Hearsay

Question 1

Past recollection recorded

Answer 1

The past recollection recorded exception to hearsay allows a record to be presented to the jury if it:
* concerns a matter that a witness once knew but cannot recall at trial
* was made or adopted by the witness when the matter was fresh in his/her mind and
* accurately reflects the witness’s personal knowledge at the time it was made.

Question 2

Hearsay

Answer 2

out of court statement offered for its truth

Question 3

non-hearsay

Answer 3

• testifying witness AND (prior inconsistent + made under penalty of perjury, prior consistent + rebut charge of fabrication/rehab witness, witness’ prior ID)
• admission of a party opponent (adoptive, vicarious, or co-conspirator)

Question 4

hearsay exceptions: declarant unavailable

Answer 4

• unavailable = privilege, refuse, no memoy, dead, ill, absent + can’t be subpoenaed
• former testimony (under oath + party had opportunity to cross examine)
• dying declaration
• statement against interest
• statement of personal/family history
• forfeiture by misconduct

Question 5

hearsay exceptions (declarant could still be available)

Answer 5

• present sense impression
• excited utterance
• state of mind
• statement for medical diagnosis
• past recollection recorded
• business records
• public records
• learned treatises
• judgment of previous conviction
• reputation

Question 6

present sense impressions

Answer 6

hearsay exception that applies to statements
* that describe an event or condition AND
* were made while or immediately after the declarant perceived it.

Question 7

impeachment of hearsay declarant’s inconsistent statement

Answer 7

If a hearsay statement is admitted, the declarant’s credibility may be attacked through the same methods used to impeach a testifying witness—e.g., by introducing an inconsistent statement. Such a statement may be used for impeachment regardless of whether:
* it was made before or after the hearsay statement or
* the declarant had an opportunity to explain or deny the inconsistency.

Question 8

learned treatise

Answer 8

Exception to hearsay for statements in a learned treatise, periodical, or pamphlet when:
1. the statements are called to the attention of or relied on by an expert witness during examination AND
2. the publication is established as a reasonably reliable authority by a party’s expert or judicial notice

Question 9

absence of public record

FRE 803(10)

Answer 9

hearsay exception for testimony by a public official that a diligent search failed to disclose a public record or statement is admissible to prove that:
* the record or statement does not exist or
* a matter did not occur, if a public office regularly kept a record for a matter of that kind.

criminal case: the prosecution must provide the defense with written notice of its intent to offer such evidence at least 14 days before trial. The defendant then has seven days from receipt of notice to object in writing.