Hearsay Exceptions [Big Ticket Item]

Question 1

What exceptions require declarant unavailability?

Answer 1

1. Former Testimony (common exception)
2. Statements Against Interest (common exception)
3. Dying Declaration (common exception)
4. Statements of Personal or Family History
5. Statements Offered Against Party Procuring Declarant’s Unavailability

Question 2

When is a declarant “unavailable?”

Answer 2

When Declarant’s testimony is “unavailable” – P.R.I.S.M.

Declarant is unavailable if:

1. Privilege – exempt from testifying due to a privilege
2. Refusal – declarant refuses to testify despite a court order
3. Incapable – due to death or physical/mental sickness
4. Subpoena – declarant is absent & beyond reach of court’s subpoena power
5. (lack of) Memory – declarant cannot remember

Question 3

Former Testimony

Answer 3

1. Declarant is currently unavailable
2. Declarant’s prior testimony was given under oath
3. Party against whom testimony is now offered was either:
   
   1. A party in the previous action AND had opportunit to cross-examine declarant
   2. A predecessory in interest

Question 4

Statement Against Interest

Answer 4

1. Declarant is unavailable
2. Statement was contrary to declarant’s pecuniary, proprietary, or penal interest when made
3. Reasonable person would not have made the statement unless he believed it to be true

Question 5

Dying Declaration

Answer 5

1. Declarant is currently unavailable
2. Out-of-court statement was made under the belief of impending death
3. Statement was made regarding the cause or circumstances surrounding the belief of impending death

Question 6

When is dying declaration available?

Answer 6

Civil cases

Homicide cases

Question 7

Present Sense Impression

Answer 7

Hearsay statement is admissible if it:

• Describes or explains an event or condition,
• Is made while or immediately after the declarant perceived it.

*present sense impression requires spontaneity.

Question 8

Excited Utterance

Answer 8

Hearsay statement is admissible if it:

• Relates to a startling event or condition,
• made while the declarant was under the stress of excitement that it caused.

Note: The declarant must speak while under the stressful influence of a startling event or condition.

Question 9

Then-existing Mental, Emotional, or Physical Condition

Answer 9

Hearsay statements are admissible if:

• they concern a declaran’ts state of mind, emotion, sensation, or physical condition
• existing at the time the statement was made

Question 10

Statement of Then-Existing State of Mind

Answer 10

Usually offered to show a declarant’s intent at the time the statement was made

OR

as circumstantial evidence that an event was carried out

Question 11

Statement of Then-Existing Condition

Answer 11

Usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of statement

Question 12

Statement made for medical diagnosis or treatment

Answer 12

Requirements:

1. Statement must be made to medical personnel
2. Statement must be pertinent to assisting in the diagnosis or treatment of a condition

• describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Question 13

Business Records

Answer 13

Requirements:

1. A record/transaction made or recorded by a business
2. Made in the regular course of business
3. Made at or near the time of the matters described
4. Made by an employee with personal knowledge of the facts recorded
5. Authenticated or certified in writing

Question 14

Police reports

Answer 14

INADMISSIBLE as business records or public records

Question 15

Public Records

Answer 15

Public office or agency records are admissible if the record:

1. Describes the activities of a public office or agency
2. Describes either:
   
   1. Matters observed pursuant to a duty imposed by law, or
   2. Factual findings resulting from an investigation made pursuant to authority granted by law
3. Made within the scope of duty of the public employee-author and made at or near the time of the event

Question 16

Past Recollection Recorded

Answer 16

• Used where the witness has a present memory problem.

Requirements:

1. Writing/record is read into evidence
2. Memorandum must have been made while it was fresh in declarant’s midn
3. Authentication: Witness must testify that the writing accurately reflects the witness’s prior knowledge—i.e., witness made or adopted the statement.

Question 17

Records of Regularly Conducted Activity

Answer 17

Requirements

1. Made in the regular course of business;
2. Need a foundation witness; (does not have to be a person with personal knowledge; only has to be someone who is familiar with the recordkeeping process)
3. Trustworthiness

Question 18

Absence of Entry in Records

Answer 18

Testimony—or a certification under Rule 902—that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

• the record or statement does not exist; or
• a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

Question 19

Records of Vital Statistics

Answer 19

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