Hearsay

Question 1

What are the 6 categories of non conceptual hearsay?

Answer 1

1. Impeachment
2. Verbal acts
3. Effect on listener
4. Verbal objects and verbal markers
5. Circumstantial evidence of state of mind (sometimes!)
6. Circumstantial evidence of memory or belief (sometimes!) (3 requirements)

Question 2

What are the 3 requirements for “Circumstantial evidence of memory or belief”?

Answer 2

1. Statement describes something unique or highly unusual; and
2. Independent evidence exists of what the statement describes; and
3. Circumstances suggest that declarant made the statement unless declarant had the experience that you are trying to prove.

This goes with problem 3-I on page 128. (“A Papier-Mache Man”)

Question 3

Hearsay (simple definition)

Answer 3

An out-of-court statement offered for the purpose of proving the truth of the matter asserted. (Cooper added the “for the purpose” to the traditional language)

Question 4

List the 4 hearsay risks.

Answer 4

1. Misperception
2. Faulty memory
3. Misstatement (ambiguity or faulty narrative)
4. Insincerity (possible outright lying or deception)

Question 5

What constitutes a statement?

Answer 5

Statements are:
o	Spoken words
o	Written words
o	Assertive conduct
Not Statements:
o	Non-assertive conduct
o	Animals and machines
Remember, statements must be INTENDED to be an assertion to be considered for hearsay. (Example: person walking outside with an umbrella open, this is not hearsay because there is no evidence that the person intended to assert that it was raining outside)

Question 6

What makes a statement a VERBAL ACT and therefore not conceptually hearsay

Answer 6

“Fact that the statement is made has legal significance, amounting to the performance of an act.” SHAZAM. For a Shazam to occur, you must look at the context of the statement and the relevant law of that context.
Example: Problem 3-E “Whose Corn?” pg. 125

OR

“The fact that a statement is made at all has probative value, regardless of the content of the statement.”
Example:two spouses are in a car accident, both die, there is an issue whether who died first (ignoring the majority rules in trust and estates). When the paramedics arrived at the scene the husband was dead and wife made a statement. The statement was used to prove that she was alive. This is not hearsay because it is not to prove the matter asserted. This is a verbal statement that does not fall within the hearsay rule.

Question 7

What are the requirements for “prior inconsistent statements”? FRE 801(d)(1)(A)
(Hearsay exclusion)

Answer 7

3 Requirements:
1. The witness must be now cross-examinable about the prior statement (the declarant must be testifying) (this does NOT mean that the testifying declarant has to remember the underlying events)
2. The statement must be “inconsistent” with his present testimony (“inconsistency may be ‘found in evasive answers, silence, or changes in positions.” pg. 165)
3. Statement was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition (language of the rules per Cornell website.)
Note: other proceeding includes grand jury, preliminary hearings, inter alia, courts split on stationhouse declarations (see State v. Smith, WA SC 1982, pg. 159)

Question 8

What is the difference between using a prior inconsistent statement to impeach the witness (non conceptual hearsay) and using prior inconsistent statements (exclusion) in FRE 801(d)(1)(A)?

Answer 8

Assuming the declarant is testifying, FRE 801(d)(1)(A) requires the prior statement to be made “under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” This is not a requirement to impeach the witness.

AND

Prior inconsistent statements under FRE 801(d)(1)(A) can be used as SUBSTANTIVE evidence. Prior inconsistent statements used to impeach the witness cannot be used as substantive evidence.

Question 9

What are the requirements for “prior consistent statements” FRE 801(d)(1)(B)?
(Hearsay exclusion)

Answer 9

1. Witness must be cross-examinable at trial about the statement (declarant must be testifying)
2. Statement must be consistent with his testimony
3. It must be offered to rebut a charge or recent fabrication or improper influence or motive

As a general matter, we do not allow the witnesses credibility to be bolstered until is attacked.

The fact that the prior statement can be used as substantive evidence does not really add much because it is the same story as the one being told now (which is being offered as substantive evidence).

A prior consistent statement only rebuts a charge of recent fabrication or improper influence or motive if the recent fabrication postdates the prior consistent statements.

Question 10

What are the requirements for “Prior statements of identification” FRE 801(d)(1)(C)

Answer 10

2 Requirements:

1. Witness actually needs to be cross examinable to the prior identification not just there.
2. Statements of ID can be made after sensing (does not have to be seeing) (hearing and smelling works)

Notes:
Prior statements of ID can be admitted without the other side objecting or attacking the witness (like the requirement in prior consistent statements).

Is SUBSTANTIVE evidence.

State v. Motta HA 1983 pg. 178
o Witness was cashier at store that defendant robbed at gun point. Later witness gives description to sketch artist and witness picked defendant’s picture out of a photographic array. Later, witness testified at preliminary hearing and positively IDed the defendant. At trial the witness IDed the defendant. Note: Both witness and sketch artist testified at trial. Not clear on if bot are necessary but case suggests that ID based on photo array (mugshots) would satisfy the rule (pg. 180, note 2).

Question 11

What are the requirements for “an opposing party’s statement”? FRE 801(d)(2)
(Admissions by a party opponent)

Answer 11

Statement is offered against a party and is:
A. The party’s own statement
B. A statement made by another but adopted by the party
C. Made by an agent authorized by the party to speak on the party’s behalf
D. Made by an agent or employer concerning a matter within the scope of agency or employment, made during the agency or employment relationship.
E. A co-conspirator statement made during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Question 12

Is personal knowledge required under “individual admissions” FRE 801(d)(2)(A)?
(Sub category of admissions by a party opponent) (hearsay exclusion)

Answer 12

No, personal knowledge is not required.

Question 13

Is “against interest” required under “individual admissions” FRE 801(d)(2)(A)?
(Sub category of admissions by a party opponent) (hearsay exclusion)

Answer 13

No, there is no “against interest” requirement for FRE 801(d)(2)(A).

Therefore, denials of wrongdoing fit admissions doctrine. (pg. 184 note 2(a))

Question 14

Can a statement be an opinion and still be admitted under “individual admissions” FRE 801(d)(2)(A)?
(Sub category of admissions by a party opponent) (hearsay exclusion)

Answer 14

Yes, statement may be an opinion and fact is not required.

Conclusory statements are also admitted. Example: a statement that the accident “was all my fault”.

Question 15

Are prior guilty pleas (criminal) admissible in a civil suit? What FRE applies?

Answer 15

Usually prior guilty pleas are admitted in later damage suits arising from the incident.
Prior guilty pleas are not enough for summary judgment.
FRE 801(d)(2)(A) “individual admissions” applies. Subcategory of FRE 801(d)(2) admissions by a party opponent.

Question 16

Can silence be an “adoptive admission” under FRE 801(d)(2)(B)?
And therefore, be used against the party who adopted it?
(hearsay exclusion)

Answer 16

Yes, silence can be an adoption of statements. (See US v. Hoosier 6th Cir. 1976, pg. 194).
Not all silence can be “adopted admissions.”
Silence cannot be used as adoption after defendant has been Mirandized.

Question 17

What are the requirements for “adoptive admissions” FRE 801(d)(2)(B)?
(sub category of FRE 801(d)(2) Admissions of a party opponent)
(hearsay exclusion)

Answer 17

3 Requirements:

1. the party heard the statement
2. the matter asserted was within his knowledge, and, perhaps most importantly,
3. the occasion and nature of the statement were such that he would likely have replied if he did not mean to accept what was said.

Even if these conditions be satisfied, the statement should be excluded if it appears that:
1. the party did not understand the statement or its significance
2. some physical or psychological factor explains the lack of reply
3. the speaker was someone whom the party would likely ignore
4. the silence came in response to questioning or comments by a law enforcement officer (or perhaps another) during custodial interrogation after Miranda warnings have been (or should have been) given.
These elements are on page 196 note 5.

Question 18

Are pleadings from prior lawsiuts, as well as pleadings superseded by amendment in the pending suit, generally admissible against the party who filed them?

Answer 18

Yes, pleadings from prior lawsuits, as well as pleadings superseded by amendment in the pending suit, are generally admissible against the party who filed them. Answers to interrogatories, whether filed in a prior suit or the pending action.

Requested admissions pursuant to Rule 36 of civil procedure are only binding in the current litigation and cannot be used at all in subsequent cases.

FRE 801(d)(2)(C) Admissions by Speaking Agent. See page 202-203.

Question 19

Are an expert witness’ testimony admissible against the party (who used the expert witness to make an argument in a previous case) in a later case?
What FRE applies?

Answer 19

No, “experts are “supposed to testify impartially” and normally do not agree to be within party’s control, which precludes invoking FRE 801(d)(2)(C) as basis for admitting against a party in later trial testimony given by expert who testified for that party in prior trial.”

FRE 801(d)(2)(C) Admissions by Speaking Agents applies. Subcategory of FRE 801(d)(2) admissions of a party opponent.

Question 20

Are statements by public employees admissible against the government?
What FRE applies?

Answer 20

No, traditionally statements by public employees have not been admissible against the government. (pg. 204)

FRE 801(d)(2)(D) Admissions by employees and agents applies. Subcategory of FRE 801(d)(2) admissions by a party opponent. (hearsay exclusion)

Question 21

What are the requirements for “admissions by employees and agents” FRE 801(d)(2)(D)?
(subcategory of admissions by a party opponent FRE 801(d)(2))
(hearsay exclusion)

Answer 21

3 requirements:
The statement must be made:
1. by an agent or employee
2. concerning a matter within the scope of the agency or employment
3. while the agency or employment relationship exists.

Question 22

Is a statement itself sufficient to establish the proper relationship (speaking agency, agency or employment, or the existence of a conspiracy and co-conspirator status) under FRE 801(d)(2)?

Answer 22

No, the statement may be considered but it alone is not sufficient.

Question 23

What are the requirements for “co-conspirator statements”? FRE 801(d)(2)(E)
(subcategory of admissions of a party opponent FRE 801(d)(2))
(hearsay exclusion)

Answer 23

3 Requirements: (pg. 211)

1. Declarant and defendant conspired
2. The statement was made during the course of the venture
3. In furtherance of the venture

Question 24

Is the co-conspirator exclusion (FRE 801(d)(2)(E)) applicable to civil cases?

Answer 24

Yes, it is available in both criminal and civil cases.

Question 25

Can the co-conspirator exclusion (FRE 801(d)(2)(E)) be invoked if the case does not include charges or claims of conspiracy?

Answer 25

Yes, the exclusion may be invoked even if the case does not include charges or claims of conspiracy.

Question 26

Example Question:
“A seller’s broker advises the buyer of Greenacre that there is a tractor in the barn that is included in the purchase price.”
Is the statement hearsay?

Answer 26

Those words are nonhearsay verbal acts if offered against the seller as proof that the deal includes the tractor. Substantive law and principles of relevancy would lead a court to admit those words even if there were no special exception in the hearsay doctrine.
But the same words would be hearsay if offered against the seller to prove there actually was a tractor in the barn, for now they are used as proof of the physical reality that they depict.
 “Regardless whether the broker’s words be used to prove the terms of the deal or the presence of the tractor in the barn, a court would likely cite FRE 801(d)(2)(C) in concluding that they are admissible against the seller (though only in the latter instance do we actually need a special provision to admit them).”
See page 201 for this example. This example was given under the Admissions by Speaking Agent section FRE 801(d)(2)(C).

Question 27

What are the requirements for “present sense impression”? FRE 803(1)
(hearsay exception)

Answer 27

2 requirements:
Statement must:
1. describe and event
2. Be made while the declarant is perceiving the event or immediately thereafter
Immediately means a handful of seconds.

Question 28

What are the hearsay dangers and rationale for “present sense impression” FRE 803(1).
(hearsay exception)

Answer 28

o There is a danger of misstatement and misperceiving
o Not worried about memory loss because the statement is made while the event is occurring
o Lack of candor, less likely that people are going to think about how the statements are going to be used against them (although some people do think really fast and events often last longer than a few moments)

Question 29

What are the requirements for “excited utterance”? FRE 803(2)
(hearsay exception)

Answer 29

2 (really 3) Requirements:
1. Describe an event capable of giving rise to excitement
2. Be made in a state of excitement or agitation brought on by the event
 Be made before there is time to reflect or dissemble
(courts routinely state these as 3 elements, Cooper thinks this 3rd requirement is really just a sub point of the 2nd because if the statement is made in the state of excitement implies that there was not time to reflect.)

Temporal element: US v. Arnold (6th Cir. 2007) pg. 224 held that “5 to 21 minutes” was close enough that the statement fit the excited utterance exception.

Question 30

What are the hearsay dangers for “excited utterance”? FRE 803(2)
(Hearsay exception)

Answer 30

Hearsay dangers:
o May be a worry of misperception, there is some empirical findings that ability to perceive something falls when the person is excited.
o Not worried about lack of memory.

Question 31

Example Question: “present sense impression” and “excited utterance” are very similar, what key element distinguishes them?
(both are hearsay exceptions)

Answer 31

Immediacy is the key to present sense impression FRE 803(1).

Excitement is the key to the excite utterance exception. FRE 803(2)

(see page 218)

Question 32

True or False: Most hearsay exceptions apply regardless whether declarant is available as a witness.

Answer 32

True. The question said exceptions not exclusions.

FRE 803 exceptions fit this general EXCEPT past recollection recorded FRE 803(5), declarant must testify and lay a foundation.

Question 33

What are the requirements for “Then-Existing State of Mind or Physical Condition”? FRE 803(3). (Hearsay exception) (Book calls this the “state of mind” exception)

Answer 33

Requirements:
Statement describes declarant’s state of mind or physical condition at the time declarant makes the statement.
 But statement of memory or belief may not be offered to prove fact remembered or believed.
• Unless fact remembered or believed relates to declarant’s will.

Question 34

What are the 4 distinct uses of “then-existing state of mind or physical condition” exception? FRE 803(3).
(Book calls this the “state of mind” exception)

Answer 34

4 distinct uses: (pg. 234)

1. declarant’s then-existing physical condition
2. his then-existing mental or emotional condition
3. his later conduct
4. facts about his will

“His later conduct” example: Jane says, “I am going to McDonald’s”. This can be used as evidence that Jane did in fact go to McDonald’s.

Question 35

How does “present sense impression” FRE 803(1) differ from “then-existing state of mind or physical condition” FRE 803(3)?
(both are hearsay exceptions)

Answer 35

“then-existing state of mind or physical condition” is an inward looking statement (inward of the body, feelings of pain), “present sense impression” is an outward looking statement. The temporal requirement is similar.

Question 36

Example Question:
In class, Cooper makes the statement, “I am Batman.”
What does the hearsay exception “then-existing state of mind or physical condition” FRE 803(3) allow you do with this statement?

Answer 36

“then-existing state of mind or physical condition” FRE 803(3) allows the statement to prove Cooper’s state of mind (maybe showing that he mentally unstable) but cannot be used to show that Cooper is in fact batman because that would be a statement of memory or belief.

Question 37

Example Question:
Can the statement by Cooper, “I am going to Niff’s after class.” be admitted as evidence that Cooper did in fact go to Niff’s after class?

Answer 37

The statement is admissible under “then-existing state of mind or physical condition” FRE 803(3) and is admissible as circumstantial evidence that Cooper did in fact follow through on his intent and was at Niff’s after class.

Question 38

Example Question:
A says to B, “I am going on vacation with C.” A then disappears. Can A’s statement to B be admitted to show that C went on vacation with A?

Answer 38

Yes, under the “then-existing state of mind or physical condition” exception FRE 803(3) only IF there is independent evidence.

See US v. Pheaster (9th Cir. 1979) pg. 243.

Question 39

Example Question:
A gets injured in a car accident. One week later, A tells his friend B, “my neck hurts and I can’t turn my next to the left or right”. Can this statement be admitted?

Answer 39

Yes, under the “then-existing state of mind or physical condition” FRE 803(3) exception.

It does not matter for this exception that it was told to a friend and not a doctor.

“It matters not whether declarant speaks close in time to the injury or onset of ailment, so long as his words describe how he feels as he talks.” pg. 235

Question 40

What are the requirements for “statements for the purpose of medical diagnosis or treatment” FRE 803(4)?
(hearsay exception)

Answer 40

Statement must:

1. Be made for the purpose of medical diagnosis or treatment;
2. Be reasonably pertinent to medical diagnosis or treatment;
3. Describe:
   a. Medical history
   b. Past or present symptoms, including their inception and general cause

Question 41

Example Question:
Paul was hit by a snowmobile. Paul makes statement, “Pam hit me with a snowmobile and my legs hurt (at the time he was hit by the snowmobile) and now (when the statement was made) my legs are throbbing.”

If Paul made these statements to his friend, what part is admissible?
If Paul made these statements to a doctor, what part is admissible?

Answer 41

o If statement made to roommate in hospital: only the current statement “my legs are throbbing” is admissible under “then-existing state of mind or physical condition” FRE 803(3).
o If statement made to doctor: everything is admissible except the identificaition of Pam as the driver under “statements for the purpose of medical diagnosis or treatment” FRE 804(4).

Question 42

What are the requirements for “past recollection recorded” FRE 803(5)?
(Hearsay exception)

Answer 42

5 Requirements: (these requirements are broken down further than how the rule itself lists them)

1. Witness must testify.
2. Record must recount something witness once knew but now lacks sufficient memory to testify fully about.
3. Record must be the witness’s own statement, or a statement adopted by the witness,
4. made or adopted when the witness’s memory was fresh.
5. Record must accurately reflect the witness’s memory.

Question 43

Example Question:
All requirements for “past recollection recorded” FRE 803(5) are satisfied. Suppose the prior statement was written, does that written statement get admitted as an exhibit and, therefore, the jury receive a copy?

Answer 43

No. The actual written statement is read to the jury and into the record but the record itself is NOT admitted as an exhibit and the jurors do NOT get a copy of the statement.

Question 44

What are the requirements for the “business records” exception? FRE 803(6)
(Hearsay exception)

Answer 44

Requirements: (these requirements are broken down further than how the rule itself lists them)

1. Regular Business: Record must be made as part of a business, organization, occupation, or calling.
2. Contemporaneity: Record must be made at or near the time of the event recorded.
3. Personal Knowledge: Record must be made by, or from information given by, someone with knowledge.
   4: Regularly Made/Kept Record: Making AND Keeping the record must be part of the regular practice of that activity.
4. Foundation Testimony: Testimony of the custodian of records or other qualified witness, or certification.
5. Neither the source of the information nor the circumstances of preparation indicate lack of trustworthiness. (This allows an individualized inquiry whether or not this information is trustworthy and if not then the record is inadmissible. Normally, the other exceptions do not allow this type of individualized inquiry.)

Question 45

Example Question: True or False
Laundromat reconciliation sheets matching washer cycles with coins in pay boxes does NOT fit the term “record” contemplated by the business records exception. FRE 803(6).

Answer 45

False. The reconciliation sheets DO meet the type of material covered by the business records exception.
For more examples, see pg. 265.

Question 46

Example Question: True or False
Under the business records exception FRE 803(6), the foundation witness or certifier need not have made the record or observed its preparation, nor even have been employed when the record was made.

Answer 46

True. What is required is a witness with firsthand knowledge of the system who can describe usual means of preparation so as to satisfy the other requirements. (pg 266)

Question 47

Example Question: True or False

The business records exception FRE 803(6) does not apply to personal records.

Answer 47

True. However, the rule is broad enough to reach records kept by a single person who is “in business for himself”. (pg. 266)

Question 48

What types of records are contemplated by the “public records” exception? FRE 803(8)
(Hearsay exception)

Answer 48

Record of:

1. Office’s activities;
2. Matter observed while under a legal duty to report;
3. Factual findings pursuant to a legally authorized investigation

There is also a requirement of “trustworthiness”: “neither the source of information nor other circumstances indicate a lack of trustworthiness” FRE 803(8)(b)

Question 49

What are the factors for trustworthiness under the “public records” exception? FRE 803(6)
(Hearsay exception)

Answer 49

4 Factors: (non exhaustive)

1. Timeliness of the investigation;
2. Special skill or experience of the officer;
3. Whether a hearing was held and, if so, at what level;
4. Motivational issues.

Question 50

What are the limits of the “public records” exception in criminal cases? FRE 803(8)

Answer 50

1. “Matter observed while under a legal duty to report” = Cannot be used by the defendant nor the prosecutor. Aka cannot be used in a criminal prosecution.
2. “Factual Findings pursuant to a legally authrorized investigation”=can be used by the defendant against the prosecution but CANNOT be used by the prosecution against the defendant.

Question 51

Example Question: True or False.
If a statement is inadmissible under the “public records” exception, it may still be admitted under a different exception? (assuming the statement is material covered by FRE 803(8))

Answer 51

False. if material is covered by the “public records” exception it cannot be admitted under another exception. Therefore, the use restrictions act more like exclusionary rules than limits on exceptions.

Question 52

Example Question: True or False.

A document by building inspectors indicating code violations may be used against the building owner in a criminal case.

Answer 52

False. This is an example of a record of “matter observed while under a legal duty to report” under the “public records” exception FRE 803(8). These types of records cannot be used in a criminal case at all. (aka not against the defendant or against the government).

Question 53

For exceptions in FRE 804, the declarant must be unavailable. What are the ways a declarant may be unavailable as a witness under FRE 804(a)?

Answer 53

The declarant is unavailable as a witness if:

1. Claim of Privilege.
2. Refusal to testify.
3. Lack of memory.
4. Death, illness, infirmity.
5. Unavoidable absence.

Question 54

Example Question: True or False.
A declarant may be “subject to cross-examination” under FRE 801(d)(1) and “unavailable” due to lack of memory under FRE 804(a)(3).

Answer 54

True. To be “subject to cross-examination” under FRE 801(d)(1), the witness must remember his prior statement. For a witness to be absent under “lack of memory” under FRE 804(a)(3), the witness must be able to remember the underlying facts. (see pg. 304-305 for example)

Question 55

What are the 5 exceptions that require a declarant witness to “unavailable” under FRE 804(b)?
(Hearsay exceptions)

Answer 55

5 exceptions under FRE 804(b):

1. Former testimony
2. Dying declarations
3. Statements against interest
4. Statements of personal or family history
5. Forfeiture by wrongdoing

Question 56

What are the requirements for the “former testimony” exception FRE 804(b)(1)?
(Hearsay exception)

Answer 56

Requirements:
1. Declarant testified in at a trial, hearing or deposition (whether given during the current proceeding or a different one);
2. Party against whom statement is offered (or, in a civil case, a predecessor in interest) had:
• Opportunity to cross-examine;
• Similar motive to cross-examine.
(Remember: all FRE 804 exceptions also require the declarant to be “unavailable” as a witness)

Question 57

Example Question: Does grand jury testimony satisfy the element in the “former testimony” exception under FRE 804(b)(1)?

Answer 57

No. Grand jury’s are ex-parte. Declarant must have testified in either a hearing or deposition.

Question 58

Example question: What is the difference between the cross-examaination element for the “former testimony” exception FRE (804)(b)(1) and “prior inconsistent statements” FRE 801(d)(1)(A)?

Answer 58

The “former testimony” exception FRE 804(b)(1) requires a PRIOR chance to cross-examine the declarant; the exception for “prior inconsistent statements” FRE 801(d)(1)(A) requires a PRESENT chance to cross examine. (pg. 313)

Question 59

What are the requirements for the “dying declaration” exception under FRE 804(b)(2)?
(Hearsay exception)

Answer 59

Requirements: (from his slides)
1. Civil cases or homicide prosecution
2. Declarant makes statement while believing death is imminent.
3. Statement concerns cause or circumstances of declarant’s death.
(Remember: all FRE 804 exceptions also require the declarant to be “unavailable” as a witness)

Question 60

Example Question:
X is about to be executed for murder. X confesses to everything and the statements exonerate his co-conspirator. The co-conspirator wants to use that statement in a trial against him. Do these statements fit the “dying declaration” exception under FRE 804(b)(2)?

Answer 60

No, because the statement does not met the “cause or circumstances” element of the rule.

Question 61

What are the requirements for the “declarations against interest” exception under FRE 804(b)(3)?
(Hearsay exception)

Answer 61

Requirements: (Cooper’s slides)
 Statement is so against the declarant’s proprietary or pecuniary interest or has so great a tendency to subject the declarant to civil or criminal liability, that a reasonable person would make the statement only if it were true.
 If statement is offered in criminal case and tends to expose the declarant to criminal liability, there must be corroborating circumstances clearly showing trustworthiness.

(Remember: all FRE 804 exceptions also require the declarant to be “unavailable” as a witness)

Question 62

What are the requirements for “forfetuire by wrongdoing” under FRE 804(b)(6)?
(Hearsay exception)

Answer 62

Requirements: (Cooper’s slides)
1. Statement is offered against a party.
2. Party:
• Wrongfully caused the declarant’s unavailability, or
• Acquiesced in wrongdoing causing the declarant’s unavailability.
3. Party did so intending to cause the declarant’s unavailability as a witness.

(Remember: all FRE 804 exceptions also require the declarant to be “unavailable” as a witness)

Question 63

What are the requirements for the “residual exception”? FRE 807
(Hearsay exception)

Answer 63

Statement must:

1. Have circumstantial guarantees of trustworthiness equivalent to those of the enumerated hearsay exceptions;
2. Be offered as evidence of a material fact;
3. Be more probative that any other evidence the proponent can obtain through reasonable efforts; and
4. Serve purposes of rules and interests of justice.

Notice: Proponent must give reasonable notice to give adverse party fair opportunity to meet the evidence.