Hearsay: Records Flashcards
True or False?
A letter which qualifies as past recollection recorded may be read to the jury, but the writing itself may not be introduced into evidence for the jury to read by either party.
False
True or False?
A hospital record containing opinions of physicians is not admissible.
False
Criminal prosecution of Eliott Spitzer, Governor of New York, for paying prostitutes for sexual favors at Madame X’s establishment, an illegal house of prostitution. D claims that he never went to the establishment. The prosecution calls Madame X, who testifies that she kept meticulous contemporaneous records of the customers of her “business.” The prosecution then offers in evidence a page out of Madame X’s appointment book, which contains D’s name, the date and time of day on which he “registered,” the room he was assigned, and the amount he paid. The page out of Madame X’s appointment book is
A. Admissible as non-hearsay to show that Madame X believed D was at her establishment.
B. Hearsay but admissible under the business records exception to prove the matters asserted in the appointment book relevant to the business.
C. Inadmissible to prove the matters asserted in the appointment book because Madame X’s illegal establishment does not qualify as a “business.”
D. Inadmissible because Madame X does not have firsthand knowledge of the identity of the patrons who may have used fictitious names to protect their identity.
B. Hearsay but admissible under the business records exception to prove the matters asserted in the appointment book relevant to the business.
Action for eviction. To prove that the tenant in her duplex failed to pay rent, the plaintiff testifies that whenever she makes a deposit to her bank account that includes rent payments from her tenant, she makes a note of this on her check stub and that a search of her check stubs for the months in question discloses no such entry. The testimony of the plaintiff about the absence of an entry is:
A. Admissible.
B. Inadmissible hearsay.
C. Inadmissible as irrelevant.
D. Inadmissible because the absence of a business entry cannot qualify as a business record.
A. Admissible.
Prosecution of a district attorney for murder. To prove an alibi, the defendant offers in evidence a certified copy of the minutes of the court showing that at the time of the murder the defendant was in court trying a cocaine case. The copy of the record is:
A. Admissible as nonhearsay.
B. Inadmissible as hearsay.
C. Admissible as within the 803(8) exception for public records.
D. Inadmissible because the prosecution cannot rely on 803(8) for a hearsay exception.
C. Admissible as within the 803(8) exception for public records.
Prosecution for vehicular manslaughter. To prove the speed of the defendant’s car shortly before it rammed through a guardrail and into the Olentangy River, the prosecution offers in evidence the police report prepared by investigating officers which indicates that there were 320 feet of fresh locked-wheel skid marks leading up to the break in the guardrail. The police report is
A. Admissible as a public record if the expert testifies under 803(8).
B. Inadmissible hearsay.
C. Inadmissible under the Confrontation Clause.
D. Both (B) and (C) are correct.
D. Both (B) and (C) are correct.
Patty sues Mart department Store for personal injuries, alleging that while shopping she was knocked to the floor by a merchandise cart being pushed by Handy, a stock clerk, and that as a consequence her back was injured. Handy testified that Patty fell near the cart but was not struck by it. Thirty minutes after Patty’s fall, Handy, in accordance with regular practice at Mart, had filled out a printed form “Employee’s Report of Accident – Mart Department Store,” in which he stated that Patty fell near his cart while she was chasing her young child to spank him. Counsel for Mart offers in evidence the report, which had been given him by Handy’s supervisor. The judge should rule the report offered by Mart
A. Admissible as res gestae.
B. Admissible as a business record.
C. Inadmissible, because its hearsay, not within an exception.
D. Inadmissible, because Handy is available as a witness.
C. Inadmissible, because its hearsay, not within an exception.
Action for fraud. The plaintiff testifies that he cannot remember the name of the defendant’s salesperson who falsely told him that the van he was about to purchase had never been in a previous accident, but he had written the person’s name on the back of a sales brochure. The plaintiff then identifies a document as the sales brochure and on the back of it is the name “Henry Ford.” The document is
A. Admissible as a past recollection recorded.
B. Inadmissible hearsay.
C. The document is inadmissible but the plaintiff can read to the jury what is written on the back of the pamphlet.
D. Admissible under 803(6) as a business record.
C. The document is inadmissible but the plaintiff can read to the jury what is written on the back of the pamphlet.
Personal injury action by P against D arising out of the crash of P’s bicycle and D’s motorcycle at an intersection. P offers into evidence a police report written by X, a police officer who went to the scene less than a minute after the accident. The report contains the following statement: “I immediately interviewed Y, who was sobbing uncontrollably. She said she saw the accident, and that D ran a red light on his motorcycle and struck P who had the green.” The portion of the report containing this statement is
A. Inadmissible because police reports do not satisfy the business records exception.
B. Inadmissible because X, the officer, did not have personal knowledge of the facts reported by Y.
C. Admissible because both the business records and excited utterance exceptions are satisfied.
D. Admissible because the officer was under a duty to report honestly, and Y’s statement is not offered to prove the truth, but to prove Y’s state of mind in observing a startling event.
C. Admissible because both the business records and excited utterance exceptions are satisfied.
On the evening of the day of the accident, Ralph Passenger wrote a letter to his sister in which he described the accident. When testifying Ralph says he cannot remember some details of the accident, Walker’s counsel asks to approach the witness to show him the letter to assist him in his testimony. The trial judge should rule this procedure
A. Permissible under the doctrine of present recollection refreshed.
B. If the witness cannot be refreshed, the steps taken would provide foundation for a past recollection recorded.
C. Objectionable because the letter is a self-serving declaration insofar as the witness, Ralph, is concerned.
D. (A) and (B) are both correct.
D. (A) and (B) are both correct.
In a property dispute the only issue is whether a signature on a deed that reads “Richard A. Christenson, Trustee,” was intended to apply to the signer personally, or to his role as a trustee that he intended to create but never did. Although the signer had no present recollection of his intent at the time of trial, and could not be refreshed by an affidavit he signed fourteen years after the signing of the conveyance, he testified that when he signed the affidavit of his intent fourteen years after the conveyance that “to the best of my knowledge,” his memory was still fresh about why he signed the way he did. The opponent objects on the basis of hearsay. The proponent responds to the objection by arguing that the affidavit qualifies as a past recollection recorded under 803(5). The court should
A. Sustain the objection because fourteen years is too long a time period as a matter of law to qualify as “fresh” as required foundationally by Rule 803(5).
B. Sustain the objection because the witness has no present recollection as to whether the details contained within the Affidavit were true when stated.
C. Overrule the objection on the basis of 803(5), past recollection recorded, because there is no specific “timing” requirement and the declarant testified that his memory was fresh of the events when he signed the affidavit.
D. Overrule the objection if the trial court makes a Rule 104(a) finding that the witness’s memory was fresh of the signing event when he signed the affidavit.
A. Sustain the objection because fourteen years is too long a time period as a matter of law to qualify as “fresh” as required foundationally by Rule 803(5).
A plaintiff sued a defendant for wrongful death arising out of a traffic collision between the plaintiff’s decedent and the defendant. At trial, the investigating police officer authenticated a tape recording after shift-end dictation of comments sued in preparing the written report of her factual findings. She has testified that the tape recording was accurate when made and that she currently has no clear memory of the details of the investigation. Is the taperecording admissible evidence?
A. Yes, under the recorded recollection exception to the hearsay rule.
B. Yes, under the public records exception to the hearsay rule.
C. No, because it is hearsay and is a police report being offered against the defendant in a wrongful death case.
D. No, because the police report is the best evidence.
A. Yes, under the recorded recollection exception to the hearsay rule.
In a civil action to prove the cause of an airplane crash, the plaintiff offers the factual findings of a FAA administrative law judge investigating the cause of the airplane crash indicating that the crash occurred because of an aircraft defect. If defendant objects to the admission of the administrative judge’s factual findings, the court should
A. Exclude the decision as hearsay.
B. Admit the administrative law finding as a Rule 803(6) business record.
C. Exclude the evidence as unfairly prejudicial under Rule 403.
D. Admit the decision under Rule 803(8)(A)(iii), factual findings of a public investigation.
D. Admit the decision under Rule 803(8)(A)(iii), factual findings of a public investigation.
A plaintiff sued his insurance company for the full loss of his banquet hall by fire. The insurance company defended under a provisi0on of the policy limiting liability to 50 percent if “flammable materials not essential to the operation of the business [were] stored on the premises and cause[d] a fire.” The insurance company called the keeper of the city fire inspection records to identify a report prepared and filed by the fire marshal as required by law, indicating that shortly before the fire, the fire marshal had cited the plaintiff for storing gasoline at the banquet hall. Is the report admissible?
A. No, because it is hearsay not within any exception.
B. No, because the proceeding is civil, rather than criminal.
C. Yes, as a public record describing matters observed as to which there was a duty to report.
D. Yes, as a record of regularly conducted activity, provided that the fire marshal is unavailable.
C. Yes, as a public record describing matters observed as to which there was a duty to report.
A pedestrian sued a driver for injuries suffered in a hit-and-run accident. At trial the pedestrian called a witness who testified that he saw the accident and that as the cars sped off he accurately dictated the license number into his properly operating pocket dictating machine. The witness has stated that he no longer remembers the number.
May the tape recording be played?
A. Yes, as a present sense impression only.
B. Yes, as a recorded recollection only.
C. Yes, as a present sense impression and as a recorded recollection.
D. No, because it is hearsay not within any exception.
C. Yes, as a present sense impression and as a recorded recollection.
