Hearsay

Question 1

Definition of hearsay

Answer 1

An out-of-court statement made by a declarant that is offered to prove the truth of the matter asserted.

Question 2

Is hearsay admissible?

Answer 2

No, unless exception applies

Question 3

What are common purposes other than “for the truth of the matter asserted”

Answer 3

• Effect on the listener
• Verbal acts or legally operative facts
• Circumstantial evidence of declarant’s state of mind

Question 4

When is a prior statement by a testifying W who is subject to cross-examination NOT HEARSAY?

Answer 4

• Prior statement is one of identification as someone the W perceived earlier
• Prior statement is inconsistent with the declarant’s in-court testimony and was given under oath
• Prior statement is consistent with declarant’s in-court testimony and is offered to show W is lying or rehab W on some ground other than truthfulness

Question 5

Is an opposing party’s statement hearsay?

Answer 5

No - admissible

Question 6

Can an opposing party adopt a statement?

Answer 6

Yes - admissible if they adopt another party’s statement

Question 7

Can an opposing party’s silence be considered an adoption of that statement?

Answer 7

Yes, could be implied acquiescence IF:
- The party heard and understood the statement
- The party was capable of denying the statement
- A reasonable person would have denied the accusation

Question 8

Is a co-party’s statement admissible against the party?

Answer 8

No

Question 9

Is an authorized representative’s statement admissible as a vicarious statement?

Answer 9

Yes

Question 10

Is an agent or employee’s statement admissible as a vicarious statement against the party?

Answer 10

Yes, if it (1) concerned any matter within the scope of their agency or employment, and (2) was made during the existence of the agency or employment relationship

Question 11

Is a partner’s statement binding on co-partners?

Answer 11

Yes

Question 12

Is a co-conspirator’s statement admissible against the party?

Answer 12

Yes, when made in furtherance of a conspiracy to commit a crime or civil wrong; court must determine the existence of a conspiracy and party’s participation in it

Question 13

What are the 5 hearsay exceptions?

Answer 13

1. Former testimony of a W
2. Statements against interest
3. Dying declarations
4. Statements of personal or family history
5. Statements of W against a party who procured the W’s unavailability

Question 14

Does the declarant have to be unavailable for the 5 hearsay exceptions?

Answer 14

Yes

Question 15

When is a declarant unavailable?

Answer 15

PRISM
P: Privilege
R: Refusal
I: Incapacity (death, mental illness)
S: Subpoena (failure to appear)
M: Memory (lack of memory)

Question 16

When can former testimony of a W be admissible?

Answer 16

1. W is unavailable
2. W’s testimony was under oath
3. The party the testimony is offered against had an opportunity or similar motive to develop the testimony

Question 17

When can statements against interest be admissible against a D?

Answer 17

1. W is unavailable
2. The statement was against the declarant’s pecuniary, proprietary, or penal interest when made

Question 18

When can a dying declaration be admissible against a D?

Answer 18

1. Declarant is unavailable
2. Homicide or any civil case
3. Declarant believed death was imminent
4. Statement concerned the cause or circumstances of their impending death

Question 19

When can a statement of personal or family history be admissible?

Answer 19

1. Declarant is unavailable
2. Declarant is member of the family or intimately associated with it
3. Based on personal knowledge or knowledge of family reputation

Question 20

When can a statement be offered against a party that procured the unavailability of the declarant?

Answer 20

Only if the party’s motivation was to prevent the declarant from testifying (not for a different reason)

Question 21

What is an excited utterance?

Answer 21

An out of court statement relating to a startling event, made while under the stress of excitement from the event

Question 22

Does a declarant need to be unavailable for an excited utterance?

Answer 22

No

Question 23

What is a present sense impression?

Answer 23

A statement that describes or explains an event or condition and is made while or immediately after the declarant perceives the event or condition

Question 24

Does the declarant need to be unavailable for a present sense impression to be admissible?

Answer 24

No

Question 25

What is present state of mind?

Answer 25

A statement of declarant’s then state of mind or their emotional, sensory, or physical condition is admissible - includes statements about intent or o do something and their physical condition

Question 26

When is a statement made for purposes of medical diagnosis or treatment admissible?

Answer 26

When it describes a persons medical history, past, or present symptoms or cause if it was made for medical diagnosis or treatment

Question 27

When are records of a regularly conducted activity admissible?

Answer 27

Admissible as evidence of the proof of that occurrence if the entry was made in the regular course of business and the business regularly kept such records (author had a duty to make such records), the entry was made near the time of the event, based on personal knowledge of the author

Question 28

What foundation is required for a business record to be admissible?

Answer 28

Authenticity must be established by a sponsoring W (custodian of the records or knowledgeable person in the business). The custodian can (1) testify about the record or (2) certify

Question 29

Can business records be excluded if they are untrustworthy?

Answer 29

Yes

Question 30

What records from a public office or agency are admissible as a hearsay exception?

Answer 30

1. Records setting forth the activities of the office or agency
2. Records created pursuant to law (but not police observations in criminal cases)
3. Records of findings from government investigations when offered against the government

Question 31

How can police records be admitted?

Answer 31

Under the public records exception to hearsay. But public records are generally not admissible against the D in a criminal case.

Question 32

Can a judgment be admissible?

Answer 32

As proof that the judgment has been entered. But to prove facts in the present case? Felony is admissible to prove any fact essential to the judgment (ex, criminal battery judgment can come in in a later civil lawsuit)

Question 33

Can a civil judgment be admissible against a D in a later criminal case?

Answer 33

No, because of the different standards of proof.

Question 34

Can ancient documents be admissible as a hearsay exception?

Answer 34

Yes, if they were authenticated and prepared before January 1, 1998

Question 35

Is a deed or will admissible as a hearsay exception?

Answer 35

Yes under the documents affecting property interests exception

Question 36

What is the hearsay catch-all exception?

Answer 36

Hearsay statement not covered by specific exception if:
- sufficient guarantees of trustworthiness
- statement is necessary
- proponent gives reasonable notice

Question 37

When does the Confrontation Clause keep a hearsay statement out?

Answer 37

When:
- the statement is offered against the D in a criminal case
- the declarant is unavailable
- the statement was testimonial in nature
- the accused had no opportunity to cross-examine the declarant prior to trial

Question 38

What is a statement that is testimonial in nature?

Answer 38

Includes sworn testimony, statements to law enforcement (but aiding in ongoing emergency is not testimonial), certain documents (forensic reports that point to D are testimonial)