Evidence II-Hearsay

Question 1

What is Hearsay?

Answer 1

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. [Fed. R. Evid. 801(c)]

Evidence II-Hearsay

Evidence> Statement of the Rule (II.A)
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Question 2

What is the reason for excluding Hearsay?

Answer 2

The reason for excluding hearsay is that the adverse party was denied the opportunity to
cross-examine the declarant.

Evidence II-Hearsay

Evidence> Reason for Excluding Hearsay (II.A.1)
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Question 3

What is an oral hearsay statement? (as opposed to a non-verbal assertion)

Answer 3

An oral hearsay statement occurs where the witness testifies to something that was SAID outside of court. This is different than a non-verbal hearsay assertion because it involves the actual words of the hearsay declarant rather than their

Evidence II-Hearsay

Evidence>Hearsay (II. A2.)
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Question 4

What is a hearsay “statement?”

Answer 4

A hearsay statement is

a) an ASSERTION
b) made orally or in writing (or non-verbal conduct that is intended as an assertion such as nodding or pointing in response to a question)
c) made by a person (cannot be animal or machine)

Evidence II-Hearsay

Evidence>Hearsay (II. A2.)
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Question 5

Importance of cross-examination for hearsay statements

Answer 5

Cross examination is necessary to test the declarant’s perception, memory, sincerity, and ability to relate the statement.
If a witness testifies to the declarant’s out-of-court statement, the adverse party only has the opportunity to test the witness’s perception, memory, etc. That does not help resolve the issue of the DECLARANT’S perception, memory, etc. Even if the witness and the declarant are the same person, the adverse party is denied the opportunity to cross examine them at the time the statement was made.

Evidence II-Hearsay

Evidence>Hearsay (II. A1.)
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Question 6

Can a witness testify about their OWN prior out of court statement, if they are still to cross examination?

Answer 6

No (unless a hearsay exception applies). The out of court statement can still be hearsay even if repeated by a witness who is available to be cross-examined, because the cross-examination needs to be CONTEMPORANEOUS with the statement.

Parties need to be able to cross-examine at the time the statement was made in order to adequately test perception, memory, etc.

Evidence II-Hearsay

Evidence> Hearsay (II. A1.)
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Question 7

Why is hearsay generally excluded?

Answer 7

Hearsay is excluded because the adverse party was denied the opportunity to cross-examine the declarant at the time the statement was made (out of court).

Cross examination is necessary to test the declarant’s perception, memory, sincerity, and ability to relate the statement.

Evidence II-Hearsay

Evidence> Hearsay (II. A1.)
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Question 8

What is a “writing”?

Answer 8

A writing is any written document that is offered in evidence; a writing constitutes a “statement” for hearsay purposes.

Evidence II-Hearsay

Evidence>Statement: writings (A.2.b)
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Question 9

What is “nonassertive conduct” and when is it

applicable?

Answer 9

Under the traditional common law definition of hearsay, a “statement” included nonassertive conduct, which is conduct the declarant did not intend as an assertion but which is being offered as one. However, under modern codes and the FRE, evidence of nonassertive conduct is not hearsay.

Evidence II-Hearsay

Evidence>Statement: nonassertive conduct (A.2.d)
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Question 10

What is “assertive conduct”?

Answer 10

Assertive conduct is conduct intended by the actor to be a substitute for words (e.g., the nod of the declarant’s head indicating a yes); it constitutes a “statement” within the meaning of the hearsay rule.

Evidence II-Hearsay

Evidence>Statement: assertive conduct (A.2.c)
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Question 11

What does it mean for evidence to be “offered to prove

the truth of the matter”?

Answer 11

The statement itself is being used as evidence to prove the substance, or the truth, of that statement. If the statement is introduced for any purpose other than to prove the truth of the matter asserted, there is no need to cross-examine the defendant, and so the statement is not hearsay.

Evidence II-Hearsay

Evidence>Offered to Prove the Truth of the Matter (A.3)
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Question 12

Why are Statements Offered to Show Effect on Listener or Reader not hearsay?

Answer 12

A statement that is inadmissible hearsay to prove the truth of the statement may never-
theless be admitted to show the statement’s effect on the listener or reader.

Evidence II-Hearsay

Evidence>Hearsay>Offered to prove the truth of the matter>Verbal acts or legally operative facts
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Question 13

Why are statements by a declarant that serve as circumstantial evidence of the declarant’s state of mind not hearsay?

Answer 13

Such statements are not offered to prove the truth of the matters 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 knowl- edge.

Evidence II-Hearsay

Evidence>Hearsay>Offered to prove the truth of the matter>Statements Offered to Show Effect on Listener or Reader
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Question 14

Are statements by a declarant that serve as circumstantial evidence of the declarant’s state of mind hearsay?

Answer 14

No.

Evidence II-Hearsay

Evidence>Hearsay>Offered to prove the truth of the matter>Statements Offered to Show Effect on Listener or Reader
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Question 15

Are state of mind statements considered hearsay?

Answer 15

Yes, but an exception applies.

Evidence II-Hearsay

Evidence>Hearsay>Offered to prove the truth of the matter>Statements Offered as Circumstantial Evidence of Declarant’s State of Mind
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Question 16

Are Statements Offered to Show Effect on Listener or Reader admissable?

Answer 16

Yes.

Evidence II-Hearsay

Evidence>Hearsay>Offered to prove the truth of the matter
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Question 17

Are literary operative facts and verbal acts hearsay?

Answer 17

No.

Evidence II-Hearsay

Evidence>Hearsay>Offered to prove the truth of the matter
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Question 18

Why are literary operative facts and verbal acts not hearsay?

Answer 18

Evidence of such statements (sometimes called “legally operative facts”) is not hearsay because the issue is simply whether the statements were made.

Evidence II-Hearsay

Evidence>Hearsay>Offered to prove the truth of the matter
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Question 19

List non-hearsay

Answer 19

Contract action–legally operative fact, Fraud action–defendant’s good faith, Landlord tenant complaint–notice, Dr. did not place patient in specific ward–non-assertive conduct, Birthday gifts–legally operative words, mechanic says your tire will blow out–notice, knowledge, witness two testimony–doubt on credibility. All of these circumstances are non-hearsay and get in.

Evidence II-Hearsay

Evidence>Non-hearsay
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Question 20

List non-hearsay

Answer 20

Contract action–legally operative fact, Fraud action–defendant’s good faith, Landlord tenant complaint–notice, Dr. did not place patient in specific ward–non-assertive conduct, Birthday gifts–legally operative words, mechanic says your tire will blow out–notice, knowledge, witness two testimony–doubt on credibility. All of these circumstances are non-hearsay and get in.

Evidence II-Hearsay

Evidence>Non-hearsay
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Question 21

What is hearsay within hearsay? When does it get in?

Answer 21

An out of court statement that incorporates hearsay within it. Both the outer hearsay and inner hearsay must be within an exception to get in.

Evidence II-Hearsay

Evidence>Hearsay within Hearsay
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Question 22

What is hearsay within hearsay? When does it get in?

Answer 22

An out of court statement that incorporates hearsay within it. Both the outer hearsay and inner hearsay must be within an exception to get in.

Evidence II-Hearsay

Evidence>Hearsay within Hearsay
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Question 23

Can a non-human produce hearsay?

Answer 23

No, animals and machines cannot produce hearsay. Hearsay involves an out of court statement made by a person.

Evidence II-Hearsay

Evidence>Hearsay
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Question 24

Are statements that directly reflect a declarant’s state of mind hearsay? Are they admissible? Or are they an exception?

Answer 24

They are hearsay but are admissible.

Evidence II-Hearsay

Evidence>Hearsay
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Question 25

Can a non-human produce hearsay?

Answer 25

No, animals and machines cannot produce hearsay. Hearsay involves an out of court statement made by a person.

Evidence II-Hearsay

Evidence>Hearsay
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Question 26

Are statements that directly reflect a declarant’s state of mind hearsay? Are they admissible? Or are they an exception?

Answer 26

They are hearsay but are admissible.

Evidence II-Hearsay

Evidence>Hearsay
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Question 27

What statements under 801(d) are not hearsay?

Answer 27

Prior statements by a witness ( to cross), prior inconsistent statements (under penalty of perjury), prior consistent statements.

Evidence II-Hearsay

Evidence>Hearsay
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Question 28

What statements under 801(d) are not hearsay?

Answer 28

Prior statements by a witness ( to cross), prior inconsistent statements (under penalty of perjury), prior consistent statements.

Evidence II-Hearsay

Evidence>Hearsay
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Question 29

Are statements offered as circumstantial evidence of a declarant’s state of mind Hearsay?

Answer 29

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 matters 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.

Evidence II-Hearsay

Evidence>Hearsay
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Question 30

Are statements offered as circumstantial evidence of a declarant’s state of mind Hearsay?

Answer 30

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 matters 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.

Evidence II-Hearsay

Evidence>Hearsay
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Question 31

What is the difference between nonhearsay statements and hearsay exceptions?

Answer 31

Federal Rule 801(d) removes certain statements that would ordinarily be hearsay under common law from the hearsay definition. These statements do not necessarily fall into a hearsay exception because they are not hearsay.

Evidence II-Hearsay

Evidence>Hearsay>Statements that are Nonhearsay Under the Federal Rules (II.B)
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Question 32

When certain prior statements by a witness are not hearsay, what requirements must the witness meet?

Answer 32

Certain prior statements by a witness may not be hearsay only if that witness testifies at the trial or hearing and is to cross-examination.

Evidence II-Hearsay

Evidence>Hearsay>Prior Statements by Witness (II.B.1)
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Question 33

When is a witness’s prior inconsistent statement not hearsay?

Answer 33

A witness’s prior inconsistent statement is not hearsay if it was made under penalty of perjury at a prior trial or proceeding, or in a deposition.

Evidence II-Hearsay

Evidence>Hearsay>Prior Inconsistent Statement (II.B.1.a)
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Question 34

What is ‘hearsay within hearsay’?

Answer 34

Hearsay within hearsay is an out-of-court statement that incorporates other hearsay within it. Hearsay within hearsay is only admissible if both the outer hearsay statement and the inner hearsay statement fall within exceptions to the hearsay rule.

Evidence II-Hearsay

Evidence>Hearsay>Hearsay Within Hearsay (II.A.6)
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Question 35

When are prior consistent statements NOT hearsay?

Answer 35

A prior consistent statement, regardless of whether made under oath, is not hearsay if it is offered under either of the following circumstances: (i) to rebut an express or implied charge that the witness is lying or exaggerating because of some motive, provided the prior consistent statement was made before the onset of the alleged motive to lie or exaggerate or (ii) to rehabilitate a witness whose credibility has been impeached on some non-character ground other than a charge of recent motivation to lie or exaggerate, such as an alleged inconsistency or sensory deficiency.

Evidence II-Hearsay

Evidence>Nonhearsay Statements–Prior Consistent Statement (II B 1 b)
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Question 36

Are statements by opposing parties considered hearsay?

Answer 36

Any statement made by a party and offered against that party is not hearsay.

Evidence II-Hearsay

Evidence>Nonhearsay Statements–Opposing Party Statements (II B 2)
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Question 37

Are adopitve statements admissible as statements by or attributable to an opposing party?

Answer 37

A party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive statement. [Fed. R. Evid. 801(d)(2)(B)].

Evidence II-Hearsay

Evidence>Statements That Are Not Hearsay Under the Federal Rules (II.B.2.a.3)
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Question 38

Are judicial and extrajudicial statements admissible as statements by or attributable to an opposing party?

Answer 38

Formal judicial statements (in pleadings, responses to requests to admit, stipulations) are conclusive; informal judicial statements made during testimony can be explained; extrajudicial (evidentiary) statements are not conclusive and can be explained. A formal judicial statement in one proceeding may be admissible as an extrajudicial or evidentiary statement in another proceeding. (Plea of guilty to traffic infraction admissible in civil action on same facts.) A formal judicial statement that is withdrawn may in that same action become an informal statement (statements in original answer admissible though superseded by amendment). A withdrawn plea of guilty in a criminal case is not, however, admissible against a defendant in any civil or criminal proceeding. [Fed. R. Evid. 410].

Evidence II-Hearsay

Evidence>Statements That Are Not Hearsay Under the Federal Rules (II.B.2.a.2)
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Question 39

Is personal knowledge required to qualify as a statement by or attributable to an opposing party?

Answer 39

Lack of personal knowledge does not necessarily disqualify a party’s statement (e.g., president of defendant company said, “My company has investigated the matter thoroughly and the reports indiciate that we were negligent”). In fact, an opposing party’s statement may be predicated on hearsay.

Evidence II-Hearsay

Evidence>Statements That Are Not Hearsay Under the Federal Rules (II.B.2.a.1)
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Question 40

Co-Parties––Insufficient relationship. Vicarious statement admissible?

Answer 40

Statements of a party are not receivable against her co-plaintiffs or co-defen- dants merely because they happen to be joined as parties to the action. If there are two or more parties, the admission of one is receivable against her but, in the absence of authority, not against her co-party.

Evidence II-Hearsay

Evidence>Hearsay>Nonhearsay Statements under Federal Rules>Admissions by Party Opponent>Adoptive Admissions>Vicarious Statements>Co-Parties–Insufficient Relationship (II.B.2.b.1)
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Question 41

Authorized Spokesperson. Vicarious statement admissible?

Answer 41

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. [Fed. R. Evid. 801(d)(2)(C)]

Evidence II-Hearsay

Evidence>Hearsay>Nonhearsay Statements under Federal Rules>Admissions by Party Opponent>Adoptive Admissions>Vicarious Statements>Authorized Spokesperson (II.B.2.b.2)
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Question 42

What relationships could lead to vicarious admissions?

Answer 42

1) Co-Parties—Insufficient Relationship
2) Authorized Spokesperson
3) Principal-Agent
4) Partners
5) Co-Conspirators
6) Privies in Title and Joint Tenants—State Courts Only
7) Preliminary Determination of Agency or Conspiracy—Court Must Consider Contents of Hearsay Statement

Evidence II-Hearsay

Evidence>Hearsay>Nonhearsay Statements under Federal Rules>Admissions by Party Opponent>Adoptive Admissions>Vicarious Statements (II.B.2.b.)
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Question 43

What is a vicarious admission?

Answer 43

A declarant’s statement may be attributable to a party because of the relationship between them.

Evidence II-Hearsay

Evidence>Hearsay>Nonhearsay Statements under Federal Rules>Admissions by Party Opponent>Adoptive Admissions>Vicarious Statements (II.B.2.b.)
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Question 44

When is silence considered an admission?

Answer 44

If a party fails to respond to accusatory statements where a reasonable person would have spoken up, his silence may be considered an implied admission.

Requirements:
(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.

• 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.

Evidence II-Hearsay

Evidence>Hearsay>Nonhearsay Statements under Federal Rules>Admissions by Party Opponent>Adoptive Admissions>Silence (II.B.2.a.3.a.)
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Question 45

How is a declarant determined to be unavailable?

Answer 45

A declarant is unavailable if:

(i) He is exempted from testifying because the court rules that a privilege applies;
(ii) He refuses to testify concerning the statement despite a court order to do so;
(iii) He testifies to not remembering the matter;
(iv) He is unable to present or testify because of death or physical or mental illness; or
(v) He is absent (eg beyond the reach of the court’s subpoena) and the statement’s proponent has been unable to procure his attendance or testimony by process or other reasonable means. If the declarant cannot attend the trial or hearing but is able to give deposition testimony, he is considered to be an available witness, except with respect to the “former testimony” and “forfeiture by wrongdoing” exceptions.

Evidence II-Hearsay

Evidence>Unavailability Defined (page 127)
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Question 46

What must courts consider when determining agency or conspiracy in terms of hearsay statements?

Answer 46

Before an out-of-court statement is admissible as a vicarious statement of an opposing party, the court must make preliminary determinations of the declarant’s relationship with the party against whom the statement is being offered. When making a determination of (i) the declarant’s authority to make the statement, (ii) the existence and scope of an agency relationship, or (iii) the existence of a conspiracy and participation by the declarant and the party, the court must consider the content of the offered statement, but the statement alone is not sufficient to establish the required relationship or authority.

Evidence II-Hearsay

Evidence>Preliminary Determination of Agency (page 126)
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Question 47

Is former testimony admissible?

Answer 47

The testimony of an now-unavailable witness given 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. 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 to cross-examination.

Evidence II-Hearsay

Evidence>Former Testimony (page 127)
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Question 48

Does the former testimony have to be under oath?

Answer 48

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

Evidence II-Hearsay

Evidence> Hearsay Exceptions - Declarant Unavailable (II.C.2.d)
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Question 49

What is the rule about parties ability to develop testimony at a prior hearing if is used in a current trial?

Answer 49

The party against whom the former testimony is offered (or 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.

Evidence II-Hearsay

Evidence> Hearsay Exceptions - Declarant Unavailable (II.C.2.c)
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Question 50

What is the matter requirement for former testimony?

Answer 50

The former testimony is admissible upon any trial in the same or another action of the same matter. Again, the sole purpose of this requirement is to ensure that the party against whom the transcript of testimony is offered had an adequate opportunity to cross-examine the unavailable witness on the relevant issues.

Evidence II-Hearsay

Evidence> Hearsay Exceptions - Declarant Unavailable (II.C.2.b)
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Question 51

What is the requirement of Identity of Parties under former testimony?

Answer 51

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. The requirement of identity of parties is intended merely to ensure that the party against whom the testimony is offered had an adequate opportunity and motive to cross-examine the witness.

Evidence II-Hearsay

Evidence> Hearsay Exceptions - Declarant Unavailable (II.C.2.a)
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Question 52

How do you use former testimony in criminal proceedings?

Answer 52

It has been argued that the use in a criminal proceeding of former testimony from some prior trial violates the defendant’s constitutional right to con and cross-examine all adverse witnesses. However, the Supreme Court has rejected this argument, holding that there is no violation of an accused’s right of conation, as long as: (1) The accused or his attorney was present and had the opportunity to cross_x0002_examine at the time the testimony was given (e.g., at a preliminary examination or a former trial for the same offense); and (2) The witness, whose former testimony is sought to be used, is now unavailable, despite bona fide efforts by the prosecution to produce him.

Evidence II-Hearsay

Evidence- Hearsay Statements- Declarant Unavailable
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Question 53

What is the risk of civil liability?

Answer 53

Under the Federal Rules, statements ing the declarant to civil liability are specifically admissible

Evidence II-Hearsay

Evidence- Hearsay Statements- Declarant Unavailable
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Question 54

What are the requirements of the statement?

Answer 54

To qualify as an exception to the hearsay rule, a statement against interest must meet (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.

Evidence II-Hearsay

Evidence- Hearsay Statements- Declarant Unavailable
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Question 55

What are statements against interest?

Answer 55

A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary, proprietary, or penal interest when made. To be admissible under the statement against interest exception, the statement must have been so against the declarant’s pecuniary or proprietary interest, or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability, that a reasonable person in the declarant’s position would have made the statement only if she believed it to be true. [Fed. R. Evid. 804(b)(3)] The statement against interest differs most
significantly from an opposing party’s statement in that, under the statement against interest exception, the statement must be against interest when made, and the declarant whose statement is admitted may be a stranger to the litigation rather than a party.

Evidence II-Hearsay

Evidence- Hearsay Statements- Declarant Unavailable
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Question 56

Statement need not have been made before controversy

Answer 56

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.

Evidence II-Hearsay

Evidence>Hearsay Exceptions > Declarant Unavailable
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Question 57

Statements of Personal or Family History

Answer 57

Statements concerning birth, marriage, divorce, death, relationship, etc., are admissible under an exception to the hearsay rule because hearsay statements concerning family history are often necessary to prove the facts of people’s everyday lives

Evidence II-Hearsay

Evidence>Hearsay Exceptions > Declarant Unavailable
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Question 58

Dying Declarations - Firsthand Knowledge Requirement

Answer 58

To fall within the dying declaration exception, the statement must be based on the declarant’s firsthand knowledge of what happened. A statement framed as an opinion is not admissible unless based on the declarant’s perceptions (e.g., unsupported speculation as to the assailant’s identity or motive would not qualify)

Evidence II-Hearsay

Evidence>Hearsay Exceptions > Declarant Unavailable
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Question 59

Dying Declarations

Answer 59

In a prosecution for homicide or a civil action, a statement made by the now-unavailable declarant while believing his death was imminent that concerns the cause or circumstances of what he believed to be his impending death is admissible.

The declarant need not actually die, but he must be unavailable at the time the statement is offered.

Evidence II-Hearsay

Evidence>Hearsay Exceptions > Declarant Unavailable
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Question 60

With regards to personal and family history, what are some other ways to prove pedigree?

Answer 60

Personal and family history may be proven by the use of other exceptions to the hearsay rule. For example, it my be proven by: vital statistics [Fed. R. Evid. 803(9)]; records of religious organizations [Fed. R. Evid. 803(11)]; marriage certificates and other certificates [Fed. R. Evid. 803(12)]; family records [Fed. R. Evid. 803(13)]; statements in property documents [Fed. R. Evid. 803(15)]; reputation [Fed. R. Evid. 803(19)]; and judgments [Fed. R. Evid. 803(23)]. For these exceptions, the declarant’s availability is immaterial.

Evidence II-Hearsay

Evidence>Hearsay Exceptions-Declarant Unavailable (II.C.5.d)
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Question 61

Fill in the blank: With regards to statements of personal or family history, the declarant’s statements may be based either on her own ____ ____ of the facts involved or on her knowledge of family ____.

Answer 61

The declarant’s statements may be based wither on her own personal knowledge of the facts involved or on her knowledge of family reputation.

Evidence II-Hearsay

Evidence>Hearsay Exceptions-Declarant Unavailable (II.C.5.c)
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Question 62

Fill in the blank: With regards to statements of personal or family history, the now-unavailable declarant usually must be a ____ ____.

Answer 62

With regards to statements of personal or family history, the now-unavailable declarant usually must be a family member. The now-unavailable declarant must be a member of the family in question or otherwise intimately associated with the family. Most jurisdictions require that the declarant be related by blood or marriage to the family whose history is involved. Some jurisdictions, and 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). [Fed. R. Evid. 804(b)(4)]

Evidence II-Hearsay

Evidence>Hearsay Exceptions-Declarant Unavailable (II.C.5.b)
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Question 63

When are statements of a person (now unavailable as a witness) admissible when offered against a party who has engaged or acquiesced in wrongdoing that procured the declarant’s unavailability as a witness?

Answer 63

The statements of a person (now unavailable as a witness) are admissible when offered against a party who has engaged or acquiesced in wrongdoing that procured the declarant’s unavailability as a witness, if the party intended to cause that result [Fed. R. Evid. 804(b)(6)]. In effect, a party forfeits his right to object on hearsay grounds to the admission of an unavailable declarant’s statements when the party’s deliberate wrongdoing procured the unavailability of the declarant as a witness.

Evidence II-Hearsay

Evidence>Hearsay Exceptions- Declarant Unavailable (II.C.6)
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Question 64

What does “statement” mean?

Answer 64

A “statement” against interest for purposes of the exception means a single self-inculpatory remark, not an extended declaration. Thus, if a person makes a declaration containing statements that are against his interest and statements that are not, the statements that are not against interest are not admissible, even though they are part of a broader narrative that is on the whole against the declarant’s interest. [Williamson v. United States, 512 U.S. 594 (1994)]

Evidence II-Hearsay

Evidence>Hearsay Exceptions>Declarant Unavailable>Statements Against Interest (C.3.d)
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Question 65

What does the Federal Rule require, in criminal cases, in order to admit statements that the declarant to penal liability?

Answer 65

Corroborating circumstances indicating the trustworthiness of such statements. (Fed. R. Evid. 804(b)(3)

Evidence II-Hearsay

Evidence>Hearsay Exceptions>Declarant Unavailable>Statements Against Interest (C.3.c)
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Question 66

Why may the confession of a co-defendant implicating herself and the accused not be admissible?

Answer 66

Because of conation problems.

Evidence II-Hearsay

Evidence>Hearsay Exceptions>Declarant Unavailable>Statements Against Interest (C.3.c.2)
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Question 67

What may states, that do no allow statements against penal interest, not do where to do so would deprive the accused of a fair trial?

Answer 67

States that do not allow statements against penal interest may not exclude the confession of a third party where to do so would deprive the acused of a fair trial. [Chambers v. Mississippi, 410 U.S. 284 (1973)]

Evidence II-Hearsay

Evidence>Hearsay Exceptions>Declarant Unavailable>Statements Against Interest (C.3.c.1)
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Question 68

What does “under the stress of excitement” mean?

Answer 68

The declaration must have been made while the declarant was under the stress of the
excitement (i.e., before the declarant had time to reflect upon it). The time element is
the most important factor in determining whether the declaration was made under the
stress of the excitement. If a declaration is made while the event is still in progress, it is
easy to find that the excitement prompted the utterance. Declarations made shortly after
the event have sometimes been excluded as mere narrative of past events. But when the
declaration is made so near to the time of the occurrence as to negate any probability of
fabrication, it is usually admissible.

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s
Availability Immaterial>Excited Utterances (II.D.1)
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Question 69

What is a startling event?

Answer 69

Some occurrence startling enough to produce a nervous excitement

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s
Availability Immaterial>Excited Utterances (II.D.1)
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Question 70

What are the two requirements for a statement to

qualify as an excited utterance?

Answer 70

1. A startling event (the declaration must relate to the startling event)
2. Declaration must be made while under stress of excitement

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s
Availability Immaterial>Excited Utterances (II.D.1)
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Question 71

What is an Excited Utterance?

Answer 71

A declaration made by a declarant during or soon after a startling event. The
declaration must be made under the stress of excitement produced by the startling event. The
declaration must relate to the startling occurrence. The spontaneousness
of such a declaration and the consequent lack of opportunity for reflection and deliberate
fabrication provide an adequate guarantee of its trustworthiness.

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s
Availability Immaterial>Excited Utterances (II.D.1)
,

Question 72

When is Present State of Mind Admissible?

Answer 72

1) State of Mind Directly in Issue and Material to the Controversy
Declarations of existing state of mind are admissible when the declarant’s state of mind is directly in issue and material to the controversy.

Example: In a case where the domicile of Edwina is material, Edwina’s statement that “I plan to live in Colorado for the rest of my life” is admissible.
2) Offered to Show Subsequent Acts of Declarant
Declarations of existing state of mind are admissible if they are declarations of intent offered to show subsequent acts of the declarant; i.e., a declaration of intent to do something in the future is admitted as circumstantial evidence tending to show that the intent was carried out.

Examples: 1) The location of X on May 15 is relevant. W may testify that she heard X say on May 8 that “I intend to go to Denver next week.”

Evidence II-Hearsay

Evidence>Hearsay Exceptions-Declarants Availability Immaterial (D.3.b.)
,

Question 73

When is Present State of Mind generally NOT admissible?

Answer 73

The 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.

Example: Declarant’s out-of-court statement, “I think I left the keys in the car,” may not be introduced for the purpose of proving that he left the keys in the car. Statements of memory or belief are admissible, however, to prove facts remembered or believed concerning the validity or terms of declarant’s will.

Evidence II-Hearsay

Evidence>Hearsay Exceptions-Declarants Availability Immaterial ()
,

Question 74

Is a declarant’s statement of a present bodily condition admissible? Who can the statement be made to?

Answer 74

Declarations of present bodily condition are admissible as an exception to the hearsay rule. They may be made to a spouse, relative, friend, physician, or any other person.

Such declarations to a physician are admissible if they relate to symptoms, including the existence of pain. Because they are contemporaneous with the symptoms, they are more reliable than present testimony based upon recollection.

Evidence II-Hearsay

Evidence>Statement of Declarant’s Present Bodily Condition (II.D.4.a)
,

Question 75

When is a statement made for medical diagnosis or treatment—including past conditions—admissible?

What is the rationale for this exception?

Answer 75

A statement that describes a person’s medical history, past or present symptoms, or their inception or general cause if admissible as an exception to the hearsay rule if it was made for—and was reasonably pertinent to—medical diagnosis or treatment.

The rationale for this exception is that a declarant has a strong motive to tell the truth when seeking medical assistance.

Evidence II-Hearsay

Evidence>Statement Made for Medical Diagnosis or Treatment—Includes Past Conditions (II.D.4.b)
,

Question 76

What are the two hearsay exceptions involving statements of physical condition?

Answer 76

(1) statements of the declarant’s present physical condition, regardless of the purpose for which the statement is made.
(2) statements made for the purpose of obtaining medical diagnosis or treatment.

Whether a declarant’s statement will fall within one or the other of these exceptions depends on the purpose for which it was made.

Evidence II-Hearsay

Evidence>Declarations of Physical Condition (II.D.4)
,

Question 77

The cause or source of the injury must be ______ _______ in order for a statement made for medical diagnosis to be admissible.

Answer 77

The cause or source of the injury must be reasonably pertinent to diagnosis or treatment to be admissible under this exception.

Statements assigning fault or identifying a perpetrator are generally not pertinent.

Evidence II-Hearsay

Evidence>Cause or Source of Injury—Must be Pertinent (II.D.4.b.1)
,

Question 78

Hearsay, Medical diagnosis or treatment: Can they only be made by a physician?

Answer 78

No, Although a physician is usually who makes such statements, they can be from others as long as they were clearly made for, and pertinent to, a medical diagnosis.

Evidence II-Hearsay

Evidence>Hearsay Exceptions– Declarant’s Avialability Immaterial (II.D.4.b.1.a)
,

Question 79

Hearsay, Medical diagnosis or treatment: Declarant Seeking Help for Someone Else

Answer 79

Statements may be from bystanders or family members may be admitted as long as they were clearly made to obtain a diagnosis or treatment.

Evidence II-Hearsay

Evidence>Hearsay Exceptions– Declarant’s Avialability Immaterial (II.D.4.b.1.a)
,

Question 80

Hearsay, Medical diagnosis or treatment: Statement by Child Abuse Victims Medical diagnosis or treatment

Answer 80

Many federal courts will admit statements in which a child identifies his abuser in the course of medical treatment.

Evidence II-Hearsay

Evidence>Hearsay Exceptions– Declarant’s Avialability Immaterial (II.D.4.b.1.a)
,

Question 81

Business Records - Records of a Regularly Conducted Activity

Business Duty Rule

Answer 81

(1) ANY Writing or Record (memo, report, bill, NO oral)
(2) Refering to act, transaction, occurrence, or event
(3) Made by a business or organization (profit or nonprofit)
(4) Involving a regularly conducted activity of the business
(5) Made at or near the time of event or condition it describes
(6) Involving event recorded or reported by someone with knowledge and duty to report (KNOWLEDGE + DUTY)
(7) A record that the business REGULARLY makes
(8) Indicating trustworthiness

Evidence II-Hearsay

Evidence > Hearsay Exceptions - Declarant’s Availability Immaterial (II.D.5)
,

Question 82

Rationale for Business Records

Answer 82

Rationale lies on the belief that special reliability is provided by the regularity with which the business records are kept, their use and importance in the business, and the incentive of employees to keep accurate records or risk employment penalties.

If a record qualifies as a business record > it may be admitted without calling the author of the record or the employee with personal knowledge of the recorded event

It makes no difference that the record is self-serving and offered into evidence by the party whose business made the record.

Evidence II-Hearsay

Evidence > Hearsay Exceptions - Declarant’s Availability Immaterial (II.D.5.a.)
,

Question 83

Statements Made to Doctor Employed to Testify

Answer 83

Rule 803(4) permits statements made to a doctor employed to testify in the case.

Evidence II-Hearsay

Evidence > Hearsay Exceptions - Declarant’s Availability Immaterial (II.D.4.b.4)
,

Question 84

What are the elements of the business records exception?

Answer 84

Must be a record for a business and the record must be an entry made in the regular course of business.

Evidence II-Hearsay

Evidence>Hearsay (II.D.5.b)
,

Question 85

What is considered an “entry made in the regular course of business” for the business records exemption?

Answer 85

It must appear that the record was made in the course of a regularly conducted business activity, and that it was customary to make the type of entry involved (i.e., that the entrant had a duty to make the entry).

Evidence II-Hearsay

Evidence>Hearsay (II.D.5.b.2)
,

Question 86

What is considered a business for the business records exemption?

Answer 86

The exception applies to records kept by any “business, organization, occupation, or calling, whether or not for profit.” Thus, the definition would include records made by churches, hospitals, schools, etc. [Fed. R. Evid. 803(6)]

Evidence II-Hearsay

Evidence>Hearsay (II.D.5.b.1)
,

Question 87

When does a police report qualify as a business activity?

Answer 87

Police reports may qualify as business records in civil cases.

Generally, police reports are not admissible against a criminal defendant under the business records exception.

However, some jurisdictions admit police reports if they contain only routine information rather than observations or opinions of the officer.

Evidence II-Hearsay

Evidence>Hearsay>Exceptions>Business Records Exception > Police Reports
,

Question 88

What is the Palmer v. Hoffman rule?

Answer 88

A similar aspect of the “business activity requirement was raised in the case of Palmer v. Hoffman, 318 U.S. 109 (1943). In that case, railroad personnel, in accordance with their regular practice, prepared a report concerning an accident in which the railroad was involved. The United States Supreme Court held that the report was not admissible at trial because it was prepared in anticipation of litigation, and railroading, not litigating, was the railroad’s primary business.

Evidence>Hearsay Exceptions - Declarant’s Availability Immaterial>Records of a Regularly Conducted Activity - Business Records>Elements of Business Records Exception>Business Activity>The Rule of Palmer v. Hoffman - Records Prepared for Litigation

”

Question 89

What is the narrow interpretation of Palmer v. Hoffman?

Answer 89

Many courts have interpreted the rule of Palmer v. Hoffman narrowly. These courts have generally excluded such a self-serving employee accident report only when the report was prepared primarily for litigation and the author of the report had a strong motive to misrepresent.

Evidence>Hearsay Exceptions - Declarant’s Availability Immaterial>Records of a Regularly Conducted Activity - Business Records>Elements of Business Records Exception>Business Activity>The Rule of Palmer v. Hoffman - Records Prepared for Litigation>Narrow Interpretation

”

Question 90

What type of discretion have the Federal Rules given the trial court because of Palmer v. Hoffman?

Answer 90

The Federal Rules have dealt with the problem of Palmer v. Hoffman by granting the trial court discretion to exclude any business record if the source of information or methods or circumstances of preparation indicate the record lacks trustworthiness. [Fed. R. Evid. 803(6)]

Evidence>Hearsay Exceptions - Declarant’s Availability Immaterial>Records of a Regularly Conducted Activity - Business Records>Elements of Business Records Exception>Business Activity>The Rule of Palmer v. Hoffman - Records Prepared for Litigation>Federal Rules - Court’s Discretion

”

Question 91

When is a hospital record admissible?

Answer 91

Entries in hospital records are generally admissible to the extent that they are related to the medical diagnoses or treatment of the patient (primary business of the hospital).

Evidence II-Hearsay

Evidence>Hearsay>Exceptions>Business Records Exception > Hospital Records
,

Question 92

What is required for a record to be considered a business activity record?

Answer 92

The record must have been maintained in conjunction with a business activity

Evidence II-Hearsay

Evidence>Hearsay>Exceptions>Business Records Exception > Business Activity
,

Question 93

Who must have personal knowledge of the matter(s) in a business record?

Answer 93

Either the entrant (the one who created the record) or someone with a business duty to transmit such matters to the entrant must have personal knowledge of the matter(s) in the business record.

Evidence II-Hearsay

Evidence>Hearsay>Exceptions>Business Records (II.D.5.3)
,

Question 94

Must either the entrant or informant be called to testify in regards to a business record?

Answer 94

Neither party must be called as a witness before a business record may be admitted into evidence.

Evidence II-Hearsay

Evidence>Hearsay>Exceptions>Business Records (II.D.5.3.a)
,

Question 95

What business duties do an entrant and informant have with respect to matters described in a business record?

Answer 95

It is assumed that the informant has a business duty to report the matter accurately and that the entrant has a business duty to accurately record the informant’s report.

Evidence II-Hearsay

Evidence>Hearsay>Exceptions>Business Records (II.D.5.3.a)
,

Question 96

When does a business duty to report a matter exist between a business record entrant and informant?

Answer 96

This business duty can be assumed to exist any time a business record entrant and informant are employees of the same business.

Evidence II-Hearsay

Evidence>Hearsay>Exceptions>Business Records (II.D.5.3.a)
,

Question 97

True/False? : Under the Business Records Exception to the rule of hearsay, the person making the business record entries need not have personal knowledge of the event.

Answer 97

TRUE. The informant was under a business duty to report accurately, and the recorder was under a business duty to properly record the information.

Evidence II-Hearsay

Evidence > Elements of the Business Records Exception > Personal Knowledge (II.D.5.b.3.a)
,

Question 98

The business record must consist of matters within the ________ of the entrant or within the personal knowledge of someone with a ___________ to transmit such matters to the entrant.

Answer 98

personal knowledge; business duty

Evidence II-Hearsay

Evidence > Elements of the Business Records Exception > Personal Knowledge (II.D.5.b.3)
,

Question 99

What is “an entry made near time of event”?

Answer 99

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.

Evidence II-Hearsay

Evidence>Hearsay Exceptions (II.D.5.b.4)
,

Question 100

Is a recorded statement admissible under other exceptions?

Answer 100

Yes, this involves a two phase process:
1) The business records exception serves as a vehicle for demonstrating the bare fact that the statement was made;
2) the second phase involves reference to some independent ground of admissibility of the statement to establish the truth
of assertions contained in it.

Example: A police report entry is receivable where the informant was a party and his statement would be admissible as an opposing party’s statement. Note too that certain police reports may be admissible under the public records exception (see 7.a., infra).

Evidence II-Hearsay

Evidence>Hearsay Exceptions (II.D.5.b.3.c)
,

Question 101

Must an informant with personal knowledge be under a business duty to convey information in a business record?

Answer 101

An entry is admissible as a business record only when the record was made by the employee recorder on information obtained directly by him or imparted to him by an informant who was under a business duty to convey such information.

Evidence II-Hearsay

Evidence>Hearsay Exceptions (II.D.5.b.3.b)
,

Question 102

Can a business record be excluded if it is deemed not trustworthy? Who carries the burden to prove trustworthiness?

Answer 102

Yes. The court may exclude an otherwise qualifying business record if the opponent makes a showing that the source of information, method, or circumstances of preparation indicate a lack of trustworthiness. The burden is on the opponent to show this lack of trustworthiness.

Evidence II-Hearsay

Evidence> Hearsay Exceptions-Declarant’s Availability Immaterial-Business Record Elements (II.D.5.b.7)
,

Question 103

Does the “Entrant” of the original record need to be available to testify about the business record for the purpose of the business records exception?

Answer 103

No. For the business record to be admissible, the person who actually made the entry need not be the witness testifying about the record.

Evidence II-Hearsay

Evidence> Hearsay Exceptions-Declarant’s Availability Immaterial-Business Record Elements (II.D.5.b.6)
,

Question 104

What is the “Authentication” requirement for the business records exception to the rule against hearsay?

Answer 104

The authenticity of the record must be estbalished. Usually, the record is authenticated by having the custodian of the record or another qualified witness testify to the a) identity of the record and the b) mode of its preparation. However, a foundation witness is not required (record is self-atuhenticating) if the custodian or other qualified person certifies IN WRITING that the record meets the requirements of the business records exception and the adverse party receives reasonable written notice. [Fed. R. Evid. 803(6), 902(11)] *Normally, the original/first permanent record of the transaction must be introduced, but if the records to be introduced are voluminous, summaries or compliations may be admitted.

Evidence II-Hearsay

Evidence> Hearsay Exceptions-Declarant’s Availability Immaterial-Business Record Elements (II.D.5.b.5)
,

Question 105

Can business records be used to show the nonexistence of a matter?

Answer 105

Yes. At common law, business records were admitted only to prove the facts contained therein. They were not admissible for negative purposes–i.e., to show that notransaction had taken place.

However, the modern trend allows business records to be used to prove the nonoccurrence or the nonexistence of a matter if it was the regular practice of the business to record all such matters. [Fed R. Evid. 803(7)]. For example, the lack of any entry showing payment in a business record may be evidence that in fact no payment was made.

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s Availability Immaterial>Records of a Regularly Conducted Activity–Business Records>Use of Business Records as Evidence of No Transaction (II. D. 5. c.)
,

Question 106

(1) Can a witness have their memory refreshed?

(2) What happens if a witness on the stand cannot have their memory revived?

Answer 106

(1) Yes. Witnesses are permitted to refresh their memories by looking at almost anything–either before or while testifying. This is called refreshing recollection.
(2) If the witness’s memory cannot be revived, a party may wish to introduce a memorandum that the witness made or adopted at or near the time of the event. Use of the record to prove the facts contained therein raises a hearsay problem; but if a proper foundation can be laid, the contents of the record may be introduced into evidence under the recorded recollection exception to the hearsay rule. The rationale is that a record made by an observer when the facts were still fresh in her mind is probably more reliable than her testimony on the stand–despite the fact that cross-examination is curtailed.

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s Availability Immaterial>Recorded Recollection (II. D. 6.)
,

Question 107

What are the foundation requirements?

Answer 107

The foundation for receipt of the record into evidence must include proof that:

(i) The witness at one time had personal knowledge of the facts recited in the record;
(ii) The record was made by the witness or made under her direction or it was adopted by the witness;
(iii) The record was timely made when the matter was fresh in the mind of the witness;
(iv) The record accurately reflects the witness’s knowledge (i.e., the witness must indicate that the record was accurate when it was made); and
(v) The witness has insufficient recollection to testify fully and accurately.

If admitted, the record may be read into evidence and heard by the jury, but the document itself is not received as an exhibit unless offered by the adverse party. [Fed. R. Evid. 803(5)].

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s Availability Immaterial>Recorded Recollection (II. D. 6. a.)
,

Question 108

What types of Public Records and Reports can be admitted?

Answer 108

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.
[Fed. R. Evid. 803(8); Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988)]

Evidence II-Hearsay

EVIDENCE>Official Records and Other Official Writings-What May Be Admitted
,

Question 109

Why is there a hearsay exception in evidence for Public Records and Reports?

Answer 109

The exception for public records and reports is necessary to avoid having public officers leave their jobs constantly to appear in court and testify to acts done in their official capacity, especially since the entrant could probably add nothing to the record.

Evidence II-Hearsay

EVIDENCE>Official Records and Other Official Writings-Public Records and Reports
,

Question 110

Just a heading title in outline.

Answer 110

Just a heading title in outline.

Evidence II-Hearsay

EVIDENCE> Official Records and Other Official Writings
,

Question 111

What are the requirements for admissibility of public records and reports?

Answer 111

The requirements for admissibility for public records and reports are the (1) Duty to Record, the writing must have been made by, and within the scope of duty of, the public employee (2) Entry Near Time of Event, the writing must have been made at or near the time of the act, condition, or event (3) May Be Excluded If Not Trustworthy—Burden on Opponent, the court may exclude an otherwise qualifying public record if the opponent makes a showing that the source of information or other circumstances indicate a lack of trustworthiness.

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s Availability Immaterial (7.a.2)
,

Question 112

For admissibility of public records and reports, what does the requirement “entry near time of event” mean?

Answer 112

The writing must have been made at or near the time of the act, condition, or event.

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s Availability Immaterial (7.a.2.b)
,

Question 113

For admissibility of public records and reports, what is the duty to record?

Answer 113

The writing must have been made by, and within the scope of duty of, the public employee.

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s Availability Immaterial (7.a.2.a)
,

Question 114

What statement is admissible to show an absemce of a public record?

Answer 114

Statements from a custodian of public records (or any other qualified person) that explain that a search has been performed but no records could be located are admissible to prove that a matter was not recorded and may be inferred that the matter did not occur.

Evidence II-Hearsay

Evidence>Official Records and Other Official Writings (II.D.7.b)
,

Question 115

What are the admissible records of vital statistics?

Answer 115

Records of births, deaths, and marriages are admissible

Evidence II-Hearsay

Evidence>Official Records and Other Official Writings (II.D.7.b)
,

Question 116

When may a court exclude a public record?

Answer 116

A court may exclude an otherwise admissible public record if the opponent shows that there is a lack of trustworthiness

Evidence II-Hearsay

Evidence>Official Records and Other Official Writings (II.D.7.a.2.c)
,

Question 117

What makes a judgement admissible?

Answer 117

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

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s Availability Immaterial (II.D.7.d)
,

Question 118

When are prior criminal convictions admissible?

Answer 118

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. A felony conviction is defined as crimes punishable by death or imprisonment in excess of one year.

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s Availability Immaterial (II.D.7.d.1))
,

Question 119

When are prior criminal convictions admissible against the accused and others?

Answer 119

In a criminal case, the government may use a prior conviction for this purpose only against the accused. Against persons other than the accused, the government may use prior convictions only for impeachment.

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s Availability Immaterial (II.D.7.d.1).a)
,

Question 120

What is the limitation of certifications from custodian of records in criminal cases?

Answer 120

Because a criminal defendant has a right to con and cross-examine the witnesses against him (see F., infra), he may demand the presence of the custodian or other official who prepared the certification. Thus, this type of testimonial certificate is admissible only if the prosecutor provides the defendant with written notice at least 14 days before trial and the defendant does not object in writing within seven days of receiving the notice (unless the court sets a different timeline).

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s Availability Immaterial (II.D.7.c.1))
,

Question 121

Why is evidence of prior criminal acquittal excluded?

Answer 121

A criminal acquittal merely establishes that the state did not prove the defendant was guilty beyond a reasonable doubt, whereas the evidentiary standard is lower in civil cases.

Evidence II-Hearsay

Evidence>prior criminal acquittal (D.7.d.2)
,

Question 122

Why are former civil judgments inadmissible in criminal proceeding?

Answer 122

A civil judgment is clearly inadmissible in a subsequent criminal proceeding because of the differing standards of proof.

Evidence II-Hearsay

Evidence>judgment in former civil case (D.7.d.3.a)
,

Question 123

What is the prior felony convictions exception to hearsay evidence?

Answer 123

This exception 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 such cases. (This exception still to character evidence prohibition).

Evidence II-Hearsay

Evidence>HEarsay exceptions (D.7.d.1.b)
,

Question 124

When are learned treatises admissible?

Answer 124

Many courts do not admit statements from standard scientific treatises or authoritative works as substantive proof, limiting admissibility to use as impeachment of the qualification of an expert witness. The Federal Rules of Evidence provide an exception to the hearsay rule for learned treatises, providing for the substantitve 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.

Even under this exception, however, the relevant portion of the treatise is not actually shown to the jury; it is admissible by being read into the record.

Evidence II-Hearsay

Evidence>Learned Treatises (II.D.10)
,

Question 125

When are civil judgments admissible in subsequent civil proceedings?

Answer 125

Civil judgments are generally inadmissible in subsequent civil proceedings. However, certain statutory exceptions exist to this rule. For example, under the Federal Rules, a prior civil judgment is admissible as proof of matters of personal, family, or general history, or boundaries of land, if the matter could otherwise be proven by reputation evidence. Fed. R. Evid. 803(23).

Evidence II-Hearsay

Evidence>Generally Inadmissible in Civil Proceeding (II.D.7.d.3.b)
,

Question 126

When are documents affecting an interest in property admissible?

Answer 126

A statement in a document affecting an interest in property is admissible as a hearsay exception if the statement is relevant to the document’s purpose. However, this exception will not apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the document. Fed. R. Evid. 803(15).

Evidence II-Hearsay

Evidence>Documents Affecting Property Interests (II.D.9)
,

Question 127

When are statements in ancient documents admissible?

Answer 127

Statements in any authenticated documented prepared before January 1, 1998, are admissible. Fed. R. Evid. 803(16).

Evidence II-Hearsay

Evidence>Ancient Documents (II.D.8)
,

Question 128

What types of reputation evidence are admissible hearsay?

Answer 128

(1) reputation evidence concerning a person’s character [Fed. R. Evid. 803(21)];
(2) reputation evidence concerning someone’s personal or family history [Fed. R. Evid. 803 (19)]; or
(3) concerning land boundaries or the community’s general history [Fed. R. Evid. 803(20)]

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s availability Immaterial>Reputation (II.D.11)
,

Question 129

When are Market Reports and other published compilations admissible?

Answer 129

They are admissible IF they are generally used AND relied upon by:

(1) the public, OR
(2) persons in a particular occupation

[Fed. R. Evid. 803(17)]

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s availability Immaterial>Market Reports (II.D.13)
,

Question 130

What types of family records are admissible hearsay?

Answer 130

(1) statements of fact concerning personal or family history contained in family Bibles;
(2) genealogies;
(3) jewelry engravings; or
(4) engravings on urns or burial markers, or the like

[Fed. R. Evid. 803(13)]

Evidence II-Hearsay

Evidence>Hearsay Exceptions–Declarant’s availability Immaterial>Family Records (II.D.12)
,

Question 131

Even if a hearsay statement is not covered by specific exceptions, how can they still be admitted under the Federal Rules?

Answer 131

The Federal Rules provide a general catch-all exception for hearsay statements not covered by specific exceptions. In order to be admitted, there are three requirements:

1. “trustworthiness” factor
2. “necessity” factor
3. notice to adversary

[Fed. R. Evid. 807]

Evidence II-Hearsay

Evidence>Hearsay Exceptions – Residual “Catch-All” Exception of Federal Rules (II.E)
,

Question 132

What is the ‘notice to adversary’ factor?

Answer 132

The proponent must give notice in advance of trial to the adverse party as to the nature of the statement (including the and address of the declarant) so that the adversary has an opportunity to prepare to meet it.

Evidence II-Hearsay

Evidence>Residual “Catch-all” Exception of Federal Rules (II.E.3)
,

Question 133

What is the ‘necessity factor’?

Answer 133

The statement must be offered on a material fact, and must be more probative as to that fact than any other evidence which the proponent can reasonably produce so that the “interests of justice” will be served by its admission.

Evidence II-Hearsay

Evidence>Residual “Catch-all” Exception of Federal Rules (II.E.2)
,

Question 134

What are the constitutional clauses that issues can arise under?

Answer 134

The conation clause and the due process clause.

Evidence II-Hearsay

Evidence>Constitutional Issues (II.F)
,

Question 135

What is the conation clause?

Answer 135

In criminal cases, it may be argued that the use of hearsay evidence violates the accused’s right to “con” and cross-examine the witnesses against him. Note, however, that there generally is no Conation Clause problem if the hearsay declarant is present at the trial and is to cross-examination at that time.

Evidence II-Hearsay

Evidence>The Conation Clause (III.F.1.)
,

Question 136

Is a statement made in response to a police interrogation testimonial?

Answer 136

It depends! It depends on its primary purpose. In making this determination, courts objectively evaluate the circumstances of the encounter between the declarant and the police.

Evidence II-Hearsay

Evidence>statements made in the course of police interrogation (III.F.1.a.1.)
,

Question 137

List the four instances when (under the conation clause) a hearsay statement will not be admitted(even if it falls within a hearsay exception).

Answer 137

(i) The statement is offered against the accused in a criminal case;
(ii) The declarant is unavailable;
(iii) The statement was “testimonial” in nature; and
(iv) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial.

Evidence II-Hearsay

Evidence>Prior testimonial statement of unavailable witness (III.F.1.a.)
,

Question 138

Conation clause rights may be forfeited by wrongdoing

Answer 138

A defendant forfeits his Sixth Amendmnet right of conation by committing a wrongful act that was intended to keep the witness from testifying at trial.

Evidence II-Hearsay

Evidence >Hearsay>Constitutional Issues (II.F.1.A.2)
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Question 139

Affidavits or written reports of forensic analysis

Answer 139

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 (e.g., identifying narcotics seized from a suspect or matching a suspect to blood test results) are testimonial and thus may not be admitted into evidence unless the defendant has had an oppurtunity to cross-examine the author of the report. A conation violation cannot be avoided by offering the results of the analyst’s report through the testimony of the analyst’s supervisorwho played no role in conducting the tests. However, reports by a nontestifying analyst may be used for a nonhearsay purpose rather than to prove the truth of the report’s contents. Specifically, no conation violation occurs if a forensic expert, while testifying as to her independent analysis of data, makes only a general reference to a nontestifying analyst’s report (without reading the report to the jury) for the limited purpose of showing a partial bias for her opinion.

Evidence II-Hearsay

Evidence >Hearsay>Constitutional Issues (II.F.1.A.1.b)
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Question 140

To establish or prove events for later prosecution - testimonial

Answer 140

When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial (e.g., statements made by victim to police shortly after domestic violence incident, setting forth details of the incident). On the other hand, statements by a young child abuse victim to a school teacher about the abuse are not testimonial - even though the teacher has a statutory duty to report the abuse to law enforcement authorities - because the primary purpose of the conversation is protection of the child, not prosecution of the perpetrator.

Evidence II-Hearsay

Evidence >Hearsay>Constitutional Issues (II.F.1.A.1.a1)
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Question 141

To aid in ongoing emergency - not testimonial

Answer 141

If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of interrogation are nontestimonial. In determining whether an “ongoing emergency” existed at the time of the interrogation, courts consider various factors, including (i) the nature of the dispute (public or private); (ii) whether the perpetrator is still at large; (iii) the scope of the threat to the victim and to the public; and (iv) the type of weapon involved.

Evidence II-Hearsay

Evidence >Hearsay>Constitutional Issues (II.F.1.A.1.a1)
,

Question 142

How does ones Due Process RIght apply to state hearsay laws?

Answer 142

The Court has held that state hearsay rules and other exclusionary rules cannot be
applied where the effect would be to deprive an accused of her Fourteenth Amendment due process right to a fair trial.

Evidence II-Hearsay

Evidence>Hearsay>Consitutional Issues (II.F.2)
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Question 143

What is the ‘right to physically face witnesses’?

Answer 143

The Sixth Amendment guarantee of conation includes the right to physically face witnesses at trial.

However, the Court has also held that the right of conation is not absolute. A child witness in a sexual abuse case may testify via one-way closed circuit television without violating the defendant’s conation rights if the trial judge makes individual findings of probable trauma to the child from testifying in the defendant’s presence.

Evidence II-Hearsay

Evidence>Hearsay>Consitutional Issues (II.F.1.c)
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Question 144

Are nonhuman declarations considered hearsay?

Answer 144

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 a clock says) or to radar readings (produced by a machine) is NOT testifying to hearsay. Also, the behavior of a drug-sniffing dog in identifying a suspect is not hearsay.

Evidence>Hearsay>A Statement of the Rule>Nonhuman Declarations

”

Question 145

Is this hearsay?
On the issue of whether the traffic light was red or green, the witness testifies that he was told by a declarant that the light was green.

Answer 145

Yes.
(oral hearsay)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

”

Question 146

Is this hearsay?
On the issue of whether a glassine envelope contained heroin, the prosecution offers a crime laboratory report that the envelope contained heroin.

Answer 146

Yes. (Written hearsay.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

Question 147

Is this hearsay?
On the issue of whether Spano had been a resident of New York for one year prior to commencing his lawsuit, Spano offers the affidavit of Decla that Spano had lived in Buffalo for 10 years. (Written hearsay; under oath, but hearsay nonetheless.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

Answer 147

Yes. (Written hearsay; under oath, but hearsay nonetheless.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

Question 148

Is this hearsay?

On the issue of whether Yuckl was the child molester, a police officer testifies that when he asked the child-victim whether the perpetrator had a beard, the child nodded his head. (Hearsay by assertive conduct; nodding, which translates, “Yes, the man had a beard.”)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

”

Answer 148

Yes. (Hearsay by assertive conduct; nodding, which translates, “Yes, the man had a beard.”)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

Question 149

Is this hearsay?

On the issue of whether the painting sold to Harvey was actually a genuine Picasso, there is offered a dealer’s bill of sale describing the painting as a Picasso.

”

Answer 149

Yes. (Written hearsay.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

Question 150

Is this hearsay?

In a contract action, the written, executed contract is offered.

Answer 150

No. (Although an extra- judicial writing, it is not offered to prove the truth of matters asserted in it; legally operative fact.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

Question 151

Is this hearsay?

In an action for fraud, on the issue of defendant’s good faith in representing to plaintiff that a painting was a genuine Picasso, defendant offers a bill of sale from his art dealer describing the painting as a Picasso. (Offered to prove defendant’s good faith in repeating a representation; not offered to prove that the painting was in fact a Picasso. The evidence, in other words, was offered to show the impact of the dealer’s representation on the defendant’s state of mind, i.e., his belief.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

”

Answer 151

No. (Offered to prove defendant’s good faith in repeating a representation; not offered to prove that the painting was in fact a Picasso. The evidence, in other words, was offered to show the impact of the dealer’s representation on the defendant’s state of mind, i.e., his belief.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

Question 152

Is this hearsay?

On the issue of whether landlord knew about a defective stair, a witness testifies that he heard Decla say to the landlord, “The stair is broken.”
“

Answer 152

No. (Offered to prove notice, not that the stair was in fact broken.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

Question 153

Is this hearsay?

“On the issue of whether the complaining witness had a venereal disease, Grutz testifies for the prosecution that the complaining witness had not been placed in the venereal disease ward upon her admission to the girls’ reformatory.
“

Answer 153

No. (Nonhearsay under the Federal Rules, since it is nonassertive conduct.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

”

Question 154

Is this hearsay?

On the issue of whether a transfer of a share of stock from Decla to Bushmat was
a sale or a gift, Bushmat testifies that Decla made a statement at the time of the transfer: “I’m giving you this share of stock as a birthday present.”

”

Answer 154

No. (Legally operative words of gift.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

Question 155

Is this hearsay?

Action for personal injuries by a guest in an automobile against its owner. On the issues of contributory negligence and assumption of risk, a witness testifies that an hour before the accident a mechanic said to the owner in the presence of the guest, “The tread on that left front tire is paper-thin. You’re likely to have a blowout.”
“

Answer 155

No. (Notice, knowledge; not offered to establish that in truth the tread was thin.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay

Question 156

Is this hearsay?

Action of P against D. Witness No. 1 testifies for P that D’s car was going “over 70 miles an hour.” To impeach Witness No. 1, D offers the testimony of Witness No. 2 that Witness No. 1 said a day after the accident that D was going “slowly.”

”

Answer 156

No. (Used solely to cast doubt on credibility; not offered to establish the truth of the assertion.)

Evidence>Hearsay>A Statement of the Rule>Illustrations of Hearsay and Nonhearsay