Evidence-Hearsay

Front 1

Hearsay

What is Hearsay?

Back 1

an out of court statement offered for the purpose of establishing the truth of the matter asserted in the statement

Front 2

Hearsay

what is the reason for exclusing hearsay?

Back 2

that the adverse party was denied the opportunity to cross-examine the declarant

Front 3

Hearsay

What are the 3 questions to ask regarding Hearsay?

Back 3

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

Front 4

Hearsay: cast of characters

two possible scenarios relating to declarant (makes the out of court statement) and witness

Back 4

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

Front 5

Hearsay

What is the rationale for exlcuding hearsay?

Back 5

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

Front 6

Hearsay-Non-Hearsay situations

verbal acts or legally operative facts

Back 6

words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission

Front 7

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

Back 7

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

Front 8

Hearsay-Non-Hearsay situations

Out of court statement offered not for its truth but as circumstantial evidence of declarant's relevant state of mind

Back 8

W testifies that on the day before the killing, he heard D say "I am the Pope."

Front 9

Hearsay: Prior statements of the W

what does a witness have to be for the statement to be a prior statement?

Back 9

The declarant and the witness.

Front 10

Hearsay-Prior statements of the W

Can a W's own statement be hearsay?

Back 10

Yes, and will only come in if it fits one of the exceptions

Front 11

Hearsay: Prior statements of the W

What prior statements of the W are not hearsay?

Back 11

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

Front 12

Hearsay Exceptions:Admission of a party

what is the definition?

Back 12

definition of a party offered against the party

Front 13

Hearsay Exceptions: Admission of party

what is the rational for this rule

Back 13

No special reliability issues because the declarant said it

Front 14

Hearsay Exceptions: Admission of party

does the admission have to be against D's interest at time of making the statement?

Back 14

No

Front 15

Hearsay Exceptions:Admission of party

Does the admission have to be based on personal knowledge?

Back 15

No

(when informed that neighbor was bitten by a dog, D states, "it must have been my dog that did it")

Front 16

Hearsay Exceptions-Admission of party

Can it be in the form of a legal conclusion

Back 16

Yes

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

Front 17

Hearsay Exceptions: Admission of party

according to the FRE, are admissions an exception to the Hearsay rule?

Back 17

No, its considered to be non-hearsay

Front 18

Hearsay Exceptions: Admissions

Does vicarious admissions of emploees apply?

Back 18

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

Front 19

Hearsay Exceptions: Former Testimony

what is former testimony?

Back 19

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)

Front 20

Hearsay Exceptions: Former Testimony

What is former testimony? (card 2)

Back 20

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

Front 21

Hearsay Exceptions:Former Testimony


requirements for a meaningful opportunity for a cross when the W gave live testimony

Back 21

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

Front 22

Hearsay Exceptions: Former testimony

requirements for unavailability

Back 22

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

Front 23

Hearsay Exceptions: Statement against interest

what is a statement against interest?

Back 23

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

Front 24

Hearsay Exceptions: S against Interest

what is the limitation?

Back 24

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"

Front 25

Hearsay Exceptions: Former Testimony

how do you distinguish a statement against interest from admission of a party?

Back 25

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

Front 26

Hearsay Exceptions: Statement against interest

example of when not a party admission

Back 26

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

Front 27

Hearsay Exceptions: Dying declaration

what is a dying declaration?

Back 27

in a prosecution for homicide or in a civil action, a S made by d while believing that the d's death was imminent

Front 28

Hearsay Exception: Dying Declaration

what are the requirements?

Back 28

1. state of mind-made under an impending sense of death

2. d need not die, but must be unavailable at time of trial

Front 29

Hearsay Exceptions: Dying declaration

What kind of cases are dying declarations admissible?

Back 29

used to only be homicide, but now civil as well

Front 30

Hearsay Exceptions: Dying declarations

what is the content limitation?

Back 30

must actually concern cause or circumstances of impending death

Front 31

Hearsay Exceptions: state of mind exceptions

name the exceptions

Back 31

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

Front 32

Hearsay Exceptions: State of Mind

Declaration of existing state of mind in issue

Back 32

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

Front 33

Hearsay Exceptions: state of mind

what is the commom thread between these 6 exceptions?

Back 33

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.

Front 34

Hearsay Exceptions: State of Mind

declaration of existing intent to do something in the future offered to infer that the intended act was done

Back 34

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

Front 35

Hearsay Exceptions: state of mind

what is an excited utterance?

Back 35

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

Front 36

Hearsay Exceptions:State of mind

what are the requirements for an Excited Utterance?

Back 36

1. startling event
2. made under stress of excitement
3. concerns the facts of the starting event

Front 37

Hearsay exceptions: State of Mind

what are some things to look for with Excited Utterances?

Back 37

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

Front 38

Hearsay Exceptions: State of Mind

What is a Present Sense Impression?

Back 38

a statement describing or explaining an event or condition made while d was perceiving the event or condition or immediately thereafter

Front 39

Hearsay Exceptions: State of Mind

How do you distinquish Present Sense Impression from an Excited Utterance?

Back 39

1. Unnecessary to have startling event or excitement

2. but must have almost precise contemporaneousness-no appreciable time lapse

Front 40

Hearsay Exceptions: state of mind

What is Declaration of present pain, suffering or physical condition?

Back 40

a declaration of then existing physical (or mental) condition is admissible to show the condition (G always complained about his back)

Front 41

Hearsay Exceptions: State of Mind

what is a Declaration of Past Physical Condition?

Back 41

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

Front 42

Hearsay Exceptions: state of mind

what are the requirements for a Declaration of Past Physical Condition.

Back 42

1. made to medical personnel

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