Evidence - Hearsay

Question 1

What is the two part definition of hearsay?

Answer 1

Hearsay is

(1) an out of court statement of a person (oral or written) [Does not apply to machines or animals]
(2) Offered to prove the truth of the matter asserted in a statement.

Hearsay is inadmissible unless an exception or exclusion.

Question 2

What is non-hearsay statement?

Answer 2

Statements that are not offer to prove the truth of the matter asserted in the statement.

Question 3

What are the principal categories of Non-Hearsay Purposes?

Answer 3

(1) Verbal Act (legally oberative Words)
(2) To Show effect on person who hear or read the statement
(3) Circumstantial evidence of speaker’s state of mind [
(4) Certain prior statements of trial witnesses [general rule is hearsay if they offer for truth of the matter asserted.
(5) Statement of an Opposing Party (Party Admissions)
(6) Co-Conspirator’s Statements

Question 4

What is the verbal act (legally operative words) non-hearsay exclusion?

Answer 4

A situation where the substantive law attaches rights and obligations to certain words simply b/c they were spoken.

Question 5

What are the three exclusion (non-hearsay) prior statements of trial witness?

Answer 5

Witness is currently subjected to cross-examination AND

(1) W’s prior statement of identification of a person
(2) Witness’ prior inconsistent statement if oral under oath and made during formal trial, hearing, proceeding or deposition; OR
(3) Witness’s prior consistent statement if being used now to rebut charge of recent fabrication or improper motive or influence.

MA - Prior consistent statement is not admissible as substantive evidence - only to rehab W’s credibility.

Question 6

When can a statement of party opponent be used?

Answer 6

ANY Statement made by a party is admissible if its offered against the party.

Can be done through adoptive admission. Reasonable person would have protested if false.

Vicarious Party Admission - Statement by agent or employee if within scope of agency/employment and made during the existence of the agent/employment relationship.

Question 7

When is a co-conspirator’s statement admissible?

Answer 7

Against against a party who was a member of the conspiracy if the statement was made

(1) During and
(2) In furtherance of the conspiracy.

Question 8

What are the four hearsay exceptions that require the declarant to be unavailable?

Answer 8

(1) Forfeiture by wrong doing
(2) Former Testimony
(3) Statement Against Interest
(4) Dying Declaration

Question 9

What are the eight (FRE) exceptions that are available regardless of whether the declarant is available or unavailable?

Answer 9

(1) Excited Utterance
(2) Present sense impression
(3) Present sense of mind
(4) Declaration of Intent
(5) Present Physical Condition
(6) Statement for the Purpose of Obtaining Medical Treatment or Diagnosis
(7) Business Records
(8) Public Records

Question 10

What are the three add’l MA hearsay exception and the one not recognized in MA?

Answer 10

(1) Statement of decedents in civil actions
(2) Sworn medical report of a medical examination of an injured person
(3) Statements by Child Victims of Sexual Acts

MA does NOT recognize present sense impression

Question 11

What does the sixth amendment confrontation clause require?

Answer 11

Requires that CRIMINAL D’s be confronted with the witnesses against him. [Cross-examination]

Question 12

What is the general rule for hearsay and the confrontation clause? [Three elements]

Answer 12

The Prosecution may not use a hearsay statement against the criminal D (even if it falls within a hearsay exception) if:

(1) the statement is testimonal
(2) the declarant is unavailable
(3) the Defendant has had no opportunity for cross-examination. (Can be satisfied either before or after trial

Question 13

What types of statements have been found to testimonial?

Answer 13

(1) Grand Jury Testimony
(2) Statements in response to police interrogation if primary purpose is to establish or prove past events that potentially relevant to criminal prosecution. [Nontestimonal if enable police to respond to an ongoing emergency.
(3) Documents

Business records

Sworn Affidavits

 Forensic laboratory report is testimony if its primary purpose is to accuse a targeted individual of criminal conduct.  [Nontestimonal if its not targeting a particular person]

Question 14

When does the forefeiture hearsay exception apply?

Answer 14

Any type of hearsay statement is admissible against a D who wrongdoing made the witness unavailable if the court finds:

(1) by a preponderance of the evidence that
(2) D’s conduct was designed/motivated to prevent the W from testifying.

Question 15

What are the requirements for the former testimony hearsy exception?

Answer 15

(1) Unavailable witness
(2) May admit former testimony if given at a former proceeding or a deposition if the party who its admitted against on the prior occasion had a n opportunity and motive to cross-examine or develop the testimony of the W.
(3) The issue in both proceeding must be essentially the same.

Question 16

What are the five grounds of unavailablity?

Answer 16

(1) Privilege
(2) Absence from jurisdiction
(3) Illness/Death
(4) Lack of Memory
(5) Stubborn refusal to testify

Question 17

What are the requirements for statement against interest?

Answer 17

(1) Declarant must be unavailable
(2) Statement must be against interest when made
* Pecuniary, proprietary, penal interest
(3) Any interest (not merely party) can make statement against interest
(4) Personal Knowledge Required

Question 18

What is the qualification for statement against interest in criminal cases?

Answer 18

Statement against penal interest must be supported by circumstances showing trustworthiness of statement.

Question 19

What are the requirements for dying declaration and in what types of cases can it be used?

Answer 19

Statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstance of the declarant’s death.

Criminal Cases: HOMICIDE ONLY

CIVIL CASES: ANYTIME

Question 20

What is the Massachusetts distinction regarding when dying declaration can be used?

Answer 20

Can only be used in criminal homicide only meaning that death is the only relevant form of unavailability.

Question 21

What is the Massachusetts Hearsay Exception for Statements of Decedents in Civil Actions?

Answer 21

In any civil proceeding, any statement of a deceased person is admissible for its truth if:

(1) the Statement was made in good faith and
(2) the statement is based on the declarant’s personal knowledge.

Note: Under FRE, this general exception does not exist.

Question 22

What is an excited utterance and what factors should you consider?

Answer 22

Statement concerning a starling event and made while declarant is still under the stress of excitement caused by the event.

Factors:

(1) Nature of the event [is it traumatic?]
(2) Passage of time
(3) Visual Clues

Question 23

What is a present sense impression and what is the MA distinction?

Answer 23

Description of an event made while the event is occurring or immediately thereafter.

MA has not adopted the present sense impression exception.

Question 24

What is the Massachusetts distinction regarding when dying declaration can be used?

Answer 24

Can only be used in criminal homicide only meaning that death is the only relevant form of unavailability.

Question 25

What is the Massachusetts Hearsay Exception for Statements of Decedents in Civil Actions?

Answer 25

In any civil proceeding, any statement of a deceased person is admissible for its truth if:

(1) the Statement was made in good faith and
(2) the statement is based on the declarant’s personal knowledge.

Note: Under FRE, this general exception does not exist.

Question 26

What is an excited utterance and what factors should you consider?

Answer 26

Statement concerning a starling event and made while declarant is still under the stress of excitement caused by the event.

Factors:

(1) Nature of the event [is it traumatic?]
(2) Passage of time
(3) Visual Clues

Question 27

What is a present sense impression and what is the MA distinction?

Answer 27

Description of an event made while the event is occurring or immediately thereafter.

MA has not adopted the present sense impression exception.

Question 28

What is the MA distinction on Statement Made for the Purpose of Obtaining Treatment or Diagnosis?

Answer 28

MA - Does not recognize abuser identify rule, in general, but separate exception exist for statement by certain children about identify of sex abusers.

Question 29

What is the declaration of intent exception?

Answer 29

Statement of the declarant’s intent to do something in the future including the intent to engage in conduct with another person. [Broad]

Question 30

What is the present physical condition hearsay exception?

Answer 30

Statement made to anyone about declarant’s current physical condition.

Question 31

What is the requirement for the statement made for the purpose of obtaining medical treatment or diagnosis?

Answer 31

Statement made to anyone (usually to medical personnel) for the purpose of obtaining medical treatment or diagnosis (including a diagnosis for expert testimony) if it concerns the declarant’s:

(1) Present symptoms: or
(2) Past Symptioms; OR
(3) General Case of Declarant’s condition,

BUT not including statement describing the details of liability or the identify of the tortfeasor unless it is the identify of the abuser in a domestic or child abuse chase.

Question 32

What is the MA distinction on Statement Made for the Purpose of Obtaining Treatment or Diagnosis?

Answer 32

MA - Does not recognize abuser identify rule, in general, but separate exception exist for statement by certain children about identify of sex abusers.

Question 33

What are the elements of the business records hearsay exception?

Answer 33

(1) Records of a business of any time;
(2) Made in the regular course of business
(3) the business regularly keeps such records
(4) made at or about the time of the event recorded
(5) content consist of -

information observed by the employees of the business; or

a statement that falls within an independent hearsay exception.

Question 34

How do you prove the necessary foundation for the business records exception?

Answer 34

(1) Call sponsoring W to testify to each of the five elements - do need to be author of report, but must have personal knowledge; OR
(2) Written certification under oath attesting to elements of the business record exception.

Question 35

What is the MA distinction on sworn medical report of medical examination of an injured person?

Answer 35

A physician’s written report or hospital report describing a medical examination of an injured person is admissible to prove a diagnosis, prognosis, or opinion as to the proximate cause of the condition, or opinion as to disability or incapacity; if any proximately resulting form the condition so diagnosed, provided that report is signed and sworn by the physician or hospital.

Question 36

What are the three elements of the public record exception? [With a MA distinction]

Answer 36

Records of a public office or agency setting forth:

(1) the activities of the office or agency (i.e. payroll records); or
(2) Matters observed pursuant to a duty imposed by law (e.g. recording temperature); OR
(3) Findings of facts or opinion resulting from an investigation authorized by law. [NOT AVAILABLE IN MA]

Question 37

What public records are exclude from the public records exception?

Answer 37

Police reports prepared for prosecutorial purposes are NOT admissible against the D in a criminal case. Nor can it be offered under the business records theory.

Question 38

What is the MA “Tender Years” Statute and its elements?

Answer 38

In a criminal case, the statement of a child under the age of ten describing a sexual act performed upon or with the child or identifying the perpetrator of such sexual act is admissible if:

(1) the child is unavailable for any reason;
(2) the statement has adequate reliability;
(3) the statement is corroborated by other admissible evidence;
(4) the person who hear the child make the statement testifies at trial.

[NEED TO RUN THROUGH CC Analysis]

If statement made to nurse, doctor, patient - not testimonial.

Question 39

What method can be used to impeach a hearsay declarant?

Answer 39

Any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence.

If the impeachment consists of a prior inconsistent statement, the usual requirement that the decision be given an opportunity to explain or deny is waived.