Declarant Availability Immateriality

Question 1

To be a competent witness a child must ___

Answer 1

• have ability to recall
• communicate
• know right from wrong

Question 2

803(1) is about ___

Answer 2

present sense impression

Question 3

A present sense impression is a statement ___

Answer 3

describing/explaining event or condition made while or immediately after declarant perceived it

Question 4

803(2) is about ___

Answer 4

excited utterance

Question 5

An excited utterance is a statement relating __

Answer 5

to startling event/condition made while declarant under stress of excitement that caused it

Question 6

803(3) is about ____

Answer 6

then-existing mental, emotional or physical condition

Question 7

A then-existing condition must be a statement about state of mind like ______ or emotional/physical condition like ___

Answer 7

motive/intent/plan, mental feeling/pain/bodily health

Question 8

803(3) CANNOT include statement of ___ unless ___

Answer 8

memory or belief to prove fact remembered, relates to validity/terms of declarant will

Question 9

Present sense impression and excited utterance often -_____

Answer 9

overlap

Question 10

Whipple called Smith right after being bit by Noel’s dog to say “that dog just bit me”. Whipple killed by dog later. Admit?

Answer 10

Admit under both 803(1) and 803(2)

Question 11

Whipple said she scolded Noel “You need to control your dog”Whipple killed by dog later. Admit?

Answer 11

Admit under 803(1)
OR
not hearsay – show Noel on notice
OR
not hearsay – not communicating anything new

Question 12

When Smith came home, Whipple provided more details about dog attack. Whipple killed by dog later. Admit?

Answer 12

Inadmit because 803(1) and (2) require it to be immediate

Question 13

Robinson’s calm 911 call “I have a burglar in house” Admit?

Answer 13

Admit under 803(1), can’t under 803(2)

Question 14

Whipple’s neighbor called 911 about hearing Noel screaming as trying to control dogs.
1) Neighbor describes hearing screams.
Noel wants to use as defense against murder to show was being attacked by own dogs.

Answer 14

Admit under present sense

Question 15

Whipple’s neighbor called 911 about hearing Noel screaming as trying to control dogs.
2) Neighbor speculates Noel is trying to get dogs under control and can’t
Noel wants to use as defense against murder to show was being attacked by own dogs.

Answer 15

Inadmit because no personal knowledge
Maybe if peephole?

Question 16

I feel depressed (at time of incident)

Answer 16

Admit 803(3)

Question 17

I felt depressed yesterday. Admit?

Answer 17

No under 803(3)

Question 18

Tyler Clemente at Rutgers committed suicide after realizing roommate spied on him having MSM. Email to RA “Roommate with webcam spying on me/want a single room”. Admit?

Answer 18

Inadmit roommate with webcam
Admit want a room - present statement of desire under 803(3)

Question 19

Nate’s coming to my office hours after class.

Answer 19

Inadmit under 803(3) bc involves backwards looking, implicit past agreement to meet

Question 20

I’m going to talk to Nate after class.

Answer 20

Admit under 803(3) present intent

Question 21

“I’m going to pick up drugs from Angelo”

Answer 21

Inadmit under 803(3), involves memory less reliable

Question 22

911 call
1) He’s outside! I see him stabbing her! He’s wearing khakis and shades!

Answer 22

Admit, present sense impression and excited utterance

Question 23

911
2) My 8yo just saw someone stabbed outside! He said X

Answer 23

Admit
1st layer son to mom — excited utterance
2nd layer mom to operator – present sense

Question 24

911
3) Officer shows up 10 minutes later, interviews unfazed witnesses

Answer 24

Inadmit, no exceptions

Question 25

803(4) is about ___

Answer 25

statement made for medical diagnosis or treatment

Question 26

803(4) requires that the statement is _____ AND ___

Answer 26

made for and reasonably pertinent to medical diagnosis describes medical history/past or present symptoms their inception or general cause

Question 27

803(4) allows medical diagnosis because ___

Answer 27

tend to be honest for accurate diagnosis/treatment

Question 28

Browning called lawyer to say caretaker Maples pushed him. Went to doctor 1) Lawyer testimony that Browning said he had fallen and hit his head.

Answer 28

Indamit

Question 29

Browning called lawyer to say caretaker Maples pushed him. Went to doctor 1) Lawyer testimony that Browning said he had fallen and hit his head. What could change to get it in?

Answer 29

If Browning had said planned to fire Maples, 803(3), statement of then-existing motive

Question 30

Browning called lawyer to say caretaker Maples pushed him. Went to doctor 2) Doctor testimony that fell and hit head

Answer 30

Admit 803(4)

Question 31

Browning called lawyer to say caretaker Maples pushed him. Went to doctor 3) Doctor's testimony that Browning said Maples pushed him

Answer 31

Admit, identifying caretaker pertinent to medical diagnosis because psych impacts of abuse

Question 32

Normally statements ____ don't come in under 803(4)

Answer 32

statements of blame

Question 33

MD assaulted by husband which says to nurse/doc at ER. Anti psych meds and three questiosn for DV screening protocol but no specific diagnosis/treatment. MD later refused to testify.

Answer 33

Inadmit, need foundation for why assailant important and effect ID on diagnosis

Question 34

Attempted SA, child abuse. "He dragged me and tried to take off my pants" to doctor. Pros asked doctor why asked these question

Answer 34

Admit, established foundation for why ID important to treatment

Question 35

Child came in with broken arm. Doctor said child was playing with father's records, which led to dad twisting arm

Answer 35

Admit, Doc laid foundation as to why pertinent to diagnosis that father did this (but maybe just limited to dad twisting arm)

Question 36

Former husband sick in bed, said takeout from DD seemed to have made him sick "get me a doctor" while gesturing to DD meat. Died from arsenic poisoning. Sued DD for neg 1) Husband statement's and gesture

Answer 36

Admit, 803(3) or 803(4) because called doctor for treatment, statement and gesture too because where got food poisoning matters to notify others of public health concerns

Question 37

Former husband sick in bed, said takeout from DD seemed to have made him sick "get me a doctor" while gesturing to DD meat. Died from arsenic poisoning. Sued DD for neg 2) Nurse testimony that when Monica called doctors' office she said "husband ate bad meat from DD"

Answer 37

Admit, pertinent to diagnosis/treatment

Question 38

Former husband sick in bed, said takeout from DD seemed to have made him sick "get me a doctor" while gesturing to DD meat. Died from arsenic poisoning. Sued DD for neg 3) Monica's own testimony that doctor said: This is arsenic poisoning

Answer 38

Admit

Question 39

Ruthmeyer, accompanied by daughter, tells doctor broke wrist on accident when daughter in fact pushed her. Elder abuse prosecution, daughter wants to admit her statement it was an accident

Answer 39

Inadmit, abuser in room so not same incentive to be truthful to get accurate diag/treatment