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Evidence 6: Hearsay

Terms in this set (23)

Hearsay is ________.

It is ______ unless subject to an _______ or _______.
the out of court statement of a person (oral or written) offered to prove the truth of the matter asserted in the statement.

inadmissible, exclusion, exception
Principal Categories of Non-Hearsay Purposes (offered to prove something other than the truth asserted in the statement) (3):
1. Verbal Act (legally operative words)
e.g. "I accept your offer to sell," or "Here, have my watch."

2. Effect on Listener
(e.g. anonymous note telling woman her husband was having an affair)

3. Circumstantial Evidence of Speaker's State of Mind
(e.g. Homer says, "I'm Elvis.")
Hearsay Exclusions-Statements Offered for their Truth that are Not Hearsay (4):
1. Party opponent statement (admission)-only if offered against the party (if offered by the party, it's just hearsay and inadmissible)
2. Prior inconsistent statement, given under oath, of a W in the current case
3. Prior ID by a W in the current case
4. Prior consistent statement of W in current case to rebut charge of recent fabrication, inconsistency, or sensory deficiency.
Subcategories of Party Opponent statement (admission):

1. Adoptive Admission (including by silence)
2. Vicarious Party Admission: The statement must concern _______________ and be made _____________.
3. Co-conspirator's statement: The statement must be made ______ and ________ the conspiracy
2. matter within the scope of agency/employment,
during the existence of the agency/employment relationship
(Note: It's irrelevant whether they're on duty/at work when they make the statement)

3. during, in furtherance of
Random Hearsay Exception:
1. Forfeiture (Declarant unavailable due to W's wrongdoing)
Hearsay Exceptions that Require Unavailability:
2. Former Testimony
3. Statement Against Interest
4. Dying Declaration
Grounds of Unavailability (5):
1. privilege
2. absent from the jurisdiction (can't be found with due diligence or is beyond court's subpoena power)
3. illness or death
4. lack of memory
5. stubborn refusal to testify
Hearsay Exceptions that Don't Require Unavailability:
5. Excited Utterance
6. Present Sense Impression
7. Present State of Mind
8. Declaration of Intent
9. Present Physical Condition
10 Statement for purpose of medical treatment or diagnosis
11. Business Records
12. Public Records
(Also recall Past Recollection Recorded, Learned Treatises)
Right of Confrontation

6A right of confrontation requires a _________ D be "confronted" with the witnesses against him, meaning he must have __________.

Thus, pros may not use a hearsay statement against criminal D-even if it falls within a hearsay exception-if (3):
criminal
the opportunity to cross examine

1. the statement is testimonial,
2. the declarant is unavailable, and
3. D had no opportunity for cross-examination
Right of Confrontation

Grand jury testimony is __________.

Statements in response to police interrogation are testimonial if _____________________.
They are not testimonial if ___________________.
testimonial

the primary purpose of the questioning was to establish or prove past events potentially relevant to a later criminal prosecution.
the primary purpose of the questioning was to enable police assistance to meet an ongoing emergency.
Right of Confrontation

Business Records:

Sworn Affidavits:

Forensic Lab Reports:

Even if a forensic report is testimonial, _____.
not testimonial

testimonial

testimonial if primary purpose is to accuse a targeted individual, but not testimonial if no particular person is suspected at the time of analysis.

no confrontation violation occurs if pros calls an expert who does an independent analysis and only refers to the report to show she used it as part of her analysis. (Then it's not being used for a hearsay purpose.)
Unavailability Hearsay Exceptions

Former testimony:

Grand jury testimony:
if at prior occasion party against whom its being offered had opportunity and motive to cross.

inadmissible bc no opportunity for cross.
Unavailability Hearsay Exceptions

Statement Against Interest (3 types):

Qualification in criminal cases: Statement against penal interest must be _________.
pecuniary
property (damaging property rep, e.g., I no longer own this property)
penal

corroborated by circumstances showing the trustworthiness of the statement.
Unavailability Hearsay Exceptions

Dying Declaration

Types of cases:
must concern the causes or circumstances of the declarant's death

Criminal: homicide only
Civil: any
Hearsay Exceptions (Unavailability Not Required)

Excited Utterance
self-explanatory
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