Hearsay and
Exceptions to this Ruling
a) What is Hearsay?
Hearsay evidence is
normally excluded from a trial because it is deemed untrustworthy. “Hearsay” is
a statement other than one made by the witness testifying at the trial, offered
in evidence to prove that the matter asserted in the statement is true. An
example of hearsay is a witness testifying that he heard another person saying
something about the facts in the case. The reason that hearsay is untrustworthy
is because the opposing side has no way of testing the credibility of the
out-of-court statement or the person who supposedly made the statement. Thus,
for example, the following questions would be objectionable as “hearsay” if you
are trying to prove that the color of the door was red:
“Mr. Edwards what color did Bob say the door
was?”
This is hearsay. Mr. Edwards is using Bob's
statement for him to prove the color of the door. Instead, Bob or someone who
saw the door needs to be called to testify as to the color of the door.
b) Reasons for
Prohibiting Hearsay
Our legal system is
designed to promote the discovery of truth in a fair way. One way it seeks to
accomplish this goal is by ensuring that the evidence presented in court is
“reliable”; that is, we can be fairly certain the evidence is true. Hearsay
evidence is said to be “unreliable” for four reasons:
i) The hearsay statement
might be distorted or misinterpreted by the witness relating it in court.
ii) The hearsay statement
is not made in court and is not made under oath
iii) The hearsay statement
is not made in court, and the person who made it cannot be observed by the
judge or jury (this is important because the judge or jury should be allowed to
observe a witness' behavior and evaluate his/her credibility).
iv) The hearsay statement
is not made in court and the person who made it cannot be challenged by
cross-examination.
c) When Can Hearsay
Evidence Be Admitted?
Although hearsay is
generally not admissible, there are certain out-of-court statements that are
treated as not being hearsay, and there are out-of-court statements that are
allowed into evidence as exceptions to the rule prohibiting hearsay. Statements
that are not hearsay are prior statements made by the witness himself and admissions made by a party opponent.
i) Exceptions
Hearsay is not
admissible, except as provided by these rules. For purposes of this mock trial,
the following exceptions to the hearsay rule will be allowed; even though the
declarant is available as a witness.
(1) Spontaneous
Statement
A statement
describing or explaining an event or condition made while the declarant
perceived the event or condition, or immediately thereafter, except when such
statement is made under circumstances that indicate its lack of
trustworthiness.
(2) Excited Utterance
A statement or
excited utterance relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.
(3) Medical
Statements
Statements made for
the purpose of medical diagnosis or treatment by a person seeking the
diagnosis, or made by an individual who has knowledge of the facts and is
legally responsible for the person who is unable to communicate the facts,
which statements describe medical history, 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.
(4) Recorded
Recollection
A memorandum or
record concerning a matter about which a witness once had knowledge but now has
insufficient recollection to enable the witness to testify fully and
accurately, shown to have been made by the witness when the matter was fresh in
his memory and to reflect that knowledge correctly. A party may read into evidence
a memorandum or record when it is admitted, but no such memorandum or record is
admissible as an exhibit unless offered by an adverse party.
(5) Records of a
Regularly Conducted Activity
(a) A memorandum, report,
record, or data compilation, in any form, of acts, events, conditions, opinion,
or diagnosis, made at or near the time by, or from information transmitted by,
a person with knowledge, if kept in the course of a regularly conducted
business activity and if it was the regular practice of that business activity
to make such memorandum, report, record, or data compilation, all as shown by
testimony of the custodian or other qualified witness, unless the sources of
information or other circumstances show lack of trustworthiness. The term
“business” as used in this paragraph includes a business, institution,
association, profession, occupation, and calling for every kind, whether or not
conducted for profit.
(b) No evidence in the
form of an opinion or diagnosis is admissible under paragraph (a) unless such
opinion or diagnosis would otherwise be admissible if the person whose opinion
is recorded were to testify to the opinion directly.
(6) Learned Treatises
To the extent called
to the attention of an expert witness upon cross examination or relied upon by
the expert witness in direct examination, statements contained in public
treatises, periodicals or pamphlets on a subject of history, medicine, or other
science or art, established as a reliable authority by the testimony or
admission of the witness, or by other expert testimony, or by judicial notice.
(7) Then Existing
Mental, Emotional, or Physical Condition
(a) A statement of the
declarant’s then existing state of mind, emotion, or physical sensation,
including a statement of intent, plan, motive, design, mental feeling, pain, or
bodily health, when such evidence is offered to:
(i) Prove the declarant’s
state of mind, emotion, or physical sensation at that time or at any other time
when such state is an issue in the action.
(ii) Prove or explain acts
of subsequent conduct of the declarant.
(b) However, this
subsection does not make admissible:
(i) An after-the-fact
statement of memory or belief to prove the fact remembered or believed, unless
such a statement relates to the execution, revocation, identification, or terms
of the declarant's will.
(ii) A statement made
under circumstances that indicate its lack of trustworthiness.
Trial Motions
No trial motions
are allowed except for special jury instructions as permitted in these case
materials.
Examples:
Directed verdict, dismissal, acquittal,
motion in limine, motion to sequester witnesses.
Exception:
Motion for Recess may
only be used in emergency situations.