Hearsay

Question 1

Hearsay defined

Answer 1

An out-of-court statement offered to prove the truth of the matter asserted
** generally INADMISSIBLE**

statements not offered for truth:
- words of offer & acceptance
- libel or slander
- verbal acts to show motive/notice

Question 2

Hearsay Exceptions: Present sense impression

Answer 2

• statement made while observing fact
• non-emotional observation
  ex. “I saw a car go through a red light”

Question 3

Hearsay Exceptions: Excited Utterance

Answer 3

• statement made while excited!!!!

Question 4

Hearsay Exceptions: Then existing mental, emotional, physical state of mind

Answer 4

• statements of intent, emotion, or physical state
  ex. I was going to NY, I’m suffering pain right now, I couldn’t have killed her, I loved her

Question 5

Hearsay Exceptions: Business record

Answer 5

Record made in the ordinary course of business (something done all the time)
ex. time sheet

Question 6

Hearsay Exceptions: Statement for medical diagnosis/treatment

Answer 6

• statement related to past or present symptoms
• about treatment or diagnosis

Question 7

Hearsay Exceptions: recorded recollection

Answer 7

1. Witness on the stand cannot remember
2. Document made/adopted by W
3. CAN be read into evidence

Question 8

Hearsay Exceptions: Public record

Answer 8

• record or statement of a public office/agency
• observations by someone with a duty to report

Question 9

Hearsay Exceptions: Learned treatise

Answer 9

Admissible when an expert witness is relying on the treatise

Question 10

Hearsay Exceptions: Ancient document

Answer 10

1. authentication: document must be more than 20 years old
2. FRE hearsay exception: document must have been prepared before 1998

Question 11

Hearsay Exceptions: Catch-all Exception

Answer 11

1. material
2. trustworthy
3. in the interest of justice

Question 12

Hearsay Exceptions – Unavailability Requirement

Answer 12

Unavailable witness = not currently at trial
- missing
- in a coma
- pleaded the 5th
- witness protection

Question 13

Hearsay Exceptions – Unavailability Requirement: dying declaration

Answer 13

1. unavailability
2. belief of impending death
3. about cause of death
4. homicide or civil case

Question 14

Hearsay Exceptions – Unavailability Requirement: statement against interest

Answer 14

1. unavailability
2. makes declarant look liable/guilty
3. generally made by non-party

Question 15

Hearsay Exceptions – Unavailability Requirement: former testimony

Answer 15

1. unavailability
2. opponent was a party to former case
3. former case about same subject
4. made under oath
5. opportunity to cross-examine

Question 16

Non-Hearsay: admissions

Answer 16

• statement made by a party
• ADMISSIBLE as non-hearsay

Question 17

Non-Hearsay: vicarious admissions

Answer 17

statements made by employees about company

Question 18

Non-Hearsay: adoptive admissions

Answer 18

party does NOT respond when a reasonable person would object

Question 19

Non-Hearsay: prior consistent statement

Answer 19

1. prior statement by declarant
2. the same as current testimony
3. to refute charge of fabrication or motive

Question 20

Non-Hearsay: prior sworn inconsistent statement

Answer 20

1. prior statement by declarant
2. made under oath
3. INCONSISTENT with current testimony

Question 21

Non-Hearsay: prior identification

Answer 21

declarant testifying about an earlier identification

Question 22

Right to Confrontation

Answer 22

Right to confront a witness concerning an out-of-court statement depends on if the statement is testimonial

-non-testimonial = ADMISSIBLE = statement made to police during emergency

-testimonial = inadmissible = statement NOT made during an emergency

Question 23

Physical and Demonstrative Evidence

Answer 23

Generally admissible
ex. show scar; demonstrate a limp

Question 24

Hearsay upon Hearsay (double hearsay)

Answer 24

• 2 different statements
• NOT admissible unless BOTH meet an exception or exemption to the rule