Ev - 7 - New hearsay - full

Question 1

Rule 801(d)(1) creates ___#___ exemptions for statements made by a declarant who is also a ________.

Answer 1

Rule 801(d)(1) creates THREE (3) exemptions for statements made by a declarant who is also a WITNESS.

Question 2

Rule 801(d)(2) creates ___#____ exemptions for ___________ by opposing ______.

Answer 2

Rule 801(d)(2) creates FIVE (5) exemptions for ADMISSIONS by an opposing PARTY.

Question 3

How many total exemptions fall under 801(d)?

Answer 3

8 total exemptions:

3 under 801(d)(1)
5 under 801(d)(2)

Question 4

801(d)(1) exempts a declarant-witness’s prior statement from the rule against hearsay in three specific situations:

(A)
(B)
(C)

Answer 4

(A), a prior inconsistent statement;

(B), a prior consistent statement; and

(C), a prior statement of identification.

Question 5

what is a declarant-witness?

Answer 5

A declarant-witness is simply a declarant who is also testifying as a witness in the present trial

Question 6

What is required for 801(d)(1) to apply?

Answer 6

In order for Rule 801(d)(1) to apply, the declarant-witness must be subject to cross-examination about his or her prior statement.

Question 7

What are the 2 requirements for 801(d)(1)(A) - prior INCONSISTENT statement?

Answer 7

1. the prior statement must be inconsistent with the declarant-witness’s testimony in the present trial.
2. the prior statement must have been given under the penalty of perjury – typically, it must have been made during a previous trial, hearing, or other proceeding requiring an oath or affirmation to testify truthfully.

Question 8

What are the 2 requirements for 801(d)(1)(B) - prior CONSISTENT statement?

Answer 8

1. the prior statement must be consistent with the declarant-witness’s testimony in the present trial.
2. the prior statement must be offered in the present trial to rebut an express or implied charge of recent fabrication or recent improper influence or motive regarding the declarant.

Question 9

What is the requirement for 801(d)(1)(C) - prior statement of identification?

Answer 9

801(d)(1)(C) requires that the declarant-witness’s prior statement must have identified someone that the declarant perceived at an earlier time.

Question 10

Rule 801(d)(2) exempts a statement of admission by an opposing party, or a party-opponent, in five specific situations:

(A)
(B)
(C)
(D)
(E)

Answer 10

(A) - an express admission;

(B) - an implied or adoptive admission;

(C) - an authorized admission;

(D) - an agent’s admission; and

(E) - a coconspirator’s admission.

Question 11

What is required for 801(d)(2) to apply?

Answer 11

The statement must be offered against the party-opponent who made that statement.

Question 12

True or False:

Any statement at all made by a party-opponent may qualify for an 801(d)(2) exemption.

Answer 12

True

Under 801(d)(1)(2) An admission does not necessarily have to be a statement against interest; any statement at all made by a party-opponent may qualify for an 801(d)(2) exemption.

Question 13

True or False:

Under 801(d)(1)(2) An admission must be a statement against interest.

Answer 13

False

Under 801(d)(1)(2) An admission does not necessarily have to be a statement against interest; any statement at all made by a party-opponent may qualify for an 801(d)(2) exemption.

Question 14

What are the first two 801(d)(2) exemptions and what do both involve?

Answer 14

The first two 801(d)(2) exemptions are:

801(d)(2)(A) - Express Admission
801(d)(2)(B) - Implied or Adoptive Admission

Both involve an admission made personally by the party-opponent.

Question 15

What does the first 801(d)(2)(A) exemption - Express Admission - require?

Answer 15

The first exemption, an express admission, requires under 801(d)(2)(A) that the party-opponent made the statement in an individual or representative capacity.

Question 16

What does the second 801(d)(2)(B) exemption - Implied or Adoptive Admission - require?

Answer 16

The second exemption, an implied or adoptive admission requires that the party-opponent adopted or believed the statement as true

This means that the party-opponent must have either:
—agreed with the statement,

—adopted the statement as his or her own, or

—remained silent when, generally, a person who disagreed with the statement would have protested it as untrue under the circumstances.

Question 17

What are the last three 801(d)(2) exemptions and what do they all involve?

Answer 17

1. 801(d)(2)(C) - Authorized Admission
2. 801(d)(2)(D) - Agents Admission
3. 801(d)(2)(E) - Co-Conspirators Admission

The last three 801(d)(2) exemptions involve an admission made by a declarant who is speaking for the party-opponent.

Question 18

What are the last three 801(d)(2) exemptions?

Answer 18

1. 801(d)(2)(C) - Authorized Admission
2. 801(d)(2)(D) - Agents Admission
3. 801(d)(2)(E) - Co-Conspirators Admission

Question 19

What do all of the last three 801(d)(2) exemptions involve?

Answer 19

The last three 801(d)(2) exemptions involve an admission made by a declarant who is speaking for the party-opponent.

Question 20

What does the third 801(d)(2)(C) exemption - Authorized Admission - require?

Answer 20

801(d)(2)(C) - Authorized Admission - requires that the statement be made by a declarant authorized to speak for the party-opponent about the subject.

Question 21

What does the third 801(d)(2)(D) exemption - Agents Admission - require?

Answer 21

801(d)(2)(D) - An Agent’s Admission requires that the statement be made by the party-opponent’s agent or employee regarding a matter within the scope of the relationship between the party-opponent and the agent or employee at the time.

Question 22

What does the third 801(d)(2)(E) exemption - Co-Conspirators Admission - require?

Answer 22

801(d)(2)(E) - A Co-Conspirator’s Admission - requires that the statement be made by the party-opponent’s coconspirator during and in furtherance of the conspiracy.

Question 23

Statements admitted under the last three 801(d)(2) exemptions below may not be used to prove what?

1. 801(d)(2)(C) - Authorized Admission
2. 801(d)(2)(D) - Agents Admission
3. 801(d)(2)(E) - Co-Conspirators Admission

Answer 23

Note that statements admitted under these three exemptions may not be used to prove the existence of the relationship between the party-opponent and the declarant; that relationship must be proved separately.

Question 24

Does the witness need to be available to testify for an 803 exception to apply?

Answer 24

No. 803 lists 23 hearsay exceptions that apply regardless of whether the declarant is available to testify as a witness.

Question 25

What are the 8 “major” 803 exceptions?

Answer 25

1 - 803(1) - present sense impressions

2 - 803(2) - excited utterances

3 - 803(3) - then-existing mental, emotional, or physical conditions.

4 - 803(4) - statements made for medical diagnosis or treatment

5 - 803(5) - past recorded recollections

6 - 803(6) - business records, or records of regularly conducted activity.

7 - 803(7) - absence of business records to prove that a matter did not occur or exist.

8 - 803(8) - public records

Question 26

What are the first four 803 exceptions and when do they apply?

Answer 26

The first four hearsay exceptions under Rule 803 apply to any hearsay statements made by a declarant.

1 - 803(1) - present sense impressions

2 - 803(2) - excited utterances

3 - 803(3) - then-existing mental, emotional, or physical conditions.

4 - 803(4) - applies to statements made for medical diagnosis or treatment

Question 27

What do the last four major 803 exceptions apply to?

Answer 27

the last four major exceptions under Rule 803 apply to hearsay records, or documents, created by a declarant.

Question 28

What is a past recorded recollection under 803(5) exception?
And what are the requirements for 803(5) to apply?

Answer 28

Under 803(5), a past recorded recollection is a record that:

1. Is regarding a matter that the witness once knew about but can no longer recall well enough to testify fully and accurately;
2. Was made or adopted by the witness while the matter was still fresh in the witness’s memory; and,
3. Accurately reflects the witness’s knowledge.

The declarant must testify as a witness at the present trial to establish that the record meets these requirements. If admitted, the past recorded recollection may be read into evidence; however, it may not be admitted as an exhibit unless offered by an adverse party.

Question 29

What is are the similarities and the distinction between:
803(5) - past recorded recollection
and
612 - a writing to refresh recollection?

Answer 29

Both 803(5), a past recorded recollection, and Rule 612, a writing to refresh recollection, involve written records created by witnesses who no longer remember exactly what they recorded. However, the two rules allow written records for different purposes.

803(5) records may be admitted as substantive evidence, and the witness who created the record must no longer recall the matter well enough to testify fully and accurately.

On the other hand, Rule 612 writings may not be admitted as substantive evidence, and the witness who created the writing must recall the matter and read the writing silently for the sole purpose of refreshing his or her memory.

If you ever get confused, just ask yourself: Is the record itself being used to prove something? If so, then it must fall under the 803(5) exception in order to be admissible.

Question 30

What is does the sixth hearsay exception 803(6) - business records or records of regularly conducted activity - apply to?

Answer 30

The sixth hearsay exception, 803(6), applies to business records, or records of regularly conducted activity.

Under 803(6), a record of regularly conducted activity may be a record of an act, event, condition, opinion, or diagnosis.

Question 31

What is a “record of regularly conducted activity” for purposes of 803(6)?

Answer 31

The sixth hearsay exception, 803(6), applies to business records, or records of regularly conducted activity.

Under 803(6), a record of regularly conducted activity may be a record of:
*an act,
*event,
*condition,
*opinion, or
*diagnosis.

Question 32

What are the requirements for 803(6) - business records or records of regularly conducted activity - to apply?

1.
2.
3.
4.
5.

Answer 32

1. The record must be made by someone with knowledge or with information transmitted by someone with knowledge, at or near the time of the activity;
2. The record must be kept in the course of regularly conducted activity of a business, organization, occupation, or calling, whether for profit or not for profit; and
3. The act of making the record must have been a regular practice.
4. A qualified witness, such as the creator or the custodian of the record, must testify that the record meets these requirements, and
5. neither the source of information nor the method or circumstances of preparation may indicate a lack of trustworthiness.

Question 33

What are the requirements for 803(7) - absence of business records - to apply?

Answer 33

803(7) specifies that the absence of business records may also be admissible, if offered to prove that a matter did not occur or exist so long as nothing about the circumstances indicates a lack of trustworthiness.

Question 34

What are the requirements for 803(8) - public records - to apply? What are the 3 categories?

Answer 34

803(8), applies to public records. Under 803(8), a record or statement made by a public office must fall into one of three categories.

1. A public record or statement may address the public office’s activities
2. A public record or statement may address a matter observed by a public official while under a legal duty to report the matter.
3. A public record or statement of factual findings from a legally authorized investigation may be admitted in a civil case or against the government in a criminal case.

Question 35

What is the first category of 803(8) public record exception and what does it provide?

Answer 35

Under 803(8), a record or statement made by a public office must fall into one of three categories:

1. Public record or statement may address the public office’s activities; for example, court transcripts of trials, or treasury records of receipts and disbursements.

Question 36

What is the second category of 803(8) public record exception and what does it provide?

Answer 36

2. A public record or statement may address a matter observed by a public official while under a legal duty to report the matter.

For instance, if Child Protective Services investigates a report of child abuse, any records or statements addressing the matter may be admissible under 803(8). However, if Child Protective Services records a matter that it does not have a legal duty to report, such as animal cruelty or violations of fire code, then such records would not be admissible under 803(8).

Furthermore, in criminal cases, any matters observed by law-enforcement personnel may not be admissible under 803(8), even though law enforcement may have been under a legal duty to report the matter. Thus, for example, a police officer’s report of a matter could not be admissible under this exception.

Question 37

What is the third category of 803(8) public record exception and what does it provide?

Answer 37

3. A public record or statement of factual findings from a legally authorized investigation may be admitted in a civil case or against the government in a criminal case.

For example, a police report containing findings from an investigation may be admissible in a civil case or against the government in a criminal case, under 803(8).

Question 38

True or False:

The source of information and other circumstances surrounding a public record and business records must not indicate a lack of trustworthiness to be admitted.

Answer 38

True

Question 39

The remaining exceptions are:
803(9), public records of vital statistics such as birth, death, or marriage;
803(10), absence of a public record, to prove that a matter did not occur or exist;
803(11), records of a religious organization concerning personal or family history, such as marriage or ancestry;
803(12), certificates of marriage, baptism, and similar ceremonies;
803(13), family records about personal or family history, such as a family tree or a burial marker;
803(14), records of documents affecting property interest;
803(15), statements in documents affecting property interest;
803(16), statements in ancient documents that are over twenty years old;
803(17), market reports and similar commercial publications that are generally relied upon by the public or professionals;
803(18), statements in learned treatises, periodicals, or pamphlets used by expert witnesses;
803(19), reputation concerning personal or family history;
803(20), reputation concerning land boundaries or the general history of land;
803(21), reputation concerning character;
803(22), judgments of previous convictions; and,
803(23), judgments involving personal or family history, general history, or land boundaries.

Question 40

What are the 5 types of unavailable declarants under 804?

Answer 40

Rule 804(a) defines five types of unavailable declarants:

1 - The first type of unavailable declarant is exempt from testifying due to privilege. This can include constitutional privileges, such as the 5th Amendment’s right against self-incrimination, or evidentiary privileges, such as attorney-client privilege.

2. The second type of unavailable declarant refuses to testify despite a court order.
3. The third type of unavailable declarant does not remember the subject matter of the hearsay statement well enough to testify about it.
4. The fourth type of unavailable declarant is deceased or suffering from an infirmity, physical illness, or mental illness that is severe enough to prevent him from testifying at the current trial.
5. the fifth type of unavailable declarant is absent from the trial entirely. The party seeking to offer the declarant’s statement must have reasonably attempted to procure the declarant’s attendance or testimony, either by process or by other means.

Question 41

What are the 5 exceptions under 804?

Answer 41

Rule 804(b) lists the following five hearsay exceptions:

1. former testimony
2. dying declaration,
3. statement against interest,
4. statement of personal or family history, and
5. forfeiture by wrongdoing.

Question 42

When do the five exceptions under 804 apply?

Answer 42

the five hearsay exceptions under 804 apply only if the declarant is unavailable.

Question 43

What distinguishes 803 exceptions from the 804 exceptions?

Answer 43

Under Rule 804, certain hearsay statements may be admissible if the declarant is unavailable to testify as a witness. This unavailability requirement distinguishes Rule 804 from Rule 803.

Question 44

True or False:

Rule 804 specifies that a declarant will not be considered unavailable if the hearsay statement is offered by a party who procured or wrongfully caused the declarant’s unavailability with the intention of preventing the declarant from testifying.

Answer 44

True

Question 45

What are the requirements for the first 804 exception - 804(b)(1) - former testimony - to apply?

Answer 45

804(b)(1) applies to former testimony. Under 804(b)(1), a hearsay statement must meet two requirements:

1. the declarant must have given the statement while testifying as a witness in any previous trial, hearing, or lawful deposition; and
2. the statement must now be offered against a party who had the opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

In a civil case, such a party may be a successor in interest rather than an identical party.

Question 46

What are the requirements for the second 804 exception - 804(b)(2) -dying declarations - to apply?

Answer 46

804(b)(2) exception applies to dying declarations. Under 804(b)(2), a hearsay statement must meet three requirements in order to fall under the exception for dying declarations:

1. The statement must be offered in a prosecution for homicide or in a civil case;
2. The declarant must have been under the belief that his or her own death was imminent; and
3. The statement must be about the cause or circumstances of the declarant’s imminent death.

**the declarant does not actually have to die in order for this exception to apply.

Question 47

What are the requirements for the third 804 exception - 804(b)(3) - statements against interest - to apply?

Answer 47

804(b)(3) applies to statements against interest.

Under 804(b)(3), a hearsay statement must be so against the declarant’s interest at the time that a reasonable person in that position would have made the statement only if he or she believed it to be true.

Such a statement may be contrary to the declarant’s property or financial interest, tend to invalidate the declarant’s claim against someone else, or tend to expose the declarant to civil or criminal liability.

804(b)(3) also requires that a hearsay statement under this exception must be supported by corroborating circumstances clearly indicating its trustworthiness, if it is offered in a criminal case in order to expose the declarant to criminal liability.

Question 48

What are the requirements for the fourth 804 exception - 804(b)(4) - statements of personal or family history - to apply?

Answer 48

804(b)(4) applies to statements of personal or family history.

Under 804(b)(4), a hearsay statement may address either the declarant’s own personal or family history, even if the declarant had no way to acquire personal knowledge about the information,

OR

another person’s personal or family history, if the declarant is related to or associated with the person or the person’s family, such that the stated information is likely to be accurate.

Personal or family history can include facts regarding:
*birth,
*adoption,
*legitimacy,
*ancestry,
*marriage,
*divorce, or
*any other relationship by blood, adoption, or marriage.