Deck 10: Hearsay Rule and Exceptions

Question 1

What is the hearsay rule? Explain the rationale for excluding evidence under the hearsay rule. Define the following terms as they are used in relation to the admission of hearsay evidence: statement, declarant, hearsay, statements that are not hearsay. Give some examples of statements that are not hearsay.

Answer 1

The hearsay rule is a legal principle that prohibits the admission of out-of-court statements as evidence in court. This means that a person cannot testify about what someone else said outside of the courtroom, unless it falls within one of the recognized exceptions to the hearsay rule.

The rationale for excluding hearsay evidence is based on concerns about reliability and fairness. Hearsay statements are generally considered less reliable because the original speaker is not present in court to be cross-examined, and there is a greater risk of misunderstanding or misinterpretation. Additionally, allowing hearsay evidence could potentially violate the defendant's right to confront and cross-examine witnesses against them, as guaranteed by the Sixth Amendment to the U.S. Constitution.

In the context of the hearsay rule, a "statement" refers to any oral or written assertion, or nonverbal conduct intended as an assertion. A "declarant" is the person who made the statement. "Hearsay" is an out-of-court statement offered to prove the truth of the matter asserted in the statement. "Statements that are not hearsay" are those that are offered for a purpose other than to prove the truth of the matter asserted, such as to show the effect on the listener or to establish the speaker's state of mind.

Examples of statements that are not hearsay include:
- Prior inconsistent statements made by a witness, which are offered to impeach the witness's credibility rather than to prove the truth of the original statement.
- Statements offered to show the effect on the listener, such as a statement that caused someone to take a particular action.
- Statements offered to establish the speaker's state of mind, such as a statement made to show the speaker's belief or intent at the time.

Question 2

What is the relationship between the history of the hearsay rule and the history of the trial by jury?

Answer 2

The relationship between the history of the hearsay rule and the history of the trial by jury is that both have evolved over time to ensure fair and just legal proceedings.

The hearsay rule, which prohibits the use of out-of-court statements as evidence in court, has its origins in English common law. It was developed to prevent unreliable and potentially prejudicial information from being presented to a jury. This rule has been refined and expanded upon through legal precedent and legislation to ensure that only reliable and relevant evidence is considered in a trial.

Similarly, the trial by jury has a long history dating back to medieval England. It was established as a way to involve the community in the legal process and to provide a fair and impartial judgment by a group of peers. Over time, the trial by jury has been codified and expanded to protect the rights of the accused and ensure a fair trial.

Both the hearsay rule and the trial by jury have been shaped by legal developments and societal changes to uphold the principles of fairness, justice, and due process. They are integral components of the legal system and work in tandem to safeguard the rights of individuals in the courtroom.

Question 3

What four reasons are advanced as to why hearsay evidence should not be admitted? What is the supporting rationale for allowing some hearsay evidence to be admitted?

Answer 3

There are four main reasons advanced as to why hearsay evidence should not be admitted in court.

Firstly, hearsay evidence is considered to be less reliable than direct evidence, as it is based on the out-of-court statements of a third party rather than the firsthand knowledge of the witness. This can lead to inaccuracies and misunderstandings.

Secondly, hearsay evidence can be easily manipulated or fabricated, as it relies on the credibility and memory of the original declarant, who may not be present in court to be cross-examined.

Thirdly, admitting hearsay evidence can violate the defendant's right to confront and cross-examine witnesses, as guaranteed by the Sixth Amendment of the U.S. Constitution. Allowing hearsay evidence to be admitted may deny the defendant the opportunity to challenge the accuracy and credibility of the statements.

Lastly, hearsay evidence can be prejudicial, as it may influence the jury based on the out-of-court statements of individuals who are not subject to cross-examination.

However, there are certain circumstances in which hearsay evidence may be admitted. The supporting rationale for allowing some hearsay evidence to be admitted is that it can be necessary and reliable in certain situations, such as when the original declarant is unavailable to testify in court due to death, illness, or other reasons. In such cases, the hearsay evidence may be the only way to present crucial information to the court. Additionally, there are exceptions to the hearsay rule, such as statements made under belief of impending death or statements against interest, which are considered to be inherently trustworthy and reliable. Therefore, in these specific circumstances, hearsay evidence may be deemed admissible in court.

Question 4

Explain how the "spontaneous or excited utterance" exception to the hearsay rule operates. Why should a spontaneous utterance be believed as truthful?

Question 5

State the four requirements that must be met if a spontaneous utterance is to be admitted as an exception to the rule. Give some examples. What part does time play in determining whether a statement is spontaneous? Does this apply if statements are made to police officers? May a spontaneous utterance be in response to a question by a third party?

Question 6

Why are business and public records usually admitted as hearsay exceptions, even though the person who originally made the records is not present? Give some examples of reports that are admissible under the exception.

Question 7

Explain the basis for the family history

Question 8

What is the rationale for admitting "former testimony" as an exception to the hearsay rule? Is it really hearsay by the definition?

Question 9

Under what conditions may evidence relating to testimony given at a former trial be admitted into court? Who has the burden of proof to show that a witness is unavailable? What is the "unavailability" test?

Question 10

What is a dying declaration? Must a declarant actually state that he or she is aware of imminent death before the statement is admissible? In what type of case is a dying declaration admissible? Are such statements admitted if elicited by questions?

Question 11

Why are declarations against the interests of the declarant admissible as exceptions to the hearsay rule? Give some examples.

Question 12

What is the rationale for allowing some confessions into evidence even though the confessions are hearsay? Are confessions reliable as hearsay exceptions? Does the defendant have a real complaint when the defendant actually made the confession?

Question 13

What are "residual" exceptions to the hearsay rule? What inquiries are made to determine their admissibility? Explain their application.

Question 14

When the physical or mental state of a person is to be proved, declarations of another that are indicative of the declarant's physical or mental state are admitted. Are such statements hearsay? For what purpose are such statements admitted? Discuss. Distinguish between out-of-court statements offered to prove the matter asserted and statements that are not hearsay.

Question 15

In Bell v. State, the Florida victim of an attempted kidnapping at gunpoint stated that she was walking along the street during the daytime when the defendant twice drove up to her in his van and offered to give her a ride to her destination. The defendant changed his location and accosted her by grabbing her around the neck, holding a gun to her head, and attempted to force her into his vehicle. When she broke free and ran into traffic, she pounded on cars and asked for help in getting away. The defendant, while standing nearby, pointed his gun in her direction and threatened to shoot her. When she managed to call police and talk to them at her residence, she was barely able to speak coherently. When she told her story to police, police officers were able to remember it sufficiently to testify about her original statement to police. The defendant argued that the victim's statements failed to meet the excited utterance test because there was a time delay of approximately 50 minutes between the time of the incident and the time the victim became calm enough to speak. According to the defendant, this was sufficient time for the victim to contrive or misrepresent. What are the general requirements for the application of the excited utterance exception? Would the victim have had time for reason to return if it took 50 minutes for her to become coherent? Did the court approve of the admission of an excited utterance exception in this case? Do you agree with the court's decision? Why or why not?

Question 16

Upon responding to a domestic dispute radio call in Cox v. State, Indiana officers observed defendant Cox standing in front of an apartment building talking to another police officer. One deputy found Cox's girlfriend inside an apartment building. He noticed that she was crying and shaking and appeared to be very upset. The officer also noticed that she was talking very quickly and showed signs of a fresh injury, including a cut above her eye that was bleeding; her left eye was swollen; and she was holding an ice pack to her eye. Additionally, she had marks on her neck that appeared to have been caused by someone grabbing her on the neck. Cox contended on appeal that the hearsay testimony of the deputy who told the court some of what the girlfriend told him while she was upset should have been ruled as inadmissible because it failed to fit into any hearsay exception and because his girlfriend did not appear as a witness at the trial. Cox also contended that, if the testimony fell under the excited utterance exception, the prosecution failed to lay a proper foundation for the evidence. Should the appellate court reverse the case because the excited utterance exception did not apply in this context? Why or why not? Did it seem that there was a sufficiently startling event? How long would it take for a person who has just been beaten by her boyfriend to calm down? Did the evidence in the case indicate that she had returned to rational thought and contemplation? What kind of foundation for a spontaneous utterance could be made in this case?

Question 17

In Gonzalez v. State, a defendant had been charged with killing a woman during a robbery. When police arrived, the woman victim was in shock, scared, and bleeding, but she was still conscious and asking for help when police responded. She told officers that she had been shot by a kid who lived across the street, and she noted that the kid stole her truck. The woman knew her situation was grave, but she never told anyone that she knew that was dying. Over a defendant's objection, a police officer offered her dying declaration at the defendant's murder trial. Should the trial court have permitted the woman's statement to the officer to be admitted as a dying declaration? What arguments should you make if you want the woman's statement kept from admission at trial? All things considered, should dying declarations be permitted, because a defendant cannot cross-examine the dead witness?

Question 18

In the case of Davis v. State, the defendant appealed two sentences of death. Davis had been found guilty of capital murder for placing gasoline on two women and setting them on fire. One of his appeal grounds concerned the dying declaration of one of the victims. There was evidence that one of the victims was clearly not going to survive, and she had mentioned her concerns about her children. She also identified the defendant by name. In this case, did the dying declarant meet the requirements so that her statement could be admitted against the defendant as a dying declaration? Did the fact that the defendant was unable to cross-examine the dying declarant indicate that a dying declaration was no longer admissible under Florida law? What did the Supreme Court of Florida conclude?

Question 19

In the case of State v. Washington, the Michigan defendant and an accomplice were convicted of armed robbery and assault with intent to do great bodily harm. Police stopped the two men for routine questioning. Later, they heard a radio report of a robbery and shooting. One of the men they stopped blurted out that he was the shooter. He was later identified as the shooter. Because the confessing partner was tried separately, the judge allowed his statement to be admitted in evidence against his partner, Washington, as a declaration against interest. Washington appealed his conviction, contending that the admission of his accomplice's declaration against interest should not have been used against him. How did the appellate court rule? What rationale did it use in making its decision? Were there sufficient guarantees of trustworthiness to allow the evidence to be admitted as an exception to the hearsay rule? Would you have ruled the same way as the appellate court? Why?

Question 20

One of the reasons for the general rule that hearsay evidence is inadmissible is:

A) the triers of fact can observe the demeanor of the declarant but not that of the person testifying.
B) the person testifying as to what he or she heard is not under oath.
C) the witness testifying as to what he or she heard cannot be cross-examined.
D) the out-of-court declarant is not under oath to speak the truth.

Question 21

"A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," is a definition of:

A) hearsay.
B) the exclusionary rule.
C) a confession exception.
D) a non-testimonial utterance.

Question 22

The hearsay rule:

A) has no exceptions, because if exceptions were recognized, the rule would not exist.
B) does not apply in a larceny case if the declarant is dead.
C) had its origins in the United States about 1813.
D) has many exceptions, based on reason, reliability, and necessity.

Question 23

When considering the history of the hearsay rule:

A) it is apparent that the rule has not changed during the past 20 years.
B) judges and court rule makers have recognized that the exceptions to the rule had to be recognized because of the harshness of a rule that prohibits the use of all hearsay evidence.
C) it is obvious that today, as in the fourteenth century, jurors are chosen because they have some knowledge of the case.
D) one learns that the hearsay rule was formulated strictly for use in this country.

Question 24

There are four general reasons that support the hearsay rule. In regard to this:

A) no hearsay evidence is admissible unless the person who made the statement (the declarant) can be cross-examined.
B) it is apparent that the courts intended to exclude all hearsay statements.
C) it can be argued that if these reasons, or most of them, are not present, the evidence should be admissible even if it is hearsay.
D) because the reasons for the rule have not changed, the courts cannot add new exceptions or delete outdated exceptions.

Question 25

The reasons for the hearsay rule in the first instance are based on:

A) the fact that the declarant was not under oath to speak the truth
B) the demeanor of the person who actually made the statement cannot be observed by the judge and jury.
C) there is danger that the statement may be repeated inaccurately.
D) all of the above answers collectively support the reasons for the hearsay rule.

Question 26

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is:

A) inadmissible if made more than three hours after the event.
B) considered an excited utterance and is admissible even though the declarant had no opportunity to personally observe the matters asserted in his or her statement or declaration.
C) considered a spontaneous or excited utterance and may be admissible under an exception to the hearsay rule if other requirements are met.
D) considered an "excited utterance" and is admissible as an exception to the hearsay rule in most states but not under the Federal Rules of Evidence.

Question 27

Joe Shar Bell came out of his apartment one day and observed a man known to him in the process of stealing the car belonging to Joe Shar Bell. In his excitement over observing the theft of his car, Joe Shar Bell shouted, "José Rodriguez is stealing my car!" Joe Shar Bell's neighbor heard the words shouted by Joe indicating the identity of the car thief. Joe Shar Bell's neighbor:

A) could not come into court and testify concerning what Joe Shar Bell shouted concerning the theft of his automobile because that would constitute hearsay evidence and be prohibited.
B) could not come into court and testify concerning the theft of Joe Shar Bell's car because the theft of one's car that one observed would not be an exciting event.
C) should be able to come to court and testify concerning the words that Joe Shar Bell shouted that related to the theft of the automobile of Joe Shar Bell because it should constitute an excited utterance, which is a hearsay exception.
D) would be permitted to testify concerning what Joe Shar Bell shouted because it is not considered hearsay evidence.

Question 28

Sometimes business and public records are admissible even though they are technically hearsay. The reason for this exception is that:

A) public records and business records have the "earmark of reliability" or "probability of trustworthiness."
B) the courts recognize that those who make entries in public records always record facts accurately and honestly.
C) official records such as police records contain facts and not opinions.
D) business and public records are always trustworthy, and the information is admissible regardless of its source.

Question 29

There is an exception to the hearsay rule known as the "family history and records" or "pedigree" rule. In applying this rule:

A) only matters relating to birth or death are admissible.
B) records that are part of a family Bible are admissible, but other records relating to family history are excluded.
C) evidence from family records such as a family Bible relating to pedigree, genealogy, and other family matters is sometimes admissible in state courts as an exception to the hearsay rule, but this rule does not apply in federal courts.
D) records such as a family Bible are admissible where properly authenticated and where better evidence is not available.

Question 30

Testimony of a witness given at a former trial (former testimony):

A) is never admissible at a subsequent trial unless the same witness that testified at the first trial appears in court at the second trial for cross-examination.
B) is always admissible at a subsequent trial if the witness was under oath at the first trial.
C) even if considered hearsay, may be admitted at a subsequent trial if the witness making the statement is legitimately unavailable and the testimony at the former trial relates substantially to the same subject matter and is between the same parties.
D) is not admissible at a subsequent trial unless the witness is dead, and the testimony relates to the same subject matter.

Question 31

Under Federal Rule 804, former testimony of a witness is admissible if the declarant is unavailable. Decisions relating to the term unavailability have held that:

A) the Sixth Amendment confrontation clause has no bearing on the unavailability requirement.
B) one way to comply with the unavailability test is to introduce evidence that the witness is beyond the jurisdiction of the court.
C) a witness who refuses to testify because of the Fifth Amendment self?incrimination privilege is not "unavailable."
D) physical or mental illness does not make a witness unavailable.

Question 32

In a prosecution in a criminal case, testimony taken at a previous trial may sometimes be admitted. The rule concerning admissibility is that:

A) such evidence is admissible for the prosecution unless the defense counsel can prove that the witness is available to testify at the trial.
B) the fact that a witness is pregnant at the time of trial is sufficient to show unavailability.
C) where testimonial evidence is involved, there must be a trial opportunity to cross-examine the witness or a proper earlier proceeding where the right of cross-examination existed and there must be proof of unavailability of the witness.
D) the witness's testimony given at a prior state court hearing cannot be considered by a federal court in the future.

Question 33

A dying declaration is a statement by the victim concerning the case and circumstances of a homicide. In regard to the use of dying declarations:

A) such declarations are admitted in any criminal case if the victim in fact dies.
B) they are admissible only if the victim affirmatively states that he or she expects to die.
C) such statements are absolute and should be given more weight than sworn testimony.
D) the exception to the hearsay rule that admits such statements in state courts is generally restricted to statements made by the victim of a homicide and requires that the victim die.

Question 34

An accused has a federal constitutional right under the Sixth Amendment to confront and cross-examine the witnesses who testify against the accused at a criminal trial. When the defendant's criminal act proves to be the reason a particular witness cannot be present to testify against the accused and hearsay evidence from the witness is sought to be introduced:

A) a defendant may always assert his or her rights under the Sixth Amendment and prevent that witness's hearsay evidence from being used against that defendant.
B) a defendant can prevent the hearsay evidence from being introduced in court because the out-of-court witness was not under oath at the time of the statement.
C) the evidence is always admissible against a defendant as long as there were several witnesses to corroborate what the witness said out of court.
D) the defendant may not be able to successfully exclude the hearsay evidence because the defendant, by his or her act of injuring or killing the witness, has caused the unavailability of the witness and has forfeited the right to complain about the alleged Sixth Amendment violation.

Question 35

A dying declaration, in order to be admissible:

A) may be either written or oral.
B) may relate to the killing of the declarant or a third party.
C) must always be made in answer to questions posed by police officers.
D) must be made to a person who is not an interested party, such as a law enforcement officer.

Question 36

A declaration against the interests of the declarant:

A) is sometimes admissible even though it is offered by someone who did not make the actual declaration, if certain conditions are met.
B) cannot be admitted under the Federal Rules as an exception to the hearsay rule unless the statements were against pecuniary interests.
C) is admissible under the Federal Rules as an exception to the hearsay rule even though corroborating circumstances do not indicate the trustworthiness of the statement.
D) is admissible in civil cases but not criminal cases.

Question 37

When a police officer takes the stand and is asked to testify concerning the substance of a confession or admission by a suspect:

A) the general rule is that this is not admissible because it is hearsay.
B) such testimony is hearsay but nevertheless is admissible as an exception to the hearsay rule when other conditions are met.
C) the evidence is admitted because the statement is not hearsay.
D) the evidence is inadmissible if the person who made the confession refuses to testify.

Question 38

In some instances, evidence is offered not for its assertive or testimonial use, but to show the state of mind of the person making such a statement. Such statements are:

A) designated as nontestimonial utterances.
B) inadmissible as in violation of the hearsay rule.
C) admissible to show not only that the words were spoken but also as proof of the truth of what was said.
D) admissible as an exception to the hearsay rule because they are spontaneous exclamations.

Question 39

In the case of Bell v. State, the Florida defendant stood trial for attempted kidnapping. He accosted the victim at gunpoint while she was walking along a street. She ran away into traffic and eventually called police. She managed to call police and talk to them at her residence, but she was barely able to speak coherently due to her fear and fright. The defendant argued that the officers should not have been permitted to tell the court what she said because he contended that her statements did not constitute an excited utterance. On review, it was held that:

A) because the statement made by the victim was to a police officer, it was not admissible as a spontaneous declaration exception to the hearsay rule.
B) the time lapse between the attempted kidnapping and the utterance to police made the excited utterance exception inapplicable.
C) the fact that the statement by the victim was made some distance and some time from the scene of the attempted kidnapping was sufficient to destroy spontaneity and make the statement inadmissible.
D) the trial court did not err in admitting the statement under the spontaneous declara?tion exception to the hearsay rule.

Question 40

In the case of Cox v. State, the Indiana defendant was convicted of a domestic abuse charge for beating his girlfriend. When police officers encountered the girlfriend, she was crying and shaking and appeared to be very upset. The officer also noticed that she was talking very quickly and showed signs of a fresh injury, including a cut above her eye that was bleeding; her left eye was swollen; and she was holding an ice pack to her eye. Additionally, she had marks on her neck that appeared to have been caused by someone grabbing her on the neck. A deputy who heard the victim's story told the court what the victim told him while she was crying and upset. The defendant contended that the excited utterance should not have been applied by the trial court so as to permit the officer to testify what the girlfriend told him. In the decision in this case, the reviewing court found that:

A) the trial court should not have allowed the officer to testify because the injury by the boyfriend should not have resulted in an excitement that would have lasted until police arrived.
B) this qualified as an excited utterance by the victim and was non-testimonial in nature and the officer laid the correct foundation sufficient to prove that an exciting event occurred and that the victim talked to the officer prior to cooling down from her being beaten by the boyfriend.
C) in order for the spontaneous utterance hearsay exception to apply, the victim must state affirmatively that she fears death from her attacker, and there was no proof that she felt that he would kill her at some point in time.
D) the trial court should not have allowed the officer to testify because the girlfriend's statement to the officer was testimonial in nature and was told to him out of court and thus qualified as excludable hearsay evidence that was probably not reliable.

Question 41

In Gonzalez v. State, the Texas defendant had been accused of murdering two individuals, one of whom died at the scene and another, who died later. Prior to dying, one of the victims offered an excited utterance that described how the entries were received, who was the perpetrator, what he looked like, where the perpetrator's relatives lived, and noted that the perpetrator stole her truck. At Gonzalez' murder trial, he contended that the police officer should not be permitted to tell the court what the deceased victim told the officers at the crime scene. Gonzalez contended that the admission of the evidence of these victims' excited utterances violated his Sixth Amendment right to confront and cross-examine adverse witnesses. The Texas Court of Criminal Appeals determined that:

A) in all criminal prosecutions, the accused has a Sixth Amendment right to be personally confronted with the witnesses against him or her and allowing police officers to tell what a victim told them constituted a violation of the constitutional rights of Gonzalez.
B) the right to confront and cross-examine had been violated because there was no proof that the woman victim knew that she was going to die when she made her excited utterances.
C) the defendant's right to confront and cross-examine adverse witnesses had not been violated by allowing police officers to testify about the excited utterance given by the dying victim concerning the identity of the defendant and the criminal activities performed by him on the day in question because the defendant had forfeited his right to complain by killing the victim.
D) the right to confront and cross-examine adverse witnesses under the Sixth Amendment had been violated by allowing police officers to testify about the excited utterance given by the dying victim concerning the identity of the defendant and other matters because the defendant had neither waived no forfeited any of his constitutional rights.

Question 42

In the case, Davis v. State, the defendant had been convicted of two counts of capital murder. One of the victims was permitted to offer to a witness and to a paramedic a detailed story of what the defendant did to her with respect to dousing her with gasoline and setting her on fire. She appeared to be concerned about her children that she might leave after her death, and the paramedic indicated that it was clear to him that she would not survive. The defendant contended that the victim's dying declaration should not have been admitted. The Supreme Court of Florida concluded that:

A) dying declarations in the state of Florida could no longer be admitted against the defendants because there was no opportunity to cross-examine the declarant due to the death of the declarant at an earlier time.
B) this particular dying declaration should not have been admitted because the victim did not utter the fact that she knew she was going to die quickly.
C) dying declarations are admissible in Florida courts because they are not considered hearsay.
D) the dying declaration was properly admitted because the victim clearly understood that she would not live very long, and the fact that the defendant could not cross-examine her did not prevent the use of the dying declaration.

Question 43

In the case of Michigan v. Washington, the defendant and an accomplice were convicted of armed robbery and assault with intent to do great bodily harm. Police stopped the two men for routine questioning. Later, the suspects heard a radio report of a robbery and shooting that came over the police radio. One of the men who police stopped blurted out that he was the shooter. The trial court admitted the hearsay statement against the other defendant because they were being tried separately. The trial court decision was appropriate because:

A) the hearsay exception of a confession should be sufficient to allow the introduction of the statement by a fellow defendant who was not tried with the defendant making the statement.
B) the statement was properly admitted as a declaration against interest because the declarant was being tried separately.
C) a confession by one accomplice, whose statement implicates a second defendant, is generally admissible against the second defendant under the confession exception to the hearsay rule, where the defendants are tried separately.
D) the declaration against interest hearsay exception allows police to tell the jury about incriminating information gained from any voluntary statement made by any suspect following an arrest.