Hearsay Exceptions

Question 1

Hearsay Exceptions:

Answer 1

Former Testimony, Statement Against Interests, Dying Declaration, Present Sense Impression, Excited Utterance, Then Existing Physical/Mental Condition, Past or Present Physical Mental Condition For Medical Treatment/Diagnosis, Public Records, Business Records, Judgment Conviction, Catchall

Question 2

Former Testimony (Declarant Must be Unavailable)

Answer 2

Declarant Must be Unavailable

Adverse party to testimony had opportunity to examine that person AND motive to examine was similar to current motive

Civil: adverse party not present in earlier case, but has privity-type relationship with someone who was a party to earlier proceeding AND predecessor in-interst had opportunity and similar motive to examine witness

Question 3

Statement Against Interests (Declarant Must be Unavailable)

Answer 3

Declarant Must be Unavailable

Statement of person, now unavailable as witness, against that persons’ pecuniary, proprietary or penal interest when made.

declarant must have had personal knowledge of facts and must have been aware statement was against interests.

criminal cases require corroborating circumstances indicating trustworthiness.

Question 4

Dying Declaration (Declarant Must be Unavailable)(FRE: ONLY IN HOMICIDE CASES)

Answer 4

(Declarant Must be Unavailable)
One believe he is about to die AND describes causes or circumstances leading to impending death.

FRE: ONLY IN HOMICIDE CASES

Question 5

Excited Utterance

Answer 5

Statement relating startling events or conditions, made while declarant was still under stress of excitement caused.

Question 6

Present Sense Impression (NOT AVAILABLE IN OREGON)

Answer 6

(NOT AVAILABLE IN OREGON)

Describes or explains an event or condition made while declarant was perceiving event OR immediately after

Question 7

Declaration of Then Existing Physical or Mental Conditions

Answer 7

Usually offered to establish person’s intent or as circumstantial evidence that intent was carried out.

statement of memory or belief is not admissible to prove the truth of the fact remembered or believed.

Question 8

Declaration of Past/Present Physical/Mental Condition for Medical Diagnosis/Treatment

Answer 8

Spontaneous declaration of present bodily condition admissible even if made to non-physician.

past conditions are admissible if statement is made to medical personnel to assist in diagnosing or treating condition. This includes statements about cause or source of condition if pertinent to diagnosis/treatment

Question 9

Business Records

Answer 9

A record of an event/condition/opinion/diagnosis, kept in ordinary course of business and made at or near time of matters described by a person with knowledge of facts in that record.

Records taken in anticipation for litigation inadmissible, court may exclude for untrustworthiness.

OREGON REQUIRES AUTHENTICATION BY CUSTODIAN OR QUALIFIED WITNESS

Question 10

Public Record

Answer 10

Record describes policies or activities of an office.

record describes matters observed pursuant to duty imposed by law. (not police records in criminal cases)

record contains factual finding resulting from investigation made pursuant to authority granted by law (not in criminal cases)

Question 11

Judgment of Previous Conviction

Answer 11

Admissible in both criminal/civil to prove any facts essential to judgment.

Prosecution may not use other than for impeachment.

Oregon does not limit admissibility of prior conviction to felonies (anything but traffic offense)

Question 12

Catchall

Answer 12

Must be trustworthy, go to material fact, and more probative than other available evidence.

Question 13

Acceptance Reasons A Declarant May Be Unavailable

Answer 13

Court exempts declarant,

Declarant dead or sick

Declarant cannot be produced through reasonable means

Declarant Refuses to Testify

Declarant’s Memory Fails

Question 14

Oregon Specific Exceptions: Statements in Ordinary Course of Business

Answer 14

Statment admissible if made at or near time of transaction by a person in position to know facts and acting in professional capacity AND in ordinary course of business.

Question 15

Oregon Specific: Complaint of Sexual Misconduct

Answer 15

Complaint of sexual misconduct made right after commission of alleged conduct

admissible to show compliant was made, but not details

Question 16

Oregon Specific: Complaint of Sexual Misconduct Made by Child/Retard

Answer 16

Whole statement is admissible not just complaint.

Declarant must either testify subject to cross OR if under 12, must be available with indicia of reliability

Question 17

Oregon Specific: Domestic Violence

Answer 17

Statement that purposes to describe an intent of domestic violence, made by victim within 24 hours of incident, either in writing or to peace officer and has indicia of reliability.