Hearsay

Question 1

What is hearsay?

Answer 1

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

Question 2

Is hearsay usually admissible?

Answer 2

No hearsay is generally inadmissible, subject to exceptions.

Question 3

How do you determine if the statement is hearsay?

Answer 3

1. find the statement
2. ask what it is offered to prove?
3. given what its offered to prove, will the jury be misled if the out of court speaker was lying or mistaken?

Question 4

what is the difference between exceptions and exemptions?

Answer 4

exemptions = admissible bc not hearsay
exceptions = Hearsay but admissible

Question 5

what are the four hearsay exemptions?

Answer 5

1. Opposing Party Statement
2. Prior inconsistent statement given under oath at trial or deposition.
3. Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive or to rebut another attack on credibility.
4. Statement of identification of a person made perceiving the person

Question 6

what is an opposing party statement?

Answer 6

1. statement by party or someone whose statement is attributable to a party
2. offered by a opposing party

Question 7

what are the 10 hearsay exceptions?

Answer 7

1. Former Testimony Exception
2. Declaration Against Interest Exception
3. Dying Declaration Exception
4. Excited Utterance Exception
5. Present Sense Impression Exception
6. Existing Physical or Mental Condition Exception
7. Statement of mental or physical condition made for medical diagnosis or treatment.
8. Business Records Exception
9. Public Records Exception
   10 Judgment of Previous Conviction Exception

Question 8

what is the acronym for hearsay exceptions

Answer 8

FEEDS BDP PJ

Question 9

1. What are the elements of the Formal Testimony Exception?

Answer 9

1. Testimony by person in earlier proceeding or deposition is admissible if:
   a. 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.
   b. in 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 and who had an opportunity and a similar motive to examine the witness in that earlier proceeding.
   c. declarant must be unavailable.

Question 10

when are declarants unavailable?

Answer 10

1. exempt due to privilege.
2. sick or dead
3. cannot procure attendance by process or reasonable means
4. refuses to testify despite court order
5. memory fails.

Question 11

what is former testimony exception in simpler words?

Answer 11

1. the party whom testimony was offered against
2. had an opportunity and similar motive to examine that person.
3. declarant must be unavailable.

Question 12

What is the declaration against interest exception?

Answer 12

1. Declarant’s statement at the time it was made was
2. against his financial interest or
3. would’ve subjected declarant to criminal liability
4. if statement is offered to exculpate accused, there must be corroborating evidence.
5. Declarant must be unavailable.

Question 13

What is the dying declaration exception? In what cases is it admissible?

Answer 13

One believing he is about to die, describes causes or circumstances leading to impending death is admissible in civil and homicide prosecution.

Declarant must be unavailable.

Question 14

What is the excited utterance exception?

Answer 14

statement made while under stress or excitement caused by event or action.

Question 15

What is the Present sense impression exception?

Answer 15

statement describing an event or condition made while declarant was perceiving the event or event or immediately thereof.

Question 16

What is the existing physical or mental condition exception?

Answer 16

statement of declarant’s then existing physical or mental condition or state of mind.

Question 17

what is the statement of medical or physical condition made for medical diagnosis or treatment?

Answer 17

statement concerning mental or physical condition, or its cause, is admissible if made for and pertinent to medical diagnosis or treatment.

Question 18

What is the business records exception?

Answer 18

admissible if

(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 facts in the record
(v) it was regular practice of business to make such record
(vi) opponent does not show untrustworthy

not admissible if records created in anticipation of litigation.

Question 19

what is the Public Records Exception?

Answer 19

public record admissible if within one of the following categories:

1) describes activities and policies of the office
2) record describes matters observed pursuant to duty imposed by law ( not criminal police reports)
3) record contains factual findings resulting from investigation made pursuant to authority granted by law, unless opponent shows untrustworthy (Not criminal)

Question 20

what is the judgment of previous conviction

Answer 20

describing felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment.

doesnt count for other’s convictions.

Question 21

what is the significance of the Confrontation Clause?

Answer 21

The CC excludes an out of court statement if declarant does not testify at trial, is now unavailable, the statement is testimonial*, and defendant had no chance to cross-examine declarant about statement when it was made.

testimonial means made to further a police investigation aimed at producing evidence for a prosecution. if the admission deals with an ongoing emegency are non testmonial.

Question 22

What hearsay exceptions require an unavailable declarant?

Answer 22

1. former testimony
2. dying declaration
3. declaration against interests

Question 23

Can extrinsic evidence be used for impeachment by contradiction?

Answer 23

yes unless it attacks a collateral matter.

Question 24

can a prior inconsistent statement be admissible?

Answer 24

yes if its under oath.

Question 25

can extrinsic evidence be used for impeachment by prior inconsistent statement?

Answer 25

yes unless attacks collateral matter and if witness given opportunity to explain or deny.

Question 26

can extrinsic evidence be used for impeachment by bias?

Answer 26

yes if given opportunity to explain.

Question 27

what are the 5 impeachment catergories?

Answer 27

1. impeachment by contradiction
2. impeachment by prior inconsistent statement
3. impeachment by bias
4. impeachment by past conviction
5. impeachment by opinion regarding truthfulness?

Question 28

is extrinsic evidence allowed to prove impeachment by contradiction?

Answer 28

yes, unless it attacks a collateral matter.

Question 29

is extrinsic evidence allowed to prove impeachment by prior inconsistent statement?

Answer 29

yes if had chance to deny, but it has to be under oath.

Question 30

is extrinsic evidence allowed to prove impeachment by bias?

Answer 30

yes if had chance to deny.

Question 31

is extrinsic evidence allowed o prove past conviction?

Answer 31

yes as long as its not misconduct.

if felony or misdemeanor for false statement less than 10 years after being released, then no unfair prejudice est.

if felony not involving false statement court can do test

if misdemeanor not involving false statement, not admissible.

if misconduct involving acts of lying, cannot use extrinsic evidence. have to ask them.