#11680 - Hearsay - Evidence

Rationale: prefer viva voce evidence (CX, oath, perjury); jury might overvalue; flaws in perception of declarant

1) Out-of-court = current court - not made under oath at the trial in which it is being offered.

2) Statement (by a person): includes a written or oral statement or non-verbal conduct.

-non-persons don’t count. (bloodhound barking, parrots repeating things).

3) (split) Declarant intended to make an assertion (intended to communicate facts).

Declarant = person who made the statement.

-Sometimes same person as witness, just repeating what they said earlier.

(MIN - Dullard): DON’T NEED INTENT to be an assertion barred by hearsay rule.

=more likely to find an implied assertion=> s/t hearsay.

Not convinced that lack of intent to communicate justifies excluding statement from hearsay rule. Best approach is to evaluate assertion in context of the purpose for which the evidence is offered.

Rationale: even without intent, there are still hearsay problems (erroneous memory, faulty perception, ambiguity, though it might solve the sincerity problem).

(MAJ –Zenni): INTENT REQUIRED

No intent=>not assertion => not subject to hearsay.

APP: Calls to the house during raid, trying to place bets. Language wasn’t an assertion, obviously no intent to make an assertion that it was a bookie’s house.

(MAJ) Diaries are still hearsay. (Some say not hearsay, if no intent to share w/ others)

Nonverbal acts can show intent to communicate.

-EXAMPLES: nodding head in response to yes/no question; pointing at someone to ID them as perp; British health minister biting into a burger and having daughter do the same thing. Pretty clearly an implied assertion that he thinks the beef is safe.

-silence: Failure to deny may, in limited circumstances, be an assertion in response to Q.

-Questions: (split): 1) if contains an assertion; 2) if decl intended to make an assertion; 3) never hearsay.

-Exclamations are not assertions:

-Commands/Threats are not assertions: Montana: witness demanded money payoff. Not hearsay.

-Verbal acts: words with independent legal significance are not assertions

-Words cause a change in legal status, regardless of their sincerity. Fact they were made.

-oral statements that constitute/rescind a contract; harassing statements; defamatory statements; slanderous statements; bribing statements; threatening statements; claim of title statements.

-‘please accept this $ as a gift’ (clarifying that it isn’t a bribe, repayment, loan).

4) Statement offered to prove the truth of the matter asserted? ONLY RELEVANT IF TRUE.

When looking at the statement alone (not the broader theory of case or larger principle that the piece of evidence would help prove), the trier-of-fact is being asked to believe that the assertion itself is actually true. (The Diary case: they were offering it to prove TOFMA, that he was with her, then felt sick after. The ultimate goal was conclusion of poisoning. But that was based on inferences).

COUNTEREXAMPLES: not being offered for truth of matter asserted.

-What matters is whether the statement was made, not whether it was true.

-Circumstantial evidence of declarant’s state of mind or beliefs about facts

=statement can be used to show the declarant’s state of mind without asking the trier-of-fact to accept the assertion in the statement as true.

Parry: convos w/ mom, saying that he thought he was working with DEA agent.

Matter asserted: that they guy was a DEA agent. Being offered for SOMETHING DIFFERENT – as basis for inference that, if the statement was in fact made, he knew the agent’s ID.

-Effect on listener

Ex: neighbor: “floorboards on your porch have rotted” offered to show that homeowner was negligent in not replacing them (guest fell through). CANNOT be offered to prove that they were rotted, but CAN be offered to show that homeowner was on notice.

-Impeachment of witness through showing contradiction (SEE IMPEACHMENT BELOW).

NO=> looking at the statement alone, trier of fact isn’t being asked to believe that the statement is actually true, statement is not being offered for hearsay use.

YES=> statement is hearsay. Continue to exceptions.

*Other objections? (limiting instruction request; personal knowledge of declarant?)

6A: “In all crim. prosecutions, the Accused shall enjoy the right … to be confronted with the witnesses against him”

*ON APPEAL: errors = reverse conviction unless the P proves violation harmless beyond a reasonable doubt.

1) Criminal case

2) Evidence is being offered against accused

Ex: CC doesn’t apply to statements introduced by the accused.

3) Statement made out-of-court?

If live witness is testifying about what she did/didn’t perceive and is s/t cross, no CC

4) Statement being used for the truth of the matter asserted

5) Other means around hearsay rule? (if not, then hearsay bars, and won’t be admitted anyway).

6) Declarant currently available for cross-examination under oath at current trial? (Necessarily includes every exclusion to hearsay)

*if declarant is the defendant himself, then no CC problem. Can get up and explain.

IF YES=>NO CC problem.

7) Meaningful opportunity for the Accused to cross-examine the statement earlier? For example, frmr testimony was crossed at prior trial, hearing, or deposition.

-just need opportunity. If you don’t do it, that’s your fault.

*need a similar motive? Unclear.

-SOME have held that entirely unresponsive children are unavailable for CC purposes.

IF YES=> NO CC problem.

8) Forfeiture by wrongdoing (Giles):

Did accused intentionally make the Declarant unavailable in order to prevent them from testifying? (flexible).

*104(a) standard, by a preponderance. (not beyond reasonable doubt).

-conduct: diversion (sending them on a cruise) intimidation, persuasion, killing,

-Intent must go to making them unavailable. Garden-variety murder doesn’t count.

BUT look to full circumstances. Was part of the motivation preventing the declarant from testifying?

-Long-term violent relationship could = intent. (SCOTUS suggestion, will find intent)

Ex: long-term abusive relationship culminating in murder could => intent to render unavailable. (Worried about incentives of batterer to kill).

(+Concern w/ judge ruling that preliminary fact is true: murder happened, although this is prelim hearing, so jury won’t see.)

IF YES=>doesn’t matter if they are testimonial or not. Statements admissible, since accused forfeited 6A right.

9) Dying declaration?

Statement made by a victim of a homicide concerning the cause of her impending death with the subjective expectation that she will soon die?

YES=> (dicta in Bryant) may be an exception to the CC. BUT KEEP GOING ANYWAY.

Original meaning: this was an exception.

10) Statement formal and solemn? Well-established as testimonial.

Examples that are clearly testimonial:

(functional equivalents of in-court testimony; exra-judicial statements in formalized confession materials (Crawford categories 1+2))

-affidavits

-ex parte (non-adversarial) in-court testimony

-prior sworn testimony that accused was unable to cross-examine,

-like un-crossed depositions.

-formal stationhouse statements or other examinations while in custody

YES=> Testimonial => Admission would violate CC.

Because Thomas has a hard-on for formality.

NO=> might still be testimonial. CONTINUE

-formality is a factor, but not necessary.

11) Statement testimonial?

Basic test: Statements made in circumstances that would lead an objective witness to reasonably believe that the statements would be used at a later criminal trial. (Crawford 3rd category - Mitch).

*BROAD standard.

Ex: tell your wife that you think your biz partner is doing something sketchy. (example from class… really though? Our cases all involved cops)

PRIMARY PURPOSE TEST: Circumstances objectively indicate that the primary purpose of the interrogation is to gather facts for future prosecution=>Testimonial. (Bryant)

*CAN BE PARSED. Some statements testimonial, some not. (Bryant: can change from emrgncy=>invstgtiv)

FACTORS in finding different primary purpose

-Lab reports (see next page)

*medical treatment/diagnosis could be primary purpose instead.

(Similar approach to below: look at location (in hospital?) who was interacting, questions asked, what purpose each had; at what point they notified them they were contacting CPS/law enforcement; etc.)

-usually statements to first examiners are non-testimonia

-ongoing emergency? (suggests different purpose, but “not enough” – Bryant).

-violent crime and assailant at large

-police had limited knowledge upon arrival (unknown motives/whereabouts suggest emergency)

-weapon involved

-victim in poor medical condition.

*Problem: excited utterance => emergency. So end-around CC.

-reasonable objective perspective of questioner and declarant

Do they have prosecution in mind? =>suggests testimonial

*of course, they might have different purposes.

-questions/answers related to past events (testimonial) or ongoing facts (emergency)? (presumably even if there is an emergency).

-actions of both parties.

-informal setting suggests non-testimonial.

-cops involved? Suggests testimonial. Reason is reason behind CC, concerned w/ gov’t inducement.

+ “any factor the court deems relevant”

*Arguments based on purpose of CC and development of doctrine:

Rationales: 1) gov’t effects on the evidence (biasing/inducing false evidence from decl.)2) witness must understand the solemnity of the accusation, and accuse under circustances...