Evidence AMP Set - Hearsay

Question 1

The hearsay exception for __________ is applicable only if the declarant is unavailable to testify at trial.

A business records

B statements against interest

C excited utterances

D present sense impressions

Answer 1

B

Under the Federal Rules, there are two groups of hearsay exceptions—those that require the declarant be unavailable, and those under which the declarant’s availability is immaterial. The five important exceptions requiring the declarant’s unavailability are: (i) former testimony, (ii) statements against interest, (iii) dying declarations, (iv) statements of personal or family history, and (v) statements offered against party procuring declarant’s unavailability. Other hearsay exceptions (including the exceptions for present sense impressions, excited utterances, and business records) are applicable whether or not the declarant is unavailable. QUESTION ID: E0111 Additional Learning

Question 2

Certain statements by a person testifying at trial, who is thus subject to cross-examination, are not hearsay under the Federal Rules. Which of the following would be hearsay if offered as proof of the matter asserted?

A A witness’s prior statement identifying a person in a police lineup.

B A witness’s prior consistent statement offered to rebut a charge that the witness is now lying to provide an alibi for his wife.

C A witness’s prior inconsistent statement made at a deposition.

D A witness’s prior inconsistent statement made to a news reporter.

Answer 2

D

A witness’s prior inconsistent statement made to a news reporter would be hearsay if offered to prove the truth of the matter asserted. It is an out-of-court statement offered to prove the truth of the matter asserted. Note that it could be used to impeach the witness’s credibility, but not as substantive proof of the matter. A witness’s prior inconsistent statement made at a deposition is not hearsay because the statement was made under oath. Prior inconsistent statements made under penalty of perjury at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules. A witness’s prior consistent statement is not hearsay if offered to rebut a charge that the witness is lying for a particular motive. This is regardless of whether it was made under penalty of perjury. The prior statement must be made before the alleged motive to lie came into being. So if the witness’s statement was made before his wife was a suspect, it would be admissible. A witness’s prior statement identifying a person in a lineup is not hearsay. A prior identification after perceiving a person or even after seeing his picture in a photo identification is not hearsay under the Federal Rules. QUESTION ID: E0107 Additional Learning

Question 3

Statements by an opposing party (also known as “admissions by a party-opponent”) are considered nonhearsay under the Federal Rules. For a party’s statement or act to qualify as an opposing party’s statement, it must __________.

A go against that party’s interest at the time it was made

B have been within the party’s personal knowledge at the time

C not be in the form of an opinion

D be attributable to a party and offered against that party

Answer 3

D

To qualify as a “statement by an opposing party,” a party’s statement must be offered against him. (In contrast, if a party introduces his own prior statement into evidence, it may be hearsay.) Lack of personal knowledge does not necessarily exclude an opposing party’s statement. An opposing party’s statement may even be predicated on hearsay. An opposing party’s statement need not have been against the party’s interest at the time it was made. An opposing party’s statement may be in the form of an opinion. The only requirement is that it concern one of the relevant facts. QUESTION ID: E0108 Additional Learning

Question 4

For purposes of the Confrontation Clause, affidavits that summarize the findings of a forensic analyst (e.g., ballistics test results) and that are offered to prove the truth of the matter asserted are considered:

A Testimonial

B Nontestimonial

C Nonhearsay and not affected by the Confrontation Clause

Answer 4

A

The United States Supreme Court has held that affidavits that summarize the findings of forensic analysis (e.g., fingerprint or ballistic test results) are testimonial and thus may not be admitted into evidence unless the technician is unavailable and the defendant previously had an opportunity to cross-examine him.Note that such affidavits are usually hearsay (i.e., made out of court and offered to prove the truth of the matters asserted therein). Note, however, that these affidavits do not raise a Confrontation Clause issue when they are not offered to prove the truth of the matter asserted. QUESTION ID: E0122C Additional Learning

Question 5

The dying declaration exception to the hearsay rule applies where the statement:

A Is limited strictly to an identification of the person who caused the declarant’s injuries

B Concerns the cause or circumstances of what the declarant believed to be his impending death

C Concerns any subject matter relevant to the case as long as the declarant believed his death was imminent

Answer 5

B

For the dying declaration exception to apply, the declaration cannot merely concern any subject; rather, it must concern the cause or circumstances of what the declarant believed to be his impending death. The exception is not strictly limited to identification of the perpetrator of the declarant’s injuries. It applies to the cause or circumstances, which could be more than just who did it, e.g., it could be how he was mortally wounded even if he did not know by whom. QUESTION ID: E0114B Additional Learning

Question 6

Under the Federal Rules, a learned treatise can be established as reliable authority by:

A Expert or lay witness testimony

B Expert testimony or judicial notice

C Expert testimony only

Answer 6

B

Federal Rule 803(18) provides for the substantive admissibility of a learned treatise if the treatise is:(i) Called to the attention of the expert witness upon cross-examination or relied upon by her during direct examination; and(ii) Established as reliable authority by expert testimony or judicial notice. QUESTION ID: E0124B Additional Learning

Question 7

Plaintiff wants to introduce a statement made in a prior case by a now-unavailable witness.
Which of the following is not a requirement of the former testimony exception to the hearsay rule?

A The former testimony must have been given under oath or sworn affirmation.

B Defendant (or her predecessor in interest) must have had the opportunity to question the declarant about this statement in the prior case.

C The parties in the current case must be the same as in the prior case.

D The subject matter in the current case and the prior case are the same.

Answer 7

C

For the former testimony exception to apply there must be a sufficient “identity of parties.” The requirement of identity of parties does not mean that parties in the current case on both sides of the controversies must be the same as in the prior case. It requires only that the party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest was a party in the former action. The former testimony must have been given under oath or sworn affirmation. The former testimony is admissible upon any trial in the same or another action of the same subject matter. The cause of action in both proceedings need not be identical; only the “subject matter” of the testimony needs to be the same. The party against whom the former testimony is offered (or a predecessor in civil cases) must have had the opportunity to develop the testimony at the prior proceeding by direct, cross, or redirect examination of the declarant. Thus, defendant must have been able to question the declarant about the statement in the prior case. QUESTION ID: E0112 Additional Learning

Question 8

Declarations of past bodily condition are sometimes admissible as an exception to the hearsay rule. Under the Federal Rules, which statement regarding this exception is true?

A Declarations of past bodily condition are admissible if made for any reason.

B Declarations of past bodily condition are admissible in emergency situations only.

C Declarations of past bodily condition are not admissible if made to a physician employed to testify in the case.

D Declarations regarding the cause or source of the past bodily condition are sometimes admissible.

Answer 8

D

The Federal Rules allow declarations regarding the cause or source of the past bodily condition when the cause or source of the condition is reasonably pertinent to diagnosis or treatment. Declarations of past physical condition are admissible only if made to assist in diagnosing or treating the condition. It is not enough to make such a declaration for any reason at all (e.g., complaining to a friend). There is no requirement that a declaration of past bodily condition be made in an emergency situation. A declaration made at a routine office visit could be admissible if made to assist in diagnosing or treating the condition. Unlike most state courts, the Federal Rules allow declarations of past bodily condition where they are made to a physician employed to testify in the case. QUESTION ID: E0116 Additional Learning

Question 9

Under the Federal Rules, a learned treatise can be admissible as __________.

A Impeachment evidence only

B Both impeachment evidence and substantive evidence

C Substantive evidence only

Answer 9

B

The Federal Rules allow learned treatises to be admissible as both impeachment evidence and substantive evidence. Many courts do not admit learned treatises as substantive evidence, and allow them to be used for impeachment purposes only. However, the Federal Rules recognize this exception to the hearsay rule for learned treatises. Federal Rule 803(18) provides for the substantive admissibility of a learned treatise if the treatise is: (i) Called to the attention of the expert witness upon cross-examination or relied upon by her during direct examination; and (ii) Established as reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. QUESTION ID: E0124A Additional Learning

Question 10

Under the Federal Rules, the dying declaration exception to the hearsay rule applies only in __________ and __________.

A Civil actions; homicide prosecutions

B Homicide prosecutions; wrongful death cases

C Wrongful death actions; criminal cases

Answer 10

A

Under the Federal Rules, the exception for dying declarations is available only in civil actions and homicide prosecutions. (The traditional view, which is still followed by some states, recognizes this exception only in homicide prosecutions.) QUESTION ID: E0114A Additional Learning

Question 11

Statements in any authenticated document __________ are admissible under the Federal Rules’ “ancient documents” exception to the hearsay rule.

A 15 years old or more

B Prepared before 2000

C Prepared before 1998

D 10 years old or more

Answer 11

C

The Federal Rules provide that statements in any authenticated document prepared before 1998 are admissible under an exception to the hearsay rule. (Certain states may have different time requirements, e.g., admissible after a certain number of years.) QUESTION ID: E0120 Additional Learning

Question 12

The __________ exception to the hearsay rule allows a witness who has insufficient recollection of an event to read a memorandum into evidence in front of the jury.

A Refreshing recollection

B Present recollection revived

C Recorded recollection

Answer 12

C

Under the “recorded recollection” exception to the hearsay rule, where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence by reading it aloud to the jury. The “recorded recollection” exception is in contrast to “present recollection revived,” which allows a party to use any writing for the purpose of refreshing the witness’s memory on the stand. In that case, the writing may be used solely to refresh the witness’s recollection and is not introduced into evidence. “Refreshing recollection” is another common term for the “present recollection revived” rule. QUESTION ID: E0131C Additional Learning

Question 13

Which of the following is an example of a statement that is admissible under the “state of mind” hearsay exception?

A “I think I left my keys in the car,” to prove that declarant left his keys in the car.

B “Oh my God, Sam just shot me,” to prove Sam shot the declarant.

C “I intend to go to New York next week,” to prove that declarant went to New York at that time.

D “Bob, you’re driving pretty fast,” to prove that Bob was driving fast.

Answer 13

C

“I intend to go to New York next week” falls under the state of mind hearsay exception. Declarations of existing state of mind are admissible (i) when declarant’s state of mind is directly in issue, or (ii) if they are declarations of intent offered to show subsequent acts of the declarant. This statement would be offered to show the subsequent act of the declarant; i.e., that he actually went to New York. “You’re driving pretty fast” is an example of a present sense impression. A present sense impression is a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition. “I think I left my keys in the car” is a declaration of the declarant’s memory or belief. A hearsay statement is not admissible if it expresses a memory or belief of the declarant, and the statement is offered for the purpose of proving the truth of the fact remembered or believed. “Oh my God, Sam just shot me” is an example of an excited utterance. An excited utterance is a statement made by a declarant during or soon after a startling event, while the declarant is under the stress of excitement produced by the startling event, and concerning the immediate facts of the startling occurrence. QUESTION ID: E0115 Additional Learning

Question 14

The testimony of a now-unavailable witness given under oath at another hearing or in a deposition is admissible in a subsequent trial as long as:

A There is a sufficient similarity of parties and issues

B There is a sufficient similarity of parties; the issues involved are irrelevant

C The parties and issues are identical

Answer 14

A

The testimony of a now-unavailable witness given under oath a trial, hearing, or in a deposition taken in accordance with law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful. This exception is the clearest example of hearsay with special guarantees of trustworthiness, since the former testimony was given during formal proceedings and under oath by a witness subject to cross-examination. Under the former testimony exception, the parties and issues need not be identical. QUESTION ID: E0126B Additional Learning

Question 15

Which statement is true regarding the hearsay exception for statements of past bodily condition?

A Statements regarding symptoms are allowed, but statements concerning the cause or source of the condition are never admissible

B The statement must have been made in an emergency situation

C The statement must have been made to assist in diagnosing or treating the condition

D The statement must not have been made to a doctor employed to testify as the offering party’s expert witness

Answer 15

C

Declarations of past bodily condition are admissible if made to assist in diagnosing or treating the condition. Unlike the traditional state rule, statements of past bodily condition may be admissible even if made to a doctor employed to testify. This exception allows declarations not only of past symptoms and medical history, but also of the cause or source of the condition insofar as reasonably pertinent to diagnosis or treatment. There is no requirement that a declaration of past bodily condition be made in an emergency situation. A declaration made at a routine office visit could be admissible if made to assist in diagnosing or treating the condition. QUESTION ID: E0116B Additional Learning

Question 16

Certain documents establishing or affecting property rights (e.g., deed, will) are admissible as an exception to the hearsay rule. Under the Federal Rules, these documents __________.

A Are admissible if at least 20 years old

B Are admissible regardless of age

C Are admissible if at least 30 years old

Answer 16

B

A statement in a document that establishes or affects an interest in property is hearsay, but it is generally admissible as an exception to the hearsay rule if relevant to the document’s purpose. Unlike the traditional view, which required that only ancient property-disposing documents qualified for the exception, the Federal Rules will admit the statement regardless of its age. QUESTION ID: E0123B Additional Learning

Question 17

The Confrontation Clause prevents the prosecution in a criminal case from introducing testimonial hearsay evidence against a defendant unless:

A The declarant is unavailable, regardless of whether the defendant had a prior opportunity to cross-examine the declarant about the statement

B The declarant is unavailable, and the defendant had a prior opportunity to cross-examine the declarant about the statement

C The defendant had a prior opportunity to cross-examine the declarant about the statement, regardless of whether the declarant is now unavailable

Answer 17

B

Under the Confrontation Clause, a testimonial hearsay statement will not be admitted against a defendant in a criminal case (even if it falls within a hearsay exception) unless the declarant is unavailable, and the accused had an opportunity to cross-examine the declarant’s “testimonial” statement prior to trial. QUESTION ID: E0122A Additional Learning

Question 18

In a civil lawsuit by an employee against his former employer for discriminatory employment practices, the plaintiff seeks to introduce an Equal Employment Opportunity Commission investigator’s report, which concluded that the employer did indeed discriminate. Is this admissible, and if so, which is the hearsay exception most likely to apply?

A Yes; records of prior judgments

B Yes; public records

C No

Answer 18

B

The investigator’s report is admissible under the public records exception. Under this exception, records, reports, statements, or data compilations, in any form, of a public office or agency are admissible to the extent that they set forth: (i) The activities of the office or agency;(ii) Matters observed pursuant to a duty imposed by law (excluding police observations in criminal cases); or(iii) In civil actions and proceedings and against the government in criminal cases, factual findings (including opinions and conclusions) resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. A record of a prior judgment is admissible as a hearsay exception in certain instances. However, this exception applies to civil and criminal judgments—not to a government agency’s written report of an investigation. QUESTION ID: E0127A Additional Learning

Question 19

A witness testifies on direct examination that he saw defendant’s car go through a red light. On cross-examination, defense counsel asks whether the witness said on another occasion that the light was green when defendant drove through. If offered to prove the truth of the matter asserted, the prior statement is hearsay if it was made:

A To a police officer

B Before a grand jury

C At a deposition

D At a prior hearing

Answer 19

A

The witness’s prior inconsistent statement is not hearsay if it was made at a deposition, a prior hearing, or to a grand jury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules if the declarant is now testifying and subject to cross-examination.

The statement to the police officer, however, is hearsay. It is an out-of-court statement that was not made under penalty of perjury, and will only be admissible if it falls within a hearsay exception. QUESTION ID: E0107B Additional Learning

Question 20

The former testimony exception to the hearsay rule requires a sufficient “identity of parties” for the exception to apply. The “identity of parties” element of the exception requires that:

A The party offering the testimony was a party in the former action

B The party against whom the testimony is offered (or, in civil cases, the party’s predecessor in interest) was a party in the former action

C The parties in the former case be identical to the current case

Answer 20

B

The requirement of identity of parties does not mean that parties on both sides of the controversies must be identical. It requires only that the party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest, was a party in the former action. “Predecessor in interest” includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. The party offering the testimony need not have been a party in the former action. Rather, the “identity of parties” element is meant to ensure that the party against whom the testimony is offered had a prior opportunity to develop the declarant’s testimony. QUESTION ID: E0112B Additional Learning

Question 21

Under the Federal Rules, which statement regarding a “learned treatise” (i.e., standard scientific treatise or authoritative work) is false?

A It is never admissible as substantive evidence under the hearsay rule, and may be used only for impeachment purposes.

B It may be admissible as an exception to the hearsay rule if relied upon by the expert witness during direct examination and established as reliable authority.

C The relevant portion of the treatise is usually read into the record, and not shown to the jury.

D It may be admissible as an exception to the hearsay rule if brought to the attention of the expert witness during cross-examination and established as reliable authority.

Answer 21

A

Many courts do not admit learned treatises as substantive evidence, and allow them to be used for impeachment purposes only. However, the Federal Rules recognize an exception to the hearsay rule for learned treatises. Federal Rule 803(18) provides for the substantive admissibility of a learned treatise if the treatise is: (i) Called to the attention of the expert witness upon cross-examination or relied upon by her during direct examination; and (ii) Established as reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. The relevant portion of the treatise usually is not shown to the jury, but is admissible by being read into the record. QUESTION ID: E0124 Additional Learning

Question 22

Under the Federal Rules, which of the following limitations both apply to the dying declaration exception to the hearsay rule?
response - correct

A Applies only in civil cases and homicide prosecutions; is limited to statements about the cause and circumstances surrounding what the declarant believes to be his impending death

B Applies only in civil cases and homicide prosecutions; is limited to situations where the declarant actually died

C Applies only in homicide prosecutions; is limited to statements about the cause and circumstances surrounding what the declarant believes to be his impending death

Answer 22

A

Under the Federal Rules, the exception for dying declarations is available only in homicide prosecutions and civil actions. (The traditional view, which is still followed by some states, recognizes this exception only in homicide prosecutions.) The Federal Rules (unlike the traditional view) do not require that the declarant actually die, only that he be unavailable. QUESTION ID: E0114C Additional Learning

Question 23

In order for the statement against interest exception to the hearsay rule to apply, the statement must have been made against the declarant’s ____________ interest.

A Pecuniary, personal, or penal

B Proprietary, penal, or social

C Pecuniary, proprietary, or penal

Answer 23

C

To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements:1) The statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true.2) Declarant must have had personal knowledge of the facts.3) Declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement.4) Declarant must be unavailable as a witness. QUESTION ID: E0113A Additional Learning

Question 24

Testimony from a __________ by a now-unavailable declarant is not admissible against the defendant at a subsequent trial under the former testimony exception to the hearsay rule.

A hearing in a prior civil case

B grand jury proceeding

C deposition

D hearing in a prior criminal case

Answer 24

B

The testimony of a now-unavailable witness given at a trial, hearing (criminal or civil), or in a deposition taken in accordance with law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful. Grand jury testimony of an unavailable declarant is not admissible as former testimony because grand jury proceedings do not provide the accused with an opportunity for cross-examination. QUESTION ID: E0126 Additional Learning

Question 25

The Confrontation Clause prohibits the admission of certain testimonial evidence against a criminal defendant. If the primary purpose of police interrogation is to __________, statements made in the course of the interrogation are nontestimonial.

A Recount the details of an incident after it has taken place to assist with the subsequent investigation

B Prove past events potentially relevant to a criminal prosecution

C Enable the police to help in an ongoing emergency

Answer 25

C

If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial (e.g., statements made during a 911 call about the identity of the perpetrators in the course of a home invasion). When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Such statements would include those made to the police by a victim about the details of the incident after the incident has taken place (e.g., hours later at the police station). QUESTION ID: E0122B Additional Learning

Question 26

Select the statement that best explains the “personal knowledge” requirement of the business records exception to the hearsay rule.

A The entrant must have personal knowledge of the matters contained in the business record

B Someone in the business must have personal knowledge of the matters contained in the business record

C Either the entrant or someone with a business duty to transmit such matters to the entrant must have personal knowledge of the matters contained in the business record

Answer 26

C

For the exception to apply, the business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. It is not sufficient that anyone in the business have personal knowledge of the matters in the record. Rather, the entrant or someone with a business duty to transmit such matters to the entrant must have personal knowledge. QUESTION ID: E0117C Additional Learning

Question 27

A general statement of the hearsay rule under the Federal Rules of Evidence is ___________.

A a statement offered in evidence to prove the truth of the matter asserted

B an out-of-court statement offered in evidence to prove the truth of the matter asserted

C an out-of-court statement by a party-opponent offered in evidence to prove the truth of the matter asserted

D an out-of-court statement by someone other than the declarant to prove the truth of the matter asserted

Answer 27

B

The Federal Rules define hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to provide the truth of the matter asserted. However, most people remember the rule more succinctly as an out-of-court statement offered in evidence to prove the truth of the matter asserted. The key elements are: (i) A statement(ii) Made not while testifying at the trial (out-of-court)(iii) To prove the truth of the matter and not some other purpose. An out-of-court statement by someone other than the declarant is incorrect because the declarant can also be the testifying witness, in which case his out-of-court statement can be hearsay. An statement by an opposing party (also called an “admission by a party-opponent) is not considered to be hearsay under the Federal Rules. A statement offered to prove the truth of the matter asserted does not include the fact that the statement was not made while testifying at the trial. The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant. If the statement was made while testifying at the trial, then there was an opportunity to cross-examine the declarant. QUESTION ID: E0104 Additional Learning

Question 28

How old must an authenticated document be for statements within it to be admissible under the “ancient documents” exception to the hearsay rule?

A 50 years old

B 15 years old

C Prepared before 2000

D Prepared before 1998

Answer 28

D

Under the Federal Rules, statements in any authenticated document prepared before 1998 are admissible under the ancient documents exception to the hearsay rule. (Certain states may have different time requirements.) Moreover, in contrast to the traditional view that only ancient property-disposing documents qualified for the exception, statements in a document affecting an interest in property (e.g., deed, will, etc.) are admissible regardless of the age of the document. QUESTION ID: E0120B Additional Learning

Question 29

Under the Federal Rules, the absence of a business record can be admissible to prove the nonoccurrence of a matter, if:

A The party opposing the record first presents some evidence to prove that the matter did indeed occur

B It was the regular practice of the business to record all such matters

C The custodian of the office’s records testifies that she has diligently searched and failed to find a record

Answer 29

B

Under the Federal Rules, the lack of a business record may be used to prove the nonoccurrence of a matter if it is was the regular practice of the business to record all such matters. This is a departure from the common law, which did not admit the lack of a business record to show that a matter did not occur. Although the custodian may testify that she diligently searched and failed to find a record, this is not the determining factor for admitting the lack of a business record. (It is actually the requirement to admit the lack of a public record, which is a separate hearsay exception.) Even if such testimony is provided, the lack of a record will only be admissible if it was the regular practice of the business to record all such matters. For the lack of a business record to be admissible, there is no requirement that the party against whom it is offered present evidence showing that the matter did actually occur. QUESTION ID: E0125A Additional Learning

Question 30

A declarant’s __________ may be admitted as an exception to the hearsay rule only if the declarant is unavailable to testify at trial.

A Former testimony

B Excited utterance

C Present sense impression

D Recorded recollection

Answer 30

A

Under the Federal Rules, there are two groups of hearsay exceptions—those that require the declarant be unavailable, and those under which the declarant’s availability is immaterial. The five important exceptions requiring the declarant’s unavailability are: (i) former testimony, (ii) statements against interest, (iii) dying declarations, (iv) statements of personal or family history, and (v) statements offered against a party procuring the declarant’s unavailability. Other hearsay exceptions (including the exceptions for excited utterances, present sense impressions, and recorded recollection) are applicable whether or not the declarant is unavailable. QUESTION ID: E0111B Additional Learning

Question 31

The plaintiff offers evidence that the declarant said, “I intend to go to Hawaii next week,” to prove that the declarant went to Hawaii the following week. This falls under which exception to the hearsay rule?

A Declaration of present bodily condition

B State of mind

C Excited utterance

D Present sense impression

Answer 31

B

“I intend to go to Hawaii next week” falls under the state of mind hearsay exception. Declarations of existing state of mind are admissible (i) when declarant’s state of mind is directly in issue, or (ii) if they are declarations of intent offered to show subsequent acts of the declarant. This statement would be offered to show the subsequent act of the declarant; i.e., that he actually went to Hawaii. A statement of present sense impression describes an event or condition happening contemporaneously with or immediately prior to the statement. “I intend to go to Hawaii next week” is not a present sense impression because it concerns the declarant’s future act. The excited utterance exception applies to statements made by a declarant during or soon after a startling event and while under the stress of the event. Here, there is no indication that the plaintiff made his statement while under the stress of a startling event. The exception for declarations of present bodily condition applies to statements regarding physical symptoms, e.g., pain. The declarant’s statement that he intended to go to Hawaii does not fall under this exception. QUESTION ID: E0115A Additional Learning

Question 32

In order for the “recorded recollection” exception to apply, the witness must:

A Be unable to revive her memory by looking at the memorandum

B Have had no involvement in the creation of the memorandum

C Be unavailable to testify at trial

Answer 32

A

Under the “recorded recollection” exception to the hearsay rule, where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence. There is no requirement that the declarant be unavailable for the exception to apply. Rather, the exception applies when the witness is on the stand and unable to recall the event even after reviewing the record. There are several foundational requirements for the admission of a record under this exception. One is that the record must have been made by the witness, made at the witness’s direction, or adopted by the witness. Thus, the witness must have had some previous connection with the record. QUESTION ID: E0131A Additional Learning

Question 33

Hearsay is any __________ offered in evidence to prove __________.

A Out-of-court statement; an element of the claim

B Statement; the truth of the matter asserted

C Out-of-court statement; the truth of the matter asserted

Answer 33

C

Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. A statement offered to prove the truth of the matter asserted is not correct. It must be an out-of-court statement. The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant. If the statement was made while testifying at the current trial, then there was an opportunity to cross-examine the declarant. Hearsay is not limited to statements offered to prove an element of the claim; it encompasses any statements offered for the truth of the matter asserted therein. QUESTION ID: E0104C Additional Learning

Question 34

Under the Federal Rules, a statement by a declarant may be imputed to a party as a vicarious admission (i.e., a statement attributable to the opposing party). Which of the following relationships between a declarant and a party might be sufficient for a vicarious admission?

A Joint tenants

B Spouses

C Co-parties

D Principal and agent

Answer 34

D

A principal-agent relationship is a relationship that may give rise to a vicarious admission. Statements by an agent concerning any matter within the scope of her agency, made during the existence of the employment relationship, are admissible against the principal. Although in most state courts, admissions of each joint tenant are admissible against the other, this is not true under the Federal Rules. Statements of a party are not receivable against her co-party merely because they happen to be joined as parties to the action. (These statements may be admissible under a hearsay exception such as a statement against interest.) A person’s statement will not be held against his spouse as a vicarious admission simply because they are married. Of course, the spouses may have a separate relationship (e.g., partners, principal-agent, authorized spokesperson) that may allow for vicarious admissions. QUESTION ID: E0110 Additional Learning

Question 35

Provided certain requirements are met, a party’s silence in the face of an accusatory statement may be considered an admission (also known as a “statement by an opposing party”). Which of the following is not required for silence to be an admission?

A The party must not have denied the accusation at a later time.

B The party must have been physically and mentally capable of denying the statement.

C The party must have heard and understood the statement.

D A reasonable person would have denied the accusation under the same circumstances.

Answer 35

A

Silence may be an implied admission if the party failed to respond to the accusatory statements when made. Thus, silence may be an admission even if the party denies the statement at a later time. For silence to be an admission the following requirements must be met: (i) The party must have heard and understood the statement; (ii) The party must have been physically and mentally capable of denying the statement; and (iii) A reasonable person would have denied the accusation under the same circumstances. QUESTION ID: E0109 Additional Learning

Question 36

Statements about past bodily conditions are generally inadmissible unless:

A Made to medical personnel who will not testify at trial (e.g., as expert witnesses)

B Made before litigation could be anticipated

C Made to assist in diagnosing or treating the condition

Answer 36

C

As a general rule, declarations of past physical condition are excluded, since there is no way to check the memory of the declarant by cross-examination and there is a greater likelihood of falsification where the declarant is describing a past condition. However, the Federal Rules, recognizing that a person has a strong motive to tell the truth when seeking medical treatment, admit declarations of past physical condition if made to assist in diagnosing or treating the condition. Contrary to the majority state view, Federal Rule 803(4) permits declarations about past bodily condition even when made to a doctor employed to testify. The hearsay exception for statements of past bodily condition does not require that the statements be made before litigation could be anticipated. QUESTION ID: E0116A Additional Learning

Question 37

One of the requirements of the business records exception to the hearsay rule is that:

A The entrant be a principal, partner, or high-ranking officer in the business

B The record be made at or near the time of the transaction

C The entrant be unavailable to testify

Answer 37

B

To be admissible, a business record must be made in the regular course of any business, where it was the regular course of such business to make it at the time of the transaction or within a reasonable time thereafter, and it must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The record must also have been made at or near the time of the transaction. For the business record to be admissible, the person who made the entry need not be unavailable as a witness. For a record to have been made in the course of a regularly conducted business activity, the entrant must have had some duty to make the entry as part of her employment (i.e., records kept as a hobby do not qualify). However, she need not be a high-ranking officer in the business. QUESTION ID: E0117A Additional Learning

Question 38

The general rule under the Federal Rules “ancient documents” exception is that any authenticated document prepared before 1998 is admissible. However, statements in a document affecting property interests (e.g., a will or deed) are admissible if the document is how old?

A If the document is 30 years old or more

B Regardless of the age of the document

C If the document is 10 years old or more

D If the document is 20 years old or more

Answer 38

B

Under the Federal Rules, statements in any authenticated document prepared before 1998 are admissible. Moreover, statements in a document affecting an interest in property (e.g., deed, will, etc.) are admissible under a separate hearsay exception regardless of the age of the document if the statements are relevant to the document’s purpose. QUESTION ID: E0120A Additional Learning

Question 39

Which two hearsay exceptions below both require the declarant to be unavailable at trial?

A Statement of personal or family history; excited utterance

B Statement against interest; present sense impression

C Dying declaration; former testimony

Answer 39

C

Under the Federal Rules, there are two groups of hearsay exceptions—those that require the declarant be unavailable, and those under which the declarant’s availability is immaterial. The five important exceptions requiring the declarant’s unavailability are: (i) former testimony, (ii) statements against interest, (iii) dying declarations, (iv) statements of personal or family history, and (v) statements offered against a party procuring the declarant’s unavailability. Other hearsay exceptions (including the exceptions for present sense impressions and excited utterances) are applicable whether or not the declarant is unavailable. QUESTION ID: E0111A Additional Learning

Question 40

All of the following can qualify as a “statement” for purposes of the hearsay rule:

A Oral declarations; assertive conduct; nonassertive conduct

B Oral declarations; writings; assertive conduct

C Oral declarations; writings; nonassertive conduct

Answer 40

B

“Statement” includes oral declarations such as when the witness testifies about what someone (including the witness himself) said; writings such as police reports including statements from witnesses; and conduct that is intended to be a substitute for words (“assertive conduct”). Therefore, a nod to indicate yes would be a “statement” for purposes of the hearsay rule. Nonassertive conduct is conduct the declarant did not intend as an assertion but which is being offered as an assertion. Under modern codes and the Federal Rules, evidence of nonassertive conduct is not a statement and thus not hearsay. The rationale is that the likelihood of fabrication is less with nonassertive conduct than with assertive or verbal conduct. QUESTION ID: E0103B Additional Learning

Question 41

Which of the following is not a requirement of the business records exception to the hearsay rule?

A The entrant must have had some duty to make the entry as part of her employment.

B The entry must have been made at or near the time of the transaction.

C The entrant must be unavailable.

D Either the entrant or someone with a business duty to the entrant must have had personal knowledge of the matters in the record.

Answer 41

C

To be admissible, a business record must be made in the regular course of any business, where it was the regular course of such business to make it at the time of the transaction or within a reasonable time thereafter, and it must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The record must also have been made at or near the time or the transaction. For the business record to be admissible, the person who made the entry need not be unavailable as a witness. The record must have been made in the course of a regularly conducted business activity. For a record to have been made in the course of a regularly conducted business activity, the entrant must have had some duty to make the entry as part of her employment (i.e., records kept as a hobby do not qualify). The business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. The entry must have been made at or near the time of the transaction while the entrant’s knowledge of the facts was still fresh. QUESTION ID: E0117 Additional Learning

Question 42

Which fact, if true, might cause a document to be inadmissible under the business records exception to the hearsay rule?

A The entrant is unavailable to corroborate the events in the record

B The document was prepared in anticipation of litigation

C The document was made in the regular course of business

Answer 42

B

A document might constitute inadmissible hearsay because it was made in anticipation of litigation, and not during the regular course of business. One requirement of the business records exception is that to be admissible, the record must be made in the course of a regularly conducted business activity. If true, this would certainly not render a business record inadmissible. The availability of the entrant is immaterial in considering whether a business record is admissible under the exception. QUESTION ID: E0129B Additional Learning

Question 43

There are three requirements for silence in the face of an accusatory statement to qualify as an admission (also called an “opposing party’s statement”): (1) the party must have heard and understood the statement; (2) the party must have been physically and mentally capable of denying the statement; and (3) __________.

A The party must not have denied the accusation at a later time

B There is corroborating evidence that the accusation is true

C A reasonable person would have denied the accusation under the same circumstances

D The accusation must have been made by a law enforcement officer

Answer 43

C

For silence to be an admission the following requirements must be met: (i) the party must have heard and understood the statement;(ii) the party must have been physically and mentally capable of denying the statement; and (iii) a reasonable person would have denied the accusation under the same circumstances.

It is immaterial whether the party later denied the accusation, or whether there is corroborating evidence. Additionally, failure to reply to an accusation or statement made by the police in a criminal case can almost never be used as an implied admission of a criminal act. QUESTION ID: E0109B Additional Learning

Question 44

A witness takes the stand and testifies that, on April 1, Bob telephoned her and told her that he was in Chicago. This statement is hearsay if it is offered to prove:

A That Bob was in Chicago on April 1

B That the witness spoke with Bob on April 1

C That Bob was alive on April 1

Answer 44

A

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. In these examples, you must look at the purpose in offering the evidence. When the issue is whether Bob was in Chicago on April 1, the witness’s testimony that Bob told her he was in Chicago on April 1 is hearsay; it is an out-of-court statement offered as proof that Bob was in Chicago on April 1. When the issue is whether Bob was alive on April 1, the witness’s statement that Bob said he was in Chicago is not hearsay, because it is not offered to prove that Bob was in Chicago. The same is true for the issue of whether the witness spoke to Bob on April 1. Bob’s out-of-court statement—that he was in Chicago—is not being offered for the truth of the matter asserted and thus is not hearsay; it is irrelevant whether Bob was actually in Chicago. QUESTION ID: E0105A Additional Learning

Question 45

The following is considered a “statement” for purposes of the hearsay rule:

A Nonverbal conduct intended as an assertion

B Verbal conduct not intended as an assertion

C Nonverbal conduct not intended as an assertion

Answer 45

A

Under the Federal Rules, a “statement” for purposes of the hearsay rule is a person’s oral or written assertion or nonverbal conduct intended as an assertion. Conduct (nonverbal or verbal) that the declarant did not intend as an assertion but which is offered as an assertion of some fact is not a “statement” and thus not hearsay. The rationale for excluding nonassertive conduct is that the likelihood of fabrication is less with nonassertive conduct than with assertive or verbal conduct. QUESTION ID: E0103A Additional Learning

Question 46

The statement against interest exception to the hearsay rule requires that the statement be against the declarant’s interest:

A At the time of trial

B After the litigation begins

C When made

Answer 46

C

A statement of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest when made, is admissible under the statement against interest exception to the hearsay rule. QUESTION ID: E0113B Additional Learning

Question 47

Hearsay involves statements made by:

A Any living being (e.g., a dog)

B Any living being (e.g., a dog) or inanimate object (e.g., a radar gun)

C A person

Answer 47

C

Hearsay only involves oral, written, or nonverbal statements by a person. Statements by animals and inanimate objects cannot qualify as hearsay. So, for example, a dog’s bark, or a radar gun’s reading of 75 miles per hour, cannot be hearsay. QUESTION ID: E0106A Additional Learning

Question 48

The Federal Rules __________ business records that are made in __________.

A Disfavor; the regular course of business

B Favor; anticipation of litigation

C Disfavor; anticipation of litigation

Answer 48

C

One requirement of the business records exception is that the record must be made in the course of a regularly conducted business activity. Certain records, however, are found to be prepared “in anticipation of litigation.” In the case of Palmer v. Hoffman, the United States Supreme Court held that a report made by a railroad company following an accident was inadmissible because it was prepared in anticipation of litigation, and railroading, not litigating, was the railroad’s primary business. The Federal Rules have dealt with the problem of records prepared “in anticipation of litigation” by granting the trial court discretion to exclude any business record if the opponent shows that the source of information or other circumstances indicate the record lacks trustworthiness. Thus, it is correct to say that such records are disfavored under the exception. QUESTION ID: E0129A Additional Learning

Question 49

The former testimony exception to the hearsay rule requires that the __________ had an opportunity to question the __________ in the prior case.

A Witness in the prior case; party against whom the former testimony is offered

B Party offering the former testimony; witness

C Party against whom the former testimony is offered; witness

Answer 49

C

Under the former testimony exception to the hearsay rule, the party against whom the former testimony is offered (or a predecessor in civil cases) must have had the opportunity to develop the testimony at the prior proceeding by direct, cross, or redirect examination of the witness. QUESTION ID: E0112C Additional Learning

Question 50

Part of the definition of hearsay includes the requirement of a statement. Which of the following is not considered to be a “statement” under the Federal Rules?

A Oral declarations by the declarant (e.g., declarant says, “Defendant told me . . . .”).

B Conduct not intended as an assertion (e.g., doctor prescribes allergy medication which indicates that the patient had allergies).

C Conduct that is a substitute for words (e.g., a nod to indicate yes).

D Written documents by the declarant (e.g., police report with witnesses’ statements about an accident).

Answer 50

B

Under the Federal Rules, conduct that the declarant did not intend as an assertion but which is offered as an assertion of some fact is not a “statement” and thus not hearsay. For example, the doctor did not intend to assert the patient had allergies, but the doctor’s conduct could be used to show that the patient had allergies. The rationale for excluding nonassertive conduct is that the likelihood of fabrication is less with nonassertive conduct than with assertive or verbal conduct. “Statement” includes oral declarations such as when the witness testifies about what someone (including the witness himself) said, and written documents such as police reports including statements from witnesses. Conduct that is intended to be a substitute for words (“assertive conduct”) is also a “statement.” Therefore, a nod to indicate yes would be a “statement” for purposes of the hearsay rule. QUESTION ID: E0103 Additional Learning

Question 51

In order to qualify as hearsay, an out-of-court statement offered into evidence must:

A Be offered to prove the truth of the matter asserted
Incorrect

B Be offered against the declarant

C Have been made by someone unavailable to testify at trial

Answer 51

A

The Federal Rules define hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to provide the truth of the matter asserted. However, most people remember the rule more succinctly as an out-of-court statement offered in evidence to prove the truth of the matter asserted. The key elements are: (i) A statement(ii) Made not while testifying at the current trial (out-of-court)(iii) To prove the truth of the matter and not some other purpose. The availability of the declarant to testify at trial is not a factor; a testifying witness’s out-of-court statement can still be hearsay. (Note, however, that certain exceptions to the hearsay rule apply only if the declarant is unavailable.) There is no requirement that a statement be offered against the declarant in order to qualify as hearsay. QUESTION ID: E0104B Additional Learning

Question 52

The business records exception to the hearsay rule applies only where the record was made:

A In the regular course of business

B In anticipation of litigation

C After litigation has begun

Answer 52

A

The record must have been made in the course of a regularly conducted business activity. For a record to have been made in the course of a regularly conducted business activity, the entrant must have had some duty to make the entry as part of her employment (i.e., records kept as a hobby do not qualify). The rationale for this exception lies in the belief that special reliability is provided by the regularity with which business records are kept, their use and importance in the business, and the incentive of employees to keep accurate records or risk employment penalties. This reasoning generally would not apply to records made after the business anticipates or is aware of pending litigation. QUESTION ID: E0117B Additional Learning

Question 53

In order for the former testimony exception to the hearsay rule to apply, the former testimony must:

A Have been videotaped

B Have been given to a grand jury

C Have been given under oath or sworn affirmation

Answer 53

C

The testimony of a now unavailable witness given under oath or sworn affirmation at a trial, hearing, or in a deposition taken in accordance with law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful. Grand jury testimony is usually not admissible under this exception because the accused has no opportunity for cross-examination. There is no videotaping requirement under the former testimony exception. QUESTION ID: E0112A Additional Learning

Question 54

Under the Federal Rules, business records can be used to prove the nonoccurrence of a matter, if it was the __________ of the business to __________ such matters.

A Regular practice; litigate

B Written policy; record

C Regular practice; record

Answer 54

C

Under the Federal Rules, the lack of a business record may be used to prove the nonoccurrence of a matter if it is was the regular practice of the business to record all such matters. This is a departure from the common law, which did not admit the lack of a business record to show that a matter did not occur. When proving the nonoccurrence of a matter, the Federal Rules do not require that it be the written policy of the business to record all such matters; rather, it must be the “regular practice” of the business to do so. QUESTION ID: E0125B Additional Learning

Question 55

Which of the following is not a requirement of the hearsay exception for statements against interest?

A The declarant must be a party to the action.

B The statement must have been against the declarant’s interest when made.

C The declarant must have had no motive to misrepresent when she made the statement.

D The declarant must have been aware that the statement was against her interest when made.

Answer 55

A

A “statement against interest” differs from an opposing party’s statement in that the declarant does not have to be a party to the action. To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements: (i) The statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true; (ii) The declarant must have had personal knowledge of the facts; (iii) The declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement; and (iv) The declarant must be unavailable as a witness. QUESTION ID: E0113 Additional Learning

Question 56

Certain statements concerning personal or family history may be admissible as an exception to the hearsay rule.
Under the Federal Rules, which statement regarding the hearsay exception for statements of personal or family history is true?

A The declarant must be unavailable for trial.

B The declarant must be a member of the family in question, by blood or adoption.

C The basis of the declarant’s statements is immaterial.

D The statement must have been made before the controversy (e.g., inheritance contest) arose.

Answer 56

A

For the exception for statements concerning personal or family history to apply, the declarant must be unavailable for trial. The declarant must be a member of the family in question or otherwise intimately associated with the family. Although most jurisdictions require that the declarant be related by blood or marriage to the family whose history is involved, the Federal Rules have extended this requirement to admit statements by declarants who are so intimately associated with the family that they are likely to have accurate information concerning the matters declared (e.g., the family doctor). The statement need not have been made before the controversy arose. In most jurisdictions, the statement must have been made at a time when no controversy existed as to the matters stated—to ensure their reliability. However, the Federal Rules have dropped this requirement on the theory that the time at which the statement was made affects its weight rather than its admissibility. The Federal Rules require that the basis of the declarant’s statements be either her own personal knowledge of the facts involved or on her knowledge of family reputation. QUESTION ID: E0130 Additional Learning

Question 57

Under the “recorded recollection” exception to the hearsay rule, certain records made by a declarant at or near the time of the event in question may be admissible.
Which of the following statements regarding this exception to the hearsay rule is true?

A The exception applies where the witness’s memory of the event cannot be revived by looking at the record.

B The witness need not have known about the record prior to trial, as long as it concerns the event in question.

C The record may be reviewed by the witness to aid in her testimony, but may not be read into evidence or heard by the jury.

D The declarant must be unavailable for trial.

Answer 57

A

Under the “recorded recollection” exception to the hearsay rule, where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence. There is no requirement that the declarant be unavailable for the exception to apply. Rather, the exception applies when the witness is on the stand and unable to recall the event even after reviewing the record. There are several foundational requirements for the admission of a record under this exception. One is that the record must have been made by the witness, made at the witness’s direction, or adopted by the witness. Thus, the witness must have known about the record before trial. If admitted under this exception, a record may be read into evidence and heard by the jury (but not received as an exhibit unless offered by the adverse party). This is in contrast to “present recollection revived,” which allows a party to use any writing for the purpose of refreshing the witness’s memory on the stand. In that case, the writing may be used solely to refresh the witness’s recollection and is not introduced into evidence. QUESTION ID: E0131 Additional Learning

Question 58

The following statement is hearsay under the Federal Rules:

A To prove that Defendant was driving under the influence at the time of the accident, Plaintiff offers a printed laboratory report indicating that a high level of marijuana was in Defendant’s system on the date of the accident

B To prove whether Defendant was capable of speaking on November 1, a witness testifies that Defendant told him on November 1, “I went to church yesterday”

C To prove Defendant store owner knew about a puddle on the floor that Plaintiff slipped on, Plaintiff’s witness testifies that an hour before the accident, another customer told Defendant, “Someone better clean up that puddle”

Answer 58

A

When the issue is whether Defendant was driving under the influence, a lab report indicating that marijuana was found in Defendant’s system is hearsay. The out-of-court statement is being offered to prove the truth of the matter asserted (that Defendant was under the influence of drugs at the time of the accident). When the issue is whether Defendant could speak on November 1, the witness’s testimony that Defendant told him on November 1, “I went to church yesterday” is not hearsay. The statement is not being offered for its truth—whether Defendant went to church on November 1—but that Defendant could speak on that date. When the issue is whether Defendant knew about a puddle on the floor, Plaintiff’s witness’s testimony that another customer told Defendant, “Someone better clean up that puddle” is not hearsay. The statement is not being offered for its truth, but that Defendant knew the puddle existed prior to the accident. QUESTION ID: E0128B Additional Learning

Question 59

A police officer’s testimony that his radar gun showed a reading of 85 miles per hour is:

A Hearsay

B Not hearsay

C Possibly hearsay, depending on what it was offered to prove

Answer 59

B

There is no such thing as animal or machine hearsay. Hearsay involves an out-of-court statement by a person. Therefore, a witness who testifies to the time of day (what the clock says) or to radar readings (what the machine says) is not testifying to hearsay. QUESTION ID: E0106B Additional Learning

Question 60

Which of the following is an example of hearsay evidence?

A On the issue of whether the lock on an apartment door was broken, a neighbor testifies that the tenant told her that the lock was broken.

B On the issue of whether on a certain day the lock on an apartment door was broken, a neighbor testifies that she saw a locksmith working on the lock the next day.

C On the issue of whether there was an agreement by the landlord to lease the apartment to the tenant, a neighbor testifies that the tenant said to the landlord, “I will rent this apartment if you fix the lock,” and the landlord said, “Okay.”

D On the issue of whether the landlord knew that a lock on an apartment door was broken, a neighbor testifies that she heard the tenant tell the landlord, “The lock is broken.”

Answer 60

A

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. In these examples, you must look at the purpose in offering the evidence. When the issue is whether the lock is broken, the tenant’s statement to the neighbor that the lock was broken is hearsay; it is an out-of-court statement offered as proof that the lock was broken. When the issue is whether the landlord knew the lock was broken, the neighbor’s testimony that tenant told the landlord that the lock was broken is not hearsay. Although the statement was made out of court, it is offered to show that the landlord had notice of the broken lock, not to show that the lock was broken. When the issue is whether the lock was broken on a particular day, the neighbor’s testimony that she saw a locksmith working on the lock is not hearsay. Certain conduct is a substitute for words and thus could be hearsay, but the locksmith’s work is nonassertive conduct. It was not intended as any kind of statement. When the issue is whether the landlord agreed to lease the apartment to the tenant, the tenant’s statement to the landlord that he will rent the apartment if the landlord will fix the lock and the landlord’s reply are not hearsay because the evidence is not being offered to prove that the landlord will fix the lock; it is offered to show that there was an agreement between them. QUESTION ID: E0105 Additional Learning

Question 61

Under the Federal Rules, a party may be held vicariously responsible for the statement of someone with any of the following relationships to the party:

A Co-conspirator; co-party; principal-agent; authorized spokesperson

B Authorized spokesperson; partner; co-conspirator; principal-agent

C Partner; co-conspirator; co-party; principal-agent

D Authorized spokesperson; partner; co-conspirator; co-party

Answer 61

B

An admission (i.e., statement attributable to an opposing party) is frequently not the statement or act of the party against whom the admission is offered at trial. A party can be held vicariously liable for statements made by people with the following relationships to the party: Authorized SpokespersonThe statement of a person authorized by a party to speak on its behalf (e.g., statement by company’s press agent) can be admitted against the party as an admission. Principal-AgentStatements by an agent concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal. Therefore, if a truck driver-employee has an accident while on the job and admits that she was negligent, this admission may be introduced against her employer even if she was not authorized to speak for the employer. PartnersAfter a partnership is shown to exist, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others. Co-ConspiratorsThe Supreme Court has held that admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. In contrast, statements of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action. QUESTION ID: E0110A Additional Learning

Question 62

Which of the following statements is considered hearsay under the Federal Rules?

A On the issue of whether Declarant went to church on Sunday, a witness testifies that on Monday Declarant said, “I went to church yesterday”.

B On the issue of whether Plaintiff is truly injured, Defendant’s witness testifies that Plaintiff said, “I’m not really injured”.
Incorrect

C On the issue of whether Defendant made a defamatory statement, a witness testifies that Defendant said, “Plaintiff is a thief”.

D On the issue of whether Declarant is insane, a witness testifies that Declarant said, “I am Bigfoot”.

Answer 62

A

The Federal Rules define hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted. When the issue is whether Declarant went to church on Sunday, the witness’s testimony that on Monday Declarant said, “I went to church yesterday” is hearsay. The out-of-court statement is being offered to prove the truth of the matter asserted (i.e., that Declarant went to church on Sunday). When the issue is whether Defendant made a defamatory statement, the witness’s testimony that Defendant said, “Plaintiff is a thief” is not hearsay. There are certain utterances to which the law attaches legal significance (e.g., words of contract, defamation, bribery, cancellation, permission). Evidence of such statements (sometimes called “legally operative facts”) is not hearsay because the issue is simply whether the statements were made. The statement is not being offered for its truth (i.e., that Plaintiff is a thief) but to show that the defamatory statement was made. When the issue is whether Declarant is insane, the witness’s testimony that Declarant said, “I am Bigfoot” is not hearsay. Statements by a declarant that serve as circumstantial evidence of the declarant’s state of mind are not hearsay. Such statements are not offered to prove the truth of the matter asserted but only that the declarant believed them to be true. The most common examples of this type of nonhearsay are evidence of insanity and evidence of knowledge. When the issue is whether Plaintiff is truly injured, testimony by Defendant’s witness that Plaintiff said, “I’m not really injured” is not hearsay. Although it is an out-of-court statement offered to prove the truth of the matter asserted (i.e., that Plaintiff is not really injured), it is also an statement by an opposing party (i.e., a statement made by a party and offered against that party), which is considered nonhearsay under the Federal Rules. QUESTION ID: E0128 Additional Learning

Question 63

Under the Federal Rules, which of the following will be considered inadmissible hearsay in a criminal case?

A A witness’s testimony that the defendant said, “I did it, I killed him,” to prove that the defendant killed the victim.

B A certified judgment of the defendant’s prior conviction for felony sexual assault, when defendant is charged with sexual assault in the current case.

C The defendant’s birth certificate, to prove he was born on a certain date.

D A portion of the police report containing the responding officer’s observation that defendant was intoxicated on the night in question, to prove the defendant was intoxicated.

Answer 63

D

Although there are hearsay exceptions for public reports and business records, police officers’ observations contained in police reports are inadmissible against the defendant in criminal cases. The defendant’s birth certificate would fall under the hearsay exception for records of vital statistics. Records of births, deaths, and marriages are admissible if the report was made to a public office pursuant to requirements of law. The Federal Rules specifically provide that judgments of felony convictions are admissible as exceptions to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment. Note, however, that the rules barring character evidence still apply. This hearsay exception merely provides a means of proving the facts upon which a conviction is based when such facts are independently admissible either to prove specific acts of misconduct on the issue of a person’s motive, intent, absence of mistake, etc., or as proof of prior acts of sexual assault or child molestation in cases alleging sexual assault or child molestation. The defendant’s statement, “I did it, I killed him,” is not hearsay at all because it is an admission of a party (the defendant). Although traditionally an exception to the hearsay rule, an admission by a party-opponent is considered nonhearsay under the Federal Rules. QUESTION ID: E0127 Additional Learning

Question 64

Under the Confrontation Clause, prior testimonial evidence may not be admitted unless: (i) the declarant is unavailable; and (ii) defendant had an opportunity to cross-examine the declarant at the time the statement was made. Which of the following is considered “nontestimonial” evidence for purposes of the Confrontation Clause?

A Statements made about the identity of the perpetrators during a 911 call in the course of a home invasion.
Incorrect

B Statements made by a victim of a theft to a police officer about the physical features of the suspect.

C Statements made by a robbery victim to a police officer about the details of the robbery.

D Affidavits that summarize the results of a fingerprint test.

Answer 64

A

If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are nontestimonial (e.g., statements made during a 911 call about the identity of the perpetrators in the course of a home invasion). It has been held that affidavits that summarize the findings of forensic analysis (e.g., fingerprint or ballistic test results) are testimonial and thus may not be admitted into evidence unless the technician is unavailable and the defendant previously had an opportunity to cross-examine him. (Note, however, that such affidavits do not raise a Confrontation Clause issue when they are not offered to prove the truth of the matter asserted.) When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Such statements would include those made to the police by a robbery victim about the details of the robbery, or by a victim of a theft regarding the physical features of the suspect. QUESTION ID: E0122 Additional Learning

Question 65

In order to be admitted under the residual “catch-all” exception to the hearsay rule, the statement at issue must:

A Have circumstantial guarantees of trustworthiness

B Be corroborated by other evidence

C Be made by a party to the case

Answer 65

A

There are three requirements for the catch-all exception: (i) The statement must have “circumstantial guarantees of trustworthiness”; (ii) the statement must be more probative as to a material fact than any other evidence that the proponent can reasonably produce; and (iii) the proponent must give notice before trial to the adverse party as to the nature of the statement. The catch-all hearsay exception has no requirement that the statement must be corroborated by other evidence. The exception is not limited to statements made by a party to the case. QUESTION ID: E0121A Additional Learning

Question 66

Under the Federal Rules, a certified copy of a felony conviction is admissible as an exception to the hearsay rule in __________ to prove any fact essential to the judgment.

A Civil cases

B Criminal cases

C Neither civil nor criminal cases

D Both civil and criminal cases

Answer 66

D

The Federal Rules specifically provide that a judgment of a felony conviction is admissible as an exception to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment. The convictions that may be used are limited to felonies because persons may choose not to defend misdemeanor charges (e.g., traffic violations). Note that in a criminal case, the government may use a prior conviction for this purpose only against the accused. QUESTION ID: E0119A Additional Learning

Question 67

Under the Federal Rules, a statement by an opposing party offered for the truth of the matter asserted is:

A Nonhearsay

B Hearsay, and not admissible

C Hearsay, but nonetheless admissible as an exception to the hearsay rule

D Nonhearsay, but only if the party is testifying and subject to cross-examination about her prior statement

Answer 67

A

Although traditionally an exception to the hearsay rule, a statement by an opposing party (also known as an “admission by a party-opponent”) is not hearsay at all under the Federal Rules.

It is immaterial whether the party is a testifying witness. This requirement only applies to the other specific nonhearsay categories under the Federal Rules (prior inconsistent statements, prior consistent statements, and prior statements of identification).QUESTION ID: E0108A Additional Learning

Question 68

Under the Federal Rules, which statement concerning the hearsay exception for dying declarations is correct?

A The declarant’s statement may concern any subject as long as the declarant believed his death was imminent.

B The exception is available only in homicide prosecutions.

C The exception is available only in homicide prosecutions and civil actions.

D The exception is available only where the declarant actually died.

Answer 68

C

Under the Federal Rules, the exception for dying declarations is available only in homicide prosecutions and civil actions. (The traditional view, which is still followed by some states, recognizes this exception only in homicide prosecutions.) The Federal Rules (unlike the traditional view) do not require that the declarant actually died, only that he be unavailable. For the dying declaration exception to apply, the declaration cannot merely concern any subject; rather, it must concern the cause or circumstances of what the declarant believed to be his impending death. QUESTION ID: E0114 Additional Learning

Question 69

There are four requirements for the statement against interest exception to the hearsay rule to apply: (i) the statement must be against the declarant’s interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true, (ii) the declarant knew the statement was against her interest and had no motive to misrepresent when she made the statement, (iii) the declarant is now unavailable as a witness, and (iv) __________.

A The declarant must have had personal knowledge of the facts in her statement

B The declarant must be a party to the litigation or her predecessor in interest

C The declarant must be a party to the litigation

Answer 69

A

To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements:(i) The statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true.(ii) Declarant must have had personal knowledge of the facts.(iii) Declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement.(iv) Declarant must be unavailable as a witness. The statement against interest exception does not require that the declarant be a party. QUESTION ID: E0113C Additional Learning

Question 70

Under the Federal Rules, which of the following is admissible under the official records exception to the hearsay rule?

A A certified judgment of a civil defendant’s acquittal in a prior criminal case

B A certified judgment in a civil proceeding, offered in a subsequent criminal case

C A certified judgment of conviction for a felony, offered against a criminal accused, to prove a fact essential to the judgment

Answer 70

C

The Federal Rules provide that in a criminal case, the government may use a judgment of a prior felony conviction to prove any fact essential to the judgment, but only against the accused. (The government may still use a judgment of felony conviction against a witness other than the accused for impeachment purposes.) Prior acquittals are not admissible under the public records exception. The reason is that a criminal acquittal may establish only that the state did not prove the defendant guilty beyond a reasonable doubt, whereas the evidentiary standard is lower in civil cases. A civil judgment is clearly inadmissible in a subsequent criminal proceeding because of the differing standards of proof. QUESTION ID: E0119B Additional Learning

Question 71

Which statement is likely admissible under the present state of mind exception to the hearsay rule?

A “I think I left my book on the bus,” to prove that the declarant left his book on the bus

B “The snow is really coming down hard,” to prove that the snowfall was heavy

C “I intend to stay home tonight,” to prove that the declarant stayed home that night

Answer 71

C

“I intend to stay home tonight” falls under the state of mind hearsay exception. Declarations of existing state of mind are admissible (i) when declarant’s state of mind is directly in issue, or (ii) if they are declarations of intent offered to show subsequent acts of the declarant. This statement would be offered to show the subsequent act of the declarant; i.e., that he actually stayed at home. “The snow is really coming down hard” is an example of a present sense impression, and does not fall under the present state of mind exception. A present sense impression is a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition. “I think I left my book on the bus” is a declaration of the declarant’s memory or belief. A hearsay statement is not admissible if it expresses a memory or belief of the declarant, and the statement is offered for the purpose of proving the truth of the fact remembered or believed. QUESTION ID: E0115C Additional Learning

Question 72

Doctor Smith’s office has no record of Plaintiff’s visit. Defendant wants to offer the lack of a record to show that Plaintiff did not visit Doctor Smith’s office.
Under the hearsay rule, the lack of a record will be admissible __________.

A once the custodian of the office’s records testifies that she has diligently searched and failed to find a record of Plaintiff’s visit

B under no circumstances; a lack of a business record may not be admitted to show that a matter did not occur

C only if it was the regular practice of the office to record all patient visits

D only if Plaintiff presents some evidence to prove that she did indeed visit the office

Answer 72

C

Under the Federal Rules, the lack of a business record may be used to prove the nonoccurrence of a matter if it was the regular practice of the business to record all such matters. This is a departure from the common law, which did not admit the lack of a business record to show that a matter did not occur. Although the custodian may testify that she diligently searched and failed to find a record, this is not the determining factor for admitting the lack of a business record. (It is actually the requirement to admit the lack of a public record, which is a separate hearsay exception.) Even if such testimony is provided, the lack of a record will only be admissible if it was the regular practice of the business to record all such matters. For the lack of a business record to be admissible, there is no requirement that the party against whom it is offered present evidence showing that the matter did actually occur. QUESTION ID: E0125 Additional Learning