Hearsay

Question 1

Hearsay def.

Answer 1

A statement (oral or written assertion or conduct), by a human declarant, other than the one testifying at trial, offered to prove the truth of the matter asserted.

Question 2

Non-hearsay (limited admiss)

Answer 2

C. ELVIS

1. statement of sensory Capacity
2. Effect on the listener
3. Legally operative facts
4. Verbal acts
5. Impeachment
6. State of mind - circumstantial ev

Question 3

Hearsay Exemptions *** statement by a party opponent

Answer 3

1. Statement by a named party. against the v.
2. adoptive admission. words, conduct, or silence
3. authorized admission. give someone speaking auth.
4. EE admission: during existence of EE r, and w/n scope of employment.
5. Co-conspirator admissions. by a member of the conspiracy, in furtherance of, during existence of c.

Question 4

Hearsay Exemptions ***

Prior Statements of W’s

Answer 4

1. Prior inconsistent statements made under oath in a court type proceeding
2. prior consistent statment, offered to rebut allegation of recent fabrication following impeachment. AND
3. statments of prior ID. admiss substantively. other people present such as officer can also state who they identified.

Question 5

Hearsay Exceptions ***

Observational

Answer 5

1. Present sense impression
2. excited utterance!
3. Statement of a then-existing mental, physical, or emotional condition
4. statements for medical diagnosis or treatment

Question 6

present sense impression

Answer 6

stmnt by declarant describing/explaining even made while or immediately perceiving it. saying while seeing .

Question 7

excited utterance!

Answer 7

statement relating to a startling even made while declarant was under stress of excitment. could be days later.

Question 8

Then existing mental, physical, or emotional condition

Answer 8

Show what declarant was thinking or feeling at the moment, or to explain future behavior.

Question 9

Statements for medial diagnosis/treatment

Answer 9

for purpose of medial treatment, can be made to anyone in the doctors office.

Question 10

Hearsay Exceptions ***

Document Records

Answer 10

1. past recollecton recorded.
2. business records
3. absence of entry in a bus record
4. public records and reports
5. record of vital stats.
6. absence of entry in a public record
7. family and personal history records
8. records or statements in documents that affect an interest in property.
9. statements in ancient documents.
10. market reports, commercial publications
11. learned treatises

Question 11

Past recollection recorded

Answer 11

w has diminished memory and documented something w/n their personal knowledge while the matter was fresh in their mind, the contents are admiss. (not offered as an exhibit, can only be read into ev.)

Question 12

Business records

Answer 12

a memo, record or report of business-related acts or events made at or near the time of the event by a person w/ knowledge, if kept in the course of a regularly conducted business activity, if it was the regular practice of that business to make such a record/report provided the info doesn’t lack trustworthiness. Can’t use if made solely in anticipation of litigation.
Must be authenticated

Question 13

Absence of entry in business record

Answer 13

matter is not included in records kept in accordance w/ business/public record may be admitted to prove the non-occurrence of the event of non-existence of a matter.

Question 14

Public Records and Reports.

Answer 14

admiss if it sets out a matter personally observed which the person is under a legal duty to investigate and report. Law enforcement reports are not admiss under this exception in a crim case against the accused.

Question 15

Records of vital stats

Answer 15

birth, death, marriages are admiss if report was made to a public office pursuant to law reqs.

Question 16

Absence of entry in a public record

Answer 16

admitted to prove non-occurrence of event or non-existence of the matter

Question 17

Records of statements in documents that affect an interest in property

Answer 17

deeds, mortgages, etc.

Question 18

Statements in ancient documents

Answer 18

admissible if in a document prior to Jan 1 ‘98 and found in a place where the item would typically be found.

Question 19

Learned Treatises

Answer 19

statements in treatises, textbooks, journals, periodicals, etc if the treatise is established as authoritative. Can be used to impeach or as substantive ev.

Question 20

Reputation Exceptions

Answer 20

1. reputation concerning personal and family history, and reputation concerning boundaries and general history
2. Reputation concerning character
3. Judgments involving personal, family, or general history, or a boundary that is essential to the judgment.

Question 21

Declarant Unavailable Exceptions

Answer 21

1. Former testimony
2. Dying declaration
3. Statements against interest
4. statement of pedigree
5. forfeiture by wrongdoing

Question 22

Former Testimony

Answer 22

made under oath while testifying in a proceeding or deposition that involves the same or a different but related subject matter, where the party against whom the ev is being offered had an opportunity and similar motive to examine the w and develop the testimony, on direct, cross, or redirect.

Question 23

Dying declarations

Answer 23

In a prosecution for homicide or in a civil case, a statement that the declarant made,
While believing the declarant’s death to be imminent,
About it’s cause or circumstances of what they though was the cause of their impending death.

Question 24

Statement against interest

Answer 24

a stmnt of an unavail w that was against the declarant’s pecuniary, proprietary, or penal interest when made.

Question 25

Statement of pedigree

Answer 25

stmnt concerning the declarant’s own r by blood, adoption, or marriage or other similar fact of personal or family history.

Question 26

Forfeiture by Wrongdoing

Answer 26

if a w is caused to be unavail by wrongdoing then their statements are admiss.

Question 27

Confrontation Clause *** 6th

Answer 27

In a crim case where declarant is unavail, testimonial hearsay statements will be inadmiss unless the D is given an opportunity to corss-examine the declarant.

Question 28

Exceptions to Confrontation clause

Answer 28

1. dying declarations
2. child w testifying via close circuit
3. ongoing emergency and primary purpose is to aid police during the ongoing emergency.
4. chemical analysis report w/ notice and demand statute (while testimonial its allowed)
5. forfeiture by wrongdoing

Question 29

Hearsay w/n Hearsay

Answer 29

an out of court statement contains additional out of court statements, both the primary and the included statement must have a separate basis for admiss. if the underlying hearsay can’t be redacted, the entire statement is inadmiss.
common situations: bus records, medical records, or charts.

Question 30

Residual Hearsay Exception

Answer 30

a statement not otherwise covered by an exception to the hearsay rule is nevertheless not excluded by the hearsay rule under certain circumstances.

1. stmnt must be more probative and on point than any other ev and requires a sufficient indica of trustworthiness.
2. must give notice to opp party.