#17212 - Evidence Chapter 3 Hearsay - Evidence

Chapter 3. Hearsay 1

A. The Hearsay Rule and Its Rationale 2

1. Introduction 2

2. Nonhearsay Uses of Out-of-Court Statements 4

3. Implied Assertions 10

B. Hearsay and Confrontation 13

C. Exceptions to the Hearsay Rule 19

1. Prior Statements by Witnesses 19

2. Admissions by Opposing Parties 21

a. Direct Admissions 22

i. Generally 22

ii. Admissions and Multiple Hearsay 23

iii. Admissions and Completeness 24

b. Adoptive Admissions 25

c. Authorized Admissions 26

d. Agent and Employee Admissions 27

e. Co-Conspirator Admissions 30

f. Admissions and the Bruton Rule 32

3. Spontaneous and Contemporaneous Statements 35

4. State of Mind 38

a. Generally 39

b. The Hillmon Doctrine 39

5. Injury Reports 43

6. Recorded Recollection 44

7. Business Records 47

a. Generally 47

b. Qualifying “Businesses” 49

d. Sources of Information 52

e. Absence of Record 52

8. Public Records 53

9. Former Testimony 59

10. Dying Declarations 63

11. Declarations Against Interest 65

12. Forfeiture By Wrongdoing 68

13. Residual Exception 71

D. Hearsay and Due Process 73

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

FRE 801. Definitions That Apply to This Article; Exclusions From Hearsay

• (a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

• (b) Declarant. “Declarant” means the person who made the statement.

• (c) Hearsay. “Hearsay” means a statement that:

  • (1) the declarant does not make while testifying at the current trial or hearing; and

  • (2) a party offers in evidence to prove the truth of the matter asserted in the statement.

• [Professor’s definition: “Hearsay is an out-of-court statement introduced to prove the truth of the matter asserted.”]

  • Witness and declarant can be the same person: when the witness testifies about a statement he made outside of court.

    • The witness needn’t be a person (it could be a diary), but the declarant must be a live person.

  • “The matter asserted” means matter asserted by the declarant, not by the party.

  • “Introduced to prove” means any step in the chain of inferences; it needn’t be the first or ultimate step.

  • It doesn’t matter how the out-of-court statement is proven.

• A good way to identify hearsay is to consider the chain of inferences the party offering the evidence is asking the party to make.

  • If it follows this, it’s hearsay: declarant says X; therefore, declarant believes X to be true; therefore, X is true.

    • Inference between statement and belief carries risk of sincerity (declarant lying) and risk of narration (what does declarant mean when saying X).

    • Inference between belief and truth carries risk of perception (declarant misperceived situation) and risk of memory (declarant misremembers).

  • If it doesn’t follow this chain of inferences, it’s not hearsay.

FRE 802. The Rule Against Hearsay

• Hearsay is not admissible unless any of the following provides otherwise:

  • a federal statute;

  • these rules; or

  • other rules prescribed by the Supreme Court.

Trial of Sir Walter Raleigh for High Treason (1603)

• D was charged with conspiring with Lord Cobham [“W1”] to kill King James. W1 was interrogated and signed a sworn confession he later recanted. This confession was the chief evidence against D.

• D requests W1 be brought to court to testify.

  • If W1 avows the confession, it will make conviction easier.

  • Witnesses are brought to testify even when the stakes are low, and here the stakes are very high.

  • W1 is the only one who initially accused D and caused charges to be brought.

  • Campion the Jesuit was allowed to meet his accuser face to face.

  • W1 is unlikely to lie in D’s favor, since W1 is already condemned (men facing death presumed to speak truthfully) and if D instigated the treason then W1 would want to seek revenge.

• Court rejects D’s request to face W1.

  • Any risk to the king must be disallowed.

  • When no other evidence, accuser can be heard; but here there is other evidence.

  • W1 may contradict prior confession out of fear or favor, deceiving the jury.

• P produces a witness viva voce named Dyer [“W2”].

  • W2 says a Portugal Gentleman [declarant] told W2 that D and W1 would kill the King.

  • P says this statement must have come from “some preceding intelligence” and shows D’s “treason had wings.”

• D found guilty of treason.

Leake v. Hagert, 175 N.W.2d 675 (N.D. 1970)

Facts:

• Appeal by P from judgment of dismissal of his cause of action and from order of trial court denying motion for new trial.

• P sued D for negligence after D crashed car into the back of a tractor P was driving.

• D counterclaimed, alleging P negligently drove at night without proper lights.

• All claims and defenses of both P and D were submitted to jury, which dismissed the complaint and counterclaim.

• On appeal, P contends that the trial court erred when it admitted, over objection, testimony adduced from W1, who investigated the accident and testified D’s son told W1 a light on the rear of the tractor had been out for some time.

Opinion (Paulson, J):

• W1’s testimony was hearsay and should have been excluded.

  • Hearsay rule prohibits use of a person’s assertion, as equivalent to testimony of the fact asserted, unless the assertor is brought to testify in court on the stand, where he may be probed and cross-examined as to the grounds of his assertion and his qualifications to make it.

  • D’s son did not testify, was not party to action, was not under oath, was not subject to cross-exam, and was not available to testify because he was in the army overseas.

• The erroneous admission was not prejudicial and did not constitute reversible error.

  • Error in the admission of evidence is not a ground for a new trial unless such error affects the substantial rights of the parties.

  • Other witnesses testified to the same information, and D himself introduced a statement by W1 asserting the same information.

McCormick on Evidence

• The factors upon which the value of testimony depends are:

  • Perception.

    • Did W perceive and perceive accurately what is described?

  • Memory.

    • Has W retained an accurate impression of that perception?

  • Narration.

    • Does W’s language convey that impression accurately?

  • Sincerity.

    • Is W, with varying degrees of intention, testifying falsely?

• To encourage W to put forth their best efforts and to expose inaccuracies with respect to those factors, W are ordinarily required to testify under three conditions:

  • Oath.

    • May induce feeling of special obligation to speak the truth.

    • May impress danger of criminal punishment for perjury.

  • Personal presence at the trial.

    • Allows fact-finder evaluation of demeanor, which may speak to credibility.

    • Solemnity and possibility of public disgrace make testifying falsely more difficult.

  • Cross-examination.

    • Main justification for exclusion of hearsay.

    • A person who relates a hearsay is not obliged to enter into particulars, answer questions, reconcile contradictions, remove ambiguities, etc. He can simply assert he was told so, leaving the burden on the dead or absent author.

• In a hearsay situation, two “witnesses” are involved. The first complies with all three ideal conditions for giving testimony, but merely reports statements of second “witness.” The second is the out-of-court declarant whose statement was not given in compliance with the three conditions but contains the critical information.

Tribe, Triangulating Hearsay

• Basic hearsay problem is one of forging a reliable chain of inferences from an utterance of a person not subject to cross-exam, to an event the utterance is supposed to reflect.

  • Typically, first link is from utterance to belief it is thought to indicate.

  • Second link is from declarant’s belief to conclusion about some external event supposed to have triggered the belief.

• Inferential chain is suspect when utterance is not made in court, where cross-exam could expose inaccuracies in the inferential chain.

  • Inaccuracies are usually attributed to ambiguity, insincerity, faulty perception, or erroneous memory.

• Hearsay problem arises when an utterance is used to prove a conclusion but it mediated by the belief of the actor uttering. No hearsay problem arises when the conclusion can be referred immediately from the utterance.

  • An out-of-court statement “I can speak” would be admissible as nonhearsay to prove declarant was capable of speech, for it is the fact of his speaking rather than the content of the statement which permits the inference.

Introduction

• “Out-of-court” is shorthand for any statement other than one made under oath and in front of the factfinder during the same proceeding in which it is being offered in evidence.

  • Testimony in an earlier trial counts as out-of-court for the purposes of hearsay rule.

• “Matter asserted” means the matter asserted in the statement offered into evidence, not the matter “asserted” by the party offering the evidence.

  • Evidence is typically introduced to support a series of inferential propositions. If any one of the propositions in this chain of inferences is “the truth of the matter asserted” in the out-of-court statement, the evidence falls within the definition of hearsay.

• “Witness” is reserved for someone who testifies under oath from the witness stand.

• “Declarant” refers to someone who makes a statement of any kind, whether or not under oath, and whether in or out of court.

• Four ways evidence can come in for nonhearsay purpose:

  • indisputably...