Hearsay Exceptions

Three Categories of Exceptions in Fed

FRE 801)d: Nonhearsay / Admissions

  1. Judge Retains Discretion 2 Excl. in All Adm by FRE 403
  2. Adm. of Party Opponent (APO)
    1. Def of Party Opponent
      1. Anybody who U want 2 offer against / whose int. is contrary
    2. Reqts
      1. Party opponent said it
      2. APO against party of the case
    3. Not Req.
      1. Against party opponent's int. @ X stmt made
      2. Pers'al knowledge
      3. Detailed
      4. Close in X
      5. Factual
    4. Uses
      1. Adversary sys. is justific. 4 uses
      2. Can use the stmt in any way once falls under the exception
      3. Party opponent can't use own stmt against U
    5. Can't Use
      1. In crim. case, can't use V's stmt against people / state b/c V not a party
      2. Can't use another person's words against co-party (Ghezzi)
  3. Adm. by Conduct
    1. Gen.'ly Exception 4 Nonassertive Conduct in C/L
      1. Spoilation evid. def'ed as tinkering w/process of justice by lying, fleeing from cops, forging evid., etc. can B nonassertive conduct of D
      2. Can admit by adm. by cond. when party opponent / D do it
  4. Adm in Ct Papers / Pleadings
    1. Stmts in Present Pleading of Any Case
      1. Jud'al adm. so can't adm. contrary evid. b/c it's concl.
      2. Applies 2 current pleading / doc's that narrows the issues
        1. Ans.
        2. Complaint
        3. Req. 2 admit fact (discov.)
        4. Stipulation of facts
        5. Pretrial stmt
    2. Amended Pleading in Civil Case
      1. Amended 2 deny alleg, then no jud'al adm. but ord. APO
    3. Amended / W/drawn Guilty Plea in Crim. Case
      1. Not adm. b/c prejud'al 2 D
    4. Use of Crim. Stuff in Later Civil Cases
      1. Crim. guilty plea can B used in later civil cases as ord. APO
      2. CA
        1. Msdr charge can't B offered in later civil cases as APO
        2. Felony charge can B used in later civil cases as APO
  5. Adoptive Adm.
    1. Rules
      1. CA 1221: manifests adoption / belief in truth by words / cond.
      2. FRE 801)d)2)B: manifests adoption / belief as true
    2. Conduct / Somebody Else's Stmt Attrib.'ed 2 Party Opponent as Adm
      1. If party opponent there +
      2. In background context would likely deny if untrue +
      3. Cause rsbl person 2 think party opponent
    3. Judge Dec's Prelim. Fact Pattern
  6. Auth'ed Adm.
    1. Rules
      1. CA 1222)a: Stmt by person auth'ed by party 2 make stmt 4 him concerning the subj. matter of the stmt
      2. FRE 801)d)2)C: Stmt by person auth'ed by party 2 make a stmt concerning the subj.
    2. Can B Exp. / Implied
  7. Adm. by Agent / Ee
    1. C /L
      1. Split
        1. Conservative view: can't adm. low ranking ee's stmt against er even if stmt in scope of his empl.
        2. Liberal view: can adm. low ranking ee's stmt against er if
          1. Has auth. 2 speak on behalf of the er +
          2. Stmt concerning his range of duties
      2. Can't adm. in-house notes b/c not intended 4 outside
    2. FRE 801)d)2)D: Adm Stmt by Party's Agent / Servant If
      1. Matter w/in the scope of agency / empl. +
      2. Stmt made during the existence of rel.
    3. CA 1224 & Labis v. Stopper: Probably Adm Stmt by Party's Agent / Ee If
      1. Facts clear that agent / ee really knew what happened +
      2. Stmt closely in X 2 event +
      3. Agent / ee still empl'ed @ X made the stmt
      4. Agent / ee auth'ed 2 act
      5. Agent / ee caused accident unless omission of axn applies b/c derivative liab.
  8. Adm. By Co-Conspirator
    1. Justice Theory & Adversary Sys. as Justif.
    2. Prelim. Fact / Found'al Fact Reqt
      1. Decl. & party opponent in conspiracy
      2. Stmt made during conspiracy
      3. Stmt in furtherance of conspiracy
    3. Est. Prelim. Fact 2 Judge Before Jury Hears
      1. But can allow stmt before est'ing prelim. fact if in int. of justice
    4. Two Types of Fact Issues
      1. Type A: FRE 104)a
        1. Judge dec's by prepond. of evid.
        2. Not bound by evid. rules except 4 privilege in est'ing facts
        3. Used 4 prejud'al prelim. fact issues
      2. Type B: FRE 104)b
        1. Judge dec's if enough evid. 2 support finding that prelim. fact exists THEN
        2. Jury can dec. whether fact est.'ed
        3. Used only 4 evid. that's irrelev. unless fact is est'ed

Unavailability: FRE 804

  1. Rationale: Nec. B/c of Unavail. Live W
  2. Def. of Unavail.
    1. Fed & CA
      1. Dead
      2. Too sick
      3. Absent & beyond subpoena
      4. Subpoenaed but not come
      5. Priv. not 2 testify
    2. Fed
      1. Refuse 2 ans.
      2. Can't remember
    3. CA
      1. Disqualified from testifying
      2. Testifying would cause trauma
  3. Former Testimony Exception
    1. Reqts: FRE 804)b)1: CA 1291)a)2 / 1292
      1. Unavail. decl. +
      2. Hearsay stmt taken under oath under former prcg's +
        1. Civil / crim. case
        2. Arb.
        3. Depo in another / present case
        4. Hrg on motion 4 prelim. injunction
        5. But not incl. Cong. hrg
      3. At that prcg, person against whom trying 2 use former testi. had
        1. Opp. 2 examine / cross exam., not actual cross+
        2. Had same motive / int. that he now has (predecessor in int. 4 FRE)
    2. Split 4 Motive, Int., & Opp. Prong
      1. In C/L, conservative not ok's use against party who wasn't party before but liberal ok
      2. FRE splits 4 narrow v. broad predecessor in int. reading but mostly like broad reading
      3. CA is liberal b/c allows even if not same party so long as opp. 2 cross decl. w/similar int. & motive
  4. Decl. Against Int. Exception
    1. Reqts
      1. Unavail. decl.
      2. Req's pers'al knowledge except 4 experts
      3. Against decl's int. @ the X stmt made
        1. Recog. in all jxns
          1. Prop.
          2. Pecuniary
          3. Civil
        2. Recog. in FRE 804)b)3 & CA 1230
          1. Penal
          2. FRE req's corroborating evid. if trying 2 exculpate
          3. FRE not incl. collateral stmt
        3. Recog. only in CA
          1. Social int.
    2. Uses
      1. Can B own decl.
  5. Dying Decl.
    1. C /L Reqts
      1. Decl. must B dead
      2. Stmt made when decl. aware that death was imminent & cert.
      3. Stmt offered in crim. homicide
      4. D accused of killing decl.
      5. Stmt rel. 2 cause / circ. of decl's death
    2. CA 1242
      1. Stmt of cause & circ. of death
        1. Of pers'al knowledge +
        2. Impending death
      2. Dying person
      3. Can B in civ. case
    3. FRE 804)b)2
      1. Case 4
        1. Homicide /
        2. Civil axn / prcg
      2. Stmt made about cause / circ. of death
      3. Decl. thought death was imminent
  6. Family History Exception
    1. Admit Even If No Pers'al Knowledge
  7. Residual Exceptions
    1. Pwr 2 Create New Hearsay Exception
      1. CA, judges have pwr
      2. FRE 804)b)5 gives explicit auth.
        1. Unavail. W
        2. Piece of evid. not fit w/reg. hearsay evid.
        3. Most probative evid.
        4. Same kind of guarantees
        5. Int. of justice
        6. Advance notice 2 adversary

Comparability Exception: FRE 803

  1. Reliable Evid. Even if Hearsay
    1. Multiple Hearsays Need 2 Satisfy Hearsay @ Each Level
  2. Excited Utterance FRE 803)2 / Spontaneous Stmt CA 1240
    1. Reqt's
      1. Exciting event / condition
      2. Stmt made while decl. still under stress of excitement
      3. Stmt about that exciting event
  3. Present Sense Impression
    1. FRE 803)1
      1. Event / condition
      2. Decl. who perceives event / condition
      3. Stmt made while perception of event going on / rt. after
    2. Not Recog.
      1. Maj. C/L
      2. CA
  4. Stmt of Phys. Condition Exception (only fed.)
    1. Reqt 4 Present Body Condition
      1. Stmt of decl's present bodily condition
    2. Past Bodily Condition
      1. Can't admit
      2. Exception 4 stmt made in course of med. exam 4 diagnosis / treatment
  5. Decl's Direct Evid. of Present S/M Exception
    1. Uses
      1. If S/M itself an issue, then prove what that S/M was @ the X, little before, / little after stmt made
      2. Intent 2 do something as evid. that decl. later did it
    2. Limitation of Using Decl's S/M
      1. Not use 1 person's stmt of intent 2 prove what 2nd person did
        1. In C/L, allow 2 prove what 2nd person did
        2. Split in Fed & CA
      2. Can't use stmt of memory / belief 2 prove what they believed is true
        1. Under CA 1250)b, FRE 803)3, & C/L
        2. Not matter if forward / backward looking stmt
  6. Doc's Used
    1. Stmt of Past Recollection Recorded Exception
      1. Refreshing Memory Not An Exception
        1. Anything 2 refresh memory b/c not evid.
        2. If use writing 2 refresh, dang.'s b/c
          1. Priv. can B waived
          2. Rule of compl. entitles adversary 2 see the whole
          3. FRE 612 allows adversary 2
            1. Req. prod. of doc. used
            2. Use 2 cross W
            3. Intro. pertinent parts as evid.
      2. Reqts 4 Fed, CA, & C/L
        1. W perceived event
        2. Can't fully remember event
        3. Record made when W's memory was fresh
        4. Record accurately recorded W's perception
        5. Authenticate it / show that this doc. is the record
      3. Proced.
        1. Try 2 refresh memory but not work
        2. Show 2 adversary counsel
        3. Ask W 2 authenticate & let W keep it
        4. Ask 2 read 4 jury b/c jury not get 2 see it
    2. Busi. Record Exception
      1. Reqts
        1. Must B busi. (broad def.)
        2. Record that is prompt, regular & routine
          1. Computer record ok
          2. Absence of record 4 no trxn can B evid.
          3. Can B oral as long as had busi. duty
        3. Real / proper busi. rsn 4 info
          1. Not all routinely filed satisfies as proper busi. record
        4. Need W 2 authenticate
        5. Show trustworthiness
          1. Det. case by case b/c vital factor in busi. record
          2. Can consid. w/motive 2 lie
    3. Pub. Records
      1. Reqt: Overlaps w/Busi. Records
        1. Doc's in reg. course of govt'al agency
        2. Made on / about X which it rel's
        3. Good govt'al rsn 2 write down info
        4. Authentication
          1. No need 4 authenticating W b/c jud'al notice that pub. records properly recorded & maintained
          2. No authenticating W 4 certified copy b/c self-authenticating
        5. Trustworthy
          1. Not matter if fact / opinion so long as trustworthy
      2. Not 4 Cop Investig. Report: FRE 803)8)B
        1. In crim. case, matters observed by cops / other law enforcement personnel restricted in pub / busi. records but not apply 4
          1. Civil cases
          2. Non-investig. reports / ministerially created report
          3. When D's atty presents it against prosec'or
    4. Felony Jgmt Exception
      1. Final jgmt of guilty in felony case can B adm'ed in civil axn 2 prove any fact essential 2 jgmt
  7. Residual Exception: FRE 803)24
    1. Five Found'al Facts
      1. Hearsay not fit w/reg. exceptions but similar guarantees / reliab. like other comparability exception
        1. Probably diluted version of confront. cl's reqt of reliab.
      2. Evid. of material fact
      3. Best / most probative piece of evid.
      4. Justice served
      5. Advance notice 2 adversary
  8. CA's Spec. Hearsay Exception 4 Crim. Prosec. of Child Abuse: 1360
    1. Reqts
      1. Only crim.
      2. Child V's stmt about act of abuse
      3. V must B lwr than 12 yrs.
      4. Not otherwise adm'able
      5. Strong indicia of reliab.
      6. If V unavail, then must have corroborating evid.
      7. Advance notice 2 adversary

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3/19/1997

Ms. Haeji Hong

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