Chapter 7
The Hearsay Rule
Criminal Evidence
6th Edition
Norman M. Garland
A Definition
o In simplest terms, hearsay evidence is
based on something a witness has
heard someone else say rather than on
what the witness has personally seen or
experienced.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Hearsay, according to the FRE
o “A statement, other than one made by
the declarant while testifying at trial or
hearing, offered in evidence to prove
the truth of the matter asserted.”
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Significance of the Hearsay Rule to
the Law Enforcement Officer
o Many statements officers take from
witnesses, victims, suspects, and fellow
officers are hearsay.
o The reports that officers write also are
hearsay.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Confrontation Clause
o The Confrontation Clause of the Sixth
Amendment to the Constitution of the
United States guarantees the defendant
in a criminal case the right “to be
confronted with the witnesses against
him.”
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Constitutional Guarantee
o This guarantee requires that any
evidence in the form of a statement by
a person be made by that person under
oath, subject to cross-examination by
the defendant.
o If the Confrontation Clause were
applied literally, no hearsay evidence
could ever be admitted at trial in a
criminal case.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Supreme Court and Hearsay
Royalty-Free/CORBIS
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
o The Supreme Court
of the United States
has considered the
constitutionality of
hearsay exceptions
in connection with a
defendant's right of
confrontation, and,
until March 2004, has
found most of the
exceptions to be
constitutional.
The Supreme Court’s Finding in
Crawford v. Washington
o In Crawford, the Court rejected the
“firmly footed” exception analysis
adopted in prior cases.
o The Court in Crawford held that the
Confrontation Clause bans the use at
trial of uncross-examined statements of
absent declarants when the statements
are “testimonial.”
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
What is Banned under Crawford v.
Washington
The Court stated that the Confrontation
Clause clearly bans statements made:
1) in for form of testimony given at a
former proceeding
2) to police during interrogation
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
More on Crawford v. Washington
o The Court also indicated that the ban
might apply to statements “made under
circumstances which would lead an
objective witness reasonably to believe
that the statement would be available
for use at a later trial.”
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Components of The Hearsay Rule
o Only evidence that is in the form of a
statement not presently made in court
can be hearsay.
o If the evidence is in any other form,
such as a witness's present testimony in
court, or a tangible object like a gun,
then there is no application of the
hearsay rule to the evidence.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The FRE and Hearsay
o The FRE focuses on an “assertionbased” test.
o Under this test, evidence is a statement,
and therefore may be hearsay, only if
the declarant intended the act, writing,
or conduct, to assert something.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Offered for the Truth of the
Matter Asserted or Not?
o If the statement can help to prove a
fact in the case only if it is true, then the
statement is hearsay.
o Conversely, a statement may not be
true, but may have some value in
determining what happened in a case.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
What Is a Statement?
o Remember a statement is not limited to
spoken words or conduct.
o A statement may also be information
written or typed by the declarant, such
as information in letters, notes, or other
documents.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Exceptions to and Exemptions
from the Hearsay Rule
o These exceptions and exemptions are
the result of custom, tradition, or
necessity.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Where the exceptions are found
o FRE 803 and 804 contain the exceptions
to the hearsay rule and 801(d) contains
the exemptions from the rule.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Hearsay Exceptions for Law
Enforcement Officers
(1) dying declarations
(2) spontaneous declarations,
(3) state of mind
(4) statements for purposes of medical
diagnosis or treatment
(5) former testimony
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Hearsay Exceptions for Law
Enforcement Officers
(6) business records
(7) family history or pedigree
(8) past memory recorded
(9) prior statements of witnesses
(10) admissions and confessions
(11) declarations against interest
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Statements That Are Not Hearsay
Because They Are Not Offered for
the Truth of the Matter Asserted
o If the evidence is a statement, and if the
statement was made out-of-court, then
the next matter for consideration is
whether the statement is being offered
in evidence to prove the truth of the
matter the declarant asserted in the
statement.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Testing the Statement
There are two ways a statement may tend
to prove something:
(1) Just because the statement was
made, or was heard by a particular
person, regardless of its truth or
falsity, may tend to establish a fact
in the case. OR
(2) The content of the statement may
have to be true in order to prove a
fact.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Not Hearsay—Not Offered for the
Truth of the Matter Asserted
o Operative Legal Fact
o State of Mind of the Hearer
o State of Mind of the Declarant
o State of Mind (Knowledge) of the
Declarant on the "Traces of the Mind"
Theory
o Statement That is Otherwise Not Offered
for the Truth of the Matter Asserted
(NOTMA) But to Prove Something Else
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Operative Legal Fact
o A statement that creates or destroys a
legal relationship, right, power, or duty.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Operative Legal Fact
EXAMPLE:
o A says to B, “I will pay you $5,000 if you
will kill X.”
o A's statement is significant merely
because it was uttered.
o The statement is the solicitation of B to
do an illegal act, and as such is itself an
element of the crime of solicitation.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind of a Hearer
o A statement that creates, or affects the
state of mind of another who hears the
statement.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind of a Hearer
EXAMPLE:
o In a murder case, the defendant, prior
to the killing heard another man say
that the victim was a violent man who
always carried a knife.
o If the defendant is claiming selfdefense, these statements are relevant
to show that at the time of the killing,
the defendant was in a state of mind of
fear of the victim.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind of the Declarant
A statement offered to show the state of
mind of the person who uttered the
statement, not the person who heard the
statement.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind of the Declarant
EXAMPLE:
o If a young man claims, "I am Henry the
Eighth," such a statement may be
offered to prove that the young man is
suffering from a delusion.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind (Knowledge) of the
Declarant on the “Traces of the
Mind” Theory
The “traces of the mind” theory allows
into evidence statements that prove the
person making the statement has
knowledge that he or she could only
have gained only by actually having
perceived some unusual event,
circumstance, or surroundings.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind (Knowledge) of the
Declarant on the “Traces of the
Mind” Theory
EXAMPLE:
o A statement may be relevant to prove
that a person has been to a particular
place because he or she has a distinct
knowledge of what the place looks like.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Statements That are Otherwise Not
Offered for the Truth of the Matter
Asserted But to Prove Something Else
o Anytime a statement is offered for a
reason other than to prove the truth of
the statement, it is by definition nonhearsay and admissible if relevant.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Statements That are Otherwise Not
Offered for the Truth of the Matter
Asserted But to Prove Something Else
EXAMPLE:
oSometimes the fact that a person
spoke is relevant, even though the
content of the statement is not.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Hearsay Exemptions
o If a statement is logically relevant only if
the content of it is true, then it is offered
for the truth of the matter asserted, is
hearsay, and is only admissible if it falls
within an exemption or exception.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Hearsay Exemptions Under
FRE 801(d)
They fall into two categories:
o Certain kinds of prior statements of a
witness
o Admissions by a party opponent
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Prior Statements by Witnesses
There are three types of prior statements
by witnesses:
oPrior inconsistent statements
oPrior consistent statements
oPrior identification statements
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Prior Inconsistent Statements
o Statements by the witness that
contradict the witness's current in-court
testimony.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Prior Consistent Statements
o Statements made previously that are
consistent with the present testimony of
the witness.
o Under the FRE, they are only admissible
to rebut a charge of recent fabrication,
improper influence, or motive.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Statements of Prior Identification
o Statements made out-of-court
identifying a person made after the
declarant has seen that person.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Statements of Prior Identification
EXAMPLE:
o Out-of-court identifications including inperson lineups, photo lineups, or showups (the accused is presented to the
witness alone because the
circumstances require swift action).
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Adoptive Admission
o A statement that occurs when a party,
though not making the statement
himself or herself, adopts a statement
made by another, usually by silence in
the face of an accusation.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Vicarious Admission
o A statement not actually made by the
party but by an individual acting on
behalf of a party as either a person
expressly authorized to speak on behalf
of the party, an agent, an employee, or
a co-conspirator.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Vicarious Admission:
Co-Conspirator's Statement
o A co-conspirator's statement is a
statement made by a co-conspirator
during the course of the conspiracy and
in furtherance of the conspiracy.
o Not all co-conspirator's statements are
admissible.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Vicarious Admission:
Co-Conspirator's Statement
o If a co-conspirator makes a statement
after the conspiracy has ended, usually
after the arrest, those statements are not
admissible within the coconspirator's
statement exemption.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Specific Hearsay Exceptions
o Dying Declarations
o Declarations Against Interest
o Spontaneous Utterances
o State of Mind
o Statements for Purposes of Medical
Diagnosis or Treatment
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Specific Hearsay Exceptions
o Former Testimony
o Business or Public Records
o Pedigree or Family History
o Past Recollection Recorded
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Statements Made Under Sense of
Impending Death (Dying Declarations)
o The dying declaration exception to the
hearsay rule is the most restricted of all
in its admissibility.
o For a dying declaration to be
admissible, there must be an initial
showing of unavailability of the
declarant.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Federal Rule of Evidence
o FRE, Rule 804(b)(2), provides that, "[i]n a
prosecution for homicide or in a civil
action or proceeding, a statement
made by a declarant while believing
that the declarant's death was
imminent, concerning the cause or
circumstances of what the declarant
believed to be impending death" is a
dying declaration.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Four Foundational Requirements
for the Modern Exception
o The declarant must be unavailable.
o The trial must be either a prosecution for
homicide or any civil action.
o The statement must be made while the
declarant believes that death is
imminent.
o The statement must concern the cause
or circumstances of what the declarant
believed to be impending death.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Dying Declarations Must Pertain
to the Cause of Death
o For a dying declaration to be
admissible, the subject matter of the
declaration must be confined to facts
about the injuries that created the belief
of impending death.
o More specifically, the declaration must
pertain to the cause or circumstances
of what the declarant believes is his or
her imminent death.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Declarations Against Interest
o An exception to the hearsay rule for a
statement made by a person who is not
a party to the case and who is
unavailable as a witness.
o The statement must have been contrary
to the person’s interests when it was
made.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Two Basic Requirements
for This Exception
o The declarant must be unavailable as a
witness.
o The statement must have been against
the financial or penal interest of the
declarant at the time it was made.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Rationale for the Exception
o The declaration against interest
exception exists in recognition of the
principle that a person would not say
something that would expose him or her
to loss of property or liberty unless the
statement was likely true.
o Thus such potentially damaging
statements are viewed as reliable.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Unavailability of the Declarant
o The same five reasons for unavailability
may be shown for a declaration against
interest as for a dying declaration.
o If the declarant is not shown to be
unavailable for one of those reasons,
the statement will not be admissible.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Spontaneous Utterances
o Many times people spontaneously
react or say something in response to
an unusual event or condition that they
have perceived.
o This spontaneity provides the
justification for two exceptions to the
hearsay rule:
opresent sense impressions
oexcited utterances
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Rationale for the Exception
o Spontaneous reactions or utterances
resulting from provocative events limit a
person's capacity for reflection and
ability to lie, thus making anything the
person says or does inherently more
trustworthy.
o This justification has been undermined
somewhat by social science research,
indicating that people may be less
accurate in their perceptions when they
are excited or surprised.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Spontaneous Utterances:
Present Sense Impressions Defined
o The present sense impression is defined
by FRE 803(1) as “a statement
describing or explaining an event or
condition made while perceiving the
event or condition or immediately
thereafter.”
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Spontaneous Utterances:
Present Sense Impressions
o This exception to the hearsay rule has
two limiting principles.
o First, the subject matter of the statement
must describe or explain some event or
condition.
oThe statement cannot simply relate to
an event or condition.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Spontaneous Utterances:
Present Sense Impressions
o Second, the statement must be made
while the declarant was perceiving an
event or immediately after perceiving
that event.
o Therefore, a slight lapse in time will not
defeat admissibility, but if the time lapse
can be measured in minutes rather than
seconds it will likely be too long.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Spontaneous Utterances:
Excited Utterance
o Rule 803(2) defines an excited
utterance as “a statement relating to a
startling event or condition, made while
under the stress of excitement caused
by the event or condition.”
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Spontaneous Utterances:
Excited Utterances
o The event or condition that the
declarant perceives must be startling,
as distinguished from the present sense
impression exception, where any event
or condition is sufficient.
o The content of the statement, on the
other hand, is much more expansive
than the present sense exception.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Spontaneous Utterances:
Excited Utterances
o Excited utterances need only relate to
the startling event or condition.
o Moreover, the excited utterance
exception may have a much broader
time frame, depending on the
circumstances, than a present sense
impression.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Excited Utterances:
Foundation and Rationale
To be admissible under the excited
utterance exception to the hearsay rule,
the utterance:
(1) must relate to a startling event
(2) must have been made while the
declarant was under the stress of
excitement caused by the event
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind
o The exception to the hearsay rule that
allows into evidence a declarant’s
assertion of his or her then-existing state
of mind to prove that the person
actually had such a state of mind.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind: The Three
Requirements
o The statement must relate to the
declarant's condition of mind or emotion
existing at the time he or she made the
statement.
o The statement cannot be one of memory
or belief used to prove a fact
remembered or believed.
o The statement must have been made
under circumstances indicating apparent
sincerity.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind Declarations
Defined in FRE
o Federal Rule of Evidence 803(3) defines
the state of mind exception to the
hearsay rule as, "[a] statement of the
declarant's then existing state of mind,
emotion, sensation, or physical
condition."
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind Declarations
Defined in FRE
o The rule further provides specific
examples, such as statements of intent,
plan, motive, design, mental feeling,
pain, and bodily health.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
State of Mind Declarations
Foundation and Rationale
o Statements falling within the exception are
generally considered reliable because the
declarant is deemed to be the best
commentator on his or her own state of
mind.
o Reliability is furthered because, since the
statement is limited to the then-existing
state of mind of the declarant, there is
reduced danger of untruthfulness, at least
with respect to memory.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Availability of the Declarant
as a Witness
o The state of mind exception does not
require a showing that the declarant is
unavailable as a witness.
o The declarant is in the best position to
know what is going through the declarant's
own mind and because state-of-mind
commentary is most accurate when
made, the statement possesses sufficient
circumstantial guarantees of
trustworthiness so that the declarant's
availability as a witness is immaterial.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Statements for Purposes of
Medical Diagnosis or Treatment
o Such statements may describe
"medical history, or past or present
symptoms, pain, or sensations, or the
inception or general character of the
cause or external source thereof insofar
as reasonably pertinent to diagnosis or
treatment," according to FRE 803(4).
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Statements for Purposes of
Medical Diagnosis
Thus, statements for purposes of medical diagnosis
are admissible under FRE 803(4) if the statements:
(1) are made for purposes of medical diagnosis or
treatment
(2) are made by the patient or someone speaking
on his or her behalf
(3) are made to a doctor or other medical person
(4) describe medical history, pain, symptoms, or
causes (but not attributing fault) thereof
(5) are reasonably pertinent to the diagnosis or
treatment
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The FRE and the Exception
o Under Rule 803(4), statements of fault
will not ordinarily qualify under this
exception to the hearsay rule.
o For example, a patient's statement that
he "was struck by an automobile" would
qualify but not his statement that the
"car came through a red light.”
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Hearsay Exception:
Former Testimony
o The testimony given by a witness at a
prior proceeding is admissible in a
subsequent trial in certain
circumstances as an exception to the
hearsay rule.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Specific Requirements:
Former Testimony
o The essential requirement for the admissibility of
the former testimony is the present unavailability
of the witness who gave the former testimony.
o Under the common law rule, the exception only
applied if both the party offering the former
testimony and the party against whom it is now
being offered are the same parties as were in the
prior proceeding.
o Further, the common law allowed former
testimony only if the issues in both proceedings
were identical.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Former Testimony and
Criminal Trials
o With respect to former testimony used in a
criminal trial, the defendant must have
been a party to the former proceeding
and have had the full opportunity to
examine the witness whose testimony is
being offered under the exception.
o This exception is most often utilized in
criminal cases when a witness who
testified at a preliminary hearing or a prior
trial is unavailable in the first or subsequent
trial of an accused.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Depositions and Former Testimony
o Sometimes, when a witness has given a
deposition with the opportunity for the
other side to be present and to examine
the witness, such depositions may
qualify as former testimony.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Foundation and Rationale
for the Exception
o By definition, the evidence within this
exception was testimony by a witness in
person, under oath, and subject to
examination (both direct, cross, redirect, and re-cross) at some other trial
or proceeding.
o All that is missing from regular testimony
is that the “witness” is now absent and
the fact-finder has no opportunity to
observe the witness.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Exception and the Constitution
o The Constitution
demands, through
the Confrontation
Clause of the Sixth
Amendment, that
the accused in a
criminal case be
given the right to
face his or her
accusers.
Royalty-Free/CORBIS
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
When does it apply?
o It is only when the accuser has
previously testified and satisfied the
requirements of the former testimony
exception that the courts have held that
the Confrontation Clause is satisfied.
o The courts have so held since 1895.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Foundational Requirements
(1) The witness must be shown to be unavailable in
accordance with one of the situations set forth in
FRE 804(a).
(2) The testimony sought to be introduced must
have been under oath and subject to crossexamination.
(3) Either the opponent of the testimony or a party
with a similar motive must have had an
opportunity to question the declarant in the
earlier proceeding by way of direct
examination, cross-examination, or re-direct
examination.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Opportunity to Have Effective
Cross-Examination
o Rule 804(b)(1) allows the admissibility of
former testimony “if the party against
whom the testimony is now offered, or,
in a civil action or proceeding, a
predecessor in interest, had an
opportunity and similar motive to
develop the testimony by direct, cross,
or redirect examination.”
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Hearsay Exception:
Business and Public Records
o Certain reports or records that record
acts, events, conditions, opinions, or
diagnosis may be admissible as either
business or public records if certain
requirements are met by the proponent
of the evidence.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Need for the Business and
Public Records Exception
o These exceptions were developed in the
early 1900s as a result of the law's recognition
that if businesses and governments were
relying on records of regularly conducted
activities, then they should be sufficiently
reliable to be admissible in court.
o The exceptions are quite remarkable in that
they permit the proof of underlying facts by
paper records, without requiring the person
who has knowledge of the underlying facts to
be called as a witness.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Business Records Exception:
Description and Foundation
Both the common law rule and FRE 803(6)
require that the business record must be
identified as one:
(1) made at or near the time of the event
(2) by, or from information transmitted by, a
person with knowledge
(3) made in the regular course of business
(4) kept in the course of regularly
conducted business activity
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Timing is Essential to the
Business Records Exception
o The record must be written at or near
the time of the event or transaction. The
passage of time may make the record
inadmissible.
o For example, a receipt written six
months after the sale of goods would
not qualify.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Foundation Requirements for
the Business Records Exception
o In order to lay the foundation for a
business record, the custodian of records
for the business, or some other qualified
person, must testify to the regular practice
of keeping the business records and how
the particular record in question was kept.
o By an amendment to FRE 803(6) in 2000,
this foundation can be laid by written
declaration of the custodian or other
qualified person.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
To Qualify the Qualified Witness
o To be a qualified witness, if not the
custodian of records, the witness must
merely be able to describe the business
practices sufficiently to satisfy the trial
judge that the record was in fact made,
kept in the regular course of the
business, and contains information by or
from a person with knowledge within
the business.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Public Records
Description and Foundation
o A record kept by a public agency—a
branch of the federal, state or local
government—like a business record,
may be introduced into evidence within
the public records exception to the
hearsay rule.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
There Are Three Types
of Public Records
o First are those that set forth “the activities
of the office or agency.”
o The second type of public record is one
setting forth “matters observed pursuant
to duty imposed by law as to which
matters there was a duty to report.”
o The third type of public record is one
setting forth “factual findings resulting
from an investigation made pursuant to
authority granted by law.”
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Public Records Exception:
Foundational Requirements
The foundation required for public records
is a showing:
(1) that the record is an official
document of the agency
(2) that it was recorded by an employee
of the agency
(3) that the employee had a duty by law
to report such information accurately
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Law Enforcement Reports May Not
Be Admissible in Criminal Cases
o In criminal cases, police and other law
enforcement reports may not be
admissible in the prosecution's case-inchief for policy reasons, even though
they are both business and public
records.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Doctrine of Completeness
o The rule that provides that if a party
seeks to admit part of a document, the
opposing party may require the
introduction at that time of any other
part or any other writing or recorded
statement which ought in fairness to be
considered contemporaneously with it.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Proof of Absence of Business or
Public Records Entry
o Sometimes it is necessary to prove, through
the absence of an entry in business or public
records, that an event did not occur.
o Such a fact could be just as important as
proof of the affirmative.
o The relevance of the absence of an entry to
prove an event did not take place is that, if
the records of a business or public entity does
not contain a record of an event and the
records are regularly complete, then it is not
likely the event occurred.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Hearsay Exception:
Pedigree or Family History
o Frequently, a person's vital statistics
such as birth, baptism, marriage,
divorce, or death must be proven in
court.
o Such information is easily proven by a
person who has personal knowledge of
the event, such as a witness to the
event.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The FRE and Pedigree
or Family History
Under the FRE, there are two forms of
hearsay that are admissible to prove
personal statistics or history:
(1) by written record of certificate
(2) by reputation concerning personal
or family history
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Written Records
o Written records of births, marriages,
legitimacy, death, and so forth are
liberally admissible to prove their
existence.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The FRE and Written Family
Records
o Under FRE 803(9), all records of birth,
deaths, or marriages are admissible if
the report was made to a public
agency pursuant to requirements of
law.
o This exception is different from the
public records exception, because the
person filling out the report does not
necessarily have to witness the event
recorded.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Reputation to Prove
Family History
o Reputation among a person's family or
community concerning a person's birth,
adoption, marriage, divorce, death,
legitimacy, relationship by blood, or
other personal or family history is
admissible under FRE 803(19).
o Such reputation evidence is presumed
to be reliable.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
Hearsay Exception: Past
Recollection Recorded
o The lawyer may show a witness a
memorandum or record concerning a
matter that the witness once had
personal knowledge of and was written
when the matter was fresh in the
witness's memory.
o But if this writing still does not refresh the
witness's memory, the writing then may
be introduced as past recollection
recorded under FRE 803(5).
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.
The Key to Past
Recollection Recorded
o The key to past recollection recorded is
that the writing was written at or near
the time of the event when the witness's
memory was fresh.
o Too much passage of time may
disqualify the writing from admissibility.
© 2011 The McGraw-Hill Companies, Inc. All rights reserved.