7. Hearsay + Exemptions + Exceptions

Question 1

Hearsay - Definition

Answer 1

Hearsay is an out of court statement offered for the truth of the matter asserted. Hearsay is inadmissible unless an exception or exemption applies.

Question 2

Hearsay Exemptions - Statement of a Party Opponent

Answer 2

A statement made by a party and offered against that party is inadmissible.

Question 3

Hearsay Exemptions - Adoptive Admission

Answer 3

A party may admit something made by another person.

Question 4

Hearsay Exemptions - Adoptive Admission via Silence

Answer 4

A party may impliedly adopt the statement of another by remaining silent, if certain conditions are met.

Question 5

Hearsay Exemptions - Vicarious Admission Authorized Spokesperson

Answer 5

An admission made by an authorized spokesperson is admissible as a vicarious admission on behalf of the party.

Question 6

Hearsay Exemptions - Co-Conspirators

Answer 6

A statement by a co-conspirator in furtherance of the conspiracy is admissible as a vicarious admission.

Question 7

Hearsay Exemptions - Principal-Agent

Answer 7

A statement by an agent or employee concerning a matter within the scope of the agency or employment is admissible as a vicarious admission.

Question 8

Hearsay Exemptions - Employee’s Statement Regarding Negligence

Answer 8

In CA, a statement by an agent or employee is admissible as a vicarious admission when the employee’s negligent conduct is the basis for the employer’s liability.

Question 9

Hearsay Exemptions - Prior Inconsistent Statement

Answer 9

A prior inconsistent statement is admissible when the declarant testified and is subject to cross, and the statement was given under penalty of perjury.

Question 10

Hearsay Exemptions - Prior Consistent Statement

Answer 10

A prior consistent statement is admissible to rebut a charge that the declarant recently fabricated it or acted from a recent or improper influence or motive.

Question 11

Hearsay Exemptions - Prior Identification

Answer 11

A prior identification of a person is admissible when the declarant testifies and is subject to cross about the prior identification.

Question 12

Hearsay Exceptions - Former Testimony (Unavailability Required)

Answer 12

Former testimony of an unavailable witness is admissible if it was under oath, related to the same subject matter, and the party against whom it is offered had an opportunity to develop the testimony.

Question 13

Hearsay Exceptions - Statement Against Interest (Unavailability Required)

Answer 13

A statement against interest is admissible if it was against the declarant’s pecuniary, proprietary, or penal interest when made, and the declarant knew it was against their interests.

Question 14

Hearsay Exceptions - Dying Declaration (Unavailability Required)

Answer 14

A dying declaration about the cause of death under belief of imminent death is admissible. Under the FRE, the declarant need not have actually died. In CA, the declarant must have died.

Question 15

Hearsay Exceptions - Present State of Mind (No Unavailability Required)

Answer 15

A statement regarding the declarant’s then existing state of mind is admissible to prove the declarant’s emotion, sensation, physical condition, or intent to act.

Question 16

Hearsay Exceptions - Excited Utterance/Spontaneous Statement (No Unavailability Required)

Answer 16

An excited utterance (federal) or spontaneous statement (CA) is admissible if it relates to a startling event and was made under the stress of the event.

Question 17

Hearsay Exceptions - Present Sense Impression/Contemporaneous Statement (No Unavailability Required)

Answer 17

A present sense impression (federal) or contemporaneous statement (CA) is admissible if it describes an event or condition made during or immediately after the event.

Question 18

Hearsay Exceptions - Business Records (No Unavailability Required)

Answer 18

Business records are admissible to prove an act or transaction if they are made in the regular course of business, at or near the time of the event, by someone with personal knowledge.

Question 19

Hearsay Exceptions - Authenticating Business Records (No Unavailability Required)

Answer 19

Business records can be authenticated by a company’s custodian or records through written or oral testimony.

Question 20

Hearsay Exceptions - Absence of Records (No Unavailability Required)

Answer 20

The absence of records can prove the non-occurrence of an event when the business had a practice of maintaining business records.

Question 21

Hearsay Exceptions - Medical Records (CA) (No Unavailability Required)

Answer 21

In CA, simple opinions or diagnoses in medical records are generally not admissible for their substance.

Question 22

Hearsay Exceptions - Statements Made for Medical Diagnosis and Treatment (No Unavailability Required)

Answer 22

Statements made for medical diagnosis and treatment are admissible, including statements about the source of a condition. Rules vary between federal and CA law.

Question 23

Hearsay Exceptions - Past Recollection Recorded (No Unavailability Required)

Answer 23

A past recollection recorded is admissible when the witness had personal knowledge, the events were fresh when made, the record was accurate, and the witness cannot now recall the information.

Question 24

Hearsay Exceptions - Present Recollection Refreshed (No Unavailability Required)

Answer 24

A present recollection refreshed allows a witness to use a writing to refresh their memory before or while testifying.

Question 25

Hearsay Exceptions - Learned Treatises (No Unavailability Required)

Answer 25

Treatises may be offered as proof if relied on by an expert witness or established as reliable authorities.

Question 26

Hearsay Exceptions - Official Records and Writings (No Unavailability Required)

Answer 26

Public records made by a public employee are admissible if made within the scope of their duties, at or near the time of the matters, and are trustworthy. Absence of a public record can show the non-occurrence of an event.