Hearsay

Question 1

Rule 801 Definitions: 801(a), what is a statement

Answer 1

A statement is a person’s (1) oral assertion, (2) written assertion, or (3) nonverbal conduct if the person intended it as an assertion

Question 2

Rule 801(b): What is a declarant?

Answer 2

A declarant is a person who made the statement

Question 3

801(c): What is the definition of Hearsay?

Answer 3

Hearsay means a statement that:

1. the declarant does not make while testifying at the current trial or hearing; and
2. a party offers in evidence to prove the truth of the matter asserted in the statement

Question 4

Rule 801(a)’s Intent test:

Answer 4

a test for determining whether a particular item of nonverbal conduct evidence is hearsay or not. The question centers on intent. If nonverbal conduct is intended as an assertion it IS HEARSAY

Question 5

801(d): Governs what?

Answer 5

It offers a lists 8 types of out of court statements that are exempt from the definition of hearsay.

Question 6

FRE 801(d)(1): Does what?

Answer 6

Admits statements made outside of court by a hearsay declarant who is testifying as a witness at trial. This means that the testifying declarant is subject to cross-examination about a prior statement

Question 7

801(d)(1)(A): Prior Inconsistent Statement

Answer 7

allows admission when: Prior statements are inconsistent with statements given at trial and prior statements were given under penalty of perjury at formal court proceeding

Question 8

801(d)(1)(B): Prior Consistent Statements

Answer 8

To be admissible: the statement must be consistent with the Declarant’s offered testimony and be offered:

1. to rebut a charge that the declarant is lying; or
2. to rehabilitate the declarant’s credibility after it is attacked.

Question 9

801(d)(1)(C): Prior Statements of ID

Answer 9

allows admission of prior statements of ID when a statement ID’s a person as someone the declarant perceived earlier

Question 10

801(d)(2)(A): Party’s Own Statement

Answer 10

a statement is not hearsay if the statement is offered against an opposing party and was made by the party (party’s own statement)

Question 11

801(d)(2)(B): Adoptive Admission

Answer 11

a statement that is not hearsay if offered against an opposing party and the party has done something to adopt the statement. May adopt through words, conduct, or silence.

Question 12

801(d)(2)(C): Admissions by agents, servants, and employees

Answer 12

a statement that is not hearsay if offered against an opposing party and if the statement is on the subject and made by the person whom the party authorized to make the statement

Question 13

801(d)(2)(E): Co-conspirators admissions

Answer 13

a statement is not hearsay if:

1. offered against an opposing party and;
2. the declarant and party are both members of the same conspiracy,
3. the statements was made during the conspiracy, and
4. the statement was in furtherance of the conspiracy

Question 14

What does rule 803 govern in general?

Answer 14

exceptions to the Rule against Hearsay regardless of whether the declarant is available as a witness

Question 15

803(1): Present Sense Impressions:

Answer 15

a statement is not excluded if:

1. an event occurred,
2. the statement describes the event, and
3. the declarant made the statement while or immediately after perceiving the event

Question 16

803(2): Excited Utterances

Answer 16

a statement is not excluded if:

1. a startling event occurred,
2. the statement relates to the startling event,
3. the statement was made by the declarant while under the stress of excitement, and
4. the stress was caused by the startling event

Question 17

803(3): Declarant’s statement of their then existing state of mind

Answer 17

a statement is not excluded if: the statements express’s the declarant’s state of mind that is currently existing at the time of the statement.

Question 18

803(4): Statements made for Medical Diagnosis

Answer 18

a statement is not excluded if: the statement was made for medical diagnosis or treatment. The statement must describe the medical history, past, or present symptoms and can be made by the patient, family, friends, etc. NOT THE DOCTORS

Question 19

803(5): Recorded Recollections

Answer 19

a statement is not excluded if:

a. the declarant is testifying as a witness,
b. the statement is in the form of a record,
c. the witness has personal knowledge,
d. the witness cannot remember enough to testify fully
e. the statement was made/adopted by the witness when the matter was still fresh in the witness’s memory
f. the statement reflects the witness’s knowledge accurately

Question 20

803(6); Record of regularly conducted activity

Answer 20

a statement is not excluded if:

a. the statement is a record of an act, event, or condition,
b. was made at or near the time of the act
c. was made by someone with knowledge of the act or transmitted by someone with knowledge
d. and the record was kept in the regular course of business (regular practice to make record)

Question 21

803(8)(A)(i): Public Records and Reports

Answer 21

allows for the admission of: records of the activities of public offices and agencies

Question 22

803(8)(A)(ii): Public Records and Reports

Answer 22

allows for the admission of matters observed pursuant to a public duty to report by employees of public offices

Question 23

803(8)(A)(iiI): Public Records and Reports

Answer 23

allows admission of public investigative reports, including factual findings

Question 24

What does Rule 804 cover in general?

Answer 24

Exceptions to the Rule against Hearsay when the Declarant is unavailable as a witness

Question 25

804(a): Grounds for a finding of Unavailability

Answer 25

a declarant is considered unavailable as a witness if the declarant: 1. is exempt from testifying due to privilege 2. refuses against a court order 3. testifies not to remember 4. Cannot be present because of death or infirmity 5. is absent from trial and proponent of statement has not been able to procure

Question 26

804(b)(1): Former Testimony in general

Answer 26

the statement is admissible if the declarant is unavailable as a witness and: the statement is in the form of testimony given at a hearing or deposition.

Question 27

804(b)(2): Dying Declarations

Answer 27

the statement is admissible if the declarant is unavailable as a witness and: a. the statement concerns the causes or circumstances that led the declarant to believe death was impending b. the statement was made while declarant believes death to be imminent; and c. the statement is offered in a homicide prosecution or civil case.

Question 28

804(b)(3): Declarations Against Interest

Answer 28

the statement is admissible if the declarant is unavailable as a witness and a. the statement is against interest to a high degree b. the contents of the statement at the time the statement was made are: 1. against the pecuniary or proprietary interest of the declarant 2. could subject to the declarant to civil or criminal liability; or 3. could render invalid a claim held by the declarant

Question 29

804(b)(4): Statement of Personal or Family History:

Answer 29

the statement is admissible if the declarant is unavailable as a witness and the contents of the statement concern the declarant's own personal history or personal or family history of one of the declarants relatives or friends

Question 30

804(b)(6): Forfeiture by wrongdoing

Answer 30

the statement is admissible if the declarant is unavailable as a witness and: 1. the party engaged in wrongdoing 2. which was intended to make the witness unavailable 3. and did accomplish that goal, and 4. the declarant's statement is offered against the party

Question 31

What does Rule 805 cover?

Answer 31

Hearsay within hearsay

Question 32

Meaning of Rule 805

Answer 32

Hearsay within hearsay is not excluded if each part of the combined statements conform with an exception to the rule

Question 33

What does Rule 806 Cover?

Answer 33

Attacking and Supporting the Declarants credibility

Question 34

Meaning of rule 806

Answer 34

when a hearsay statement has been admitted into evidence, the declarant's credibility may be attacked or supported by evidence that would be admissible for those purposes if the declarant had testified as a witness.

Question 35

WRE 908.01(4): Statements that are not hearsay

Answer 35

a statement is admissible if the declarant testifies at the trial and is subject to cross-examination concerning the statement and the statement is: 1. inconsistent with the declarant's testimony 2. consistent with the declarant's testimony and is offered to rebut an express or implied claim of lying 3. One made in IDing a person soon after perceiving them

Question 36

WRE 908.03(6m): Patient Health Records

Answer 36

no declarant necessary to offer patient health care records if the party, at least 40 days before trial: does one of the following 1. Serves upon all appearing parties a complete duplicate of the patient health care records 2. notifies all parties that a duplicate is available for inspection at a specified location during regular business hours.

Question 37

WRE 908.03(18): Learned Treatises

Answer 37

a published article on a subject is admissible if: 1. the judge takes judicial notice; or 2. a witness expert in the subject testifies that the writer of the statement is recognized in the writer's profession

Question 38

FRE 803(18): Statements in learned treatises, periodicals, or pamphlets

Answer 38

Under the federal rule's to be admissible: a. the document must be introduced by an expert witness (on cross or relied on in direct) b. The doc then has to be established as reliable authority c. the expert then reads the selected passage into the record

Question 39

FRE 803(16): Statements in Ancient Documents

Answer 39

ancient document statements are admissible if: a. the doc was prepared before January 1, 1998 b. the doc's authenticity is established.