Criminal Evidence 7th Edition Norman M. Garland Chapter 7 The Hearsay Rule Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction

Criminal Evidence 7th Edition

Norman M. Garland

Chapter 7The Hearsay Rule

Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

A Definition

o 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.


Hearsay, according to the FRE

o “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement."


Significance of the Hearsay Rule to the Law Enforcement Officer

o Many statements officers take from witnesses, victims, suspects, and fellow officers are hearsay.

o The reports that officers write also are hearsay.


The Confrontation Clause

o 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 Constitutional Guarantee

o This guarantee requires that any evidence in the form of a statement by a person be made by that person under oath, subject to cross-examination by the defendant.

o If the Confrontation Clause were applied literally, no hearsay evidence could ever be admitted at trial in a criminal case.


The Supreme Court and Hearsay

o The Supreme Court of the United States has considered the constitutionality of hearsay exceptions in connection with a defendant's right of confrontation, and, until March 2004, has found most of the exceptions to be constitutional.

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The Supreme Court’s Finding in Crawford v. Washington

o In 2004 in Crawford, the Court rejected the “firmly footed” exception analysis adopted in prior cases.

o The Court in Crawford held that the Confrontation Clause bans the use at trial of uncross-examined statements of absent declarants when the statements are “testimonial.”


What is Banned under Crawford v. Washington

The Court stated that the Confrontation Clause clearly bans statements made:

1) in the form of testimony given at a former proceeding

2) to police during interrogation


More on Crawford v. Washington

o The Court also indicated that the ban would apply to statements “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”


Components of The Hearsay Rule

o Only evidence that is in the form of a statement not presently made in court can be hearsay.

o 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

o The FRE focuses on an “assertion-based” test.

o 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?

o If the statement can help to prove a fact in the case only if it is true, then the statement is hearsay.

o Conversely, a statement may not have to be true, but may have some value in determining what happened in a case.


What Is a Statement?

o Remember a statement is not limited to spoken words or conduct.

o 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

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


Where the exceptions are found

o 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) Opposing parties’ statements

(admissions) and confessions (11) declarations against interest


Statements That Are Not Hearsay Because They Are Not Offered for the Truth of the Matter Assertedo 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.


Testing the Statement

There are two ways a statement may tend to prove something:

(1) Just because the statement was made, or was heard by a particular person, regardless of its truth or falsity, may tend to establish a fact in the case. OR

(2) The content of the statement may have to be true in order to prove a fact.


Not Hearsay—Not Offered for the Truth of the Matter Asserted

o Operative Legal Facto State of Mind of the Hearero State of Mind of the Declaranto State of Mind (Knowledge) of the

Declarant on the "Traces of the Mind" Theory

o Statement That is Otherwise Not Offered for the Truth of the Matter Asserted (NOTMA) But to Prove Something Else


Operative Legal Fact

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


Operative Legal Fact

EXAMPLE:o A says to B, “I will pay you $5,000

if you will kill V.” o A's statement is significant

merely because it was uttered. o 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

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


State of Mind of a Hearer

EXAMPLE:o 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.

o If the defendant is claiming self-defense, these statements are relevant to show that at the time of the killing, the defendant had an honest an reasonable fear of the victim (defendant’s state of mind of fear).


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: o 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” TheoryEXAMPLE:o 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

o 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:oSometimes the fact that a

person spoke is relevant, even though the content of the statement is not.


Hearsay Exemptions

o If a statement is logically relevant only if the content of it is true, then it is offered for the truth of the matter asserted, is hearsay, and is only admissible if it falls within an exemption or exception.


Hearsay Exemptions UnderFRE 801(d)

Exemptions fall into two categories:

o Certain kinds of prior statements of a witness

o Opposing parties statements (admissions)


Prior Statements by Witnesses

There are three types of prior statements by witnesses:

oPrior inconsistent statementsoPrior consistent statementsoPrior identification statements


Prior Inconsistent Statements

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


Prior Consistent Statements

o Statements made previously that are consistent with the present testimony of the witness.

o Under the FRE, they are admissible only “to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying."


Statements of Prior Identification

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


Statements of Prior Identification

EXAMPLE:o 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 Opposing Party’s Statement (Admission)

o 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 Opposing Party’s Statement

o 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 Opposing Party’s Statement: Co-Conspirator's Statement

o 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.

o Not all co-conspirator's statements are admissible.


Vicarious Opposing Party’s Statement: Co-Conspirator's Statement

o If a co-conspirator 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

o Dying Declarationso Declarations Against Interesto Spontaneous Utteranceso State of Mindo Statements for Purposes of

Medical Diagnosis or Treatment


Specific Hearsay Exceptions

o Former Testimonyo Business or Public Recordso Pedigree or Family Historyo Past Recollection Recorded


Statements Made Under Sense of Impending Death (Dying

Declarations)

o The dying declaration exception to the hearsay rule is the most restricted of all in its foundation for admissibility.

o For a dying declaration to be admissible, there must be an initial showing of unavailability of the declarant.


The Federal Rule of Evidence

o FRE, Rule 804(b)(2), provides that, "[i]n a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances"


Four Foundational Requirements for the Modern Exception

o The declarant must be unavailable.o The trial must be either a prosecution

for homicide or any civil action.o The statement must be made while the

declarant believes that death is imminent.

o The statement must concern the cause or circumstances of what the declarant believed to be impending death.


Dying Declarations Must Pertain to the Cause of Deatho For a dying declaration to be

admissible, the subject matter of the declaration must be confined to facts about the injuries that created the belief of impending death.

o More specifically, the declaration must pertain to the cause or circumstances of what the declarant believes is his or her imminent death.


Declarations Against Interest

o 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.

o The statement must have been contrary to the person’s interests when it was made.


Two Basic Requirementsfor This Exception

o The declarant must be unavailable as a witness.

o The statement must have been against the financial or penal interest of the declarant at the time it was made.


The Rationale for the Exception

o 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.

o Thus such potentially damaging statements are viewed as reliable.


Unavailability of the Declarant

o The same five reasons for unavailability may be shown for a declaration against interest as for a dying declaration.

o If the declarant is not shown to be unavailable for one of those reasons, the statement will not be admissible.


Spontaneous Utterances

o Many times people spontaneously react or say something in response to an event or condition that they have perceived.

o This spontaneity provides the justification for two exceptions to the hearsay rule:opresent sense impressions oexcited utterances


The Rationale for the Exceptiono Spontaneous reactions or utterances

resulting from observing events limit a person's capacity for reflection and ability to lie, thus making anything the person says or does inherently more trustworthy.

o This justification has been undermined somewhat by social science research, indicating that people may be less accurate in their perceptions when they are excited or surprised.


Spontaneous Utterances:Present Sense Impressions

Definedo The present sense impression is

defined by FRE 803(1) as "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it."



o This exception to the hearsay rule has two limiting principles, and the nature of the event is not one of them—that is the event need not be exciting or provocative.

o First, the subject matter of the statement must describe or explain some event or condition. oThe statement cannot simply relate

to an event or condition.



o Second, the statement must be made while the declarant was perceiving an event or immediately after perceiving that event.

o Therefore, a slight lapse in time will not defeat admissibility, but if the time lapse can be measured in minutes rather than seconds it will likely be too long.


Spontaneous Utterances: Excited Utterance

o Rule 803(2) defines an excited utterance as "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused."


Spontaneous Utterances: Excited Utterances

o 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.

o The content of the statement, on the other hand, is much more expansive than the present sense exception.


Spontaneous Utterances: Excited Utterances

o Excited utterances need only relate to the startling event or condition.

o Moreover, the excited utterance exception may have a much broader time frame, depending on the circumstances, than a present sense impression.


Excited Utterances:Foundation and Rationale

To be admissible under the excited utterance exception to the hearsay rule, the utterance:

(1) must relate to a startling event

(2) must have been made while the declarant was under the stress of excitement caused by the event


State of Mind

o 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

o The statement must relate to the declarant's condition of mind or emotion existing at the time he or she made the statement.

o The statement cannot be one of memory or belief used to prove a fact remembered or believed.

o The statement must have been made under circumstances indicating apparent sincerity.


State of Mind Declarations Defined in FRE

o 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 . . . or emotional, sensory, or physical condition."


State of Mind Declarations Defined in FRE

o The rule further provides specific examples, such as statements of intent, plan, motive, design, mental feeling, pain, and bodily health.


State of Mind DeclarationsFoundation and Rationale

o Statements falling within the exception are generally considered reliable because the declarant is deemed to be the best commentator on his or her own state of mind.

o Reliability is furthered because, since the statement is limited to the then-existing state of mind of the declarant, there is reduced danger of untruthfulness, at least with respect to memory.


Availability of the Declarantas a Witness

o The state of mind exception does not require a showing that the declarant is unavailable as a witness.

o 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

Treatmento Such statement "is made for —

and is reasonably pertinent to — medical diagnosis or treatment; and describes medical history; past or present symptoms or sensations; their inception; or their general cause." 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

(5) are reasonably pertinent to the diagnosis or treatment


The FRE and the Exception

o Under Rule 803(4), statements of fault will not ordinarily qualify under this exception to the hearsay rule.

o 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

o 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

o The essential requirement for the admissibility of the former testimony is the present unavailability of the witness who gave the former testimony.

o Under the common law rule, the exception only applied if both the party offering the former testimony and the party against whom it is now being offered are the same parties as were in the prior proceeding.

o Further, the common law allowed former testimony only if the issues in both proceedings were identical.


Former Testimony and Criminal Trials

o 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.

o 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

o 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.


Foundation and Rationalefor the Exception

o 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.

o 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 Exception and the Constitution

o The Constitution demands, through the Confrontation Clause of the Sixth Amendment, that the accused in a criminal case be given the right to face his or her accusers.

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When does it apply?

o It is only when the accuser has previously testified and satisfied the requirements of the former testimony exception that the courts have held that the Confrontation Clause is satisfied.

o The courts have so held since 1895.


The Foundational Requirements

(1) The 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.

(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.


Opportunity to Have Effective Cross-Examination

o Rule 804(b)(1)(B) allows the admissibility of former testimony if the testimony is "offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination."


Hearsay Exception:Business and Public Records

o 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

o 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.

o 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.


Business Records Exception:Description and Foundation

Both the common law rule and 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(4) kept in the course of regularly

conducted business activity


Timing is Essential to the Business Records Exception

o The record must be written at or near the time of the event or transaction. The passage of time may make the record inadmissible.

o For example, a receipt written six months after the sale of goods would not qualify.


Foundation Requirements for the Business Records

Exceptiono 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.

o By an amendment to FRE 803(6) in 2000, this foundation can be laid by written declaration of the custodian or other qualified person.


To Qualify the Qualified Witness

o 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 RecordsDescription and Foundation

o 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 Typesof Public Records

o First are those that set forth “the office’s activities.”

o "The second type of public record is one setting forth "a matter observed while under a legal duty to report."

o The third type of public record is one setting forth "factual findings from a legally authorized investigation."


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

(3) that the employee had a duty by law to report such information accurately


Law Enforcement Reports May Not Be Admissible in Criminal

Caseso 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

o 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

o Sometimes it is necessary to prove, through the absence of an entry in business or public records, that an event did not occur.

o Such a fact could be just as important as proof of the affirmative.

o 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

o Frequently, a person's vital statistics such as birth, baptism, marriage, divorce, or death must be proven in court.

o Such information is easily proven by a person who has personal knowledge of the event, such as a witness to the event.


The FRE and Pedigree or Family History

Under the FRE, there are two forms of hearsay that are admissible to prove personal statistics or history:

(1) by written record or certificate(2) by reputation concerning

personal or family history


Written Records

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


The FRE and Written Family Records

o 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.

o 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.


Reputation to ProveFamily History

o Reputation among a person's family or community concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, or other personal or family history is admissible under FRE 803(19).

o Such reputation evidence is presumed to be reliable.


Hearsay Exception: Past Recollection Recorded

o 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.

o 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).


The Key to PastRecollection Recorded

o The key to past recollection recorded is that the writing was written at or near the time of the event when the witness's memory was fresh.

o Too much passage of time may disqualify the writing from admissibility.

Documents

Criminal Evidence 7th Edition Norman M. Garland Chapter 7 The Hearsay Rule Copyright © 2015 McGraw-Hill Education. All rights reserved. No reproduction