Evidence - Fre Hearsay & Privileges

Front 1

Hearsay (definition)

Back 1

Out of court statement offered to prove the TRUTH of the matter asserted in that STATEMENT (= verbal/written expression of a person or conduct by a person intended to communicate - "assertive conduct")
- May be hearsay even if out-of-court declarant is now in court witness.

Front 2

Hearsay Exemptions = NON-HEARSAY (7)

Back 2

1. Admission of party opponent (vicarious party, adoptive, co-conspirator)
2. Prior Inconsistent Statement (given under oath at trial/depo)
3. Prior Consistent Statement (offered to rebut charge of recent fabrication/improper influence/motive)
4. Statement of ID (of a person made after perceiving the person)
5. EFFECT ON LISTENER
6. Speaker's Knowledge of Facts Stated
7. State of Mind (Circum evid to show listener had Knowledge, Intent, Attitude, or Belief)

Front 3

Admission of Party Opponent
(non-hearsay)

Back 3

1. STATEMENT BY A PARTY,
2.that amounts to a PRIOR ACKNOWLEDGMENT
3. one of the relevant facts.
(doesn't have to be against interest when made; not subject to PK requirement or opinion rule)

Front 4

Vicarious Party Admissions
(non-hearsay)

Back 4

Statement by
1. authorized spokesperson of party or
2. employee of party concerning matter within scope of employment and made DURING employment relationship.
- Authorization can be expressed or implied

Front 5

Adoptive Admissions and Co-Conspirator Statement
(both non-hearsay)
(types of vicarious party admissions)

Back 5

Adoptive Admissions: Non-party makes statement and party indicates belief in its truth.
Co-Conspirator Statement: made during course and in furtherance of conspiracy- treated as vicarious admission by every member of conspiracy.

Front 6

Hearsay Exceptions
- Declarant's availability is immaterial (9 total, 4 types of statements)

Back 6

1. Excited Utterance
2. Present Sense Impression
3. State of Mind or Present State of Physical or Mental Condition
4. For Medical Diagnosis

Front 7

Hearsay Exceptions
- Declarant's availability is immaterial (5 types of DOCUMENTS- on next card)

Back 7

1. Past Recollection Recorded
2. Business Records
3. Public Records
4. Prior Convictions
5. Ancient Docs/Learned Treatises/Federal Catch-all

Front 8

Excited Utterance
(Hearsay Exception, declarant's availability immaterial)

Back 8

Relate to startling event made while declarant under stress/excitement caused by event

Front 9

Present Sense Impression
(Hearsay Exception, declarant's availability immaterial)

Back 9

Describing event/condition while perceiving event/immediately thereafter

Front 10

State of Mind or Present State of Physical or Mental Condition
(Hearsay Exception, declarant's availability immaterial)

Back 10

Must be then existing feeling, memory, or belief;
- includes declarations of INTENT offered to show SUBSEQUENT ACTS WERE CARRIED OUT by declarant

Front 11

Statement Made For Medical Diagnosis
(Hearsay Exception, declarant's availability immaterial)

Back 11

Describe past/present symptoms made for purpose of treatment/diagnosis

Front 12

Past Recollection Recorded
(hearsay exception for documents, declarant's availability immaterial)

Back 12

4 elements: 1) W has firsthand knowledge of event; 2) Statement made by or adopted by W when fresh in mind; 3) W lacks present recollection; 4) W able to verify accuracy of written recollection
- Result: Can be READ into evidence, but NOT as an Exhibit unless offered by adverse party.
- Even if W doesn’t write/record it himself, still admissible if can swear to the correctness

Front 13

Business Records
(hearsay exception for documents, declarant's availability immaterial)

Back 13

(must produce docs, cannot be testimonial)
5 elements: 1) record of events, conditions, opinions or diagnoses, 2) kept in reg. course of biz, 3) made at or near time of matters described, 4) by person with knowledge of the facts in the record, 5) in a regular biz practice of making record

Front 14

Public Records
(hearsay exception for documents, declarant's availability immaterial)

Back 14

(proponent must produce docs)
Admissible if 1) describes activity of office, 2) describes matters observed pursuant to duty to report, or 3) contains factual findings resulting from police investigation, unless untrustworthy.
- Crim Case: P cannot use 2) or 3)
- Civil Case: Can use police report.

Front 15

Prior Convictions
(hearsay exception for documents, declarant's availability immaterial)

Back 15

Felonies to prove any fact essential to judgment against D; but when offered by P for purposes other than impeachment, judgments against ppl other than the accused are inadmissible.

Front 16

Hearsay Exceptions
- Declarant must be UNAVAILABLE (3)

Back 16

1. Former Testimony
2. Statement Against Interest
3. Dying Declaration

Front 17

Former Testimony
(exception to hearsay, declarant must be unavailable)

Back 17

Testimony given by a person in earlier proceeding or deposition is admissible if:
1. party against whom testimony is now offered had, during earlier proceeding, an opportunity to examine that person and the motive to conduct that exam was similar to motive the party has now, OR
2. in a civil case

Front 18

Statement Against Interest
(hearsay exception, declarant must be unavailable)

Back 18

At time it was made, statement was against financial, pecuniary, or proprietary interest of declarant (subj declarant to criminal liability)
- If statement offered to exculpate accused, mut be corroborating evidence to admit statement.

Front 19

Dying Declaration
(hearsay exception, declarant must be unavailable)

Back 19

Civil & Homicide actions only: By one believing he is about to die & describing cause or circs leading to impending death admissible.

Front 20

Hearsay Catch-All Exception

Back 20

Statement More Probative on point than any other evidence: 1) Circumstantial guarantees of trustworthiness (not merely a notary but lack of bias, etc)

Front 21

Confrontation Clause

Back 21

a. Right to confront accusers. Some hearsay against D may not be permitted. Excludes TESTIMONIAL evidence against accused w/o right to cross-examine (prior or present).
b. If police are furthering a case = testimonial.
c. If responding to emergency = NOT testimonial.

Front 22

5th A. Privilege Against Self Incrimination

Back 22

W may refuse to answer any Q if its answer might tend to incriminate him in civil/crim cases. Testifying incriminating if ties W to commission of a crime or would furnish a lead to evidence tying W to a crime.

Front 23

Privileges - FRE give cts power to establish privileges (4)

Back 23

1. Attorney-Client Privilege
2. Spousal
3. Psychotherapist-Patient
4. Social Worker-Client
(In civil actions under diversity jurisdiction, STATE priviliges apply in fed ct)

Front 24

Attorney-Client Privilege

Back 24

- Communication betw atty & client or THEIR REPRESENTATIVES (i.e. atty hires dr, paralegal, client's ee assigned to case)
- INTENDED BY CLIENT TO BE CONFIDENTIAL
- made to FACILITATE PROF. LEGAL SERVICES (not casual)
= privileged in all civil & crim proceedings UNLESS WAIVED by client
- priv survives past death

Front 25

Attorney-Client Privilege
- Corporation Employee to Corporation's Attorney privileged?

Back 25

Privilege applies to communications from employees/agents if the corporation authorized the employee/agent to communicate to the lawyer.

Front 26

Attorney-Client Privilege
- Exceptions

Back 26

Privilege does not apply where:
1. Professional services sought to FURTHER what client knew or should have known to be a CRIME or FRAUD, or
2. Communication relates to alleged breach of a duty betw atty & client, or
3. 2 or more parties consult an atty on a matter of common interest & the communication is offered by one of these parties against another.

Front 27

Psychotherapist-Patient & Social Worker-Client Privileges

Back 27

Communication betw psychotherapist & patient, or licensed social worker & client, INTENDED BY patient/client to be confid. & made to facilitate rendition of professional psychological services = privileged in all civil & crim proceedings unless waived by patient/client.
- Same basic rules as atty-client priv.

Front 28

Doctor-Patient Privilege (none under FRE but most states, incl CA, adopted privilege)
- Definition:
- (Weak privilege- many exceptions)

Back 28

- A patient has a privilege to prevent disclosure of info CONFIDENTIALLY conveyed to a physician
- Where patient conveyed the info for the PURPOSE OF OBTAINING diagnosis or treatment
- & the info was PERTINENT TO DIAGNOSIS or TREATMENT.

Front 29

Doctor-Patient Privilege
- Exceptions

Back 29

Privilege does not apply
1. Where patient puts his physical condition in issue, as in a personal injury suit,
2. where physician's services sought to aid in crime/fraud or to escape capture after crime/tort,
3. in case alleging breach of duty arising out of physician-patient relationship, as in malpractice action.
4. Some states, incl CA, do not recognize priv in criminal cases.

Front 30

Spousal Privileges (2)

Back 30

1. Spousal Testimonial Priv: Permits witness to refuse to testify against his/her spouse as to anything. Applies only in criminal cases
2. Spousal Confidential Communication Priv: Protects confidential spousal communications during marriage (statement remains protected even after divorced). Applies both crim & civil cases.