Hearsay

Question 1

Define hearsay.

Answer 1

Hearsay is:

(1) A statement
(2) Other than one made by the declarant while testifying at the current trial or hearing
(3) Offered in evidence to prove the truth of the matter asserted

Question 2

True or false: If a statement is hearsay, and no exception to the rule applies, the evidence may nevertheless be admitted subject to the judge’s discretion, even if an appropriate objection is raise.

Answer 2

False. Hearsay statements must be excluded upon appropriate objection without exception.

Question 3

A hearsay statement that incorporates other hearsay within it (“hearsay within hearsay”) is admissible only if:

Answer 3

Both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.

Question 4

For purposes of the hearsay rule, a “statement” is a person’s:

Answer 4

(1) Oral or written assertion, or

2) Nonverbal conduct intended as an assertion (like a nod of the head

Question 5

True or false: Hearsay statements may be made by nonhumans (e.g., animals or machines).

Answer 5

False

Question 6

True or false: Any statement made in a courtroom is, by definition, not hearsay because it is not an “out-of-court” statement. Explain

Answer 6

False. The term “out-of-court” means that the statement was not made by the declarant at the current trial or hearing.

Question 7

Action by the estate of Percy against Damien seeking damages for the pain and suffering Percy experienced in an auto accident caused by Damien. Damien denies liability and also asserts that Percy died instantly in the accident. Witness on the stand proposes to testify that shortly after the accident, Percy said, “Damien’s car ran the red light.”

(1) Hearsay if offered to prove who ran the red light?
(2) Hearsay if offered to prove that Percy was alive following the accident?

Answer 7

(1) Yes. This is seeking to introduce the statement to prove the truth of the matter asserted in the statement, which is hearsay.
(2) No. This is not being offered to prove that Damien ran the red light, which is what is asserted by the statement. Instead, it is being offered to prove that Percy was alive (since he could not have made a statement if he was dead).

Question 8

HYPO: Michael sued David for breach of an oral contract. Witness takes the stand and proposes to testify as follows: “I heard David say to Michael: ‘I accept your offer to sell your paper company.’” Hearsay? Why or why not?

Answer 8

No. This is definitely an out-of-court statement, but it is not being offered to prove the truth of the matter asserted (that David accepted the offer). Instead, these are words that constitute an acceptance of an offer (meaning a contract was formed), and thus have independent legal relevance. Legally operative words (like words of contract or defamatory words) are not hearsay.

Question 9

HYPO: Plaintiff v. Supermarket. Plaintiff alleges she slipped and fell on a broken jar of salsa in aisle 3 and that Supermarket had prior notice of the dangerous condition. Plaintiff’s witness takes the stand and proposes to testify: “Several minutes before Plaintiff entered aisle 3, I heard another shopper tell Supermarket manager, ‘There’s a broken jar of salsa on the floor in aisle 3.’” Hearsay? Why or why not?

Answer 9

No. Here, this is not being offered to prove the truth of the matter (that there was a broken jar of salsa in aisle 3). Instead, it is being offered to show that the manager was on notice of the existence of a dangerous condition.

Question 10

HYPO: Sybil is charged with the murder of her husband, Basil. To prove motive, the prosecutor seeks to introduce an anonymous note to Sybil that was found in her possession at the time of her arrest. The note stated, “Basil is having an affair with Polly.” Hearsay? Why or why not?

Answer 10

No. This is not being offered to prove the truth of the matter asserted (that Basil was having an affair). Instead, it is being offered to show its effect on Sybil, and her motive to kill Basil.

Question 11

HYPO: Homer is prosecuted for murder. Defense: Insanity. Witness for Homer proposes to testify: “Two days before the killing, Homer said, ‘I am Elvis Presley. It’s good to be back.’” Hearsay?

Answer 11

No. This is not being offered to prove the truth of the matter asserted (that Homer is Elvis Presley). Instead, it is being offered to show Homer’s state of mind (that he is insane).

Question 12

State the general rule regarding prior statements of testifying witnesses in the context of hearsay.

Answer 12

A witness’s own prior out-of-court statement is hearsay and is inadmissible unless an exception applies.

Question 13

Under what circumstances may a prior statement by a testifying witness be admissible as nonhearsay?

Answer 13

The testifying witness must be subject to cross-examination and:

(1) The prior statement is one of identification of a person as someone the witness perceived earlier (even if the witness cannot remember making the identification);
(2) The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding; or
(3) The prior statement is consistent with the declarant’s in-court testimony and is (a) offered to rebut a charge that the witness is lying or exaggerating because of some motive, or (b) offered to rehabilitate a witness whose credibility has been impeached on some other ground.

Question 14

HYPO: Prosecution of D for robbery. D takes the stand in his own defense and testifies: “(1) I didn’t do it. (2) And I told the cops when they arrested me that I didn’t do it.”

Should (1) and (2) be excluded as hearsay?

Answer 14

(1) No. This is an in-court statement.

(2) Yes. This was an out-of-court statement offered to prove the truth of the matter asserted, and no exception applies.

Question 15

True or false: An opposing party’s statement (that is, a statement made by or attributable to a party and offered against that party) is hearsay under the Federal Rules and inadmissible unless an exception applies.

Answer 15

False. Such statements are not hearsay.

Question 16

True or false: To qualify as an opposing party’s statement in the context of hearsay, the statement must have been against the declarant’s interest when made to meet the requirements of the hearsay exception for opposing party statements.

Answer 16

False.

Question 17

True or false: In the context of hearsay, an opposing party’s statement may be in the form of an opinion to meet the requirements of the hearsay exception for opposing party statements.

Answer 17

True

Question 18

True or false: Personal knowledge is required for an opposing party’s statement to qualify for the hearsay exception for opposing party statements.

Answer 18

False

Question 19

HYPO: X is charged with income tax evasion for the year 2019. Prosecutor wants to prove X’s income during 2019, and offers into evidence a loan application X submitted to a bank in that year. X objects on the ground that the loan application, which is filled with inflated numbers, was self- serving and unreliable. Result?

Answer 19

Admissible as nonhearsay. Any statement made by a party is admissible when offered against that party.

Question 20

HYPO: Ma v. Life Insurance Co. for non-payment of policy proceeds on the life of Pa. Defense: Suicide. Defendant offers a letter by Ma to her friend in which she wrote, “When I came home from shopping I found Pa dead on the floor with his revolver nearby. I didn’t see what happened, but this was no accident. Pa did himself in.” Admissible despite Ma’s lack of personal knowledge?

Answer 20

Yes. Personal knowledge is not required for an opposing party’s statement to be admissible as nonhearsay if offered against that party.

Question 21

Explain the rule regarding formal and informal judicial (in-court) and extrajudicial (out-of-court) statements in the context of hearsay. (3 items)

Answer 21

(1) A party’s formal judicial statements (in pleadings, stipulations, etc.) are conclusive and cannot be contradicted during trial.
(2) A party’s informal judicial statements made during testimony and extrajudicial statements are not conclusive and can be explained.
(3) A party’s formal judicial statement in one case can be admitted against them as an extrajudicial statement in another case.

Question 22

Explain the general rule regarding adoptive statements in the context of hearsay.

Answer 22

Where a party expressly or impliedly adopts or acquiesces in another’s statement, the party’s acquiescence may be admissible against them.

Question 23

Under what circumstances may a party’s silence be considered an implied acquiescence to the truth of that statement in the context of hearsay?

Answer 23

If a party remains silent in the face of an accusatory statement, their silence may be considered acquiescence to the truth of that statement if:

(1) The party heard and understood the statement;
(2) The party was physically and mentally capable of denying the statement; and
(3) A reasonable person would have denied the accusation

Question 24

True or false: Silence in the face of accusations by police in a criminal case may be considered an admission of crime.

Answer 24

(almost always) False

Question 25

True or false: Certain statements by another person may be admissible against a party because of the relationship between them.

Answer 25

True (“vicarious statements”)

Question 26

True or false: Statements of a party are receivable against their co-parties by virtue of the fact that they are joined as parties. Explain.

Answer 26

False. Such statements may be receivable on other grounds, but not merely because they happen to be joined as parties.

Question 27

State the general rule regarding statements by authorized spokespersons in the context of hearsay.

Answer 27

The statement of a person authorized by a party to speak on its behalf can be admitted against the party.

Question 28

State the general rule regarding statements by agents or employees in the context of hearsay.

Answer 28

A statement by an agent or employee is admissible against the principal if the statement:

(1) Concerned any matter within the scope of their agency or employment, and
(2) Was made during the existence of the agency or employment relationship

Question 29

HYPO: Charlie the truck driver smashed into Pam’s house while on a run for Acme Trucking, his employer. Charlie descended from the cab and calmly told Pam, “Sorry about wrecking your home. I guess I took my eyes off the road. I was reaching down to get a beer and a joint.” In Pam v. Acme, is Charlie’s statement admissible against Acme?

Answer 29

Yes. The statement was made concerning the scope of his employment (regarding his driving), and he was an employee at the time of the accident.

Question 30

HYPO: Betty v. Acme Trucking for sex discrimination in failing to hire her. She offers the statement of Charlie, an Acme truck driver, who told her over drinks one night, “I know the Acme personnel office has a policy against hiring women no matter how qualified they are.” Charlie’s statement is inadmissible because:

(1) Charlie was not on the job when he was speaking to Betty; or
(2) Charlie’s statement did not concern a matter within the scope of his employment.

Answer 30

(2) is correct. Charlie is a truck driver, and hiring decisions would not be in the scope of his employment.
(1) is incorrect because there’s no requirement that the employee be “on the job” when the statement is made.

Question 31

True or false: If a partnership is shown to exist, a statement of one partner relating to matters within the scope of the partnership business is binding upon their co-partners and admissible against them as a vicarious statement.

Answer 31

True

Question 32

(1) State the general rule regarding statements of co-conspirators in the context of hearsay.
(2) State the standard for determining the existence of a conspiracy for this purpose.

Answer 32

(1) Statements of one co-conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at the time when the declarant was participating in the conspiracy, are admissible against co-conspirators.
(2) The court must determine the existence of a conspiracy, and the party’s participation in it, by a preponderance of the evidence.

Question 33

(1) State the rule regarding statements of joint owners in the context of hearsay.
(2) State the rule regarding statements of a former owner of real property in the context of hearsay.
(3) In which kind of jurisdiction do these rules apply?

Answer 33

(1) Statements of each joint owner are admissible against the other.
(2) Statements of a former owner of real property made at the time they held title are admissible against those claiming under them (grantees, heirs, etc.)
(3) State courts only (not all)

Question 34

True or false: Before admitting an out-of-court statement as a vicarious statement of an opposing party, the court need not make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered.

Answer 34

False

Question 35

May a court determine a hearsay declarant’s relationship with the party against whom the statement is offered by considering ONLY the statement itself?

Answer 35

No. The court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship. There must be some independent evidence.

Question 36

Name the 5 exceptions to the hearsay rule that require the declarant to be unavailable to testify.

Answer 36

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

Question 37

What makes a hearsay declarant “unavailable” for purposes of the hearsay exceptions?

Answer 37

A declarant is unavailable if they:

(1) Are unable to testify due to death or physical or mental illness
(2) Are exempt from testifying because of privilege
(3) Refuse to testify concerning the statement despite a court order
(4) Testify that they do not remember the subject matter
(5) Are absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure their attendance or testimony by process or other reasonable means

Question 38

If a hearsay declarant is able to give deposition testimony in lieu of attending trial, are they considered to be “unavailable” for the purposes of the hearsay exceptions requiring unavailability? Any exceptions?

Answer 38

No, except with respect to (1) the former testimony exception and (2) the forfeiture by wrongdoing exception (i.e., statements offered against party procuring declarant’s unavailability).

Question 39

Explain the hearsay exception involving former testimony by the declarant.

Answer 39

The testimony of a now-unavailable witness is admissible if:

(1) The testimony was given under oath at a trial, hearing, or deposition, in the same case or a different case; and
(2) The party against whom the testimony is now being offered—or, in a civil case, the party’s predecessor in interest—had an opportunity and similar motive to develop the declarant’s testimony by direct, cross-, or redirect examination.

Question 40

In the context of the former testimony exception to the hearsay rule, what does “opportunity and similar motive” mean?

Answer 40

The party against whom the testimony is offered now (or, in a civil case, their predecessor in interest) must have been a party in the former action, AND the former action must have involved the same subject matter (but the causes of action need not be identical)

Question 41

HYPO: Bus accident. Passengers A and B were seriously injured. A sued Bus Co., alleging negligence by the bus driver.

(1) At trial, Witness testified for A that the bus driver was intoxicated at the time of the accident. Thereafter, Witness died. B now sues Bus Co. and seeks to admit a transcript of Witness’s former testimony. Result?
(2) At a grand jury proceeding, Witness testified that the bus driver was intoxicated at the time of the accident. Thereafter, Witness died. The bus driver is prosecuted for DWI. Prosecutor seeks to admit a transcript of Witness’s grand jury testimony. Result?

Answer 41

(1) Admissible under the former testimony exception. The witness is unavailable due to death. The bus company was a party to the prior action and had an opportunity to cross-examine the witness, and the issue was the same in both cases.
(2) Inadmissible. In grand jury proceedings, there is no opportunity for the defense to cross-examine witnesses, so the former testimony hearsay exception does not apply.

Question 42

Explain the hearsay exception involving statements against interest, and any limitations.

Answer 42

A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary (financial), proprietary (property), or penal (criminal) interest when made, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true.

The declarant must also have had personal knowledge of the facts, and must have been aware that the statement was against their interest when they made it.

In criminal cases, statements against penal interest must be corroborated.

Question 43

HYPO: Plaintiff v. Acme Trucking, based on Charlie the truck driver’s negligent driving. Charlie was fired immediately after the accident. Two weeks later, Charlie told Plaintiff’s insurance adjuster that he had been drunk while driving. At trial, Charlie refused to testify on the ground of self-incrimination. The insurance adjuster may properly testify to Charlie’s statement as evidence against Acme because the statement is:

(1) A vicarious admission of an opposing party.

or

(2) A statement against interest.

Answer 43

(2) is correct. Charlie had personal knowledge of the facts and would have been aware that an admission that he was driving drunk would be against his penal interest. Charlie has also invoked his privilege against self-incrimination, so he is unavailable to testify for the purposes of the exception.
(1) is incorrect. Charlie is not a party to the action, but his statement could potentially be attributed to Acme as a vicarious statement. Charlie’s statement was concerning a matter within the scope of his employment (his driving), but he was not an employee of Acme at the time he made the statement. For this reason, his statement cannot be attributed to Acme, and thus the vicarious statement exclusion does not apply.

Question 44

HYPO: Prosecution of Doppler for arson of Town Hall. Doppler calls Waldo to testify that while sitting in a bar, Waldo heard Stranger say, “I’m the guy who torched Town Hall, but I’m glad they think it’s Doppler. Just to be safe, I’m leaving town tomorrow.” Doppler’s attorney demonstrates that Stranger has not been located despite a diligent search. Admissible as a statement against interest? Why?

Answer 44

No. Because this is a criminal case, and Stranger’s statement is a against his penal interest, corroboration of Stranger’s statement is required. Nothing in the facts indicates that there has been corroboration of the statement.

Question 45

HYPO: Elementary school principal sues Newspaper for libel for article accusing him of having sex with PTA mothers. To prove defense of truth, Newspaper calls Reporter to testify that Mothers A, B, and C (all of whom are alive and well and live nearby) told him they had sex with the principal. Admissible as a statement against interest? Why?

Answer 45

No, for two reasons. First, the declarants are available to testify, and this exception requires the unavailability of the declarants. Second, these statements aren’t against the mothers’ interests for the purposes of the exception.

Question 46

True or false: If a person makes a declaration containing statements that are against their interest (for example, “I sold drugs”) and statements that are not (for example, “X runs a drug ring”), both statements are admissible as statements against interest.

Answer 46

False. The exception covers only those remarks that inculpate the declarant, not the entire extended declaration.

Question 47

Explain the dying declaration hearsay exception.

Answer 47

In a homicide prosecution or any civil case, a statement made by a now-unavailable declarant is admissible if:

(1) The declarant subjectively believed their death was imminent (even if they did not actually die);
(2) The statement concerned the cause or circumstances of what the declarant subjectively believed to be their impending death; and
(3) The statement was based on the declarant’s perceptions and firsthand knowledge of what happened (not unsupported opinions or speculation)

Question 48

HYPO: Prosecution of Dagger Dan for the murder of Victor Victim. A passerby found Victor lying in the gutter in a pool of blood with a knife in his stomach. Victor told the passerby, “It’s not looking too good for me. Dagger Dan did it, and I’m going to get him for this.” Victor died an hour later. May the passerby testify to Victor’s statement as a dying declaration?

Answer 48

No. This is a homicide case (murder), but Victor did not manifest belief that he was going to die imminently (“I’m going to get him for this”). The fact that he ultimately died is immaterial.

Question 49

HYPO: Dillinger robbed a bank. At the scene, a bank officer, Ness, spoke with wounded Teller Tim, who gasped, “I’m a dead man. Get me a priest. Dillinger shot me as he made his getaway.” Tim then lapsed into a coma from which he has not emerged.

(1) In Dillinger’s trial for bank robbery, may Ness testify to Tim’s statement as a dying declaration?
(2) In a civil action against Dillinger for Tim’s personal injury damages, may Ness testify to Tim’s statement as a dying declaration?

Answer 49

(1) No. This is non-homicide criminal case, so the dying declaration exception does not apply.
(2) Yes. This is a civil action, and Tim’s statement was made in belief of imminent death (“I’m a dead man”). Tim is currently unavailable due to being in a coma, and his statement concerns the cause of what he believed to be his impending death (“Dillinger shot me”). The fact that he has not died is immaterial.

Question 50

Explain the rule regarding the hearsay exception for statements of personal or family history.

Answer 50

Statements made by a now-unavailable declarant concerning births, marriages, divorces, relationships, genealogical status, etc., are admissible if:

(1) The declarant is a member of the family in question or intimately associated with it; and
(2) The statements are based on the declarant’s personal knowledge of the facts or their knowledge of family reputation

Question 51

Explain the rule regarding the hearsay exception for statements offered against a party procuring the declarant’s unavailability, and any limitations.

Answer 51

The statement of a person (now unavailable as a witness) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability.

The statement meets the exception only if the party’s motivation was to prevent the declarant from testifying—e.g., if a party killed the declarant for a different reason, the declarant’s statement would not fall within this exception.

Question 52

Name the 11 (yes, 11) hearsay exceptions for which the witness’s availability is immaterial.

Answer 52

(1) Excited utterances
(2) Present sense impressions
(3) Present state of mind
(4) Statements made for purposes of medical diagnosis or treatment
(5) Records of a regularly conducted activity (business records)
(6) Official records and other official writings
(7) Ancient documents
(8) Documents affecting property interests
(9) Reputation
(10) Family records
(11) Market reports

Question 53

Explain the rule regarding the hearsay exception for excited utterances.

Answer 53

An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (meaning, before the declarant had time to reflect upon it), is admissible.

Question 54

HYPO: Ernie observes a horrific head-on auto collision and excitedly tells a cop, who arrives 10 minutes later, “Oh my God, Officer! Both of those cars were going 80 miles an hour!” May the cop properly testify to Ernie’s statement in subsequent litigation arising out of the accident? Why?

Answer 54

Yes, as an excited utterance. Ernie witnessed a startling event, and the facts suggest that Ernie was still under the stress of the event when he made the statement.

Question 55

Explain the rule regarding the hearsay exception for present sense impressions.

Answer 55

A present sense impression is a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition.

Question 56

HYPO: Pedestrian alleges that Dora is the hit-and-run driver who struck him. Pedestrian testifies, “I saw a silver Acura speeding away. A couple of seconds later, some unknown bystander told me he saw the Acura and its license plate number was ‘007.’” Admissible?

Answer 56

Yes, as a present sense impression. The declarant was describing the license plate immediately after perceiving it.

Question 57

Explain the rule regarding the hearsay exception for present state of mind, and any limitations.

Answer 57

A statement of the declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible.

However, except as to certain facts concerning the declarant’s will, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed.

Question 58

HYPO: Probate of Wanda’s Will, in which she left all her money to the local pet cemetery. Wanda’s family challenges the will on the ground that Wanda was insane when she executed it. Pet cemetery offers testimony that a few days before execution of the will, Wanda said to her friend, “I do not love my family anymore.” Admissible over hearsay objection?

Answer 58

Yes, as a present state of mind. Wanda was describing what she was feeling at the moment she spoke.

Question 59

HYPO: Susan has died and her family sues Life Insurance Co. for nonpayment of the policy proceeds. Defense: Suicide. Life Insurance Co. seeks to introduce a note found in Susan’s apartment (in Susan’s handwriting) in which she said, “I’m going to end it all next week.” Admissible? Why?

Answer 59

Yes, as a present sense impression. The note was a statement of her intent to do something in the future.

Question 60

HYPO: Prosecution of Raymond for murder of Vic. Before going out Monday night, Vic told his wife, “I’m meeting Raymond tonight at the bowling alley.” Vic’s dead body was found Tuesday morning outside the bowling alley. Is Vic’s statement admissible? Why?

Answer 60

Yes, as a present sense impression. The statement was evidence of his intent or plan both to go to the bowling alley and to meet Raymond there.

Question 61

HYPO: Plaintiff, whose arm was broken in an accident with Defendant, sues for damages for pain and suffering. Plaintiff may, of course, testify about the pain she experienced. But Plaintiff also calls Neighbor to testify, (1) “I was with Plaintiff last July when she said, ‘I’m feeling a lot of pain in my arm’ and again in December when she said (2) ‘I sure did feel a lot of pain in my arm last July.’” Admissible over hearsay objections? Why?

Answer 61

(1) Yes, as a present sense impression. The statement was about her then-present physical condition.
(2) No. This statement was about a PAST physical condition, and thus does not qualify for the present sense impression exception.

Question 62

Explain the rule regarding the hearsay exception for statements made for purposes of medical diagnosis or treatment.

Answer 62

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

Question 63

True or false: To qualify for the hearsay exception for statements made for purposes of medical diagnosis or treatment, the statement must be made to medical personnel like a doctor or nurse.

Answer 63

False.

Question 64

True or false: To qualify for the hearsay exception for statements made for purposes of medical diagnosis or treatment, the statement must involve only the declarant’s condition.

Answer 64

False.

Question 65

HYPO: Plaintiff v. Defendant for pain-and-suffering damages based on alleged accident at Defendant’s store. At trial, Plaintiff calls one of her treating physicians to testify, “When Plaintiff came to see me for treatment a year after the accident, she said, (1) ‘The pain in my arm is killing me. (2) I’ve been losing sleep at night for the past 6 months because of the pain in my arm. (3) This all started when I fell down the stairway—(4) the one with no treads at Defendant’s store.’” Admissible over hearsay objections? Why?

Answer 65

(1) Yes, as statements made for purposes of medical diagnosis or treatment and present sense impression. The statement is regarding her then-present physical condition.
(2) Yes, as statements made for purposes of medical diagnosis or treatment. The statement is regarding her then-present and past physical condition.
(3) Yes, as statements made for purposes of medical diagnosis or treatment. The statement is regarding the cause of her then-present and past physical condition.
(4) No. It merely assigns blame and is not pertinent to medical diagnosis or treatment.

Question 66

State the rule regarding the hearsay exception for records of a regularly conducted activity.

Answer 66

“Business records”

Any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis is admissible if:

(1) The writing or record was created by a business (including nonprofit organizations);
(2) The record was made in the regular course of business;
(3) The business regularly keeps such records (meaning, the entrant must have had a duty to make the entry);
(4) The record was not created primarily for litigation;
(4) The entry was made at or near the time of the event at issue; and
(5) The record consists of matters within the personal knowledge of the entrant, or within the knowledge of someone with a duty to transmit such matters to the entrant (generally, a co-worker)

Question 67

HYPO: Personal injury action. Plaintiff offers hospital records, which include statement of surgeon, “Surgery to repair broken arm partly successful. Neurologist reports surgery could not repair severed nerve.”

(1) Admissible? Why?
(2) Plaintiff offers another part of hospital records, which state “Patient admitted with broken arm. Patient reports he was hit by car driven by someone with a suspended license.” Admissible? Why?

Answer 67

(1) Yes, as a business record. The statements in the record are from hospital employees with a business duty to report.
(2) Partially. This is multiple hearsay—the record itself, and the patient’s statements within it—so each part must fall under some hearsay exception to be admissible. The record is admissible under the business records exception, but only as to the first sentence (“Patient admitted with broken arm”). The next portion (“Patient reports he was hit by a car”) is admissible as a statement made for purposes of medical diagnosis or treatment. The remainder (“driven by someone with a suspended license”) is hearsay for which no exception applies, so it is inadmissible.

Question 68

How is foundation established for business records?

Answer 68

The authenticity of the record must be established by a sponsoring witness, who can b e a custodian of records or any person in the business who is knowledgeable about the business’s recordkeeping (it does not need to b e the author of the record in question).

This can be accomplished by the records custodian:

(1) Testifying that the record meets the elements of the business records exception, or
(2) certifying in writing that the record meets the elements of the business records exception

Question 69

True or false: A business record that meets the requirements of the exception may be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record all such matters.

Answer 69

True

Question 70

True or false: Even if the opponent makes a showing that the circumstances of a business record indicate a lack of trustworthiness, a court has no discretion to exclude it if it meets all the requirements of the exception.

Answer 70

False

Question 71

What kinds of public records and reports are admissible? Any limitations?

Answer 71

(1) Records setting forth the activities of the office or agency (e.g., payroll records)
(2) Recordings of matters observed pursuant to a duty imposed by law (e.g., weather bureau records of temperature, BUT NOT including police observations in criminal cases
(3) In civil actions and against the government in criminal cases—BUT NOT against the defendant in criminal cases—records of factual findings resulting from an investigation authorized by law (e.g., an FAA report on the cause of a plane crash)

Question 72

Under what circumstances are records of vital statistics admissible?

Answer 72

If the records are reported to a public office in accordance with a legal duty

Question 73

Evidence in the form of testimony or a certification from the custodian of public records (or other qualified person) that they have diligently searched and failed to find a record is admissible to prove…

Answer 73

(1) That the matter was not recorded

(2) Inferentially, that the matter did not occur

Question 74

In a criminal case, if the prosecution seeks to admit a certification of absence of a public record as evidence, what is required for it to be admissible? Why?

Answer 74

The prosecution must notify the defense at least 14 days before trial, and the defense must fail to object in writing within 7 days of receiving the notice (subject to the court setting a different timeline).

This is because criminal defendants have a constitutional right to confrontation.

Question 75

True or false: Certified copies of judgments are always admissible proof that such judgment has been entered.

Answer 75

True

Question 76

A judgment of a felony conviction is admissible in both criminal and civil actions as an exception to the hearsay rule to prove…

Answer 76

any fact essential to the judgment

Question 77

In a criminal case, who may the government may use a judgment of a felony conviction as an exception to the hearsay rule against, and for what purposes?

Answer 77

(1) Against the accused to prove any fact essential to the judgment, including impeachment
(2) Against anyone besides the accused, only for impeachment

Question 78

True or false: The hearsay exception for judgments applies to records of prior acquittals. Explain.

Answer 78

False. The evidentiary standard in criminal cases is higher than in civil cases, so an acquittal is not conclusive as to liability in a civil case.

Question 79

True or false: A civil judgment is inadmissible in a subsequent criminal proceeding. Explain.

Answer 79

True, because of the different standards of proof.

Question 80

True or false: A civil judgment is always inadmissible in subsequent civil proceedings.

Answer 80

False. Civil judgments are generally inadmissible in subsequent civil proceedings, but there are some statutory exceptions (e.g., admissible to prove matters of personal or family history, or boundaries of land).

Question 81

Under the Federal Rules, for a document to be admissible under the hearsay exception for ancient documents, the document must:

Answer 81

(1) Be authenticated, and

(2) Have been prepared before January 1, 1998

Question 82

A statement in a document affecting an interest in property (e.g., a deed or will) is admissible if:

Answer 82

The statement is relevant to the document’s purpose

Question 83

True or false: The hearsay exception regarding documents affective property interests will not apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the document.

Answer 83

True

Question 84

State the rule regarding the hearsay exception for family records.

Answer 84

Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible.

Question 85

Market reports and other published compilations are admissible if:

Answer 85

They are generally used or relied upon by the public or by persons in a particular occupation.

Question 86

True or false: If a hearsay statement is not covered by a specific exception, it may never be admitted.

Answer 86

False

Question 87

Explain the residual exception for hearsay in the Federal Rules

Answer 87

For a hearsay statement that is not covered by a specific exception to be admitted, the Federal Rules provide a catch-all exception which imposes the following conditions:

(1) The hearsay statement must possess sufficient guarantees of trustworthiness, considering the totality of the circumstances in which the statement was made and any evidence that corroborates the statement.
(2) The statement must be strictly necessary (that is, more probative as to the fact for which it is offered than any other evidence that the proponent can reasonably produce).
(3) The proponent must give reasonable notice to the adversary as to their intent to offer the statement, including (a) the substance of the statement and (b) the name of the declarant. Such notice must be given in writing in advance of the trial or hearing, but may be given in any form during the trial or hearing if the court excuses a lack of earlier notice for good cause.

Question 88

Under the Confrontation Clause, a hearsay statement will not be admitted, even if it falls within a hearsay exception, where:

Answer 88

(1) The statement is being offered against the accused in a criminal case;
(2) The declarant is unavailable;
(3) The statement was “testimonial” in nature; and
(4) The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial

Question 89

If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of the interrogation are [testimonial / nontestimonial].

Answer 89

Nontestimonial

Question 90

In determining whether an “ongoing emergency” existed at the time of a police interrogation for the purposes of determining whether or not a statement is testimonial, relevant factors include:

Answer 90

(1) The nature of the dispute (public vs. private);
(2) Whether the perpetrator is still at large;
(3) The scope of the threat to the victim and to the public; and
(4) The type of weapon involved

Question 91

When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are [testimonial / non-testimonial].

Answer 91

Testimonial

Question 92

Statements by a young child abuse victim to a school teacher about abuse are [testimonial / nontestimonial] because…

Answer 92

Nontestimonial, because the primary purpose of the conversation is protection of the child, not prosecution of the perpetrator.

Question 93

HYPO: 911 call to the police.

(1) Caller states, “Dan Smith is here attacking me—please help me!” Caller dies of unrelated heart attack before Dan has opportunity to cross-examine Caller. Prosecution seeks to introduce the statement. Dan objects, hearsay, violates 6th Amendment right to confront. Result?
(2) Caller says, “He left, he’s driving a blue Lexus, with the license plates, ‘DOG 4EVR.’” Caller dies before trial, no chance to cross-examine. Dan objects, hearsay, violates 6th Amendment right to confront. Result?

Answer 93

(1) Overruled. Regarding the hearsay objection, the statement would be admissible as an excited utterance. Regarding the Confrontation Clause objection, this was not a testimonial statement. The “interrogation” here is about an ongoing emergency.
(2) Overruled as to the hearsay objection (present sense impression). Sustained as to the 6th Amendment objection because this was a testimonial statement. There is no ongoing emergency (“He left”), and the information would only be useful in a future prosecution.

Question 94

Affidavits, certificates, and other written reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct (such as fingerprint test results) are [testimonial / nontestimonial] and cannot be admitted unless:

Answer 94

Testimonial, and cannot be admitted unless the defendant previously had an opportunity to cross-examine the author of the report.

Question 95

True or false: Hearsay rules and other exclusionary rules cannot be applied where such application would deprive the accused of their right to a fair trial or deny their right compulsory process.

Answer 95

True