Evidence _ Hearsay and Circumstances of Admissibility

Question 1

Hearsay (Def)

Answer 1

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted

(Generally Inadmissible - start with the premise that hearsay is inadmissible unless it meets an exception).

ADAPTITIP: If you are not sure – pick “inadmissible as hearsay not within any exception”

Question 2

Hearsay - Statements NOT offered for Truth

Answer 2

• Words of Offer & Acceptance
• Libel or Slander
• Verbal Acts to show motive/notice

Question 3

Present Sense Impression:

HEARSAY EXCEPTIONS

Answer 3

• Statement made while observing fact
• Non-emotional observation

*look at timing - if made immediately while seeing = PSI; if made later = NOT PSI

Example:
Present Sense Impression
o “I saw the car go through the red light”
o “The man was walking down the street
wearing a black hat”
o “The woman was wearing a yellow dress as she
crossed the street”
Not Present Sense Impression
o Call wife 12 hours later to say, “I saw the car go
through the red light”
o Call wife 12 hours later to say, “The man was
walking down the street wearing a black hat”

Question 4

Excited Utterance

Hearsay Exceptions

Answer 4

• Statement made while excited
• Look for “!”

Question 5

Then Existing Mental, Emotional, Physical State of Mind:

Hearsay Exceptions

Answer 5

• Statements of intent, emotion, or physical
  state

Example:
o “I couldn’t have killed her, I loved her” (Emotions)
o “I was going to New York” (State of mind/mental/intent)
o “I was on my way to L.A.” (State of mind/mental/intent)
o “I’m suffering pain right now” (Physical - doesn’t need to be made to a doctor)

Question 6

Business Record:

Hearsay Exceptions

Answer 6

Record made in the ordinary course of the business (daily routine of business).
If it’s made once in a while, or during a promotion - it’s not a business record regardless of logo/sign.

Example:
Business Record
o President signed an invoice or piece of paper
on ABC Inc. letterhead
o Time sheet

Not Business Record
o Christmas gift for clients on law firm letterhead

Question 7

Statement for Medical Diagnosis or Treatment:

Hearsay Exceptions

Answer 7

• Statement related to past or present symptoms
• About the treatment or diagnosis

Question 8

Recorded Recollection

Hearsay Exceptions

Answer 8

1) Witness on the stand cannot remember
2) Document made/adopted by witness
3) CAN be read into evidence

Question 9

Public Record

Hearsay Exceptions

Answer 9

• Record or statement of a public office/ agency (that shows activity of office; it has to be written - not just some communication)
• Observations by someone with a duty to report

Example:
o Police report
o looking through jail records (remember that question)

Question 10

Absence of Business Record or Public Record

Hearsay Exceptions

Answer 10

• Look for facts to indicate there was NO
  record

Question 11

Learned Treatise

Hearsay Exceptions

Answer 11

Admissible when an expert witness is relying on the treatise

Question 12

Ancient Document:

Answer 12

1) Document more than 20 years old
2) Authenticated

Question 13

Catch-All Exception

Hearsay Exceptions

Answer 13

1) Material
2) Trustworthy
3) In the interest of justice

residual hearsay exceptions - any other statement that is trustworthy, material fact of the case, and it would be in the interest of justice (fair) to help the case, with both parties given advance notice to the parties it will come in.

Question 14

HEARSAY EXCEPTIONS – Unavailability Requirement
(What does Unavailable mean?)

HEARSAY EXCEPTIONS – Unavailability Requirement

Answer 14

Unavailable witness means not currently at the trial (remember - you have to try and get them to come in too)

Unavailability does not necessarily mean the witness is deceased

Example:
o Missing
o In coma
o Pleaded the Fifth
o Witness Protection Program

Question 15

Dying Declaration:

HEARSAY EXCEPTIONS – Unavailability Requirement

Answer 15

1) Unavailability
2) Belief of impending death
3) About cause of death
4) Homicide or civil case

Question 16

Statement Against Interest:

HEARSAY EXCEPTIONS – Unavailability Requirement

Answer 16

1) Unavailability
2) Makes declarant look liable/guilty
3) Generally made by non-party

statement against interest looks like they’re admitting something.
if it’s made by a party - it’s not a statement against interest, it has to be a non-party who’s making the statement

Question 17

Former Testimony:

HEARSAY EXCEPTIONS – Unavailability Requirement

Answer 17

1) Unavailability
2) Opponent was a party to former case
3) Former case about same subject
4) Made under oath
5) Opportunity to cross-examine

Question 18

NON-HEARSAY (Definition)

NON-HEARSAY

Answer 18

• Not an exception
• Admissible substantively

Question 19

Admissions

NON-HEARSAY

Answer 19

• Statement made by a party
• Admissible as NON HEARSAY

Question 20

Admissions as Party Opponent

Non-Hearsay

Answer 20

admissions by party opponents - one of the parties of the case, making a statement admitting their fault. (admissible as non hearsay)

Question 21

Vicarious Admissions:

Non-Hearsay

Answer 21

• Statements made by employees about company

vicarious admission any employee of the employer, while in the course of doing their job makes a statement - which tends to look like they’re liable or guitly

Example:
o A worker in the company saying, “We don’t fix the
brakes”
o A worker in the company saying, “We are usually
drunk when we drive”

Question 22

Adoptive Admissions:

Non-Hearsay

Answer 22

Party does not respond when a reasonable
person would object

adoptive admission - remaining silent when a normal person would have said something.

Question 23

Prior Consistent Statement:

Non-Hearsay

Answer 23

1) Prior statement by declarant
2) The same as current testimony
3) To refute charge of fabrication or motive

(This is for rehabilitation)

Question 24

Prior Sworn Inconsistent Statement:

Non-Hearsay

Answer 24

1) Prior statement by declarant
2) Made under oath
3) INCONSISTENT with current testimony

(Used to impeach + substantive b/c nonhearsay)

Question 25

Prior Identification:

Non-Hearsay

Answer 25

• Declarant testifying about an earlier identification

Question 26

RIGHT TO CONFRONTATION

Also define Testimonial & Non-Testimonial

Answer 26

Right to confront a witness concerning an out-of-court statement depends on if the statement is TESTIMONIAL

Definition – Testimonial
* Statement not made during an emergency
* Not Admissible

Definition – Non-Testimonial
* Statement made to police during an emergency
* Admissible

Example:
o Statement made to the police during emergency,
“There goes the guy down the street”

Question 27

PHYSICAL & DEMONSTRATIVE EVIDENCE

Answer 27

Generally Admissible

can make the accused give some physical or demonstrative can come in. (hair, finger nails, making defendant walk to show if he had a limp, is admissible)

Example
o Show scar
o Demonstrate limp

Question 28

Double Hearsay:

HEARSAY UPON HEARSAY

Answer 28

• TWO different statements
• NOT Admissible unless both meet an exception or exemption to the rule

Example:
o Bob told Fred, who told Jon