Post Midterm (Hearsay)

Question 1

The Hearsay Rule Number

Answer 1

Rule 801

Question 2

Hearsay means a statement that:

Answer 2

1. The Declarant makes outside of Court and

2. it is offered in evidence to prove the truth of the matter asserted in the statement

Question 3

Statements that are not hearsay under 801(d)(1)(A)

Answer 3

statements that are (1) inconsistent with the witness’s current testimony; (2) made under penalty of perjury; and (3) occurred at a deposition or during a trial, hearing, or other proceeding

Question 4

Statements that are not hearsay under 801(d)(1)(B)

Answer 4

Those which are consistent with the declarant’s testimony and is offered:

1. To rebut an express or implied charge that attacks the witness’s credibility; and
2. that the prior consistent statement has probative value in rehabilitating credibility.

Question 5

Statements that are not hearsay under 801(d)(1)(C)

Answer 5

Those which identify a person as someone the declarant perceived earlier
as long as the person who made the identification testifies at trial and is subject to cross-examination

Question 6

When a witness appears to be feigning memory loss, what disposition from Milton applies?

Answer 6

Prior detailed statements are inconsistent with the current claims of lost memory. as long as other requirements are satisfied under 801(d), the prior statement is admissible under hearsay.

Question 7

Difference between prior statements of a witness under Rule 613 and Rule 801

Answer 7

Rule 613 statements allow a party to offer evidence to impeach a witness’s credibility for any prior inconsistent statement as long as it relates to a fact of consequence in litigation,

Rule 801 Conversely offers inconsistent statements for its substance. The statement must have been made under penalty of perjury and at a proceeding.

Question 8

Prior inconsistent statements under 801(d)

Answer 8

memory failure constitutes inconsistency;

statement is given under penalty of perjury at a proceeding

Grand jury hearings count as proceedings; police interrogations do not.

Witness credibility must be attacked

statement must be probative for rehabilitation

prior statement MUST have been made before the motive to fabricate or improper influence began

Must be an identification of a person

Question 9

Hearsay Analysis

Answer 9

1. Does the Evidence Contain a statement?
2. Did the statement occur outside the courtroom?
3. Is the party offering the statement to prove the truth of the statement?
4. Does an exception apply?

Question 10

Truth of the Matter Asserted

Answer 10

If the party is offering the statement to prove its truth, it is hearsay,

if the party is offering the statement for another purpose, it is not hearsay

Other purposes: knowledge of the speaker, notice to the listener, effect on the listener, legally binding statements.

Question 11

In a lawsuit involving a “21 stamp” or underage drinking issue… A witness testifies about the stamp to show that the patron is over 21. Is the testimony hearsay?

Answer 11

Yes it’s hearsay because it’s being used to prove the truth of the matter asserted (patron is 21). However, if it’s offered to prove the exception of “notice to the listener” in which the bartender is on notice of the stamp and pours a drink… then it is admissible under the exception.

Question 12

Four Categories of Exceptions to Hearsay

Answer 12

Rule 801: Not Hearsay
Rule 803: Availability Immaterial
Rule 804: Declarant Not Available
Rule 807: Residual Exception

Question 13

What Evidentiary Precedent is Set in Crawford?

Answer 13

Testimonial statements are not admissible unless the declarant is unavailable to testify and the defendant has had a prior opportunity to cross-examine the witness.

Crawford was grounded in Defendant’s right to confront witnesses against him/her (6th Amendment)

Question 14

Rule 803

Answer 14

Hearsay that the Declarant’s availability does not matter

Question 15

803(1)

Answer 15

Present Sense Impression

Question 16

Present Sense Impression

Answer 16

Statement describing or explaining an event or condition made while immediately after the declarant perceived it

Question 17

803(2)

Answer 17

Excited Utterance

Question 18

Excited utterance

Answer 18

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused

Question 19

803(3)

Answer 19

Then-Existing Mental, Emotional or Physical condition

Question 20

Then Existing State of Mind

Answer 20

Statement of the declarant then-existing state of mind (motive, intent or plan) Emotional sensory or physical condition (mental feeling, pain or bodily health); statement of memory or belief to prove the fact remembered

Question 21

803(4)

Answer 21

Statement made for medical diagnosis or Treatment

Question 22

Statement made for medical diagnosis or treatment

Answer 22

Statement made for and is reasonably pertinent to medical diagnosis or treatment and describes medical history, past or present symptoms or sensations; inception or their general cause

Question 23

803(5)

Answer 23

Recorded Recollection

Question 24

Recorded Recollection

Answer 24

record that is on a matter the witness once knew about or was made or adopted when fresh in the witness’s mind or accurately reflects the witness’s knowledge

Question 25

803(6)

Answer 25

Records of a regularly conducted activity

Question 26

803(7)

Answer 26

Absence of a Record of a regularly conducted activity

Question 27

803(8)

Answer 27

Public Records

Question 28

803(10)

Answer 28

Absence of a Public Record

Question 29

803(16)

Answer 29

Statements in Ancient Documents

Question 30

803(17)

Answer 30

Market Reports and Similar commercial publications

Question 31

803(18)

Answer 31

Statements in Learned Treatises, Periodicals, or Pamphlets

Question 32

Rule 804

Answer 32

Hearsay that Requires the Declarant to be UNAVAILABLE

Question 33

804(a)

Answer 33

1. Exempted from testifying due to privilege 2. Refuses to Testify 3. Doesn't remember subject matter 4. Death, physical illness or mental illness 5. absent in good faith (subpoena response, deposition)

Question 34

804(b)

Answer 34

1. Former Testimony (deposition or witness at trial in a civil case where predecessor in interest could also examine 2. Statement under belief of imminent death 3. Statement against Declarant's interest: supported by corroborating circumstances and reasonable person would believe it only if the person believed it was true

Question 35

Rule 805

Answer 35

Hearsay within Hearsay

Question 36

Hearsay within Hearsay

Answer 36

Not excluded by rule against hearsay if each part of combined statements conforms with another exception

Question 37

Rule 807

Answer 37

residual Exception

Question 38

Residual Exception

Answer 38

(a)(1) statement has equivalent circumstantial guarantees of trustworthiness 2. Offered as evidence of material fact 3. More probative on point for which offered than any other piece of evidence that proponent can obtain by reasonable efforts 4. Admitting is in the best interest of justice

Question 39

807(b)

Answer 39

Notice: statements under residual exception are admissible only if before trial or hearing the proponent gives adverse party notice.

Question 40

Rule 701

Answer 40

Opinion Testimony by Lay Witness

Question 41

Rule 702

Answer 41

Testimony by Expert Witness

Question 42

Rule 703

Answer 42

Bases of an Expert's Opinion Testimony

Question 43

Rule 501

Answer 43

Privilege in General

Question 44

Privileges

Answer 44

Attorney-Client; Work Product; Physician-Patient; Spousal Privilege