Hearsay

Question 1

Hearsay is

Answer 1

an out of court statement offered for the purpose of establishing the truth of the matter asserted in the statement.

Question 2

Central inquiry in Hearsay problems:

Answer 2

What is the PURPOSE?

Question 3

Policy for excluding Hearsay:

Answer 3

It denies the opponent the opportunity to cross-examine the person whose perception, memory, and sincerity are in issue.

Question 4

Specific NON-Hearsay Statements (3):

Answer 4

1) Verbal Acts or Legally Operative Facts;
2) Out of Court Statements offered not for their truth but to show its effect on the person who heard or read the statement;
3) Out of Court statements offered as circumstantial evidence of declarant’s relevant state of mind;

Question 5

Specific NON-Hearsay Witness Statements:

Answer 5

1) Prior inconsistent statements given under oath at a trial/hearing/deposition;
2) Prior consistent statements to rebut charge of recent fabrication or improper influence or motive;
3) Prior Statement of Identification made by a witness.

Question 6

Major Exceptions to the Rule Against Hearsay (6):

Answer 6

1) Admission of a party;
2) Former Testimony;
3) Statement Against Interest;
4) Dying Declaration;
5) Spontaneous Statements;
6) Business Records

Question 7

Admission of a Party is a hearsay exception for a

Answer 7

statement of a party offered against the party.

Question 8

Admission of a Party/Opposing Party’s Statement includes a statement by

Answer 8

the party’s agent or servant, concerning a matter within the scope of the agency/employment, made during the existence of the relationship.

Question 9

Former Testimony hearsay exception concerns

Answer 9

Testimony given in earlier proceeding by person now unavailable is admissible if adverse party had, at the time of the testimony, an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Question 10

The Former Testimony Hearsay Exception requires:

Answer 10

1) A meaningful opportunity for adverse party to develop the former testimony;
2) A similar issue and motive in the former testimonial context as in the current case;
3) Some identity or privity of parties.

Question 11

The Statement Against Interest Hearsay Exception deals with

Answer 11

a declaration of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest at the time the statement was made.

Question 12

Limitations of the Statement Against Interest Exception:

Answer 12

If the statement exposes the declarant to criminal liability and is offered in a criminal case, it must be supported by corroborating circumstances that indicate its trustworthiness.

Question 13

Differences between Statement Against Interest and Party Admission:

Answer 13

1) Statement against interest must be against the interest at the time the statement was made;
2) The statement against interest may be made by any person, not necessarily by a party;
3) The Statement against interest requires personal knowledge;
4) The Statement against interest requires unavailability.

Question 14

Dying Declarations concern statements made

Answer 14

by a declarant operating under the belief that their death was imminent, and speaking about the cause or circumstances of the impending death.

Question 15

In order for the Dying Declaration exception to apply,

Answer 15

1) Gotta really believe you’re gonna die;
2) Declarant doesn’t actually have to die, but has to be unavailable at the time of trial;
3) Must either be a civil case, or a criminal homicide case;
4) Must actually concern cause/circumstances of impending death

Question 16

Spontaneous Statements are a group of 6 independent exceptions to the hearsay law, all of which do not require declarant unavailability:

Answer 16

1) Declaration of existing state of mind when state of mind is in issue;
2) Declaration of existing intent to do something in the future offered to infer that the intended future act was done;
3) Excited Utterances;
4) Present Sense Impression;
5) Declaration of Present Pain, Suffering, or Physical Condition;
6) Declaration of Past Physical Condition.

Question 17

When a hearsay statement is admitted in evidence, it may be impeached using

Answer 17

any evidence which would be admissible for that purpose if the declarant had testified as a live witness.