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Flashcards in Hearsay - Declarant's Unavailability Immaterial Deck (17)
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1
Q

What are the hearsay exceptions where declarant’s unavailability is immaterial?

A
  1. Present State of Mind (Then-Existing State of Mind)
  2. Excited Utterance
  3. Present Sense Impression
  4. Declarant’s Present Bodily Condition
  5. Statements Made for Diagnosis or Treatment
  6. Business Records (Regularly Conducted Business Activity)
  7. Past Recollection Recorded
  8. Official Records and Other Official Writings
  9. Ancient Documents
  10. Documents Affecting Property Interests
  11. Learned Treatises
  12. Reputation
  13. Family Records
  14. Market Reports
2
Q

What is the rule re: “present state of mind” (or then existing state of mind)?

CA distinction?

A

A statement of declarant’s THEN-EXISTING state of mind, emotion, sensation, or physical condition IS admissible

Examples:

  1. I am hungry
  2. This really hurts

NOTE –> statement of memory or belief is NOT admissible. EXAMPLE –> I was hungry (not admissible)

NOTE –> need not be for medical advice or treatment

CA Distinction –> SAME, except judge has discretion to exclude statements made under suspicious circumstances

3
Q

What is the rule re: “excited utterance”?

CA distinction ?

A
  1. statement RELATING TO A STARTLING EVENT
  2. MADE WHILE under stress of the event

NOTE –> sometimes a “failed” dying declaration will make it as an excited utterance

CA –> same, but called “spontaneous statement”

4
Q

What is the rule re: “present sense impression”?

CA distinction?

A
  1. statement that DESCRIBES or EXPLAINS an event or condition,
  2. is made WHILE or IMMEDIATELY AFTER declarant perceives the event or condition

CA distinction –> NARROWER.
-statement must be made WHILE event is happening, not after

5
Q

What is the rule re: “declarant’s present bodily condition”?

CA distinction?

A
  1. SPONTANEOUS declaration of
  2. declarant’s OWN present bodily condition (physical or mental)

NOTE –> regardless of whether made for the purpose of diagnosis or treatment

CA distinction –> same, but judge has discretion to exclude statement made under suspicious circumstances

6
Q

What is the rule re: “statements made for diagnosis or treatment”?

CA distinction?

A
  1. statement DESCRIBES a person’s medical history, present or past symptoms OR their INCEPTION or GENERAL CAUSE
  2. IF made FOR and PERTINENT to MEDICAL DIAGNOSIS or TREATMENT

NOTE –> usually declarant will be describing their own condition, but this is not required

NOTE –> usually made to medical personnel, but this is not required

SCOPE –> narrowly determined
Example –> if person says to doctor “I was stabbed by kitchen knife. my roommate did it” - only the first portion would be admitted

NOTE –> under federal rules (unlike maj of states), statements made to doctor hired to testify of past physical condition IS admissible

___________________

CA distinction –> admissible only if:

  1. made by a child-abuse or neglect victim under 12 to medical personnel
  2. for the purpose of obtaining medical diagnosis or treatment
7
Q

What is the rule re: “Business Records”?

A
  1. writing made in the REGULAR course of business
  2. consisting of matters within PERSONAL KNOWLEDGE
  3. of one with BUSINESS DUTY to transmit
  4. entry must be made AT or NEAR TIME of transaction

“business” - every business, org, occupation or calling whether for profit or not

NOTE –>

  • Authenticity must be established by:
    1. custodian testifying that the record is a business recored; OR
    2. certifying in writing that its a business record
  • self serving accident reports prepared for litigation are generally NOT admissible.
  • police reports are generally NOT admissible against a criminal def under this exception
  • business records MAY be used to prove non-occurrence of event if it was the regular practice of business to record all such matters
8
Q

What is the rule re: “Public Records and Reports”?

CA distinction?

A
  1. records setting forth the activity of the office or agency
  2. recordings of matters observed pursuant to a duty imposed by law (except police observations in criminal cases); OR
  3. In civil actions (and in criminal cases ONLY against the government) records of factual findings resulting from investigation

Writing must have been made:

  1. by and within the scope of duty of the public employee;
  2. must have been made AT or NEAR the time of the event

NOTE –> an otherwise qualifying public record MAY be excluded if opponent can show circumstances indicating lack of trustworthiness

NOTE –> make sure to double check for double-hearsay

COME BACK TO –> statement of absence of public record (p43)
________________________
CA DISTINCTION –>
1. records re: police observations in criminal cases are NOT automatically excluded
2. records of factual findings from an investigation can be used BY the gov, as well as against it in a criminal case (NOTE –> there may still be a confrontation clause issue if offered in a criminal case)

9
Q

What is the rule re: “Records of Vital Statistics”?

CA ?

A

Records of vital statistics are admissible IF reported to a public office in accordance with a legal duty

CA –> SAME

10
Q

What is the rule re: “Judgments”?

A

Judgment of prior FELONY conviction :

FRE –> admissible in both CIVIL and CRIMINAL case to prove any fact essential to judgment

CA DISTINCTION –> only allowed to be used in civil cases

____________________________________

Judgment in former civil case:

FRE –> generally inadmissible except:
admissible as proof of matters of personal, family, or general history, or boundaries of land, if it would be provable by reputation evidence

CA –> generally inadmissible except:

  1. party may use final judgment against himself when he sues another for indemnification or to enforce a warranty, or to recover from breach of warranty
  2. final judgment against a 3rd party holding that the third party has a duty or liability, is admissible when offered in a suit between parties
11
Q

What is the rule re: “Ancient Documents”?

A

Any authenticated document prepared before January 1, 1998

12
Q

What is the rule re: “Documents Affecting Property Interests”?

A

A statement in a document affecting an interest in property (deed, will) is admissible IF:
-the statement is RELEVANT to the document’s purpose

HOWEVER –> exception will NOT apply if later dealings with the property are:

  1. inconsistent w the truth of the statement; OR
  2. inconsistent w intent of the document
13
Q

What is the rule re: “learned treatises” ?

FRE ?

CA?

A

FRE –> admissible as hearsay exception if:

  1. called to the attention of, or relied upon by an expert witness; AND
  2. established as a RELIABLE AUTHORITY by:
    (i) testimony of that witness; OR
    (ii) testimony of other expert witness; OR
    (iii) judicial notice

CA –> narrower. Only applies to facts of GENERAL NOTORIETY and interest found in published maps or charts, or books of history, science or art.
NOTE –> Art is narrowly construed, basically sciences

14
Q

What is the rule re: “family records”?

CA?

A

Statements of facts concerning PERSONAL or FAMILY history contained in:
family bibles, jewelry engravings, tombstone engravings ETC

CA –> same

15
Q

What is the rule re: “market reports”?

CA?

A

market reports and other published compilations, If GENERALLY USED or RELIED UPON by:

  1. the public; or
  2. persons in a particular occupation

CA –> same

16
Q

What is the residual “catch all” exception under the FRE?

CA?

A

If a hearsay statement is not covered by a specific exception, it may still be admitted if:

  1. statement possesses circumstantial evidence of TRUSTWORTHINESS; AND
  2. is NECESSARY; and
  3. adverse party has NOTICE

CA –> there is no catch all, but judges create new hearsay exceptions by decisional law

17
Q

What is the rule w regards to “past recollection recorded”?

CA?

A

writing made or adopted by witness who cannot now remember facts, made while facts were fresh in his mind

CA –> same