Sunday, July 22, 2007

Point of Law: Hearsay Rule

The Hearsay Rule is an analytic rule of evidence that defines hearsay and provides for both exceptions and exemptions from that rule. Historically, the rule against hearsay is aimed at prohibiting the use of a person's assertion, as equivalent to testimony to the fact asserted, unless the assertor is brought to testify in court on the stand where he may be placed under oath and cross-examined. The theory of the rule against hearsay is that assertions made by human beings are naturally unreliable. It therefore becomes necessary to subject such forms of evidence to “scrutiny or analysis calculated to discover and expose in detail its possible weaknesses, and thus to enable the tribunal to estimate it at no more than its actual value”.

However, some statements are defined as hearsay, but may nevertheless be admissible as evidence in court. These statements relate to exceptions to the general rule on hearsay. Some exceptions to the hearsay rule apply only when the declarant is unavailable for testimony at the trial or hearing.

Hearsay exceptions that apply even where the declarant is available

1. Excited utterances: These are statements relating to startling events or condition made while the declarant was under the stress of excitement caused by the event or condition. An excited utterance does not have to be made at the same time of the startling event. A statement made minutes, hours or even days after the startling event can be excited utterances, so long as the declarant is still under the stress of the startling event.

2. Present sense impressions: These are statements expressing the declarant's impression of a condition existing at the time the statement was made. Unlike an excited utterance, it need not be made in response to a startling event. Instead, it is admissible because it is a condition that the witness would likely have been experiencing at the same time as the declarant, and would instantly be able to corroborate.

3. Declarations of present state of mind: Much like a present-sense impression describes the outside world, declarant's statement to the effect of of his or her emotions will be admissible to prove that the declarant was indeed in that state of mind. This is normally used in cases where the declarant's mental state is at issue. Present-state-of-mind statements are also used as circumstantial evidence of subsequent acts committed by the declarant.

4. Statements made in the course of medical treatment: These are statements made by a patient to a medical professional to help in diagnosis and treatment. Any statements contained therein that attribute fault or causation to an individual will generally not be admissible under this exception, unless it involves a small child as stipulated under the "Tender Years" doctrine.

5. Business records exception: business records created during the ordinary course of business are considered reliable and can usually be brought in under this exception if the proper foundation is laid when the records are introduced into evidence.

6. Guantanamo Bay exception: The military tribunals used to try some Guantanamo Bay prisoners allow any evidence, including hearsay, "if the military judge determines that the evidence would have probative value to a reasonable person".

7. Other exceptions, declarant's availability immaterial: In the United States Federal Rules of Evidence, separate exceptions are made for public records, family records, and records in ancient documents of established authenticity. When regular or public records are kept, the absence of such records may also be used as admissible hearsay evidence.

Hearsay exceptions that apply only where the declarant is unavailable

1. Dying declarations and other statements under belief of impending death:

In the law of evidence, a dying declaration is testimony that would normally be barred as hearsay but may nonetheless be admitted as evidence in certain kinds of cases because it constituted the last words of a dying person.

Under the Federal Rules of Evidence, a dying declaration is admissible if:
1. it constituted the last words of a person who was dying or thought he was dying, and
2. that person was aware that he or she was dying, and
3. that person made a statement, based on their actual knowledge, that relates in some way to the cause or circumstances of his or her death.

The declarant does not actually have to die for the statement to be admissible, but they need to have had a genuine belief that they were going to die, and they must be unavailable to testify in court. Furthermore, the statement must relate to the circumstances or the cause of the declarant's own death. As with all testimony, the dying declaration will be inadmissible unless it is based on the declarant's actual knowledge. In U.S. federal courts, the dying declaration exception is limited to civil cases and homicide prosecutions. It cannot be used in any other kind of criminal proceeding.

2. Declarations against interest: Such declarations are an exception to the rule on hearsay in which a person's statement may be used, where generally the content of the statement is so predjudicial to the person making it (such as confessing to a crime or admitting liability for a tort) that they would not have made the statment unless they believed the statement was true. This differs from a party admission because here the declarant does not have to be a party to the case, but must have a basis for knowing that the statement is true.

3. Prior testimony: if the testimony was given under oath and the party against whom the testimony is being proffered was present and had the opportunity to cross examine the witness at that time. This is often used to enter depositions into the court record at trial.

4. Admission of guilt: if if a statement is made, verbal or otherwise, as an admission of guilt of the matter at hand, that statement would not be regarded as hearsay. In other words, self-incriminating statements or confessions are not hearsay.

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