old_soul wrote:For anyone who has a good handle on Evidence/Hearsay -- can you please explain the process you take to get to an answer that is "Hearsay, not within any exception"? -- sorry if it sounds too obvious.
Here's what I do:
~First, is it being offered to prove something other than the truth of the matter asserted. If it's trying to prove notice or ownership or something -- not hearsay at all.
~If it's offered for its truth "Suzie ran the red light" -- it's hearsay (probably...tricky to know what's "HS with an exception" and "admissible nonhearsay"...I don't think this has really come up on the sets yet or me--just know the distinctions).
~Next ask: statement of a party opponent? If so, see it applies. If not, keep going.
~Now, ask, "Is the declarant unavailable?" If so--then go to "must be unavailable" hearsay exceptions. If the declarant IS available, none of those apply...keep looking!
~If you've gotten this far you definitely have hearsay, but an exception COULD apply. Run through all the exceptions where the declarant is available (previous identification? Excited utterance? Present state? etc.).. If none of those apply, it's HS without an exception!
Here's another trick: USUALLY, when the answer is "hearsay without an exception," they'll give you some facts which might trick people into thinking it falls into one of the exceptions. Once you know the rules well, you can usually spot the trick immediately, and then it's far more likely to be "without an exception." For example if June the declarant said, "I'm dying! Johnny did it!" they're really asking about the Dying Declaration. But if you know that to use DD the declarant must be unavailable, and that June the declarant is sitting in the courtroom today -- the answer is likely "HS without an exception." If June wants to testify against Johnny, bring her to the stand -- she's here!
All these steps I gave can be done really quickly once you know the rules: "Truth? yes. Party Opponent/admision? no. Unavailable? no. HS exception applies? Description of pain...yes! Admissible!"
Does that help?