Chapter 10

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. • “2ndHand”

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. 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.

5. 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.

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, "[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.

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.