CJ 1123 <a href="/keyword/criminal-evidence/" >criminal evidence</a> and Procedure Hearsay and Its Exceptions Hearsay and Its Exceptions 8-1 Basic Hearsay Principles Our systems requires that a case be decided on the basis of sworn testimony given in the presence of the trial judge or jury General rule out of court statements may not be used as evidence Hearsay: 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 1. What is a statement? A &quot;statement&quot; is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion Includes oral, written, video/audio recording and nonverbal Letters, business records, will Body movement with the intent to communicate (example?) A statement is hearsay if it is not made in court at the hearing that is currently being conducted Even sworn testimony at the preliminary hearing is hearsay Witness's account of what he/she said while the crime was being committed is hearsay 2. Who is a declarant? Person who made the statement 3. What is meant by &quot;offered in evidence to prove the truth of the matter?&quot; Something is &quot;offered&quot; when the atty wants the jury to believe the answer 8-2 The Hearsay Rule Basic rule hearsay is not admissible in court The origins of the hearsay rule can be traced to the trial of Sir Walter Raleigh in 1603, who was found guilty of high treason on the basis of testimony that someone had overheard someone else say they heard Raleigh would slit the King's throat. Reasons Distrust for testimony not made under oath Made without any fear of prosecution for perjury Jury can not see the person who made the statement Can not questions and cross examine for veracity 6th A right to confront and cross those who accuse you of a crime When hearsay is used these rights are denied Crawford v Washington (2004) testimonial hearsay is admissible in a criminal trial only if the witness is unavailable and the defendant had a prior opportunity to cross that witness Meridith Spencer Page 1 of 7 CJ 1123 <a href="/keyword/criminal-evidence/" >criminal evidence</a> and Procedure Hearsay and Its Exceptions Specifically applies to introduction of statements made at the prelim hearing, before a grand jury or at a formal trial and answers given during police interrogation 8-3 Exceptions to the Hearsay Rule There are many exceptions to the hearsay rule Often, more than one exception will apply Double hearsay hearsay within hearsay not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. 8-4 Admissions and Confessions Statements made by parties to the lawsuit are not hearsay They will be admissible if the atty establishes the proper foundation Only concerns: 1. did the person make the statement 2. are they mentally competent Reason a person would not make untrue statement that could be used against him or her (statement against self interest) Admissions of a party may not be used against the person making them the reverse is NOT true you can not introduce your own self serving statements to bolster the case Defendant's confession may be admitted under the Admissions Exception By pleading &quot;not guilty&quot; they deny committing the crime and the confession can be used against them Two special situations where this exception applies&quot; 1. authorized admission statement made by a person who is authorized to speak for someone else (president can speak for the company but the janitor can not) 2. tacit admissions (adoptive admission) accused of wrongdoing but does not deny the accusation applies only to face to face confrontations does not apply when the police accuse a suspect of a crime (5th A right) Confessions also need to meet constitutional standards (Miranda) It may be necessary to exclude confessions made by a co-defendant, if the co-d refuses to take the stand denies 6th A right to cross examine Many states allow statements made by co-conspirators mirrors the criminal law concept that each conspirator is responsible for the acts of the other conspirators Meridith Spencer Page 2 of 7 CJ 1123 <a href="/keyword/criminal-evidence/" >criminal evidence</a> and Procedure Hearsay and Its Exceptions 8-5 Declarations Against Interest Admissible no matter who made them as long as the declarant is unavailable Person is considered unavailable if: 1. refuses to testify on the grounds that the statements are privileged 2. refuses to testify even though there is a court order requiring it 3. lacks sufficient memory of the events 4. died or currently has a mental or physical disability 5. can not be found after a diligent search the testimonial hearsay will only be admitted from an unavailable witness if the defendant had the opportunity to cross examine them before (Crawford) originally a statement was considered to be against self interest if it could result in a financial loss it now includes confessions to crimes considered trustworthy bc it is unlikely you would make a damaging statement unless it were true 8-6 Spontaneous Statements (excited utterance) and Contemporaneous Declarations (present sense impression) Considered trustworthy bc there has been no time for the declarant to think about what they are saying and lie The idea of res gestae is that some words and conduct are so closely associated with an occurrence that they can be considered part of the &quot;whole story&quot; and as such their report does not violate the hearsay rule. Spontaneous Declarant must have personally observed the event they are commenting on Statement must be made very near the time the event happened and without any questioning Self-serving statements are not admissible under this Used to admit statements other people made defendant's statements are admissible under Admissions Exception Contemporaneous Comments and acts must happen at the same time (be contemporaneous) They do not need to be spontaneous can be responses to questions Police officer asks: what are you doing? not the result of speculative hindsight by someone who has familiarized themselves with the case 8-7 Dying Declarations A person who not go to meet their Maker with a lie on the lips Traditional rule used only in criminal prosecutions for the homicide of the declarant Meridith Spencer Page 3 of 7 CJ 1123 <a href="/keyword/criminal-evidence/" >criminal evidence</a> and Procedure Hearsay and Its Exceptions Many states allow it in both criminal and civil trials 1. belief they would die almost immediately 2. statement can only be about the events surrounding the death who inflicted the injury do not have to be spontaneous it is frequently necessary to ask the homicide victim questions to determine if they believe death is imminent questions regarding the crime are also allowed 8-8 Mental and Physical State Statement must be related to the declarant's mental, emotional or physical state at the time it was made Useful to show intent, plan, motive, design, mental feeling, pain or health Admissible even if the declarant is available at the time of the trial Most states allow admission of statements relating to physical or mental state that were made for the purpose of medical diagnosis or treatment relevant to the case Statements regarding irrational behavior are usually not admitted Business Records and Official Documents Business Records A well run business keeps records on employees, inventory, etc This are considered more trustworthy than info obtained by a less systematic method This applies to memoranda, reports, data compilation in any form Business refers to every kind of business gov't, activity, profession, occupation, calling whether for profit or not Requirements: 1. someone with firsthand knowledge must have made the report near the time the event occurred filling out a report, cash register tape, log entries failure to make the report promptly makes it less reliable 2. must be kept as a routine part of doing business whatever procedure the business has put in place MUST be followed business records can establish many things: embezzlement, time card can show not at work, hotel and airline records show location at a given time lack of a record in a business that keeps good records can show that an event did not occur this evidence is not conclusive the other side will have the convince the jury Official Documents Public agencies ex PD Meridith Spencer Page 4 of 7 8-9 CJ 1123 <a href="/keyword/criminal-evidence/" >criminal evidence</a> and Procedure Hearsay and Its Exceptions Similar rules as business records Two types of records: 1. records kept on what the agency does 2. records that others are required by law to file with the public agency (birth certificate, death certificate etc) police reports are different anything that is observed by the officer will be admissible information given to the officer is less reliable this secondhand information is only admissible if another exception to the hearsay rule makes it admissible 8-10 Reputation What others say about someone's character By its very nature is hearsay and is often gossip They are admissible if 1. the statement relates to the reputation of a person among their associates 2. it relates to the reputations of a person in their community Former Testimony Covers testimony under oath at a prior court appearance, deposition or arbitration proceeding Bc it is under oath it is considered trustworthy If the former testimony is used to impeach, it comes in under the Prior Inconsistent Statement Exception Most commonly used at trial to introduce testimony taken at the prelim hearing If it is the testimony of a prosecution witness, the defense must have had the opportunity to cross if they chose not to cross it is still admissible Testimony might have come from a previous trial of the same case (hung jury or case reversed on appeal) If there is more than one defendant it may have come from the prelim hearing of the other defendant In these situation, there must have been at least one defendant present with a motive to cross that is similar to the motive to cross that the current defendant has 8-12 Prior Inconsistent Statement Can be used to impeach a witness Many ppl claim these are not hearsay bc they are not offered to show they are true they are offered to show the witness is not being truthful If the witness admits the inconsistent statement, no other witnesses are a called to impeach Meridith Spencer Page 5 of 7 8-11 CJ 1123 <a href="/keyword/criminal-evidence/" >criminal evidence</a> and Procedure Hearsay and Its Exceptions If they deny making the statement, a witness may be called to restate what was said The purpose of asking about it first is to save the court time it gives the witness a chance to explain if it was taken out of context or is not accurate 8-13 Prior Consistent Statements Used to rehabilitate a witness who has been impeached by prior inconsistent statements Offered to show that the person made the statement not that the statement is true Normally done on redirect based on the restrictions of redirect, it is very imp to establish when the statement was made Ancient Documents This exception is necessary bc after many years there is often no one available to testify about the exact events Most commonly involves deeds and wills Past Recollection Recorded Used to introduce evidence even though the person who wrote it down can no longer remember the facts (common with lesser crimes and traffic tickets) Considered trustworthy when the original report was accurately made near to the time the event occurred when memory was at its best Report is anything in writing A statement a victim or witness made to the police would qualify it is were in a police report To use this exception, witnesses must have a poor memory of the incident and at the same time testify that the report is accurate This sounds like a contradiction it is done by showing a habit of making accurate reports Normally you reread a report, make any corrections and don't sign it until it is accurate By seeing their signature, they can testify that the report must have been accurate Only things that would otherwise be admissible can be admitted under this exception Once something has been ruled admissible under this rule the report is read into record The document is not given to the jury unless the opposing side requests that the jury be allowed to see it Allowing the jury to use it as an exhibit is believed to give the contents more weight than it deserves 8-14 8-15 Meridith Spencer Page 6 of 7 CJ 1123 <a href="/keyword/criminal-evidence/" >criminal evidence</a> and Procedure Hearsay and Its Exceptions 8-16 Prior Identification Some states have created an exception for the prior identification of the suspect by the victim States that do not consider admissions by parties to be hearsay do not consider prior ID's are hearsay This exception is used to introduce testimony about both correct and incorrect identifications Key is that the ID was made at or near the time of the arrest Person who made the ID testified that they correctly ID'ed the person selected as the criminal Meridith Spencer Page 7 of 7