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28 Cards in this Set

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What is the basic rationale for denying hearsay?
Your opponent has no opportunity to cross examine the person whose perception, memory, and sincerity are in issue.
If the out of court statement is entered to establish that the statement itself was made, is it hearsay?
NO. Its not offered for the TRUTH of the statement, only that it was made. Examples are words with a legally operative effect: I accept your offer, cancel my insurance, of course you can borrow my car (in stolen car case)
What if the out-of court statement is made to show an effect on the hearer?
NOT hearsay.
"Steve mugged me" to show probable cause to arrest Steve.
"Your stairs are defective" in suit against owners to show NOTICE of shitty stairs, NOT to show the defectiveness.
What if the out of court statement goes to the D's state of mind?
NOT hearsay. Murder suspect says "the voices in my head are making me do bad things."
Can a witness's own prior statment be hearsay?
A defendant on stand is asked: "when you were arrested, what did you tell the police." He answers "I told them I was innocent." Is this hearsay? An admission?
Yes, its hearsay.
NO, its not an admission b/c it isn't offered against the party's interest.
What are examples of prior statements of a witness which ARE not hearsay?
1. prior inconsistent statements given under oath, at trial, proceeding, or depo. (can go to truth, remember? otherwise only to impeach)
2. Prior consistent statements to rebut charge of recent fabrication or improper influence or motive
3. Prior statements of ID made by witness.
Is an admission of a party an exception to hearsay?
YES. If offered against the party.
need not be based on personal knowledge,
can be a legal conclusion

UNDER FRE's a PARTY admission is NOT hearsay. Its not an exception.
Can a party's agent or servant make an admission on behalf of the party?
YES, if made during the existence of the relationship
Is former testimony made in a different proceeding an exception to hearsay?
What must there have been in the former proceeding?
A meaningful opportunity to cross and current UNAVAILABILITY OF THE DECLARANT.
For the purposes of former testimony exception to the hearsay rule, what is the most important requirement to remember?
The former testifying party must be UNAVAILABLE. That could be failed memory, sick, refuse to testify, etc.
A statement against interest exception to the hearsay rule must be against their interest ___________.
Must a statement against interest declarant be unavailable?
YES. Must be unavailable.
What is the statement against interest exception to hearsay limitation?
A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is NOT admissible UNLESS "corroborating circumstances clearly indicate the trustworthiness of the statement." -- basically 3rd party confessions.
What two hearsay exceptions require unavailability?
former testimony and
statements against interest
dying declarations
Must a declarant DIE to have the dying declaration be admitted as an exception to hearsay?
NO, but they must be unavailable.
In a dying declaration, what must the person believe?
in their impending death. It must be certain.
What kind of cases is the dying declaration admissible?
HOMICIDE and Civil cases.
That's it.
When/what kind of cases can the dying declaration be an exception to hearsay?
When they concern the cause or circumstances of impending death.
What are the six spontaneous statements where unavailability is not an issue?
1. Declaration of an existing state of mind in issue.
2. ...of an existing present intent to do something in the no too distant future that is offered to infer that the future act was done.
3. an excited utterance (startling event, made under stress of excitement, that concerns the facts of the startling event)
4. present sense impression
5. declaration of PRESENT pain suffering or physical condition
6. declaration of past phsical condition.
What is a present sense impression?
A statement which describes or explains an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.
What are two differences between present sense impressions and excited utterances?
1. there need be no startling event in a present sense impression and
2. there can be no real time lapse in a present sense impression.
Jimmy testifies that Bobby said "It hurts!" when he got shot...admissible?
Need the declarant be unavailable?
YES. declaration of present pain...suffering or physical condition.
"my finger is broken..."
NO unavailability needed.
A declaration of past physical condition must be made to _______ for _________.
medical personnel,
the purpose of diagnosis

Can be diagnosis for the purpose of giving testimony.

IT CAN come in for truth...(that's what hearsay IS).
If an element of a hearsay exception is disputed, and you or your opponent use another piece of hearsay to corroborate it...who decided if that comes in and is it hearsay?
The judge and she/he can use it if they want to to determine the issue in the OTHER hearsay thing.
If hearsay is admitted, can the credibility of the declarant be attacked? By what evidence?
By any evidence which would be admissible for that purpose if the declarant had testified live.
If a police officer tells about the recording he heard of a person describing a killing...hearsay? Admissible?
Hearsay, and admissible exception to the hearsay under present sense impression, but best evidence rule would keep it out unless the lack of the tape is explained.
Under the business record exception to hearsay, what are the requirements?
1. must be made by a person w/ knowledge,
2. kept in the regular course of business
3. it was the regular course of business to make the records
4. the source of info or circumstances of preparation indicate a lack of trustworthiness.

The entry must be GERMANE to the business...