Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/46

Click to flip

46 Cards in this Set

  • Front
  • Back
Prosecution of D for killing V. On the issue of D’s fear of V, W1 testifes that he heard W2 say to D, “V has knifed three people in the last year.”
Not Hearsay;
D’s state of mind.
Prosecution of D for killing V. W1 testifies that he heard W2 say to D, “V has knifed three people in the last year.” If issue is whether V or D was the aggressor.
Hearsay if offered to prove V was the aggressor; Not Hearsay if offered to prove D was the aggressor (again goes to D’s state of mind).

No Exception.
On the issue, whether P and D are bound by a contract, W testifies to D’s statement to P, “I accept your offer.”
Not Hearsay; Operative Fact
Action P v. D for injuries sustained when P fell through termite-eaten boards on D’s porch.
(a) to prove that P was involved in such an accident, P offers the testimony of W: “D said that when he got home from work he heard that P had gone through the porch and that he thought it was too bad.”
In CA, this would be hearsay, but admissible under Admissions exception. Under FRE, it would nonhearsay. Another exception that might get this statement in would be an adoptive admission b/c of the “thought it was too bad” clause, but would probably be too ambiguous to be seen as a full fledged adoptive admission.
Action P v. D for injuries sustained when P fell through termite-eaten boards on D’s porch.(b) to prove that P was involved in such an accident, P offers the testimony of W that N, a neighbor who had been on the porch with P, came rushing across the lawn shouting to D, “P has fallen through your porch.”
Hearsay;
Exception: Excited Utterance.
Action P v. D for injuries sustained when P fell through termite-eaten boards on D’s porch.; (c) to rebut evidence by D that he had no knowledge of P’s alleged accident until 18 months after if was supposed to have occurred, P offers the testimony in 80.
Not Hearsay.

Issue is whether D heard N’s statement. Thus the relevance is whether the statement was made and not what was said.

This is like a notice question – when a statement is merely offered to show notice to the listener, they are not hearsay.
Action P v. D for injuries sustained when P fell through termite-eaten boards on D’s porch.; (d) to prove that P was involved in such an accident, P offers the transcript of D’s testimony in prior litigation between him and his insurance company: “The boards on the porch were so weak that P went right through them.”
a. Statement 1: D’s statement itself--
i. Hearsay, but will likely get in under
ii. Admission exception.
b. Statement 2: transcript of previous trial containing D’s statement.
i. Hearsay, but will likely get in under
ii. Business Records
(1) Record was made during regular course of business.
(2) A certified copy of a trial transcript, it can typically be brought in without bringing in the court reporter. If not a certified copy, then the court reporter would have to come to court and read it into the new record via the Past Recollection Recorded exception.
Action P v. D for injuries sustained when P fell through termite-eaten boards on D’s porch.
P offers the testimony of W: “D said that when he got home from work he heard that P had gone through the porch and that he thought it was too bad.” except that W is dead and P is offering a transcript of W’s testimony, to the indicated effect, given in a prior trial of the same cause.
a. Three out-of-court Statements
i. D’s Statement itself
(1) Hearsay
(2) Admission exception (or nonhearsay under FRE)
ii. W’s former trial testimony:
(1) Hearsay
(2) Former testimony (unavailable, under oath, opportunity to x-exam)
iii. Trial Transcript
(1) Hearsay
(2) Business Records.
As tending to show that D had a revolver in his possession, the state offers the testimony of W that, as D passed W’s house, W called her husband’s attention to a revolver sticking out of D’s pocket.
a. Hearsay
b. Present Sense Impression
c. In CA, under contemporaneous statement, there would be a problem b/c it only covers the declarant’s own conduct, not the conduct of others. And here, she’s describing D’s conduct, not hers. So, not admissible in CA unless you could argue Excited Utterance if the circumstances lead to the conclusion that this was an exciting event. You’d probably have to add a few facts, though, to get it in.
On the issue whether P’s decedent (V) was still alive after his car was struck by the first of two cars, W (who was in V’s car with V) testifies that, before the second car struck, V said, “My head hurts.”
a. Not Hearsay.
b. Relevance does not depend on whether the statement is true. The fact that it was uttered at all is enough. Just like Murdoch.
On the issue of the existence of injuries to V’s head caused by the first car, the testimony in 85: before the second car struck, V said, “My head hurts.”
a. Hearsay.
b. State of Mind Exception. (then existing physical condition or state of mind). Probably not admissible at common law, but admissible under fed and CA.
On the issue of the sanity of D, a woman, W testifies that D on numerous occasions said publicly, “I am the Pope.”
a. Not Hearsay.
b. State of Mind.
On the issue of D’s guilt of the crime of killing V, W testifies that D told him that he (D) fled the scene immediately after V’s murder.
a. Hearsay.
b. Admission. (FRE)
c. It’s not that he ran away, it’s his description of him running away. If he didn’t say it, then it wouldn’t be hearsay.
d. Admission means that a person at the time makes a statement, and later at trial, the other party is offering the statement against him.
On the issue of X’s sanity, W testifies that X was confined to an insane asylum.
a. Not Hearsay.
b. Non-assertive conduct.
On the issue whether a transfer of a fountain pen from D to P was a sale or gift, P testifies that D made a statement accompanying the transfer, “I am giving you this pen as a birthday gift.”
a. Not Hearsay
b. Operative Fact.
On the issue whether a transfer of a fountain pen from D to P was a sale or gift, P testifies that D, the day following the transfer, said “I gave you the pen as a birthday present.”
a. Hearsay
b. Admission by party opponent.
On the issue whether a transfer of a fountain pen from D to P was a sale or gift, P testifies that D, the day before the transfer, said “I plan to give you the pen as a birthday gift.”
a. Hearsay.
b. Admission by party opponent. Also, may get in under state of mind exception (plan, intent, etc.) especially if it was not an admission by a party opponent. But under the facts here, it easily comes in under the admission exception.
On the issue of P’s having cancer, N testifies for D that E, a doctor, gave P X-Ray treatments.
a. Not Hearsay.
b. Non-assertive conduct.
On the issue of P’s having cancer, N testifies that she heard E tell P that P had cancer.
a. Hearsay.
b. None. doesn’t fit in Physical Condition b/c not made for purpose of obtaining diagnosis. This is a statement of a diagnosis, so it doesn’t fall within the exception.
On the issue of P’s having cancer, instead of using N’s testimony, D offers in evidence the hospital record containing a notation made by E to the effect that he had found a malignant tumor.
a. Hearsay.
b. Business Records.
On the issue of P’s having cancer, instead of using N’s testimony, D offers in evidence the hospital record containing a notation made by E to the effect that he had found a malignant tumor. Same as 96 except that the hospital record contains a notation by the hospital receptionist to the effect that P, on entering the hospital, said that he had “a cancerous tumor.”
a. Two Statements
i. P’s statement “I have a cancerous tumor”
(1) Hearsay.
(2) Admission by party opponent
ii. Hospital Record
(1) Hearsay
(2) Business record.
On the issue of X’s good eyesight, W testifies that Y, X’s commanding officer, assigned X to the position of lookout on the ship.
a. Not Hearsay.
b. Non-assertive conduct.
Action P v. D. On the issue of P’s knowledge that D was in the city, D offers X’s testimony that Z said to P, “D is in the city.”
a. Not Hearsay
b. Not offered to prove that D was in the city.
Action P v. D. D offers X’s testimony that Z said to P, “D is in the city.” offered to prove that D was in the city.
a. Hearsay.
b. None. Except maybe Admission by Silence if D did not respond.
Action P v. D. To prove that D was present in the city, D offers W’s testimony that P said, “I know that D is in the city.”
a. Hearsay.
b. Admission by party opponent (P).
On the issue of witness W1's hostility toward D, W2 testifies for D that W1 said to D in an angry tone, while D remained silent, “Well, at least I’ve never stolen money from my employer like you have!”
a. Not Hearsay.
On the issue of D’s stealing money from his employer, W2 testifies for D that W1 said to D in an angry tone, while D remained silent, “Well, at least I’ve never stolen money from my employer like you have!”
a. Hearsay.
b. Adoptive Admission (by Silence.)
To prove the license number of the car involved in a hit and run accident, P offers a crumpled slip of paper on which appears the number EE2468 and the testimony of a woman that, though she cannot now recall the number of the car, she did, while the number was fresh in her mind, write the number down on the piece of paper offered in evidence.
a. Hearsay.
b. Past Recollection Recorded.
To prove the license number of the car involved in a hit and run accident, P offers a photograph of a retreating automobile bearing the license plate EE2468 and the testimony of a woman that, though she cannot now remember the number of the car, she did know it at the time and that she took the photograph offered in evidence of the accident car as it left the scene.
a. Not Hearsay
b. Photograph is not a statement.
On the issue of the speed of a locomotive, P introduces the tape printed by the automatic speed-recording device in the train.
a. Not Hearsay.
b. Mechanical Device.
On the issue of D’s guilt of a crime, P offers a moving picture of D re-enacting the crime.
a. Hearsay.
b. Although the Movie is not a statement, b/c the D is acting out the crime, it is an assertion of how the crime took place, and would be admissible under Admission by Party Opponent.
On the issue of the voluntariness of D’s confession, P offers a moving picture of D re-enacting the crime.
a. Not Hearsay
b. State of Mind of D.
On the issue of D’s good faith in discharging X, an employee W testifies that the police chief told D that X had been caught burglarizing a store (we will assume that W testifies he was there and heard the police chief tell the D about X.).
a. Not Hearsay.
b. If true, it’s only proving that X was caught burglarzing a store, not that D had good faith in discharging him.
On the issue of D’s good faith in discharging X, an employee D testifies that W told him (D) that the police chief told W that X had been caught burglarizing a store.
a. Non-Hearsay
b. D is testifying that W told him that the police chief told W that X had been caught burglarizing a store. It’s merely being offered to show the impact of the state of mind on the listener, the D.
On the issue of D’s good faith in discharging X, an employee, W testifies that the police chief told W that he (the police chief) had told D that X had been caught burglarizing a store.
a. Hearsay.
b. Statement must be true to prove that D heard about X’s crime. Also, W does not have any first hand knowledge that some one told D this statement. In the preceding questions, the Witness was present when the statement was made.
Action P v. D. W1 testifies for P that D’s car was going “over 50 miles an hour.” To impeach W1, D offers the testimony of W2 that W1 said a day after the accident that D was going “slow.”
a. Not Hearsay.
b. Prior Inconsistent Statement. Thus the prior statement is relevant for impeachment purposes.
c. Under Fed, prior inconsistent statements are admissible only to impeach.
Action P v. D. W1 testifies for P that D’s car was going “over 50 miles an hour.” D offers the testimony of W2 that W1 said a day after the accident that D was going “slow.” If offered by D to prove that D was going slowly.
a. Hearsay.
b. None. Unless the statement “D was going slow” was made under oath.
Action P v. D. W1 testifies for P that D’s car was going “over 50 miles an hour.” W2 is a police officer with no present recollection of W1's statement, so D offers the officer’s W2's accident report, made up the day after the accident, containing the alleged W1 statement.
a. Hearsay – Two Statements
i. Accident Report in under Business Records exception
b. W1's statement in under Past Recollection Recorded. (but only read into the record).
To prove that X was ill, W testifies that X, at the time, complained of a pain in his chest.
a. Hearsay.
b. State of Mind (bodily feelings, pain, etc.)
Action P v. D for $800, the price of a used automobile. Plea, payment. On the issue of payment, W testifies that he saw D hand P $800 in cash and say, “This is the payment for that car.”
a. Non-Hearsay
Action P v. D for conversion of new automobile. To prove value, P offers a receipt for the purchase price, $3000, signed by X, the dealer from whom P bought it.
a. Hearsay – Receipts are descriptions of the contract after the fact.
b. None.
Action P v. D for conversion of new automobile. To prove value, P offers a receipt for the purchase price, $3000, signed by D.
a. Hearsay
b. Admission by party opponent (P is offering it against D)
Action for personal injuries by a guest in an automobile against the owner. On the issue of contributory negligence and assumption of risk, W testifies that an hour before the accident, a mechanic said to the owner in the presence of the guest, “The spindle on that front wheel may break at any moment.”
a. Not Hearsay.
b. B/C it goes to the state of mind of the listener who is assuming the risk – they’ve been put on notice and thus here the guest has knowledge of the possible danger.
Action for personal injuries by a guest in an automobile against the owner. W testifies that an hour before the accident, a mechanic said to the owner in the presence of the guest, “The spindle on that front wheel may break at any moment.” If offered to show that the spindle was defective.
a. Hearsay.
b. Present Sense Impression. But in CA, where we don’t have present sense impression, it could possibly get in under Adoptive Admission – would a reasonable person under these circumstances, even the passenger, respond when confronted with the fact that they’re being told that the car they’re about to get into has a defective spindle. But there’s an open question about whether a reasonable person really would respond to this type of statement.
As tending to prove title to Blackacre in D by adverse possession under claim of title, D offers the testimony of W that P said to his sister, “I’ve been down to the town meeting, and D is telling everyone that he owns Blackacre.”
a. Two Statements:
i. D: “I own Blackacre”
(1) Not Hearsay b/c of state of mind.
ii. P: “I’ve been down to the town meeting and D . . .”
(1) Hearsay
(2) Admission by party opponent.
Action P v. D. To prove that A was an agent of D’s, P offers the testimony of W that A said, “I am an agent of D’s.”
a. Hearsay.
b. None. Although Admission of Authority (vicarious liablity) seems like a plausible argument, it doesn’t apply b/c with no other evidence, this would be circular logic – in CA you can’t use the statement to prove the statement.