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39 Cards in this Set

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What is hearsay
FRE 801(c)-- is " a statement other than one made by teh declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
What are the three main elements of hearsay
1: A statement ('assertive conduct' will also suffice)
2. made out of court (other than one made by the declarant while testifying
3. Offered to prove the truth of facts asserted in the statement ('offered to the truth of the matter asserted' according to hashi)
Why hearsay excluded?
it's unreliable. no way to test the declarant's memory, perception, sincerity or ability to communicate. deprives opponent of cross-examination.
What are the 801(c) hearsay exclusions that are allowed because they don't offer to prove the truth of the assertions, but that the statement was made
1. Verbal acts (eg- words of gift, contract, or defmation
2. Statements to show the effect on the mind of the hearer or listerner (eg notice, knowledge, motive, or good faith)
3. Circumstantial evidence of a speaker's state of mind (eg 'my drink is poisoned' to show a belief tha tthe drink was poisoned, not that the drink actually was poisoned; and
4. Prior inconsistent statements, if used to impeach or rehabilitate (under both common law and FRE)
What are the exclusions to hearsay via FRE 801(d)(1) for policy reasons?
1. Admissions by a party-opponent (an exclusion under 801(d)(23); and
2. Prior Statements made by a presently testifying witness (one who can be cross-examined)
A: prior inconsistent statements (made under oath, subject to penalty of perjury)
B: prior consisent statements - to rebut a charge of recent fabrication or bias
c0 prior identifications of a person, made after perceiving him
What admissions of party opponent under FRE 801(d)(2)(A-E) are excluded from the definition of hearsay
1. The party's own statement, whether spoken, written, or made nonverbally (eg nodding, poiting, gesturing)
2. Adoptive Admission- ie, a statement of which the party has manifested an adoption or belief in its truth (eg- B's testimony, used against A, that in respose to C's statement "A and I pulled off that robbery!" A smiled and nodded")

3. A statement by a person authorized by the party to make a statement concerning the subject (eg- statement by a spokersperson)
4. A statement by the party's agent or servant concerning a matter within the scope of, and during, the agency or employment, whether or not the speaker was authorized to make such a statement (an employee's admission at an accident scene while on company business0
5. A statement by a party's co-conspirator during teh course of, and in furthernace of, the conspiracy
In order to qualify as a statement by a party-opponent, must a statement have been against interest when it was made?
no, doesn't matter than an admission was self-serving at the time it was made; it need only be unfavorable to the declarant at the time of trial... note this is differnt from 'declaration against interest' when the declarant is unavailable.
What are the three factors that must be present for silence to be considered admission by a declarant
1. the declarant heard the accusatory statement
2. the declarant was capable of denying the statment; and
3. under the same circumstances, a reasonable person would have denied the statement if it were not true
Can non-assertive conduct be considered hearsay?
no--- hearsay must involve a statement or written or oral assertion.

(eg-- if a captain is sailing a ship, he's not asserting that the ship is safe to sail. so saying that he sailed the ship, thus the capt must've thought it was safe, is not hearsay)
If W says that she heard D say during a bank robbery "Up against the wall!!!" is that hearsay?
NO--- commands, like questions, are not offered for the truth of the matter asserted and therefore are not hearsay.
What are the three kinds of prior statements of a presently testifying witness which aren't considered hearsay under the FRE
FRE 801(d) says
1. Prior Inconsistent statements given while testifying under oath (under a penalty of perjury, at a prior proceeding or in a deposition
2. prior consistent statements offered to rebut an express or implied charge of improper motive/influence or recent fabrication
3. statements of prior identifiation of a person made after perceiving the person.
What are the major hearsay EXCEPTIONS under 803 (declarant available)
1. Business Records
2. Excited Utterances
2. Ancient Documents
3. Medical treatment or diagnosis
4. Present Sense impressions
5. Recorded recollections
6 Offical (public) records
7. Market reports
8. present physical or mental state
9. treatises
What are the major hearsay EXCEPTIONS under 804 (declarant unavailable)
1. Declarations against interest.
2. Dying declarations
3. Former Testimony
4. history or pedigree of family.
Under what circumstances will declarant of an out-of-court statement be considered 'unavailable' to testify under the FRE
when the witness is:
1. exempted by a ruling of the court on the ground of a privilege OR
2. Refuses to testify despite an order of the court to do so; or
3. Testifies to LACK OF MEMORY of the subject mater; or
4. is unable to be present or to testify at the hearing because of death, physical or mental illness, or infirmity
5. is absent from the hearing, and the proponent of a statement has been unable to procure the declarant by process or other reasonable means.
who decides whether the declarant is available or not?
Judge. 104(a) not the jury.
How does the residual exception of FRE 803(24)(where Dec can testify and FRE 804(b)(5) (where dec unavailable) work to to get something in as an exception even though it's not in the FRE
1. the evidence must be shown to have circumstantial guarantees of trustworthiness that are 'equivalent' to the guarantees inherent in the listed exceptions;
2. the evidence must be offered as evidence of a material fact.
3. the evidence must be more probative on teh point than other reasonably procurable evidence; and
the opponent must be notiifed before trial of the statement to be introduced, to give her an opportunity to prepare.
What are the requirements to let in 'former testimony' under the FRE
1. declarant must be unavailable
2. former testimony must have been made in a 'hearing (trial or prelim hearing) or in a deposition
3. the party against whom the statement is offered must have had an opportunity to examine the declarant in the prior proceeding AND
4. the party against whom the testimony is now offered must have had a SIMILAR MOTIVE TO DEVELOP THE TESTIMONY IN THE FORMER PROCEEDING by direct, cross, or redirect examination (so the issues at stake should be similar)
If someone made as a dying declaration 'my husband poisoned me' and then miraculously recovered, but at the trial, was unavailable, would that dying declaration be admissible?
YES---because dying declaration requires that the declarant is if the person had a miraculous recovery and was sitting in on the trial, then the dying declaration would not be admissible.
what are the elements of the 'declaration against interest' hearsay exception under FRE804(b)(3)
1. the declarant is unavailable as a witness.
2. the statement was against the declaran'ts pecuniary or proprietary interest, or tended to subject him to civil or criminal liability or to render invalid his claim against another, such that a REASONABLE PERSON IN the declarant's position would not have made the statemnet unless he believed it to be TRUE
3. The Declarant KNEW the statement was against his interest when made, ALTHOUGH the unfavorable consequences that he foresaw may not yet have happened, or might never happen.
4. IF the statement tends to expose the declarant to criminal liability but is offered to exculpate an accused in a crim trial, if there is corroborating circumstances clearly indicating trustworthiness, then it'sallowed.
What's the differnece between a 'declaration against interest' and an 'admission by a party-opponent'
Dec Against Interest---
1. made by either party or non party
2. Declarant must be unavailable
3. against declarant's interest when made.

1. made by a party
2. Declarant need not be unavailable
3. not necessarily agaisnt declarant's interest when made.
What are the elements of the 'present sense impression' exception to the hearsay rule, under the FRE
803(1)-- a statement of presnet sense impression is admissible if:
1. it describes or explains an event or condition, and
2. it's made while the declarant is perceiving the event or condition (or immediately thereafter)
Does someone have to be really excited or distraught to make a statement that qualifies as present sense impression?
no. saying something like 'the batter swingssss and it's a homerun' would work just fine
What is the policy for admitting present sense impression
because it's made contemporaneously with, or immediately after, an event there's
1. no risk that the declarant will suffer memory loss about the event or condition .
2. the immediacy of the statement reduces the time for, and therefore the risk of, INTENTIONAL deception by the witness.
What are the elemtns of the excited utterance exception to the hearsay rule 803(2)
1. the statment must related to an event or condition
2. the event or condition was startling, and
3. the statement was made while the declarant was STILL UNDER the STRESS of excitement caused by teh event or condition.
Statements of declarant's 'then existing state of mind' may be offered to prove two things. What are they?
1. direct evidence of declarant's state of mind itself, where state of mind is 'in issue' and material (eg, intent, attitude, mental feeling, pain etc or
2. Declarant's later CONDUCT (on the theory that declarant probably followed through with what she said she intended to do)
Under FRE 803(4) what types of statements qualify under the 'statements for medical diagnosis or treatment' hearsay exception
the statement must meet two conditions
1. must be 'made for purpose of medical diagnosis or treatment' and
2. it must describe 'medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofaras reasonably pertinent to diagnosis or treament'
Can a statement for medical diagnosis or treatment be made to a lay person?
No. MUST BE MADE TO MEDICAL PERSONNEL (includes nurses, people workin' at hospital)
Is there a difference in admissibility in 803(4) if the patient goes to the doctor to get treated for the medical problem, or if he goes to the doctor just to get diagnosed for later litigation
no difference. either way works.
What are the elements of the 'past recollection recorded', or 'recorded recollection' hearsay exceptions under the FRE
will qualify as recorded recollection if 5 conditions met

1. witness had first-hand knowledge of the events in the doc
2. the WITNESS MADE TEH DOCUMENT, or the document was ADOPTED by the W
3. the document was MADE WHEN FRESH IN MEMORY of the W
4. the W's RECOLLECTION OF THE FACTS IS IMPAIRED. (but if the doc revives the w's memory, enabligh him or her to testify without it, the doc is inadmissible) ; AND
5. the witness VERIFIES that the document Correclty REFLECTED the witness' knowledge when it was made.
what happens if the doc qualifies for admissibility under recorded recollection?
it may be READ OUT LOUD to the jury and into evidence. FRE 803(5) however, does not let it be received as an exhbit (and thus can't ebe taken into the jury room) unless offered by the adverse party.
What's the diff between 'pres recollection refreshed' and 'past recollection recorded'
While a past recollection recorded is offered into evidence as an exception to the hearsay rule, a doc used to refresh a witness's 'present' recollection (recolleciton while on the stand) is NOT HEARSAY, because it's NOT EVEN OFFERD AS EVIDENCE> A document used to refersh a W's recolleciton is merely a stimulus to the W's memory.

If a W who took notes of an incidnet can't remember enough to testify, the notes will usually be shown to the W in attempt to refresh the recollection; if that fials, the party may seek to introduce the notes as evidence under the past recolleciton recorded exception to the hearsay rule.
what are the elements of the business records exception to the hearsay rule. FRE 803(6)
all 4 elements must be present:
1. the record concerns a BUSINESS ACTIVITY (includes non-profits but not personal act.)
2. the record was MADE IN REGULAR COURSE OF BUSINESS (not made in anticipation of particular litigation)
3. the record was mad by or with info from a person with PERSONAL KNOWLEDGE of the matters recorded; nad
4. the record was made AT OR NEAR THE TIME f the matter or event recorded.
what types of records are admissible under the 'public records' exception to the hearsay rule, under FRE 803(8)
any record, report, statmenet or date compliation from a public office or agency that sets forth:
1. the 'activities of the office or agency' OR
2. "matters observed purusant to duty imposed by law" as to which matters there was a duty to report (except in crim cases where matter observed by police or law enforcement)
3. Factual findings resulting from an investigation made under authoirty of law (not not if used by gov't agianst crim def"

note--if lacks trustworthiness, it may not be admissible.
What types of records are admissible under teh Public records exception to the hearsay rule, under the FRE?
under FRE 803(8)- any record report statement or data compliation from a public office or agency is admissible insofar as it sets forth
1. the activities of the office or agency or
2. matters observed pursuant to duty imposed by law (except in crim cases mateters observed by law enforcement) OR
3. factual findings resulting from an investigation made under authority of law (but not if used by teh gov't against a crim D"
note: as with bus records, fi the circumstances or the source of the info indicate a lack of trustworthiness, the public record is not admissible under this exception.
What is the underlyign purpose of the COnfrontation Clause of the 6th amendment
the confrontation clause is intended to guarantee a crim D the right to be confronted with the witnesses against him or her. It provides cetain procedural guarantees at trial, including the right to be present at trial, the right to learn what evidence is being offered against him or her, and the right to cross-examine witness.
Note: the CC capplies in both state and fed trials...but ONLY CRIM trials
What is the compulsory Process Clause and how does it differ from teh Confrontation Clause?
The Compulsory Process Clause gives the crim D the " have compulasory process ofr obtaining witnesses in his favor" this literally gives a crim D the right to subpoena defense witnesses; however, the Clause has been more boradly interpreted to entitle a defendant to obtain and present all evidence helpful to his defense.

COMPARE: THE CP clause is an INCLUSIONARY tool; it allos a D to gain admission of otherwise inadmissible evidence. The CC on the other hand, is an exclusionary tool; it allos a D to excluse certain types of damaging evidence from W's he can't confront.
Does the CC achieve the same main policy objective as the hearsay rule? if so, what objective?
Yes, the C esentially gurantess that only trustworthy and reliable tesitmony may be offred gianst a crim D; this is the same rationale as hearsay rule. the CC guarantees a crim D.
When, if ever, will allowing hearsay into evidence constitute a violation of the D's CC rights?
The CC has been interpreted to mean that an out-of-court declaration can't be admitted against a crim D unless the declaration contains "indicia of reliability. However, if the out-of-court declaration is introduced under a 'firmly rooted hearsay exception' this will BY ITSELF BE ENOUGH to establish the required reliability. therefore, the court doesn't have to look at the facts surrounding the particular declaration in question (and can allow the declaration in even though there's reason to believe it may be unreliable in the particular case). HOWEVER,

Unless theree are 'particularized facts' surrounding the statment to show it's probably reliable. One important fact is whether the D at some point (either at tiral or previously) got the right to cross-examine the declarant about the statement (eg if D1 gives a confession to the police implicating D2, and D1 then pleds the Fifth at D2s trial, the use of the out of court confession aginast D2 would violate the CC because D2 gets no chance to cross-examine D1
What exceptions to the hearsay rule have been held to be 'fimrly rooted' for purposes of CC analysis?
1. former testimony given at a prior proceeding
2. excited utterances
3. statements by a co-conspirator during the course and in furtherance of the conspiracy

the following are liekly to e found 'firmly rooted' if the Court were to consider them:
1. admissions by a party-opponent
2. recorded recollecitons
3. businesss records
4. dying declarations
5. statements against interest (other than against penal interest)