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Question 1

Exceptions and exclusions to hearsay allow what?

Answer 1

The introduction of out of court statements for the truth of the matter

Question 2

What is the reasoning for having exceptions and exclusions to hearsay?

Answer 2

When these statements are made under circumstances that add to the statement’s reliability, they are allowed in

Question 3

What are the 13 major exceptions and exclusions to hearsay?

Answer 3

– Prior inconsistent statements
– prior consistent statements
– statements of prior identification
– present recollection refreshed
– past recorded recollection
– direct party opponent admission
– adoptive party opponent admission
– Authorized party opponents admission
– agent opponent admission
– co-conspirator opponent admission
– admissions by conduct
– judicial admissions
– statement of witnesses prevented from testifying

Question 4

What are the three kinds of prior statements of witnesses that can be used as exceptions to hearsay?

Answer 4

Prior inconsistent statements, prior consistent statements, and statements of prior identification

Question 5

What is included in prior inconsistent statements as an exception to hearsay?

Answer 5

There is a hearsay exemption for any statement if the declarant testified and is subject to cross-examination about a prior statement, and the statement is inconsistent with the declarant’s testimony, and given under penalty of perjury at trial/hearing/other proceedings/deposition

Question 6

What two major categories of evidence overlap for prior inconsistent statements?

Answer 6

Impeachment and hearsay.

Question 7

What is the thing to watch out for in prior inconsistent statements as an exception to hearsay?

Answer 7

You cannot introduce a prior inconsistent statement from anyone besides the declarant

Question 8

What are the elements of prior inconsistent statement as an exception to hearsay?

Answer 8

– the declarant must testify as a witness in the current trial/hearing (and subject to cross about the prior statement)
– prior statement must be inconsistent with the declarant’s testimony at the current trial/hearing
- statement must’ve been made under oath at a prior trial/hearing/deposition

Question 9

What is the reason that the prior inconsistent statement had to have been made under oath in order to be an exception to hearsay?

Answer 9

When testimony happens under oath and subject to cross, that is more reliable, so courts are OK with saying it can be used as evidence of what actually happened, even if it contradicts what the witness is saying happened from the witness stand.

If the prior statement wasn’t under oath, it can still be used to undercut credibility, but it cannot be substantive evidence of what happened

Question 10

If an eye witness on the stand is asked what colour of light the defendant had at the time of an accident, and he says it was red. Then on cross, an attorney asks if the witness told a friend at a bar that it was green. Would that count as a prior inconsistent statement that could be an exception to hearsay?

Answer 10

No, because the prior statement was made at a bar, not under oath.

If the prior statement had been made at a deposition, that would’ve been under oath, so it could’ve been used as substantive evidence of what actually happened and then the jury could be asked to infer that the fact asserted in the prior statement is what they should find actually happened

Question 11

What is an example of wording to the jury when a witness has been proven to have had a prior inconsistent statement that is an exception to hearsay?

Answer 11

“Members of the jury, the witness testifies for the plaintiff. On direct she said my client had the red, but at her deposition where she swore to tell the truth and the events were fresher in her mind she said my client had the green. That is what she said first, and that is what actually happened. You should believe her when she said my client had the green.”

Question 12

What’s the difference in California from the FRE for prior inconsistent statements as an exception to hearsay?

Answer 12

In California it doesn’t matter if the prior inconsistent statement was made under oath - it can be used for impeachment or its truth

Question 13

What is involved in prior consistent statements as a hearsay exception?

Answer 13

This is an exemption for an out of court statement where the declarant testified previously and the statement was CONSISTENT with the declarant’s current testimony and offered to rebut an express/implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying, or to rehabilitate the declarant’s credibility as a witness when attacked on another ground.

***The previous statement does not have to have been made under oath

Question 14

What is the important point to remember when bringing in a prior consistent statement as a hearsay exception?

Answer 14

The statement must be used to rehabilitate. There must have been a recent accusation of fabrication or improper influence

Question 15

What are the two different ways that a prior consistent statement can be used?

Answer 15

For credibility and also for its truth

Question 16

What are the elements involved in prior consistent statements as an exception to hearsay?

Answer 16

– the declarant must testify as a witness at trial
– the statement must be consistent with trial testimony
– the consistent statement can only be used to rehabilitate witnesses credibility, not to bolster it
– there must be an express or implied charge of recent fabrication, or an improper influence/motive
– prior consistent statement must pre-date the influence/motive
– or the consistent statement can rehabilitate credibility if attacked on another ground

Question 17

If there was a car accident where the plaintiff’s attorney asked the W on direct if the D had the red light. On cross, the attorney asks “didn’t you tell police that defendant had the green?” W says yes. On redirect, plaintiff’s attorney asks “what did you tell your dad before you spoke to the police?“ W said she told him defendant had the red light. Would that be proper under prior consistent statements as an exception to hearsay?

Answer 17

Yes, because it repeats the implication that she fabricated her story, and even though the prior statement wasn’t made under oath, it is corroborating evidence that defendant had the red light.

Question 18

If there was a car accident where the plaintiff’s attorney asked the W on direct if the D had the red light. Then a little later the attorney asked, “what did you tell your dad before you spoke to the police?“ W said she told him defendant had the red light. Would that be proper under prior consistent statements as an exception to hearsay?

Answer 18

No, because there was no implication that she had fabricated her story, so that would just be bolstering, which is not allowed

Question 19

If there was a car accident where the plaintiff’s attorney asked the W on direct if the D had the red light. On cross, the attorney asks “didn’t you start dating the defendant a month ago?” W says yes. On redirect, plaintiff’s attorney asks “what did you tell your dad before you spoke to the police?“ W said she told him defendant had the red light. Would that be proper under prior consistent statements as an exception to hearsay?

Answer 19

Yes, because by asking about whether she began dating the defendant that would be an implied charge of a motive to skew her testimony, so the prior consistent statement would be used to rebut that

Question 20

What is the reason for the requirement that a prior consistent statement must pre-date the influence or motive in order to be used as a hearsay exception?

Answer 20

In order to show that the influence/motive didn’t affect the witness’ story.

Question 21

Does timing always matter for prior consistent statements as a hearsay exception?

Answer 21

No, if there is no specific time that the witness would have formed a reason to lie

Question 22

What is involved in statements of prior identification as a hearsay exception?

Answer 22

There is an exemption for out of court statements where the declarant testifies and the statement identifies a person as someone the declarant perceived earlier. These are made after observing someone.

***These can be used to bolster, there is no need for an attack

Question 23

What is an example of a statement of prior identification that counts as a hearsay exception?

Answer 23

An out-of-court statement that the witness identified the defendant during a police lineup.

Question 24

Is it proper for this exchange to happen? “Do you see the man that caused the accident in the court room today?“ “Yes, it’s defendant.“ “When the police arrived at the scene, did you tell them who caused the accident?“ “Yes I pointed to defendant and said he did.“

Answer 24

This would be proper because the prior statement was made to identify a person after observing them.

Question 25

Does it still count as a statement of prior identification for hearsay exception if the witness cannot currently remember who to identify, but they previously identified the person?

Answer 25

Yes

Question 26

If an attorney asks, “can you identify the man that hit you?“ And the witness says no, to which the attorney asks “at one time were you able to?“ If the witness answers, “I told the police at the station during the lineup, ‘D hit me.’” Is that a proper statement of prior identification to work as a hearsay exception?

Answer 26

Yes. It doesn’t matter if the witness can make the identification on the witness stand as long as he testified and the statement is one of identification after observing someone

Question 27

What are the elements for statements of prior identification as a hearsay exception?

Answer 27

– declarant testifies as a witness at trial

– prior statement identifies a person as someone the declarant perceived earlier

Question 28

What is absolutely required for a statement of prior identification to count as a hearsay exception?

Answer 28

The witness must testify. But he doesn’t have to positively identify the defendant at trial

Question 29

If a plaintiff sues a D for breach and at trial the plaintiff calls a witness, but doesn’t ask him who drafted the contract. The plaintiff then called X who says that one day when they were walking they saw a defendant and witness said, “there’s the guy that drafted the contract.“ Would that be OK as a statement of prior identification hearsay exception?

Answer 29

Yes, because the declarant only has to testify, which the witness did. It doesn’t matter that he didn’t testify himself about the identification

Question 30

What’s the difference between California and the FRE in relation to statements of prior identification as a hearsay exception?

Answer 30

California also requires the witness to testify that the prior statement was made at a time that identification was fresh in his mind, and that the identification was accurate at the time it was made

Question 31

What is the easy way to remember the 13 major exceptions to hearsay?

Answer 31

– P: A, C, ID

• PRR2
• POA: DACA JAC
• W