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Multiple Choice
1. The problem with hearsay testimony is that the person who actually saw the events _____.
a.
is not on the witness stand
b.
is probably not reliable
c.
may be biased
d.
may have a privilege against self-incrimination
2. The admission of hearsay testimony may sometimes violate the _____ Amendment.
a.
Fourth
b.
Fifth
c.
Sixth
d.
Eighth
3. The practice of obtaining criminal convictions based on hearsay was especially grievous in the infamous _____ trials in
England.
a.
Black Death
b.
Inquisition
c.
Machiavellian
d.
Star Chamber
4. The trial of _____ in 1603 prompted concern about the use of hearsay in English trials.
a.
Sir Walter Raleigh
b.
Benjamin Franklin
c.
Robert Bruce
d.
Oliver Cromwell
5. Wigmore, a legal scholar, stated that the development of the hearsay rule was the second greatest contribution of the
English legal system next to _____.
a.
the grand jury
b.
the jury trial
c.
the right to notice of the charge.
d.
the right to an attorney
6. The use of hearsay is problematic because it involves a violation of the defendant’s right to _____.
a.
a jury trial
b.
the privilege against self-incrimination
c.
notice of the charges
d.
confront and cross-examine adverse witnesses
7. In hearsay testimony, the person on the witness stand _____.
a.
is also the out-of-court declarant
b.
is not under oath
c.
will be immune from perjury
d.
did not personally witness the event
8. The Constitution’s _____ Clause and the rule against hearsay protect similar values.
a.
Self-incrimination
b.
ex post facto
c.
Confrontation
d.
Venue
9. To fall within the hearsay rule, the declarant’s statement must be a(n) _____ statement.
a.
oral
b.
written
c.
interrogatory
d.
assertive
10. To fall within the hearsay rule, the testimony must be offered to prove the _____.
a.
credibility of the witness
b.
truth of the matter asserted in the statement
c.
credibility of the declarant
d.
unavailability of the declarant to testify
11. Statements offered to prove _____ would be considered to be hearsay.
a.
any information possessed by the defendant
b.
the declarant's state of mind
c.
the effect of the statement on the hearer
d.
the truth of the matter asserted in the statement
12. Under the Federal Rules of Evidence and in a number of jurisdictions, _____ is specifically defined as not being
hearsay.
a.
admission by a party-opponent
b.
unsworn statements made before a judge
c.
statements by the victim of a crime
d.
statements by the judge at a prior trial
13. Hearsay can be written statements, communicative conduct, or _____.
a.
oral statements
b.
inferences from observations
c.
hypnotically refreshed testimony
d.
photographic evidence
14. Between the thirteenth and seventeenth centuries, English common law in criminal cases was based on a(n) _____
principle.
a.
inquisitorial
b.
accusatorial
c.
confrontational
d.
equitable
15. The general rule is that hearsay is _____.
a.
not admissible
b.
admissible
c.
not admissible unless the opponent objects
d.
admissible unless the opponent objects
16. The principal means courts use to guard against the risks of Hearsay are the requirements that the witness testify under
oath, which helps ensure reliability, and that the witness be available for _____.
a.
civil proceedings
b.
grand jury examination
c.
polygraph examination
d.
cross examination
17. In discussions of hearsay, the _____is the person who makes the statement.
a.
defendant
b.
declarant
c.
witness
d.
prosecutor
18. The hearsay rule forbids only statements offered to prove the ______of the matter asserted.
a.
truth
b.
credibility
c.
substance
d.
subject
19. Statements that would otherwise be testimonial and require that the defendant have the right to _____ under the rule of
Crawford v. Washington can be admitted if they are not intended to prove the truth of their contents.
a.
rebuttal
b.
objection
c.
confront
d.
omission
20. The justification of the _____ rule is that the individuals involved in such a crime are equals and an admission by one
is fairly attributable to others.
a.
co-conspirator
b.
party-opponent
c.
witness-declarant
d.
prior statement
Case 7.1
While shoplifting five laptops from an electronics store in the mall, the actors Jack and Diane are confronted by
the store manager. Jack brutally assaults the store manager as Diane looks on. They leave the manager
unconscious on the floor of the store. Passing shoppers alert mall security officers who chase the two into the
mall parking lot. Police are notified and arrive as Jack and Diane flee the scene in a small red pickup truck and
stop the vehicle. Mall security provides physical and clothing description of the two suspects and the pickup
truck.
Police pursue the pickup through several residential streets. During the pursuit several items appearing to
laptops are thrown from the passenger window of the truck. The locations are reported via radio for other units
to collect the evidence.
The fleeing pickup blows several red lights causing minor accidents. The pursuing police units temporarily lose
sight of the pickup. Within minutes the pickup is found in an alleyway crashed into a retaining wall behind 427
Oak Street. The pickup is unoccupied with the keys still in the ignition. The license plates on the vehicle are
stolen. Found in the pickup is one laptop, a blood covered sleeve of a shirt. Also found in the pickup is old mail
addressed to a Jack Bowers of 123 Elm Street which is approximately 1 mile away.
While patrol searches for the suspects, detectives respond to the Bower residence and find no one home. They
speak with the building manager who reports seeing Mr. Bower and his girlfriend drive off earlier in the day.
The manager reports that Mr. Bower owns a small red pickup. The detectives notice surveillance cameras on the
apartment complex and ask the manager to view and copy the video from that day. Caught on video are Brower
and girlfriend apparently changing the license plates on the pickup and leaving in the truck 30 minutes prior to
the incident at the mall. The vehicle identification number on the pickup is registered to Jack Bower with
different license plates.
Jack and Diane are located by patrol three blocks from the pickup hiding behind two dumpsters.
Jack’s shirt is torn and bloody. He has bruises and blood on his hands. Both claim that they were carjacked two
hours prior and had been walking toward the police station. The two are arrested.
A search incident to arrest under covers 3 packets of heroin, a hypodermic needle and cell phone in Jack's
pockets. A large, aluminum-lined handbag (commonly called a boosting bag) with several boxed cell phones
and 2 bags of heroin are found in Diane’s possession.
Detectives respond to the hospital where the store manager is being treated for serious injuries, including a skull
fracture and damage to his eye socket and jaw. The injuries are photographed and documented.
Detectives also retrieve surveillance video from the store and mall for evidence. The two suspects are charged
with robbery, eluding, destruction of evidence, possession of a controlled dangerous substance, and possession
of drug paraphernalia as well as possession of burglary tools.
21. At trial, the arresting officer testifies that Diane stated the store manager wasn't moving when they left and asked the
officer if he died. The defense objects to the introduction of the testimony on the grounds that _____.
a.
Diane’s original statement was not an assertive statement
b.
the accuracy of the officer’s statement cannot be tested
c.
the co-conspirator rule does not permit such testimony
d.
statements made by a party-opponent are not admissible
22. Would the arresting officer's testimony that he found heroin on Jack and Diane subsequent to their arrest be
considered hearsay?
a.
Yes, because the testimony was offered as evidence of the truth of the matter asserted.
b.
Yes, because the testimony violates the Confrontation Clause of the Sixth amendment.
c.
No, because it requires the fact finder to draw inferences as to the defendants' intent.
d.
No, because it is based on the officer’s actions and observations and he is available for cross-examination.
23. The detective testifies: "I showed Mr. (store manager) a display of seven photographs, When he saw the picture of
Jack Bower, he gasped and began to cry." Would this statement be considered hearsay?
a.
Yes, because the testimony was offered as evidence of the truth of the matter asserted.
b.
Yes, because the testimony violates the Confrontation Clause of the Sixth amendment.
c.
No, because it requires the fact finder to draw inferences as to the defendants' intent.
d.
No, because the store manager's conduct was not meant as a communication.
Case 7.2
Brenda Lee is found murdered on the rear porch of her sorority house after having a heated argument with her
boyfriend, Britt Reid, earlier in the evening. The women in the sorority house claim not to have any knowledge
of the murder. The medical examiner conducts an autopsy and forensic testing reveals DNA evidence and blood
other than the victim's on her clothing. Joe Carbone, a member of a fraternity two houses away, comes forward
two days later and provides a statement that one of the sorority sisters, Shirley Temple, told Joe that she saw
Britt Reid kill the victim. Bernie is ultimately charged with the murder of Brenda Lee.
24. At the murder trial, Joe is a witness testifying for the State. As the State’s first witness, Joe testifies that Shirley told
him that she saw the defendant kill the victim of the case. Joe’s statement is being offered to show that the defendant
killed the victim. Is this hearsay? Shirley is not testifying at trial.
a.
Yes, because Shirley is not available to allow the accuracy of Joe’s statement to be tested.
b.
Yes, because the testimony violates the Confrontation Clause of the First amendment.
c.
No, because it requires the fact finder to draw inferences as to the defendants' intent.
d.
No, because it is based on Joe’s own actions and observations and Joe is available for cross-examination.
25. At trial the medical examiner presents photographs of the victim's injuries and blood soaked shirt. The medical
examiner further testifies that blood and DNA samples found on the victim were matched to Mr. Reid. Is this testimony
hearsay?
a.
No, the medical examiner personally performed the tests and is available for cross-examination.
b.
Yes, because the testimony violates the Confrontation Clause of the Sixth amendment.
c.
Yes, because it requires the fact finder to draw inferences as to the defendants' intent.
d.
No, because the testimony of medical examiners and other expert witnesses is specifically excluded from the
hearsay rule.
Case 7.3
Police respond to the scene of an apparent arson incident which involved a vacant commercial office building.
The fire was discovered at 3:30 a.m. by a passing patrol unit, shortly after it had started. The initial officers on
scene found all exterior doors locked and made forced entry to check for potential victims.
Fire officials report signs and evidence of accelerants near each stairwell. An empty kerosene can was found
outside the structure, in the bushes by the property line. A premises history reveals that the property has been
vacant for almost a year and has been for sale twice as long. Town records show several denied zoning and
building adjustment applications over the past two years. There are numerous property maintenance violations
for the property as well.
Detectives following up on the case find the property owner Slim Shady uncooperative and claiming he knows
nothing about the fire. He states that he was at home the entire night, hanging with his partner Rico Tubbs.
Background investigations reveal that Mr. Shady also operates Shady Flooring and Paint. He owns a working
van with the markings "Shady Flooring and Paint". Detectives also discover that Mr. Shady increased his
insurance of the incident property six months prior to the fire.
Detectives interview Slim Shady's neighbor who reports seeing Mr. Tubbs vehicle in the driveway. He also
reports hearing a vehicle pull into the driveway and two males arguing about a can. The neighbor recognized
the voice of Mr. Shady and states that Mr. Shady was yelling at the other male for leaving a can behind.
According to the neighbor, the other male said that he threw it into the bushes with all the other garbage.
Detectives question Mr. Tubbs, who initially states that he and Mr. Shady were hanging out at Mr. Shady's
house all night. Detectives re-interview Mr. Tubbs several days later and tell him that they can place Mr. Shady,
his work van, and another person going to and from the scene; and that they have retrieved surveillance video
from several stores adjacent to the crime scene. Mr. Tubbs then changes his story, claiming that he just took a
ride with Mr. Shady, who had told him that he left some flooring supplies in the building. He claims he was
unaware of Mr. Shady's intentions or actions until after he ran out of the building and threw an empty can of
kerosene at Mr. Tubbs. Mr. Tubbs further states "Slim threatened to mess me up because I was already on
parole". Ultimately, Mr. Shady and Mr. Tubbs are charged with the arson.
26. At trail, could the detective testify to the neighbor's out of court statement regarding hearing Mr. Shady yelling about
the other person leaving a can behind if the neighbor were not available at trial as he is out of the country?
a.
Yes, because the testimony was not offered as evidence of the truth of the matter asserted.
b.
Yes, because the testimony does not violate the Confrontation Clause of the Sixth Amendment.
c.
No, because it requires the fact finder to draw inferences as to the defendants' intent.
d.
No, because the defense cannot cross-examine the neighbor who made the statement.
27. Can Mr. Tubbs’ out-of-court statement implicating Mr. Shady in the arson by admitted at trial?
a.
No, because it requires that inferences be made
b.
Yes, because of the party-opponent rule
c.
Yes, because of the co-conspirator rule
d.
No, because it violates the Confrontation Clause of the Sixth Amendment
28. Exceptions to the law of hearsay evidence tend to be simple and straight forward.
a.
True
b.
False
29. The introduction of hearsay evidence can raise serious issues under the confrontation clause.
a.
True
b.
False
30. There are no exceptions to the hearsay rule in the Federal Rules of Evidence.
a.
True
b.
False
31. The 1603 trial of William Penn sparked interest in reforming the law of hearsay.
a.
True
b.
False
32. One of the requirements for a statement to be defined as hearsay is that the statement be assertive.
a.
True
b.
False
33. One of the requirements for a statement to be defined as hearsay is that the statement is not being offered to prove the
truth of the matter asserted in the statement.
a.
True
b.
False
34. Non-verbal acts (such as a nod of the head) can never be hearsay.
a.
True
b.
False
35. Under the Federal Rules of Evidence, certain types of prior statements by witnesses are excluded from the definition
of hearsay.
a.
True
b.
False
36. Under the Federal Rules of Evidence, admissions by a party-opponent are always defined as hearsay.
a.
True
b.
False
37. The Federal Rules of Evidence contain at more than 20 exceptions to the rule against hearsay.
a.
True
b.
False
38. What Is Not Hearsay? Federal Rules of Evidence 801(d)(1), 801(d)(2), and 801(d)(2)(E)
a.
True
b.
False
39. The Star Chamber trials are among the most infamous in English history.
a.
True
b.
False
40. In the definition of hearsay, the declarant is the person who originally made the statement and is not on the witness
stand.
a.
True
b.
False
41. A written document cannot be considered hearsay evidence.
a.
True
b.
False
42. Statements offered to show knowledge, feelings, state of mind, or effect on the hearer are not hearsay.
a.
True
b.
False
43. In general, hearsay evidence is not admissible.
a.
True
b.
False
44. Under the Federal Rules of Evidence, certain statements by co-conspirators are not hearsay.
a.
True
b.
False
45. A conspiracy is an agreement between two or more people to commit an illegal act.
a.
True
b.
False
46. Prior to the 1600s, English courts strictly enforced the rule against hearsay evidence in criminal cases.
a.
True
b.
False
47. According to Wigmore, the rule against hearsay was one of the greatest contributions to the English legal system.
a.
True
b.
False
48. The rule against hearsay and the _____ Amendment Confrontation Clause address similar problems.
49. The Federal Rules of Evidence contain _____ exceptions to the hearsay rule.
50. Because of their liberal use of hearsay against criminal defendants, the _____ trials during the reign of Queen
Elizabeth I have become infamous.
51. The abuses of using hearsay at criminal trials were highlighted in the 1603 trial of Sir _____.
52. In the definition of hearsay, the _____ is the person who originally made the statement.
53. The hearsay rule applies only to statements that are offered to prove the truth of the matter _____ in that statement.
54. In the Federal Rules of Evidence, one form of statement that is specifically excluded from the definition of hearsay is
the prior statement of the ______________ currently on the witness stand.
LEARNING OBJECTIVES:
CEPC.GARD.16.7.7
55. In the Federal Rules of Evidence, one form of statement that is specifically excluded from the definition of hearsay is
a(n) _____________ by a party-opponent.
56. In the Federal Rules of Evidence, one form of statement that is specifically excluded from the definition of hearsay is
termed the _____________ rule.
57. If the purpose of a nonverbal act is to communicate, and the communication is _____, then it falls within the hearsay
rule.
58. The definition of hearsay refers to a statement other made by an out-of-court _____.
59. A statement that is offered only to show the effect on the _____ is not hearsay when offered to show the state of mind
of another.
60. The hearsay rule forbids only statements offered to prove the _____of the matter asserted.
61. If a person is engaging in conduct that is not meant to _____, this would generally not be treated as hearsay.
62. If a witness testifies at a trial and can be cross-examined concerning an earlier statement made by the witness, the
statement is not hearsay if statement is _____ with the present testimony of the witness and was given under oath at a
previous trial, hearing, or deposition.
Essay
63. What are the principal methods used at trial to test the testimony of witnesses? How does allowing hearsay interfere
with those methods?
64. Define “hearsay” and provide an example. Be sure to explain why the example meets the definition. (LO1, 154)
65. In terms of the problems they address, what do the rules against hearsay and Confrontation Clause have in common?
Be sure to provide examples.
66. What are non-verbal acts in relation to the exception for Hearsay? Provide an example of both assertive and non-
assertive behaviors.
67. What is an assertive statement and give examples of both assertive and non-assertive statements.
68. Discuss the co-conspirator rule and provide an example.
69. Define “conduct that is not meant to communicate” is relation to the hearsay rule. Provide an example.
70. Define prior statements made by witnesses in relation to the hearsay rule and provide the rules by which such
decisions would be used to rule whether hearsay would apply.
