Evidence 41-45

Question 1

Hearsay Exceptions

When are Prior Statements Made Under Oathadmissible?

Answer 1

If they are offered against a party who was present in the previous trial;

The same issues are involved; AND

The party who it is offered against had the same motive and opportunity to examine the witness in the previous trial. (In CA: the party sharing similar interests is sufficient).

*ONLY applicable is the declarant is unavailable.

Priority: Medium

Question 2

Hearsay Exceptions

Under the FRE, when is a hearsay statement NOT excluded by the rule against hearsay?

Answer 2

When the statement:

Has equivalent circumstantial guarantees of trustworthiness;

Is offered as evidence of a material fact;

Is more probative on the point for which it is offered than any other evidence that can be obtained by reasonable means; AND

Admitting it will best serve the interests of justice.

* CA does not have the above catch-all hearsay exception.

Priority: Low

Question 3

Hearsay Exceptions

What is a Present Sense Impression?

What statements does this apply to in CA?

Answer 3

A statement describing an event made by the declarant;

While observing the event; OR

Immediately thereafter.

In CA: This is called a Contemporaneous Statement, and applies when the statement: (1) is offered to explain, qualify, or make declarant’s conduct understandable; AND (2) was made while declarant was engaged in such conduct.

Priority: HIGH

Question 4

Hearsay Exceptions

What is an Excited Utterance (or Spontaneous Statement as referred to in CA)?

Answer 4

A statement:

Relating to a startling event or condition,

Made while the declarant was under the stress of excitement that the event/condition caused.

Priority: HIGH

Question 5

Hearsay Exceptions

Business Records are an exception to the Hearsay rule.

When are they admissible under the FRE?

Answer 5

If it is:

A record of events, conditions, opinions, or diagnoses;

Kept in the regular course of business;

Made at or near the time of the matter described;

Made by a person with knowledge of the matter;

The regular practice of the business to make the record;
AND

The opponent party does not show a lack of trustworthiness in making the record.

Priority: HIGH