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94 Cards in this Set

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FRE 801(c) Hearsay.
(c) "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
3 steps to determine if something is hearsay
1.Is there an assertion?

2.Was it made at some other point than in front of the jury?

3.Is it being offered to prove the truth of the matter asserted?
FRE 801(d)(1) Prior statement by witness.
The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
Can a prior inconsistent statement come in if it was not given under oath?
Yes, under FRE 613, it can come in IF ONLY TO IMPEACH THE WITNESS
Are prior inconsisitent statements offered to impeach offered for the truth of the matter asserted?
No, they come in only to show impeachment
Can a person impeaching through prior inconsistent statements under FRE 613 use extrinsic evidence to show the statement?
Yes, unlike specific instances of untruthfulness,extrinsic evidence can be used, but it is subject to a 403 balancing test. The Court must determine that the statements are actually inconsistent
Prior Consistent statements-
These are admissible to rebut a charge of recent fabrication or story change
What is the requirement for admission of prior consistent statements to rebut a charge of recent fabrication?
They must have been made prior to the time when the m otive to lie arose
Does a statement of ID come in for the truth of the matter asserted?
Yes
FRE 801(d)(2)(b) adopted admission
a statement of which the party has manifested an adoption or belief in its truth,
4 step analysis for adopted admission by silence
1.Statement must be heard and understood2.Party must be at liberty to respond3.Circumstance must have called for a response4.Party failed to respond-
Silence/adopted admission and Miranda
1.Pre arrest-pre miranda- Courts are more likely to find that a ∆’s failure to try and rebut an accusation as an adopted admission2.Post arrest-pre-Miranda- This is arguably getting closer to the liberty to respond prong since most people know that you have the right to remain silent3.Post-Miranda- SOA on whether this will come in as an adopted admission-
5 ways to get to a statement by a party opponent
1. Statement by opponent2. Adopted statement3. Statement by a person authorized to make a statement4. Statement by a party's agent concerning a matter within the scope of the agency or employment and made during the relationship5.Statement of a co-conspirator
FRE 801(d)(2)(d)
D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or
What must the statement be in order to be a statement by a co-conspirator
Statement must be made during the course of the COn and in furtherance
Steps to establish that a statement is one of a co-conspirator
1.Show that there was a con2.Show that the ∆ and the declarant were part of the con3.Show that the statement was made in furtherance of the con
What can the court look to in determining that the statement was on by a co-conspirator?
They can look at all evidence, but there must be other evidence besides the contested statement
FRE 802 Hearsay Rule
Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.
FRE 803
Hearsay Exceptions; Availability of Declarant Immaterial-
FRE 803(1) Present sense impression
a.Statement must describe/explain event/conditionb.Must be made while/immediately after declarant perceives event or experiences conditionc.Must be personal knowledge
FRE 803(2) Excited utterance.
(2) A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Four requirements for an excited utterance
a.Must be a startling event/conditionb.Statement must relate to the startling event or conditionc.Statement must be spoken while still under the stress of excitement that is caused by the startling eventi.Longer period of time that has passed the less likely to be an EUii.Although the severity of the event may affect the length of time that make it startlingd.Declarant has to have personal knowledge as to whatever they are saying
FRE 803(3) iii. Then existing mental, emotional, or physical condition.
(3) A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
Mutual Insurance v Hillmon-
Wife’s husband is dead and the insurance company says that the body was someone elses. Walters writes a letter saying that he is going to travel with Hillmon. a.Court calls it a present sense impression but it actually reflects some past events. That he met Hillmon and agreed to travel with him.b.Could get in that he was going to travel out west but this is not that relevant without showing that he was traveling with Hillmon
FRe 803(4) Statements for purposes of medical diagnosis or treatment.
(4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
FRE 803(5) Recorded recollection.
(5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
What must you show to get in a recorded recollection
a.The witness had firsthand knowledge of the eventb.The written statement must be a memorandum made at or near the time of the event while the witness had a clear and accurate memory of itc.The witness must lack a present recollection of the eventd.The witness must vouch for the accuracy of the written memorandum
What do you get if the court allows a recorded recollection into the record?
You get the witness reading the report into the record
FRE 803(6) Records of regularly conducted activity
(6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness
FRE 803(7) Absence of entry in records in accordance with
(6)- Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
Fre 803(8) Records, reports, statements, or data compilations, in any form, of public offices or agencies
setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
IS it ok if the Public record includes factual findings?
YEs, but the judge must assess the trustworthiness of the report
Four part test to decide if a public report is trustworthy?
i.Timeliness of the reportii.Investigator’s skill/expertiseiii.Whether a hearing was heldiv.Possible bias that would result if the reports were prepared with an eye towards litigation
FRE 804 Hearsay exceptions: Declarant unavailable
"Unavailability as a witness" includes situations in which the declarant—(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or(3) testifies to a lack of memory of the subject matter of the declarant's statement; or(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.In civil cases make sure that you document how you tried to get them into court
Exception to the definition of unavailable
6. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement
FRE 804(b)(1) Former testimony.
Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination
FRE 804(b)(2) Statement under belief of impending death.
In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
Two part analysis for statement of impenging death
i.There must be a settled hopeless expectationii.IS it the expectation of impending death
Shepard v US
Women says tells nurse that her husband poisoned her.i. Court says not a dying declaration- Women was actually getting better at the time of the statementii. Also there is no personal knowledge- Even with HS the declarant has to have personal knowledge-
What kind of statements can come in under the statements under belief of impending death?
They must relate to the cause or circumstances of what the declarant believed to be impending death
FRE 804(b)(3) Statement against interest.
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. 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.
Williamson v US-
- Court rejects an all or nothing rule for statEments against interest. Pulls the statement apart to only include those statements that were really against interest
FRE 804(b)(6) Forfeiture by wrongdoing.
A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
FRE 806 Attacking and Supporting Credibility of Declarant-
Attacking and Supporting Credibility of Declarant-When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.
Ohio v Roberts
1.The Declarant must be unavailable2.Statement must bear an adequate indicia of reliability1.Court would usually find this by showing that the information fits into a normal hearsay exception3.Analysis began to turn on whether the HS exception was firmly rooted1.Court found that all of them were except1.Statements against interest2.Residual exception
US v Inadi-
Court held that the Roberts rule of necessity (i.e. that the declarant was unavailable does not apply to co-conspirators statements1.Pros just needs to show that the statement was made in furtherance of the conspiracy
Maryland v. Craig
Court allows a kid to testify behind a screen-1.Important that the court made an individualized finding that not allowing the kid to be behind the screen would cause the kid to suffer harm2.Scalia dissent- This violates the basic tenet of the CC b/c it does not allow the D to confront the person making the accusations face to face
Definition of non-testimonial statements
1. Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency
Definition of testimonial statements
2. They are testimonial when there is no on-going emergency and that the primary purpose is to establish or prove past events potentially relevant to later prosecution
Davis v Wa
Women calls 911 while she is being beaten by her boyfriend. 1.Court says that the part of the 911 call where the boyfriend is still there is non-testimonial1.Was offered voluntarily, 911 operator is not a cop, women was seeking help not trying to establish facts for later trial2.Once the attacker leaves and the women continues talking then the statements begin to get testimonial .1.Emergency is no longer ongoing-
Hammon v Ind-
- Police come to a disturbance call. Man/woman are separated and the police are talking to them in separate rooms.1.The wife’s statements here are testimonial 1.Emergency was no longer on-going, police were asking questions primarily to determine what was going on
What happens once a statement is deemed testimonial?
1.If the declarant testifies in court there is no CC prnoblem2.If there was a prior opportunity to cross, declarant was under oath, and they are now unavailable then there is no CC problem 3.Dying declarations are probably ok4.No CC problem if not being offered for the truth of the matter asserted5.IF the declarant is unavailable b/c of actions taken by the ∆ then the CC is not implicated-
What happens if the court deems a statement to be non-testimonial?
1.Unclear whether Ohio v Roberts would still apply2.Definitely make the Ohio v Roberts argument if the HS exception is not firmly rooted1.Statements against interest/Residual exception
What are some common non-hearsay examples?
1. Nonassertive Conduct 2. Statement Not Offered for Its Truth. .a. Independent Legal Significance. .b. Effect on Listener. .c. Circumstantial Evidence of Declarant’s state of mind
What are the hearsay exemptions under federal law?
1.) Prior Inconsistent Statement Made Under Oath. .a. Inconsistent. .b. Given Under Oath**CA** is an exception, and does NOT require OATH 2.) Prior Consistent Statement Offered to Rebut of Lying or Exaggerating. .a. Consistent. .b. Statement made before motive to lie arose 3.) Prior Statement of Witness Identification 4.) Admission if Party-Opponent - Requirements on separate card
What are the types of non-hearsay admissions?
1.) Express Admission 2.) Adoptive Admission 3.) Vicarious NOTE: Exemption under FED, EXCEPTION in **CA**
What is required for an express admission?
Think More like “emission” anything that they say- Personal Knowledge is not required- Includes any Guilty Pleas for any type of offense
What is required for an adoptive admission?
1) Expressly or impliedly adopting the statement of another; OR2) Silence. .a) Heard it;. .b) Capable of denying; AND. .c) A reasonable person would have deniedRemember: Personal Knowledge is not required.
What is required for a vicarious admission?
1) Principle-Agent. .i. Authorized - Express or implied authorization. .ii. Within scope of agency while employed**CA** Only within scope if employer is liable because of employee's act 2) Co-Conspirators. .i. Made in furtherance of conspiracy. .ii. Testimonial only admissible if can cross examine (CC issue)
What is required for the former testimony exception?
1) Unavailable 2) Prior testimony at a hearing or depostion under oath 3) Party offered against had ability to examine. .a) Criminal – Same Party. .b) Civil – Same party or one in privity . . . - **CA** No privity only similar motives. . . - **CA** Or Offered against party who placed in evidence in prior case. .c) Former action involved same subject matter, similar motives. .d) Opportunity to develop the declarant’s testimony
What is required for the declaration against interest exception?
1) UNAVAILABLEa. Against Financial, Criminal Interests, when made. .i) **CA** includes Social Interests toob. Exculpatory statements require corroboration. .i)**CA** no corroboration required
What is required for the dying declaration exception?
1)UNAVAILABLEa. Civil – Any / Criminal – Homicide only . .i) **CA** Any Caseb. Believed death was imminent . .i) **CA** must diec. Statement regarding cause or circumstances
What is required for the excited utterance exception?
1) Regarding a startling event 2) while under the stress of the event
What is required for the present sense impression exception?
1) Concurrent w/ perception**CA** Regarding the declarants actions only
What is required for the present physical or mental condition exception?
Admissible to show the condition or state of mind.Not admissible to prove the fact remembered or perceived
What is required to admit a past or present mental condition made for medical diagnosis or treatment?
1) Made for the purpose of medical diagnosis or treatment. .a) Doesn’t require that it be to a doctor. 2) Concerning past or present mental or physical condition**CA** this only applies if under 12 and regarding child abuse.
What is required to admit a past or present mental condition in **CA**?
1) Is at issue in the case 2) Declarant is unavailable NOTE: Can be made to anyone not just doctor.
What is required for the business records exception?
1) Record of events, conditions, opinions, or diagnoses. .a) Only simple Diagnosis & Opinion 2) Kept in the course of regularly conducted business activity 3) Made at or near time of matters described 4) By person with knowledge of the facts in that record 5) Regular practice to make such a record
What is required for the public records exception?
Admissible if within ONE of the following: 1) Record describes activities of the office; 2) Record describes matter observed pursuant to duty imposed by law; OR 3) Record contains factual findings resulting from investigation made pursuant to authority granted by law. 2+3 Can be used in Civil cases ONLY**CA** Police report ok in criminal, but likely excluded by 352 as untrustworthy
When can a judgment of a previous conviction be admitted?
Can admit the document into evidence.1) Must be a Felony to prove essential fact. .a) Can only use conviction of OTHERS for IMPEACHMENT cannot be admitted.**CA** Civil only**CA** But Prop 8 allows in a criminal case to impeach a witness using a criminal conviction if it involves moral turpitude.
What are the requirements of the confrontation clause?
Applies when:1) Criminal Case 2) Out of Court StatementExcludes: 1) Statements which are testimonial. .a) Statements made to police to aid in investigation2) Where witness is unavailable 3) No chance to cross examine
What must be authenticated?And what is the standard?
All non-testimonial evidence.Sufficient to sustain a finding that it is what it claims to be.
What is the best evidence rule and when/how does it apply?
Original Document RuleApplies only where evidence offered to prove the contents of a writing.- Case turns on contents- Knowledge obtained from writing- Exception for voluminous documentsItems is admissible to prove a writing:1) Originals2) Duplicate - produced by same impression that produced original. .a) EXCEPTION: where there is a genuine question as to the authenticity.3) Testimony allowed if document is lost. .a) UNLESS: Proponent caused the loss
What are the exceptions to Proposition 8?
1) Privilege 2) Hearsay 3) The rule keeping defendant's door closed for character 4) Best Evidence rule
What is the analysis under Prop 8?
1) Raise all objections under CEC 2) Then for each mention if prop 8 overrules 3) Balance under 352
"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

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 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 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 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)"