Expert testimony…

Studying the rules of evidence is one thing, applying them in the real world is another. Law students and lawyers read the rules and memorize the rules until they can cite them in their sleep, yet we still fail to utilize them appropriately while in the middle of a hearing or trial.

This failure isn’t incompetence.  After all, a single attorney, in the middle of a trial, has thousands of things to keep track of; which witnesses to call, what to ask them, what is unfolding while they are on the stand, how to respond to what is unfolding, what the jury seems to be responding to, how to get the elements of their claim or defense met, not to mention the unending creativity required to bring the information they need out of witnesses who, while well prepared off the stand, are dealing with their own mess of nerves on it.

It’s like herding cats through a sea of herring while insuring none of them eat anything.

One of the things a lawyer can do to really help their case is rely on expert witnesses. Experts should have fewer nerve induced memory lapses while testifying simply because they have likely spent time testifying before. They can be very powerful tool, this  a professional witness, someone who doesn’t lose the thread of their testimony under the pressure of trial.

My first trial taught me the value of experts. I was still trying to figure out my theme the first time I interviewed him. He was the treating psychiatrist for my client, who was an abused child. He said, during our interview, that the opportunity to help children is a perishable one. BOOM! It was instantly clear to me that this was exactly what I needed to get the factfinder to understand. We needed to help this child and now was the time.  I told him that I would like him to remember his statement for the trial, and I used it in my opening and my closing. He used it during his testimony.

Taking the time to prepare your expert witness can help you turn their testimony into a strong and compelling part of your case.

The rules that govern the admission of expert testimony are C.R.E. 702-705:

RULE 702 Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

RULE 702 in plain english: 

A qualified expert can give their opinion about a fact in your case if that fact falls outside the realm of knowledge held by everyday people.  For example: In a divorce involving issues of Domestic Violence, having an expert testify as to the power and control cycle may help the judge understand why the parties behave in a certain way.

In order to qualify that person as an expert you have to show that they have expertise in the area. This is accomplished in a few different ways. First, you and the opposing party can exchange information about your proposed experts and can stipulate to their qualification. If that doesn’t happen, you can offer your witness as an expert after you run through the list of what makes them an expert during the beginning of their direct examination.

Experts fall into many categories. We often think of them as Doctors or other specialists with a long line of degrees behind their names. While Doctors can be experts, expertise can also arise from experience.

For example, an officer who isn’t trained to be an expert in alcohol abuse can probably testify as an expert on drunkenness because he has seen a lot of drunk people during his career. He knows what they look/smell/sound like, how they talk, how they walk, etc. He can testify as to whether or not the person in question was drunk, even without a specific education in alcohol abuse.

A teacher could testify as to whether or not a home school mom’s lesson plan deviated from the required standards because that teacher has developed lesson plans that meet those standards.

The longer someone has done something improves the amount of weight their testimony can be given, especially in cases of experience based expertise. However, education based experts don’t have to have been working in their area of expertise particularly long in order to qualify.

RULE 703 Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert¹s opinion substantially outweighs their prejudicial effect.

Rule 703 in plain English: 

The expert can testify as to her opinion based on the facts available to the fact finder and some facts or information that is not available to the fact finder, including facts that would be inadmissible. The expert can’t reveal those inadmissible facts during their testimony.

This restriction, that of being able to rely on inadmissible evidence in forming an opinion but not being able to disclose it to the jury, allows experts to consider what they need to consider without letting attorneys use them as a way to get inadmissible evidence in to trial.

RULE 704 Opinion on Ultimate Issue

(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

RULE 704 in plain English: 

An expert can speak as to their opinion, even if doing so results in them testifying as to the ultimate issue before the Court. However, the expert can’t testify as to the defendant’s mental state regarding the commission of a crime.

For example: A doctor could testify that the strenuous activity performed at work by the plaintiff’s dead husband could have resulted in his death, but a doctor can’t testify that the defendant intended to hurt his victim.

RULE 705 Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Rule 705 in plain English: 

The expert might have to tell the Court what facts she relied upon in making her opinion, either at the Court’s request or during cross-examination.

The Daubert Trilogy: 

Three cases have created the standard of review and criteria for expert witness testimony. These cases are Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999).

Daubert established criteria for scientific experts, General Electric added an abuse of discretion standard for appellate courts to follow when reviewing lower court’s decisions regarding the admission of scientific expert testimony, and Kumho expanded the Daubert ruling to include nonscientific experts as well. Kumho also stated that the Daubert criteria were not an exhaustive list of criteria for expert witnesses so much as it set forth examples.

So, what are the Daubert Trilogy criteria?

(Remember, these are not exhaustive.)

To begin with we have the question of reliability. Is the information being presented to the court by the expert reliable? In order to determine this the person offering the expert must show that the theory or technique been empirically tested.

The second factor requires a showing that the expert’s theory has been subjected to peer review and publication. This means people with a similar degree of expertise have reviewed the theory and found it valid.

Thirdly, the rate of error and the existence of standards of control regarding the theory should be considered. (This is easier for scientific evidence than it is non-scientific evidence.)

Fourth,  that the methods and techniques are generally accepted by peers within their industry. Generally accepted means a significant portion of other people who work in your expert’s area of expertise also follow the standard/technique/theory she is presenting.

In departing from the Frye standard, the Supreme Court clearly wanted a more careful analysis of expert witness testimony than simply determining if the theory is generally accepted. The Daubert trilogy contains the “generally accepted” element within it, but it requires additional indicia of reliability. In other words, you have to show your expert’s testimony will help the fact finder resolve an issue before the court with information that is reliable, tested, and reviewed and accepted by others in the same field as your expert.

So there you have it! Your expert witness can be a great resource for you during your trial. They can help you pave the way for memorable testimony. They can help you establish the theme and theory of your case, and they can assist you in lending support to your position. In order to best utilize them, you should consider taking as much time working with your expert in preparation for trial as you do your other witnesses.

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4 Exceptions to Hearsay (803)

You are defending a Father accused of child abuse.  Social Services has brought a case against him based on the fact that he burned his son with coffee at breakfast one morning.  Social services has the evidence of the burn marks, the medical reports, and the reporting doctor’s statements.

Before you sits several out of court statements that you want to offer into evidence for their truth. (Meaning the relevance of the statement lies in the fact finder believing it.) These statements turn your client’s story from one of abusive father into a tale of accidental harm.  They not considered “not hearsay” under F.R.E. 801(d), so you have Hearsay statements  potentially barred by F.R.E. 802.  In order to best defend your client, you have to get these statements in.

There are underlying rules having to deal with competency that play into the introduction of witness testimony, but this article is only exploring the Hearsay exceptions. During my practice there have been an alarming number of times I have had clients tell me “I don’t have it in writing” as if that put an end to the potential admissibility of their experiences.

The things a person hears, tastes, smells, touches, see, can be admissible as evidence in the  courtroom. As a matter of fact, in reality, witness testimony makes up the majority of the evidence offered at a hearing or trial.  Further, even though a statement or conversation may be in writing, it doesn’t necessarily make it more reliable or less of a Hearsay problem than a verbal statement (unless it becomes an 801 exclusion.)

While you are analyzing your clients statements below, keep in mind two things:

To begin with, the primary reason we have so many exceptions to the Hearsay Rule:

There are circumstances indicating that the out-of-court statement is reliable, this eliminating to some extent the need for cross examination. (The statement has an “indicia of reliability”).

Also, keep in mind that Crawford v. Washington applies a stricter reading of the Confrontation Clause in criminal cases, causing some of these exception to require a higher level of scrutiny in order to meet the Defendant’s right to confront witnesses against him/her.  As you are defending this case, you will be arguing Crawford whenever there is potential Hearsay evidence from the other side. (While Dependency and Neglect cases in Colorado are not criminal in nature, the Defendant’s often get criminal level protections because of the seriousness of the potential results.)

You are reviewing your file and find the following:

Mom is sitting at the table eating breakfast with Son.  Dad walks into the room with his breakfast and coffee.  When he walks past Son, his coffee cup begins to tip. Mom says “Careful! That coffee is going to spill!” 

Mom is describing an event as it is happening.  She is witnessing the event as it occurs and commenting on it.

F.R.E. 803(1) Present Sense Impression

A present sense impression is a hearsay statement describing or explaining something as it is being experienced, or immediately following the experience.

Therefore Mom’s statement would likely be admissible to prove the coffee was going to spill.  This could be relevant to show that Dad was unaware of the spill, or at least potentially unaware of it, and that the spill was likely accidental, making it highly relevant to your defense.

Startled by Mom’s warning, Dad jerks a little, causing the coffee to spill out of his mug and onto Son’s head.  Son shouts “OUCH DAD! That coffee is really, really hot!”. 

Son’s statement was made while the startling event, being hit in the head with hot coffee, was occurring.

F.R.E. 803(2) Excited Utterance

An excited utterance is a spontaneous statement relating to a startling event. The statement has to be made while the speaker (the declarant) is under the stress or excitement of the event.

Therefore Son’s statement could be offered to prove both that the coffee was hot when it spilled, and that it hurt or caused him pain when it spilled.  This statement is likely going to be offered by the opposing side to show that Dad did spill the coffee on Son’s head, causing him harm.  You can choose to object using Hearsay, but given the circumstances you may just want to allow the statement in without causing an objection.  In making your determination, consider whether breaking up the flow of the story at that time of the hearing is really valuable to you or not. Also, consider whether you can question Dad or Son about the incident more effectively with this statement in.

“Damn” Dad says, “I’m sorry son, I didn’t mean to do that. Are you all right?” Dad said as he set his breakfast on the table and quickly checked Son out. “Oh no, I think you might be burned, let’s get you to the hospital.” 

Dad’s first statement indicates his intent at the time the coffee spilled.  He didn’t mean to spill the coffee on Son.  His second statement shows an intent to seek medical treatment for Son.

F.R.E. 803(3) Then existing mental, emotional, or physical condition.

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition. (Excepting statements of memory or belief, unless those are made regarding testamentary issues).  This exception can include statements made as to intent, plan, motive, design, mental feeling, pain, and bodily health.

Dad’s statements can be offered to show he didn’t intend to harm son, that the spill was accidental, and that Dad immediately intended to get medical help for Son.  Son’s statement of pain above can also be offered under this exception, as a statement of physical condition.

All three of these above exceptions have a recency in time element to them.  They must occur within specific time frames.

A present sense impression has to be made almost immediately after perceiving the event, or during it.

An excited utterance can be made later, so long as the stress of the event is still ongoing.  A favorite example for law professors is a coma patient whose coma was induced during a car accident.  If the patient wakes up six years later screaming “WATCH OUT! He’s going to run the light!” that statement can still be offered as an excited utterance.

The 803(3) exception has to be made concurrently enough with the experience that it is not a statement of memory or belief.  It has to relate to a present condition of some kind.

At the hospital, Son and Dad see the doctor.  When asked why they are there, Son responds with “My dad poured hot coffee all over my head.” Dad doesn’t reply.  Doctor examines Son, finds the burns, and reports potential child abuse. 

F.R.E. 803(4) Statements made for purpose of medical diagnosis

An out-of-court statement made to a medical provider for the purpose of receiving treatment.

Son’s statement can be offered into evidence under this exception because he made it to let the doctor know why they were in the hospital seeking medical care.  Dad’s silence can also be offered here, under the argument that anyone who hadn’t intentionally poured coffee down their child’s head would reply with some sort of objection to the phrasing of Son’s statement, such as “it was an accident.”

It is important to remember that the statements made during or immediately after events can be incredibly helpful in telling the full story surrounding your case.  While physical or tangible evidence is attractive, it shares many of the same reliability issues that Hearsay Statements do.  Further, letting your client tell their story can often allow the fact finder time to empathize and even identify with them.

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Evidence study guides

I have been thoroughly enjoying my foray into electronically stored information and the intersection between technology and the law.  I am thrilled to report I will be offering Evidence study guides online for students preparing for the BAR exam, in addition to E-Discovery, Data Mapping, and ESI study guides.

What are the particular rules you find the most boggling?

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Free CLE in your office!

Originally posted on Understanding ESI, E-Discovery, and Forensics:

1 Hr CLE Ad

Forensic Pursuit is pleased to announce that we are once again offering our one hour in-house CLE on E-Discovery and Computer Forensics.

Our experts will join your team in the comfort of your own conference room to offer our knowledge in the following areas:

  • E-discovery and Computer Forensics 
    • What’s the difference? 
  • Electronically stored information
    • CRCP Definitions 
    • Obligations to Preserve and Produce 
  • Preservation and legal hold formats
  • Locations of potentially relevant data
  • Legally defensible data preservation
  • Chain of Custody
  • Deleted Data and Slack Space
  • Securing the image
    • Bit-Stream Evidentiary Images 
    • Digital DNA – Image Verification and Original Evidence Preservation
    • Relevancy, Privacy, and Admissibility Issues 

Call us at 303-495-2082 or email to schedule your session today!

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Why is Data Mapping so important…and by the way, what is it?

Misty Ewegen:

A peek into Legal Ethics and E-Discovery.

Originally posted on Understanding ESI, E-Discovery, and Forensics:

By Misty Ewegen and Henry Berman

Discovery is, under the Federal Rules of Civil Procedure, intended to be a transparent process.  Brown v. Tellermate Holdings, Ltd., No. 2:11-cv-1122, 2014 WL 2987051 (S.D. Ohio July 1, 2014).

The Tellermate decision is a compelling read for one very simple reason; rarely do we see such a lurid combination of ignorance and obfuscation during the discovery process.  Tellermate is rife with examples of actions by both client and counsel that were either based on a true lack of understanding about the data sources involved or downright illegal.
Over the past decade the judiciary has issued opinions clearly stating that an attorney’s inability or unwillingness to catch up with technology is an ethical violation.  In order to be competent practitioners of the law, attorneys have to understand the tools our clients use.  Tellermate serves as an example of numerous issues that arise in…

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Hearsay: Statements which are not hearsay 801(d)(1) and (2).

Hearsay is a complicated area of evidence. In order to understand hearsay and use it appropriately in court you must know three things: What it hearsay, what are the exceptions to hearsay, and what isn’t hearsay (a.k.a. Non-Hearsayor Not-Hearsay).  F.R.E.801(d)(1) contends with statements which are considered Not-Hearsay.

Remember, hearsay is an out of court statement offered for it’s truth and is excluded because we don’t consider it reliable.

You may be asking yourself why we have any exceptions to the hearsay rule if we prohibit the admission of hearsay because it is unreliable? Answering that question gives us an interesting glimpse of our societal mores and morays.  While we are aware of the inherent risk of reliability in the “Telephone” game that is a hearsay statement, as a society we have determined that there are certain circumstances when that out-of-court statement is more reliable than not, thus eliminating to some extent the risk of unreliability and the need for cross examination.

So let’s take a look at some of the instances in which an out of court statement made by a declarant is more reliable than not. Under F.R.E. 801(d)1 a statement is not hearsay if it is a prior statement by a given witness. Of course this is evidence, so it can’t simply be any statement given by a witness.  Here are the elements:

  1. If the declarant (remember, in hearsay instances the declarant is the person who made the out of court statement being offered into evidence.) has testified at the trial or hearing and;
  2. The declarant was subject to cross-examination concerning the statement at the time the statement was made, and;
  3. the statement is:  inconsistent or consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or;
  4. the statement is one of identification of a person the declarant made after perceiving that person.

So 801(d)(1) identifies three categories of prior statements made by witnesses that are simply “not hearsay”: 1. Statements consistent with the statement the witness is making in court, 2. Statements inconsistent with the statement the witness is making in court, and 3. statements made by the witness that identified someone.  In order for these statements to be considered not hearsay the declarant must be testifying at trial and subject to cross examination when the out of court statement is being offered.

One of the reasons this “not hearsay” treatment for these inconsistent statements is confusing is because the statements themselves aren’t hearsay if used for impeachment purposes.  Remember, out of court statements are only hearsay if they are offered for their truth, if you are dealing with a prior inconsistent statement being offered only to impeach the witness, then it’s truth is irrelevant.  801(d)(1) permits the use of prior inconsistent statements for their truth if the statement was given under oath subject to penalties at a trial, hearing or deposition.

Okay, what does that mean, it can be offered for it’s truth instead of just impeachment?  For example:

At deposition:

Q: What color was the light?

A. It was red.

At trial:

Q: You testified the light was green.

A. Yes.

Q. You gave a deposition in this case?

A. Yes.

Q. At that deposition you testified the light was red.

Objection! Hearsay.

It’s a prior inconsistent statement under 801(d)(1)(A) your honor.

Overruled. The witness may answer.

A. Yes. I did.

Okay yes, you impeached your witness, now the jury sees they made two statements at different times. Bad witness, shame on you! Under impeachment rules, that is all you get to do, but under 801(d)(1)(A), because her statement was made under oath at a deposition, you can introduce it to prove the light was red.

F.R.E. 801(d)(1)(B) prior consistent statements can be used to rehabilitate a witness once they have been impeached, without triggering any hearsay concerns. Again, these prior consistent statements have to have been made at a trial, hearing, or deposition and have to have been made under oath and subject to cross examination.

F.R.E. 801(d)(1)(C) permits the use of prior statements of identification.  These statements of identification do not have to be made in court under oath, because with identification statements we, as a society, believe statements made while perceiving someone are generally more reliable than statements made while pointing to the defendant in a courtroom.

Looking around the court room today do you see the woman who stabbed you?

Why yes I do Prosecutor, she is sitting at the table marked “Defendant.”

For truth finding purposes that statement of identification is much less useful than one made at the scene.

Help! Call the police, that blonde woman with the huge wart on her nose just stabbed me!

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Now moving on to the next type of “not hearsay” statements.  801(d)(2) handles admissions by party opponents, those out of court statements made by parties to the case and offered against them at trial. It is one of the largest hearsay loopholes and allows the court to consider virtually anything a party has ever said or communicated in any way, so long as it is sought to be used against them at trial.  The reasons we allow these admissions into evidence is two-fold, from a policy standpoint it makes sense to make people accountable to their own statements, promises, etc.  Secondly, the risks inherent in hearsay statements, that “Telephone” concern, are reduced greatly by the fact that the person making the statement, or adopting the statement,  is in the courtroom and a party to the case. If the statement was false when it was made or was made outside the party’s control or permission, then the party can explain that in court when the statement is offered.

The rule has two initial elements: 1. it requires that the declarant be a party to the case and 2. it requires that the statement be offered against that party. Once those two elements are met, then the following five types of admissions are considered “not hearsay”:

  1. the party’s statement in either an individual or a representative capacity or;
  2. a statement of which the party has manifested his adoption or belief in its truth; or;
  3. a statement by a person authorized by the party to make a statement concerning the subject or;
  4. a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or;
  5. a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

Each of these five types of admissions are established by the connection between the person who made the statement and the person that statement is offered against at trial.

For 801(d)(2)(a) the statement has to have been made by the declarant and offered against the declarant. That is all that is required. The declarant didn’t have to belive the statement, be sober or able to think clearly, understand what was going on, etc.  All the declarant had to do was speak. As this rule also allows for representative statements things like blog posts, twitter posts, facebook posts, police reports signed by the declarant, insurance forms signed by the declarant, and more can fall into this category.

Defendants house burns down, the insurance agent writes out a statement on the claim form, describing the damage and the cause of the fire. Defendant reads the form, and then signs it in order to get his check.

The insurance statement can be offered into evidence for it’s truth without triggering any hearsay objections because the declarant signed it.

801(d)(2)(b) deals with adoptive admissions which are usually the declarant’s reaction to to a statement or action made by another person. This rule is almost an extension of 801(d)(2)(A) in that the declarant is being held to a belief or statement in which she expressed some sort of agreement, either expressly or by omission.  In this rule, silence can also be considered an admission.

A domestic violence victim is crying in front of the police saying “why did you hit me so hard?” The defendant says nothing.

The fact the defendant said nothing to defend himself in a situation where most people would be falling over backwards doing verbal gymnastics to convince the police it was an accident or they didn’t hit her can be used against him at trial, as an 801(d)(2)(A) admission.

801(d)(2)(C) handles statements made by those people who have been given express authority to make statements on behalf of the party.  A PR person is a good example here, or the spin doctor for a politician.

Congressman Smarm is being tried for perjury on the stand.  He stated clearly in court that he never smoked pot in his life.  The prosecutor offers against him  a statement his campaign manager made while campaigning for him in Boulder, Colorado. “Congressman Smarm may be a politician, but he understands the people.  He supports marijuana for medical reasons and likes to say he would enjoy supporting it once again for recreational ones.”

Because Congressman Smarm has expressly given his campaign manager the right to speak on his behalf, the Congressman can be held accountable for those statements as if they were his own. This is called “Express Authority”.

801(d)(2)(d) concerns itself with statements by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.  These statements come from people who have some sort of business relationship with the party, or agency relationship, and because of their role in the life or business of the party, one would take their statements about their role to be an expression of the party even though they are not expressly authorized to make that statement.

A truck driver gets into an accident and is found to be intoxicated. While at the scene he says “I shouldn’t have had that third beer before work.”

That statement can be offered against the employer to prove liability. It is considered “Apparent Authority”.

Finally, 801(d)(2)(e) deals with statements by a co-conspirator of a party during the course and in furtherance of the conspiracy. Here the co-conspirator’s statements may be offered against a party without evidence of authorization for the declarant to speak for that party so long as the Court has additional facts that prove the existence of a conspiracy and the Court considers the circumstances surrounding the statement.  Note that the statement had to have been made in furtherance of the conspiracy, so if the statement was made after the conspiracy was over, the admission would trigger hearsay objections.

Three law school buddies are sneaking into the library to tear all the relevant pages out of the statute books in the stacks.  After tearing out the pages in all the books in one part of the library, Student A and B are ready to leave, then Student C says “Wait, I see a bunch of statute books on the table in the study room, let’s make sure to get those pages out too.”

If the law students were tried for conversion, vandelism, or any myriad of other acts, Student C’s statements could be offered against A and B as proof that they were taking pages out of statute books in the library. (Be careful with whom you conspire.)

These prior statements and admissions are the first set of out of court statements that are not considered hearsay because they are considered less unreliable than other out of court statements.  F.R.E. 803 and 804 deal with hearsay exceptions.  Those rules express society’s belief as to under which circumstances we are more likely to tell the truth. These rules will be discussed in later articles.

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Sources for this Article include:

Evidence, Seventh Edition, Arthur Best

Prof. Karen Steinhauser’s Evidence Class, University of Denver Sturm College of Law

The Federal Rules of Evidence.

The Colorado Rules of Evidence.

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My law professor once said that Lawyers are the mages of the modern day because we use archaic language to draw forth the coersive powers of the State.

Most students of the law enter school believing they will be taught the secret language of the law and will emerge knowing how to understand the arcane Latin sounding rules only understood by other legal practitioners. Often, they find their education disappointing because many of the rules they encounter sound fairly intuitive and easy to understand, depending more on the reasonableness of the average person and less on powers of Latin interpretation.

The Hearsay Rule is not one of those intuitive rules. It is a much despised rule, one which has risen in the annals of legal scholarship to be as hated as the Rule against Perpetuities. So dust off your jackets and be prepared to learn some intricacies. On the upside, once you master this arcane and tricky little rule, you will be able to amaze your friends and astound your employers with your insight.

We will begin by discussing the rationale behind the Hearsay Rule and then will move into the rule itself.

Growing up there was a game we used to play called Telephone. In this game someone whispered a sentence into one persons ear, who passed the message to another, and another, etc. Whomever was at the end of the line got to relay the message and everyone would laugh at the difference between the final message and the original one.

Telephone adequately outlines part of the rationale for the Hearsay Rule. We are concerned with the manner in which information changes as it passes from person to person and as such we prefer to have the original speaker testifying in court, as opposed to someone who heard him speak.  We want to talk to the people who witness things first hand, to learn what they saw directly from them, and judge their countenance when they tell us what they saw.

Another basis for the Hearsay Rule is nicely displayed in the Trial of Sir Walter Raleigh, an infamous proceeding traditionally credited with launching the development of the Hearsay Rule and the Confrontation Clause. Raleigh was tried for treason, accused of engaging in a plot to remove James I from the throne and place Lady Arabella Stuart in his place. The primary witness against Raliegh, Cobham, had been interrogated in the Tower of London and swore a confession that he later recanted. Raleigh asked the court repeatedly to bring Cobham to him during trial that he may cross-examine him. His request was denied and though his life was on the line, all of Cobham’s statements were allowed in against Raleigh without Raleigh being given a chance to question him.

Sir Walter Raleigh:  I have already often urged the producing of my Lord Cobham, but it is still denied me.  I appeal now once more to your Lordships in this:  my Lord Cobham is the only one that hath accused me, for all the treasons urged upon me are by reflection from him.  It is now clear that he hath since retracted; therefore since his accusation is recalled by himself, let him now by word of mouth convict or condemn me.  Campion, the Jesuit, was not denied to have his accusers face to face.  And if that be true which hath been some labored all this day, that I have been the setter-on of my Lord Cobham, his instigator, and have infused these treasons upon him, as hath been said, then have I been the efficient cause of his destruction; all his honours, houses, lands, and good, and all he hath, are lost by me; against whom, then, should he seek revenge but upon me? and the world knoweth him as revengeful of nature as any man living.  Besides, a dying man is ever presumed to speak truth:  now Cobham is absolutely in the King’s mercy; to excuse me cannot avail him, by accusing me he may hope for favour.  It is you, then, Mr. Attorney, that should press his testimony, and I ought to fear his producing, ifall that be true which you have alleged.

The court’s admission of testimony against Mr. Raleigh without the production of the witnesses behind that testimony produced an uproar that many attribute to the creation of the Confrontation Clause and the Hearsay Rule.

So, now you know the thoughts behind Hearsay, so what the heck is it?

FRE 801 defines Hearsay as “an out-of-court statement, written or oral, which is offered to prove the truth of the matter asserted in the statement. As short-hand you will often hear “an out of court statement offered for it’s truth.”

Declarant: The person making the statement.

What are the three elements of the Hearsay Rule?

A statement will be considered hearsay if it is:
1. An assertive statement
2. Made by an out-of-court declarant
3. and is offered to prove the truth of the matter asserted therein.

An “assertive statement” is the intentional communication of fact. An assertive statement can be oral, written, or non-verbal conduct if it was intended to be an assertion. The intention to communicate a fact is what defines assertive statement. Therefore even silence can be an assertive statement, if one would normally speak at such a time and instead the declarant doesn’t speak. Even written documents made under oath, such as affidavits or notarized statements, are subject to the ‘hearsay rule’. (Focus on what the offered statement is asserting, not what the parties are asserting in their claims.)

In order for the statement to satisfy the “out-of-court declarant” element of hearsay, very simply stated, the statement must have been made outside of the courtroom that the present proceeding is taking place in — meaning that if the statement was made in another courtroom, it is still made by an “out-of-court” declarant. (However, some “out-of-court” statements under oath may still be admissible as a declaration against interest.) Do not make the mistake of thinking that all statements made in any court are not hearsay, if the statement was made under oath in another court and not the one you are in, it’s still an out of court statement.

Offered for it’s truth. An out of court statement may or may not be hearsay depending on the purpose for which it is offered. If the statement is being offered to prove the truth of what it asserts, then it becomes hearsay. When offered for any other purpose the statement is not hearsay.

Okay, here is the counter-intuitive part:  The Hearsay Rule deals with concerns about the reliability of out of court statements, not with concerns about whether or not the out of court statements were made. Therefore the hearsay analysis is usually unchanged by the strength of the evidence offered. For example: A tape recording of the out of court statement, even fully authenticated, is still hearsay, if it is an assertion offered for it’s truth. As is a signed and notarized assertion. Hearsay deals with our concerns about confrontation and the inferences juries draw from out of court statements, not with our ability to prove the existence of or strength of the evidence we are offering.

One of the reasons we are so concerned with hearsay statements is that each statement offered in court, regardless of whether it is hearsay or not, is subject to error.  Every statement we offer in court has the potential to be based on faulty memory, poor articulation, lies or insincerity, or a lack of perception. Out of court statements are therefore more concerning, because the statements cannot be cross-examined, and therefore they cannot be tested for their truth by the opposing side.

Determining whether an out-of-court statement is hearsay is fairly simple to do. First, ask whether or not the statement must be believed to be relevant. In other words, is the statement only relevant if it is true? If the answer to that question is “yes,” then the out-of-court statement is hearsay, if the answer is no, then it is not hearsay.

There are a variety of reasons why an out of court statement might be offered to prove something other than it’s truth. For example, words have power in the law and quite often the utterance of words is a legal act, or a verbal act. If you accept a contract to mow your neighbors lawn, your verbal acceptance is an act that evidences the existence of a contract. If you get married, the statement “I now pronounce you man and wife” has the power of creating a unity of two previously separate people. Therefore the existence of these words in court is often to show the effect on the listener, the existence of a contract, or other significant legal fact, as opposed to being offered for their truth. As the words are not offered for their truth, they are not considered Hearsay.

The FRE also includes rule delineating instances when out of court statements offered for their truth are Non-Hearsay. These instances concern admissions by parties to the case and they are non-hearsay in part because the party is present in court, and therefore the concerns regarding confrontation are lessened.

Party admissions are statements made by a party in a lawsuit which are offered by the opponent. Though the simplest form of admission is a statement made by the opposing party in either his individual or representative capacity, Rule 801(d)(2) provides for a number of vicarious admissions (statements of a declarant other than the party opponent) which are attributed to the party opponent because of either the party’s adoption of the statement or because of some relationship between the party opponent and the declarant.

The Hearsay Rule has a number of exceptions to it as well, and these exceptions will be discussed in further articles.


Sources for this Article include:

Evidence, Cases, Commentary, and Problems. David Skanlsky

Prof. Karen Steinhauser’s Evidence Class, University of Denver Sturm College of Law

The Federal Rules of Evidence.

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