Rules of Evidence - Hearsay

These are the basic Heresay exceptions! They are simplified for understanding. BOLD = MUST KNOW, NOT BOLDED = BE FAMILIAR. Enjoy.

801(d)(2)

Statements by a party opponent are exempt from the definition of hearsay, meaning they are treated as non-hearsay even if they otherwise meet the definition.

803(1) Present Sense Impression

Present Sense Impression, a statement describing or explaining an event or condition, while or immediately after the person perceived it is not heresay. EX: “During the first minute he picked his nose, during the second minute he laughed out loud. During the third…”

803(2) Excited Utterance

Excited Utterance is a statement relating to a startling event or condition, made while the person was under the stress of excitement that it caused. EX: OMG! wow! "said excitedly” “panicked and said ___”

803(3) Then-Existing Mental, Emotional, or Physical Condition

A statement made in a Then-Existing Mental, Emotional, or Physical Condition. A statement of the person’s then-existing state of mind of motive, intent, or plan is not heresay.

Also includes emotions, pain, or physical health

EX: “I’m afraid of him” NOT “He scared me yesterday”

Charlie martin say “this time, ROB a ur gonna be the one who dies” then existing state of mind of intent/plan/motive D: no its not a statement of murder its a statement of the game

R.A. getting out of water “i’m feeling exhausted” that is an example of emotional/physical condition”

T.R.: i like to runs at 5am in the morning: this is admissible because it is her plan

803(4) Statements Made for Medical Diagnosis or Treatment

Statement Made for Medical Diagnosis or Treatment, a statement that:

(A) is made for medical diagnosis or treatment; and

(B) describes medical any history, symptoms or sensations, their inception (aka starting point) or their general cause.

803(5) Recorded Recollection

Recorded Recollection, a record that may be used when a witness once knew the information but can’t fully recall it. Only if the record was made or adopted while the memory was fresh and is accurate.

The statement can be read into evidence but will not be shown to jury until officially admitted.

803(6)

A record of a regularly logged part of a (1) business’s normal activities, made (2) at or near the time it was recorded and by someone (3) qualified with knowledge on the business.

Requirements for this to be used:

• statement must be made and recorded promptly at or near the time it was recorded

• Made by someone who knew the information (relating to the business practices)

• Regularly logged/kept by the business

• Proven & presented by a custodian or qualified witness

• must be trustworthy source! (so affidavit of a qualified expert is ok)

EX;
A store’s daily sales log kept every day as part of normal practice

803(8) Public Records

Public Records are records or statements made by a public office are admissible if they describe the office’s (1) activities, (2) legally observed situations/matters, or are (3) official investigation findings are not heresay.

803(17) Market Reports and Commercial Publications

Market Reports and Similar Commercial Publications, only include (1) market reports, price lists, directories/(catalog,idex,lists), or similar publications are admissible if they are (2) generally relied on by the public or professionals and is not heresay!

EX; Kelly Blue Book.

803(18) Statements in Learned Treatises, Periodicals, or Pamphlets

Statements in Learned Treatises, Periodicals, or Pamphlets are statements from reliable professional publications that may be used with an expert witness if the publication is shown to be authoritative/widely accepted in the field.

EX: This will look like an expert witness relying on a recognized expert journal/publication to explain a standard treatment. (The journal/publication itself will not be admitted but the statement made)

804(b)(1)

If a witness is unavailable, their prior testimony may be used against a party if:

1. The testimony was given at a trial, hearing, or deposition.

2. The party against whom it is offered had a chance and similar reason to question the witness before.

EX: so basically if in a previous trial, the defendant had cross-examined a witness it is fair and admissible and not hereay. Even if that witness is now unavailable, so the prior testimony can be used against the defendant.

1. not bwing used for truth of matter asserted 2. part opponent. 3. acceptions to heresay 803 acceptions = whether or not witness is assessible u can use these 804 = can only be used when witness cannot be called can’t be used such as rob armstrong

804(b)(2)

Dying Declaration is if the declarant is unavailable, their statement is admissible in a homicide case or civil case if:

• They believed death was imminent when speaking, and

• The statement is about the cause or circumstances of their expected death.

EX: as they are dying “martin killed me! take care of my kids…*dies*”

804(b)(3)(B)

Statement Against Interest is a statement is that is admissible if it would subject the declarant to liability or loss and the declarant is unavailable.

EX: martin admits to a crime but dies before trial. there must be sufficient evidence to prove that this confession was true and trustworthy before it is admissible and not heresay!

Effect on the Listener

Not being used for the truth of the matter asserted EX; sky is pink, i call 911 bc i think shes having a stroke and Isaiah calls 911, offering it to show why i called 911 we actually dont think its ok to put oxalic acid in the mask, , we are using it not because we think (whether it was made not whether it was true) chambers v publishing