Cj305 legal foundations of criminal evidence
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CJ305: Legal Foundations of Criminal Evidence. Welcome to Unit 4! Instructor: K. Austin Zimmer, J.D. Make sure you adjust your speakers and audio settings on your computer so you can hear the music. Any questions???. Hearsay – A definition.

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Cj305 legal foundations of criminal evidence
CJ305: Legal Foundations of Criminal Evidence

Welcome to Unit 4!

Instructor: K. Austin Zimmer, J.D.

Make sure you adjust your speakers and audio settings on your computer so you can hear the music.

Hearsay a definition
Hearsay – A definition

  • In simplest terms, hearsay evidence is based on something a witness has heard someone else say rather than on what the witness has personally seen or experienced.

Hearsay according to fre
Hearsay – According to FRE

  • “A statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.”

What is a statement
What is a statement?

  • Remember a statement is not limited to spoken words or conduct. A statement may also be information written or typed by the declarant, such as information in letters, notes, or other documents.

Not hearsay
Not hearsay

  • Anytime a statement is offered for a reason other than to prove the truth of the statement, it is by definition non-hearsay and admissible if relevant.


    • Sometimes the fact that a person spoke is relevant, even though the content of the statement is not.

Exceptions and exceptions
Exceptions and Exceptions

  • These exceptions and exemptions are the result of custom, tradition, or necessity.

Where they can be found
Where they can be found-

  • FRE 803 and 804 contain the exceptions to the hearsay rule and 801(d) contains the exemptions from the rule.

Hearsay exceptions
Hearsay Exceptions

(1) dying declarations

(2) spontaneous declarations,

(3) state of mind

(4) statements for purposes of medical diagnosis or treatment

(5) former testimony

Exceptions con t
Exceptions con’t

(6) business records

(7) family history or pedigree

(8) past memory recorded

(9) prior statements of witnesses

(10) admissions and confessions

(11) declarations against interest

Hearsay exemptions under 801 d
Hearsay Exemptions under 801(d)

They fall into two categories:

  • Certain kinds of prior statements of a witness

  • Admissions by a party opponent

Types of prior statements
Types of Prior Statements

There are three types of prior statements by witnesses:

  • Prior inconsistent statements

  • Prior consistent statements

  • Prior identification statements

Prior inconsistent statements
Prior Inconsistent Statements

  • Statements by the witness that contradict the witness's current in-court testimony.

Prior consistent statements
Prior Consistent Statements

  • Statements made previously that are consistent with the present testimony of the witness. Under the FRE, they are only admissible to rebut a charge of recent fabrication, improper influence, or motive.

Statement of prior identification
Statement of Prior Identification

  • Statements made out-of-court identifying a person made after the declarant has seen that person.

Dying declaration requirements
Dying Declaration Requirements

  • The declarant must be unavailable.

  • The trial must be either a prosecution for homicide or any civil action.

  • The statement must be made while the declarant believes that death is imminent.

  • The statement must concern the cause or circumstances of what the declarant believed to be impending death.

Excited utterance
Excited Utterance

To be admissible under the excited utterance exception to the hearsay rule, the utterance:

(1) must relate to a startling event

(2) must have been made while the declarant was under the stress of excitement caused by the event

State of mind
State of Mind

  • Statements falling within the exception are generally considered reliable because the declarant is deemed to be the best commentator on his or her own state of mind.

  • Reliability is furthered because, since the statement is limited to the then-existing state of mind of the declarant, there is reduced danger of untruthfulness, at least with respect to memory.

Statement for purpose of medical diagnosis
Statement for Purpose of Medical Diagnosis

Thus, statements for purposes of medical diagnosis are admissible under FRE 803(4) if the statements:

(1) are made for purposes of medical diagnosis or treatment

(2) are made by the patient or someone speaking on his or her behalf

(3) are made to a doctor or other medical person

(4) describe medical history, pain, symptoms, or causes (but not attributing fault) thereof

(5) are reasonably pertinent to the diagnosis or treatment

Business record exception
Business Record Exception

Both the common law rule and FRE 803(6) require that the business record must be identified as one:

(1) made at or near the time of the event

(2) by, or from information transmitted by, a person with knowledge

(3) made in the regular course of business

(4) kept in the course of regularly conducted business activity

Next week is midterm week
Next Week is Midterm Week!

  • No seminar!

  • Any questions?