VA Bar Evidence 2 — Questions and Answers
Question 1: Under the Virginia Rules of Evidence, which of the following is NOT hearsay?
- A witness testifies that her neighbor told her the light was red
- A written statement submitted to prove the truth of its contents
- A party's own prior out-of-court statement offered by the opposing party (Correct answer)
- A declarant's assertion of fact made outside court offered to prove that fact
Correct answer: A party's own prior out-of-court statement offered by the opposing party
A party's own prior statement offered by an opposing party is an admission by a party-opponent and is excluded from the definition of hearsay under Virginia Rule of Evidence 2:801(d).
Question 2: A witness saw a car accident and, while still watching the scene, said aloud 'that truck just ran the red light.' At trial, a bystander testifies to that statement. Which exception applies?
- Excited utterance
- Present sense impression (Correct answer)
- Dying declaration
- Recorded recollection
Correct answer: Present sense impression
A present sense impression is a statement describing an event made while the declarant was perceiving it or immediately thereafter, without requiring the stress of excitement.
Question 3: Under Virginia evidence law, an excited utterance is admissible as a hearsay exception because:
- It was made under oath
- The stress of the startling event guarantees reliability (Correct answer)
- The declarant is unavailable to testify
- It was recorded contemporaneously
Correct answer: The stress of the startling event guarantees reliability
The rationale for the excited utterance exception is that the psychological stress of a startling event suppresses the capacity for reflection and fabrication, lending reliability to the statement.
Question 4: In a Virginia homicide prosecution, the victim's statement 'I know I'm dying—John shot me' is offered by the prosecution. What foundation must be established for admission?
- The victim must have actually died from the wound
- The declarant must have believed death was imminent and the statement must concern the cause or circumstances of death (Correct answer)
- The statement must have been made to a medical professional
- At least two witnesses must corroborate the statement
Correct answer: The declarant must have believed death was imminent and the statement must concern the cause or circumstances of death
Under Virginia Rule of Evidence 2:804(b)(2), a dying declaration requires that the declarant believed death was imminent and that the statement concerns the cause or circumstances of the impending death.
Question 5: A hospital billing department's computerized records of treatment charges are offered into evidence. Under the business records exception, which foundation is NOT required?
- The record was made at or near the time of the event
- The record was kept in the regular course of business
- The record was made by someone with knowledge
- The custodian must personally have created the record (Correct answer)
Correct answer: The custodian must personally have created the record
The business records exception does not require that the testifying custodian personally created the record; a qualified witness familiar with the record-keeping system may lay the foundation.
Question 6: Declarant, now deceased, told a friend 'I owe the plaintiff $10,000 from that deal.' The statement is offered against the declarant's estate. Which hearsay exception applies?
- Present sense impression
- Excited utterance
- Statement against interest (Correct answer)
- Recorded recollection
Correct answer: Statement against interest
A statement against interest is admissible when the declarant is unavailable and the statement, at the time made, was so contrary to the declarant's pecuniary or proprietary interest that a reasonable person would not have made it unless believing it to be true.
Question 7: A witness testifies consistently with her earlier deposition. The opposing party then offers the deposition to impeach. The court rules it inadmissible. On appeal, what is the likely outcome?
- Affirmed, because prior consistent statements are never admissible
- Reversed, because prior consistent statements offered to rehabilitate are always admissible hearsay
- Affirmed, because you cannot impeach with a consistent prior statement absent a charge of recent fabrication (Correct answer)
- Reversed, because depositions are always self-authenticating
Correct answer: Affirmed, because you cannot impeach with a consistent prior statement absent a charge of recent fabrication
A prior consistent statement used to rehabilitate is only admissible to rebut a charge of recent fabrication or improper motive; if no such charge has been made, the consistent statement is inadmissible hearsay.
VA Bar Evidence 2
Under the Virginia Rules of Evidence, which of the following is NOT hearsay?