Hearsay

Question 1

6 Exceptions to the rule against hearsay

No Anagram Availabe

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

No Anagram

Answer 2

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

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

Former testimony: Admissibility requires:

Answer 4

1. Unavailability of the declarant.
2. Meaningful opportunity to cross; and
3. Issue in both proceedings must be essentially the same.

Question 5

Statement against interest: 5 requirements

UATPA

Answer 5

1. Declarant is unavailable
2. Statement is against that person’s monetary, proprietary, or penal interest,
3. At the time the STATEMENT WAS MADE
4. Had personal knowledge of the facts, and
5. Was aware the statement was against her interest with no motive to misrepresent.

Question 6

Limitation on statement against interest. In a criminal case a statement against interest cannot be used by either party unless it is:

Answer 6

supported by CORROBORATING CIRCUMSTANCES that clearly indicate its trustworthiness.

Question 7

Dying declaration: Statement made:

4

Answer 7

1. Under sense of an impending death.
2. Need not die, but must be UNAVAILABLE at time of trial.
3. Admissible in civil cases or homicide cases
4. Content MUST concern cause or circumstances of impending death.

Question 8

Excited utterance: To be admissible statement must:

Answer 8

1. Be produced by a startling event
2. Made under the stress of excitement (most impt factor)
3. Concerning the facts of the startling event.

Question 9

Present sense impression: A statement:

Answer 9

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 10

Declaration of PRESENT pain, suffering, or physical condition is a declaration of a __ ____ ____ _____ is admissible to show the ______.

Answer 10

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

Question 11

Declaration of PAST physical condition must be: 2

Answer 11

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 12

Impeaching hearsay declarant the credibility of the declarant may be attacked by:

Answer 12

any evidence which would be admissible for that purpose if declarant had testified as a live witness.

Question 13

2 Questions to ask when thinking about business record exceptions:

Answer 13

1. Is the record germane to the business?

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

Question 14

Declarations of existing state of mind are admissible:

Answer 14

(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 15

Past recollections recorded are employed when the facts that the witness cannot remember are:

Answer 15

too numerous to use simple refreshing recollection.
(Like a dr. using his office notes - because he has a lot of patients and needs them to fully and accurately testify about the patient’s treatment, etc.)

Question 16

For a valid hearsay exception for past recollections recorded four elements must be satisfied: The witness:

Answer 16

1. cannot testify fully and accurately on memory alone.
2. had personal knowledge when the writing was made.
3. made or adopted the writing when the witness’s memory was fresh
4. testifies that the writing is true and accurate to the best of his knowledge.

Question 17

For past recollections recorded the witness can refer to the writing and read from it while testifying and although the writing is admitted into evidence it:

Answer 17

does not go out with the jury.

Question 18

Learned Treatise: In GA, the contents of a treatise cannot be used on direct examination of an expert. Only on:

Answer 18

cross examination.

In other words, the treatise can be used to attack, but not bolster.

Question 19

HEARSAY: 3

Answer 19

1. An out of court statement (oral or written)
2. of a person (machine generated data are not hearsay - e.g. caller id)
3. offered to prove the truth of the matter asserted (the truth of the statement)

Question 20

Layman definition of hearsay:

Answer 20

When the relevance of the OoCS asks the fact finder to ASSUME that the declarant (speaker or writer) was not lying or mistaken, then the statement is hearsay.

Question 21

Non Hearsay Statements Trick: Search for a:

Answer 21

relevant non-hearsay use of the statement.

Question 22

If an OoCS is relevant for some purpose that does NOT depend on the credibility of the declarant then:

Answer 22

it is admitted subject to a limiting instruction, if requested.

Question 23

If a statement is truly non-hearsay then the fact that the declarant made the statement:

Answer 23

will be enough, by itself, to establish relevance.

Question 24

Non-Hearsay: Verbal Act (Legally Operative Words) Hypo: G sues T for breach of an oral K. B takes the stand and proposes to testify as follows: “I heard T say to G: ‘I accept your offer to sell Microsoft.” Hearsay?

Answer 24

No. The fact that the statement was made is legally operative.

Question 25

Non-Hearsay: Effect on Hearer: Hypo: G v. Market. G alleges that she slipped and fell on broken jar of salsa in aisle 3. P's witness takes the stand and testifies: "10 minutes before G entered aisle 3 I heard another shopper tell manager, 'there's a broken jar of salsa on aisle 3." Hearsay if offered to prove there was salsa on 3?

Answer 25

Yes. Declarant could have been lying or mistaken.

Question 26

Non-Hearsay: Effect on Hearer: Hypo: G v. Market. G alleges that she slipped and fell on broken jar of salsa in aisle 3. P's witness takes the stand and testifies: "10 minutes before G entered aisle 3 I heard another shopper tell manager, 'there's a broken jar of salsa on aisle 3." Not hearsay if offered to prove:

Answer 26

Market had notice of a possibly dangerous condition on 3 b/f accident.

Question 27

When an OoCS has both a hearsay and non-hearsay use it is:

Answer 27

admitted, subject to a limiting instruction, if requested and a R. 403 balancing test, if requested.

Question 28

Non-Hearsay: Statement that DEMONSTRATES a relevant state of mind of the declarant. Hypo: H is prosecuted for murder. Defense: Insanity. A witness for H proposes to testify, "Two days before the killing, H said 'I am Elvis. It's good to be back.'" How is it relevant and is it hearsay?

Answer 28

Relevant to prove H was delusional. | Not hearsay.

Question 29

5 situations in which a testifying witness's OoCS are admissible:

Answer 29

1. Prior inconsistent statement (usually on cross) 2. Prior consistent statement IF being used to rebut a charge of recent fabrication or improper motive or influence. (usually on redirect) 3. W's prior statement of identification. 4. Admissible statement under a hearsay exception 5. Relevant non-hearsay use of statement.

Question 30

Prior identification of a person is only admissible if:

Answer 30

the identifying witness is available at trial and for cross.

Question 31

Testimonial Hearsay: If the hearsay statement was not made by or to an agent of the gov't then:

Answer 31

it is almost certainly NOT testimonial.

Question 32

Testimonial Hearsay: Three situations: Statement was:

Answer 32

1. in response to a question by an agent of the state. 2. initiated by a citizen to the police, reporting a crime, when the declarant would be aware that his statement would be used to investigate and prosecute the perpetrator. 3. by the police or an agent of the state in regard to a specific criminal investigation.

Question 33

Testimonial Hearsay: Statement in response to questions by the police: Primary purpose test: A statement is testimonial if:

Answer 33

the primary purpose of taking the statement was the investigation and collection of evidence concerning a crime.

Question 34

Testimonial Hearsay: Statement in response to questions by the police: Primary purpose test: The statement is not testimonial if:

Answer 34

the primary purpose of taking the statement was to deal with an ongoing emergency.

Question 35

Non-testimonial statements are admissible if:

Answer 35

they satisfy the hearsay rule.

Question 36

Party Admissions: Any statement made by a party is admissible if it is:

Answer 36

offered by the opponent.

Question 37

Rationale of admitting party admissions?

Answer 37

Party ought to bear the consequence of what he says. Can explain it to the jury. Can't complain about not being able to cross examine himself.

Question 38

A party admission does not have to be:

Answer 38

against a party's interest at the time it was made.

Question 39

Agent Admissions (Vicarious Admissions): Statement made by a party's agent or employee is admissible when offered by the opposing party if: (2 things)

Answer 39

1. The statement was made during the agency/employment; AND | 2. the statement concerns a matter that the agent would know by virtue of his job duties.

Question 40

Co-Conspirator Statements: Admissible when offered by the prosecution against the accused in a criminal case if the statement: (3 elements)

Answer 40

1. made by a member of the conspiracy of which D was part; AND 2. made DURING the conspiracy; AND 3. was in furtherance of the conspiracy.

Question 41

Co-Conspirator Statements: Even after the crime has been committed if there is a conspiracy to conceal and avoid apprehension, statements made:

Answer 41

in furtherance of the conspiracy to conceal are admissible.

Question 42

Necessity Exception: A hearsay statement that does not qualify for a specific exception may be admitted if: (4 things)

Answer 42

1. The proponent gives opposing party pretrial notice, AND 2. The statement is evidence of material fact, AND 3. The statement is more probative than any other evidence on that point, AND 4. The statement has circumstantial guarantees of trustworthiness.

Question 43

Four hearsay exceptions where declarant must be unavailable to testify at trial: DAFT

Answer 43

1. Dying Declaration 2. Against interest declarations 3. Family and personal history statements 4. Testimony (former)

Question 44

Five reasons a hearsay declarant may be "unavailable" to testify at trial: NO ANAGRAM.

Answer 44

1. Dead or too ill 2. Cannot be located by due diligence. 3. Beyond subpoena power 4. Refuse to testify 5. Lack of memory.

Question 45

Forfeiture Exception: Hearsay is admissible against a party: (Related to 6th Amd. Objections)

Answer 45

whose wrongdoing made the witness unavailable IF the ct finds that the party INTENDED by his conduct to prevent the witness from testifying. (Thus, forfeiting his 6th Amd. objections too.)

Question 46

Dying Declaration: A statement made under a:

Answer 46

belief of impending and certain death by a now unavailable declarant concerning the cause or surrounding circumstances of the declarant's death.

Question 47

Dying Declaration: Criminal cases is admissible in:

Answer 47

homicide cases only

Question 48

Dying Declaration: Civil cases is admissible in:

Answer 48

all the cases!

Question 49

Statement against interest: In criminal cases these statements must be supported by:

Answer 49

other evidence which corroborates the truth of the statement.

Question 50

Present state of mind exception:

Answer 50

Statement of declarant's THEN EXISTING intent to do something in the future is admissible to prove that the declarant probably did what he intended.

Question 51

Present physical condition exception:

Answer 51

Statement describing declarants THEN EXISTING physical condition. (Backward looking statements are not admissible under this exception. Look at the tense of the statement. Past or present?)

Question 52

Statement for purpose of medical diagnosis or treatment:

Answer 52

Statement made to medical personnel concerning matters that are pertinent/relevant to medical treatment

Question 53

Business records exception: 4 elements: KRAP

Answer 53

Keep Regular Course At or near the time Personal Knowledge OR if falls into a different hearsay exception.

Question 54

The court may ________ portions of a business record that are inadmissible under the exception.

Answer 54

redact

Question 55

Business records exception: Laying foundation. You need either:

Answer 55

1. "qualifying witness" that can testify to the 5 elements of business records hearsay (does not need to be the author of the report) OR 2. Obtain a written certification attesting to the elements of the business records hearsay. (Pretrial notice to opposing party req'd)

Question 56

Public records: 3

Answer 56

- Admin activities of office or agency (payroll records, driver's license data, etc.) - matters observed pursuant to duty imposed by law (Weather bureau records, factual statements in police reports.) - Findings of fact resulting from an investigation authorized by law. (OSHA inspection report, FAA report on airplane crash, etc.)

Question 57

Limitations on public records: In criminal trials the prosecution may not use: 2

Answer 57

1. Investigative reports by the police or | 2. Findings of fact from an investigation authorized by law.

Question 58

Hearsay is defined as: | Yes, I know this is a repeat card.

Answer 58

An out of court statement of a person offered to prove the truth of the matter asserted.

Question 59

Statement against interest must be against interest at the ____ __ ___ _____. Admission is against interest at the ___ __ ___ _____.

Answer 59

SAI: AT THE TIME IT WAS MADE Admission: at the time of the trial.

Question 60

Statement against interest may be made ______. Admission may be made ________.

Answer 60

SAI: can be made by ANYONE Admission: made Only by the party

Question 61

Statement against interest requires ______. | Admission the declarant is:

Answer 61

SAI: unavailability of the declarant. Admission: declarant is USUALLY there

Question 62

Statement against interest requires declarant have:

Answer 62

personal knowledge of the facts.