What is the effect when a hearsay exception applies? What if the declarant is unavailable?
- The evidence comes in and it doesn’t matter whether the declarant is available or not
- b/c of necessity (declarant is unavailable) OR
- b/c the statements are inherently trustworthy (availability is immaterial)
In what situations is hearsay allowed because the statements are inherently trustworthy?
Declarant’s availability as a witness is immaterial
- Present sense impression
- Excited Utterance
- Statement of mental, emotional, or physical condition
- Statement made for medical diagnosis/treatment
- Recorded recollection
- Business Records
- Public Records
- Learned treatises
- Judgment of previous conviction
In what situations is hearsay allowed because of Necessity?
When Declarant is unavailable as a witness
- Former Testimony
- Dying Declaration
- Statement against Interest
- Statement of personal/family history
- Statement against party that caused declarant’s unavailability
What is the hearsay exception for present sense impressions?
A statement describing an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay
- Declarant doesn’t need to be known
- Can be any subject matter
- Can be oral or in writing
What is the hearsay exception for excited utterance ?
- Statement made about a startling event or condition
- Made while the declarant is under the stress of the event or condition
What is the hearsay exception for statements made for the purposes of madical diagnosis or treatment
Describing med. history or past/present syptoms is not hearsay if:
- Made for the purpose of med. diagnosis or treatment
- They can be made to any medical professional
- Statements to other medical personnel, ambulance drivers, or family members may be included
- Statement does not have to come from the patient
- Relationship b/w declarant & patient determines admissibility
- The closer the rel. the stronger the motive to tell the truth & more presumably reliable the statement
- Court must weigh value against prejudice
What is the hearsay exception for statement of mental, emotional or physical condition ?
Statement of the declarant’s then-existing state of mind or emotional, sensory, or phys. condition is not excluded as hearsay
*
Statement of declarant’s then-existing state of mind
Statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind
Statement of declarant’s then-existing physical condition
When declarant’s phys. cond. at a particular time is in question
- statement of declarant’s mental feeling, pain, or bodily health
- made at that time
- can be used to prove the existence of that cond.
- but not its cause
What are the elements of the hearsay exception for past recollections recorded ?
If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the following foundation is established:
- The record is on a matter that the witness once knew about,
- The record was made or adopted by the wit. when the matter was fresh in the witness’s memory
- The record accurately reflects the witness’s knowledge, and
- The wit. states that she can’t recall the event well enough to testify fully & accurately, even after consulting the record on the stand
Statements of memory or belief are only admissible when relating to what?
A will
What are the rights of an adverse party when past recollection recorded is used?
- Right to inspect the writing
- Right to cross-examine with it
- Right to show it to the jury for comparison
- Right to introduce relevant portions into evidence for its truth
What are the elements for the hearsay exception of records of regularly conducted activities ?
(Business Records) A record of an act, event, condition, opinion, or diagnosis is nto excluded as hearsay if:
- Rec. made in the regular course of business
* Can’t be made w/ anticipation of litigation - The making of the rec. was a reg. practice of that activity AND
- A foundation wit. familiar with the rec. keeping process testifies to the process (pers. know. of the specific writing is not req.)
What are the elements for the hearsay exception for the absence of an entry in records?
Evidence that a matter is not included in a record of a reg. conducted activity may be admiss. to prove the matter didn’t occur or exist if:
- A wit. is familiar with the records
- The wit. did a diligent search of the records
- The fact that he did not find a rec. may be admitted to prove non-occurence of the event or non-existence of the matter
What is the hearsay exception for public records and reports?
A hearsay exception applies to a record or statement of public office or agency that sets out:
- The activities of the office or agency
- An observation of a person under a duty to report the observation (except for an observation of a law enforcement officer offered in crim. case) OR
- Factual findings of a legal investigation, when offered in civil case or against gov’t in a crim. case
What is the hearsay exception for records of vital statistics?
Records or data compilations of births, deaths, or marriages are admissible if event reported to a pub. office in accordance with a legal duty
What is the hearsay exception for learned treatises?
A statement in treatise, periodical, pamphlet is not excluded as hearsay if:
- Judge takes notice
- Expert says it’s authoritative
- Subject area is in medicine, science, art, history
When is a declarant unavailable?
A person who:
- Is exempt on the grounds of privilege
- Refuses to testify despite a court order to do so
- Lacks memory of the subj. matter of the statement
- Is unable to testify due to death, infirmity or phys. or mental disability OR
- Is absent & can’t be subpoenaed (good faith attempt required)
When does the former testimony hearsay exception apply?
Testimony given as a wit. is not excluded as hearsay if:
- Declarant unavailable
- Declarant made statement under oath
- Given by wit. in same or dif. but related action or in deposition (not grand jury)
- Party against whom ev. offered had an opportunity & similar motive to examine the witness & develop testimony, on direct, cross-examination, or redirect
When does dying declaration hearsay exception apply?
- Declarant is speaking about cause/circumstances of death
- Unavailable declarant (doesn’t have to be dead)
- Declarant has subj. belief that death is imminent
- Admissible in criminal case only if charge is homicide
- Admissible in any civil case
When does the statement against interest hearsay exception apply?
- Statement was against declarant’s interest when made (ownership of prop., money, crimes) AND
- Wouldn’t have been made by a reas. pers. unless he believed it to be true
When does the statement of personal or family history hearsay exception apply?
Statement concerning the unavailable declarant’s own birth, adoption, marriage, divorce, legitimacy, familial rel. is not excluded as hearsay
When does the statement Against party that caused declarant’s unavailability hearsay exception apply?
The wrongful party forfeits the right to object to the admission of the declarant’s statement as hearsay
- Wrongdoing can be deliberate act or by acquiescing to another’s act
- Act must be done with the intent of preventing wit. from testifying
When is the evidence of a final judgement of conviction hearsay exception?
- The judgment was entered after a trial or guilty pleas
- The conviction was for a crime punishable by death or imprisonment for more than one year AND
- The evidence is offered to prove any fact essential to sustain the judgment
