Hearsay - Revision history

IBJadmin at 10:55, 3 August 2012

2012-08-03T10:55:50Z

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	=Background=		=Background=
	In the United States, testimonial evidence is hearsay if:		In the United States, testimonial evidence is hearsay if it is:
	#a statement		#A statement
	#~~made~~ out of court		#Made out of court
	#by the declarant		#By the declarant
	#~~offered~~ for the truth of the matter asserted.		#Offered for the truth of the matter asserted.

	* '''Statement''' ~~- A statement~~ may be an oral or written assertion ~~and it may also be~~ nonverbal conduct of the person.		* '''Statement''': may be an oral or written assertion or nonverbal conduct of the person.
	* '''Declarant''' ~~- Declarant is~~ a person making a statement. Neither a machine nor an animal are considered declarants under the hearsay rule.		* '''Declarant''': a person making a statement.
	* '''Offered for the truth of the matter asserted''' ~~- In~~ certain cases evidence may be admissible because it is not offered for the truth of the matter asserted. For instance, the evidence may be for its:		**Neither a machine nor an animal are considered declarants under the hearsay rule.
			* '''Offered for the truth of the matter asserted''': in certain cases, evidence may be admissible because it is not offered for the truth of the matter asserted. For instance, the evidence may be for its:
	#Effect on the listener (notice)		#Effect on the listener (notice)
	#Verbal Act / Publication. [Words have independent legal significance.]		#Verbal Act / Publication. [Words have independent legal significance.]
	##~~Simply because~~ it was said (defamatory statement)		##Because it was said (defamatory statement) or
	##~~or because~~ the statement itself is all that matters "I accept" for contract formation.		##Because the statement itself is all that matters (e.g., "I accept" for contract formation).
	#Impeachment during ~~Cross~~-examination. In this case, the evidence is not offered for the truth, ~~it is offered~~ to prove the inconsistency of the witness.		#Impeachment during cross-examination.
	#Circumstantial evidence of the speaker's state of mind, aka ~~Consciousness~~ of ~~Innocence~~		##In this case, the evidence is not offered for the truth, but rather to prove the inconsistency of the witness.
			#Circumstantial evidence of the speaker's state of mind, aka ''consciousness of innocence''

	Hearsay even includes the witnesses own testimony about what she said prior to trial.		Hearsay even includes the witnesses own testimony about what she said prior to trial.
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	*Example: "I told Dexter that Frank wanted to go out on Friday night"		*Example: "I told Dexter that Frank wanted to go out on Friday night"

			Hearsay should be inadmissible at trial because the evidence suffers from defects which cannot be remedied. First, the testimony is offered without an oath. Second, the demeanor or the witness cannot be gauged when the testimony is delivered by a third party. The jury cannot evaluate its probative value. Finally, the witness cannot be cross-examined by the defendant. Under the adversarial system, the opportunity to cross-examine is essential to the admissibility of the testimony. Because of these defects, the defendant cannot test the witnesses reliability, memory, ability to perceive or sincerity.
	Hearsay should be inadmissible at trial because the evidence suffers from defects which cannot be remedied. First, the testimony is offered without an oath. Second, the demeanor or the witness cannot be gauged when the testimony is delivered by a third ~~part~~. The jury cannot evaluate its probative value. Finally, the witness cannot be cross-examined by the defendant. Under the adversarial system, the opportunity to cross-examine is essential to the admissibility of the testimony. Because of these defects, the defendant cannot test the witnesses reliability, memory, ability to perceive or ~~their~~ sincerity.

	=Hearsay Exceptions=		=Hearsay Exceptions=

	In the United States there are several exceptions to the hearsay rule. Hearsay is inadmissible unless the evidence is necessary, reliable, the probative value outweights the prejudicial value ~~and~~ it fulfills a traditional exception.		In the United States there are several exceptions to the hearsay rule. Hearsay is inadmissible unless the evidence is necessary, reliable, the probative value outweights the prejudicial value, or it fulfills a traditional exception.

	Exceptions can generally be grouped into two categories. In the first, the testimony is admissible only if the declarant is unavailable. In the second category the hearsay is admissible regardless of whether the declarant is available or not.		Exceptions can generally be grouped into two categories. In the first, the testimony is admissible only if the declarant is unavailable. In the second category the hearsay is admissible regardless of whether the declarant is available or not.
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	==The Definition of Unavailable==		==The Definition of Unavailable==

	A declarant may be considered "unavailable" in many ~~case~~.		A declarant may be considered "unavailable" in many cases.
	*Declarant '''refuses''' to testify despite a court order,		*Declarant '''refuses''' to testify despite a court order,
	*Declarant is '''dead''', or unable to be present because of physical or mental illness,		*Declarant is '''dead''' or unable to be present because of physical or mental illness,
	*Declarant testifies to a '''lack of memory''' of the subject matter,		*Declarant testifies to a '''lack of memory''' of the subject matter,
	*Declarant is exempted from testifying to subject matter because on grounds of '''privileged statements''',		*Declarant is exempted from testifying to subject matter because on grounds of '''privileged statements''', or
	*Declarant is absent and the proponent of the statement has been unable to ~~proecure~~ the ~~declaran~~'t attendance by process or reasonable means.		*Declarant is absent and the proponent of the statement has been unable to procure the declarant's attendance by process or reasonable means.

	A declarant is no longer "unavailable" if their unavailability was brought about by wrongdoing for the purpose of ~~preventings~~ the witness from attending or testifying at the trial.		A declarant is no longer "unavailable" if their unavailability was brought about by wrongdoing for the purpose of preventing the witness from attending or testifying at the trial.

	==Exceptions that ~~apply~~ when Declarant is Unavailable==		==Exceptions that Apply when Declarant is Unavailable==

	*'''Former Testimony'''		*'''Former Testimony'''
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	*'''Judgment as to Personal, Family or General History or Boundaries'''		*'''Judgment as to Personal, Family or General History or Boundaries'''

	=Non-Hearsay Uses of Out of Court Statements=		=Non-Hearsay Uses of Out-of-Court Statements=
	Non-hearsay out of court statements are statements offered to prove some other relevant fact (than the truth of its contents).		Non-hearsay out-of-court statements are statements offered to prove some other relevant fact than the truth of its contents.
	There are three protential uses:		There are three protential uses:
	#Words of Legal Consequence (sometimes referred to as verbal acts) : ~~Law attached~~ consequences to certain verbal acts. Consider law of contracts or torts (fraudulent representation or defamatory words).		#Words of Legal Consequence (sometimes referred to as verbal acts): the law attaches consequences to certain verbal acts. Consider the law of contracts or torts (fraudulent representation or defamatory words).
	#Circumstancial Evidence of State of Mind : e.g. ~~Spontaneous~~ statements. Look at res gestae exceptions where a person makes a statement under extreme duress. The statement is admissible (so stressed out and do not know what they are doing ~~and therefore has not~~ opportunity to concoct a story). The statement would be used to show that the individual was stressed out or hysterical. There are also implied assertions: particular circumstantial use of the words or conduct of a person who is not a witness. It requires a double ~~interference~~ from words or conduct~~: first~~, it must infer that the person had certain knowledge about something in his environment ~~; then~~ it must infer that the thing ~~wsa~~ as the person ~~believes~~ it to be. Words spoken can be ~~an action~~: they are non-hearsay if proving the state of mind - such as hysteria based on tone, only trying to prove that the narration occurred, not the content of the narration. Admissions of statement to indicate state of mind are not lead to prove the truth of what they say, but they may be used as circumstancial evidence allowing for indirect interferences.		#Circumstancial Evidence of State of Mind: (e.g. spontaneous statements). Look at res gestae exceptions where a person makes a statement under extreme duress. The statement is admissible (so stressed out and do not know what they are doing, so have no opportunity to concoct a story). The statement would be used to show that the individual was stressed out or hysterical. There are also implied assertions, such as particular circumstantial use of the words or conduct of a person who is not a witness. It requires a double inference from words or conduct. First, it must infer that the person had certain knowledge about something in his environment. Next, it must infer that the thing was as the person believed it to be. Words spoken can be actions: they are non-hearsay if proving the state of mind - such as hysteria based on tone, only trying to prove that the narration occurred, not the content of the narration. Admissions of statement to indicate state of mind are not lead to prove the truth of what they say, but they may be used as circumstancial evidence allowing for indirect interferences.
	#Circumstantial Evidence of Knowledge: It refers to witnesses who have unique knowledge, or knowledge ~~that is~~ not generally known, that is used to narrow the field of suspects significantly (to possibly just the accused). Statements are not used to prove the truth for what is asserted in it, but used to illustrate the activities being conducted (e.g.: drug deal on the phone).		#Circumstantial Evidence of Knowledge: refers to witnesses who have unique knowledge, or knowledge not generally known, that is used to narrow the field of suspects significantly (to possibly just the accused). Statements are not used to prove the truth for what is asserted in it, but used to illustrate the activities being conducted (e.g.: drug deal on the phone).

IBJadmin: /* Hearsay Exceptions */

2012-07-09T13:16:41Z

Hearsay Exceptions

← Older revision		Revision as of 15:16, 9 July 2012
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	=Hearsay Exceptions=		=Hearsay Exceptions=

	In the United States there are several exceptions to the hearsay rule. ~~They~~ can generally be grouped into two categories. In the first, the testimony is admissible only if the declarant is unavailable. In the second category the hearsay is admissible regardless of whether the declarant is available or not.		In the United States there are several exceptions to the hearsay rule. Hearsay is inadmissible unless the evidence is necessary, reliable, the probative value outweights the prejudicial value and it fulfills a traditional exception.

			Exceptions can generally be grouped into two categories. In the first, the testimony is admissible only if the declarant is unavailable. In the second category the hearsay is admissible regardless of whether the declarant is available or not.

	These exceptions are based on the theory that in certain situations, hearsay is more reliable.		These exceptions are based on the theory that in certain situations, hearsay is more reliable.

IBJadmin at 13:13, 9 July 2012

2012-07-09T13:13:08Z

← Older revision		Revision as of 15:13, 9 July 2012
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	*'''Judgement of Previous Conviction'''		*'''Judgement of Previous Conviction'''
	*'''Judgment as to Personal, Family or General History or Boundaries'''		*'''Judgment as to Personal, Family or General History or Boundaries'''

			=Non-Hearsay Uses of Out of Court Statements=
			Non-hearsay out of court statements are statements offered to prove some other relevant fact (than the truth of its contents).
			There are three protential uses:
			#Words of Legal Consequence (sometimes referred to as verbal acts) : Law attached consequences to certain verbal acts. Consider law of contracts or torts (fraudulent representation or defamatory words).
			#Circumstancial Evidence of State of Mind : e.g. Spontaneous statements. Look at res gestae exceptions where a person makes a statement under extreme duress. The statement is admissible (so stressed out and do not know what they are doing and therefore has not opportunity to concoct a story). The statement would be used to show that the individual was stressed out or hysterical. There are also implied assertions: particular circumstantial use of the words or conduct of a person who is not a witness. It requires a double interference from words or conduct: first, it must infer that the person had certain knowledge about something in his environment ; then it must infer that the thing wsa as the person believes it to be. Words spoken can be an action: they are non-hearsay if proving the state of mind - such as hysteria based on tone, only trying to prove that the narration occurred, not the content of the narration. Admissions of statement to indicate state of mind are not lead to prove the truth of what they say, but they may be used as circumstancial evidence allowing for indirect interferences.
			#Circumstantial Evidence of Knowledge: It refers to witnesses who have unique knowledge, or knowledge that is not generally known, that is used to narrow the field of suspects significantly (to possibly just the accused). Statements are not used to prove the truth for what is asserted in it, but used to illustrate the activities being conducted (e.g.: drug deal on the phone).

IBJadmin: /* Background */

2012-07-09T12:58:43Z

Background

← Older revision		Revision as of 14:58, 9 July 2012
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	Hearsay should be inadmissible at trial because the evidence suffers from defects which cannot be remedied. First, the testimony is offered without an oath. Second, the demeanor or the witness cannot be gauged when the testimony is delivered by a third part. Finally, the witness cannot be cross-examined by the defendant. Because of these defects, the defendant cannot test the witnesses reliability, memory, ability to perceive or their sincerity.		Hearsay should be inadmissible at trial because the evidence suffers from defects which cannot be remedied. First, the testimony is offered without an oath. Second, the demeanor or the witness cannot be gauged when the testimony is delivered by a third part. The jury cannot evaluate its probative value. Finally, the witness cannot be cross-examined by the defendant. Under the adversarial system, the opportunity to cross-examine is essential to the admissibility of the testimony. Because of these defects, the defendant cannot test the witnesses reliability, memory, ability to perceive or their sincerity.

	=Hearsay Exceptions=		=Hearsay Exceptions=

IBJadmin: /* Background */

2012-07-09T12:46:53Z

Background

← Older revision		Revision as of 14:46, 9 July 2012
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	In the United States, testimonial evidence is hearsay if:		In the United States, testimonial evidence is hearsay if:
	#a statement		#a statement
	#made ~~our~~ of court		#made out of court
	#by the declarant		#by the declarant
	#offered for the truth of the matter asserted.		#offered for the truth of the matter asserted.

Ibjadmin at 12:52, 17 August 2010

2010-08-17T12:52:27Z

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	* '''Forfeiture by Wrongdoing'''		* '''Forfeiture by Wrongdoing'''

	==Exceptions that ~~Exist~~ Regardless of Declarant Availability==		==Exceptions that Apply Regardless of Declarant Availability==

	*'''Present Sense Impression'''		*'''Present Sense Impression'''

Ibjadmin: /* Background */

2010-08-17T12:49:09Z

Background

← Older revision		Revision as of 14:49, 17 August 2010
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	Hearsy includes both oral and written evidence.		Hearsy includes both oral and written evidence.
	Double Hearsay.		Double Hearsay.
	*Example: "I told ~~dexter~~ that ~~frank~~ wanted to go out on Friday night"		*Example: "I told Dexter that Frank wanted to go out on Friday night"

Ibjadmin: /* Background */

2010-08-17T12:48:49Z

Background

← Older revision		Revision as of 14:48, 17 August 2010
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	Hearsay even includes the witnesses own testimony about what she said prior to trial.		Hearsay even includes the witnesses own testimony about what she said prior to trial.
	*Example: "I told Dexter it was raining outside."		*Example: "I told Dexter it was raining outside."
			Hearsy includes both oral and written evidence.
			Double Hearsay.
			*Example: "I told dexter that frank wanted to go out on Friday night"

Ibjadmin: /* Exceptions that apply when Declarant is Unavailable */

2010-08-17T12:46:41Z

Exceptions that apply when Declarant is Unavailable

← Older revision		Revision as of 14:46, 17 August 2010
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	==Exceptions that apply when Declarant is Unavailable==		==Exceptions that apply when Declarant is Unavailable==

			*'''Former Testimony'''
			*'''Statement Under Belief of Impending Death'''
			*'''Statement Against Interest'''
			*'''Statemetn of Personal or Family History'''
			* '''Forfeiture by Wrongdoing'''

	==Exceptions that Exist Regardless of Declarant Availability==		==Exceptions that Exist Regardless of Declarant Availability==

Ibjadmin: /* Exceptions that Exist Regardless of Declarant Availability */

2010-08-17T12:44:55Z

Exceptions that Exist Regardless of Declarant Availability

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 ==Exceptions that Exist Regardless of Declarant Availability==
-(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
+*'''Present Sense Impression'''
 ----
 See [[Evidence]]