Evidence-Wellborn SU2007 Cheat Sheet

Evidence-Wellborn SU2007 Cheat Sheet - 1 2 3 4 Hearsay Does...

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Hearsay 1. Does it meet definition? 2. Does it fit under exclusion or not for truth of matter? 3. Does it fit under exception? 4. Does it fit under catch-all exception? An out-of-court statement (assertive conduct included) offered to prove the truth of facts asserted in the statement . Other party must object to its admission. Commands and Questions are not assertions and are NOT hearsay. Repeating one’s own out-of-court words can be hearsay. No animal or machine hearsay Multiple Hearsay: Each part must satisfy an exception Usually arises in the form of live trial testimony by W about what someone said out-of-court but can also be when someone tries to introduce a doc that contains statement offered for the truth of the statement. EXCLUDED AS HEARSAY : VEPI APS Not for truth of matter but to show statement was made, so not hearsay (non-admitting party entitled to a limiting instruction to the jury about statement): 1. Verbal acts —words of gift , contract , or defamation; 1. legally operative facts or 2. words accompanying an ambiguous physical act that resolve the ambiguity (the verbal part of the act) 2. Effect on the mind of the hearer or listener (Notice , Knowledge , Motive , or Good Faith ), ex. negligence cases—3rd person’s warning to show listener’s notice of danger 3. Circumstantial evidence of speaker’s SOM (shows Belief of speaker , not truth of matter) 4. Prior inconsistent statements for impeachment or rehabilitation Theoretically hearsay, but excluded for policy reasons (for truth of the matter but we’re letting it in anyways): 5. Admissions by a party-opponent can be self-serving at time of statement, only has to be unfavorable at time of trial; unavailability is irrelevant Personal Knowledge is not necessary to make an admission Guilty plea is an admission as statement by party but not conclusive—party can explain circumstances and affect weight jury gives it. NOT ADMISSIBLE : Guilty pleas to minor offenses, withdrawn guilty pleas, pleas of no contest, and unaccepted offers to plead guilty to lesser offense Conviction is NOT an admission b/c it’s statement by court not party (although conviction of felony or truth misdemeanor is admissible to impeach, & felony conviction is admissible in civil suit to prove any fact essential to sustain the judgment ) Includes Conduct such as assuming a false name, buying plane ticket out of country, shaving off beard, resisting arrest, attempting to bribe arresting officers (actions that show guilt) Silence can be tacit admission by declarant if: 1. D heard accusatory statement 2. D was capable of denying statement 3. Under circumstances, rzbl person would have denied statement if not true 4. excludes accusations made by police while silent D is in custody b/c of 5th A right to remain silent 1. Party’s own statement (spoken, written, nonverbally—nodding, pointing, gesturing) 2. Adoptive admission
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This note was uploaded on 08/28/2008 for the course N 483 taught by Professor Wellborn during the Summer '08 term at University of Texas.

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Evidence-Wellborn SU2007 Cheat Sheet - 1 2 3 4 Hearsay Does...

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