A Student’s Guide to Hearsay 5th Edition by Clifford Fishman – Ebook PDF Instant Download/Delivery: 1531012728, 978-1531012724
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ISBN 10: 1531012728
ISBN 13: 978-1531012724
Author: Clifford Fishman
The fifth edition of A Student’s Guide to Hearsay focuses on the Federal Rules of Evidence, breaking down the hearsay rule into its elements and explaining them in straightforward language. It does the same for each of the 29 exceptions to the hearsay rule. The book covers the Sixth Amendment Confrontation Clause and includes a proposed amendment to the Rules. It also explains related subjects: what a grand jury is and how it operates; offers of proof, order of proof, burdens of proof; conditional relevancy and conditional admissibility; and privileged communications. A website will keep readers up to date on changes in the law.
A Student’s Guide to Hearsay 5th Table of contents:
Chapter 1: The Hearsay Rule and Its Rationale
§1.1 Introduction
§1.2 Question
§1.3 Testimonial Inferences
§1.4 Rationale behind the Hearsay Rule
§1.5 The Hearsay Rule
§1.6 The Federal Rules of Evidence; Legislative History
Chapter 2: Defining and Recognizing Hearsay
Part A: Introduction
§2.1 In General
§2.2 The Basic Definition of Hearsay; “Declarant”
§2.3 A Note on Vocabulary; Common Abbreviations
Part B: “Out-of-Court”
§2.4 “A Statement That the Declarant Does Not Make While Testifying at the Current Trial or Hearing”
§2.5 Questions
Part C: “Statement”
§2.6 In General
§2.7 Individual Declaration or Narration as a Whole
§2.8 Assertive Speech
§2.9 Non-Assertive Speech
§2.10 Implied Assertions
§2.11 Questions
§2.12 The Written Word
§2.13 Questions
§2.14 Assertive and Non-Assertive Conduct
§2.15 Questions
§2.16 Photographs, Films, Videos
§2.17 Questions
§2.18 Silence
§2.19 Non-Human “Declarants”
Part D: “Offer[ed] in Evidence to Prove the Truth of the Matter Asserted in the Statement”
1. Overview
§2.20 Introduction
§2.21 Questions
§2.22 “Reconstructing” the Testimony
2. Categories of Non-Hearsay
§2.23 In General
§2.24 Mental State
§2.25 Mental State as Element of Crime, Claim, or Defense
§2.26 Mental State: Relevant Facts Inferrable from Someone’s State of Mind
§2.27 Mental State: Declarant’s State of Mind
§2.28 Questions
§2.29 Mental State: To Show Declarant’s Knowledge
§2.30 Question
§2.31 Mental State: To Show the Effect on the Hearer
§2.32 Mental State, Effect on Hearer: Statements Made to the Defendant
§2.33 Questions
§2.34 Mental State, Effect on Hearer: Why the Police Acted
§2.35 Mental State, Effect on Hearer: Civil Cases
§2.36 Verbal Acts; “Operative Legal Facts”
§2.37 Questions
§2.38 Verbal Parts of Acts
§2.39 Questions
§2.40 “Res Gestae”
Part E: Statements That Are Relevant for Both a Hearsay and Non-Hearsay Purpose; Fed. R. Evid. 105 and Fed. R. Evid. 403
§2.41 In General
§2.42 Questions
Chapter 3: Exceptions to the Hearsay Definition, Exceptions to the Hearsay Rule; Courtroom Procedures; and a Few Other Matters
Part A: Exceptions, Exceptions, Exceptions
§3.1 Introduction
§3.2 Exceptions to the Rule; Exceptions to the Definition
§3.3 Applying the 37 Exceptions: Questions
Part B: Procedural Matters
§3.4 Introduction
§3.5 Procedure; Burden of Proof; Fed. R. Evid. 104(a)
§3.6 Order of Proof; Conditional Admissibility; Motion to Strike
§3.7 Motion for a Directed Verdict
§3.8 An Objection Is Overruled; What Can the Adverse Party Do to Challenge the Evidence? Fed. R. Evid. 104(e) 9
§3.9 Conditional Admissibility vs. Conditional Relevance (Fed. R. Evid. 104(b))
Part C: A Few Other Matters
§3.10 Hearsay and the Grand Jury
§3.11 Sixth Amendment Confrontation Clause
Chapter 4: Exceptions to the Hearsay Definition: Prior Statements by Witnesses, Rule 801(d)(1)
Part A: Overview
§4.1 In General
§4.2 “Witness; Subject to Cross-Examination”
§4.3 “Meaningful Cross-Examination”; United States v. Owens
§4.4 Proving That the Declarant Made the Statement
§4.5 Sixth Amendment Confrontation Clause
Part B: Prior Inconsistent Statements—Sworn and Unsworn
§4.6 Prior Inconsistent Unsworn Statements: Rule 613
§4.7 Question
§4.8 Prior Inconsistent Sworn Statements: Rule 801(d)(1)(A)
§4.9 “Witness”; “Subject to Cross-Examination”
§4.10 “Inconsistent”
§4.11 Questions
§4.12 “Proceeding”
§4.13 Procedure
Part C: Prior Consistent Statements to Rebut Charges of Witness Misconduct
§4.14 Prior Consistent Statements Generally
§4.15 Questions
§4.16 Rule 801(d)(1)(B)
§4.17 Rule 801(d)(1)(B)(i): Rationale and Requirements
§4.18 “Witness”; “Subject to Cross-Examination”
§4.19 “Consistent”; Prior Oath Not Required
§4.20 “Recently Fabricated” or Prompted by “a Recent Improper Influence or Motive”
§4.21 Questions
§4.22 Rebutting the Accusation: “Recent”; U.S. v. Tome
§4.23 Questions
§4.24 Procedure and Tactics
§4.25 Fed. R. Evid. 801(d)(1)(B)(ii): Prior Consistent Statements to Rebut Other Attacks on the Declarant’s “Credibility”
§4.26 Questions
Part D: Statements of Prior Identification of a Person
§4.27 Rule 801(d)(1)(C)
§4.28 “Perceived” and “Identified”
§4.29 Declarant Testifies, Is Subject to Cross-Examination
§4.30 Procedure
Chapter 5: Exceptions to the Hearsay Definition: Opposing Party’s Statement, Rule 801(d)(2)
Part A: “Opposing Party’s Statement”
§5.1 Overview of Rule 801(d)(2)
Part B: Rule 801(d)(2)(A): “The Party’s Own Statement”
§5.2 In General
§5.3 Questions
§5.4 “Opposing Party” (“Party-Opponent”)
§5.5 Questions
§5.6 Defining “Opposing Parties” in Criminal Cases
§5.7 Proving the Party Made the Statement
§5.8 “Representative Capacity”
§5.9 Sixth Amendment Confrontation Clause
§5.10 Other Objections
§5.11 Questions
Part C: Rule 801(d)(2)(B): Adopted Statements
§5.12 In General
§5.13 Expressed Adopted Statements
§5.14 Implicitly or Tacitly Adopted Statements
§5.15 Conversations Among a Group
§5.16 Constitutional Issues in Criminal Cases
§5.17 Sixth Amendment Confrontation Clause
§5.18 Questions
Part D: Rule 801(d)(2)(C): Statements by a Party’s Authorized Spokesperson
§5.19 In General
§5.20 Proving Declarant Was an Authorized Spokesperson
§5.21 Questions
§5.22 Sixth Amendment Confrontation Clause
Part E: Rule 801(d)(2)(D): Statements by a Party’s Agent or Employee
§5.23 In General
§5.24 “Agent or Employee …”
§5.25 Burden of Proof; Evidence to Be Considered
§5.26 Questions
§5.27 Statements by Government Agents
§5.28 Question
§5.29 Sixth Amendment Confrontation Clause
Part F: Rule 801(d)(2)(E): Statement by a Party’s Co-Conspirator
§5.30 In General
§5.31 Prerequisites to Admissibility
§5.32 Procedural Issues
§5.33 Evidence to Be Considered; “Bootstrapping”; “Independent Evidence” Requirement
§5.34 Prosecutor’s Burden of Proof
§5.35 Order of Proof
§5.36 Conditional Admissibility: Procedure
§5.37 Sixth Amendment Confrontation Clause
§5.38 Miscellaneous Co-Conspirator Statement Issues
§5.39 Questions
Chapter 6: Hearsay and the Sixth Amendment Confrontation Clause
§6.1 Introduction
§6.2 Don’t Blame Me!
§6.3 Author’s Web Site
§6.4 Statements Offered for Non-Hearsay Purposes
§6.5 The Ohio v. Roberts Approach to the Confrontation Clause
§6.6 Crawford v. Washington
§6.7 Defining “Testimonial”: “Solemn Declaration”
§6.8 Subsequent Supreme Court Confrontation Clause Decisions; Lots of Dicta
§6.9 Statements to Non-Government Officials
§6.10 “Primary Purpose” Test; “Interrogation”; “Conversation”
§6.11 Testimonial Statements: Satisfying the Confrontation Clause
§6.12 Nontestimonial Hearsay: Davis v. Washington; Wharton v. Bockting
§6.13 Summary So Far: Your Confrontation Clause Check List
§6.14 The Provisions Covered Thus Far
Chapter 7: Exceptions to the Hearsay Rule: Preliminary Matters; Multiple Hearsay; Credibility and Impeachment
§7.1 Introduction
§7.2 The Requirement of First-Hand Knowledge
§7.3 Hearsay Within Hearsay: Fed. R. Evid. 805
§7.4 Assessing Credibility
§7.5 Impeaching and Defending the Hearsay Declarant: Fed. R. Evid. 806
§7.6 Admissibility Determined by Other Rules
Chapter 8: Rule 803: The “Regardless of Whether the Declarant Is Available as a Witness” Exceptions: Common (Mostly) Oral Statements, Rules 803(1)–803(4)
Part A: “Regardless of Whether the Declarant Is Available as a Witness”
§8.1 In General
Part B: Spontaneous Statements: Rules 803(1)–803(2)
§8.2 In General
§8.3 First-Hand Knowledge Requirement
§8.4 Trustworthiness or Reliability of the Statement; Self-Serving Statements
§8.5 Nature of Event or Condition; Effect on Declarant
§8.6 Subject Matter of the Statement
§8.7 Spontaneity; Passage of Time between the “Event or Condition” and Declarant’s Statement
§8.8 Questions
§8.9 Sixth Amendment Confrontation Clause: Crawford
§8.10 Confrontation Clause: Davis v. Washington: Calls to 911; Crime-Scene Questioning by the Police; “Primary Purpose” Test
§8.11 Confrontation Clause—Questioning by the Police: Giles v. California
§8.12 Confrontation Clause—Police Interrogation: Michigan v. Bryant —Facts
§8.13 Bryant —“Primary Purpose”; “Objective” Test
§8.14 “Emergency”: Clark and Bryant
§8.15 Confrontation Clause: Statements to Non-Government Officials
§8.16 Confrontation Clause: Statements to “Friends and Neighbors”
§8.17 Questions
§8.18 Young Children as Declarants
Part C: The “State of Mind” Exception: Rule 803(3)
§8.19 In General
§8.20 State of Mind as an Element of a Crime, Cause of Action, or Defense
§8.21 Questions
§8.22 Mental Feeling, Pain, Bodily Health
§8.23 Intent as a Basis to Infer Declarant’s Subsequent Conduct: “ Hillmon Doctrine”
§8.24 Questions
§8.25 “Second-Party Hillmon ”: Declarant’s Statement of Intent to Do Something with Z, as Proof of Z’s Subsequent Conduct
§8.26 Questions
§8.27 “Then-Existing” vs. “Backward-Looking” Statements; “Statement of Memory or Belief”
§8.28 Questions
§8.29 Homicide Cases: Victim’s Fear of Defendant
§8.30 Questions
§8.31 Will Cases
§8.32 Questions
§8.33 Sixth Amendment Confrontation Clause
§8.34 Questions
Part D: Statements for Medical Diagnosis or Treatment: Rule 803(4)
§8.35 In General
§8.36 First-Hand Knowledge; Second-Party Statements
§8.37 “For Medical Diagnosis or Treatment”
§8.38 Child as Declarant in a Child Abuse Prosecution
§8.39 “Pertinent”; Cause; Fault
§8.40 Interplay with Other Rules
§8.41 Questions
§8.42 Sixth Amendment Confrontation Clause
§8.43 Statements to Child Abuse, Domestic Violence and Sexual Assault Counselors
§8.44 Questions
Chapter 9: Rule 803: The “Regardless of Whether the Declarant Is Available as a Witness” Exceptions: Common Written Statements—Rules 612 & 803(5)–803(10)
Part A: Introduction
§9.1 Overview
Part B: “Refreshing Recollection,” Rule 612; “Recorded Recollection,” Rule 803(5)
1. Refreshing Recollection: Fed. R. Evid. Rule 612
§9.2 In General
§9.3 Any Writing May Be Used
§9.4 “While Testifying”; “Before Testifying”; Privileged Writings
§9.5 The Jencks Act: 18 U.S.C. §3500
2. Recorded Recollection: Fed. R. Evid. 803(5)
§9.6 Rule 803(5): “Recorded Recollection”
§9.7 Rule 803(5): Requirements and Issues
§9.8 Declarant/Witness
§9.9 Read, but Not Received
§9.10 “Record”
§9.11 A Straightforward Example
§9.12 Multiple-Person Documents
§9.13 Questions
§9.14 “Now Cannot Recall Well Enough”
§9.15 “Made or Adopted”; “Fresh in Memory”
§9.16 Questions
§9.17 Time; Accuracy; Foundational Testimony
§9.18 Sixth Amendment Confrontation Clause
§9.19 Questions
Part C: Records of Regularly Conducted Activity (The “Business Records” Exception): Rules 803(6)–803(7)
§9.20 In General
§9.21 “Business, Organization, Occupation, or Calling…”
§9.22 Records of Criminal Activity
§9.23 Original Source of Information
§9.24 Questions
§9.25 Multiple Hearsay (1)
§9.26 Making the Record: Time, Duty, “Regularity”
§9.27 Questions
§9.28 Keeping the Record
§9.29 Subject Matter and Contents of the Record
§9.30 Multiple Hearsay (2): “Compression”
§9.31 Questions
§9.32 Procedures for Admission
§9.33 Computerized Records; Data Compilations
§9.34 Records Created by Multiple Entities
§9.35 The “Trustworthiness” Clause
§9.36 The Sixth Amendment Confrontation Clause
§9.37 Interplay with Other Rules
§9.38 Fed. R. Evid. 803(7): Absence of Entry in Business Record
Part D: Public Records and Reports: Rules 803(8), 803(9) & 803(10)
§9.39 Fed. R. Evid. 803(8)
§9.40 Procedure for Admission
§9.41 Trustworthiness
§9.42 The Three Subsections of Fed. R. Evid. 803(8)(A)
§9.43 Rule 803(8)(A)(i): Activities of the Office or Agency
§9.44 Rule 803(8)(A)(ii): Matters Observed and Reported Pursuant to Duty
§9.45 Rule 803(8)(A)(ii): Law Enforcement Exclusionary Clause; Confrontation Clause
§9.46 Fed. R. Evid. 803(8)(A)(iii): “Factual Findings”
§9.47 Rule 803(8)(A)(iii) and the Trustworthiness Clause
§9.48 Questions
§9.49 Government’s Use of 803(8)(A)(ii) and 803(8)(A)(iii) in a Criminal Case
§9.50 Forensic Reports and the Confrontation Clause: “Purists,” “Rejectionists” and Justice Thomas
§9.51 Forensic Reports and the Confrontation Clause: Melendez-Diaz
§9.52 Forensic Reports and the Confrontation Clause: Bullcoming v. New Mexico
§9.53 Forensic Reports and the Confrontation Clause: Williams v. Illinois
§9.54 Forensic-Related Records That Are Not Testimonial
§9.55 Autopsies in Homicide Prosecutions
§9.56 Rule 803(9): Records of Vital Statistics
§9.57 Rule 803(10): Absence of Public Record or Entry
Chapter 10: Rule 803: The “Regardless of Whether the Declarant Is Available as a Witness” Exceptions: Miscellaneous Exceptions Rules 803(11)–803(23)
§10.1 Introduction
§10.2 Rule 803(11): Records of Religious Organizations
§10.3 Rule 803(12): Marriage, Baptismal, and Similar Certificates
§10.4 Rule 803(13): Family Records
§10.5 Rule 803(14): Records of Documents Affecting an Interest in Property
§10.6 Rule 803(15): Statements in Documents Affecting an Interest in Property
§10.7 Rule 803(16): Statements in Ancient Documents
§10.8 Rule 803(17): Market Reports, Commercial Publications
§10.9 Rule 803(18): Learned Treatises
§10.10 Rule 803(19): Reputation Concerning Personal or Family History
§10.11 Rule 803(20): Reputation Concerning Boundaries or General History
§10.12 Rule 803(21): Reputation as to Character
§10.13 Rule 803(22): Judgment of Previous Conviction
§10.14 Questions
§10.15 Rule 803(23): Judgment as to Personal, Family or General History, or Boundaries
§10.16 Rule 803(24)
Chapter 11: Rule 804: Exceptions to the Rule against Hearsay—When the Declarant Is Unavailable as a Witness
§11.1 Introduction
Part A: Defining “Unavailable”: Rule 804(a)
§11.2 Fed. R. Evid. 804(a): “Declarant Unavailable”
§11.3 Rule 804(a)(1): Privilege
§11.4 Rule 804(a)(2): Refusal to Testify
§11.5 Rule 804(a)(3): Lack of Memory
§11.6 Rule 804(a)(4): Death, Illness, Infirmity
§11.7 Rule 804(a)(5): Absent from the Hearing
Part B: Rule 804(b): The Exceptions
§11.8 Rule 804(b): Overview
1. Former Testimony
§11.9 Rule 804(b)(1)
§11.10 Questions
§11.11 “Similar Motive”
§11.12 “Opportunity”
§11.13 Questions
§11.14 Objections
§11.15 Questions
§11.16 “Predecessor in Interest”
§11.17 Questions
§11.18 Other Rules and Exceptions
§11.19 Sixth Amendment Confrontation Clause
2. Statement under Belief of Impending Death (“Dying Declarations”)
§11.20 Introduction
§11.21 Rule 804(b)(2): Statement under Belief of Impending Death
§11.22 Satisfying the Requirements
§11.23 “Unavailability”; “Prosecutions for Homicide”
§11.24 Sixth Amendment Confrontation Clause
§11.25 Other Hearsay Exceptions
§11.26 Questions
3. Statements against Interest
§11.27 Rule 804(b)(3)
§11.28 “Believed It to Be True”
§11.29 Use in Civil Litigation; “Interests” Included within the Rule
§11.30 “Against Interest”: Statements That Are Both Self-Serving and Dis-Serving
§11.31 Contrasting Rule 804(b)(3) and Rule 801(d)(2)
§11.32 Questions
§11.33 Statements against Penal Interest: Use by Defendant in Criminal Cases
§11.34 The “Trustworthiness” Requirement
§11.35 Questions
§11.36 Statement against Penal Interest: Use by Prosecutor
§11.37 “Against Interest”
§11.38 Williamson : Individual Statement or Narration as a Whole; “Collateral” Statements
§11.39 Sixth Amendment Confrontation Clause
§11.40 Rule 804(b)(3); Rule 801(d)(2)(E); Rule 803(3) (“Second-Party Hillmon”)
§11.41 Guarantees of Trustworthiness
§11.42 Questions
4. Statement of Personal or Family History
§11.43 Rule 804(b)(4)
§11.44 Rule 804(b)(4)(A): Declarant’s Own Personal History
§11.45 Rule 804(b)(4)(B): Statement Concerning Family History of Another
5. Deleted Rule 804(b)(5)
§11.46 “Old” Rule 804(b)(5)
6. Statement Offered against a Party Who Wrongfully Caused the Declarant’s Unavailability
§11.47 Rule 804(b)(6)
§11.48 A Domestic Violence Scenario
§11.49 “Caused” or “Acquiesced”
§11.50 “Wrongfully”
§11.51 Confrontation Clause: Giles v. California —The Intent Requirement
§11.52 Giles : Rationale for the Decision
§11.53 Burden of Persuasion; Evidence to Be Considered
§11.54 Applying Rule 804(b)(6) and the Confrontation Clause Forfeiture Doctrine: Domestic Violence Cases
§11.55 Applying Rule 804(b)(6) and the Forfeiture Doctrine: An Organized Crime Scenario
Chapter 12: The “Residual Exception”: Rule 807
§12.1 In General
§12.2 “Material”; “More Probative”
§12.3 Questions
§12.4 “Circumstantial Guarantees of Trustworthiness”
§12.5 Questions
§12.6 Confrontation Clause; Trustworthiness
§ 12.7 Pending Revision of Rule 807
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