FRE: Hearsay

Question 1

6 Exceptions to the rule against hearsay

Answer 1

1. Admissions of party
2. Former testimony
3. Statement against interest
4. Dying declaration
5. Spontaneous statements (6 exceptions)
6. Business records

Question 2

Six types of spontaneous statements

Answer 2

1. Present state of mind in issue
2. Statement of existing intent to prove intended act.
3. Excited utterance
4. Present sense impression
5. Declaration of PRESENT physical condition
6. Declaration of past physical condition.

Question 3

Admission of a party

“Statement of an opposing party”

Answer 3

Declaration of a party offered against the party.

So statement of P against D.

Question 4

Vicarious Admission

Answer 4

Statement by the party’s agent concerning a matter w/i the scope of the agency, when made during the existence of the relationship.

Question 5

Former testimony

Answer 5

Admissibility requires:

1. Meaningful opportunity to cross; and
2. Unavailability of the declarant.

Question 6

Statement against interest

Answer 6

1. Declarant is unavailable
2. Statement is against that person’s monetary, proprietary, or penal interest,
3. At the time the STATEMENT WAS MADE

Question 7

Limitation on statement against interest

Answer 7

A statement that:

1. Tends to expose declarant to criminal liability and
2. is offered in a criminal case by either the prosecution or defense

MUST be supported by CORROBORATING CIRCUMSTANCES that clearly indicate its trustworthiness.

Question 8

Statement against interest v. Admission

Answer 8

1. Statement against interest must be against interest AT THE tIME IT WAS MADE.
   (Admission: Against interest at the time of the trial.)
2. Statement against interest may be made by anyone.
   (Admission: Only by the party)
3. Statement against interest requires personal knowledge.
4. Statement against interest requires unavailability.
   (Admission: Party is USUALLY there)

Question 9

Dying declaration

Answer 9

Statement made:

1. Under sense of an impending death.
2. Need not die, but must be UNAVAILABLE at time of trial.
3. Only admissible in homicide or civil case
   (In IL ONLY in homicide case)
   4.Content MUST concern cause or circumstances of impending death.

Question 10

Excited utterance

Answer 10

To be admissible:

1. Must be a startling event
2. Made under the stress of excitement
3. Concerning the facts of the startling event.

Question 11

Present sense impression

NOT A HEARSAY EXCEPTION IN ILLINOIS

Answer 11

A statement:

1. Describing or explaining an event or condition
2. Made while declarant was perceiving the event; or Immediately thereafter.

NO exciting event needed.
NO appreciable time lapse.

Question 12

Declaration of PRESENT pain, suffering, or physical condition

Answer 12

A declaration of a then existing physical condition is admissible to show the condition. “It hurts!”
Admissible by anyone who hears it.

Question 13

Declaration of PAST physical condition

Answer 13

Must be:

1. Made to medical personnel, and
2. Be pertinent to either the diagnosis or the treatment.

FRE: Even if the diagnosis is only for the purpose of giving testimony.

Question 14

Preliminary questions of fact upon which admissibility depends.

Concerning the qualification of a witness:

Answer 14

Shall be determined by the court (judge) - but court is not restricted by the rules of evidence.

Question 15

Impeaching hearsay declarant

Answer 15

Credibility of the declarant may be attacked by any evidence which would be admissible for that purpose if declarant had testified as a live witness.

Question 16

Business records exception

Answer 16

Records made:

1. At or near the time,
2. By a person with knowledge,
3. ARE ADMISSIBLE IF:
4. kept in the regular course of business, AND
5. if it was the regualr course of business to make the record.

Question 17

2 Questions to ask when thinking about business record exceptions:

Answer 17

1. Is the record germane to the business?

2. Would the employee normally be able to testify to this?

Question 18

state of mind hearsay exception

Answer 18

Declarations of existing state of mind are admissible

(i) when declarant’s state of mind is directly in issue, or
(ii) if they are declarations of intent offered to show subsequent acts of the declarant.

Question 19

present sense impression

Answer 19

describes an event or condition happening contemporaneously with or immediately prior to the statement.

Question 20

To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements: (4)

Answer 20

(i) The statement must have been against pecuniary, proprietary, or penal interest when made.
(ii) Declarant must have had personal knowledge of the facts.
(iii) Declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement.
(iv) Declarant must be unavailable as a witness.

Question 21

The catch-all hearsay exception has three requirements:

Answer 21

1. the statement must have “circumstantial guarantees of trustworthiness.”
2. The statement must be more probative as to a material fact than any other evidence which the proponent can reasonably produce so that the “interests of justice” will be served by its admission.
3. Finally, the proponent must give notice in advance of trial to the adverse party as to the nature of the statement.