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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 witnesses give their testimony, When witnesses give their testimony, the subject matter is typically some the subject matter is typically some event observed in some manner by event observed in some manner by them, which is subsequently recollected them, which is subsequently recollected in the courtroom.in the courtroom.

The principal means used by courts to The principal means used by courts to guard against standard risks are the guard against standard risks are the requirements that the witness testify requirements that the witness testify under oath and that the witness be under oath and that the witness be available for cross-examination.available for cross-examination.

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Testimony RisksTestimony Risks

Testimony is generally seen as Testimony is generally seen as presenting four risks relating to its presenting four risks relating to its truthfulness: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 witnessesThe sincerity of the witnesses

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

Hearsay in most federal and state criminal Hearsay in most federal and state criminal proceedings would be inadmissible under the proceedings would be inadmissible under the relevant hearsay rulerelevant hearsay 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 exceptions.numerous exceptions.

In criminal trials, the In criminal trials, the confrontation clause confrontation clause of the Sixth Amendmentof the Sixth Amendment to the U.S. to the U.S. Constitution imposes a constitutional Constitution imposes a constitutional restriction on out-of-court testimony by restriction on out-of-court testimony by witnesses.witnesses.

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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 criminal courts continued to centuries, English criminal courts continued to convict defendants based on “anonymous convict defendants based on “anonymous accusers and absentee witnesses.”accusers and absentee witnesses.”

This practice was particularly prevalent in the This practice was particularly prevalent in the infamous infamous star chamberstar chamber trials, which were trials, which were used by the monarch to control political used by the monarch to control political enemies.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 frequently the In such trials, the evidence was frequently the “confession” of a single “conspirator,” who was “confession” of a single “conspirator,” who was not available for cross-examination by the not available for cross-examination by the accused and who did not repeat his accused and who did not repeat his “confession” under oath at the trial.“confession” under oath at the trial.

These abuses were condemned by many of These abuses were condemned by many of Queen Elizabeth’s subjects.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 The trial of Sir Walter Raleigh illustrates the abuses that were occurring before hearsay abuses that were occurring before hearsay rules were used.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 witness conspirator, who did not appear as a witness at the trial.at the trial.

In the years following the trial, the English In the years following the trial, the English courts began developing hearsay rules; by courts began developing hearsay rules; by 1690, it was reported that English courts 1690, it was reported that English courts were using hearsay rules to prevent abuses were using hearsay rules to prevent abuses that are recorded in the history of that that are recorded in the history of that period.period.

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Raleigh’s DownfallRaleigh’s Downfall

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

Unfortunately, the Captain of the voyage did Unfortunately, the Captain of the voyage did attack the Spanish, and the Spanish king’s attack the Spanish, and the Spanish king’s ambassador demanded his death.ambassador demanded his death.

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

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The Trial of William PennThe Trial of William Penn After the 1670 trial of William Penn, After the 1670 trial of William Penn,

the historic development of the the historic development of the concept of an impartial jury continued, concept of an impartial jury continued, along with the development of the along with the development of the hearsay rule.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 juries The concepts of impartial, independent juries and hearsay rules were brought to the and hearsay rules were brought to the American colonies by English settlers as part of American colonies by English settlers as part of the English common law system.the English common law system.

After the American Revolutionary War, both After the American Revolutionary War, both the right to an impartial jury and the use of the right to an impartial jury and the use of hearsay rules were made part of the American hearsay rules were made part of the American legal system.legal system.

The Sixth Amendment confrontation clause The Sixth Amendment confrontation clause was made part of the American Bill of Rights in was made part of the American Bill of Rights in 1791.1791.

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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 follows: Evidence defines hearsay as follows: “‘“‘hearsayhearsay’ is a statement, ’ is a statement, other than other than one made by the declarant while one made by the declarant while testifying at the trial or hearing,testifying at the trial or hearing, offered in evidence to prove the truth of offered in evidence to prove the truth of the matter asserted.”the matter asserted.”

The The declarantdeclarant is the person who made is the person who made the statement.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 that offered as proof that the subject matter of the statement is true the subject matter of the statement is true in order to fall within the hearsay rule.in order to fall within the hearsay rule.

An assertive statement is one in which the An assertive statement is one in which the declarant intends to communicate his declarant intends to communicate his thoughts or beliefs.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 communicate.communicate.

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 assertive.and the communication is assertive.

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

If a person is engaging in conduct that If a person is engaging in conduct that is not meant to communicate, this is not meant to communicate, this would generally be treated as hearsay, would generally be treated as hearsay, as there is no attempt to be assertive.as there is no attempt to be 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 that If an attorney can convince a judge that a statement offered for use in evidence is a statement offered for use in evidence is meant to prove something other than the meant to prove something other than the truth of that statement, the judge will truth of that statement, the judge will rule that it is admissible for evidence.rule that it is admissible for evidence.

The hearsay rule forbids only statements The hearsay rule forbids only statements offered to prove the offered to prove the truth of the mattertruth of the matter assertedasserted; it does not forbid something ; it does not forbid something other than the truth of that statement.other than the truth of that statement.

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The following examples illustrate only a The following examples illustrate only a few of the numerous other purposes that few of the numerous other purposes that would take an out-of-court statement out would take an out-of-court statement out of the hearsay classification:of the hearsay classification: KnowledgeKnowledge Feelings or state of mindFeelings or state of mind InsanityInsanity Effect on hearerEffect on hearer

The trial judge should instruct the jury The trial judge should instruct the jury that it is to consider the evidence only for that it is to consider the evidence only for the allowable purpose.the allowable purpose.

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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 assertions Besides being limited to assertions

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

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PRIOR STATEMENT BY A WITNESSPRIOR STATEMENT BY A WITNESS If a witness testifies at a trial, If a witness testifies at a trial,

and is cross-examined and is cross-examined concerning an earlier statement concerning an earlier statement made by a witness, the made by a witness, the statement is statement is not hearsaynot hearsay if: if: The statement is inconsistent and The statement is inconsistent and

was given under oath at a previous was given under oath at a previous trial, hearing or depositiontrial, hearing or deposition

The statement is consistent and The statement is consistent and is is offered to rebut a charge that offered to rebut a charge that the witness’ present testimony the witness’ present testimony is a recent fabrication or stems is a recent fabrication or stems from an improper motivefrom an improper motive

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ADMISSION BY PARTY-OPPONENTADMISSION BY PARTY-OPPONENT

Where the statement sought to be Where the statement sought to be admitted is an out-of-court statement admitted is an out-of-court statement made by the defendant or someone made by the defendant or someone acting on his/her behalf, rule 801 (d)acting on his/her behalf, rule 801 (d)(2) provides that the statement is not (2) provides that the statement is not hearsay.hearsay.

The hearsay rule never forbids The hearsay rule never forbids admissions by a admissions by a party-opponentparty-opponent (the (the defendant in a criminal case).defendant in a criminal 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 hearsay.conspiracy are not hearsay.

The justification for this rule is that parties The justification for this rule is that parties in a in a conspiracyconspiracy are essentially partners, and are essentially partners, and an admission by one partner is fairly an admission by one partner is fairly attributable to the other partners.attributable to the other partners.

The U.S. Supreme Court has said that The U.S. Supreme Court has said that statements by a co-conspirator “provide statements by a co-conspirator “provide evidence of the conspiracy’s context that evidence of the conspiracy’s context that cannot be replicated, even if the co-cannot be replicated, even if the co-conspirator testifies to the same matters in conspirator testifies to the same matters in court.”court.”

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

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