Hearsay

Question 1

Define hearsay

Answer 1

(1) an out of court statement…

(2) offered to prove the truth of the matter asserted

Question 2

What are the main categories of non-hearsay?

Answer 2

• Verbal act (legally operative words)
• Effect on hearer
• Speaker's state of mind (e.g., insanity, consciousness of guilt, lack of knowledge, etc.)
• Prior statement of trial witness
• Admission by party
(mnemonic: VESPA)

Question 3

Is a witness’s own prior statement hearsay if offered to prove the truth of the matter asserted? What exclusions apply?

Answer 3

Yes, it is hearsay unless an exception or exclusion applies.
EXCLUSIONS:
•witness’s prior statement of identification of a person
• witness’s prior INCONSISTENT statement if (1) oral, (2) under oath, and (3) made during formal trial, hearing, proceeding, or deposition, or
•witness’s prior CONSISTENT statement if being used to rebut charge of fabrication or improper motive/influence

Question 4

When are vicarious party admissions admissible as non-hearsay?

Answer 4

When the statement by the agent/EE is within the scope of agency and is made during the existence of the agency/employment relationship

Question 5

When are co-conspirator statements admissible as party admissions?

Answer 5

When the statements are made (1) during and (2) in furtherance of the conspiracy

Question 6

When does the 6th Amendment require that a criminal defendant be confronted with the witness against him?

Answer 6

(1) testimonial statement
(2) declarant is unavailable
(3) defendant has no opportunity for cross-exam

Question 7

When is a statement to police testimonial for purposes of hearsay constitutionality?

Answer 7

TESTIMONIAL: when establishing past events potentially relevant to a later criminal prosecution
NON-TESTIMONIAL: when enabling police assistance to meet an ongoing emergency.

Question 8

When is a forensic laboratory report testimonial?

Answer 8

When purpose is to accuse a targeted individual of criminal conduct

Question 9

When does the “forfeiture” hearsay exception apply?

Answer 9

satisfy all:

(1) court finds by a preponderance of the evidence…
(2) defendant’s conduct was designed to prevent the witness from testifying
(3) the conduct made the witness unavailable to testify

Question 10

When does the “former testimony” exception apply?

Answer 10

satisfy all:
•declarant unavailable
• former testimony was given in a former proceeding or deposition
• opposing party had an opportunity and motive to cross-examine
•essentially the same issue

Question 11

What are the grounds of unavailability for hearsay exceptions?

Answer 11

(1) Privilege
(2) Absence from jurisdiction
(3) Illness or death
(4) Lack of memory
(5) Stubborn refusal to testify
(mnemonic: PAILS)

Question 12

When does the “statement against interest” hearsay exception apply? What additional element is required in criminal cases?

Answer 12

satisfy all:
• declarant unavailable
• when made, statement is against pecuniary, proprietary, or penal interest
EXTRA CRIMINAL ELEMENT: corroborating evidence

Question 13

When does the “dying declaration” hearsay exception apply? In which types of cases does it apply?

Answer 13

ELEMENTS (satisfy all):
• declarant unavailable
• statement made under belief of impending and certain death
• statement concerns cause or surrounding circumstances of death
TYPES OF CASES:
• Criminal cases: only applies in homicide
•Civil cases: applies in any type of case

Question 14

When does the “excited utterance” hearsay exception apply?

Answer 14

satisfy all:
•statement concerning a startling event
•made while declarant is still under the stress of excitement caused by the event

Question 15

When does the “present sense” hearsay exception apply?

Answer 15

When declarant makes a description of the event either:
•while it is occurring, or
•immediately thereafter

Question 16

When does the “present state of mind” hearsay exception apply?

Answer 16

satisfy all:
• contemporaneous statement
• concerning defendant’s present state of mind, feelings, emotions

Question 17

When does the “declaration of intent” hearsay exception apply?

Answer 17

satisfy all:
•statement of declarant’s intent
• to do something in the future

Question 18

When a declaration of intent is admitted that shows the declarant intended to do something with another person, what may the evidence be used to show?

Answer 18

• declarant’s future intent

* that declarant did the thing with the other person

Question 19

When does the “present physical condition” hearsay exception apply?

Answer 19

statement about the declarant’s current physical condition

Question 20

When does the “statement for purpose of obtaining medical treatment or diagnosis” hearsay exception apply?

Answer 20

satisfy all:
• statement made to anyone (usually medical personnel)
• for purpose of obtaining medical treatment or diagnosis
• concerning declarant’s present symptoms, past symptoms, or the general cause of his condition
BUT NOT: statements describing details of liability or identity of tortfeasor, unless identity of abuser in domestic/child abuse case
NOTE: statements made by physician to patient are not covered by the exception

Question 21

When does the “business records” hearsay exception apply?

Answer 21

satisfy all:

(1) records of a business of any type
(2) made in the regular course of business
(3) business regularly keeps such records
(4) made contemporaneously
(5) contents concern either info observed by the employees, or statement that otherwise falls within a hearsay exception

Question 22

How does a party lay foundation to prove business records?

Answer 22

either:
• call records custodian or other knowledgable person from the business to testify to the elements of the hearsay exception, or
• written certification under oath attesting to the elements of the hearsay exception

Question 23

When does the “public records” hearsay exception apply?

Answer 23

Records of a public office or agency setting forth any of the following:
• activities of the office or agency
•matters observed pursuant to a duty imposed by law, or
•findings of fact or opinion resulting from an investigation authorized by law
EXCLUSION: police reports prepared for prosecutorial purposes are not admissible against the defendant in a criminal case

Question 24

How may a hearsay declarant be impeached?

Answer 24

by any impeachment method, so long as the hearsay declarant’s statement was admitted into evidence