Don't let hearsay haunt your bar prep! "Evidence - Hearsay, Part 2," the latest deep dive from your "Study for the Bar in Your Car" podcast, masterfully unravels complex exceptions and crucial constitutional challenges. Join your AI guides, Claude and Ma, as we build on our foundational hearsay discussion, drawing directly from Angela’s comprehensive notes.
This episode dives into Rule 803 hearsay exceptions, where declarant availability doesn't matter:
- Past Recollection Recorded (Rule 803(5)): When a witness can't remember, the record itself, if made when memory was fresh and accurate, can be read into evidence. This differs critically from merely refreshing recollection.
- Business Records (Rule 803(6)): Learn the elements for these litigation workhorses, stressing the "business duty" requirement for information sources and how to navigate hearsay within hearsay in records like police reports. Foundation can be laid by a custodian or certification.
- Public Records and Reports (Rule 803(8)): Similar principles apply, but beware of specific exclusions for police observations against criminal defendants.
- Learned Treatises (Rule 803(18)): Authoritative works are admissible if used with an expert, but passages are "read into evidence," not received as an exhibit for the jury. This is a classic exam trap.
Next, we explore Rule 804 exceptions, which require the declarant to be unavailable:
- Former Testimony (Rule 804(b)(1)): Prior sworn testimony is admissible if the opposing party (or predecessor in civil cases) had an opportunity and similar motive to develop it previously.
- Dying Declarations (Rule 804(b)(2)): Statements made while believing death is imminent, concerning its cause or circumstances, are admissible in homicide and all civil cases. Critically, the declarant doesn't have to die.
- Statements Against Interest (Rule 804(b)(3)): Distinguished from party admissions, these require the statement to be against the declarant's pecuniary, proprietary, or penal interest when made, with corroboration for penal interest in criminal cases.
Finally, we confront the Confrontation Clause (Sixth Amendment), applicable only in criminal cases. We demystify the "testimonial" versus "non-testimonial" distinction, applying the "primary purpose test" (e.g., ongoing emergency vs. creating prosecution evidence). Forensic reports, for instance, are often testimonial.
Mastering these concepts is crucial for the bar exam. Don't confuse refreshing recollection with past recollection recorded, or the Best Evidence Rule's application to proving contents.
Tune in to "Study for the Bar in Your Car" and solidify your evidence knowledge. Don't just "blah, blah, blah" through hearsay – get the in-depth understanding needed to ace your exam!
