Define Hearsay
Any statement, not made by the current declarant during testimony or hearing.
When is hearsay admissible?
When it clearly meets the criteria for one or more exceptions/exclusions
What are the 4 statements excluded from being hearsay? 801(d)
- Prior inconsistent statements
- Prior statement offered for rebuttal
- Prior statement of identification
- Opposing party admissions
What are the 23 exceptions to hearsay where declarant’s availability doesn’t matter? 803
- Present sense impression
- Excited utterance
- Then-existing condition (mental, emotional, or physical)
- Statement made for medical diagnosis or treatment
- Recorded recollection
- Business records (regularly conducted)
- Absence of a (regular) record
- Public records
- Public records of vital statistics
- Absence of a public record
- Religious organization records
- Marriage, baptismal, and similar certificates
- Family records
- Property interest records
- Statements affecting interest in property
- Statements in ancient documents
- Market reports
- Learned treatises
- Reputation of personal/family hx
- Reputation concerning boundaries or general history
- Reputation concerning character
- Judgment of a previous conviction
- Judgments involving personal, family, or general history, or a boundary
What are the 5 exceptions hearsay where declarant’s availability does matter? 804
- Former Testimony
- Dying Declarations/Statements under belief of imminent death
- Statements against interest
- Statement of personal/family hx
- Forfeiture by wrongdoing (offered against a party that wrongfully caused the declarant’s unavailability)
What happens when a statement should be excluded from hearsay but doesn’t fit a category?
Courts may permit the statement if:
(a) it has sufficient guarantees of trustworthiness,
(b) is more probative than any reasonably obtainable evidence, and (c) notice is given.
When may a lay witness testify at trial?
(a) When they have personal knowledge
(b) Offer an opinion rationally based on perception
When may a lay witness’s testimony be excluded?
When specialized knowledge is required.
Are experts required to have personal knowledge to testify?
No. They may testify to facts they have been made aware of in their area of expertise
Who may impeach a witness
Any party.
When is character evidence NOT permitted?
Not admissible to prove conformity.
What are the 7 ways a witness may be impeached?
A party may point out:
1. Prior inconsistent statements
2. Bias/Interest
3. Conviction of a crime (NAD)
4. Bad acts
5. Reputation or opinion for untruthfulness
6. Sensory deficiencies
7. Contradiction
In a civil case, when is character evidence permitted?
ONLY when it is an essential element of the case.
In a criminal case, when is character evidence permitted?
- Defendant may introduce to establish a character trait. OR
- A prosecutor may use to rebut
When does a testimonial statement violate the confrontation clause?
When (1) declarant is unavailable and (2) OPP has no opportunity to cross-examine
When is a statement considered nontestimonial?
When the statement’s primary purpose is to address an ongoing emergency
