1. Explain the rationale for excluding evidence under the hearsay rule. What is the hearsay rule? Define the following terms as they are used in relation to the admission of hearsay evidence: statement, declarant, hearsay, statements that are not hearsay. Give some examples of statements that are not hearsay. (§§12.1, 12.2)
2. What is the relationship between the history of the hearsay rule and the history of the trial by jury? (§12.3)
3. What four reasons are advanced as to why hearsay evidence should not be admitted? What is the rationale for allowing some hearsay evidence to be admitted? (§§12.1, 12.4)
4. Explain how the “spontaneous or excited utterance” operates. Why should a spontaneous utterance be believed as truthful? (§12.5)
5. State the four requirements that must be met if a spontaneous utterance is to be admitted as an exception to the rule. Give some examples. What part does time play in determining whether a statement is spontaneous? Does this apply if statements are made to police officers? (§12.5)
6. Why are business and public records usually admitted even though the person who originally made the records is not present? Give some examples of reports that are admissible under the exception. (§12.6)
7. What is the basis for the family history (pedigree) exception to the rule? Give some examples. (§12.7)
8. What is the rationale for admitting “former testimony” as an exception to the hearsay rule? Is it really hearsay by the definition? (§12.8)
9. Under what conditions may evidence relating to testimony given at a former trial be admitted into court? Who has the burden of proof to show that a witness is unavailable? What is the “unavailability” test? (§12.8)
10. What is a dying declaration? Must a declarant state that he or she is aware of imminent death before the statement is admissible? In what type of case is a dying declaration admissible? Are such statements admitted if elicited by questions? (§12.9)
11. Why are declarations against the interests of the declarant admissible as exceptions to the hearsay rule? Give some examples. (§12.10)
12. What is the rationale for allowing some confessions into evidence even though the confessions are hearsay? Are confessions reliable as hearsay exceptions? Does the defendant have a real complaint when the defendant made the confession? (§12.10)
13. What are “residual” exceptions to the hearsay rule? What inquiries are made to determine their admissibility? Explain their application. (§12.11)
14. When the physical or mental state of a person is to be proved, declarations of another that are indicative of the declarant’s physical or mental state are admitted. Are such statements hearsay? For what purpose are such statements admitted? Discuss. Distinguish between out-of-court statements offered to prove the matter asserted and statements that are not hearsay. (§12.12)
15. In Bell v. Florida, the victim of an attempted kidnapping at gunpoint stated that she was walking along the street during the daytime when the defendant twice drove up to her in his van and offered to give her a ride to her destination. The defendant changed his location and accosted her by grabbing her around the neck, holding a gun to her head, and attempted to force her into his vehicle. When she broke free and ran into traffic, she pounded on cars and asked for help in getting away. The defendant, while standing nearby, pointed his gun in her direction and threatened to shoot her. When she managed to call police and talk to them at her residence, she was barely able to speak coherently. When she told her story to police, they remembered it sufficiently to testify about it at his trial. The defendant argued that the victim's statements failed to meet the excited utterance test because there was a time delay of approximately 50 minutes between the time of the incident and the time the victim became calm enough to speak. According to the defendant, this was sufficient time for the victim to contrive or misrepresent. What are the general requirements for the application of the excited utterance exception? Would the victim have had time for reason to return if it took 50 minutes for her to become coherent? Did the court approve of the admission of an excited utterance exception in this case? Do you agree with the court’s decision? Why or why not? (Bell v. Florida, Part II)
16. Federal Rule of Evidence 801(d)(1)(B) provides that a witness’s prior statements are not hearsay if they are consistent with the witness’s testimony and offered to rebut a charge against the witness of “recent fabrication or improper influence or motive.” In Tome v. United States, the defendant was convicted of sexual abuse of his daughter. The government claimed that the assault was committed while the defendant had custody of the child. The defendant countered that the allegations were concocted so the child would not be returned to him. The government presented six witnesses who recounted out-of-court statements made by the child after the charged fabrication. Does the rule permit introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication if the statements were made after the charged fabrication? Does the federal rule, as interpreted, differ from the common law rule? What was the decision of the court in this case? (Tome v. United States, Part II)
17. Upon responding to a domestic dispute radio call in Cox v. Indiana, officers observed defendant Cox standing in front of an apartment building talking to another police officer. One deputy found Cox’s girlfriend inside an apartment building. He noticed that she was crying and shaking and appeared to be very upset. The officer also noticed that she was talking very quickly and showed signs of a fresh injury, including a cut above her eye that was bleeding; her left eye was swollen; and she was holding an ice pack to her eye. Additionally, she had marks on her neck that appeared to have been caused by someone grabbing her on the neck. Cox contended on appeal that the hearsay testimony of the deputy who told the court some of what the girlfriend told him while she was upset should have been ruled as inadmissible because it failed to fit into any hearsay exception and because his girlfriend did not appear as a witness at the trial. Cox also contended that, if the testimony fell under the excited utterance exception, the prosecution failed to lay a proper foundation for the evidence. Should the appellate court reverse the case because the excited utterance exception did not apply in this context? Why or why not? Did it seem that there was there a sufficiently startling event? How long would it take for a person who has just been beaten by her boyfriend to calm down? Did the evidence in the case indicate that she had returned to rational thought and contemplation? What kind of foundation for a spontaneous utterance could be made in this case? (Cox v. Indiana, Part II)
18. In the case of Morgan v. Georgia, the defendant, Morgan, and the deceased were visiting Morgan’s girlfriend at her home. When Morgan and the soon-to-be-deceased began to argue over Morgan’s rough treatment of his girlfriend, Morgan shot the other man. At the hospital, the victim told police that Morgan shot him and detailed the circumstances under which he had received the gunshot wounds. At the hospital, the victim told a police officer that Morgan "just shot me" and "we weren't fighting." The officer who took the statement testified that the victim exhibited great pain and asked the officer "if he was going to die." The officer told him that he was not going to die and that the doctor was working on him. Morgan contended that this testimony shows that the victim was not conscious of imminent death, and for that reason, the trial court erroneously admitted the victim's statement to police as a dying declaration. Was the victim conscious of his impending death? Was the victim unavailable to testify at trial? Does it make any difference that the deceased may not have stated clearly that he knew he was going to die? Did the victim have any motivation for lying to the police at the hospital? Is this a close case for the court to determine? Would you have ruled the same way as the appellate court? Why? (Morgan v. Georgia, Part II).
19. In the case of Michigan v. Washington, the defendant and an accomplice
were convicted of armed robbery and assault with intent to do great bodily harm.
Police stopped the two men for routine questioning. Later, they heard a radio
report of a robbery and shooting. One of the men they stopped blurted out that
he was the shooter. He was later identified as the shooter. Because the confessing
partner was tried separately, the judge allowed his statement to be admitted
in evidence against his partner, Washington, as a declaration against interest.
Washington appealed his conviction, contending that the admission of his accomplice’s
declaration against interest should not have been used against him. How did
the appellate court rule? What rationale did it use in making its decision?
Were there sufficient guarantees of trustworthiness to allow the evidence to
be admitted as an exception to the hearsay rule? Would you have ruled the same
way as the appellate court? Why? (Michigan v. Washington, Part II).