Hearsay

Question 1

double hearsay (hearsay within hearsay)

Answer 1

An out-of-court statement that incorporates other hearsay within it is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.

Question 2

For purposes of the hearsay rule, a “statement” is a person’s:

Answer 2

(i) oral or written assertion, or

ii) nonverbal conduct intended as an assertion (e.g., nod of the head

Question 3

Silence is treated as an admission if:

Answer 3

(i) The party heard and understood the statement;
(ii) The party was physically and mentally capable of denying the statement; and
(iii) A reasonable person would have denied the accusation.

Question 4

statements that are nonhearsay under the federal rules

Answer 4

1. prior statements by witnesses

2. admissions by party-opponent

Question 5

5 hearsay exceptions that require declarant to be unavailable:`

Answer 5

1. former testimony
2. statements against interest
3. dying declarations
4. statements of personal or family history
5. statements offered against party procuring declarant’s unavailability

Question 6

statement against interest

Answer 6

A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true. The declarant must have had personal knowledge of the facts and known it was against her interest when she made it.

Question 7

dying declaratioins

Answer 7

In a homicide prosecution or any civil action, a statement made by a now-unavailable declarant is admissible if:

1. the declarant believed his death was imminent; and
2. the statement concerned the cause or circumstances of what he believed to be his impending death

Question 8

present sense impression

Answer 8

statement describing or explaining an event or condition made while the declarant is perceiving that event or condition or immediately thereafter

Question 9

excited utterance

Answer 9

• a statement made during or soon after a startling event
• stmnt must relate to event and it must have been made while declarant was under stress of the excitement caused by event

Question 10

Under the Confrontation Clause, an accused has the right to be confronted by the witnesses against him and a hearsay statement will not be admitted (even if it falls within an exception) when:

Answer 10

(i) the statement is offered against the accused in a criminal case;
(ii) the declarant is unavailable;
(iii) the statement was testimonial in nature; and
(iv) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial.

Question 11

testimonial statements vs. non-testimonial statements

Answer 11

• SC has established that if primary purpose of police interrogation is to enable the police to help in ongoing emergency, statements made in the course of the interrogation are nontestimonial.
• When the primary purpose is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial

Question 12

business records exception to hearsay

Answer 12

• kept in regular course of business
• made at or near time of matter described
• by person with personal knowledge or obtained info from someone who had knowledge and a business duty to report
• regular practice to make such recording