Hearsay Exceptions - Availability Immaterial

Question 1

Excited Utterance

Answer 1

A statement made during or soon after a startling event made while the declarant is under the stress of excitement produced by the startling event.

The declaration must concern the immediate facts of the startling occurrence.

Question 2

Preliminary Questions of Admissibility

Answer 2

Preliminary questions of admissibility shall be determined by the court including the qualifications of an expert witness.

FRE and including rules of hearsay do not apply; only privileges.

Judge not jury decides whether an expert witness is qualified to testify

Question 3

Learned Treatise

Answer 3

The Court may not allow an entire learned treatise to be examined by a jury due to the risk of jurors looking at irrelevant sections and improperly relying on them in rendering a verdict.

The jury may only consider passages read to it by counsel or by a witness.

Question 4

Learned Treatise Rule

Answer 4

May be substantively admissible if it is

(1) called to the attention of the expert witness upon cross-examination (need not rely on it) OR relied upon by her during direct and

(2) established as reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice.

Statements may be “read” into evidence if found to be reliable, but not received as an exhibit.