Hearsay

Question 1

What are the NONHEARSAY categories of evidence?

Answer 1

nonassertive conduct
statement not offered for its truth
prior inconsistent statement made under oath
prior consistent st. to rebut charge that W is lying/exaggerating
prior consistent st. offered to rehab W impeached on other non-character ground
prior statement of identification
opposing party’s statement (including vicarious admission)

Question 2

What the hearsay exceptions where unavailability is required?

Answer 2

former testimony
dying declaration
statement against interest
statement of personal or family history
statement offered against party procuring declarant's unavail.

Question 3

What are the hearsay exceptions where availability is immaterial?

Answer 3

excited utterance
present sense impression
present state of mind
present physical condition
statement for medical diagnosis or treatment
recorded recollection
business records or absence thereof
public reports and records
records of vital statistics
judgment of prior convictions
ancient docs.
document affecting prop. interest
learned treatises
reputation 
family and market reports

Question 4

former testimony (HEU) must:

Answer 4

be statement made under oath at same or other proceeding at which the party against whom it is offerd had oppt/motive to develop the testimony

Question 5

statement against interest (HEU) must:

Answer 5

be statement against declarant’s pecuniary, proprietary, or penal interest when made

Question 6

dying declaration (HEU) must:

Answer 6

be statement made while decl. believed death was imminent, and st. concerns the cause/circumstances of the impending death

Question 7

statement of personal or family history (HEU) must:

Answer 7

be made by family member (re birth, death, marriage, etc.) or one intimately associated w/ family

Question 8

statement offered against party procuring decl. unavail (HEU) must:

Answer 8

be made against party who intentionally procured decl’s unavailability

Question 9

What is hearsay?

Answer 9

statement, other than the one made by the declarant while testifying, offered in ev. to prove the truth of the matter asserted

Question 10

What constitutes a “statement” for H?

Answer 10

1. oral or written assertion or

2. nonverbal condcut intended to be an assertion

Question 11

When is an out-of-court statement offered NOT to prove its truth?

Answer 11

1. verbal acts or legally op. facts (words of K, defamatory words)
2. statements offered to show effect on listener (prove notice in neg. case)
   3 statement offered as circum. ev. of declarant’s state of mind (insanity)

Question 12

A prior statement by TESTIFYING W who is subject to cross-exam is NOT H if:

Answer 12

1. prior statement is inconsistent w/ declarant’s in-court testimony and the statement was given under oath in prior proceeding;
2. prior statement is consistent w/ declarant’s in-court testimony and offered to rebut lying/exagg charge or to rehab W (non-character, like for sensory deficiency); or
3. prior statement is one of identification of a person

Question 13

When is an opposing party’s statement (any st. made by a party and offered against that party) adm as NH:

Answer 13

it does not need to have been against the declarant’s interest when made; can be in form of opinion; personal knowledge is not required

Question 14

When is an agent/employees statement admissible against principal under vicarious exemption?

Answer 14

if statement 1. concerned any matter within scope of employment and
2. made during existence of employment relationship (the topic needs to be about something within the scope of their position and cannot be made after termination)

Question 15

When is a declarant deemed “unavailable”?

Answer 15

1. exempt from test. bc of privilege
2. refuses to test. despite court order
3. testifies that he cannot remember subject matter
4. unable to testify due to death, or physical/mental illness, or
5. absent (beyond reach of court’s subpoena) and proponent unable to procure attendance through reasonable means

Question 16

The testimony of now-unavail W is admissible if:

Answer 16

1. test. was given under oath (trial, hearing, depo) in same or different case; and
2. party against whom test. is offered had opportunity and motive to develop it by cross/direct/redirect

needs to party in former action re same subj matter (not same COA)

Question 17

Is grand jury test. of an unavail. decl. admissible against the def?

Answer 17

no - no oppty to cross

Note: prior inconsistent statement given under oath (in gj proc) would be adm. if W is currently testifying (diff, NH)

Question 18

When is a statement by a PERSON now unavail as W adm?

Answer 18

if it was made against that person’s pecuniary, proprietary, or penal interest at that time (need personal knowledge of the facts and aware that st. was against interest when made)

Question 19

In criminal cases, when are statements against interest adm?

Answer 19

when there are corroborating circum. indicating trustworthiness of st. against penal interests

Question 20

When is a dying declaration of now-unvail W adm?

Answer 20

in any HOMICIDE (not attempted H) or CIVIL action if:

1. decl. believed his death was imminent (does not need to die); and
2. statement concerned cause/circums. of what he believed to be his impending death (based on perceptions at that time - no speculation allowed)

Question 21

What is the traditional rule re dying declarations?

Answer 21

1. declarant needs to ult. die of injury; and

2. cannot be used in civil cases

Question 22

What constitutes and excited utterance (HE)?

Answer 22

st. relating to startling event
made while under stress of the excitement of event
(before time to reflect)

Question 23

What constitutes a present sense impression (HE)?

Answer 23

st. describes/explains event or condition
made while or immediately after decl. perceived event/condition
** the event does not need to be startling

Question 24

What constitutes a present state of mind st (HE)?

Answer 24

st. of then-existing st of mind (intent, motive, plan) or
emotional, sensory, physical condition

** this does not include st. of memory or belief

Question 25

What constitutes a declaration of physical condition (HE)?

Answer 25

two types

1. decl. present physical condition (purpose doesn’t matter)
2. st. made for purpose of obtaining med. diagnosis/treatment
   - st can describe med. history, past or present symptoms, inception/general cause IF reasonably pertinent to diagnosis/treatment
   - can be statement made for family member
   - cannot be about fault

Question 26

What constitutes business records (HE)?

Answer 26

a record made in the regular course of business
consisting of matters w/in personal knowledge of one w/ business duty to record
(lack of record can show nonoccurrence of event)

Question 27

What constitutes a recorded recollection (HE)?

Answer 27

record by a W
who cannot remember fact
record made while facts were fresh