Hearsay Exceptions
Three Categories of Exceptions in Fed
- FRE 803: Reliability
- FRE 804: Unavailability
- FRE 801)d: Nonhearsay
/ Categ 4 Exceptions Not Fitting in Other 2
FRE 801)d: Nonhearsay / Admissions
- Judge Retains Discretion 2 Excl. in All
Adm by FRE 403
- Adm. of Party Opponent (APO)
- Def of Party Opponent
- Anybody who U want 2 offer against / whose int.
is contrary
- Reqts
- Party opponent said it
- APO against party of the case
- Not Req.
- Against party opponent's int. @ X stmt made
- Pers'al knowledge
- Detailed
- Close in X
- Factual
- Uses
- Adversary sys. is justific. 4 uses
- Can use the stmt in any way once falls under
the exception
- Party opponent can't use own stmt against U
- Can't Use
- In crim. case, can't use V's stmt against people
/ state b/c V not a party
- Can't use another person's words against co-party
(Ghezzi)
- Adm. by Conduct
- Gen.'ly Exception 4 Nonassertive Conduct in C/L
- Spoilation evid. def'ed as tinkering w/process
of justice by lying, fleeing from cops, forging evid., etc. can
B nonassertive conduct of D
- Can admit by adm. by cond. when party opponent
/ D do it
- Adm in Ct Papers / Pleadings
- Stmts in Present Pleading of Any Case
- Jud'al adm. so can't adm. contrary evid. b/c
it's concl.
- Applies 2 current pleading / doc's that narrows
the issues
- Ans.
- Complaint
- Req. 2 admit fact (discov.)
- Stipulation of facts
- Pretrial stmt
- Amended Pleading in Civil Case
- Amended 2 deny alleg, then no jud'al adm. but
ord. APO
- Amended / W/drawn Guilty Plea in Crim. Case
- Not adm. b/c prejud'al 2 D
- Use of Crim. Stuff in Later Civil Cases
- Crim. guilty plea can B used in later civil cases
as ord. APO
- CA
- Msdr charge can't B offered in later civil cases
as APO
- Felony charge can B used in later civil cases
as APO
- Adoptive Adm.
- Rules
- CA §1221: manifests adoption / belief in
truth by words / cond.
- FRE 801)d)2)B: manifests adoption / belief as
true
- Conduct / Somebody Else's Stmt Attrib.'ed 2 Party
Opponent as Adm
- If party opponent there +
- In background context would likely deny if untrue
+
- Cause rsbl person 2 think party opponent
- Judge Dec's Prelim. Fact Pattern
- Auth'ed Adm.
- Rules
- CA §1222)a: Stmt by person auth'ed by party
2 make stmt 4 him concerning the subj. matter of the stmt
- FRE 801)d)2)C: Stmt by person auth'ed by party
2 make a stmt concerning the subj.
- Can B Exp. / Implied
- Adm. by Agent / Ee
- C /L
- Split
- Conservative view: can't adm. low ranking ee's
stmt against er even if stmt in scope of his empl.
- Liberal view: can adm. low ranking ee's stmt
against er if
- Has auth. 2 speak on behalf of the er +
- Stmt concerning his range of duties
- Can't adm. in-house notes b/c not intended 4
outside
- FRE 801)d)2)D: Adm Stmt by Party's Agent / Servant
If
- Matter w/in the scope of agency / empl. +
- Stmt made during the existence of rel.
- CA §1224 & Labis v. Stopper: Probably
Adm Stmt by Party's Agent / Ee If
- Facts clear that agent / ee really knew what
happened +
- Stmt closely in X 2 event +
- Agent / ee still empl'ed @ X made the stmt
- Agent / ee auth'ed 2 act
- Agent / ee caused accident unless omission of
axn applies b/c derivative liab.
- Adm. By Co-Conspirator
- Justice Theory & Adversary Sys. as Justif.
- Prelim. Fact / Found'al Fact Reqt
- Decl. & party opponent in conspiracy
- Stmt made during conspiracy
- Stmt in furtherance of conspiracy
- Est. Prelim. Fact 2 Judge Before Jury Hears
- But can allow stmt before est'ing prelim. fact
if in int. of justice
- Two Types of Fact Issues
- Type A: FRE 104)a
- Judge dec's by prepond. of evid.
- Not bound by evid. rules except 4 privilege in
est'ing facts
- Used 4 prejud'al prelim. fact issues
- Type B: FRE 104)b
- Judge dec's if enough evid. 2 support finding
that prelim. fact exists THEN
- Jury can dec. whether fact est.'ed
- Used only 4 evid. that's irrelev. unless fact
is est'ed
Unavailability: FRE 804
- Rationale: Nec. B/c of Unavail. Live W
- Def. of Unavail.
- Fed & CA
- Dead
- Too sick
- Absent & beyond subpoena
- Subpoenaed but not come
- Priv. not 2 testify
- Fed
- Refuse 2 ans.
- Can't remember
- CA
- Disqualified from testifying
- Testifying would cause trauma
- Former Testimony Exception
- Reqts: FRE 804)b)1: CA §1291)a)2 / §1292
- Unavail. decl. +
- Hearsay stmt taken under oath under former prcg's
+
- Civil / crim. case
- Arb.
- Depo in another / present case
- Hrg on motion 4 prelim. injunction
- But not incl. Cong. hrg
- At that prcg, person against whom trying 2 use
former testi. had
- Opp. 2 examine / cross exam., not actual cross+
- Had same motive / int. that he now has (predecessor
in int. 4 FRE)
- Split 4 Motive, Int., & Opp. Prong
- In C/L, conservative not ok's use against party
who wasn't party before but liberal ok
- FRE splits 4 narrow v. broad predecessor in int.
reading but mostly like broad reading
- CA is liberal b/c allows even if not same party
so long as opp. 2 cross decl. w/similar int. & motive
- Decl. Against Int. Exception
- Reqts
- Unavail. decl.
- Req's pers'al knowledge except 4 experts
- Against decl's int. @ the X stmt made
- Recog. in all jxns
- Prop.
- Pecuniary
- Civil
- Recog. in FRE 804)b)3 & CA §1230
- Penal
- FRE req's corroborating evid. if trying 2
exculpate
- FRE not incl. collateral stmt
- Recog. only in CA
- Social int.
- Uses
- Can B own decl.
- Dying Decl.
- C /L Reqts
- Decl. must B dead
- Stmt made when decl. aware that death was imminent
& cert.
- Stmt offered in crim. homicide
- D accused of killing decl.
- Stmt rel. 2 cause / circ. of decl's death
- CA §1242
- Stmt of cause & circ. of death
- Of pers'al knowledge +
- Impending death
- Dying person
- Can B in civ. case
- FRE 804)b)2
- Case 4
- Homicide /
- Civil axn / prcg
- Stmt made about cause / circ. of death
- Decl. thought death was imminent
- Family History Exception
- Admit Even If No Pers'al Knowledge
- Residual Exceptions
- Pwr 2 Create New Hearsay Exception
- CA, judges have pwr
- FRE 804)b)5 gives explicit auth.
- Unavail. W
- Piece of evid. not fit w/reg. hearsay evid.
- Most probative evid.
- Same kind of guarantees
- Int. of justice
- Advance notice 2 adversary
Comparability Exception: FRE 803
- Reliable Evid. Even if Hearsay
- Multiple Hearsays Need 2 Satisfy Hearsay @ Each
Level
- Excited Utterance FRE 803)2 / Spontaneous
Stmt CA §1240
- Reqt's
- Exciting event / condition
- Stmt made while decl. still under stress of
excitement
- Stmt about that exciting event
- Present Sense Impression
- FRE 803)1
- Event / condition
- Decl. who perceives event / condition
- Stmt made while perception of event going on
/ rt. after
- Not Recog.
- Maj. C/L
- CA
- Stmt of Phys. Condition
Exception
(only fed.)
- Reqt 4 Present Body Condition
- Stmt of decl's present bodily condition
- Past Bodily Condition
- Can't admit
- Exception 4 stmt made in course of med. exam
4 diagnosis / treatment
- Decl's Direct Evid. of Present S/M
Exception
- Uses
- If S/M itself an issue, then prove what that
S/M was @ the X, little before, / little after stmt made
- Intent 2 do something as evid. that decl. later
did it
- Limitation of Using Decl's S/M
- Not use 1 person's stmt of intent 2 prove what
2nd person did
- In C/L, allow 2 prove what 2nd person did
- Split in Fed & CA
- Can't use stmt of memory / belief 2 prove what
they believed is true
- Under CA §1250)b, FRE 803)3, & C/L
- Not matter if forward / backward looking stmt
- Doc's Used
- Stmt of Past Recollection Recorded
Exception
- Refreshing Memory Not An Exception
- Anything 2 refresh memory b/c not evid.
- If use writing 2 refresh, dang.'s b/c
- Priv. can B waived
- Rule of compl. entitles adversary 2 see the whole
- FRE 612 allows adversary 2
- Req. prod. of doc. used
- Use 2 cross W
- Intro. pertinent parts as evid.
- Reqts 4 Fed, CA, & C/L
- W perceived event
- Can't fully remember event
- Record made when W's memory was fresh
- Record accurately recorded W's perception
- Authenticate it / show that this doc. is the
record
- Proced.
- Try 2 refresh memory but not work
- Show 2 adversary counsel
- Ask W 2 authenticate & let W keep it
- Ask 2 read 4 jury b/c jury not get 2 see it
- Busi. Record Exception
- Reqts
- Must B busi. (broad def.)
- Record that is prompt, regular & routine
- Computer record ok
- Absence of record 4 no trxn can B evid.
- Can B oral as long as had busi. duty
- Real / proper busi. rsn 4 info
- Not all routinely filed satisfies as proper busi.
record
- Need W 2 authenticate
- Show trustworthiness
- Det. case by case b/c vital factor in busi. record
- Can consid. w/motive 2 lie
- Pub. Records
- Reqt: Overlaps w/Busi. Records
- Doc's in reg. course of govt'al agency
- Made on / about X which it rel's
- Good govt'al rsn 2 write down info
- Authentication
- No need 4 authenticating W b/c jud'al notice
that pub. records properly recorded & maintained
- No authenticating W 4 certified copy b/c
self-authenticating
- Trustworthy
- Not matter if fact / opinion so long as
trustworthy
- Not 4 Cop Investig. Report: FRE 803)8)B
- In crim. case, matters observed by cops / other
law enforcement personnel restricted in pub / busi. records but
not apply 4
- Civil cases
- Non-investig. reports / ministerially created
report
- When D's atty presents it against prosec'or
- Felony Jgmt Exception
- Final jgmt of guilty in felony case can B adm'ed
in civil axn 2 prove any fact essential 2 jgmt
- Residual Exception: FRE 803)24
- Five Found'al Facts
- Hearsay not fit w/reg. exceptions but similar
guarantees / reliab. like other comparability exception
- Probably diluted version of confront. cl's reqt
of reliab.
- Evid. of material fact
- Best / most probative piece of evid.
- Justice served
- Advance notice 2 adversary
- CA's Spec. Hearsay Exception 4 Crim. Prosec.
of Child Abuse: §1360
- Reqts
- Only crim.
- Child V's stmt about act of abuse
- V must B lwr than 12 yrs.
- Not otherwise adm'able
- Strong indicia of reliab.
- If V unavail, then must have corroborating evid.
- Advance notice 2 adversary
This material is copyrighted by the author. Use of this material
for profit is strictly prohibited without a written permission.
3/19/1997
Ms. Haeji Hong
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