Chapter 10 The Hearsay Rule

A Definition In simplest terms, hearsay evidence is based on something a witness has heard someone else say rather than on what the witness has personally seen or experienced. “2nd Hand”

Hearsay, according to the FRE: “A statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.”

What’s the Need for the Rule? The hearsay rule grew out of the fear of convicting an accused person based upon the untested, out of court statements of those not present in front of the jury and subject to observation, oath, and cross-examination. Perhaps the worst form of hearsay is rumor.

Before the Rule— Miscarriages of Justice Prior to the development of the hearsay rule, trial by rumor was more the norm than a mere possibility. The hearsay rule was developed in the common law to prevent the miscarriage of justice that would result from the acceptance of extreme forms of untested, unsworn, statements by persons not present in court.

Significance of the Hearsay Rule to the Law Enforcement Officer Many statements officers take from witnesses, victims, suspects, and fellow officers are hearsay. The reports that officers write also are hearsay.

Understanding the Hearsay Rule A law enforcement officer's understanding of the hearsay rule will help the officer to write reports in such a way as to enhance the possibility that the officer's observations will fit within an exception or exemption to the rule. An officer who understands the hearsay rule will be more focused when questioning people, be able to phrase questions more precisely with respect to the requirements of the hearsay rule, and know how to figure out if the witness's statements fit within a hearsay exemption or exception.

Rationale for the Rule And Constitutional Considerations A key principle underpinning the hearsay rule is the preference that the declarant (the person who makes a statement) be present in court, under oath, and subject to cross-examination. If the declarant cannot be present in court, but certain requirements are met, the hearsay rule may allow admission of the out-of-court statement into evidence.

A Focus on the Declarant The rule's preference for the presence of the declarant, seeks to ensure that the fact-finder (the trial judge or jury) is in a position to evaluate the declarant's ability to perceive initially, remember accurately, and narrate correctly.

Evaluating the Declarant's Sincerity When the declarant is a witness in court and subject to cross-examination, the judge and jury are able to observe demeanor and therefore are in a better position to decide what weight to give to the testimony.

The Confrontation Clause The Confrontation Clause of the Sixth Amendment to the Constitution of the United States guarantees the defendant in a criminal case the right “to be confronted with the witnesses against him.”

The Supreme Court and Hearsay The Supreme Court of the United States has considered the constitutionality of hearsay exceptions in connection with a defendant's right of confrontation, and has found most of the exceptions to be constitutional.

Components of The Hearsay Rule Only evidence that is in the form of a statement not presently made in court can be hearsay. If the evidence is in any other form, such as a witness's present testimony in court, or a tangible object (like a gun,) then there is no application of the hearsay rule to the evidence.

The FRE and Hearsay The FRE focuses on an “assertion-based” test. Under this test, evidence is a statement, and therefore may be hearsay, only if the declarant intended the act, writing, or conduct, to assert something.

Offered for the Truth of the Matter Asserted or Not? If the statement can help to prove a fact in the case only if it is true, then the statement is hearsay. Conversely, a statement may not be true, but may have some value in determining what happened in a case.

What Is a Statement? Remember a statement is not limited to spoken words or conduct. A statement may also be information written or typed by the declarant, such as information in letters, notes, or other documents.

Exceptions to and Exemptions from the Hearsay Rule These exceptions and exemptions are the result of custom, tradition, or necessity.

Simply not hearsay at all! Certain prior consistent statements by witnesses Inconsistent statements by witnesses Admissions by parties

Where the exceptions are found FRE 803 and 804 contain the exceptions to the hearsay rule and 801(d) contains the exemptions from the rule.

The Hearsay Exceptions for Law Enforcement Officers (1) dying declarations, (2) spontaneous declarations, (3) state of mind, (4) statements for purposes of medical diagnosis or treatment, (5) former testimony,

The Hearsay Exceptions for Law Enforcement Officers (6) business records, (7) family history or pedigree, (8) past memory recorded, (9) prior statements of witnesses, (10) admissions and confessions, and (11) declarations against interest.

Statements That Are Not Hearsay Because They Are Not Offered for the Truth of the Matter Asserted If the evidence is a statement, and if the statement was made out-of-court, then the next matter for consideration is whether the statement is being offered in evidence to prove the truth of the matter the declarant asserted in the statement.

Operative Legal Fact A statement that creates or destroys a legal relationship, right, power, or duty.

Operative Legal Fact EXAMPLE: A says to B, “I will pay you $5,000 if you will kill X.” A's statement is significant merely because it was uttered. The statement is the solicitation of B to do an illegal act, and as such is itself an element of the crime of solicitation.

State of Mind of a Hearer A statement that creates, or affects the state of mind of another who hears the statement.

State of Mind of a Hearer EXAMPLE: In a murder case, the defendant, prior to the killing heard another man say that the victim was a violent man who always carried a knife. If the defendant is claiming self-defense, these statements are relevant to show that at the time of the killing, the defendant was in a state of mind of fear of the victim.

State of Mind of the Declarant A statement offered to show the state of mind of the person who uttered the statement, not the person who heard the statement.

State of Mind of the Declarant EXAMPLE: If a young man claims, "I am Henry the Eighth," such a statement may be offered to prove that the young man is suffering from a delusion.

State of Mind (Knowledge) of the Declarant on the “Traces of the Mind” Theory The “traces of the mind” theory allows into evidence statements that prove the person making the statement has knowledge that he or she could only have gained only by actually having perceived some unusual event, circumstance, or surroundings.

State of Mind (Knowledge) of the Declarant on the “Traces of the Mind” Theory EXAMPLE: A statement may be relevant to prove that a person has been to a particular place because he or she has a distinct knowledge of what the place looks like.

Statements That are Otherwise Not Offered for the Truth of the Matter Asserted But to Prove Something Else Anytime a statement is offered for a reason other than to prove the truth of the statement, it is by definition non-hearsay and admissible if relevant.

Statements That are Otherwise Not Offered for the Truth of the Matter Asserted But to Prove Something Else EXAMPLE: Sometimes the fact that a person spoke is relevant, even though the content of the statement is not.

Hearsay Exemptions Under FRE 801(d) They fall into two categories: Certain kinds of prior statements of a witness Admissions by a party opponent

Prior Statements by Witnesses There are three types of prior statements by witnesses: Prior inconsistent statements Prior consistent statements; and Prior identification statements.

Prior Inconsistent Statements Statements by the witness that contradict the witness's current in-court testimony.

Prior Inconsistent Statements EXAMPLE: A witness to a robbery testifies in court that the getaway car was a green, two-door Chevrolet Camaro. The same witness had previously testified at the preliminary hearing that the getaway car was a red, four-door Ford Mustang.

Prior Consistent Statements Statements made previously that are consistent with the present testimony of the witness. Under the FRE, they are only admissible to rebut a charge of recent fabrication, improper influence, or motive.

Prior Consistent Statements EXAMPLE: A child claims that she had been abused by one of her parents. Subsequently, the parents decide to get divorced and both parents want custody of the child. At the child abuse hearing, the child is called to testify about the alleged abuse. In defense, the accused parent claims that the child is fabricating the story of abuse to remain in the other parent's home after the divorce.

Prior Consistent Statements On redirect examination of the child, the prosecution can seek to offer a prior consistent statement of the child given to a police detective at the time of the alleged abuse. This statement was given prior to the time that the parents decided to get divorced, and therefore was not tainted by the child's motive to fabricate a statement to stay with the non-abusive parent.

Statements of Prior Identification Statements made out-of-court identifying a person made after the declarant has seen that person.

Statements of Prior Identification EXAMLE: Out-of-court identifications including in-person lineups, photo lineups, or show- ups (the accused is presented to the witness alone because the circumstances require swift action).

Adoptive Admission A statement that occurs when a party, though not making the statement himself or herself, adopts a statement made by another, usually by silence in the face of an accusation.

Vicarious Admission A statement not actually made by the party but by an individual acting on behalf of a party as either a person expressly authorized to speak on behalf of the party, an agent, an employee, or a co-conspirator.

Vicarious Admission: Co-Conspirator's Statement A co-conspirator's statement is a statement made by a co-conspirator during the course of the conspiracy and in furtherance of the conspiracy. Not all co-conspirator's statements are admissible.

Vicarious Admission: Coconspirator's Statement If a coconspirator makes a statement after the conspiracy has ended, usually after the arrest, those statements are not admissible within the coconspirator's statement exemption.

Specific Hearsay Exceptions Dying Declarations Declarations Against Interest Spontaneous Utterances State of Mind Statements for Purposes of Medical Diagnosis or Treatment

Specific Hearsay Exceptions Former Testimony Business or Public Records Pedigree or Family History Past Recollection Recorded

Statements Made Under Sense of Impending Death (Dying Declarations) The dying declaration exception to the hearsay rule is the most restricted of all in its admissibility. For a dying declaration to be admissible, there must be an initial showing of unavailability of the declarant.

The Federal Rule of Evidence FRE, Rule 804(b)(2), provides that, "[i]n a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death" is a dying declaration.

Four Foundational Requirements for the Modern Exception The declarant must be unavailable. The trial must be either a prosecution for homicide or any civil action. The statement must be made while the declarant believes that death is imminent. The statement must concern the cause or circumstances of what the declarant believed to be impending death.

Unavailability of the Declarant FRE 804(a) specifies five ways in which a declarant may be found unavailable for all the exceptions to the hearsay rule that require a finding of unavailability.

Declarant is unavailable if . . . exempted by privilege; persists in refusing to testify even when ordered by a court to do so; testifies to a lack of memory; is unable to be present because of death, illness, or infirmity; or is absent because the proponent has been unable to secure the declarant's attendance by process or other reasonable means.

Declarant's Belief in Impending Death Only if the judge is satisfied by a preponderance of the evidence that the declarant was under a belief of impending death is the statement admitted. (Beware of Power of Suggestion!)

A Noteworthy Quote Re: The Dying Declaration “Hear the beats of the Wings of the Angel of Death.” Supreme Court Justice Oliver Wendell Holmes

What kind of statements are in a dying declaration? May include things that took place just prior to the injurious event as well as those that happened closely enough thereafter to be considered an integral part of the event. May include not only the facts of how the injuries were received or inflicted, but information that identifies the assailant, because this may pertain to the cause of death. Does not have to identify the assailant by name, but any descriptive data that assist in the identification may be admitted.

Form of the Dying Declaration There is no prescribed form. An oral or written statement, or a sign, or a nod of the head is acceptable.

Who May Utilize Dying Declarations From a practical standpoint, dying declarations are almost always introduced by the prosecution to aid in the proof of guilt. However, there is no restriction that prohibits the defendant in a homicide case from introducing dying declarations in his or her defense. Likewise, in civil cases dying declarations may be introduced by either the plaintiff or the defendant.

Weight To Be Given to Dying Declaration Once the dying declaration has been admitted in evidence, the jury decides the weight to be given to it. A jury may give great weight to a declaration because of the solemn occasion… No one would utter anything but the truth.

Declarations Against Interest An exception to the hearsay rule for a statement made by a person who is not a party to the case and who is unavailable as a witness. The statement must have been contrary to the person’s interests when it was made.

Two Basic Requirements for This Exception The declarant must be unavailable as a witness. The statement must have been against the financial or penal interest of the declarant at the time it was made.

Requirements for Admissibility: What Is Against Interest? Any statement that exposes a potential financial loss is a declaration against interest that is admissible under this exception. Likewise, a statement that could lead to a person's prosecution for a crime, would be a statement against penal interest and would be admissible under this exception.

The Rationale for the Exception The declaration against interest exception exists in recognition of the principle that a person would not say something that would expose him or her to loss of property or liberty unless the statement was likely true.

Spontaneous Utterances Many times people spontaneously react or say something in response to an unusual event or condition that they have perceived. This spontaneity provides the justification for two exceptions to the hearsay rule: present sense impressions excited utterances

The Rationale for the Exception Spontaneous reactions or utterances resulting from provocative events limit a person's capacity for reflection and ability to lie, thus making anything the person says or does inherently more trustworthy. People may be less accurate in their perceptions when they are excited or surprised.

Spontaneous Utterances: Present Sense Impressions Defined The present sense impression is defined by FRE 803(1) as “a statement describing or explaining an event or condition made while perceiving the event or condition or immediately thereafter.”

Present Sense Impression Foundation and Rationale The requirements that must be met for a present sense impression to be admissible as an exception to the hearsay rule are: The declarant must explain or describe an event or condition, while the declarant is perceiving it or immediately thereafter.

Examples of Present Sense Impressions A girl observing a man in a department store says to her friend, “That man put that ring in his pocket.” A husband says to his wife while observing their neighbor, “John's running fast.” A woman may see a car drive through an intersection against the red light and say immediately thereafter, “That man drove right through that red light.”

Spontaneous Utterances: Excited Utterance Rule 803(2) defines an excited utterance as “a statement relating to a startling event or condition, made while under the stress of excitement caused by the event or condition.”

Spontaneous Utterances: Excited Utterances The event or condition that the declarant perceives must be startling, as distinguished from the present sense impression exception, where any event or condition is sufficient. The content of the statement, on the other hand, is much more expansive than the present sense exception.

Spontaneous Utterances: Excited Utterances Excited utterances need only relate to the startling event or condition. Moreover, the excited utterance exception may have a much broader time frame, depending on the circumstances, than a present sense impression.

State of Mind The exception to the hearsay rule that allows into evidence a declarant’s assertion of his or her then-existing state of mind to prove that the person actually had such a state of mind.

State of Mind: The Three Requirements The statement must relate to the declarant's condition of mind or emotion existing at the time he or she made the statement. The statement cannot be one of memory. The statement must have been made under circumstances indicating apparent sincerity.

State of Mind Declarations Defined in FRE Federal Rule of Evidence 803(3) defines the state of mind exception to the hearsay rule as, "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition . . . ."

State of Mind Declarations Defined in FRE The rule further provides specific examples, such as statements of intent, plan, motive, design, mental feeling, pain, and bodily health.

Availability of the Declarant as a Witness The state of mind exception does not require a showing that the declarant is unavailable as a witness. The declarant is in the best position to know what is going through the declarant's own mind and because state-of-mind commentary is most accurate when made, the statement possesses sufficient circumstantial guarantees of trustworthiness so that the declarant's availability as a witness is immaterial.

Statements for Purposes of Medical Diagnosis or Treatment Such statements may describe "medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment," according to FRE 803(4).

Statements for Purposes of Medical Diagnosis Thus, statements for purposes of medical diagnosis are admissible under FRE 803(4) if the statements: (1) are made for purposes of medical diagnosis or treatment; (2) are made by the patient or someone speaking on his or her behalf; (3) are made to a doctor or other medical person; (4) describe medical history, pain, symptoms, or causes (but not attributing fault) thereof; and (5) are reasonably pertinent to the diagnosis or treatment.

To Whom the Statement Can Be Made Qualifying statements may be made to anyone associated with providing medical services, including paramedics, nurses, or even family members.

Statements of Cause of Condition or Pain The exception extends to statements of causation that are reasonably pertinent to the diagnosis or treatment of the patient's condition.

The FRE and the Exception Under Rule 803(4), statements of fault will not ordinarily qualify under this exception to the hearsay rule. For example, a patient's statement that he "was struck by an automobile" would qualify but not his statement that the "car came through a red light.”

Hearsay Exception: Former Testimony The testimony given by a witness at a prior proceeding is admissible in a subsequent trial in certain circumstances as an exception to the hearsay rule.

The Specific Requirements: Former Testimony The essential requirement for the admissibility of the former testimony is the present unavailability of the witness who gave the former testimony.

Former Testimony and Criminal Trials With respect to former testimony used in a criminal trial, the defendant must have been a party to the former proceeding and have had the full opportunity to examine the witness whose testimony is being offered under the exception. This exception is most often utilized in criminal cases when a witness who testified at a preliminary hearing or a prior trial is unavailable in the first or subsequent trial of an accused.

Depositions and Former Testimony Sometimes, when a witness has given a deposition with the opportunity for the other side to be present and to examine the witness, such depositions may qualify as former testimony.

What is a deposition? A deposition is a declaration, under oath, made upon notice to the adverse party, for the purpose of enabling the adversary to attend and cross-examine. This declaration is usually in question-and-answer form, and is much the same as if it were actually related on the witness stand. In a criminal case, the use of a deposition, under the former testimony exception, usually occurs because there is some sufficient reason why the witness cannot appear.

Foundation and Rationale for the Exception By definition, the evidence within this exception was testimony by a witness in person, under oath, and subject to examination (both direct, cross, re-direct, and re-cross) at some other trial or proceeding. All that is missing from regular testimony is that the “witness” is now absent and the fact-finder has no opportunity to observe the witness.

The Foundational Requirements (T)he witness must be shown to be unavailable in accordance with one of the situations set forth in FRE 804(a); (2) the testimony sought to be introduced must have been under oath and subject to cross-examination; and (3) either the opponent of the testimony or a party with a similar motive must have had an opportunity to question the declarant in the earlier proceeding by way of direct examination, cross-examination, or re-direct examination.

The Crux of the Rule The party need only have had the opportunity to examine the witness, and the fact that the party chose not to take advantage of that opportunity does not destroy the opponent's ability to use the evidence.

Hearsay Exception: Business and Public Records Certain reports or records that record acts, events, conditions, opinions, or diagnosis may be admissible as either business or public records if certain requirements are met by the proponent of the evidence.

Need for the Business and Public Records Exception These exceptions were developed in the early 1900s as a result of the law's recognition that if businesses and governments were relying on records of regularly conducted activities, then they should be sufficiently reliable to be admissible in court. The exceptions are quite remarkable in that they permit the proof of underlying facts by paper records, without requiring the person who has knowledge of the underlying facts to be called as a witness. (i.e. The person who prepared the record.)

Business Records Exception: Description and Foundation FRE 803(6) require that the business record must be identified as one: (1) made at or near the time of the event; (2) by, or from information transmitted by, a person with knowledge; (3) made in the regular course of business; and (4) kept in the course of regularly conducted business activity.

Foundation Requirements for the Business Records Exception In order to lay the foundation for a business record, the custodian of records for the business, or some other qualified person, must testify to the regular practice of keeping the business records and how the particular record in question was kept.

To Qualify the Qualified Witness To be a qualified witness, if not the custodian of records, the witness must merely be able to describe the business practices sufficiently to satisfy the trial judge that the record was in fact made, kept in the regular course of the business, and contains information by or from a person with knowledge within the business.

Public Records Description and Foundation A record kept by a public agency – a branch of the federal, state or local government (like a business record,) may be introduced into evidence within the public records exception to the hearsay rule.

There Are Three Types of Public Records First are those that set forth “the activities of the office or agency.” The second type of public record is one setting forth “matters observed pursuant to duty imposed by law as to which matters there was a duty to report.” The third type of public record is one setting forth “factual findings resulting from an investigation made pursuant to authority granted by law.”

Public Records Exception: Foundational Requirements The foundation required for public records is a showing: (1) that the record is an official document of the agency; (2) that it was recorded by an employee of the agency; and (3) that the employee had a duty by law to report such information accurately.

Law Enforcement Reports May Not Be Admissible in Criminal Cases In criminal cases, police and other law enforcement reports may not be admissible in the prosecution's case-in-chief for policy reasons, even though they are both business and public records.

The Doctrine of Completeness The rule that provides that if a party seeks to admit part of a document, the opposing party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Proof of Absence of Business or Public Records Entry Sometimes it is necessary to prove, through the absence of an entry in business or public records, that an event did not occur. Such a fact could be just as important as proof of the affirmative. The relevance of the absence of an entry to prove an event did not take place is that, if the records of a business or public entity does not contain a record of an event and the records are regularly complete, then it is not likely the event occurred.

Hearsay Exception: Pedigree or Family History Frequently, a person's vital statistics such as birth, baptism, marriage, divorce, or death must be proven in court. Such information is easily proven by a person who has personal knowledge of the event, such as a witness to the event.

Written Records Written records of births, marriages, legitimacy, death, and so forth are liberally admissible to prove their existence.

The FRE and Written Family Records Under FRE 803(9), all records of birth, deaths, or marriages are admissible if the report was made to a public agency pursuant to requirements of law. This exception is different from the public records exception, because the person filling out the report does not necessarily have to witness the event recorded.

Hearsay Exception: Past Recollection Recorded The lawyer may show a witness a memorandum or record concerning a matter that the witness once had personal knowledge of and was written when the matter was fresh in the witness's memory. (But if this writing still does not refresh the witness's memory, the writing then may be introduced as past recollection recorded under FRE 803(5).)