Evidence Test 3

Front 1

Napolianize

Back 1

Helps determine if evidence is hearsay

Front 2

Hearsay

Back 2

A declaration (statement; assertion; conduct) said or done by someone other than a testifying witness (out of court declaration) which is offered as evidence to prove the truth of the matter asserted or declared.

Front 3

Hearsay Rule

Back 3

hearsay evidence is prima facie (at first blush) inadmissible.

Front 4

Rationales for Hearsay rule

Back 4

D not under oath; not subject to cross-examination at the time; jury cannot observe demeanor of D; concerns about reliability and trustworthiness.

Front 5

assertive conduct

Back 5

intended as a substitute for words; generally is hearsay

Front 6

non-assertive conduct

Back 6

non-intended as a substitute for words; hearsay in some jurisdictions but not treated as hearsay in others, including federal courts.

Front 7

non-human evidence

Back 7

testimony about this conduct does ont violate hearsay rule.

Front 8

Hearsay exceptions: ADMISSIONS

Back 8

prior declaration by a party to present litigation which is arguably inconsistent with that party's present position

Front 9

vicarious admissions

Back 9

made by 3rd party and imputed to another party - such as agents and employees and co-conspirators.

Front 10

admissions by co-conspirator

Back 10

independent evidence of conspiracy - statement made during the conspiracy - statement made in furtherance of conspiracy.

Front 11

implied admissions

Back 11

in jurisdictions where non-assertive conduct is treated as hearsay, some conduct (silence, flight from scene, destruction of evidence)

Front 12

admissions by silence

Back 12

party fails to respond to accusatory statement - party heard and understood statement - party capable of denying statement - party had opportunity and motive to deny - reasonable person would deny

Front 13

confessions

Back 13

must be voluntary and if resulted from custodial interrogation preceded by Miranda warnings

Front 14

Declarations against interest

Back 14

declarant unavailable - declarant had particular knowledge of the facts - declaration was to substantial prejudice of the declarant's interest at the time it was made

Front 15

Dying declarations

Back 15

Victim's statement made with sense of impending death - V believed death was imminent - V was percipient witness at the time - declaration consisted of facts related to the cause or circumstances leading to V's impending death - V unavailable at the time evidence was offered.

Front 16

Admissibility of dying declarations

Back 16

Majority (traditional view): admissible only in criminal homicide cases

Federal view: admissible in criminal homicide cases and any civil case

minority view: admissible in any criminal and any civil case

Front 17

spontaneous and contemporaneous declarations

Back 17

startling occurance of a type to produce shock and excitement - statement made by spontaneously while observer under stress.

Front 18

Former (reported) testimony

Back 18

identity of parties (at least interest and motive) - identity of issues - unavailability of D (death; physical/mental incapacity; refusal/inability to testify)

Front 19

Past recollection / Memory recorded

Back 19

document prepared or adopted by witness - preparation or adoption occurred when matter fresh in memory of W - W has insufficient memory to testify fully about the matter document is authentic and unaltered

Front 20

Compare Past Recollection Rcorded with Present Recollection/memory Revived

Back 20

where W is permitted to refresh his memory by referring to a writing, etc, and then testify form memory without depending on the writing - NOTHEARSAY

Front 21

Present Recollection revived

Back 21

before reference to writing: W has some present memory, however defective, of the facts, etc., contained in the writing

after presentation of the writing to the court and to opposing counsel, writing is shown to W

after reference to the writing, the W's memory is refreshed and she is able to testify without depending on the writing.

Front 22

Remember that Past Recollection is...

Back 22

a hearsay exception, and the document itself is used as evidence; Present Recollection Revived is not a hearasy exception because the document itself is not introduced as evidence

Front 23

Business Public Records

Back 23

Entry made in regular course of business - entry made at or near time event in question occurred - entrant has personal konwledge of transaction or information transmitted to entrant by someone who has first hand knowledge of transaction or information transmitted to entrant by someone who has first hand knowledge and has a duty to report such matters to entrant - authenticated by custodian

Front 24

Common Law

Back 24

Business records only for affirmative purposes

Modern View: can use or to prove occurrence or non-occurrence of transaction

Front 25

Declarations concerning family history or "pedigree"

Back 25

declarant member of family (usually by blood or marriage) - declarant unavailable - declaration concerns matter of family history - declaration made "ante litem motam" (before controversy arose)

Front 26

Ancient Documents

Back 26

Admissible as evidence to facts recited therein if such facts are relevant to the purpose of the document and subsequent dealings with the property have been consistent with facts recited. Also the document must be authenticated - under traditional view, 30 years old and fair on its face, and Federal View, 20 years old and fair on its face.

At common law this exception related only to interests in property such as wills, mortages, deed, etc. However this limitation does not apply under Federal Rules of Evidence