Evidence Hearsay

Front 1

HEARSAY

Back 1

Out of court statement offered to prove the truth of the matter asserted

Front 2

Double Hearsay

Back 2

For multiple layers of hearsay an exception is needed for each layer.

Front 3

EXEMPTIONS
Authorized Admission

Back 3

(1) Statement made by party, AND (2) offered by a party opponent. (Not subject to personal knowledge requirement and does not need to be against the parties interest when made)

Front 4

Admission of Party Opponent

Back 4

(1) Statement made by party, AND (2) offered by a party opponent. (Not subject to personal knowledge requirement and does not need to be against the parties interest when made)

Front 5

Adoptive Admission

Back 5

Indicates belief in its truth. Silence if (1) Heard and understood (2) Capable of denying it (3) Reasonable person would have defended himself.

Front 6

Co-conspirator

Back 6

made while (1) participating in, and (2) in furtherance of conspiracy

Front 7

Prior Statements

Back 7

Out of court statement from a declarant that is now testifying

Front 8

Prior Inconsistent Statement

Back 8

Prior statement that is inconsistent with the W’s in court testimony given under oath in another trial, deposition or hearing. (Not affidavits)
1. *CA – applies to ALL inconsistent statements whether or not made under oath

Front 9

Prior Consistent Statement

Back 9

Admissible after credibility of a witness has been attacked for fabrication or improper motive and the statement was made before the inconsistent statement, fabrication or improper motive.

Front 10

Prior Identification

Back 10

Identification of a person made after perceiving the person

Front 11

UNAVAILABILITY Exceptions - proving unavailability

Back 11

Unavailable – (1) privilege (2) Death or Illness (3) Absent (4) Refuses (5) Lack of memory

Front 12

Former Testimony

Back 12

(1) Unavailable (2) Under oath (3) Party or the party’s predecessor in interest against whom the testimony is being offered (4) had a similar motive and opportunity to question the witness. (*CA – Can admit testimony that a party admitted in an earlier case regardless of motive.)

Front 13

Statements Against Interest

Back 13

(1) Unavailable (2) Statement was against the declarant’s pecuniary, proprietary, or personal interest when made.
a. Must have personal knowledge of the facts and must have known that it was against her interest when she made it.
b. In a criminal case, statements to exculpate the accused needs corroborating evidence
c. *CA – NO corroborating evidence is required and may also be against social interest.

Front 14

Dying Declaration

Back 14

(1) Unavailable (2) Statement made in fear of impending death (3) relating to the cause or circumstances leading to impending death.
a. FRE - Only admissible in Civil and Homicide cases
b. *CA – Exception applies to ALL civil and criminal cases and declarant must be dead

Front 15

Personal or Family History

Back 15

(1) Unavailable (2) Personal knowledge concerning family relationships (3) member of family or closely associated therewith.

Front 16

Unavailability by forfeiture

Back 16

The statement of a person who is now unavailable, is admissible when offered against a party who has engaged in wrongdoing that intentionally procured the declarant’s unavailability. ALL statements by unavailable declarant are admissible.

Front 17

Hearsay EXCEPTIONS

Back 17

Unavailability is irrelevant

Front 18

1. Excited Utterance

Back 18

(1) Describes or explains a startling event or condition (2) made while the declarant was still under stress of excitement caused by event.

Front 19

2. Present Sense Impression

Back 19

(*CA – Contemporaneous Statement) – (1) Describes or explains an event or condition (2) made while declarant perceived the event or immediately thereafter.
a. *CA – must be explaining the conduct of the declarant while engaged in conduct

Front 20

3. State of Mind

Back 20

Statement of (1) then existing state of mind or physical condition is (2) admissible to prove intent, motive, mental or physical condition, but (3) not memory or belief of a fact remembered.

Front 21

4. Medical Diagnosis or Treatment

Back 21

(1) made to a person providing medical services (2) for purposes of medical diagnosis or treatment, (3) describing medical symptoms or the cause of condition.

Front 22

5. Business Records

Back 22

– (1) A record or memorandum (2) Made in the regular course or business (3) By a person with personal knowledge or who is under a duty to record such information.

Front 23

6. Public records

Back 23

– (1) Describes activities of the office (2) Describes matters observed pursuant to a duty imposed by law (except police observations in criminal cases) (3) In Civil cases and Against the Government in Criminal cases, records of factual findings from an investigation as required by law.
a. Record must be made by and within the scope of duty of the public employee, and it must have been made at or near the time of the event.

Front 24

7. Residual Catchall Exception

Back 24

(1) trustworthy (2) strictly necessary (3) notice given to adversary.

Front 25

8. Records of Vital Statistics

Back 25

Admissible if made by a public officer pursuant to requirements of law.

Front 26

9. Statement of Absence of Public Report

Back 26

Evidence of a certification or testimony from the custodian of public records is admissible to prove the matter was not recorded.

Front 27

10. Learned Treatise

Back 27

Admissible to prove anything stated therein if it is an accepted authority in the field. The expert must be testifying on the stand AND the relevant portion is read into evidence

Front 28

11. Judgment of previous conviction

Back 28

Hearsay statement describing a felony conviction is admissible in both civil and criminal cases to prove ANY fact essential to the judgment

Front 29

12. Ancient Documents

Back 29

Statements in an authenticated document 20 years old or more are admissible

Front 30

13. Property Interests

Back 30

– statements in documents affecting a property interest are admissible

Front 31

14. Reputation Evidence

Back 31

Admissible as evidence of character, personal or family history, land boundaries, and a community’s general history.

Front 32

15. Family Records

Back 32

Statements of fact concerning personal or family history contained in family bibles, jewelry, engravings in a tombstone are admissible.

Front 33

16. Market Reports

Back 33

admissible if generally used and relied upon in a particular field.

Front 34

Writings and other Physical Evidence

Back 34

...

Front 35

1. Authentication

Back 35

Evidence sufficient to prove that the item is what the proponent purports it to be

Front 36

a. Chain of Custody

Back 36

(1) Certified copies of public documents (2) Newspapers (3) Acknowledged documents (4) Business records (5) Trade Inscriptions (coca cola)

Front 37

b. Self-authenticating writings

Back 37

(1) Certified copies of public documents (2) Newspapers (3) Acknowledged documents (4) Business records (5) Trade Inscriptions (coca cola)

Front 38

c. Photos

Back 38

– Just need to have personal knowledge of the scene

Front 39

d. X-Rays

Back 39

(1) Machine in working order (2) Qualified to operate (3) Chain of custody

Front 40

e. Oral Statements

Back 40

Can be authenticated by any person who heard the voice at any time.

Front 41

f. Handwriting

Back 41

Must have seen the hand writing before trial unless expert.

Front 42

2. Best Evidence Rule

Back 42

If evidence is offered to prove the contents of a writing the original is required
a. Does Not apply (1) Personal knowledge (2) Public Records (3) Collateral issue (4) voluminous
b. Duplicates – May use originals or duplicates unless there is genuine question as to authenticity
c. Secondary Evidence (testimony) is admissible if: (1) The original is lost or destroyed, unless bad faith by proponent (2) The original is in the possession of a third party that is unattainable (3) The original is in the possession of an adversary who fails to produce
d. *CA – Secondary Evidence Rule – Allows handwritten duplicates