HEARSAYYEAH YOU BETTER BELIEVE IT HOMESKILLET

Reasons For Hearsay

• Everything testified to in a trial should be subject to cross examination

• If its an out of court statement, how can the adverse party cross examine the declarant’s statement for truthfulness?

• Make sure that each side has a chance to get their say on each matter

• ALL OF LAW IS PRETTY MUCH BASED ON THE ABOVE

Rule 801: Definition

• 1. A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if intended as an assertion. – Nonverbal conduct: head nodding, pointing

• A declarant is the person who makes a statement

• 2. Hearsay is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.

• EVEN if the witness is the declarant- HEARSAY

Statements Confused For Hearsay/ How to object

• The following statement is commonly confused for Hearsay: – Prior Statement By Witness during the Trial– This would be brought up on cross– Why is this okay?

• It is being cross examined. Both sides may put their own spin on it.

• If the witness begins to say hearsay- “Objection, Hearsay”

• If the lawyer asks a question requiring Hearsay in the answer- “Objection, Calls for Hearsay

Truth of the matter asserted?

• If something is being admitted for the “truth of the matter asserted, it: – Is offered to prove a point material to the

case• To Be Hearsay:

– Out of Court Statement – Truth of the Matter Asserted

• Example: In a case about a murder in which the weather is immaterial, Declarant says: “Janie said she thought the weather was cold.” NOT HEARSAY!

Examples

• “When you asked if he murdered his wife, did he respond?” “Yes, he nodded his head”. – Is this Hearsay?

• “What happened then?” “She said, ‘Hey, Bill,’. And then he attacked her.” – Is this Hearsay?

• “I told him I didn’t see anyone.” – Is this Hearsay?

Rule 802: ADMISSABILITY

• Hearsay is never admissible in court…. – UNLESS you have an exception

• These exceptions are, as everything, at the mercy of the judge. Get used to them being overturned.

• Be able to quote the exact rule of your exception, you’ll look smarter… really

• Even if you know that something the other side is trying to get in is hearsay, object! They might not know!

Rule 803: Exceptions When Availability of Declarant is

Immaterial• Present Sense Impression (Subsection 1):

Statement describing or explaining made while declarant was experiencing event, or immediately thereafter

• Excited Utterance (Subsection 2): A statement made by the declarant while the declarant was under the excitement caused by the event

• Then-Existing Condition (Sub. 3): Statement of declarant’s then-existing state of mind, emotion, or body

Discussion Of 803, Sub 1-3

• The most crucial part of the three statements stated in previous slide:

• HOW MUCH TIME PASSED between stressful event and statement

• Person must have still been under the stress of the event

• The excitement must have destroyed the usual obstacles of the mind- the declarant must have been too affected to speak falsely

803 Exceptions Con.: Records

• Subsections 4-14 are all RECORDED DOCUMENTS or ABSENCE OF RECORDED DOCUMENTS

• Ex.- Family records, marriage statistics, vital statistics, school records, records of membership in religious organizations

• Anything that is regularly recorded, or a recording that should be there but is missing is admissible

• MACC Inventory information, perhaps?

803 Exceptions Continued: Reputations

• Reputation Concerning Personal or Family History (Sub. 19)- Opinion of the reputation of a person’s family history– the Mitchells and Monks, peut-etre...

• Reputation Concerning Boundaries of Land (Sub. 20)- Opinion as to where the boundaries of land are– MAP, anyone?

• Reputation of Character (Sub. 21)- reputation of a person’s character as judged by members of the community

Rule 804: Exceptions to Hearsay When Declarant is

Unavailable• Definition of Unavailability• The Declarant is:

– Exempted by the court from testifying – Refusing to testify – Unable to be present because of death or

then-existing illness– Unable to be found – NOT unavailable if any of the above was

caused by any sort of wrongdoing on the part of the witness to keep the declarant from testifying

804 Con.- Exceptions When Availability is Material

• Previous Testimony (Subsection 1): Testimony given as a witness in any legal procedure IF the opposite party has a motive to develop the information for themselves as well

• Statement Under Belief of Impending Death (Sub. 2): Testimony made when the declarant was in genuine fear of death. Whether or not the person actually died is irrelevant

804: Exceptions Continued

• Statement Against Interest (Sub. 3): A statement so wildly against the declarant’s interest that no reasonable person would have made the statement without believing its truth. – Ex. “He told me, “Well, don’t say

anything, but I definitely lied to the insurance company.”

Rule 805: Hearsay WITHIN Hearsay

•Hearsay within Hearsay is only admissible if both Hearsays have an exception.

•“He told me she’d asked him…”

Rule 806: Attacking or Supporting Credibility of

Declarant• When a hearsay statement has been

admitted• It is possible for either party to attack

the credibility of the declarant (impeachment)– Evidence of a conduct that contradicted the

statement – Can basically destroy the declarant’s

character without any rules– Character evidence becomes relevant