Chapter 12
The Hearsay Rule

• 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?
    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        • The person who originally made the statement.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)

    Not Hearsay
    • “I saw the car drive by at a high rate of speed.”

    • “I heard Victim hollering for help.”

    • 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.

    • 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 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.