Hearsay

Question 1

What is hearsay?

Answer 1

Out of court statement offered by someone other than declarant to prove the TOMA

Question 2

What is hearsay within hearsay?

Answer 2

OOC statement that has other hearsay within it.

Ex: John told me that Mary said the light was red

Question 3

When is hearsay admissible?

Answer 3

If an exception applies

Question 4

When is hearsay within hearsay admissible?

Answer 4

only if both hearsay statements meet an exception

Question 5

List (2)

What is a statement?

Answer 5

A person’s:

1. Oral or written assertion - OR -
2. Nonverbal assertive - conduct intended as an assertion (i.e. headnod)

Question 6

Who can make statements?

Answer 6

only HUMANS

Question 7

Can an animal or a machine make a hearsay statement?

Answer 7

NO

Question 8

What is an OOC statement?

Answer 8

Statement NOT made at current trial

meaning hearsay statement could be made during a trial but it just cannot be made during the current trial

Question 9

What is offered to prove the TOMA?

🍌🍌🍌

Answer 9

The statement itself is being presented to prove that the statement is true.

Ex: P slips on a banana peel. 20 mins before slipping W told D (store mananger), “there is a banana peel on the floor”. W is offering statement to prove negligence - D knew about banana peel. NOT being offered for TOMA - whether or not there actually was a banana peel on the floor.

Question 10

List (3)

Types of statements that are not offered for the TOMA:

Answer 10

Statements offered to/as:

1. Verbal acts or legally operative facts - i.e. words of a K or defamatory words
2. Show effect on listener or reader - i.e. provide notice in a negligence case 🍌
3. Circumstantial evidence of declarant’s state of mind - i.e. party trying to prove someone’s insanity or knowledge

Question 11

*nonhearsay* list (3)

How does silence become an adoptive statement?

Answer 11

1. Party hears and understands the statement
2. Party is physically and mentally capable of denying the statement
3. A reasonable person would have denied the statement

Question 12

Why is a statement alleged to be defamatory is not hearsay

Answer 12

Because the evidence is by definition NOT offered to prove the TOMA.

It is offered only to show that the actionable statement was made.

Question 13

Definition, *nonhearsay*

What are hearsay exclusions and what “kind” of evidence are they admissible as?

🪐🪐🪐🪐

Answer 13

statements that technically are hearsay but are excluded from the hearsay definition

THEREFORE ADMISSIBLE as substantive evidence

unless exclusion applies

Ex: 🪐 Pluto is a planet but NASA just decided it is not 🪐

Question 14

List (2), *nonhearsay*

What are the hearsay exclusions?

Answer 14

1. Prior statements from testifying witness
   
   1. Prior ID
   2. PIS
   3. PCS
2. Statements made by opposing party (aka statement by a opponent)

Question 15

definition, *nonhearsay*

What are prior statements from testifying witness

Answer 15

A WITNESS’S prior OOC statements

Question 16

*nonhearsay*

Is a witness’s prior statement admissible?

Answer 16

inadmissible hearsay UNLESS exception applies

Question 17

*nonhearsay*

What is the key element for a witness’s prior ooc statement to NOT be hearsay

iow: what does the witness have to be subject to?

Answer 17

Witness has to be subject to CROSS EXAMINATION

Question 18

*nonhearsay*

A witness’s prior OOC statement is not hearsay if:

and what type of examination? cross or direct?

(aka what are the different types of prior statements that are nonhearsay)

Answer 18

Prior OOC of a testifying witness subject to cross-examination is NOT hearsay if:

1. ID: Prior statement is one of identification
2. PIS + Oath: Prior/previous statement which was made under oath is inconsistent with current in-court testimony
3. Consistent: prior statement is consistent with now in-court testimony and the declarant is testifying at trial and subject to cross-examination

Question 19

*nonhearsay*

Prior identification is admissible as nonhearsay only if :

Answer 19

1. the declarant is testifying at trial (aka they are available) and
2. subject to cross-examination

Question 20

*nonhearsay*

Prior consistent statement is admissible as nonhearsay if:

Answer 20

1. Rebut: Offered to rebut charge that W is lying/exaggerating because of motive - OR -
   
   1. PCS need to have been made before onset of motive
2. Rehab: Offered to rehab witness who has been impeached on other grounds

Question 21

*nonhearsay*

What are statements made by an opposing party?

Answer 21

Basically anything that D says, P can offer against D and vice versa

any statement made by a party - for or against - their own interests _IS_ admissible against that party

Question 22

*nonhearsay*

Formal judicial statements are:

Answer 22

CONCLUSIVE and CANNOT be contradicted during trial

Question 23

Informal and extra-judicial judicial statements are

Answer 23

Nonconclusive and can be explained

Question 24

*nonhearsay*

Can a party’s formal judicial statement in one case be admitted against them as an extrajudicial statement in another case?

Answer 24

Yes

Ex: D pleads guilty to traffic charge in case 1. In case 2 - which arose out of same accident - the plea can be used as an opposing party’s statement

Question 25

# \*nonhearsay\* What are **adoptive statements?**

Answer 25

Type of **opposing statement** where a party **expressly or impliedly** adopts the statement of another party and that **adoption** *may* be admissible against them

Question 26

# \*nonhearsay\* list (2) When can **vicarious statements** be admissible as **statements of an opposing party**?

Answer 26

1. Authorized spokesperson **or** 2. Agents and employees - *statement:* 1. matter **within scope** of employment 2. **during existence** of employment

Question 27

# Definition, \*exceptions\* What are hearsay **exceptions**?

Answer 27

Statements that **are** hearsay but **admissible** because they meet an exception

Question 28

# Comparison, \*exceptions\* What is the difference btwn **prior statement of testifying witness (pstw)** and **prior testimony (pt)**

Answer 28

**PSTW:** prior statement made **out of court** + subj to _cross_ at **current** **PT:** given under **oath** **+** subj to _cross_ and _direct_ at **prior**

Question 29

# \*exceptions\* What makes a declarant **unavailable**? “PRISM”

Answer 29

1. Privilege (5th A, spousal etc) 2. Refusal to testify 3. Incapacity - *Death or serious illness* 4. Subpoena (absent)- *Refuse to testify,* *despite proponent's attempts to procure declarant's testimony* 5. Memory *(Lack of )*

Question 30

# List (5), \*unavailable exceptions\* What are the hearsay exceptions that are **admissible** which **require** declarant **unavailability**? "a**p**h**id**"

Answer 30

1. **A:** Statement offered ***against*** the party that has caused the declarant's unavailability 2. **P:** prior testimony \* 3. **H:** Personal/family history 4. **I:** Statements against interest \* 5. **D:** dying declarations \*

Question 31

# \*unavailable exceptions\* A declarant who **cant attend** the trial but can give deposition testimony:

Answer 31

***is*** considered **available**

Question 32

# \*unavailable exceptions\*List (2) Prior/Former testimony is admissible if

Answer 32

Oath + examine 1. Testimony given **under** **oath,** in same or diff case 2. Party **against** whom testimony is being offered, had **opportunity + similar motive** to develop declarant's testimony at **prior** proceeding through **direct** or **cross** 1. **opportunity + similar motive:** party in former case + same subj matter 2. *ex: P offers W's **former** testimony from case 1 against D in _current_ case 2. D had the opportunity in case 1 to cross-examine W.*

Question 33

# Comparison, \*\*unavailable exceptions\* Grand jury testimony is ____________ against a D as ***former*** ***test**_i_**mony***

Answer 33

inadmissible because no opportunity to direct/cross-examine in **prior** trial

Question 34

# Comparison, \*nonhearsay exceptions\* Grand jury testimony is ____________ against a D as **prior inconsistent st**_a_**tement**

Answer 34

**ADMISSIBLE** because can direct/cross in **current** trial

Question 35

# \*unavailable exceptions\*; hint 3 Ps Statements against interest Against what interests are SAIs offered?

Answer 35

Statements ***against*** person's **pecuniary** (money), **proprietary** (property), or **penal** (criminal) interests **at time it was made**

Question 36

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

Answer 36

Yes, as a hearsay exception, ***regardless*** of the document’s age

Question 37

# \*unavailable exceptions\* In **_criminal_ cases** SAI must be:

Answer 37

**corroborated**

Question 38

# \*exceptions\* list (3) How does **silence** become an adoptive statement?

Answer 38

1. Party **hears** and **understands** the statement 2. Party is **physically** and **mentally** capable of **denying** the statement 3. A **reasonable person** would have **denied** the statement

Question 39

# \*unavailable exceptions\* Dying declaration

Answer 39

1. Believe death was **imminent** 2. Statement **concerned cause or circumstances** of impending death

Question 40

# Dying declaration? The plaintiff is suing the defendant for serious, life-threatening injuries she suffered when the defendant's car collided with the plaintiff's at a busy intersection. At trial, the plaintiff testified that the light was green when she entered the intersection. She was not cross-examined. She also testified that she lost consciousness after the collision but awoke to find a witness comforting her as she lay on the ground. The plaintiff calls the witness to testify that, when she awoke, she said, "Help, I'm dying! Why did [the defendant] enter the intersection when the light was green for me?" Is this a dying declaration?

Answer 40

NO - The witness's testimony is admissible as an excited utterance. ***The apparent dying declaration is a favorite trick on the MBE. Remember that if the victim _does not_ die, she must be*** ***unavailable*** ***to testify before the dying declaration is admissible on those grounds. Here she*** ***is available*** ***so the statement cannot come under dying declaration***

Question 41

# \*unavailable exceptions\* In what type of **criminal** cases can dying declarations be used?

Answer 41

Apply only for **HOMICIDE cases**

Question 42

# list (2) Statements of personal or family history

Answer 42

1. Declarant is a **member** of family or **intimately** associated 2. Statements based on facts or knowledge of **family's history**

Question 43

Statement offered ***against*** the party that has caused the declarant's unavailability

Answer 43

Motivation was to **prevent** declarant from testifying

Question 44

# List, \*immaterial exceptions\* What are hearsay exceptions that are **admissible** ***immaterial*** of declarant availability? * Rich Men say Bullshit,* * Especially In Monaco*

Answer 44

1. Excited utterance \* 2. Present sense impression \* 3. Present state of mind - *concerning mental or physical condition* 4. Medical statements - *diagnosis, treatment* 5. Business records \* 6. Recorded recollection\*

Question 45

# \*immaterial exceptions\* Excited utternance

Answer 45

OOCS relating to **startling event** while under **stress of event**

Question 46

# \*immaterial exceptions\* Present sense impressions

Answer 46

Describes event **while or immediately after**

Question 47

# \*immaterial exceptions\* **Present state of mind**

Answer 47

The then present state of mind, including statements of **intent** and **physical condition** at that time ## Footnote *Note: memory/belieft not admissible under this exception* ***HINT:** think **mind → mental state of mind,** think ****_m_**ind → **_m_**edical for physical condition***

Question 48

# \*immaterial exceptions\* Statements about medical diagnosis or treatment

Answer 48

medical history + inception of or general cause past or **present** symptoms

Question 49

# \*immaterial exceptions\* Statements about medical diagnosis or treatment are admissible hearsay if

Answer 49

statements made for the purpose of medical treatment or diagnosis usually made to medical personnel **CANNOT** talk about _fault_ iow: can admit to talk about *how* pt was injured but **NOT** ***who*** injured the pt

Question 50

# \*immaterial exceptions\* Business records

Answer 50

Memo made of any **act, event, condition, opinion, or diagnosis** ## Footnote **\*\*\*\*\*\*\*\*NEED FOUNDATION\*\*\*\*\*\*\*\*\*\*\*\*\***

Question 51

# \*immaterial exceptions\* list (2) Business records entry need be made during:

Answer 51

1. regular **course** of business 2. business records **regularly** makes these kinds of records

Question 52

Are business records prepared in anticipation of litigation admissible under hearsay exception?

Answer 52

**Generally NO** court will exclude reports prepared primarily for litigation *FRE deal with this problem by giving the trial court discretion to exclude any business record if circumstances indicate the record **lacked** trustworthiness.*

Question 53

What is the point of a recorded recollection

Answer 53

used to substitute for the forgotten memory

Question 54

# hint: admissibility of evidence, \*immaterial exceptions\* Recorded recollection

Answer 54

***can*** be read into evidence ***CANNOT*** be admitted as an _exhibit_

Question 55

# hint: admissibility of evidence, \*immaterial exceptions\* Learned Treatises

Answer 55

***can*** be read into evidence ***CANNOT*** be admitted as an _exhibit_

Question 56

# "immaterial exceptions\* Ancient documents

Answer 56

admissible if authenticated + prepared **BEFORE** Jan 1, 1998

Question 57

# List (3) Catch-all exception

Answer 57

Last ditch attempt when other exceptions dont apply 1. **Trustworthiness -** *hearsay statement must posses sufficient guarantee of trustworthiness* 2. **Necessity -** *statement strictly necessary* 3. **Notice -** *give reasonable notice to opponent*

Question 58

# List (4) Confrontation Clause

Answer 58

Hearsay statement not admitted if: 1. Offered **against** accused in **criminal case** 2. Declarant **unavailable** 3. Statement was **testimonial** 4. No opportunity to **cross-examine** declarant **prior** to trial

Question 59

Confrontation Clause forfeited if

Answer 59

D commits a **wrongful ac**t intended to keep W from **testifying**

Question 60

# Non-testimonial or Testimonial? Statements made to law enforcement (ie police) to aid in emergency

Answer 60

**NOT testimonial**

Question 61

# Non-testimonial or Testimonial? Statements made to law enforcement to provide info (*for later prosecution)*

Answer 61

**Testimonial**

Question 62

# no flip side The fact that evidence is self-serving is often just another way of saying that it is hearsay.

Question 63

Is a **misdemeanor** conviction hearsay? Is it admissible under an exception to the hearsay rule?

Answer 63

hearsay; not admissible

Question 64

Is a **felony** conviction hearsay? Is it admissible under an exception to the hearsay rule?

Answer 64

hearsay; admissible