HEARSAY! BY MICHAEL JOHNSON

COMMON LAW DEFINITION “ An out-of-court statement offered to prove the truth of the matter asserted”

“THE HEARSAY RULE” --Hearsay is not admissible (TRUTH = NEARLY ALL OF IT GETS INTO EVIDENCE)

WHAT IS A STATEMENT? --Oral assertion --Written assertion --Conduct intended to be an assertion --Conduct not expressly intended to be an assertion (implicit conduct)

WHY DO WE EXCLUDE HEARSAY? --Statement lacks oath --Fact finder is unable to observe/assess witness demeanor --Lack of cross examination

THE RULES OF EVIDENCE --Rule 801 defines “hearsay” --Rule 802 states the general rule --Rules 803 and 804 provide exceptions to the general rule --Rule 807 provides a “residual” exception

RULE 801 Rule 801. Definitions. The following definitions apply under this Article: (a) Statement. A "statement" is (1) An oral or written assertion; or (2) Nonverbal conduct of a person, if it is intended by him as an assertion. (b) Declarant. A "declarant" is a person who makes a statement. (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

RULE 802 Rule 802. Hearsay Rule. Hearsay is not admissible except as provided by law or by these rules.

WHO IS A “DECLARANT”? --Concept applies to all human speakers --Includes the witness who is testifying Anything the witness said at a time other than while testifying is subject to the hearsay rule

ADMISSIBLE “HEARSAY” 1. Exemptions (ARE 801(d)) –Prior witness statements (d)(1) –Opposing Party statements (d)(2) 2. Exceptions for which declarant’s AVAILABILITY IS IRRELEVANT (ARE 803) 3. Exceptions for which the declarant must be UNAVAILABLE (ARE 804) 4. Residual Exception (ARE 807)

PRIOR WITNESS STATEMENTS (ARE 801(D)(1)) 1.The witness testifies under oath at the current proceeding and is subject to cross examination about the prior statement 2.The prior statement is INCONSISTENT with the current testimony --If it is a criminal case, the prior testimony must have been under and subject to perjury at a prior hearing, proceeding, trial or deposition 3, The prior statement is CONSISTENT with the current testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive 4. One of identification of a person made after perceiving him

OPPOSING PARTY STATEMENT (ARE 801(D)(2)) Statement is offered AGAINST a party, and 1.His own statement in either individual or representative capacity 2. Adopted statement 3.Authorized statement 4.Statement by an agent 5. Co-conspirator statement

ARE 803 EXCEPTIONS (1) Present Sense Impression (2) Excited Utterance (3) State of Mind (4) Medical diagnosis or treatment statements (5) Recorded Recollection (6) Business Records (7) Absence of business record (8) Public Records (9) Public Records of Vital Statistics (10) Absence of Public Record (11) Records of Religious Organizations concerning personal/family history

MORE ARE 803 EXCEPTIONS (12) Certificate of Marriage, baptism, etc. (13) Family Records (14) Records of documents that affect interest in property (15) Statements in documents that affect interest in property (16) Ancient Documents (17) Market Reports and similar commercial publications (18) Statements in Learned Treatises, Periodicals, or Pamphlets (19) Reputation concerning personal or family history (20) Reputation concerning boundaries or general history (21) Reputation concerning character (22) Judgment of Prior Conviction (23) Judgments involving personal, family, or general history, or a boundary

ARE 804 EXCEPTIONS Former testimony Dying Declarations Statements against interest Statements of personal or family history Forfeiture by wrongdoing

HEARSAY EVALUATION PROCESS Does the evidence contain a statement? Did the statement occur outside the courtroom? What is the purpose for the evidence? Does an exception/exemption apply? Does the Sixth Amendment limit the use of the statement?

“TRUTH OF THE MATTER ASSERTED” When is a statement offered for a purpose other than the “truth of the matter asserted”  Knowledge of the speaker  State of mind of the speaker  Notice to the listener  Effect on the listener  Verbal Act or legally binding statement  For contradiction (impeachment)  Publication in a defamation suit

COURT REPORTS mandates the filing of a court report 7 business days prior to a scheduled dependency-neglect review hearing…and any post-termination of parental rights hearing (c)(2)(A) “The court shall determine on the record whether the reports or addendum reports shall be admitted into evidence based on any evidentiary objections made by the parties.” (c)(2)(B) “The court shall not consider as evidence any report or part of a report or an addendum report that was not admitted into evidence on the record.”

HEARSAY EVALUATION CHART NON-HEARSAY USE Impeachment Verbal act Effect on listener State of mind Conduct not intended as an assertion Current memory/belief NOT HEARSAY BY RULE DEFINITION Prior inconsistent statement Prior consistent statement to rebut recent fabrication Identification Statement by opponent own adopted authorized agent Co-conspirator statement

HEARSAY EVALUATION CHART Exceptions 803 (1)-(23) regardless of declarant’s availability 804 declarant unavailable 807 Residual Exception