Difference between revisions of "Hearsay"

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=Background=
 
=Background=
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In the United States, testimonial evidence is hearsay if:  
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In the United States, testimonial evidence is hearsay if it is:  
−
#a statement  
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#A statement  
−
#made our of court  
+
#Made out of court  
−
#by the declarant  
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#By the declarant  
−
#offered for the truth of the matter asserted.
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#Offered for the truth of the matter asserted.
  
−
* '''Statement''' - A statement may be an oral or written assertion and it may also be nonverbal conduct of the person.
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* '''Statement''': may be an oral or written assertion or nonverbal conduct of the person.
−
* '''Declarant''' - Declarant is a person making a statement. Neither a machine nor an animal are considered declarants under the hearsay rule.
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* '''Declarant''': a person making a statement.  
−
* '''Offered for the truth of the matter asserted''' - In certain cases evidence may be admissible because it is not offered for the truth of the matter asserted. For instance, the evidence may be for its:
+
**Neither a machine nor an animal are considered declarants under the hearsay rule.
 +
* '''Offered for the truth of the matter asserted''': in certain cases, evidence may be admissible because it is not offered for the truth of the matter asserted. For instance, the evidence may be for its:
 
#Effect on the listener (notice)
 
#Effect on the listener (notice)
 
#Verbal Act / Publication. [Words have independent legal significance.]
 
#Verbal Act / Publication. [Words have independent legal significance.]
−
##Simply because it was said (defamatory statement)  
+
##Because it was said (defamatory statement) or
−
##or because the statement itself is all that matters "I accept" for contract formation.
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##Because the statement itself is all that matters (e.g., "I accept" for contract formation).
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#Impeachment during Cross-examination. In this case, the evidence is not offered for the truth, it is offered to prove the inconsistency of the witness.
+
#Impeachment during cross-examination.  
−
#Circumstantial evidence of the speaker's state of mind, aka Consciousness of Innocence
+
##In this case, the evidence is not offered for the truth, but rather to prove the inconsistency of the witness.
 +
#Circumstantial evidence of the speaker's state of mind, aka ''consciousness of innocence''
  
 
Hearsay even includes the witnesses own testimony about what she said prior to trial.  
 
Hearsay even includes the witnesses own testimony about what she said prior to trial.  
 
*Example: "I told Dexter it was raining outside."
 
*Example: "I told Dexter it was raining outside."
 +
Hearsy includes both oral and written evidence.
 +
Double Hearsay.
 +
*Example: "I told Dexter that Frank wanted to go out on Friday night"
  
 +
Hearsay should be inadmissible at trial because the evidence suffers from defects which cannot be remedied. First, the testimony is offered without an oath. Second, the demeanor or the witness cannot be gauged when the testimony is delivered by a third party. The jury cannot evaluate its probative value. Finally, the witness cannot be cross-examined by the defendant. Under the adversarial system, the opportunity to cross-examine is essential to the admissibility of the testimony. Because of these defects, the defendant cannot test the witnesses reliability, memory, ability to perceive or sincerity.
  
−
Hearsay should be inadmissible at trial because the evidence suffers from defects which cannot be remedied. First, the testimony is offered without an oath. Second, the demeanor or the witness cannot be gauged when the testimony is delivered by a third part. Finally, the witness cannot be cross-examined by the defendant. Because of these defects, the defendant cannot test the witnesses reliability, memory, ability to perceive or their sincerity.
+
=Hearsay Exceptions=
  
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=Hearsay Exceptions=
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In the United States there are several exceptions to the hearsay rule. Hearsay is inadmissible unless the evidence is necessary, reliable, the probative value outweights the prejudicial value, or it fulfills a traditional exception.
  
−
In the United States there are several exceptions to the hearsay rule. They can generally be grouped into two categories. In the first, the testimony is admissible only if the declarant is unavailable. In the second category the hearsay is admissible regardless of whether the declarant is available or not.  
+
Exceptions can generally be grouped into two categories. In the first, the testimony is admissible only if the declarant is unavailable. In the second category the hearsay is admissible regardless of whether the declarant is available or not.  
  
 
These exceptions are based on the theory that in certain situations, hearsay is more reliable.
 
These exceptions are based on the theory that in certain situations, hearsay is more reliable.
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==The Definition of Unavailable==
 
==The Definition of Unavailable==
  
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==Exceptions that apply when Declarant is Unavailable==
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A declarant may be considered "unavailable" in many cases.  
−
 
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*Declarant '''refuses''' to testify despite a court order,
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==Exceptions that Exist at All Times==
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*Declarant is '''dead''' or unable to be present because of physical or mental illness,
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(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
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*Declarant testifies to a '''lack of memory''' of the subject matter,
−
 
+
*Declarant is exempted from testifying to subject matter because on grounds of '''privileged statements''', or
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(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
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*Declarant is absent and the proponent of the statement has been unable to procure the declarant's attendance by process or reasonable means.
−
 
 
−
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
 
−
 
 
−
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
 
−
 
 
−
(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
 
−
 
 
−
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
 
−
 
 
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(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
 
−
 
 
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(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
 
−
 
 
−
(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
 
−
 
 
−
(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
 
−
 
 
−
(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
 
−
 
 
−
(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
 
−
 
 
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(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
 
−
 
 
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(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
 
−
 
 
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(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
 
−
 
 
−
(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.
 
  
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(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
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A declarant is no longer "unavailable" if their unavailability was brought about by wrongdoing for the purpose of preventing the witness from attending or testifying at the trial.
  
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(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
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==Exceptions that Apply when Declarant is Unavailable==
  
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(19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.
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*'''Former Testimony'''
 +
*'''Statement Under Belief of Impending Death'''
 +
*'''Statement Against Interest'''
 +
*'''Statemetn of Personal or Family History'''
 +
* '''Forfeiture by Wrongdoing'''
  
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(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.
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==Exceptions that Apply Regardless of Declarant Availability==
  
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(21) Reputation as to character. Reputation of a person's character among associates or in the community.
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*'''Present Sense Impression'''
 +
*'''Excited Utterance'''
 +
*'''Then existing mental, emotional, or physical condition'''
 +
*'''Statement for purpose of medical diagnosis or treatment'''
 +
*'''Recorded Recollection'''
 +
*'''Business Records Exception'''
 +
*'''Absence of Business Records'''
 +
*'''Public Records and Reports'''
 +
*'''Records if Vital Statistics'''
 +
*'''Absence of Public Record or Entry'''
 +
*'''Records of Religious Organizations'''
 +
*'''Marriage, Baptismal and Similar Certificates'''
 +
*'''Family Records'''
 +
*'''Records of Documents Affecting an Interest in Property'''
 +
*'''Statements in Documents Affecting an Interest in Property'''
 +
*'''Ancient Documents'''
 +
*'''Market Reports, Commercial Publications'''
 +
*'''Learned Treaties'''
 +
*'''Reputation Concerning Personal or Family History'''
 +
*'''Reputation Concerning Boundaries or General History'''
 +
*'''Reputation as to Character'''
 +
*'''Judgement of Previous Conviction'''
 +
*'''Judgment as to Personal, Family or General History or Boundaries'''
  
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(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.
+
=Non-Hearsay Uses of Out-of-Court Statements=
 +
Non-hearsay out-of-court statements are statements offered to prove some other relevant fact than the truth of its contents.
 +
There are three protential uses:
 +
#Words of Legal Consequence (sometimes referred to as verbal acts): the law attaches consequences to certain verbal acts. Consider the law of contracts or torts (fraudulent representation or defamatory words).  
 +
#Circumstancial Evidence of State of Mind: (e.g. spontaneous statements). Look at res gestae exceptions where a person makes a statement under extreme duress. The statement is admissible (so stressed out and do not know what they are doing, so have no opportunity to concoct a story). The statement would be used to show that the individual was stressed out or hysterical. There are also implied assertions, such as particular circumstantial use of the words or conduct of a person who is not a witness. It requires a double inference from words or conduct. First, it must infer that the person had certain knowledge about something in his environment. Next, it must infer that the thing was as the person believed it to be. Words spoken can be actions: they are non-hearsay if proving the state of mind - such as hysteria based on tone, only trying to prove that the narration occurred, not the content of the narration. Admissions of statement to indicate state of mind are not lead to prove the truth of what they say, but they may be used as circumstancial evidence allowing for indirect interferences.
 +
#Circumstantial Evidence of Knowledge: refers to witnesses who have unique knowledge, or knowledge not generally known, that is used to narrow the field of suspects significantly (to possibly just the accused). Statements are not used to prove the truth for what is asserted in it, but used to illustrate the activities being conducted (e.g.: drug deal on the phone).  
  
−
(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
 
  
  
 
----
 
----
 
See [[Evidence]]
 
See [[Evidence]]

Latest revision as of 12:55, 3 August 2012

Background

In the United States, testimonial evidence is hearsay if it is:

  1. A statement
  2. Made out of court
  3. By the declarant
  4. Offered for the truth of the matter asserted.
  • Statement: may be an oral or written assertion or nonverbal conduct of the person.
  • Declarant: a person making a statement.
    • Neither a machine nor an animal are considered declarants under the hearsay rule.
  • Offered for the truth of the matter asserted: in certain cases, evidence may be admissible because it is not offered for the truth of the matter asserted. For instance, the evidence may be for its:
  1. Effect on the listener (notice)
  2. Verbal Act / Publication. [Words have independent legal significance.]
    1. Because it was said (defamatory statement) or
    2. Because the statement itself is all that matters (e.g., "I accept" for contract formation).
  3. Impeachment during cross-examination.
    1. In this case, the evidence is not offered for the truth, but rather to prove the inconsistency of the witness.
  4. Circumstantial evidence of the speaker's state of mind, aka consciousness of innocence

Hearsay even includes the witnesses own testimony about what she said prior to trial.

  • Example: "I told Dexter it was raining outside."

Hearsy includes both oral and written evidence. Double Hearsay.

  • Example: "I told Dexter that Frank wanted to go out on Friday night"

Hearsay should be inadmissible at trial because the evidence suffers from defects which cannot be remedied. First, the testimony is offered without an oath. Second, the demeanor or the witness cannot be gauged when the testimony is delivered by a third party. The jury cannot evaluate its probative value. Finally, the witness cannot be cross-examined by the defendant. Under the adversarial system, the opportunity to cross-examine is essential to the admissibility of the testimony. Because of these defects, the defendant cannot test the witnesses reliability, memory, ability to perceive or sincerity.

Hearsay Exceptions

In the United States there are several exceptions to the hearsay rule. Hearsay is inadmissible unless the evidence is necessary, reliable, the probative value outweights the prejudicial value, or it fulfills a traditional exception.

Exceptions can generally be grouped into two categories. In the first, the testimony is admissible only if the declarant is unavailable. In the second category the hearsay is admissible regardless of whether the declarant is available or not.

These exceptions are based on the theory that in certain situations, hearsay is more reliable.

The Definition of Unavailable

A declarant may be considered "unavailable" in many cases.

  • Declarant refuses to testify despite a court order,
  • Declarant is dead or unable to be present because of physical or mental illness,
  • Declarant testifies to a lack of memory of the subject matter,
  • Declarant is exempted from testifying to subject matter because on grounds of privileged statements, or
  • Declarant is absent and the proponent of the statement has been unable to procure the declarant's attendance by process or reasonable means.

A declarant is no longer "unavailable" if their unavailability was brought about by wrongdoing for the purpose of preventing the witness from attending or testifying at the trial.

Exceptions that Apply when Declarant is Unavailable

  • Former Testimony
  • Statement Under Belief of Impending Death
  • Statement Against Interest
  • Statemetn of Personal or Family History
  • Forfeiture by Wrongdoing

Exceptions that Apply Regardless of Declarant Availability

  • Present Sense Impression
  • Excited Utterance
  • Then existing mental, emotional, or physical condition
  • Statement for purpose of medical diagnosis or treatment
  • Recorded Recollection
  • Business Records Exception
  • Absence of Business Records
  • Public Records and Reports
  • Records if Vital Statistics
  • Absence of Public Record or Entry
  • Records of Religious Organizations
  • Marriage, Baptismal and Similar Certificates
  • Family Records
  • Records of Documents Affecting an Interest in Property
  • Statements in Documents Affecting an Interest in Property
  • Ancient Documents
  • Market Reports, Commercial Publications
  • Learned Treaties
  • Reputation Concerning Personal or Family History
  • Reputation Concerning Boundaries or General History
  • Reputation as to Character
  • Judgement of Previous Conviction
  • Judgment as to Personal, Family or General History or Boundaries

Non-Hearsay Uses of Out-of-Court Statements

Non-hearsay out-of-court statements are statements offered to prove some other relevant fact than the truth of its contents. There are three protential uses:

  1. Words of Legal Consequence (sometimes referred to as verbal acts): the law attaches consequences to certain verbal acts. Consider the law of contracts or torts (fraudulent representation or defamatory words).
  2. Circumstancial Evidence of State of Mind: (e.g. spontaneous statements). Look at res gestae exceptions where a person makes a statement under extreme duress. The statement is admissible (so stressed out and do not know what they are doing, so have no opportunity to concoct a story). The statement would be used to show that the individual was stressed out or hysterical. There are also implied assertions, such as particular circumstantial use of the words or conduct of a person who is not a witness. It requires a double inference from words or conduct. First, it must infer that the person had certain knowledge about something in his environment. Next, it must infer that the thing was as the person believed it to be. Words spoken can be actions: they are non-hearsay if proving the state of mind - such as hysteria based on tone, only trying to prove that the narration occurred, not the content of the narration. Admissions of statement to indicate state of mind are not lead to prove the truth of what they say, but they may be used as circumstancial evidence allowing for indirect interferences.
  3. Circumstantial Evidence of Knowledge: refers to witnesses who have unique knowledge, or knowledge not generally known, that is used to narrow the field of suspects significantly (to possibly just the accused). Statements are not used to prove the truth for what is asserted in it, but used to illustrate the activities being conducted (e.g.: drug deal on the phone).


See Evidence

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