Hearsay and Its Exceptions AJ 104 Chapter 8 Hearsay and Its Exceptions

Definition of 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 mattered asserted. Double Hearsay – Refers to a hearsay statement that is contained in another hearsay statement. Feliciano told Newman what Mason said. What Mason originally said is hearsay; when Feliciano attempts to repeat what Mason said, it is double hearsay.

The Hearsay Rule The Hearsay Rule makes hearsay declarations inadmissible at trial. There are many exceptions to this rule Attorneys who wish to introduce hearsay at trial must be able to state which exception is applicable. The most important reason is a basic distrust for testimony that was not made under oath

The Hearsay Rule Focuses on 3 Issues What is a statement? Oral, written, recorded, and non-verbal, business records, will. Who is a declarant? Person who made the statement What is meant by “offered in evidence to prove the truth of the matter asserted”? Testimony that the attorney wants the jury to believe

Hearsay or Not? Prosecutor ask a police officer to tell the jury what the defendant said when he confessed. If the defense wants to show that the defendant was insane and try to admit that defendant’s statement, I am “Hitler” Prosecutor want to admit and note given to a teller…..(two issues)

Exceptions to the Hearsay Rule Only statements which fall under the one of the exceptions to the Hearsay Rule are admissible in court. All 50 states do not follow exactly the same exceptions to the hearsay rule. ½ Follow the FRE, the others follow their own. The FRE list 30 exceptions. The textbook discusses 14 exceptions to the Hearsay Rule.

Exceptions Admissions and Confessions Declarations against Interest Spontaneous Statements and Contemporaneous Declarations Dying Declarations Mental and Physical State Business Records and Official Documents

Exceptions Reputation Former Testimony Prior Inconsistent Statements Prior Consistent Statements Ancient Documents Past Recollection Recorded Prior Identification

Admissions and Confessions The Admissions Exception to Hearsay Rule makes a statement admissible if: It was made by a person who is a party to the lawsuit (criminal case, the defendant) The statement is used against the person who made it Examples, page 172

Other Admission An Authorized Admission is a statement made by a person who is authorized to speak for someone else (pg. 173) Tacit or Adoptive Admission occurs when someone is accused of wrong doing but does not deny the accusation. (pg. 173) Remember! In addition to the admissions exception, confessions meet constitutional standards.

Declarations against Interest A statement is admissible under the this exception if it meets two criteria: The person making the statement is not available to testify in court The statement is against the interest of the person making the statement Under these circumstances the statement is admissible no matter who makes it.

What Qualifies as Unavailable? According to Rule 804(a) FRE, a person may be considered unavailable for at least five reasons: The witness refuses to testify (statements are privileged) The witness refuses to testify, violating a court order The witness lacks sufficient memory The witness has died or disabled The witness cannot be located (pg 175)

Spontaneous Statements and Contemporaneous Declarations Some states consider these to be two separate exceptions. Spontaneous Statement (‘excited utterances”) – A statement is admissible if it meets two criteria: It tells about something the declarant observed with one of the five senses It was made spontaneously while the declarant was still under the stress and excitement of the event. (pg 176)

Contemporaneous Declarations Contemporaneous Declarations (Present Sense Exception) – A statement is admissible if it meets two criteria It was made by the declarant to explain what he/she was doing It was made at the time the declarant was performing the act that he/she was trying to explain (pg. 176/77)

Dying Declarations A Dying Declaration is admissible if: The declarant had a sense that he/she would die very soon and The declarant had firsthand knowledge of what he/she was saying and The statement is about the cause and circumstances of the death and The declarant is now dead

Mental and Physical State A statement is admissible under the Mental or Physical State Exception if: The statement relates to the person’s state of mind, emotion, or physical sensation at the time it was made and The statement is offered to prove the declarant’s state of mind and The circumstances indicate the statement is trustworthy

Business Records and Official Documents A document is admissible if: The document is made at or near the time of the underlying event and The document is made in the regular course of business and The custodian or other qualified witness testifies as to its identity and mode of preparation and Sources of information and method and time of preparation were such as to indicate its trustworthiness.

Business Records and Official Documents The term business includes every kind of business, governmental activity, profession, or occupation and calling, whether conducted for profit or not. Business records can be used to establish many things i.e. embezzlement cases Reliable records can be used to as evidence that an even did or did not occur.

Business Records and Official Documents Official documents – Official records of public agencies are covered by a rule similar to business records. Records kept on what the agency does Records that others are required by law to file with the public agency. (Birth, death, and marriage certificates) (pg 181)

Reputation Reputation – what others say about someone’s character. It is by definition, hearsay. Statements are admissible if: The statement relates to the reputation of a person among his/her associates or It relates to the reputation of a person in his/her community Some states have expanded the rule to allow character witnesses to give their personal opinions. (pg 183)

Former Testimony Former testimony is admissible if: The former testimony was recorded under oath at a prior (each state will specify which hearings apply) and The person whose testimony is introduced is not available to testify at the present court proceeding and

Former Testimony The former testimony is offered: Against the person who offered it in evidence on his/her behalf when the former testimony was given or The party against whom the former testimony was originally offered was a party to the proceeding and had the right to cross exam with a motive similar to what she/he now has. (pg 183)

Prior Inconsistent Statements Prior Inconsistent Statements are used to impeach a witness. Many claim that this is not hearsay because they are offered to show a witness is lying. If the witness admits the inconsistent statement, no other witnesses are called to impeach If the witness denies, additional witnesses may be called to restate what the witness said

Prior Inconsistent Statements Prior Inconsistent Statements are admissible if the following occurred: The statement is inconsistent with the testimony given on the witness stand and While on the witness stand in the current trial, the witness was asked about the inconsistent statement and given a chance to explain (pg 184)

Prior Consistent Statements Prior Consistent Statements are used to rehabilitate a witness who has been impeached by prior inconsistent testimony. It can also be used if there is a charge that the witness recently fabricated his/her testimony FRE and a number of states do not classify prior consistent statements as hearsay although some states do.

Prior Consistent Statements Prior Consistent Statements are admissible if any one of the following exist: The witness has been impeached by prior inconsistent statements and the prior consent statement was made before the prior inconsistent statement or During cross-examination it was alleged that the witness recently changed his/her testimony and the prior consistent statement was made before the date the testimony was allegedly changed or,

Prior Consistent Statements During cross-examination it was alleged that the witness altered his/her testimony due to bias or other bad motive and the prior consistent statement was made before the date the witness allegedly altered his/her testimony. (pg 185)

Ancient Documents This exception is necessary because after many years there is frequently no one available who can testify about the exact events that surrounded the making of the documents Most commonly involves deeds & wills

Ancient Documents Ancient Documents are admissible if: The document appears to be genuine and People have acted as if the document is genuine and The document is at least as old as required by the legislature The length of time to qualify varies and is set by the state and the FRE (20 years) (pg 186)

Past Recollection Recorded Past Recollection Recorded can be used to introduce evidence even though the person who wrote it down can no longer remember the facts. Most commonly used, police reports (pg 186 describes 6 conditions)

Prior Identification Prior Identification – Some states have created a special hearsay exception. Many states do not consider testimony about prior identification to be hearsay. Prior Identification is used to introduce testimony about both correct and incorrect identifications. Key point: Was it made at the time of the crime by the person testifying correctly identifying the person.

Prior Identification Evidence of a Prior Identification is admissible if all of the following are met: The witness has testified that he/she accurately identified the person who committed the crime and The witness identified the defendant or another person as the person who committed the crime and The identification was made when the crime was fresh in the witness’s memory. (pg 188)