COMMON LAW HEARSAY

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(note: links have been added to problems, but correspondence with the book edition not verified)

All these problems are also available at $106!!!.

Problem - Arsenic and Hors d'Oeuvres (pp. 408-409)
Please feel free to copy and paste text from the following links into our wiki so that we have the material in editable form.

Murder at the Seaside Bistro (p. 409)
Assault on Massachusetts Avenue (p. 409)
Problem - Murder in the Ajax Building
R. Park, McCormick on Evidence and the Concept of Hearsay (pp.411-412)
L. Tribe, Triangulating Hearsay (pp. 412-415)
Speaking Out (p. 416)
Dissatisfied Purchaser (p. 417)
Corn Crib Case (pp. 417-418)
J. Falknor, The 'Hear-Say Rule' as a 'See-Do' Rule: Evidence of Conduct (pp.
419-422)
Captain Cook and Davey Jones (p. 422)
Black Crepe (pp. 422-423)

What is hearsay? When and why should it be excluded as evidence?



Contents

Vinny: Preliminary Hearings

  • question is whether there is sufficient evidence to go to trial
  • Ds are in prison. An indictment is merely an accusation.
  • At the PH, P must offer a prima facie case (sufficient to withstand a directed verdict)
  • Why doesn’t Vinny ask questions?
    • Pretty much everything you see Vinny do here turns out to be pretty good lawyering.
    • He doesn’t want to tip his hand. Cross-examining the investigator isn’t going to lead the judge not to admit the rim.
    • If Vinny has impeachment strategy, he shouldn’t reveal it at the preliminary hearing, except:
      • If you’re going to plead or settle
      • Appealing to the power of the judge in a way that transcends the legal technicality
        • Client who got arrested for A+B against a policeman. At the preliminary hearing, N brought out evidence that the cops had beaten him, and it was credible enough that even though it had nothing to do with the sufficiency of the claim, the judge understood the story and called a recess.
      • When you fear that the witness is not going to be present at the trial
        • We can’t exclude this testimony at trial, so we need to test it now. (Mattox) 804(b)
        • Although you can impeach the transcript at trial under Rule 806, it’s hard
    • PH is like a discovery hearing.
      • The basic rule with any opposition witness: as time goes on their testimony becomes more difficult to deal with. ‘
    • PH becomes like a deposition

What is Testimonial after Crawford?

  • We are looking for a deeper understanding of what it’s going to mean that something is or isn’t testimony. And therein we’re looking for a deeper understanding of the confrontation clause.
  • 911 calls
    • SC will be deciding in Davis v. Washington, where the lower court said that 911 calls must be analyzed under a case by case basis
    • Arnold
    • The cases seem to be looking at whether the 911 call is directed by the person calling, safety
  • Anonymous tips
    • US v. Harris. Court upheld the use of it, but in a limited fashion. P didn’t go into details of what the tip said, because that might be prejudicial. They said that they used it to progress to other things
    • So the AT can play two different roles: (1) investigator tells the story of the investigation. (2) it could be admitted as evidence of what the tipster said.
      • (1) = res gesta; evidence is admitted to permit stories to be coherent. No hearsay or CC problem here.
  • Diaries
    • two cases saying that diary entries aren’t testimonial, b/c not written for use in investigation. If you could measure the subjective intent with, for example, a cover page saying that the diary wanted to express to the world, then it might count
    • the question of whether they’re testimonial has come up in the past under the 5th Am. (compulsion)
      • Another case where the diary came in because it wasn’t compelled
      • Compelling the production of a diary is a form of compelling testimony. responses
        • Once you put out the words, it’s no longer your testimony, no so problem
        • If we did it by search, there was no direct compulsion (vs. subpoena)
        • There is long overruled venerable law that doesn’t respect that distinction between the 4th and 5th. Scalia wants to reconsider.
  • A client comes with a piece of incriminating evidence. What to do ?
    • could advise to destroy?
    • Must advise to turn over?
    • May advise to hide it?
    • Could advise of the law? Can resist a subpoena, but not a search warrant

Identification

  • 801(d): statements not hearsay = ones of identification of a person made after… as long as W testifies at the trial or hearing and is subject to CE.
    • Although because lineups are done in a controlled lineup, that’s allowed
  • under this it seems that when you have the declarant on the stand, any prior statement from the declarant is not hearsay. But, read 801(c): hearsay is a statement other than one made by the declarant while testifying at the trial or hearing.
  • Hearsay has to do with untested testimonial capacity. But the rule doesn’t stop there. It says that if the statement is out of court being offered for its truth, even if offered by the person on the stand, it’s treated as hearsay. The rule is saying that it doesn’t want the pattern of testimony in court to be W on the stand telling the jury what they have said to others; we want the story direct.
  • But statements of identification have a different rule. Why? because the ID at the time, under those circumstances is seen to be a more powerful statement than the in court statement.
  • Tension: statements made at the time of the event are often more reliable. How to resolve? There’s a preference for the vitality of the present statement. if and only if that statement is impeached on CE with a suggestion that there has been a change in testimony or impeachment, does it then become admissible to have a W testify to a statement they previously made. That’s not hearsay at common law, because it’s not being offered for truth, but rather to show that the W is telling a consistent story.
    • Instructions to deal with this are never understood by juries

More on Testimonial Issues

  • Translation
    • refers back to issues about the underlying declarant
    • the actual translator can testify, but someone else can’t
  • Blood Alchohol
    • real physical evidence is not testimonial for 5th Am or confrontation clause
    • also, hair samples, telling D to stand up and show his profile, etc.
  • Sketch Artists
    • no post Crawfod cases saying whther it’s testimonial.
    • The last case on this was 1978, where cert was denied and it was said to be not testimonial
    • It seems that under the logic of Crawford, they would be admitted.
  • Blog Entries
    • no case law on it
    • they are so clearly hearsay, unless you introduce them either not for their truth, or some other way that would end up voiding the problem anyways
    • they are like statements
  • Journalist Interviews
    • This has often come up when journalists refuse to testify under the privilege
    • One 11th Cir. case where D objected to a newspaper article as hearsay. Was a little different because the article detailed a conversation between D and an W for P. the court separated the hearsay analysis from the confrontation clause analysis. Burden was on D to show how they were testimonial, and court said he failed.
  • Voice Mail
    • looking at intent of the declarant
    • is generally admitted. Just like a general statement, without expectation that it’s going to be used later.
  • Home Videos
    • there's one post Crawford case that didn’t do a Crawford analysis
    • also looked at surveillance videos: not hearsay because not a statement, no attempt at communication
    • are often used for foundation.
      • Two forms of foundation: (1) photographer who is called to the witness stand, with the objective of putting the photo in front of the jury. One form of foundation is to ask the photographer represents the scene as he saw it; he responds whether it is a fair and accurate representation of the scene as he saw it. the photograph is conceptually similar to the witness drawing a map on the blackboard. The source of authority is thought to be the witness, not the photograph. (2) authenticate the process by which the photograph is taken. With the 7-11 surveillance camera, the foundation won’t be the witness saying, this is what I saw, but rather, this is how the camera works. (chain of custody)
  • Unrelated Prior Trial testimony
    • someone has testified at the previous trial, but there wasn’t an opportunity for CE, because that wasn’t the main issue
  • Entering the crime scene and interviewing witnesses
    • some courts have analogized to interrogation
    • most courts focused on the fact that it was fairly informal, and the witnesses didn’t plan for their statements to be used to prosecute
  • Warrants of Deportation
    • three circuits have found to be non testimonial
    • are being used to show that D left the country.
    • Are like business records, and not produced in anticipation of litigation
  • Email
    • we see it in military cases
    • sometimes come in as business documents, but at least one court said they’re not routine
    • Other cases of interest
      • Purvis v. State, 829 N.E.2d 572: hearsay exception for out of court statements by a child
      • United States v. Bacanovic, 2006 U.S. App. LEXIS 271. Stewart contends that Bacanovic's statements in interviews conducted by representatives of the SEC, U.S. Attorney's Office, and FBI, as well as his taped sworn testimony before the SEC, are the type of statements that Crawford bars in the absence of an opportunity for cross-examination. Bacanovic asserts the same argument with respect to statements made by Stewart during the course [*35] of the February 4th and April 10th interviews. Defendants further contend that there is no ground on which to except the challenged statements from this requirement because they are "testimonial" under Crawford and because the statements of each of them were offered for the truth of the matter asserted as probative of the other's guilt.

Hearsay, Cross Examining, generally

  • is articulated in specifics, and then has a catchall.
  • The art of CE: when you ask a question, you have to respect your art. Focus the witness on it. make the witness answer that question.
  • Don’t let the witness see where you’re going
  • After Crawford, is it germane to the question of hearsay whether the W is available or not?
    • Some of the exceptions to the hearsay rule depend on the availability of the witness
  • If you can find a non-hearsay use for a statement, that non-hearsay use is going to carry the thing into evidence except in extreme circumstances, and the instruction will paper over the problem

Problems

  • Arsenic
    • no problem if salesman testifies that he sold the rat poison
    • definitely problem if S’s sister testifies that he told her he did that
  • Murder at the Bistro
    • a written statement is undeniably testimonial; so it seems that a statement to a police officer is also testimonial
      • therefore, it’s a confrontation problem
    • If it was dying declaration, not clear how would be treated post-Crawford. Scalia prob would recognize b/c this was exception at time of founders
  • Murder in Ajax. How to cross-examine.
    • isn’t it possible that the body fell from the roof?
    • You turned around when you heard a scream? Did you see anyone get pushed?
    • The problem with this witness is about the amount of time that happens between seeing the body and seeing the face in the window. You want as much time to go by as possible. Thinking in human nature terms, realize that people don’t easily look away from the body.
      • Was the body face down or face up? Was the skirt fluttering? Did you see it hit the ground? All of these Q’s put the eyes on the body and not on the window
  • Letter from Claire to David
    • Pretty far stretch to see this as testimonial
      • Is it being offered for the truth of the matter asserted?
      • The factual assertion is that he’s the father of the child, but P has already shown no child, so it’s more likely to show a motive.
      • A suicide note written to David? An attempt to implicate David? Motive for David?
  • Speaking Out
    • “I can speak.” A statement that on it’s face looks like an out of court statement offered for its truth, but the evidentiary value of the statement isn’t coming from the truth assertion, but rather the fact of it’s existence.

Looking at problematic aspect of 801(c)

  • doctor and wife come home to find house being robbed. He calls out to her, saying that he’s been stabbed and needs to get to the emergency room. He drives to the hospital. On the way, he sees a guy running by the road and runs him down. Then he dies. P wants to offer evidence from Marge that they ran the man down. Admissible?
  • Relevance
    • We must assume some perception and action on the doctor’s part that relates the guy he’s running over to the guy who robbed him.
  • Hearsay
    • Dying declaration? (this is the guy who killed me and i want to run him down). but he doesn’t know that he’s going to die.
    • Unclear whether he intended to point out the guy by running him down
    • If he intended to hit the guy, was that an assertion?
      • This is like the umbrella problem; he wasn’t trying to communicate anything
      • The action can be intentional, but not intended to send a message
  • He wasn’t making a mark on him for later identification
    • Non-verbal conduct intended to send a message vs. non-verbal conduct from which we can draw inferences
  • Who decides the doctor’s intent when running over the guy?
    • The judge. This depends on a factual assessment of the circumstances under which the statement was made.
  • What if the doctor says to his wife, that’s the robber! And then runs him over
    • In classic terms, that’s a hearsay statement, so it’s excluded for the purpose of asserting its truth
    • But we have an ambiguity, having admitted the fact that he turned the wheel was relevant, then we don’t know whether he turned the wheel to send a message or accidentally; this statement will be admitted for the non-hearsay purpose of showing whether his tu8rning of the wheel was intentional
      • The D atty can get an instruction, which no-one will understand
    • Turning the wheel isn’t another assertion; he already sent his message with words, he doesn’t need to communicate any more
  • What if the doctor said some super prejudicial things before turning the wheel?
    • Rule 403 would give the judge license to exclude relevant evidence if it’s too prejudicial
    • Can also deal with it through redaction
  • Potential for tail wagging the dog

Rodney King

Police start chasing King. High speed night chase through LA.

P’s case

  • First officer on the scene, who sees King being struck, but photos don’t reflect that.
  • Emergency room nurse who overheard a conversation where Powell said to King, “we played a little ball tonight didn’t we?” “I don’t know what you mean” “We played a little hardball tonight, do you remember who was playing?” “I guess so” “we won and you lost, or something to that effect”
  • Another emergency room nurse, Powell: “It’s a good thing i’m not going to the game; i woudn’t want you to be my ushers.” He later made a comment that he asked Mr. King if he remembered the game that they played that night. “Did you see the game we played tonight?” “I don’t know” “Oh come on, don’t you remember, we had a pretty good hardball game tonight.” He didn’t realize what they were talking about. “Don’t you remember that hardball game, we hit a few home runs.” “Oh yes, I remember, you did have a pretty good ball game tonight.”
  • Powell’s messeges sent on the computer in the car: “Oops” “What?”
    • “I haven’t beaten anyone this bad in a long time”
    • “just beat and tased… big time”
  • Powell makes call to hospital laughing while describing the wounds
  • P then turned to King’s injuries. Doctor testified that King required more than 20 stitches.


Hearsay problems?

  • statements offered and admitted that Powell and Koons made: No problems, because there is an exclusion to the hearsay rule for statements of the party opponent. In this case, the state is one party, and the party opponents are the Defendants. Any statements made by D, if relevant, are admissible. This is not an exception; rather, it’s an exclusion. This isn’t hearsay.
    • Why? The problem with hearsay is the unavailability of W’s testimonial capacities for purposes of testing. The D is considered to be someone empowered by the procedure to take the stand, if D wants, and explain any statement. B/c D can testify, then statements made by D aren’t subject to hearsay problems.
    • Statement by party opponent rule so strong that they're often admitted no matter what (expert statements when not an expert, if didn't know was making the statement, etc)
  • Nurse's testimony: King's statements are admitted to explain why the officer kept talking
    • like the res gestae admission. when you have two sides to a conversation, and the other side is admissible, the other side becomes admissible -- not for its truth, but to give context
  • Officer testifying about messages going back and forth. P says they're introduced to show state of mind. That's a bit misleading, since he's a party opponent. But if not a party opponent, there's a state of mind exception, since you can stop at the state of mind without worrying about memory and perception


Other notes

  • P didn’t call Rodney King. They have their reasons, but they don’t seem to be good reasons.
    • Protecting from impeachment


D’s Case

  • state of mind when seeing this buffed out person? “My initial state of mind is that he was an ex con”
  • I ordered her to step back, because you don’t inject a gun into a situation with an uncontrolled D
  • Next thing I saw, Powell was thrown off and officer Brecino landed on his behind
  • Did you say anything before you tased him? Yes: I ordered him to get down.
  • “PCP is a policeman’s nightmare. They exhibit superstrength. They equate it with a monster”
    • let in on state of mind
    • scared that he’s still getting up after being hit multiple times
  • “this was a managed and controlled use of force”
  • “sometimes police work is brutal. That’s just a fact of life.”
  • Koons referrs to the standards and policies of the LAPD, and claims his officers were using minimum force according to the guidelines.


At the time, there were three levels of force when arresting an LAPD suspect:

  • force with a cooperative suspect: can’t hit, choke, shoot
  • force with an uncooperative suspect, but not posing a deadly threat: baton, in a non-deadly manner (hit below the head; baton to the head = considered lethal)
  • force with a suspect posing a threat of deadly force: choke-hold, baton to the head and shooting
  • the guidelines further specify that the objective of the appliation of force = to bring difficult to control arrestees into “compliance mode” (lying down, face own, hands behind your back)
    • if he’s moving toward compliance, you must desist violence


Expert testimony

  • Duke dissects the case, testifying that the blows and kicks as direct reactions to aggressive moves made by King
  • If you allow the suspect to rise to his feet, you allow the potential escalation into deadly force
  • P challenges expert’s conclusions
    • when you saw this tape, did you think that it showed excessive force? “I never form an opinion until I see all the facts… No”
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