1
Q
Hearsay Exceptions - Declarant Unavailable
A
5 exceptions apply when dec unavailable to testify:
- former testimony
- statements against interest
- dying declarations
- statements of personal or family history
- statements offered against party procuring dec’s unavailability
2
Q
Grounds for Unavailability
A
- unable to testify due to death or physical or mental illness
- exempt from testifying because of a privilege
- refuse to testify concerning the statement despite court order
- testify that they do not remember the subject matter OR
- are absent (beyond reach of court’s subpoena) + proponent is unable to procure attendance/testimony by process or other reasonable means
-> dec who is able to give deposition testimony in lieu of attending trial is considered to be an available witness except wrt the former testimony exception and the forfeiture by wrongdoing exception
3
Q
Former Testimony Exception
A
Testimony of UNavailable witness admissible if:
- given under oath at a trial, hearing or deposition, in the same or a different case AND
- party against whom the testimony is now being offered (or, in civil case, the party’s predecessor in interest) had an opportunity + similar motive to develop dec’s testimony at the prior proceeding by direct, cross or redirect examination
-> basically, need to have been a party and the subject matter has to have been the same
- predecessor in interest refers to a person in a privity relationship with the party
4
Q
Hearsay and Grand Jury Testimony
A
- CAN’T come in under former testimony exception to hearsay because grand juries don’t allow for cross-examination
- theoretically might be able to come in as nonhearsay though as a prior inconsistent statement (would be admissible as impeachment AND substantive evidence)
5
Q
Statements Against Interest
A
UNavailable witness’ statement admissible if:
- against that person’s pecuniary ($), proprietary (property) or penal (crim) interest when made, such that a reasonable person in dec’s position would have made it only if they believed it to be true
- dec must have had personal knowledge of the facts AND must have been aware the statement was against their interest when they made it
6
Q
Limitation on Statements Against Penal Interests
A
- in crim cases, statements against penal interests (statements that would subject dec to crim liability) must be corroborated
7
Q
Statement Against Interest - Scope of “Statement”
A
- if dec makes a declaration w/ statements that are against their interest and statements that are not, the exception covers only those remarks that inculpate the declarant, not the entire extended declaration
8
Q
Dying Declarations
A
In HOMICIDE prosecution or ANY civil case, statement made by now-unavailable dec is admissible if:
- dec believed death was imminent (need not actually die) AND
- statement concerned the cause or circumstances of what dec believed to be their impending death
- statement must be based on dec’s perceptions + firsthand knowledge of what happened (unsupported op or speculation not enough)
9
Q
Reminders Re When Dying Declarations Can Be Used
A
- ANY civil case
- but ONLY homicide prosecutions (not attempted homicide, robbery, kidnapping, etc.)
- dec must be UNAVAILABLE
10
Q
Statements of Personal or Family History
A
- not frequently tested
- statements concerning births, marriages, divorces, relationship, genealogical status, etc. admissible provided:
1) dec is a member of the family in question or intimately associated with it
2) statements are based on dec’s personal knowledge of the facts or their knowledge of family reputation
11
Q
Statements Offered Against Party Procuring Declarant’s Unavailability
A
- statement of a person now unavailable is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured dec’s unavailability
- only meets this exception if motivation was to prevent dec from testifying
- if a party killed dec for a different reason, dec’s statement wouldn’t fall w/in this exception
12
Q
Hearsay Exceptions - Dec Availability Immaterial
A
DON’T require dec to be unavailable
- excited utterances
- present sense impressions
- present state of mind
- statement made for purposes of medical diagnosis or treatment
- records of a regularly conducted activity
- official records and other official writings
- record recollection
- learned treatises
- ancient documents
- docs affecting property interests
- reputation
- family records
- market reports
13
Q
Excited Utterances
A
- dec availability irrelevant
- out-of-court statement relating to a startling event, made while dec under stress of the excitement from the event
- note that sometimes failed dying decs can meet reqs for excited utterances
14
Q
Present Sense Impressions
A
- dec availability irrelevant
- statement that describes or explains an event or condition AND made while or immediately after the dec perceives the event/condition
15
Q
Excited Utterance vs. Present Sense Impression
A
- event/condition doesn’t need to be startling for present sense impressions (you could be describing/explaining anything), vs. DOES for excited utterances
- timing for present sense impressions a bit shorter (while or immediately after vs. excited utterances just still under the stress of the excitement + depends on circs)
16
Q
Present State of Mind
A
- dec availability irrelevant
- statement of dec’s then-existing (present) state of mind (including motive, intent or plan) or their emotional, sensory, or physical condition
- except as to certain facts concerning dec’s will, statement of memory or belief NOT admissible to prove truth of the fact remembered or believed
17
Q
Present State of Mind - Intent
A
- exception includes statements about dec’s intent to do something in the future, including intent to engage in conduct with another person
18
Q
Present State of Mind - Physical Condition
A
- covers dec’s statement to anyone about current physical condition
19
Q
Statements for Purposes of Medical Diagnosis or Treatment
A
- statement that describes person’s medical history, past or present symptoms, or inception or general cause is admissible as an exception to the hearsay rule if made for (and REASONABLY PERTINENT TO) medical diagnosis or treatment
- don’t necessarily need to be made to med personnel
- note that this covers statements of PAST condition (distinguishes this exception from present state of mind)
- statements of past physical condition made to a doctor employed to testify ARE admissible under this exception
-> for purposes of med diagnosis includes purpose of giving expert op
20
Q
Records of a Regularly Conducted Activity - Elements
A
- any writing or record made as a memorandum of any act, event, condition, op or diagnosis is admissible in ev as proof of that occurrence if following elements met
- “business” (includes every business, org, occupation or calling, including nonprofits)
- entry made in regular course of business
- entry made near time of event
- personal knowledge
21
Q
Entry Made in Regular Course of Business
A
- to be admissible:
1) record needs to have been made in regular course of business AND
2) the business must regularly keep such records (the entrant must have had a duty to make the entry)
-> self-serving accident reports prepared primarily for litigation usually inadmissible
22
Q
Business Records - Personal Knowledge
A
- must consist of matters w/in personal knowledge of the entrant, or within the knowledge of someone w/ duty to transmit such matters to entrant
23
Q
Business Records - Multiple Hearsay
A
- multiple hearsay often arises wrt business records (police reports, incident reports) -> make sure dec’s statement is under its own exception
24
Q
Business Records - Required Foundation
A
- authenticity of the record must be established by a sponsoring witness
-> can be a custodian of records or any person in the business who is knowledgeable about the business’s recordkeeping (doesn’t need to be author) - can be accomplished by records custodian:
1) testifying that the record meets the elements of the business records exception OR
2) certifying in writing that the record meets the elements of the business records exception
25
Business Records - Nonoccurrences
- business records that meet the above reqs may also be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record such matters
26
Business Records - Trustworthiness
- court has discretion to exclude if opponent makes a showing that the circumstances of the record indicate a lack of trustworthiness
27
Official Records and Other Official Writings
- public records reports
- records of vital statistics (admissible if reported to public office in accordance w/ legal duty)
- statement of absence of public record
- judgments
28
Public Records
- dec availability irrelevant
- writing must've been made by and within the scope of the duty of the public employee + must've been made at or near the time of the event
- similar to business records, court has discretion to exclude for lack of trustworthiness
Following are admissible:
- records setting dorth activities of the office or agency (ex: payroll records)
- recordings of matters observed pursuant to a duty imposed by law but NOT including police observations in crim cases
- in civil actions against gov in crim cases, but NOT against def in crim cases, records of factual findings resulting from an investigation authorized by law
29
Limitation on Law Enforcement Records as Public Records + Business Records
- generally, police reports can be admitted under public records exceptions
-> includes officer's ops + factual conclusions
- BUT public reports + records generally NOT admissible against def in crim case
-> investigative reports of police, FBI, + other agencies inadmissible
-> most courts have also held these can't be admitted against def under business records exception
30
Statements of Absence of Public Record
- ev in form of testimony or certification from custodian of pub records that they have diligently searched and failed to find a record is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur
- crim def has right to confrontation + may demand the presence of the person who prepared the certification
-> in crim case, this kind of ev is admissible in form of cert only if prosecution notifies defense at least 14 days before trial + defense doesn't object w/in 7 days in writing
31
Judgments
- certified copy of a judgment is always admissible proof that such judgment has been entered
- problem = to what extent facts adjudicated in the former proceeding can be introduced to prove facts in the present case
32
Prior Felony Conviction
- judgment of felony conviction = admissible in crim and civil actions as exception to hearsay rule to prove any fact essential to the judgment
-> in crim case though, gov can use the judgment for this purpose only against the accused (Against others, only for impeachment)
33
Prior Criminal Acquittal
- EXCLUDED
- b/c evidentiary standard higher in crim case -> acquittal not conclusive as to whether def would be found liable in a civil case
34
Judgment in Prior Civil Case
- generally excluded
- civil judgment inadmissible in subsequent crim proceeding b/c of different standards of proof
- also generally inadmissible in subsequent civil proceedings, subject to certain statutory exceptions
35
Recorded Recollections
- if a testifying witness' memory can't be revived, party may introduce memorandum or other record witness made or adopted at or near time of event
- under this exception, record can only be read into ev -> can't be admitted as an exhibit
36
Learned Treatises
Admissible as substantive proof if:
1) treatise is established as a reliable authority AND
2) the excerpt is relied upon by an expert during direct examination or brought to an expert's attention on cross-examination
- if admitted, such statements are read into evidence but not received as an exhibit
- admissible ONLY if introduced in context of expert testimony -> need an expert who either 1) relies on the treatise or 2) is impeached with the treatise
37
Ancient Documents
- statements in any authenticated doc prepared before Jan 1, 1998 are admissible
38
Docs Affecting Property Interests
- statement in a document affecting an interest in property is admissible if the statement is relevant to doc's purpose
- the exception won't apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the doc
39
Reputation Evidence
- hearsay b/c summarizes various out of court statements BUT routinely admitted
- several hearsay exceptions admit reputation ev to prove: character, personal or family history, land boundaries, and a community's general history
40
Family Records
- statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc. are admissible
41
Market Reports
- admissible if generally used + relied upon by public or persons in a particular occupation
July Exam - Evidence
flashcards
Decks in class (12)
# Cards
-
Relevance17
-
Public Policy Exclusions9
-
Character Evidence21
-
Authentications, Writings, and Real Evidence34
-
Witnesses25
-
Impeachment34
-
Hearsay - Basic Rule and Nonhearsay Statements24
-
Testimonial Privileges34
-
Procedural Considerations36
-
Hearsay Exceptions41
-
Hearsay Part 36
-
Witnesses - Part 218
