Hearsay Exceptions-803,804,807

Question 1

True or False: you must do an analysis of 801(d) before moving on to the exceptions

Answer 1

True. If a statement doesn’t meet the requirements of 801(a)-(c), or meets the requirements of 801(d), it is not hearsay and so doesn’t need an exception

Question 2

Strong exceptions are in —
Weak exceptions are in —
What is the difference

Answer 2

803
804
803 exceptions are always available, whereas the 804 exceptions can only be used if the witness is unavailable

Question 3

803(1) and the applicable rule

Answer 3

Present sense impression

Statement describing or explaining an event or condition, made while or immediately after the Declarant perceived it. Cannot be memory of impression or an “I think”

Question 4

803(2) and its rule

Answer 4

Exited utterance-statement made in relation to startling event or condition and was made while under the stress or excitement it caused

Question 5

What is the difference between present sense impression and exited utterance

Answer 5

Temporal. Present sense impression has an immediate requirement

Question 6

803(3) and its rule

Answer 6

Then existing mental, emotional, or physical condition

State of mind (motive, intent, or plan) or emotional or physical condition not including a statement of memory or belief

Question 7

803(4)

Answer 7

Statement for purpose of medical diagnosis or treatment

Made for a reasonably pertinent to medical diagnosis or treatment AND describes medical history, past or present symptoms or sensations, their inception, or general cause

The doctor’s statements generally don’t qualify

Question 8

803(5)

Answer 8

Recorded recollection

Record that is on a matter witness once knew but has forgotten such that they cannot testify to it at all. Made or adopted by witness when matter was fresh in their memory

Question 9

What is the difference between a recorded recollection and writing to refresh the witness?

Answer 9

The writing to refresh a witness is not evidence and is not available to the jury, and is only to aid a witness to remember. A recorded recollection takes the place of the testimony where the witness cannot remember

Question 10

803(6)

Answer 10

Business records

Question 11

What are the requirements of the business’s records exception?

Answer 11

1) made at or near time by-or from information transmitted by-someone with knowledge

2) kept within ordinary course of buisness

3) record was made in regular practice
4) all conditions are shown by testimony of the custodian and certified in compliance with 902

5) opponent does not show lacks trustworthiness

Question 12

803(7)

Answer 12

Absence of a record. Similar to 803(6) but rather to show that something doesn’t exist

Question 13

803(16)

Answer 13

Ancient documents

Documents prepared before January 1, 1998 and whose authenticity is established

Question 14

803(8)

Answer 14

Public records

Sets out offices activities, legal duty to report

Question 15

What does it meant to be “unavailable” such that 804 is accessible?

Answer 15

1) exempted from testifying
2) refuses to testify despite court order to do so
3) testifies does not remember subject matter
4) cannot be present due to death or then-existing infirmity
5) absent and not able to procure attendance or testimony

Question 16

804 exceptions are not available if . . .

Answer 16

Party caused the witness’s unavailability

Question 17

804(b)(1)

Answer 17

Former testimony

Given while witness at a trial, hearing, or deposition whether in current proceeding or different one, and is now offered against a party who had opportunity to develop it by direct, cross, or redirect

Question 18

804(b)(2)

Answer 18

Statement in belief of imminent death

Only prosecution for homicide or civil case. Doesn’t actually have to die

Question 19

804(b)(3)

Answer 19

Statement against interest

So contrary that has tendency to invalidate claim AND is supported by corroborating circumstances that clearly indicate trustworthiness

Question 20

804(b)(4)

Answer 20

Personal or family history

Declarant’s own birth, adoption, marriage, divorce, etc. even if no way of acqu8ing personal knowledge of fact
OR the same of some person intimately associated with family

Question 21

804(b)(6)

Answer 21

Forfeiture by wrongdoing

Offered against party that caused declarant’s unavailability and did so intending that result

Question 22

807

Answer 22

Residual exception

Statement is supported by sufficient gurantees of trustworthiness and is more probative on point than any other evidence obtainable by reasonable efforts