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

what is a statement?

Answer 2

verbal or written expression of person or conduct by a person intended to communicate.

Question 3

what is the hearsay method?

Answer 3

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

Question 4

what are the exemptions to hearsay?

Answer 4

1. Opposing Party Statement
2. Prior Inconsistent Statement
3. Consistent Statement
4. Statement of Identification

Question 5

what is the significance of exemptions to hearsay?

Answer 5

admissible because not hearsay

Question 6

what is an opposing party statement exemption? (formerly party omission)

Answer 6

statement by party (or someone whose statement is attributable to a party) offered by opposing party.

Question 7

does the personal knowledge requirement or opinion rule apply to the opposing party statement exemption?

Answer 7

No.

Question 8

how do you know if a statement is attributable to a party?

Answer 8

1) authorized spokesperson of party or

2) employee of party concerning matter within scope of employment and made during employment relationship.

Question 9

what is the prior consistent statement exemption

Answer 9

prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive or to rebut another attack on credibility

Question 10

what is the prior inconsistent statement exemption?

Answer 10

prior inconsistent statement given under oath at trial or deposition

Question 11

what is the statement of identification exemption?

Answer 11

statement of identification of a person made after perceiving the person.

Question 12

what are the 10 exceptions to hearsay?

Answer 12

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

Question 13

what is the Former testimony exception?

Answer 13

witness who testified at trial is

(1) no longer available
(2) opposing party had opportunity to examine
(3) and the motive for opposing party to examine is similar to motive now.

Question 14

whats is the exception to former testimony exception?

Answer 14

if testimony given by person in earlier proceeding is being used against a party who wasnt a party to the last proceeding, it can be used if that party has a close-privity type relationship with someone who was a party to that earlier proceeding and who had opportunity and similar motive to examine.

Question 15

declarant is unavailable if

Answer 15

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
v) memory fails

Question 16

what is the declaration against interest exception?

Answer 16

1) declarant unavailable made
2) statement
3) at time it was made, was against financial interest of declarant or would have subjected declarant to criminal liability.

if the statement is offered to exculpate accused there must be corroborating information

Question 17

what is the difference between declaration against interest and opposing party statement?

Answer 17

opposing party has to be made by a party.

Declaration against interest can be made by anyone.

opposing party statement doesnt have to be against interest.

Question 18

What is the Dying Declaration Exception?

Answer 18

statement made by unavailable declarant believing he is about to die and describes cause or circumstances leading up to his death. Applies in civil cases and homicide for criminal.

Question 19

Does the Dying Declaration Exception apply in criminal cases.

Answer 19

Yes but only for Homicide cases.

Question 20

What is the Excited Utterance Exception

Answer 20

statement made while declarant was still under stress of excitement caused by event or condition.

Question 21

What is the Present Sense Impression Exception

Answer 21

describing an event or condition while declarant was perceiving the event or condition or immediately thereafter

Question 22

What is the Declaration of then existing physical or medical condition exception?

Answer 22

statement of declarant’s then existing physical or mental condition or state of mind is admissible to show the condition or state of mind. (intent)

cannot be describing memory or belief (“i remember/i believe)

Question 23

what is the exception for statement of past or present mental or physical condition made for medical diagnosis?

Answer 23

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.

Question 24

what is the business records exception?

Answer 24

statement is admissible if

1) a record of events, opinions, or diagnoses
2) kept in course of regularly conducted business activity
3) made at time or near time of matters described
4) by person with knowledge of facts
5) it was a regular practice of business to make record
6) opponent does not show untrustworthy

cannot be recorded in anticipation of litigation

Question 25

what is the public records exception?

Answer 25

record of a public office is admissible if

i) record describes activities and policies of office
ii) record describes matters observed pursuant to duty imposed by law (but not police reports in criminal case)
iii) record contains factual findings resulting from investigation made pursuant to authority granted by law, unless opponent is untrustworthy

criminal prosecution cannot use iii)

Question 26

what is judgment of previous conviction exception?

Answer 26

statement describing felony 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 person other than the accused are inadmissible.

Question 27

what is confrontations clause?

Answer 27

inadmissible if 
witness does not tesifty at trial
is now unavailable
the statement is testiomonial
and defendant had no chance to cross examine

testimonial statement is when there is no ongoing emergency, and statement is used to further a police investigation aimed at producing evidence for prosecution.

Question 28

Business Exception to Hearsay

Answer 28

1. Record of events
2. kept in the course of regularly conducted business
3. made at or near time of matter
4. by person who has knowledge of the facts
5. it was regular practice of business to make such records
6. opponent is not untrustworthy

Question 29

what is the public records exception to hearsay

Answer 29

1. record describes activities or policies of the office
2. record describes matters observed pursuant to duty of law (but not police reports in criminal cases)
3. factual findings resulting from investigation (prosecution cannot use this in criminal case)

Question 30

judgment of previous conviction

Answer 30

judgment of previous conviction is hearsay but admissible if it proves fact esstential to the judgment, except when prosecution offers it for other than impeachment.