Chapter 12
The Hearsay Rule
Overview
• Definition
• 6th Amendment limitations
• Exceptions
• 4 “non-exception” exceptions
• 2 exceptions that can be used whether or not
the original declarant is present
• 3 exceptions that can be used only if the original
declarant can not be found
What is it?
Definition:
1. A statement,
2. other than one made by the declarant while testifying
at trial or hearing,
3. offered to prove the truth of the matter asserted.”
Rule
801 (c)
Important Terms
• “Statement”
• May be either written
or oral
• Nonverbal conduct intended
as a substitution for a statement (“assertive conduct”).
• Pointing, nodding the
head, gesturing
Rule
801(a)
• “Declarant”
• The person who originally
made the statement.
Rule
801(b)
Examples
Not Hearsay
• “I saw the car drive by at a high rate
of speed.”
• “I heard Victim hollering for help.”
Hearsay
• I heard Mr. Jones say “Did ya see that
car go speeding by?” (offered to prove the speed)
• Bob heard Victim hollering for help. (offered
to prove the victim called for help)
Hearsay Purposes
• Whether a statement is hearsay depends on what
the purpose it is being offered for is.
• Thus a statement being offered may be hearsay for one purpose, but not hearsay for another.
Examples
• A statement does not have a “hearsay”
purpose if-
• It has “independent
significance”
•
Proving an agreement, argument, conversation, etc.
•
Proving a person’s condition or state of mind (confused, excited, delirious,
etc.)
•
Proving someone was told something or given certain information
Why is Hearsay not allowed?
6th Amendment limitations
• “Confrontation clause”: In all criminal
prosecutions, the accused shall enjoy the right …to be confronted with
the witnesses against him….”
4 reasons for excluding hearsay
• Hearsay is not admissible unless there is an
exception because:
1. The declarant is not under
oath.
2. The demeanor and conduct
of the declarant can not be observed.
3. The statement may be unintentionally
repeated inaccurately by the witness.
4. The declarant can not be
cross examined on the statement in court.
Exceptions
• Exceptions are allowed (there are nearly 30
in the federal rules) but they must not violate the “confrontation clause”.
• Prior test: Ohio v. Roberts
• Statement must bear
“adequate indicia of reliability” by either
•
Being a “firmly rooted hearsay exception”, or
•
Have “particularized guarantees of trustworthiness”
• New (March 2004) law: Crawford v. Washington
• Ohio v. Roberts
is overruled as to “testimonial” statements.
• New test for “testimonial statements”:
• If the original declarant
is not present at the trial, reasonable efforts were made to locate him or her,
and
• the prior statement
was subject to cross examination (as in another earlier court proceeding or
hearing).
• What is a “testimonial statement”?
• A formal statement to
government officers (including but not limited to law enforcement)
• A statement made to
anyone expecting that it would be available to be used in a trial
4 “non-exception” exceptions (Rule 801)
•
Common law and the California rules consider these to be exceptions
1. Prior inconsistent statements
of the witness under oath
2. Prior consistent statement
of the witness, whether under oath or not
3. Witness’s prior out
of court statement identifying a person (like the defendant)
4. Admissions of a party opponent
2 that may be used whether the declarant is present or not
1. Spontaneous and excited utterances
(Rule 803(2))
2. Business and public records
(Rule 803(6) & (7))
1. Spontaneous and Excited Utterances
• Foundation
• A startling event sufficient
to produce a spontaneous outburst
• Statement made in reaction
to it before reflection or a chance to fabricate or exaggerate
• Statement related to
and described the event
• Declarant was able to
see or hear the event
• Does the exception survive Crawford?
• When made to a police
officer right after the commission of a crime, it is called “fresh complaint”.
(See examples in text page 412-13)
• For all practical purposes,
this version of the exception no longer exists.
• However, excited utterance
to a bystander is still valid.
2. Business and Public Records
• Foundation
• The witness is familiar
with the method of preparation of the record (“Custodian”)
• Record was made at or
near the time of the subject of the records in a reliable fashion
• Record was produced
and kept in the regular course of the business (not made just for the court
appearance)
• The regular practice
of the business is to make such a record.
• Additional important points
• Evidence of “negative
information”, such as a lack of record or license, may be proved in the
same manner
• Secondary hearsay
in the record is not admissible even though the record may be.
•
Example: police reports, accident reports
•
Example: medical records
• Does the exception survive Crawford?
• Yes, it is specifically
referred to in the opinion as the type of record not subject to the new rule.
• Question: Would crime
lab records qualify?
3 which can only be used if the original declarant is no longer available
1. Former testimony Rule
804(b)(1)
2, Dying declarations Rule
804(b)(2)
3. Declarations against interest
Rule 804(b)(3)
1. Former Testimony
• Foundation:
• Declarant is no longer
available
• Testimony under oath
was given at
•
Another hearing in the same case (like a PX or a retrial), or
•
Another related case (like a co-defendant’s)
• The party against whom
the testimony is being offered had a chance to fully cross examine the absent
declarant the first time.
• The testimony is being
offered against the party for essentially the same purpose as the first.
• What does “unavailable” mean?
• Missing- whereabouts
are unknown and can not be determined after search using “due diligence”.
• Dead
• Beyond the subpoena
power of the court (like out of the country)
• Severely and permanently
disabled so as to be unable to ever testify
• Refuses to testify either
by legitimate privilege or with no good cause
• Does this exception survive Crawford?
• Yes, by its definition.
2. Dying Declaration
• Foundation:
• Declarant is the victim
of a homicide
•
Common Law and Cal.: victim must stay dead
•
Fed allows if victim recovers but still unavailable
• Statement is being offered
in the homicide prosecution
• Statement concerns the
cause and circumstances of the death
• Statement is made under
the belief that death is impending
• Does this exception survive Crawford?
• By nature, most dying
declarations are made to law enforcement so it would seem not.
• But footnote 6 to the
opinion seems to say that this is a “deviation” and it does, since
it may have been an historical exception that predates
the 6th amendment.
3. Declarations Against Interest
• Definition:
• These are similar to
admissions by non-parties.
• A statement that puts
the declarant at risk of either civil suit or criminal prosecution
• Foundation:
• Declarant is unavailable
• Declarant has actual
sufficient knowledge of the facts
• The facts indicate an
immediate and substantial exposure
• No obvious motive to
fabricate or exaggerate the exposure
• Exception where the defendant offers a statement
that someone else admitted committing the crime
• There must be “corroborating
circumstances indicating trustworthiness” both as to
• The person who claims
to have heard the statement, and
• The person who is supposed
to have made the statement.
• Does this exception survive Crawford?
• It may be significantly
limited
• This is the exception
the DA was using that spawned the Crawford case.