The Hearsay Rule

1
Chapter 10

• The Hearsay Rule

2
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

3
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.

4
Whats 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.

5
Before the RuleMiscarriages 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.

6
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.

7
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.

8
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.

9
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.

10
Evaluating theDeclarant'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.

11
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.

12
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.

13
Components ofThe 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.

14
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.

15
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.

16
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.

17
Exceptions to and Exemptions from the Hearsay Rule

• These exceptions and exemptions are the result of
  custom, tradition, or necessity.

18
Simply not hearsay at all!

• Certain prior consistent statements by witnesses
• Inconsistent statements by witnesses
• Admissions by parties

19
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.

20
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,

21
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.

22
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.

23
Operative Legal Fact

• A statement that creates or destroys a legal
  relationship, right, power, or duty.

24
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.

25
State of Mind of a Hearer

• A statement that creates, or affects the state of
  mind of another who hears the statement.

26
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.

27
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.

28
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.

29
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.

30
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.

31
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.

32
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.

33
Hearsay Exemptions UnderFRE 801(d)

• They fall into two categories
• Certain kinds of prior statements of a witness
• Admissions by a party opponent

34
Prior Statements by Witnesses

• There are three types of prior statements by
  witnesses
• Prior inconsistent statements
• Prior consistent statements and
• Prior identification statements.

35
Prior Inconsistent Statements

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

36
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.

37
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.

38
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.

39
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.

40
Statements of Prior Identification

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

41
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).

42
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.

43
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.

44
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.

45
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.

46
Specific Hearsay Exceptions

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

47
Specific Hearsay Exceptions

• Former Testimony
• Business or Public Records
• Pedigree or Family History
• Past Recollection Recorded

48
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.

49
The Federal Rule of Evidence

• FRE, Rule 804(b)(2), provides that, "in 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.

50
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.

51
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.

52
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.

53
Declarant's Beliefin 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!)

54
A Noteworthy QuoteRe The Dying Declaration

• Hear the beats of the Wings of the Angel of
  Death.
• Supreme Court Justice Oliver Wendell Holmes

55
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.

56
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.

57
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.

58
Weight To Be Givento 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.

59
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 persons
  interests when it was made.

60
Two Basic Requirementsfor 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.

61
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.

62
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.

63
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

64
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.

65
Spontaneous UtterancesPresent 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.

66
Present Sense ImpressionFoundation 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.

67
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.

68
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.

69
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.

70
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.

71
State of Mind

• The exception to the hearsay rule that allows
  into evidence a declarants assertion of his or
  her then-existing state of mind to prove that the
  person actually had such a state of mind.

72
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.

73
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 . . . ."

74
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.

75
Availability of the Declarantas 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.

76
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).

77
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.

78
To Whom the StatementCan Be Made

• Qualifying statements may be made to anyone
  associated with providing medical services,
  including paramedics, nurses, or even family
  members.

79
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.

80
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.

81
Hearsay ExceptionFormer 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.

82
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.

83
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.

84
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.

85
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.

86
Foundation and Rationalefor 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.

87
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.

88
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.

89
Hearsay ExceptionBusiness 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.

90
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.)

91
Business Records ExceptionDescription 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.

92
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.

93
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.

94
Public RecordsDescription 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.

95
There Are Three Typesof 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.

96
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.

97
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.

98
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.

99
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.

100
Hearsay ExceptionPedigree 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.

101
Written Records

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

102
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.

103
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).)