Evidence - Hearsay

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Evidence - Hearsay
2012-01-16 16:33:36
VA barbri

Evidence - Hearsay
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  1. Definition
    is a person’s 1) out of court statement 2) offered to prove the truth of the matter asserted
    • Verbal Act: legally operative words (I accept) are not hearsay
    • To show effect on person who heard or read the statement
    • Circumstantial evidence of speaker's state of mind
    • Prior statements of trial W; 3 exclusions: 1) identification of a person, 2) inconsistent statement if oral, under oath, and made during formal proceeding, 3) consistent statement if being used now to rebut charge of recent fabrication
    • Party Admissions: statement made by a party admissible if offered against that party
  3. Criminal D's Right of Confrontation
    • In the context of hearsay, the prosecution may not use a hearsay statement against the criminal D (even one falling under an exception) if:
    • 1. the statement is testimonial (grand jury testimony, police interrogation) rather than nontestimonial (primary purpose is to enable police assistance to meet an ongoing emergency, criminal at large); certain documents are testimonial (affidavits prepared for use at trial and police reports for proseuctorial purposes) other are not (business records)
    • 2. the declarant is unavailable, and
    • 3. D has had no opportunity for cross examination
  5. If W unavailable for lack of memory, death/disability, refusal despite court order, outside jurisdiction, privilege, then these exceptions may be used
    • Forfeiture: declarant unavilable due to D's wrongdoing; D's conduct designed to prevent the witness for testifying
    • former testimony: opportunity to cross examine
    • with a similar motive to develop testimony
    • statements against interest: pecuniary/proprietary/penal when made; corroboration if offered to inculpate/exculpate D
    • dying declaration: impending death about circumstances surrounding death can be used in all civil cases, but only in homicide criminal cases
  6. Regardless of whether W is available, the following exceptions apply
    • Present sense impression: describing event while occurring or immediately after
    • present state of mind: feelings, emotion, intent, physical condition
    • statements for the purpose of obtaining medical treatment: present or past systems or general cause but not statements of fault or Tort Feasor identity
    • business records: ordinary course, regularly kept, timely made, personal knowledge
    • public records: agency/office activity, observed pursuant to legal duty, authorized investigation findings
  7. Impeachment
    any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence