Hearsay

Question 1

What is hearsay?

Answer 1

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

Question 2

When may a prior statement from a witness be admissible?

Answer 2

1. If the prior statement is inconsistent with the declarant’s in-court statement and given under oath
2. Prior statement was consistent and used to rebut charge that witness is lying or exaggerating
   OR
3. Prior statement is one of identification of a person made after perceiving him

Question 3

What are considered nonhearsay statements?

Answer 3

1. Prior Statements by witness

2. Admissions by party-opponent

Question 4

When is silence considered as an admission?

Answer 4

1. When the party heard and understood the statement
2. The party was physically and mentally capable of denying the statement
3. A reasonable person would have denied

Question 5

Which three mainly tested hearsay exceptions require declarant unavailability?

Answer 5

1. Former testimony
2. Statement against interest
3. Dying declaration

Question 6

What requirements must be met to allow former testimony as evidence?

Answer 6

1. Opposing counsel must have had meaningful opportunity to cross examine the witness in the first time
2. The testimony is by the same party, and about the same issue.
3. The declarant is now unavailable

Question 7

In an accident, a bus leaves the highway and crashes, injuring passengers A and B. In Action 1, A sues Bus Co. and W testifies live. In Action 2, B sues Bus Co. but W is no longer available. May B use W’s former testimony against Bus Co?

Answer 7

Yes. Same issue and Bus Co. had opportunity to cross examine W, admissible under hearsay exception.

Question 8

In an accident, a bus leaves the highway and crashes, injuring passengers A and B. In Action 1, A sues Bus Co. and W testifies live. In Action 2, B sues Bus Co. but W is no longer available. May Bus Co use W’s former testimony against B?

Answer 8

No, B did not have fair opportunity to cross examine W in the former testimony, so doesn’t fall w/i exception.

Question 9

What is a “Statement against Interest”?

Answer 9

It is the declaration of a person against that person’s pecuniary, proprietary, or penal interest at the time the statement was made.

Question 10

Is the Statement of Interest exception subject to any limitations?

Answer 10

Yes, a statement that tends to expose declarant’s criminal liability and is offered in a criminal case must be additionally supported by “corroborating circumstances that clearly indicate its trustworthiness”

Question 11

In State v. Schaeffer for the murder of Victim Mita Monster, W testifies for the defense that W heard Amos say “I, not Schaeffer, killed Mita Monster.” Is Amos’s statement admissible as a statement of interest?

Answer 11

No, not unless there’s “corroborating circumstances” clearly indicating the trustworthiness of the content of the statement.

Question 12

How is a Statement of Interest different from an admission?

Answer 12

1. Statement must be made against interest at time statement was made
2. Statement not necessarily made by party, can be made by any person
3. Statement requires personal knowledge
4. Declarant must be unavailable.

Question 13

Joe and Phil collide. Joe confides in Mita that “It was all my fault.” Joe dies as a result of his injuries. Joe’s sister brings a wrongful death action against Phil. Phil calls Mita to testify that Joe said “all my fault.” Is this admissible as an admission?

Answer 13

No, Joe is not a party in the case, his sister is, admissions only admissible for current parties.

Question 14

Joe and Phil collide. Joe confides in Mita that “It was all my fault.” Joe dies as a result of his injuries. Joe’s sister brings a wrongful death action against Phil. Phil calls Mita to testify that Joe said “all my fault.” Is this admissible as a statement of interest?

Answer 14

Yes, sufficient evidence for a civil case to include this as an exception to hearsay.

Question 15

What is the dying declaration exception?

Answer 15

In a prosecution for homicide or in a civil action, a statement by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of the impending death.

Question 16

What are the requirements for the Dying Declaration exception?

Answer 16

1. State of Mind-declarant must honestly believe that death is impeding
2. Declarant need not die but must be available at time of trial
3. Case must be either a homicide or civil case
4. Content limitation: must concern cause or circumstance of impeding death

Question 17

Joe was shot 12 times and is lying in the gutter. Joe looks up at the police officer and says “I’m dying, I know I’m dying. Too bad for me. By the way, my will was made of undue influence, don’t let have Mita my collection of pornstar penis molds!” Is this admissible as a dying declaration in the will probate proceedings?

Answer 17

No, dying declaration only admissible if relevant to the cause of death/circumstances of impeding death.

Question 18

What six hearsay exceptions don’t require unavailability of the declarant?

Answer 18

1. Declaration of existing state of mind 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 utterance
4. Present sense Impression
5. Declaration of Present Pain, suffering, or physical condition.
6. Declaration of past physical condition.

Question 19

What six hearsay exceptions don’t require unavailability of the declarant?

Answer 19

1. Declaration of existing state of mind 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 utterance
4. Present sense Impression
5. Declaration of Present Pain, suffering, or physical condition.
6. Declaration of past physical condition.

Question 20

Phil is on trial for murder, using the Insanity defense. Defense Witness Mita testifies on the eve of the killing, she heard Phil say “I believe I am the Pope.” Is this statement admissible?

Answer 20

Yes, admissible to show state of mind.

Question 21

Joe announces “On Monday of next week I’m going to meet with Phil.” It this admissible as proof that Joe met with Phil on Monday?

Answer 21

Yes, declaration of intent to do something in the future.

Question 22

What is an excited utterance?

Answer 22

A statement relating to a startling event or condition made under stress of excitement and concerning the facts of the startling event.

Question 23

What is a present sense impression?

Answer 23

A statement describing or explaining an event or condition made WHILE declarant was perceiving the event/condition or immediately afterwards.

Question 24

Phil and Joe were playing volleyball at the beach when Joe said to Phil “Man, this is another gorgeous sunny San Diego day, not a cloud in the sky! Bet Mita wishes she wasn’t in snowy Chicago right now.” Is this statement admissible (assuming weather was relevant for the case)?

Answer 24

Yes, refers to a present sense condition.

Question 25

How is a present sense impression different from an excited utterance?

Answer 25

1. Does not need to have a startling event

2. Must be no time lapse.

Question 26

What is a declaration of present pain, suffering, or physical condition?

Answer 26

A declaration of then existing physical or mental condition is admissible to show the condition.

Question 27

What is a Declaration of past physical condition?

Answer 27

Statement made for purpose of diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment.

Question 28

What is a Declaration of past physical condition?

Answer 28

Statement made for purpose of diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment.

Question 29

What are the two requirements for a Declaration of Past Physical Condition?

Answer 29

1. Declaration was made to medical personnel
2. Declaration is pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony)

Question 30

Phil is a plaintiff in a personal injury case against Mita. Phil hires a doctor to diagnose his swollen scrotum, solely for the purpose of giving testimony. Doctor testifies about the injury, basing his opinion partly on the medical history Phil told him. Is this admissible for its truth?

Answer 30

Yes, falls under declaration of past physical condition exception of hearsay.

Question 31

Who may decide preliminary questions of fact upon which admissibility is based?

Answer 31

The judge, who is not bound by rules of evidence in her decision.

Question 32

You offer declarant Joe’s transcript into evidence as former testimony. Your opponent however states that Joe is available for testimony, thereby barring the transcript. You present a signed, unauthorized letter from Joe stating “I am unavailable.” Who decides whether the transcript is admitted?

Answer 32

The judge, and judge may take into account the hearsay letter in her decision.

Question 33

Joe is stabbed, goes to the hospital, and as he’s bleeding tells the police officer “I am dying, Phil did it.” Two days later, Joe is feeling much better, and tells the nurse “Mita stabbed me. Now it looks like I’ll survive.” The next week Joe dies. Phil is on trial for Joe’s murder. May the police officer testify? May the nurse?

Answer 33

Yes, police can testify as a dying declaration.

Yes, nurse CAN testify, but not under dying declaration. She can testify as a prior inconsistent statement to impeach Joe’s credibility.

Question 34

Joe is found dead in his office, with a tape recorder in hand. He was apparently dictating business correspondence when some intruder came in and shot him. Police played back the tape recorder, and after several minutes of dictating letters, the Officer hears Joe say “Mita Monster? What are you doing here?” At Mita’s trial, the prosecution calls the officer to testify what he heard on the tape. Is this admissible?

Answer 34

The officer’s testimony is hearsay, but falls under the present sense impression exception. However, best evidence rule applies here, and the testimony is inadmissible in place of the recording itself unless the absence of the recording is sufficiently explained.

Question 35

What is the business records exception?

Answer 35

Records made at or near the time by, or from info transmitted by, a person with knowledge are admissible if kept in the regular course of business and if it was the course of that business to make the record, unless the source of info is not trustworthy.

Question 36

Joe is involved in a car accident and is taken to the ER. He tells the nurse “This accident was all my fault, I was grossly negligent.” The nurse recorded Joe’s words in the hospital record. Phil, who was injured in the car accident sues Joe for negligence. May the hospital record come in as true to prove Joe’s statement?

Answer 36

No, courts are not willing to take it as truth, this kind of info/statement is not germane to hospital business. Nurse must come in live to testify.

Question 37

What rights do the 6th Amendment offer that may render evidence inadmissible?

Answer 37

Rights of Confrontation: Even if out-of-court statement qualifies for hearsay exception, may be inadmissible if offered against accused in a criminal case.

Question 38

What are the requirements of the 6th Amendment Right of Confrontation?

Answer 38

1. the out of court statement is offered against the accused in a criminal case AND
2. the declarant is unavailable at the trial AND
3. the out of court statement was “testimonial” AND
4. the accused had no opportunity to cross examine the declarant’s “testimonial”
   UNLESS
5. the prosecution demonstrates that the defendant has forfeited his Confrontation Clause by wrongdoing that prevented the declarant from testifying at trial.

Question 39

What is a “testimonial”

Answer 39

A hearsay statement is testimonial if the declarant makes a statement he anticipates will be used in the prosecution or investigation of the crime.

Question 40

Joe and Phil are charged with the murder of Mita. Phil tells the Cop “Joe and I did the murder.” Phil later pleads guilty but refuses to testify against Joe. Cop wants to testify that Phil said “Joe and I did it.” Is this admissible?

Answer 40

Although the statement would fall under statement against interest exception of hearsay, it is NOT admissible because Joe would not be able to face his accuser, and therefore is a violation of the confrontation clause.

Question 41

Wife makes a 911 call and tells the police responder that Husband attacked her, threatened her, and now has driven off. In the call Wife identifies Husband as the attacker. At trial, Wife did not show up and did not testify. Is the 911 call admissible to evidence?

Answer 41

Yes, under present sense impression and excited utterance. Not testimonial.

Question 42

Police were called to investigate a domestic disturbance. Police separated Wife and Husband and questioned them. Husband said they had an argument but everything was fine now. Wife said Husband assaulted her and she signed a police statement to that effect. Wife did not testify at trial. May officer testify what Wife told him?

Answer 42

No. In this case even if they fall under a hearsay exception statements would be inadmissible. Unless Husband ordered a hit on Wife and that is why she was unable to testify.

Question 43

What are five factors to consider on whether a statement is testimonial?

Answer 43

1. Motivation/intent of declarant
2. Motivation/intent of interrogator
3. Situation at time of statement-emergency? calm?
4. Identity of person eliciting statement (cop vs. relative)
5. Degree/circumstances of police interrogation .

Question 44

Does the accused have a right to confront lab technicians who analyzed physical evidence?

Answer 44

Yes, SCOTUS found that certificates made by lab technicians about DNA samples etc are considered testimonial, and therefore a violation of confrontation clause.

Question 45

What is the only exception to the confrontation requirement? What does it mean?

Answer 45

The “forfeiture of wrongdoing exception”

It only applies when the defendant procured the unavailability of the declarant by wrongdoing that was done with the intent (motive) of keeping the witness from testifying.

Question 46

Joe, in a fit of rage, kills his spouse, Phil. Three weeks before the murder, Phil gave the police a statement: “Joe accused me of having an affair. He held a knife to my throat and threatened to kill me if he ever found me cheating on him.” At the trial for murder, Joe claimed self-defense. Will Phil’s statement to the police be admissible?

Answer 46

No. Generally since Joe’s 6A were violated since he couldn’t cross examine Phil. Here, although Joe made it so that Phil was unavailable to testify, Joe didn’t waives his confrontation clause rights since the reason/motive of the murder was not to keep Phil from testifying, but rather an unrelated depraved heart matter.