Hearsay

Question 1

Req for hearsay within hearsay?

Answer 1

Both must fall under exception

Question 2

“I heard him say, ‘I accept your offer for the contract’.” Hearsay?

Answer 2

No, because legally operative facts

Question 3

Is it hearsay to offer a statement to show the effect of the statement on the listener?

Answer 3

No

Question 4

“It was raining but the employee said, ‘Look at that, I do love white christmases.’” Hearsay in a negligent hiring action?

Answer 4

No because it shows employee’s state of mind

Question 5

Prior statement by testifying witness (subject to cross-exam) is not hearsay if:

Answer 5

Statement is identification,

It’s inconsistent with in-court testimony and was given under oath at prior proceeding, OR,

Statement is consistent and is offered to rebut an attack that witness is lying or exaggerating because of a motive OR offered to rehabilitate credibility on another ground than truthfulness

Question 6

Does “admission” of opposing party need an actual admission to not be hearsay?

Answer 6

No

Question 7

Formal judicial statements— conclusive or non conclusive?

Answer 7

Conclusive and can be admitted against them as an opposing party’s statement

Question 8

Adoptive statement by silence requires:

Answer 8

Party heard and understood the statement, was physically and mentally capable of denying, and a reasonable person would have denied

Question 9

Vicarious statements: at least (3)

Answer 9

Authorized spokesperson

Agents/employees if it concerned a matter within scope of employment and was made during employment relationship

Partners

Co-conspirators,

Privies in title and joint tenants (state courts only)

Note: court must make prelim determinations of relationship between parties

Question 10

Declarant unavailable if: (5 options)

Answer 10

Unable to testify due to death or physical/mental illness 
Exempt bc of privilege
Refuse to testify despite a court order
Do not remember
Absent

Question 11

Former testimony exception requires (2 elements)

Answer 11

Unavailable declarant gave testimony under oath

Adverse party had an opportunity and similar motive to develop declarant’s testimony at prior proceeding

Question 12

Statement against interest by unavailable witness must be against either: (3 things)

Answer 12

Pecuniary, proprietary, or penal interests when it was made

Question 13

Dying declarations can only come in during these cases:

Answer 13

Homicide prosecution

Any civil case

Question 14

Dying declarations require:

Answer 14

Belief in imminent death

Statement concerns cause or circumstances of impending death

Question 15

Declarant’s statement against a person who intentionally procured that declarant’s unavailability— admissible?

Answer 15

Yes if that person’s motivation was to prevent declarant from testifying

Question 16

Exception to present state of mind?

Answer 16

Cannot admit statement of memory or belief to prove the truth of the fact remembered or believed (except certain facts about someone’s will)

Question 17

Does present state of mind include statements of intent to do something in the future?

Answer 17

Yes, so it’s admissible

Question 18

Statement made for medical diagnosis/treatment: “I was stabbed with a knife. My roommate did it.” All admissible?

Answer 18

No, only the first part

Question 19

Elements of business records exception: (4)

Answer 19

Must be a business
Entry was made in regular course of business
Entry was made near time of event
Entrant had personal knowledge or duty to transmit the matters to the entrant

Question 20

Foundation for business records is laid thru custodian with knowledge of record keeping, who either:

Answer 20

Testifies or certifies that record meets elements of the business record exception

Question 21

Public records exception made by outsiders— admissible?

Answer 21

No, unless there’s an independent basis to admit

Question 22

Public records and reports generally not admissible against D in Crim case— true/false?

Answer 22

True

Question 23

Catchall exception requires (3):

Answer 23

Statement must have sufficient trustworthiness

Must be strictly necessary to come in

Proponent must give reasonable notice including substance of statement and name of declarant

Question 24

Confrontation clause exclusion requires (4):

Answer 24

Statement against accused, unavailable declarant, testimonial in nature, and no opportunity to cross-exam

Question 25

Statement made to aid in ongoing emergency— testimonial or non?

Answer 25

Non testimonial

Question 26

Statement made to provide info for later prosecution— testimonial or non?

Answer 26

Testimonial

Question 27

Declarant must be unavailable to testify for these exceptions to apply: (3)

Answer 27

Former testimony

Dying declaration

Declaration against interest (penal, pecuniary, proprietary)