Hearsay

Question 1

What is the definition of Hearsay

Answer 1

1) An out of court statement

2) Used to prove the truth of the matter asserted

Question 2

What is a “statement”

Answer 2

A statement is a verbal or written expression of a PERSON that is intended to communicate (assertive conduct)

Question 3

To prove defendant committed the robbery, a police officer testifies that a computer printout of police files stated, “defendant has three prior robbery convictions.” Is this a statement?

Answer 3

Yes, even though a statement is one that can only be made by a person and not by animals or technology… here the computer printout is simply an output that a person inserted, so it is considered a statement.

Is it hearsay? Sure, the printout in an out of court statement used to prove the truth of the matter asserted… namely that the defendant has three prior robbery convictions…

Is there a hearsay exception? Maybe business record….

Question 4

In an action for a breach of contract, the defendant denies entering into a contract. Witness testifies she heard defendant say to plaintiff “I accept your offer.” Is this hearsay?

Answer 4

No. “Independent Legal Significance”

We don’t care whether the defendant was lying or mistaken when he said “I accept your offer,” in contract law, all that matters is that he said those words. If you are wondering about the witness lying, she is in court and can be cross-examined to see if she actually heard it.

Question 5

Personal injury action. Plaintiff’s car plunged off defendant’s bridge which was not in service and the car sank under water. Defense is contributory negligence. Defendant testifies that on the road leading to the bridge was a sign that read “Bridge Out.” Is this hearsay?

Answer 5

This is not hearsay because we already know the bridge was out. The statement was not to prove the truth of the matter asserted (that the bridge was out) but to show the effect on the reader… to show contributory negligence.

Question 6

What are the 7 hearsay exemption? (non-hearsay)

[important to know which ones are exempt, and which ones are exceptions on MBE]

Answer 6

1) Opposing party statement
2) Adopted opposing party statement
3) Opposing party’s agent’s statement (employee / authorized agent)
4) co-conspirator statement
5) prior inconsistent statement given under oath
6) prior consistent statement to rebut attack on credibility
7) A witness’ out of court statement identifying someone made after perceiving that person.

Question 7

What are the hearsay exceptions that require that the declarant be unavailable?

Answer 7

(these are the important ones)

1) Formal testimony
2) Statement against interest
3) Dying declaration

Question 8

What are the hearsay exception in which the declarant’s availability is immaterial?

Answer 8

1) present sense impression
2) excited utterance
3) then-existing mental or physical condition
4) Past or present physical or mental condition for the purposes of obtaining medical diagnosis or treatment
5) recorded recollection
6) business records
7) Public records

Question 9

A party opponent statement is

Answer 9

a statement made by the opposing party. (Personal knowledge is not needed.)

(non-hearsay)

Question 10

An adoptive opposing party statement is

Answer 10

1) Where a third party makes a statement
2) of which a reasonable person in the opposing party’s shoes would object to
3) but the opposing party is silent, or nods etc.

(non-hearsay)

Question 11

Opposing party agent’s statements

Answer 11

A statement that opposing party’s agent was authorized to make.

(employee)
A statement regarding matters within the scope of employment, made while agent was still employed with opposing party.

(non hearsay)

Question 12

Co-Conspirator statement

Answer 12

1) Co-conspirator makes a statement (obviously)
2) In furtherance of the conspiracy
3) Made while defendant was part of the conspiracy

(non hearsay)

Question 13

Prior inconsistent statement made under oath

Answer 13

(exactly what it says)

Just remember that must first lay foundation… only admissible if the witness has an opportunity to explain or deny the prior inconsistent statement.

(non hearsay)

Question 14

Prior consistent statement to rebut attack on credibility

Answer 14

Prior consistent statement must be the statement that was given before the motive to lie / other attack on credibility (i.e deafness/blindness) began.

(timing here is important) Non hearsay

Question 15

Witness’ out of court Identification of a person

Answer 15

Like when a witness goes to the police office and looks at the line up of guys and points to the guy that brutally assaulted her… then testifying about that incident at the police office is not hearsay.

Question 16

Statement against interest

Answer 16

1) When the declarant is unavailable
2) A statement against the declarant’s proprietary, financial or penal interest
3) must be against interest when the statement was made
4) Used to exculpate someone (only statements that inculpate the declarant is admissible but nothing more)
5) Backed up by corroborating evidence.

Question 17

Dying declaration

Answer 17

1) Only admissible in a civil case or a homicide case
2) Statement made when declarant believed death was imminent
3) Statement must be about the cause of death
4) Declarant doesn’t have to die but must be unavailable to testify

Question 18

Former testimony

Answer 18

1) Declarant is unavailable
2) The statement was made under oath
3) Offered against the opposing party that had
a) an opportunity to cross examine the witness in the other proceeding and
b) has the same motive to cross examine now

• If a civil case, the opposing party only needs to be in privity with the previous opposing party.

(non hearsay)

Question 19

Excited Utterance

Answer 19

A statement about an exciting/startling event

made while declarant was under the stress of excitement

Question 20

Present sense impression

Answer 20

Describing an event/condition

made while the declarant was perceiving the event

Question 21

Then-existing physical or mental condition

Answer 21

(exactly what it says) (i.e then existing intent or plan)

but statements of belief or memory is not admissible.

Question 22

Business records

Answer 22

1) Records made in the regular course of business
2) Made at or near the time of matters described
3) Made by a person with knowledge of the facts in the record
4) Admissible if opponent does not show its untrustworthiness

(Cannot be created in anticipation of litigation)

Question 23

Recorded recollection

Answer 23

1) A record made by the declarant or adopted by the declarant
2) Made by a person with personal knowledge
3) made while the events were fresh in writer’s mind
4) It was accurate when made (ask declarant lol)

Question 24

Public Recollection (3 different ones)

Answer 24

(i) A record that describes the activities and policies of the office

(ii) A record that describes matters observed pursuant to a duty imposed by law
(No police reports allowed in criminal case)

(iii) OR records that contain factual findings resulting from investigations made pursuant to authority granted by law.
(a) unless opponent shows it untrustworthiness
(b) Part (iii) cannot be used by the Prosecution…only ∆

Question 25

In a negligence action against UPS, plaintiff testifies that a UPS truck crashed through her bedroom window and the driver said, "I fell asleep while driving." Hearsay? Why or why not?

Answer 25

No, opposing party's agent statement

Question 26

An airplane crashes, killing all passengers. Estate of Passenger X sued Airline for nuisance and got an expert to testify against the Airline. After the trial, the expert dies. The Estate of Y then sues the Airline for wrongful death and offers the dead expert's testimony against the Airline. Is this admissible? Why or why not?

Answer 26

No... although the airline was a party in both suits and had a chance to cross-examine the expert, it did not have the same motive to do so, since the former case was a nuisance suit and this case is a wrongful death suit.

Question 27

An airplane crashes, killing all the passenger. In a wrongful death suit of X v. Airline, an expert testifies for the airline. The expert dies. Y then sues airline for wrongful death. The airline provides the dead expert's testimony. Is this admissible? Why or why not?

Answer 27

Not admissible as former testimony because the evidence supplied against the opposing party was not a party in the former case, and there is no privity between X and Y.

Question 28

In a murder case, defendant offers into evidence a letter he received from his friend in Argentina. The letter states, "I committed the murder." No other evidence is given. Admissible? Why or why not?

Answer 28

No, because there needs to be corroborating evidence.

Question 29

In an attempted murder case, prosecutor offers evidence that an hour after the victim was show, the victim said, "I'm not going to make it. Defendant did this to me." The victim then lapsed into a coma and has not regained consciousness. Is this admissible? Why or why not?

Answer 29

It is a 1) declaration concerning the cause of death made by a declarant who believed that his death was imminent. However, it is only admissible in a civil case or a homicide case... not an attempted murder case. **be careful**

Question 30

A passenger in a car was struck by a truck and lapsed into a coma upon impact. Two years later, the passenger suddenly emerged from the coma, and sat upright in bed, and screamed, "What out for that truck, it's driving the wrong way!" Is this statement admissible? Why or why not?

Answer 30

Yes, as excited utterance. Timing doesn't matter, what matters is that the declarant makes a statement about an event while the declarant was under the stress of excitement.

Question 31

Murder case. Defendant claims self-defense because Victim acted in a threatening manner. A witness testifies that she made a phone call to Victim on the night of the murder and Victim said "Joe [the defendant] just walked in the room and it looks like he wants to show me his survival knife. I'll call you back." Is this statement admissible to show defendant was in the room with a knife? Why or why not?

Answer 31

Yes... this is the present sense impression.

Question 32

In a prosecution for car theft, defendant claims the owner gave her the car as a gift. The Defense offers the statement of owner made the day before defendant drove off with the car, "I intend to give the car to Joe [the defendant] for his birthday tomorrow. Is this admissible? Why or why not?

Answer 32

Yes. Intent or plan is allowed to show then-existing physical or mental condition. **A jury can also infer the speaker acted in accordance with the declarant's intention or plan.**

Question 33

In a prosecution for car theft, the defendant claims the owner gave her the car as a gift. The defendant said that the day after she took the car, the owner said "I remember that yesterday I gave Joe the car for his birthday." Admissible? why or why not?

Answer 33

Not admissible as then-existing mental or physical condition. A statement of memory offered to prove the fact remembered is not allowed.

Question 34

Civil wrongful death action against airline arising out of airplane crash. Plaintiff claims airlines is vicariously liable for the pilot's negligence. Plaintiff offers into evidence the report of National Transportation Safety board in which it stated that a witness saw an empty vodka bottle in the cockpit. Is this admissible?

Answer 34

The only reason why this is not admissible is because the witness had no duty to report, so what the witness said is hearsay... However, if the plaintiff only provided the report's conclusion, (i.e that the National Transportation Safety Board concludes that the cause of crash was pilot error) then this would be admissible based on the public records rule (iii).

Question 35

Confrontations clause Rule

Answer 35

In a criminal case, a witness has the right to confront a declarant who made a testimonial statement against him.

Question 36

Testimonial statements are:

Answer 36

1) Statements that are given to further a police investigation aimed at producing evidence for prosecution (as opposed to giving police statements to mitigate an ongoing emergency) AND 2) statements made in court. If a statement is testimonial and is offered in court, but the declarant is unavailable, and the defendant has not had an opportunity to cross-examine the defendant... then it violates the confrontations clause and is inadmissible.

Question 37

InThe perpetrator shot the victim in a large shopping mall. When the police arrive the shooter was still at large and posed a danger to others. Victim told the police, "I'm so excited! The guy who shot me was dressed as Santa." The declarant is unavailable as a witness for the murder trial. Is this statement admissible?

Answer 37

Yes, excited utterance so there is a hearsay exception, and it doesn't violate the confrontation clause because this is not testimonial... it declarant's intention was aimed to further investigation to produce evidence for the prosecution... The intention was to deal with an ongoing emergency.

Question 38

A victim and his former business partner, the defendant, had a bitter falling out after the victim accused the defendant of embezzling company funds. The defendant threatened to get even. Shortly thereafter, while driving on the expressway, a car swerved suddenly in front of the victim's car. Although the victim applied the brakes immediately, his car failed to stop. To avoid colliding with the car ahead of him, he swerved to the right and smashed into a concrete retaining wall. A passing motorist stopped and came to the aid of the victim. Bleeding profusely from a head wound, and rapidly losing consciousness, the victim said, "I don't think I'm going to make it. I tried to slow down, but my brakes didn't work. My former partner must have tampered with them to get back at me." With that, the victim lapsed into unconsciousness, and has been in a coma and on life support ever since. A personal injury suit has been filed on his behalf by a court-appointed guardian against the defendant. At trial, can the motorist testify as to the statement made by the victim? a) No because the victim did not know the defendant tampered with the brakes b) No because the victim is still alive c) Yes, because the victim thought he was about to die d) Yes, because this is a civil case

Answer 38

The answer is a Every statement must be one in which the declarant has personal knowledge (except for opposing party admission... the personal knowledge or opinion rule does not apply there.)