HEARSAY DEFINITIONS & EXCEPTIONS RULE 801

Introduction

Classic hearsay is an out-of-court statement made by someone who is not in court but another person is saying they “heard” it.

If want to get something in over the “Hearsay” objection you have 2 options:

Argue: ‘its not hearsay” ie. use the definition

Concede: it is hearsay but argue it falls under an Exception ie. admissible hearsay

Trial of Sir Walter Raleigh

The right to face your accuser partially underlies the basis for the hearsay rule

One should be able to cross-examine one who speaks evidence relevant to the issue before the court

The rule presumes that we should distrust statements which have been made out of court and are merely repeated in the courtroom w/o the proper opportunity to question the original speaker

The primary reason for excluding hearsay is that the trier of fact has no adequate basis for evaluating the declarant’s credibility, cause they are not subject to cross-exam

Risks Associated w/ Hearsay

Perception: (misperception)

Recollection: (faulty memory)

Narration: (ambiguity in the statements)

Sincerity: (or insincerity on part of speaker)

Trial Safeguards

Cross-examination, oath & assessment of a witness’s demeanor

Analysis Under the Rules

Rule 801. Definitions

801(a) Statements.

A “statement is (1) an oral or written assertion or (2) non-verbal conduct of a person, if it is intended by the person as an assertion

Direct Assertions: the words used directly state the meaning that the speaker intends to convey

Ex. “Jason took the candy from the jar”

Conduct constituting assertion: some nonverbal conduct, ie pointing to id a suspect, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement.

801(b) Declarant

A declarant is a person who makes a statement

Computers (or automated devices) which generate info automatically are not declarants.

Animal

Some cts say the police or other persons testimony about a dogs id is not hearsay cause that person can be cross-examined & the dogs abilities are only competent when combined w/ human testimony

Others disagree

Machine

The key to if hearsay is implicated w/ machines is found in how the info is created

If automated, it unlikely hearsay

But a computer printout may be hearsay if the data was entered by a person

801(c) Hearsay

Hearsay is statement, other than one made by the declarant while testifying at the trial or hearing, OFFERED INTO EVIDENCE TO PROVE THE TRUTH OF THE MATTER ASSERTED.

Break into parts:

1^st Hearsay is a Statement

If not a statement, not hearsay

2^nd the statement must be one made out-of-court

Still counts if declarant is restating in court something he or she said out of court

The statement must be offered into evidence to prove the truth of the matter asserted in that statement

Ask is there a match btwn what the party offering the evidence seeks to prove & what the declarant asserted in the statement?

Utterances & Conduct that Are Not Hearsay

Typical Purposes being offered other than for truth of assertion:

Impeachment of a witness;

Arises when a witness has made a statement & now, on the stand, changes their story.

Idea is to challenge their credibility

Purpose is to show the conflict btwn the 2 statements, not to assert the truth in either one

Ex. testify light was red- but out of court said was green, its not introduced to prove light was green, but rather to show not credible

Effect on the listener;

McClure v. State

“whenever an utterance is offered to show the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is to be made of it, & the utterance is therefore admissible, so far as the hearsay rule is concerned.

Ie. Inflict emotional stress- statement is integral part and so not hearsay

Verbal acts;

Words that constitute a contract btwn parties, defamatory statements, & statements which may constitute a crime or change someones legal status

Hanson v. Johnson

Verbal act of pointing for purposes of showing ownership of property

The words w/pointing “here is your corn” were the verbal acts, the very fact needed to be proved

They give legal significance to conduct, accompany conduct

Verbal objects;

Usually used for identification, ie hat said go longhorns on it, the statement on the hat is not for truth but can be used for id that person wearing the hat that said that

A reference to language “seen” out of court

An identifying mark=just like saying something w/o language (purple coat)

Introduced not to prove the language is true but rather to link a person to a place or event

Circumstantial evidence of state of mind of the declarant;

Written statement may be admitted as evidence of a person’s state of mind, not to prove the truth of the matter asserted but rather to provide the fact finder a basis upon which could be drawn an inference concerning that state of mind.

Belief in something

Knowledge or lack thereof

Lack of predisposition to commit a crime

Motive

Notice

Circumstantial evidence of memory or belief of the declarant

Statements Which are Not Hearsay by Definition

MUST HAVE DECLARANT TESTIFYING SO SUBJECT TO CROSS EXAM

801(d) a statement is not hearsay if

801(d)(1) Prior Inconsistent Statement by Witness

The declarant testifies at the trial & is subject to cross exam concerning the statement, and the statement is

Inconsistent w/ the declarant’s testimony, & was given under oath, or

Admissibility under this rule requires the prior out-of-court statement be inconsistent w/ the testimony given by the witness testifying in court and it MUST have been made under oath (cause then was subject to cross and presume wldnt lie)

U.S. v. Barrett

Rule: the contradiction need not be in plain terms. It is enough if the proffered testimony, take as a whole, either by what it says or omits to say, affords some indication that the fact was diff. from the testimony of the witness whom it is brought to...

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