Other Hearsay Considerations

Question 1

What does the Confrontation Clause require?

Answer 1

• Under the Sixth Amendment’s Confrontation Clause, in a criminal case where the declarant is unavailable, “testimonial” hearsay statements will be inadmissible unless the defendant is given an opportunity to cross-examine the declarant.

Question 2

What is testimonial hearsay?

Answer 2

• “Testimonial hearsay” is a hearsay statement about past events that the declarant reasonably expected would be used in a subsequent prosecution, typically, made to police or government employee, or made in a “formal” setting, like in a courtroom, deposition of the like.

Question 3

What are some examples of testimonial hearsay?

Answer 3

• many statements made to police or during police interrogation statements made in court or court-like settings;
• affidavits; and
• depositions.

Question 4

What are some examples of non-testimonial hearsay?

Answer 4

• Many, if not most, hearsay exceptions are non-testimonial, specifically, business records, co-conspirator’s statements, etc.

Question 5

Under what exceptions would testimonial hearsay be admitted, even if the declarant is not unavailable or the defendant did not have a chance to cross-examine?

Answer 5

• Dying declarations
• Child witness testifying via closed circuit
• Ongoing emergency
• Chemical analysis report with notice and demand statute
• Waiver through forfeiture by wrongdoing

Question 6

What constitutes an ongoing emergency so that testimonial hearsay can be admissible?

Answer 6

• “Statements made where the primary purpose of the statement is to aid police during an ongoing emergency.
  o EXAMPLE: The defendant throws a beer bottle at the victim’s (declarant’s) car on the highway and is swerving erratically. The victim calls 911. The defendant is apprehended and charged with DUI. At the defendant’s trial, the victim fails to appear. The 911 tape is offered. Result - The tape will be admitted as a present sense impression because the primary reason was to meet an ongoing police emergency (drunk driver on road).
  o EXAMPLE: An officer responding to a domestic violence call meets an hysterical victim and asks what’s happened. The victim says, “Defendant threatened me with a gun. I don’t know where he went.” This excited utterance seems like testimonial hearsay, but because a man with a gun presents an emergency, the victim’s statement may be admissible through the officer, despite a Confrontation Clause objection.
• 911 calls may be testimonial or not, depending on the circumstances of the call and the expectations of the declarant.

Question 7

How would a chemical analysis report be admissible testimonial evidence?

Answer 7

• A report of a chemical analysis (report says drugs seized from the defendant are cocaine) is testimonial but will be admitted over a Confrontation Clause objection if the jurisdiction has a “notice and demand” statute, which requires the government to give prior notice of its intent to offer the analysis results in hearsay form (the report, usually a business or public record) and gives the defendant the chance to demand that the government present the chemist who did the testing.

Question 8

How would a forfeiture by wrongdoing make testimonial evidence admissible?

Answer 8

• A criminal defendant forfeits their Confrontation Clause rights if they cause the unavailability of the declarant through forfeiture by wrongdoing with the intent to prevent that declarant from testifying at the trial or hearing.
  o EXAMPLE: Defendant is charged with child abuse. Defendant selected the child victim because the child seemed particularly easy to intimidate and told the child never to tell anyone or the child’s family would be hurt. The child told a social worker and police officer about the abuse. The officer and worker may be able to testify to the child’s statements on a forfeiture by wrongdoing theory.

Question 9

What happens if hearsay turns out to be testimonial and no exception applies?

Answer 9

• If the hearsay turns out to be testimonial and no exception applies, the statement must be offered in non-hearsay form, meaning the declarant must testify to it and be subject to cross-examination.

Question 10

What is the rule for hearsay within hearsay (multiple hearsay)?

Answer 10

• If an out-of-court statement contains additional out-of-court statements, both the primary statement and the included statement must have a separate basis for admissibility, meaning a hearsay exception must be found to apply to each bit of hearsay. If the underlying hearsay cannot be redacted, the entire statement is inadmissible.

Question 11

What are common situations in which multiple hearsay would arise?

Answer 11

• Common situations include business records, medical records, or charts.
• EXAMPLE: The plaintiff is suing an auto shop for personal injuries after a car fell from an overhead lift. The plaintiff and the defendant’s employee were injured. The plaintiff offers an official OSHA report wherein the defendant’s injured employee was quoted as to the cause of the accident. Result - The OSHA report is admissible under the public record hearsay exception, and the employee’s statement is a vicarious admission, so the entire statement is admissible.
• EXAMPLE: In a personal injury case, the plaintiff went to the emergency room after being assaulted, was examined by several doctors and told each that she had been hit in the back of the head by Fred after they argued. The ER created a report listing the doctors’ observations of the patient’s injuries, temperature, lucidity, as well as the patient’s statement. In a civil suit, the report is offered. The report which records the doctors’ observations is admissible under the business record exception and the patient’s statement included therein about the injuries is admissible under the statement for treatment or diagnosis exception, but the reference to Fred and the argument would have to be redacted or the entire report would be inadmissible.

Question 12

What is the residual hearsay exception?

Answer 12

• A statement NOT otherwise covered by an exception to the hearsay rule is nevertheless NOT excluded by the hearsay rule under certain circumstances.
  o The statement must be more probative and on point than any other evidence and requires sufficient indicia of trustworthiness.
  o The party intending to offer evidence under this exception must give notice to the opposing party.
  o Whether the prerequisites for use of this rule are satisfied is a preliminary question of law for the judge