Hearsay

Question 1

Hearsay

Statement Review

1. ) Definition of Hearsay-
2. ) Statement =
3. ) Is there a statement? Prosecution for bank robbery. To prove defendant committed the crime, a police officer testifies that, at a line-up of suspects, he asked the victim if the perpetrator was present and the victim pointed at the defendant. Statement?
4. ) Same case. To prove defendant committed the robbery, a police officer testifies that a bloodhound trained to track a scent followed a trail from the crime scene and “pointed” at defendant. Statement?
5. ). Same case. To prove defendant committed the robbery, a traffic officer testifies that he arrested the defendant for speeding just after the bank robbery because,when he pointed his radar gun at the defendant’s car, the indicator on the gun said, “vehicle is going 100 mph”. Statement?
6. ) Same case. To prove defendant committed the robbery, a police officer testifies that a computer printout of police files stated, “defendant has three prior robbery convictions”. Statement?
7. ) Same case. Defendant had previously been convicted of the bank robbery but the conviction was overturned on appeal and he is now being retried. During retrial the prosecution offers a transcript of the testimony of a witness given in the first trial. Is this an out of court statement?

Answer 1

1. ) Out of court statement offered to prove the truth of the matter asserted in that statement.
2. ) Verbal or written expression of a person or conduct by a person intended to communicate (called “assertive conduct”).
3. ) Yes. This is a statement. Assertive conduct
4. ) No. Dogs are not people.
5. ) No. Machines are not people! Could be a relevance problem or technology problem.
6. ) Yes. Instance where machine is storing something that a person put.
7. ) (Is the statement out of court?) Yes it i an out of court statement. (if the statement was made outside of this court outside of this trial)

Question 2

Hearsay

Truth of the matter asserted Review

1. Professor’s 3 step approach for determining if its offered for the truth of the matter asserted.Assuming an out of court statement,
2. ) Action for breach of contract. Defendant denies entering into the contract. Plaintiff offers the out-of-court statement of defendant’s secretary, who said “I saw the defendant sign the contract.” Hearsay? (Notice that, if the secretary was lying or mistaken, the jury would be misled.)
3. ) Not hearsay because statement has independent legal significance. Same case. Witness testifies she heard defendant say to plaintiff “I accept your offer.” Hearsay?
4. ) Defamation action. Plaintiff offers the testimony of witness who states he heard defendant say “Plaintiff cheats on his wife!” Hearsay?
5. ) Action for infliction of emotional distress. Plaintiff, a 78 year-old lady, testifies that when she was in the doctor’s office he picked up a file and said “I have wonderful news, you are pregnant!” Other evidence will show doctor read the wrong file. Hearsay?
6. ) Personal injury action. Plaintiff’s car plunged off defendant’s bridge. Defense is contributory negligence. Defendant testifies that on road leading to bridge a sign reads “Bridge Out.” Hearsay if offered to prove contributory negligence? Hearsay if offered to prove the bridge was out?
7. . Prosecution for bank robbery. To prove defendant was a member of the gang that robbed the bank, prosecutor offers evidence that the gang leader when arrested had in his pocket a piece of paper on which is written what defendant admits is his correct address and phone number. Hearsay?
8. Murder prosecution. Defense is insanity. Defense witness testifies that, on the night victim

was found with wounds on his neck, Defendant said “I am Dracula.” Hearsay?

Compare: “I feel like killing someone.”

8. Same case. To prove who committed the homicide, prosecutor asks a witness “what did you tell the police?” Witness says “I told them I saw the defendant bite the victim in the neck.” Hearsay? On MBE, watch for “not hearsay because it is the witness’ own

Answer 2

1. ) (On the exam look for the quote marks.) Three step approach: (i). Find the statement, (ii). Ask what is it offered to prove, (Does the question tell you? If not, consider who offered the evidence and what it would relevant to prove in that party’s case. That is what it the statement is offered to prove.) (iii). Given what it’s offered to prove, will jury be misled if the out of court speaker was lying or mistaken? If the answer is yes, it is hearsay. If the answer is no, it is not hearsay.
2. ) Yes. The jury would be mislead if she was lying so of course its hearsay!
3. ) No. It’s not hearsay because its offered to prove that the defendant uttered those words not that the D entered into a contract! (Notice that Contract law does not care if defendant was lying or mistaken. It only cares that he said, “I accept”.)
4. ) No. Not concerned with whether it is true or not if he cheats
   * Other examples of words with independent legal significance: “That is my land” in an adverse possession case. “I am giving you this car as a gift” in a dispute over ownership of the car.
5. ) Not hearsay because statement offered to show effect on listener. Not offered to show that the P was actually pregnant
6. ) If offered to prove the bridge is out then yes it is hearsay. If offerd to prove contributory negligence then NOOO not hearsay because its offered to state that P was put on notice.
7. ) Not hearsay because statement offered to show speaker’s (or writer’s) knowledge of

facts stated. Is being offered to show leader of gang had knowledge of the address. Not that that is the persons address

8. ) Not hearsay because statement is circumstantial evidence of state of mind. No not offering it to show that the D is Draculabut to show that they are crazy.; That could be hearsay but we will talk about exceptions later.
9. ) Hearsay even if out-of-court declarant is now in court witness. Yes the inquote witness because he is talking about a statement they made out of court

Question 3

Hearsay Exceptions and Exemptions

Answer 3

1. ) Opposing Party Statement (Exemption)
2. ) Former testimony exception.
3. ) Declaration against interest exception
4. ) Dying declaration exception.
5. ) Excited utterance exception.
6. ) Present sense impression exception
7. ) Exception for declaration of then existing physical or mental condition
8. ) Exception for statement of past or present mental or physical condition made for medical diagnosis or treatment.
9. ) Business records exception
10. ) Judgment of previous conviction.

Question 4

Hearsay

Exceptions to Hearsay

Distinguish between exceptions and exemptions

a. Distinguish opposing party statement from statements against interest exception.
1. ) Prosecution for tax evasion. Prosecution offers into evidence a financial statement defendant submitted to bank to get a loan. Statement indicates annual income over $1,000,000. Hearsay?
2. ) Wrongful death suit based on airplane crash. Plaintiff calls secretary of defendant, owner of the airline. Secretary testifies that, when he informed defendant of crash, defendant shouted, “Damn, we were negligent again!” Hearsay? Admissible?
3. ) Toy Co. is sued for selling dangerous products. Plaintiff offers (i) press release issued by defendant’s marketing department stating that new toy gun fires real bullets, and (ii) statement of defendant’s Vice President that defendant was saving 5¢ on each baby teething toy by using lead paint. Hearsay?
4. Negligence action against UPS. Plaintiff testifies UPS truck crashed through her bedroom window and driver said, “I fell asleep while driving.” Hearsay?
5. )

All are not hearsay.

Answer 4

Opposing Party Statement (formerly Party Admission). This is an exemption and, thus, not hearsay. Definition = statement by party, or by someone whose statement is attributable to a party, offered by a party opponent.

1. ) No. It is an opposing party statement.
2. ) No opposing party statement. Yes personal knowledge requirement not imposed on opponent party. Opposing party statement not subject to personal knowledge requirement or opinion rule.
3. ) No. Toyco has express authorization to speak. The VP has implied authorization to speak. (Vicarious opposing party statement. Statement by (i) authorized spokesperson of party or (ii) employee of party concerning matter within scope of employment and made during employment relationship. Authorization can be expressed or implied.
4. ) No. Made within scope of employment

Other vicarious opposing party statements: Adoptive opposing party statement (nonparty makes statement and party indicates belief in its truth) and Coconspirator statement (made during course and in furtherance of conspiracy).

Question 5

Hearsay

Exceptions to Hearsay

Distinguish between exceptions and exemptions

In addition to opposing party statement, there are the following three exemptions from the usual hearsay definition. These exemptions apply to an out of court statement from a declarant who now testifies at trial:

Answer 5

i) prior inconsistent statement given under oath at trial or deposion (p. 20),
(ii) prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive (p. 19),
(iii) statement of identification of a person made after perceiving the person (e.g., “That’s the guy who robbed me.”). All are not hearsay under FRE.

Question 6

Hearsay

Exceptions to Hearsay

• 1.) Former testimony exception.*
  2. ) When is a declarant unavailable?
  3. ) Opportunity to examine. An airplane crashes, killing all passengers. Estate of passenger “X” sued Airline for wrongful death and an expert testified at that trial against Airline concerning defects in the airplane design. The expert is now dead. Estate of passenger “Y”, who died in the same crash, subsequently sues Airline for wrongful death and offers against Airline the former testimony of the expert witness given in X v. Airline. Admissible in Y. v. Airline?
  4. ) Same case. X v. Airline (the first proceeding) was a civil nuisance suit against Airline for noise pollution. Is expert’s testimony offered against Airline in that case now admissible against the Airline in the wrongful death case, Y v. Airline?
  5. ) Same case except the former testimony was given in a deposition in the same wrongful death case (Y v. Airline) in which it is now offered into evidence at trial. Admissible?
  6. ) Expert witness testified for Airline in first wrongful death case, X v. Airline. That witness then died. Airline now offers transcript of that testimony in the second wrongful death case, Y v. Airline. Admissible

Answer 6

Testimony given by a person in earlier proceeding or deposition is admissible if

(i) the party against whom the testimony is now offered had, during the earlier proceeding, an opportunity to examine that person and the motive to conduct that exam was similar to the motive the party has now, or
(ii) in a civil case, the party against whom the testimony is now offered was not present in the earlier proceeding but has a close privity-type relationship with someone who was a party to that earlier proceeding (a “predecessor in interest”) and who had an opportunity and a similar motive to examine the witness in that earlier proceeding. Declarant must be unavailable.
2. ) (i) court exempts declarant from testifying due to privilege, (ii) declarant is dead or sick, (iii) proponent of statement cannot procure declarant’s attendance by process or other reasonable means, (iv) declarant refuses to testify despite court order, or (v) declarant’s memory fails.
3. ) (Opportunity to examine.) Yes. Declarant in unavailable. Airline was a party in the first case and had an opportunity to exam in the first case. Similiar motive.
4. ) (Similar motive to examine.) No not admissble because not same motive.
5. ) (Deposition testimony). Yes had opportunity to cross in the deposition.
6. ) (Predecessor in interest.) No. Airline is offering evidence against Y who did not have an opportunity to cross. X and Y do not have a privty-type of relationship. Just because they died in the same crash doesnt mean there is prvity.
4. )

Question 7

Hearsay

Exceptions to Hearsay

• Declaration against interest exception*
  1. ) Prosecution for tax evasion. Defendant filed tax return stating he had no income. The prosecution offers into evidence a loan application defendant submitted to a bank. Defendant stated on the application, “I earn $1,000,000 per year.” Was this a declaration against interest? Is it admissible under any other theory?
  2. ) Prosecution for murder. Defendant offers into evidence a letter he received from a friend living in Argentina. The letter states, “I committed the murder.” There is no other evidence connecting the friend to the crime. Admissible?

Answer 7

Hearsay statement is admissible if, at time it was made, it was against the financial interest of declarant or would have subjected declarant to criminal liability.

If the statement is offered to exculpate accused (i.e., by showing someone else confessed to the crime), there must be corroborating evidence to admit the statement. Declarant must be unavailable.

1. ) No. At the time the statement was made it wasn’t against his interest. YEs can get in under opposing party statement.
2. ) No. There is no corroborating evidence

Question 8

Hearsay

Exceptions to Hearsay

• Dying declaration exception*
  1. ) Civil suit contesting validity of will. Plaintiff offers testimony of witness who says he came upon accident scene and found decedent hanging out the windshield of his car. Witness testifies decedent said, “I’m a goner. My will was the product of undue influence…,” whereupon he expired. Admissible?
  2. ) Prosecution for attempted murder. Prosecutor offers evidence that, an hour after Victim was shot, he said, “I’m not going to make it. Defendant did this to me.” Victim then lapsed into a coma and has not regained consciousness. Admissible?
  3. ) Prosecution for murder in which defendant allegedly also shot but did not kill a second victim. Prosecutor offers evidence that the surviving victim, who is now in a coma, said at the scene, “Im not going to make it. Defendant killed my buddy and me.” Admissible?

Answer 8

Hearsay statement by one believing he is about to die & describing cause or circumstances leading to impending death is admissible in civil action and in homicide prosecution. Declarant need not die but must be unavailable.

1. ) No. His statement does not talk about what was the product of his death.
2. ) No. NOt a homicide case!
3. ) Yes. Homicide, statement describes the impending death, speaker belives they are about to die, and unavailable (dont have to be dead).

Question 9

Hearsay

Exceptions to Hearsay

• Excited Utterance exception*
  1. ) Personal injury action arising out of auto-truck collision. A passenger in car, the only surviving witness, lapsed into a coma upon impact. Two years later passenger suddenly emerged from the coma, sat upright in bed, and screamed, “Watch out for that truck, it’s driving the wrong way!” Excited utterance?

Present sense impression exception

2.) Murder prosecution. Defendant claims self-defense because Victim acted in a threatening manner. Witness testifies she made phone call to Victim on night of the murder and Victim said, “Joe [the defendant] just walked in the room and it looks like he wants to show me his survival knife. I’ll call you back.” Is the statement admissible to show defendant was in the room with a knife?

Exception for declaration of then existing physical or mental condition

3. ) Prosecution for theft of car. Defendant claims owner gave car to defendant as a gift. Defense offers statement of owner made the day before defendant drove off with the car, “I intend to give the car to Joe [the defendant] for his birthday tomorrow.” Admissible to show owner’s state of mind?
4. ) Same case. If the statement is admissible to prove the speaker’s intention, can the jury also infer the speaker acted in accordance with his intention and gave defendant the car as a gift?
5. ) Same case. The day after defendant took the car, owner said, “I remember that yesterday I gave Joe the car for his birthday.” Admissible to prove the owner gave defendant the car as a gift?

Answer 9

Hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition. No need to show declarant unavailable.

1.) Yes. Not focused here on timing. Focused on emotion!

Hearsay statement is admissible if describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter. No need to show declarant unavailable.

2.) Witness is describing facts simultaneos wth seeing those facts!

Hearsay statement of declarant’s then existing physical or mental condition or state of mind is admissible to show the condition or state of mind. But a statement describing a memory or belief is not admissible to prove the fact remembered or believed. Thus, “I remember/believe that the defendant shot the victim” is not admissible to prove defendant shot the victim. No need to show declarant unavailable.

3. ) Yes. Describes a person’s then exisiting intention!
4. ) Yes. It is a logical inference
5. ) No. Remembering is not a presen sense impression!

Question 10

Hearsay

Exceptions to Hearsay

Exception for statement of past or present mental or physical condition made for medical diagnosis or treatment

1. ) Personal injury action. Plaintiff testifies that he told doctor, “My back is killing me. I was hit by a car driven by someone with a suspended license.” Admissible?
2. ) Same case. Plaintiff told another patient in the emergency room, “I was feeling fine before this happened.” Can the other patient testify as to what plaintiff said?
3. ) Action for medical malpractice. Mother asks child to describe his symptoms so she can call the doctor. Child says to his mom, “My head hurts.” Mom then calls the doctor and says, “My son has a temperature of 103 and he says his head hurts.”

Business records exception

4. ) Personal injury action. Plaintiff offers hospital records, which include statement of surgeon, “Surgery to repair broken keester partly successful. Neurologist reports surgery could not repair severed nerve.” Admissible?
5. ) Same case. Plaintiff offers another part of hospital records, which state “Patient admitted with broken keester. Patient reports he was hit by car driven by someone with a suspended license.” Admissible?
6. ) Same case. Fearing he and the hospital will be sued, Surgeon writes a memo to his files stating, “Surgery went as well as could be expected and nobody committed malpractice.” Admissible?

Public records exception

7. ) Civil action against the police department for wrongful termination. Plaintiff, a former police officer, offers the police department manual to show that the department did not follow its own policies when he was fired. Admissible?
8. ) Criminal prosecution for vehicular homicide. Prosecution offers into evidence police report stating that police officer investigating the accident saw an empty vodka bottle in the cup-holder next to driver’s seat in defendant’s car. Admissible? What if this same report was offered by plaintiff in the civil tort case brought against defendant?
9. ) Civil wrongful death action against airline arising out of airplane crash. Plaintiff offers into evidence report of National Transportation Safety Board in which it concluded, “Cause of crash was pilot error.” Admissible? What if report contained statement of witness, “I saw an empty vodka bottle in the cockpit.”

Judgment of previous conviction

10. ) Prosecution for being a felon in possession of a firearm. Defendant denies he is a felon. The prosecutor offers into evidence a certified copy of the judgment of conviction of defendant for robbery, a felony. Admissible?
11. ) Prosecution for murder. Defendant denies the victim is dead. Prosecutor offers

into evidence a certified copy of the judgment of conviction of defendant’s

accomplice who was previously tried and found guilty of the same murder.

Admissible to prove the victim died?

Answer 10

Hearsay statement by one person concerning the past or present mental or physical condition, or its cause, of that person or any other person, is admissible if made for and pertinent to medical diagnosis or treatment. No need to show declarant unavailable.

1. ) Yes “My back is killing me.” is admissible. “ I was hit by a car.” is admissble. “He had a suspended license” is not pertinent to diagnosis or treatment so it is inadmissble.
2. ) No not made for medical diagnosis or treatment. (Present sense impression doesn’t apply either”
3. ) Hearsay within Hearsay. Child speaking to mom is admissble (Also admissible under present sense impression). Mom’s statemet to the doc is admssible under the medical exception but not present sense impression.

Hearsay is admissible if it is (i) a record of events, conditions, opinions or diagnoses (ii) kept in course of regularly conducted business activity (iii) made at or near time of matters described (iv) by person with knowledge of the facts in that record, (v) it was regular practice of business to make such record. Court may exclude if untrustworthy. No need to show declarant unavailable.

4. ) Business records exception can cover multiple levels of hearsay. Business exception covers all the hearsay in this question.
5. ) Most of it is admissible but will redact the inadmissble statement concerning the suspended license.
6. ) ( Records created in anticipation of litigation are not business records) No. record was created in anticipation of litigation

Hearsay record of a public office is admissible if within one of the following categories: (i) record describes activities and policies of the office; (ii) record describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases); or (iii) record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy. In criminal case, prosecution cannot use (iii). No need to show declarant unavailable.

7. ) Yes.
8. ) No; Yes it is a civil case.
9. ) Yes; No admissble because what the person said is not covered by the public record exception.

Hearsay statement describing felony conviction (eg, copy of the judgment of conviction) is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accusedare inadmissible. No need to show declarant unavailable.

10. ) Yes.
11. ) No. because it is a judgment offered againt the accomplish offered against the D.

Question 11

The Confrontation Clause

Confrontation Clause. CC excludes an out-of-court statement when:

1. ) Prosecution for murder. The perpetrator shot victim in a large shopping mall the day before Christmas. When the police arrived the shooter was still at large in the mall and posed a danger to others. Victim told the police, “I’m so excited! The guy who shot me was dressed as Santa.” Admissible”?
2. ) Same case. When the police arrived they arrested Defendant, who was working as a department store Santa, because a co-worker saw a gun hidden in his beard. The police then interviewed Victim, who said, “I going fast. The guy who shot me was dressed as Santa.” Admissible”?

Answer 11

• if declarant does not testify at the trial, is now unavailable, the statement is “testimonial”, and defendant had no chance to cross-examine declarant about the statement when it was made. The full meaning of “testimonial” is unclear, but it at least applies to statements made in court and statements made to further a police investigation aimed at producing evidence for a prosecution. Statements to police to deal with an ongoing emergency are non-testimonial and their admission does not violate the CC.
  1. ) Yes. Dying Declaration. Next objection: CC…Ruling: This is not testimonial evidence. Was collected because officer gathered this evidence to find out what was going on. Not to collect evidence.
  2. ) No. This was collected for the purpose of conducting an investigation. D should have an opportunity to cross