This is an extract of our Hearsay document, which we sell as part of our Evidence Outlines collection written by the top tier of University Of Virginia students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
HEARSAY 1) IS THIS HEARSAY?
Rationale: prefer viva voce evidence (CX, oath, perjury); jury might overvalue; flaws in perception of declarant 1) Out-of-court = current court - not made under oath at the trial in which it is being offered. 2) Statement (by a person): includes a written or oral statement or non-verbal conduct.
-non-persons don't count. (bloodhound barking, parrots repeating things). 3) (split) Declarant intended to make an assertion (intended to communicate facts). Declarant = person who made the statement.
-Sometimes same person as witness, just repeating what they said earlier. (MIN - Dullard): DON'T NEED INTENT to be an assertion barred by hearsay rule.
=more likely to find an implied assertion=> s/t hearsay. Not convinced that lack of intent to communicate justifies excluding statement from hearsay rule. Best approach is to evaluate assertion in context of the purpose for which the evidence is offered. Rationale: even without intent, there are still hearsay problems (erroneous memory, faulty perception, ambiguity, though it might solve the sincerity problem). (MAJ -Zenni): INTENT REQUIRED No intent=>not assertion => not subject to hearsay. APP: Calls to the house during raid, trying to place bets. Language wasn't an assertion, obviously no intent to make an assertion that it was a bookie's house. (MAJ) Diaries are still hearsay. (Some say not hearsay, if no intent to share w/ others) Nonverbal acts can show intent to communicate.
-EXAMPLES: nodding head in response to yes/no question; pointing at someone to ID them as perp; British health minister biting into a burger and having daughter do the same thing. Pretty clearly an implied assertion that he thinks the beef is safe.
-silence: Failure to deny may, in limited circumstances, be an assertion in response to Q.
-Questions: (split): 1) if contains an assertion; 2) if decl intended to make an assertion; 3) never hearsay.
-Exclamations are not assertions:
-Commands/Threats are not assertions: Montana: witness demanded money payoff. Not hearsay.
-Verbal acts: words with independent legal significance are not assertions
-Words cause a change in legal status, regardless of their sincerity. Fact they were made.
-oral statements that constitute/rescind a contract; harassing statements; defamatory statements; slanderous statements; bribing statements; threatening statements; claim of title statements.
-'please accept this $ as a gift' (clarifying that it isn't a bribe, repayment, loan). 4) Statement offered to prove the truth of the matter asserted? ONLY RELEVANT IF TRUE. When looking at the statement alone (not the broader theory of case or larger principle that the piece of evidence would help prove), the trier-of-fact is being asked to believe that the assertion itself is actually true. (The Diary case: they were offering it to prove TOFMA, that he was with her, then felt sick after. The ultimate goal was conclusion of poisoning. But that was based on inferences). COUNTEREXAMPLES: not being offered for truth of matter asserted.
-What matters is whether the statement was made, not whether it was true.
-Circumstantial evidence of declarant's state of mind or beliefs about facts
=statement can be used to show the declarant's state of mind without asking the trier-of-fact to accept the assertion in the statement as true. Parry: convos w/ mom, saying that he thought he was working with DEA agent. Matter asserted: that they guy was a DEA agent. Being offered for SOMETHING DIFFERENT - as basis for inference that, if the statement was in fact made, he knew the agent's ID.
-Effect on listener Ex: neighbor: "floorboards on your porch have rotted" offered to show that homeowner was negligent in not replacing them (guest fell through). CANNOT be offered to prove that they were rotted, but CAN be offered to show that homeowner was on notice.
-Impeachment of witness through showing contradiction (SEE IMPEACHMENT BELOW). NO=> looking at the statement alone, trier of fact isn't being asked to believe that the statement is actually true, statement is not being offered for hearsay use. YES=> statement is hearsay. Continue to exceptions.
*Other objections? (limiting instruction request; personal knowledge of declarant?)
2) CONFRONTATION CLAUSE/BRUTON DOCTRINE 6A: "In all crim. prosecutions, the Accused shall enjoy the right ... to be confronted with the witnesses against him"
*ON APPEAL: errors = reverse conviction unless the P proves violation harmless beyond a reasonable doubt. 1) Criminal case 2) Evidence is being offered against accused Ex: CC doesn't apply to statements introduced by the accused. 3) Statement made out-of-court?
If live witness is testifying about what she did/didn't perceive and is s/t cross, no CC 4) Statement being used for the truth of the matter asserted 5) Other means around hearsay rule? (if not, then hearsay bars, and won't be admitted anyway). 6) Declarant currently available for cross-examination under oath at current trial? (Necessarily includes every exclusion to hearsay)
*if declarant is the defendant himself, then no CC problem. Can get up and explain. IF YES=>NO CC problem. 7) Meaningful opportunity for the Accused to cross-examine the statement earlier? For example, frmr testimony was crossed at prior trial, hearing, or deposition.
-just need opportunity. If you don't do it, that's your fault.
*need a similar motive? Unclear.
-SOME have held that entirely unresponsive children are unavailable for CC purposes. IF YES=> NO CC problem. 8) Forfeiture by wrongdoing (Giles): Did accused intentionally make the Declarant unavailable in order to prevent them from testifying? (flexible).
*104(a) standard, by a preponderance. (not beyond reasonable doubt).
-conduct: diversion (sending them on a cruise) intimidation, persuasion, killing,
-Intent must go to making them unavailable. Garden-variety murder doesn't count. BUT look to full circumstances. Was part of the motivation preventing the declarant from testifying?
-Long-term violent relationship could = intent. (SCOTUS suggestion, will find intent) Ex: long-term abusive relationship culminating in murder could => intent to render unavailable. (Worried about incentives of batterer to kill). (+Concern w/ judge ruling that preliminary fact is true: murder happened, although this is prelim hearing, so jury won't see.)
IF YES=>doesn't matter if they are testimonial or not. Statements admissible, since accused forfeited 6A right. 9) Dying declaration?
Statement made by a victim of a homicide concerning the cause of her impending death with the subjective expectation that she will soon die?
YES=> (dicta in Bryant) may be an exception to the CC. BUT KEEP GOING ANYWAY. Original meaning: this was an exception. 10) Statement formal and solemn? Well-established as testimonial. Examples that are clearly testimonial: (functional equivalents of in-court testimony; exra-judicial statements in formalized confession materials (Crawford categories 1+2))
-ex parte (non-adversarial) in-court testimony
-prior sworn testimony that accused was unable to cross-examine,
-like un-crossed depositions.
-formal stationhouse statements or other examinations while in custody YES=> Testimonial => Admission would violate CC. Because Thomas has a hard-on for formality. NO=> might still be testimonial. CONTINUE
-formality is a factor, but not necessary.
11) Statement testimonial?
Basic test: Statements made in circumstances that would lead an objective witness to reasonably believe that the statements would be used at a later criminal trial. (Crawford 3rd category - Mitch).
*BROAD standard. Ex: tell your wife that you think your biz partner is doing something sketchy. (example from class... really though? Our cases all involved cops) PRIMARY PURPOSE TEST: Circumstances objectively indicate that the primary purpose of the interrogation is to gather facts for future prosecution=>Testimonial. (Bryant)
*CAN BE PARSED. Some statements testimonial, some not. (Bryant: can change from emrgncy=>invstgtiv) FACTORS in finding different primary purpose
-Lab reports (see next page)
*medical treatment/diagnosis could be primary purpose instead.
(Similar approach to below: look at location (in hospital?) who was interacting, questions asked, what purpose each had; at what point they notified them they were contacting CPS/law enforcement; etc.)
-usually statements to first examiners are non-testimonia
-ongoing emergency? (suggests different purpose, but "not enough" - Bryant).
-violent crime and assailant at large
-police had limited knowledge upon arrival (unknown motives/whereabouts suggest emergency)
-victim in poor medical condition.
*Problem: excited utterance => emergency. So end-around CC.
-reasonable objective perspective of questioner and declarant Do they have prosecution in mind? =>suggests testimonial
*of course, they might have different purposes.
-questions/answers related to past events (testimonial) or ongoing facts (emergency)? (presumably even if there is an emergency).
-actions of both parties.
-informal setting suggests non-testimonial.
-cops involved? Suggests testimonial. Reason is reason behind CC, concerned w/ gov't inducement.
+ "any factor the court deems relevant"
*Arguments based on purpose of CC and development of doctrine: Rationales: 1) gov't effects on the evidence (biasing/inducing false evidence from decl.)2) witness must understand the solemnity of the accusation, and accuse under circustances where they will speak carefully + honestly + ambiguities can be resolved. 3) 'principal evil' directed against was ex parte examinations being used against the accused.
*pre-Crawford, essentially meaningless. Just mapped onto hearsay. "adequate indicia of reliability" NOT ENOUGH.
**LAB REPORTS AND BRUTON=>NEXT PAGE Davis: Non-testimonial:
-primary purpose was to respond to ongoing emergency, not solve a crime.
[911 call from gf, later during call operator gets info about name/address/description/location of assailant]
-911 calls generally re; emergencies, bona fide threat, immediate danger, rushed and frantic. Hammond: Testimonial.
-primary purpose was to investigate past criminal conduct.
[Cops responded to domestic violence. Post-incident, separated the two and got wife to sign affidavit that her husband hit her]
Bryant: Non-testimonial. Ongoing emergency.
-Primary purpose was to respond to emergency.
[found victim lying on ground in the gas station. Paraded series of cops who asked him questions.]
-emergency: the guy used a gun a few blocks away, shooter's motive and location unknown. Primary purpose: to respond to the emergency.
-perspective of victim/declarant: was in pain, asking for ambulance, on ground of gas station. Doesn't seem like he had prosecution in mind.
-perspective of cops: asking about how to deal w/ emergency (who/what/when/where).
*FORENSIC LAB REPORTS 1) Admitted under public records exception (or another one) below?
2) Lab report testimonial?
-Formality? (matters to Thomas).
-Testimonial if formal, (signed affidavit for example).
-Basic lab reports alone aren't testimonial.
-Adversarial? (Williams (sort of))
-Testimonial if there was a specific targeted defendant when the statement (lab report) was made.
-Non-testimonial if there was no particular defendant. (Ex: general machine checkup) 3) If testimonial, then who can solve the problem by being subject to CX?
-Person who generated the report
=>CC rights satisfied. No objection.
-Lab tech familiar with general procedure and tech, but didn't observe or supervise the test at issue.
=>VIOLATES CC (Bullcoming).
-Forensic expert who prepared his own independent work but relied on work of other lab techs who aren't testifying. Expert testifies to his own work.
=> PROBABLY OK. SCOTUS hasn't said so yet.
BRUTON DOCTRINE 1) Criminal Case 2) Co-Defendants in Joint trial
*ONLY Jury trials? (assume judge can follow their own limiting instruction?) 3) D1 made a facially incriminating statement about D2. The statement is 1) Testimonial (under CC definition) AND
2) Inadmissible against D2 (but admissible against D1)
*Still applies when two defendants each blame themselves and the other. Have to redact both. Ex: "D2 and I did the crime" 4) D1 (declarant) does not testify (invoking 5A right), so D2 has no opportunity to cross-examine him
=Limiting jury instruction INSUFFICIENT to protect CC right. It would be absurd to think that jury won't use this.
***this just applies to the incriminating statement. Prosecution can still use other evidence that makes it fairly clear who the [redacted] person was. Instead (possibilities)
-Sever the trials. Trying D1 and D2 separately.
-Impanel a separate jury for each defendant.
-When the statement by D1 is admitted into evidence, have jury for D2 removed from the courtroom. Administratively costly.
-"Credible redaction" 1) Must remove any danger that the jury will easily infer co-D is referenced in the statement.
-Remove references or implications of D2's involvement from D1's statement. Re-writing the confession. Sufficient: removing reference to D2's name and existence at all. (Richardson). Probably sufficient: "I committed this crime [with other people]
Insufficient: "Me, ___ and ___ committed the crime" is not enough. : Gray v. Maryland 2) No 403 issues for D1. (Redaction may change meaning of confession).
-redacted confession might have increased probative value/blame on D1
3) HEARSAY EXCLUSIONS Rationale behind exclusions: Adversarial, trust the adversarial process. Declarant either was or can be CXed
0) Out of court statement offered for the truth of the matter asserted?
Might not be hearsay if...
1) Statement made OR ADOPTED by a party himself (at any time)?
*victim [?] party in a criminal case.
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