Hearsay

Question 1

Define hearsay.

Answer 1

An out-of-court statement (statement not made while declarant is testifying in court) offered to prove the truth of the matter asserted in the statement.

Question 2

T/F: for the purposes of hearsay, a statement includes nonverbal expressive conduct, such as a nod or a thumbs up.

Answer 2

True.

Question 3

When is a statement NOT offered to prove the truth of the matter asserted, and thus is admissible nonhearsay?

Answer 3

When the out of court statement is:

1) Verbal acts / legally operative facts (words of contract, defamatory words)
2) Offered to show effect on listener/reader (such as to show notice/awareness in a negligence case)
3) Offered as CIRCUMSTANTIAL evidence on declarant’s state of mind (such as insanity).

Question 4

When are prior statements by a witness admissible nonhearsay?

Answer 4

When they are made by a TESTIFYING witness subject to cross examination and are: prior inconsistent statements, prior consistent statements, or prior statements of identification.

Question 5

When are opposing party statements (admissions) admissible nonhearsay? (brief description)

Answer 5

ANY statement made by the opposing party being offered against that party.

Question 6

Is silence by an opposing party an admissible opposing party statement?

Answer 6

Yes, if:

1) party heard and understood the statement
2) party had capacity to deny the statement
3) a reasonable person would have denied the statement

Question 7

When is a statement made by someone a VICARIOUS statement of the party (and hence an admissible opposing party statement)?

Answer 7

When the declarant is:

1) an agent/employee of party (subject to 2 reqs)
2) authorized spokesperson of party
3) co-conspirator of party speaking in furtherance of conspiracy
4) partner in a partnership of party

Question 8

When is a statement by an agent/employee an opposing party statement attributable to the party?

Answer 8

When 1) the agency/employment relationship existed at the time statement was made AND 2) statement concerned the scope of agency/employment.

Question 9

What are the hearsay exceptions when a declarant is unavailable (due to privilege, refusal, death, illness, or is beyond the court’s subpoena)? (list)

Answer 9

1) Former testimony
2) Statements against interest
3) Dying declarations
4) Statements of personal/family history
5) Statements offered against party procuring declarant’s unavailability

Question 10

When a declarant is unavailable, when is his former testimony admissible?

Answer 10

1) When the former testimony was made under oath at a trial, hearing, or deposition. AND
2) The party against whom the statement is now offered had the opportunity to develop the declarant’s statements by direct, cross, or redirect examination.

Question 11

When a declarant is unavailable, when are statements against interest admissible?

Answer 11

1) statement must have been against interest when made

2) in CRIMINAL cases, corroborating evidence is required in addition to the statement

Question 12

When a declarant is unavailable, when are dying declarations admissible?

Answer 12

1) in a HOMICIDE case or in any CIVIL action.
2) when the declarant believed death was imminent
3) the statement concerned the cause or circumstances of what he believed to be impending death.

Question 13

What are the hearsay exceptions when it does not matter whether a declarant is available/unavailable? (list 8 items)

Answer 13

1) Excited utterance
2) Present sense impression
3) Statement describing present state of mind or physical condition
4) Business records
5) Public records
6) Learned treatises
7) Ancient documents
8) Documents affecting property interest

Question 14

When is a statement admissible as an excited utterance? (2 factors)

Answer 14

When the statement relates to a 1) startling event 2) before the declarant had time to reflect on it.

Question 15

When is a statement admissible as a present sense impression? (2 factors)

Answer 15

When a statement 1) describes or explains an event or condition and is made 2) while or immediately after the declarant perceives the event/condition.

Question 16

When is a statement admissible as a statement describing present state of mind or physical condition? (3 factors)

Answer 16

When a statement describes:
1) declarant’s state of mind as to his motive, intent, or plan
2) declarant’s present emotional, sensory, or physical condition
OR
3) statement was made for the purposes of medical treatment (past symptoms, present symptoms, inception/cause of symptoms, medical history).

Question 17

When is a statement admissible as a business record? (4 factors)

Answer 17

When a statement is:

1) made in the regular course of business,
2) within the personal knowledge of the declarant,
3) made at or near time of the event, and
4) authenticated by testimony that statement is a business record OR certified in writing that statement is a business record.

Question 18

When is a statement admissible as a public record? (5 factors)

Answer 18

When a statement:

1) sets forth the activities of the public office or agency
2) describes observations made pursuant to a legal duty/official function
3) in CIVIL actions or actions against the government, records of factual findings from an investigation.
4) is made by and within the scope of duty of a public employee
5) is made at or near the time of the event.

Question 19

When are public records NEVER admissible as a hearsay exception?

Answer 19

When the statement is a police or FBI report being offered against a defendant in a CRIMINAL case.

Question 20

When is a statement admissible as a learned treatise? (2 factors)

Answer 20

When the learned treatise is 1) called to the attention of an expert witness, and 2) deemed reliable by that expert witness, some other expert witness, or by judicial notice.

Question 21

T/F: once a learned treatise is admissible, it may ONLY be read into evidence, not introduced as an exhibit.

Answer 21

True.

Question 22

When is a statement admissible as an ancient document?

Answer 22

If the statement was part of a document that was authenticated and made before January 1st, 1988.

Question 23

When is a statement admissible as a document affecting property interest? (2 factors)

Answer 23

When the statement 1) affects a property interest (eg. as part of a deed, will etc.) and 2) the statement is related to the documents purpose.

Question 24

Under the Confrontation Clause, even if the statement falls under a hearsay exception, the statement is inadmissible if __________ (4 factors).

Answer 24

1) the statement is being offered against a criminal defendant, and
2) the declarant is unavailable, and
3) the statement was “testimonial” in nature, and
4) the defendant had no opportunity to cross examine (confront) the declarant’s statement prior to trial.

Question 25

When is a statement testimonial versus when it is not testimonial, for the purposes of determining whether it is admissible against a criminal defendant?

Answer 25

When the statement was made to aid an ongoing emergency (eg. part of a 911 call), the statement is NOT testimonial and thus admissible.

When a statement was made for the purposes of later prosecution (eg. part of later interrogation), the statement is testimonial and thus inadmissible.