1. Hearsay Generally
    Inadmissible: statement to prove the truth about the matter asserted

    Exception: federal statute, FRE, Supreme Court
  2. Non Hearsay Examples (6)
    Data from machines

    Reaction from animals

    Explain conduct of police investigation

    Identifying characteristics

    Effect on listener

    Statements of contract
  3. Non Hearsay Declaration W prior statement
    Declarant W prior statement: testifies & subject to cross about statement

    Inconsistent: given under penalty of perjury (trial, hearing, other proceeding, deposition)

    Consistent: to rebut fabrication (statement occurred before motive to fabricate) or restore credibility from other attack

    Identification: person declarant perceived earlier
  4. Non Hearsay Opposing Party Statement
    Opposing party statement: must be offered against opposing party and (statement alone does not establish 3,4, and 5)

    • (1) Made statement
    • (2) Adopted or believed to be true
    • (3) Made by authorized person
    • (4) Made by agent or employee within scope of relationship while it existed
    • (5) Made by coconspirator during & in furtherance of conspiracy
  5. Hearsay Exceptions Generally (8)
    Present sense impression: event or condition description during or immediately after perceiving

    Excited utterance: startling event caused statement

    Then-existing condition: statement of state of mind, emotional, sensory, or physical condition

    Medical treatment: medical history, symptoms, inception, or general cause

    Recorded recollection: cannot recall, made/adopted by W, and reflects W knowledge

    Recorded statement: author doesn’t have to be W

    Record routine practice: act, event, condition, opinion, or diagnosis

    Conditions: info from person with knowledge (doesn’t have to be recorder), near time of occurrence, routine, trustworthy

    Procedure: W testify conditions met

    Absence of record: prove matter did not occur or exist

    Public records: public office activities and matter legal duty to report


    Criminal case: matter observed by law enforcement (police reports)

    Civil case: factual findings from legally authorized investigation

    Absence of public record: prove record did not exist or matter did not occur

    • Judgement conviction: judgement after trial or guilty plea (not nolo), prove material fact & 1+ yr. crime (if non-impeachment use it’s against D)  
  6. Hearsay Exceptions Declarant Unavailable 

    Criteria for unavailable (5)

    Exceptions (4)
    • Declarant Unavailable:
    • (1) Privilege
    • (2) Refusing to testify
    • (3) No recall
    • (4) Death, then-existing infirmity, physical/mental illness
    • (5) Can’t produce by process

    • Exceptions:
    • (1)Former testimony: given as W in any trial, hearing, or deposition and offered against party that had opportunity to direct, cross, or redirect
    • (2)Wrongful unavailability: Statement against party that caused declarant unavailability as W intentionally
    • (3)Imminent death: Declarant believed imminent death and made statement about its cause (civil cases or homicide criminal cases)
    • (4)Statement against interest: reasonable person in declarant position would only make statement if believed it to be true (economic interest, invalidate claim, exposure to civil or criminal liability) Criminal cases: corroborating evidence needed (timing when statement was made, motive to fabricate, repeated, people told, relationship declarant & party)
  7. Hearsay Residual Exception
    Residual exception: catch all interest of justice

    Requirement: notice before trial/hearing including declarant name and address
  8. 6th Confrontation Clause
    Inadmissible: hearsay is testimonial (must confront & cross)

    Test: reasonable W believe statements used in trial

    Testimonial: grand jury, formal interview with police, forensic reports,

    Non-testimonial: coconspirator statements, business records not created for prosecution, emergency interrogation with police
  9. Declarant Credibility Evidence
    Credibility: can be attacked when hearsay statement admitted, and supported by character, convictions, credibility impeachment

    Inconsistent statement: admitted regardless of its time of occurrence and declarant opportunity to explain or deny it

    Party: calls adverse declarant as W then can cross examine
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