Hearsay

Question 1

Declarant-Focused Definition

Answer 1

An Out of Court Statement whose probative value depends on the credibility of the declarant..

Question 2

Assertion-Focused Definition

Answer 2

An out of court statement offered to prove the truth of the matter asserted.

Question 3

Statement.

Answer 3

a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Question 4

Public Records Exception (Investigative Reports)

Answer 4

Admissible in Civil Actions and Against Prosecution in Criminal cases.
Requirements;
1) Report Contains Factual Findings
2) Is Based on legally authorized investigation.
Factors for admissibility:
A) Timeliness of the investigation
B) Special Skill or experience of the official
C) Whether a hearing was held.
D) Possible motivational problems.

Question 5

Business v. Public Records Rules Compared

Answer 5

Many public records will satisfy the Business Record rule.

• Businesses are not run by the government.
• Public Records are not required to be recorded at or near the time of the event recorded.
• Public records does not need to be REGULAR OR ROUTINE.
• Absence of Public Records requires - showing of a diligent search.

Question 6

Learned Treatises

Answer 6

Common Law: Admissible only for: 
- Impeachment of experts. 
FRE 803(18) - Admissible for Substantive Evidence: 
B/C 
- Treatises are impartial
- Subject to Scrutiny (peer review)
- Reputation of writer at stake

Question 7

Limitations to the Learned Treatises Rule

Answer 7

1) Treatise may be used as substantive evidence only when an expert is on the stand.
- Expert must explain and assist the application of the treatise
2) Treatise may be read to the jury, but not received as an exhibit (B/C of jury misuse in the jury room).

Question 8

Judgement from a Previous Conviction

Answer 8

Hearsay Exception for judgments of previous criminal convictions when offered to prove any fact essential to the judgment.
- Applies only to Criminal Judgments punishable by DEATH or MORE THAN ONE YEAR IMPRISONMENT. (FELONY). Max punishment , not actual punishment.

Question 9

Kirby V. United States (Limitation to Impeachment in Criminal Cases based on constitutional concerns).

Answer 9

Defendant charged with stolen postage stamps, only evidence = prior conviction by thieves.
Inadmissible because the evidence was of a 3rd party conviction.

Question 10

Forfeiture by Wrongdoing : FRE 804(b) (6)

Answer 10

Statements offered against a party who causes the unavailability of a declarant by Wrongdoing:
- Killing / Scaring a Witness.
Applies When:
1) A party “wrongfully causes, or acquiesced to causing”
2) the declarant’s unavailability as a witness.

Question 11

Hearsay and the Confrontation Clause

Answer 11

Confrontation Clause applies only to TESTIMONIAL out of court statements.

Question 12

Testimonial Out of Court Statement

Answer 12

1) Preliminary hearing testimony
2) grand jury testimony,
3) former trial testimony
4) statements made during police interrogations.

Question 13

Non-Testimonial

Answer 13

Statements made to police on a 911 call are non-testimonial when the objective circumstances indicate that the primary purpose of the questioning was to enable police to respond to an ongoing emergency.