Pg 37

Question 1

What is involved in the criminal cases only corroboration rule for statements against interest?

Answer 1

The statement must be corroborated by circumstantial guarantees of trustworthiness if it tends to show that the declarant is criminally liable.

Test: if there is reasonable doubt about whether defendant really committed the crime, he gets off because the law is sceptical of the defendant offering testimony that some absent party admitted to the crime that the defendant is charged with

Question 2

If a defendant is charged with grand theft auto and on direct his attorney asked, “what did your unavailable friend to tell you?“ “That he stole the car.“ Would this be allowed under statement against interest?

Answer 2

– Civil case: all that is needed is a statement against interest and the unavailability of the declarant
– criminal case: you also need corroborating circumstances to show the trustworthiness of the statement. This is likely a criminal case, so they would need to be more to corroborate the statement.

Question 3

What is an example of corroboration which would be enough for a criminal case involving a statement against interest?

Answer 3

A statement about something that no one else knew yet, like how the victim was murdered

Question 4

What are the differences between statements against interest and party opponent admissions?

Answer 4

It is rare that both apply.

– for party-opponent admission, the declarant doesn’t have to be unavailable and for statements against interest, he does.
– for statements against interest, these can be used for or against any party, but for party-opp, the admission can only be used against a party
- in statements against interest the witness that is giving testimony must have some basis in personal knowledge to speak about the matter, but for party opponent they can speculate

Question 5

What is the difference between the FRE and California when it comes to corroboration for criminal cases for statements against interest?

Answer 5

California has no requirement for corroboration

Question 6

If a defendant is prosecuted for reckless driving and he testified that Z who is now dead told him the day after the accident that he shone a laser into the defendant’s eyes and caused the accident. Would that be allowed as a statement against interest in either federal court or California?

Answer 6

I would not be allowed federally because they would need to be corroborating evidence, but in California it would be allowed since corroborating evidence is not necessary

Question 7

What is the other name for dying declarations?

Answer 7

Statements under belief of impending death

Question 8

Is dying declarations an 803 or 804 exception?

Answer 8

804, so the declarant must be unavailable

Question 9

What are each of the blurting exceptions to hearsay as far as 803 or 804?

Answer 9

– statements against interest: 804
– dying declarations: 804
– excited utterances: 803
– present sense impressions: 803

Question 10

What is included in dying declarations as a blurting exception to hearsay?

Answer 10

This is a hearsay exception for unavailable declarant’s statements made under belief of imminent death regarding the cause/circumstances of their death

Question 11

What is the rationale for dying declarations as a hearsay exception?

Answer 11

People don’t want to die with a lie on their lips, so if someone is about to die and says what caused it, that is more reliable

Question 12

What are the elements for dying declarations?

Answer 12

– unavailable declarant
– belief of impending death
– statement related to the cause or circumstances of the impending death
– type of case

Question 13

Is it necessary that a declarant die in order for dying declarations to be admitted?

Answer 13

• FRE: No, he could be about to die, recover, and then later forget what he said and his prior statement could be admissible. He just has to be unavailable when it comes to trial
• CA: yes, he has to die

Question 14

What are some circumstances that would have an unavailable declarant so that dying declarations could count?

Answer 14

The declarant could be dead, too sick to testify, out of the jurisdiction so beyond subpoena power, in court but his testimony can’t be gotten because of privilege, he could refuse to testify, or he could no longer remember something

Question 15

What is involved in the “belief of impending death” element for dying declarations?

Answer 15

The declarant must have believed his death was imminent. Objective standard test: whether a reasonable person would have believed he was about to die

Question 16

If a declarant was shot and thought he had only minutes or hours to live, would that be an appropriate situation for a dying declaration to apply?

Answer 16

Yes

Question 17

If a victim had a paper cut, so made a statement about how it happened, would that be an appropriate situation for dying declarations to apply?

Answer 17

No, because he didn’t believe he was dying. And if he did believe that, the objective standard test is what is applied, so a reasonable person wouldn’t have believed that

Question 18

What is required for the element “statement must be related to the cause/circumstances of the impending death“ for dying declarations to apply?

Answer 18

The person must tell who killed them or caused the impending death.

Question 19

If a victim made a statement when he was dying, “now I won’t get to watch the finale of the bachelor” would that count as a dying declaration?

Answer 19

No, because it has nothing to do with the cause or circumstances of his death

Question 20

Is it enough for a dying declaration if the victim drew the perpetrator because he wasn’t able to talk while he was dying?

Answer 20

Yes, because the drawing was intended to substitute for a statement, so it would be assertive conduct

Question 21

How does dying declarations differ depending on whether it is a civil case or a criminal case

Answer 21

– Civil case: it applies to all civil cases.

– Criminal cases: it’s only available for actual homicide cases. So this means the declarant must be dead

Question 22

If a plaintiff calls a witness to the stand and asks what the victim said while lying on the ground with a knife in his chest, and the witness says that the victim said “defendant did it to him.”Is that enough for dying declarations to apply in a CIV case?

Answer 22

Yes, because the victim reasonably thought he was about to die

Question 23

What do you need to watch out for in criminal cases for dying declarations?

Answer 23

Attempted murder and aggravated assault do not count because the victim did not die. It must be an actual homicide where the victim is dead.

Question 24

Would this statement count as a dying declaration in a criminal case? If the charge is reckless driving and the victim died, and he said before his death he was sorry for grabbing the wheel, does that count as a dying declaration?

Answer 24

No, because this wasn’t a homicide. In criminal cases dying decorations are only available for homicides ** watch out and don’t get tricked

Question 25

What is the difference between the FRE and California when it comes to dying declarations?

Answer 25

In California it can be any civil or any criminal case but the victim must die and the declarant must have personal knowledge about the matter he is asserting

Question 26

What is involved in excited utterances as a hearsay exception?

Answer 26

This is an exception for statements made relating to startling events or conditions while the declarant was under the stress of excitement that it caused

Question 27

What is the rationale for excited utterances as an exception to hearsay?

Answer 27

When people witness something startling/upsetting, it is assumed that they do not have the presence of mind to fabricate/alter statements about it. They just blurt out what happened, so this is more reliable

Question 28

What are the elements of excited utterances?

Answer 28

– statement must relate to a startling event or condition

– statement must be made while the declarant is still under the stress of the excitement from the event/condition

Question 29

What are some examples of a startling condition that would count for excited utterances?

Answer 29

Seeing a car crash, or someone’s leg get sliced off

Question 30

What does the word “excited“ mean for excited utterances?

Answer 30

Stressed or shocked

Question 31

What is a good indication that a statement was made while the declarant was still under the stress/excitement of the event for excited utterances?

Answer 31

Saying something right after seeing an accident, and using words like “wow!“ or gasping and exclamation marks

Question 32

Is it possible for a witness to testify to his own out of court statement as an excited utterance?

Answer 32

Yes, because it is not required that the declarant be unavailable since excited utterances is 803

Question 33

Is it necessary that an excited utterance be made immediately after seeing a startling event or condition?

Answer 33

No, but the person must still be under the stress of the excitement. Look at their demeanor, the contents of their statement, and whether there’s an exclamation point. It usually must be made within a few minutes or a few hours

Question 34

What is involved in present sense impressions as an exception to hearsay?

Answer 34

This is a hearsay exception for a statement describing or explaining an event/condition that is made while or immediately after the declarant perceived it

Question 35

What’s the rationale behind present sense impressions as a hearsay exception?

Answer 35

When people describe something they observe at or immediately after observing it, it is assumed that they don’t have the time or motivation to fabricate. They just blurt out what they see

Question 36

What two blurting exceptions are usually found together?

Answer 36

Excited utterances and present sense impressions. Ie: “Wow! Did you see that blue car slam into the red car???“

***Make sure to discuss both on an essay

Question 37

What are the elements for present sense impression?

Answer 37

– Statement made at or immediately after the declarant perceived something
– statement describes or explains the event

Question 38

Would making a statement five minutes after a declarant perceived something count as present sense impressions?

Answer 38

No because it wasn’t immediately after perceiving it

Question 39

If someone says “oh, there’s no cheese“ while looking in the fridge, would that be a present sense impression?

Answer 39

Yes because it describes or explains an event while it is happening

Question 40

If someone says three minutes after closing the fridge, “oh, there’s no cheese“ would that count as a present sense impression?

Answer 40

No, because it wasn’t immediately after perceiving the event

Question 41

If you called your wife and said, “buy some cheese please“ would that count as a present sense impression?

Answer 41

***Sneaky essay argument: generally this would not be a present sense impression because you didn’t say that there was no cheese, but you could argue on an essay that this explains the event because being out of cheese means you need to buy more

Question 42

What is the difference between the FRE and California for present sense impressions?

Answer 42

California does not have a present sense impression exception. But it does have an exception called “contemporaneous statements.“ This allows a person to describe what they are doing as they are doing it, but it doesn’t apply to seeing things which is what the federal rule allows.

Ie: defendant is charged with murdering the victim and the prosecution calls a witness to testify that he saw the murder and calmly said, “that man is hitting that lady with a hammer.“ it would be admissible under present sense impressions in federal court, but not in California because in California you are only allowed to describe what YOU were doing, and here the declarant wasn’t doing anything