Unrestricted Exceptions to the Hearsay Rule Flashcards
1
Q
Three Categories of Hearsay Exceptions
A
- FRE 803 – 23 exceptions that apply whether or not the declarant is available to testify in the current trial
- FRE 804 – 5 exceptions that only apply if the declarant is not available to testify in the current trial.
- FRE 807 – a residual hearsay exception
2
Q
FRE 803 Exceptions to the Rule Against Hearsay – Regardless of Whether the Declarant is Available as a Witness
A
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available to testify:
3
Q
FRE 803(1) Present Sense Impression
A
A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.
4
Q
Rationale for FRE 803(1)
A
It takes time to form a lie
5
Q
FRE 803(1)
While or Immediately After
A
The impression must not occur more than a few minutes after the condition or event
6
Q
FRE 803(1)
Explain
A
This does not mean explain the cause
7
Q
FRE 803(1)
Relevance Standard
A
The judge should use 104(b). Based on admissible evidence, and suspending credibility determinations, the trial court should decide whether there is sufficient evidence to allow a jury to reasonably find, by the preponderance of the evidence, that the declarant perceived the event.
8
Q
FRE 803(2)
Excited Utterance
A
A statement relating to a startling event or condition and made while the declarant was under the stress of excitement that it caused.
9
Q
Rationale for FRE 803(2)
A
People must be calm to lie
10
Q
FRE 803(2)
Startling Event
A
Circumstances that produce a condition of excitement which temporarily stills the capacity for reflection and produces utterances free of conscious fabrication
11
Q
Relevant Standard for FRE 803(2)
A
The judge decides this under FRE 104(a) by using common sense to decide whether the event is startling, except if the declarant’s personal knowledge is in question.
12
Q
Comparison of FRE 803(1) and FRE 803(2)
Type of Event
A
FRE 803(1) – any event or condition
FRE 803(2) – a startling event or condition
13
Q
Comparison of FRE 803(1) and FRE 803(2)
Timing
A
FRE 803(1) – the declarant must make the statement during or immediately after the event or condition
FRE 803(2) – no time limit
14
Q
Comparison of FRE 803(1) and FRE 803(2)
Mental State
A
FRE 803(1) – no mental state
FRE 803(2) – the declarant must make the statement while under the stress of excitement that the event or condition
15
Q
Comparison of FRE 803(1) and 803(2)
Topic
A
FRE 803(1) – the statement must describe or explain the event or condition
FRE 803(2) – the statement must be related to the event or condition
16
Q
FRE 803(4) Statement Made for Medical Diagnosis or Treatment
A
A statement that
- Is made for and is reasonably pertinent to medical diagnosis or treatment and
- Describes medical history, past or present symptoms or sensations, their inception or their general cause.
17
Q
FRE 803(4)
Who the Statements Can Be Made To
A
Statements must be made by medical personnel, which includes
- Psychiatrists
- Psychologists
- Social workers
- Family members
- Colleagues
- Hospital attendants
- Ambulance drivers
- Lay people…etc.
18
Q
FRE 803(4) Who Can Make the Statement
A
- The injured person
- People with personal knowledge of the person’s injury
19
Q
FRE 803(4)
Direction of the Statement
A
FRE 803(4) is a one-way street. People’s statements to medical professions are admissible, but statements by medical professionals to their patients are not.
20
Q
Rationale for FRE 803(4)
A
When people are sick and trying to get help, it’s in their best interest to tell the truth
21
Q
FRE 803(4)’s Expansion from Common Law
A
During the common law, it was limited to statements made for the purpose of treatment. The FRE expands it to cover statements made for the purpose of treatment. Some states reject this.
22
Q
FRE 803(4)
Statement of Fault
A
While statements of fault are generally not admissible, many courts have admitted them in child abuse and domestic violence cases.
23
Q
FRE 803(3) Then-Existing Mental, Emotional or Physical Condition
A
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 feelings, pain or bodily injury) but not including 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.
24
Q
Rationales for FRE 803(3)
A
- The dangers of mistaken perception and faulty memory are minimized.
- We don’t include statements of memory because our memories are constantly changing and we could make stuff up
- We don’t include statements of believe because we can convert our faulty memories into belief
- We have an exception for wills because we need to look at everything that’s relevant to make sure we’re acting how the deceased intended
25
Shepard v. United States
1933
Facts
The defendant was convicted of murdering his wife and appealed saying the court should not have let his wife’s statement in. The defendant entered evidence that his wife was suicidal. To counter that, the government entered evidence that before his wife died she said the defendant poisoned her The government entered the evidence on three theories
* Dying declaration
* To rebut she was suicidal
* FRE 803(3) – she believed in that moment that her husband poisoned her
26
Shepard v. United States
1933
Procedural History
The district court let the wife’s statement in under the dying declaration exception and the Tenth Circuit affirmed.
27
Shepard v. United States
1933
SCOTUS Ruling
The wife’s statement should not have been let in.
* It didn’t qualify as a dying declaration because she was not in fear of imminent death
* It might have been used as circumstantial evidence that the declarant had a will to live, but it was so prejudicial and accusatory that the judge should have kept it out under FRE 403
* FRE 803(3) didn’t apply because her statement was about what he husband did in the past
The FRE 803(3) hearsay exception cannot be used to prove past events
28
FRE 803(3)
Decision About Statements
It is for the judge to decide under FRE 104(a) whether the statement is about past conduct or past state of mind.
29
Mutual Life Ins. Co. of New York v. Hillmon
1892
Facts and Procedural History
The defendant would not pay life insurance to the plaintiff because it thought the plaintiff’s husband conspired to fake his death to defraud the defendant. The defendant presented letters from Hillmon’s companion, Walters, to his family and fiancée saying that Walters intended to travel with the Hillmon to show that Walters was in the same area. The trial court did not allow the evidence in.
30
Mutual Life Ins. Co. of New York v. Hillmon
1892
SCOTUS Ruling
SCOTUS ruled that the letters showed Walters’s intent to travel with Hillmon and thus made it more likely that the dead body could have been Walters’s
Statements of future intent can be used to show the declarant acted on his intent
31
Comparison of FRE 803(3) and FRE 803(4)
Timing
FRE 803(3) – The statement must be about the then-existing present
FRE 803(4) – The statement can be about the present or the past
32
Comparison of FRE 803(3) and FRE 803(4)
Reason
FRE 803(3) – The statement can be made for any reason
FRE 803(4) – the statement must be made for diagnosis or treatment
33
Comparison of FRE 803(3) and FRE 803(4)
Reason
FRE 803(3) – The statement can be made for any reason
FRE 803(4) – The statement must be made for diagnosis or treatment
34
FRE 612 Writing Used to Refresh a Witness’s Memory
* When a witness who is testifying indicates that she cannot fully remember something, the attorney can try to jog her memory. The attorney can use anything to refresh the witness’s memory, including the witness’s writings, other people’s writings, pictures, smells…literally anything.
* If a writing is used to jog the witness’s memory, it is not read into evidence. The witness reads it to herself and uses it to internally jog her memory
35
FRE 803(5) Recorded Recollections
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.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party
36
FRE 803(5)
Fresh
* Fresh does not imposed a certain time limit. Ten months to three years could be fresh
* Alcohol or drugs might undermine the freshness of a record made only a few days after an event
* In determining whether a record was made when the author’s memory was fresh, courts sometimes look to the face of the writing itself: the more specific and detailed it is, the more likely it is that it was made when the matter was fresh in the author’s memory
37
Mechanics of FRE 803(5)
1. The witness must first attempt live testimony. Attempts can be made to refresh the witness’s memory when she indicates that she cannot recall well enough to testify fully and accurately. (FRE 612)
2. If the witness continues to profess a lack of memory, then FRE 803(5) can be used
3. The proponent must show that the writing had been made while the author’s memory about the statement was “fresh” and the writing “accurately” records the statement.
4. The proponent can only have the record read into evidence. If an opponent chooses, the opponent can have the record introduced into evidence
38
FRE 803(5)
Audio-Recorded Recollections
Rule 803(5) has been interpreted to also encompass audio-recorded recollections. In such circumstances, the same requirements apply and the recording can either be played to the jury or a transcript can be read to the jury
39
Multi-Party Recordings
* When the declarant who initially provided the information (the inner statement) is not available to testify, the record is admissible if some other exclusion or exception can be used for the inner statement
* When the person who recorded the statement is not available to testify, the record is not admissible
40
FRE 803(5)
Colorado Rule
The witness can used recorded recollections even if their memory is fully intact
41
FRE 803(5)
Delaware Rule
The judge has discretion to allow the record to be read into the record or admitted as evidence
42
Comparison of FRE 803(5) and FRE 612
Type of Writings
FRE 803(5) – Only certain writings (or recordings) count as recorded recollections
FRE 612 – Anything can be used to refresh the witness’s memory
43
Comparison of FRE 803(5) and FRE 612
Whether the Court Hears the Writing
FRE 803(5) – The writing must be read into evidence
FRE 612 – A witness who uses a writing to refresh her memory cannot read from it
44
Comparison of FRE 803(5) and FRE 612
Type of Evidence
FRE 803(5) – A writing offered as a recorded recollection is substantive evidence for the proposition for which it is being admitted
FRE 612 – If a writing is used to refresh the witness’s memory, it is not substantive evidence itself
45
Comparison of FRE 803(5) and FRE 803(1)
Timing
FRE 803(5) – Writings must be made when fresh in the declarant’s mind
FRE 803(1) – Writings must be made as the event or condition is happening or immediately after
46
Comparison of FRE 803(5) and FRE 803(1)
Testify
FRE 803(5) – The declarant must testify
FRE 803(1) – The impressions can be presented without the declarant testifying
47
Comparison of FRE 803(5) and FRE 803(1)
Memory
FRE 805(5) – The writings can be used only if the declarant currently has loss of memory about the event
FRE 803(1) – The impressions can be use even if the declarant currently has full memory of the event
48
Comparison of FRE 803(5) and FRE 803(1)
Evidence
FRE 803(5) – The writing can only be read into evidence
FRE 803(1) – The writing is admitted as evidence
49
FRE 803(6) Records of a Regularly Conducted Activity
A record of an act, event, condition, opinion or diagnoses 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
3. Making the record was a regular practice of that activity
4. All these conditions are shown by testimony of the custodian or another qualified witness or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification and
5. The opposition does not show that the source of the information, the method or circumstances indicate a lack of trustworthiness
50
FRE 803(6)
At or Near the Time
* While there is no fixed time limit, courts have found a record made 11 days after the event satisfies FRE 803(6)(A)
* On the other hand, courts have found the following to be too delayed: 5 months, 6 months, one year and 10 months, and 3 years
51
FRE 803(7) Absence of a Record of a Regularly Conducted Activity
Evidence that a matter is not included in a record described in paragraph (6) if
1. The evidence is admitted to prove that the matter did not occur or exist
2. A record was regularly kept for a matter of that kind and
3. The opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness
52
FRE 803(7) and Silence
We don’t need FRE 803(7) every time we want to introduce absence of information from a record. Generally, silence is not an assertion and therefore not hearsay, so absence of a record would not be hearsay. The drafters of the FRE included 803(7) to make clear that such evidence should be admissible
53
FRE 803(8) Public Records
A record or statement of a public office if
1. It sets out
1. The office’s activities
2. A matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel or
3. In a civil case or against the government in a criminal case, factual findings from a legally authorized investigation and
2. The opposing party does not show that the source of information or other circumstances indicate a lack of trustworthiness
54
Relationship Between Business Records and Public Records
* If evidence doesn’t meet the criteria for one, it might meet the criteria for the other. This is not true when the record does not meet the criteria for public records and is used against the defendant because that will clash with the Confrontation Clause.
* We want parties to choose what exception they want and the rationale for their choice
55
Beech Aircraft Corp. v. Rainey
1988
FRE 803(8)(A)(iii)’s hearsay exception for records setting out “factual findings from a legally authorized investigation” encompasses not merely fact detailed in such records, but also conclusions and opinions contained in such reports
56
Using FRE 803(5) When the Criteria for 803(8) Are Not Met
If the author of the report testifies and is cross-examined, then the report would be admissible because the jury would be able to weigh his credibility and the circumstances surrounding his creation of the report
57
FRE 803(8)
Certification and the Confrontation Clause
The use of a certificate to prove the foundational requirements of a public record might conflict with the defendant’s Confrontation Clause rights. So, such evidence can only be used if notice is given to the defendant and she makes no objection
58
FRE 803(10) Absence of a Public Record
Testimony – or a certification under Rule 902 – that a diligent search failed to disclose a public record or statement if
1. The testimony or certification is admitted to prove that
1. The record or statement does not exist or
2. A matter did not occur or exist, if the public office regularly kept a record or statement for a matter of that kind and
2. In a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before the trial and the defendant does not object in writing within 7 days of receiving the notice, unless the court sets a different time for the notice or objection
59
FRE 803(21) Reputation Concerning Character
A reputation among a person’s associates or in the community concerning that person’s character
60
FRE 803(22) Judgment of a Person’s Previous Conviction
Evidence of a final judgment of conviction if
1. The judgment was entered after a trial or a guilty plea, but not a nolo contender plea
2. The conviction was for a crime punishable by death or imprisonment for more than a year
3. The evidence is admitted by the prosecutor to prove any fact essential to the judgment and
4. When offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant
The pendency of an appeal may be shown but does not affect admissibility
61
Judgment
A jury verdict is not a judgment. The judgment is what the court issues after the verdict, and it’s a legal act of the judge
62
Judgments as Hearsay
Judgments cannot be used against the defendant to prove the underlying facts
63
Judgments as Non-Hearsay
Judgments can be used to prove a prior conviction
64
FRE 803(16) Statements in Ancient Documents
A statement in a document that was prepared before January 1, 1998, and whose authenticity is established
65
Old Version of FRE 803(16)
A statement in a document that is at least 20 years old and whose authenticity is established
66
FRE 803(17) Market Reports and Similar Commercial Publications
Market reports, lists, directories and other compilations that are generally relied on by the public or by persons in particular occupations
67
FRE 803(18) Statements from Learned Treatises, Periodicals or Pamphlets
A statement contained in a treatise, periodical or pamphlet if
1. The statement is called to the attention of an expert witness on cross-examination or relied on by the expert witness on direct examination and
2. The publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s admission or testimony, or by judicial notice
If admitted, the statement may be read into evidence but not received as an exhibit
68
FRE 803(9) Public Records of Vital Statistics
A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty
69
FRE 803(11) Records of Religious Organizations Concerning Personal Family History
A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history contained in a regular kept record of a religious organization
70
FRE 803(12) Certificates of Marriage, Baptism, or Similar Ceremonies
A statement contained in a certificate
1. Made by a person who is authorized by a religious organization or by law to perform the certified act
2. Attesting that the person performed a marriage or similar ceremony or administered a sacrament and
3. Purporting to have been issued at the time of the act or within a reasonable time after it.
71
FRE 803(13) Family Record
A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy chart, engraving on a ring, inscription on a portrait, or an engraving on an urn or burial marker
72
FRE 803(19) Reputation Concerning Personal or Family History
A reputation of a person’s family by blood, adoption or marriage – or among a person’s associates or in the community – concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption or marriage or similar facts of personal or family history
