Hearsay: Unavailability of Declarant Flashcards
True or False?
The declaration against interest exception to the hearsay rule applies only if the statement is against the declarant’s interest at the time it is introduced at trial.
False
True or False?
A owned real property and conveyed it to B. B boasted to W that he had fraudulently convinced A to convey the property. B then conveyed the property to C. A sued C to recover the property. Over a hearsay objection, W may testify to B’s statement on behalf of A. (B is nowhere to be found.)
True
True or False?
Murder prosecution. The sole eyewitness refuses to testify at trial because he has been threatened with death by members of the defendant’s family. His testimony at the preliminary hearing is not admissible in the actual trial because he is not “unavailable as a witness.”
False
True or False?
Counsel must make every evidentiary objection at a deposition that he or she intends to raise at trial or the objection will have been deemed waived?
False
True or False?
Counsel need not object during a deposition, but rather can wait until trial to raise any objection because only there will a judge be available to make evidentiary rulings.
False
D drove his car through a stop sign at an intersection and struck P, a pedestrian. P’s friend W was walking with P when the accident occurred. W called an ambulance and accompanied P to the hospital. P was promptly treated in the emergency room and then taken, heavily sedated, to a private room in the hospital. W also accompanied P to the room and stayed at P’s side for two hours. During W’s vigil, P occasionally became semiconscious and muttered such things as “Oh I know I’m dying. Why did he have to run that stop sign?” P died six months later from an unrelated heart attack. Before her death, P sued D for damages resulting from the accident. Such actions survive in P’s jurisdiction. At the trial of the case, two months after P’s death, P’s attorney puts W on the stand to testify as to the statement P made in the hospital. D’s attorney promptly objects on grounds of hearsay. The evidence is
A. Inadmissible because the cause of death had nothing to do with the accident.
B. Admissible, as a dying declaration.
C. Inadmissible, because it is a civil case.
D. Inadmissible hearsay.
B. Admissible, as a dying declaration.
In a personal injury case involving a two-car collision, Plaintiff wishes to introduce a sworn deposition taken from W, a witness who died two weeks before the case came to trial. In the deposition, taken in Plaintiff’s attorney’s office, W stated that she saw Defendant run a red light at the time of the collision with Plaintiff’s car. Both Plaintiff and Defendant’s attorneys were present at the deposition. Defendant objects on hearsay grounds to the introduction of W’s statement. The statement is
A. Admissible under the former testimony exception because Defendant had an opportunity to cross-examine W at the time the deposition was taken.
B. Admissible, as a dying declaration.
C. Inadmissible because the Defendant did not cross examine the witness during the deposition because the deposition was for discovery only.
D. Inadmissible hearsay.
A. Admissible under the former testimony exception because Defendant had an opportunity to cross-examine W at the time the deposition was taken.
Action for wrongful death in an airline crash. The plaintiff calls an expert who has testified in three previous lawsuits against the defendant-airline, arising out of the same crash that the cause of the crash was pilot error. However, the witness refuses to answer any questions because he has not been paid an expert witness fee. The plaintiff offers in evidence a duly authenticated transcript of the expert’s testimony in one of the previous trials. The transcript is
A. Admissible as former testimony.
B. Inadmissible hearsay.
C. Inadmissible as evidence of character.
D. Inadmissible as a denial of the right of confrontation.
B. Inadmissible hearsay.
Defendant and X were arrested for conspiracy to illegally export armadillo Frisbees (an endangered species) in violation of federal law. At defendant’s trial X claims the Fifth Amendment and refuses to testify. Defendant calls W to testify that after X’s arrest, X told W that only he, and not defendant, was responsible for the exportation. Which is the most appropriate response by the court to the prosecution’s hearsay objection?
A. X’s statement to W is inadmissible hearsay unless corroborated by independent evidence.
B. X’s statement to W qualifies as a statement against interest.
C. X’s statement to W qualifies as an ordinary admission of a party-opponent admissible against both X and D.
D. X’s statement to W qualifies as an admission of a co-conspirator.
A. X’s statement to W is inadmissible hearsay unless corroborated by independent evidence.
Under questioning at the police station, and after being Mirandized, X says to the police, “Blinky and I robbed the liquor store.”
A. This statement would be admissible against Blinky under the co-conspirator exception.
B. This statement would be admissible against Blinky as an admission.
C. If X takes the Fifth Amendment, this statement would be admissible against Blinky as a statement against X’s interest, subject to possible Confrontation redaction.
D. None of the above.
C. If X takes the Fifth Amendment, this statement would be admissible against Blinky as a statement against X’s interest, subject to possible Confrontation redaction.
In a drug conspiracy case against Bip, whose sentence was enhanced because a user died from the cocaine supplied, the prosecution offers a statement of the user who died from the cocaine to prove the identity of the supplier. When the user was asked by a friend why he was waiting around the apartment complex, he answered, “I’m waiting for Bip to come with some cocaine he promised to sell me.” If the defendant objects on the grounds of hearsay, the court should
A. Sustain the objection on hearsay.
B. Overrule the objection as a statement against interest, if there exists corroborating evidence to support the reliability of the statement.
C. Overrule the objection on the basis of present sense impression.
D. Sustain the objection on Rule 403.
B. Overrule the objection as a statement against interest, if there exists corroborating evidence to support the reliability of the statement.
In a robbery case the prosecution offers evidence that when the accused was arrested he stated, “I’m considering suicide as an alternative to going to jail for what I have done.” When the police inquired into what he meant by the statement, the accused refused to say anything more. If the defense objects to the statement on relevancy and Rule 403 grounds, the court should
A. Overrule the objection because the statement is relevant to show consciousness of guilt.
B. Sustain the objection as irrelevant.
C. Sustain the objection as unduly prejudicial under Rule 403.
D. Sustain the objection unless the accused is first given an opportunity to explain what he meant by the statement.
A. Overrule the objection because the statement is relevant to show consciousness of guilt.
In an action by Roberto Duran to recover his championship boxing belts which he claims were stolen by a cousin, if the Defendant objects on hearsay grounds to an out-of-court statement by his cousin, wherein the cousin apologized to several family members for stealing the belts, the court should
A. Overrule the objection because the statement is not offered to prove the truth of the matter asserted.
B. Overrule the hearsay objection on the basis of 803(3) because the statement is declarant’s then-existing state of mind.
C. Overrule the hearsay objection on the basis of 804(b)(3) statement against interest even if the declarant is in Panama and unavailable.
D. Sustain the objection because the declarant’s state-of-mind (remorse) is not relevant except to prove the fact remembered, a backwards looking fact.
C. Overrule the hearsay objection on the basis of 804(b)(3) statement against interest even if the declarant is in Panama and unavailable.
In a first-degree murder case, the Defendant seeks to introduce a statement by the victim to his sister during the course of his medical treatments in response to a photographic array indicating that a non-charged person, “Ogami,” had been the shooter. Although his injuries were extremely serious, the victim was never told by any medical staff that he was going to die and the nursing staff kept an upbeat attitude around him to help keep his spirits up. Nonetheless he died from complications from major surgery. In response to a hearsay objection to his pretrial identification statements to his sister, the court should
A. Admit the statements under 801(d)(1)(A) pretrial identification testimony.
B. Admit the statement as a dying declaration under 804(b)(2).
C. Admit the statement as an excited utterance under 803(2).
D. Exclude the statement as hearsay.
D. Exclude the statement as hearsay.
In a murder trial, the prosecution offers an out-of-court statement of defendant’s former girlfriend, who is has since been killed, that the defendant had told her that cutting the victim’s throat was like “cutting up a chicken in preparation to cook it,” over a hearsay objection. In support of the admissibility of the statement the prosecution establishes foundation that the defendant, who was in prison at the time of his girlfriend’s death, had other members of his gang kill the witness to avoid having her testify against him at the murder trial. The now deceased’s girlfriend’s testimony is
A. Admissible as a dying declaration under Rule 804(b)(2).
B. Admissible as former testimony under Rule 804(b)(1).
C. Inadmissible hearsay where no exception applies.
D. Admissible as Forfeiture by wrongdoing under Rule 804(b)(6).
D. Admissible as Forfeiture by wrongdoing under Rule 804(b)(6).
