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).