HEARSAY: WHAT IT IS AND WHAT IT ISN’T

1. HEARSAY: WHAT IT IS AND WHAT IT ISN’T

2. ASSERTIVE CONDUCT

3. 1. DOES THE STATEMENT OR CONDUCT FALL WITHIN THE GENERAL DEFINITION OF HEARSAY? IF SO, THEN 2. DOES THE PROPONENT WISH TO USE THE STATEMENT OR CONDUCT FOR THE TRUTH OF THE FACT ASSERTED? IF SO, THEN 3. IS THE STATEMENT OR CONDUCT EXCLUDED FROM THE GENERAL DEFINITION OF HEARSAY? IF NOT, THEN 4. IS THE STATEMENT OR CONDUCT WITHIN ANY EXCEPTION TO THE HEARSAY RULE? If not, proceed to relevance If not, proceed to relevance If so, proceed to relevance If so, proceed to relevance If not, statement is inadmissible hearsay

4. THE HEARSAY RULE PARSED A. THE RULE: MRE 801(a) and (c) A “STATEMENT” IS (1)AN ORAL OR WRITTEN ASSERTION OR (2)NONVERBAL CONDUCT OF A PERSON, IF IT IS INTENDED BY THE PERSON AS AN ASSERTION. “HEARSAY” IS A STATEMENT, OTHER THAN ONE MADE BY THE DECLARANT WHILE TESTIFYING AT THE TRIAL OR HEARING, OFFERED IN EVIDENCE TO PROVE THE TRUTH OF THE MATTER ASSERTED.

5. B. THE RULE PARSED “HEARSAY” IS 1)*AN INTENTIONAL* (this is a matter of some controversy as to written or oral statements) 2)DECLARATION OF FACT 3)MADE ORALLY, IN WRITING, OR BY CONDUCT, 4)OTHER THAN ONE MADE BY THE DECLARANT WHILE TESTIFYING AT THE TRIAL OR HEARING, 5)OFFERED IN EVIDENCE TO PROVE THE TRUTH OF THE FACT INTENTIONALLY DECLARED.

6. AN “ASSERTION”---AND “STATEMENTS” ARE ASSERTIONS---IS A DECLARATION OF FACT, CAPABLE OF BEING TRUE OR FALSE ASSERTIONS AND THE QUESTION OF INTENT

7. CONDUCT MUST BE INTENDED AS AN ASSERTION

9. IMPEACHMENT USE OF STATEMENT The question is whether you were lying then or are you lying now?

10. EXCLUSIONS FROM HEARSAY RULE “Defined out” of the hearsay rule are ---Prior Inconsistent Statements Under Oath ---Prior Consistent Statements ---Statements of Identification ---Admissions (including by agent) ---Coconspirator/within scope of conspiracy

11. PRIOR STATEMENTS UNDER OATH AND THE FORGETFUL OR LYING WITNESS

12. PRIOR CONSISTENT STATEMENTS ---recent fabrication, improper influence or motive ---timing; must have existed before the alleged fabrication

13. STATEMENTS OF IDENTIFICATION

14. ADMISSIONS By authorized agent/attorney

15. HEARSAY: THE EXCEPTIONS TO THE RULE

16. EXCEPTIONS WHERE THE UNAVAILABILITY OF THE DECLARANT IS REQUIRED

17. HEARSAY AND THE CONFRONTATION CLAUSE

18. PRINCIPLES ---Absent Declarant ---Testimonial Statement ***solemn declaration or affirmation made for the purpose of establishing or proving some fact ***was the primary purpose of the conversation, in light of all the circumstances, viewed objectively, to create an out-of-court substitute for trial testimony. ***was the primary purpose to respond to an ongoing emergency ***statements by young children will rarely, if ever, be testimonial ***statements to non-law enforcement significantly less likely to be testimonial

19. FORFEITURE BY WRONGDOING

20. “UNPREMEDITATED” STATEMENTS: STATEMENTS REGARDING PHYSICAL, MENTAL AND EMOTIONAL “EVENTS” MRE 803(1): Present Sense Impression MRE 803(2): Excited Utterances MRE 803(3): Then Existing Mental, Emotional, or Physical Condition MRE 803(4): Statements Made for Purposes of Medical Treatment or Medical Diagnosis in Connection With Treatment MRE 803A: Child’s Statement About Sexual Act

21. PRESENT SENSE IMPRESSION AND EXCITED UTTERANCE

22. MRE 803(1)/Present Sense Impression: The Rule “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”

23. TIMING OF THE STATEMENT • -- Timing and the “Immediately Thereafter” • Requirement . • Witness officer: while in pursuit of defendant saw him • bend down and appear to place something on the ground • in a backyard. On the officer’s arrival in the yard a minute • later, and his observation of money and a rock of cocaine • on the ground, a six year old girl in the yard said “That man • put that there.” When asked if the man was the man • fitting the description of the defendant, the girl said “yes. • People v Cross, 202 Mich App 138 (1993)

24. PROOF OF THE EVENT OR CONDITION may need proof independent of the statement in Michigan.

25. MRE 803(2)/Excited Utterances: The Rule. “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

26. 1)the statement must arise out of an event that is startling enough to produce nervous excitement, and 2)the resulting statement must be made while the declarant was under the excitement caused by the event (a showing of a lack of time to contrive, fabricate or misrepresent is not the test; this language is “simply a reformulation of the inquiry as to whether the statement was made when the witness was still under the influence of an overwhelming emotional condition,” the question being whether there was a lack of capacity to fabricate, not a lack of time). 3)the statement must also relate to the circumstances of the startling event.

27. WHEN: TIMING OF THE STATEMENT • -- Timing and the “Under The Stress Of Excitement • Caused By The Event or Condition” Requirement . • -- Passage of Time/Questions • See e.g. People v Straight, 430 Mich 418, 425 (1988) • (one month delay, questions asked which were pointed— • “Did Bill do anything to you,” inadmissible) • People v Smith, 456 Mich 543 (1998) • (statement made 10 hours after the event, evidence of • continued stress, generalized question “what’s wrong,” • admission upheld)

28. People v Ellis, 174 Mich App 139 (1989)(statements to neighbors that “my husband raped me and tried to kill me” made within moments of assault held admissible) People v Zysk, 149 Mich App 452 (1986) (statement to treating nurse three hours after rape held admissible; testimony that victim was anxious and afraid, crying intermittently) People v Sommerville, 100 Mich App 470 (1980) (statements made by victim to investigating officer 24 hours after assault while victim contemplated whether to report assault too long)

29. -- Passage of Time/Children . People v Hackney, 183 Mich App 805 (1990)(5 year old victim, statements 19-20 hours after assault, mother first asked what had happened, when younger sister said ‘I already told mom’ victim began to cry and said ‘its a secret, we’re not supposed to tell’--held admissible) People v Houghteling, 183 Mich App 516 (1990)(7 year old victim, told other children when went out to play later that day, they prompted child to tell adult--testimony of adult admissible)

30. People v Lee, 177 Mich App 382 (1989) (7 year old victim, statement to mother 17 days after assault, no plausible explanation for delay, held inadmissible)

31. PROOF OF THE EVENT OR CONDITION People v Burton overruled by People v Barrett!

32. MRE 803(3)/Then Existing Mental, Emotional, or Physical Condition: The Rule. “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.”

33. THE STATEMENT • -- Then-Existing Physical Condition /Exclusion of • Statements of Memory or Belief • Witness: “Just before he fell over he said “I feel faint.” • Witness: “Just before he fell over he said ‘That glass of • water I drank tasted funny; I feel faint.’” • Witness: “He just fell down, and when he got up I asked • him what happened and he said “I felt faint.” • Declarant: “My arm hurts where John twisted it.”

34. -- Then-Existing Mental Or Emotional Condition/ Exclusion of Statements of Memory or Belief Declarant: “I’m afraid sometimes because my husband has threatened to kill me.” Declarant: “I’m going to see Fred, and I’m nervous about it because he has acted so strange when I’ve gone over there in the past.”

35. -- Statements of Declarant’s Intent . Declarant: “I’m going to deliver an order to 227 Geneva street tomorrow at 2 pm.” Declarant: “I’m going to Germany, and when I get back I’m filing for divorce from Fred.” Declarant: “I’m going to Fred’s house at 2 pm tomorrow with Larry.”

36. MRE 803(4)/Statements Made for Purposes of Medical Treatment or Medical Diagnosis in Connection With Treatment.: The Rule. “Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment.”

37. MRE 803A/Child’s Statement About Sexual Act: The Rule. “A statement describing an incident that included a sexual act performed with or on the declarant by the defendant or an accomplice is admissible to the extent that it corroborates testimony given by the declarant during the same proceeding, provided: (1)the declarant was under the age of ten when the statement was made; (2) the statement is shown to have been spontaneous and without indication of manufacture; (3) either the declarant made the statement immediately after the incident or any delay is excusable as having been caused by fear or other equally effective circumstance; and (4) the statement is introduced through the testimony of someone other than the declarant.

38. (1) WHO: THE DECLARANT The declarant must have been under the age of ten when the statement was made. The declarant must be a witness at the trial or hearing and testify to the events; “...is admissible to the extent that it corroborates testimony given by the declarant....”, but cannot testify to the statement (“introduced through the testimony of someone other than the declarant”).

39. (2) WHAT: THE STATEMENT • -- “describing an incident that included a sexual • act performedwith or on the declarant by the • defendant or an accomplice” • Declarant: “The defendant knocked me down and then • threw me against the wall” in an assault with intent to • murder trial. • Declarant: “The defendant knocked me down and then • threw me against the wall, and then” (describe sexual • molestation).

40. (3) WHEN: TIMING OF THE STATEMENT • -- Excusable Delay • (3) either the declarant made the statement immediately • after the incident or any delay is excusable as having • been caused by fear or other equally effective • circumstance • People v Dunham, 220 Mich App 268 (1996) (delay of 8 • or 9 months justified by “well grounded fear” of the • defendant) • People v Hammons, 210 Mich App 554 (1995)(several • day delay justified by fear of reprisal from defendant/father)

41. -- Spontaneity • Spontaneity requires that the child must bring up the • subject of sexual abuse. Any followup questioning or • prompts from adults must be nonleading and open-ended, • so that it is clear that the statement is the creation of the • child.People v Gursky, __Mich__ (No. 137251, 7-22-2010) • NOTICE: No specific time frame is given; the • notice must simply be adequate to allow the opposing • side to prepare to meet the statement.

42. “PREMEDITATED” STATEMENTS: RECORDED STATEMENTS, RECORDS, AND REPORTS MRE 803(5): Recorded Recollection MRE 803(6): Records of Regularly Conducted Activity MRE 803(7): Absence of Entry in Records Kept in Accordance With 803(6) MRE 803(8): Public Records and Reports MRE 803(9): Records of Vital Statistics MRE 803(10): Absence of Public Record or Entry

43. UNAVAILABILITY OF THE DECLARANT DEFINITION OF UNAVAILABILITY. “UNAVAILABILITY AS A WITNESS” INCLUDES SITUATIONS IN WHICH THE DECLARANT–

44. PRIVILEGE • IS EXEMPTED BY RULING OF THE COURT ON • THE GROUND OF PRIVILEGE FROM TESTIFYING • CONCERNING THE SUBJECT MATTER OF THE • DECLARANT’S STATEMENT

45. INCOMPETENT AS WITNESS ONE WHO IS INCOMPETENT TO TESTIFY UNDER MRE 601 IS UNAVAILABLE. INCOMPETENCE UNDER MRE 601 IS A SUFFICIENT BUT NOT NECESSARY CONDITION OF UNAVAILABILITY UNDER MRE 804(A)(4).

46. TEMPORARY CONDITION IN CRIMINAL CASES, WHERE THE TESTIMONY OF THE WITNESS CAN PREDICTABLY BE OBTAINED WITHIN A REASONABLY SHORT TIME, CONFRONTATION CLAUSE CONCERNS COUNSEL IN FAVOR OF A CONTINUANCE, RATHER THAN A FINDING OF UNAVAILABILITY, PARTICULARLY IF THE TESTIMONY IS CRITICAL.

47. INABILITY TO PROCURE ATTENDANCE: DUE DILIGENCE THE TEST IS ONE OF REASONABLENESS AND DEPENDS ON THE FACTS AND CIRCUMSTANCES OF EACH CASE, I.E., WHETHER DILIGENT GOOD-FAITH EFFORTS WERE MADE TO PROCURE THE TESTIMONY, NOT WHETHER MORE STRINGENT EFFORTS WOULD HAVE PRODUCED IT.” MERE SERVICE OF A SUBPOENA IS NOT ADEQUATE .

48. FLIGHT OF WITNESS/AVOIDANCE IN A CASE THE VICTIM APPEARED AT COURT ON THE DAY OF TRIAL TO TESTIFY, AND DISCUSSED THE CASE WITH THE PROSECUTOR TRYING IT. BUT WHEN TRIAL BEGAN SHE HAD DISAPPEARED, AND A SEARCH FOR HER WAS UNSUCCESSFUL. THE COURT OF APPEALS HELD THAT THE 11TH HOUR DECISION OF A WITNESS TO LEAVE THE COURTHOUSE RATHER THAN TESTIFY IS “UNAVAILABILITY

49. HEARSAY EXCEPTION: PRIOR RECORDED TESTIMONY

50. OPPORTUNITY FOR CROSS-EXAMINATION THE OPPOSING PARTY MUST AT THE PRIOR HEARING HAVE HAD AN OPPORTUNITY TO DEVELOP THE TESTIMONY BY DIRECT, CROSS, OR REDIRECT EXAMINATION; IT MATTERS NOT THAT THE PARTY CHOSE NOT TO TAKE ADVANTAGE OF THE OPPORTUNITY. UNLESS COUNSEL IS CURTAILED BY THE JUDGE, A PRELIMINARY EXAMINATION PROVIDES THE NECESSARY OPPORTUNITY, EVEN IF STRATEGIC REASONS MIGHT COUNSEL AGAINST EXERCISE OF THE OPPORTUNITY.