Hearsay Analysis Steps 3-4 (Flowchart)

List the 10 most common hearsay exceptions

1. Present sense impression

2. Excited utterance

3. Statement of then existing mental or bodily condition

4. Statement to obtain medical diagnosis or treatment

5. Past recollection recorded

6. Record of regularly conducted activity

7. Absence of business record

8. Public records and reports

9. Unavailable declarants

10. Residual or “catch-all” exception

What are the three elements of the present sense impression hearsay exception?

1. Declarant perceived event, act, or condition

2. Declarant made statement at time of perception or immediately afterward

3. Statement described event, act, or condition

**merely hearing a hearsay statement and then describing it would not be sufficient here

What are the three elements of the excited utterance hearsay exception?

1. Exciting event occurred

2. Due to the event, declarant was excited while making statement

3. Statement related to the event that excited declarant

What can the then-existing mental or bodily condition hearsay exception be used to show?

Can show the mental or physical condition at the time of the statement

**Proponent should argue for this and the circumstantial non-TOMA purpose to show state of mind, because either way you would win

Under the then-existing mental or bodily condition hearsay exception, what is the special rule regarding wills?

The statement may also be used to show memory or belief

When is the then-existing mental or bodily condition hearsay exception usually invoked?

1. When the declarant’s state of mind is somehow at issue; hearsay statement is offered as direct evidence of declarant’s mental state

2. Sometimes used to show that the declarant’s subsequent conduct was in conformance with that intent; if the declarant’s statement is used to show future conduct of others besides the declarant, the value is limited and further corroboration is needed

What are the five elements of the medical diagnosis/treatment hearsay exception?

1. concerns symptoms, their history, their cause, etc

2. made for medical purpose

3. pertinent to treatment or diagnosis

4. made to medical personnel

5. made by patient or friend helping them get treatment

Under the the medical diagnosis/treatment hearsay exception, is discussion of past symptoms allowed?

Yes, if they are relevant to the present treatment

Under the the medical diagnosis/treatment hearsay exception, are fault-ascribing statements allowed?

Yes, but they can only be admitted to the extent that they are relevant to medical treatment

What are the four elements of the past recollection recorded hearsay exception?

1. Witness one knew about but now has no memory of

2. Prior statement must correctly reflect memory of witness

3. Prior statement must have been made or adopted by witness

4. Prior statement must have been made when memory was fresh

**can only be read to jury, unless offered by adverse party, then it can be an exhibit

What elements must be satisfied for the business record hearsay exception?

1. The record was made by a qualifying business (i.e. ingoing enterprise that follows a routine, regardless of whether it is conducted for profit)

2. Information was from a source of knowledge (need not be the person who prepared the record, but must be someone who had been acting under a business duty)

3. Record was made at or near time of event

4. Making of record was part of regular business practice

5. Record was kept in ordinary course of business

6. Record is trustworthy (court considers whether source of info had motive to lie and if it was prepared in anticipation of litigation)

Under the absence of business record hearsay exception, what two elements must be met?

1. A “business” keeps records in accordance with the business record exception, and

2. The circumstances do not raise concerns about trustworthiness

What records/reports are covered under the public records and reports hearsay exception? What trait must they have?

1. Records of agency activities, matters observed pursuant to duty (source must be govt employee), and investigations (by govt or outside sources; only admissible in civiil cases or against the govt in criminal cases)

2. Must be trustworthy

Under the public records and reports hearsay exception, do police reports fall under the exception?

Not in criminal cases

Under the unavailable declarant hearsay exception, when is a declarant unavailable?

1. If they are absent despite proponent’s efforts to subpoena them (attempt on subpoena is sufficient unless trying to introduce dying declaration, statement against interest, or statement if personal or family history — then, must attempt to depose declarant too)

2. If they are in court, but claim a privilege, refuses to testify, can’t remember, or suffers from an illness

Under the unavailable declarant hearsay exception, if the declarant is actually unavailable, what types of hearsay statements can be admissible?

1. Former testimony (under oath in any legal proceeding as long as opponent had the opportunity to cross declarant in prior proceeding and was similarly motivated to conduct cross)

2. Dying declaration (settled expectation of imminent death—within the next few minutes, hours, days—and statements related to cause/circumstances of death); applicable in civil cases and criminal homicide

3. Statement against pecuniary (money) or penal interest (strong corroboration required if criminal defendant gives statement exonerating co-defendant); must be self-inculpatory, not neutral details

4. Statement of personal or family history (i.e. birth, adoption, marriage, etc)

5. Any statement if the opponent wrongfully caused the absence of the declarant

Under the residual/catch-all hearsay exception, what elements must be met?

1. Statement is offered to prove material fact

2. Statement is more probative than any other alternative evidence

3. Admission of statement must service interests of justice and goals of FRE

4. Must have circumstantial guarantees of trustworthiness

5. Proponent must give adequate notice to the adverse party to prepare motions in limine or responses at trial

The last step of hearsay analysis is whether the evidence should be barred for any other reason. What three reasons can the court consider?

Whether the probative value is substantially outweighed by:

1. Prejudice

2. Confusion

3. Waste of time

When does the confrontation clause apply?

ONLY in criminal trials; testimonial (accusatory) hearsay offered by govt against the accused requires confrontation