hearsay exceptions
criminal D’s right of confrontation
enumerated exceptions
hearsay w/in hearsay
hearsay exceptions
criminal D’s right of confrontation
The 6th AMD right of confrontation (opportunity for cross examination by D) requires that the criminal D be confronted with the witnesses against him.
Re: hearsay, prosecution may NOT use a hearsay statement against the criminal D (even if it falls w/in a hearsay exception) if
1. the statement is TESTIMONIAL,
2. the declarant is UNAVAILABLE
3. the D has no opportunity for CROSS EXAMINATION (opportunity for cross may be satisfied either before or at trial)
hearsay exceptions
criminal D’s right of confrontation
How is a statement testimonial?
- Grand jury testimony
- Statements in response to police interrogation
- Documents
hearsay exceptions
criminal D’s right of confrontation
How is a statement testimonial?
grand jury testimony
Grand jury testimony is testimonial.
hearsay exceptions
criminal D’s right of confrontation
How is a statement testimonial?
Statements made in response to police interrogation
- Testimonial if primary purpose of the questioning is to establish or prove past events potentially relevant to a later criminal prosecution
- Non-testimonial if the primary purpose of the questioning is to enable police assistance to meet ongoing emergency (includes situation in which the crime has ended, the perpetrator is armed, and he still poses a threat to the victim, police, or public at large)
hearsay exceptions
criminal D’s right of confrontation
How is a statement testimonial?
documents
- Business records are non-testimonial
- Sworn affidavits are testimonial
- Forensic lab report is testimonial IF its primary purpose is to accuse a targeted individual of criminal conduct
examples:
Analysis of drugs seized from a particular suspect to ascertain if the drugs are cocaine.
Analysis of book of suspected DWI driver to ascertain his BAC
hearsay exceptions criminal D's right of confrontation How is a statement testimonial? documents exceptions to forensic report
- DNA report is non-testimonial IF it analyzes a sample of bodily fluid collected from a crime scene for the purpose of developing a DNA profile if no particular person is suspected.
- Even if forensic report is testimonial, no confrontation violation if:
a. Prosecutor calls a testifying expert who performed an independent analysis AND
b. Testifying expert only refers to the report to show a partial basis for her opinion w/o reading report to jury or introducing as an exhibit.
c. Then the report is not being used for a hearsay purpose.
hearsay exceptions
enumerated exceptions
- Former testimony
- Statement against interest
- Dying declaration
- Excited utterance
- Present sense impression
- Present state of mind
- Present physical condition
- Business records
- Past recollection recorded
hearsay exceptions
enumerated exceptions
unavailability
Grounds for unavailability:
Privilege, absent from jdx (cannot be found w/due diligence or beyond subpoena power), illness/death, lack of memory, stubborn refusal to testify
Unavailability exceptions: former testimony, statement against interest, dying declaration
hearsay exceptions
enumerated exceptions
former testimony
The former testimony of a now unavailable witness, if given at a former proceeding or deposition, is ADMISSIBLE against a party who, on the prior occasion, had the opportunity and motive to cross examine or develop the testimony of the witness.
Issue in both proceedings must be essentially the same.
hearsay exceptions
enumerated exceptions
statement against interest
An unavailable declarant’s statement against his pecuniary, proprietary, or penal interest.
Criminal: Statement must be supported by circumstances showing trustworthiness of the statement
hearsay exceptions
enumerated exceptions
statement against interest v party admission
Statement against interest differs from party admission in 4 ways
- Must be against interest WHEN MADE
- ANY PERSON (not just a party) can make a statement against interest
- Personal knowledge is required
- Declarant must be unavailable
hearsay exceptions
enumerated exceptions
dying declaration
Statement made under 1) belief of impending and certain death 2) by a now unavailable declarant 3) concerning the cause or surrounding circumstances of the declarant’s death.
Homicide or civil cases ONLY
hearsay exceptions
enumerated exceptions
spontaneous statements
excited utterance
present sense impression
present state of mind
present physical condition
hearsay exceptions
enumerated exceptions
excited utterance
Statement 1) concerning a startling event and 2) made while declarant is still under the stress or excitement caused by the event.
Factors to consider for EU:
1. nature of event (startling)
2. passage of time (closer in time, more likely to show stress of excitement)
3. visual clues (exclamatory phrase [omg], excitement oriented verb [shouted, screamed, exclaimed], exclamation point [!])
hearsay exceptions
enumerated exceptions
present sense impression
1) description of an event 2) made while the event is occurring or immediately thereafter
hearsay exceptions
enumerated exceptions
present state of mind
1) contemporaneous statement 2) concerning declarant’s state of mind, feelings, emotions
Declarant has unique knowledge about himself
hearsay exceptions
enumerated exceptions
present physical condition
1) statement made to anyone 2) about declarant’s CURRENT physical condition
Declarant has unique knowledge about himself
hearsay exceptions
enumerated exceptions
business records
Elements:
- Records of a business of any type
- made in the regular course of business
- the business routinely keeps such records
- made contemporaneously (at or about the time the event occurred)
- contents consists of i) information observed by employees of the business OR ii) statement falls w/in an independent hearsay exception
hearsay exceptions
enumerated exceptions
business records
proving biz records foundation
Call sponsoring witness to testify to the 5 elements
Witness need not be the author of report - can be records custodian or any other knowledgeable person w/in the business OR
Written certification under oath attesting to elements of business records hearsay exception (w/advance notice to opposing party)
hearsay exceptions
hearsay w/in hearsay
If a hearsay statement is included w/in another hearsay statement, the evidence is INADMISSIBLE unless EACH STATEMENT falls w/in a hearsay exception/exclusion
