Hearsay

Question 1

Rule 801(c)

Answer 1

Hearsay is an out of court statement offered in evidence to prove the truth of the matter asserted.

Question 2

Rule 802

Answer 2

Hearsay is not admissible unless provided otherwise.

Question 3

Prior Statements by a Party Opponent [R.801(d)(2)]

Answer 3

 The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Question 4

Rule 803

Answer 4

Hearsay exceptions regardless of declarant’s availability

Question 5

Present Sense Impression; Rule 803(1)

Answer 5

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Question 6

Excited Utterance; Rule 803(2)

Answer 6

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Question 7

Then-Existing Mental, Emotional, or Physical Condition; Rule 803(3)

Answer 7

A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Question 8

Past Recollections Recorded;Rule 803(5)

Answer 8

A record that is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; was made or adopted by the witness when the matter was fresh in the witness’s memory; and accurately reflects the witness’s knowledge.

Question 9

Records of a Regularly Conducted Activity; Rule 803(6)

Answer 9

the record was made at or near the time by someone with knowledge; the record was kept in the course of a regularly conducted activity of an organization; making the record was a regular practice of that activity; all these conditions are shown by the testimony of the custodian or another qualified witness.

Question 10

Absence of a Record of a Regularly Conducted Activity; Rule 803(7)

Answer 10

Evidence that a matter is not included in a business record is admissible if the evidence is admitted to prove that the matter did not occur or exist; a record was regularly kept for a matter of that kind; and nothing indicates a lack of trustworthiness.

Question 11

Public Records; Rule 803(8)

Answer 11

A record or statement of a public office if it sets out:
The office’s acitvities;
A matter observed while under a legal duty to report, butut in criminal case, not including a matter observed by law-enforcement personnel; OR
In a civil case or against the government in a criminal case, factual findings from a legally authorized investigation.
Nothing indicates a lack of trustworthiness.

Question 12

Rule 804

Answer 12

Hearsay exceptions, declarant unavailable

Question 13

Rule 804(a) Declarant Unavailable

Answer 13

The court rules that a privilege applies;
Refuses to testify about the subject matter despite a court order to do so;
Testifies to not remembering the subject matter;
Cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
Is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure her attendance
But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Question 14

Former Testimony; 804(b)(1)

Answer 14

was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Question 15

Dying Declarations; 804(b)(2)

Answer 15

In a prosecution for homicide or in a civil case, a statement that the declarant, while believing his death to be imminent, made about its cause or circumstances.

Question 16

Declarations Against Interest; 804(b)(3)

Answer 16

A statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because it was so contrary to the declarant’s interest; and that is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Question 17

805

Answer 17

Hearsay within Hearsay: Hearsay within hearsay is admissible if each level of hearsay falls under an exception to the hearsay rule.

Question 18

806

Answer 18

When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.

Question 19

807

Answer 19

Residual Exception: Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay:

• the statement has equivalent circumstantial guarantees of trustworthiness;
• it is offered as evidence of a material fact
• it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
• admitting it will best serve the purposes of these rules and the interests of justice.
• Note: admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement

Question 20

Ohio v. Roberts

Answer 20

Hearsay does not violate the confrontation clause if the statement bore adequate indicia of reliability.
Reliability is derived from a long-standing exception to hearsay or other indicia of reliability.

Question 21

Crawford

Answer 21

An out-of-court “testimonial” statement may be used against the accused only if the declarant is either:

• Available for cross-examination; OR
• Proved to be unavailable AND the testimonial statement was subject to cross-examination by the accused previously.

Question 22

Davis v. Washington

Answer 22

Statements made to officers for the primary purpose of enabling police assistance to meet an ongoing emergency, in contrast with statements made to establish or prove past events potentially relevant to a later prosecution, are not “testimonial.”

Question 23

Michigan v. Bryant

Answer 23

In assessing whether the statements were testimonial, the Court considered the time since the crime, the nature of the crime, the type of weapon used, the victim’s medical state, and the formality of the questioning.

Question 24

Giles

Answer 24

Rule 804(b)(6) supports the conclusion that a party who wrongfully causes the declarant to be unavailable forfeits the right to use the 804 exceptions to hearsay, despite the Confrontation Clause. However, the Court held that there is no forfeiture unless the party intended that result.