Hearsay Exceptions

Question 1

What are the 3 Unavailability Exceptions to hearsay?

Answer 1

1. Declarations against self-interest
2. Dying Declarations
3. Former Testimony

Question 2

What 5 factors make a witness unavailable in order for unavailability exceptions to hearsay to apply?

Answer 2

A witness is deemed unavailable if:
(1) they assert a privilege
(2) they are dead or sick
(3) the proponent of the statement cannot procure declarant’s attendance by process or other reasonable means
(4) the declarant refuses to testify despite court order
(5) declarant’s memory fails on the subject of her statement.

In CA:
(4) declarant refuses to testify out of fear
(5) witness suffers total memory loss

Question 3

What are the 3 requirements for an unavailable declarant’s statement to be admissible as a Declaration Against Self-Interest?

Answer 3

Admissible if, at the time the statement was made, it was
(1) against their pecuniary (financial), proprietary, or penal intent, and
(2) declarant knew, at the time they made the statement, that it was against their interest.
Also,
(3) declarant must have had personal knowledge of the facts.

in CA: statement against self-interest extends to “social” interests, not just pecuniary and penal.

Question 4

What are the 2 requirements for a statement made by an unavailable declarant to be admissible as a Dying Declaration (end the card here?) in a homicide prosecution or civil action?

Answer 4

Admissible if
(1) declarant believed his death was imminent (he need not actually die); and
(2) the statement concerned the cause or circumstances of what he believed to be his impending death.

Question 5

What are the 4 requirements for Former Testimony of a now-unavailable witness, given at a different hearing or deposition, to be admissible as an unavailability exception to hearsay?

Answer 5

Admissible if:
(1) the party against whom the testimony is offered (or in civil case, party’s predecessor in interest) was a party in the former action;
(2) the former action involved the same subject matter;
(3) testimony was given under oath; and
(4) the party against whom the testimony is offered had an opportunity to examine the witness.

Question 6

What are the 4 kinds of Reliability Exceptions to hearsay?

Answer 6

(1) Excited Utterance
(2) Present Sense Impression
(3) Bodily Condition [in CA, does not cover statements of PAST bodily condition]
(4) Present State of Mind

(maybe remove the [CA notes] from this card’s answer?)

Question 7

What is an Excited Utterance?

Answer 7

An excited utterance is
an out-of-court statement relating to a startling event, made while under the stress of the excitement from the event.

Called a “spontaneous statement” in CA.

Question 8

What is a Present Sense Impression?

Answer 8

Comments made concurrently with the sense impression of an event that is not necessarily exciting.

There is little time for a calculated misstatement, and the contemporaneous nature of the statement makes it reliable.

[has no equivalent in CA. Instead called a “contemporaneous statement”]

Question 9

What is a declaration of Bodily Condition (as an exception to hearsay)?

Answer 9

A spontaneous declaration of PRESENT bodily condition.

Admissible as an exception to hearsay even though not made to a physician.

Question 10

When are declarations of PAST physical conditions admissible?

(they are generally inadmissible hearsay)

Answer 10

Admissible if made to a health care worker to assist in diagnosing or treating the current/present condition.

Even declarations about the cause or source of the condition are admissible if pertinent to diagnosis or treatment.

CA does not allow statements of past bodily condition.

Question 11

What is a Present State of Mind statement (as an admissible exception to hearsay)?

Answer 11

A statement of a declarant’s then-existing state of mind, emotion, sensation, or physical condition.

Usually used to establish a person’s intent or circumstantial evidence that the intent was carried out.

In CA, judge may exclude statements of mind or body made under suspicious circumstances.

Question 12

Are statements of memory or belief admissible as an exception to hearsay to prove the truth of the fact remembered or believed?

Answer 12

No.

No memory or belief statements. Only the statements made at the time of the then-existing state of mind (present state of mind exception) are admissible.

Question 13

What are the 5 requirements needed for the content of written evidence to be admissible as a Past Recollection Recorded?

Answer 13

(1) at the time the document was written, witness had PERSONAL KNOWLEDGE of the facts in the writing
(2) the writing was MADE BY THE WITNESS or under her direction
(3) the writing was TIMELY MADE when the matter was fresh in the witness’s mind
(4) the writing is ACCURATE, and
(5) the witness has INSUFFICIENT RECOLLECTION to testify fully and accurately.

Question 14

What are the 4 Documentary Exceptions to hearsay?

Answer 14

(1) Past Recollection Recorded
(2) Business Records
(3) Official Records
(4) Prior Felony Convictions

Question 15

What are the 3 elements needed for a writing to be admissible as a Business Record and exempt from hearsay?

Answer 15

The writing must be
(1) made in the regular course of business
(2) at or near the time of the event
(3) by one who is under a duty to record such information.

Question 16

Is a record prepared in anticipation of litigation considered a business record and exempt from hearsay?

Answer 16

No.

A record prepared in anticipation of litigation is not a business record.

Question 17

What are the 3 ways a written statement is admissible as a Public Record (Official Record) and exempt from hearsay?

(what are the 3 ways a writing can be deemed a public/official record?)

Answer 17

A written statement is admissible as a public record if it
(1) is a record which describes the activities of the office or agency;

(2) is a record which describes matters observed pursuant to a duty imposed by law (except police observations in criminal cases); or

(3) in a civil action and against the gov in criminal cases, is a record or factual finding resulting from an investigation authorized by law.

Question 18

What are the 2 requirements for a public or official record to be admissible?

Answer 18

The writing
(1) must have been made by, and within the scope of duty of, the public employee; and
(2) made at or near the time of the matter/activity’s occurrence

Question 19

When are Prior Felony Convictions admissible as an exception to hearsay?

Answer 19

A prior felony conviction is admissible in both criminal and civil actions as an exception to hearsay
to prove any fact essential to the judgment.

Question 20

How can Prior Felony Convictions be used in CRIMINAL cases?

Answer 20

Gov. can use prior felony convictions to prove any fact essential to the judgment ONLY against the accused.

Prior felony convictions can be used ONLY for impeachment purposes against all others.

Question 21

What does the Ancient Document exception to hearsay do?

Answer 21

Makes a statement in any authenticated document 20 years old or older admissible and exempt from hearsay.

Also, statements in any document (regardless of age) affecting an interest in property are made admissible.

Note: CA, the rule for ancient documents is 30 years old or older.

Question 22

When are treatises admissible as substantive proof and exempt from hearsay under the Learned Treatises exception to hearsay?

Answer 22

A treatise is admissible as substantive proof if it is
(1) called to the attention of, or relied upon, by an expert witness; and
(2) established as a reliable authority by the testimony of that witness, other expert testimony, or judicial notice.

In CA: exception is narrower. Applies only to facts of general knowledge.

Question 23

What are the 3 factors that may allow a hearsay statement that is not covered by a specific exception to potentially be admissible under the Federal Catch All exception to hearsay?

(need all 3 factors)

Answer 23

A hearsay statement not covered by a specific exception may be admissible if:
(1) the hearsay statement possesses circumstantial guarantees of trustworthiness;
(2) the statement is strictly necessary; and
(3) notice has been given to the adversary as to the nature of the statement.

No equivalent exception in CA.