Hearsay Exceptions

Question 1

What are the common law exceptions to hearsay? (4)

Answer 1

1. Admissions Exception
2. Res Gestae Exception
3. Declaration Against Interest
4. Business Records Exception

Question 2

Explain the Admissions Exception (admissions by a party) of hearsay

Answer 2

It is any oral or written statement (or conduct), any hearsay at all made by an ADVERSE PARTY to the case

• this can be admitted by an opposing party for its TRUTH EVERY TIME
• This exception ONLY covers the hearsa element of the statement made by an adverse party
• You cannot cross examine the maker of the statement

Question 3

Explain the Res Gestae Exception (The Things Done) of hearsay

Answer 3

The things done, “in the heat of the moment” are unlikely to be false and provide an aura of reliability

• the spontaneous utterance exception
• Statement of physical condition exception
• State of mind exception

Question 4

Explain the RES GESTAE STATEMENT OF PHYSICAL CONDITION AND STATE OF MIND EXCEPTION

Answer 4

1. Must be a present state of mind

2. once litigation is possible then the statement is inadmissible

Question 5

WHAT IS RES GESTAE EXPLANATION OF NATURE OF HEARSAY EXCEPTION?

Answer 5

The traditional rule says that a statement relating to a “startling event or condition” can be admitted where the declarant is under “the stress of excitement cause[d] by the event or condition”.

An utterance falls in this category where the evidence can characterize it as being a spontaneous exclamation made without premeditation or artifice and before the speaker had time to concoct something

Question 6

Explain the admission against interest exception

Answer 6

This is an out of court statement by a party that, when uttered is against the party’s pecuniary proprietary or penal interest

this exception allows a person to testify to a statement of another that reveals something incriminating, embarrassing, or otherwise damaging to the maker of the statement.

It is allowed into evidence on the theory that the lack of incentive to make a damaging statement is an indication of the statement’s reliability.

Can be:

Declarations against Penal Interest
Declarations against Pecuniary Interest

Question 7

Are documents hearsay evidence? Explain

Answer 7

• Documents are always hearsay, as they are viewed as statements made by the author, who is not normally there to tell us directly
• Traditional evidence law required the need to laboriously prove the authenticity of documents tendered as evidence, otherwise this would place a huge burden on the courts of calling witness involved with the document

Question 8

Explain the business records exception

Answer 8

This is the main hearsay exception for documents, this exception allows parties to introduce most documents into evidence as long as;

1. prior notice has been given to the other parties of the intention to do so
2. the other parties have had a chance to inspect the original documents

business records should be distinguished from other documents created for the purposes of the litigation, such as expert reports

Question 9

What are the business records exception criteria? (5)

Answer 9

1. Records are made in the ordinary course of business
2. Records were made by a person whose duty was to keep such records
3. The person who made the records did so from personal knowledge
4. the records were made contemporaneously (at the same time of the event)
5. the person making the record had no motive to misrepresent it

Question 10

Explain the residual / principled exception to hearsay

Answer 10

Based on necessity

1. satisfied where witness truly unavailable
2. Possibly satisfied where the witness is absent (proof generally required)
3. Satisfied where evidence is required to supplement testimony (partial or complete lack of memory)
4. Possibly satisfied where need is relative; would take too much time or expense to prove

Question 11

Explain reliability in regards to the residual/principled exception

Answer 11

based on reliability

1. Circumstantial guarantees (of trustworthiness)
2. Adequate Substitutes

Question 12

what is a docket list?

Answer 12

outside of each courtroom you will find a “docket list” which lists the cases that are scheduled for hearing in that courtroom that day, which is changed daily

Question 13

How do you tender evidence through an exhibit? (7)

Answer 13

1. have the exhibit market, exhibits are given sequential numbers or letters
   - if the exhibits have been pre-marked at the beginning of the hearing, this step is unnecessary
2. show the exhibit to opposing counsel or party
3. ask permission to approach
   Step 4. Show the exhibit to the witness.
   Step 5. Lay the foundation for the exhibit (what it is)
   Step 6. Move for admission of the exhibit in evidence.
   Step 7. Have the witness use or mark the exhibit.