Hearsay Generally
For purposes of the hearsay rule, a statement is either (1) ___, (2) ____, or ____ conduct intended as an assertion.
(1) Oral
(2) Written
(3) Nonverbal Conduct
Hearsay exceptions when declarant is unavailable include: (1) ___ Testimony, (2) ___ Against ___, (3) ___ Declaration, (4) ___ Pedigree, and (5) ____.
(1) Former Testimony
(2) Declaration Against Interest
(3) Dying Declaration
(4) Family Pedigree
(5) Forfeiture
A statement of declarant's ___-___ ___ of ___, ____, sensation, or physical condition is ____. A statement of memory or belief is ____ to prove the truth of the fact remembered or believed. This hearsay exception is called ___ of ___ ___ of ____.
then-existing state of mind, emotion/ admissible
inadmissible
Declaration of Present State of Mind
"Take my car and keys and go to Vegas and have good time"
Words of waiver or permission are not hearsay because they are words of legally operative fact.
Declarant told her secretary, "I am going to go over to Sam's house to adjust his fire claim."
Declaration of Existing Intent to do Something in the Not too Distant Future
aka Hillmon Doctrine
Out of court statements that are not hearsay because they are not offered for the truth include: (1) ____ ___ ____ (where the substantive law gives legal significance to certain words), (2) Statements Offered to ____ Their ____ on the ____ or ____ (to show notice was given, motive, good faith, or why the ___/___ acted or didn't act in a certain way) and (3) Statements Offered as ___ ___ of ____ ___ of ____ (evidence of insanity or knowledge).
(1) Legally Operative Facts
(2) Statements Offered to Show Their Effect on the Listener or Reader
(3) Statements Offered as Circumstantial Evidence of Declarant's State of Mind
Former Testimony
(1) former/present
(2) former/party/former/privity/party/former
(3) former/cross-examination
(4) former/oath
Numbers 1 & 3
Business records of events, conditions, opinions, or diagnoses are admissible if: (1) made __ or __ the time of the incident; (2) made by a person with ___; (3) ___ in the course of a ____ conducted ____ activity; and (4) was the ___ ___ of the ___ to make such records.
(1) at or near
(2) knowledge
(3) kept/ regularly conducted business activity
(4) regular practice/ business
On the issue of D's fear of V. W1 testifies that he heard W2 say to D, "V has knifed three people in the last year."
On the issue whether D or V was the aggressor. W1 testifies that he heard W2 say to D, "V has knifed three people in the last year."
Not hearsay. The words are used for their effect on the hearer, not for the proof of the fact asserted. The statement is evidence that D had a reason to fear V.
Hearsay, assuming that the reasoning is V had knifed three people, therefore, he is more likely to try to knife D. W2's statement that V had knifed three people is being used for the truth of the fact asserted.
Telling someone on the phone, "I will have to call you back because defendant just showed up and is knocking at the door"
Present Sense Impression
An ___ is a statement (or act) that amounts to a prior _____ by one of the parties of one of the ____ facts of the case. The ___ does not have to have ___ ___ about the topic she is speaking on and the statement does not have to be ___ her ____ at the time it is made. In California, this can be made by any party.
Admission/ Acknowledgment
Relevant/ Declarant
Personal Knowledge
Against/ Interest
A ___ against ____ is admissible if (1) the declarant is ___ at trial, (2) a ____ person in the declarant's position would not have made the statement if it was not ___, and (3) at the time the statement was made, it was ___ to the declarant's ___ , ___, and ___ interest. Additionally, the declarant must have (4) ___ ___ of the facts contained in the declaration and must have been ___ that the statement was ___ her ___ when she made it.
Bonus: Admissibility by a ___ ___ to show innocence require corroborating circumstances indicating the trustworthiness of the statements.
Declaration Against Interest
(1) unavailable
(2) reasonable/true
(3) contrary/pecuniary/proprietary/penal
(4) personal knowledge/aware/against/interest
criminal defendant
Public records are admissible if they are: (1) records setting forth the ___ of a given ___ or ____; (2) recordings of matters observed pursuant to a ___ ___ by law; and (3) records of ___ ___ resulting from an ____ ___ by law.
(1) activities/ office/ agency
(2) duty imposed
(3) factual findings/ investigation authorized
To show that defendant was home and thus could have killed his wife the prosecution calls her paramour who testifies that when hubby was gone and the coast was clear, the wife always pulled down a shade on a particular window but when he was home the shade was always open. The prosecution calls a neighbor who testifies that on the night of the murder the shade was open.
Hearsay. The probative value of the shades being pulled down, depends upon the credibility of the wife. Even though she did not make a verbal statement, her conduct was assertive and is the equivalent of the verbal statement hence raising issue of her credibility. The fact that the statement was intended for someone else does not make it less of a statement.
To prove that X was ill, W testifies that X, at the time, complained of a pain in his chest.
Circumstantial Evidence of Declarant's State of Mind and/or Declaration of Physical Condition Exception
If a party fails to respond to accusatory statements where a reasonable person would have spoken up, her ____ may be considered an ___ ___. The party must have (1) ___ and ___ the statement, (2) been ___ and ___ capable of denying the statement, and (3) a ___ ___ would have denied the accusation under the same circumstances. A failure to reply to an accusation or statement made by ___ in a ___ case, however, cannot be used as an ___ ___ because of the ___ Amendment right to ___ ___.
Silence/ Adoptive Admission
Heard and Understood
Physically and Mentally
Reasonable Person
Police/ Criminal/ Adoptive Admission
6th/ Remain Silent
___ ___ are admissible by a now unavailable declarant if the declarant (1) ___ her ___ was ____ at the time the statement was made and (2) the statement concerned the ___ or ___ of what she ___ to be her ___ ___. These are admissible only in a ___ ___ or a ___ action. In California, however, these are admissible in any ___ or ___ case provided that the ___ actually ____.
Dying Declarations
(1) believed/death/impending
(2) cause/circumstances/believed/impending death
homicide prosecution/civil
criminal/civil/declarant/died
Statements contained in ___ may be admitted into evidence and used as ____ evidence through being read to the jury if called to the attention of an ___ ___ during ___-___ or is ___ upon by the ___ in ___ testimony and are established as ___ authority.
treatises/ substantive/ expert witness
cross-examination/ relied/ expert
direct/ reliable
Action P v. D for injuries sustained when P fell through termite-eaten boards on D's porch. To prove that P was involved in such an accident, P offers the testimony of W: "D said that when he got home from work he heard that P had gone through the porch and that he thought it was too bad."
Hearsay because it is offered to prove the truth of the matter asserted. However, this is an admission and under the FRE, admissions are not hearsay. Although it is an admission, the admission might be only that D had heard it, not that it actually happened. On the other hand, a court would probably interpret that "he thought it was too bad" as being an affirmation that the accident had in fact happened.
Action P v. D for conversion of a new automobile. To prove value, P offers a receipt for the purchase price, $3000, signed by D, the dealer from whom P bought it.
Admission by Party Opponent
____ admissions are admissible against a ___, ___, or ____ for statements concerning any matter ___ the ___ of her ___, ___, or ___ and made ___ the ___ or ____ relationship exists. Additionally, admissions of a __-__ made to a third party in ____ of a ____ to commit a crime or a civil wrong, and made at a time when the declarant was ___ in the ___, are admissible against ___-___.
Vicarious/Agent/Employee/Partner
Within/Scope/Agency/Employment/Partnership
While/Employment/Partnership
Co-Conspirator/Furtherance/Conspiracy
Participating/Conspiracy/Co-Conspirators
___ ___ are statements concerning ___, ___, ___, relationship, etc. and are admissible if (1) made by a member of the ___ in question or (2) by a person ____ associated with it and are (3) based on the declarant's ___ ___ of the facts or (4) ____ of the ___'s ____.
___ statements are admissible against any ___ who ___ caused or acquiesced in the ___ of the ____ (wrongdoer ___ the right to object on hearsay grounds).
Family Pedigree/birth/marriage/death
(1) family (2) intimately (3) personal knowledge (4) knowledge/ family's reputation
Forfeiture/defendant/wrongfully
unavailability/declarant/forfeits
Hearsay exceptions where declarant's availability is irrelevant include: (1) Declaration of ___ ___ of ____, (2) Declaration of ___ Intent to do Something in the Not Too Distant Future (aka the ___ ___), (3) ___ ___, (4) Present ___ ____, (5) Declaration of ___ ___ (includes ___ __ condition and ___ ___ condition), (6) ___ ___ Exception (includes police reports in ___ cases only and ___ records), (7) Statements Concerning ___ Relationships, (8) Statements Contained in a Document Purporting to Establish/Affect an ___ in ___, (9) ___ Documents, (10) ___ ___ and the (11) Residual "___-___" Exception.
(1) Declaration of Present State of Mind
(2) Future/ Hillmon Doctrine
(3) Excited Utterance
(4) Present Sense Impression
(5) Declaration of Physical Condition (past bodily/present bodily)
(6) Business Records (civil/public)
(7) Familial Relationships
(8) Interest in Property
(9) Ancient Documents
(10) Learned Treatises
(11) Catch-All
Action P v. D. to prove that D was present in the city, D offers W's testimony that P said, "I know that D is in the city.
Action P v. D. to prove P's knowledge that D was in the city, D offers X's testimony that Z said to P, "D is in the city."
This is hearsay but is an admission by P and is hence admissible against her.
This is not hearsay because the statement is not used to show D is in the city, but rather to show that P had heard that D was in the city, which makes it more likely that she knew D was in the city.
Excited Utterance! There can be a lapse in time between the startling event and the utterance, but only if the time period did not allow for the declarant to relax and reflect upon the event.