Hearsay gen
Hearsay is
an out-of-court statement introduced to prove the truth of the matter asserted
A non-hearsay use would not be used to:
prove the truth of the matter asserted
Hearsay is not 801(d)(2):
an opposing partys statement (direct admisssions) Statements offered against opposing party and
(a) made by party in an indiviudal or rep capacity
(b) party manifested or adopted to be true
(c) made by authorized person
(d) agent or employee within scope
(e) made by a coconspirator during AND in furtherance
803 exception apply regardless of whether a witness is available, 803(1) and 803(2) exceptions are:
AND REASONING
803(1): PRESENT-SENSE IMPRESSION: statement describing or explaining an event or condition, made while or immediately after the declarant perceived it
803(2): EXCITED UTTERANCE: statement relating to a startling event, made while under stress or excitement that it caused
-THOUGHT TO BE RELIABLE
803(6)
Records of Regularly Recorded Contact
(a) the record was made at or near the time by-or from info transmitted by- someone with knowledge;
(b) kept in course of regularly conducted activity of a business, org, or etc
(c) whether record was a regular practice of that activity
(e) opponent DOES NOT SHOW lack of trustworthiness
4 risks of hearsay PNMS plus 3 missing safeguards OCD
perception, narration, memory, sincerity
oath, cross-examination, demeanor
Some non hearsay uses of out-of-court statements: DEV
1. declarants state of mind (mistake, knowledge, belief)
2. effect on listener (fear, duress, knowledge)
3. verbal acts ("operation conduct") (fraud, oral transaction, demand)
both 803(1) and (2) require:
"Tarek! Tarek!" case
personal knowledge
801(a) a "statement" means (OWN)
a person's oral assertion, written assertion, or non-verbal conduct, if the person intended it as an assertion
1. Declarant State of Mind Cases and Examples
Lyons v Morris, BARNEY CASE (mistake)
U.S. v Parry, MOMMY TESTIFY (knowledge)
Three Requirements for Confrontation Clause and where it stems from:
1. only applies to criminal convictions
2. right of accused only, not the government
3. "testimonial statement"
Sixth Amendment, Crawford v Washington
803(3), Hillmon Doctrine
showing one's then-existing present intent,
"I plan to travel to California"
Rule 802 (hearsay is not admissible unless)
otherwise admissible under
federal statute, these rules, other rules prescribed by the Supreme Court
2. Effect of Listener Cases
U.S. v Johnson, (knowledge) "you gotta stop writing prescriptions like that"
Primary Purpose Test
the test for whether the CC applies. only applies if the primary purpose of the statement was testimonial , Ohio v. Clark
803(4)
STATEMENT MADE FOR MEDICAL DIAGNOSIS OR TREATMENT
(a) made for--and is reasonably pertinent to medical diagnosis and treatment AND
(b) described medical history, past or present symptoms or sensations, inception or general cause
Statements that are NOT hearsay: 801(d)(1)(a,b,c)
(D)(2) LATER
(1) a declarant witness prior statement: the declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent w/ the declarants testimony and was given under penalty of perjury at trial, hearing,e etc (USED TO IMPEACH)
(B) consistent, offered to rebut recent influence or fabrication
(C) identifies a person as someone the declarant perceived earlier
3. Verbal Acts Cases and Examples
Saavedra- "credit card verification" phone call
Hanson- corn transaction, "this corn is yours"
Montana- "It's going to be 10k"
What is testimony?
"a solemn declaration or affirmation made for the purpose of establishing or proving some fact."
803(5)
Recorded Recollection:
(A) is in a matter the witness once knew but now cannot recall well enough to testify fully and accurately
(B) was made or adopted by the witness when matter was fresh
(C) accurately reflects witnesses knowledge