Hearsay Rule (Part 4)


Welcome back, class.

First, just for y’all, here’s the best opening statement that I have ever seen. Watch closely.

Before we review the remaining exceptions to the hearsay rule, I want to emphasize the difference between the present-sense-impression exception, which is a statement by the declarant reacting to an event as it happens or shortly thereafter, and the excited utterance exception, which is a statement reacting to an event while under the influence of the emotional response caused by the event. For example, let’s return to our cozy couple, Amy and Beauregard, lost as they are in each other’s eyes to the eternal frustration of the waiter and owner of the restaurant, who want to lock-up and go home. Let’s also move the dinner to a month after the accident.

Beauregard nudges the bill aside and reaches for Amy’s hands saying, “I’m so sorry, honey. Tears and mascara are strolling hand in hand down her lustrous apple cheeks and falling on the white linen tablecloth, staining it. “You liked Peter, didn’t you?”

“Yes. Even though he was my boss and kind of nerdy. I’ll never forget his screams. I never heard someone scream like that. It was awful, Beau.”

“How did it happen?”

“Igor Ivarson ran the red light and hit him in the crosswalk and he bled to death right in front of me.” She sobbed and squeezed more tears from her baby blues.

Okay, is her statement admissible under the present-sense-impression exception?

No, because her statement describes an event that occurred a month earlier.

Is her statement admissible as an excited utterance?

Yes, because she was under the emotional influence of the event.

Note that this exception has been used to introduce the statements of sexual assault crime victims, particularly children under the age of 5, even though they were being questioned by adults, social workers, or police using leading questions, and even though the child never testified at the defendant’s trial. This is an especially difficult situation for prosecutors, defense attorneys, and judges, not to mention the children and the defendants. Young children are particularly susceptible to forming false memories regarding incidents that never happened when authority figures question them with leading questions, e.g., “Is that when your daddy touched you in your private place?”

Now, beginning with the third exception, since we already have discussed the first two, let’s move on to the other hearsay exceptions in which the availability of the declarant is immaterial:

3. Statement about a then existing mental, emotional, or physical condition;

4. Statements to medical personnel for purposes of medical diagnosis (Yes, what you tell your doctor about a preexisting medical condition is admissible under this exception to the hearsay rule in a legal proceeding between you and your insurance company to determine whether coverage was properly denied);

5. Statements that were recorded to preserve recollection at a time when the declarant had knowledge of the event described, but has now forgotten (this exception happens more and more now, given how many years can pass between an incident and when a legal proceeding regarding that incident finally happens);

6. Records of regularly conducted business activity that were prepared as part of the business, as opposed to generated for purposes of litigation;

7. Absence of an entry in records kept in (6);

8. Public records and reports;

9. Records of vital statistics;

10. Absence of public record or entry;

11. Records of religious organizations;

12. Marriage, baptismal, and similar certificates;

13. Family records;

14. Records of documents affecting an interest in property;

15. Statements in documents affecting an interest in property;

16. Statements in ancient documents;

17. Market reports and commercial publications;

18. Learned treatises;

19. Reputation concerning personal or family history;

20. Reputation concerning boundaries or general history;

21. Reputation as to character;

22. Judgment as to previous conviction; and

23. Judgment as to personal, family, or general history or boundaries.

There are an additional 5 exceptions to the hearsay rule when the declarant is unavailable to testify and be questioned about the statement:

1. Former testimony, if the party, or predecessor in legal interest, against whom the statement is being offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination;

2. Statement under belief of impending death concerning the cause of circumstances of what the declarant believed to be impending death (e.g., the so-called dying declaration);

3. Statement against interest (i.e., a statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. By the way, regarding the Troy Davis legal case: a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement);

4. Statement of personal or family history; and

5. Forfeiture by wrongdoing (i.e., a statement offered against a party that has engaged in or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness).

Y’all can look up these rules on line for further information. Once again, the rules are FRE 801 defining hearsay, FRE 802 which says hearsay is not admissible except under these rules, FRE 803 which list 23 exceptions where hearsay is admissible regardless if the declarant is available to testify, and FRE 804, which lists 5 exceptions where hearsay is admissible, if the declarant is not available to testify.

Again, the states apply substantially the same rules in state courts and they follow the same numbering system, which makes it easy to find the corresponding state rule and compare the two.

Finally, never forget that a statement by a declarant that is NOT offered to prove the truth of the matter asserted in the statement is NOT hearsay!

Cross posted at Firedoglake/MyFDL and at the Smirking Chimp.

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