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32 Cards in this Set
- Front
- Back
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Hearsay Defined
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"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."
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Elements of Hearsay
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Thus a person's words are hearsay when 1)A person (declarant) describes something that happened (fact or opinion) 2) The person spoke prior to the court proceeding where the words are offered in evidence 3) The person's out of court words are repeated in court to prove that what the declarant said really happened.
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General Rule Regarding Hearsay
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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.
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What is a statement?
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"""Statement"" means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression. (gestures)"
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What is an assertion?
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"A person makes an assertion when the declarant speaks, writes, acts or fails to act with the intent to express some fact or opinion."
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Statement made out of court
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Occurs before the proceeding at which it is offered in evidence. Statements made at another trial and pretrial depositions are out of court statements.
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Hearsay Dangers
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"1) less reliable 2) Inability to cross-examine the witness. However, ability to cx a witness does not make the statement admissible. Four Risks are: memory, misperception, misstatement, distortion "
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PIS in California
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"In California, all PIS are an exception to hearsay."
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Uncharged Misconduct and Hearsay
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When admitting evidence of uncharged misconduct under 404(b) it has to be done with admissible evidence. Can’t use inadmissible hearsay for this.
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Masked Hearsay
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"When the declarant repeats what someone else told them without admitting/stating that someone else told them what they are asserting. (The hearsay is hidden within the testimony.) Ex: tax preparer case; witness testified that most of the tax returns were overstated. Witness could not have gotten this information without talking to other people. Doesn’t repeat what other people said so it doesn’t appear to be hearsay, but it is."
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Uses of Statements that are not Hearsay
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"(Non-hearsay uses for out of court statements) “We Understand Evidence Very Very Loosely” why the police investigated , unique source of knowledge doctrine, Effects on the listener doctrine, verbal acts doctrine, verbal parts of an act doctrine, linkage."
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Why the Police Investigated Doctrine
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Some jurisdictions allow it as background info for why the police became involved in the case. Not all jurisdictions allow it. In this case can probably argue that the evidence is irrelevant – why police investigated is typically irrelevant.
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Unique Source of Knowledge Doctrine
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"When a statement is used to show the fact that the declarant was somewhere, or had access to something, because there was no other way for her to know details/knowledge that she is talking about. Not going to the TOMA – instead showing someone had knowledge. Ie. Girl taken to house."
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Effects on the Listener Doctrine
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"Not used for TOMA, used to show state of mind induced in the listener by the statement. The listener’s state of mind must be relevant Ex: tort case; evidence of complaints made to D about slippery ramp; not used to show ramp was slippery; used to prove that D had notice."
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Verbal Acts Doctrine
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"(sometimes called words of independent legal significance) When the speaking of words creates a legal obligation (contracts, defamation, and notice) Truth or falsity doesn’t matter; as soon as the words are uttered the language is invoked. The words are needed to prove an element of the legal claim."
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Verbal Parts of an Act Doctrine
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When the words accompany an act and are needed to make the ambiguous action more clear; the statement is offered to clarify an ambiguous act. Ex: I hand you a check; as I do so I say “this is a gift”
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Linkage
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"When the evidence is used to show a link between a D and someone else. Ex: Russian spy case; memos referring to D used to show that the KGB was interested in D; there was some connection between KGB and D Ex: D arrested for a drug conspiracy, has in his pocket a phone number to the kingpin of the drug conspiracy; this shows a link between D and the conspiracy"
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Fresh Complaint Doctrine
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"Applies to sexual assault/rape: CL CA Doctrine: The prosecutor in a rape case can introduce evidence to show that the rape victim made a complaint – she told someone about the event. Evidence is not used for TOMA; used to corroborate the victim’s testimony that the rape occurred. Can be used even if the defense doesn’t impeach the victim. Exception to bolstering. Details of the complaint are not admissible, just the bare fact that a complaint was made. Must be relatively soon after the assault, no strict timeline just has to be reasonable"
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"Doctrines that are ""NOT HEARSAY"" by rule or statute"
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"COP - F - Under 801: Coconspirators, Out of Court Identification, Party Admissions - In CA - Fresh Complaint Doctrine "
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List the Hearsay exceptions we've studied for when the availability of the declarant is immaterial
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"PEPS-P-BALM - Excited Utterances, Present Sense Impression, State of Mind Exception, Past Recollection Recorded, Medical Diagnosis or Treatment Exception, Public Records Exception, Ancient Documents, Learned Treatise Exception, Business Records Exception"
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What hearsay exceptions apply when the declarant is unable to testify?
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"SiFFD - Statement against interests, Former testimony, forfeiture by wrongdoing, dying declaration."
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"What does it mean for a witness to be ""unavailable""?"
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"1) Privilege prevents witness from testifying 2) Refuses to testify despite court order to do so 3) Witness doesn’t remember the testimony given at the first trial 4) Unavailable because of death or then existing physical or mental illness 5) Is absent from the hearing and the proponent is unable to procure attendance by process or reasonable means Note: If the unavailable condition is due to the party who is the proponent, then the declarant is not unavailable."
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Residual Exception to the hearsay rule
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"A policy exception - FRE 807 – allows some hearsay statements that don’t fall within the exceptions of 803 or 804, if they meet the following three criteria: 1. The statement is offered as evidence of a material fact 2. The statement is more probative than other pieces of evidence would be 3. The interests of justice will be served by admitting the evidence (use sparingly)"
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Preliminary Questions for the Judge or Questions for the Jury
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"104a – Traditional practice – judge determines admissibility of evidence. Judge admits based on “preponderance of evidence standard.” This includes questions of law such as: privileges, witness competence, hearsay and its exceptions, unavailable declarants, confessions, Miranda, Search and Seizure, Best Evidence and Relevance. However under 104b, when “the relevancy of evidence depends upon the fulfillment of a condition of fact” the court shall admit it subject to a finding of the fulfillment of the condition (The Red hat)."
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Test for Whether it is 104a and 104b
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"1) Can we trust the jury? 2) If the jury decides the preliminary questions do not exist, then jury is instructed to disregard all of the evidence; can the jury do that? Then the judge admits the evidence. At the end of trial, judge gives jury instructions that they can consider the fact, if the condition has been met. If not, they pretend they have never heard it."
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Dying Declarations
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"1) A statement made by a declarant when he believes his death is imminent 2) Must be concerning the cause or circumstances of the impending death. Homicide or Civil Cases. Declarant does not have to actually have died, but must be “Unavailable.” In CA, they have to be dead at time of trial – can be unrelated to incident. Not limited to homicide, but limited to the declarant’s personal knowledge."
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Elements of Excited Utterances
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1) Need a startling event; something outside the ordinary 2) Statement must relate to the startling event 3) Declarant must perceive the event – personal knowledge 4) Delcarant was upset when statement was made.
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Startling Event
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"Declarant has to actually be startled; subjective determination, Most courts will allow the statement itself to be proof that the event occurred"
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Statement must relate to the startling event
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"Declarant need not participate in the event, can be a witness"
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Declarant was still upset when the statement was made
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"NEWPPLS - Nature of the event, emotional condition, the words themselves, physical condition, pressured or hurried speech, Lapse of time, spontaneity/not suggestive. "
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Rekindling Doctrine
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A statement can be made long after the actual event and be considered an excited utterance if there was a new event that rekindled the original emotion - Doesn’t happen often. Like seeing your attacker again.
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California Rules regarding Excited Utterance
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"CA calls it the spontaneous statement exception. Must be spontaneous and under stress. Statement must: narrate, describe, or explain an act, condition or event perceived by the declarant. (FRE just says it must relate to the event)"
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