Presentation on theme: "Hearsay and Its Exceptions"— Presentation transcript:
1 Hearsay and Its Exceptions AJ 104 Chapter 8Hearsay and Its Exceptions
2 Definition of HearsayHearsay 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 RuleThe Hearsay Rule makes hearsay declarations inadmissible at trial.There are many exceptions to this ruleAttorneys 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 statementWhat 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 DeclarationsDying DeclarationsMental and Physical StateBusiness Records and Official Documents
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 itExamples, page 172
10 Other AdmissionAn 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 courtThe statement is against the interest of the person making the statementUnder 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 orderThe witness lacks sufficient memoryThe witness has died or disabledThe 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 sensesIt 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 criteriaIt was made by the declarant to explain what he/she was doingIt 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 andThe declarant had firsthand knowledge of what he/she was saying andThe statement is about the cause and circumstances of the death andThe 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 andThe statement is offered to prove the declarant’s state of mind andThe 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 andThe document is made in the regular course of business andThe custodian or other qualified witness testifies as to its identity and mode of preparation andSources 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 casesReliable 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 doesRecords that others are required by law to file with the public agency. (Birth, death, and marriage certificates)(pg 181)
20 ReputationReputation – 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 orIt relates to the reputation of a person in his/her communitySome states have expanded the rule to allow character witnesses to give their personal opinions. (pg 183)
21 Former TestimonyFormer testimony is admissible if: The former testimony was recorded under oath at a prior (each state will specify which hearings apply) andThe 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 orThe 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 impeachIf 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 andWhile 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 testimonyFRE 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 orDuring 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 DocumentsThis 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 documentsMost commonly involves deeds & wills
29 Ancient Documents Ancient Documents are admissible if: The document appears to be genuine andPeople have acted as if the document is genuine andThe document is at least as old as required by the legislatureThe 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 Recorded can 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 IdentificationPrior 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 IdentificationEvidence 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 andThe witness identified the defendant or another person as the person who committed the crime andThe identification was made when the crime was fresh in the witness’s memory.(pg 188)