Criminal Evidence Marjie Britz Chapter Ten: Hearsay This multimedia product and its contents are protected under copyright law. The following are prohibited by law: any public performance or display, including transmission of any image over a network; preparation of any derivative work, including the extraction, in whole or in part, of any images; any rental, lease, or lending of the program.

Defining Hearsay Hearsay: out-of-court statements offered into evidence to prove the truth of the matter asserted 2 categories of hearsay: assertion-centered statements declarant-centered statements

Defining Non-Hearsay Statements Prior statement of witness Admission by party-opponent Adoptive admission Admissions by silence

Defining Non-Hearsay Statements Failure to call witnesses or produce evidence and failure to submit to a physical examination Actions taken to obstruct justice Plea negotiations Payment of medical expenses Co-conspirator rule

Theory and Exceptions Hearsay is generally inadmissible because unsworn statements are thought to be generally unreliable Gradually, courts began to see certain hearsay statements as reliable and thus admissible

Exceptions where the Witness is Unavailable Some statements are admissible as exceptions because the witness is unavailable: former testimony (oath & cross exam) dying declaration (knowing going to die) statement against interest (going to cost you) statement of personal or family history

Exceptions where the Witness is Unavailable Unavailability: Exempt by privilege Refuses to testify Lack of memory Death or illness Absent despite best efforts of proponent

Exceptions where the Witness is Unavailable Former testimony exception: testimony which was offered at either a hearing or in a deposition Dying declaration exception: statement made by a declarant regarding the cause or circumstances of his/her impending death is admissible providing that the declarant believed that death was imminent and delcarant must die. (Beware of Power of Suggestion!)

Exceptions where the Witness is Unavailable Statements against interest: Statement issued must be against pecuniary or proprietary interest, or penal interst of the declarant Statement of personal or family history: Statements about birth, adoption, marriage, etc.

Exceptions where the Witness is Unavailable Other exceptions: Requires… Certain level of inherent trustworthiness That the statement is more probative to the matter than any other evidence which may be reasonably procured The general interest of justice and the purpose of the rules will be served by such admission

Availability of Witness is Immaterial Situations in which hearsay statements of available witnesses may be introduced include, but are not limited to: present sense impression excited utterances statements regarding mental, emotional or physical condition statements for purposes of obtaining medical diagnosis or treatment

Availability of Witness is Immaterial past recollection recorded regularly kept records (in the course of business) public records, reports and certificates religious records ancient documents reputation family records and matters

Other Issues in Hearsay Hearsay within hearsay Impeachment of Hearsay Declarant

Quiz List the Non-Hearsay examples. List the Exceptions to the Hearsay Exclusion.