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Chapter 7Chapter 7

The Use of Hearsay in the The Use of Hearsay in the CourtroomCourtroom

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WITNESSES AND THE HEARSAY RULEWITNESSES AND THE HEARSAY RULE WHEN WINESSES GIVE THEIR WHEN WINESSES GIVE THEIR

TESTIMONY, THE SUBJECT MATTER IS TESTIMONY, THE SUBJECT MATTER IS TYPICALLY SOME EVENT OBSERVED IN TYPICALLY SOME EVENT OBSERVED IN SOME MANNER BY THEM, WHICH IS SOME MANNER BY THEM, WHICH IS SUBSEQUENTLY RECOLLECTED IN THE SUBSEQUENTLY RECOLLECTED IN THE COURTROOMCOURTROOM

THE PRINCIPAL MEANS USED BY THE PRINCIPAL MEANS USED BY COURTS TO GUARD AGAINST THESE COURTS TO GUARD AGAINST THESE RISKS ARE THE REQUIREMENTS THAT RISKS ARE THE REQUIREMENTS THAT THE WITNESS TESTIFY UNDER OATH THE WITNESS TESTIFY UNDER OATH AND THAT THE WITNESS BE AVAILABLE AND THAT THE WITNESS BE AVAILABLE FOR CROSS-EXAMINATIONFOR CROSS-EXAMINATION

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Testimony RisksTestimony Risks

THIS TESTIMONY IS GENERALLY SEEN THIS TESTIMONY IS GENERALLY SEEN AS PRESENTING FOUR RISKS AS PRESENTING FOUR RISKS RELATING TO ITS TRUTHFULNESS:RELATING TO ITS TRUTHFULNESS: THE ACCURACY OF THE WITNESSES’ THE ACCURACY OF THE WITNESSES’

PERCEPTIONPERCEPTION THE MEMORY OF THE WITNESSESTHE MEMORY OF THE WITNESSES THE MEANING OF THE TESTIMONYTHE MEANING OF THE TESTIMONY THE SINCERITY OF THE WITNESSTHE SINCERITY OF THE WITNESS

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WITNESSES AND THE HEARSAY RULE (Cont.)WITNESSES AND THE HEARSAY RULE (Cont.)

HEARSAY IN MOST FEDERAL AND STATE HEARSAY IN MOST FEDERAL AND STATE CRIMINAL PROCEEDINGS WOULD BE CRIMINAL PROCEEDINGS WOULD BE INADMISSIBLE UNDER THE INADMISSIBLE UNDER THE RELEVANT RELEVANT HEARSAY RULEHEARSAY RULE

EVEN IF SOMETHING IS HEARSAY, THE RULE EVEN IF SOMETHING IS HEARSAY, THE RULE EXCLUDING ITS ADMISSIBILITY IS SUBJECT TO EXCLUDING ITS ADMISSIBILITY IS SUBJECT TO NUMEROUS EXCEPTIONSNUMEROUS EXCEPTIONS

IN CRIMINAL TRIALS, THE IN CRIMINAL TRIALS, THE CONFRONTATION CONFRONTATION CLAUSE OF THE SIXTH AMENDMENTCLAUSE OF THE SIXTH AMENDMENT TO THE TO THE U.S. CONSTITUTION IMPOSES A CONSTITUTIONAL U.S. CONSTITUTION IMPOSES A CONSTITUTIONAL RESTRICTION ON OUT-OF–COURT TESTIMONY BY RESTRICTION ON OUT-OF–COURT TESTIMONY BY WITNESSESWITNESSES

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THE HISTORY OF THE HEARSAY RULETHE HISTORY OF THE HEARSAY RULE

BETWEEN THE THIRTEENTH AND SEVENTEENTH BETWEEN THE THIRTEENTH AND SEVENTEENTH CENTURIES, ENGLISH CRIMIANL COURTS CENTURIES, ENGLISH CRIMIANL COURTS CONTINUED TO CONVICT DEFENDANTS BASED CONTINUED TO CONVICT DEFENDANTS BASED ON “ANONYMOUS ACCUSERS AND ABSENTEE ON “ANONYMOUS ACCUSERS AND ABSENTEE WITNESSES”WITNESSES”

THIS PRACTICE WAS PARTICULARLY PREVALENT THIS PRACTICE WAS PARTICULARLY PREVALENT IN THE INFAMOUS IN THE INFAMOUS STAR CHAMBERSTAR CHAMBER TRIALS, TRIALS, WHICH WERE USED BY THE MONARCH TO WHICH WERE USED BY THE MONARCH TO CONTROL POLITICAL ENEMIESCONTROL POLITICAL ENEMIES

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THE HISTORY OF THE HEARSAY RULE (Cont.)THE HISTORY OF THE HEARSAY RULE (Cont.)

IN SUCH TRIALS THE EVIDENCE WAS IN SUCH TRIALS THE EVIDENCE WAS FREQUENTLY THE “CONFESSION” OF A SINGLE FREQUENTLY THE “CONFESSION” OF A SINGLE “CONSPIRATOR,” WHO WAS NOT AVAILABLE “CONSPIRATOR,” WHO WAS NOT AVAILABLE FOR CROSS-EXAMINATION BY THE ACCUSED FOR CROSS-EXAMINATION BY THE ACCUSED AND WHO DID NOT REPEAT HIS “CONFESSION” AND WHO DID NOT REPEAT HIS “CONFESSION” UNDER OATH AT THE TRIALUNDER OATH AT THE TRIAL

THESE ABUSES WERE CONDEMNED BY MANY THESE ABUSES WERE CONDEMNED BY MANY OF QUEEN ELIZABETH’S SUBJECTSOF QUEEN ELIZABETH’S SUBJECTS

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THE TRIAL OF SIR WALTER RALEIGHTHE TRIAL OF SIR WALTER RALEIGH

THE TRIAL OF SIR WALTER RALEIGH ILLUSTRATES THE TRIAL OF SIR WALTER RALEIGH ILLUSTRATES THE ABUSES THAT WERE OCCURRING BEFORE THE ABUSES THAT WERE OCCURRING BEFORE HEARSAY RULES WERE USEDHEARSAY RULES WERE USED

IN NOVEMBER 1603, RALEIGH WAS TRIED FOR IN NOVEMBER 1603, RALEIGH WAS TRIED FOR TREASON AGAINST THE KING AND CONVICTED TREASON AGAINST THE KING AND CONVICTED BASED UPON THE CONFESSION OF A SINGLE BASED UPON THE CONFESSION OF A SINGLE CONSPIRATOR, WHO DID NOT APPEAR AS A CONSPIRATOR, WHO DID NOT APPEAR AS A WITNESS AT THE TRIALWITNESS AT THE TRIAL

IN THE YEARS FOLLOWING THE TRIAL THE IN THE YEARS FOLLOWING THE TRIAL THE ENGLISH COURTS BEGAN DEVELOPING HEARSAY ENGLISH COURTS BEGAN DEVELOPING HEARSAY RULES AND BY 1690, IT WAS REPORTED THAT RULES AND BY 1690, IT WAS REPORTED THAT ENGLISH COURTS WERE USING HEARSAY RULES ENGLISH COURTS WERE USING HEARSAY RULES TO PREVENT ABUSES THAT ARE RECORDED IN TO PREVENT ABUSES THAT ARE RECORDED IN THE HISTORY OF THAT PERIODTHE HISTORY OF THAT PERIOD

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Raleigh’s DownfallRaleigh’s Downfall

Imprisoned in the Tower of London until Imprisoned in the Tower of London until 1616 (instead of being beheaded!) by a 1616 (instead of being beheaded!) by a political enemy’s testimony, he was finally political enemy’s testimony, he was finally released with the admonition not to molest released with the admonition not to molest Spanish possessionsSpanish possessions

Unfortunately, the Captain of the voyage Unfortunately, the Captain of the voyage did attack the Spanish and the Spanish did attack the Spanish and the Spanish King demanded his death.King demanded his death.8888

Raleigh was executed based on the Raleigh was executed based on the original sentence of treason.original sentence of treason.

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The Trial of William PennThe Trial of William Penn AFTER THE 1670 TRIAL OF WILLIAM AFTER THE 1670 TRIAL OF WILLIAM

PENN, THE HISTORIC DEVELOPMENT PENN, THE HISTORIC DEVELOPMENT OF THE CONCEPT OF AN IMPARTIAL OF THE CONCEPT OF AN IMPARTIAL JURY CONTINUED ALONG WITH THE JURY CONTINUED ALONG WITH THE DEVELOPMENT OF THE HEARSAY RULEDEVELOPMENT OF THE HEARSAY RULE

Penn was sentenced to jail, but later Penn was sentenced to jail, but later was released and went to America was released and went to America where he was instrumental in religious where he was instrumental in religious freedoms and prison reforms.freedoms and prison reforms.

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HEARSAY RULES AND THE USE OF HEARSAY RULES AND THE USE OF INDEPENDENT JURIES IN THE AMERICAN INDEPENDENT JURIES IN THE AMERICAN

COLONIES/STATESCOLONIES/STATES

THE CONCEPTS OF IMPARTIAL, INDEPENDENT THE CONCEPTS OF IMPARTIAL, INDEPENDENT JURIES AND HEARSAY RULES WERE BROUGHT TO JURIES AND HEARSAY RULES WERE BROUGHT TO THE AMERICAN COLONIES BY ENGLISH SETTLERS THE AMERICAN COLONIES BY ENGLISH SETTLERS AS PART OF THE ENGLISH COMMON LAW AS PART OF THE ENGLISH COMMON LAW SYSTEMSYSTEM

AFTER THE AMERICAN REVOLUTIONARY WAR, AFTER THE AMERICAN REVOLUTIONARY WAR, BOTH THE RIGHT TO AN IMPARTIAL JURY AND BOTH THE RIGHT TO AN IMPARTIAL JURY AND THE USE OF HEARSAY RULES WERE MADE PART THE USE OF HEARSAY RULES WERE MADE PART OF THE AMERICAN LEGAL SYSTEMOF THE AMERICAN LEGAL SYSTEM

THE SIXTH AMENDMENT CONFRONTATION THE SIXTH AMENDMENT CONFRONTATION CLAUSE WAS MADE PART OF THE AMERICAN CLAUSE WAS MADE PART OF THE AMERICAN BILL OF RIGHTS IN 1791BILL OF RIGHTS IN 1791

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WHAT IS HEARSAYWHAT IS HEARSAY RULE 801 (c) OF THE FEDERAL RULES OF RULE 801 (c) OF THE FEDERAL RULES OF

EVIDENCE DEFINES HEARSAY AS EVIDENCE DEFINES HEARSAY AS FOLLOWS: “’FOLLOWS: “’HEARSAYHEARSAY’ IS A STATEMENT, ’ IS A STATEMENT, OTHER THAN ONE MADE BY THE OTHER THAN ONE MADE BY THE DECLARANT WHILE TESTIFYING AT DECLARANT WHILE TESTIFYING AT THE TRIAL OR HEARING,THE TRIAL OR HEARING, OFFERED IN OFFERED IN EVIDENCE TO PROVE THE TRUTH OF THE EVIDENCE TO PROVE THE TRUTH OF THE MATTER ASSERTED”MATTER ASSERTED”

THE THE DECLARANTDECLARANT IS THE PERSON WHO IS THE PERSON WHO MADE THE STATEMENTMADE THE STATEMENT

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WHAT IS AN ASSERTIVE WHAT IS AN ASSERTIVE STATEMENT?STATEMENT?

THE DECLARANT’S STATEMENT MUST BE AN THE DECLARANT’S STATEMENT MUST BE AN ASSERTIVE STATEMENTASSERTIVE STATEMENT OFFERED AS PROOF OFFERED AS PROOF THAT THE SUBJECT MATTER OF THE THAT THE SUBJECT MATTER OF THE STATEMENT IS TRUE IN ORDER TO FALL WITHIN STATEMENT IS TRUE IN ORDER TO FALL WITHIN THE HEARSAY RULETHE HEARSAY RULE

AN ASSERTIVE STATEMENT IS ONE IN WHICH AN ASSERTIVE STATEMENT IS ONE IN WHICH THE DECLARANT INTENDS TO COMMUNICATE THE DECLARANT INTENDS TO COMMUNICATE HIS THOUGHTS OR BELIEFSHIS THOUGHTS OR BELIEFS

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NONVERBAL COMMUNICATIONS NONVERBAL COMMUNICATIONS CAN BE ASSERTIVECAN BE ASSERTIVE

NONVERBAL ACTS CAN BE USED TO NONVERBAL ACTS CAN BE USED TO COMMUNICATEDCOMMUNICATED

IT IS HEARSAY IF THE PURPOSE OF THE IT IS HEARSAY IF THE PURPOSE OF THE NONVERBAL ACT IS TO COMMUNICATE NONVERBAL ACT IS TO COMMUNICATE AND THE COMMUNICATION IS AND THE COMMUNICATION IS ASSERTIVEASSERTIVE

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CONDUCT THAT IS NOT MEANT TO CONDUCT THAT IS NOT MEANT TO COMMUNICATECOMMUNICATE

IF A PERSON IS ENGAGING IN CONDUCT IF A PERSON IS ENGAGING IN CONDUCT THAT IS NOT MEANT TO COMMUNICATE, THAT IS NOT MEANT TO COMMUNICATE, THIS WOULD GENERALLY BE TREATED AS THIS WOULD GENERALLY BE TREATED AS HEARSAY AS THERE IS NO ATTEMPT TO HEARSAY AS THERE IS NO ATTEMPT TO BE ASSERTIVEBE ASSERTIVE

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THE HEARSAY RULE FORBIDS ONLY STATEMENTS THE HEARSAY RULE FORBIDS ONLY STATEMENTS OFFEREDOFFERED TO PROVE THE TRUTH OF THAT STATEMENT TO PROVE THE TRUTH OF THAT STATEMENT

IF AN ATTORNEY CAN CONVINCE A JUDGE IF AN ATTORNEY CAN CONVINCE A JUDGE THAT A STATEMENT OFFERED FOR USE THAT A STATEMENT OFFERED FOR USE IN EVIDENCE IS MEANT TO PROVE IN EVIDENCE IS MEANT TO PROVE SOMETHING OTHER THAN THE TRUTH OF SOMETHING OTHER THAN THE TRUTH OF THAT STATEMENT, THE JUDGE WILL RULE THAT STATEMENT, THE JUDGE WILL RULE THAT IT IS ADMISSIBLE FOR EVIDENCETHAT IT IS ADMISSIBLE FOR EVIDENCE

THE HEARSAY RULE FORBIDS ONLY THE HEARSAY RULE FORBIDS ONLY STATEMENTS OFFERED TO PROVE THE STATEMENTS OFFERED TO PROVE THE TRUTH OF THE MATTERTRUTH OF THE MATTER ASSERTEDASSERTED, IT , IT DOES NOT FORBID SOMETHING OTHER DOES NOT FORBID SOMETHING OTHER THAN THE TRUTH OF THAT STATEMENTTHAN THE TRUTH OF THAT STATEMENT

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THE FOLLOWING EXAMPLES ILLUSTRATE THE FOLLOWING EXAMPLES ILLUSTRATE ONLY A FEW OF THE NUMEROUS OTHER ONLY A FEW OF THE NUMEROUS OTHER PURPOSES THAT WOULD TAKE AN OUT-PURPOSES THAT WOULD TAKE AN OUT-OF-COURT STATEMENT OUR OF THE OF-COURT STATEMENT OUR OF THE HEARSAY CLASSIFICATION:HEARSAY CLASSIFICATION: KNOWLEDGEKNOWLEDGE FEELINGS OR STATE OF MINDFEELINGS OR STATE OF MIND INSANITYINSANITY EFFECT ON HEAREREFFECT ON HEARER

THE TRIAL JUDGE SHOULD INSTRUCT THE THE TRIAL JUDGE SHOULD INSTRUCT THE JURY THAT IT IS TO CONSIDER THE JURY THAT IT IS TO CONSIDER THE EVIDENCE ONLY FOR THE ALLOWABLE EVIDENCE ONLY FOR THE ALLOWABLE PURPOSEPURPOSE

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WHAT IS NOT HEARSAY? FEDERAL WHAT IS NOT HEARSAY? FEDERAL RULES OF EVIDENCE 801 (D)(1), (2) RULES OF EVIDENCE 801 (D)(1), (2)

AND (2E)AND (2E) BESIDES BEING LIMITED TO BESIDES BEING LIMITED TO

ASSERTIONS OFFERED TO ASSERTIONS OFFERED TO ESTABLISH PROOF OF THE ESTABLISH PROOF OF THE ASSERTION, THE HEARSAY RULE ASSERTION, THE HEARSAY RULE ALSO DOES NOT APPLY TO VARIOUS ALSO DOES NOT APPLY TO VARIOUS OUT-OF-COURT STATEMENTS THAT OUT-OF-COURT STATEMENTS THAT WOULD OTHERWISE LITERALLY WOULD OTHERWISE LITERALLY FALL WITHIN THE DEFINITION OF FALL WITHIN THE DEFINITION OF HEARSAYHEARSAY

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PRIOR STATEMENT BY A WITNESSPRIOR STATEMENT BY A WITNESS IF A WITNESS TESTIFIES AT A TRIAL, AND IS IF A WITNESS TESTIFIES AT A TRIAL, AND IS

CROSS-EXAMINED CONCERNING AN CROSS-EXAMINED CONCERNING AN EARLIER STATEMENT MADE BY A WITNESS, EARLIER STATEMENT MADE BY A WITNESS, THE STATEMENT IS THE STATEMENT IS NOT HEARSAYNOT HEARSAY IF: IF: THE STATEMENT IS INCONSISTENT THE STATEMENT IS INCONSISTENT

AND WAS GIVEN UNDER OATH AT A AND WAS GIVEN UNDER OATH AT A PREVIOUS TRIAL, HEARING OR PREVIOUS TRIAL, HEARING OR DEPOSTITIONDEPOSTITION

THE STATEMENT IS CONSISTENT THE STATEMENT IS CONSISTENT AND AND IS OFFERED TO REBUT A IS OFFERED TO REBUT A CHARGE THAT THE WITNESS’S CHARGE THAT THE WITNESS’S PRESENT TESTIMONY IS RECENT PRESENT TESTIMONY IS RECENT FABRICATION OR STEMS FROM FABRICATION OR STEMS FROM AN IMPROPER MOTIVEAN IMPROPER MOTIVE

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ADMISSION BY PARTY-OPPONENTADMISSION BY PARTY-OPPONENT

WHERE THE STATEMENT SOUGHT TO WHERE THE STATEMENT SOUGHT TO BE ADMITTED IS AN OUT-OF-COURT BE ADMITTED IS AN OUT-OF-COURT STATEMENT MADE BY THE STATEMENT MADE BY THE DEFENDANT OR SOMEONE ACTING ON DEFENDANT OR SOMEONE ACTING ON HIS/HER BEHALF, RULE 801 (d)(2) HIS/HER BEHALF, RULE 801 (d)(2) PROVIDES THAT THE STATEMENT IS PROVIDES THAT THE STATEMENT IS NOT HEARSAYNOT HEARSAY

THE HEARSAY RULE NEVER FORBIDS THE HEARSAY RULE NEVER FORBIDS ADMISSIONS BY A ADMISSIONS BY A PARTY-OPPONENTPARTY-OPPONENT (THE DEFENDANT IN A CRIMINAL (THE DEFENDANT IN A CRIMINAL CASE)CASE)

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THE CO-CONSPIRATOR RULETHE CO-CONSPIRATOR RULE

STATEMENTS BY A CO-CONSPIRATOR MADE STATEMENTS BY A CO-CONSPIRATOR MADE DURING AND IN FURTHERANCE OF THE DURING AND IN FURTHERANCE OF THE CONSPIRACY ARE NOT HEARSAYCONSPIRACY ARE NOT HEARSAY

THE JUSTIFICATION FOR THIS RULE IS THAT THE JUSTIFICATION FOR THIS RULE IS THAT PARTIES IN A PARTIES IN A CONSPIRACYCONSPIRACY ARE ESSENTIALLY ARE ESSENTIALLY PARTNERS, AND AN ADMISSION BY ONE PARTNER PARTNERS, AND AN ADMISSION BY ONE PARTNER IS FAIRLY ATTRIBUTABLE TO THE OTHER IS FAIRLY ATTRIBUTABLE TO THE OTHER PARTNERSPARTNERS

THE U.S. SUPREME COURT HAS SAID STATEMENTS THE U.S. SUPREME COURT HAS SAID STATEMENTS BY A CO-CONSPIRATOR “PROVIDE EVIDENCE OF BY A CO-CONSPIRATOR “PROVIDE EVIDENCE OF THE CONSPIRACY’S CONTEXT THAT CANNOT BE THE CONSPIRACY’S CONTEXT THAT CANNOT BE REPLICATED, EVEN IF THE CO-CONSPIRATOR REPLICATED, EVEN IF THE CO-CONSPIRATOR TESTIFIES TO THE SAME MATTERS IN COURT”TESTIFIES TO THE SAME MATTERS IN COURT”

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THE CO-CONSPIRATOR RULE (Cont.)THE CO-CONSPIRATOR RULE (Cont.)

THE COURT ALSO NOTED THAT “SIMPLY THE COURT ALSO NOTED THAT “SIMPLY CALLING THE CO-CONSPIRATOR IN HOPES CALLING THE CO-CONSPIRATOR IN HOPES OF HAVING HIM REPEAT HIS PRIOR OUT-OF-OF HAVING HIM REPEAT HIS PRIOR OUT-OF-COURT STATEMENTS IS A POOR COURT STATEMENTS IS A POOR SUBSTITUTION FOR THE FULL SIGNIFICANCE SUBSTITUTION FOR THE FULL SIGNIFICANCE THAT THE FLOW FROM STATEMENTS MADE THAT THE FLOW FROM STATEMENTS MADE WHEN THE CONSPRIACY IS OPERATING IN WHEN THE CONSPRIACY IS OPERATING IN FULL FORCE (FULL FORCE (CO-CONSPIRATOR RULECO-CONSPIRATOR RULE))