Let's play telephone!
Baier's Buckets: 4 categories that are often not hearsay:
(1) Statements that have independent legal significance
Defamation, Contract/Gift, Misrepresentation (fraud), extortion threats, authority/permission and consent.
(2) Statements offered to show effect on listener
(3) Statement to show declarant’s state of mind
(4) Prior inconsistent statements: impeach
Hearsay or Not? "On the issue of D's adverse possession of Blackacre, D's assertion, "I am the owner of this farm."
Not hearsay - independent legal significance.
Opposing Party Statements and a Declarant Witness's Prior Statement are both categories of what type of hearsay?
What is "Statutory non-hearsay"
What is the whole purpose behind the FRE 807 Residual Exception?
If hearsay evidence does not fit any other category, but is still incredibly trustworthy, the FRE 807 Residual exception can be used to get it in still.
What did Crawford stand for?
Whenever the state offers hearsay evidence against the accused that is “testimonial” in nature, 6th amendment confrontation clause requires a showing of: (1) Declarant’s unavailability; AND (2) a prior opportunity for cross-examination.
Yes, it is assertive conduct.
On the issue of X's provocation for assaulting Y, D's statement to X, her husband, "Y ravished me."
Not hearsay - effect on listener.
Under the 803(4) Statements for Medial Diagnosis or Treatment exception - does the statement have to be from a doctor?
No.
Evan and James are in jail together. Evan's trial is upcoming for the Murder of Wyoming. James is currently serving nineteen life sentences for the vicious attacks on Crayola City. Knowing he is never getting out, James tells Evan that he will testify that he was the one who murdered Evan's victim. Will this evidence be admissible?
No. The issue here is that this is a statement against interest in a criminal case, regarding exoneration. Therefore, the statement must be supported by corroborating circumstances that clearly indicate its trustworthiness.
In determining whether a statement, report, etc. is testimonial or not, what do courts usually look to?
The Davis primary purpose test. This test breaks down into these factors: 1) On-going event? 2) Statement elicited to respond to E? 3) statements current or past events? 4) Setting?
What is the definition of hearsay?
A statement, made out of court, offered to prove the truth of the matter asserted.
Hearsay or Not? On the issue of whether a transfer of a chattel from D to X was a sale or gift, D's statement accompanying the transfer, "I am giving you this chattel as a birthday present."
Hearsay- Independent legal significance.
James is a bus driver for ASU. James one day crashes his bus. James then fills out an accident report form. Is the form admissible hearsay?
In 2004 Bill testified at a trial in Arizona that he had never run a red light in his whole life. Bill, unfortunately, died in 2006. In 2009 Bill's wife is charged with running a red light. Assume Bill taught his wife how to drive. Bill's wife wants to use Bill's testimony to establish that he was a safe driver. Is this allowed?
No. Even though this is in Arizona, the free use rule only applies to civil cases where the declarant is unavailable. Here, the testimony is being offered in a criminal case. Therefore, because the State did not have the opportunity to depose Bill, and the information is inadmissible.
True or False: Crime lab reports and BAC reports are testimonial evidence in a criminal case?
True. In Bullcoming v. New Mexico Ginsburg's (RIP) opinion held that BAC tests are still testimonial, despite distinctions from crime lab reports. In Melina-Diez, Justice Scalia (RIP), held that crime lab reports were testimonial because they were prepared specifically for use at a petitioner's trial.
Ben is at trial and testifies "I saw a llama yesterday." Is this hearsay?
No, Ben is able to properly testify about his own observations.
On the issue of whether a transfer of a chattel from D to X was a sale or a gift, D's statement the day following the transfer, "I gave you the chattel as a birthday present."
Hearsay. No longer proving independent legal significance. After the fact.
Under FRE 804: Hearsay Exceptions; Declarant Unavailable, does the declarant have to be physically unavailable?
No. For a FRE 804 exception to apply, only the Declarant's testimony must be unavailable - for example, invoking the 5th amendment.
Is hearsay within hearsay allowed?
Yes, so long as each part of the statement has an exception that applies to it.
What is the Giles test?
If a criminal defendant takes actions specifically designed to prevent the witness from testifying, they waive their right to confrontation. -- same thing below, sorry.
You waive your right to confrontation if you took actions specifically designed to prevent the witness from testifying.
Test: Wrongdoing, with intent to silence the witness, and then causation. The preponderance of the evidence is the majority standard.
Double jeopardy. Players may each wager up to 500 points. If they are correct they get 1,000. If not, they lose 500.
Question: Is this hearsay? "Ryan ran a mile and after he crossed the finish line got shot. Immediately after he got shot in the chest he said "Grant, you can have my CALI award." Ryan thinks he is about to die, and the bullet nearly hits his heart. Ryan survives. Is this hearsay?
This likely could be an excited utterance or a dying declaration.
On the issue of D's ill feeling toward X, D's statement, "X is a liar and a hypocrite."
Non-hearsay.
Under 804(b)(2) - Statement Under the Belief of Imminent Death, does the Declarant have to actually die for this exception to be used?
No, technically the declarant must not die. However, the testimony still must be unavailable.
James witnesses a car accident while he is on the phone with his wife, Wifey. James starts describing the accident to his wife, including making statements such as: "the car just flipped. The driver ran a red light. He was speeding." Charges are eventually brought against the driver. Can this testimony be used against the driver?
Yes, under the present-sense impression exception. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. During or immediately after event + Describing. Never greater than a few minutes (usually only seconds). Declarant must have first-hand knowledge, 602.
What two possible exceptions are there to Crawford?
The dying declaration and forfeiture exceptions.