Evidence Hearsay 5

Exemption – statement by party opponent

Silence as an admission: establish 

The party heard the statement

The matter asserted was within the party’s knowledge

The occasion and nature of thee statement were such that the party would likely have replied if
he did not mean to accept what was said

803 and 804 to create a circumstance clearly fit 804b but no showing that unavailable for trial  need
unavailability finding to apply any 804 exception  statements that are more likely than not reliable in
circumstances listed

Dying declaration – 804  when someone is about to die assumption is that they are not lying –
external picture of events

Present sense impression 803-1  don’t need startling event

- statement describing event or condition

- made while the declarant was perceiving the event or condition or made immediately
thereafter  talking about it as its happening – no time to allow for brain to adjust memory

Excited utterance 803-2

- startling event or condition

- statement relating to the startling event or condition

- made while the declarant was under the stress of excitement caused by the startling event or
condition  can last longer than 803-1 – not necessarily during event but under the stress of the event
– timing dependent on if person is under the stress of event

Then existing condition 803-3 – internal picture of events

- statement of declarants (1) state of mind (2) emotion (3) sensation (4) physical condition

- statement is contemporaneous with the state of mind (then existing)

- and nor a statement of memory or belief to prove the fact remembers or believed except a
statement relating to

Med diag 803-4

- statement made for purpose of med diag or treat

- statement descries medical history of past/present symptoms, pain, sensations or the

inception or general character of the cause or external source

- insofar as statement of above is reasonably pertinent to treatment

CL 19

Hearsay exceptions – 803 (1)-(4)

Two ways to not be hearsay – not meet definition or meet 801d1or 801d2 exemption.

803(5)- recorded recollection – not refreshing recollection

P 26 rules

Business records exception – allows records to be admitted without have to bring the person who input
the information into the record or filing system  definition of what counts as a business is expansive –
does not need to be a legal business. – as long as the person in court knows how the records are kept its
ok (does not have to be the person who kept the record/custodian of record)

Memo report or data compilation in any form

Of acts events conditions opinions

Made at or near the time of the acts

By a person with knowledgeable of the acts or from info transmitted by one with knowledge

The meme was kept in the course of a regularly conducted business activity

Regular practice to keep such a memo

Above established through memo’s custodian or other qualified witness

No lack of trustworthiness