Hearsay and Circumstances of its admissibility

Question 1

What is hearsay and is it admissible?

Answer 1

Generally no. It is an out of court statement used to prove the truth of the matter asserted.

Question 2

What are the hearsay Exceptions:

Answer 2

TESLA B RAPP
> T hen existing mental, emotional or physical state of mind
> E xcited Utterance
> S tatement for medical diagnosis or treatment
> L earned Treatise
> A bsence of business record or public record
> B usiness Record
> R ecorded Recollection
> A ncient Document
>P resent Sense Impress ion
> P ublic Record
> Catch all exception

Question 3

Present Sense Impression

Answer 3

Hearsay exception

Statement was made while observing a fact

There is no emotion. Its the who, what and where. Non emotional observation of fact while observing it

Question 4

Excited Utterance

Answer 4

Hearsay exception

Statement made while I am excited.

Usually exclamation point or john yelped, streaked ect.

Question 5

Then existing mental, emotional or physical state of mind

Answer 5

Hearsay exception

What was in my head, Statements that gen go to my intent or emotion.

 I was going to go to NY.
 I couldn’t have killed her because I love her
 I have a headache now.
 Motive intent, love, planning traveling or love or hate

Question 6

Business Record

Answer 6

Hearsay exception

Where record made in ordinary course of the business. Must be done all the time every day no matter what.

 Ie: time sheet

Question 7

Statement for medical diagnosis or treatment

Answer 7

Hearsay exception

Statement related to past or present symptoms relating to diagnosis or treatment. Treatment made related to being treated. More about the treatment itself.

 Gen making to someone whos doing the treatment or diagnosis

 Aka: Statement related to past or present symptoms
 About treatment or diagnosis

Question 8

Recorded Recollection

Answer 8

Hearsay exception

The witness once knew about this document but now cant remember. This document was either made by the witness or he adopted it ie knew about it and accepted it as something he knew of. This can be put in front of witness to verify memory.

Key is this may be read into evidence. (recorded).

Question 9

Public Record

Answer 9

Hearsay exception

Record or statement of a public office or agency that shows activities of the office or observations of a person under duty to report.

 Ie: police report

Question 10

Absence of business record or public record

Answer 10

Hearsay exception

Looking for hypo where they say there was no business or public record absence of.

Question 11

Learned Treatise

Answer 11

Hearsay exception

Looking if an expert witness is relying on it and then that can come in as hearsay exception

Question 12

Ancient Treatise

Answer 12

Hearsay exception

Document that is more than 20 years old and authenticated meaning no signs of tampering.

 If less than 20 years old prob wont come in under this exception and will choose the inadmissible not within any hearsay exception

Question 13

Catch All Exception

Answer 13

Hearsay exception

Any other kind of statement that is trustworthy, material and in the interest of justice we should admit it then it will come in under the catch all exception.

Question 14

Exceptions where unavailability is unimportant

Answer 14

STD

Unavailable: Not currently at the trial

> Dying declaration
Statement against Interest
Former Testimony

Question 15

Dying Declaration

Answer 15

Unavailability is unimportant

The declarant must be unavailable (dnt mean dead), the declarant has to believe that they are dying, the statement is about why they are dying (in this position), it only applies in homicide or civil case.

Question 16

Statement Against Interest

Answer 16

Unavailability is unimportant

 AKA: Unavailability, makes declarant look liable/ guilty, generally made by nonparty

 If they tell you the declarant was unavailable that’s how u know to pick this one and not an admission

This is where the declarant makes a statement making themselves look liable or guilty about something. This looks like an admission but its not.

Question 17

Former Testimony

Answer 17

Unavailability is unimportant

The declarant unavailable. A party against whom the former testimony was offered was a party in a former case, the former case is about the same subj matter as the current case, the former testimony was made under oath and they had the opportunity and/ or motive to examine or cross examine the witness.

Question 18

Non hearsay (not exceptions)- Admissible as substantive Evidence

Answer 18

APPS

Admissible as non hearsay have nun to do with the hearsay exceptions.

> Admissions
Prior Consistent Statements
Prior ID
Prior Sworn Inconsistent Statements

Question 19

Admissions

Answer 19

Non hearsay

o Admissions: A statement made by one of the parties, that makes them look guilty or liable and they are admissible as nonhearsay.

2 kinds:

o Vicarious Liability: statements made by EEs of a company. Making statements about the company and liability.

o Adoptive Admissions: Statements where they are not really statements: silence, when no respond when an innocent person would normally protest, object. Party does not respond when a reasonable person would.

Question 20

Prior consistent statement

Answer 20

Non hearsay

AKA
1. prior statement by declarant

2. The same as current testimony
3. To refute charge of fabrication or motive.

> brining in something that the declarant already said before just to refute the idea that I would be lying or made something up.

Statement made earlier by the declarant (which is the same as the current testimony).

Question 21

Prior sworn inconsistent statement

Answer 21

Non hearsay

A prior statement made under oath/ trial/ proceeding that’s inconsistent with my current testimony.

Question 22

Prior ID

Answer 22

Non hearsay

Declarant is presently testifying about a person they identified earlier.

Question 23

Testimonial vs non testimonial Statements

Answer 23

Testimonial: Not made during an emergency= Not Admissible

Non- Testimonial: Made during and emergency= AAdmissible

Question 24

Hearsay upon hearsay

Answer 24

2 diff statements, it is not admissible.