Intro to the Federal Rules of Evidence - 48

VI. HEARSAY (ART. VIII)

A. INTRO

1. Rationale
The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant; i.e., the party had no chance to test the declarant’s perception, his memory, his sincerity, and his ability to relate.

a. Lack of cross-examination of declarant at time statement made
What matters is that a declarant was not subject to cross-examine by an opponent when he made the statement in issue. The declarant and witness can be the same person.

2. Procedural Issues
The trial judge decides the admissibility of hearsay evidence under FRE 104(a). See Bourjaily v United States, 483 U.S. 171 (1987). Failure to raise the hearsay objection in a timely manner is a waiver of the objection (FRE 103), and the evidence may be considered by the jury for whatever probative value the jury wishes to give it.

3. Constitutional issues
An exception to the hearsay rule does not by itself guarantee the statement will be admitted. It must still satisfy the other evidentiary limitations and exclusionary rules, including relevance, authentication, opinion, privilege, and the best evidence rule, to name a few. In criminal actions, hearsay must also pass 4th Amendment protections against unreasonable search and seizure, 5th Amendment limitations on self-incrimination, and the 6th Amendment right to confrontation and due process. (Laws of Evidence, p.360)

a. The Confrontation Clause of the 6th Amendment
“[I]n all criminal prosecutions, the accused shall enjoy the right to be confronted with witnesses against him.”

This Clause gives a criminal defendant the right to keep out of evidence certain out-of-court declarations, where the declarant is not available to be cross-examined in court. That is, the Clause allows a defendant to exclude a hearsay statement.

Admission of testimonial hearsay is barred unless the declarant is unavailable and the accused has had prior opportunity to cross-examine the declarant. See Crawford v. Washington, 124 U.S. 36 (2004).

b. The Compulsory Process Clause of the 6th Amendment
“[I]n all criminal prosecutions, the accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor.”

The Clause has been interpreted so broadly as to entitle the defendant to obtain and present all evidence helpful to his defense. Thus, it may render unconstitutional state or federal evidence rules that would restrict the defense’s ability to present exculpatory evidence. Even a well-established rule of exclusion may run afoul of the Clause, if its effect is to prevent the defendant from presenting relevant evidence.

Where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice. See Chambers v. Mississippi, 410 U.S. 284 (1973).

Intro to the Federal Rules of Evidence - 47

H. Writing Used to Refresh Memory (FRE 612)
1. Meaning of writing
A “writing” can be anything for this purpose – an object, a sound, a gesture, a scent, a photo, etc.
2. Oral testimony
W may not read from the document used to refresh, but must testify from memory.
3. Need not be admitted
Authentication is not required.
4. Opposing party’s rights
A right to inspect it, right to cross examine W thereon, introduce it into evidence.
5. Recorded recollection distinguished
Refreshing recollection (FRE 612) must be distinguished from the hearsay exception for recorded recollection (FRE 803(5)).

EXAMPLE
Q: Mr. Williams, does your statement, which I’ve just handed to you, refresh your memory?
A: Yes.
Q: Who were the other people attending the meeting?
A: Well, there was Mr. Jones [looking at report], there was Ms. Williamson …
OPPOSING LAWYER: Your honor, we object. The witness is reading from his statement.
JUDGE: Sustained. Mr. Williams, please hand the statement back to your lawyer.

Intro to the Federal Rules of Evidence - 46

G. Rehabilitation
1. Direct answer to the impeachment evidence
Rehabilitation evidence must directly answer the impeachment evidence.
2. Good character for truthfulness (FRE 608(a)(2))
Once a witness’s character for truthfulness has been attacked, opinion or reputation evidence showing that the witness has a good character for truthfulness is admissible.
3. Prior consistent statement
i) Inadmissible
A waste of time because the inconsistency is not removed by the fact that W made more than one consistent statement.
ii) Exception
When impeached by allegation of improper motive (801(d)(1)(B)).
However, the rule makes these consistent statements substantive evidence rather than evidence merely affecting credibility.

EXAMPLE: (on cross)
Q: You say today that the defendant’s truck had the green light?
A: That’s right.
Q: One month ago you were hired by the defendant?
A: That’s right.
Q: So now you’re telling us that the defendant’s truck had the green light?
Q: Yes.
(on redirect)
Q: Let’s talk about what happened right after the accident. Did you talk to the police?
A: Yes.
Q: What did you tell the police about the light?
A: I told them the truck had the green light.
Q: That statement to the police, did that happen before you were hired by the defendant?
A: That happened almost a year before I got hired.