Please enable JavaScript.
Coggle requires JavaScript to display documents.
Hearsay - out of court statement for truth of the matter asserted…
Hearsay
- out of court statement for truth of the matter asserted
Unavailable
Privilege
Death; infirmity; physical/mental defect
Lacks memory
Absent and can't be subpoenaed
Refusal to T despite ct order
Non hearsay
Prior Statement
- W must be AVAILABLE to testify
PIS
NOT made under
penalty of perjury
can come in for
impeachment
made under
penalty of perjury
can come in for
substance
and
impeachment
.......
OHIO
+ W needs to be subject to X-exam
Prior consistent statement
must be b4 W had reason to fabricate
must be made to REBUT claim W is lying
does NOT have to be under oath
FL
Does not recognize rehab of declarant's credibility as grounds for PCS
Prior statement of ID
Opposing party statement
FL
Admissions
:
EXCEPTION TO HEARSAY
Judicial admission
NOTE
withdrawn guilty plea
inadmissible
Adoptive admission
∆ heard understood the statement
∆ had an opportunity to deny
A reasonable person would have denied it
Vicarious Statement
FL
requires independent proof of conspiracy + declarant's participatation
FL
govt agents statements can be used against govt.
EXCEPTIONS
Unavailable
Statement against interest
against
self interest
- exposes T to crim or civil liability
A reasonable person would not have made statement unless it was true
Statement re personal/family history
Dying Declaration
FL
available in all crim & civ cases
Note:
Doesn't have to die
W unavailable b/c of party's wrongdoing
- Needs to
intend
to prevent W from testifying
Former T
-
grand jury doesn't count
EXCEPTIONS (don't have to be unavailable)
Present sense impression
FL
Spontaneous statement
FL: inadmissible if it is made under circumstances that indicate
lack of trustworthiness
Excited utterance
Statement re mental/physical/emotional condition
State of mind
Motive
Plan
Present intent
Physical
used to prove condition existed
CANNOT
be used for cause
Statements made for med treatment/diagnosis
CAN
go to the cause
NOTE
statement may be inadmissible under
PRIVILEGE
FL
statement made either by
patient
If patient could not communicate - the person who is
legally responsible
who had
knowledge of the facts
Recorded recollection
record made when fresh in W's mind
accurately reflects knowledge
matter W once knew
W states he can't recall
FL
Cannot be from an
ADOPTED
statement
Business records
must be kept in ordinary course
making record regular practice
was made at or near the time
EXCEPTION:
can be
inadmissible
if it lacks trustworthiness
FL:
Opinions within- inadmissible unless it would be admissible by the person whose opinion is recorded
Public record
FL
EXCEPTION police affidavit containing info re testing of alcohol or drugs for DUI admissible
Note: may violate 6th amendment in crim.
Learned Treatises
FL: NOT AN EXCEPTION:
Admissible only on x-exam to attack cred of an expert once it has been declared authoritative EITHER BY
Witness
Court
Judgment of previous conviction
conviction was for crime punishable by >1 yr jail or death
evidence offered to prove fact essential to sustain judgment
final judgment entered
Residual
FL
no residual
FL: Statement by Deceased or Ill Declarant Similar to One Previously Admitted
admitted under hearsay exception
6th Amendment
D must be unavailable
D must have had opportunity to X-exam
only applies to testimonial statement- ex. emergency assistance NOT TESTIMONIAL
14th amendment
- DP- hearsay CANNOT unduly restrict ∆'s right to mount a defense
FL Quirks
FORMER T
- can be offered in any proceeding
regardless of availability
if:
The party against whom testimony is offered had
opportunity
and
similar motive
to develop the testimony by direct, x-exam, etc.
likely unconstitutional- under 6th amend.
can even be a different party if that party had a
SIMILAR INTEREST
to ∆ +
opportunity
and
similar motive
to develop the testimony by direct, x-exam, etc.
No opinion testimony re reputation
Out of Court Statement by
CHILD VICTIM
OR
ELDERLY/DISABLED ADULT
Child
REGARDING
child abuse,
neglect,
sexual abuse against a child, or
any offense involving unlawful sex act
phys, mental, emotional, developmental age of 16 yo or under
Elderly/Disabled
abuse,
neglect,
exploitation
violent acts (assault/battery/sexual battery)
At in camera
time, content, and circumstances
are sufficiently reliable AND
testifies
OR if unavailable
corroborative evidence
exists
unavailable = finding that participation would result in sub likelihood of severe emotional/mental harm
Corpus Dilicti
crime must be established independently of any confession b4 confession admitted
State must establish:
A crime of the type charged has been committed + crime was committed through the crim. agency of another
EXCEPTION: sex abuse
CCTV/prerecorded testimony
If Wit under 18 yo or developmentally disabled can be allowed if ct on request ensures both child's & ∆'s rights are protected
sub likelihood W suffers moderate harm