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42 Cards in this Set

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Hearsay

What is Hearsay?
an out of court statement offered for the purpose of establishing the truth of the matter asserted in the statement
Hearsay

what is the reason for exclusing hearsay?
that the adverse party was denied the opportunity to cross-examine the declarant
Hearsay

What are the 3 questions to ask regarding Hearsay?
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 truth?

if yes to all questions, then hearsay
Hearsay: cast of characters

two possible scenarios relating to declarant (makes the out of court statement) and witness
1. scenario one: (1) declarant makes the out of court statement, (2) witness (reports the out of court statement)

1. alternative scenario: (1) declarant writes the out of court S, (2)writing produced in court
Hearsay

What is the rationale for exlcuding hearsay?
It denies the opponent the opportunity to cross-examine the person whose perception, memory and sincerity are in issue

hearsay is inherently unreliable and regarded with suspicion
Hearsay-Non-Hearsay situations

verbal acts or legally operative facts
words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission
Hearsay-Non Hearsay situations

Out of court statement not offered for its truth, but to show its effect on the person who heard or read the statement
to show notice to, or the good faith of, or reason for action or inaction by the person who heard or read the out of court statement
Hearsay-Non-Hearsay situations

Out of court statement offered not for its truth but as circumstantial evidence of declarant's relevant state of mind
W testifies that on the day before the killing, he heard D say "I am the Pope."
Hearsay: Prior statements of the W

what does a witness have to be for the statement to be a prior statement?
The declarant and the witness.
Hearsay-Prior statements of the W

Can a W's own statement be hearsay?
Yes, and will only come in if it fits one of the exceptions
Hearsay: Prior statements of the W

What prior statements of the W are not hearsay?
1. Prior inconsistent statements: given under oath at a trial, hearing, other proceeding or depo

2. Prior consistent statements: to rebut charge of recent fabrication or improper influence or motive

3. Prior statement of identification made by a W
Hearsay Exceptions:Admission of a party

what is the definition?
definition of a party offered against the party
Hearsay Exceptions: Admission of party

what is the rational for this rule
No special reliability issues because the declarant said it
Hearsay Exceptions: Admission of party

does the admission have to be against D's interest at time of making the statement?
No
Hearsay Exceptions:Admission of party

Does the admission have to be based on personal knowledge?
No

(when informed that neighbor was bitten by a dog, D states, "it must have been my dog that did it")
Hearsay Exceptions-Admission of party

Can it be in the form of a legal conclusion
Yes

"I was grossly negligent and I deserve to lose suit you'll bring to the tune of $100,000"
Hearsay Exceptions: Admission of party

according to the FRE, are admissions an exception to the Hearsay rule?
No, its considered to be non-hearsay
Hearsay Exceptions: Admissions

Does vicarious admissions of emploees apply?
traditionally no, but now Statement by party's agent, servant, or employee concerning a matter within the scope of employment, made during the existence of the relationship is admissible against the employer as a vicarious admission
Hearsay Exceptions: Former Testimony

what is former testimony?
testimony given in earlier proceeding by person now unavailable is admissible if (1)party against whom testimony is offered had, during earlier proceeding, OPPORTUNITY to examine that person and MOTIVE to conduct exam similar to the motive it has now...or (see next card)
Hearsay Exceptions: Former Testimony

What is former testimony? (card 2)
in civil case, party against whom testimony is offered was in privity with a party (a predecessor in interest) with a party to earlier proceedings who had opportunity and similar motive to examine
Hearsay Exceptions:Former Testimony


requirements for a meaningful opportunity for a cross when the W gave live testimony
1. same issue and motive

2. some identity of party. party against whom offfered must have been a party in first proceeding or in civil case, at least in privity with party in first proceeding
Hearsay Exceptions: Former testimony

requirements for unavailability
declarant is unavailable if court exempts d from testifying due to privilege, d refuses to testify despite court order, d's memory fails, d is dead or sick, prononent of S cannpt procure d's attenfance by process or other reasonable means
Hearsay Exceptions: Statement against interest

what is a statement against interest?
a declaration of a person, now UNAVAILABLE as a W against that persons' pecuniary, proprietary or penal interest (or which would tend to defeat a claim by declarant) at the time the statement was made
Hearsay Exceptions: S against Interest

what is the limitation?
a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless "corroborating circumstances clearly indicate the trustworthiness of the statement"
Hearsay Exceptions: Former Testimony

how do you distinguish a statement against interest from admission of a party?
1.SAI has to be against interest at the time it is made

2. SAG can be made by any person(admission has to be made by a party)

3. SAG must have personal knowledge that its against interest

4. requires unavailability

5. admission of a party doesn't always qualify as a SAG
Hearsay Exceptions: Statement against interest

example of when not a party admission
H and D collide. H confides to Neighbor that "It was all my fault." H dies as a result of his injuries. H's next of kin brings a wrongful death action against D. D calls Neighbor to testify that H said "All my fault." Admissible? Under what exception?
Yes – it's not an admission, so it's hearsay, but let it in b/c it's a statement against interest
Hearsay Exceptions: Dying declaration

what is a dying declaration?
in a prosecution for homicide or in a civil action, a S made by d while believing that the d's death was imminent
Hearsay Exception: Dying Declaration

what are the requirements?
1. state of mind-made under an impending sense of death

2. d need not die, but must be unavailable at time of trial
Hearsay Exceptions: Dying declaration

What kind of cases are dying declarations admissible?
used to only be homicide, but now civil as well
Hearsay Exceptions: Dying declarations

what is the content limitation?
must actually concern cause or circumstances of impending death
Hearsay Exceptions: state of mind exceptions

name the exceptions
1. declaration of existing state of mind in issue
2. declaration of existing intent to do something in the future offered to infer that the intended act was done
3. excited utterance
4. Present state impression
5. declaration of present pain, suffering, or physical condition
6. declaration of past physical condition
Hearsay Exceptions: State of Mind

Declaration of existing state of mind in issue
ex: S is on trial for murder. Defense insanity. defense W testifies that on the eve of the killing, W heard spano say, "I believe I am the pope."

admissible
Hearsay Exceptions: state of mind

what is the commom thread between these 6 exceptions?
The common thread is that unavailability is NOT required and that the law regards prior statements as being at least as reliable as present in court testimony.
Hearsay Exceptions: State of Mind

declaration of existing intent to do something in the future offered to infer that the intended act was done
Decla announces "On Monday of next week I am going to meet with Spano" offered to prove that Decla did meet with Spano on Monday.

admissible
Hearsay Exceptions: state of mind

what is an excited utterance?
statement relating to startling event or condition is admissible when made while declarant was still under the stress of excitement caused by event or condition
Hearsay Exceptions:State of mind

what are the requirements for an Excited Utterance?
1. startling event
2. made under stress of excitement
3. concerns the facts of the starting event
Hearsay exceptions: State of Mind

what are some things to look for with Excited Utterances?
1. Nature of event has to be startling

2. time lapse and what is going on during time lapse (key question is whether the excited Utterance has been sworn off

3. language of excitement
Hearsay Exceptions: State of Mind

What is a Present Sense Impression?
a statement describing or explaining an event or condition made while d was perceiving the event or condition or immediately thereafter
Hearsay Exceptions: State of Mind

How do you distinquish Present Sense Impression from an Excited Utterance?
1. Unnecessary to have startling event or excitement

2. but must have almost precise contemporaneousness-no appreciable time lapse
Hearsay Exceptions: state of mind

What is Declaration of present pain, suffering or physical condition?
a declaration of then existing physical (or mental) condition is admissible to show the condition (G always complained about his back)
Hearsay Exceptions: State of Mind

what is a Declaration of Past Physical Condition?
statement made for purposes of diagnosis or treatment and describing medical history or past symptoms of the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment
Hearsay Exceptions: state of mind

what are the requirements for a Declaration of Past Physical Condition.
1. made to medical personnel

2. pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony)