Evidence Hearsay Import

Question 1

Hearsay approach

Answer 1

1. Isolate the statement
2. Determine who the declarant is (focus on the declarant, not the testifying W)
3. Determine whether it is being offered for its truth (prove the matter asserted in the statement - trying to prove the contents of the statement?)
4. Determine if u can get statement in under an exemption or exception

Question 2

“out-of-court” means…

Answer 2

that the statement was not made by the declarant at the current trial or hearing.

Question 3

Offered to Prove the Truth of the Matter Asserted”

Answer 3

3-step approach to determining whether a state- ment is hearsay:
• Find the statement.
• Determine what it is offered to prove. (Does the question tell you? If not, consider who offered the evidence and what it would be relevant to prove in that party’s case. That’s what the statement is offered to prove.)
• Given what it’s offered to prove, will the jury be misled if the out-of-court speaker (the declarant) was lying or mistaken? In other words, does it matter if the declarant was telling the truth?
If the answer is yes, it’s hearsay. If the answer is no, it’s not hearsay.

Question 4

Since not offered for their truth, the following are not hearsay:

Answer 4

• Verbal acts and legally operative facts (e.g., words of contract or defamation).
• Statements offered to show effect on listener or reader (e.g., notice or knowledge).
• Statements offered to show what declarant believed to be true.
• Circumstantial evidence of declarant’s state of mind
• Impeachment

Question 5

Statements that are NOT offered for their truth…

Answer 5

Are not hearsay - If not offered for its truth, it is not hearsay, such as:
1) Legally operative facts (e.g., words of contract or defamation)
2) Statements offered to prove effect on reader or listener (e.g., notice)
3) Statements offered to show what declarant believed to be true.
4) Statements offered as Circumstantial evidence of declarant’s state of mind (when a party is trying to prove someone’s insanity or knowledge)
5) Impeachment

Question 6

Hearsay EXEMPTIONS -(Categorized as “Nonhearsay” Under the Federal Rules). AKA non-hearsay

Answer 6

Statement Falls Under the Hearsay Definition, BUT Nonetheless Categorized as “Nonhearsay” Under the Federal Rules:
1. Statement by an opposing party (also called “admission” of a party-opponent).
2. Certain prior statements by a Testifying Witness who is subject to X-examination (3 types):
2a. Prior inconsistent statement of testifying witness—when made under oath at a prior proceeding or deposition. To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter.
2b. Prior consistent statement of testifying witness—in certain circumstances when offered to rehabilitate an impeached witness
2c. Prior statement of identification of testifying witness (e.g., photo identifications)

Question 7

In-Court Witness Can Be Hearsay Declarant

Answer 7

The testifying witness and the hearsay declarant can be the same person.

Question 8

Admissable nonhearsay = Hearsay Exclusions (Two categories)

Answer 8

a. Prior statement by a witness who is testifyinig and subject to X-examination (3 types); And
b. Opposing party statement

Question 9

Admissable nonhearsay: Prior Statements of Testifying Witnesses (3 types)

Answer 9

A prior statement by a testifying witness who is subject to cross-examination is not hearsay if:
• The prior statement is one of identification of a person as some- one the witness perceived earlier (even if the witness cannot remember making the identification);
• The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding; or
• The prior statement is consistent with the declarant’s in-court tes- timony and is
(1) offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement was made before any motive to lie or exaggerate
arose), or
(2) offered to rehabilitate a witness whose credibility has been impeached on some other ground (other than a general attack on the witness’s character for
truthfulness), such as an inconsistency or charge of faulty memory.

Question 10

Admissable nonhearsay- Prior INCONSISTENT Statements of Testifying Witnesses:

Answer 10

W’s prior inconsistent statement - admissible if made while under oath at prior proceeding. (admisssible for evidence of truth and impeachment).

Question 11

Admissable nonhearsay- Prior Statements OF IDENTIFICATION of Testifying Witnesses:

Answer 11

Prior Identification - Admissible if Declarant testifies at trial and is subject to Cross-examinaition.

Question 12

Admissable nonhearsay- Prior CONSISTENT Statements of Testifying Witnesses:

Answer 12

W’s prior consistent statement - admissible if stmt rebuts harge of lying or exaggerating AND statement was made BEFORE the motive to lie/exaggerate arose.

Question 13

Admissable nonhearsay: Statement by an opposing party (also called “admission” of a party-opponent)

Answer 13

Anything said by a party can be used against him by opposing party.
An opposing party’s statement (that is, a statement made by or attributable to a party and offered against that party) is not hearsay. Categorized as non-hearsay

a. A statement by or attributable to a party, offered against that party (need not be against interest). No personal knowledge necessary; the statement may be predicated on hearsay. may be in the form of an opinion.
b. Adoptive statements (e.g., party’s silence in the face of an accusation).
c. Vicarious statements (i.e., made by the party’s authorized spokesperson, agent, co-conspirator, etc.).

Question 14

Types of opposing party statements

Answer 14

a. Judicial and Extrajudicial Statements: A party’s formal judicial statements (in pleadings, stipulations, etc.) are conclusive and cannot be contradicted during trial. A party’s informal judicial statements made during testimony and extrajudicial (out-of-court) statements are not conclusive and can be explained.
b. Adoptive statements (e.g., party’s silence in the face of an accusation).
c. Vicarious statements (i.e., made by the party’s authorized spokesperson, agent, co-conspirator, etc.).

Question 15

Adoptive statement (silence)

Answer 15

For silence to be admissible as an opposing party’s statement, 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. silence in the face of accusations by police in a criminal case is almost never considered an admission of a crime.

Question 16

Admission by party opponent: Vicarious Statements

Answer 16

Statements by another person are admissable against a party as an opposing party’s statement because of the relationship between them:
- Co-Parties—Insufficient Relationship: Statements of a party are not receivable against their co-parties merely because they happen to be joined as parties.
- Authorized Spokesperson: The statement of a person authorized by a party to speak on its behalf (such as a statement by a company’s press agent) can be admitted against the party.
- Agents and Employees: A statement by an agent or employee is admissible against the principal if the statement: (1) concerned any matter within the scope of their agency or employment, and (2) was made during the existence of the agency or employment relationship.
- Partners: After a partnership is shown to exist, a statement of one partner relating to matters within the scope of the partnership business is binding upon their co-partners.
- Co-Conspirators: Statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. The court must determine the existence of a conspiracy, and the party’s participation in it, by a preponderance of the evidence standard (meaning, “more probably true than not true”; see Preliminary Determinations, below, for more on the court’s preliminary determination).
- Privies in Title and Joint Tenants—State Courts Only.
-

Question 17

Vicarious statements by - Agents and Employees

Answer 17

• Agents and Employees: A statement by an agent or employee is admissible against the principal if the statement:
  (1) concerned any matter within the scope of their agency or employment, and
  (2) was made during the existence of the agency or employment relationship.

Question 18

Vicarious statements by - Co-Conspirators

Answer 18

• Co-Conspirators: Statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. The court must determine the existence of a conspiracy, and the party’s participation in it, by a preponderance of the evidence standard (meaning, “more probably true than not true”; see Preliminary Determinations, below, for more on the court’s preliminary determination).

Question 19

Admissable nonhearsay: Statements by or Attributable to Opposing Party

Answer 19

Statement made or adopted by a party to the action, or by: (i) a spokesperson authorized to speak on her behalf; (ii) her agent concerning a matter within the scope of the agency; (iii) her partner within the scope of partnership business; (iv) her co-conspirator in furtherance of the conspiracy; or (v) her privy in title (state courts)

Question 20

A party may be held vicariously responsible for the statement of someone with any of the following relationships to the party:

Answer 20

Authorized Spokesperson: The 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.
Principal-Agent: Statements 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 statement may be introduced against her employer even if she was not authorized to speak for the employer.
The statement can be attributed to the employer, provided (i) it was made while the person was employed by the employer (not before or after the period of
employment) and (ii) the statement related to the employment.
Partners: After a partnership is shown to exist, a statement 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-Conspirators: The Supreme Court has held that statements 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 21

Preliminary Determinations

Answer 21

Before admitting an out-of-court statement as a vicarious state- ment of an opposing party, the court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered. the court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship; there must be some independent evidence.

Question 22

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

Answer 22

Nonhearsay

Question 23

Hearsay Exceptions - broad types

Answer 23

1. Exceptions where the declarant must be unavailable to testify (5 exceptions).
2. Exceptions where the declarant’s unavailability is immaterial

Question 24

HEARSAY EXCEPTIONS— UNAVAILABILITY REQUIRED: Exceptions where the declarant must be unavailable to testify

Answer 24

1. Former Testimony;
2. Statement Against Interest;
3. Dying Declaration;
4. Statement of Personal or Family History;
5. Statement Offered Against Party Procuring Declarant’s Unavailability

Question 25

Grounds for Unavailability

Answer 25

A declarant is unavailable if they:
• Are unable to testify due to death or physical or mental illness;
• Are exempt from testifying because of privilege;
• Refuse to testify concerning the statement despite a court order;
• Testify that they do not remember the subject matter; or
• Are absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure their attendance or testimony by process or other reasonable means. Note that a declarant who is able to give deposition testimony in lieu of attending trial is considered to be an available witness—except with respect to (1) the former testimony exception and (2) the forfeiture by wrongdoing exception.

Question 26

Unavailability PRISM

Answer 26

P - privilege (assertion of)
R - Refusal to testify
I - Incapacity
S - Subpoena (failure to comply
M - Memory (lack of)

Question 27

Hearsay Exception (unavailability required): Former Testimony

Answer 27

The testimony of a now-unavailable witness is admissible if Statement made under oath at same or at other proceeding at which the party against whom it is offered had motive and opportunity to develop testimony.
Former testimony—under oath:
- The testimony was given under oath at a trial, hearing, or deposition, in the same case or in a different case;
- The party against whom the testimony is now being offered—or, in a civil case, the party’s predecessor in interest—had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross-, or redirect examination. [The party against whom the testimony is offered (or his predecessor in interest in civil cases) must have been a party in the former action.]

Question 28

Former Testimony - “Predecessor in interest”

Answer 28

“Predecessor in interest” refers to a person in a privity relationship with the party (examples would include grantor-grantee, testa- tor-executor, or joint tenants).

Question 29

Former Testimony - “opportunity and similar motive”

Answer 29

“opportunity and similar motive” requirement means that the party against whom the testimony is offered (or, in a civil case, their predecessor in interest) must have been a party in the former action, and the former action must have involved the same subject matter (but the causes of action need not be identical).

Question 30

Former Testimony - grand jury testimony of an unavailable declarant

Answer 30

Because grand jury proceedings do not provide the accused with an opportunity to cross-examine witnesses, the grand jury testimony of an unavailable declarant is not admissible against a defendant under the former testimony exception to the hearsay rule.

Question 31

Hearsay Exception (unavailability required): Statement Against Interest

Answer 31

Statement against declarant’s pecuniary (money), proprietary (property), or penal (criminal) interest when made.
Declarant must have known that the statement was against her pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true.
The declarant must also have had personal knowledge of the facts, and must have been aware that the statement was against their interest when they made it.

Question 32

Statement Against Interest - Limitation on Statements Against Penal Interest

Answer 32

In criminal cases, statements against penal interest (meaning, state- ments that would subject the declarant to criminal liability) must be corroborated.

Question 33

“Statement” Means Single Remark

Answer 33

If a person makes a declaration containing statements that are against their interest (for example, “I sold the drugs”) and statements that are not (for example, “X runs the drug ring”), the exception covers only those remarks that inculpate the declarant, not the entire extended declaration.

Question 34

STATEMENTS BY AN OPPOSING PARTY VS. STATEMENTS AGAINST INTEREST

Answer 34

Statements by an Opposing Party: Statement need not have been against interest when made. Declarant need not have personal knowledge of facts. Declarant need not be unavailable. Declarant must be a party.

Statements Against Interest: Statement must have been against interest when made. Declarant must have personal knowledge of facts. Declarant must be unavailable. Declarant need not be a party.

Question 35

Hearsay Exception (unavailability required): Dying Declaration

Answer 35

Statement made while declarant believed death was imminent, concerning the cause or circumstances of the impending death.
1) Homicide pros’ and civil cases only
2) Declarant need not have actually died (but must be unavailable)

Admissbale if:
• The declarant believed their death was imminent (they need not actually die); and
• The statement concerned the cause or circumstances of what the declarant believed to be their impending death. the statement must be based on the declarant’s perceptions and firsthand knowledge of what happened (meaning, an unsupported opinion or speculation will not qualify).

Question 36

Dying declaration only applies to:

Answer 36

Civil cases, and homicide cases (not attempted murder)

Question 37

Dying Declaration is Admissable if:

Answer 37

Admissbale if:
• The declarant believed their death was imminent (they need not actually die); and
• The statement concerned the cause or circumstances of what the declarant believed to be their impending death.
the statement must be based on the declarant’s perceptions and firsthand knowledge of what happened (meaning, an unsupported opinion or speculation will not qualify).

Question 38

Hearsay Exception (unavailability required): Statement of Personal or Family History

Answer 38

Statement of personal or family history (e.g., birth, death, marriage) made by family member or one intimately associated with the family.
admissible provided that:
• The declarant is a member of the family in question or intimately associated with it; and
• The statements are based on the declarant’s personal knowledge of the facts or their knowledge of family reputation

Question 39

Hearsay Exception (unavailability required): Statement Offered Against Party Procuring Declarant’s Unavailability

Answer 39

Statement of unavailable declarant offered against party who intentionally procured declarant’s unavailability. The statement of a person (now unavailable as a witness) is admis- sible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability.
!!! the statement meets this exception only if the party’s motivation was to prevent the declarant from testifying.

Question 40

HEARSAY EXCEPTIONS—DECLARANT’S AVAILABILITY IMMATERIAL: exceptions where the declarant’s unavailability is immaterial

Answer 40

1. Excited Utterances;
2. Present Sense Impressions,
3. Present state of mind or condition,
4. Statements Made for Purposes of Medical Diagnosis or Treatment,
5. Business records exception (records of regularly conducted activity),
6. Official Records and Other Official Writings,
7. Recorded Recollection,
8. Learned treatises,
   Others. Ancient doc, docs affecting property, reputation, family records, market reports

Question 41

Excited Utterances

Answer 41

Statement relating to startling event, made while under stress of excitement of startling event.
An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (meaning, before the declarant had time to reflect upon it), is admissible.
Look for exclamation marks.

Question 42

Present Sense Impressions

Answer 42

Statement made concurrently with perception of event described.
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. Statement must be made during or immediately after the event or condition (STRICT TIMING).
Look for SECONDS here.
Personal knowledge is required when describing or explaining.

Question 43

Present Sense Impressions rationale

Answer 43

Unlikely someone will make up stuff immediately after event

Question 44

EXCITED UTTERANCES VS. PRESENT SENSE IMPRESSIONS

Answer 44

Excited Utterances - Statement must relate to a startling event & Statement must be made while still under the stress of excitement from the event (depends on circumstances).

Present Sense Impressions - Statement must describe or explain an event or condition; the event or condition need not be startling, Statement must be made while or immediately after perceiving the event or condition
(strict timing requirement).

Question 45

Statements of then-existing physical, emotional, or mental condition
[Present State of Mind or Condition] [Present mental state exception]

Answer 45

Includes statements of then-existing state of mind or physical condition. A statement of the declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible.
1. State of mind directly at issue in case (e.g., domicile).
2. To prove subsequent acts of declarant.
However, except as to certain facts concerning the declarant’s will, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed. does not include statements of memory or belief.
Look for present-tense words (I am, my back hurts)

Question 46

Present State of Mind or Condition includes…

Answer 46

A statement of the declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible. Includes Statements of Intent for the future. Includes Statement of Physical Condition.

Question 47

PSOM: Statements of intent

Answer 47

Includes Statements of Intent: “state of mind” includes statements about the declarant’s intent to do something in the future, including the intent to engage in conduct with another person.

Question 48

Present State of Mind or Condition does NOT include…

Answer 48

except as to certain facts concerning the declarant’s will, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed.

Question 49

Present Bodily Condition

Answer 49

Spontaneous declaration of physical symptoms. Statement of own present condition—admissible even if not made to physician. Includes Statement of Physical Condition
This exception covers a declarant’s statement—to anyone—about their current physical condition.

Question 50

Statements Made for Purposes of Medical Diagnosis or Treatment

Answer 50

Statement of past or present physical condition, or the cause of the condition, made for the purpose of diagnosis or treatment.. A statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule. MUST be made for—and was reasonably pertinent to—medical diagnosis or treatment.

Includes cause or source of injury, but does not include statements that are not pertinent to diagnosis or treatment. (hit by a car - OK. “by a drunk guy” - NOT OK).
Not required that a declarant will be describing their own condition (declarant might be seeking medical assistance for a family member). Statements falling within this exception are usually made to medical personnel, but again, this is not an absolute requirement.

Question 51

Statements Made for Purposes of Medical Diagnosis or Treatment - statements that assign fault are…

Answer 51

Generally excluded.

Question 52

Statements where the declarant was speaking to a physician who was retained for the sole purpose of testifying as an expert witness.

Answer 52

Statements are admissible under this exception even where the declarant was speaking to a physician who was retained for the sole purpose of testifying as an
expert witness. Making a statement for the purpose of obtaining a “medical diagnosis” includes a diagnosis for the purpose of giving an expert opinion.

Question 53

Recorded Recollection (past recollection recorded)

Answer 53

*Only after refreshing recollection attempted.
Record by witness who cannot now remember the facts, made or adopted while the facts were fresh in her mind.
Hearsay exception for recorded recollections. Under this exception, if a testifying witness’s memory cannot be revived, a party may introduce a memorandum or other record that the witness made or adopted at or near the time of the event. Remember that under this exception, the record can only be read into evidence; it cannot be admitted as an exhibit unless offered by an adverse party.

Question 54

Recorded recollection admissability?

Answer 54

Document not admissible, but may be read to jury

Question 55

Recorded recollection FOUNDATION?

Answer 55

Various foundational requirements must be met (witness must not be able to remember the facts, must have been made or adopted by witness when the events were fresh in her mind, etc.)

Question 56

Business Records (Records of a Regularly Conducted Activity) or Absence Thereof

Answer 56

Record of an act, event, condition, opinion, or diagnosis if…
Record made in the regular course of business (routine practice) and
biz regularly keeps such records (not first time),
consisting of matters within the personal knowledge of entrant or by someone with a business duty to transmit knwoledge from someone with personal knowledge.
Made at or near time of event being described.

Lack of such record may be used to show nonoccurrence of event.

Question 57

Business records must be both…

Answer 57

1) Record must be made in regular course of business
2) Matters must be within the personal knowledge of the entrant or someone with a business duty to transmit such matters to the entrant

Question 58

Business records Elements:

Answer 58

• “Business”: “Business” includes every business, organization, occupation, or calling, including nonprofit organizations.
• Entry Made in Regular Course of Business: To be admissible: (1) the record must have been made in the regular course of business and (2) the business must regularly keep such records (meaning, the entrant must have had a duty to make the entry). Self-serving accident reports prepared primarily for litigation are usually inadmissible.
• Entry Made Near Time of Event: The entry must be made at or near the time of the event.
• Personal Knowledge: The business record must consist of matters within the personal knowledge of the entrant, or within the knowledge of someone with a duty to transmit such matters to the entrant (generally, a co-worker).

Question 59

Business Records established by…? FOUNDATION

Answer 59

Custodian or qualified witness either: in court testimony or written certification signed by the custodian.
Established by a sponsoring witness, who can be a custodian of records or any person in the business who is knowledgeable about the business’s recordkeeping (it does not need to be the author of the record in question). This can be accomplished by the records custodian
(1) testifying that the record meets the elements of the business records exception, or
(2) certifying in writing that the record meets the elements of the business records exception.

Question 60

Business record will be inadmissable if:

Answer 60

Opposition indicites they are untrustworthy

Question 61

Business records elements

Answer 61

• “Business” includes every business, organization, occupation, or calling, including nonprofit organizations.
• Entry Entry Made in Regular Course of Business: (1) the record must have been made in the regular course of business and (2) the business must regularly keep such records (meaning, the entrant must have had a duty to make the entry). Self-serving accident reports prepared primarily for litigation are usually inadmissible.
• Entry Made Near Time of Event
• Personal Knowledge: The business record must consist of matters within the personal knowledge of the entrant, or within the knowledge of someone with a duty to transmit such matters to the entrant (generally, a co-worker).

Question 62

Public Records and Reports or Absence Thereof; Records of Vital Statistics

Answer 62

Records and reports of public agencies regarding their activities, and records of births, deaths, marriages, etc.
The writing must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.
Absence of public record is admissible to show nonexistence of matter.

Question 63

Public Records - Permitted Categories

Answer 63

The following records of a public office or agency are admissible:
1. Records setting forth the activities of the office or agency (for example, payroll records);
2. Recordings of matters observed pursuant to a duty imposed by law (for example, weather bureau records of temperature), but not including police observations in criminal cases; and
3. In civil actions and against the government in criminal cases—but not against the defendant in a criminal case—records of factual findings resulting from an investigation authorized by law (for example, an FAA report on the cause of a plane crash)

Question 64

Are Police reports admissable as public records?

Answer 64

Generally not admissable against criminal D under public records or business records exception. investigative reports by the police, FBI, and other agencies are inadmissible in this situation.
Admissable in civil cases.

Question 65

Are records of factual findings resulting from an investigation authorized by law admissable?

Answer 65

Only in civil cases and against the gov in criminal cases.

Question 66

Records of Vital Statistics

Answer 66

Records of vital statistics are admissible if reported to a public office in accordance with a legal duty.

Question 67

Judgments

Answer 67

A certified copy of a judgment is always admissible proof that such judgment has been entered.

Question 68

Judgments admissability to prove the underlying facts that led to that judgement?

Answer 68

Certified copy of judgment always admissable as proof that judgmenet was entered. AND…
- Prior Criminal Conviction—Felony Conviction Admissible: A judgment of a felony conviction is admissible in criminal and civil actions as an exception to the hearsay rule to prove any fact essential to the judgment. (Ex-using a criminal conviction of felony assault in a civil lawsuit against the same D over the same assault.)
In a criminal case, it may be used for this purpose only against the accused (as in, use only the D’s criminal conviction). For others, can only be used to impeach others.
- Prior Criminal Acquittal—Excluded: This hearsay exception does not apply to records of prior acquit- tals.
- Judgment in Prior Civil Case—Generally Excluded: A civil judgment is inadmissible in a subsequent criminal proceeding because of the different standards of proof. A civil judgment is generally also inadmissible in subsequent civil proceedings, subject to certain statutory exceptions—for example, under the Federal Rules, a prior judgment may be admitted to prove matters of personal or family history, or boundaries of land.

Question 69

Is a Prior Criminal Acquittal admissable?

Answer 69

No, its excluded.

Question 70

Judgment in Prior Civil Case— admissable?

Answer 70

Generally Excluded. A civil judgment is inadmissible in a subsequent criminal proceeding because of the different standards of proof. A civil judgment is generally also inadmissible in subsequent civil proceedings, subject to certain statutory exceptions—for example, under the Federal Rules, a prior judgment may be admitted to prove matters of personal or family history, or boundaries of land.

Question 71

Recorded Recollection

Answer 71

hearsay exception for recorded recollections. Recall that under this exception, if a testifying witness’s memory cannot be revived, a party may introduce a memorandum
or other record that the witness made or adopted at or near the time of the event. Remember that under this exception, the record can only be read into evidence; it cannot be admitted as an exhibit unless offered by an adverse party.

Question 72

Ancient Documents

Answer 72

Statements in authenticated documents prepared before January 1, 1998 are admissible.

Question 73

Documents Affecting Property Interests

Answer 73

Statements in a document affecting an interest in a property (e.g., deed, will) is admissible if the statement is relevant to the document’s purpose. However, the exception will not apply if later dealings with the property are inconsistent with the truth of the state- ment asserted or the intent of the document.

Question 74

Learned Treatises

Answer 74

If used during examination of expert and established as reliable.
Statements from authoritative works admitted if called to attention of expert witness and established as reliable authority.
Statements contained in a learned treatise are admissible as substantive proof if (1) the treatise is established as reliable authority and (2) the excerpt is relied upon by an expert during direct examination or brought to an expert’s attention on cross-examination. If admitted, such state- ments are read into evidence but are not received as an exhibit. This is a unique feature that recorded recollections (above) and learned treatises have in common.

Question 75

If a party finds a learned treatise that supports their case, they can’t offer it into evidence under this exception unless…

Answer 75

If a party finds a learned treatise that supports their case, they can’t offer it into evidence under this exception unless there is an expert involved who either (1) relies on the treatise or (2) is im- peached with the treatise.

Question 76

Reputation

Answer 76

Admissable under hearsay exceptions for Reputation evidence concerning a person’s character, a person’s personal or family history, land boundaries, or a community’s general history.

Question 77

Family Records

Answer 77

Statements of fact found in family Bibles, jewelry engravings, tombstones, etc.

Question 78

Market Reports

Answer 78

Market reports and public compilations generally relied on by the public or persons of a particular occupation.

Question 79

Catch-all (residual) exception

Answer 79

If you have hearsay not covered by a specific exception, you could still argue that residual exception makes it not hearsay. Must show it’s trustworthy, strictly necessary, give reasonable notice. If not covered by specific exception but (i) guarantees of trustworthiness, (ii) statement is strictly necessary, and (iii) notice given to adver- sary

Question 80

Hearsay and the Confrontation Clause: when does it kick in

Answer 80

Hearsay statement not admissable (even if it falls within a hearsay exception) against accused in criminal case where:
• The statement is being offered against the accused in a criminal case (there is no confrontation concern in civil cases);
• The declarant is unavailable;
• The statement was “testimonial” in nature; and
• The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial

Question 81

A hearsay statement offered against the accused in a criminal case is barred by the Confrontation Clause (even if it falls within a hearsay exception) if:

Answer 81

a. The declarant is unavailable;
b. The statement was “testimonial” in nature; and
c. The accused had no opportunity to cross-examine the testimonial statement prior to trial

Question 82

What Is a “testimonial” statement?

Answer 82

a. “Testimonial” evidence includes sworn testimony (such as at a grand jury, prior trial, or preliminary hearing).
b. Statements made in the course of a police investigation when the primary purpose is to establish facts potentially relevant to a later criminal prosecution. Statements made to assist police in an ongoing emergency are nontestimonial.
c. Affidavits or written reports of forensic analysis.

Question 83

Statements Made to Law Enforcement

Answer 83

Whether a statement made in response to police interrogation is testimonial depends on its primary purpose.
— To Aid in Ongoing Emergency—Not Testimonial: 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 (for example, a 911 call during ongoing crime). In determining whether an “ongoing emergency” existed at the time of the interrogation, relevant factors include: (1) the nature of the dispute (public vs. private); (2) whether the perpetrator is still at large; (3) the scope of the threat to the victim and to the public; and (4) the type of weapon involved.
— To Provide Information for Later Prosecution— Testimonial: When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prose- cution, statements are testimonial (for example, statements to police describing a crime after it has concluded). On the other hand, it has been held that statements by a young child abuse victim to a school teacher about the abuse are not testimonial because the primary purpose of the conversation is protection of the child, not prosecution of the perpetrator.

Question 84

The defendant forfeits their right of confrontation if they…

Answer 84

committed a wrongful act that was intended to keep the witness from testifying.

Question 85

“Testimonial” Statement: When is a statement “testimonial”?

Answer 85

“Testimonial” evidence includes sworn testimony (such as at a grand jury, prior trial, or preliminary hearing). However, it also includes statements to law enforcement (sworn and unsworn) and certain documents.
Statements Made to Law Enforcement: Whether a statement made in response to police interrogation is testimonial depends on its primary purpose.
To Aid in Ongoing Emergency—Not Testimonial: 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. Also child abuse statement.
To Provide Information for Later Prosecution— Testimonial: When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prose- cution, statements are testimonial

Question 86

In determining whether an “ongoing emergency” existed at the time of the interrogation, relevant factors include:

Answer 86

(1) the nature of the dispute (public vs. private); (2) whether the perpetrator is still at large; (3) the scope of the threat to the victim and to the public; and (4) the type of weapon involved.

Question 87

Affidavits or Written Reports of Forensic Analysis

Answer 87

Affidavits, certificates, or other written reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct (such as fingerprint test results) are testimonial and cannot be admitted unless the defendant previously had an opportunity to cross-examine the author of the report. The testimony of the analyst’s supervisor who was not involved in the testing is not sufficient to admit the results. However, such reports may be used for a nonhearsay purpose. Specifically, no confrontation violation occurs if a forensic expert, while testifying as to their independent analysis of data, makes only a general reference to a nontestifying analyst’s report to demonstrate a partial basis for their opinion.

Question 88

Due Process Rights

Answer 88

Hearsay rules and other exclusionary rules of evidence cannot be applied where such application would deprive the accused of their right to a fair trial or deny their right to compulsory process.

Question 89

Hearsay is…

Answer 89

An out of court statement offered to prove the truth of the matter asserted.

Question 90

steps

Answer 90

Isolate the stmt, who is declarant, What is the purpose (truth of the matter asserted?), Look for exception

Question 91

Stattements that are NOT hearsay.

Answer 91

Admissions, prior statements of TESTIFYING witness subject to X-examination (prior sworn inconsistent stmts, prior consistent stmts, prior identifications).

Question 92

9 common hearsay exceptions

Answer 92

1. Present sense impression
2. excited utterance.
3. A statement concering mental or physical condition.
4. a statement made for purposes of emdical diagnosis or treament
5. recorded recollection
6. busines records
7. former testimony
8. dying declarations
9. Statements against interest
   for 7,8, and 9 - you need UNAVAILABILITY.

Question 93

A police sketch based on Witness description could be…

Answer 93

a prior identification can be admissible nonhearsay, and the sketch could be deemed a prior identification by the witness.

Question 94

Dying declaration requirements

Answer 94

1. Belief that death was imminent
2. Stmt concerning the cause or circumstances surrounding death
3. Declarant must be unavailable
4. ONLY in CIVIL and HOMICIDE case.

Question 95

Excited utterance.

Answer 95

For a statement to be admissible as an excited utterance, it must relate to a startling event and be made while the declarant was under the stress of excitement caused by that event.

Question 96

present sense impression exception

Answer 96

The present sense impression exception to the hearsay rule, only requires that the witness actually hear the declarant make the statement at the time that the declarant is observing or perceiving the event. It does not require that the witness also observe the event.

Question 97

business records exception

Answer 97

business records exception to the hearsay rule, under Federal Rule 803(6), admits into evidence those records kept in the course of the regular conduct of any business, organiza- tion, occupation, or calling. If MADE by a person with a duty to make those records.

For a business record to be admissible as an exception to the hearsay rule, the declarant must either have personal knowledge of the fact stated or must have received the informa- tion from someone with personal knowledge who transmitted it in the ordinary course of business.

Question 98

For a business record to be admissible as an exception to the hearsay rule, the declarant must either have…..

Answer 98

For a business record to be admissible as an exception to the hearsay rule, the declarant must either have personal knowledge of the fact stated or must have received the information from someone with personal knowledge who transmitted it in the ordinary course of business. (or if theres some other hearsay exception to get that info to the personal knowledge)

Question 99

Statements made for purposes of medical diagnosis or treatment

Answer 99

An out of court statement about the nature of an injury or medical condition usually amde to medical personell is exceptgion to hearsay, BUT ONLY if it relates to medical diagnoses or treatment.
Any DISCUSSIOn of FAULT is not within the exception.

Question 100

Rule of completeness

Answer 100

When a statement or part of a statement is introduced, the adverse party may introduce any other statement or part of the statement which ought, in fairness, to be considered at the same time.

Question 101

Extrinsic evidence of a prior inconsistent statement

Answer 101

Extrinsic evidence of a prior inconsistent statement ordinarily may not be introduced unless the witness is given the opportunity to explain or deny the inconsistent statement. However, this foundational requirement does not apply to statements by an opposing party. While the opportunity to explain or deny an inconsistent statement most often occurs during cross- examination and before the extrinsic evidence is introduced, the opportunity may be given at any point by recalling the witness after the prior inconsistent statement has been admitted into evidence.

Question 102

State of mind exception

Answer 102

Circumstantial evidence offered to show the declarant’s then-existing state of mind, emotion, or physical condition.

A declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out. This falls under the “present mental state” exception to the hearsay rule.

Question 103

statement attributable to the party-opponent (i.e., a vicarious statement of an opposing party).

Answer 103

Statements by an opposing party are not hearsay and therefore need not qualify for an exception to the hearsay rule.

Statements by an agent concerning any matter within the scope of his agency, made during the existence of
the employment relationship, are admissible against the principal.

An admission of one conspirator is admissible against co-conspirators if made while participating in the conspiracy and in furtherance of a conspiracy to commit a crime or civil wrong.

Question 104

AC Privilege

Answer 104

A client has a privilege to refuse to disclose, and to prevent others from disclosing, confidential communications between herself and her lawyer.
The attorney-client privilege requires that, at the time of the communication, the client be seeking the professional services of the attorney.
Disclosures made before the lawyer has decided to accept or decline the case are covered if the other requirements of the privilege are met.
A communication is confidential if it is not intended to be disclosed to third persons; thus, communications made in the known presence and hearing of a stranger are not privileged. However, statements made in front of third persons whose presence is reasonably necessary to the consultation (e.g., this client’s parent) are still considered confidential.

Question 105

Lay witness testimony

Answer 105

can testify to anthing rationally based in their perception (height, weight, speed, color). BUT not legal conclusions.

Question 106

Expert opinion

Answer 106

Under Federal Rule 703, the expert may base an opinion upon facts or data perceived by or made known to the expert at or before the hearing.
Can base their opinion on personal observation, authoriative texts, or facts reasonably relied on other experts in the field. No personal knowledge required. Can testify to facts known before or at trial.

Federal Rule 705 permits the expert to give the opinion without prior disclosure of the underlying facts or data, although the opposing attorney can inquire into the basis of the opinion on cross-examination.
The expert may give an opinion in response to a hypothetical question, as long as the facts assumed in that question can be found by the trier of fact based upon admissible evidence.