Article VIII : Hearsay

Question 1

Rule 801 (a) - Statement

Definition

Answer 1

“Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Question 2

Rule 801 (b) - Declarant

Definition

Answer 2

“Declarant” means the person who made the statement.

Question 3

Rule 801 (c) - Hearsay

Definition

Answer 3

“Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Question 4

Rule 801 (d)(1)

Statements That are Not Hearsay

Answer 4

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination

about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial,

hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge

that the declarant recently fabricated it or acted from a recent improper influence or motive in so

testifying; or

(C) identifies a person as someone the declarant perceived earlier.

Question 5

Rule 801 (d)(2)

An Opposing Party’s Statement

Answer 5

The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship

and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

* The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Question 6

Rule 802 - The Rule Against Hearsay

Answer 6

Hearsay is not admissible unless any of the following provides otherwise:

• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.

Question 7

Rule 803

Exceptions to the Rule Against Hearsay

803 (1) - 803 (3)

*The following are not excluded by the rule against hearsay, regardless of whether the declarant is available

as a witness:

Answer 7

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while

or immediately after the declarant perceived it.

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant

was under the stress of excitement that it caused.

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Question 8

Rule 803

Exceptions to Rule Against Hearsay

803 (4) -803 (6)

Answer 8

(4) Statement Made for Medical Diagnosis or Treatment. A statement that:

* (a)* is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

* (b)* describes medical history; past or present symptoms or sensations; their inception; or their general cause.

(5) Recorded Recollection A record that:

* (a)* is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

* (b)* was made or adopted by the witness when the matter was fresh in the witness’s memory; and

* (c)* accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

* (a)* the record was made at or near the time by — or from information transmitted by — someone with knowledge;

* (b)* the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

* (c)* making the record was a regular practice of that activity;

** (d) **all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

* (e)* neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Question 9

Rule 803 (7)

Exceptions to Rule Against Hearsay-

Absense of a Record of a Regulary Conducted Activity

Question 10

Rule 803 (8)

Public Records

Answer 10

A record or statement of a public office if:
(A) it sets out:
* (i)* the office’s activities;
* (ii)* a matter observed while under a legal duty to report, but not including, in a criminal
case, a matter observed by law-enforcement personnel; or
* (iii)* in a civil case or against the government in a criminal case, factual findings from a
legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

Question 11

Rule 803 (9) - Exceptions to The Rule Against Hearsay

Public Records of Vital Statistics

Answer 11

(9) Public Records of Vital Statistics.

A record of a birth, death, or marriage, if reported to a public
office in accordance with a legal duty.

Question 12

Rule 803 (10) - Exceptions to Rule Against Hearsay

Absense of a Public Record

Answer 12

(10) Absence of a Public Record.

Testimony — or a certification under Rule 902 — that a diligentsearch failed to disclose a public record or statement if:

(A) the testimony or certification is admitted to prove that
** (i)** the record or statement does not exist; or
** (ii)** a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of
that intent at least 14 days before trial, and the defendant does not object in writing within 7 days
of receiving the notice — unless the court sets a different time for the notice or the objection.

Question 13

Rule 803 (11) Exceptions to Rule Against Hearsay

Records of Religious Organizations Concerning Personal or Family History.

Answer 13

(11) Records of Religious Organizations Concerning Personal or Family History.

A statement of
birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts
of personal or family history, contained in a regularly kept record of a religious organization.

Question 14

Rule 803 (12) Exceptions to Rule Against Hearsay

Certificates of Marriage, Baptism, and Similar Ceremonies.

Answer 14

(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a
certificate:
(A) made by a person who is authorized by a religious organization or by law to perform the act
certified;
(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament;
and
(C) purporting to have been issued at the time of the act or within a reasonable time after it.

Question 15

Rule 803 (13) Exceptions to Rule Against Hearsay

Family Records

Answer 15

(13) Family Records.

A statement of fact about personal or family history contained in a family record,
such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn
or burial marker.

Question 16

Rule 803 (13) Exceptions to Rule Against Hearsay

Records of Documents That Affect an Interest in Property.

Answer 16

(14) Records of Documents That Affect an Interest in Property. The record of a document that purports
to establish or affect an interest in property if:

(A) the record is admitted to prove the content of the original recorded document, along with its
signing and its delivery by each person who purports to have signed it;

(B) the record is kept in a public office;

and

(C) a statute authorizes recording documents of that kind in that office.

Question 17

Rule 803 (15) Exceptions to Rule Against Hearsay

Statements in Documents That Affect an Interest in Property

Answer 17

(15) Statements in Documents That Affect an Interest in Property.

A statement contained in a document
that purports to establish or affect an interest in property if the matter stated was relevant to the
document’s purpose — unless later dealings with the property are inconsistent with the truth of the
statement or the purport of the document.

Question 18

Rule 803 (16) Exceptions to Rule Against Hearsay

Statements in Ancient Documents

Answer 18

(16) Statements in Ancient Documents.

A statement in a document that is at least 20 years old and
whose authenticity is established.

Question 19

Rule 803 (17) Exceptions to Rule Against Hearsay

Market Reports and Similar Commercial Publications

Answer 19

(17) Market Reports and Similar Commercial Publications.

Market quotations, lists, directories, or
other compilations that are generally relied on by the public or by persons in particular occupations.

Question 20

Rule 803 (18) Exceptions to Rule Against Hearsay

Statements in Learned Treatises, Periodicals, or Pamphlets

Answer 20

(18) Statements in Learned Treatises, Periodicals, or Pamphlets.

A statement contained in a treatise,
periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on
by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by
another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.

Question 21

Rule 803 (19) Exceptions to Rule Against Hearsay

Reputation Concernig Personal of Family History

Answer 21

(19) Reputation Concerning Personal or Family History.

A reputation among a person’s family by
blood, adoption, or marriage — or among a person’s associates or in the community — concerning the
person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption,
or marriage, or similar facts of personal or family history.

Question 22

Rule 803 (20) Exceptions to Rule Against Hearsay

Reputation Concerning Boundries or General History

Answer 22

(20) Reputation Concerning Boundaries or General History.

A reputation in a community — arising
before the controversy — concerning boundaries of land in the community or customs that affect the
land, or concerning general historical events important to that community, state, or nation.

Question 23

Rule 803 (21) Exceptions to Rule Against Hearsay

Reputation Concerning Character

Answer 23

(21) Reputation Concerning Character.

A reputation among a person’s associates or in the community
concerning the person’s character.

Question 24

Rule 803 (22) Exceptions to Rule Against Hearsay

Judgement of a Previous Conviction

Answer 24

(22) Judgment of a Previous Conviction.

Evidence of a final judgment of conviction if:

• *(A)** the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
• *(B)** the conviction was for a crime punishable by death or by imprisonment for more than a year;
• *(C)** the evidence is admitted to prove any fact essential to the judgment;

and
(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the
judgment was against the defendant.

*The pendency of an appeal may be shown but does not affect admissibility.

Question 25

Rule 803 (23) Exceptions to Rule Against Hearsay

Judgments Involving Personal, Family, or General History, or a Boundary.

Answer 25

(23) Judgments Involving Personal, Family, or General History, or a Boundary.

A judgment that is
admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.

Question 26

Rule 804 (a) Exceptions to the Rule Against Hearsay — _When the Declarant Is Unavailable
as a Witness_

(a) Criteria for Being Unavailable

Answer 26

(a) Criteria for Being Unavailable.

A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or
other reasonable means, to procure:

• (a)** the declarant’s attendance, in the case of a hearsay exception under _Rule 804(b)(1) or (6)_; *or
• • (b)** the declarant’s attendance or testimony, in the case of a hearsay exception under _Rule 804(b)(2),
    (3) , or (4)._

* But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the
declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Question 27

Rule 804 (b) Exceptions to the Rule Against Hearsay — When the Declarant Is Unavailable as a Witness

(b) The Exceptions

Answer 27

(b) The Exceptions.

The following are not excluded by the rule against hearsay if the declarant is unavailable
as a witness:

(1) Former Testimony. Testimony that:
(a) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current
proceeding or a different one; and
(b) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
(3) Statement Against Interest. A statement that:
(a) a reasonable person in the declarant’s position would have made only if the person believed it
to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest
or had so great a tendency to invalidate the declarant’s claim against someone else or to expose
the declarant to civil or criminal liability; and
* (b)* is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered
in a criminal case as one that tends to expose the declarant to criminal liability.
(4) Statement of Personal or Family History. A statement about:
* (a)* the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by
blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant
had no way of acquiring personal knowledge about that fact; or
* (b)* another person concerning any of these facts, as well as death, if the declarant was related to
the person by blood, adoption, or marriage or was so intimately associated with the person’s family
that the declarant’s information is likely to be accurate.
(5) [Other Exceptions.] [Transferred to Rule 807.]
(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

Question 28

Rule 805

Hearsay within Hearsay

Answer 28

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements
conforms with an exception to the rule.

Question 29

Rule 806

Attacking and Supporting the Declarant’s Credibility

Answer 29

When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted
in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be
admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of
the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant
had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the
declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

Question 30

Rule 807

Residual Exception

Answer 30

(A) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against
hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
* (1)* the statement has equivalent circumstantial guarantees of trustworthiness;
* (2)* it is offered as evidence of a material fact;
* (3)* it is more probative on the point for which it is offered than any other evidence that the proponent
can obtain through reasonable efforts; and
* (4)* admitting it will best serve the purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse
party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s
name and address, so that the party has a fair opportunity to meet it.

Question 31

Objection - Hearsay Generally

Objections

• I object. The question calls for a hearsay answer.
• I move to strike the answer as hearsay.

Answer 31

Response

The statement is not being offered for the truth of • the matter asserted, but rather is offered to show the statement was made. The making of the statement is relevant to show

• the effect on a person who heard the statement; or
• a prior inconsistent statement; or
• the operative facts or a verbal act; or
• the knowledge of the declarant.

Cross Referance Rule 801

Question 32

Objection - Hearsay Attacking and Supporting the Credibility of a Hearsay Dececlarantnt

Objection
I object. The question seeks to attack the credibility of a person who has not appeared as a witness.

Answer 32

Response

This impeachment of an out-of-court declarant is permissible to the same extent available for a testifying witness.

Cross Reference to Federal Rule 806

Question 33

Nonhearsay Admissssions

Objections

• I object. The question calls for a hearsay answer.
• I move to strike the answer as hearsay.

Answer 33

Responses
The statement is not hearsay pursuant to • Rule 801(d)(2) because I have shown that the statement was made

• by the party opponent; or
• by a person and was adopted by the party opponent as the party’s own and is thus a vicarious admission of the party opponent; or
• by an agent authorized to speak on behalf of a party opponent and is thus a vicarious admission of the party opponent; or
• by an agent or servant of the party opponent concerning a matter within the scope of the declarant’s agency or employment, and was made during the existence of the declarant’s agency or employment, and thus is a vicarious admission of a party opponent; or
• by a coconspirator of the party opponent;
• during the course of the conspiracy;
• and in furtherance of the conspiracy and thus is a vicarious admission of the party opponent.

Cross Reference to Federal Rule 801(d)(2)

Question 34

NonHearsay Prior Statements

Objections

• I object. The question calls for a hearsay answer.
• I move to strike the answer as hearsay

Answer 34

Responses
The statement is not hearsay pursuant to Rule 801(d)(1) because I have shown that

• it is inconsistent with the witness’s trial testimony and was given under oath at an earlier proceeding or deposition; or
• it is consistent with the witness’s trial testimony and is offered to rebut an express or implied charge of recent fabrication, or improper influence or motive; or
• the statement by the testifying witness is an identification of a person made after perceiving such person.

Cross Reference to Federal Rule
801(d)(1)(A)–(C)

Question 35

Hearsay within Hearsay

Objections

• I object. The question calls for hearsay within hearsay.
• I move to strike the answer because it contains hearsay within hearsay.

Answer 35

Response

• Both statements are admissible because each either comes within a hearsay exception or is nonhearsay.

Cross Reference to Federal Rule 805

Question 36

Hearsay Exception -Absence of Entry in Business Records

Objections

• I object. The question calls for hearsay.
• I move to strike the answer as hearsay

Answer 36

Response
The absence of an entry in this record is admissible to • show the nonoccurrence of an event pursuant to Rule 803(7). I have shown through the testimony of (insert name of witness), who is the custodian of the business records, or other qualified person that

• a business record exists, pursuant to Rule 803(6); and
• the matter that is not recorded in the record is of a kind for which a record would regularly be made and preserved; and
• the source of the information or other circumstances fail to indicate a lack of trustworthiness.

Cross Reference to Federal Rule
803(6) and (7)

Question 37

Hearsay Exception - Absence of Public Records of Entry

Objections

• I object. The question calls for a hearsay answer.
• I move to strike the answer as hearsay

Answer 37

• Response*
• Evidence of a diligent but unavailing search of the • records of the public agency or office is admissible pursuant to the hearsay exception contained in Rule 803(10). I have shown through a certification that complies with Rule 902 or through the testimony of (insert name of witness) that*
• a public agency or office regularly makes and preserves records of a particular kind of matter; and
• a diligent but unavailing search of such records failed to disclose a record, report, statement, data compilation, or entry regarding a particular alleged happening of such a matter.

Cross Reference to Federal Rule 803(10)

Question 38

Hearsay Exception - Excited Utterance

Objections

• I object. The question calls for a hearsay answer.
• I move to strike the answer as hearsay.

Answer 38

• Responses*
• The statement is admissible as an excited utterance pursuant to Rule 803(2). I have shown through the testimony of (insert name of witness) that the statement*
• relates to a startling event or condition; and
• was made while the declarant was under the stress or excitement caused by the event or condition.

Cross Reference to Federal Rule 803(2)

Question 39

Hearsay Exception - Family Records

Objections

• I object. The question calls for a hearsay answer.
• I move to strike the answer as hearsay

Answer 39

• Responses*
• This statement is admissible as a family record pursuant to Rule 803(13). I have shown through the testimony of (insert name of witness) that this is a statement of fact*
• concerning personal or family history; and
• contained in family Bibles, genealogies, or the like.

Cross Reference to Federal Rule 803(13)

Question 40

Hearsay Exception - Forfeiture by Wrongdoing

Objections

• I object. The question calls for hearsay.
• I move to strike the answer as hearsay

Answer 40

Responses
This statement is admissible pursuant to Rule 804(b)(6). I have shown through the testimony of (insert the name of the witness) that

• the declarant is unavailable pursuant to Rule 804(a); and
• objecting counsel’s client engaged in wrongdoing that was intended to, and did, procure the unavailability of the declarant; or
• objecting counsel’s client acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant.

Cross Reference to Federal Rule 804(b)(6)

Question 41

Hearsay Exception - Former Testimony

Objections

• I object. The question calls for a hearsay answer.
• I move to strike the answer as hearsay.

Answer 41

Responses
The statement is admissible as former testimony pursuant to Rule 804(b)(1). I have shown through the testimony of (insert name of witness) that

• the declarant is unavailable pursuant to »»Rule 804(a); and
• the statement is testimony given at another hear»»ing of the same or different proceeding, or in a deposition in the course of the same or a different proceeding; and
• the party against whom it is offered had an oppor»»tunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Cross Reference to Federal Rule 804