Evidence2 BookNoteQ

A W testified that when a shooting V was shown a picture of the D, she "made a shooting motion, cocking her thumb with her finger pointed out." Is this hearsay testimony

• Yes

• No

Answer explanation

the testimony was only significant as indicating her belief that the D was the individual wo shot her. Such conduct was assertive in nature and testimony concerning that conduct was hearsay

page 115 in book

Is it hearsay when a D reprints newspaper article and distributes them to persons with whom the D's were doing business?

• Yes

• No

Answer explanation

D's unequivocally manifested their adoption of the inflated statements made in the newspaper articles.

An out of court statement is not hearsay if the statement is offered against a party and the party has manifested his adoption or belief in the statement's truth

page 137 in book

When Monroe told Officer Dunston that he could get another rock of crack from 'my buddy', Beckham immediately got up from his chair, walked over to a stash of crack that was packaged for distribution, and began to open it. Would the action or statement be considered hearsay?

• Yes

• No

Answer explanation

By that action beckhm indicated his endorsement of Monroe's statement.

An out of court statement is not hearsay if the statement is offered against a party and the party has manifested his adoption belief in the statements truth

A statement is not hearsay if the statement is offered against a party and is a statement by a coconspirator of a party during the course and in furtherance of the conspiracy

• True

• False

Answer explanation

Bourjaily v. U.S. page 149

Statements by a cooperating coconspirator to known authorities made after the commencement of cooperation are not admissible b/c such statements are not made in furtherance of the conspiracy

• True

• False

Answer explanation

If a coconspirator effectively withdraws, cnconspirator statements made after that dater are not admissible against him. The D has the burden to prove the withdrawal.

Ceasing active participation in the conspiracy by itself is not sufficient to prove withdrawal.

Statements dictated by a LEO about his observations of a driver who he thought was intoxicated made as the LEO walked back and forth between the driver and the patrol car. Would these statements be admissible

• Yes

• No

Answer explanation

the statements would not be admissible b/c they are out of court statements created with the thought f a future prosecution and thus inadmissible

page 158

The V of a brutal assault, Caruso, suffered severe brain damage and spent 7 weeks in the hospital. Approximately 1 week after Caruso returned home from the hospital, her sister, Eileen Moore, showed her a newspaper article containing a photograph of the D. Moore testified that Caruso looked at the photograph (but did not read the accompanying article), and her immediate reaction was one of great distress and horror and upset and that Caruso pointed to it and she waid very clearly, "He killed me, he kiiled me."

Would the Caruso's statement be admissible?

• Yes as an excited utterance

• Yes as a present sense impression

• No b/c this is not an excited utterance

• No, b/c Caruso made the statement to her sister Moore

Answer explanation

Rule 803(2) Excited Utterance. a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that caused it

page 162 in book

Three months after an aggravated sexual assault, an 11 year old female V became highly upset while watching a television vew story about a 10 year old girl who was raped and stabbed. During the ensuing emotional distress, the child recounted D's assault to her mother. Will the mother be permitted to testify to the statements under Rule 803(2)?

• Yes, b/c this was an excited utterance

• Yes, b/c this shows the girl's mental state

• No, b/c this is an out of court statement that would be given for the truth of the matter

• No, b/c this was present sense impression

Answer explanation

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

the mother was properly permitted to testify to the statements under Rule 803(2)

page 163

When Mrs. Parks viewed the photograph of the individual that she recognized as her husband committing a bank robbery was a startling event. According to Trombitas's testimony, Mrs. Parks uttered the words 'oh, my God, that looks like Johnny,' as soon as she saw the photograph. Would testimony about this event be admissible?

• No, b/c it is an assertive out of court statement

• Yes, b/c it is an excited utterance

• No, due to marital privilege

• Yes, b/c it is present sense impression

Answer explanation

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

This was a startling event for Mrs. Parks who with tears in her eyes affirmed and reaffirmed the identity of her husband as the bank robber.

page 163

The visibly upset rape V's statements to the police officer made an hour after the assault. Would the V's statements be admissible?

• Yes, b/c the statements are excited utterances

• No, b/c this is hearsay

• Yes, b/c this would provide information about the V's state of mind

• No, b/c the LEO took a report for future litigation

Answer explanation

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

the V was still visibly upset b/c of the rape/assault

page 163