Hearsay

Question 1

when is a dying declaration admissible?

Answer 1

1. declarant is NOT available

2. homicide OR civil cases onlu

Question 2

when are OOC statements not hearsay?

Answer 2

• legally operative facts (of independent legal significance, e.g., K terms, defamatory words),
• effect on listener (notice, knowledge, motive), -knowledge of speaker,
• state of mind (evidence of insanity, belief)

Question 3

what statements are defined as “not hearsay”?

Answer 3

1. prior consistent statement
2. prior inconsistent statement
3. statement of ID
4. statement of party opponent

Question 4

what are the hearsay exceptions where declarant must be unavailable?
CA?

Answer 4

1. statement against interest
2. dying declaration
3. pedigree
4. prior testimony
5. statement against pt making declarant unavailable

Question 5

what are the hearsay exceptions where declarant availability doesn’t matter?

Answer 5

1. present sense impression
2. then-existing state of mind
3. excited utterance
4. business record
5. public record
6. statement of mental/emotional/physical condition
7. statement made for medical diagnosis or treatment
8. past recollection recorded
9. present recollection refreshed
10. judgment of previous conviction
11. learned treatise

Question 6

what are the subtypes of statement of party opponent>

Answer 6

2. Adoptive admissions (conduct, or silence where the party understood the accusatory statement + capable of denying + reasonable person would have, if untrue, denied under the same circumstances, e.g., not in police presence—suspect in custody has no duty to speak)

        3. Vicarious admissions ([CA] only by employee whose conduct makes employer vicariously liable)
            a. Co-parties: Party admissions are NOT admissible against co-Π/Δ
            b. Authorized: Statement of a person expressly/impliedly authorized by party to speak on its behalf is admissible against the party
            c. Agents or Employees: Statement by an agent (e.g., employee) within scope of agency, made during existence of relationship, is admissible against principal
            d. Co-conspirators: Statement of any conspirator is admissible against all members of the conspiracy if it was in furtherance of the conspiracy (look for confrontation clause issue) i. allowed for truth of the matter asserted

Question 7

what is statement against interest?

any particular requirements when it comes to criminal liability?

Answer 7

when made. The declarant must have had personal knowledge of the facts and awareness that it was against his interest and that would not have been made by a reasonable person unless he believed it true

Question 8

what is former testimony?

anything different for CA?

Answer 8

estimony that is now offered against a former party in former action, or a predecessor in interest (civil cases), who had an opportunity to x-exam W at prior/preliminary hearing (including deposition but not grand jury) + similar motive to develop W’s testimony
a. [CA] no privity req

Question 9

what is dying dec? to what cases does it apply?

anything different for CA?

Answer 9

(FRE: homicide or civil actions only. CA: all civil/criminal)
a. Declarant must have believed death was imminent (actual death not needed) + statement concerns cause or circumstances of what he believed to be his imminent death
b. [CA] Declarant must actually be dead + statement concerns what did kill him a
would then be admissible in all civil or criminal cases

Question 10

excited utterance

CA

Answer 10

([CA] spontaneous statement): While under excitement of startling event, a statement made w/o reflection which relates to ([CA] narrates, describes, or explains) the event

Question 11

present sense impression

Answer 11

Statement of what declarant was perceiving at time of event or immediately after
[CA] called “contemporaneous” statement - Statement explaining declarant conduct made while declarant was engaged in that conduct

Question 12

then existing SOM

Answer 12

emotion, sensation, physical condition
a. When SOM is directly in issue or to infer subsequent acts carrying out intent (Hillmon)
Statements of memory or belief inadmissible to prove its truth (except re declarant’s will)

statements of memory or belief are inadmissivle to prove truth

Question 13

declaration of physical condition

Answer 13

Portion of statement imputing fault not admissible if unrelated

a. Past bodily condition admissible only if made to medical personnel for diagnosis, treatment, or testimony
i. [CA] past condition admissible ONLY by child-abuse or child-neglect victim under 12 made to medical personnel for diagnosis or treatment

b. Present bodily condition admissible even if not made to a physician (e.g., spontaneously) - but just about existence of the condition, not its cause

Question 14

business records

cali distinctions?

Answer 14

Records of acts, conditions, events, transactions, opinions, or diagnoses made at or near the time of event by person with duty and with personal knowledge of matters during regular course of business. Entrant must have had a business duty to make the entry (e.g., not crime witnesses)

			a. [CA] need not be parrt of the regular practice
			b. [CA] Conclusions, opinions, and diagnoses are not admissible as a business record

Question 15

how is a business record authenticated?

Answer 15

c. Requires authentication of record via custodian testimony or written certification
i. [CA] burden on proponent to show trustworthiness

Question 16

are absences in business record allowed?

Answer 16

Negative purposes allowed to prove nonoccurrence of matter if it was regular practice to record all such matters, if witness is familiar + diligent search

Question 17

what is required for pas recollection recorded?

Answer 17

a. testifying witness once had personal knowledge of but now cannot recall well enough (refreshing attempted and fails), 2)
b. was made or adopted by W when the matter was fresh in memory, and 3)
c. accurately reflects W’s knowledge

Question 18

when can past recollection recorded be read in to evidence?

Answer 18

only if offered by an adverse party

Question 19

what is required for public record exception?

Answer 19

Records made within scope of duty of a public employee, entered at or near time of event.

			a. Records setting forth the following are admissible: 
				i. activities of the office or agency, 
				ii. description of matters observed pursuant to duty (inadmissible if untrustworthy or [FRE] police observations in criminal case), 
				iii. factual findings from investigation by authority (only in civil cases or [FRE] if used against gov’t in criminal cases)

Question 20

if evidence is being offered for a non hearsay purpose, must the ct gving limitig instructions?

Answer 20

if the opposing pt requests it