Hearsay

Question 1

Definitions

Answer 1

(1) statement
o Oral or written assertion
o Assertive conduct
o Silence: H (heard) O (Opportunity W (Would have responded i.e., not between friends)
 Also can’t use defendant’s silence after Miranda warnings where co-defendant says something

(2) by a human declarant
o Not animals or machines

(3) while out of court
o Testifying witness’s prior statements count

(4) to prove the truth of the matter asserted
o Does declarant want the actual words spoken to believed?

If it meets an exception, it comes in as substantive evidence
o non-hearsay comes in for limited purpose

Question 2

Analysis

Answer 2

1. What is the out-of-court statement?
2. Who is the declarant?
3. What is the purpose of the evidence being offered?
4. Do any exceptions apply?

Question 3

Non-Hearsay

Answer 3

C Elvis

Statement of Capacity to see, hear, or speak

Effect on listener (rebut intent (I thought it was a gift), heard a warning about a dangerous condition)

Legally operative facts (Shabam!)

Verbal acts (clarify ambiguous conduct)

Impeachment and rehabilitation

State of mind (circumstantially like “I’m Batman”

Question 4

Exemption: Statements by party opponent

Answer 4

Statement by a named party
 Named party, relevant, and offered against the declarant-party by opponent
 Does not have to be against interest at time it was made

Adoptive admission
 Party heard and understood and adopted the statement through words, conduct, or silence

Authorized admission
 Statement by agent or representative

Employee admission
 During employment while acting within SoE

Co-conspirator admission
 Doesn’t matter if conspiracy is charged

Question 5

Exemption: Statements of prior identification

Answer 5

Official identification proceeding like a lineup or mug book

Must testify and be subject to cross; if met, a witness to the declarant’s statement can testify to the statement

Question 6

Exemption: Prior consistent or inconsistent statements

Answer 6

Prior Consistent Statements
o Must testify and be subject to cross
o Admissible as substantive evidence as soon as witness is impeached

Prior Inconsistent Statements
o Must testify and be subject to cross
o Under oath at trial, deposition, or other proceeding

Question 7

Observational Exceptions: Present sense impressions

Answer 7

 Made while or immediately after perceiving event or condition (present tense=present sense)
 Oral or written; declarant must have firsthand knowledge

Question 8

Observational Exceptions: Excited utterance

Answer 8

Startling event, made while declarant is under stress from the event

Question 9

Observational Exceptions: Statement of then existing state of mind

Answer 9

Offered to prove what the declarant was thinking or feeling at the moment or to explain future behavior (intent, plan, motive, design)

Look for present tense verbs

Statements of memory relating to execution, revocation, identification, or terms of declarant’s will are admissible under this rule

Question 10

Observational Exceptions: Statement for medical treatment or diagnosis

Answer 10

Made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation

pathologically germane statement

Applies even if pt speaks to doctor so doctor can testify as an expert in a later trial

Question 11

Business/Public Records: Past recollection recorded

Answer 11

• Diminished memory, personal knowledge, made while matter was fresh, signed or adopted the document
• Record is read not received as exhibit
• Opponent has same rights as refreshing memory plus can use it substantively

Question 12

Business/Public Records: Business records

Answer 12

(1) A memorandum, record, or report; (2) of business-related acts or events; (3) made at or near the time of the event; (4) by a person with knowledge; (4) if kept in the course of a regularly conducted business activity – the record serves some business purpose (e.g., taxes, inventory, etc.); and (5) if it was the regular practice of that business to make such a record or report – mandatory, business policy provided the information does not lack trustworthiness.

Cannot be produced solely in anticipation of litigation

Need to be authenticated by self-authentication or testimony of custodian

Question 13

Business/Public Records: Absence of business records

Answer 13

Witness is familiar with records, type of record kept in accordance with the business, diligent search, no record was found

Question 14

Business/Public Records: Public records

Answer 14

• Sets out a matter personally observed, person is under legal duty to investigate and report
• police records do not count in criminal case against the accused
• authentication: self-authenticating if certified or under seal or by custodian

Question 15

Business/Public Records: Records of vital statistics

Answer 15

• Records or data compilations of births, marriages, deaths; public officer, compilation required by law

Question 16

Business/Public Records: Absence of public records

Answer 16

Same as public records rule

Question 17

Religion and Family History

Answer 17

• Authorized by religious organization or by law

* Also old family records

Question 18

Real Property

Answer 18

 Records and statements affecting an interest in real property
• Documents kept by law in recording office or statements in other documents

Question 19

Ancient documents

Answer 19

• Older than January 1, 1998, in place where these items are typically found

Question 20

Market/commercial compilations, directories

Answer 20

• Generally relied on by public or persons in particular occupations

Question 21

Learned treatises

Answer 21

If called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination, authoritative (judicial notice, expert testimony, or stipulation) and MASH subject (medicine, art, science, history)

Question 22

Judgments in criminal cases

Answer 22

• Felonies to prove essential element of action (922(g))

* Authentication by self-authentication

Question 23

Judgments in civil cases

Answer 23

Admitted to prove matter of personal, family, or general history, or boundaries fi matter was essential to judgment and could be proved by evidence of reputation

Question 24

Reputation

Answer 24

Reputation regarding family or personal history, land use boundaries, or historically significant events

Reputation regarding character

Question 25

Unavailability triggering events

Answer 25

 Privilege: based on judge’s ruling
 Refusal: despite court order
 Incapacity: death or then-existing physical or mental illness
 Subpoena: good faith attempt to procure witness
 Memory: witness testifies

Question 26

Unavailability Required: Former Testimony

Answer 26

 Under oath, testifying in proceeding or deposition that involves the same or related subject matter where opponent had opportunity and similar motive to examine the witness

Question 27

Unavailability Required: Dying declarations

Answer 27

Homicide or civil case; (2) subjective belief death was imminent; (3) about cause or circumstances of their impending death

Question 28

Unavailability Required: Statement against interest

Answer 28

 Against declarant’s pecuniary, proprietary, or penal interest
 Doesn’t have to be a party
 In criminal case, exculpatory evidence needs corroboration; inculpatory evidence has Crawford problem

Question 29

Unavailability Required: Statement of personal or family history

Answer 29

 Declarant’s relationship by blood, adoption, or marriage or other similar fact

Question 30

Unavailability Required: Forfeiture by wrongdoing

Answer 30

Party caused unavailability

Question 31

Crawford

Answer 31

 testimonial hearsay is inadmissible unless declarant is unavailable and criminal defendant had prior opportunity to cross the declarant
 Testimonial: declarant reasonably expected would be used in a subsequent prosecution

Exceptions
• Dying declarations
• Child witness testifying via closed circuit
• Ongoing emergency: purpose is to aid police during the emergency
• Waiver through forfeiture by wrongdoing