Hearsay

Question 1

Hearsay: definition

Answer 1

1) out of court statements

2) offered to prove truth of the matter asserted

Question 2

Common Non-hearsay Purposes

Answer 2

1) verbal act: legally operative words
2) show effect on person who heard or read the statement
3) circumstantial evidence of speaker’s state of mind

Question 3

Hearsay: prior statements of trial witnesses, general rule

Answer 3

a witness’s own prior statement if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSIBLE unless an exception or exclusion applies

Question 4

Hearsay: prior statements of trial witnesses, exceptions

Answer 4

1) identification of person
2) prior inconsistent statement IF oral, under oath, made during formal hearing, deposition, or trial
3) prior consistent statement IF being used to rebut charge of recent fabrication or improper motive or influence

Question 5

Hearsay: party admissions (opposing party statements) general rule

Answer 5

1) any statement made or adopted by a party is admissible for the truth of the matter asserted
2) if offered against a party

Question 6

Hearsay: adoption by silence

Answer 6

1) party who hears another person’s statement

2) remains silent under circumstances in which a reasonable person would protest if the statement was false

Question 7

Hearsay: vicarious party admission

Answer 7

1) statement by employee/agent
2) ADMISSIBLE against employer/principal
3) IF concerns matter within scope of employment/agency
4) and is made during the existence of the employment/agency relationship

Question 8

Hearsay: co-conspirator’s statement

Answer 8

1) ADMISSIBLE if

2) made during and in furtherance of the conspiracy

Question 9

Hearsay: exclusions, or “non-hearsay”

Answer 9

1) identification of person
2) prior inconsistent statement IF oral, under oath, made during formal hearing, deposition, or trial
3) prior consistent statement IF being used to rebut charge of recent fabrication or improper motive or influence
4) party admissions
5) Vicarious party admissions
6) co-conspirator’s statements

Question 10

Hearsay: exceptions

Answer 10

1) forfeiture by wrongdoing
2) former testimony
3) statement against interest
4) dying declaration
5) excited utterance
6) present state of mind
8) declaration of intent
9) present physical condition
10) statement for purpose of medical treatment or diagnosis
11) business records
12) public records

Question 11

Confrontation Clause: rule

Answer 11

1) 6th amend
2) prosecution may not use hearsay statement against criminal D IF:
3) statement is testimonial
4) declarant is unavailable
5) D has had no opportunity for cross-exam before, after, during trial

Question 12

Confrontation Clause: grand jury

Answer 12

testimonial

Question 13

Confrontation Clause: testimonial statements in response to police interrogation

Answer 13

1) primary purpose of questioning
2) is to establish or prove
3) past events potentially relevant to later criminal prosecution

Question 14

Confrontation Clause: non-testimonial statements in response to police interrogation

Answer 14

1) primary purpose of questioning
2) is to enable police assistance
3) to meet an ongoing emergency

Question 15

Confrontation Clause: ongoing emergency

Answer 15

1) situation in which the crime has recently ended
2) perpetrator is armed
3) he still poses a threat to the victim
4) OR the police or public at large

Question 16

Confrontation Clause: documents

Answer 16

1) business record = non-testimonial
2) sworn affidavits = testimonial
3) forensic lab report = testimonial if primary purpose is to accuse a targeted individual

Question 17

Confrontation Clause: forensic lab reports

Answer 17

1) testimonial if primary purpose is to accuse a targeted individual
2) DNA report is non-testimonial if analyzes a sample of fluid collected from crime scene for the purpose of developing a DNA profile if no particular person is suspected
3) no violation if prosecutor calls testifying expert who performed an independent analysis of the data and the expert only generally refers to the report to show a partial basis for her opinion without reading the report to the jury or introducing it as an exhibit

Question 18

Hearsay exception: forfeiture

Answer 18

1) declarant unavailable due to D’s wrongdoing
2) court must find:
3) by preponderance of evidence
4) D’s conduct designed to prevent
5) witness from testifying
6) also a confrontation clause waiver

Question 19

Hearsay exception: former testimony of now-unavailable witness

Answer 19

1) if given at a former proceeding or in a deposition
2) admissible against a party
3) who had prior opportunity and motive to cross-exam or develop the testimony of the witness
4) issue in both proceedings must be essentially the same
5) NOTE: grand jury testimony not ok for prosecution witness but Ok for defense b/c prosecution had opportunity and motive to develop testimony

Question 20

Hearsay exception: grounds for unavailability of witness

Answer 20

1) privilege
2) cannot find witness with due diligence
3) beyond the court’s subpoena powers
4) illness or death
5) lack of memory which cannot be refreshed
6) stubborn refusal to testify

Question 21

Hearsay exception: statement against interest

Answer 21

1) applies to all unavailable witnesses

2) must be against pecuniary, proprietary, or penal interests

Question 22

Hearsay exception: statement against interest vs. party admission

Answer 22

1) against interest when made vs. offered against
2) any person vs. party
3) personal knowledge is required for against interest
4) declarant must be unavailable vs. party

Question 23

Hearsay exception: statement against penal interest in criminal case

Answer 23

must be supported by circumstances showing trustworthiness of the statement

Question 24

Hearsay exception: dying declaration

Answer 24

1) statement made under belief of impending and certain death by a now-unavailable declarant concerning cause or surrounding circumstances of the declarant’s death
2) criminal for homicide cases
3) civil for any case

Question 25

Hearsay exception: Excited Utterance

Answer 25

1) statement concerning a startling event

2) and made while declarant is still under the stress of excitement caused by event

Question 26

Hearsay exception: Excited Utterance what to look for

Answer 26

1) nature of event
2) passage of time
3) visual clues: exclamatory phrase, excitement oriented verbs, exclamation point

Question 27

Hearsay exception: present sense impression

Answer 27

1) description of an event made while the event is occurring or immediately thereafter
2) immediately means seconds

Question 28

Hearsay exception: present state of mind

Answer 28

1) contemporaneous statement

2) concerning declarant’s present state of mind, feelings, emotions

Question 29

Hearsay exception: declaration of intent

Answer 29

1) statement of declarant’s intent
2) to do something in the future including
3) intent to engage in conduct with another person

Question 30

Hearsay exception: present physical condition

Answer 30

1) statement made to anyone

2) about declarant’s current physical condition

Question 31

Hearsay exception: statement for purpose of medical treatment or diagnosis

Answer 31

1) may be made to anyone, but most often medial personnel
2) for the purpose of obtaining medical treatment or diagnosis
3) IF it concerns declarant’s
4) present symptoms
5) past symptoms
6) general cause of condition
7) not including statements describing details of liability or identity of tortfeasor unless in an abuse case
8) does not include statements made by doctor to patient

Question 32

Hearsay exception: business records, elements

Answer 32

1) records of a business of any type
2) made in the regular course of business
3) the business regularly keeps such records
4) made contemporaneously
5) contents consist of information observed by employees of the business or statement that falls within an independent hearsay exception

Question 33

Hearsay exception: proving business records foundation

Answer 33

1) call sponsoring witness to testify to 5 elements
2) witness need not be author of report, just a knowledgeable person in business or records custodian
3) written certification under oath attesting to elements of business records with advance notice to opposing party

Question 34

Hearsay exception: public records

Answer 34

Records of public office or agency setting forth:

1) activities of the office or agency
2) matters observed pursuant to a duty imposed by law
3) findings of fact or opinion resulting from an independent investigation authorized by law
4) POLICE REPORTS excluded in criminal cases when prepared for prosecutorial purposes

Question 35

Impeachment of Hearsay declarant’s

Answer 35

1) any impeachment method

2) if inconsistent statement, the usual requirement that the declarant be given an opportunity to respond is waived