Chapter 7

1. Chapter 7 The Use of Hearsay in the Courtroom

2. WITNESSES AND THE HEARSAY RULE • When witnesses give their testimony, the subject matter is typically some event observed in some manner by them, which is subsequently recollected in the courtroom. • The principal means used by courts to guard against standard risks are the requirements that the witness testify under oath and that the witness be available for cross-examination.

3. Testimony Risks • Testimony is generally seen as presenting four risks relating to its truthfulness: • The accuracy of the witnesses’ perception • The memory of the witnesses • The meaning of the testimony • The sincerity of the witnesses

4. WITNESSES AND THE HEARSAY RULE (Cont.) • Hearsay in most federal and state criminal proceedings would be inadmissible under the relevant hearsay rule. • Even if something is hearsay, the rule excluding its admissibility is subject to numerous exceptions. • In criminal trials, the confrontation clause of the Sixth Amendment to the U.S. Constitution imposes a constitutional restriction on out-of-court testimony by witnesses.

5. THE HISTORY OF THE HEARSAY RULE • Between the thirteenth and seventeenth centuries, English criminal courts continued to convict defendants based on “anonymous accusers and absentee witnesses.” • This practice was particularly prevalent in the infamous star chamber trials, which were used by the monarch to control political enemies.

6. THE HISTORY OF THE HEARSAY RULE (Cont.) • In such trials, the evidence was frequently the “confession” of a single “conspirator,” who was not available for cross-examination by the accused and who did not repeat his “confession” under oath at the trial. • These abuses were condemned by many of Queen Elizabeth’s subjects.

7. THE TRIAL OF SIR WALTER RALEIGH • The trial of Sir Walter Raleigh illustrates the abuses that were occurring before hearsay rules were used. • In November 1603, Raleigh was tried for treason against the King and convicted based upon the confession of a single conspirator, who did not appear as a witness at the trial. • In the years following the trial, the English courts began developing hearsay rules; by 1690, it was reported that English courts were using hearsay rules to prevent abuses that are recorded in the history of that period.

8. Raleigh’s Downfall • Imprisoned in the Tower of London until 1616 (instead of being beheaded!) by a political enemy’s testimony, Raleigh was finally released to conduct an expedition to Venezuela with the admonition not to molest Spanish possessions. • Unfortunately, the Captain of the voyage did attack the Spanish, and the Spanish king’s ambassador demanded his death. • Raleigh was executed based on the original sentence of treason.

9. The Trial of William Penn • After the 1670 trial of William Penn, the historic development of the concept of an impartial jury continued, along with the development of the hearsay rule. • Penn was sentenced to jail, but later was released and went to America where he was instrumental in religious freedoms and prison reforms.

10. HEARSAY RULES AND THE USE OF INDEPENDENT JURIES IN THE AMERICAN COLONIES/STATES • The concepts of impartial, independent juries and hearsay rules were brought to the American colonies by English settlers as part of the English common law system. • After the American Revolutionary War, both the right to an impartial jury and the use of hearsay rules were made part of the American legal system. • The Sixth Amendment confrontation clause was made part of the American Bill of Rights in 1791.

11. WHAT IS HEARSAY • Rule 801 (c) of the Federal Rules of Evidence defines hearsay as follows: “‘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 matter asserted.” • The declarant is the person who made the statement.

12. WHAT IS AN ASSERTIVE STATEMENT? • The declarant’s statement must be an assertive statement offered as proof that the subject matter of the statement is true in order to fall within the hearsay rule. • An assertive statement is one in which the declarant intends to communicate his thoughts or beliefs.

13. NONVERBAL COMMUNICATIONS CAN BE ASSERTIVE • Nonverbal acts can be used to communicate. • It is hearsay if the purpose of the nonverbal act is to communicate and the communication is assertive.

14. CONDUCT THAT IS NOT MEANT TO COMMUNICATE • If a person is engaging in conduct that is not meant to communicate, this would generally be treated as hearsay, as there is no attempt to be assertive.

15. THE HEARSAY RULE FORBIDS ONLY STATEMENTS OFFERED TO PROVE THE TRUTH OF THAT STATEMENT • If an attorney can convince a judge that a statement offered for use in evidence is meant to prove something other than the truth of that statement, the judge will rule that it is admissible for evidence. • The hearsay rule forbids only statements offered to prove the truth of the matterasserted; it does not forbid something other than the truth of that statement.

16. The following examples illustrate only a few of the numerous other purposes that would take an out-of-court statement out of the hearsay classification: • Knowledge • Feelings or state of mind • Insanity • Effect on hearer • The trial judge should instruct the jury that it is to consider the evidence only for the allowable purpose.

17. WHAT IS NOT HEARSAY? FEDERAL RULES OF EVIDENCE 801 (D)(1), (2) AND (2E) • Besides being limited to assertions offered to establish proof of the assertion, the hearsay rule also does not apply to various out-of-court statements that would otherwise literally fall within the definition of hearsay.

18. PRIOR STATEMENT BY A WITNESS • If a witness testifies at a trial, and is cross-examined concerning an earlier statement made by a witness, the statement is not hearsay if: • The statement is inconsistent and was given under oath at a previous trial, hearing or deposition • The statement is consistent and is offered to rebut a charge that the witness’ present testimony is a recent fabrication or stems from an improper motive

19. ADMISSION BY PARTY-OPPONENT • Where the statement sought to be admitted is an out-of-court statement made by the defendant or someone acting on his/her behalf, rule 801 (d)(2) provides that the statement is not hearsay. • The hearsay rule never forbids admissions by a party-opponent (the defendant in a criminal case).

20. THE CO-CONSPIRATOR RULE • Statements by a co-conspirator made during and in furtherance of the conspiracy are not hearsay. • The justification for this rule is that parties in a conspiracy are essentially partners, and an admission by one partner is fairly attributable to the other partners. • The U.S. Supreme Court has said that statements by a co-conspirator “provide evidence of the conspiracy’s context that cannot be replicated, even if the co-conspirator testifies to the same matters in court.”

21. THE CO-CONSPIRATOR RULE (Cont.) • The court also noted that “simply calling the co-conspirator in hopes of having him repeat his prior out-of-court statements is a poor substitution for the full significance that the flow from statements made when the conspiracy is operating in full force” (co-conspirator rule)