HEARSAY

THE BASICS

200

The Federal Rules define hearsay as a statement, other than one made by the declaration while testifying at the current trial or hearing, if the statement is being used for this purpose.

To prove the truth of the matter asserted.

400

(1) A person's oral or written assertion; or (2) nonverbal conduct intended as an assertion

is the definition of this requirement of the hearsay exclusionary rule

Statement

600

Statements related to the formation of contracts, defamation, bribery, cancellation, or permission all fall outside of the hearsay exclusionary rule because they are all this type of utterance

Legally operative facts

800

An out-of-court statement that incorporates other hearsay within it is know as this type of objection-worthy evidence

Hearsay within hearsay

1000

Prior Statements by Witness and Opposing Party Statements, are this type of statement

Non-hearsay

UNAVAILABILITY

200

(1) Former testimony;

(2) Statements against interest;

(3) Dying Declarations;

(4) Statements or Personal or Family History; AND

(5) Statements offered against party procuring defendant's unavailability all require this element to admit evidence despite the hearsay exclusion rule otherwise applying

Unavailability

400

(1) Now-unavailable witness' testimony was given at a trial, hearing, or deposition; and (2) there was a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful are the two requirements for this "unavailability" exception

Former testimony

600

DAILY DOUBLE:

Name the five methods of establishing unavailability.

1. Privilege applies exempting witness from testimony;

2. Refusal to testify concerning the statement despite court order;

3. Inability to remember the subject matter and testifies to same (testify to not knowing subject matter);

4.Subpoena didnt have any effect (W still absent) and the statement's proponent has been unable to procure his attendance or testimony by process or other reasonable means; AND

5. Mental illness, death, or physical illness makes W unable to be present or testify

800

A statement against interest requires that the statement be against one of these three types of interest

Pecuniary, proprietary, or penal interest

(Must also be such a statement that a reasonable person in the declarant's position wouldve only made the statement if true)

1000

Dying declarations only apply if the statement is offered in these types of litigation

Homicide or civil action

MISC 803(1) - (6)

200

"!" or when someone makes a statement under the stress of _____ produced by the startling event

Excited Utterance

400

A statement that describes or explains an event or condition that is made while or immediately after being perceived falls under this exception

Present Sense Impression

600

Statements made by the declarant to a doctor generally may be admissible despite the hearsay exclusionary rule if the statement is made under this condition

For medical diagnosis or treatment (including past conditions)

800

Under this exception, a record of an act, event, condition, opinion, or diagnosis is exempt from the hearsay if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification;

Record of a Regularly Conducted Activity (Business Record Exception)

1000

Declarations under this exception apply when the declarant's state of mind is directly in issues and material to the controversy.

Present state of mind

REFRESHING RECOLLECTIONS AND RECORDED RECOLLECTIONS

200

Witnesses may not read from prepared memorandums and must testify on the basis of their current recollection unless this exception applies

Refreshing recollection (and recorded recollection after too)

400

When the document is being used to jog the witnesses memory it is this concept being used

Refreshing recollection

600

When a witness's recollection is refreshed during testimony, the adversary has these three rights:

1. Inspect the memory refresher

2. Use it on cross

3. Introduce the item into evidence

800

If a document is used to refresh the witness's memory before testifying, then the rights of the opposing party only apply if this person uses their discretion to allow it.

The judge

1000

For the contents of the recorded document to be admitted into evidence despite the hearsay exclusionary rule, the foundation requires:

1. the witness had personal knowledge

2. the witness can vouch for the accuracy

3. the document was either made by the witness or adopted by the witness, and these other two requirements:

4. Made or adopted while fresh

5. Failed to jog memory

CONFRONTATION CLAUSE AND HEARSAY

200

The confrontation clause is afforded under this Constitutional Amendment

6th

400

The confrontation clause only prohibits these type of statements, which are sworn statements or statements made to police to aid in gathering information for eventual prosecution

Testimonial

600

Statements made to the police to aid in an ongoing emergency are admissible and the confrontation clause does not apply because the statements are held as

Nontestimonial

800

In order for the confrontation clause to apply, the declarant must be unavailable and this other requirement must be met.

Defendant has had no opportunity for cross examination

1000

Forensic reports that have this effect are inadmissible because the statements are testimonial.

Accusing a targeted person of criminal conduct (blood alcohol results)