1. Criminal Evidence Marjie Britz Chapter Ten: Hearsay
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2. 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

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

4. 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

5. 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

6. 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

7. 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

8. 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!)

9. 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.

10. 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

11. 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

12. 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

13. Other Issues in Hearsay
Hearsay within hearsay
Impeachment of Hearsay Declarant

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