Evidence III

801(a)--Statement

• Oral/Written Assertion+
• Non-verbal conduct+ 
• Intended as an assertion.

801(b)--Declarant

Person who made the statement.

Statement is only hearsay if offered to prove the content of the statement is true...

Not hearsay if merely offered as circumstantial evidence of what a declarant may have believed...known (even if a lie).

                             801(c)--Hearsay:

• Statement,
• By a Person,
• Made out of Current trial/courtl+
• offered to prove truth of matter asserted.

801(d)(1)(A)--Declarant Witness Prior Inconsistent Statement

• Declarant is testifying +
• Subject to Cross+
• Prior Inconsistent Statement+
• Given under Oath/Penalty of perjury.
• Permitted--to prove truth of matter asserted in prior statement.

801(d)(1)(B)--Declarant-Witness Prior Consistent Statement:

• Declarant +Testifying+
• Subject to Cross+
• Prior Consistent Statement+
• made in any setting+
• After charge of fabrication Or improper motive+
• Statement made b4 improper motive existed.

801(d)(1)(C)--Prior Identification

• Declarant + Testifying+
• Subject to Cross+
• Identifies +
• someone he/she Perceived.

• 801 (d)(2) (A)--opposing party statements

• Statement +
• offered against opposing party+
• made by that party.

• 801(d)(2)(B)_Manifested/Adopted :

• Statement +
• Offered Against opposing party+
• manifested/adopted to be true by that party.
•  ___*implied adoption where rea person would deny* (not in presence of arrest)

• 801(d)(2)(C)-Authorized
• Statement+
• offered against opposing party+
• made by person authorized to speak on matter.

801(d)(2)(D)-- Agent Employee...

• Statement+
• Offered against opposing party+
• made by opponent's employee/agent +
• within the scope of agency+
• and while agency existed.

801(d)(2)(E)__Co-Conspirator.

• Statement+
• offered against opposing party+
• made by Co-Conspirator+
• during & in furtherance of conspiracy.

• 801(d)(1)(A)--prior inconsistent Statements
• * Made under oath;
• * at trial; hearing or depo;
• * Proves matter asserted

613--Impeached by Prior Inconsistent Statement:

• * Made in any Context.
• * Only to Impeach (question credibility of W)
• * Subject to Limiting Instruction

801(d)(1)(B)--Prior Consistent Statements:

• * made in any context;
• * to rehabilitate only, (charge of improper motive/fabrication)
• * Must've made prior statement b4 improper motive existed.
• * Proves Matter Asserted.

613--Rehabilitate by Prior Consistent Statement

• * made in any context;
• * only to rehabilitate.
• * doesn't prove matter asserted.

• describing/Explaining+
• event or Condition+
• While/Immediately after perceiving it.

803(1)--Present Sense Impression:

• Relating to +
• Startling, +
• Event or Condition+
• while under the stress of excitement+
• caused by event or condition.

803(2)--Excited Utterance.

• Statement of Then Existing+
• State of mind; Emotional; mental; or Physical Condition+

(belief/memory is not admitted to prove fact remembered).

803(3)__State of Mind

• Statement +
• purpose of & +
• reasonably pertinent +
• to attaining medical diagnosis/treatment+
• *for anyone.

• and Containing:
• __medical history;
• __Past/Present Symptoms/Sensations;
• __Inception/General Cause of sensation/symptom.

803(4)--Medical Treatment/Diagnosis Statement

• Declarant Witness+
• W/D once knew but now forgot+
• May Read from a Record +
• made or Adopted by him+
• while Fresh in his mind+
• Accurately Reflects his then knowledge+
• Proves the matter asserted.

Admitted only by Opponent.

803(5)--Past Recollection Recorded.

• Record+
• Act/event/condition/diagnosis/opinion+
• At or near relevant time, or transmitted by insider w/knowledge+
• Regularly conducted and recorded activity+
• By testimony (qualified witness/custodian).

Unless, Source/Method/Circumstances indicate record is untrustworthy. (opponent bop).

803(6)--Business Record Activity

• Absence of Record+
• of Regularly conducted and Recorded activity+
• to prove matter is not in record.

Unless, source/circumstances indicate untrustworthy. (bop on opponent)

803(7) Absence of Business Record.

Record/Statement setting forth:

• Public Office's Activities, or +
• Matters observed within Scope of Duty+
• -not if by police +against Def. +Crim.case.
• __except--Def, may introduce;
• __except Police routine, non-adverserial records.
• Factual Findings of legally authorized Investigation+
• (opinions,facts,conclusions)
• + Civil Case and/or Against the K in Criminal case.

Unless, source/circumstances indicate untrustworthy.

• Testimony/certification+
• diligent search failed to produce+
• Records regularly kept by the public agency.
• __office's activities;
• __Observed matters w/in scope of duty;
• __findings of legally authorized investigation.

803(10)-- Absence of Public Record

• Statement+
• Document at least 20 years old+
• established Authenticity.

(watch out for hearsay within hearsay issues).

803(16) Acient Documents

• Market quotes, lists, directories, compilations+
• Public Reliance or Particular Professional Reliance.

803(17) Market Report/Lists/Pamphlets

• Statement+
• Treatise/periodical/pamphlet+
• Reliable Authority (testimony or judicial notice)+
• Expert witness+
• Relied During Direct or Cross-Examination+
• Read into Evidence (but not admitted)

• 804(a)(1)--Privileged
• 804(a)(2)--Refusal to testify
• 804(a)(3)--Memory, Lack of
• 804(a)(4)--Infirm/Death
• 804(a)(5)--Absent despite diligent effort & service of process. [re:(2-4).

• Hearsay+
• Declarant Unavailable+
• Prior Trial/Lawful Deposition+
• Offered against a party that had prior motive & opportunity to cross.
• (in civil--prior predecessor in interest is enough)

804(b)(1) Prior Testimony

• Hearsay+
• Declarant Unavailable+
• Criminal Homicide case+ or any civil case+
• Belief of Imminent Death +
• about cause/circumstance of death.

804(b)(2)  Dying Declaration

(FL--available in any criminal case,not just homicide)

• Hearsay+
• Declarant Unavailable+
• Believed to be against his interests (when made) [proprietary, pecuniary, penal]
• *if crim case & penal interest = must be supported w/corroborating circs.[preponderance]

804(b)(3)--statement against interests

• hearsay+
• Declarant Unavailable+
• his family history,+
• another persons' family history, and death (if he's intimately associated w/that person or related to).

804(b)(4)--Statements of Family History.

• Hearsay+
• Declarant Unavailable+
• Offered against the Party who:
• __wrongfully caused Declarant's unavailability +
• (coercion, pressure, undue influence)
• __Intending to cause his unavailability.

804(b)(6)--Forfeiture.

• Criminal Case+
• (civil trial = limiting instruction is enough)
• Multiple co-defendants+
• Admission by 1 party opponent is involved+
• Declarant D doesn't testify+
• +K must decide to either:
• __Redact (if possible);
• __Separate (trials/juries);
• __forgo using the statement.

• Unless:
• __Declarant Testifies (he can be crossed);
• __Statement can be attributed to all Ds. (adoption/manifest/conspiracy).

• Hearsay+
• Statement not covered by 803 or 804+
• Equivalent/circumstantial guarantees of trustworthiness+
• Material Fact+
• More probative than any other reasonably obtained method+
• Interest of justice served.

• **NOTICE REQUIRED**
• __reasonable (before trial/hearing);
• __intent to offer it & declarant's name & Address.

807--residual hearsay (catch all) [not in FL]

• Hearsay+
• Declarant Credibility+

• May be attacked/Supported (after attack)+
• As if he had testified.Except:
• * no notice required to impeach by inconsistent statement or conduct (no time limit);
• *no right to explain or deny required.
• *specific instance+good faith+ of anyone who delivers the declarant's statement.

Opponent may call declarant + cross him (w/leading questions & specific instances of untruthfulness).

806--supporting/attacking declarant credibility

• Hearsay+
• Hearsay Exception Applies+
• Criminal Case+
• Non Bruton Issue+
• Testimonial Statement+
• __Primary purpose= purpose of memorialize details of a crime for use at later trial.
• *lab reports (in primary purpose is to accuse a targeted individual)
• Declarant must be subject to cross-examination.
• *lab report = analyst must be there. (no stand ins_

• Unless=
• Not testimonial:
• __Enabling police assistance during emergency;
• __ b/w private parties (usually);

• 804(b)(1)--Former Testimony;
• 804(b)(2)--Dying Declaration;
• 804(b)(6)--Forfeiture
• 801(d)(2)(A-E)--Opposing Party Statements

• On its own, +
• __Upon Request + parties entitled to be heard.

• or Upon Request + supplies nec.info:
• __Upon Request + opponent entitle to be heard.
• (no admissibility requirement for the info.)

• Notice an adjudicative fact not reasonably disputed;
• because:
• _1: Generally known within JX, or
• _2: accurately & readily determined + source not reasonably questioned.

*notice may be @any stage.

• Jury Instruction:
• _Civil Case = noticed fact is conclusive.
• _Crim. = noticed fact may be ignored.
• _Stipulation = is conclusive.

201--Judicial Notice

• Confidential +
• Communications+
• Purpose of Obtaining/Rendering Legal Services+
• B/w Attorney +
• Client.

• Confidential +
• Communication +
• Purpose of Obtaining Diagnosis/Treatment of Mental/Emotional Problem. (inc. addiction)

• Confidential +
• Communications +
• During Valid Marriage +
• Survives Divorce.

*contrast w/federal testimonial privilege.

• Confidential +
• Communication +
• Purpose of obtaining spiritual counseling/advise.

• Confidential +
• Information +
• Relating to Trade Secret+
• Owned by Person/Entity.

• Professional Journalist +
• Qualified Privilege to refuse to disclose information +
• Obtained within scope of employment +
• while actively gathering news.

• Confidential +
• Communication +
• B/w Client and Accountant +
• Purpose of rendering accounting Services.