Term
| Hearsay- Definition and Form |
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Definition
An out of court statement that is offered to prove the truth of the matter asserted.
May Be Written, Oral, or Non-Verbal (Head nod, Finger pointing) |
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Term
| Hearsay- Which Out of court statements are not hearsay? |
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Definition
Statements that are not offered for the Truth of the Matter Asserted
Non-Human information I.E. Radar gun readout, Dog bark)
Statements to show
-Effect on Recipient
-Mental State
-Impeachment (contradicts himself)
-Identification (Who was speaking/present?) |
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Term
| Hearsay Exclusions- What types of Prior Statements are there? |
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Definition
1.Prior Inconsistent Statements
2. Prior Consistent Statements
3. Prior Statements of Identification
4. Party Admissions
A. Judicial Admissions
B. Adoptive admission
C. Vicarious Admission
D. Co-Conspirator Admission |
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Term
| What are the prerequisites for Prior Statements to be Admissible? |
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Definition
1. Declarant is testifying at trial and
2. is subject to Cross-Examination |
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Term
Hearsay
-Prior Inconsistent Statements
Elements |
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Definition
Declarant must be Testifying at trial
Declarant must be subject to Cross Examination
IF UNDER OATH AND INCONSISTENT WITH CURRENT TESTIMONY, Available as Substantive Evidence
If not Under oath, only available for Impeachment/Credibility
Grand jury testimony does not apply |
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Term
Hearsay
-Prior Statements of Identification |
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Definition
A previous out of court identification of a person (lineup, photo array) is admissible as SUBSTANTIVE evidence.
This ONLY applies if the witness who made the identification is testifying at trial and therefore subject to cross ex. |
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Term
Hearsay
Party Admissions-Definition and
-Four Types |
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Definition
A prior out of court statement by a party to the current litigation that is used against that party is admissible
-does NOT have to be a statement against interest |
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Term
Hearsay
Four types of Party Admission |
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Definition
Judicial admissions (discovery, stipulation, during proceeding)
EXCEPT- amended or withdrawn guilty plea
Adoptive admission- made by another party, expressly or impliedly adopted as his own
Silence is A.A. if party was present, heard & understood statement,
party had the ability and opportunity to deny it, and Reasonable person would have denied it.
Vicarious Admission- O-O-C statement made by one person imputed by relationship between parties (Employee or agent if made within scope of employment during course of relationship)
Co-Conspirator Admission
OOC statement Admissible if made by co-conspirator during and in furtherance of the conspiracy (After arrest-not admissible) |
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Term
| Hearsay Exceptions- Available Witnesss |
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Definition
1. present sense impressions
2. excited utterances
3. statements of present emotional/mental state or physical condition
4. statements for medical diagnosis or treatment
5. recorded recollection
6. business records
-Public records in some cases
7. Learned Treatises
8. Judgement of a previous conviction
9. Character reputation
10. Catch all (FRE 807) |
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Term
Hearsay-
Present Sense Impression- Definition |
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Definition
| A statement describing or explaining an event whil it is happening or IMMEDIATELY after |
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Term
Hearsay-
Excited Utterance- Definition |
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Definition
A statement made about
1. a STARTLING event or condition
2. While the declarant is still under the stress of excitement caused by the event
- Different from present sense impression because it's not based on time, it's based on the effect of the event (if you're still shaking/palms sweating, it falls here, even 1/2 an hour later) |
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Term
| Hearsay- Statements of Mental, Emotional, or Physical condition- Definition |
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Definition
A statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition
-Used to show the declarant acted in conformity therewith
State of mind includes present intent, motive, or plan, DOES not include about a memory, past belief, or past state of mind
Physical Condition- Used to prove that the condition existed, cannot be used to prove the cause of the condition. |
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Term
Hearsay-
Statements made for purposes of Medical Diagnoses or treatment-Definition/elements |
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Definition
A statement that describes the declarant's medical history, past or present symptoms, pain, or other sensations.
-ALSO admissible if it goes to the cause of the injury
-May be inadmissible due to dr/patient privilige
-Admissible if made
To a Doctor or other medical personnel
only for the purpose of enabling the doctor to testify at trial
- made by someone other than the patient, as long as made for treatment or diagnoses, depending on sufficiently close relationship between declarant and patient
A statement of cause/source must be reasonably pertinent to diagnoses/treatment |
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Term
Hearsay-
Recorded Recollection
Definition & Elements |
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Definition
The record is read into evidence because he witness cannot recall the event or information
Requirements:
-The record is about a matter the witness once knew about
-The witness made or adopted the record whent he matter was fresh in his mind
-the record accurately reflects the witness's knowledge and
-The witness now cannot recall the events well enough to testify, even after consulting the writing while on the stand
The proponent may only read the document into evidence, Only the opponent can introduce it as an exhibit |
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Term
Hearsay
Business Records
- Elements, Authentication |
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Definition
A record is not excluded if:
-Record is kept in the course of regularly conducted business activity
-The making of the record was a regular practice of the activity
-The record was made at or near the time that someone had knowledge of the activity DOES NOT require witness to remember(Call log)
Authentication can happen by the custodian, a qualified witness, or self-authenticated
May be deemed inadmissible if the soruce or the preparation of the info appears to lack trustworthiness (i.e. anticipation of litigation)
-Medical Records
-Police Reports (Unless they contain hearsay/witness statements) |
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Term
Hearsay- Business/Public Records
-Absence of a record |
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Definition
May be admissible to prove an event did not occur
Admissible if a record is usually kept/created for that type of mater |
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Term
Hearsay- Business Record- Public Record
When is a statement of a public officer/agency admissible? |
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Definition
When the record (statement of the agency or of a public officer) Sets out activities of office or agency
-When it is an observation of a person who has a duty to report that observation
EXCEPTIONS;
-Observations of a cop in crim. case
Fact. findings of legal investigation in civil case or crim. case against gov't |
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Term
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Definition
Not excluded IF
-An expert relied on statement during direct or expert was cross-Examined on it AND
Publication is established as a reliable authority, either
By Expert
By another Expert
By Judicial notice
If admitted, statement is READ into evidence, the publication is NOT admitted |
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Term
| Hearsay- Judgement of a Previous Conviction |
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Definition
Not excluded IF
-Judgement was entered after trial or a guilty plea
-PUnishable by death or imprisonment greater than one year and
-The evidence is offered to prove any fact essential to sustain the judgement |
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Term
Hearsay- Residual/Catchall exception
FRE-807 |
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Definition
This is an exception for a statement that is not otherwise covered by any of the rules, a hearsay statement may be admissible under this exception if
Equivilant circumstantial guarantees of trust
-Is offered as evidenc of a material fact
-is more probative than any other evidence on the point and
-admitting the hearsay statemetn will best serve purpose of FRE and justice
REASONABLE NOTICE must be given to opposing counsel when using this exception |
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Term
| Hearsay- Other exceptions |
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Definition
-Records of religious organizations
-marriage and baptismal certificates
-family records (family bible)
-Records of documents affecting an interest in property
-Ancient Documents (authenticated, >20 years)
Market reports
Reputation concerning personal or family history, boundaries, general history, or character
Judgments regarding proof of matters of personal/family/general history |
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Term
| Hearsay- What are the constitutional amendments that impose limits on Hearsay, even in the case of an exception? |
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Definition
6th amendment- Confrontation clause
Must have a right to confront the witness
14th amendment- due process clause
May prevent application of a hearsay rule when the rule would restrict the defendant from his ability to mount a defense. |
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Term
| Hearsay Exceptions- Unavailable Witness |
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Definition
1.Former testimony
2. Dying Declarations
3.Statement against interest
4. statement of personal or family history 5.Declarant Unavailable Due to Wrongdoing (Forfeiture against wrongdoing |
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Term
| When is a Declarant Deemed unavailable? |
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Definition
When the declarant is
1. Unavailable
2. Exempted by Privilege (Spouse, Doctor)
3. Refuses to testify despite court order
4. Lacks memory of the subject matter
5. Is unable to testify due to incapacity (Death, Mental, or Physical disability)
PARTY SEEKING EXCEPTION MAY NOT PROCURE DECLARANT'S UNAVAILABILITY IN ANY WAY! |
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Term
Hearsay- Former Testimony Exception-
Elements
Hearsay |
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Definition
1. Need MEANINGFUL opportunity for cross-examination
-- (same issue/motive/party privity)
2. Unavailable declarant |
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Term
Hearsay-
Unavailable witness exceptions
Dying Declarations |
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Definition
Qualifies if the statement
-Is made by an individual who believes death is imminent AND
-The statement pertains to the cause or the circumstances of their death
Declarant need not actually die
ONLY available in homicide and civil cases |
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Term
Hearsay-
Unavailable witness exceptions
-Statement against Interest |
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Definition
Statement qualifies if it is
Against declarant's self interest and
pecuniary or proprietary interest or
exposes them to civil or crim. liability
If Crim, Must have corroborating evidence that clearly indicates statement's trustworthiness
-A "reasonable person" would not have made statement unless they believed it was true |
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Term
Hearsay-
Unavailable witness exceptions
-Statement of Personal or Family History
Definition |
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Definition
| A statement concerning the declarant's own birth, adoption, Marriage, Divorce, etc. |
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Term
Hearsay-
Unavailable witness exceptions
Declarant Unavailable due to wrongdoing |
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Definition
A statement that is offered against a party who is wrongfully responsible for declarant's unavailability
-Action does not have to be criminal (world cruise) |
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