Evidence - Hearsay
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| Approach to Hearsay | 1) Isolate
2)Determine who is the declarant
3)Purpose for whcih the evidence is being offered:
--For its truth=hearsay
--Not for its truth=not hearsay
4)Apply the hearsay exceptions
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| Effect of Listener FRE 803(3) I | -Not Hearsay:
--Circumstantial Evidence offered to show:
1)Knowledge
2)Intent
3)Attitude
4)Belief
*OF the declarant or of the listener
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| Effect of Listener FRE 803(3) II | Hearsay Exception:
-Statement of then existing state of mind or physical condition
1)Intent
2)Design
3)Plan
4)Motive
*Offered for its truth
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| Statement Made for Medical Diagnosis or Treatment | Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain , or sensations, or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
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| FRE 803(6): Business Record | -Report or record concerning act or event
-Made at or near the time
-By a person with knowledge
-Kept in the regular course of business
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| Past Recollection Recorded I | -The witness once had personal knowledge or the writing;
-the witness now forgets the writing and showing the writing to the witness does not jog his or her memory;
the writing was either made by the witness or adopted by the witness;
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| Past Recollection Recorded II | -The writing was made when the event was fresh in the witness's memory; and
-The witness can attest that, when made, the writing was accurate
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| Absence of Entry in a Business record | Lack of a record to prove that a transaction or occurrence had not taken place, is admissible if it was the regular practice of the business to record such events if they had actually occurred.
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| FRE 803(2): Excited Utterance | Statement relating to a startling event made while declarant was under the stress of excitement caused by the event.
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| FRE 804(b)(2): Dying Declaration | 1)Statement must concern cause or circumstances of death
2)Unavailable declarant
3)Criminal homicide or any civil case
4)Declarant's belief of imminent death
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| Confrontation Clause | -The Confrontation Clause req' that
--In a criminal case
--Where the declarant is unavailable
"Testimonial" evidence is inadmissible unless D is given a prior opportunity to cross-examine the declarant.
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| Davis v. Washington & Hammon v. Indiana | -Non Testimonial:Primary purpose is to obtain police assistance to meet an ongoing emergency
-Testimonial: Primary purpose of the interrogation is to establish or prove past events relevant to later prosecution
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| FRE 804(b)(3): Declaration Against Interest | Statement of an:
1)Unavailable
2)Non-party (generally)
3)Against interest when made (penal, pecuniary or proprietary)
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| FRE(b)(1): Former Testimony | -Testimony from the same or different proceeding, or in a deposition
-Unavailable declarant
-Opportunity and similar motive to develop the testimony on direct, cross or redirect.
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| FRE 804(b)(4): Statement of Pedigree | A statement concerning declarant's own relationship by blood, adoption, or marriage or other similar fact of personal or family history.
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| Leading Questions | Appropriate When:
-On cross
-Hostile or adverse witnesses
-Questioning children
-Refreshing a witness
-Preliminary background matters
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| Spousal Privilege | -Protects communications Before AND during marriage (impressions/observations) Privilege lost at divorce
**Criminal cases ONLY
-Holder:
--Common law:Party spouse
--Fed. Courts: Witness spouse
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| Marital Privilege | -Protects communications only DURING the marriage
-Privilege survives divorce
-Both Civil and Criminal
-Holder:
--Both Spouses
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| Attorney Client Privilege | -Communications between a client and her atty are inadmissible
-Rationale:By assuring confidentiality the privilege encourages clients to make "full and frank" disclosures to their attys, who are then better able to provide advice and effective rep
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| Opinion Testimony | -Lay witnesses may offer opinion testimony, if:
-Opinions must be based on first-hand knowledge or perception; and
-Helpful to the finder of fact
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