Hearsay

Question 1

Hearsay

Answer 1

Out of court (not made in the current hearing)
Statement
of a person (not an animal, machine, or times stamp)
offered to prove the truth of the matter asserted

Question 2

Not Hearsay

Answer 2

Verbal Act (Legally Operative Facts)
Offered for the Effect on the Listener or Reader
Circumstantial Evidence of Declarants State of Mind

Question 3

Legally Operative Facts

Answer 3

Contract offer or cancellation, making a gift, bribe, perjury, fraud, defamation, or words accompanying ambiguous acts.

Question 4

Hearsay Exclusions

Answer 4

Witness’s prior statement of identification
Witness’s prior inconsistent statement under oath
Witness’s prior consistent statement when offered to rehabilitate the witness

Opposing Party Statements
Adoptive Statements (including silence)
Vicarious Opposing Party Statements

Question 5

Opposing Party Statements

Answer 5

Any statement made by a party is admissible against that party.

Question 6

Adoptive Statements

Answer 6

A party may adopt the statement of someone else either expressly or by remaining silent in the face of an accusation that a reasonable person would deny if true.

Question 7

Vicarious Opposing Party Statements

Answer 7

Statements of a third party that are admissible against the plaintiff or defendant because of the relationship between the two:

Agent/Employee again Principal/Employer if statements concern a matter within the scope of the agency/ employment and are made during the agency/employment.

Statement by a co-conspirator that is made during and in furtherance of the conspiracy.

Question 8

Hearsay Exceptions (Declarant Unavailable)

Answer 8

Former Testimony of a now-unavailable witness
Statements Against Interest
Dying Declarations

Question 9

Grounds for Unavailability

Answer 9

Death or Illness
Absence from Jurisdiction
Privilege
Stubborn Refusal to Testify
Lack of Memory

Question 10

Former Testimony of a Now-Unavailable Witness

Answer 10

Admissable if given during a former proceeding where the adverse party had the opportunity to cross-examine and develop the testimony of the witness. The issue in the previous proceeding must have been substantially the same as the issue in the present proceeding.

Question 11

Statements Against Interest

Answer 11

Only admissible if the witness is now unavailable. The statement must be against the declarants pecuniary, proprietary, or penal interest. It must be against interest when made and personal knowledge is required.

In criminal cases, statements against penal interest must be corroborated.

Question 12

Dying Declarations

Answer 12

Statement made under belief of imminent and certain death by a non-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death. Only available in civil cases and criminal homicide trials.

Question 13

Hearsay Exceptions (do not require unavailability)

Answer 13

Excited Utterance
Present Sense Impression
Then-Existing Mental or Physical Condition
Statements for Medical Diagnosis or Treatment
Regularly Conducted Business Records
Public Records

Question 14

Excited Utterance

Answer 14

Statement concerning a startling event and made while the declarant is still under the stress of excitement caused by the event.

Question 15

Present Sense Impression

Answer 15

Description of an event made while the event is occurring or immediately thereafter. The theory is that the declarant had no time to fabricate the statement.

Question 16

Then-Existing Mental or Physical Condition (Present State of Mind)

Answer 16

Contemporaneous statement concerning declarant’s own present state of mind, feelings, emotions, or physical condition. Includes declaration of intent to do something in the future and present physical condition.

Question 17

Statement for Purposes of Medical Diagnosis or Treatment

Answer 17

Statement made to anyone concerning past or present symptoms or general cause of condition for the purpose of treatment or diagnosis.

Medical diagnosis includes diagnosis for the purpose of giving an expert opinion.

Question 18

Business Records (Records of Regularly Conducted Business Activity)

Answer 18

Records of any type of business or organization
Made in the regular course of business
The business regularly keeps such records
Made at or near the time of the event recorded
Contents consist of information observed by employees of the business

A statement by an outsider is only admissible if it falls within an independent hearsay exception.

Requires a sponsoring witness to testify to or an affidavit/declaration attesting to the elements of the business records hearsay exception requirements.

Question 19

Public Records

Answer 19

Records of a public agency or office setting forth:

The activities of the agency or office
Findings of fact or opinion resulting from an investigation authorized by law

Police reports and investigatory findings are not admissible against the defendant in a criminal case.

Question 20

Hearsay and the Confrontation Clause

Answer 20

Regardless of whether a hearsay exception is satisfied, the Sixth Amendment Right to Confrontation prohibits the use of “testimonial” hearsay statements against a criminal defendant if the declarant is unavailable and the defendant has not had the opportunity for cross-examination.

Question 21

Testimonial Evidence

Answer 21

Includes sworn testimony but also includes statements to police officers and certain documents.

Providing information to aid police in an ongoing emergency = nontestemonial

Providing information to help police gather information for eventual prosecution = testemonial.

Forensic Analysis that has the effect of accusing a targeted person of criminal conduct will not be admissible if the analyst who drafted the report is unavailable to testify.