Hearsay

Question 1

Def of hearsay? 2 parts

Answer 1

1. out of court statement of person (oral or written)

2. offered to prove truth of matter asserted

Question 2

3 areas where nonhearsay statements come from:

Answer 2

1. verbal act – legal effect attaches to words when spoken (K acceptance, gift donation, bribe offer)
2. Offered for effect on person who heard/ read statement; not for truth (e.g., I get call saying wife is cheating, then I kill wife - call NOT HEARSAY)
3. Circumstantial ev of speaker’s state of mind, e.g., of mental instability, giving false alibi to police, asking Q -> lack of knowledge.

Question 3

Hearsay to testify “i heard you accept contract”? E.g., also making a gift, bribe, defamatory tort words.

Answer 3

No b/c it’s a verbal act – legal effect attaches to acceptance words when spoken. NOT OFFERED FOR TRUTH OF MATTER ASSERTED.

Question 4

Prior statements of W generally allowed or no?

Answer 4

No: W’s own prior statement offered to prove truth of matter asserted inadmissible unless exception applies.

Question 5

Prior statements of W admissible in 3 situations admitting them for their truth

Answer 5

1. W’s prior ID of a person (e.g., lineup)
2. W’s prior inconsistent statement if made formally under oath at live testimonial proceeding.
3. Prior consistent statement to rebut charge of recent fabrication (if prior statement preceded motive for would-be fabrication)

Question 6

Statement of an opposing party admissible for its truth when? It’s a ____________ from hearsay, AKA _________.

Answer 6

Statement of an opposing party admissible for its truth IF OFFERED AGAINST THE OPPOSING PARTY –> EXCLUSION FROM HEARSAY, AKA NONHEARSAY.

Question 7

Statement of an opposing party AKA

Answer 7

Party admission

Question 8

Party admission AKA

Answer 8

Statement of an opposing party

Question 9

NY doesn’t have hearsay exclusion, it has ___________

Answer 9

hearsay exception

Question 10

Statement of an opposing party required to be against your interest at the time of statement?

Answer 10

No. Any statement of an opposing party will do.

Question 11

Vicarious party admission means & admissible when? NY wrinkle?

Answer 11

Statement by agent or employee of party admissible against principal/employer if statement concerns employment/agency and made w/in scope thereof.
NY: Only admitted if employer/principal gave authority to speak about the subject matter (implied or express), e.g., truck driver speaking about accident is inadmissible in NY.

Question 12

Under 6th Am, prosecutor can’t use hearsay statement against hearsay defendant if (3 things)

Answer 12

1. statement is testamonial
2. declarant is unavailable
3. D has had no opportunity for cross-examination

Question 13

Statement is testamonial for purpose of 6th amendment, and D would be deprived of face-to-face confrontatation, e.g.,

1. __________
2. police questioning non-testimonial, IFF;
3. testimonial v nontestimonial document

Answer 13

1. grand jury
2. testimonial if police questioning is getting info to prosecute (does not count as testimonial if police are trying to respond to emergency)
3. a document is testamonial IFF sworn affidavits, forensic report accusing someone of crime but NOT if no one’s under suspicion at the time.

Question 14

Statement is testamonial for purpose of 6th amendment, and D would be deprived of face-to-face confrontatation, e.g., forfeiture by wrongdoning exception

Answer 14

4. sacrifice hearsay objection if ct finds by preponderance of ev that D’s bad conduct was specifically intended to keep W off the stand (preponderance federally, clear and convincing in NY = higher).

Question 15

1. Former testimony hearsay exception: former testimony of unavail W usable against party that ________? 2. does grand jury testimony satisfy reqs?

Answer 15

1. Former testimony admissible if party against whom it’s offered previously had opportunity and motive to cross-examine
2. grand jury testimony insufficient to offer testimony against D today b/c no cross-exam opportunity

Question 16

Grounds for W unavailability (for hearsay exceptions and other) -> 5 grounds

Answer 16

1. privilege
2. absent from jurisdiction
3. illness or death
4. lack of memory
5. stubborn refusal to testify

Question 17

Hearsay exception: statement against interest is out of court statement against any one of 3 interest types.

Answer 17

1. against pecuniary interests
2. against proprietary interests
3. against penal interests (crim liability)

Question 18

Diff b/t party admissions and statement against interest –> 4 things req’d for statement against interest that don’t matter for party admission.

Answer 18

1. statement against interest must be against interest AT THE TIME OF THE STATEMENT.
2. Anyone can make statement against interest –> NEEDN’T BE A PARTY
3. Gotta know your interests to make statement against them
4. Declarant must be UNAVAILABLE for statement against interest

Question 19

Qualification on use of statement against interest in criminal cases

Answer 19

Statement against penal interests IN CRIMINAL CASES require corroborating evidence.

Question 20

Dying declaration hearsay exception: 1. def; 2. usable in what type of crim cases? 3. usable in what type of civil case (fed v NY for civil cases)

Answer 20

1. Dying person can speak to his cause of death if he’s speaking UNDER BELIEF OF IMPENDING & CERTAIN DEATH
2. only used for crime of homicide
3. FED: any civil case; NY: Prohibited

Question 21

Hearsay exception: Spontaneous statements: unavailability of declarant required?

Answer 21

Not required under Fed law.

Question 22

Hearsay exception: Excited utterance 1. def

Answer 22

1. statement made while under effect of startling event.

Question 23

Hearsay exception: Present sense impression: def & ny additional req

Answer 23

declarant speaking while event is occurring. NY requires additional corroborating evidence

Question 24

Spontaneous statements hearsay exceptions: name all 5

Answer 24

1. Excited utterance
2. Present sense impression
3. Declarant’s present state of mind
4. Declarant’s intent
5. Declarant’s present physical condition
6. Statement made for purpose of getting medical diagnosis

Question 25

Hearsay exception: Declarant’s present state of mind

Answer 25

1 contemporaneous statement re declarant’s state of mind

Question 26

Hearsay exception:statement of declarant’s intent 1. def & 2. NY wrinkle (2 part)

Answer 26

1. declarant’s intent to do something in the future, including intent to do something w/ another person.
2. NY: If future intent used to prove future conduct of another person, NY reqs (A) corroborating ev of RELATIONSHIP b/t declarant and other person; & (B) declarant UNAVAILABLE.

Question 27

Hearsay exception: Declarant’s present physical condition 1. def & 2. NY wrinkle (2 part)

Answer 27

1. statement re phys condition made CONTEMPORANEOUSLY

2. NY: if statement made to lay person (not dr), declarant must be unavailable.

Question 28

Statement made for purpose of getting medical diagnosis: 1. rule? 2. Includes tort info? Exception?

Answer 28

1. Statement re A. present or past symptoms; B. general cause of med condition, if made for purpose of getting medical diagnosis.
2. Does not include IDing tortfeasor or nature of liability - EXCEPT identity of domestic or child abuser.

Question 29

Hearsay exception: business records requirements

Answer 29

1. actual business
2. record made in regular course
3. business regularly keeps such records
4. record made about same time as event
5. contents = A. info recorded by employee re business (e.g. hospital records); or B. statement of someone outside the business that falls w/in independent hearsay exception (someone not in bus. has no duty to tell truth in bus records).

Question 30

FEDERAL hearsay exception: public records 1. def

Answer 30

1. records of pub office/agency setting forth A. internal activities thereof; B. matters observed pursuant to office’s/agency’s legal duty; or C. findings of fact/opinion from agency/office investigation.

Question 31

Public records hearsay exception: EXCLUSION THEREFROM

Answer 31

Police reports prepared for prosecutorial purposes not admissible against crim D –> make cops come in and testify

Question 32

Is there a NY public records hearsay exception?

Answer 32

No. In NY, they’re introduced as part business records exception

Question 33

Impeaching hearsay evidence: 1. which impeachment methods ok?
2. if impeachment method is prior inconsistent statement, then ____?

Answer 33

1. any

2. prior inconsistent statement disproves hearsay, then NO REQ THAT DECLARANT GETS TO EXPLAIN/DENY prior statement.

Question 34

Is there a NY public records hearsay exception?

Answer 34

No. In NY, they’re introduced as part business records exception

Question 35

Impeaching hearsay evidence: 1. which impeachment methods ok?
2. if impeachment method is prior inconsistent statement, then ____?

Answer 35

1. any

2. prior inconsistent statement disproves hearsay, then NO REQ THAT DECLARANT GETS TO EXPLAIN/DENY prior statement.

Question 36

Under New York law, while prior inconsistent statements are not admissible as substantive evidence in criminal cases, they are admissible TO IMPEACH a witness in both civil and criminal cases, provided that the prior inconsistent statements were made ________

Answer 36

Either in writing and signed OR under oath

Question 37

On the MBE, admissions by party opponents are NONhearsay. In NY, admissions by party opponents are?

Answer 37

an EXCEPTION TO HEARSAY.

Question 38

In NY, when are dying declarations admitted?

Answer 38

ONLY in homicide cases, and only as they RELATED TO DECLARANT’S DEATH

Question 39

NY req for present sense impressions to be admissible?

Answer 39

corroboration of present sense impressions required

Question 40

NY wrinkle re business records exception WRT litigation?

Answer 40

accident reports prepared IN THE REGULAR COURSE OF BUSINESS OPERATIONS are ADMISSIBLE IN N, EVEN IF made in anticipation of FUTURE LITIGATION

Question 41

The “past recollection recorded” exception to the hearsay rule allows a party to:
(A) Introduce a writing into evidence by reading it aloud
or (B) Refresh the witness’s recollection with a writing but not read it to the jury

Answer 41

Introduce a writing into evidence by reading it aloud

Question 42

where union investigates corp for firing union members and creates chart reflecting thousands of corporate files re firings, is chart admissible without underlying records?

Answer 42

Yes b/c the corp has ACCESS to copies of the underlying records.

Question 43

**Does the business records exception include employees’ discussions with third parties?

Answer 43

NO! Third parties only covered if the third party is under a business obligation to tell the truth!!!!

Question 44

In a murder case where the victim was shot and killed with a silver .38 semi-automatic handgun, the prosecution seeks to introduce into evidence the defendant’s statement, one week prior to the crime, that he was the legal owner of a silver .38 handgun. This statement is: inadmissible hearsay? admissible hearsay? nonhearsay?

Answer 44

The statement is an admission of a party-opponent and thus nonhearsay. An admission is a statement made or act done that amounts to a prior acknowledgment by one of the parties to a fact relevant to the case. Here, the fact that defendant admitted owning a handgun similar to that used in the crime is certainly relevant to the case.

Question 45

Certain records may not be admitted under the business records exception if they were “prepared in anticipation of litigation.” Under the Federal Rules, a court may exclude such a business record from evidence __________. (A) if the source of information or other circumstances indicate the record lacks trustworthiness or (B) only where the record was prepared primarily for litigation

Answer 45

if the source of information or other circumstances indicate the record lacks trustworthiness. One requirement of the business records exception is that the record must be made in the course of a regularly conducted business activity. The Federal Rules have dealt with the problem of records prepared “in anticipation of litigation” by granting the trial court discretion to exclude any business record if the source of information or other circumstances indicate the record lacks trustworthiness.

Question 46

Certain statements concerning personal or family history may be admissible as an exception to the hearsay rule. Must the declarant also be unavailable for trial?

Answer 46

For the exception for statements concerning personal or family history to apply, the declarant must be unavailable for trial. The declarant must be a member of the family in question or otherwise intimately associated with the family.

Question 47

Statements in any authenticated document __________ years old or more are admissible under the Federal Rules’ “ancient documents” exception to the hearsay rule.

Answer 47

20

Question 48

There are three requirements for a statement to be admitted under the “catch-all” exception. They are (briefly):

Answer 48

Trustworthiness; necessity; notice. Under the catch-all exception, the statement must have “circumstantial guarantees of trustworthiness.” Furthermore, the statement must be more probative as to a material fact than any other evidence which the proponent can reasonably produce so that the “interests of justice” will be served by its admission. This is known as the “necessity” factor. Finally, the proponent must give notice in advance of trial to the adverse party as to the nature of the statement.

Question 49

Is a deed, will, or other document establishing or affecting an interest in property admissible under the Federal Rules? If so, why?

Answer 49

A statement in a document that establishes or affects an interest in property is hearsay, but it is generally admissible as an exception to the hearsay rule.