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Chapter 8Chapter 8

Exceptions to the Hearsay Exceptions to the Hearsay RuleRule

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HEARSAY AND THE HEARSAY AND THE CONFRONTATION CLAUSECONFRONTATION CLAUSE

IN CRIMINAL TRIALS, THE ADMISSION OF IN CRIMINAL TRIALS, THE ADMISSION OF OUT-OF-COURT STATEMENTS PRESENTS OUT-OF-COURT STATEMENTS PRESENTS NOT ONLY ISSUES UNDER RELEVANT NOT ONLY ISSUES UNDER RELEVANT HEARSAY RULES BUT ALSO POTENTIAL HEARSAY RULES BUT ALSO POTENTIAL CONFLICT WITH THE SIXTH CONFLICT WITH THE SIXTH AMENDMENT’S AMENDMENT’S CONFRONTATION CONFRONTATION CLAUSECLAUSE

The CONFRONTATIONAL Clause The CONFRONTATIONAL Clause means you have a right under the means you have a right under the 66thth Amendment to be “confronted” Amendment to be “confronted” by the witnesses against you! by the witnesses against you!

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HEARSAY EVIDENCE FOR THE HEARSAY EVIDENCE FOR THE CONFRONTATION CLAUSE ARE CLEAR:CONFRONTATION CLAUSE ARE CLEAR:

IF AN OUT-OF-COURT STATEMENT IS IF AN OUT-OF-COURT STATEMENT IS ADMITTED AS EVIDENCE AGAINST THE ADMITTED AS EVIDENCE AGAINST THE ACCUSED, THE PERSON MAKING THAT ACCUSED, THE PERSON MAKING THAT STATEMENT IS A “WITNESS” WHO IS STATEMENT IS A “WITNESS” WHO IS NOT “CONFRONTING” THE ACCUSEDNOT “CONFRONTING” THE ACCUSED

PRIOR TO 1965 THE CONFRONTATION PRIOR TO 1965 THE CONFRONTATION CLAUSE HAD NOT BEEN EXTENDED TO CLAUSE HAD NOT BEEN EXTENDED TO STATE CRIMINAL CASES AND APPLIED STATE CRIMINAL CASES AND APPLIED ONLY TO FEDERAL CRIMINAL TRIALSONLY TO FEDERAL CRIMINAL TRIALS

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POINTER v. TEXASPOINTER v. TEXAS,, IN THE 1965 CASE OF THE U.S. SUPREME IN THE 1965 CASE OF THE U.S. SUPREME

COURT HELD THAT THE COURT HELD THAT THE FOURTEENTH FOURTEENTH AMENDMENT DUE PROCESS CLAUSE MADE AMENDMENT DUE PROCESS CLAUSE MADE THE CONFRONTATION CLAUSE BINDING IN THE CONFRONTATION CLAUSE BINDING IN STATE CRIMINAL TRIALSSTATE CRIMINAL TRIALS

A STATE MIGHT HAVE AN EVIDENTIARY RULE A STATE MIGHT HAVE AN EVIDENTIARY RULE THAT PERMITS ADMISSIBILITY OF HEARSAY THAT PERMITS ADMISSIBILITY OF HEARSAY EVIDENCE IN CRIMINAL CASES FOR REASONS EVIDENCE IN CRIMINAL CASES FOR REASONS UNIQUE TO THAT STATE’S EVIDENTIARY SYSTEMUNIQUE TO THAT STATE’S EVIDENTIARY SYSTEM

IN THIS CASE, THE STATE’S JUSTIFICATION FOR IN THIS CASE, THE STATE’S JUSTIFICATION FOR ADMISSION OF THE HEARSAY EVIDENCE ADMISSION OF THE HEARSAY EVIDENCE MUST MUST PASS THE CONFRONTATION CLAUSE TESTPASS THE CONFRONTATION CLAUSE TEST

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THE “INDICIA OF RELIABILITY” THE “INDICIA OF RELIABILITY” REQUIREMENTREQUIREMENT

HEARSAY IS NOT ADMISSIBLE AS HEARSAY IS NOT ADMISSIBLE AS EVIDENCE EVIDENCE UNLESS THERE IS A UNLESS THERE IS A SHOWING OF SUBSTANTIAL SHOWING OF SUBSTANTIAL RELIABILITY FOR THE STATEMENTRELIABILITY FOR THE STATEMENT

THE SHOWING OF RELIABILITY AND THE SHOWING OF RELIABILITY AND TRUSTWORTHINESS NECESSARY TO USE TRUSTWORTHINESS NECESSARY TO USE THE STATEMENTS AS EVIDENCE IS THE STATEMENTS AS EVIDENCE IS KNOWN AS KNOWN AS “INDICIA OF “INDICIA OF RELIABILITY”RELIABILITY”

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ExceptionsExceptions

STATE AND FEDERAL LAW PROVIDE STATE AND FEDERAL LAW PROVIDE THAT SEVERAL EXCEPTIONS TO THE THAT SEVERAL EXCEPTIONS TO THE HEARSAY RULE INVOLVE A SHOWING HEARSAY RULE INVOLVE A SHOWING THAT THE THAT THE DECLARANT BE DECLARANT BE UNAVAILABLE AS A WITNESS AT UNAVAILABLE AS A WITNESS AT THE TRIALTHE TRIAL

THIS BURDEN MUST BE CARRIED THIS BURDEN MUST BE CARRIED BEFORE THE STATEMENT CAN BE USED BEFORE THE STATEMENT CAN BE USED AS EVIDENCEAS EVIDENCE

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MOST STATES AND THE FEDERAL MOST STATES AND THE FEDERAL GOVERNMENT PROVIDE THAT A SHOWING OF GOVERNMENT PROVIDE THAT A SHOWING OF “UNAVAILABILITY” IS NOT REQUIRED FOR THE “UNAVAILABILITY” IS NOT REQUIRED FOR THE HEARSAY EXCEPTIONS LISTED UNDER HEARSAY EXCEPTIONS LISTED UNDER FEDERAL RULE 803FEDERAL RULE 803

THE FOLLOWING U.S. SUPREME CASES THE FOLLOWING U.S. SUPREME CASES ILLUSTRATE THE “INDICIA OF RELIABILITY” ILLUSTRATE THE “INDICIA OF RELIABILITY” REQUIREMENT AND DEAL WITH THE QUESTION REQUIREMENT AND DEAL WITH THE QUESTION OF WHETHER THE PROSECUTOR HAD A OF WHETHER THE PROSECUTOR HAD A BURDEN TO SHOW “UNAVAILABILITY” FOR A BURDEN TO SHOW “UNAVAILABILITY” FOR A DECLARANT BEFORE THAT PERSON’S DECLARANT BEFORE THAT PERSON’S STATEMENTS COULD BE USED AS EVIDENCE:STATEMENTS COULD BE USED AS EVIDENCE: OHIO v. ROBERTSOHIO v. ROBERTS UNITED STATES v. INADIUNITED STATES v. INADI WHITE v. ILLINOISWHITE v. ILLINOIS LILLY v. VIRGINIALILLY v. VIRGINIA

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EXCEPTIONS TO THE HEARSAY EXCEPTIONS TO THE HEARSAY RULERULE

THE SUPREME COURT HAS REFUSED MANY TIMES THE SUPREME COURT HAS REFUSED MANY TIMES THE REQUEST OF DEFENSE LAWYERS TO THE REQUEST OF DEFENSE LAWYERS TO INTERPRET THE SIXTH AMENDMENT INTERPRET THE SIXTH AMENDMENT CONFRONTATION CLAUSE SO STRICTLY THAT IT CONFRONTATION CLAUSE SO STRICTLY THAT IT WOULD ELIMINATE VIRTUALLY EVERY HEARSAY WOULD ELIMINATE VIRTUALLY EVERY HEARSAY EXCEPTIONEXCEPTION

THE HEARSAY RULE AND ITS EXCEPTIONS DEVELOPED THE HEARSAY RULE AND ITS EXCEPTIONS DEVELOPED OVER A THREE-HUNDRED-YEAR HISTORY IN ENGLISH OVER A THREE-HUNDRED-YEAR HISTORY IN ENGLISH AND AMERICAN LAW WHICH HAS NOW BEEN MADE A AND AMERICAN LAW WHICH HAS NOW BEEN MADE A PART OF FEDERAL AND STATE LAWPART OF FEDERAL AND STATE LAW

IN ENACTING THESE EXCEPTIONS INTO STATUTORY IN ENACTING THESE EXCEPTIONS INTO STATUTORY LAW, THE U.S. CONGRESS AND STATE LEGISLATURES LAW, THE U.S. CONGRESS AND STATE LEGISLATURES HAVE CONCLUDED THAT THESE EXCEPTIONS HAVE HAVE CONCLUDED THAT THESE EXCEPTIONS HAVE SUFFICIENT GUARANTEES OF RELIABILITY TO BE SUFFICIENT GUARANTEES OF RELIABILITY TO BE CLASSIFIED AS FIRMLY ROOTED HEARSAY EXCEPTIONSCLASSIFIED AS FIRMLY ROOTED HEARSAY EXCEPTIONS

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EXCITED UTTERANCE EXCEPTIONEXCITED UTTERANCE EXCEPTION

EXCITED UTTERANCEEXCITED UTTERANCE IS “A STATEMENT IS “A STATEMENT RELATING TO A STARTLING EVENT OR RELATING TO A STARTLING EVENT OR CONDITION MADE WHILE THE DECLARANT WAS CONDITION MADE WHILE THE DECLARANT WAS UNDER THE STRESS OF EXCITEMENT CAUSED BY UNDER THE STRESS OF EXCITEMENT CAUSED BY THE EVENT OR CONDITION” (803 [2])THE EVENT OR CONDITION” (803 [2])

Rationale: Rationale: THE REASON FOR THE EXCEPTION IS THAT IF THE REASON FOR THE EXCEPTION IS THAT IF

SUCH STATEMENTS ARE IN RESPONSE TO THE SUCH STATEMENTS ARE IN RESPONSE TO THE STARTLING EVENT, THE TRUSTWORTHINESS OF STARTLING EVENT, THE TRUSTWORTHINESS OF SUCH STATEMENTS COMES FROM THE FACT SUCH STATEMENTS COMES FROM THE FACT THAT THE VICTIM OR WITNESS THAT THE VICTIM OR WITNESS HAD NO TIME HAD NO TIME TO REFLECT AND POSSIBLY FABRICATE THE TO REFLECT AND POSSIBLY FABRICATE THE STATEMENTSSTATEMENTS

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STATEMENTS DURING OR STATEMENTS DURING OR IMMEDIATELY AFTER IMMEDIATELY AFTER SHOOTINGS, STABBINGS OR SHOOTINGS, STABBINGS OR ROBBERIES ROBBERIES

STATEMENTS OF RAPE VICTIMS STATEMENTS OF RAPE VICTIMS IMMEDIATELY AFTER THE CRIME IMMEDIATELY AFTER THE CRIME

Rationale: Rationale: THESE STATEMENTS ARE ALMOST THESE STATEMENTS ARE ALMOST

ALWAYS MADE “UNDER THE STRESS ALWAYS MADE “UNDER THE STRESS OF EXCITEMENT” CAUSED BY THE OF EXCITEMENT” CAUSED BY THE STARTLING EVENT OF THE CRIME OF STARTLING EVENT OF THE CRIME OF VIOLENCEVIOLENCE

EXAMPLESEXAMPLES

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Examples continued…Examples continued… RECORDED 911 CALLS AND OTHER RECORDED 911 CALLS AND OTHER

TELEPHONE CALLS WHERE COURTS TELEPHONE CALLS WHERE COURTS HELD THE CALLER WAS SPEAKING HELD THE CALLER WAS SPEAKING UNDER THE STRESS OF EXCITEMENT UNDER THE STRESS OF EXCITEMENT AND PERMITTED THE RECORDING TO BE AND PERMITTED THE RECORDING TO BE USED AS EVIDENCEUSED AS EVIDENCE

MANY COURTS HOLD THAT THERE CAN MANY COURTS HOLD THAT THERE CAN BE MORE OF A TIME LAPSE BETWEEN BE MORE OF A TIME LAPSE BETWEEN THE STARTLING EVENT AND THE STARTLING EVENT AND STATEMENTS WHEN CRIMES SUCH AS STATEMENTS WHEN CRIMES SUCH AS SEX CRIMES ARE REPORTED BY SEX CRIMES ARE REPORTED BY CHILDREN OR MENTALLY RETARDED CHILDREN OR MENTALLY RETARDED PERSONSPERSONS

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THEN EXISTING MENTAL, EMOTIONAL, THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION EXCEPTIONOR PHYSICAL CONDITION EXCEPTION

THE EXISTING MENTAL, EMOTIONAL, ORTHE EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITIONPHYSICAL CONDITION IS IS “A STATEMENT “A STATEMENT OF THE DECLARANT’S THEN EXISTING OF THE DECLARANT’S THEN EXISTING STATE OF MIND, EMOTION, SENSATION OR STATE OF MIND, EMOTION, SENSATION OR PHYSICAL CONDITION (SUCH AS INTENT, PHYSICAL CONDITION (SUCH AS INTENT, PLAN, MOTIVE, DESIGN, MENTAL FEELING, PLAN, MOTIVE, DESIGN, MENTAL FEELING, PAIN AND BODILY HEALTH”PAIN AND BODILY HEALTH” (803 [3]) (803 [3])

Rationale:Rationale: THE REASON FOR THE THE REASON FOR THE EXCEPTION IS THAT IF A STATEMENT IS NOT EXCEPTION IS THAT IF A STATEMENT IS NOT OFFERED TO PROVE THE TRUTH OF THE OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED, COURTS ALMOST ALWAYS MATTER ASSERTED, COURTS ALMOST ALWAYS HOLD THAT SUCH STATEMENTS ARE HOLD THAT SUCH STATEMENTS ARE NOT NOT HEARSAY AND ARE ADMISSIBLE AS HEARSAY AND ARE ADMISSIBLE AS EVIDENCEEVIDENCE

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THEN EXISTING MENTAL, EMOTIONAL, OR THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION EXCEPTION (Cont.)PHYSICAL CONDITION EXCEPTION (Cont.)

What can this imply?What can this imply? MOTIVEMOTIVE OF THE OFFENDER CAN OF THE OFFENDER CAN

BE SHOWNBE SHOWN INTENT INTENT CAN BE SHOWNCAN BE SHOWN INSANITYINSANITY OR OR MENTAL ILLNESSMENTAL ILLNESS

CAN BE SHOWNCAN BE SHOWN STATE OF MINDSTATE OF MIND CAN BE SHOWN CAN BE SHOWN

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STATEMENTS FOR THE PURPOSES OF STATEMENTS FOR THE PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT MEDICAL DIAGNOSIS OR TREATMENT

EXCEPTIONEXCEPTION

STATEMENTS FOR PURPOSES OF MEDICALSTATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR DIAGNOSIS OR TREATMENTTREATMENT (803 [4]) (803 [4])

THE REASON FOR THE EXCEPTION IS TWO FOLD:THE REASON FOR THE EXCEPTION IS TWO FOLD: MOST OF THE CASES CONCERN CHILD VICTIMS OF MOST OF THE CASES CONCERN CHILD VICTIMS OF

SEXUAL ABUSESEXUAL ABUSE IF THE CHILD REASONABLY UNDERSTANDS THE IF THE CHILD REASONABLY UNDERSTANDS THE

NEED TO BE TRUTHFUL TO THEIR PHYSICIAN AND NEED TO BE TRUTHFUL TO THEIR PHYSICIAN AND THE IDENTIFICATION OF THEIR ASSAILANT IS THE IDENTIFICATION OF THEIR ASSAILANT IS REASONABLY NECESSARY TO THEIR MEDICAL REASONABLY NECESSARY TO THEIR MEDICAL DIAGNOSIS AND TREATMENT, THE EXCEPTION DIAGNOSIS AND TREATMENT, THE EXCEPTION WOULD APPLY AND THE PHYSICIAN COULD WOULD APPLY AND THE PHYSICIAN COULD TESTIFY ABOUT STATEMENTS THE CHILD MADE TESTIFY ABOUT STATEMENTS THE CHILD MADE UNDER SUCH CIRCUMSTANCESUNDER SUCH CIRCUMSTANCES

Case: Case: THE 1992 CASE OF WHITE v. ILLINOISTHE 1992 CASE OF WHITE v. ILLINOIS

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REGULARLY KEPT RECORDS REGULARLY KEPT RECORDS EXCEPTIONEXCEPTION

STATES THAT REGULARLY KEPT STATES THAT REGULARLY KEPT RECORDS, PUBLIC RECORDS, RECORDS RECORDS, PUBLIC RECORDS, RECORDS OF RELIGIOUS ORGANIZATIONS AND OF RELIGIOUS ORGANIZATIONS AND FAMILY RECORDS FAMILY RECORDS ARE ADMISSIBLE ARE ADMISSIBLE UNDER CERTAIN FEDERAL RULESUNDER CERTAIN FEDERAL RULES (803)(803)

Rationale: THE REASON FOR THIS Rationale: THE REASON FOR THIS EXCEPTION IS THAT THESE USUALLY EXCEPTION IS THAT THESE USUALLY ACCURATE RECORDS CAN BE ACCURATE RECORDS CAN BE ATTACKED BY THE OPPOSING PARTYATTACKED BY THE OPPOSING PARTY

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SOME EXAMPLES ARE:SOME EXAMPLES ARE: RECORDS OF REGULARLY CONDUCTED RECORDS OF REGULARLY CONDUCTED

(BUSINESS) ACTIVITY (803[6])(BUSINESS) ACTIVITY (803[6]) PUBLIC RECORDS AND REPORTS PUBLIC RECORDS AND REPORTS

(803[8])(803[8]) RECORDS OF VITAL STATISTICS (803[9])RECORDS OF VITAL STATISTICS (803[9]) RECORDS OF RELIGIOUS RECORDS OF RELIGIOUS

ORGANIZATIONS (MARRIAGE, BAPTISM, ORGANIZATIONS (MARRIAGE, BAPTISM, AND SO ON) (803[11])AND SO ON) (803[11])

FAMILY RECORDS (PERSONAL AND FAMILY RECORDS (PERSONAL AND FAMILY HISTORY) (803[13])FAMILY HISTORY) (803[13])

STATEMENTS IN ANCIENT DOCUMENTS STATEMENTS IN ANCIENT DOCUMENTS (OVER TWENTY YEARS OLD) (803[16])(OVER TWENTY YEARS OLD) (803[16])

LEARNED TREATISES (HISTORY, LEARNED TREATISES (HISTORY, MEDICINE OR OTHER SCIENCE MEDICINE OR OTHER SCIENCE ESTABLISHED AS A RELIABLE ESTABLISHED AS A RELIABLE AUTHORITY) (803[18])AUTHORITY) (803[18])

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DYING DECLARATION EXCEPTIONDYING DECLARATION EXCEPTION

A STATEMENT MADE, IN A A STATEMENT MADE, IN A PROSECUTION FOR HOMICIDE OR IN PROSECUTION FOR HOMICIDE OR IN A CIVIL ACTION OR PROCEEDING, A CIVIL ACTION OR PROCEEDING, BY A DECLARANT BY A DECLARANT WHILE WHILE BELIEVING THAT THE BELIEVING THAT THE DECLARANT’S DEATH WAS DECLARANT’S DEATH WAS IMMINENT, CONCERNING THE IMMINENT, CONCERNING THE CAUSE OR CIRCUMSTANCES OF CAUSE OR CIRCUMSTANCES OF WHAT THE DECLARANT WHAT THE DECLARANT BELIEVED TO BE IMPENDING BELIEVED TO BE IMPENDING DEATHDEATH

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RationaleRationale IN 1789 THE ENGLISH COURT STATED THE IN 1789 THE ENGLISH COURT STATED THE

REASON FOR THE EXCEPTION AS REASON FOR THE EXCEPTION AS FOLLOWS:FOLLOWS:

““THEY ARE DECLARATIONS MADE IN THEY ARE DECLARATIONS MADE IN EXTREMITY, WHEN THE PARTY IS AT EXTREMITY, WHEN THE PARTY IS AT THE POINT OF DEATH, AND WHEN THE POINT OF DEATH, AND WHEN EVERY HOPE OF THIS WORLD IS GONE, EVERY HOPE OF THIS WORLD IS GONE, WHEN EVERY MOTIVE TO FALSEHOOD WHEN EVERY MOTIVE TO FALSEHOOD IS SILENCED, AND THE MIND IS IS SILENCED, AND THE MIND IS INDUCED BY THE MOST POWERFUL INDUCED BY THE MOST POWERFUL CONSIDERATIONS TO SPEAK THE CONSIDERATIONS TO SPEAK THE TRUTH “TRUTH “

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DYING DECLARATION EXCEPTION (Cont.)DYING DECLARATION EXCEPTION (Cont.)

IN THE 1990 CASE OF STATE v. IN THE 1990 CASE OF STATE v. WEIR, IT WAS HELD BY THE WEIR, IT WAS HELD BY THE FLORIDA APPELLATE COURT THAT:FLORIDA APPELLATE COURT THAT: ADMISSION OF DYING ADMISSION OF DYING

DECLARATIONS IS JUSTIFIED ON DECLARATIONS IS JUSTIFIED ON THE GROUNDS OF PUBLIC THE GROUNDS OF PUBLIC NECESSITY, MANIFEST JUSTICE NECESSITY, MANIFEST JUSTICE AND THE SENSE THAT IMPENDING AND THE SENSE THAT IMPENDING DEATH MAKES FALSE STATEMENT DEATH MAKES FALSE STATEMENT BY THE BY THE DECEDENT DECEDENT IMPROBABLEIMPROBABLE

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Must the person actually Must the person actually “DIE?!” “DIE?!”

Unfortunately, they do! Unfortunately, they do! However, it “may” be used However, it “may” be used

under the Excited under the Excited Utterance exception. Utterance exception.

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BECAUSE KILLINGS ARE STARTLING BECAUSE KILLINGS ARE STARTLING EVENTS, STATEMENTS MADE EVENTS, STATEMENTS MADE IMMEDIATELY AFTER A FATAL IMMEDIATELY AFTER A FATAL SHOOTING OR KNIFING SHOOTING OR KNIFING COULD BE COULD BE FOUND TO BE ADMISSIBLEFOUND TO BE ADMISSIBLE UNDER UNDER WHAT TWO EXCEPTIONS? WHAT TWO EXCEPTIONS?

THE EXCITED UTTERANCE THE EXCITED UTTERANCE EXCEPTION OR…EXCEPTION OR…

THE DYING DECLARATION THE DYING DECLARATION EXCEPTION TO THE HEARSAY RULEEXCEPTION TO THE HEARSAY RULE

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STATEMENT AGAINST-PENAL-INTEREST STATEMENT AGAINST-PENAL-INTEREST EXCEPTIONEXCEPTION

THIS IS “A STATEMENT THAT WAS AT THE TIME THIS IS “A STATEMENT THAT WAS AT THE TIME OF ITS MAKINS SO FAR CONTRARY TO THE OF ITS MAKINS SO FAR CONTRARY TO THE DECLARANT’S PECUNIARY OF PROPRIETARY DECLARANT’S PECUNIARY OF PROPRIETARY INTEREST OR SO FAR TENDED TO SUBJECT THE INTEREST OR SO FAR TENDED TO SUBJECT THE DECLARANT TO CIVIL OR CRIMINAL LIABILITY DECLARANT TO CIVIL OR CRIMINAL LIABILITY THAT A REASONABLE PERSON IN THE THAT A REASONABLE PERSON IN THE DECARANT’S POSITION DECARANT’S POSITION WOULD NOT HAVE WOULD NOT HAVE MADE THE STATEMENT UNLESS MADE THE STATEMENT UNLESS BELIEVING IT TO BE TRUE”BELIEVING IT TO BE TRUE”

Rationale:Rationale: THE REASON FOR THIS EXCEPTION THE REASON FOR THIS EXCEPTION IS THAT SUCH INCRIMINATING ADMISSIONS OR IS THAT SUCH INCRIMINATING ADMISSIONS OR CONFESSIONS ORDINARILY ARE CONSIDERED CONFESSIONS ORDINARILY ARE CONSIDERED TO HAVE A RELIABLE BASISTO HAVE A RELIABLE BASIS

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STATEMENT AGAINST-PENAL-INTEREST STATEMENT AGAINST-PENAL-INTEREST EXCEPTION (Cont.)EXCEPTION (Cont.)

Cases:Cases: THE 1973 U.S. SUPREME COURT THE 1973 U.S. SUPREME COURT CASE OF CHAMBERS v. CASE OF CHAMBERS v. MISSISSIPPIMISSISSIPPI

STATE v. ROSADOSTATE v. ROSADO LEE v. McCAUGHTRYLEE v. McCAUGHTRY

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THE FRESH COMPLAINT AND THE THE FRESH COMPLAINT AND THE OUTCRY RULEOUTCRY RULE

HUNDREDS OF YEARS AGO, THE VICTIM OF CRIME HUNDREDS OF YEARS AGO, THE VICTIM OF CRIME WAS EXPECTED TO RAISE AN IMMEDIATE WAS EXPECTED TO RAISE AN IMMEDIATE HUE HUE AND CRY, OR OUTCRYAND CRY, OR OUTCRY

THE FAILURE TO DO SO FREQUENTLY RESULTED THE FAILURE TO DO SO FREQUENTLY RESULTED IN THE VICTIM LOSING THE RIGHT TO CHARGE IN THE VICTIM LOSING THE RIGHT TO CHARGE THE PERPETRATOR WITH THE CRIME IN A LATER THE PERPETRATOR WITH THE CRIME IN A LATER TRIALTRIAL

THE REQUIREMENT THAT ONE MAKE AN OUTCRY THE REQUIREMENT THAT ONE MAKE AN OUTCRY WAS DROPPED FROM THE LAW MANY YEARS AGO, WAS DROPPED FROM THE LAW MANY YEARS AGO, BUT A VESTIGE OF THE REQUIREMENT SURVIVES BUT A VESTIGE OF THE REQUIREMENT SURVIVES IN THE IN THE FRESH COMPLAINT AND OUTCRY RULEFRESH COMPLAINT AND OUTCRY RULE

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IN THE NINETEENTH CENTURY AND WELL INTO IN THE NINETEENTH CENTURY AND WELL INTO THE TWENTIETH CENTURY, THE COMMON LAW THE TWENTIETH CENTURY, THE COMMON LAW ASSUMED THAT ONLY THOSE VICTIMS WHO ASSUMED THAT ONLY THOSE VICTIMS WHO IMMEDIATELY COMPLAINED OF RAPE WERE IMMEDIATELY COMPLAINED OF RAPE WERE ACTUALLY RAPED, WHEREAS THOSE PERSONS ACTUALLY RAPED, WHEREAS THOSE PERSONS WHO REMAINED SILENT SOMEHOW CONSENTED WHO REMAINED SILENT SOMEHOW CONSENTED TO THE SEXUAL ASSUALTTO THE SEXUAL ASSUALT

TODAY, MODERN COURTS TODAY, MODERN COURTS REJECT REJECT THE CONCEPT THE CONCEPT THAT IF THERE WERE NO IMMEDIATE, OR FRESH, THAT IF THERE WERE NO IMMEDIATE, OR FRESH, COMPLAINT, THERE WAS NO RAPECOMPLAINT, THERE WAS NO RAPE

IN OTHER STATES, THE EXCITED REPORTING IN OTHER STATES, THE EXCITED REPORTING OF A RAPE OR OTHER CRIMES, WHICH ARE OF A RAPE OR OTHER CRIMES, WHICH ARE STARTLING EVENTS, WHILE UNDER THE STARTLING EVENTS, WHILE UNDER THE STRESS OF EXCITEMENT COULD BE STRESS OF EXCITEMENT COULD BE ADMISSIBLE UNDER THE EXCITED ADMISSIBLE UNDER THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY UTTERANCE EXCEPTION TO THE HEARSAY RULERULE

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MODERN HEARSAY EXCEPTIONS IN MODERN HEARSAY EXCEPTIONS IN CHILD SEXUAL ABUSE CASESCHILD SEXUAL ABUSE CASES

STATEMENTS BY CHILDREN REPORTING CRIMES STATEMENTS BY CHILDREN REPORTING CRIMES ARE OFTEN ADMITTED AS EVIDENCE UNDER THE ARE OFTEN ADMITTED AS EVIDENCE UNDER THE EXCITED UTTERANCE HEARSAY EXCEPTIONEXCITED UTTERANCE HEARSAY EXCEPTION

STATEMENTS CHILDREN MAKE TO PHYSICIANS STATEMENTS CHILDREN MAKE TO PHYSICIANS AND NURSES OFTEN QUALIFY AS EVIDENCE AND NURSES OFTEN QUALIFY AS EVIDENCE UNDER THE MEDICAL DIAGNOSIS AND UNDER THE MEDICAL DIAGNOSIS AND TREATMENT EXCEPTION OF THE HEARSAY RULETREATMENT EXCEPTION OF THE HEARSAY RULE

NEWER CHILD HEARSAY STATUTES PERMIT NEWER CHILD HEARSAY STATUTES PERMIT MORE OUT-OF-COURT STATEMENTS BY MORE OUT-OF-COURT STATEMENTS BY CHILDREN TO BE USED AS EVIDENCE IN CHILD CHILDREN TO BE USED AS EVIDENCE IN CHILD SEXUAL ABUSE CASESSEXUAL ABUSE CASES

THE RELIABILITY OF SUCH STATEMENTS THE RELIABILITY OF SUCH STATEMENTS CANNOT BE INFERREDCANNOT BE INFERRED BECAUSE THESE BECAUSE THESE NEW HEARSAY EXCEPTIONS ARE NOT NEW HEARSAY EXCEPTIONS ARE NOT FIRMLY ROOTED IN LAWFIRMLY ROOTED IN LAW

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PROSECUTORS MUST SHOW PROSECUTORS MUST SHOW THAT STATEMENTS BY THAT STATEMENTS BY CHILDREN HAVE …CHILDREN HAVE …

““PARTICULARIZED PARTICULARIZED GUARANTEES OF GUARANTEES OF TRUSTWORTHINESS”TRUSTWORTHINESS”

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THE SUPREME COURT LISTED THE THE SUPREME COURT LISTED THE FOLLOWING FACTORS THAT IN FOLLOWING FACTORS THAT IN THOUGHT “PROPERLY RELATE TO THOUGHT “PROPERLY RELATE TO WHETHER HEARSAY STATEMENTS WHETHER HEARSAY STATEMENTS MADE BY A CHILD WITNESS IN CHILD MADE BY A CHILD WITNESS IN CHILD SEXUAL ABUSE CASES ARE RELIABLE:SEXUAL ABUSE CASES ARE RELIABLE:

SPONTANEITY AND CONSISTENT SPONTANEITY AND CONSISTENT REPETITIONREPETITION

MENTAL STATE OF THE DECARANT MENTAL STATE OF THE DECARANT (CHILD)(CHILD)

USE OF TERMINOLOGY USE OF TERMINOLOGY UNEXPECTED OF A CHILD OF UNEXPECTED OF A CHILD OF SIMILAR AGESIMILAR AGE

LACK OF MOTIVE TO FABRICATELACK OF MOTIVE TO FABRICATE

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HAVE INNOCENT PEOPLE BEEN CHARGED OR HAVE INNOCENT PEOPLE BEEN CHARGED OR CONVICTED IN CHILD SEXUAL ABUSE CASES?CONVICTED IN CHILD SEXUAL ABUSE CASES?

COURTS HAVE RESPONDED TO THE PROBLEMS COURTS HAVE RESPONDED TO THE PROBLEMS OF VERY YOUNG CHILDREN AS VICTIMS BY OF VERY YOUNG CHILDREN AS VICTIMS BY RELAXING HEARSAY RULES SO THAT MORE RELAXING HEARSAY RULES SO THAT MORE ADULTS COULD TESTIFY ABOUT OUT-OF-COURT ADULTS COULD TESTIFY ABOUT OUT-OF-COURT STATEMENTS MADE BY CHILDRENSTATEMENTS MADE BY CHILDREN

THE NEWER STATE CHILD HEARSAY STATUTES THE NEWER STATE CHILD HEARSAY STATUTES PERMIT ADDITIONAL USE OF OUT-OF-COURT PERMIT ADDITIONAL USE OF OUT-OF-COURT STATEMENTS BY CHILDREN AS EVIDENCE IN STATEMENTS BY CHILDREN AS EVIDENCE IN CRIMINAL TRIALSCRIMINAL TRIALS

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HAVE INNOCENT PEOPLE BEEN CHARGED OR HAVE INNOCENT PEOPLE BEEN CHARGED OR CONVICTED IN CHILD SEXUAL ABUSE CASES? CONVICTED IN CHILD SEXUAL ABUSE CASES?

(Cont.)(Cont.)

SUCH STATEMENTS COULD BE USED SUCH STATEMENTS COULD BE USED TO CORROBORATE THE TESTIMONY OF TO CORROBORATE THE TESTIMONY OF CHILDREN CONCERNING SEXUAL CHILDREN CONCERNING SEXUAL ABUSE OR MIGHT BE SUFFICIENT TO ABUSE OR MIGHT BE SUFFICIENT TO PRESENT A CASE WITHOUT THE CHILD PRESENT A CASE WITHOUT THE CHILD TESTIFYING WHERE IT IS SHOWN THAT TESTIFYING WHERE IT IS SHOWN THAT THE CHILD HAS BEEN TRAUMATIZED THE CHILD HAS BEEN TRAUMATIZED OR OTHERWISE UNABLE TO TESTIFYOR OTHERWISE UNABLE TO TESTIFY