Hearsay

Question 1

Definition - Hearsay

Answer 1

Out of court statement that is offered to prove the truth of the matter asserted

Generally inadmissible unless it falls within an exception or exclusion

Question 2

The maker of the statement is the…

Answer 2

Declarant

Question 3

Multiple Hearsay

Answer 3

A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception

Question 4

Nonhearsay

Answer 4

1. Declarant-Witness’s Prior Statements (Certain prior statements of a testifying witness)
   - Prior Inconsistent Statements
   - Prior Consistent Statement
   - Prior Statements of Identification
2. Admissions of a party opponent (Opposing Party’s statements that are offered against the opposing party are not hearsay)
   - Own Prior Statement
   - Adoptive Admissions
   - Vicarious Admissions
   - Co-Conspirators

Question 5

Hearsay Exceptions

Declarant Unavailable as a Witness

FADFAM

Answer 5

Former Testimony

Statement Against Interest

Dying Declarations

Family or Personal History

Statement Against Party That Caused Declarant’s Unavailability

Question 6

Hearsay Exceptions

Unavailable Declarant

Former Testimony

Answer 6

Testimony that was given as a witness at a PRIOR hearing or deposition is not excluded as hearsay if the party against whom the testimony is being offered had any OPPORTUNITY or MOTIVE to develop testimony by direct or cross-examination of prior trial, deposition, or hearing

Question 7

Hearsay Exceptions

Unavailable Declarant

Statements Against Interest

Answer 7

At the time it was made, the statement was against the declarant’s interest such that a REASONABLE PERSON wouldn’t have made it unless he believed it to be true (pecuniary or proprietary; or expose the Declarant to civil or criminal liability)

If it exposes the Declarant to criminal liability, only admissible if corraborating circumstances indicate the trustworthiness of the statement

Question 8

Hearsay Exceptions

Unavailable Declarant

Dying Declaration

Answer 8

Individual believes he’s dying + Individual believes death is imminent + statement relates to cause or circumstances of death

Declarant need not have actually died in order for the statement to avoid exclusion as hearsay.

The dying-declaration exception applies only in homicide prosecutions and civil cases

Question 9

Hearsay Exceptions

Unavailable Declarant

Statement of Personal or Family History

Answer 9

A statement concerning the unavailable declarant’s own birth, adoption, marriage, divorce, legitimacy, familial relationship, or other similar fact of personal or family history is not excluded as hearsay. Nor is a statement regarding similar facts about another person if the declarant was related that person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate

Question 10

Hearsay Exceptions

Unavailable Declarant

Statement Against Party That Caused Declarant’s Unavailability

Answer 10

A statement ofered against a party that wrongfully caused the declarant’s unavailability is not excluded as hearsay.

Question 11

Hearsay Exceptions

Declarant’s Availability Immaterial

Answer 11

Exceptions do not require that the declarant be unavailable because the circumstances under which the statements were made suggest that the statements are inherently trustworthy

1. Present Sense Impression
2. Excited Utterance
3. State of Mind (Then existing)
4. Medical Diagnosis or treatment
5. Recorded recollection.

Question 12

Hearsay Exceptions

Declarant’s Availability Immaterial

Present Sense Impression

Answer 12

Statement made while the Declarant was perceiving the event or immediately thereafter is not excluded as hearsay

Question 13

Hearsay Exceptions

Declarant’s Availability Immaterial

Excited Utterance

Answer 13

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay.

Question 14

Hearsay Exceptions

Declarant’s Availability Immaterial

Statement of Mental, Emotional, or Physical Condition

Answer 14

A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition is not excluded as hearsay.

Question 15

Hearsay Exceptions

Declarant’s Availability Immaterial

Statement Made for Medical Diagnosis or Treatment

Answer 15

A statement describing medical history or past or present symptoms is not excluded as hearsay if it is made for medical diagnosis or treatment.

• The statement need not be made to a physician to fall under this exception.
• Statement need not necessarily be made by the patient, so long as it is made for the purpose of medical diagnosis or treatment. The closer the relationship btw the declarant and the patient, the more presumably reliable the statement.

Question 16

Hearsay Exceptions

Declarant’s Availability Immaterial

Recorded Recollection

Answer 16

When a witness has INADEQUATE memory to testify about a matter for which a record exists, the witness may READ the record to the jury if:
o The witness once had knowledge;
o Record was made by witness when the matter was fresh;
o Accurately reflects witness’ knowledge; and
o Witness testifies he has insufficient memory of the event to testify fully and accurately.
 Then the witness may read it to the jury (but it cannot be introduced into evidence)
 The ADVERSARY may introduce it into evidence.

Question 17

Hearsay Exceptions

Declarant’s Availability Immaterial

Business Records

Answer 17

A record (e.g., memorandum, report, data compilation) of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if:

i) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
ii) The making of the record was a regular practice of that activity; and
iii) The record was made at or near the time by (or from information transmitted by) someone with knowledge.

Question 18

Hearsay Exceptions

Declarant’s Availability Immaterial

Public Records

Answer 18

3 things that may be admissible if set forth in a public record:

i. Activities (what they did.)

ii. Observations (what they saw)

iii. Factual findings (conclusions)

Question 19

Hearsay Exceptions

Availability of the Declarant Immaterial

Learned treatises, scientific, historical, medical…

Answer 19

• May be used to IMPEACH expert witness and as SUBSTANTIVE evidence.
• May be used as substantive evidence only if it was established to be a RELIABLE authority, expert relied on it, or it was used to cross examine an expert.