Hearsay

Question 1

When is a evidence of a final judgment of conviction not excluded as hearsay

Answer 1

3 reqs…

(1) if the judgment was entered after a trial or guilty plea
(2) the conviction was for a crime punishable by death or imprisonment for more than one year
AND
(3) and the evidence is offered to prove any fact essential to sustain the judgment.

Question 2

Forefeiture of hearsay (E) & confrontation objections

Answer 2

Objection to use of unavailable declarant’s hearsay statement is forfeited if party:
1. wrongfully caused, or acquiesced in causing, declarant’s unavailability
and
2. did so** intending** that result

==>CC requires the D to have acted with the particular purpose of making the witness unavailable. The mere fact that the declarant is unavailable due to the defendant’s act (e.g., murder of the witness) is not sufficient when the defendant is on trial for the act that made the witness unavailable.

SOP = Party attempting to prove forfeiture must do so by preponderance of evidence—ie, greater weight of evidence (more than 50%) supports argument

The wrongdoing, which need not be criminal, may be accomplished by a deliberate act or by acquiescing to another’s act, but must be done with the intent of preventing the witness from testifying.

This exception applies to all parties, including the government.

Question 3

Statement Against Interest (E)

Answer 3

A statement made by a declarant who is unavailable to testify is not excluded as hearsay if the statement:

i) Was against the declarant’s interest (proprietary or pecuniary/ inval claim against another/ subject to civil or crim liabil) at the time it was made; and

ii) Would not have been made by a reasonable person unless he believed it to be true.

==> tends to invalidate declarant’s claim against someone else or exposes declarant to civil or criminal liability

EXCEPTION: A statement offered in a criminal case that would subject the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

**Opposing party’s statement distinguished **
A statement against interest …
-may be made by a non-party,
-the declarant must be unavailable,
-and the statement must have been against the declarant’s interest at the time it was made.

An opposing party’s statement …
-must have been made by a party,
-and the statement need not have been against the party’s interest when it was made

Question 4

Avail decl 2 Exceptions

Answer 4

1. SOM
2. Present Sense Impression

Question 5

Expert testimony x Hearsay

Answer 5

Expert witness testimony may be based on a hearsay statement if other experts in the field would reasonably rely on it. But the statement itself is inadmissible unless (1) it is excluded or excepted from the hearsay rule or
(2) its probative value in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect.

Question 6

Property Interest

Answer 6

Statements in documents that purport to affect a property interest are excepted from hearsay if
(1) the matter stated was relevant to the document’s purpose and
(2) later dealings with the property do not contradict the truth of the statement or the purport of the document.

Question 7

Medical x Hearsay

Answer 7

Hearsay EXCEPTIONS:

1. A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition ** =
==> When a declarant’s physical condition at a particular time is in question, a statement of the declarant’s mental feeling, pain, or bodily health made at that time** can be used to prove the existence of that condition but not its cause.
==> In most states, a statement made by a patient to a doctor relating to a past condition is **not admissible **under this exception

**2. Statement Made for Medical Diagnosis or Treatment **
-A statement describing medical history or past or present symptoms is not excluded as hearsay if it is **made for medical diagnosis or treatment. **
-A statement of the cause or source of the condition is admissible as an exception to the rule against hearsay if it is reasonably pertinent to diagnosis or treatment. ==> think v literally about this
==> Includes to nontreating doc/ other non-MD medical personell/ statements made by other

3. Buisness Records
Medical records are considered business records to the extent that the entries relate to diagnosis or treatment. Statements related to fault associated with the cause of injury generally do not qualify under the business records exception.

4. Excited Utterances statements related to a startling event or condition that are made while the declarant is still under the stress of the excitement caused by the event or condition or ==> may also encompass some statements made in med setting

Physician-Patient Privilege is different ==> patient holds the privilege thus, only the patient may decide whether to waive it. The privilege does not exist if:
i) The information was acquired for reasons other than treatment;
ii) The patient’s physical condition is at issue;
iii) The communication was made as part of the commission of a crime or tort;
iv) A dispute exists between the physician and the patient;
v) The patient contractually agreed to waive the privilege; or
vi) A case is brought in federal court and state law does not apply (e.g., most cases that involve a federal question).

Question 8

Former Testimony (E)

Answer 8

Hearsay exception for unavailable declarant’s testimony that:

1. was given at trial, hearing, or deposition in current case or different proceeding
2. that involved **similar parties & issues **and
3. is offered against party who had opportunity & similar motive to develop testimony by direct or cross-examination

The parties need not be identical in the two actions for the former testimony of an unavailable declarant to be admissible.

A declarant is unavailable if (1) he/she is absent from the trial or hearing and (2) the proponent could not obtain the declarant’s attendance by subpoena or other reasonable means.

Question 9

Non-Hearsay Statements

Answer 9

1. Statement by decl-witness (prior consis/ inconsis/ ID)
2. Statement by party-opponent

a previous out-of-court identification of a person after perceiving that person is admissible as substantive evidence, but only if the witness testifies at the present trial or hearing and is subject to cross-examination concerning the identification.

Question 10

Statement by Decl Witness (non-hearsay)

Answer 10

Out-of-court statement admissible if
1. witness subject to cross-examination &
2. prior statement:
(a) is inconsistent with current testimony & was made under penalty of perjury
(b) is consistent with current testimony & offered to (i) rebut charge of fabrication/improper influence or (ii) rehabilitate witness
or
(c) identifies person witness perceived earlier

Question 11

Statement by party-opponent (non-hearsay)

Answer 11

Out-of-court statement admissible if 1. **offered against opposing party **&
2. statement was:
(a) made or adopted by party
(b) made by person authorized by party
(c) made by party’s agent/employee on matter within scope of relationship
or
(d) made by party’s coconspirator during & in furtherance of conspiracy

RE agent statements: the declarant was the opposing party’s agent—ie, had actual or apparent authority to act on the party’s behalf and the statement
(1) was made during the agency relationship and
(2) concerned a matter within the scope of that relationship.

Question 12

What constitutes an unavail decl?

Answer 12

An unavailable declarant is a person who:

i) Is exempt on the grounds of privilege;

ii) **Refuses **to testify despite a court order to do so;

iii) Lacks **memory **of the subject matter of the statement;

iv) Is unable to testify due to death, infirmity, or physical or mental disability; or

v) Is absent and cannot be subpoenaed or otherwise made to be present.

==> A declarant is not deemed unavailable if the unavailability is due to the procurement or wrongdoing of the proponent of the statement in order to prevent the declarant from testifying at or attending the trial.

Question 13

What are the 5 hearsay exceptions for a non-avail decl?

Answer 13

Sx3 DF

1. statement against interest
2. statement of personal or family history
3. statement offered against a party that wrongfully caused the declarant’s unavailability
4. dying declaration
5. former testimony

Question 14

Dying Decl (E)

Answer 14

A statement qualifies as a “dying declaration” if:

i) The declarant believes that her death is imminent; and

ii) The statement** pertains to the cause or circumstances of the death** she believes to be imminent.

Under this exception to the hearsay rule, although the declarant must be unavailable, the **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 15

Statement of Personal or Family History (E)

Answer 15

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 16

Hearsay Def

Answer 16

Out of court (out of THIS court, not any court)

Statement (by a person!!, dog barks and machine output dont count)/

offered for the truth of the matter asserted (look out for it coming in for other purposes, then ok)

Question 17

Business Records (E)

Answer 17

Records of regularly conducted business activity—ie, business records that are:
1. made at or near the time of the recorded event (or act, condition, opinion, diagnosis)
2. made **by or based on information from someone with personal knowledge **of that event and
3. made and kept as a regular practice in the course of regularly conducted business activities.

LOOK OUT FOR IT BEING IN ANTIC OF LIT!
Just need personal knowledge/ does not need to b custodian

Question 18

Learned Treatise

Answer 18

Evidence such as this book, while technically hearsay, is **admissible under the learned treatise exception to the hearsay rule. **

A statement contained in published treatises or periodicals on a subject of history, medicine, or other science or art is admissible if
(i) the treatise is established as a reliable authority by the testimony of a witness, expert, or by judicial notice, and **
(ii) an expert relied on it** during direct examination or it was brought to the expert’s attention on cross-examination.

If these requirements are met**, the statement contained in the treatise may be read into evidence, and may be used as substantive evidence and for impeachment purposes. **
**
The treatise itself, however, is not admitted into evidence. **

Question 19

Evid of an orgs routine practice

Answer 19

Under Federal Rule of Evidence (FRE) 406, evidence of an organization’s routine practice is admissible to prove that the organization acted in accordance with that practice on a particular occasion.

Any witness who is familiar with the organization (eg, the agent’s supervisor) can testify regarding the existence of a routine practice (eg, discussing supplemental policy options with each customer).