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Hearsay

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Hearsay

  1. 1. HEARSAY YEAH YOU BETTER BELIEVE IT HOMESKILLET
  2. 2. Reasons For Hearsay <ul><li>Everything testified to in a trial should be subject to cross examination </li></ul><ul><li>If its an out of court statement, how can the adverse party cross examine the declarant’s statement for truthfulness? </li></ul><ul><li>Make sure that each side has a chance to get their say on each matter </li></ul><ul><li>ALL OF LAW IS PRETTY MUCH BASED ON THE ABOVE </li></ul>
  3. 3. Rule 801: Definition <ul><li>1. A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if intended as an assertion. </li></ul><ul><ul><li>Nonverbal conduct: head nodding, pointing </li></ul></ul><ul><li>A declarant is the person who makes a statement </li></ul><ul><li>2. Hearsay is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. </li></ul><ul><li>EVEN if the witness is the declarant- HEARSAY </li></ul>
  4. 4. Statements Confused For Hearsay/ How to object <ul><li>The following statement is commonly confused for Hearsay: </li></ul><ul><ul><li>Prior Statement By Witness during the Trial </li></ul></ul><ul><ul><li>This would be brought up on cross </li></ul></ul><ul><ul><li>Why is this okay? </li></ul></ul><ul><ul><ul><li>It is being cross examined. Both sides may put their own spin on it. </li></ul></ul></ul><ul><li>If the witness begins to say hearsay- “Objection, Hearsay” </li></ul><ul><li>If the lawyer asks a question requiring Hearsay in the answer- “Objection, Calls for Hearsay </li></ul>
  5. 5. Truth of the matter asserted? <ul><li>If something is being admitted for the “truth of the matter asserted, it: </li></ul><ul><ul><li>Is offered to prove a point material to the case </li></ul></ul><ul><li>To Be Hearsay: </li></ul><ul><ul><li>Out of Court Statement </li></ul></ul><ul><ul><li>Truth of the Matter Asserted </li></ul></ul><ul><li>Example: In a case about a murder in which the weather is immaterial, Declarant says: “Janie said she thought the weather was cold.” </li></ul>NOT HEARSAY!
  6. 6. Examples <ul><li>“ When you asked if he murdered his wife, did he respond?” “ Yes, he nodded his head ”. </li></ul><ul><ul><li>Is this Hearsay? </li></ul></ul><ul><li>“ What happened then?” “She said, ‘ Hey, Bill ,’. And then he attacked her.” </li></ul><ul><ul><li>Is this Hearsay? </li></ul></ul><ul><li>“ I told him I didn’t see anyone.” </li></ul><ul><ul><li>Is this Hearsay? </li></ul></ul>
  7. 7. Rule 802: ADMISSABILITY <ul><li>Hearsay is never admissible in court…. </li></ul><ul><ul><li>UNLESS you have an exception </li></ul></ul><ul><li>These exceptions are, as everything, at the mercy of the judge. Get used to them being overturned. </li></ul><ul><li>Be able to quote the exact rule of your exception, you’ll look smarter… really </li></ul><ul><li>Even if you know that something the other side is trying to get in is hearsay, object! They might not know! </li></ul>
  8. 8. Rule 803: Exceptions When Availability of Declarant is Immaterial <ul><li>Present Sense Impression (Subsection 1): Statement describing or explaining made while declarant was experiencing event, or immediately thereafter </li></ul><ul><li>Excited Utterance (Subsection 2): A statement made by the declarant while the declarant was under the excitement caused by the event </li></ul><ul><li>Then-Existing Condition (Sub. 3): Statement of declarant’s then-existing state of mind, emotion, or body </li></ul>
  9. 9. Discussion Of 803, Sub 1-3 <ul><li>The most crucial part of the three statements stated in previous slide: </li></ul><ul><li>HOW MUCH TIME PASSED between stressful event and statement </li></ul><ul><li>Person must have still been under the stress of the event </li></ul><ul><li>The excitement must have destroyed the usual obstacles of the mind- the declarant must have been too affected to speak falsely </li></ul>
  10. 10. 803 Exceptions Con.: Records <ul><li>Subsections 4-14 are all RECORDED DOCUMENTS or ABSENCE OF RECORDED DOCUMENTS </li></ul><ul><li>Ex.- Family records, marriage statistics, vital statistics, school records, records of membership in religious organizations </li></ul><ul><li>Anything that is regularly recorded, or a recording that should be there but is missing is admissible </li></ul><ul><li>MACC Inventory information, perhaps? </li></ul>
  11. 11. 803 Exceptions Continued: Reputations <ul><li>Reputation Concerning Personal or Family History (Sub. 19)- Opinion of the reputation of a person’s family history– the Mitchells and Monks, peut-etre... </li></ul><ul><li>Reputation Concerning Boundaries of Land (Sub. 20)- Opinion as to where the boundaries of land are– MAP, anyone? </li></ul><ul><li>Reputation of Character (Sub. 21)- reputation of a person’s character as judged by members of the community </li></ul>
  12. 12. Rule 804: Exceptions to Hearsay When Declarant is Unavailable <ul><li>Definition of Unavailability </li></ul><ul><li>The Declarant is: </li></ul><ul><ul><li>Exempted by the court from testifying </li></ul></ul><ul><ul><li>Refusing to testify </li></ul></ul><ul><ul><li>Unable to be present because of death or then-existing illness </li></ul></ul><ul><ul><li>Unable to be found </li></ul></ul><ul><ul><li>NOT unavailable if any of the above was caused by any sort of wrongdoing on the part of the witness to keep the declarant from testifying </li></ul></ul>
  13. 13. 804 Con.- Exceptions When Availability is Material <ul><li>Previous Testimony (Subsection 1): Testimony given as a witness in any legal procedure IF the opposite party has a motive to develop the information for themselves as well </li></ul><ul><li>Statement Under Belief of Impending Death (Sub. 2): Testimony made when the declarant was in genuine fear of death. Whether or not the person actually died is irrelevant </li></ul>
  14. 14. 804: Exceptions Continued <ul><li>Statement Against Interest (Sub. 3): A statement so wildly against the declarant’s interest that no reasonable person would have made the statement without believing its truth. </li></ul><ul><ul><li>Ex. “He told me, “Well, don’t say anything, but I definitely lied to the insurance company.” </li></ul></ul>
  15. 15. Rule 805: Hearsay WITHIN Hearsay <ul><li>Hearsay within Hearsay is only admissible if both Hearsays have an exception. </li></ul><ul><li>“ He told me she’d asked him…” </li></ul>
  16. 16. Rule 806: Attacking or Supporting Credibility of Declarant <ul><li>When a hearsay statement has been admitted </li></ul><ul><li>It is possible for either party to attack the credibility of the declarant (impeachment) </li></ul><ul><ul><li>Evidence of a conduct that contradicted the statement </li></ul></ul><ul><ul><li>Can basically destroy the declarant’s character without any rules </li></ul></ul><ul><ul><li>Character evidence becomes relevant </li></ul></ul>

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