Hearsay Exceptions (Available W)

Question 1

hearsay exceptions regardless of unavailability

Answer 1

present state of mind
excited utterances
present sense impressions
physical condition (for medical diagnosis or treatment)
past recollection recorded
business records
judgments and prior convictions
ancient documents
documents affecting property interest
learned treatises
family records
market reports

Question 2

present sense impression

Answer 2

1. **describing **or explaining an event or condition; and
2. made while or immediately after the declarant perceived it

Timing is key: must be made while, or immediately after, perceiving the condition or event described in statement

Question 3

excited utterance

Answer 3

1. relating to a startling or exciting event or condition; and
2. was made while the declarant was under the stress or excitement of the event

could be years later (eg recollection trauma)

DL’s emotional state is key: DL must be under such excitement or stress that one would not normally have an opportunity to fabricate the statement

Question 4

present state of mind

Answer 4

a statement of then existing state of mind or emotional, sensory, or physical condition

1. Motive
2. Intent
3. Plan
4. Mental feeling
5. Pain
6. Bodily health

NOT: statements of memroy or belief unless relating to validity of DL’s will’s terms

present/future NOT past

Question 5

medical diagnosis or treatment

Answer 5

admissible if pertinent to assisting in the diagnosis or treatment of a condition

NOT the identity of who shot them

Question 6

business records

Answer 6

admissible if:
1. a record or transaction recorded by a business or organization
2. made in the regular course of business (regular practice)
3. made by someone with knowledge at or near the time of the matters described
4. authenticated or certified in writing
5. no indication of lack of trustworthiness by opponent

**Absence of record: **records meeting these requirements may be admitted to show that a matter did not occur or exist

receipts, incident reports, patient records, etc.

Question 7

police records

Answer 7

inadmissible against D as business or public records in criminal cases

we want the police to testify

Question 8

hearsay within hearsay

Answer 8

NOT excluded** if each part** of the** combined statements **conforms with an exception to the rule

Look for a statement within a statement (A saying what B said)

Question 9

public records

Answer 9

public office/agency record admissible if it describes:
1. office activities
2. matter observed while under a legal duty to report near time of event
3. (civil case or against govt in criminal case) factual findings from a legally authorized investigation; and
4. **no **indication of lack of trustworthiness from opponent

Criminal case exception: NOT matters observed by law enforcement personnel (police, CPS, etc.)
- we want them to prove this

Question 10

absence of public records

Answer 10

certification or testimony from a public official that a **diligent search failed **to find a record is admissible to:
1. prove that the record does NOT exist, or
2. prove that a matter did NOT occur (if records were kept regularly)

Question 11

prior judgments

Answer 11

certified copies are admissible in both civil and criminal cases to prove any fact essential to the judgment

Question 12

prior convictions

Answer 12

inadmissible in criminal cases against non-Ds unless used for impeachment

Question 13

learned treatises

Answer 13

admissible only if:
1. established as reliable and accepted authority by testimony, admission, or judicial notice, and
2. used for:
* direct: reliance by expert
* **cross: **impeachment of expert

IF ADMITTED, may only be read into evidence

arises with expert testimony ONLY

Question 14

family records

Answer 14

statements of fact found in family keepsakes

eg. jewelry engravings, genealogies

Question 15

ancient documents

Answer 15

a form of documentary evidence (see card 24)