Hearsay Law for the Bar Exam | Key Rules & Exceptions

[00:00:01]Hello, my name is Professor James Dwayne. I'm a member of the faculty here at Regent Law School in Virginia Beach, and I'm here to share with you some helpful tips on the law of hearsay for the bar examination to assist you in your preparation for the bar exam. But of course, we will first begin with a quick inspirational song to help put you in the right frame of mind. See if you can name this tune.

[00:00:32][Music] As you may recall, that's an old uh song by Flewood Mack titled Never Going Back Again, which is the unofficial theme song of this entire program because we're here to make sure that you never have to go back to Rowan Oak again to take this bar exam more than one time.

[00:00:59]I'll be focusing here during this brief talk on a couple of the most important fundamentals concerning the the law of hearsay as it pertains to the questions that you'll likely to face on the bar examination. I do that of course for the obvious reason that of the evidence questions that are on the multi-state bar examination, onethird of them will be devoted to the subject of hearsay and the confrontation clause. I can't cover everything that you need to know about that in this short time that we've got together. So you of course you'll want to make sure that you take a close look at the outline that has been given to you for that purpose, but we can touch upon some of the most fundamentals.

[00:01:33]Here's hearsay in a nutshell, the visual picture of what we're looking for. When you have a question on the bar examination or in the real world that potentially implicates a hearsay objection, it will invariably involve some variation on the following theme.

[00:01:48]Step one, some kind of a statement was made out of court. This statement, of course, will necessarily be made by a person. The hearsay rule only applies to people. It doesn't apply to all the information that you and I frequently learn from animals and machines. So, when a witness on the witness stand says that I learned something from a drug sniffing canine police dog or I learned something from a clock or a calendar or a radar gun or a thermometer. None of that is hearsay.

[00:02:15]Even though they're telling us about something they learned from something, they're not telling us about something that they learned from someone else. So, we've got a statement made out of court by the declarant. A statement, as you know, means an assertion of some kind.

[00:02:28]This can be done in one of three ways.

[00:02:30]It could be that he spoke certain words, as you can see depicted here in the diagram that I have created for you. Or he could have written certain words on a piece of paper. That could also be a statement as long as it was meant to make an assertion. It was not a question, for example. And third, you can also make a statement through nonverbal conduct as long as it was intended as an assertion. When a witness standing at a lineup silently points to the accused without saying a word, her act of pointing to him is an assertion and it is therefore regarded as a statement because it was intended by her as a method of communicating information to the people who are watching.

[00:03:06]Likewise, when the witness nods his head up and down in response to a question, that is also non-verbal conduct intended as an assertion. That is also a statement as well. The hearsay rule says that in the countless situations where you and I make statements out of court all the time, that statement is not ordinarily admissible at trial if it's being offered to prove the truth of what was said by the person who made the statement. The step two in the diagram that I've created here shows how the statement might be repeated in court.

[00:03:35]frequently, not always. It will be done through the production of a witness who will testify, "I was there when a man named Dan Dan the declarant made a certain statement. I heard him say X."

[00:03:46]If a woman, we'll call her, let's say, Wanda, the witness, takes a witness stand in a trial under circumstances like this and testifies to a statement that was made in her presence by someone else. If it's being offered to prove the truth of what that other man said, then it's hearsay. Hearsay is evidence of a statement made at the court offered to prove the truth of the matter that was asserted. And again, don't forget when we talk about the truth of the matter asserted, we're talking about the truth of the matter that was asserted by the man who made the statement out of court.

[00:04:16]In this picture, it would be the gentleman with the green jacket, the declarant we call him. A common mistake for most beginners is to think that, well, perhaps it's not hearsay or it is hearsay. That's a it's a a common mistake is to say, well, uh, it's hearsay because it's being offered to prove the truth of what Wanda is here to say. When Wanda comes in on take and takes to the witness stand and testifies that I heard Dan say X, many beginners make the mistake of of assuming, well, it must be here because of course it's being offered to prove the truth of what Wanda says. But that's not true. We're not focusing on her. We're focusing upon him. It goes without saying that anytime any witness takes the witness stand at any trial, regardless of whether they're here to tell us what they learned from someone else or not, it's always being offered to prove the truth of what that witness on the witness stand is saying.

[00:05:07]That's why she's here. The question, however, is whether it's being offered to prove the truth of what the other one said, the one who made the statement out of court.

[00:05:16]I want to focus briefly on some of the most wrong some of the most common wrong answers that you'll often see that you will certainly see on the multi-state bar examination in that scenario that I described a moment ago where a witness named Wanda wants to take the witness stand to testify to what she heard being spoken or written out of court by a witness by a declarant we'll call him Dan.

[00:05:39]There will surely be questions the multi-state examination that will ask you can Wanda testify to what Dan stated. And you may have answers such as these. Yes, because she was there when the statement was made or yes because she has personal knowledge that Dan made the statement. Those are always the wrong answer. Yes may be the right answer perhaps for some other reason.

[00:05:58]But it would never be proper to overrule a hearsy objection merely because the woman who's now on the witness stand was there when the statement was made. Of course she was. That's true 99% of the time when a witness comes in to tell us about a statement that was made by somebody else that as it turns out involves inadmissible hearsay. 99% of the time the one who's here ready and willing to tell us about that inadmissible hearsay was there when the statement was made. But that doesn't change to the fact that the statement was made out of court. So don't let them confuse you with that answer. That is never the right answer. Likewise, there will surely be questions on the multi-state bar examination when someone named Dan makes a statement out of court and then Dan the declarant who was also a party to the case asks a witness like Wanda to tell the jury what he said to her. In fact, he says, "Will you tell the jury please what my client said to you?" The bar examiners will often have an answer that says, "No, that is not admissible because his statement to her was selfserving."

[00:06:56]That's another common wrong answer.

[00:06:58]There may be other reasons why the right answer would be no, but this is not the right answer. Under the hereate rules, generally speaking, with just a couple of exceptions that we'll get to later, concerning business records and public records, a statement will not be excluded if it is otherwise admissible merely because it was self- serving. So, if Dan, for example, wants to call Wanda to the witness stand and asks, "Wanda, will you tell the jury what I told you?" And Wana's answer is, "Well, you told me, Dan, a couple of months ago that you had a pain in your back that day." Thank you very much, Dan says. Very happy with the answer that he just received from her because it's good for him and it was self- serving when he made it. Many of you may be tempted to think, well, the hearsay rule surely will not allow this. But you would be wrong. The hearsay rule does allow this because when he described his back pain to her, he was making an example of what we call a statement of thenexisting physical condition. one of the most well-known hearsay exceptions that we'll get to in a few minutes. And therefore, under the rules, the objection would be overruled and the evidence would be admissible. Even though the truth is Dan obviously had plenty of motive to exaggerate about the extent of his pain when he made that statement. It doesn't matter. The hearsay rules don't give the judge the discretion to say on a case-by case basis, well, I'll allow this, but not this because I think this one was trustworthy, but I think that one's unreliable because this one was self- serving. That's not the way the rules work. The hearsay rules by design operate as a series of relatively inflexible and rigid rigid pigeon holes.

[00:08:24]Either it's an excited letterance or it isn't. And if it is, if it can be fit within the four corners of one of these different boxes that have been set up, these different hearsay exceptions, then it will be admissible. Finally, one more pair of very common wrong answers.

[00:08:39]Perhaps the the examiners will ask you a question where Dan the declarant wants to take the witness stand to trial and he wants to tell the jury what he himself said to Wanda and the question will be well is that admissible under the hearsay rules now again the answer may be yes the answer may be no but neither of these will be the right answer yes because he is now on the witness stand and available for cross-examination or here's another variation another way of saying the same thing yes because he obviously has personal knowledge that he made the statement and the statement was True.

[00:09:10]These are common misunderstandings about the hearsay rule. Merely because the declarant himself is now on the witness stand does not mean that all bets are off and that he's perfectly free to tell us anything he wants about a statement as long as he is the one who made the statement. There may be other reasons why we will allow that. For example, if he wants to tell us about a statement that he himself made and the statement that he himself made was an excited utterance or it was a business record or is a present sense oppression, well fine, then we will allow that. But if it doesn't fit into one of the hearsay exceptions, a witness will not be allowed to get around the hearsay objection merely by turning to the judge and saying, "Well, your honor, I was the one who made the statement." I know many lawyers and many judges mistakenly think that is the law, but it is not the law.

[00:09:52]There is no hearsay exception called the available declarant exception. The mere fact that the declarant is here in the courtroom. Indeed, the mere fact that the declarant himself is on the witness stand right now does not necessarily mean that he will be allowed to relate evidence about a statement that he made himself out of court. It may still be inadmissible hearsay. Now, let's take a look at what you need to understand. We've talked about the wrong answers. Now, we'll take a look at what the right answers are and how you can identify them. When whenever you have a question on the bar examination, on the multi-state bar examination, needless to say, as you've learned at this point of the course, you want to look first to the call of the question. Don't start reading the facts of the question until you look it at the end of the question to see what it asks about. And if you see that it is an evidence question and more specifically you see that it is a hearsay question then you need to follow the following kinds of analysis. Number one, zero in like a laser beam on the answer to the following question. Who was the declarant? Who made the statement? Or you might say, look who's talking. Was it the same party who is now objecting?

[00:10:54]because if so, then the hearsay objection will be overruled and you need go no further. You don't need to know anything else. It is admissible as an example of what the rules call a statement by an opposing party. Also sometimes called a party opponent. That was the older version, the older language of the rule. The rule was amended a couple of years ago and what they used to call a party opponent is now called an opposing party. The multi-state examiners expect you to know both phrases. You could be tested on either one.

[00:11:20]The hearsay rules declare that evidence of a statement made at the court is never hearsay. It is never barred by the hearsay rule if it is offered at trial into evidence against the party who made the statement. A little bit difficult to try to remember it that way. So why don't you just think of it this way?

[00:11:37]You've all heard the familiar Miranda warnings. Everything you say can be used against you in a court of law. That's a pretty nice summary of the way this particular doctrine works. Or another way to think of it, you cannot object at trial that evidence is hearsay if you are the one who said it or the one who allegedly said it. Now don't forget this doctrine is also true even if the words did not actually come out of your mouth or even if you did not actually write them with your own hand if you were the one who adopted the statement. A statement that was adopted by you will also be treated as if you made it. So, at a criminal trial, for example, if the prosecutor calls a witness who testifies that I was present with the defendant and another man, the three of us were together and the other man said to the defendant, "Uh, I I've got the drugs that you wanted. I put them in the backseat of your car." And the defendant just stood there and said nothing. If the defendant objects that this is hearsay, his objection will be overruled because the court will explain, "We will treat this as if these words came out of your state, out of your mouth. You did not actually state those words, but you were there when they were spoken. You did not deny them.

[00:12:41]And obviously, if the statement was made under circumstances where any reasonable person would have denied them that they weren't true. And so by your silence, you have tacitly adopted or uh you have acquiesced in the statement and we will constructively treat the statement as if it was your own. Also, this doctrine of statements by an opposing party also applies to the statements that are made not just by you either explicitly or by acquiescence. It also includes the statements that were made by your agents, the people who were working for you. If you hire a lawyer to represent you and authorize that lawyer to make certain statements on your behalf, everything that lawyer says can be used against you at a later civil or criminal trial. employees who are working for you, as long as they are making statements within the scope of their employment about the nature of their job responsibilities, those statements can also be used against the employer. And in criminal cases, remember, we've also got an exception for statements by your so-called partners in crime or the members of your conspiracy. Everything the other members of your conspiracy say can be used against you as long as they were working for you at the time that they stated it. Remember the exception for statements by your conspirators is limited to statements that were made by them during the course of the conspiracy and in furtherance of the conspiracy.

[00:13:54]That exception only applies to the statements that they made while the conspiracy was still going on and while they were saying things to you or to anybody else for the purpose of furthering your common criminal objectives. Because otherwise, if they were making a statement, for example, after they've been arrested, they make a statement to the police officers. That's not in furtherance of the conspiracy.

[00:14:14]That's because they're now trying to cut a deal for themselves. Now they're trying to serve their own personal interests and therefore the exception for statements by conspirators does not apply. That exception, like other exceptions pertaining to statements by your agents, only applies if the facts of the case indicate that they were still working for you or working as your agent at the time that they made the statement. Remember now when we are looking to determine whether something is a statement by an opposing party, we're talking about basically one of the following two situations. If the prosecutor at a criminal trial or a plaintiff's council at a civil trial asks a witness, any witness, will you tell the jury what my opponent, the defendant said? or if the defendant's attorney at a at a civil trial says to one of the witnesses, "Can you please tell the jury what my opponent, the plaintiff, said, that's all you need to know. It's really just that simple. It doesn't matter if the question was on direct examination or cross-examination.

[00:15:15]It doesn't matter what the details of the case might have been. Anytime any attorney asks any witness to tell the jury, will you please tell the jury what my opponent said to you?" That's admissible as a statement by a party opponent and the hearsay objection will be overruled. Now don't forget however there may be other objections. So read the question closely. There may be other reasons why the statement would be inadmissible. But if the only objection is hearsay that objection will be overruled. I also want to take a moment to make sure you understand that this doctrine although it is broad and it is vast it is not unlimited. It does not apply to all statements by any party.

[00:15:50]There's a critical difference between statements by the opposing party and statements by your own client. Any witness can be asked by an attorney at any trial, "Will you please tell the jury what my opponent said, either spoke or wrote, that is never hearsay, because if the other oppo because everything you say can be used against you." But the but the converse is not true. It is not generally proper for an attorney to ask a witness at trial, "Will you please tell the ladies and gentlemen of the jury what my client said to you?"

[00:16:22]This is usually inadmissible hearsay unless there was some other hearsay rule that allows it. But it is not admissible merely because my client wasn't party to this case. There is no general hearsay exceptions for statements by a party. It is only an exception. This exception only operates for statements by the opposing party. By now you're starting to get the picture. Imagine the following hypothetical scenario. At first blush, it looks really sort of overwhelming and kind of daunting. In a civil action by Mary against Sam, Sam calls a witness named Carol to the stand. Carol testifies to a meeting between Jeff and Kelly. On cross-examination, after Sam is finished questioning Carol, Mary asks Carol to tell the jury about a statement that Carol heard Sam making to Barry and Pat. Is there a statement by an opposing party in that fact pattern? If you try to work through it one little tiny step at a time, you'll quickly become overwhelmed and you may lose all heart altogether. But it really is very simple. You need to zero in on the only names that really matter. That's it.

[00:17:17]There they are. I've highlighted them for you. There it says at the top that this is a civil action by Mary against Sam. So, it doesn't matter what who's on the witness stand at the moment. That makes no difference. It doesn't matter who called that witness to the stand. It doesn't matter if it's direct or cross-examination. All we need to know is that Mary and Sam are opponents in this case and that Mary asked some witness to tell the jury about a statement made by Sam. That's all you need to know to recognize that the hearsay objection will be overruled. Let me give you a more realistic example of how this will be done on the bar examination. I call this next slide typical MBE nonsense. And I call this nonsensical because for better or for worse, the bar examiners obviously believe that to try to keep these questions tricky, they want to make sure that the fact patterns are all roughly about the same length. You could see at a glance that this next question involves a paragraph full of facts and names and details and an assortment of dates. And the reality is that for many questions, probably most questions on the bar exam, that's just how many facts they would have to give you to help you get the right answer. And that's also true, by the way, for many evidence and many hearsay questions. But that's not always true. For example, look at this one. At a criminal trial, Fox is accused of arson in Tulsa. In his defense, he asserts the defense of alibi and claims that he was in Toledo that night. Fox calls a witness, Teresa, who testifies that she was with Fox in Toledo that entire week. On cross-examination, the prosecutor asks Teresa, "Isn't it true that Fox told you last week that he needed you to say that you were with him in Toledo?" Fox objects that this is hearsay. Is this admissible under the hearsay rules? Now, if you make the classic blunder of trying to start at the top and working through this line by line, committing to memory every little detail. This question will take you several minutes to work your way through, but you don't want to make that mistake. Remember, if you've got a question in the multistate and they ask whether something is hearsay, you need to zero in like a laser beam on the on the nature of the declarant and find out first. Check to see is it the same guy who is now objecting because if it if that is the case, that is all you need to know in this particular fact. Look first who was making the statement out of court. The alleged declarant in this hypothetical was Fox himself. And we also know from the very first line of the fact pattern that Fox is the accused. And who asked the question? It was the prosecutor. So those words that I've highlighted there are literally the only thing you need to know. If there's a criminal case brought against a criminal defendant named Mr. Fox, the prosecutor can put literally every witness on earth on that witness stand one by one and say to every single one of them, "Can you tell us what does the fox say?" Everything that Fox has ever said can be used against him. It doesn't matter why it was asked. It doesn't matter what he said. It doesn't matter who the witness was. It doesn't matter if it's a civil or criminal case. So, that's all you would need to know. Once you train yourself to recognize this sort of thing, you'll find that these questions on the bar exam can be some real time savers because it only takes you really about 10 seconds to zero in on all the details you'll need to know to correctly recognize when a statement is admissible as a statement by an opposing party or by a party opponent.

[00:20:25]And they like to test you on this. I guarantee there will be at least two or three questions on the multi-state bar examination where the correct answer will be it is a statement by an opposing party and the hearing objection will therefore be overruled. And those questions once you train yourself how to identify them, you should be able to get those out of the way in about 10 seconds each and that'll save you lots of extra time for those cursed questions about the rule against perpetuities. You'll need it, believe me.

[00:20:51]Now, this next slide is another way of trying to graphically illustrate just how little you need to know to be able to recognize the applicability of this exception. You see how I've put those blanks there? In a criminal trial, Fox is accused of blank. It doesn't matter what he's accused of. In his defense, he asserts blank. It doesn't matter what he asserts. It doesn't matter what he claims. It doesn't matter his defense is. It doesn't matter who the witness is or what her name is or what a connection to the case might be. It doesn't matter what she said on direct examination. It doesn't matter whether the prosecutor is now questioning this witness on direct or cross. It doesn't matter who called this witness to the stand. All we need to know is that Fox is the defendant and a witness, some witness is being asked by the prosecutor, "What did my opponent Fox say to you?" When you see those details, ignore the rest. The rest is unimportant. The rest is irrelevant.

[00:21:39]That's admissible as a statement by an opposing party.

[00:21:43]If it is not admissible as a statement by an opposing party, if the alleged statement made at the court was not made by the same guy who was now objecting or someone who was working for him, then we've got to turn to the second question. And the second question, I submit to you logically is whether the statement might be admissible as a present sense impression, an excited utterance, or a thenexisting mental or emotional condition. I submit to you that this is the next question you want to take a look at for the simple reason that these are the only exceptions that do not require you to look at anything except the words that were spoken or written. That's not true for the other hear exceptions. And as you can see, what I'm trying to do for your benefit is to train you into being able to identify the exceptions that if they do apply will make it real easy for you to disregard the parts of the question that they do not matter.

[00:22:28]The present sense impression, as you know, is a statement describing or explaining an event or condition made immediately while it was happening or immediately after it happened. A an excited utterance is a statement that relates to a startling event or condition made while the declarant was still under the great stress or excitement that was caused by that event. And then we've got the thenexisting mental, physical, or emotional condition. This exception which is also very very broad pertains to almost anything you might say in the present tense. It talks about a statement of the declarance then existing state of mind such as motive intent or plan or emotional sensory or physical condition such as mental feeling pain or bodily health. This particular exception is just a variation on the the present sense impression. If a man testifies that he was driving down the road and my wife who was seated next to me looked out at the car and said to me, "Oh, look at that. There's a fire truck in the ditch." I did not see it myself, but that is what my wife told me. If there's a heary objection, the objection will be overruled. Why?

[00:23:34]Because at the time she was making the statement, the wife was narrating what she saw as she saw it. That makes it a present sense impression that would be admissible. This exception takes that same logic and it applies, if you will, to the things that we see when we look within ourselves. If a man says, "I was driving down the road with my wife, or I was on the phone with my sister while I was listening to my wife, and my wife and my sister were both talking to me, and one of them said, "I don't feel so good right now. I feel cold. I feel lonely. I feel scared. I feel tired. I am hungry. My back hurts. My feet are numb." All of this is admissible. It doesn't matter why she said it. It doesn't matter whether she's available or unavailable. She was describing the things that she was feeling as she felt them. And remember this exception also applies to statements of intent or plan.

[00:24:19]When a person talks about things he plans to do in the future, it is admissible under this exception. And it doesn't matter whether he's available.

[00:24:25]It doesn't matter what kind of a case it might be. And it doesn't matter what his connection to the case might have been.

[00:24:30]You see, this is a very broad exception. In fact, the only significant limitation on this exception, as you can see that I've highlighted, this exception specifically says that it does not apply. It does not include a statement of memory or belief to prove the fact that was remembered or believed. So, this exception applies to just about anything that anybody says under any circumstances as long as they're talking in the present tense or the future tense. The only thing it doesn't include is memories or beliefs about the past. And with good reason, I might add, because if this hearsay exception applied to memories and beliefs as well, it would literally swallow the hearsay rule altogether because then everything would be admissible under this hearsay exception.

[00:25:08]This hearsay exception, if you never thought about it until now, is the reason why 100% of all inadmissible hearsay involves people making the statement out of court in the past tense about things they think they remember and that things that they think they believe about the past. Because if they're not talking in the past tense, if they're talking in the present tense, we're talking in the future tense about their future plans, whatever they said is admissible under this exception. So, let's take another look at another slice of typical MBE nonsense. Here's the kind of question that far too many students will make the tragic mistake of waiting of making of taking two or three minutes to wade through. At a criminal trial, Sam is accused of the murder of his girlfriend Teresa on June 8th. In his defense, he asserts the defense of alibi and claims that he was in Toledo that night. Sam calls a witness Dedra, who testifies that she was with Sam in Toledo that entire week. On rebuttal, the prosecutor calls a witness, Diane, who testifies that she was Teresa's sister, and that the night her sister died, the two were talking on the phone.

[00:26:04]When Teresa said, quote, "I can't talk right now. I see that Sam just came in the door." Close quote. Sam objects that this is hearsay. Is this admissible under the hearsay rules?

[00:26:16]Again, if you hadn't seen this lecture, you might have made the classic blunder of trying to work through this line by line, word by word, trying to commit all of this to memory, which can be overwhelming in the course of an examination that goes on for many hours in the multi-state examination. But the good news is you don't need all of these facts. Almost every fact contained in this question is irrelevant. All you need to do, as soon as you verify first that this is not a statement by an opposing party, and obviously it isn't, that you see here that Sam is the one who was objecting, right?

[00:26:45]The statement is about Sam, but the statement was not being made by Sam. So, it's not a statement by an opposing party. But take a look at the words.

[00:26:52]Take a look at the words that were being spoken here. This declarant who's now being quoted, we've got a witness on the stand. Whoever it was doesn't make a difference. She's quoting somebody else, a declarant. The identity of the declarant doesn't affect the answer to the question. All we need to know to recognize the answer to the question are the words in purple where it says, quote, "I can't talk right now.

[00:27:13]I see that Sam just came in the door.

[00:27:15]Close quote. Is this admissible under the here state rules? That's the only fact we need to know. The answer is yes.

[00:27:19]It's a present tense impression.

[00:27:21]Somebody was talking in the present tense about something that has just happened literally a few moments earlier. That means is it is admissible under the hearsay rule. Some other objection might be sustained, but the hears objection will be overruled.

[00:27:34]Here's another example.

[00:27:37]Typically, they'll give you a question chalk full with all kinds of irrelevant, distracting details to try to trick you and throw you off the scent. But the bottom of the question, you see, some witness says, quote, I was the w not, I shouldn't say the witness, the declarant who's being quoted by the witness out of court. The statement made out of court consisted of the following words. Quote, "Oh my god, exclamation point. Somebody do something. He has a gun." Look at all those exclamation points. Obviously, somebody is very excited. It is an exciting, stressful moment. It is an exciting utterance. It is admissible.

[00:28:08]And there's nothing else you need to know to get the right answer to that question. Here's another one. Blah blah blah blah blah blah blah. Forget about Toledo. Forget about Tulsa. It doesn't make a difference. If you've got a hearsay question on the exam, and believe me, you will like these where the where the declarant out of court made a statement of the following sort.

[00:28:26]Quote, I am driving to Rowanoke tomorrow to take the bar exam. Although this will be the last time because in faith I am as fleet with Mac might say never going back again. Is that admissible under the here state rules? And the answer is yes.

[00:28:37]It is a statement of thenexisting mental, physical or emotional condition.

[00:28:41]Remember that exception applies to statements of intent to do things in the future. It is admissible and that objection will be overruled. One more. A witness on the stand at a trial quotes somebody else. And that's somebody else that declared who made the statement out of the court allegedly said quote I have had a pain in my back for three weeks. Close quote. Is this admissible under the hearsay rules?

[00:29:03]Well, unfortunately it might be but it might not be. This is not a present sense impression. It is not an excited utterance. There is no exclamation point. Nobody is screaming or hysterical. It is not a then existing physical condition. It is a statement of memory or belief. You see it's in the past tense unike those other examples that we looked at a moment ago. So, if you've got a question like this one, and of course you'll have plenty. Then you'll have to go to the next step of the analysis. But again, before you even go there, remember to review what we've covered so far. First, look who's objecting. See if it's the same guy who made the statement. If so, you don't even need to know what the statement was because it's admissible as a statement by an opposing party. If not, number two, look at the words that were being spoken. see if the person who made the statement out of court was talking in the present tense about what's going on right then and there or very very recently or about an intention that he's got himself for the future because if that's the case it's admissible in one of those exceptions that we just covered and you don't need to know any of the other details in the case but if neither of those things are true if it's not a statement by an opposing party if it's not a present sense impression or an excited utterance then what we'll have is obviously somebody who made a statement on the court like this one in the past tense and whether that will be admissible of course will depend upon whether we can fit it in one of the other hearsay exceptions. The first thing you want to run it past is whether it might be admissible under one of the exceptions that is set forth in rule 803 because rule 803 defines certain kinds of hearsay that are admissible without regard to whether the declarant is available or unavailable. So you wouldn't need to zero in or pay any attention to that. We don't have time to go over all of the exceptions that are set forth in rule 803, but let's touch briefly upon the most important aspects of the most fundamental of them. The first one concerns statements by medical patients, statements made for medical diagnosis or treatment. If the words that were being quoted a moment ago, I gave you the example of somebody who spoke the words, "My back has been hurting me now for three weeks," referring to the past, would that be admissible under the hearsay rules? Well, that depends on who was speaking those words, and it depends on who he was talking to and what he was saying to it. If he was just chatting over the fence with his neighbor from next door, that would not be admissible. But if on the other hand, he was in his doctor's office talking to the doctor or talking to the nurse, then it would be admissible. The theory of this hearsay exception, as you know, is that we presume people have a vested and self-evident self-interest in the accuracy of the information that they give to the medical professionals. You wouldn't lie to your doctor when you know that his diagnosis and his treatment will turn on the statements that you make to him. So when a statement is being made concerning medical history, either past or present, symptoms or causes, all of that is admissible under this hearsay exception with one limitation. The statements must be reasonably pertinent to medical diagnosis or treatment. It's got to be information that your doctor would want to rely upon one way or the other. For example, on the multistate, there may be a question. There probably will be a couple of questions where a doctor or a nurse or an ambulance driver wants to or has asked questions about a statement that was made to him by one of their patients. If the patient says to the doctor, uh, I've I can't feel my legs. I'm in great pain. My my my feet are numb. All of that is admissible.

[00:32:25]Obviously, it doesn't matter who they were talking to because that's all a description of how he feels right now.

[00:32:29]That's a present sense impression, a then existing physical condition. What if he said to the doctor, "But let me tell you how it all started earlier today. I was hit in the back of the head with a large wooden bat." Is that admissible? Yes, it is. Because that's information that is relevant to the doctor. A doctor who's trying to decide what kind of tests to run, whether to order x-rays, what kind of medications to prescribe, he wants to know whether you were hit by a bat or a balloon or a bowling ball or a bullet. makes a difference for the doctor. But if the witness then goes on to say, and in addition, the patient told me that the bat was wielded by his brother-in-law, identifying, if you will, the perpetrator of the offense, that would not be admissible under this exception because that is information that is not reasonably pertinent to medical diagnosis or treatment. When a doctor is trying to decide whether to run a particular kind of a test to decide how you should be treated or how you should be diagnosed, it doesn't make any difference to him who was driving the car or swinging the bat that hit you. So it might be admissible under some here.

[00:33:29]Other hearsay exception, but the identity of the perpetrator is not usually admissible under this exception.

[00:33:34]Remember that. The next exception we want to mention is the recorded recollection exception. This exception basically applies for statements that were written by the individual who is now on the witness stand. Remember I told you earlier a common mistake is to think that anytime a witness is on the stand, he is always eligible or entitled if he wants to tell us about the statements that he made himself out of court. That's not true. It's never been true. If it were true, we wouldn't need this exception. But this exception says that if we've got a witness on the stand and he testifies that, I tell you the truth, I can't really remember the details right now. We tried to refresh his recollection by showing him a document, hoping that it would work, but it didn't work. And the witness turns to us and says, "Well, I've looked at my own notes. Uh, and I'll be honest with you, I don't remember the details. I can't lie to you. I can't sit here and tell you that I remember the serial number that I copied down off of the stereo that was in my store that night.

[00:34:28]But I know for a fact that the number that is written down on this piece of paper is accurate because I wrote it down myself. And when I wrote it down, I did so based upon information that was in with my personal knowledge."

[00:34:39]Under those circumstances, the rules say, "Well, as long as he's here available to be cross-examined about the statement," and he's able to verify that he's the one who wrote it and he knows that it was accurate, then we will allow the statement to be read to the jury.

[00:34:51]But it cannot be actually admitted into evidence unless the opposing party wants to offer it. This is one of the very, very few exceptions that sort of strikes a sort of a compromise. It's sort of a quasi admissibility. We'll let the jury hear it, but we won't let them see it.

[00:35:06]There's also the closely related doctrine known as the so-called business records exception or what we call record of regularly conducted activity. This hearsay exception with which we are all very familiar applies to documents that are created by an individual in the course of his employment concerning something that he was obligated as a condition of his employment to make a note of. Don't make the mistake of thinking that every little tiny piece of paper, every little email, every little post-it note that comes off or out of the desk of a man while he's at work comes in under this exception. That's not true. This exception does not apply to everything that you write while you were on the job. This exception is specifically limited to those documents where making the record was a required and a regular practice of that particular activity.

[00:35:49]So, if we've got a witness, let's say, on the stand who can verify that this particular document, I did not write it myself, but I know what it is because I work at Herz rent a car and I'm familiar with the forms that we fill out. This is one of the forms that we at Herz have to fill out every time one of the cars is taken off the lot. I can verify that although I'm not the one who wrote the report, that's fine. You'll do and the report will be admitted. It is admissible under the business records exception because as I said this is one of those forms that we are obligated to fill it every time as a condition of our employment. The theory behind this hearsay exception is that anybody who knows that his promotion or retention on the job may hang in the balance is going to take great care to ensure the accuracy of the forms that he fills out at the boss's insistence. But that reasoning doesn't apply to every piece of paper that you just happen to write up while you're sitting at your desk at the job. Don't forget, one thing to keep in mind is it says at the end of the slide there, this is one of two exceptions. Most of the hearsay rules do not give the judge the authority to say, "Well, I'm not going to allow it because it's self- serving."

[00:36:52]That doesn't matter. If a man's talking to his neighbor over the fence and says, "My back is hurts like crazy." That statement may be dripping with self-evident motives to exaggerate or to proaricate. And it may be entirely self- serving. It doesn't matter. It is admissible under the hearsay rules. You can call your neighbor to testify and say to your neighbor, "Tell the jury what I said to you. You told me your back was hurting." It's a present sense impression. It is admissible. But if it's offered as a business record, this exception, unlike most of them, specifically gives the judge the discretion to say, "Well, it does look like it is a business record, but because of the way that it was prepared, I'm dubious. I think it I think the circumstances of its preparation indicate a lack of trustworthiness."

[00:37:36]This particular provision is written specifically, although not exclusively, for documents that are prepared in anticipation of litigation. If a train goes off the track or a bus goes off the road and the bus line company sends some investigators out there to start interviewing witnesses and taking measurements and creating detailed documents after the fact, even if these documents are a standard preprinted form that is routinely employed by that company and therefore would otherwise look ostensibly quite like an ordinary business record, they probably would not be admitted under this exception because under those circumstances, the document was obviously written by somebody who knew full well that the bus had already gone off the tracks and that people have been injured and that litigation was inevitable and they're thinking ahead toward litigation which means they no longer have the same sort of self-interest in the accuracy of this report. Quite the contrary, they now have a self-interest in making sure that this report makes them look good. So it probably would not be admissible under this hearsay exception. That's very different on the other hand from somebody who earlier that same day made a standard routine notation of the time that the bus actually left the shop and the number of miles that were on the odometer at that moment. If those are things that they recorded every day long before the bus ever was involved in an accident or went into the ditch, that other document could be admissible under this exception because that document was prepared before the accident even took place. It was prepared before there was any anticipation of litigation and therefore it was prepared at a time when there was no reason to presume that there was a lack of trust within us concerned in that document. We also have the public records exception which is closely related to the business records exception. In truth the only difference is that this kay exception applies to business records that are created by public employees. So if we've got a document, a written document that was created by a government employee concerning routine observations that were made by that employee as part of their regular job obligations, duties and responsibilities, that document is also generally admissible under this hearsay exception with two important qualifications you need to keep in mind.

[00:39:41]Don't forget this hearsay exception has a particular exclusion. It says that this here's the exception does not include in a criminal case a document prepared by law enforcement personnel. So if a police officer appears at the scene of an accident and starts taking observations and making measurements of the length of the skid marks, let's say, and makes a routine notation in a report that one of the cars had already flipped over. though that police report is admissible under the public records exception at a later civil trial arising out of this accident. But if there is a criminal prosecution brought uh against one of the individuals who was involved in this car accident, the police officer's report will not be admissible under this exception. Even though it is a public record that was prepared by a police officer in the line of duty because of concerns with respect to the confrontation clause, this exception will not allow that admission of that statement at that trial, not at the criminal trial. Again, this exception, just like the business records exception, remember, also gives the judge the discretion and the responsibility to exclude the evidence if the source of the information or the other circumstances indicate a lack of trustworthiness. So, just like the business record, if the document clearly appears to have been prepared under circumstances where we're not so sure that we can trust it, this exception is flexible enough to give the judge the discretion to say, "I will not allow it." And when it says the source of information, we want to know, well, where did the police officer get this information? A moment ago, I talked about a police officer who was there and saw one of the cars upside down and saw the length of the skid marks and measured it all with her own eyes. Those are the kinds of details that make this sort of a report generally very reliable. But we would not allow under this here's the exception a the admission of a police report that was written by a police officer who writes down when I arrived at the scene. I spoke with several of the witnesses and the witnesses told me the following things. Even though she's quoting them in what is officially an official police report, the people that she is quoting are not police officers, nor were they government employees, and they were not under any kind of a professional obligation to speak truthfully. So we have no reason to presume that there's that these statements made by them to her were accurate and what they said to her will not be admissible under this exception even if what they said to her was actually written in a public record or in a business record. Remember the business record and the public records exception only apply to statements that were created in the ordinary course of a business by somebody who was working for a private business or a public agency and only if those people were recording things that they had seen themselves, not information that they received from others who did not work at the business or did not work for that government agent agency. The basic outline of the hearsay rules, remember there's rule 803, what I sometimes call first class hearsay.

[00:42:34]We've covered that already. We've talked about those kinds of hearsay exceptions that are deemed to be so reliable that we will always allow them even for the truth of the matter asserted regardless of whether the declarant is available.

[00:42:46]We talked about business records, public records, statements for the purpose of medical diagnosis or treatment, excited letterance, present sense impression, that existing physical, mental or emotional condition, recorded recollection. If you've got a scenario involving any of those situations, it really doesn't matter whether the declarant is available or unavailable.

[00:43:04]If you don't have a situation governed by one of those rules, then finally you have to consider whether it might be admissible under 801D1 or rule 804. Rule 801D1, well, I say as long as she's here anyway, is a is the rule that sometimes will allow the admission of prior statements by a witness that we will accept, but only because the witness is here and available to be questioned about them. And ironically, we've then got flip the flip side of that as rule 804 hearsay that we might call better than nothing. Second class hearsay that is really not as good as the original thing as the real thing as the original declarant. But we will accept them with some misgivings as a last resort if and only if the declarant is unavailable. So this can be a little confusing. Don't be confused.

[00:43:51]Remember, there is no hearsay exception called the available declarant exception and there is no exception called the unavailable declar exception. The mere fact that the person who made the statement out of court, let's call her Donna the declarant. The mere fact that Donna is here in the courtroom and available for cross-examination, that does not by itself automatically mean that the hearsay objection will be overruled or that the evidence will be allowed. And likewise, the mere fact that Donna is now deceased or unavailable does not mean that what she said out of court will therefore be admissible. Her unavailability or her availability may change with the answer of the question, but only if it can be fit into one of the various categories, the pigeon holes that pertain to these rules. Let's take a look at the most important of those. There are three rules, three situations where we will overrule a hearsay objection if and only if Donna, the one who made the statement, is here in the court and available to be questioned about that statement. Under the rules, these are called a declarant witness's prior statement. The rules state that a statement is not hearsay. If the declarant testifies at trial, is subject to cross-examination about the statement, and the statement is one of the following three things. either a prior inconsistent statement given under oath at a trial or a hearing or a prior consistent statement. But that only works, remember, if it's offered to rebut the charge that Donna can't be trusted or that she might be lying because of some recent event that allegedly gave her a motive to lie. If that's what the cross- examiner tries to suggest, the the attorney who called Donna to the to the witness stand can try to rehabilitate Donna now by bringing in additional witnesses or maybe even asking Donna herself to verify that Donna was saying the same thing that she said here today even before the the fight that she had with this individual that supposedly gave her the motive to lie in an effort to get him into trouble. And finally, statements of identification. When a witness, for example, picks somebody out of the lineup and says to the police officer, "Yeah, there's the guy who tried to hit me." That statement is also a statement made out of court.

[00:45:56]Obviously, it's being offered to prove the truth of what he said out of court.

[00:45:59]And we will, but we will allow this just the same. We will let the police officer testify. I took the victim to a lineup.

[00:46:05]She saw a number of individuals and she pointed out to the defendant and said that he was the one who tried to assault her. That will be allowed under this hearsay exception. Remember, if and only if the victim or in this case, the declarant, the one who made the statement of identification is present in the courtroom or will be present in the courtroom and will at some point in this trial be made available for cross-examination about the statement. What you tell the police in a lineup if you are the witness or a victim will be admissible under the hearay rules if and only if you will also be testifying at the trial. So, watch out for that on the bar examination. It's a common trick question. If they tell you that the person who made a statement as the lineup is now deceased or cannot be located, then what they said to the police cannot be admissible under this exception. Maybe another exception, probably not, but not this exception.

[00:46:52]And finally, we want to take a moment to touch upon rule 804. Second class hearsay, but better than nothing. And therefore, statements that under the law will be admissible if and only if the declarant is not available to testify at trial. So these also like the ones we talked about a moment ago. We talked a minute ago about the hear exceptions that only apply if the declarant is available. Now we'll take a quick look at the hear exceptions that apply only if the declarant is unavailable. And if you get to this point in the analysis, then and only then will you have to actually take the time to read the entire question. But unless it's one of those two situations, remember if it's one of the others that we talked about earlier today, if it's a if it's a business record, if it's a present sense impression, if it is a excited utterance, if it's a public record, the bar examiners will frequently try to distract you by giving you gratuitous details about whether the declarant was available or was not available. It doesn't make a difference. But here it does. Here are the three most important and frequently tested hearsay exceptions that will apply if and only if the declarant is unavailable. The first is the former testimony exception.

[00:48:01]Testimony that is now offered against a party who had the chance to cross-examine that testimony when it was given. For example, imagine that a witness named Donna is questioned at a deposition or at a preliminary hearing or at a trial. Later, Donna becomes unavailable. She cannot be located.

[00:48:22]She's in another country. She's deceased. And the so we can't call her to the witness stand, but we still have the transcript of the testimony that she gave at the first trial or at the deposition. So, we're offering that into evidence instead in lie of Donna. We'd obviously prefer to have her live if we could, but we can't. This exception says we will allow that if and only if it is offered against a party who had the opportunity to cross-examine Donna when this statement was first given. So take a look at who's objecting. If the party who's objecting says, "I object that it's hearsay." The judge might say, "Well, yes, it is hearsay, but it's admissible because the statement that Donna gave was at a deposition, and you were president of the deposition. Or if you weren't present, you had notice of the deposition. It was your choice not to appear. You had the chance to appear.

[00:49:08]You had the motive to cross-examine her.

[00:49:09]You had the chance to cross-examine her.

[00:49:11]And so because she is unavailable and because you had the chance to cross-examine her and presumably would have done so, we're going to allow this.

[00:49:19]Remember this here's the exception does not apply to testimony that was given under oath at the grand jury. A grand jury proceeding is exparte. There's nobody at the grand jury except the prosecutor, the witness and the grand jurors. The defense attorney is not present. So if a testimony is given under oath by a witness before the grand jury and that witness later becomes unavailable, that testimony is almost certainly inadmissible under any of the hearsay rules and it is not admissible under this exception because the defendant was not there and didn't have the chance to question her. Okay, which is another way remember as I said of reminding you as I said earlier there's no general hearsay exception that says well as long as the declarant is unavailable then what she said will be admissible. That's not necessarily so.

[00:50:00]This exception only applies if it was given under oath at a trial or at a hearing or at a deposition and if the party who's now objecting had the chance to cross-examine that testimony when it was first given. Next, there will surely be at least one or two questions on the bar examination involving the so-called dying declaration or what the federal rules of evidence call a statement under the belief of imminent death. a statement being made by somebody who was dying or believed that they were dying and who sincerely believed that their death was imminent. But remember, there's a couple of important limitations on this hearsay exception.

[00:50:34]Number one, it only works if it is offered in a murder prosecution or in a civil case. This is the only one of all the hearsay exceptions that contains this admittedly somewhat arbitrary limitation. The other here's the exception. It doesn't matter really whether it's a civil or a criminal case except for public records which cannot be offered against the accused in a criminal case if the public record was prepared by a police officer. But none of the other here's the exceptions are limited to civil or criminal cases. This one can be used in any civil case and it can only be used in a criminal case if the defendant is accused of murder which admittedly is a very arbitrary limitation but so it is. That's that's so be it. That's the rule. So watch out for this one. If it's a dying declaration, if a statement is offered in a criminal trial by somebody who thought that he was dying, but the defendant is not accused of murder, he's accused of some other crime, kidnapping, or he's accused of attempted murder because the victim actually never did die. It cannot use with this exception. And the other limitation that you've got to remember to keep in mind is that this exception does not apply to somebody who happens to be talking about unrelated matters at the moment of his death. This exception does not apply to everything that you happen to say at the moment of your death. It only applies to statements concerning to the cause or the circumstances of the death. So, if a man's just been shot and while he's lying there on his deathbed, moments from death, and he knows that he's only got moments to live, and he makes a statement to the nurse and says, "Listen, I want to make sure that you make it clear, there's a civil lawsuit, uh, scheduled to go to trial next week involving an easement that I believe that I had, uh, in a dispute with my brother over some real property, and I'd like you to reveal the following details to the the jury at that civil trial.

[00:52:13]that is not admissible as a dying declaration. This exception only applies for what you want to tell other people about who just shot you and why you think you're dying. It's limited to murder cases. In other words, it's got to be a statement about the cause or the circumstances of the death. And remember, this exception only applies to somebody who sincerely believed that his death was imminent. If the dying person said to the emergency room attendant, "I think I'm going to make it. Get me a doctor. I think I'm going to pull through."

[00:52:42]Then even if he died moments later, it's not admissible under this exception.

[00:52:46]This exception is based entirely on the theory that we can trust people who honestly believe that they're about to die because as the common law cases frequently said, no man would want to meet his maker with a lie upon his lips in the familiar language of the common law tradition. So, it's critical as far as this hearsay exception goes that the person who made it to the statement really truly believed that his time was up and that his death was inevitable and that it was imminent merely moments away. If the witness makes statements to indicate that he thinks he's got a month to live, this exception does not apply.

[00:53:17]If he asks to see a doctor, then obviously he hasn't given up hope. This exception does not apply. If he asks to see a priest so that he can get his last rights, well then that may well be admissible under this hearsay exception.

[00:53:28]And by the way, one more little curious twist. This exception in fact does not require that the man actually die.

[00:53:35]Although it does require that it be unavailable at the time of trial. So if a man honestly sincerely believes that he's dying shortly after he's shot and he tells the police officer, "Roco was the guy who shot me, but miraculously somehow the man unexpectedly pulls through and he recovers." Is that statement that he made admissible at trial? Can the police officer testify at Roco's criminal trial, murder trial or attempted murder trial? Can the police officer testify that that uh this man made this statement? The answer would be no. The answer would be no because I I said he pulled through. That means it was only an attempted murder prosecution. It wasn't a murder case. And would the police officer be able to testify uh if there's a civil lawsuit against Roco for the shooting? Would the police officer be able to testify that shortly after the shooting, the apparent victim told me that Rocka was the one who shot him? You might be tempted to think, well, no, would it couldn't be admissible under this exception, not even in a civil case, because the man did not die, but that doesn't matter. He thought that he was dying, so it would be admissible under this exception, but only if he's unavailable for some other reason. If he's now in Brazil or in a prison in some distant nation or he's in a coma, then this exception might apply ironically even though he did not die as long as he was unavailable and he thought that he was dying. Finally, I just want to mention briefly the only other rule 8004 exception that is likely to be mentioned on the bar examination is the proverbial statement against interest. All I want to tell you about this is that it is almost never the right answer in the multi-state bar examination.

[00:55:12]It is almost never the right answer. It will surely be the wrong answer. I promise you that there will be at least a few questions on the multi-state bar examination where one of the choices will say it is admissible as a statement against interest. And I think I can safely assure you that that will probably never be the right answer. And I say that simply because it is so difficult to write a fact pattern where this is the right answer. And to do so, you'd have to imagine a set of circumstances that are really rather contrived and far-flung, rather kind of unlikely.

[00:55:41]People make statements all the time that are regressed to their interest. All day people are making statements that if they were publicly revealed might expose that individual to criminal prosecution or civil liability. The problem is whenever you see a fact pattern involving a statement of that sort, somebody who makes a statement that looks like it could be used and was in fact later used against him, then we don't need this hearay exception.

[00:56:04]Because if it's actually being used against him, the guy who said it, does that ring a bell? Yes, that's a statement of a party opponent or an opposing party and that it is admissible regardless of whether the declarant is available. In the real world, just as on the bar examination, well over 99% of all statements that look like they might be admissible as a statement against interest are admissible because they are offered against the guy who said it.

[00:56:30]Admissible and admitted as a statement by an opposing party. So, we don't even need this here exception.

[00:56:36]You could write a fact pattern that would involve a statement that it would be admissible under this exception, but not under any other exception, not even as a statement by an opposing party. But to do so, you would have to put so many details into the fact pattern. You would have to explain why this man is unavailable. You would have to explain why it is that this statement is relevant even though it is not being used against the guy who made the statement. And by that point, the question starts to look sort of unrealistic and rather unduly complicated. something inside you will intuitively tell you this sounds rather bizarre, rather implausible and and so be it. It probably is. That's why in the real world, this exception does not account for the admission of an awful lot of evidence. So, if you on the multi-state bar examination are reading a question and you're tempted to choose choice C where it says, "Yes, this is admissible as a statement against interest," take another long look at that question. You're probably wrong about it. And ask yourself, wait a minute, is it being offered against the guy who said it? Because if it is, then that's the wrong answer. It's admissible then as a statement by an opposing party. If you look again at the fact pattern and you say to yourself, "This sounds so implausible. I don't think this sort of thing would ever happen.

[00:57:46]That's a rather improbable collection of coincidences." Then and only then is it possible that the right answer will be, "Well, it is admissible." This is a statement against interest. Finally, just to tie it all together, I wanted to review briefly the fundamentals of confrontation clause.

[00:58:02]The bar examiners may also ask you and will surely ask you at least a few questions where one or more of the choices will ask about whether a statement arguably hearsay might be admissible or inadmissible because of the confrontation clause. The confrontation clause of the sixth amendment of the United States Constitution operates among other things in a fashion that is somewhat similar to the hearsay rule because the confrontation clause also under certain circumstances forbids the admission or requires the exclusion of certain kinds of evidence about certain kinds of statements made out of court.

[00:58:37]But the confrontation clause and the hearsay rules are not identical.

[00:58:41]Remember the confrontation clause according to the Supreme Court is limited to only testimonial hearsay. For the purpose of the confrontation clause analysis, the Supreme Court has said we need to distinguish and to separate two different kinds of hearsay. That which is testimonial and that which is non-estimonial. Now this distinction has nothing to do with the hearsay objection. If an objection is made under the hearsay rule, you don't need to analyze whether it was testimonial. That doesn't make a difference. But as far as the confrontation clause has concerned, the Supreme Court has ruled that it only applies to testimonial hearsay. What is testimonial hearsay? Well, obviously it includes testimony. When somebody is giving statements under oath, in court, in a courtroom proceeding, at a guilty plea, in front of the grand jury, testifying in the trial, obviously that is testimonial. Likewise, the Supreme Court has said, even if you're not under oath and at the courthouse, if you are talking to the police officers or some other government agent, and you are giving them information that you know full well is likely or certain to be used to help them put together a criminal prosecution, that is also likely to be testimonial. Although not everything you say to the police is testimonial, the Supreme Court has also clarified that if there is a frantic, stressful situation where people are making excited utterances left and right, somebody's just been shot and someone calls the police and over the phone or they're talking to the 911 operator or moments later the police arrive and people are frantically saying, "Someone's just been shot. He ran off in that direction. I think he's got a gun. I'll give you his name." The Supreme Court has said that is not testimonial and it is not excluded by the confrontation clause because the person who was making the statement at that point in time was not doing so primarily for the purpose of assisting the police in putting together a criminal prosecution down the road in the sweet by and by. They were trying to help the police get an ongoing emergency situation under control.

[01:00:32]So, if the one police officer wants to testify at a criminal trial that moments after the shooting, I ran up to the scene and the victim told me that he had just been shot by Johnny and Johnny had run off in a certain direction and I and I ran in hot pursuit. If the defendant objects that this is hearsay and that it is a violation of the confrontation clause, both objections would be overruled. Why? The here's the objection will be overruled because it was an excited utterance. And it may also have been a present sense impression if the statement was made literally only a few moments after the shooting. And the confrontation clause objection will be overruled because it is not testimonial hearsay. It was a statement made for the purpose of getting an ongoing emergency situation under control. If it is not testimonial hearsay, then the confrontation clause objection will be overruled. That doesn't mean the evidence will be admitted because the hearsay objection might still be sustained, but the confrontation clause objection will be overruled. What if it is testimonial? Well, then it it is probably inadmissible unless the Supreme Court has said there are two situations, at least two important situations where testimonial hearsay, even though it is testimonial, will still be admissible under the confrontation clause. First, if the declarant is produced for trial and made available for cross-examination, the Supreme Court has said, then you have the right to confront the accuser, the witness against you, and the confrontation clause is satisfied. In a criminal case, for example, let's suppose that we've got a young child who was the victim of the crime or a witness to the crime, but the child is not terribly talkative and not very eloquent. Maybe she's very frightened and she's not able to talk a great deal about the case. So the the prosecution wants to bring in the child's mother and babysitter and doctor and a police officer and wants to ask all of these adults to tell the jury about the statements that the child made to them as well. Would that be admissible? If the defendant objects, as he surely will do, that this is a violation of the hearsay rule and the confrontation clause, he might be right about the hearsay objection that may or may not be sustained, but his confrontation clause objection will be overruled as long as the little girl is produced for trial. If the declarant, the one who made the statements, is produced at trial and testifies, even if only briefly, and is made available for cross-examination about what she said to her mother and the doctor and the babysitter and the police, then the confrontation clause is not violated. If all these other individuals are also brought in and allowed to testify as to what the girl told them, that objection will be overruled.

[01:03:03]But again, that doesn't mean that it will be admissible. We'll still have to find a hearsay exception that will apply to each of the statements that the girl made to each of these different individuals. The statement of the doctor may have been, for example, for the purpose of medical diagnosis or treatment. The statement of the mother might have been an excited utterance if she was hysterical when she talked to the mother and so forth. A second situation where the confrontation clause objection will be overruled is if the declarant is unavailable and the accused either had his chance to cross-examine the declarant when the statement was made or he forfeited his right to confrontation because he was the one who caused the declarant to be unavailable and he specifically made the declarant unavailable spec solely for the purpose of trying to make sure that she would not be available to testify against him. So, for example, in a criminal case, if the government wants to call a police officer to testify about certain incriminating statements that were made by a declarant named Donna, who is now unavailable, let's imagine that she's deceased, recently been murdered. If the defendant objects that this is inadmissible, hearsay, or a violation of the confrontation clause, both of those objections will be overruled if the judge can first be persuaded by the prosecutor that the defendant is the one who killed Donna or who arranged for her murder or who otherwise arranged for her unavailability. Perhaps he bought her a one-way ticket to Brazil. if he is the reason why she is unavailable and if we've got enough evidence here to support a finding that he did so knowingly and intentionally for the specific purpose of trying to make sure that Donna would not be available to testify against him at this trial. Then the Supreme Court has held that the hearsay rules and the confrontation clause allow the prosecutor to offer evidence from the police officer or for that matter from anybody else who wants to tell us about anything that was said to them under any circumstance under any circumstances by Donna on the theory that the defendant will not be allowed to complain that he didn't have the chance to cross-examine this one because after all he is the reason why she was unavailable and therefore he's the reason why he does not have the chance to cross-examine her. But don't forget that will only work if there's evidence sufficient to support a finding by the judge that the defendant made her unavailable specifically for the purpose of trying to make her unavailable to testify. Under those circumstances, the objection under the hearsay rule will be overruled and the objection under the confrontation clause will also be overruled. Well, this concludes our review of everything I think you'll probably be likely to need to know in order to have the ability to answer successfully and with great confidence all the multi-state questions concerning the law of hearsay. I wish you all great luck, great success on the bar examination and uh with God's help, we'll never have to go back again. Thank you very much. Bye-bye.