hearsay?
No, they are not offered to prove the truth of the matter asserted, and thus are not hearsay.
Are statements offered to show the declarant’s mental state considered hearsay?
No, these statements are not offered to prove the truth of the matter asserted and are thus not hearsay.
are statements offered to impeach a witness hearsay?
They are not offered to prove the truth of the matter asserted and are thus not hearsay.
What are verbal acts of independent legal significance?
Statements offered to prove that the statement itself was made, irrespective of its truth, such as defamatory statements, bribes, threats, and contracts.
these are not hearsay
Fill in the blank: Hearsay evidence is NOT admissible UNLESS it falls under a valid _______.
exception
What are the conditions for Prior Inconsistent Statements not to be considered hearsay under FRE 801(d)(1)(A)?
- Declarant testifies and is subject to cross-examination about the prior statement
- Prior statement is inconsistent with the declarant’s testimony; AND
- Prior statement was given under penalty of perjury
An out-of-court statement that is offered to prove the truth of the matter asserted is NOT hearsay if:
- Declarant testifies and is subject to cross-examination about the prior statement
- Prior statement is consistent with the declarant’s testimony; AND
- Statement is offered to rebut a charge of recent fabrication or improper motive/influence OR to rehabilitate declarant’s credibility as a witness when attacked on other grounds
FRE 801(d)(1)(C): Prior Statements of Identification
An out-of-court statement that is offered to prove the truth of the matter asserted is NOT hearsay if:
- The declarant testifies and is subject to cross-examination about the prior statement; AND
- The declarant identifies a person as someone the declarant perceived earlier.
What is the definition of hearsay in the context of opposing party’s statements?
An out-of-court statement offered to prove the truth of the matter asserted is NOT hearsay if offered against an opposing party and:
* Was made by the party in an individual or representative capacity;
* Is one the party manifested that it adopted or believed to be true;
* Was made by a person whom the party authorized to make a statement on the subject;
* Was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; OR
* Was made by the party’s co-conspirator during and in furtherance of the conspiracy.
Who can make a statement on behalf of a party?
A person whom the party authorized to make a statement on the subject
Authorization indicates that the individual has been given permission to speak or act for the party.
Hearsay Exceptions: Declarant Unavailability NOT Required
(declarant can be a witness)
FRE 803(1): Present Sense Impression
FRE 803(2): Excited Utterance
FRE 803(3): Then-Existing Mental, Emotional, or Physical Condition
FRE 803(4): Statement Made for Medical Diagnosis or Treatment
FRE 803(5): Recorded Recollection
FRE 803(6): Business Records
Hearsay Exceptions: Declarant Unavailability REQUIRED
FRE 804(b)(1): Former Testimony
FRE 804(b)(2): Dying Declaration
FRE 804(b)(3): Statement Against Interest
FRE 804(b)(6): Forfeiture by Wrongdoing
FRE 803(3): Then-Existing Mental, Emotional, or Physical Condition
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan); OR
emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health),
does not include a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
FRE 803(5): Recorded Recollection
A record that:
1. Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
2. Was made or adopted by the witness when the matter was fresh in the witness’s memory; AND
3. Accurately reflects the witness’s knowledge.
FRE 803(6): Business Records
A record of an act, event, condition, opinion, or diagnosis if:
(1) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(2) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; and
(3) making the record was a regular practice of that activity.
A declarant is considered to be unavailable as a witness if the declarant:
- Is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
- Refuses to testify about the subject matter despite a court order to do so;
- Testifies to not remembering the subject matter;
- Cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; OR
- Is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance or testimony.
FRE 804(b)(1): Former Testimony
Testimony that:
1. Was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; AND
2. is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
FRE 804(b)(3): Statement Against Interest
A statement that:
1. A reasonable person would not have made unless he believed it to be true;
2. Was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; AND
3. Is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
What does the Confrontation Clause guarantee?
The D’s right to confront witnesses against him in a criminal action
This includes the right to be present at trial and the right to cross-examine the prosecution’s witnesses.
