Chapter 9: Hearsay Exceptions (Evidence Book 410-413).

Question 1

_________ _________ (FRE 803, 804, and 807). There are two primary categories of hearsay exceptions under the rules:
1. FRE 803 exceptions (23 of them)
2. 804(b) exceptions (5 of them).
There is also one general residual “catchall” exception under FRE 807

Answer 1

Hearsay Exceptions

Question 2

Hearsay Exceptions (FRE 803, 804, and 807). There are two primary categories of hearsay exceptions under the rules:
1. ?
2.
There is also one general residual “catchall” exception under FRE 807.

Answer 2

1. FRE 803 exceptions (23 of them)

Question 3

Hearsay Exceptions (FRE 803, 804, and 807). There are two primary categories of hearsay exceptions under the rules:
1.
2. ?
There is also one general residual “catchall” exception under FRE 807.

Answer 3

2. 804(b) exceptions (5 of them)

Question 4

Hearsay Exceptions (FRE 803, 804, and 807). There are two primary categories of hearsay exceptions under the rules:
1.
2.
There is also one general residual “catchall” exception under FRE 807.

Question 5

Hearsay Exceptions (FRE 803, 804, and 807). There are two primary categories of hearsay exceptions under the rules:
1. FRE 803 exceptions (23 of them)
2. 804(b) exceptions (5 of them).
There is also one general residual “________” exception under FRE 807

Answer 5

catchall

Question 6

Rule 803 Hearsay Exceptions: Availability of the __________ Immaterial.

Answer 6

Declarant

Question 7

These hearsay exceptions can be used regardless of whether or not the declarant is available to be a witness and testify at trial (the “strong” exceptions).

What FRE?

Answer 7

803

Question 8

These hearsay exceptions can be used regardless of whether or not the declarant is available to be a witness and testify at trial (the ________ exceptions). FRE 803

Answer 8

strong

Question 9

These hearsay exceptions can be used regardless of whether or not the declarant is available to be a witness and testify at trial (the strong exceptions). Although there are 23 exceptions under FRE 803, the most commonly used ones are the first _______. The Ancient Documents exception is included because of the recent change to its language.

Answer 9

eight (8)

Question 10

FRE 803(1)

Answer 10

Present Sense Impression

Question 11

If a declarant made a hearsay statement describing or explaining an event or condition when perceiving that event or condition as it transpired, or immediately thereafter, then the statement will not be excluded by the hearsay rule. Timing is critical: such a statement is considered reliable because the declarant has little or no time to fabricate what they are describing as it transpires.

What FRE?

Answer 11

803(1)

Question 12

If a declarant made a hearsay statement describing or explaining an event or condition when perceiving that event or condition as it ________, or ________ _________, then the statement will not be excluded by the hearsay rule. FRE 803(1)

Answer 12

transpired

immediately thereafter

Question 13

If a declarant made a hearsay statement _______ or _________ an event or condition when perceiving that event or condition as it transpired, or immediately thereafter, then the statement will not be excluded by the hearsay rule. FRE 803(1)

Answer 13

describing

explaining

Question 14

Timing is critical: such a statement is considered _______ because the declarant has little or no time to fabricate what they are describing as it transpires. FRE 803(1)

Answer 14

reliable

Question 15

Timing is critical: such a statement is considered reliable because the declarant has little or no time to ________ what they are describing as it transpires. FRE 803(1)

Answer 15

fabricate

Question 16

FRE 803(2).

Answer 16

Excited Utterance

Question 17

Excited Utterance.

What FRE?

Answer 17

803(2)

Question 18

If a declarant made a hearsay statement under the stress of a startling event or condition, caused by, and relating to, the event or condition, then the statement will not be excluded by the hearsay rule. Timing is NOT as critical here as it is for 803(1), above. Such a statement is considered reliable because the declarant is unlikely to fabricate a story when under such stress.

What FRE?

Answer 18

803(2)

Question 19

If a declarant made a hearsay statement under the ______ of a startling event or condition, caused by, and relating to, the event or condition, then the statement will not be excluded by the hearsay rule. Timing is NOT as critical here as it is for 803(1), above. FRE 803(2).

Answer 19

stress

Question 20

If a declarant made a hearsay statement under the stress of a startling ______ or _______ caused by, and relating to, the ______ or _______, then the statement will not be excluded by the hearsay rule. Timing is NOT as critical here as it is for 803(1), above. FRE 803(2).

Answer 20

event or condition

event or condition

Question 21

If a declarant made a hearsay statement under the stress of a startling event or condition, caused by, and relating to, the event or condition, then the statement will not be excluded by the hearsay rule. ______ is NOT as critical here as it is for 803(1), above. FRE 803(2).

Answer 21

Timing

Question 22

Such a statement is considered reliable because the declarant is unlikely to fabricate a story when under such _______. FRE 803(2).

Answer 22

stress

Question 23

FRE 803(3)

Answer 23

Then Existing Mental, Emotional, or Physical Condition

Question 24

Then Existing Mental, Emotional, or Physical Condition

What rule?

Answer 24

FRE 803(3)

Question 25

If a declarant made a hearsay statement describing or explaining her own, then existing, condition (that is not a memory or belief about a PAST event, but is about a present event or is an intention about a future event), then the statement will not be excluded by the hearsay rule. What FRE?

Answer 25

FRE 803(3).

Question 26

If a declarant made a hearsay statement describing or explaining her own, then existing, condition (that is not a memory or belief about a PAST event, but is about a ________ ______ or is an intention about a ______ ______), then the statement will not be excluded by the hearsay rule. FRE 803(3).

Answer 26

present event

future event

Question 27

Such a statement is considered ______ because the declarant has little or no time to _______ what they are describing as it _______. FRE 803(3).

Answer 27

reliable

fabricate

transpires

Question 28

If FRE 803(1) “present sense impression” is a simultaneous description of external events or conditions, then a FRE 803(3) “then existing condition” is a simultaneous description of internal _____, ______ or _______ feelings.

Answer 28

mental, emotional, or physical

Question 29

FRE 803(4)

Answer 29

Statements for Medical Diagnosis or Treatment

Question 30

Statements for Medical Diagnosis or Treatment

What FRE?

Answer 30

FRE 803(4)

Question 31

If a declarant made a hearsay statement with the expectation of receiving a correct ______ _______ or proper _______ ________, then the statement will not be excluded by the hearsay rule. FRE 803(4).

Answer 31

medical diagnosis

medical treatment

Question 32

If a declarant made a hearsay statement with the _________ of _______ a correct medical diagnosis or proper medical treatment, then the statement will not be excluded by the hearsay rule. FRE 803(4).

Answer 32

expectation of receiving

Question 33

Such a statement is considered reliable because the declarant has a very _____ ________ incentive not to lie in these circumstances ensuring receipt of a correct diagnosis and appropriate medical treatment. FRE 803(4).

Answer 33

self-interested

Question 34

Such a statement is considered reliable because the declarant has a very self-interested incentive not to ____ in these circumstances ensuring ______ of a correct diagnosis and _______ _______ ______. FRE 803(4).

Answer 34

lie

receipt

appropriate medical treatment

Question 35

Note that this exception applies even when the declarant made a hearsay statement describing ______ events and conditions, as long as they are relevant to the treatment or diagnosis. Statements that are not necessary or relevant in order to receive a correct medical diagnosis or proper medical treatment, especially statements that attempt to place legal blame, are inadmissible. FRE 803(4).

Answer 35

PAST

Question 36

Note that this exception applies even when the declarant made a hearsay statement describing PAST events and conditions, as long as they are relevant to the ________ or ________. Statements that are not necessary or relevant in order to receive a correct medical diagnosis or proper medical treatment, especially statements that attempt to place legal blame, are inadmissible. FRE 803(4).

Answer 36

treatment or diagnosis

Question 37

Note that this exception applies even when the declarant made a hearsay statement describing PAST events and conditions, as long as they are relevant to the treatment or diagnosis. Statements that are not necessary or relevant in order to receive a correct medical diagnosis or proper medical treatment, especially statements that attempt to place ______ ______, are inadmissible. FRE 803(4).

Answer 37

legal blame

Question 38

FRE 803(5).

Answer 38

Recorded Recollection

Question 39

Recorded Recollection.

Answer 39

FRE 803(5)

Question 40

If a declarant’s recollection cannot be refreshed under FRE 612, it is possible under _______ to use a hearsay document that contains the declarant’s past recollection recorded, if the document contains information about which the declarant once had knowledge, but cannot now remember, and the document was made or adopted by the declarant, when the matter was fresh in the mind of the declarant, and the document accurately reflects that knowledge.

Answer 40

FRE 803(5)

Question 41

If a declarant’s recollection cannot be refreshed under FRE 612, it is possible under FRE 803(5) to use a hearsay document that contains the declarant’s _____ _______ ________, if the document contains information about which the declarant once had knowledge, but cannot now remember, and the document was made or adopted by the declarant, when the matter was fresh in the mind of the declarant, and the document accurately reflects that knowledge.

Answer 41

past recollection recorded

Question 42

If a declarant’s recollection cannot be refreshed under FRE 612, it is possible under FRE 803(5) to use a hearsay document that contains the declarant’s past recollection recorded, if the document contains information about which the declarant once had _______, but cannot now remember, and the document was made or adopted by the declarant, when the matter was ______ in the mind of the declarant, and the document accurately reflects that _________.

Answer 42

knowledge

fresh

knowledge

Question 43

Such a document is considered reliable because it contains accurate information that was _______ when the declarant would not have had any incentive to lie. Note that the contents of the document can only be read in _____ ______, but not made an _______ ______, unless the opposing side wants it admitted as an ________ _______. FRE 803(5).

Answer 43

recorded

open court

evidentiary exhibit

evidentiary exhibit

Question 44

FRE 803(6)

Answer 44

Records of Regularly Conducted Activity

Question 45

Records of Regularly Conducted Activity

What FRE?

Answer 45

FRE 803(6)

Question 46

FRE 803(6): If a declarant keeps records of a regularly conducted activity, such as the operation of the business, then those records may meet this exception if:
1. ?
2.
3.
4.
5.

Answer 46

1. those records are offered through a witness who is a custodian or other qualified person to maintain the records.

Question 47

FRE 803(6): If a declarant keeps records of a regularly conducted activity, such as the operation of the business, then those records may meet this exception if:
1.
2. ?
3.
4.
5.

Answer 47

2. the person who made the record had knowledge of the matter

Question 48

FRE 803(6): If a declarant keeps records of a regularly conducted activity, such as the operation of the business, then those records may meet this exception if:
1.
2.
3. ?
4.
5.

Answer 48

3. the record was made at or near the time the events or conditions therein occurred

Question 49

FRE 803(6): If a declarant keeps records of a regularly conducted activity, such as the operation of the business, then those records may meet this exception if:
1.
2.
3.
4. ?
5.

Answer 49

4. the person who made the record had a business duty to do so as a regular practice of the organization

Question 50

FRE 803(6): If a declarant keeps records of a regularly conducted activity, such as the operation of the business, then those records may meet this exception if:
1.
2.
3.
4.
5. ?

Answer 50

5. the record was kept in the regular course of that business activity.

Question 51

FRE 803(6) If a declarant keeps records of a regularly conducted activity, such as the operation of the business, then those records may meet this exception if (1) those records are offered through a ______ who is a _______ or other qualified person to _______ the records.

Answer 51

witness

custodian

maintain

Question 52

FRE 803(6) If a declarant keeps records of a regularly conducted activity, such as the operation of the business, then those records may meet this exception if (2) the person who made the record had _________ of the matter.

Answer 52

knowledge

Question 53

FRE 803(6) If a declarant keeps records of a regularly conducted activity, such as the operation of the business, then those records may meet this exception if (3) the record was made ___ or _____ the time the events or conditions therein occurred.

Answer 53

at or near

Question 54

FRE 803(6) If a declarant keeps records of a regularly conducted activity, such as the operation of the business, then those records may meet this exception if (3) the record was made at or near the time the ______ or _______ therein occurred.

Answer 54

events or conditions

Question 55

FRE 803(6) If a declarant keeps records of a regularly conducted activity, such as the operation of the business, then those records may meet this exception if (4) the person who made the record had a ______ _____ to do so as a _____ ______ of the organization.

Answer 55

business duty

regular practice

Question 56

FRE 803(6) If a declarant keeps records of a regularly conducted activity, such as the operation of the business, then those records may meet this exception if (5) the record was kept in the _______ _____ of that business activity.

Answer 56

regular course

Question 57

Additionally, the record must be _________ (not made in a self-serving way with an eye toward litigation). FRE 803(6).

Answer 57

trustworthy

Question 58

Such records satisfying FRE 803(6) are considered reliable because people making them have a strong _______ and ________ incentive to create and keep good and accurate records.

Answer 58

financial and organizational

Question 59

Absence of a Record of a Regularly Conducted Activity.

What FRE?

Answer 59

803(7)

Question 60

FRE 803(7)

Answer 60

Absence of a Record of a Regularly Conducted Activity.

Question 61

The absence of a record of regularly conducted activity, that ______ ______ _____ ____ ______, is admissible pursuant to the same policy goals and concerns as set forth in FRE 803(6).

Answer 61

otherwise should have been there

Question 62

FRE 803(8)

Answer 62

Public Records

Question 63

Public Records

What FRE?

Answer 63

FRE 803(8)

Question 64

This exception is very similar to the FRE 803(6) business records exception, but it involves records of public agencies instead of businesses. What FRE?

Answer 64

803(8)

Question 65

This exception is very similar to the FRE 803(6) business records exception, but it involves records of ______ ________ instead of businesses. FRE 803(8).

Answer 65

public agencies

Question 66

Although the policy concerns, justifications, and basic requirements are the same, there are two key differences: (1) in ______ _______, matters observed and recorded in police reports are excluded; and (2) in _____ ______ (and against the government in criminal cases), factual findings made pursuant to a duty by law are admissible even if those “findings” are interpreted very broadly to include the “opinions and conclusions” of public agency officials and investigators. FRE 803(8).

Answer 66

criminal cases

civil cases

Question 67

Statements in Ancient Documents

What FRE?

Answer 67

FRE 803(16)

Question 68

FRE 803(16)

Answer 68

Statements in Ancient Documents

Question 69

This exception is worth noting because it was changed in 2017. The former rule effectively defined ancient documents as those that were at least 20 years old. The drafters thought it prudent to update the rule providing a specific date before which a document must have been prepared to qualify. The revised rule is an attempt to retain the exception while adding a modicum of trustworthiness that may be lost with the use of existing technology. FRE 803(16). !!

Answer 69

!!

Question 70

The Remaining 803 Exceptions. FRE 803(9)-(15) & (17)-(23) for the remaining, less commonly used, FRE 803 exceptions. Think about why each one of them is considered reliable. Note that the 803(18) ________ ______ exception is often used to overcome a hearsay objection when questioning an expert witness and referring to certain passages from textbooks or other academic or technical publications.

Answer 70

learned treatise

Question 71

Hearsay Exceptions: When the declarant is unavailable as a witness.

What FRE?

Answer 71

804(b)

Question 72

These hearsay exceptions can be used ONLY when the declarant is unavailable to be aa witness and testify at trial.

What FRE?

Answer 72

804(b)

Question 73

These hearsay exceptions can be used ONLY when the declarant is unavailable to be aa witness and testify at trial. Under FRE 804(a), the unavailability of a declarant to testify at trial includes
1. ?
2.
3.
4.
5.

Answer 73

1. an exemption or privilege

Question 74

These hearsay exceptions can be used ONLY when the declarant is unavailable to be aa witness and testify at trial. Under FRE 804(a), the unavailability of a declarant to testify at trial includes
1.
2. ?
3.
4.
5.

Answer 74

2. a refusal to testify

Question 75

These hearsay exceptions can be used ONLY when the declarant is unavailable to be aa witness and testify at trial. Under FRE 804(a), the unavailability of a declarant to testify at trial includes
1.
2.
3. ?
4.
5.

Answer 75

3. a complete lack of memory by the declarant

Question 76

These hearsay exceptions can be used ONLY when the declarant is unavailable to be aa witness and testify at trial. Under FRE 804(a), the unavailability of a declarant to testify at trial includes
1.
2.
3.
4. ?
5.

Answer 76

4. death or illness

Question 77

These hearsay exceptions can be used ONLY when the declarant is unavailable to be aa witness and testify at trial. Under FRE 804(a), the unavailability of a declarant to testify at trial includes
1.
2.
3.
4.
5. ?

Answer 77

5. inability to procure attendance through reasonable means (but must have at least attempted to subpoena the declarant).

Question 78

Accordingly if the declarant is unavailable to testify for one or more of these FRE 804(a) reasons, then and only then, can any of the following FRE 804(b) hearsay exceptions be used!!!

Answer 78

!!!

Question 79

FRE 804(b)
(1) ?
(2)
(3)
(4)
(5)
(6)

Answer 79

(1) Former Testimony

Question 80

FRE 804(b)
(1)
(2) ?
(3)
(4)
(5)
(6)

Answer 80

(2) Statement Under the Belief of Imminent Death

Question 81

FRE 804(b)
(1)
(2)
(3) ?
(4)
(5)
(6)

Answer 81

(3) Statement Against Interest

Question 82

FRE 804(b)
(1)
(2)
(3)
(4) ?
(5)
(6)

Answer 82

(4) Statement of Personal of Family History

Question 83

FRE 804(b)
(1)
(2)
(3)
(4)
(5) ?
(6)

Answer 83

(5) None. Both Rules 804(b)(5) and 803(24) were transferred to FRE 807!

Question 84

FRE 804(b)
(1)
(2)
(3)
(4)
(5)
(6) ?

Answer 84

(6) Statement offered Against a Party that Wrongfully Caused the Declarant’s Unavailability

Question 85

FRE 804(b)(1). Former Testimony. If a declarant provided testimony in a prior proceeding, and the ______ against whom that hearsay statement is now being used, was a ______ in that previous proceeding, and that ______ had the same motive and opportunity in that previous proceeding to develop or confront that testimony, then that former testimony would be admissible.

Answer 85

party

party

party

Question 86

Note that in _____ cases, the former testimony can be used against someone who was not a party in the former proceeding, provided that parties “predecessor in interest” was a party in the former proceeding, and had the same motive and opportunity to develop and confront that testimony in that previous proceeding.

Note that in _______ cases, this exception, and in certain circumstances other exceptions, has been limited somewhat by the Confrontation Clause of the 6th Amendment of the United States Constitution. FRE 804(b)(1).

Answer 86

civil

criminal

Question 87

If a declarant made a hearsay statement based on personal knowledge, while under the belief that her own ______ was ________, and the statement concerned the cause or circumstances of her imminent death, then that statement will not be excluded by the hearsay rule.

The declarant need not actually die for this exception to work. These kinds of statements are also referred to as “______ _______” and they are considered reliable because a declarant, presumably, has an incentive to tell the truth as a final last act before death. FRE 804(b)(2).

Answer 87

death was imminent

dying declarations

Question 88

If a declarant made a hearsay statement based on personal knowledge, while under the belief that her own death was imminent, and the statement concerned the cause or circumstances of her imminent death, then that statement will not be excluded by the hearsay rule.

The _______ ______ ____ _____ _____ for this exception to work. These kinds of statements are also referred to as “dying declarations” and they are considered reliable because a declarant, presumably, has an incentive to tell the truth as a final last act before death. FRE 804(b)(2).

Answer 88

declarant need not actually die

Question 89

If a declarant made a hearsay statement, that when made was against her _______ or _______ interest , such that a reasonable person would not make that statement if it were not true, then that statement will not be excluded by the hearsay rule.

Such a statement is considered reliable because there is an incentive not to make such a potentially harmful statement unless it were true. FRE 804(b)(3)

Answer 89

economic or legal

Question 90

Note that if the statement is made to exculpate another person from _______ ________, then the statement must have some corroboration so that the declarant is not merely “taking the rap” (with nothing to lose) for a criminal cohort. The statement truly has to be against one’s own interest when made. FRE 804(b)(3).

Answer 90

criminal liability

Question 91

This hearsay exception simply refers to a ______ ______ who has made a hearsay statement about _____ ______. FRE 804(b)(4)

Answer 91

family member

family history

Question 92

Both rules 804(b)(5) and 803(24) were transferred to FRE 807. !!

Answer 92

!!

Question 93

If a party is involved in, or is responsible for a declarant’s _________ at trial, then any statement that the declarant may have made can be used against he party who procured the declarant’s ________ at trial. FRE 804(b)(6)

Answer 93

unavailability
unavailability

Question 94

The policy goal is to make it so that the party responsible for procuring a declarant’s unavailability at trial is not rewarded for their misdeed. In other words, parties should not be able to “_______” potential witness’s testimony at trial, first by procuring the unavailability of that person at trial, and then later be able to take advantage of the rule against hearsay to also exclude their out-of-court statement. FRE 804(b)(6).

Answer 94

silence

Question 95

The residual exception.

What FRE?

Answer 95

807

Question 96

FRE 807

Answer 96

The Residual Exception

Question 97

The residual “Catchall” exception was revised in December 2019. It allows attorney’s to argue for the admission of hearsay statements that do not fall within any FRE 803 or 804(b) exception. FRE 807 provides that a hearsay statement is not excluded if (1) the statement is supported by sufficient guarantees of __________ after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and (2) it is ______ ______ on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. The proponent must give an adverse party reasonable notice of the intent to offer the statement.

Answer 97

trustworthiness

more probative