Chapter 8

1. Chapter 8 Exceptions to the Hearsay Rule

2. HEARSAY AND THE CONFRONTATION CLAUSE • In criminal trials, the admission of out-of-court statements presents not only issues under relevant hearsay rules but also potential conflict with the Sixth Amendment’s Confrontation Clause. • The Confrontation Clause means you have a right under the 6th Amendment to be “confronted” by the witnesses against you!

3. HEARSAY EVIDENCE FOR THE CONFRONTATION CLAUSE ARE CLEAR: • If an out-of-court statement is admitted as evidence against the accused, the person making that statement is a “witness” who is not “confronting” the accused. • Prior to 1965, the Confrontation Clause had not been extended to state criminal cases and applied only to federal criminal trials.

4. POINTER v. TEXAS, • In the 1965 case of the U.S. Supreme Court held that the Fourteenth Amendment due process clause made the Confrontation Clause binding in state criminal trials. • A state might have an evidentiary rule that permits admissibility of hearsay evidence in criminal cases for reasons unique to that state’s evidentiary system. • In this case, the state’s justification for admission of the hearsay evidence must pass the Confrontation Clause test.

5. THE “INDICIA OF RELIABILITY” REQUIREMENT • Hearsay is not admissible as evidence unless there is a showing of substantial reliability for the statement. • The showing of reliability and trustworthiness necessary to use the statements as evidence is known as “indicia of reliability.”

6. Exceptions • State and federal law provide that several exceptions to the hearsay rule involve a showing that the declarant be unavailable as a witness at the trial. • This burden must be carried before the statement can be used as evidence.

7. Most states and the federal government provide that a showing of “unavailability” is not required for the hearsay exceptions listed under Federal Rule 803. • The following U.S. Supreme cases illustrate the “indicia of reliability” requirement and deal with the question of whether the prosecutor had a burden to show “unavailability” for a declarant before that person’s statements could be used as evidence: • Ohio v. Roberts • United States v. Inadi • White v. Illinois • Lilly v. Virginia

8. Reliability Test • For nontestimonial hearsay the reliability test from Ohio v. Roberts may or may not continue to have meaning. • The Davis v. Washington case decision clearly indicates that all the prosecutor must show is that any hearsay fits within one of that jurisdiction’s exceptions to the hearsay rule.

9. In Davis v. Washington and Hammon v. Indiana (2006), the Supreme Court held that statements made as a result of interrogation by law enforcement are testimonial unless made in response to questions asked only to identify and control an emergency. • As testimonials, the rules of confrontation applied.

10. Confrontation Clause • The Court also stated that in cases where intimidation could be proven, forfeiture by wrongdoing could provide a waiver of the rights of the Confrontation Clause.

11. Forfeiture by Wrongdoing • In 2008, the Supreme Court in Giles v. Ca held that for a waiver of the Confrontation Clause protections, the state must show that the defendant committed acts that prevented the victim from testifying with the intent to make a witness unavailable.

12. EXCEPTIONS TO THE HEARSAY RULE • The Supreme Court has refused many times the request of defense lawyers to interpret the Sixth Amendment Confrontation Clause so strictly that it would eliminate virtually every hearsay exception. • The hearsay rule and its exceptions developed over a three-hundred-year history in English and American law which has now been made a part of federal and state law. • In enacting these exceptions into statutory law, the U.S. Congress and state legislatures have concluded that these exceptions have sufficient guarantees of reliability to be classified as firmly rooted hearsay exceptions.

13. EXCITED UTTERANCE EXCEPTION • Excited utterance is “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” (803 [2]). • Rationale: The reason for the exception is that if such statements are in response to the startling event, the trustworthiness of such statements comes from the fact that the victim or witness had no time to reflect and possibly fabricate the statements.

14. EXAMPLES • Statements during or immediately after shootings, stabbings, or robberies • Statements of rape victims immediately after the crime • Rationale: These statements are almost always made “under the stress of excitement” caused by the startling event of the crime of violence.

15. Examples continued… • Recorded 911 calls and other telephone calls where courts held the caller was speaking under the stress of excitement and permitted the recording to be used as evidence. • Many courts hold that there can be more of a time lapse between the startling event and statements when crimes such as sex crimes are reported by children or mentally retarded persons.

16. THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION EXCEPTION • The existing mental, emotional, orphysical condition is “a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health” (803 [3]) • Rationale:The reason for the exception is that if a statement is not offered to prove the truth of the matter asserted, courts almost always hold that such statements are not hearsay and are admissible as evidence.

17. THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION EXCEPTION (Cont.) • What can this imply? • Motive of the offender can be shown • Intent can be shown • Insanity or mental illness can be shown • State of mind can be shown

18. STATEMENTS FOR THE PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT EXCEPTION • Statements for purposes of medicaldiagnosis or treatment (803 [4]) • The reason for the exception is two fold: • Most of the cases concern child victims of sexual abuse. • If the child reasonably understands the need to be truthful to their physician, and the identification of their assailant is reasonably necessary to their medical diagnosis and treatment, the exception would apply and the physician could testify about statements the child made under such circumstances. • Case: • The 1992 case of White v. Illinois

19. REGULARLY KEPT RECORDS EXCEPTION • States that regularly kept records, public records, records of religious organizations, and family records are admissible under certain federal rules (803). • Rationale: the reason for this exception is that these usually accurate records can be attacked by the opposing party.

20. Some examples are: • Records of regularly conducted (business) activity (803[6]) • Public records and reports (803[8]) • Records of vital statistics (803[9]) • Records of religious organizations (marriage, baptism, etc.) (803[11]) • Family records (personal and family history) (803[13]) • Statements in ancient documents (over twenty years old) (803[16]) • Learned treatises (history, medicine, or other science established as a reliable authority) (803[18])

21. DYING DECLARATION EXCEPTION • A statement made, in a prosecution for homicide or in a civil action or proceeding, 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.

22. Rationale • In 1789 the English court stated the reason for the exception as follows: • “They are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.”

23. DYING DECLARATION EXCEPTION (Cont.) • In the 1990 case of State v. Weir, it was held by the Florida Appellate Court that: • Admission of dying declarations is justified on the grounds of public necessity, manifest justice and the sense that impending death makes false statement by the decedent improbable

24. Must the person actually “DIE?!” • Unfortunately, they must! • However, it “may” be used under the Excited Utterance exception.

25. Because killings are startling events, statements made immediately after a fatal shooting or knifing could be found to be admissible under what two exceptions? • The excited utterance exception or… • The dying declaration exception to the hearsay rule.

26. STATEMENT AGAINST-PENAL-INTEREST EXCEPTION • This is “a statement that was at the time of its making so far contrary to the declarant’s pecuniary of proprietary interest or so far tended to subject the declarant to civil or criminal liability that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” • Rationale: The reason for this exception is that such incriminating admissions or confessions are ordinarily considered to have a reliable basis.

27. STATEMENT AGAINST-PENAL-INTEREST EXCEPTION (Cont.) • Cases: • The 1973 U.S. Supreme Court case of Chambers v. Mississippi • State v. Rosado • Lee v. Mccaughtry

28. THE FRESH COMPLAINT AND THE OUTCRY RULE • Hundreds of years ago, the victim of crime was expected to raise an immediate hue and cry, or outcry. • The failure to do so frequently resulted in the victim losing the right to charge the perpetrator with the crime in a later trial. • The requirement that one make an outcry was dropped from the law many years ago, but a vestige of the requirement survives in the fresh complaint and outcry rule.

29. In the nineteenth century and well into the twentieth century, the common law assumed that only those victims who immediately complained of rape were actually raped, whereas those persons who remained silent somehow consented to the sexual assault. • Today, modern courts reject the concept that if there were no immediate, or fresh, complaint, there was no rape. • In other states, the excited reporting of a rape or other crimes, which are startling events, while under the stress of excitement could be admissible under the excited utterance exception to the hearsay rule.

30. MODERN HEARSAY EXCEPTIONS IN CHILD SEXUAL ABUSE CASES • Statements by children reporting crimes are often admitted as evidence under the excited utterance hearsay exception. • Statements children make to physicians and nurses often qualify as evidence under the medical diagnosis and treatment exception of the hearsay rule. • Newer child hearsay statutes permit more out-of-court statements by children to be used as evidence in child sexual abuse cases. • The reliability of such statements cannot be inferred because these new hearsay exceptions are not firmly rooted in law.

31. Prosecutors must show that statements by children have … • “Particularized guarantees of trustworthiness”

32. The Supreme Court listed the following factors that in thought “properly relate to whether hearsay statements made by a child witness in child sexual abuse cases are reliable”: • Spontaneity and consistent repetition • Mental state of the declarant (child) • Use of terminology unexpected of a child of similar age • Lack of motive to fabricate

33. HAVE INNOCENT PEOPLE BEEN CHARGED OR CONVICTED IN CHILD SEXUAL ABUSE CASES? • Courts have responded to the problems of very young children as victims by relaxing hearsay rules so that more adults could testify about out-of-court statements made by children. • The newer state child hearsay statutes permit additional use of out-of-court statements by children as evidence in criminal trials.

34. HAVE INNOCENT PEOPLE BEEN CHARGED OR CONVICTED IN CHILD SEXUAL ABUSE CASES? (Cont.) • Such statements could be used to corroborate the testimony of children concerning sexual abuse or might be sufficient to present a case without the child testifying where it is shown that the child has been traumatized or otherwise unable to testify.