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40 Cards in this Set
- Front
- Back
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Introduction and Definition - Analysis
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- Out of court statement used to prove TOMA
- statement is an INTENDED assertion WHY NOT HEARSAY: Can't cross it - untrustworthy. 1) Was there an assertion? 2) Was it made out of court? 3) What was its purpose? for TOMA? |
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What is an assertion?
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Statement of fact, condition, or phenomiena
(that car is speeding - not; look at that car) |
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Nonhearsay: Introduction (VHS-PM)
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Those statements being used to prove that they were made, not to prove the TOMA.
If you assumed the statement was false - would the offering party still want the evidence? If yes, than just trying to prove the statement was made. |
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Nonhearsay: Verbal Acts/Operative Facts
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- Relevant because they were made, not because they are true or false!
- The mere making of the statement is an element of the case (not TOMA just that the statement was made) - perjury, false swearing, slander, false advertising, false anything, terroristic threatening, criminal coercion; ANYTHING WHERE THE STATEMENT IS ELEMENT OF THE CRIME (not just proof of the crime) - Especially K situations; we just want to prove offer and acceptance, not TERMS, so the fact statement was made is all we need, so NONHEARSAY |
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Nonhearsay: Others
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- State of mind of HEARER; mere making of statement may be relevant to proving hearer's state of mind (confused, mislead, angry)
- State of mind of SPEAKER; mere making of statement relevant to speaker's state of mind (declarant) - Verbal PARTS of an act; need the words to explain the act that was going on (narrow and rare); mom hands over jewels and says "here is your inheritance" - you need the statement - Miscellaneous; others - no examples |
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Implied Assertions
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From conduct: Captain got on the boat after inspecting thereby saying "vessel is seaworthy" - at CL that is hearsay
From statements: by saying "$100 on UK" you are implying the place is used for bookkeeping; hearsay From silence: 10 passengers, 1 said too cold and other 9 silent (infer they were just fine) - that is hearsay. FRE: No implied assertions; only assertions are those that are intended (conduct, statement, silence - not intentional assertions) WHY? Because there is no need to cross-examine them, sincerity of "statements" not in dispute. So it will all get in - it is NOT hearsay |
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Hearsay Exceptions: Generally
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- 801; Not Hearsay
- 803, 804, 807; Hearsay exceptions General reasoning; the statements accepted are 1) NECESSARY and 2) TRUSTWORTHY (enough to supplant need for cross examination) |
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Rule 804 vs. Rule 803
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804: Declarant must be unavailable in order to get it in
803: Doesn't matter whether or not declarant is unavailable |
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803 - PEP/MR/BP (FATPR)
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1) Present Sense Impression
2) Excited utterances 3) Present state of mind 4) Statements for MEDICAL diagnosis or treatment 5) Past RECOLLECTION recorded 6) BUSINESS records 7) PUBLIC records 8) OTHER (Family records, ancient records, learned treatises, previous judgment conviction, reputation of character) |
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803 - Unavailability of Witness
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a) exempted by court from testifying
b) refuses to testify despite court order c) has lack of memory on subject matter d) Unable to be present or to testify because of death (or mental disability) e) Can't get him there (can't serve him) |
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803(1) - Present Sense Impressions
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Statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter (9/11 calls)
1) Subject matter: statement only be description or explanation of the event (not an opinion) 2) Rationale: because they happen at the same time, observe and comment the trustworthiness is HIGH Requirements: 1) PK - evidenced in statement 2) Timing - statement made while event is occurring! 3) Used to need another witness to corrroborate 9/11 calls |
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803(2) - Excited Utterance
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CL: Statement made 1) close in time to and 2) under the stress of a 3) startling occurrence, and 4) statement must be about the occurrence
FRE: Statement about startling event made under the STRESS of EXCITEMENT caused by the event or condition is admissible 1) startling occurrence 2) statement made under stress of the excitement (can be a while after if still under stress) 3) statement must relate to the occurrence Why: condition of the excitement temporarily stills capacity to reflect and produces utterances free of conscious fabrication - trustworthy |
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803(3) - Present State of Mind
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CL: Stmnt shows state of mind of declarant, contemporaneous comment with state of mind, and state of mind must be relevant to the case, under apparent sincerity
FRE: Statement of delarant's then existing state of mind, emotion, sensation, or physical condition (intent, plan, motive, design, mental feeling, pain, and bodily health) is ADMISSIBLE - PRESENT state of mind - RELEVANT - Look at 403 - Case of the letter "I'm going to creek with friend"; it WAS allowed to prove future event but not testimony that faces backward (can't use declarations of memory) - Zippo; surveys show state of mind if properly conducted |
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803(4) - Medical Diagnosis or Treatment
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Statements made for purposes of medical diagnosis or treatment and describing medical history (or symptoms, pain, sensation admissible as long as pertinent to diagnosis or treatment.
- Past pain allowed - Statements CAN be made to treating and testifying physicians (not under CL), hospital attendants count too, family members even - Cut out statements as to fault and just let in the statement as to what happened - people likely to be honest in seeking medical treatment (trustworthy) - present pain under "present state of mind"; past pain under this |
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803(5) - Past Recollection Recorded
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memo or record concerning the matter about something the witness ONCE knew but forgot allowed in if shown to have been made fresh in the witness' memory and to reflect knowledge correctly
- Lost memory - memo or record that once had knowledge about contents - can't testify now without it - written when fresh in mind (and correct) - read into evidence, but not entered in by itself |
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803(6) - Business (and other regular) Records General
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Memos, reports, records or data compilation admissible if:
- designed to prove facts (acts, events, conditions, opinions, or diagnosis - made at or near the time - by a person with knowledge - MADE and KEPT in the course of a regularly conducted business activity a) broadly defined (business is) - REGULAR practice to keep the memo - Shown by testimony of custodian or qualified witness (not necessarily the maker of record) - STatements in record by someone NOT part of the business not admitted for truth Rationale: records made often and accurately, so accurate this time. |
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803(6) - Business (and other regular) Records - Requirements
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Consider whether the record is made in the REGULAR course of business with EYE toward litigation (not in).
Only should be used for routine, systematic operation of the business - thus records made in anticipation of litigation can't be brought in Investigation of an accident and report can be the "regular course of business: Look at type of business and consider its actual purpose. Hospital record only admissible as towards treatment and diagnosis - not when it looked like accident report. NO MANUALS, HANDBOOKS or REGULATIONS. |
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803(8) - Public Records
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Records, reports, statements, data compilations of public agencies or offices setting forth
- activities of officer or agency - matters observed pursuant to duty (police officers don't count in criminal cases) - factual findings resulting from an investigation (only in civil cases) UNLESS lack of trustworthiness apparent |
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801 Admissions - PPI/VBAAC
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CL Rule: If D makes a statement against his own interest, statement IS admissible
FRE: Statement is NOT hearsay if the statement is offered against a party and is: 1) Vicarious admission 2) Basic (Party-opponent) 3) Adoptive admission 4) Authorized admission 5) Co-conspirator statements Also applicable are Prior statements: 1) Prior inconsistent statements 2) Prior consistent statements 3) Statements of identification |
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801(D)(1) - Prior Statements
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Not hearsay if the declarant testifies at trial OR hearing and is subject to cross concerning the prior statement and statement is:
1) prior inconsistent statement 2) prior consistent statement 3) ID of a person |
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Prior Inconsistent Statements
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Prior statement must be made under oath subject to penalty of perjury but is let in as NOT hearsay
- trustworthy because made under oath - can also come in to impeach credibility (not for TOMA) |
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Prior Consistent Statements
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Prior statement not hearsay if offered at trial under oath to REBUT express or implied charge against declarant of recent fabrication
- YOU LIED about it; so declarant can bring in a prior consistent statement to show that he didn't lie or fabricate it |
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Statements of Identification
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IF statement made at trial and is one that ID's a person after perceiving that person (a line-up)
- IF at line-up (not in trial) then cop can testify of person choosing out of a line up - statement doesn't have to come from the identifier but from someone with PK and declarant must be present as a witness subject to cross |
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ADMISSIONS - Vicarious
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STatement by party's agent concerning matter within scope of agency and during existence of relationship (no PK requirement - content of statement NOT sufficient to establish agency)
- No bootstrapping; must prove by preponderance of the evidence that the statement was authorized |
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ADMISSIONS - Basic (801(d)(2)(a))
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Not hearsay if their OWN statement offered AGAINST them in the court. (Wolf bite case - "Our fault..." - admission is allowed)
- (basically you aren't going to say anything against yourself that isn't true - don't need to cross) |
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ADMISSIONS - Adoptive; Silence and Conduct
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Act or declaration by party that indicates its approval (manifested adoption or belieft) of a statement made by the other party - will be attributed to the party party and will be admissible.
Through silence: a) made in D's presence b) D heard it c) statement he would have denied if untrue and d) D was silent Through conduct: admissible TC must determine beyond preponderance that D intended to adopt the statement (burden on plaintiff to show it) (once miranda rights read can't be punished for being silent) |
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ADMISSIONS - Authorized
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Statement by a person authorized by the party to make a statement concerning the subject. (have to find that declarant DOES have authority to speak for party - no PK requirement - contents of statement not sufficient to establish authority, looking to employment)
- Butcher NOT working in produce has no authority for produce - President has authority for company - Lawyer has authority for client |
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ADMISSIONS - Statements of Co-Conspirators
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Statement by co-conspirator DURING and In FURTHERANCE of the conspiracy.
- statement by co-conspirator is the same as an authorized statement by an agent - confessions can't be used and descriptions of conspiracy can't be used Furtherance: part of information flow between conspirators intended to help each perform role (not idle statements just because made by conspirator) Trial judge determines under 104(b) - preponderance. Someone who comes in after conspiracy and comments made still liable (split of authority - argue both sides if that fact comes up) Bourjaily: No bootstrapping - have to offer something other than the statement itself that the conspiracy existed |
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ADMISSIONS - Bootstrapping
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NOT allowed - have to prove by preponderance of the evidence (the party bringing the evidence has burden)
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804 - (Unavailable Declarant) FF/II/P
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- Former Testimony
- Forfeiture by wrongdoing - Impending death - Statement against interest - Personal or Family records |
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804(b)(1) - Former Testimony
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- same purpose, same party, cross (not peripheral issue)
- Rationale: oath and opportunity to cross present STRONGEST of all hearsay exceptions - Testimony that you are going to try to bring from another court proceeding. Your witness must be unavailable 1) Unavailable witness 2) Same or different hearing 3) Offered AGAINST SAME PARTY (or predecessor in interest) 4) Been tested by cross at previous level (at least opportunity to cross) 5) Offered for SAME PURPOSE in first case as in second SAME PURPOSE/Motive: Need to be offered for the same reason at the previous go-round (STRICT CONSTRUCTION), testing evidence of "substantially similar intensity" SAME PARTY: predecessor in interest - person the PRESENT party received the right, title, interest, or obligation that is at issue. Similar interest and motive in both cases than PIINterest. |
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804(b)(6) - Forfeiture by Wrongdoing
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Statements ARE testimonial and not subject to cross (unconfronted) but admitted anyway because of D's actions.
- Declarant unavailable (because you made him so) - Statement offered against party - Party engaged in wrongdoing - FOR PURPOSE OF KEEPING THEM FROM TRIAL - That caused unavailability of the declarant - Whatever declarant said earlier that is RELEVANT gets in |
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804(b)(2) - Impending Death/Dying Declarations
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- BC; believing and concerns imminent death.
- unavailable declarant, stmnt made while believing imminent death, statement concerns cause or circumstance of impending death (related), in for homicide or any civil case. - C/L rationale; won't lie right before going to meet your maker, not true anymore. |
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804(b)(3) - Declaration Against Interest
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- Unavailable declarant, statement against pecuniary or proprietary interest (subjects declarant to civil or criminal liability), reasonable person would say it unless it were true
- Statement that is against Declarant's interest and exculpates the accused needs corroberation. (self serving) - only self-inculpatory statements get in :/ |
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804 - Statement Personal or Family History
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- if declarant said somrthing about family history or someone incredibly close to the person (enough to have good info), then let it in.
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807 - Residual Exception
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- trustworthy
- evidence towards material fact - more probative than any other evidence - best interest of justice - gives notice of intent to use ((TM PJN) Too Many PaJaNas) NO NEAR MISS PRINCIPLE (missed under 803 so maybe 807? - no) - although conflict here because some courts do this) |
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Hearsay and the Confrontation Clause - Generally
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Confrontation clause comes into play when statements are "testimonial" only. (unavailable and opportunity to cross)
Rationale: FRE violates D's right by depriving him of a fair opportunity to defend himself - testimonial stmnt - no ongoing emergency, primary purpose of interrogation is INVESTIGATION looking towards criminal prosecution (only allowed in if witness unavailable AND accused had opportunity to cross when statement was made) - nontestimonial stmnt - made in course of police interrogation during ONGOING emergency (allowed in according to the FRE - usually excited utterance or something) |
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805 - Hearsay within Hearsay
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Allowed as long as EACH PART OF THE COMBINED STATEMENTS conform with an exception to the hearsay rule
- occurs most often with Business records. |
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Present memory refreshed
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Witness must testify, must be on the stand.
Writing must actually refresh witness' memory (shown the writing and swear that memory is refreshed) Writing need not be made by witness or anyone he knows - Writing used to job memory, not received into evidence, not hearsay problem because not evidence - adverse party gets right to inspect the writing |
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Opening the Door
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- If some bad evidence let in, do I get to bring in MY bad evidence? You can bring it in to rebut, typically. To cure damage done by bad evidence being let in. IF you open the door you can't appeal when other party's bad evidence is let in.
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