The Use of Hearsay in the Courtroom

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Chapter 7

• The Use of Hearsay in the Courtroom

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WITNESSES AND THE HEARSAY RULE

• When witnesses give their testimony, the subject
  matter is typically some event observed in some
  manner by them, which is subsequently recollected
  in the courtroom.
• The principal means used by courts to guard
  against standard risks are the requirements that
  the witness testify under oath and that the
  witness be available for cross-examination.

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Testimony Risks

• Testimony is generally seen as presenting four
  risks relating to its truthfulness
• The accuracy of the witnesses perception
• The memory of the witnesses
• The meaning of the testimony
• The sincerity of the witnesses

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WITNESSES AND THE HEARSAY RULE (Cont.)

• Hearsay in most federal and state criminal
  proceedings would be inadmissible under the
  relevant hearsay rule.
• Even if something is hearsay, the rule excluding
  its admissibility is subject to numerous
  exceptions.
• In criminal trials, the confrontation clause of
  the Sixth Amendment to the U.S. Constitution
  imposes a constitutional restriction on
  out-of-court testimony by witnesses.

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THE HISTORY OF THE HEARSAY RULE

• Between the thirteenth and seventeenth centuries,
  English criminal courts continued to convict
  defendants based on anonymous accusers and
  absentee witnesses.
• This practice was particularly prevalent in the
  infamous star chamber trials, which were used by
  the monarch to control political enemies.

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THE HISTORY OF THE HEARSAY RULE (Cont.)

• In such trials, the evidence was frequently the
  confession of a single conspirator, who was
  not available for cross-examination by the
  accused and who did not repeat his confession
  under oath at the trial.
• These abuses were condemned by many of Queen
  Elizabeths subjects.

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THE TRIAL OF SIR WALTER RALEIGH

• The trial of Sir Walter Raleigh illustrates the
  abuses that were occurring before hearsay rules
  were used.
• In November 1603, Raleigh was tried for treason
  against the King and convicted based upon the
  confession of a single conspirator, who did not
  appear as a witness at the trial.
• In the years following the trial, the English
  courts began developing hearsay rules by 1690,
  it was reported that English courts were using
  hearsay rules to prevent abuses that are recorded
  in the history of that period.

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Raleighs Downfall

• Imprisoned in the Tower of London until 1616
  (instead of being beheaded!) by a political
  enemys testimony, Raleigh was finally released
  to conduct an expedition to Venezuela with the
  admonition not to molest Spanish possessions.
• Unfortunately, the Captain of the voyage did
  attack the Spanish, and the Spanish kings
  ambassador demanded his death.
• Raleigh was executed based on the original
  sentence of treason.

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The Trial of William Penn

• After the 1670 trial of William Penn, the
  historic development of the concept of an
  impartial jury continued, along with the
  development of the hearsay rule.
• Penn was sentenced to jail, but later was
  released and went to America where he was
  instrumental in religious freedoms and prison
  reforms.

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HEARSAY RULES AND THE USE OF INDEPENDENT JURIES
IN THE AMERICAN COLONIES/STATES

• The concepts of impartial, independent juries and
  hearsay rules were brought to the American
  colonies by English settlers as part of the
  English common law system.
• After the American Revolutionary War, both the
  right to an impartial jury and the use of hearsay
  rules were made part of the American legal
  system.
• The Sixth Amendment confrontation clause was made
  part of the American Bill of Rights in 1791.

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WHAT IS HEARSAY

• Rule 801 (c) of the Federal Rules of Evidence
  defines hearsay as follows hearsay is a
  statement, other than one made by the declarant
  while testifying at the trial or hearing, offered
  in evidence to prove the truth of the matter
  asserted.
• The declarant is the person who made the
  statement.

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WHAT IS AN ASSERTIVE STATEMENT?

• The declarants statement must be an assertive
  statement offered as proof that the subject
  matter of the statement is true in order to fall
  within the hearsay rule.
• An assertive statement is one in which the
  declarant intends to communicate his thoughts or
  beliefs.

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NONVERBAL COMMUNICATIONS CAN BE ASSERTIVE

• Nonverbal acts can be used to communicate.
• It is hearsay if the purpose of the nonverbal act
  is to communicate and the communication is
  assertive.

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CONDUCT THAT IS NOT MEANT TO COMMUNICATE

• If a person is engaging in conduct that is not
  meant to communicate, this would generally be
  treated as hearsay, as there is no attempt to be
  assertive.

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

• If an attorney can convince a judge that a
  statement offered for use in evidence is meant to
  prove something other than the truth of that
  statement, the judge will rule that it is
  admissible for evidence.
• The hearsay rule forbids only statements offered
  to prove the truth of the matter asserted it
  does not forbid something other than the truth of
  that statement.

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• The following examples illustrate only a few of
  the numerous other purposes that would take an
  out-of-court statement out of the hearsay
  classification
• Knowledge
• Feelings or state of mind
• Insanity
• Effect on hearer
• The trial judge should instruct the jury that it
  is to consider the evidence only for the
  allowable purpose.

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

• Besides being limited to assertions offered to
  establish proof of the assertion, the hearsay
  rule also does not apply to various out-of-court
  statements that would otherwise literally fall
  within the definition of hearsay.

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PRIOR STATEMENT BY A WITNESS

• If a witness testifies at a trial, and is
  cross-examined concerning an earlier statement
  made by a witness, the statement is not hearsay
  if
• The statement is inconsistent and was given under
  oath at a previous trial, hearing or deposition
• The statement is consistent and is offered to
  rebut a charge that the witness present
  testimony is a recent fabrication or stems from
  an improper motive

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ADMISSION BY PARTY-OPPONENT

• Where the statement sought to be admitted is an
  out-of-court statement made by the defendant or
  someone acting on his/her behalf, rule 801 (d)(2)
  provides that the statement is not hearsay.
• The hearsay rule never forbids admissions by a
  party-opponent (the defendant in a criminal case).

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THE CO-CONSPIRATOR RULE

• Statements by a co-conspirator made during and in
  furtherance of the conspiracy are not hearsay.
• The justification for this rule is that parties
  in a conspiracy are essentially partners, and an
  admission by one partner is fairly attributable
  to the other partners.
• The U.S. Supreme Court has said that statements
  by a co-conspirator provide evidence of the
  conspiracys context that cannot be replicated,
  even if the co-conspirator testifies to the same
  matters in court.

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THE CO-CONSPIRATOR RULE (Cont.)

• The court also noted that simply calling the
  co-conspirator in hopes of having him repeat his
  prior out-of-court statements is a poor
  substitution for the full significance that the
  flow from statements made when the conspiracy is
  operating in full force (co-conspirator rule)