Laws of Evidence Assignment 5
Using just the Federal Rules of Evidence and your knowledge of the hearsay rule and its exceptions, please discuss briefly whether each of the following nine out of court “statements” may be allowed into evidence or whether they are barred by the hearsay rule:
1) The five (5) statements that appear in “Practice Application 12.1" in your textbook, which appears at the end of Chapter 12 (page 323) of your textbook
2) The four (4) statements that appear in “Practice Application 13.1" in your textbook, which appears at the end of Chapter 13 (page 362-363) of your textbook
You do not need to cite outside cases for this assignment. I am just looking for a ...view middle of the document...
R. Evid. as (c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
The important thing here is the “and”. Statements that the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement. While the evidence is trying to be used to prove the truth it is not a statement that the declarant made out of court. It is not hearsay and therefore it can be used in this case.
3. Defense offers a prior statement given by Marge to police officers at the school that she did not clearly see who made the statement in the hallway about the bomb being planed.
This would not be admissible as evidence. This report was made for a special reason and could be “self-serving”. Based on the Fed. R. Evid. This kind of statement is not admissible under any of the given exceptions.
4. Defense offers a witness, Sam, who testifies that he was in the school hallway when Marge turned to him and said that she had just heard a student say a bomb had been planted in the school.
This would be a present sense impression. Falling under rule 803(1), that defines a present sense impression as, “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” The statement made by Marge was made in the present sense while she perceived it. Therefore, it can be used as evidence and is excluded from the hearsay rule.
5. Sam further testifies that when he asked Marge which student made the statement, Marge just “stared blankly, her jaw dropped, and she shook her head,”
Nonverbal conduct includes actions that do not involve speaking. In the hearsay definition, nonverbal conduct constitutes hearsay if it is intended as an assertion, if it is not intended as an assertion than it is not hearsay. Marge shook her head as an assertion that she saw who made the statement about the bomb. Therefore, this could be hearsay and not an exception to the rule. However, under Rule 803(2) “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused”, is an exception to the hearsay rule and can be admissible. It is believed that there is little time for reflection and therefore fabrication is a statement is given spontaneously or at the time an event is perceived. Therefore, this testimony can be used in the trial.
Practice Application 13.1
1. 911 call: The 911 call said, “I hear screaming coming from Apartment B at 123 Main Street. I think Fred is beating his wife again.” This falls under the present sense impression because the declarant was explaining an event while the declarant was perceiving it. Rule 803(1) of the Fed. R. Evid. Says, “[a] statement describing or explaining...