AJ 104 Chapter 8

1. AJ 104 Chapter 8 Hearsay and Its Exceptions

2. Definition of Hearsay • Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the mattered asserted. • Double Hearsay – Refers to a hearsay statement that is contained in another hearsay statement. • Feliciano told Newman what Mason said. What Mason originally said is hearsay; when Feliciano attempts to repeat what Mason said, it is double hearsay.

3. The Hearsay Rule • The Hearsay Rule makes hearsay declarations inadmissible at trial. • There are many exceptions to this rule • Attorneys who wish to introduce hearsay at trial must be able to state which exception is applicable. • The most important reason is a basic distrust for testimony that was not made under oath

4. The Hearsay Rule Focuses on 3 Issues • What is a statement? • Oral, written, recorded, and non-verbal, business records, will. • Who is a declarant? • Person who made the statement • What is meant by “offered in evidence to prove the truth of the matter asserted”? • Testimony that the attorney wants the jury to believe

5. Hearsay or Not? • Prosecutor ask a police officer to tell the jury what the defendant said when he confessed. • If the defense wants to show that the defendant was insane and try to admit that defendant’s statement, I am “Hitler” • Prosecutor want to admit and note given to a teller…..(two issues)

6. Exceptions to the Hearsay Rule • Only statements which fall under the one of the exceptions to the Hearsay Rule are admissible in court. • All 50 states do not follow exactly the same exceptions to the hearsay rule. ½ Follow the FRE, the others follow their own. The FRE list 30 exceptions. • The textbook discusses 14 exceptions to the Hearsay Rule.

7. Exceptions • Admissions and Confessions • Declarations against Interest • Spontaneous Statements and Contemporaneous Declarations • Dying Declarations • Mental and Physical State • Business Records and Official Documents

8. Exceptions • Reputation • Former Testimony • Prior Inconsistent Statements • Prior Consistent Statements • Ancient Documents • Past Recollection Recorded • Prior Identification

9. Admissions and Confessions • The Admissions Exception to Hearsay Rule makes a statement admissible if: • It was made by a person who is a party to the lawsuit (criminal case, the defendant) • The statement is used against the person who made it • Examples, page 172

10. Other Admission • An Authorized Admission is a statement made by a person who is authorized to speak for someone else (pg. 173) • Tacit or Adoptive Admission occurs when someone is accused of wrong doing but does not deny the accusation. (pg. 173) • Remember! In addition to the admissions exception, confessions meet constitutional standards.

11. Declarations against Interest • A statement is admissible under the this exception if it meets two criteria: • The person making the statement is not available to testify in court • The statement is against the interest of the person making the statement • Under these circumstances the statement is admissible no matter who makes it.

12. What Qualifies as Unavailable? • According to Rule 804(a) FRE, a person may be considered unavailable for at least five reasons: • The witness refuses to testify (statements are privileged) • The witness refuses to testify, violating a court order • The witness lacks sufficient memory • The witness has died or disabled • The witness cannot be located • (pg 175)

13. Spontaneous Statements and Contemporaneous Declarations • Some states consider these to be two separate exceptions. • Spontaneous Statement (‘excited utterances”) • – A statement is admissible if it meets two criteria: • It tells about something the declarant observed with one of the five senses • It was made spontaneously while the declarant was still under the stress and excitement of the event. • (pg 176)

14. Contemporaneous Declarations • Contemporaneous Declarations (Present Sense Exception) – A statement is admissible if it meets two criteria • It was made by the declarant to explain what he/she was doing • It was made at the time the declarant was performing the act that he/she was trying to explain • (pg. 176/77)

15. Dying Declarations • A Dying Declaration is admissible if: • The declarant had a sense that he/she would die very soon and • The declarant had firsthand knowledge of what he/she was saying and • The statement is about the cause and circumstances of the death and • The declarant is now dead

16. Mental and Physical State • A statement is admissible under the Mental or Physical State Exception if: • The statement relates to the person’s state of mind, emotion, or physical sensation at the time it was made and • The statement is offered to prove the declarant’s state of mind and • The circumstances indicate the statement is trustworthy

17. Business Records and Official Documents • A document is admissible if: • The document is made at or near the time of the underlying event and • The document is made in the regular course of business and • The custodian or other qualified witness testifies as to its identity and mode of preparation and • Sources of information and method and time of preparation were such as to indicate its trustworthiness.

18. Business Records and Official Documents • The term business includes every kind of business, governmental activity, profession, or occupation and calling, whether conducted for profit or not. • Business records can be used to establish many things i.e. embezzlement cases • Reliable records can be used to as evidence that an even did or did not occur.

19. Business Records and Official Documents • Official documents – Official records of public agencies are covered by a rule similar to business records. • Records kept on what the agency does • Records that others are required by law to file with the public agency. (Birth, death, and marriage certificates) • (pg 181)

20. Reputation • Reputation – what others say about someone’s character. It is by definition, hearsay. Statements are admissible if: • The statement relates to the reputation of a person among his/her associates or • It relates to the reputation of a person in his/her community • Some states have expanded the rule to allow character witnesses to give their personal opinions. (pg 183)

21. Former Testimony • Former testimony is admissible if: The former testimony was recorded under oath at a prior (each state will specify which hearings apply) and • The person whose testimony is introduced is not available to testify at the present court proceeding and

22. Former Testimony • The former testimony is offered: • Against the person who offered it in evidence on his/her behalf when the former testimony was given or • The party against whom the former testimony was originally offered was a party to the proceeding and had the right to cross exam with a motive similar to what she/he now has. • (pg 183)

23. Prior Inconsistent Statements • Prior Inconsistent Statements are used to impeach a witness. • Many claim that this is not hearsay because they are offered to show a witness is lying. • If the witness admits the inconsistent statement, no other witnesses are called to impeach • If the witness denies, additional witnesses may be called to restate what the witness said

24. Prior Inconsistent Statements • Prior Inconsistent Statements are admissible if the following occurred: • The statement is inconsistent with the testimony given on the witness stand and • While on the witness stand in the current trial, the witness was asked about the inconsistent statement and given a chance to explain • (pg 184)

25. Prior Consistent Statements • Prior Consistent Statements are used to rehabilitate a witness who has been impeached by prior inconsistent testimony. • It can also be used if there is a charge that the witness recently fabricated his/her testimony • FRE and a number of states do not classify prior consistent statements as hearsay although some states do.

26. Prior Consistent Statements • Prior Consistent Statements are admissible if any one of the following exist: • The witness has been impeached by prior inconsistent statements and the prior consent statement was made before the prior inconsistent statement or • During cross-examination it was alleged that the witness recently changed his/her testimony and the prior consistent statement was made before the date the testimony was allegedly changed or,

27. Prior Consistent Statements • During cross-examination it was alleged that the witness altered his/her testimony due to bias or other bad motive and the prior consistent statement was made before the date the witness allegedly altered his/her testimony. • (pg 185)

28. Ancient Documents • This exception is necessary because after many years there is frequently no one available who can testify about the exact events that surrounded the making of the documents • Most commonly involves deeds & wills

29. Ancient Documents • Ancient Documents are admissible if: • The document appears to be genuine and • People have acted as if the document is genuine and • The document is at least as old as required by the legislature • The length of time to qualify varies and is set by the state and the FRE (20 years) • (pg 186)

30. Past Recollection Recorded • Past Recollection Recordedcan be used to introduce evidence even though the person who wrote it down can no longer remember the facts. • Most commonly used, police reports • (pg 186 describes 6 conditions)

31. Prior Identification • Prior Identification – Some states have created a special hearsay exception. • Many states do not consider testimony about prior identification to be hearsay. • Prior Identification is used to introduce testimony about both correct and incorrect identifications. • Key point: Was it made at the time of the crime by the person testifying correctly identifying the person.

32. Prior Identification • Evidence of a Prior Identification is admissible if all of the following are met: • The witness has testified that he/she accurately identified the person who committed the crime and • The witness identified the defendant or another person as the person who committed the crime and • The identification was made when the crime was fresh in the witness’s memory. • (pg 188)