Hearsay

Question 1

hearsay

Answer 1

an out of court statement offered to prove the truth of the matter asserted
- admissible ONLY IF it falls under an exception or exclusion

Question 2

statement

Answer 2

a person’s oral or written assertion
- a nonverbal act is a statement if it’s intended as an assertion

Question 3

multiple hearsay

Answer 3

hearsay within hearsay
each level of hearsay MUST fall within an exception or exclusion to be admissible

eg, a document detailing declarant’s statements like a police report

Question 4

non-hearsay

Answer 4

if a statement is offered to prove something other than the truth of the statement, it’s NOT hearsay and is ADMISSIBLE

Common non-hearsay statements:
1. verbal acts of independent legal significance,
2. to show the effect on the listener,
3. prior inconsistent statement to impeach
4. circumstantial evidence of the speaker’s state of mind

Question 5

hearsay exclusions

Answer 5

• statements by a party opponent
• prior statements by a W
• co-conspirator admission

Question 6

statements by a party opponent

Answer 6

a statement by a party opponent is:
1. any statement offered against an opposing party, AND
2. that is:
- made by the party (or their representative)
- adopted or believed to be true by the party (silence may be sufficient),
- made by an authorized person
- mady by an agent/employee of the party acting within their scope, OR
- made by a co-conspirator

Question 7

prior statements by a W

Answer 7

a prior statement by a declarant-W is deemed NON-hearsay if:
1. declarant testifies,
2. delcarant is subject to cross examination about the prior statement, AND
3. the prior statement
- was inconsistent with prior-testimony AND given under oath in a prior court proceeding or deposition,
- declarant identifies a person as someone they perceived earlier, OR
- is consistent with prior testimony AND is offered to either (i) rebut that the declarant is lying, or (ii) to rehabilitate declarant’s credibility

Question 8

co-conspirator admission

Answer 8

a statement by a co-conspirator is admissible when offered against another co-conspirator if:
1. conspiracy existed between the declarant and defendant,
2. statement was made during the conspiracy,
3. statement was in furtherance of the conspiracy, AND
4. the conspiracy is proven by independent evidence (outside the statements themselves)

Question 9

hearsay exceptions

Answer 9

• present sense impression
• excited utterance
• business record
• statements made for medical diagnosis/treatment
• statements of mental, emotional, or physical condition
• dying declaration
• statement against interest
• public records
• past recollection recorded

Question 10

present sense impression

Answer 10

is a statement describing an event made by the declarant:
- while observing the event, OR
- immediately thereafter

NOTE: a few minutes AFTER the event is ok

Question 11

excited utterance

Answer 11

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

NOTE: a slight delay between the event and the statement is ok

Question 12

business records

Answer 12

admissible if it’s:
1. a record of events, conditions, opinions, diagnoses,
2. kept in the regular course of business,
3. made at or near the time of the matter described,
4. made by a person with knowledge,
5. is the regular practice of the business, AND
6. the opponent party does NOT show a lack of trustworthiness

Question 13

statements made for medical diagnosis/treatment

Answer 13

NOT excluded by the hearsay rule when the statement:
1. is made for (and reasonably pertinent to) medical diagnosis or treatment, AND
2. describes the medical history or symptoms (past or present)

NOTE: statements that are NOT relevant to medical diagnosis or treatment do NOT fall within this hearsay exception

Question 14

statements of mental, emotional, or physical condition

Answer 14

admissible when the statement is of declarant’s
- then-existing state of mind (motive, intent, or plan), OR
- emotional, sensory, or physical condition

BUT: statements of memory or belief are NOT admissible UNLESS it relates to the validity or terms of the declarant’s will

Question 15

public records

Answer 15

the following records are admissible:
1. a record describing policies and practices of a public office,
2. observations made by someone in accordance with his duties by law (but excludes police reports in criminal case), OR
3. factual findings from a legally authorized investigation (but ONLY in civil cases or against the government in a criminal case)

BUT: such records will NOT be admitted if the opponent party shows a lack of trustworthiness

Question 16

past recollection recorded

Answer 16

is a record made on a matter the W once knew about, but now cannot recall well enough to testify fully and accurately

Is admissible if:
1. W had personal knowledge at one time,
2. writing was made or adopted by W,
3. it was made while the event was still fresh in W’s mind, AND
4. W can no longer remember the event

NOTE: the record may be READ into evidence BUT it can only be received as an EXHIBIT if offered by an adverse party

Question 17

declarant unavailable requirement

Answer 17

deemed unavailable if W
- is exempt due to privilege,
- refuses to testify despite a court order,
- does NOT remember,
- cannot be present due to death or illness, OR
- is beyond the reach of a court’s subpoena power and cannot be procured by reasonable means

Question 18

unavailable declarant hearsay exceptions

Answer 18

1. former testimony
2. dying declaration
3. statement against interest
4. statement of personal or family history
5. wrongful forfeiture

Question 19

dying declaration

Answer 19

elements to be admissible:
1. declarant is unavailable,
2. statement made under a sense of impending death, AND
3. statement was about the circumstances or cause that put the declarant in the position of impending death

NOTE: ONLY ALLOWED in civil cases & criminal homicide cases

NOTE: declarant does NOT have to die

Question 20

statement against interest

Answer 20

admissible if:
1. it’s a statement against the declarant’s penal, proprietary, or pecuniary interest when made,
2. declarant has firsthand knowledge,
3. a reasonable person in the declarant’s position would have made the statement ONLY if they believed it be true, AND
4. declarant is unavailable

Criminal cases: it MUST be supported by corroborating circumstances that clearly indicate its trustworthiness