6 Common non hearsay uses of out of court statements. (i.e. not used to prove the truth of the matter asserted)

1) Impeachment 2) Verbal Acts/Independent Legal Significance 3) Effect on the listener (threats, warnings, notification) 4) Verbal Markers (Coca Cola Bottle look for indications of distinctiveness) 5) Circumstantial Evidence of State of Mind 6) Circumstantial Evidence of knowledge, memory, or belief (only knowledge could only be explained by experience or familiarity)

1. Prior inconsistent statements.
2. Prior Consistent Statements
3. Prior Statements of identification

1. Statements given under oath, penalty of perjury, subject to cross. (Trials, depositions, hearings, not affidavits).

• Cross examination did not have to actually happen
• Do not have to be completely inconsistent just enough to cast doubt on trial testimony.
• Loss of memory (some courts only if the judge thinks the witness is faking it)
• Witness must be subject to cross at trial

• To rehabilitate a witness.

1. do not need to be made under oath
2. to rebut certainattacks of recent fabrication
3. must have been made prior to the motive to fabricate.

• witness is teifying and subject to cross concerning the statement.
• no under oath requirement
• must have had an opportunity to percieve the witness.

• Offered against a party opponent.

1. Individual admissions - confession (look out for Miranda warnings)
   
2. Adoptive admissions - (can be silence when a reasonable person would refute)
   
3. Authorized Admissions - (can be implied or expres; agents, attorneys)
   1. Current Pleadings - Unless amended, Other Pleadings, Interrogatories, Requests to admit - only in the suit they are filed
      
4. Admissions by agents and employees
5. Conspirator Statements - must show proof of conspiracy, made in furtherance or pendancy of the conspiracy
   

1. Exempt by privilege
2. Refuses to testify
3. Lack of memory
4. Death, physical or mental illness
5. Unavoidable absence
   1. Not subjec to service, AND
   2. additional efforts (be nice)
   3. Depositions preffered
6. Wrongful procurement won't work - gov'ts failure to grant immunity is not wrongful procurement. Forfiets hearsay objection
7. Constitutional unavailability

• Present Sense impressions - must have been made contemporaneously with the event, or only a few seconds after.
• excited utterance - looser time period than present sense (maybe hours
• State of mind
  •  physical condition at time of statement
  •  proving mental state
  •  proving future conduct (i am going to kill so and so)
• Statments made to procure medical treatments -(identifying abusers now allowed since this seperation is part of treatment)

1. Past recollection recorded - if a witnesses memory failed, and they made the recor and adopted it.
2. Business records (4 foundational requirements)
   
3. Absence of records - only if it would normally be recorded
   
4. Public records
5. Learned Treatises - if the witness is an expert who can offer comment
6. Vital Statistics (birth certificates, marriage licenses etc)
7. Absence of public records or entry - if a diligent search has been made (Obama's birth C)
8. Ancient documents - older than 20 years if authenticity has been established
9. Commercial lists - city dorectories, catalogues, mortality tables
10. Court judgmemnts - must be final
    
    1. state can only use convictions for impeachment or if it is element of charge.
    2. Final judgments  in civil cases can be used for reputation evidence
       

• Requirements

1. must be regularly kept in the course of business
2. source must be someone with knowledge
3. made at or near the time of the event described
4. must be offered by someone qualified to comment on their authenticiy/reliabilty (can be done by affidavit under 902.)

• Watch out for trustworthiness factors:

1. made in anticipation of litigation
2. motives to fabriicat
3. simplicity/complextity
4. training and experience of preparers
5. is it offered for or against the preparers
   

Can be for:

• Activities of office or agency
• Matters observed as a part of the agencies duties
  • must be someone with a duty to report (employee)
• Cannot be police reports or records made by law enforcement in criminal cases. Makes the cops show up in court.
• Investigative findings are allowed in civil cases and against the government in criminal cases, but not agianst a criminal defendant

1. Witnesses former testimony
2. Dying declerations
3. Prior statement against interest
4. Statement of family history

When are dying declarations admissable?

• declerant believes death is imminent (doesn't actually have to be dead but the declerant must believe it and be unavailable)
• must describe circumstances of death
• civil or homicide cases

• must be against a party who had an opportunity to cross examine
• they did not actually have to cross examine
• party must have had a similar motive to develop or challenge the tesimony
• In civil cases it can be a predecessor in interests
• Grand Jury testimony does not qualify against defendants. May against government if gov't had a similar motive to develop the testimony