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leeyatong

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hearsay exception

Post by leeyatong » Mon Jul 16, 2018 10:38 pm

HI, everyone, I am confused by some questions below, could you please help me? Thanks.
1. preclusion Q in civil procedure, and criminal double jeopardy, as to the preclusion of issue/claim in civil procedure, No exception of different jurisdiction/federal and state court, so there is preclusion even if different jurisdiction; but in the criminal double jeopardy, if different jurisdiction or state and federal jurisdiction, there is no preclusion because there is no same offense in different jurisdiction. why is the difference in civil and criminal procedure? Thanks.

2. there is past recollection record in the hearsay exception, and there is present recollection record, I feel confused a lot because which one is hearsay exception? the past recollection record or the present recollection record? what is the difference? Thanks.

3. if the past recollection record is the hearsay exception, then the part of record may be read into evidence but not introduced into evidence, what does it mean? what is the "read into evidence but not introduced into evidence? is it admissible evidence? Thanks.

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Skool

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Re: hearsay exception

Post by Skool » Mon Jul 16, 2018 11:15 pm

1. I would just separate preclusion and double jeopardy. I understand that they're kind of similar and I understand wanting to discuss the concepts together. I would just disentangle them.

Double jeopardy is criminal. There's two types of double jeopardy issues. If a state charge has elements xyz and they try to convict you, a federal prosecutor can bring a charge with exactly xyz elements and you can go to jail in both jurisdictions. The point of this is, federal and state governments are sovereigns. You have to respect both of their laws and so both have an interest in punishing you to make sure both sets of laws are respected. We have such a strong interest in punishing crime, we don't mind if two different court systems spend some time sending defendant to jail.

Preclusion: unlike with criminal double jeopardy, civil courts want to save judicial resources and discourage forum shopping. We don't want litigants going around to different courts looking for different results, leading to judges with limited time deciding things that past judges already sorted out. It's a matter of judicial efficiency, but also respecting the decisions of other judges and courts.


2. Is "present recollection recorded" a thing? In my barbri course, I've learned past recollection recorded and present recollection refreshed.

The testimony a witness gives after their present recollection has been refreshed is not hearsay. Once the witness remembers, they're just testifying in court and the jury can gauge their credibility. This is why it doesn't really matter if it is a lawyer showing a novel or the lawyer showing his notes to the witness. What comes out of the witnesses mouth is now his own refreshed recollection and the credibility turns on the in court presentation, not whatever happened outside the court.

But past recollection recorded is excepted hearsay.

3. My understanding is, the witness can read the past recollection recorded record into evidence. The contents of the record get into the trial court record through the witness reading it. The witness reading it washes the hearsay out of it. Now the witness in court can be cross examined about its contents. But the document itself doesn't become an exhibit at trial. It won't be marked as ex. 2233098. In that sense, the party putting on this witness can't put it in evidence. However the OPPOSING side can put the paper the witness just read into evidence.

leeyatong

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Re: hearsay exception

Post by leeyatong » Tue Jul 17, 2018 11:19 am

Skool wrote:1. I would just separate preclusion and double jeopardy. I understand that they're kind of similar and I understand wanting to discuss the concepts together. I would just disentangle them.

Double jeopardy is criminal. There's two types of double jeopardy issues. If a state charge has elements xyz and they try to convict you, a federal prosecutor can bring a charge with exactly xyz elements and you can go to jail in both jurisdictions. The point of this is, federal and state governments are sovereigns. You have to respect both of their laws and so both have an interest in punishing you to make sure both sets of laws are respected. We have such a strong interest in punishing crime, we don't mind if two different court systems spend some time sending defendant to jail.

Preclusion: unlike with criminal double jeopardy, civil courts want to save judicial resources and discourage forum shopping. We don't want litigants going around to different courts looking for different results, leading to judges with limited time deciding things that past judges already sorted out. It's a matter of judicial efficiency, but also respecting the decisions of other judges and courts.


2. Is "present recollection recorded" a thing? In my barbri course, I've learned past recollection recorded and present recollection refreshed.

The testimony a witness gives after their present recollection has been refreshed is not hearsay. Once the witness remembers, they're just testifying in court and the jury can gauge their credibility. This is why it doesn't really matter if it is a lawyer showing a novel or the lawyer showing his notes to the witness. What comes out of the witnesses mouth is now his own refreshed recollection and the credibility turns on the in court presentation, not whatever happened outside the court.

But past recollection recorded is excepted hearsay.

3. My understanding is, the witness can read the past recollection recorded record into evidence. The contents of the record get into the trial court record through the witness reading it. The witness reading it washes the hearsay out of it. Now the witness in court can be cross examined about its contents. But the document itself doesn't become an exhibit at trial. It won't be marked as ex. 2233098. In that sense, the party putting on this witness can't put it in evidence. However the OPPOSING side can put the paper the witness just read into evidence.
Thanks so much for your detailed answer, and it is really clear. so there is present recollection record and it is not hearsay, right? so does it belong to any part? I mean, is it part of the non-hearsay use? or relevance part? Thanks.

tiffannybrown

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Re: hearsay exception

Post by tiffannybrown » Thu Jul 19, 2018 9:23 pm

Are you trying to categorize the hearsay exceptions? Here is how I remember them.

Statements that are not hearsay (although they meet the definition of hearsay) COPPP
Co-conspirators
Opponent Party Statments
Prior Consistent Statements
Prior Inconsistent Statements
Prior Identifications

(in order for the three P statements to be considered not hearsay, the declarant's statement must have been given in testimony, + they must have been subject to cross examination, by the interested party)

Statements that are an exception to hearsay regardless of the availability of the declarant (MPRE BS PPL) (read as "the MPRE is bullshit people!)
Medical purposes
Present Sense Impression
Recorded recollection
Excited utterance
Business records/lack of business records
State of mind
Prior felony
Public records/absence of public records
Learned treaties

Statements that are the exception to hearsay ONLY IF THE DECLARANT IS UNAVAILABLE (FDS- federal defender services)
Former testimony
Dying Declaration
Statement against interest (non party)

Of course, even if a statement is within one of these categories, it still needs to be relevant to come in.

Hope this helps

smile0751

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Re: hearsay exception

Post by smile0751 » Thu Jul 19, 2018 10:44 pm

tiffannybrown wrote:Are you trying to categorize the hearsay exceptions? Here is how I remember them.

Statements that are not hearsay (although they meet the definition of hearsay) COPPP
Co-conspirators
Opponent Party Statments
Prior Consistent Statements
Prior Inconsistent Statements
Prior Identifications

(in order for the three P statements to be considered not hearsay, the declarant's statement must have been given in testimony, + they must have been subject to cross examination, by the interested party)

Statements that are an exception to hearsay regardless of the availability of the declarant (MPRE BS PPL) (read as "the MPRE is bullshit people!)
Medical purposes
Present Sense Impression
Recorded recollection
Excited utterance
Business records/lack of business records
State of mind
Prior felony
Public records/absence of public records
Learned treaties

Statements that are the exception to hearsay ONLY IF THE DECLARANT IS UNAVAILABLE (FDS- federal defender services)
Former testimony
Dying Declaration
Statement against interest (non party)

Of course, even if a statement is within one of these categories, it still needs to be relevant to come in.

Hope this helps
Very helpful! Thank you!!

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