Hearsay

Question 1

Hearsay

Answer 1

1. An out of court
2. Statement
3. Offered to prove truth of matter asserted

Question 2

Nonhearsay

Answer 2

Prior statements by Ws

1. prior statement inconsistent w declarant’s in-court testimony and giver under oath
2. consistent and offered to rebut charege that W is lying or exaggerating bc of some motive

Admissions by party-opponent

1. judicial admissions
2. adoptive admissions
   
   1. silence - implied admission if: (i) heard and understood (i)* **capable of denying(iii) reasonable person would have denied*
3. vicarious admissions
   
   1. Admissions of co-parties not attributable to the others

Question 3

Hearsay exceptions - declarant unavailable

Answer 3

1. Former testimony
   
   1. party against whom testimony is offered was party in the former action (or predecessor in interest)
   2. under oath
   3. had motive and opportunity to develop testimony
2. Statements against interest
   
   1. statement against declarant’s percuniary, proprietary, or penal interst when made
3. Dying declarations
   
   1. statement made while declarant believed death was imminent, concerning the cause of impending death
4. Statements of personal or family history
   
   1. made by family member
5. Forfeiture by wrongdoing
   
   1. statement of unavailable declarant offered against party who procured declarant’s unavailabilty

Question 4

Hearsay exception - unavailabilty immaterial

Answer 4

1. State of mind
2. Excited utterences
3. Present sense impressions
4. Past bodily condition
5. Recorded recollection
6. Business records
7. Public records
8. Judgments
9. Ancient documents
10. Learned treatises
11. Reputation
12. Family records
13. Market reports

Question 5

Present state of mind

Answer 5

1. Statements of a declarant’s then-existing:
   
   1. State of mind
   2. Emotion
   3. Sensation
   4. Physical conditions

Question 6

Excited utterances

Answer 6

1. Must be related to that startling event
2. Must be made before the stress of the event is over (bf declarant had time to reflect)

Question 7

Present sense impressions

Answer 7

1. Must be made concurrently with the present sense impression of the event.
2. Event need not be startling/exciting.

Question 8

Physical condition

Answer 8

1. Spontaneous statement about the declarant’s physical condition at the time OR
2. Declarations about past bodily condition IF:
   
   1. They are made to medical personnel AND
   2. For the purpose of helping diagnose or treat the condition.

• FEDERAL RULES: Declarations of past physical condition made to a doctor employed to testify are admissible under this exception.
• STATE MAJORITY VIEW: These are not admissible if the doctor was hired

Question 9

Business records

Answer 9

1. Allowed as proof of that act or transaction, IF:
   
   1. It is a business (non-profits count) AND
   2. The entry was made in the regular course of business AND
   3. The record was something that was customarily made AND
   4. Was made near the time of the transaction AND
   5. The authenticity of the record is established AND
   6. EITHER the entrant had personal knowledge of the event OR within the knowledge of someone who had a duty to transmit it to the entrant.

• Police reports of what witnesses said usually WILL NOT be admissible here b/c witnesses are under no BUSINESS DUTY to be truthful.
• Info MISSING from a business record can be proof that it didn’t happen IF was the regular practice of the business’ regular practice to record all such matters.

Question 10

Past recollection recorded

Answer 10

1. Where the witness can’t remember, a writing can be read into evidence IF:
   
   1. The witness had personal knowledge of the facts when she wrote then down,
   2. It was made by the witness, under her direction, or adopted by her,
   3. It was made while the matter was fresh in the witness’ mind
   4. The writing is accurate.

Question 11

Public records

Answer 11

1. These things are admissible:
   
   1. Public records/reports
   2. Records of vital statistics (like census figures)
   3. Statement from the custodian of public records that a record someone claimed exists is NOT there.
2. Police records would qualify here unless they are DOUBLE hearsay.
   
   1. Report says “Witness said she saw B” → Double hearsay
   2. Report says “Car exhibits severe end damage” → OK
3. A certified copy of a judgment is always admissible proof that the judgment has been entered.
   
   1. BUT a civil judgment is inadmissible in criminal proceedingss

Question 12

Ancient documents

Answer 12

Statements in an authenticated document 20 years old are admissible.

Question 13

Learned treatises

Answer 13

Treatises are admissible as substantive evidence IF:

1. They are relied on by an expert witness (or he admits it’s a learned treatise on cross) AND
2. They are established as reliable authority by:
   
   1. The expert’s testimony OR
   2. The testimony of another expert called to the stand OR
   3. Judicial notice.

Question 14

Market reports

Answer 14

Admissible if generally used and relied upon by the public or people in certain occupations.

Question 15

Catch-all exception of Fed Rules

Answer 15

Court has discretion to let in hearsay evidence IF:

1. The statement is trustworthy
2. It is strictly necessary to the case
3. There is adequate notice to the other party