This full-text article is written by and reprinted with permission from my husband, Masoninblue.

I will start with an example.

A witnesses an accident and later tells B that Igor Ivarson ran a red light and hit Peter Piper in a crosswalk, killing him.

Flash forward to a trial. Igor Ivarson is charged with negligent homicide and the prosecutor calls B to the stand and asks him the following question after establishing that B had dinner with A several hours after the accident:

What, if anything, did A say to you about the accident?

If you are representing Igor and you do not stand up and say in a commanding voice, “Objection, your Honor. The question calls for hearsay”, a hole should open up in the floor beneath your chair disappearing you forever into the Great Beyond From Which There Is No Return. This is an exceedingly grim place not unlike Hell.

B’s answer would be hearsay because he would be repeating what A told him and his answer would be offered to prove that Igor ran the red light and hit Peter Piper in a crosswalk. That is one of the fundamental questions of fact that the prosecution must prove beyond a reasonable doubt in Igor’s trial.

Igor’s right to confront his accusers via cross examination would be violated if A’s statement comes in because Igor’s lawyer cannot cross examine A since A is not on the witness stand. Equally important, A was not under oath when A made the statement and the jury cannot evaluate A’s credibility, if A is not present, questioned, and cross examined.

For purposes of the following definition:

A is the declarant or person who made the statement.

B is the witness in court repeating the declarant’s statement.

(Keep in mind that a statement can be oral or written and also includes non-verbal conduct, if such conduct was intended as an assertion. An example of conduct intended as an assertion would be nodding your head to indicate agreement in response to a question, like “Do you want to eat pizza tonight?”)

Okay, here’s the definition:

“Hearsay” is 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. See Federal Rule of Evidence (FRE) 801(c).

Since A did not make the statement while testifying at the trial or hearing, (he made it out of court before the trial), and A’s statement was offered to prove what the statement asserted, A’s statement is hearsay.

Simple, right?

Okay, what if A’s statement were offered for some other purpose? For example, let’s say it was offered to establish when A first knew about the accident. If that were the case, and that was a relevant issue, A’s statement would not be hearsay since it was offered for a purpose other than establishing the truth of the matter asserted in the statement.

This is a critical distinction that eludes oodles of judges and lawyers, not to mention law students. Don’t you make the same mistake.

By the way, sometimes judges will admit A’s statement, subject to a limiting oral instruction telling the jury that they may only consider A’s statement for the limited purpose of deciding when A first knew about the accident and for no other purpose.

Yah, sure. You betcha.

As if the members of the jury will ever remember that limiting instruction during their deliberations. Sheesh!

Now that you think you know what statements are hearsay, guess what?Some statements that fit the definition of hearsay are defined as not-hearsay.

Think of them as Jokers in a deck of cards.

What are these Jokers?

Hint: Not the football coach at the University of Kentucky.

FRE 801(d) identifies two types of non-hearsay statements:

(1) Prior statements by a witness, and

(2) Admissions by a party opponent.

A prior statement of a declarant who testifies at a trial or hearing is not hearsay if the witness is subject to cross examination about the prior statement and the statement is (A) inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person.

An admission by a party opponent is a statement by a party to a lawsuit that is offered by the party’s opponent. Note that only the opponent can offer the seemingly hearsay statement; the party who made the statement cannot offer it. For example, if Igor Ivarson confessed that he ran a red light and hit Peter Piper in the crosswalk, his statement is admissible as an admission by a party opponent, even though it is offered to prove the truth of the matter asserted in the statement.

Can the defendant offer his own statement for another purpose, in other words, to prove something other than the truth of the matter asserted in the statement?

Yes, for example, to prove that the person to whom he made the statement acted in reliance on that statement, if that is an issue in the case. I will provide a detailed example of this situation in my next post as this is exactly what happened in Crane-Station’s case.

Suppose Igor Ivarson told the police that he was not driving the vehicle that struck Peter Piper. Would his exculpatory statement be admissible to prove that he was not driving the vehicle?

Not unless the prosecutor, who is the party opponent, offered it and no prosecutor is that stupid. At least they are not supposed to be.

There is only one exception to this rule and that is based on a defendant’s constitutional right to present a defense. If the statement is the only exculpatory evidence available, he cannot be prevented from offering his statement by this rule.

Finally, a statement by a coconspirator in furtherance of a conspiracy is admissible against the coconspirator and other members of the conspiracy.

NEXT: Exceptions to the hearsay rule.

Any questions?

Cross posted at my website and the Smirking Chimp and Firedoglake in MyFDL.

And because Dakine always says he can, I will too:

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