Evidence: Procedural Considerations

Procedural Considerations – Dividing responsibility between the judge and the jury.

• Burdens of Proof: After all of the evidence is in, it is up to the jury to decide whether the burden of proof has been met for each element of the charge, claim, or defense.
  

• Std. in civil cases: preponderance of the evidence
• Std. in criminal cases: beyond a reasonable doubt.
  

• Preliminary Facts:
  

• Preliminary Facts for the Jury:
• Jury: Decides questions of conditional relevance:
• Whether a witness has personal knowledge
• Whether an exhibit is authentic
• Whether the defendant is in fact the person who committed a prior bad act offered as MIMIC evidence
  

• Judge: Ensures that there is sufficient evidence for a reasonable jury to conclude that the conditional fact is true.
  

• The judge decides questions of admissibility: (For these questions, the burden of proof is preponderance of the evidence, and the judge may consider anything).
• Whether testimony is hearsay
• Whether a communication is privileged
• Whether an expert is qualified.

Evidence: Hearsay: Hearsay Declarants and Impeachment

One more Hearsay Issue: Hearsay Declarants and Impeachment: If hearsay is admitted, the opposing party may use any of the impeachment methods to attack the credibility of a hearsay declarant. {PBSRCBC}

Evidence: Hearsay: Confrontation Clause

• Hearsay and the Confrontation Clause – In criminal cases the 6^th Amendment requires that the Defendant be confronted with the witnesses against him. The Prosecution may not offer testimonial hearsay in violation of the defendant’s right to cross-examine the declarant.

• “Right to cross-examine the declarant” is satisfied if the defendant:
• Already had a chance to cross-examine the declarant
• Can actually cross-examine the declarant at trial
• Forfeited his confrontation right by witness tampering.

• “Testimonial” means:
• Grand jury testimony is testimonial
• Statements in response to police interrogation:
• Testimonial if the primary purpose of the questioning is to establish or prove past event potentially relevant to later criminal prosecution
• Non-testimonial if the primary purpose of the questioning is to enable police assistance to meet an on going emergency.
• Documents:
• Police reports = testimonial
• Business records = not testimonial

Evidence: Hearsay: Exceptions: Business and Public Records

• Business and Public Records – Allows admissions of records of a business (any type, including public agencies) made in the regular course of business. The business must regularly keep such records made contemporaneously and the record consists of information observed by employees of the business.
  

• Public Records – Federal Rule: In addition to observations by employees of the public agency, the record may include conclusions by public employees after an official investigation.
• BUT (important exception): A police report may not be offered against the defendant in a criminal case.

• Foundation for Business Records:

• Live testimony – Call a knowledgeable witness (a custodian of records) who can testify to the 5 elements required to meet the exception.
• Affidavit – Submit a written certification under oath attesting to elements required to meet the exception.

Evidence: Hearsay: Exceptions: Statement for purposes of medical treatment or diagnosis

Statement for purposes of medical treatment or diagnosis – A statement is admissible if it is made to a medical professional concerning present symptoms, or past symptoms, or the general cause of a medical condition so the medical professional can diagnose and treat the condition

Evidence: Hearsay: Exceptions: Statements of then-existing mental, emotional, or physical condition

• Statement of then-existing mental, emotional, or physical condition – the declarant makes a contemporaneous statement concerning his then existing physical condition or state of mind (including emotions, mental feelings, intent, future plans, sensations, bodily health). These are matters about which the declarant has unique knowledge.

• It does not include a statement of memory or belief about a past condition.
• It does include statements of future intent to do something with a third person.

Evidence: Hearsay: Exceptions: Present Sense Impression

• Present Sense Impression – an out of court statement that describes an event, and is made while the event is occurring, or immediately thereafter. There is little time for a calculated misstatement (fabrication), and the contemporaneous nature of the statement makes it reliable.

Evidence: Hearsay: Exceptions: Excited Utterance

• Excited Utterance – an out of court spontaneous statement concerning a startling event and was made while the declarant was under the stress caused by the event.

• Exam Tip Pay attention to factors that make a statement “excited” such as the nature of the event; the passage of time; verbal clues (excitement oriented verbs).

Evidence: Hearsay: Exceptions: Dying Declarations (U)

• Dying Declarations—Statements Under Belief of Impending Death – in a homicide prosecution or civil action, a statement made by a now unavailable declarant is admissible if: the declarant believed his death was imminent (he need not actually die); and the statement concerned the cause or circumstances of what he believed to be his impending death.

• Type of cases:
• Federal: Any criminal homicide or civil case

Evidence: Hearsay: Exceptions: Statements Against Interest (U)

• Statements Against Interest – The statement of a person—now unavailable as a witness—against that person’s pecuniary, proprietary, or penal interest when made, as well as collateral facts contained in the statement, is admissible under the statement against interest exception to the hearsay rule.
• Qualification in criminal cases: A statement against penal interest, when offered to exculpate a defendant, must be supported by corroborating circumstances.

Evidence: Hearsay: Exceptions: Forfeiture by Wrongdoing (U)

• Forfeiture by wrongdoing – a party who intentionally and wrongfully makes a declarant unavailable cannot raise a hearsay objection to admission of the declarant’s out-of-court statements.
• Includes engaging in or acquiescing in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a trial witness.
• Burden of Proof regarding party’s wrongdoing:
• Federal Rule: Preponderance of the evidence

Evidence: Former Testimoy v. Prior Inconsistent Statement

Former Testimony v. Prior Inconsistent Statement
	When Made?	Declarant?	Prior Statement?
Former Testimony	Proceeding	Unavailable	Prior cross examination
Prior Inconsistent Statement	Proceeding	A trial witness	Inconsistent with trial testimony

Exam Tip -- Because grand jury proceedings do not provide an opportunity for cross-examination, the grand jury testimony of an unavailable declarant is not admissible again a defendant under the former testimony exception to the hearsay rule. Be careful not to confuse this with a prior inconsistent statement given under oath by a witness currently testifying. Grand jury testimony is admissible in that case, both as impeachment and substantive evidence.

Evidence: Hearsay: Exceptions: Former Testimony (U)

• Former Testimony – The testimony of a now unavailable witness, given in a proceeding or deposition, and is offered by a party who, on the prior occasion, had an opportunity at the prior proceeding to develop the declarant’s testimony (i.e. by direct, cross, or redirect examination).

• NOTE: The relevance of the former testimony to the current trial must be substantially similar to its relevance in the prior proceeding (so that the party had a similar motive to cross-examine)

-- Grounds for unavailability:
Privilege
Absence from jurisdiction
Illness or death
Lack of memory
Stubborn refusal to testify

• Rationale behind former testimony exception: Reliability is assured by the cross-examination on the prior occasion (so long as the opposing party had a similar motive); however, we prefer live testimony, so the witness must now be unavailable.

Evidence: Hearsay: Exceptions: Party Admissions

• Party Admissions – A statement made by a party is admissible if it is offered against the party. The rationale is, “You say it, you’re stuck with it.” [Federal Rules exclude this from the definition of hearsay, so under FRE, this is called an “exclusion.” New York calls them “exceptions]

• Vicarious Admissions – A statement by an agent or employee of a party, is admissible against the party (principal/employer) if it concerns a matter within the scope of the agency or employment and was made during the agency or employment.
  

• Vicarious Admissions by Co-Conspirators: A statement of one co-conspirator is admissible against the other co-conspirators if the statement was made during and in furtherance of the conspiracy.

Evidence: Hearsay: Top 10 Hearsay Exceptions to know for the Bar

Party Admission	Declarant is a party
Former Testimony	Declarant is unavailable
Forfeiture by wrongdoing
Statement against interest
Dying Declaration
Excited Utterance	Declarant is anyone
Present Sense Impression
Statement of then existing mental, emotional, or physical condition
Statement for purpose of medical treatment or diagnosis
Business and public records

Evidence: Hearsay: Prior Statements of Trial Witnesses

• Prior Statements of Trial Witnesses – A witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception or exclusion applies.
  

• Exceptions (exclusions): Prior statements that are excluded from the definition of hearsay – and thus admissible:
• Prior statement of identification.
• Prior inconsistent statement, if: Made under oath, during a formal proceeding.
  

• Prior consistent statement if: Used to rebut an accusation of a motive to lie and made before the motive to lie arose

Evidence: Out of court statements which are non-hearsay

The following out of court statements are not hearsay—not considered hearsay (and are admissible):

• Impeachment: A prior inconsistent statement may be offered to show that the witness is an inconsistent person, without necessarily being offered to prove the truth of the prior statement. But, if the purpose of the prior statement is to prove the truth of the assertion, then it is hearsay.
  

• Verbal acts or legally operative facts: Words with independent legal significance such as words of contract or defamatory words. Words of offer, repudiation or cancellation of contracts; words that have the effect of making a gift or a bribe; words that are themselves an act of perjury or a criminal misrepresentation or a defamation.
  

• Statements offered to show effect on the person who heard or read the statement: A statement that is relevant simply because someone heard it or read it is not hearsay. Hearing something can put someone on notice, can give someone a motive, or make someone’s belief reasonable.
  

• Statements offered as circumstantial evidence of the declarant’s state of mind: A statement that unintentionally reveals something about the speaker’s state of mind is not hearsay. Examples include statements demonstrating insanity; lies that demonstrate a consciousness of guilt; questions that demonstrate a lack of knowledge.

-- Exam Tip -- Do not confuse statements offered as circumstantial evidence of declarant’s state of mind, which are almost always offered as evidence of insanity or knowledge, with statements that reflect directly on declarant’s state of mind, which are usually offered to establish intent. The former is not hearsay, while the latter is hearsay subject to a specific exception.

--Exam Tip --In deciding whether evidence is hearsay, ask yourself whether we are relying on the declarant’s credibility; i.e. does it matter whether the declarant is telling the truth? If not, the evidence is NOT hearsay.

Evidence: Hearsay

Hearsay – An out of court statement (oral or written) made by a person (declarant) offered to prove the truth of the matter asserted. If a statement is hearsay, and no exception to the rule applies, the evidence must be excluded upon appropriate objection. The reason for denying hearsay is that the adverse party was denied the opportunity to cross-examine the declarant.

Evidence: Review and Summary: Spousal Privileges

Husband-Wife Privilege
Privilege	Type of Case	Protects	Married at the time of the…	May be waived…
Spousal Communication	Any criminal or civil case	Confidential communications	Communication	Only by both spouses together
Spousal Testimony	Only criminal	Testimony against the spouse	Testimony	Witness spouse

Evidence: Privileges: Spousal Privileges

• Spousal Privileges (Husband-Wife Privilege) – there are two distinct spousal privileges:
  

• Spousal Communication Privilege – confidential communication between spouses will be privileged. It may only be waived by both spouses.
  

• Spousal Immunity (Spousal Testimony Privilege) – In a criminal case, the prosecution cannot compel the defendant’s spouse to testify against the defendant. It applies so long as the witness and the defendant are currently married, and it may be waived by the witness-spouse.

• Exceptions which apply to both privileges: These privileges do not cover communications or acts in furtherance of a future crime or fraud; or destructive of family unit.