HEARSAY AND CIRCUMSTANCES OF ADMISSIBILITY

Question 1

Hearsay def:

Answer 1

Hearsay is an out of court statement offered for the truth of the matter asserted

Question 2

Hearsay, admissible or inadmissible?

Answer 2

• Start with the premise that hearsay is
  inadmissible unless it meets an exception (there are exceptions and exemptions, as well as statements that are just not hearsay)

Question 3

Statements NOT Offered for Truth:

Answer 3

• Words of Offer & Acceptance
• Libel or Slander
• Verbal Acts to show motive/notice/

Question 4

what answer should you pick if you are not sure for hearsay on the MBE?

Answer 4

If you are not sure, pick “inadmissible as hearsay not within any exception”

Question 5

What are the hearsay exceptions (without the unavailability requirement)?

Answer 5

1. Present Sense Impression
2. Excited Utterance
3. Then Existing Mental, Emotional, Physical State of Mind
4. Business record
5. Statement for Medical Diagnosis or Treatment
6. Recorded Recollection
7. Public Record
8. Learned Treatise
9. Ancient Document
10. Catch-All Exception

Question 6

Present Sense Impression:

Answer 6

• Statement made while observing fact
• Non-emotional observation

Example:
Present Sense Impression
o “I saw the car go through the red light”
o “The man was walking down the street
wearing a black hat”

Question 7

Excited Utterance:

Answer 7

• Statement made while excited
• Look for “!”

Question 8

Then Existing Mental, Emotional, Physical State of Mind:

Answer 8

Statements of intent, emotion, or physical state

Example:
o “I couldn’t have killed her, I loved her”
o “I was going to New Yorkͧ
o “I was on my way to L.A.”
o “I’m suffering pain right now”

Question 9

Business Record:

Answer 9

• Record made in the ordinary course of the business

Example:
Business Record
o President signed an invoice or piece of paper
on ABC Inc. letterhead
o Time sheet

Not Business Record:
o Christmas gift for clients on law firm letterhead

Question 10

Statement for Medical Diagnosis or
Treatment:

Answer 10

• Statement related to past or present
  symptoms
• About the treatment or diagnosis

Question 11

Recorded Recollection:

Answer 11

1) Witness on the stand cannot remember;
2) Document made/adopted by witness;
3) CAN be read into evidence

Question 12

Public Record:

Answer 12

• Record or statement of a public oŠce/
  agency
• Observations by someone with a duty to report

Example:
o Police report

Question 13

If there is an absence of Business Record or Public Record:

Answer 13

• Look for facts to indicate there was NO
  record

Question 14

Learned Treatise:

Answer 14

• Admissible when an expert witness is relying on the treatise

Question 15

Ancient Document:

Answer 15

1) Authentication: document must be more than 20 years old
OR
2) FRE hearsay exception: document MUST have been prepared before 1998

Question 16

Catch-All Exception:

Answer 16

hearsay is:
1) Material;
2) Trustworthy; and
3) In the interest of justice

Question 17

HEARSAY EXCEPTIONS – Unavailability Requirement

Answer 17

1. Dying Declaration
2. Statement Against Interest
3. Former Testimony

Question 18

Unavailable def:

Answer 18

Unavailable witness means not currently
at the trial (Unavailability does not necessarily mean the witness is deceased)

Example:
o Missing
o In coma
o Pleaded the Fifth
o Witness Protection Program

Question 19

Dying Declaration

Answer 19

1) Unavailability;
2) Belief of impending death;
3) About cause of death;
4) Homicide or civil case

Question 20

Statement Against Interest:

Answer 20

1) Unavailability
2) Makes declarant look liable/guilty
3) Generally made by non-party

Question 21

Former Testimony:

Answer 21

1) Unavailability
2) Opponent was a party to former case
3) Former case about same subject
4) Made under oath
5) Opportunity to cross-examine

Question 22

Non-Hearsay Statements (Non-hearsay has nothing to do with the hearsay
exceptions)

Answer 22

1. Admissions
2. Vicarious Admissions
3. Adoptive Admissions
4. Prior Consistent Statement
5. Prior Sworn Inconsistent Statement
6. Prior Identification

Question 23

Admissions:

Answer 23

• Statement made by a party
• Admissible as NON-HEARSAY

Question 24

Vicarious Admissions

Answer 24

Statements made by employees about company

Example:
o A worker in the company saying, “We don’t fix the brakes”
o A worker in the company saying, “We are usually drunk when we drive”

Question 25

Adoptive Admissions:

Answer 25

* Party does not respond when a reasonable person would object

Question 26

Prior Consistent Statement:

Answer 26

1) Prior statement by declarant; 2) The same as current testimony; 3) To refute charge of fabrication or motive

Question 27

Prior Inconsistent Statement:

Answer 27

this is an impeachment thing - can be used to impeach the declarant (or a non-testifying declarant) if: 1) Prior statement by declarant; 2) INCONSISTENT with current testimony OR 1) declarant is not testifying (ie: not brought into ct. as a witness); 2) prior statement made by declarant is admitted into evidence under another hearsay exception; 3) non-testifying declarant's statement is inconsistent with current witness' testimony

Question 28

Can extrinsic evidence be used to show wit's prior inconsistent statement

Answer 28

yes, if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires

Question 29

Prior Identification:

Answer 29

* Declarant testifying about an earlier identification

Question 30

Right to Confrontation

Answer 30

Right to confront a witness concerning an out-of-court statement depends on whether the statement is TESTIMONIAL (ie: if not testimonial then no right to confront)

Question 31

Confrontation Clause - Grand Jury

Answer 31

A defendant is never permitted to be present during Grand Jury proceedings, therefore, any witness testimony made during a Grad Jury proceeding MUST be blocked by the confrontation clause IF the defendant does not get a later opportunity to cross-examine the witness

Question 32

Confrontation Clause simplified

Answer 32

if the D never got the oppty to cross-examine anyone who is TESTIFYING/providing TESTIMONY against him, then that testimony is blocked by the confrontation clause 1. determine if testimony 2. determine if D got to cross-examine

Question 33

Definition – Testimonial

Answer 33

* Statement not made during an emergency * Not Admissible

Question 34

Definition – Non-Testimonial

Answer 34

* Statement made to police during an emergency * are Admissible Example: o Statement made to the police during emergency, “There goes the guy down the street”

Question 35

Physical and Demonstrative Evidence

Answer 35

- is generally admissible Example: o Show scar o Demonstrate limp

Question 36

Double Hearsay

Answer 36

* TWO different hearsay statements * NOT Admissible unless BOTH hearsay statements meet an exception - anytime the evidence in question consists of an ooc statement by A repeating another ooc statement made by B, both statements need to have hearsay exceptions