introduction to hearsay exceptions - uc hastings to hearsay exceptions ... the judge is not limited...
TRANSCRIPT
![Page 1: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/1.jpg)
1
Introduction to hearsay exceptions
Conventional wisdom (Wigmore):
For each exception, there is a justification based on
trustworthiness and necessity.
![Page 2: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/2.jpg)
2
My standard questions:
1. What’s the justification for this exception?
2. What does it add to the other exceptions?
3. If the case is not a federal rules case:
How would this case be decided under the Federal Rules of Evidence?
4. If the cognate California rule is assigned:
How does the California rule differ from the federal rule?
![Page 3: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/3.jpg)
3
In answering the hypothetical questions that follow,
please apply the hearsay exceptions in the Federal
Rules of Evidence.
![Page 4: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/4.jpg)
4
Example. A law professor was driving down a ramp
leading to the freeway. He slowed down and was rear-
ended by a tractor-trailer. The other driver got out and yelled
“You idiot, you stopped right in the middle of the highway!”
Offered to show the professor’s negligence, his statement
would be --
Not h
ears
ay
Hea
rsay
, but a
dmis
sible
Inad
mis
sible
7% 7%
86%
1. Not hearsay
2. Hearsay, but admissible
3. Inadmissible
![Page 5: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/5.jpg)
5
Suppose that immediately after the collision the truck driver
said in a serene if condescending tone, “Professor, you
must have been cogitating about a profound issue, because
you came to a rather abrupt halt.” Offered to show the
professor’s negligence, his statement would be --
Not h
ears
ay
Hea
rsay
, but a
...
Inad
mis
sible
0%
47%53%
1. Not hearsay
2. Hearsay, but admissible
3. Inadmissible
![Page 6: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/6.jpg)
6
Suppose that the truck driver waited until a half hour after
the accident and then said serenely, “Professor, you came to
an abrupt halt.” Offered to show negligence, his statement
would be --
Not h
ears
ay
Hea
rsay
, but a
...
Inad
mis
sible
3%
97%
0%
1. Not hearsay
2. Hearsay, but admissible
3. Inadmissible
![Page 7: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/7.jpg)
7
Suppose that the truck driver had been severely injured in
the accident. Half an hour after the accident, still writhing in
pain, he excitedly told a paramedic, “Oh my God, that guy
stopped all of a sudden in the middle of the road!” Offered to
show the other driver’s negligence, his statement would be
--
Not h
ears
ay
Hea
rsay
, but a
...
Inad
mis
sible
0%
24%
76%
1. Not hearsay
2. Hearsay, but admissible
3. Inadmissible
![Page 8: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/8.jpg)
9
Comparison of foundation facts
There is no excitement requirement for a present sense
impression and no immediacy requirement for an
excited utterance.
![Page 9: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/9.jpg)
10
Why is the excited utterance considered trustworthy?
Wigmore quote, p. 222.
![Page 10: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/10.jpg)
11
Can it be argued that excited utterances are not
trustworthy?
![Page 11: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/11.jpg)
12
Hearsay dangers involved with excited utterances
Sincerity danger – probably reduced
Perception and judgment dangers –probably
increased.
See Hutchins & Schlesinger excerpt, pp. 223-24.
![Page 12: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/12.jpg)
13
Adv. Comm. Note to FRE 803(2):
“While the theory of Exception (2) has been criticized on
the ground that excitement impairs accuracy of
observation as well as eliminating conscious fabrication,
Hutchins and Slesinger . . . 29 Colum. L. Rev. 432
(1928), it finds support in cases without number.”
![Page 13: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/13.jpg)
14
What is the trustworthiness justification for the present
sense impression exception?
![Page 14: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/14.jpg)
15
See Hutchins & Schlesinger (1928) on p. 284, advocating
the recognition of such an exception:
“With emotion absent, speed present, and the
person who heard the declaration on hand to
be cross-examined, we appear to have an ideal
exception to the hearsay rule.”
![Page 15: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/15.jpg)
16
Hypo. A law professor finds that someone parked in his
reserved parking space. He flies into a rage. . An hour later,
while still under the stress of excitement, he exclaims: “Oh
my God, somebody took my parking spot!” His statement is
offered in court to prove its truth. It is --
Adm
issi
ble a
s a
prese.
.
Adm
issi
ble a
s an
exc
i...
Both
Nei
ther
3%
53%
13%
31%
1. Admissible as a present
sense impression
2. Admissible as an excited
utterance
3. Both
4. Neither
![Page 16: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/16.jpg)
17
803(2) foundation facts
--Startling event
--Related statement
--Excitement
![Page 17: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/17.jpg)
18
Truck Ins. Exchange v. Michling, p. 285
Supreme Court of Texas, 1963
Why did the Texas court hold that the evidence was not
admissible?
![Page 18: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/18.jpg)
19
In the Michling case, one of the declarant’s statements was
“my head is hurting me terribly.” Under the Federal Rules of
Evidence, this statement would have been --
Adm
issi
ble a
s a
pres...
Inad
mis
sible
56%44%
1. Admissible as a present
sense impression
2. Inadmissible
![Page 19: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/19.jpg)
20
The declarant also said “I hit my head on the bulldozer.”
Assume he seemed excited, but there was no independent
evidence that he hit his head on the bulldozer. Applying the
federal rules to the facts of Michling, this “bulldozer”
statement would be --
Adm
issi
ble a
s ...
Adm
issi
ble a
s ...
Both
of t
he ab
...
Inad
mis
sible
, ...
0%
59%
3%
38%
1. Admissible as a present
sense impression
2. Admissible as an excited
utterance
3. Both of the above.
4. Inadmissible, because
there is no independent
evidence of a startling
event.
![Page 20: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/20.jpg)
21
Advisory Committee Note on Rule 803(2):
“ Whether proof of the startling event may be made by
the statement itself is largely an academic question . . . .
Nevertheless, on occasion the only evidence may be the
content of the statement itself, and rulings that it may be
sufficient are described as ‘increasing,’ . . . and as the
"prevailing practice" . . . . Moreover, under Rule 104(a)
the judge is not limited by the hearsay rule in passing
upon preliminary questions of fact.” [citations
omitted.]
•
![Page 21: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/21.jpg)
22
Lira v. Albert Einstein Medical Center, p. 287
Superior Court of Pennsylvania, 1989
Why didn’t the excited utterance exception apply?
![Page 22: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/22.jpg)
23
Why didn’t the present sense impression exception apply?
![Page 23: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/23.jpg)
24
Lira on present sense impression:
“Here, the evidence failed to establish that the
declaration of Dr. Silberman, a throat specialist, was
‘instinctive, rather than deliberative -- in short, the reflex
product of immediate sensual impressions, unaided by
retrospective mental action.’ * * *
![Page 24: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/24.jpg)
25
Fed. R. Evid. 803(1)(restyled) is a hearsay exception for “a
statement describing or explaining an event or condition
made while or immediately after the declarant perceived it.”
Does a statement have to be “instinctive, rather than
deliberate” in order to qualify for admission under Fed. R.
Evid. 803(1)?
Yes
. N
o.
It d
epen
ds.
18%27%
55%1. Yes.
2. No.
3. It depends.
Example: Mom calling to ask who’s there.
![Page 25: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/25.jpg)
26
Lira’s alternate ground for decision (p. 289):
“To permit a physician's extrajudicial statement of
medical opinion . . . to be received in evidence would
run afoul not only of the hearsay exclusion but also of
the rule which holds that expressions of medical opinion
are generally inadmissible unless the physician
expressing the opinion is available for cross-
examination.”
![Page 26: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/26.jpg)
27
State v. Jones, p. 289
Court of Appeals of Maryland, 1987
![Page 27: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/27.jpg)
28
Out of the presence of the jury, Trooper Byrd testified that he heard the following transmissions:
1st Speaker: Look at Smokey Bear southbound with no lights on at a high rate of speed.
2nd Speaker: Look at that little car trying to catch up with him.
p. 231
![Page 28: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/28.jpg)
29
Suppose that instead, Trooper Byrd had testified that he
heard a transmission saying “Back at exit 2, Smokey Bear
going at a high rate of speed with no lights on.” Would that
testimony have been admissible as a present sense
impression?
1. Yes.
2. No.
![Page 29: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/29.jpg)
30
Which version presents the better case for admission,
Trooper Byrd’s testimony on p. 291, or his testimony in the
indented paragraph on p. 292?
1. p. 291
2. p. 292.
3. No difference.
![Page 30: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/30.jpg)
31
State v. Jones under California Law
![Page 31: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/31.jpg)
32
CEC § 1240. Spontaneous statement
Evidence of a statement is not made inadmissible by the hearsay
rule if the statement:
(a) Purports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and
(b) Was made spontaneously while the declarant was under the
stress of excitement caused by such perception.
Q. Would Trooper Byrd’s testimony about what he heard in
the CB transmissions be admissible under this section?
1. Yes
2. No
3. It depends
![Page 32: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/32.jpg)
33
CEC § 1241. Contemporaneous statement
Evidence of a statement is not made inadmissible by the hearsay
rule if the statement:
(a) Is offered to explain, qualify, or make understandable conduct
of the declarant; and
(b) Was made while the declarant was engaged in such conduct.
Q. Would Trooper Byrd’s testimony about what he heard in
the CB transmissions be admissible under this section?
1. Yes
2. No
3. It depends
![Page 33: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/33.jpg)
34
Question 1, p. 295
“Oh my God! Help me! That red car hit me while I was in
the crosswalk.”
The evidence is --
1. Admissible
2. Inadmissible
![Page 34: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/34.jpg)
35
Question 2, p. 295.
“That lady was hit by a blue car which didn’t stop and she
was thrown up in the air and landed on the red car.”
The evidence is --
1. Admissible
2. Inadmissible
(Consider whether an objection could be made if the declarant had been called as a
live witness and had testified as above without first testifying he saw the accident.) ACN, P. 1183 OF 12TH Ed.))
![Page 35: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/35.jpg)
36
Question 3, p. 295. Eight weeks after an assault that
caused brain damage to the victim, the victim’s sister
showed her a news article containing a picture of the
accused. In great distress, the victim pointed to the picture
and said, “He killed me, he killed me.”
The evidence is --
1. Admissible
2. Inadmissible
![Page 36: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/36.jpg)
38
Hypo. D was driving a car involved in a serious auto
accident. Weeks later, D encountered the other driver.
Extremely excited, D exclaimed: “you ran a red light, that’s
why it happened!” D disappears and his statement is offered
in evidence to prove the truth of the matter asserted.
The evidence is --
1. Admissible
2. Inadmissible
![Page 37: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/37.jpg)
39
Question 4, p. 295.
Declarant says over the CB radio, “I saw 2 men walking
away from the truck.” The two men were arrested five miles
away from the truck, a few minutes after declarant’s
statement.
The evidence is --
1. Admissible
2. Inadmissible
![Page 38: Introduction to hearsay exceptions - UC Hastings to hearsay exceptions ... the judge is not limited by the hearsay rule in passing upon preliminary questions of fact.” [citations](https://reader034.vdocuments.site/reader034/viewer/2022050918/5b1df5bc7f8b9a7e6d8b8b4a/html5/thumbnails/38.jpg)
40
The end.