Hearsay

Question 1

What is hearsay?

Answer 1

an out-of-court statement offered to prove the truth of the matter asserted

Question 2

what is a “statement”?

Answer 2

oral assertions, written assertions or nonverbal conduct if the person intended it as an assertion (nod or thumbs up)

Question 3

Non-hearsay statement examples:

Answer 3

1) verbal acts of independent legal significance (offered to prove that the statement itself was made, regardless of its truth)
2) show the effect on the listener
3) show declarant’s mental state or state of mind and
4) impeachment purposes

Question 4

prior inconsistent statements are admissible for substantive purposes if:

Answer 4

1) declarant is testifying at trial and is subject to cross
2) statements were previously made under penalty of perjury
3) prior statements are inconsistent with present testimony being given at trial

if prior statement were not previously made udnder penalty of perjury they can be offered ONLY for impeachment purposes

Question 5

prior consistent statements are admissible to REBUT a claim that a declarant is fabricating or has motive to fabricate if:

Answer 5

1) declarant is testifying at trial and is subject to cross and
2) the prior consistent statement was made before the declarant had motive to fabricate the statement

Question 6

prior statement of identification are admissible for substantive purposes:

Answer 6

if the declarant is testifying at trial is subject to cross

Question 7

admissions by party opponent (prior out of court statements made by party to the current litigation that are offered by the opposing party) are:

Answer 7

admissible as non-hearsay:

Question 8

adoptive admissions:

Answer 8

if the party heard and understood the statement and remained silent where a reasonable person would have denied the statement

Question 9

vicarious admission

Answer 9

if an authorized spokesperson, agent within the scope of and during agency, co-conspirators during and in furtherance of conspiracy are considered vicarious and are imputed on the party opponent

Question 10

hearsay exception - unavailable if declarant is:

Answer 10

1) exempted from testifying because of privilege, 2) refuses to testify despite court order, 3) testifies to not remembering subject matter 4) cannot be present or testify because of a death or infirmity phsycail or mental illness, 5) is ABSENT and the statement’s proponent has not been able by process or other reasonable means to procure the declarant’s attendance

Question 11

what are the hearsay exceptions if declarant is unavailable?

Answer 11

1) former testimony, 2) dying declarations, 4) statements against interest, 4) forfeiture by wrongdoing

Question 12

former testimony is admissible if:

Answer 12

1) declarant is unavailable, 2) statement was prior testimony given at trial hearing or deposition and 3) the opposing party had an opportunity and similar motive to develop the testimony through cross or direct (GRAND JURY DOES NOT COUNT)

Question 13

dying declaration is admissible if

Answer 13

1) declarant is unavailable 2) declarant believed her death was imminent when statement was made [doesnt actually have to die] 3) statement pertains to the cause or circumstances of her death

ONLY AVAILABLE in homicide and civil cases

Question 14

statement against interest admissible if:

Answer 14

1) declarant is unavailable, 2) statement is against declarant’s self-interest and 3) a reasonable person would NOT have made the statement unless he believe it to be true

Question 15

statement of forfeiture by wrongdoing:

Answer 15

1) party forfeits hearsay objection if the party intentionally or wrongfully makes the declarant unavailable to testify as proven by a preponderance of the evidence

(act making the witness unavailable does not have to o be criminal to qualify) aka sending someone away to a foreign country

Question 16

What are the hearsay exceptions - declarant availability immaterial

Answer 16

present sense impression, excited utterance, state of mind, medical diagnosis or treatment, recorded recollection, business records

Question 17

present sense impression is admissible if:

Answer 17

declarant describes an event as it6 takes place or immediately therafter

Question 18

excited utterance is admissible if:

Answer 18

it concerns a startling event made by the declarant when they were still under stress from the startling event

Question 19

state of mind is admissible if:

Answer 19

their THEN EXISTING state of mind (MOTIVE INTENT OR PLAN) or emotional sensory or physical condition to prove the declarant’s state of mind or the declarant’s conduct

Question 20

state of mind is NOT admissible if:

Answer 20

statement regarding memory, past belief or state of mind to prove the fact remembered unless it related to the VALIDITY or terms of the declarant’s will

Question 21

medical diagnosis or treatment:

Answer 21

a person’s past or present condition as long as it is made for the purpose of medical diagnosis or treatment -

can be made to nurses, family members or non-medical individuals or: to enable a physician to testify at trial (as long as its to prove medical diagnosis or treatment

Question 22

recorded recollection can be READ into evidence if the witnesss cannot recall provided that:

Answer 22

1) record is about a matter the witness once had personal knowledge of, 2) record was made or adopted by the witness when the matter was fresh in the witness’ mind 3) record accurately reflects the witness’ personal knowledge and 4) the witness can no longer recall the events or information well enough to testify EVEN AFTER reviewing the writing on the stand

Question 23

who can enter recorded recollections as an exhibit?

Answer 23

opposing counsel

Question 24

present recollection refreshed allows:

Answer 24

a witness to glance at almost ANY item to refresh her memory while on the stand (it is then taken away while testifying and not admitted into evidence)

Question 25

business records are admissible if:

Answer 25

the records are kept in the course of regularly conducted business and 2) made by a person with knowledge of the matter at or near the time of the matter’s occurrence

Question 26

business records are NOT admissible if

Answer 26

the opponent can show the source or preparation of the record lacks trustworthiness

Question 27

Contrfrontation clause

Answer 27

guarantees a person accused of a crime the right to confront witnesses against him in a CRIMINAL action (present at trial and to cross prosecution witnesses)

Question 28

The use of an out-of-court statement even if it falls under a valid exception or privilege violates the defendants constitutional rights under the confrontation clause if

Answer 28

1) the proceeding is a criminal action, 2) statement is testimonial [if declarant would reasonably expect the statement would be used for prosecution] 3) declarant is unavailable to be crossed AND 4) defendant did not have an opportunity to cross declarant at a proceeding prior to trial

Question 29

statements to police are admissible/non admissible as testimony if:

Answer 29

inadmissible- they are made to collect evidence to be used a future criminal prosecution

admissible - primary purpose is to provide assistance in an ongoing emergency