Evidence: Hearsay Exceptions

Front 1

Hearsay Exceptions:

Justified by reliability factors or other good reasons sufficient to excuse inability to cross-examie declarant
- former testimony
- statement against interest
- dying declaration
- excited utterance
- present sense impression
- present state of mind
- declaration of intent
- present physical condition
- statement for purpose of med treatment or diagnosis
- business records
- public records

Back 1

"Testimonial Statements"- regardless of hearsay exception, 6th A right of confrontation prohibits use of testiomnial hearsay statements against a crim defendant if declarant is unavailable and defendant had no opp for cross

Hint 1

Testimonial statements include sworn testimony:

- at a grand jury
- prior trial; or
- prelim hearing, and
- responses made during police questioning, whether sworn or unsworn

EXCEPTION: declarant unavailable to wrongdoing (by d)

Front 2

Former Testimony

Back 2

Former testimony of now-unavailable W, if given at former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motivate to cross-examine or develop testimony of W. Issue in both proceedings must be same.

Grand jury testimony does not qualify.

Hint 2

Grounds of unavailability:

- death/serious illness
- absence from jurisdiction
- privilege/spousal immunity
- stubborn refusal to testify
- lack of memory

Same grounds apply to all exceptions where unavailability is a requirement- former testimony, statmt against interest, dying declaration.

TX distinction: In civil actions, depo of W taken in same proceeding is admissible w/o need to show that W has become unavailable.

Front 3

Statement Against Interest

Unavailable declarant's statement against his or her pecuniary, proprietary or penal interest.

Back 3

Differs from party admission:

- MUST be against interest when made
- any person (not merely party) can make statement against interest
- personal knowledge required
- declarant must be unavailable

Qualification in crim cases: Stmt against penal interest, when offered to EXCULPATE defendant, must be corroborated.

Hint 3

TX distinctions for statement against interest-
1) unavailability not required
2) self-damaging statement includes one that makes declarant object of hatred, ridicule, disgrace (social interest)

Front 4

Dying Declaration

Made under belief of impending and certain death (give up hope) by a non-unavailable declarant concerning cause or surrounding circumstances of declarant's death

Back 4

FED: Crim cases- homicide only; all types of civil cases

TX: all civil and crim cases