CHAPTER XHEARSAY EVIDENCE

Hearsay Evidence

• Evidence of a statement that was made other than by the witness while testifying that is offered to prove the truth of the matter stated in court.

Hearsay Evidence

General Rule: Is generally considered Inadmissible because it is Unreliable because:

1) No opportunity to assess competency or credibility of the original declarant.

2) No opportunity for cross-examination.

3) No guarantee of truthfulness.

Hearsay Evidence

Hearsay Exception = admissible hearsay.

Legal Foundation = elements that make up the hearsay exception.

Test For Trustworthiness = legal reason which overcomes the general unreliability of the hearsay.

Hearsay ExceptionAdmissions & Confessions:• Peace officer or private citizen can testify to the

content of an admission or confession made by the accused.

Admission: statement from the accused acknowledging a fact of relevant evidence (not amounting to a confession)

Confession: statement from the accused acknowledging guilt “I did it”

Legal Foundation: statement must be legally obtained (“402 motion”).

Test for Trustworthiness: a person would not make a statement adverse to one’s penal interests unless that statement were true.

Hearsay ExceptionSpontaneous Statement:Legal Foundation:1) Excited Utterance - A statement made during or

shortly after a crime or incident that was likely to arouse the emotions of a reasonable person.

2) Contemporaneous or close in time with the occurrence of the crime or incident (while the victim or witness is still “under the influence “ of the event).

3) About what the declarant saw or otherwise perceived.

Hearsay Exception

Test For Trustworthiness:

• Statements made in the heat of excitement and close in time to a crime are considered reliable.

• The declarant did not have the time or opportunity to fabricate or contrive a falsehood (“comes from the heart”).

Hearsay ExceptionDying Declaration: is evidence of a statement made

by a dying person with respect to the cause and circumstances of death.

Legal Foundation:1) The declarant (victim) must be under an impending sense of

death (reasonably believes that he/she is going to die).2) The statement must concern personal knowledge about the cause and circumstances surrounding the stroke of death.3) The victim must die!

Hearsay Exception

What if the victim isn’t under an impending sense of death or survives the incident?

• Could be used as a:Spontaneous StatementPrior statements of witnesses

• But not a dying declaration!

Hearsay ExceptionTest For Trustworthiness:

“Oh, but they say the tongues of dying men, enforce attention like deep harmony; where words are scarce they are seldom spent in vain; for they breathe truth that breathe their words in pain (William Shakespeare)

A person would not lie on one’s deathbed - want to “meet the maker” with a clear conscience.

Dying Declaration?

Hearsay ExceptionPrior Statements Of Witnesses:Legal Foundation:• After a person testifies in court, another person

who received or overheard the statement by that witness may be called to repeat all or part of the prior utterance when:

• 2 Prong Test:1. Impeachment (inconsistent with one’s present

testimony)2. Corroborate or Rehabilitation (to “fill in the

blanks”)Note: See text for examples

Hearsay Exception

Test For Trustworthiness:• All due process and cross-examination

rights are afforded during the testimony of both the original declarant and the follow-up witness who testifies.

Hearsay Exception:Former Testimony and Witness Unavailable:Legal foundation:1. The former testimony was given under oath or

affirmation with an opportunity for discovery and cross-examination of the witness.

2. There is an official transcript of the former testimony.

3. The original witness is unavailable to testify at the subsequent court hearing due to death, injury, sickness, incapacity, unable to locate for subpoena, refusal to appear in court, etc

Note: See text for examples

Test for Trustworthiness: all due process and cross-examination rights were afforded at the prior court hearing.

Hearsay Exception

Business Records: Records kept in the normal course and routine of a business or private enterprise.

• Bank of America• Southern California Edison• Verizon • Visa• Memorial Hospital• Home Depot

Hearsay Exception

Official Records: are public records kept in the normal course of events by a public agency.

Examples:• Department of Motor Vehicles• Department of Justice• County of Los Angeles• City of Wilmington• LAHC

OFFICIAL RECORDS• What other hearsay

exception could apply in this case?

• Spontaneous Statement

Hearsay Exception

Business & Official Records:

Legal Foundation:

1) Record was made in the normal course of business or public transaction.

2) The record was made at or near the time of the event or information recorded (contemporaneous).

3) The source of information and method of preparation are trustworthy.

Hearsay ExceptionBusiness & Official Records:

Test For Trustworthiness:

• There is a high probability that records and documents prepared in the normal course of duties are accurate and reliable.

• Any person who is familiar with the record and how it is prepared may authenticate and testify to its contents.

• It is not necessary to have the original author testify about the record.

Hearsay Exception

Hearsay Evidence At Preliminary Hearings (Prop. 115 Rule)

An officer with five or more years experience or who has completed a POST training class may give hearsay evidence at preliminary hearings for the purpose of establishing probable cause the defendant committed the felony charged.

Hearsay Exception

Hearsay evidence at preliminary hearings (prop. 115 rule)

• Only first level hearsay is permitted.

• Not “totem pole” hearsay.

Example: witness tells officer - who tells a detective what the witness said.

• The detective could not give hearsay evidence in court because he/she didn’t personally interview the witness.