Term
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Definition
An out-of-court statement offered for the purpose of establishing the truth of the matter asserted in the statement.
Ask: Does the statements value depend on the credibility of an out-of-court declarant? |
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Term
| Three questions to ask to determine hearsay: |
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Definition
1) Is it an out-of-court statement?
2) What precisely is the out-of-court statement?
3) Is it being offered for the purpose of establishing its truth? |
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Term
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Definition
| Denies the opponent the opportunity to cross-examine the person whose perception, memory, and sincerity are in issue. |
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Term
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Definition
1) Verbal Acts or Legally Operative Facts
2) Out-of-Court statement offered not for its truth but to show its effect on the hearer
3) Out-of-Court statement offered not for its truth but as circumstantial evidence of declarants relevant state of mind. |
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Term
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Definition
1) Prior Inconsistent Statements (under oath)
2) Prior Consistent Statements (Under oath)
3) Prior statemetn of ideentification made by a witness |
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Term
Hearsay Exceptions
(List of) |
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Definition
- Admission of party
- Former Testimony
- Statement against interest
- Dying Declaration
- Spontaneious Statements
- Present state of mind at issue
- Statement of exisiting intent to prove intended act
- Excited Utterance
- Present Sense Impression
- Declaration of present physical condition
- Declaration of Past physical condition
- Business Records
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Term
| Who has the ultimate burden of proof on the question of the existence of a foundational fact? |
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Definition
| The proponent of the item of evidence. |
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Term
| What is the standard of proof required for preliminary factfinding (104)(b)? |
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Definition
| Purponderance of the Evidence |
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Term
| 9 steps for analyzing evidentiary questions |
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Definition
1. What is evidence?
2. What is the evidence offered to prove?
3. Does evidence help?
(a) Does the evidence offered tend to make some assertion of fact at issue in the case more or less likely to be true, than if the evidence is not admitted?;
(b) How does the evidence tend to prove that for which it is offered?
4. Even if the evidence helps, is its probative value substantially outweighed by the danger of unfair prejudicial value?
5. Is the evidence a statement?
6. If so, is the evidence of the statement offered for the truth of the matter asserted (or, alternatively, does the statement have to be true to be probative)?
7. If so, is the statement either within an exemption from or an exception to the hearsay rule?
8. If the statement is not admissible under a traditional exemption from or exception to the hearsay rule, is it admissible under a catch-all exception (Rules 803(24) or 804(b)(5)?
9. Finally, in a criminal prosecution, is admission of the hearsay statement forbidden by the Confrontation Clause or required by the Due Process Clause? |
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Term
| What are the categories of Federal Non Hearsay? |
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Definition
(1) Prior statement by witness.
a) Prior Inconsistent
b) Prior Consistent
c) Prior Identifiction
***See addtional Note Cards
2) Statement of a party-opponent |
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Term
| How may a prior inconsistent statement be used as non-hearsay? |
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Definition
Inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition
**IN OHIO** Must be subject to cross
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Term
| How may a prior consistent statement be used as non-hearsay? |
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Definition
To Rebut the suggestion of fabrication.
***Admissible only if the prior statement occurred before the motive to fabricate arose. |
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Term
| How may a party opponent statement be used as non-hearsay? |
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Definition
The statement is offered against a party and is
(A) the party's own statement, in either an individual or a representative capacity or
(B) a statement of which the party has manifested an adoption or belief in its truth, or
(C) a statement by a person authorized by the party to make a statement concerning the subject, or
(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or
(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
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Term
| What are the Federal Hearsay exceptions when the declarant is unavailable? |
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Definition
(1) Former testimony.
(2) Statement under belief of impending death.
(3) Statement against interest.
(4) Statement of personal or family history. |
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Term
| What are the dangers of hearsay? |
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Definition
Perception
Memory
Faulty Narration/Ambiguity
Insincerity |
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Term
| May a defendant in a criminal case bring in character evidence prior to the prosecution attacking it? |
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Definition
| YES - a defendant does not have to wait for thier character to be attacked. |
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Term
| What five types of cases will character evidence be allowed? |
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Definition
Negligent Entrustment
Defamation
Child Custody Cases
Fraud/Deciet/Misrepresentation
Tortious Assault or Battery
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Term
| What is required to trigger the exception protecting settlement negoitions? |
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Definition
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Term
We attack a parties character
We impeach a witness |
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Definition
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Term
| When do you pick the best evidence rule as an answer? |
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Definition
When the contents of the document are at issue.
(Think legal document like will, contract, etc) |
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Term
| What question do you ask when analying the admissibility of a report by a machine? |
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Definition
Is the machine working properly?
IT IS NOT HEARSAY! |
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