Rule 402 ADMISSION OF A PARTY OPPONENT A judge may admit hearsay evidence if it

Rule 402 admission of a party opponent a judge may

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Rule 402: ADMISSION OF A PARTY OPPONENT : A judge may admit hearsay evidence if it was a prior out-of-court statement made by a party to the case that amounts to an admission that is against that party’s interest at trial. Essentially, the party’s own out-of- court statement is being offered into evidence because it contains an admission of responsibility or an acknowledgment of fault. The party who made the prior out-of-court statement can hardly complain about not having had the opportunity to cross-examine himself. He said it, so he has to live with it. He can explain it on the witness stand.
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39 11/19/14 Example: Pam is involved in a car accident. Wendy was at the scene of the crash. At Pam’s trial, Wendy testifies that she heard Pam say, "I can't believe I missed that stop sign!" At the trial, Wendy’s testimony of Pam’s out-of-court statement, although hearsay, is likely to be admitted into evidence as an admission against a party’s interest. In this example, Pam is on trial so she can testify about what happened in the accident and refute having made this statement or explain the circumstances of her statement. Rule 403: STATE OF MIND : A judge may admit an out-of-court statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health). Such out-of-court statements of pain or intent do not present the usual concerns with the reliability of hearsay testimony. For instance, when a witness testifies as to a declarant’s statement of intent, there are no memory problems with the declarant’s statement of intent and there are no perception problems because a declarant cannot misperceive intent. When applying this exception, it is important to keep in mind that the reliability concerns of hearsay relate to the out-of-court declarant, not to the witness who is offering the statement in court. Example: Mike is on trial for a murder that occurred at the West End Restaurant. Mike’s defense relies upon the theory that another person, Jane, committed the murder. The defense then calls a witness who testifies that on the night of the murder he heard Jane say that she intended to go to the West End Restaurant. This hearsay statement is admissible as proof of Jane’s intent to go to the restaurant. Rule 404: BUSINESS RECORDS. A judge may admit a memorandum, report, record, or data compilation concerning an event or act, provided that the record was made at or near the time of the act by a person with knowledge and that the record is kept in the regular course of business. The rationale for this exception is that this type of evidence is particularly reliable because of the regularity with which business records are kept, their use
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40 11/19/14 and importance in the business and the incentive of employees to keep accurate records or risk being reprimanded by the employer.
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  • Spring '17
  • mrs callman
  • attorney, new york state

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