EVIDENCE - HEARSAY

D was charged with attempted murder after allegedly dissolving poison in his wife's drink. The wife telephoned a friend for help and said, "I feel horrible. I think my husband put something in my drink." At trial, the prosecution called the friend to testify to the wife's statements. Should the court admit the statement "I feel horrible," "I think my husband put something in my drink," neither, or both?

"I feel horrible" is admissible; "I think my husband put something in my drink" is not. Here, "I feel horrible" describes the wife's emotional and physical condition (then-existing state of mind), so it is admissible. However, "I think my husband put something in my drink" describes the reason for the condition and is unrelated to the validity or terms of a will.

Under what circumstances does a Bruton problem occur?

A Bruton problem occurs if: (1) a co-defendant makes a testimonial statement implicating the defendant, (2) the defendant is tried with the co-defendant, and (3) the co-defendant does not testify. In Bruton, the Supreme Court held that under these circumstances the defendant's Sixth Amendment right to confront the accuser has been violated, a limiting instruction is insufficient to cure the violation, and the prosecution cannot use the statement at trial. However, no Bruton problem occurs if the statement (i.e., a confession) is redacted, the prosecutor forgoes use of the confession, or the co-defendant testifies (enabling the defendant to cross-examine the co-defendant).

What are the five situations in which a declarant considered to be unavailable as a witness?

A declarant is considered to be unavailable as a witness if the witness is: (1) PRIVILEGE: exempted from testifying as a result of a privilege, (2) REFUSAL: continuously refuses to testify despite a court order to do so, (3) LACK OF MEMORY: testifies to a lack of memory about the subject matter, (4) DEAD OR ILL: is dead or has a long-term physical or mental illness, or (5) ABSENT: is absent and cannot be located by subpoena or other reasonable means despite a diligent search. A judge determines a declarant's unavailability and a declarant will not be deemed unavailable if the proffering party wrongfully caused the declarant's unavailability.

Under what circumstances is a declarant's former testimony from the current or a separate proceeding admissible hearsay?

A declarant's former testimony from the current or a separate proceeding is admissible hearsay if: (1) UNAVAILABLE: the declarant is unavailable;(2) UNDER OATH: the prior testimony was given at a trial, hearing, or lawful deposition; and (3) OPPORTUNITY & MOTIVE: the former testimony is being offered against a party who had an opportunity and similar motive to develop the testimony by direct, redirect, or cross-examination. In a civil case, it suffices if a predecessor in interest, rather than the current party, had the similar motive and opportunity to develop the testimony.

Under what circumstances is a declarant-witness's prior statement of identification exempted from the hearsay rule?

A declarant-witness's prior statement of identification is exempted from the hearsay rule if (1) CROSS-EXAM: the witness testifies and is now cross-examinable regarding the statement and (2) PERCEPTION: the prior statement identified a subject that the declarant-witness perceived earlier. In this situation, the statement of identification is not hearsay. This is a specific exemption from the definition of hearsay. Without the exemption, the statement would be classified as hearsay because it is an out-of-court statement offered for the truth of the matter asserted.

Under what circumstances is a hearsay statement admissible as a present-sense impression?

A hearsay statement is admissible as a present-sense impression if the declarant: (1) DESCRIPTIVE: makes a statement describing an event or condition and (2) SIMULTANEOUS: the statement was made simultaneously with, or immediately after, perceiving it. The event or condition need not be startling or exciting, nor elicit any specific type of reaction in the declarant. However, the event or condition and the statement must be substantially contemporaneous.

What is the difference between a hearsay statement offered as an opposing party's statement and a hearsay statement offered as a statement against interest?

An opposing party's statement need not be against the declarant's interest; can be on any subject; raises no Sixth Amendment issues; and requires no specific motive, corroboration, or personal knowledge of the statement's facts. A statement against interest must be so contrary to the declarant's proprietary, pecuniary, or penal interest that a reasonable person in his position would make the statement only if he believed it to be true. The declarant need not have a relationship to any party in the case and must have personal knowledge of the facts in the statement. If the statement is offered in a criminal case and would tend to expose the declarant to criminal liability, the statement must be supported by corroborating circumstances that clearly indicate the statement's trustworthiness. Statements against interest offered in criminal cases can also raise Sixth Amendment issues.

What is a statement against interest?

A statement against interest is a statement that is (1) AGAINST PENAL OR PECUNIARY INTEREST: so contrary to a declarant's penal, proprietary, or pecuniary interest, that a reasonable person in the declarant's position would not have made it were it not true. (2) PERSONAL KNOWLEDGE: the declarant must have personal knowledge of the facts in the statement (3) UNAVAILABLE: If the declarant is unavailable, a statement against interest is admissible.

What is the truth of the matter asserted for purposes of the hearsay rule?

A statement is offered for the truth of the matter asserted if there is a match between the reason the proponent introduced the statement and the assertion in the statement itself. If a witness testifies that the declarant said, "The light was red when the defendant drove through it," and the proponent is using the statement to prove that the light was red when the defendant drove through it, then the statement is being offered for the truth of the matter asserted. However, if the proponent is offering the statement to prove that the declarant is not colorblind, then the statement is not being offered for the truth of the matter asserted.

What is the most important aspect of the residual exception to the rule against hearsay?

A statement's trustworthiness is the most important aspect of the residual exception to the rule against hearsay. Each of the individual hearsay exceptions were adopted because the statements all had independent guarantees of trustworthiness under the circumstances. Factors indicating trustworthiness include: (1) the relationship between the declarant and the person to whom the statement was made, (2) the declarant's capacity when the statement was made, (3) the declarant's character for truthfulness, (4) whether the declarant later recanted the statement, (5) whether the declarant made other consistent or inconsistent statements, (6) whether the declarant's behavior was consistent with the statement, and (7) whether the statement is corroborated by other evidence or statements of others.

What is a verbal act? Can you give three examples?

A verbal act is a statement that has some independent legal significance, in that it triggers rights or liabilities. A verbal act is not hearsay because it is not being offered for the truth of the matter asserted, but rather because of the effect it had in triggering the legal right or liability, e.g., (1) words of offer and acceptance in contract formation, (2) words indicating intent to make a gift, and (3) words offered to prove slander or libel in a defamation case.

What is an adoptive admission?

An adoptive admission is a statement made by another person in which a party has manifested an adoption or belief in its truth. The hearsay exception for statements by a party opponent includes adoptive admissions. Adoption may occur (1) ADOPTIVE ADMISSION: explicitly or implicitly; (2) AUTHORIZED ADMISSION: if the other person was authorized to speak about the subject matter on the party's behalf; or (3) VICARIOUS ADMISSION: if the other person was the party's agent or employee, and the subject matter was within the scope of the agency or employment. Silence may also be admissible as an adoptive statement.

What additional element applies if the statement against interest is to be used against a defendant in a criminal case?

CORROBORATING EVIDENCE IN CRIMINAL CASE: If the statement is offered in a criminal case in which the declarant is exposed to criminal liability, the statement must also be supported by corroborating evidence that supports its trustworthiness. If a statement against interest inculpates a third party, the statement must be redacted to exclude the portion that relates to the third party. However, if a statement against interest exculpates a third party, it may be admissible in its entirety if all parts of the statement are at odds with the declarant's interests. Statements against interest offered in criminal cases can also raise Sixth Amendment Confrontation Clause issues.

What is hearsay?

Hearsay is (1) an out-of-court statement, or nonverbal assertive conduct, (2) that a party is seeking to introduce to prove the truth of the matter asserted. Because a hearsay statement is not made under oath, in the presence of a fact finder, or subject to cross examination, it is seen as unreliable and presumptively inadmissible. However, there are many exceptions to the rule against admissibility.

Can police records fit under the business-records exception?

Police records may be considered business records in civil cases only.

For purposes of the Confrontation Clause, what's the difference between testimonial and non-testimonial statements>

Statements are testimonial if the primary purpose of the interrogation is to prove past events potentially relevant to later criminal prosecution. Generally, a statement is testimonial if the declarant would reasonably believe that the statement could be used in a later trial, e.g., testimony at a trial or hearing, or before a grand jury, as well as affidavits, depositions, and even statements or confessions to the police. Nontestimonial statements are made during police interrogations and objectively indicate that the interrogation addresses an ongoing emergency.

What is the ancient-documents exception to the rule against hearsay?

The ancient-documents exception to the rule against hearsay provides that any statement contained in a document (1) that was prepared before January 1, 1998 and (2) can be proven authentic is admissible. Due to their age, these statements are considered reliable because they were made well before any present controversy likely existed. This is a recent change to the rule, which previously admitted documents that were at least 20 years old if their authenticity was established.

What is the catch-all hearsay exception?

The catch-all or near-miss hearsay exception is the residual exception to the rule against hearsay. Under this exception, a hearsay statement is not excluded by the rule against hearsay, even if it does not fall within an otherwise-enumerated exclusion or exception, if: (1) the statement has circumstantial guarantees of trustworthiness equivalent to those in existing specific hearsay rules, (2) the statement is offered as evidence of a material fact, (3) the statement is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts, and admitting it will best serve the purposes of the FRE and the interests of justice. Evidence is admissible under the residual exception only if the proponent provides an adverse party reasonable notice.

Generally, under what circumstances will a prior out-of-court statement be admissible?

The statement must: (1) NOT HEARSAY: not be hearsay (because it was not an assertion or is not being offered for the truth of the matter asserted), (2) EXCLUDED: be excluded from the definition of hearsay (either because it was a declarant-witness's prior statement or the statement of an opposing party), or (3) EXCEPTION: fall under an enumerated exception to the rule against hearsay.

Are documents that create or affect an interest in property admissible as an exception to the rule against hearsay?

Yes, if: (1) the record is admitted to prove the content of the original recorded document, along with its signing and delivery by each person who purports to have signed it; (2) the record is kept in a public office; and (3) a recording statute authorizes recording documents of that kind in that office. These records are considered trustworthy because of the prerequisites to filing such documents. Additionally, statements in such documents are admissible if the matter stated was germane to the purpose of the document. However, such a statement may be inadmissible if later dealings with the property prove inconsistent with the truth of the statement of the document.

D was charged with obstruction of justice for allegedly threatening a government witness in a prior trial against the defendant for fraud. During the prior trial, the government called a key witness to testify. D had an opportunity to cross-examine that witness and attempted to impeach the witness's testimony. The first trial ended in a mistrial. However, before D could be retried, the key witness died. In the current trial, the government filed a motion requesting permission to play a recording of that witness's testimony from the first trial. D objected on hearsay grounds. Assuming the recording is hearsay, should the court admit the recording as former testimony?

Yes, the court should admit the recording as former testimony. Here, (1) the witness is unavailable because she died. (2) The prior testimony was given at the first trial and (3) is being offered against the defendant, who had the opportunity and the same motive to cross-examine and impeach the witness at the first trial.

The defendants, building inspectors, were charged with extortion. They allegedly requested and received payoffs from construction companies for approving buildings that violated the building code. At trial, the prosecutor called an employee of a construction company that made regular payments to the defendants. The employee kept a diary chronicling each payoff made over seven years. The employee testified that the building inspectors were paid monthly and that he personally supervised the payoffs, which he recorded in the diary the same day. He kept the diary in his desk to provide a regular accounting to the company vice president. The prosecutor moved to admit the diary. The defendants objected, arguing the diary was hearsay. Is the diary admissible?

Yes, under the business records exception admit the diary. Records of regularly conducted activities are admissible despite the general rule barring hearsay, if: (1) TIMELINESS: the record was made at or near the time of the event; (2) PERSON WITH KNOWLEDGE: the record was made by, or based on information transmitted from, someone with knowledge acting in the regular course of business; (3) BUSINESS ACTIVITY: the record was kept in the course of a regularly conducted business activity; and (4) REGULAR PRACTICE: making the record was a regular business practice. This exception applies to both legal and illegal activities. Here, the custodian, i.e., the employee, made the record the same day as the event, knew the facts supporting the record, and made and kept the record as part of the regular course of accounting to the vice president. Though the diary recorded illegal activities, it is admissible hearsay.

Is an unavailable declarant's out-of-court statement about her personal or family history admissible?

Yes. An unavailable declarant's out-of-court statement about her personal or family history is admissible. The statement will be admissible even if the declarant had no personal knowledge of the history. Similarly, an unavailable declarant's out-of-court statement about another person's personal or family history is admissible if the declarant is so closely related to or intimately associated with the person's family that the statement is likely to be accurate.

Is an unavailable declarant's out-of-court statement offered against a party who wrongfully and intentionally caused the declarant's unavailability admissible?

Yes. An unavailable declarant's out-of-court statement offered against a party who wrongfully and intentionally caused the declarant's unavailability is admissible. To exclude the statement would give parties incentive to cause witnesses to be unavailable or reward parties for their wrongful interference with a prospective witness's testimony.

Is a prior out-of-court statement made by an opposing party admissible for the truth of the matter asserted in the prior statement?

Yes. Any prior out-of-court statement made by an opposing party is excluded from the rule against hearsay and is admissible when offered against the party who made the statement. The statement can have been made in an individual or representative capacity and need not carry any additional guarantees of trustworthiness. Thus, the statement need not be against interest, made under oath, or offered for a particular enumerated purpose.

Are there any out-of-court statements that are not hearsay?

Yes. Certain out-of-court statements are not hearsay because they are not being introduced to prove the truth of the matter asserted. These include statements offered: (1) to prove the fact of an utterance, (2) for impeachment, (3) because the statement constitutes a verbal act of legal significance, (3) to show the effect of the statement on the person hearing or reading it, (4) to demonstrate the declarant's state of mind, and (5) to demonstrate association. Admission of these statements requires that the court determine, under Rule 403, that the probative value of admitting the statement outweighs the chance that the jury may interpret the statement as proof of the matter asserted.

Must the maker or adopter of a recorded recollection testify before the recorded recollection can be read to the jury?

Yes. Either the maker or adopter of a recorded recollection must testify before the recorded recollection can be read to the jury. If there are joint authors, such as a witness who makes a statement to a police officer and a police officer who writes the statement down, both authors must testify.

A worker who was fired after taking worker's compensation leave brought a claim for retaliatory discharge. She testified, "While I was on leave, another employee told me the company was planning to terminate me because I had taken too much leave." Is this statement hearsay?

Yes. Hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted in the statement. Here, the statement was made outside of court, by someone who is not currently testifying, i.e., the declarant, and repeated in court by the witness. The worker is offering the statement to prove that the reason for her termination was that she had taken too much leave. This is exactly what the statement says, so the statement is being used to prove the truth of the matter asserted in the statement.

What is the market-report exception to the rule against hearsay?

The market-report exception to the rule against hearsay permits the admission of market reports and similar commercial publications and compilations that are generally relied on by the public or people in a particular discipline. These documents derive their reliability and trustworthiness from the fact that large groups of people, often paying customers, rely on the the information, which gives the party compiling the records an incentive to ensure that the information in the reports is accurate.

When can silence be deemed an adoptive admission?

The party's failure to respond in the face of a provocative accusation or event made be a statement by silence. The party's silence is an adoptive admission if (1) UNDERSTOOD: the party heard, understood, and was capable of responding, and (2) DENIAL: a reasonable person would have responded (e.g., denied the accusation). Look for a person accused of a malum in se crime like rape or murder, for which a normal person would automatically deny culpability.

When may a recorded recollection be admitted as an exhibit?

The proponent cannot offer the record itself as an exhibit. It can only be read by the proponent into evidence. However, an adverse party can offer the record as an exhibit.

What must the proponent of a business record do before getting it admitted?

The record's proponent must show the elements of a business record are met by calling the custodian of the record, calling a different qualified witness, or offering a certification. The court can exclude the record if the opponent shows the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness.

An employee embezzled money by writing checks against the employer's account and cashing the checks at a currency exchange. When confronted by an investigator, the employee admitted his participation in the fraud. The employer sued the currency exchange for racketeering violations. The employer called the employee to testify. The employee asserted his Fifth Amendment privilege against self-incrimination and the court found that the privilege applied. The investigator then testified. The employer's attorney asked the investigator what the employee told him about the embezzlement. The currency exchange objected, arguing the statement was hearsay. Assuming the statement meets the general definition of hearsay, should the court admit the statement?

Yes, as a statement against interest. (1) The declarant is unavailable because he asserted a privilege. (2) He knew he was involved in the fraud. (3) The statement was against his penal interest because he risked an embezzlement charge, and a reasonable person in his position would not make the statement unless it was true. If the statement is offered in a criminal case and would tend to expose the declarant to criminal liability, it must be supported by corroborating circumstances clearly indicating its trustworthiness. Here, this is not a criminal case.

A landlord, the owner of a warehouse that burned down in a fire, sued the tenant for negligence. The owner alleged that the fire started when the tenant's friend left a lit cigarette near flammable material. The friend spoke to investigators and admitted to smoking cigarettes in the warehouse. The friend disappeared before trial and the owner could not find him or serve him with a subpoena. At trial, the owner moved to introduce the friend's statement to the investigators. The tenant objected, arguing that the statement was hearsay. Assuming the statement meets the general definition of hearsay, should the court admit the statement?

Yes, as a statement against interest. Here, (1) the friend is unavailable; he fled and the owner cannot find him. (2) He had personal knowledge that he smoked in the warehouse. (3) The statement was against the friend's interests, as he could have been liable for leaving a cigarette where it could cause a fire. A reasonable person would have made such a statement only if it were true.

D and a co-conspirator were charged with attempted robbery and conspiracy to commit robbery after they tried to rob a postal-service delivery truck. After the two were arrested, the co-conspirator made inculpatory statements to the federal agents and eventually testified against D at trial. His statements at trial were consistent with his statements to the federal agents. D argued at trial that the co-conspirator's testimony was designed to gain favor with the government so he would receive a more favorable plea agreement. To bolster the co-conspirator's testimony, the prosecutor moved to introduce the statement co-conspirator made to the agents after arrest. Is the statement admissible?

Yes, because is a prior consistent statement. The court should admit the prior consistent statement. Here, (1) the co-conspirator's statement to the agent is consistent with his trial testimony, (2) he is available for cross-examination, (3) the prior statement is offered to rebut a charge that the co-conspirator recently fabricated the inculpatory testimony, and (4) the statements were made before discussions of a plea agreement occurred.

D was charged with kidnapping, interstate domestic violence, and using a gun during the commission of a crime of violence against his girlfriend. At the grand jury, the girlfriend testified that D kept a gun in his waistband and at one point chambered a bullet and threatened to kill her. However, at trial she denied that D had a gun and denied that he threatened her with a gun. The prosecutor asked, "Didn't you tell the grand jury that D, 'Kept a gun in his waistband, and at one point chambered a bullet and threatened to kill me'?" Is this statement admissible?

Yes, because it is an admissible prior inconsistent statement by a declarant-witness. Here, (1) the girlfriend's statement to the grand jury is inconsistent with her trial testimony that the defendant threatened her with a gun, (2) she is on the stand and available for cross-examination, and (3) the prior statement was given under penalty of perjury at the grand jury hearing. A grand jury hearing is a proceeding. The grand jury testimony is admissible as substantive evidence.

Are business records prepared in anticipation of litigation admissible?

Business records prepared in anticipation of litigation are not admissible under this exception because they lack the requisite trustworthiness.

Under what circumstances is a prior consistent statement made by a testifying witness admissible for the truth of the matter asserted in the prior statement? Can this be used as substantive evidence?

(1) CONSISTENT: the prior statement is consistent with the witness's current testimony; (2) CROSS-EXAM: the witness is subject to cross-examination about the earlier statement; (3) REBUT RECENT FABRICATION: the statement is offered to rebut a charge that the speaker recently fabricated the statement, to rebut a charge that the witness acted from a recent improper influence of motive in testifying, or to rehabilitate the witness's credibility if it has been attacked on another ground; and (4) PRE-EXISTING: the consistent statements were made before the alleged motive to fabricate arose. If these conditions are met, the prior statement can be used as substantive evidence, not just to impeach.

Under what circumstances is a prior inconsistent statement made by a testifying witness admissible for the truth of the matter asserted in the prior statement? Can this be used as substantive evidence?

(1) INCONSISTENT: the prior statement is inconsistent with the witness's current testimony; (2) CROSS-EXAM: the witness is subject to cross-examination about the earlier statement; and (3) OATH: the prior statement was given under penalty of perjury at a trial, hearing, other proceeding, or in a deposition. If these conditions are met, the prior statement can be used as substantive evidence, not just to impeach.

How does the public-records exception differ from the business-records exception?

(1) ORDINARY COURSE OF BUSINESS: PUBLIC RECORDS → NO. BUSINESS RECORDS → YES. (2) TESTIMONY OF CUSTODIAN OR QUALIFIED WITNESS TO ADMIT: PUBLIC RECORDS → No. BUSINESS RECORDS → Yes.

What are the five types of out-of-court statements made by an opposing party?

(1) OWN STATEMENT: party's own statement; (2) ADOPTIVE ADMISSION: adoptive (implied) admission (knowing agreement with another's statement, even if done by silence), (3) AUTHORIZED ADMISSION: authorized (express) admission (statement by someone authorized to make a statement, like a spokesman); (4) VICARIOUS ADMISSION: vicarious admission (statement by agent or employee in the scope of agency or employment), and (5) ADMISSION OF CO-CONSPIRATOR: admission of a co-conspirator (during and in furtherance of the conspiracy).

What are the three instances of exempted hearsay when a statement of a declarant-witness who is available to be cross-examined?

(1) Proper inconsistent statement, (2) prior consistent statement, and (3) prior statement of identification.

What are the four elements of the dying-declaration exception to the rule against hearsay? Must the declarant die?

(1) UNAVAILABLE: an unavailable declarant's statement is made (2) HOMICIDE OR CIVIL: in a homicide or civil case, (3) IMMINENT DEATH: under the belief that his own death was imminent, (4) CIRCUMSTANCES: if the statement concerns the cause or circumstances of the declarant's impending death. The declarant does not actually have to die for the statement to be admissible, so long as the declarant made the statement under a subjective belief in his impending death. The declarant must also have firsthand knowledge of the cause or circumstances of his death for this exception to apply.

What are the four main hearsay exceptions that apply to documents?

(1) past recollection recorded, (2) business records, (3) public records and reports, and (4) learned treatises.

What are the four hearsay exceptions that concern a declarant's state or mind, or physical or mental condition (declarant available)?

(1) present sense impression, (2) excited utterance, (3) statement of declarant's then-existing state of mind, emotion, or body, (4) statements made for medical diagnosis or treatment.

Under what circumstances is a record or statement made by a public office admissible despite the hearsay bar (public records exception)?

A record or statement made by a public office is admissible despite the general hearsay bar if it sets out: (1) ACTIVITIES: activities of the office (e.g., employment records or accounts payable); (2) OBSERVATIONS UNDER LEGAL DUTY: matters observed and reported under a legal duty (e.g., an agency charged with reporting rainfall records or traffic patterns); or (3) INVESTIGATIVE REPORTS: findings, opinions, and conclusions in legally-authorized investigations. However, even if these requirements are satisfied, the public-records hearsay exception will not apply if an opponent shows that the evidence lacks trustworthiness, or if the evidence (1) concerns either matters observed by law enforcement or findings of legally-authorized investigations and (2) is offered against a defendant in a criminal case.

Under what circumstances is a portion of a learned treatise admissible as substantive evidence?

A portion of a learned treatise is admissible as substantive evidence if: (1) RELIABLE AUTHORITY: the proponent shows that the learned treatise is reliable authority, (2) EXPERT TESTIFYING: an expert is testifying, and (3) DIRECT OR CROSS-EXAM: the expert either relies on the treatise during direct examination or it is called to the expert's attention on cross-examination. A proponent can show that the learned treatise is reliable authority by the expert's admission, the testimony of another expert, stipulation, or judicial notice. The statement from the treatise, if admitted, can be read into evidence but not received as an exhibit. Thus, the jury cannot take the treatise into jury deliberations.

Under what circumstances is a record of a regularly conducted activity, also called a business record, admissible despite the hearsay bar?

A record of a regularly conducted activity, also known as a business record, is admissible hearsay if: (1) TIMELINESS: the record was made at or near the time of the event; (2) PERSON WITH KNOWLEDGE: the record was made by, or based on information transmitted from, someone with knowledge acting in the regular course of business; (3) BUSINESS ACTIVITY: the record was kept in the course of a regularly conducted business activity; and (4) REGULAR PRACTICE: making the record was a regular practice of that business.

What is hearsay within hearsay?

Hearsay within hearsay is also known as embedded hearsay, double hearsay, multiple hearsay, or layered hearsay. It occurs if a hearsay statement itself references another hearsay statement. A police officer's report is hearsay if offered in court to prove the truth of the matter asserted in the report. If the report also includes information told to the officer by a witness, those witness statements represent another layer of hearsay. Statements containing multiple layers of hearsay are admissible if each separate hearsay statement is itself admissible.

Under what circumstances is a hearsay statement admissible as an excited utterance?

If: (1) STARTLING: there is a startling or exciting event, (2) STRESS: the declarant makes a statement while under the stress of the event, and (3) RELATED: the statement relates to the event. The event and the statement do not need to be contemporaneous, but generally a statement is not an excited utterance if the declarant has an opportunity to reflect on the event.

What must a court determine in a criminal trial before admitting hearsay statements by an unavailable declarant (the Crawford Test)?

In a criminal trial, before admitting hearsay statements by an unavailable declarant, the court must determine if the hearsay violates the Sixth Amendment confrontation clause. The Supreme Court has held that testimonial statements violate the confrontation clause, but nontestimonial statements generally do not. Testimonial statements are inadmissible unless: (1) the declarant's statement falls under a hearsay exception, (2) the prosecutor made a good-faith effort to make the declarant available, and (3) the defendant had a prior chance to cross-examine the declarant.

What are learned treatises?

Learned treatises are authoritative works written by experts in a particular field and are often peer-reviewed. Learned treatises include standards and manuals developed by government agencies, industries, or professional organizations. Learned treatises can span almost any topic, including law, history, medicine, engineering, and art. Physicians' Desk Reference is a learned treatise on medicine and McCormick on Evidence is a learned treatise on evidence law. A learned-treatise exception exists to the general rule barring hearsay, which allows learned treatises in the form of books, periodicals, and pamphlets. However, courts have extended the exception to other media, including videotapes.

Are hearsay statements describing a then-existing emotional or physical condition generally admissible to prove the cause of the condition?

No. A declarant's hearsay statement describing the declarant's current state of mind, emotional condition, sensory condition, or physical condition is admissible to prove the state of mind or condition. However, the statement cannot be used to prove the reason for the emotional or physical condition. An exception exists for statements relating to the validity or terms of the declarant's will. Such statements are admissible both to prove the hearsay declarant's then-existing mental or physical condition and to show past events or conditions.

D and a co-conspirator were charged with conspiracy to commit bank robbery. D denied being involved in the conspiracy. He and the co-conspirator were jailed pending trial. The co-conspirator died of cancer before trial. At trial, D called a fellow inmate. The inmate testified that while hospitalized and just before losing consciousness, the co-conspirator told him, "Tell them that [D] had nothing to do with the job." The co-conspirator died a few minutes later. The prosecution objected and moved to strike, arguing that the statement was hearsay. Assuming the statement meets the general definition of hearsay, is the statement admissible as a dying declaration?

No. A hearsay statement is admissible as a dying declaration if: (1) the declarant is unavailable, (2) the statement is offered in a prosecution for homicide or in a civil case, (3) the statement is made under the belief of imminent death, and (4) the statement is made about the cause or circumstances of the declarant's death. Here, the declarant is unavailable because he died. The statement was made while the declarant believed his death was imminent; he had terminal cancer. However, the statement was not offered in a homicide case or a civil case. Further, the statement was not about the cause or circumstances of the declarant's death. Thus, the statement is not admissible as a dying declaration.

For an entire hearsay-within-hearsay statement to be admissible, must all the hearsay statements be admissible under the same exclusion or exception to the hearsay ban?

No. A statement containing hearsay within hearsay is admissible if each individual hearsay statement fits some exclusion or exception to the rule against hearsay. However, each individual statement can be admissible under a different exclusion or exception.

Is a statement of fault generally admissible if it was part of a statement made for medical diagnosis or treatment?

No. A statement of fault is generally inadmissible if it was part of a statement made for medical diagnosis or treatment. A statement made for medical diagnosis or treatment is admissible if it: (1) describes past or present symptoms, the cause or inception of the symptoms, or the declarant's medical history and (2) is made for, and reasonably pertinent to, medical diagnosis or treatment. A statement regarding the cause of the symptoms is generally admissible because the statement is pertinent to medical diagnosis or treatment. However, a statement of fault is generally not pertinent to diagnosis or treatment and is therefore usually inadmissible.

Is a witness's memory refreshed under the past-recollection-recorded exception to the hearsay rule?

No. A witness's memory is not refreshed under the past-recollection-recorded exception to the hearsay rule. Instead, the writing is read or introduced into evidence as substantive proof of the information. Although this exception to the hearsay rule falls under Rule 803, under which the availability of the declarant is not generally relevant, the declarant must be available and testify at trial for this exception to apply.

Must an excited utterance arise from an objectively exciting or startling event?

No. An excited utterance must arise from a subjectively exciting or startling event. The key question is whether the declarant found the event startling or exciting, regardless of whether an objectively reasonable person in the same situation would have the same reaction.

May testimony that a witness provided against a defendant in a grand jury proceeding be admitted as former testimony, if the witness is unavailable?

No. During grand jury testimony, the defendant is not afforded any opportunity to examine witnesses. The grand jury is controlled by the prosecutor without any participation by the defendant. Thus, the "opportunity and motive" element is not met.

Are hearsay reports prepared by private individuals but filed with public agencies generally admissible under the public-records exception to the hearsay bar?

No. Hearsay reports prepared by private individuals but filed with public agencies are not generally admissible under the public-records exception. The public-records exception admits records or statements of a public office despite the hearsay bar. However, reports prepared by private individuals are not considered records or statements of a public office, even if an individual is required by law to file the report.

Must hearsay statements made for medical treatment or diagnosis be made to a doctor in order to be admissible?

No. Hearsay statements made for medical treatment or diagnosis need not be made to a doctor in order to be admissible. A statement is admissible if it: (1) describes past or present symptoms, the cause or inception of the symptoms, or the declarant's medical history and (2) is made for, and reasonably pertinent to, medical diagnosis or treatment. Provided these requirements are met, the statement can be made to a doctor, nurse, ambulance driver, psychologist, social worker, or even a family member.

Do records of law enforcement observations fall within the public-records exception to the rule against hearsay?

No. Records of law enforcement observations generally are excluded from the public-records exception to the rule against hearsay in criminal cases. Most courts interpret this exclusion to apply only to records kept in adversarial situations, as opposed to routine, non-adversarial documents. Some courts, however, permit the introduction of such records if they are being offered to exculpate the defendant.

Is the business-records exception to the rule against hearsay limited to for-profit businesses?

No. The business-records exception to the rule against hearsay is not limited to for-profit businesses. The scope of the business-records exception covers any business, organization, or occupation, regardless of its profit status. Therefore, the exception applies to entities such as schools, hospitals, churches, and sole proprietorships. It covers opinions and diagnoses recorded in the ordinary course of business and even illegal records that are kept in the course of a criminal enterprise.

An insulation installer brought a products liability suit against an asbestos manufacturer, claiming that his exposure to asbestos in insulation increased his chances of developing mesothelioma in the future. To prove the extent of the installer's current medical knowledge on the dangers of asbestos, the installer moved to admit an article from a medical journal as a learned treatise. The manufacturer objected on hearsay grounds. Assuming the article is hearsay, should the court admit the article as a learned treatise?

No. The court should not admit the article as a learned treatise. A learned treatise is admissible hearsay if: (1) the proponent shows that the learned treatise is reliable authority, (2) an expert is testifying, and (3) either the expert relies on the treatise during direct examination or it is called to the expert's attention on cross examination. Here, the installer has not called an expert to testify in order to lay the necessary foundation for the admission of the article. Because there is no expert testifying, the court should not admit the article under the learned-treatise hearsay exception.

Does the personal knowledge requirement apply to opposing-party statements?

No. The personal knowledge requirement does not apply to opposing-party statements. An opposing-party statement is a prior out-of-court statement made by a party to the case. The statement is admissible if offered against that party, regardless of whether the party had personal knowledge of the matter when the statement was made. A lay witness generally must have personal knowledge of the matter about which the lay witness is testifying. The personal knowledge requirement usually applies not only to in-court testimony, but also to any out-of-court statements offered for admission into evidence. However, that requirement does not apply to out-of-court statements admitted as opposing-party statements.

A police officer stopped D for speeding. When the police officer realized D met the description of the suspect in a recent bank robbery, the police officer asked D if he knew anything about the robbery. D denied any involvement in the robbery. D was later charged with that crime. D did not testify at trial. Instead, D called the police officer as a witness and asked, "Didn't I tell you that I wasn't involved in the robbery?" The prosecutor objected, arguing that the statement was inadmissible hearsay. D countered that it was an out-of-court statement of a party and therefore admissible as an exclusion to the rule against hearsay. Is the statement admissible hearsay?

No. The statement is inadmissible hearsay. The statements by an opposing party exception applies only if a prior out-of-court statement is being offered against the party making the statement, not on behalf of that party. Here, D's statement was made out of court and he is offering it for the truth of the matter asserted in it: that he was not involved in the robbery. The statements by an opposing party exception does not apply because the statement is being offered on behalf of D, i.e., the party making the statement and not against D.

Is a statement made by a co-conspirator after arrest binding on the other co-conspirator?

No. The statement must be made (1) during and (2) in furtherance of the conspiracy. Once the arrest is made, the conspiracy is terminated. Thus, a statement made one co-conspirator against another co-conspirator is inadmissible hearsay after the arrest is made.

D was charged with cashing stolen checks. D's friend told a government agent about the scheme and recounted details provided by D. The agent memorialized the information in a report and the friend signed it. At trial, the prosecutor first called the agent who testified that she spoke with the friend and accurately wrote down the information provided to her by the friend. The prosecutor then called the friend and asked, "Did you have a conversation with the defendant about how the check-cashing scheme works?" The friend replied, "I forget the details, but I told the agent about it. She wrote it down. What I told the agent would have been right; I read and signed her report." The prosecutor moved to admit the report. Assuming the report is hearsay, should the court admit the writing as an exhibit as a recorded recollection?

No. The writing cannot be entered as an exhibit, but it can be read to the jury under the recorded recollection exception. Here, (1) ONCE KNEW: the witness testified that he once knew the recorded information (2) IMPAIRED RECOLLECTION: but could not remember the details. (3) FRESH IN MEMORY: He did not write the note, but adopted it by signature while it was fresh in his mind. (4) ACCURATE WHEN WRITTEN: The witness testified that the report was accurate when made and the agent testified she wrote the report accurately. The witness can therefore read the statement to the jury. However, only the opponent of a recorded recollection can admit the writing as an exhibit.

Under the public-records exception to the rule against hearsay, may the prosecution introduce findings resulting from an authorized investigation in a criminal case?

No. Under the public-records exception to the the rule against hearsay, the prosecution may not introduce findings resulting from an authorized investigation in a criminal case. However, these findings are admissible against the government by a defendant. This exclusion from the hearsay exception arises from the defendant's rights under the Sixth Amendment Confrontation Clause, which guarantees a criminal defendant the right to cross-examine any witnesses against him. Although the prosecution may not introduce the findings under the public-records exception, the prosecution may be able to introduce the findings through the direct testimony of an investigating officer, or other non-hearsay means.

Migrant farm workers sued their mutual employer for failure to pay wages due. At trial, the workers moved to admit a report prepared by a federal investigator. The report detailed statements made by one of the employer's foremen regarding the amount the employer paid the workers. The statements indicated that the employer underpaid the workers. The employer objected to the admission of the report, arguing that it was hearsay within hearsay. What finding(s) must the court make before admitting the report into evidence?

The court must find that both (1) the report and (2) the foreman's statement satisfy an exception or exclusion to the hearsay rule. Here, the report contains written statements from both the foreman and the investigator offered to prove the workers were underpaid. The foreman's statements could be admissible as opposing-party statements and the report itself could be admissible as a public record.

A federal agency investigated individuals who took part in Nazi-sponsored persecution during World War II (WWII). The agency filed for revocation of the defendant's naturalization. The agency alleged that the defendant's 1949 naturalization application did not disclose that he was a guard at a Nazi concentration camp. At trial, the agency moved to admit records of post-WWII interrogations of former Nazi officers, including an officer with the same name as D. The agency followed all requirements to properly authenticate the records. The agency moved to admit the records and D objected, arguing they were hearsay. The agency countered they were admissible hearsay under the exception for ancient documents. Assuming the records are hearsay, should the court admit them into evidence?

The court should admit the records into evidence. Hearsay is usually inadmissible. However, a hearsay statement in a document is admissible under the ancient-documents exception if: (1) the document was prepared before January 1, 1998 and (2) the authenticity of the document is established. This is a recent change to the rule, which previously admitted documents that were at least 20 years old if their authenticity was established. Here, the records are approximately 70 years old and were properly authenticated by the agency. Thus, the court should admit the records into evidence under both the new version and the previous version of the ancient-documents exception to the rule against hearsay.

A military flight instructor was killed in an airplane crash during training exercises. The instructor's wife sued the plane's manufacturer. At trial, the manufacturer moved to admit the military investigative report of the incident. The report included both factual findings from the legally-authorized investigation and the investigator's conclusion that the most likely cause of the accident was pilot error. The manufacturer argued that the report was admissible hearsay under the public-records exception. The wife objected that this exception only allowed admission of factual findings from a legally-authorized investigation, not opinions or conclusions based on those findings. Assuming the report meets the general definition of hearsay, how should the court rule on the motion?

The court should grant the motion because the report is admissible. Records or statements made by a public office are admissible hearsay if: (1) they set out the activities of the office, matters observed and reported because of a legal duty, or findings, opinions, and conclusions in legally-authorized investigations and (2) an opponent is unable to show a lack of trustworthiness. The language of the exception refers only to factual findings from a legally-authorized investigation. However, opinions and conclusions contained in these reports are also admissible. Here, the report was authorized by law, it originated with the military (i.e., a public office), and the wife has not shown the report lacks trustworthiness. The report, including its findings and conclusions, is admissible.

Two men were accused of robbery. After their arrest, the co-defendant told a detective, "Ok, I admit it. [D] and I robbed the bank, but it was all his idea." D and co-defendant were tried together. At trial, the prosecution asked the detective to repeat the co-defendant's statement. D objected on hearsay and Sixth Amendment grounds. The court ruled that this was a testimonial statement of an opposing party excluded from the hearsay bar, but it was admissible only against the co-defendant. She indicated her intention to issue a limiting instruction informing the jury of this limitation and held off on ruling on the Sixth Amendment objection. The co-defendant rested his case without ever taking the stand and D renewed his objection under the Sixth Amendment. How should the court rule?

The court should sustain the objection and exclude the testimonial hearsay statement as a Bruton problem. A Bruton problem occurs if a co-defendant makes a testimonial statement implicating the defendant, the defendant is tried with the co-defendant, and the co-defendant does not testify. Bruton held that, under these circumstances, the defendant's right under the confrontation clause has been violated, a limiting instruction is insufficient to cure the violation, and the prosecution cannot use the statement at trial. Here, the defendant and co-defendant were tried together, the testimonial statement implicates the defendant but is only admissible against the co-defendant, and the co-defendant did not testify. Therefore, a Sixth Amendment violation has occurred.

A wife called 911 to report that her husband (D) had become violent. When police arrived, she reported that D hit her. While still upset, she wrote an affidavit to that effect. D was later charged with assault. The wife did not appear at trial and avoided repeated attempts at service of a subpoena. At trial, the prosecutor called the police officer who spoke with the wife. He recounted the wife's statements and authenticated the affidavit. D agreed that, although the statement was hearsay, it fell under the excited-utterance exception to the rule against hearsay. However, he objected to the testimony on the grounds that it violated his right to confront his accuser under the Sixth Amendment. Assuming the court determines the statement was testimonial, how should the court rule on the objection?

The court should sustain the objection. The officer's testimony would violate the defendant's Sixth Amendment right of confrontation. To admit testimonial hearsay against a criminal defendant, the prosecutor must show: (1) the statement falls under an exception to the hearsay rule, (2) the prosecutor made a good-faith effort to make the declarant available, and (3) the defendant had a prior opportunity to cross-examine the declarant. Here, the parties agree that the declarant's testimonial hearsay falls under the excited-utterance exception to the hearsay rule. The prosecutor made a good-faith effort to make the declarant available by repeatedly trying to serve her with a subpoena. However, D has never had the chance to cross-examine the wife in court.

A landlord intimidated and harassed his tenants and their child for over a year. The tenants brought a claim for intentional infliction of emotional distress. At trial, the tenants called a family therapist, who provided counseling for the child, to testify regarding the extreme emotional distress the child experienced. According to the therapist's testimony, the child claimed to have recurring nightmares that the landlord was going to hurt him. The therapist was not licensed to practice medicine. Is the therapist's testimony about the child's statement admissible?

Yes. A hearsay statement made for medical treatment or diagnosis is admissible if it: (1) describes past or present symptoms, the cause or inception of the symptoms, or the declarant's medical history and (2) is made for, and reasonably pertinent to, medical diagnosis or treatment. The statement does not need to be made to a doctor; it can be made to any person. Here, the child's statement to a family therapist described nightmares about the landlord, which contributed to the child's emotional symptoms. This, in turn, made the statement pertinent to treatment.

Is a record made by someone other than the witness admissible as a recorded recollection?

Yes. A record made by someone other than the witness is admissible as a recorded recollection if the witness adopted the record while the subject matter was fresh in the witness's mind. A recorded recollection can be introduced if: (1) ONCE KNEW: the witness once knew the recorded information (2) IMPAIRED RECOLLECTION: but cannot recall it well enough to testify fully and accurately, (3) FRESH IN MEMORY: the record was made or adopted by the witness when the matter was fresh in the witness's memory, and (4) ACCURATE WHEN WRITTEN: the record accurately reflects the witness's knowledge at the time it was made.

Is a record of a birth, death, or marriage admissible if it is reported to a public office in accordance with a legal duty?

Yes. A record of a birth, death, or marriage is admissible if it is reported to a public office in accordance with a legal duty. This is an explicit exception to the rule against hearsay, which excludes out of court statements offered to prove the truth of the matter asserted.

Is a recorded recollection admissible despite the hearsay bar?

Yes. A recorded recollection, also known as a past recollection recorded, is admissible despite the hearsay bar. Although a writing made outside of court is hearsay if offered for the truth of the matter asserted in it, a witness can read a recorded recollection to the jury if: (1) ONCE KNEW: the witness once knew the recorded information (2) IMPAIRED RECOLLECTION: but cannot recall it well enough to testify fully and accurately, (3) FRESH IN MEMORY: the record was made or adopted by the witness when the matter was fresh in the witness's memory, and (4) ACCURATE WHEN WRITTEN: the record accurately reflects the witness's knowledge at the time it was made. The proponent cannot offer the record itself as an exhibit. However, an adverse party can offer the record as an exhibit.

Can a hearsay statement be nonverbal?

Yes. A statement for purposes of the hearsay rule can be any oral, written, or nonverbal conduct the declarant intended to be an assertion. An assertion is an attempt to express or communicate ideas or information. Almost all oral and written words are intended to be assertions, as are many nonverbal actions. A person who shakes his or her head yes or no in response to a question has made a nonverbal assertion. Likewise, a person who, when asked, "Do you see the person who attacked you?" points to another person has made a nonverbal assertion.

Is a statement made against a party by the party's co-conspirator during the conspiracy exempted from the rule against hearsay?

Yes. A statement made against a party by the party's co-conspirator, (1) during and (2) in furtherance of the conspiracy, qualifies as a statement of a party opponent and is, therefore, exempted from the rule against hearsay. The party seeking to introduce a statement under this exemption must independently establish, by a preponderance of the evidence, the existence of the conspiracy or the party's participation in it. Such a statement is admissible in both criminal and civil cases, even if the party is not charged with a conspiracy. Also, the proponent of the statement does not need to establish the declarant's personal knowledge. This exemption does not apply to statements made by one party against a mere co-party when the co-party is not a co-conspirator.

Is a statement made by an opposing party excluded from the rule against hearsay only if a prior out-of-court statement is being offered against the party who made the statement?

Yes. A statement made by an opposing party is only excluded from the rule against hearsay if a prior out-of-court statement is being offered against the party who made the statement, not on behalf of a party who made the statement. A prosecutor could admit prior out-of-court inculpatory statements made by the defendant, but the defendant could not admit his own prior out-of-court exculpatory statements.

May a statement made for purposes of receiving medical diagnosis or treatment be admissible?

Yes. A statement made for purposes of receiving medical diagnosis or treatment is admissible if (1) PERTINENT: it is reasonably pertinent to such treatment and (2) PAST OR PRESENT SYMPTOMS: describes medical history, past or present symptoms or sensation, the symptoms' inception, or the symptoms' general cause. Such a statement is reliable because a person making a statement for the purpose of receiving medical treatment is unlikely to lie. The statement does not need to be made to a medical professional to be admissible, nor does the statement need to be made by the person needing treatment. Because this exception covers both present and past symptoms, it is broader than the state-of-mind exception, which only covers present conditions. This exception does not cover statements made by a medical professional to a patient, nor statements ascribing specific blame, unless the statements relate to sexual abuse.

D forcibly took a victim from the victim's home. Four hours later, D locked the victim and a cellmate inside a makeshift prison cell. The victim, shaking and crying, told his cellmate that he had been beaten, burned, interrogated, and threatened with death. At trial, the prosecutor called the victim to testify. She also called the victim's cellmate and asked, "What did the victim tell you happened after he was kidnapped?" Assuming the victim's statements are hearsay, are they admissible under an exclusion or exception?

Yes. Although the victim's statements to his cellmate are hearsay, they are admissible as excited utterances. Here, (1) the kidnapping and torture were startling events. (2) The declarant was still shaking and crying, which indicates that he was under the stress of the event. (3) Finally, the statement directly relates to the event.

The day after a snowstorm P slipped on the sidewalk in front of the D's house and broke his ankle. After falling, P looked up and noticed a note taped to D's mailbox. It said, "Please shovel your walk! It has become icy and is dangerous to pedestrians like me!" P sued the defendant for negligence, alleging that the defendant did not shovel and salt her sidewalk the day of the slip. D alleged that the sidewalk was clear on the day of the slip. The plaintiff sought to introduce the note left on the defendant's mailbox. Is the note hearsay?

Yes. Hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted in the statement. Here, the written statement was made outside of court, by someone who is not currently testifying, i.e., the declarant, and offered as evidence. The statement asserts that there was ice on the defendant's sidewalk. The plaintiff is offering the statement in order to prove that there was ice on the defendant's sidewalk. The statement is being used to prove the truth of the matter asserted in the statement and is hearsay. Thus, the court should sustain the objection.

Are hearsay statements describing a state of mind or an emotional or physical condition generally admissible (then-existing state-of-mind exception)?

Yes. Hearsay statements describing an emotional or physical condition are generally admissible. The state-of-mind exception admits statements describing the declarant's then-existing state of mind, emotional condition, sensory condition, or physical condition. Thus, a declarant's statement regarding his or her current motive, intent, plan, pain, sensation, mental health, or physical health is admissible under the state-of-mind exception. It CANNOT relate to a past or remembered state of mind.

Are hearsay statements describing a then-existing intent or plan admissible to prove subsequent acts?

Yes. Hearsay statements describing an intent or plan are admissible to prove subsequent acts. A declarant's hearsay statement regarding then-existing intent or plan is admissible to show that the declarant later acted in accordance with that intent or plan. Thus, a deceased declarant's hearsay statement that the declarant planned to leave town with another person is admissible both to show that the declarant planned to leave town and to show that the declarant left as planned.

Can hearsay statements regarding the declarant's present physical or emotional state or symptoms be admissible under more than one hearsay exception?

Yes. Hearsay statements regarding the declarant's present physical or emotional state or symptoms are admissible under at least two separate hearsay exceptions. (1) THEN-EXISTING STATE OF MIND: A declarant's hearsay statements describing the declarant's current state of mind, emotional condition, sensory condition, or physical condition are admissible to prove the state of mind or condition, regardless to whom the statement was made. (2) MEDICAL DIAGNOSIS: Hearsay statements describing past or present symptoms, the cause or inception of the symptoms, or the declarant's medical history are admissible if made for, and reasonably pertinent to, medical diagnosis or treatment.

Are records concerning personal or family history admissible as an exception to the rule against hearsay?

Yes. Regularly kept religious records concerning birth, legitimacy, ancestry, marriage, divorce, death, and similar facts of personal or family history are admissible. Similarly, statements of fact contained in certificates from religious ceremonies or in family records are admissible. Despite being hearsay, these statements are considered trustworthy because it is unlikely that a family would permit false records about the family to be maintained.

Is the absence of a matter from a business record admissible under the business-records exception to the rule against hearsay?

Yes. The absence of a matter from a business record is admissible under the business-records exception to the rule against hearsay. The absence of a matter may, therefore, be used as evidence of the matter's nonexistence if it would ordinarily have been contained in the record.

Is the absence of a public record admissible to prove that a particular matter did not occur?

Yes. The absence of a public record is admissible to prove that a particular matter did not occur. Testimony or a certification that a diligent search failed to disclose a public record is admissible to prove that (1) the record does not exist or (2) a matter did not occur, if the public office regularly kept records for matters of that kind. This exception is similar to the exception that permits the admission of the absence of a business record. If the prosecution in a criminal case intends to use a certification, rather than testimony, to prove the record's absence, it must provide written notice 14 days in advance of trial so the defendant can object to the use of the certification.

A prisoner was beaten and maced by prison guards. The prisoner brought a civil-rights claim against prison officials. At trial, the prisoner called a prison administrator. The administrator testified that one of the officers involved made a report of the incident, officers regularly wrote incident reports, the prison administration reviewed the reports, and the reports were always filed and kept for the duration of the prisoner's sentence. The prisoner acknowledged that the report was hearsay but moved to admit it as a business record. The prison officials agreed that all requirements for the business-records exception were met, but argued that the exception did not apply because the prison was run by a governmental entity and not a business. Should the court admit the report under the business records exception?

Yes. The court should admit the report under the business-records exception. The exception applies to any group or entity with organized, routine activities. These include companies, non-profits, schools, hospitals, churches, charities, political parties, labor associations, private clubs or organizations, government entities, and even illegal enterprises. Thus, the record is admissible.

A child suffered brain damage after receiving a vaccine. The child's parents sued the vaccine manufacturer. At trial, the manufacturer called a pediatric neurologist whom the court qualified as an expert. The neurologist testified that, in her opinion, the child's brain damage resulted from a stroke that occurred before the vaccine. The neurologist also testified that an article in a medical journal was reliable authority on the causes of pediatric strokes. The neurologist testified that she consulted the article in preparing her testimony. The manufacturer moved to admit the article as substantive evidence. The parents objected that the article was hearsay. Assuming the article meets the general definition of hearsay, should the court allow the article to be used as substantive evidence?

Yes. The court should allow the article to be used as substantive evidence. A learned treatise can be used as substantive evidence if: (1) the proponent shows that it is reliable authority, (2) an expert is testifying, and (3) the expert either relies on it during direct examination or it is called to the expert's attention on cross-examination. A proponent can show that the learned treatise is reliable authority by the expert's admission, the testimony of another expert, stipulation, or judicial notice. Here, an expert testified, and the expert stated that the article was a reliable authority that the expert relied upon. The article can be read into the record, but the jury cannot take the article into deliberations.

The defendant was charged with possession of cocaine. He was released on bail on the condition that he appear in court as ordered. The defendant later failed to appear in court as ordered and was charged with failing to appear. At trial, the prosecutor moved to admit a certified copy of the order setting the conditions of the defendant's release. The prosecution argued that the document was admissible under the public-records exception to the rule against hearsay. The defendant objected that the document did not set out the activities of a public office, as required by the public-records exception. Assuming the document met the general definition of hearsay, should the court overrule the objection objection?

Yes. The court should overrule the objection. Unless an opponent shows a lack of trustworthiness, a record or statement made by a public office is admissible if it sets out: (1) activities of the office; (2) matters observed and reported under a legal duty; or (3) findings, opinions, and conclusions in legally-authorized investigations. Records and statements regarding matters observed by law enforcement and investigative findings are not admissible if offered against a defendant in a criminal case. However, records that set out the activities of a public office can be offered against a criminal defendant. Here, the order sets out the activities of a public office, i.e., the court. Further, the defendant has not shown the order lacks trustworthiness. Thus, the order is admissible and the court should overrule the objection.

A city hired a contractor to install a water line. The contractor found the work more difficult than expected. The contractor sued the city for rescission of the contract and restitution for expenses. While the litigation was pending, the company assigned its right to restitution to a creditor. At the rescission trial, the city called its accountant. The defendant cross-examined the accountant and attempted to impeach her testimony. The contractor won. The creditor then sued for restitution. During the restitution trial, the accountant became gravely ill and was unable to travel to the trial. The city asked the court to admit the transcript of the accountant's testimony from the first trial under the former-testimony hearsay exception. The creditor objected, arguing that the exception would only apply if the creditor had been a party to the first trial. Is the transcript admissible?

Yes. The transcript is admissible. In a civil case, it suffices if a predecessor in interest, rather than the current party, had the opportunity and similar motive. Here, (1) the declarant is unavailable due to illness. (2) Her prior testimony was given at trial and (3) the contractor was the creditor's predecessor in interest. The contractor had the opportunity and motive to cross-examine the accountant and impeach her testimony at the first trial.

What are four exceptions to the hearsay rule that require that the out-of-court declarant be unavailable to testify in order for the exception to apply?

Yes. There are four exceptions to the hearsay rule that require that the out-of-court declarant be unavailable to testify in order for the exception to apply: (1) former testimony, (2) dying declarations, (3) statements against interest, and (4) statements of personal history. These exceptions cover statements that are not as trustworthy as present testimony, but given the declarant's unavailability, are better than having no evidence at all.

Is there any notice requirement for using the residual hearsay exception at trial?

Yes. There is a notice requirement for using the residual hearsay exception at trial. The party intending to use the residual hearsay exception must give reasonable, advance notice before trial to the adverse party. The notice must include the details of the statement and the declarant's name and address.

Are there any out-of-court statements that, despite meeting the definition of hearsay, are specifically exempted from the definition?

Yes. These include: (1) DECLARANT-WITNESS: Certain prior statements (inconsistent, consistent, prior identification) of a declarant-witness, which are exempted because the declarant-witness is at trial and able to be cross-examined about the prior statement; and (2) PARTY OPPONENT: Certain statements of a party opponent, which are exempted because the party has the opportunity to explain, clarify, or diminish the importance of the statement at trial.

When a hearsay statement or a statement exempted from the definition of hearsay is admitted into evidence, may the declarant's credibility be attacked?

Yes. When a hearsay statement or a statement exempted from the definition of hearsay is admitted into evidence, the declarant's credibility may be attacked by any evidence that would be admissible for those purposes had the declarant testified at trial (e.g., impeachment). This is also true for rehabilitating a declarant's credibility after it has been attacked.