Hearsay

Question 1

801(c): definition of hearsay

Answer 1

Hearsay is a statement that the declarant does not make while testifying at the current trial and is offered for the truth of the matter asserted

Question 2

801(d): not hearsay (2)

Answer 2

declarant witness’s prior statement, opposing party statement

Question 3

801(d)(1): Declarant-Witness Prior Statement (3)

Answer 3

declarant testifies and is subject to cross about a prior statement and the statement is
a) inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding
b) is consistent with declarant’s testimony and is offered to rebut an express or implied charge of fabrication or improper influence, to rehabilitate declarant’s credibility
c) identifies a person as someone the declarant perceived earlier

Question 4

801(d)(2): Opposing Party Statement (5)

Answer 4

statement is offerent against an opposing party and
a) was made by the party in an individual or representative capacity
b) is one the party manifested that it adopted or believed to be true
c) was made by a person whom the party authorized to make a statement on the subject
d) was made by the party’s agent or employee on a matter within the scope of that relationship while it existed
e) was made by the party’s coconspirator during and in furtherance of the conspiracy

Question 5

803: Exceptions - regardless of whether the declarant is available as a witness (7)

Answer 5

1) present sense impression
2) excited utterance
3) then existing condition
4) statement made for medical diagnosis or treatment
5) Recorded recollection
6) records of a regularly conducted business activity
7) public records

Question 6

803(1): present sense impression

Answer 6

a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it

Question 7

803(2): Excited Utterance

Answer 7

statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused

Question 8

803(3): then-existing mental, emotional, or physical condition

Answer 8

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will

Question 9

803(4): statement made for medical diagnosis or treatment

Answer 9

a) made for and is reasonably pertinent to medical diagnosis or treatment
b) describes medical history, past or present symptoms, their inception, or general cause

Question 10

803(5): recorded recollection

Answer 10

recollection on the matter the witness once knew but now cannot recall well enough to testify; was made or adopted by the witness when the matter was fresh in the witness’s memory; accurately reflects the witness’s knowledge

may only be read into evidence; able to be received as an exhibit if offered by an adverse party

Question 11

803(6): Records of a regularly conducted activity

Answer 11

requirements:
a) record was made at or near the time by, or from information transmitted by, someone with knowledge
b) record was kept in the course of a regularly conducted activity
c) making the record was a regular practice of that activity
d) all conditions were shown by the testimony of the custodian or another qualified witness or by certification
e) opponent does not show that the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness - record made in anticipation of trial

Question 12

803(8): public records

Answer 12

record or statement of a public office:
a) sets out the offices activities, matter observed while under legal duty to report;

civil case or against the government in a criminal case - factual findings from a legally authorized investigation

b) opponent does not show that the source of the information or other circumstances indicate a lack of trustworthiness

Question 13

statement of a party opponent - adoptive admission elements (4)

Answer 13

a) hear and understand
b) at liberty to respond
c) circumstances naturally call for a response
d) failed to respond

Question 14

statement of a party opponent - co-conspirator elements

Answer 14

1) made by a coconspirator of opposing party
2) made in the course of a conspiracy
3) made in furtherance of a conspiracy

Question 15

verbal act of legal signifcance

Answer 15

not hearsay
eg agreeing to a contract

Question 16

confrontation clause - primary purpose test

Answer 16

if primary purpose of statement is testimonial, then confrontation clause applies

testimonial - primary purpose is gathering evidence for a criminal trial

not testimonial - collecting information regarding an ongoing emergency

Question 17

804: hearsay exceptions when the declarant is unavailable (4)

Answer 17

1) former testimony
2) statement of belief of imminent death
3) statement against interest
4) statement offered against a party that wrongfully caused the declarant’s unavailability

Question 18

804(a): criteria for being unavailable (5)

Answer 18

1) exempted from testifying about the subject matter because of priviliege
2) refuses to testify despite a court order to do so
3) testifies to not remembering subject matter
4) cannot be present because of death or then-existing injury or illness
5) absent and statement’s proponent has not been able to procure attendance by reasonable means

Question 19

804(b)(1): former testimony

Answer 19

given as a witness at trial and is now offered against a party who had an opportunity and similar motive to develop it by direct cross or redirect exam

Question 20

804(b)(2): statement under belief of imminent death

Answer 20

-prosecution for homicide or civil case
-declarant believed death to be imminent
-statement was made about its cause or circumstances

Question 21

804(b)(3): statement against interest

Answer 21

a) a reasonable person in declarant’s position would have made only if the person believed it to be true because it was so contrary to declarant’s interest
b) supported by corroborating circumstances that clearly indicate trustworthiness

Question 22

804(b)(6): statement offered against a party that wrongfully caused declarant’s unavailability

Answer 22

statement offered against a party that wrongfully caused the declarant’s unavailability as a witness and did so intending that result

Question 23

807: residual exception

Answer 23

1) not admissible under 803 or 804
2) statement is supported by sufficient guarantee of trustworthiness
3) more probative than other evidence