Hearsay

Question 1

Hearsay

Answer 1

an out of court statement introduced to prove the truth of the matter asserted.

Question 2

When is double hearsay admissible?

Answer 2

Only if both hearsay are within an exception to hearsay.

Question 3

For the purposes of hearsay, a “statement” can be . . .

Answer 3

1) an oral statement; or 2) nonverbal conduct intended to be assertive.

Question 4

Can animals or machines make hearsay statements?

Answer 4

No

Question 5

What types of statements are not considered hearsay under the federal rules?

Answer 5

1) prior statements of witnesses made while testifying under oath and when subject to cross-examination; or 2) statements of admission or adopted statements.

Question 6

Is silence considered an admission?

Answer 6

If a reasonable person would have responded, and a party remains silent in the face of accusatory statements, his silence may be considered an implied admission.

Question 7

When is silence in the face of accusations not considered an admission?

Answer 7

When the silence is in the face of accusations made by the police in a criminal case.

Question 8

The five hearsay exceptions require that the declarant be _______________.

Answer 8

unavailable.

Question 9

What are the five exceptions to hearsay?

Answer 9

former testimony; statements against interest; dying declaration; statements of personal or family history; statements offered against party procuring the declarant’s unavailability.

Question 10

Prior testimony of a now unavailable witness are admissible if:

Answer 10

1) the testimony was made under oath; and 2) they were subject to cross examination.

Question 11

A statement of a person who is now unavailable may be admissible if against that persons . . .

Answer 11

pecuniary, penal or proprietary interests at the time it was made.

Question 12

In a criminal case, statements against penal interest require ______________ to be admissible.

Answer 12

corroborating circumstances

Question 13

To what kind of cases does the dying declaration exception apply?

Answer 13

Homicide criminal cases and all civil cases.

Question 14

The dying declaration exception will apply where . . .

Answer 14

1) the declarant believed themselves to be close to imminent death; and 2) the statement concerns the cause or circumstances of their death.

Question 15

Does attempted homicide count as a homicide case for purposes of dying declarations?

Answer 15

No

Question 16

Under the traditional rule of dying declarations (not used in federal court):

Answer 16

1) it only applied in criminal cases; and 2) the person must have actually died.

Question 17

A now-unavailable witness’s statement regarding births, marriages, divorces, relationships, etc. if:

Answer 17

1) the declarant is a member of that family or intimately associated with the family; and 2) the statements are based on the declarant’s personal knowledge of the facts of the family.

Question 18

Where a party intentionally prevents a person from being available in trial, what result?

Answer 18

statements of the person who is unavailable are admissible that are offered against the defendant.

Question 19

What hearsay exceptions do not require that the speaker be unavailable?

Answer 19

present state of mind; excited utterances; present sense impressions; declarations of physical condition; records of regularly conducted activity; past recollection recorded; official records/writings; ancient documents; documents affecting property interests; learned treatises; reputation; family records; market reports.

Question 20

A statement of a person’s ______________ state of mind, emotion, sensation or physical condition is admissible.

Answer 20

then-existing.

Question 21

An out of court statement relating to a ________________ made while under the stress of the excitement from the event is admissible.

Answer 21

startling event

Question 22

A present sense impression is a statement that ______________________ an event or condition made _______________________ the declarant perceives the event or condition.

Answer 22

describes or explains; while or immediately after

Question 23

What are the two types of declarations of physical condition?

Answer 23

1) declarant’s present bodily condition; and 2) statements describing one’s medical history, past or present symptoms, etc. for diagnosis or treatment.

Question 24

Are statements describing a person’s past medical history prohibited under hearsay?

Answer 24

No. Statements describing a person’s past medical history, past symptoms, or the inception of an illness are an exception to hearsay so long as they are made for medical diagnosis or treatment.

Question 25

For the medical diagnosis exception to apply, must the declarant be describing their own physical state?

Answer 25

No, they can be describing that of a family member’s physical state.

Question 26

Where a person makes a statement that mixes both the physical condition and the person who caused it, what will the court do?

Answer 26

It will allow only the portion of the statement which states the medical condition to be admitted.

Question 27

Where a child makes statements to a medical physician about how they received physical injuries, are those statements admissible?

Answer 27

Yes. Under an exception to the statements made for medical diagnosis, statements by a child regarding who injured them are admissible.

Question 28

Are self-serving accident reports considered admissible under the business records exception?

Answer 28

No

Question 29

Are police reports admissible against a criminal defendant under the business records exception?

Answer 29

No.

Question 30

How is past recollection recorded introduced into evidence?

Answer 30

It is read into the record, not submitted into evidence.

Question 31

Police reports that do not qualify as business records may be admitted under the ______________ exception.

Answer 31

public records.

Question 32

Are a police officer’s opinions and factual conclusions admissible under the public records exception?

Answer 32

Yes.

Question 33

Are police reports, police opinions or factual findings admissible in a criminal trial against the defendant?

Answer 33

No.

Question 34

Under the ancient documents exception to the hearsay rule, statements in any authenticated document prepared before _________________ are admissible.

Answer 34

January 1, 1998.

Question 35

The catchall exception to the hearsay rule requires:

Answer 35

1) that the hearsay statement possess circumstantial guarantees of trustworthiness; 2) that the statement be strictly necessary; and 3) that notice be given to the adversary as to the nature of the statement.