Hearsay Exceptions

Question 1

Why are there so many exceptions (29) to hearsay?

Answer 1

• ALL exceptions exist for one or both of two reasons - reliability and necessity.
  o Reliability - the circumstances under which the out-of-court statement was made makes it more reliably truthful - though there are no guarantees.
  o Necessity - the evidence is important and may not be available in any other way.

Question 2

What are the five broad categories of hearsay exceptions?

Answer 2

• Observational exceptions
• Documents and records exceptions
• Reputation exceptions
• Unavailability required exceptions
• Residual exception

Question 3

What are the four observational exceptions to hearsay?

Answer 3

• Present sense impressions
• Excited utterance
• Statement of then-existing state of mind
• Statement of medical treatment or diagnosis

Question 4

What is a present sense impression?

Answer 4

• A statement made by the declarant describing or explaining an event or condition made while or immediately after perceiving it.
• The spirit behind the exception is that there is no time lapse from the experience to the statement being made, like color commentary of a sporting event.

Question 5

What is the timing requirement for a present sense impression to be admissible?

Answer 5

• Statement needs to be spontaneous and contemporaneously made

Question 6

Must the present sense impression be made in writing?

Answer 6

• Can be oral or in writing

Question 7

Must the declarant be available to testify on the present sense impression?

Answer 7

• Declarant need not be known or available; but must have had firsthand knowledge of the event.

Question 8

What are some examples of potential present sense impressions?

Answer 8

• EXAMPLE: Witness testifies to seeing a hit-and-run and immediately wrote down the license plate #.
• EXAMPLE: Witness testifies the person next to them hollered, “That car’s driving on the wrong side of the road.”
• EXAMPLE: Someone who was just outside, walks inside, and says, “The sky is so bright, you can see a million stars.”
• EXAMPLE: A statement that does NOT qualify: Thirty minutes after the accident, the declarant told the police officer, “The defendant ran the red light.”

Question 9

What is an excited utterance?

Answer 9

• A statement relating to a startling event made while the declarant was under the stress of excitement caused by the event or condition.
• The spirit behind the exception is that the declarant’s mental state make fabrication unlikely.

Question 10

What are the elements of an excited utterance?

Answer 10

• Startling event;
• Statement relates to/describes the startling event;
• Personal knowledge; and
• Made while still stressed by event; unlike present sense impression, statement need not be immediate.

Question 11

What is an example of an excited utterance?

Answer 11

• EXAMPLE: Three days after being attacked and knocked unconscious, a victim suddenly awakens and screams “my partner attacked me.”

Question 12

When is a statement of then-existing condition admissible?

Answer 12

• A statement of the declarant’s then-existing mental, physical, or emotional, condition is admissible if relevant to:
  o show declarant’s state of mind at the moment to prove what the declarant was thinking or feeling at the moment, or
  o explain future behavior, sometimes referred to as “forward-looking statements” (Hillmon doctrine) e.g., to show declarant’s intent, plan, motive, design, etc.
• The spirit behind the exception is that the declarant’s statement at the time it was made is often more trustworthy than the declarant’s testimony given after a lapse of time and under the influence of self-interest.

Question 13

What is an example of a statement of then-existing condition?

Answer 13

• EXAMPLE: During the damages phase of a trial against a hospital, a witness can testify that Plaintiff repeatedly said, “My legs are killing me. I’m afraid I’ll never walk again” to prove the Plaintiff was suffering physical and emotional pain at the time and to support Plaintiff’s claim that he asked repeatedly for pain medication and emotional health counseling which the hospital didn’t provide.

Question 14

What does the Hillmon doctrine say about the then-existing condition exception?

Answer 14

• Statements of past sensation, memory, or belief - backward-looking statements - are NOT admissible under this exception.
• Hint: Look for present tense of the verb. “My back hurts”/”I have a headache” fits. “I didn’t get any sleep last night” does not.

Question 15

What is an exception to the Hillmon doctrine so that a backward-looking statement may be admissible?

Answer 15

• Statements of memory relating to the execution, revocation, identification, or terms of declarant’s will, are admissible under this exception.

Question 16

When can a statement about a medical diagnosis or treatment be admissible under the hearsay exceptions?

Answer 16

• Statements made for purposes of medical diagnosis or treatment describing medical history or past or present symptoms, pain or sensation or the cause are admissible under this exception.
• The spirit behind the exception is that the motive for the statement being made promotes treatment, a strong motive for truth-telling

Question 17

Must the statement be made to a doctor in order to qualify for the medical diagnosis exception to hearsay?

Answer 17

• Statement can be made to medical personnel, or even a family member where treatment for a medical problem is sought.

Question 18

What does it mean for the statement of medical diagnosis to be pathologically germane?

Answer 18

• The statement must be one which is useful for diagnosis or treatment, referred to as being “pathologically germane.”

Question 19

Which statements must be cut out from the medical diagnosis?

Answer 19

• Statements admitting or assessing fault are NOT included. If in writing, such as a hospital report (a business record), such words would be redacted (blackened out) from the report.
• EXAMPLE: “I was hit from behind by a person in a blue car, license plate XJU187.” The doctor’s testimony of the Patient’s statement about being “hit from behind” is admissible, but the doctor could not testify to the latter portion.

Question 20

What are the four subcategories of documents/records exceptions to hearsay?

Answer 20

• Business and public records
• Religion and family records
• Real property related records
• Miscellaneous records

Question 21

What are the six records exceptions related to business and public records?

Answer 21

• Past recollection recorded
• Business records
• Absence of business records
• Public records
• Records of vital statistics
• Absence of public records

Question 22

What is the hearsay exception for past recollection recorded?

Answer 22

• If a witness has diminished memory and documented something (or signed or adopted the document) within their personal knowledge “while the matter was fresh” in the witness’s mind, the contents of the document are admissible.
• The spirit behind the exception is that this is an emergency provision and the document is a reasonably reliable record of the witness’s memory.

Question 23

What is a prerequisite for admitting a past recollection recorded under the hearsay exception?

Answer 23

• Refreshing the witness’s memory must have been attempted and failed. The witness must lack current memory of the event.

Question 24

Is the past recollection recorded admitted into evidence?

Answer 24

• Although the writing/record is read into evidence, the writing itself is NOT received as an exhibit (to be with the jury during deliberations) unless offered by the adverse party.
• Why? Because this is just like other testimony but may take on greater weight since the jury has it in writing during deliberations.

Question 25

What does the opponent have the right to do with past recollections recorded?

Answer 25

• inspect the writing;
• cross-examine with it;
• show it to the jury for comparison; and
• introduce relevant portions into evidence.

Question 26

What elements are required to satisfy the business records exception?

Answer 26

• A memorandum, record, or report;
• of business-related acts or events;
• made at or near the time of the event - contemporaneous;
• by a person with knowledge;
• if kept in the course of a regularly conducted business activity - the record serves some business purpose (e.g., taxes, inventory, etc.); and
• if it was the regular practice of that business to make such a record or report - mandatory, business policy;
• provided the information does not lack trustworthiness.

Question 27

Who determines whether the business record lacks trustworthiness?

Answer 27

• A preliminary question of law for the judge – FRE 104

Question 28

What is a caveat to the business records exception?

Answer 28

• The records in question may not be made solely in anticipation of litigation.

Question 29

What is the purpose behind the business records exception?

Answer 29

• The spirit behind the exception is that if these routine, mundane activities are not captured immediately they are quickly forgotten and likely to be reliable because they serve important business purposes.

Question 30

How must the business record be authenticated?

Answer 30

• Authentication: by self-authentication (certificate confirming the above) or testimony of the custodian of records for the business.
  o EXAMPLES - Admissible: Sales receipt, hospital records, payroll records.
  o EXAMPLES - NOT Admissible: Personal diaries, personal calendars, personal bank records.

Question 31

How is the absence of business records an exception to the hearsay rule?

Answer 31

• Evidence that a matter is NOT included in records or data compilations kept in accordance with the business or public records rules may be admitted to prove the non-occurrence of the event or the non-existence of the matter.

Question 32

How does a party lay the foundation for the absence of a business record?

Answer 32

• Foundation: The witness must testify to being familiar with the records, that the witness performed a diligent search, and that no record of the event was found.
  o EXAMPLE: The plaintiff claims they ordered a briefcase from a company, while the company claims it did not receive the order. The company can offer into evidence the list it keeps of all orders received to prove that the plaintiff’s order was not there.
  o EXAMPLE: The defendant is arrested and charged with carrying a firearm without a license to carry. The prosecutor can subpoena firearm license records from the department that keeps track of firearms licenses, and the prosecutor can show that a diligent search was made and that no license was found for the defendant.

Question 33

When would a public record be admissible under a hearsay exception?

Answer 33

• A record or statement of a public office is admissible if it sets out a matter personally observed which the person is under a legal duty to investigate and report.

Question 34

When would a public record not be admissible under the hearsay exception?

Answer 34

• The report of law enforcement is NOT admissible under this exception in a criminal case against the accused (Confrontation Clause problems).

Question 35

How is a public record authenticated?

Answer 35

• Self-authenticating if certified or under seal or by custodian of records

Question 36

What kinds of records constitute records of vital statistics?

Answer 36

• Records or data compilations of births, deaths, or marriages are admissible if the report was made to a public office pursuant to requirements of law.
• EXAMPLE: A birth certificate from a hospital offered to show that the child was born on January 11, 2013.

Question 37

How does the absence of a public record qualify for a hearsay exception?

Answer 37

• Evidence that a matter is NOT included in records or data compilations kept in accordance with the public records rules, including vital statistics, may be admitted to prove the non-occurrence of the event or the non-existence of the matter.
  o EXAMPLE: In a bigamy trial, an authenticated record from the Department of Vital Statistics indicating a search revealed no records of the defendant’s divorce is admissible to prove the defendant was never divorced.

Question 38

What records fall under the religion and family history exceptions?

Answer 38

• Records of, or certificates authorized by, a religious organization (or by law) concerning personal or family history, such as births, deaths, marriage, baptism, etc. Also, family records contained in family bibles, genealogy charts, inscriptions on family portraits, engravings on tombstones, urns, crypts, etc.

Question 39

What records fall under the exceptions related to real property?

Answer 39

• Documents (e.g., deeds, mortgages) kept by law in government recording offices or statements in other documents (e.g., letters, contracts) that affect an interest in, typically, real property

Question 40

What are the five miscellaneous records exceptions to hearsay?

Answer 40

• Ancient documents
• Market/commercial compilations and directories
• Learned treatises
• Judgments in criminal cases
• Judgments in civil cases

Question 41

What constitutes an ancient document?

Answer 41

• Admissible in a document in existence prior to January 1, 1998, if found in a place where these items are typically found. Think archives, library, even a shoebox kept under a bed.

Question 42

What records would fall under the market/commercial records exception?

Answer 42

• Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
• EXAMPLE: Telephone directories; credit reports; retail sales catalogs; Kelley Blue Book; the Wall St. Journal.

Question 43

Which records constitute learned treatises?

Answer 43

• Statements in treatises, textbooks, journals (medical/scientific), periodicals, or hornbooks if the treatise is established as authoritative.

Question 44

How is the learned treatise exception similar to the past recollection recorded exception?

Answer 44

• The treatise can be read to the jury, but, like with past recollection recorded, the document does not become an exhibit which is physically given to the jury.

Question 45

How is the authoritativeness of a treatise record established?

Answer 45

• Authoritativeness can be established by:
  o judicial notice;
  o expert testimony (your expert or your opponent’s expert); or
  o by stipulation between the parties.
• EXAMPLE: A witness testifies that bromine boils at 68 degrees centigrade. On cross-examination, the opposing counsel asks the expert if they were familiar with Boiling Points by H. R. Franklin. The witness responds affirmatively and is asked whether the book is widely used in the chemistry field. The witness again responds affirmatively. The cross-examiner has established authoritativeness and can now impeach the witness but can also read an excerpt from page 325 which states that bromine boils at 58.8 degrees centigrade.

Question 46

A learned treatise can cover which subject areas?

Answer 46

• Subject area: MASH: Medicine, Art, Science, History.

Question 47

How can a learned treatise be used under the FRE?

Answer 47

• This is a hearsay exception; therefore the evidence is admitted substantively under the FRE. Many states ONLY allow the evidence to impeach.

Question 48

What are the three reputation exceptions to hearsay?

Answer 48

• Reputation regarding family or personal history
• Reputation regarding land use boundaries or historically significant events
• Reputation regarding character

Question 49

What would be considered reputation evidence concerning family history?

Answer 49

• Reputation evidence among family, associates and community is admissible to prove the witness’s personal or family history (e.g., adoption, relations, etc.)
• EXAMPLE: Witness can testify that family lore is that the witness is related to George Washington

Question 50

What would be considered reputation evidence concerning land use boundaries and general history?

Answer 50

• Reputation in the community concerning property boundaries, local customs relating to land, and general historical events across the country.
• EXAMPLE: Witness can testify that community lore is that George Washington slept in their home once.

Question 51

What is covered under the exception about reputation concerning character?

Answer 51

• This exception deals only with the hearsay aspect of this kind of character evidence. Limitations upon admissibility based on other grounds will be found in Rules 404, relevancy of character evidence generally, and 608, character of witness
• Know your issue: Is the question asking about the character aspect of the evidence or the hearsay aspect? Answer appropriately

Question 52

When are criminal judgments admissible under an exception to hearsay?

Answer 52

• Final judgments of previous convictions for felonies are admissible to prove an essential element of the action. These judgments are typically self-authenticating.
• EXAMPLE: The defendant is charged with being a felon in possession of a firearm. A certified copy of a final judgment can be offered to prove the defendant is a convicted felon.

Question 53

Against whom can the criminal judgment be used under the exception?

Answer 53

• The judgment cannot be used except as against the accused.

Question 54

When would a civil judgment be admissible under the hearsay exception?

Answer 54

• A judgment admitted to prove a matter of personal, family, or general history, or boundaries, if the matter it was essential to the judgment and could be proved by evidence of reputation.
• EXAMPLE: Immigration Board’s ruling that Plaintiff’s father was a citizen is admissible in a proceeding for declaration of Plaintiff’s citizenship.

Question 55

What are the five hearsay exceptions that require the declarant to be unavailable?

Answer 55

• Former testimony
• Dying declaration
• Statement against interest
• Statement of personal or family history (pedigree)
• Forfeiture of wrongdoing

Question 56

What six triggering events may cause the declarant to be unavailable?

Answer 56

• Privilege: Assertion of a privilege (based on the judge’s ruling whether the privilege applies - FRE 104).
• Refusal to testify despite a court order.
• Incapacity (incapability): due to death or then-existing physical or mental illness.
• Subpoena: Absence of a witness despite a good-faith attempt to procure the witness’s attendance (i.e., subpoena).
• Memory: Witness testifies as to a lack of memory.
• Burden: The proponent of the testimony bears the burden to prove declarant is unavailable; must do some work, actually look; more than just send subpoena.

Question 57

What constitutes as former testimony under the hearsay exception?

Answer 57

• Testimony of an unavailable declarant made under oath (typically, in the form of a transcript) while testifying in a proceeding or deposition that involves the same, or a different but related subject matter, where the party against whom the evidence is being offered had an opportunity and similar motive to examine the witness and develop the testimony, on direct, cross-examination, or redirect
  o EXAMPLE: Witness (W) testifies for A in a trial where A sues B over a property boundary dispute. A mistrial is declared and before the retrial, A sells her land to C and W dies. Because A and C have an identity of interest, in the trial of C v. B, B can offer a properly authenticated transcript of W’s testimony from the first trial against C, even though C wasn’t a party in the first trial and was not able to cross examine W personally.
  o EXAMPLE: A ride-share driver crashes into another vehicle. Two passengers, a doctor and a lawyer, are injured. In the first proceeding, the doctor commences a civil suit against the ride-share company, and a witness to the accident testifies at the trial. Later on, the lawyer commences a civil suit against the ride-share company. However, the witness at this time is no longer available to testify. Under the former testimony exception to the hearsay rule, the transcript of the witness’s testimony from the first proceeding can be admissible in the second proceeding.
• COMPARE: Grand jury testimony was sufficient to be admitted substantively as a prior inconsistent statement made under oath at a court-type proceeding, but because the witness is not subject to cross-examination, the statement is NOT admissible as former testimony.

Question 58

What is required for a dying declaration?

Answer 58

• (1) In a prosecution for homicide or in a civil case,
• (2) a statement that the declarant made,
• (3) while believing the declarant’s death to be imminent,
• (4) about its cause or circumstances of what they thought was the cause of their impending death.
  o EXAMPLE: The victim is shot, bleeding profusely, and coughing up blood. The police arrive and ask, “Who did this?” The victim grabs a pen and paper and draws a sketch of a person with a crooked nose and a prominent facial scar. The victim then dies. Subsequently, the defendant is charged with murder. Result - The sketch is admissible as a dying declaration.

Question 59

What must the judge determine about dying declarations?

Answer 59

• FRE 104(a) requires that the judge determines whether the declarant subjectively believed death was imminent.

Question 60

Is death a requirement for admitting a dying declaration?

Answer 60

• Death need not actually result, but the declarant must be unavailable.

Question 61

When is a statement against interest admissible under a hearsay exception?

Answer 61

• A statement of an unavailable witness (generally, not a party) that was against the declarant’s pecuniary ($), proprietary (property), or penal (jail) interest when made is admissible.
  o EXAMPLE: Statement against pecuniary interest: “I owe my boss $10,000, but I will never pay up.”
  o EXAMPLE: Statement against propriety interest: “I don’t even own Frommacre, but I moved in here when the previous owner died.”
  o EXAMPLE: Statement against penal interest: “We just pulled off the heist of the century.”

Question 62

What additional requirement must be met if the statement against interest is being offered to exculpate a criminal defendant?

Answer 62

• In a criminal case, if a statement against the declarant’s penal interest is offered to exculpate the defendant, corroboration is required to insure trustworthiness
• EXAMPLE: Defendant (D) calls Witness (W) for W to testify “I, not D, committed the crime,” some corroboration (e.g., W’s fingerprints at the scene, another witness to corroborate W’s account) is required to be admissible.

Question 63

What additional requirement must be met if the statement against interest is being offered to inculpate a criminal defendant?

Answer 63

• If the statement against the declarant’s penal interest is offered to inculpate the defendant (by the prosecution, obviously), there is a Confrontation Clause / Crawford problem. It would not be admissible.
• EXAMPLE: Prosecutor calls Witness (W) for W to testify “X told me that he (X) and D committed the crime together.” While X’s statement meets the elements of this exception, it is NOT admissible because of the Confrontation Clause.

Question 64

What is the pedigree exception to hearsay?

Answer 64

• Statement concerning the declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history.
  o EXAMPLE: A parent, separated from their child since the child’s seventh birthday, sees the child on the street and says, “It is you. It is really you! I will never lose you again.” The parent dies the next day and the child wants to use the parent’s statement as proof of familial relationship in a will contest.
  o Result - Admissible under the statement of pedigree hearsay exception.

Question 65

What is the forfeiture of wrongdoing exception to hearsay?

Answer 65

• A statement offered against a party who has engaged in wrongdoing that was intended to procure the unavailability of the declarant as a witness will be admissible (even if it would usually be barred by the hearsay rule).
  o EXAMPLE: An eyewitness gives a statement to the police. The accused then causes the witness to disappear (pays W off, threatens W, kills W).
  o Result - The witness’s statement will be admissible.
• Note: This is a preliminary question of fact for the judge to determine by a POTE.