Declarant Witness Hearsay Exceptions

Question 1

Declarant-Witness hearsay exceptions

Answer 1

• past inconsistent statements made under oath at trial/hearing/depostion
• past consistent statements to rebut fabrication charge or restore credibility
• statements of ID

Question 2

FRE 612

Answer 2

adverse party has certain rights to use writing to refresh memory

Question 3

FRE 613 is about ___

Answer 3

impeachment (can’t come in for its own truth)

Question 4

Under 613(a) when examining witness about a prior statement a party need not __

Answer 4

show or disclose to the witness

Question 5

Under 613(a) a party must upon request ___

Answer 5

show contents of prior statement to the adverse party’s attorney

Question 6

Difference between 613 and 801(d)(1)

Answer 6

613 can only come in to show lied, 801 can come in for truth of prior statement because it was taken under oath

Question 7

FRE 613(B) says that extrinsic evidence of witness prior inconsistent statement admissible only if ___

Answer 7

witness given opp to explain or deny AND adverse party given opp to examine witness about it

Question 8

Woman claims D robbed her of all money, but had taken cab home and paid cabbie (according to what cabbie told cops after).

Answer 8

• Inadmit under 801(d)(1)(A) bc prior statement needs to be in prior proceeding, very limited. Doesn’t include talking to cops.
• Admit under 613 to show inconsistency. Limiting instruction to show this is coming in for inconsistency, not truth. (Means you can’t say in, e.g., closing that woman paid cabbie → no evid!)

Question 9

612 (b) holds that for writing used to refresh a witness, the adverse party is entitled to ____ AND any part that is unrelated ___

Answer 9

have it produced at hearing/inspect it/cross-examine about any related part,delete it

Question 10

FRE 613(a) says that the party need not ____ but must ___

Answer 10

show to witness, on request show to adverse party attorney

Question 11

FRE 613(b) says that extrinsic evidence of witness prior inconsistent statement is admissible only if ____ AND ___

Answer 11

witness given opp to explain or deny, adverse party given opp to examine witness about it

Question 12

613(b) about opportunity to explain doesn’t apply ____

Answer 12

for 801(d)(1)(A)

Question 13

Topic of 613

Answer 13

past inconsistent statements offered to impeach

Question 14

Conditions for declarant memory/availability for 613

Answer 14

must testify at current proceeding

Question 15

Conditions of past statement for 613

Answer 15

questioning lawyer good faith belief witness made past statement

Question 16

Topic of 801(d)(1)(A)

Answer 16

past inconsistent statements offered substantively

Question 17

Conditions for declarant 801(d)(1)(A)

Answer 17

must testify at current proceeding and subject to cross about the prior statement

Question 18

804(b)(1) is about ___

Answer 18

past testimony when declarant unavailable

Question 19

Requirements for past testimony under 804(b)(1)

Answer 19

• past statement was testimony (under oath)
• at trial/hearing/deposition
• subject to exam by party against whom now offered who then had similar motive

Question 20

Decedent and X involved in motor crash, decedent estate sues NCDOT about bad stop sign that caused the crash. NCDOT questions witness engineer that says previous reporting he did found no issue with stop sign. Decedent evidence that report prepared after accident found stop sign too far out? Admit?

Answer 20

Admit under 613(b) to impeach, not a 407 issue because about not telling truth

Question 21

Harris told co-conspirator Durand “Remember we sold watches” after Harris arrested for fraudulent stock recs. Durand testifies against Harris, says doesn’t remember saying anything back to Harris. Harris lawyer wants to play recorded statement of Durand’s reply. Admit?

Answer 21

Admit, 613(b) inconsistency, not 608(b) issue because it is specific instance but not about character for untruthfulness, here it is showing inconsistency

Question 22

Ince convicted of assault. Neumann gave signed, unsworn statement to police that Ince admitted to firing shots in concert parking lots. At trial, Neumann’s memory failed and govt tried to refresh with written statement but still didn’t remember. Govt called police officer to impeach Neumann. Result?

Answer 22

don’t admit (otherwise admissible hearsay but only purpose to circumvent hearsay 403)

613 about attacking inconsistency not about getting confession

No need here to attack credibility because Neumann testimony not actively damaging govt case

Question 23

At grand jury, DV victim testifies “He intentionally beat me”. At trial says “No I bumped into the door. Admit?

Answer 23

Admit under 801(d)(1)(A), comes in for truth

Question 24

801(d)(1)(B) is about ___

Answer 24

past consistent statements

Question 25

Report says Alec Baldwin punched me in the face for no reason then sues AB. AB's lawyers says "isn't it true that a lawyer contacted you two days after the incident and said you could make a lot of money if you sued Baldwin Reporter's original statement coming in?

Answer 25

Admit. Hearsay but rebutting and defense suggesting reason to fabricate

Question 26

Report says Alec Baldwin punched me in the face for no reason then sues AB. AB's lawyers says "isn't it true that a lawyer contacted you two days after the incident and said you could make a lot of money if you sued Baldwin Reporter's friends saying "that's right that's what reporter told us after AB punched"

Answer 26

Admit friend testimony under 801(d)(1)(B)

Question 27

D in murder trial claiming temp insanity. Pros calls D's jailmate to the stand; D has told jail mate that he was going to lie about insanitt Jailmate's testimony about what D said?

Answer 27

Admit under 801(d)(2)(A) as opposing party statement

Question 28

D in murder trial claiming temp insanity. Pros calls D's jailmate to the stand; D has told jail mate that he was going to lie about insanity Can defense ask jailmate about what prosecutor offered jailmate for this testimony?

Answer 28

Admit, not hearsay, not offered for truth but to show bias

Question 29

D in murder trial claiming temp insanity. Pros calls D's jailmate to the stand; D has told jail mate that he was going to lie about insanity Jailmate mom's testimony that jailmate called mom after telling her what D said

Answer 29

Admit only after accusation of bias - bottom layer (D --> jailmate, opposing party) - top layer (jailmate to mom) rebut reason of fabrication

Question 30

6 year old unable to testify about alleged sexual abuse. Girl had told mom "I don't like being with Dad he treats me like his wife" Later told other witnesses the same thing

Answer 30

statement doesn't predate fabrication

Question 31

You can only admit prior consistent statements to rebut fabrication if ___

Answer 31

statements predate alleged motive to fabricate

Question 32

Mug victim looked at line-up to ID perp to Whoopi. D can testify to ID?

Answer 32

Admit, D can testify if subject to cross

Question 33

Mug victim looked at line-up to ID perp to Whoopi. Whoopi testified to who IDed?

Answer 33

Yes under 801(d)(1)(C), want reliable statement closer to incident

Question 34

Composite sketch of perp?

Answer 34

Admit, statement (something new) excluded under 801(d)(1)(C)

Question 35

Ince told me he was the shooter

Answer 35

Inadmit. 801(d)(1)(C) requires friend to have perceived Ince

Question 36

D convicted for assault for hitting victim with metal pipe to bed; in hospital identified D to FBI later but couldn't later remember how/why he knew D as the one. Significant memory loss

Answer 36

Admit under 801(d)(1)(C)

Question 37

Confrontation Clause after Owens doesn't bar ___

Answer 37

witnesses with memory problems who have been IDed

Question 38

Owens says that sufficient for 6A that D has __

Answer 38

opp to bring out matters like witness bad memory, lack of care

Question 39

Owens says 6A only guarantees ___

Answer 39

the opp for effective cross, not guarantee witneses won't be forgetful/confused/evasive