Hearsay

Question 1

3 Exceptions that Allow a Testifying Witness’s prior out of court statement

Answer 1

1. Witness’s prior inconsistent statement if made under oath during a trial, hearing, proceeding, or deposition
2. Witness’s prior consistent statement if being used to rebut charge of recent fabrication or improper motive or influence
3. Witness’s Prior Statement of identification
   - Admissible as non-hearsay IF AND ONLY IF the identifying witness is available at trial for cross

Question 2

When are Co-Conspirator’s Statements Admissible?

Answer 2

If statement:

1. Was made during the conspiracy of which the D was part; AND
2. The statement was made in furtherance of the conspiracy

Question 3

Hearsay Exceptions Where Declarant Must Be Unavailable to Testify at Trial

Answer 3

1. Forfeiture by wrongdoing;
2. Former testimony;
3. Statement against interest;
4. Dying declaration

Question 4

Hearsay Exceptions Where Unavailability of the Declarant is Not Required

Answer 4

1. Present sense impression;
2. Exited utterance;
3. Present state of mind;
4. Statement of intent;
5. Present physical condition;
6. Statement for purpose of diagnoses (Not just doctors)

Question 5

Business Records Exception

Answer 5

1. Records of a business of any type
2. Made in the regular course of business
3. The business regularly keeps such records
4. Made contemporaneously with the event
5. Contains information observed by owner, agent, or employee of the business, or a statement that falls within an independent hearsay exception.

Question 6

Laying Foundation for Business Records

Answer 6

1. Need a qualifying witness to testify to the 5 elements of BR exception. Need not be author, can be a records custodian or any other person with knowledge of biz, or
2. Obtain an affidavit attesting to elements of BR exception (with advance notice to opposing party)

Question 7

When Are Agent Statements Admissible?

Answer 7

If the statement:

1. Was made during the agency/employment; AND
2. Concerns a matter the agent or employee would know by virtue of his duties.

Question 8

What Makes a Person “Unavailable” to Testify At Trial?

Answer 8

1. Dead
2. To ill to attend.
3. Cannot be located despite due diligence
4. Beyond subpoena power of court
5. Witness asserts a privileg, doesn’t matter if it’s a good one or not just that they refuse to testify.

Question 9

Statement Against Interest Exception

Answer 9

• At time made declarant would have know the statement could subject him to loss of money, power, property, or expose him to civil or criminal liability.
• Differs from Party Admission
  1. Must be against interest when made
  2. Any person can make a statement against interest.
  3. Personal knowledge is required.
  4. Declarant MUST BE UNAVAILABLE

Question 10

Dying Declaration Exception

Answer 10

Statement made under a belief of impending and certain death by a now unavailable declarant concerning the causes or surrounding circumstances of the declarant’s death.
Exception applies:
Criminal cases - Only homicide
Civil cases - all

Question 11

Public Records Exception

Answer 11

Records of public office or agency setting forth:

1. The administrative activities of the office or agency;
2. Matters observed pursuant to a duty imposed by the law (prosecution cannot use this exception in criminal trials)
3. Findings of fact or opinion resulting from an investigation authorized by law (prosecution can’t use this in criminal trials.