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42 Cards in this Set
- Front
- Back
Hearsay is |
an assertion, made by a person other than that who is testifying (out-of-court declarant), offered to prove the truth of the matter asserted |
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4 basic reasons we do not like hearsay |
(1) Transmission error - Telephone game - people get mixed up (2) Inability to observe the demeanor of speaker - Speaker could have said in serious tone, or a joking tone (3) Speaker is not under oath!! (4) Speaker of an out-of-court stmt (OCS) may not be cross-examined MOST IMPORTANT REASON FOR DISAPPROVING OF HEARSAY Reliability of hearsay cannot be tested at the most appropriate time |
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An assertion can be |
Oral, written, or nonverbal |
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Full definition of hearsay plz |
Anassertion, made by a person other than that who is testifying (out-of-courtdeclarant), offered to prove the truth of the matter asserted |
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What is important to remember about hearsay analysis? |
Hearsay turns on the reason why evidence is being offered - what is the person trying to prove by offering the statement? What value does it add to the case? |
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Why are we concerned with hearsay anyway |
4 basic reasons we do not like hearsay (1) Transmission error - Telephone game - people get mixed up (2) Inability to observe the demeanor of speaker - Speaker could have said in serious tone, or a joking tone (3) Speaker is not under oath!! (4) Speaker of an out-of-court stmt (OCS) may not be cross - examined MOST IMPORTANT REASON FOR DISAPPROVING OF HEARSAY Reliability of hearsay cannot be tested at the most appropriate time |
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**HOW TO APPROACH AN OUT OF COURT STATEMENT**
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1) Does the OCS meet the definition of hearsay?
2) Does the OCS fall within an exemption? 3) Does the OCS fall within an exception? |
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What qualifies as an "assertion" ?
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If the stmt is asking a question, exclaiming, or ordering a person to do something only—you DO NOT have an assertion, therefore, not hearsay Look for declaratory sentences asserting a fact, communicating a fact to another |
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What qualifies as an "out of court" declarant"?
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Madeby a person who is not testifying Cannot be an animal or machine - Machines get tricky when it is a person operating the machine Conduct of mechanical devices is not a “stmt” for purposes of the hearsay rule |
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police dogs or parrots who say actual words |
those are completely admissible hearsay! |
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what is a better way to think about "offered to prove the matter asserted in the statement" ?
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offeredto prove to facts contained in the out of court statement |
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Usesfor Hearsay |
Substantive Use: Statement used to prove the heart of the case Non-substantive Use: Statement often used for impeachment |
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NON HEARSAY (looks like hearsay, but isnt) |
"Words of Independent Legal Significance” or “Verbal Acts” WordsBeing Offered to Show Their Effect on Listener Rather Than Prove Truth ofMatter Asserted WhereWords/Conduct Constitute Circumstantial Evidence of Declarant’s State of Mind |
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"Words of Independent Legal Significance” or “Verbal Acts” |
P’s Witness: “I called D and he said, ‘I accept you bid of $3K’” This is an assertion of D’s acceptance of bid This is out of court statement Hearsay Purpose: Statement offered to prove D accepted bid Nonhearsay Purpose: Statement has legal meaning for which it is offered -- formation of a K (offered for independent legal significance) |
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Words Being Offered to Show Their Effect on Listener Rather Than Prove Truth of Matter Asserted |
>>D’s Witness: “Victim was holding a gun and said to D, ‘I’m going to shoot you.’” This is an assertion and an out of court statement Holding a gun is not an assertion; the assertion is “I’m going to shoot you” D is not offering statement to prove that victim was going to shoot D D is offering statement to prove that victim had a gun so D fired back in self-defense This is the listener’s statement of mind -- nonhearsay purpose >>Police Officer: “Wife of D said, ‘He slugged me.’” This is an assertion and an out of court statement P offering statement to show listener’s state of mind --- that police officer had probable cause to arrest D for assault "the cop just told me Bob said he's still alive" |
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WhereWords/Conduct Constitute Circumstantial Evidence of Declarant’s State of Mind |
“Look at watermelons on that one” -- shows sexist/discriminatory intent of declarant, not that the secretary had big breasts “I have a ship planted in my brain” -- shows declarant mentally ill, not that they have a ship in their brain |
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If OCS (out of court statement) has analternate purpose... |
...then it is getting in -- But, it canonly be used for that alternate purpose! |
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HEARSAY EXEMPTIONS |
1) Attending witness exemptions (3 kinds) 2) Admissions by party opponent (5 kinds) |
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Attending witness exemptions (3 kinds) |
Prior inconsistent statement Prior consistent statement Prior identification |
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Prior inconsistent statement (attending witness) |
**depositions dont count!!** |
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Prior consistent statement (attending witness) |
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Prior identification (attending witness) |
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Admissions by party opponent (5 kinds) |
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Personal admission (Admissions by party opponent) |
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Adoptive admission (Admissions by party opponent) |
There are 2 kinds of adoptive admissions:
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Vicarious authorized speaker admission (Admissions by party opponent) |
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Vicarious agent-servant admission (Admissions by party opponent) |
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Co-conspirator admission (Admissions by party opponent) |
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Recap of hearsay exemptions
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Hearsay Exceptions Under FRE 803 - excited utterance |
A statement relating to a startling eventor condition made while the declarant was under the stress of excitementcaused by the event or condition (reliable because no time to think and some say people perceive better under stress -- heightened awareness - spontaneity so no time to fabricate) Notes: The testimony must establish that declarant was acting under the stress of the excitement. Can be up to several hours later if the testimony establishing the statement is clear they were still excited then - available much longer after the event |
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Hearsay Exceptions Under FRE 803 - present sense impression |
Astatement describing or explaining anevent or condition made while the declarant was perceiving the event orcondition, or immediately thereafter.
Don’t have to have excitement but must have more immediacy in time Likely, 5 minutes later will be too long to qualify |
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Hearsay Exceptions Under FRE 803 - existing mental, emotional, or physical condition |
Astatement of the declarant’s then existing state of mind, emotion, sensation,or physical condition (such as intent, plan, motive, design, mental feeling,pain, and bodily health), but not including a statement of memory or belief toprove the fact remembered or believed unless it relates to the execution,revocation, identification, or terms of declarant’s will. Allows statement related to present state of body (“I have a toothache”) and mind (“I am depressed”) ***Does not include past tense states of body or mind (“I had a toothache yesterday”) -- this was not be admissible under FRE 803**** |
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Hearsay Exceptions Under FRE 803 - Statements for purposes of medical diagnosis or treatment |
Statementsmade for purposes of medical diagnosis or treatment and describing medicalhistory, or past or present symptoms, pain, or sensations, or the inception orgeneral character of the cause or external source thereof insofar as reasonablypertinent to diagnosis or treatment
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Hearsay Exceptions Under FRE 803 - Recorded Recollection |
A matter about which a witness once hadknowledge but now has insufficient recollection to enable the witness totestify fully and accurately, shown to have been made or adopted by the witnesswhen the matter was fresh in the witness’ memory and to reflect that knowledgecorrectly.
If admitted, the memorandum or record may be read into evidence butmay not itself be received as an exhibit unless offered by an adverse party DECLARANT MUST BE PRESENT!! |
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Hearsay Exceptions Under FRE 803 - Public Records and Reports |
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth
(A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other LE personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness |
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Hearsay Exceptions Under FRE 803 - Learned Treatises |
The FRE writers have generally favored the admissibility of learned treatises A statement contained in a treatise, periodical, or pamphlet if: (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.If admitted, the statement may be read into evidence but not received as an exhibit. |
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Past recollection refreshed |
Any document that can refresh the witness can be shown to a witness to refresh him or her, but they cant read from it It bites into their credibility a bit |
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Hearsay Exceptions Under FRE 803 - Declarant Unavailable (a) |
Declarant MUST be unavailable!!!!!
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Hearsay Exceptions Under FRE 803 - Declarant Unavailable (b) The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: |
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Texas has “Rule of Optional Completeness” |
Appliesto oral testimony. You stand up and lodge the objection, but you don’t get toaddress it until it is your turn to examine the witness |
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FRE Rule of Completeness
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Whena writing or recorded statement or part thereof is introduced by a party, anadverse party may require the introduction at that time of any other part orany other writing or recorded statement which ought in fairness to beconsidered contemporaneously with it Not limited to hearsay Limited to writing or recorded statement Does not pertain to oral statements |
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807 - Residual Exception |
Hearsay is admissible under a residual or catchall exception to the hearsay rule. It recognizes the admissibility to trustworthy statements that are “not specifically covered by” other exceptions. |