Example Diane is on trial for possession of an illegal weapon The prosecution

Example diane is on trial for possession of an

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Example: Diane is on trial for possession of an illegal weapon. The prosecution introduces a written inventory prepared by a police officer of items, including a switchblade knife, taken from Diane when she was arrested as evidence of Diane’s guilt. The written inventory is admissible. In this example, the statement that is hearsay is the written inventory (hearsay can be oral or written), the declarant is the police officer who wrote the inventory and the inventory is being offered into evidence to prove that Diane had a switchblade knife in her possession. The reason that the written inventory is admissible is that it was a record made at the time of Diane’s arrest by a police officer, whose job required her to prepare records of items taken from suspects at the time of arrest and it was the regular practice of the police department to prepare records of this type at the time of an arrest. Rule 405: PRESENT SENSE IMPRESSION . A judge may admit an out-of- court statement of a declarant’s statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. The rationale for this exception is that a declarant’s description of an event as it is occurring is reliable because the declarant does not have the time to think up a lie. Example: James is witnessing a robbery and calls 911. While on the phone with the 911 operator, James describes the crime as it is occurring and provides a physical description of the robber. These hearsay statements are admissible because they are James’s description or explanation of an event the robbery as James perceives that event. Rule 406: STATEMENTS IN LEARNED TREATISES . A statement contained in a treatise, periodical, or pamphlet is admissible if: (A) The statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
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41 11/19/14 (B) The publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit. Example: Dr. G, plaintiff’s expert witness, is being cross-examined by defendant’s counsel. During the cross-examination Dr. G is shown a volume of a treatise on cardiac surgery, which is the subject of Dr. G’s testimony. Dr. G is asked if s/he recognizes the treatise as reliable on the subject of cardiac surgery. Dr. G acknowledges that the treatise is so recognized. Portions of the treatise may then be read into evidence although the treatise is not to be received as an exhibit. If Dr. G does not recognize the treatise as authoritative, the treatise may still be read to the jury if another expert witness testifies as to the treatise’s reliability or if the court by judicial notice recognizes the treatise as authoritative.
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  • Spring '17
  • mrs callman
  • attorney, new york state

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