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Evidence - Hearsay
Federal Rules of Evidence
Terms in this set (38)
(1) statement (2) made out of court (3) for the truth of the matter asserted
Oral, written, conduct attempting to state a piece of information
The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise:
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
Truth of the Matter Asserted/Truth Value
Being offered to show that the actually information the statement contains is true
TOMA exceptions (nonhearsay)
Words of Legal Significance/Verbal Acts
Words that get Value from the Fact they were Spoken
Words used to show Effect on Listener
Words/Conduct that constitute circumstantial evidence of the Declarant's state of mind
Words/Conduct not assertive or they assert something other than what they are offered to prove
Words of Legal Significance/ Verbal Acts
when the words spoken are the Act, they are not hearsay because they are not evidence (contracts, slander, libel, words that transfer, Miranda Warnings, when words are crime - threats, impersonations, fraud, etc.), words that explain a legally significant fact
Words that Value is From the Fact They were Spoken, Not Meaning
Could have said anything, only matters that they were spoken (someone thought dead says "I'm not dead yet!")
Words Used to Show Effect on the Listener
If the reaction is relevant, the statement is not hearsay if offered on that basis. Listener obtained knowledge or notice. (911 calls, words said that trigger self defense, etc.)
Words or Conduct Constitute Circumstantial Evidence of the Declarant State of Mind
Used is declarant state of mind/knowledge is relevant (delusion, impeachment)
A direct statement of state of mind = hearsay
Circumstantial statement of state of mind = non hearsay
Key: determine whether there is any special significance to the state of mind of the declarant
Words or Conduct are not assertive or Assert Something Other than What They are Offered to Prove
It is what it is and thats on God
Party Opponent Statement:
- if a party made a statement, opponent may offer the statement into evidence to prove the truth of anything relevant, including the matter asserted.
- Does not demand that the declarant have personal knowledge of the facts contained in the statement.
- If one party offers in part an oral or written statement, the opponent may offer another statement or part of exchange to clarify
- If party appears to be adopting/accepting the truth of a statement made by another person, that statement is manifested as being a statement by party.
(1) Did the party hear and understand the statement?
(2) under the circumstances, would you expect a person to speak? (Lack of denial is so unnatural as to support an inference that the undenied statement is true)
(1)Made by agent
(2)Authorized by party to speak on the subject
(1) Made by agent/employee
(2) Relates to matter within scope of agency/employment
(3) Made during speakers relationship with the party
(1) There was a conspiracy
(2) declarant was a member of the conspiracy
(3) statement was made while the conspiracy was in existence
(4) Statement was made in furtherance of the conspiracy
(applies even if declarant is not a party, admissible whether or not the conspiracy is actually charged)
Present sense impression
(1) event or condition
(2) A statement describing the event or condition
(3) made while or immediately after the declarant perceived it. (Response to a question usually does not count, does not have to be said to anyone)
(1) Startling event or condition
(2) statement relates to the startling event or condition,
(3) made while the declarant was under the stress of excitement that it caused (more ambiguous than present sense impression)
Then-Existing Mental, Emotional, or Physical Condition.
A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.
Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for the purpose of getting — and is reasonably pertinent to — medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
Recorded Recollection. A record that:
(1) matter the witness once knew about but
(2) cannot recall well enough to testify fully and accurately
(3) was made or adopted byt he witness when the matter was fresh in the witness' memory
(4) record accurately reflects the witness' knowledge
ONLY insider to insider is OK
(1) A record of an act, event, condition, opinion, diagnosis
(2) Made at or near the time
(3) by (or from information transmitted by) someone with knowledge
(4) kept in the course of a regularly conducted activity of a business and making the record was a regular practice of that activity
(5) verified by custodian/qualified witness OR has declaration of certification (proponent must provide prior written notice of intention to introduce the record in this manner, make record and declaration available for inspection and must provide opponent with a fair opportunity to challenge the record
(6) Neither the source of information nor other circumstances or preparation indicate a lack of trustworthiness
Absence of a Record of a Regularly Conducted Activity
Public Records and Reports
i. public records setting out the offices activities
ii. Records concerning matters observed by public officials when there was a duty both to make the observation and to report on the matters observed
*Criminal case: excludes matters observed by law enforcement personnel if offered by prosecution
iii. Admits factual findings from a legally authorized investigation in a civil case or when offered against the government in a criminal case
* admission denied if sources of info or circumstances indicate lack of trustworthiness
Absence of a Public Record
Statements in Learned Treatises, Periodicals, or Pamphlets
(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.
Criteria for being unavailable:
(1) death, then existing physical or mental illness or infirmity
(2) statement proponent has not been able to procure the declarant's attendance with reasonable means
(3) claims privilege in court, on the stand
(4) Testifies to not remembering the subject matter
(5) refuses to testify despite a court order to
(1) Declarant Unavailable
(2) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(3) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
1. Declarant unavailable (does not have to be dead)
2. In homicide or civil action
3. Declarant makes statement while believing death imminent
4. Statement concerns cause or circumstances surrounding death
Declaration Against Interest.
A statement that:
(2) a reasonable person in the declarant's position would view statement as contrary to the declarant's proprietary, pecuniary, penal interest
(3) Is it a criminal trial and exposes declarant to liability? YES --> statement is supported by corroborating circumstances that clearly indicate its trustworthiness
*mixed statement? Go line by line and only parts against interest can come in
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
A hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:
(1) Reliability - the statement is supported by sufficient guarantees of trustworthiness-after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and
(2) Materiality - offered to prove fact of importance
(3) Probative Value - it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.
(4) Interests of Justice - admitting serves the purposes of the rules and the interests of justice
(b) Notice. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement-including its substance and the declarant's name-so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing-or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.
(1) Was there a statement?
(2) Who is the declarant?
(3) What the statement made other than while testifying in this current trial/hearing?
Is the statement being offered to prove the truth of the matter?
Is there an exemption (804)?
Is there an exception (803)?
Can the Residual Exception apply (807)?
Is this a criminal case where the statement is offered by prosecution? (Confrontation Clause)
FRE 801(d)(1)(a) and (b)
Prior Consistent and Inconsistent Statements
*declarant must testify
*Declarant must be subject to cross examination concerning the statement (on stand, under oath, responds willingly to questions)
Prior Inconsistent Statement:
(2) made under penalty of perjury at a trial, hearing, proceeding, deposition (not affidavit)
Prior Consistent Statement
(2) prior statement is offered to rebut an express or implied charge of recent fabrication, improper influence or motive, or to rehabilitate the declarants credibility as a witness
(3) Statement must have been made before the alleged fabrication or before the alleged improper influence/motive arose
*Prior statement does not have to be made under oath
Statements of Prior Identification
(1) declarant must testify at the trial or hearing
(2) declarant must be subject to cross examination about the prior statement
(3) Statement must be one that identifies a person as someone the declarant perceived earlier (specific person, does not have to be in person, statement does not have to come in through declarant)
Forfeiture by Wrongdoing Exception (confrontation clause won't apply!!!)
(1) declarant unavailable
(2) statement offered against a party that wrongfully caused (or acquiesced) the declarants unavailability as a witness
(3) did so intending that result
The Confrontation Clause
(1) admissible HEARSAY
(2) Criminal Case
(3) Offered by Prosecution
Testimonial statements are made under circumstances which would lead an objective witness reasonable to believe that the statement would be available for use in later trial - Use CC
(4) If testimonial, is the declarant unavailable and D had prior opportunity to cross?
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to met an ongoing emergency - Can't use CC
*A forensic analysts report prepared in connection with a criminal investigation or prosecution is testimonial if offered by the prosecution against a criminal defendant→ need specific analyst
All Hearsay Exceptions
Present sense impression
Then-Existing Mental, Emotional, or Physical Condition
Statement Made for Medical Diagnosis or Treatment
Absence of a Business Record
Absence of a Public Record
Statements in Learned Treatises, Periodicals, or Pamphlets
Declaration Against Interest
Forfeiture by Wrongdoing Exception
All Hearsay Exemptions
Party Opponent Statement
Prior inconsistent Statements
Prior consistent statements
Statement of Prior Identification
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