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Hearsay Exceptions

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Title: Hearsay Exceptions


1
Hearsay Exceptions
  • Rule 803

2
Hearsay Flowchart Review
  • Is it a statement?
  • Was it spoken out of court?
  • Is it being offered for its truth?
  • Is it exempt defined as non-hearsay by Rule
    801(d)?
  • Does it fall into an exception from the rule of
    categorical inadmissibility set forth in Rule 802?

3
Hearsay Exceptions
  • Rule 803 Availability of declarant immaterial
    (23 of these)
  • Rule 804 Declarant must be unavailable (4 of
    these)
  • 807 Residual exception

4
803(1) (2)
  • Present Sense Impression
  • Statement describing
  • Event or condition
  • Made while declarant perceived it or immediately
    thereafter.
  • Excited Utterance
  • Statement relating to
  • Startling event or condition
  • Made while declarant was under stress of
    excitement. . . .

5
Hearsay Dangers
  • Perception
  • Memory
  • Narration/communication
  • Sincerity/veracity

6
Present Sense Impressions vs. Excited Utterances
7
803(3) Contemporaneous Statements of Mental,
Emotional, or Physical Condition
  • Mental/Emotional
  • Contemporaneous statement.
  • Inadmissible to prove a fact remembered or
    believed (Shepard).
  • May be admissible to prove conduct in accord with
    intent (Hillmon).
  • Physical
  • Contemporaneous statement.
  • Does not apply to descriptions of past pain or
    symptoms.
  • Does not apply to explanations of how an injury
    occurred.

8
. . . But not including . . .
  • A statement of the declarants then existing
    state of mind . . . but not including a statement
    of memory or belief to prove the fact remembered
    or believed. . . .
  • The blue car ran the red light.
  • I remember that the blue car ran the red light.
  • I believe that the blue car ran the red light.

9
Examples Mental/Emotional
  • I am happy today.
  • I was happy yesterday.
  • I believe Mary lives at the beach.
  • I intend to visit Mary at the beach.
  • I remember visiting Mary at the beach.
  • I like Mary.
  • Mary is a nice person.

10
Examples Physical
  • Ouch!
  • My knee hurts.
  • My knee hurt yesterday.
  • I skinned my knee on some coral while I was
    visiting Mary at the beach.
  • My foot hurts like I have a metatarsal stress
    fracture.

11
Mutual Life Ins. Co. v. Hillmon
  • Mrs. Hillmons theory The dead body belongs to
    Mr. Hillmon. She wants the insurance money.
  • Insurance companys theory Insurance fraud.
    Mr. Hillmon faked his own death in order to get
    the insurance money. He knew his widow would
    need to produce a body, so he lured Mr. Walters
    to Crooked Creek, and killed Mr. Walters.
  • Disputed evidence Letter from Mr. Walters
    Mr. Hillmon and I are going to Colorado.

12
What about these cases?
  • Im going to the rave tonight with Ken, Lisa,
    Mary, Ned, Olaf, and Pauline.
  • To show that I went to the rave?
  • To show that Ken went to the rave?
  • Should it make a difference if independent
    evidence shows that I went to the rave?
  • Snookums and I are going to Aruba for a romantic
    weekend.
  • To show that I went to Aruba?
  • To show that Snookums went to Aruba?
  • Should it make a difference if independent
    evidence shows that I went to Aruba?

13
803(4) Statements for Purposes of Medical
Diagnosis or Treatment
  • Medical diagnosis or treatment
  • Describing medical history, past or present
    symptoms, pain or sensations, or cause if its
    relevant to treatment

14
Examples
  • Doctor, my knee hurts.
  • Nurse, my knee hurts.
  • Doctor, my knee hurt yesterday.
  • Doctor, I was stung by a jellyfish while I was
    visiting Mary at the beach.
  • Doctor, Mary was stung by a jellyfish at the
    beach.

15
Mental or Physical Condition
16
803(5) Past Recollection Recorded
  • Memorandum or record
  • Witness once had knowledge
  • Witness now has forgotten
  • Made or adopted by the witness
  • At a time when the matter was fresh in his/her
    memory
  • Record accurately reflects that knowledge

17
803(6) Business Records
  • Memorandum, report, record, or data compilation,
    in any form,
  • Of acts, events, conditions, opinions, or
    diagnoses,
  • Made at or near the time
  • By, or from information transmitted by, a person
    with knowledge,
  • If kept in the course of a regularly conducted
    business activity,
  • And if it was the regular practice of that
    business activity to make the memorandum . . .
  • All as shown by the testimony of the custodian or
    other qualified witness, or by certification. . .
    .
  • Unless the source of information or the method or
    circumstances of preparation indicate lack of
    trustworthiness.
  • The term business. . . includes business,
    institution, association, profession, occupation,
    and calling of any kind, whether or not conducted
    for profit.

18
803(8) Public Records
  • Records, reports, statements, or data
    compilations, in any form,
  • Of public offices or agencies
  • Setting forth
  • The activities of the office or agency
  • Matters observed pursuant to duty imposed by law
    as to which matters there was a duty to report
  • Excluding in criminal cases matters observed by
    police officers
  • Factual findings resulting from an investigation
    made pursuant to authority granted by law
  • In civil actions and against the government in
    criminal cases

19
803(6) 803(8) Compared
  • Business Records
  • Made by any business entity.
  • Record in any form.
  • Matters recorded with regularity.
  • Declarant must be under a duty to report
    accurately.
  • Can be used against anyone.
  • Public Records
  • Made by public entities only.
  • Record in any form.
  • Matters need not be recorded with regularity.
  • Declarant sometimes must be under a duty to
    report accurately.
  • Sometimes cant be used against the government.
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