Hearsay Exceptions (Writing Template)

Question 1

Reliability Exception - Excited Utterance (CA Spontaneous Statement)

Answer 1

A statement made while the declarant is still under the stress of an exciting or startling event, and relating to that event, is admissible. Here,

Question 2

Reliability Exception - Present State Impression (FRE ONLY)

Answer 2

A statement made about a particular event is admissible if the declarant perceived the event during or shortly after the event in question. Here,

Question 3

Reliability Exception - Contemporaneous Statement (CA ONLY)

Answer 3

A contemporaneous statement is a statement by the declarant used to explain, qualify, or make understandable something the declarant himself is doing at the very time he makes the statement. Here,

Question 4

Reliability Exception - Medical Diagnosis or Treatment

Answer 4

Statements made to medical personnel for purposes of diagnosis or treatment are admissible. Here,

Question 5

Reliability Exception - Past Bodily Condition

Answer 5

Declaration of present bodily conditions are admissible as an exception to the hearsay rule, even if they are not made to a physician. In CA, statements regarding past bodily conditions made to ANYONE will be admitted. Here,

Question 6

Reliability Exception - Present State of Mind

Answer 6

A statement of one’s then existing state of mind, emotion, sensation, or physical condition is an exception to the rule against hearsay. Here,

Question 7

Reliability Exception - Catch-All (FRE ONLY)

Answer 7

The only other possibility for admission would be the Federal Catch-All exception. This exception requires the statement to have: 1) circumstantial guarantees of trustworthiness, 2) to be offered on a material fact, and must be more probative to tat fact than any other evidence so that the interest of justice will be served by its admission, and 3) the proponent must give notice of the statement in advance of the trial to the adverse party. Here,

Question 8

Documentary Exception - Business Records

Answer 8

A business record is any writing, made in the regular course of business, of matters within the personal knowledge of the entrant who is under a duty to make the entry. Here,

(Think custodian of records)

Question 9

Documentary Exception - Past Recollection Recorded

Answer 9

When a witness is unable to recall an event to enable full and accurate testimony, a writing may be read into evidence once a proper foundation is a laid.

The foundation requires that: 1) the witness at one time had personal knowledge of the facts recited in the writing, 2) the writing was either made by the witness, made at the witness’ direction or adopted by the witness, 3) the writing was timely made, 4) the writing is accurate, and 5) the witness has insufficient recollection to testify. Here,

Question 10

Documentary Exception - Learned Treatise

Answer 10

Statements from an authoritative work are admitted if called to the attention of the expert witness and established as a reliable authority. Here,

Question 11

Documentary Exception - Ancient Documents

Answer 11

Statements in documents that are 20 years older or more are admissible. In CA, its 30 years. Here,

Question 12

Documentary Exception - Public Records

Answer 12

Records and reports of public agencies regarding their activities are admissible so long as the writing was made by and within the scope of the duty of the public employee and made at or near the time of the event. Here,

Question 13

Documentary Exception - Vital Statistics

Answer 13

Recors of vital statistics are admissible if the report was made to a public officer pursuant to requirements of law. Here,

Question 14

Documentary Exception - Family Records

Answer 14

Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, tombstones, etc…are admissible. Here,

Question 15

Documentary Exception - Market Reports

Answer 15

Market reports and other published compilations are admissible if generally used and relied upon by the public. Here,

Question 16

Unavailability Exceptions

Answer 16

A declarant is unavailable if he: 1) is exempt from testifying because of privilege, 2) refuses to testify despite a court order, 3) cannot remember the statement, 4) unable to testify due to death or illness, or 5) is beyond the reach of a court subpoena. In CA, refusing to testify or stating that you cannot remember are NOT grounds for unavailability. Here,

Question 17

Unavailability - Former Testimony

Answer 17

The testimony of a now-unavailable witness is admissible if: 1) the party against whom the the testimony is offered (or in a a civil case, the party’s “predecessor in interest”) was a party in a former action, 2) the former action involved the same subject matter, 3) the testimony was given under oath, and 4) the party against whom the testimony is offered had an opportunity at the prior proceeding to develop the declarant’s testimony. Here,

In CA, inconsistent statements can be offered as substantive evidence of its truth. It need not be under oath. Here,

Question 18

Unavailability - Dying Declaration

Answer 18

A statement made by a now unavailable declarant is admissible if the statement was made while the declarant believed death was imminent and concerned the cause or circumstances of the impending death. Here,

Under CRE, a dying declaration is admissible in all civil and criminal cases, where it is relevant to know what killed the declarant. Also, the declarant MUST be dead to use this exception. Here,

Question 19

Unavailability - Statement Against Interest

Answer 19

A statement of an unavailable witness against his pecuniary, proprietary, or penal interest, as well as collateral facts contained in that statement, is admissible. Here,

Question 20

Unavailability - Statement of Personal or Family History

Answer 20

The statement of an unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, made by a family member or one intimately associated with the family and based on his personal knowledge. Here,

Question 21

Unavailability - Statement Offered Against Party Procuring Declarant’s Unavailability

Answer 21

The statement of an unavailable person is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability. Here,

Question 22

Sixth Amendment - The Confrontation Clause

Answer 22

In criminal cases, it may argued that the use of hearsay evidence violates the accused’s right to confront and cross-examine the witnesses against him. Here,