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hearsay
Evidence Flash Cards
19
Law
Graduate
04/27/2009

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Term
What is hearsay?
Definition
A statement, other than the one made by the declarant while testifying at trial, offered in evidence to prove teh truth of the matter asserted, not otherwise excluded.
Term
What is a statement?
Definition
An oral or written assertion; or non-verbal coduct of a person that is intended by the person to be an assertion
Term
Is silence a statement?
Definition
Can be; if intended as an assertion
Term
Can a question be hearsay?
Definition
Yes, when assertive
Term
Is lying hearsay?
Definition
No; not offered to prove truth only offered to show there was a lie
Term
If one part of a chain of inferences is hearsay, can the chain of inferences be admissible?
Definition
No; one part is hearsay the entire chain of inferences is hearsay
Term
Are out of court statements used for impeachment hearsay?
Definition
No, so probably admissible
Term
Give 3 examples of verbal condut that is not a statement
Definition
1) Reflexive/unthinking verbal conduct
2) Common social pleasantries (Hi)
3) Actor's or singer's performances
Term
W's prior statement made during deposition or at an earlier trial. Hearsay or non-hearsay?
Definition
Hearsay- it's made out of court
Term
There are 5 categories of statements that are not offered for the truth of the matter asserted. Name them.
Definition
1) Impeachment
2) Effect on hearer/reader
3) Verbal acts
4) Declarant's state of mind
5) Reputation
Term
Give 2 examples of non-assertive verbal conduct.
Definition
1) Addressing a letter
2) Bookmaking operation; W's testimony that he answered D's phone and caller on other end said "Giants to place 3rd" Caller's statement not hearsay because did not intent to assert he was talking to a betting parlor
Term
Prior inconsistent statements are non-hearsay; what are the requirements for their use?
Definition
1) Statement
2) Declarant testifies
3) Subject to cross
4) Prior statement under oath
5) Given at a trial, hearing, other proceeding, or in deposition, agency hearing, grand jury
6)Declarant must remember making statement
7)Statement inconsistent
9) Defendant must deny truth of prior inconsistent statement
Term
In order for a prior inconsistent statement to be non-hearsay does the declarant have to remember the content of the statement?
Definition
No; just making the statement

FRE- Reluctance is allowed
California- all inconsistent statements allowed
Term
What are the differences and similarities of 801(d)(1) prior inconsistent statments and 612 inconsistent statements used for impeachment
Definition
1) Statements that won't pass the non-hearsay usage may still be used for impeachment
a) don't have to be under oath
b) doesn't have to be trial, proceeding
Term
Can an affidavit signed under the pentaly of perjury be introduced as non-hearsay prior inconsistent statement?
Definition
No; doesn't qualify as "other proceeding"
Term
What are the requirements to use a prior consistent statement?
Definition
1) Must be responsive (offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive)

2) Statement must have been made before the alleged motive came into play
Term
In California, in order to use a prior consistent statement does the statement have to be pre-motive?
Definition
No; just responsive
Term
T or F

If a statement predates motive to fabricate it may be used substantively.
Definition
True
Term
What are the 7 types of admission by party opponent?
Definition
1) Party's own statement
2) Statement of which party has adopted or belief in truth
3) Stmnt by person authorized by party
4) Stmnt by parties agent or servant (within scope of employment and during existence of relationship)
5) Stmnt by co-conspirator
6) Agency or employment relationship
7) Existence of conspiracy
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