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Evidence Exemptions

Page history last edited by abogado 7 years, 2 months ago

More on Hearsay - Prof Garland

Evidence Outline

 

Exemptions and Non-Hearsay 

A. FRE 801(a): A statement is (1) an oral or written assertion, or (2) nonverbal conduct of a person, if it is intended by the person as an assertion

B. FRE 801(c): "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

C. What is the statement being offered to prove?
1. Is it being introduced to prove the truth of its contents? (Hearsay)

or

2. Is it being introduced merely for the inferences that can be drawn from the fact that the statement was made? (Not Hearsay)

D. Arguments Against Hearsay Objections:
1. Statement is not being used to prove the truth of the matter asserted
2. Non hearsay use
3. Hearsay exception applies

E. Non hearsay Uses
1. Statement shows the state of mind of the speaker
2. Statement shows the state of mind of the person who heard it (i.e. notice)
3. Verbal Act Doctrine (Legally Operative Language)
- utterances that have legal consequences in and of themselves
* every statement is non hearsay for some purpose

F. Implied Assertions
- hearsay rule does not apply because an assertion is a positive declaration where an implied assertion is nonassertive verbal conduct
- suicide is not an assertion (it is an implied assertion)

G. Documents/Evidence Found on the Premises
- non hearsay evidence if it is used to show the character, use or activity of the premises

H. Statements Which are Not Hearsay

1. FRE 801(d)(1) : Prior Statement by Witness
- the declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (a) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (c) one of identification of a person made after perceiving the person
* must be under oath

2. Admission by Party-Opponent
- admissions are made by parties
- admissions can be of fact or opinion
- do not have to have personal knowledge
- statement only needs to be inconsistent with the party's present position at trial

a. 801(d)(2)(a) : the party's own statement in either an individual or a representative capacity

b. 801(d)(2)(b) : statement of which the party has manifested an adoption or belief in its truth
- Admission by Silence
- reasonable person hearing the statement would refute it were it not true; if it isn't refuted and the person remains silent, that person manifests in its truthfulness

c. 801(d)(2)(c) : statement by a person authorized by the party to make a statement concerning the subject
- Express Authority

d. 801(d)(2)(d) : statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship
- Apparent Authority

e. 801(d)(2)(e) : statement by a coconspirator of a party during the course and in furtherance of the conspiracy
- Coconspirator
- statement made in one conspiracy cannot be used against a coconspirator regarding a second conspiracy if first conspiracy has ended
- statements must be "in furtherance" of a conspiracy

taken from Evidence Outline - http://www.nku.edu/~chase/library/eoutlines/Evidence.doc

 

 

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