Transcript A Tale of a Tale” - Home | Tennessee Administrative

“A Tale of a Tale”
The Hearsay Rule
• McCormick – “Ask the man on the street what he
knows about the law of evidence. Usually the
only doctrine he will be able to mention is the
one called by the old English word -- ‘hearsay.’”
• Wigmore -- “That most characteristic rule of the
Anglo-American Law of Evidence --- the greatest
contribution to the world’s legal system next to
the jury trial.”
Colledge’s Trial -- 1681
• Counsel for the prosecution labels hearsay
coming from the witness’s mouth:
•
“A TALE OF A TALE.”
• Burger King - “Home of the Whopper” (1957)
LORD COKE ---- 1641
• Denounces “the strange conceit that one may
be an accuser by hearsay”
McCormick on Evidence
• Factors upon which credibility of testimony
depends:
• 1) Perception : Did the witness perceive
accurately?
• 2) Memory : Has the witness retained
accurate impression of what he/she
perceived?
• 3) Narration: Is the language of the witness
such as to convey the impression correctly?
Conditions under which citizens should
be required to testify:
• 1) OATH - Special obligation for truth
•
- Ceremonial oath
•
- Danger of punishment
• 2) PERSONAL PRESENCE AT TRIAL
•
- Observe Demeanor
•
- Solemnity of occasion
•
- Exposure to public disgrace
• 3) CROSS-EXAMINATION
•
- Security for correctness (“the truth”)
•
- Protection of completeness (“whole truth”)
•
- Not false (“nothing but the truth”)
“SO HELP ME GOD”
• A special obligation to tell the truth – invoking
the pleasure or displeasure of the divine
• Some courts utilize this aspect of the oath and
others do not – but it adds a layer of
solemnity for many people in court
A person who relates a hearsay is not
obliged:
•
•
•
•
•
•
1) To enter into any particulars
2) To answer any questions
3) To solve any difficulties
4) To reconcile any contradictions
5) To explain any obscurities
6) To remove any ambiguities
FOX NEWS
• Major source of news reporting by FOX:
•
“Some people say……….”
• “We report. You decide(on our hearsay)”
“A person who relates a hearsay”
• “Entrenches himself in the simple assertion
that he was told so, and leaves the burden
entirely on his dead or absent author”
•
McCormick on Evidence
Cross - Examination
• “THE MOST EFFICACIOUS TEST WHICH THE
LAW HAS EVER DEVISED FOR THE DISCOVERY
OF THE TRUTH”
• Judge Nisbet in McCleskey v. Leadbetter
1 GA 551 (1846)
“The truth of the matter asserted”
• Facts: W, a witness, states that D, a declarant,
reported that X was driving a stolen car at 75
mph at a given time and place.
• 1) If for truth about X, it is inadmissible hearsay;
• 2) If to show D speaks English, or
• 3) To show D was conscious at the time, or
• 4) To reflect a slanderous statement by D—
• for situations in 2,3,4 – admissible testimony as is
not for truth of X’s conduct
TN Rule of Evidence 801
“Statement” – (1) An oral or written assertion or (2)
non-verbal conduct of a person if it is intended by
the person as an assertion
“Declarant”– a person who makes a statement
“Hearsay” – a statement, other than one made by a
declarant while testifying at trial, offered in
evidence to prove the truth of the matter asserted
TRE RULE 802
• “Hearsay” is NOT admissible except as
provided by Tennessee Rules of Evidence or
otherwise by law
• RULE 803 : EXCEPTIONS to Hearsay Rule
Hearsay Exception #1
•
•
•
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Prior Statement of Identification by Witness
Four elements to allow witness to testify:
1) That a declarant made an ID of a person
2) That the ID was made after declarant
perceived the person
• 3) That declarant testified at trial
• 4) That declarant was subject to cross-exam
State v. Billy Tate (2013)
• Facts: Det. Early was investigating burglary. After
some investigation, Det. Early detained the
defendant. At a stop at Vaughn Repair about
evidence, a witness (Dunson) told Det. Early he
saw the suspect. He said, “That’s the MF right
there.”
• Held: Under Rule 803(1.1) both Det. Early and
Dunson can testify at trial regarding the ID by
Dunson because Dunson was present and
testified, subject to cross-examination.
State v. Stout (Tenn. 2001)
Facts : Witness Jordan was a participant in crime
with defendant (D). Jordan testified and ID’ed D as
killer. Witness (Woodall) testified that Jordan told
her day after crime that D killed victim.
D objected to Woodall’s testimony of Jordan
ID’ing D as murderer on basis of hearsay.
Held: Rule 803 (1.1) applies to allow both Jordan
and Woodall to testify of Jordan’s prior
identification of D as killer. This is true due to
safeguard of rule subjecting Jordan to cross –
examination about her identification of D as killer.
Supreme Court in Stout says:
• “Case law and custom notwithstanding, the rule
(803(1.1)) itself does not limit its application to
prior identifications from photographs, line-ups,
or similar procedures. It simply states that there
must be an identification of a person ‘made after
perceiving the person.’ …
• “We interpret this language to mean what it says:
that the person who made the ID must have
personally perceived the person identified.”
State v. Stout – Rule 803 (1.1)
• The Supreme Court concluded that presence
of the declarant at trial and the crossexamination of the declarant are the
safeguards always in place under the rule
“regardless of whether the identification is
based on a photo display, line-up, or simply a
statement made to another person, as in this
case.”
Hearsay Exception #2: Rule 803 (1.2)
Admission By a Party Opponent
• A statement offered against a party that is:
1) The party’s own statement
2) A statement a party has adopted as own
3) A statement by person authorized to speak
4) A statement by agent or servant within scope
of agency or employment then in existence
5) A statement by a co-conspirator of a party
6) A statement by a person in privity of estate
Admission by party opponent
• 1) An admission expressed by a party
opponent in the form of an opinion is
admissible under Rule 803 (1.2)
• 2) The statements which come in under this
rule are not conclusive and can be rebutted by
the party against whom the statement has
been admitted into proof.
Example of Use of Rule 803 (1.2)
• State v. Davis (Tenn.Cr.App. 2013)
Facts: The defendant had cash seized from him
in a drug case under forfeiture statute.
The defendant filed civil action claiming an
interest in the cash and seeking a judgment.
Held: The defendant’s claim of ownership in the
seized cash was deemed an admission against
interest of a party opponent as the information
was conveniently supplied by the defendant.
Exception #3: Excited Utterance
• Requirements of Rule 803 (2):
1. Startling event or condition that suspends
normal, reflective thought process of
declarant
2. Statement must relate to startling event
3. Declarant must make statement while under
stress or excitement from the event / condition
State v. Franklin (Tenn. 2010)
Facts: Woman runs out of cleaners shouting,
“That man just robbed me.” Witness runs to
exiting vehicle and writes down license tag.
License tag (of defendant) was admitted into
evidence incriminating defendant.
Held: The statement – written down license tag
number -- is admissible as witness was acting
under excitement of startling event (screaming
woman crying for help due to robbery)
Rule 803 (2) : Excited utterance
• Conclusions of TN Supreme Court:
• 1. The license tag written down was hearsay.
• 2. Under Crawford, the license tag was nontestimonial as its primary purpose was to help
during an emergency and not for purposes of
prosecution.
3. The statement is admissible under “excited
utterance” exception to hearsay rule.
“Ultimate Test” of excited utterance
rule as stated in Franklin
• “Whether a statement meets the excited
utterance standard” -- “spontaneity and logical
relation to the main event,” and
• “Where an act or declaration springs out of the
transaction while the parties are still laboring
under the excitement or strain of the
circumstances and at a time so near it as to
preclude the idea of deliberation and
fabrication.”
Key Cases : Excited Utterance Rule
• 1) State v. Stout (Tenn. 2001) – No abuse of
discretion when statement made 12 hours
after startling event as victim clearly upset
• 2) State v. Anderson (Tenn. Cr. App 2008)–
defendant’s 911 call should have been
admitted as excited utterance; State v. Smith
(Tenn. Cr. App. 12-5-13) -- victim’s 911 call
properly admitted as excited utterance)
Factors in Excited Utterance Cases
• Relevant Factors in excited utterance cases:
• 1) Time interval from startling event to
statement;
• 2) Nature and seriousness of event;
• 3) Appearance, behavior and circumstances of
declarant, including age, physical and mental
condition;
4) Content of the statement itself (stress)
Analysis of Hearsay Admissibility
Under Crawford / Maclin
• Key Cases:
• 1) Crawford v. Washington
•
541 U.S. 36 (U.S.S.Ct. 2004)
• 2) State v. Maclin
183 S.W. 3d (Tenn. 2006)
Crawford / Maclin Analysis
• Issue: Is the hearsay evidence which is being
offered into evidence against the accused
admissible under the Confrontation Clause of the
U.S. Constitution (6th amendment) and under the
Tennessee Constitution, Article I, Section 9?
• Rule: Testimonial statements may not be offered
into evidence unless two requirements are
satisfied:
• (1) Declarant/witness must be unavailable;
• (2) Defendant must have had prior opportunity to
cross-examine the declarant/witness.
Crawford / Maclin Analysis
• THRESHOLD QUESTION : Whether the
challenged statement (hearsay evidence) is
testimonial or non-testimonial?
• Tennessee adopts case-by-case approach to
determine whether statement is testimonial
or non-testimonial evaluating the
circumstances of each case.
State v. Maclin
Factors of case-by-case approach
• 1) Whether declarant was victim or observer;
• 2) Whether contact was initiated by declarant
or by law enforcement officials;
• 3) Degree of formality attending
circumstances in which statement was made;
• 4) Whether statement was given in response
to questioning, whether questioning was
structured, and scope of such questioning;
State v. Maclin
Factors of Case-by-case approach
• 5) Whether statement was recorded (either in
writing or by electronic means);
• 6) Declarant’s purpose in making statement;
• 7) Officer’s purpose in speaking with declarant;
• 8) Whether objective declarant under
circumstances would believe that statement
would be used at trial.
• The list is not exhaustive and other factors may
be considered.
State v. Maclin
Conclusion
• (1) If testimonial, the statement is inadmissible unless
(a) witness is unavailable and
• (b) defendant had prior opportunity for crossexamination;
• (2) If non-testimonial, then pursuant to Ohio v. Roberts,
448 U.S. 56 (1980), an out of court statement by
unavailable witness is admissible if it falls within firmly
rooted exception to hearsay rule or contains such
particularized guarantees of trustworthiness that
adversarial testing of statement through crossexamination would add little to whether or not
evidence is reliable.
Exception # 4 : “Then Existing State of
Mind” – Components of Exception:
• 1) Statement of declarant
• 2) As to declarant’s then existing state of mind
(intent, plan, motive, mental feeling, etc.)
3) Is admissible to prove the mental state at
issue or subsequent conduct consistent with
that mental state);
4) As long as the issue is relevant;
5) But only applies to declarant’s conduct
State v. Trusty (Tenn. Cr. App. 2010)
• Facts: Witnesses were allowed to testify about
deceased victim’s fear of defendant, victim’s
break-up with D, steps she took to avoid D,
and her plans to drive a vehicle unknown to D
• Held: “Given proof of the on-again, off again
nature” of relationship, proof was relevant to
show victim’s state of mind, including her
likelihood or not to meet with the defendant
State v. Danny Owens
(Tenn. Cr. App. 3/24/14)
• Facts: Witnesses were allowed to testify about
victim’s (wife of defendant) statements regarding
husband’s infidelity, plan to confront him around
time of death and her excitement about son’s
upcoming marriage
• Held: Evidence admissible to show victim’s state
of mind to confront D to show D’s motive to kill;
also her excitement regarding son’s wedding
rebutted idea she committed suicide
Exception # 5 : Statements for
Medical Diagnosis and Treatment
• 1) Statement by declarant for purpose of
medical diagnosis or treatment;
• 2) Describing medical history
• 3) Must address the inception or general
character of the cause or source of problem;
• 4) Must be reasonably pertinent to diagnosis
and treatment
Medical Diagnosis and Treatment
• 1) Exception to hearsay rule is predicated on
perception that statements for diagnosis are
deemed to be reliable and trustworthy;
• 2) Declarant’s motive of improving health
increases likelihood of trustworthiness;
• 3) Declarant is self-interested in telling the
truth
Medical diagnosis exception:
problematic with child victims
• State v. Gordon (Tenn. 1997)
• Facts: Child victim taken to hospital but not able
to be examined till next day when child gave
history of problem (sex assault) to child
psychologist, including history of sex attack
• Held: Issues are more problematic due to child
possibly not perceiving need for truthfulness in
medical setting. Factors indicated truthfulness as
child cried out in pain, child in pain when mom
bathed her, child ID’ed defendant as cause of
injury; exam was timely under circumstances
Medical Treatment and Diagnosis:
When child is the declarant
Cases look to “totality of the circumstances” :
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1) timing and content of statement;
2) presence or absence of improper influences;
3) any leading or suggestive questioning;
4) any other factor affecting trustworthiness of
statement
Exception #6 – Recorded Recollection
Requirements:
• 1) A memorandum or record
• 2) About a matter the witness once had
knowledge of
• 3) Witness now has insufficient recollection to
testify fully and accurately
• 4) Statement was made or adopted by witness
• 5) When fresh in the witness’s memory
• 6) Record accurately reflects the witness’s
knowledge
Mitchell v. Archibald
(Tenn.Ct.App. 1998)
• Facts: Mitchell was riding a bicycle when he was
struck by a dump truck being driven by Archibald.
Gardner was a witness to the accident and gave a
recorded statement (audio) when the facts were
fresh on his mind. When the time for trial came,
Gardner was unable to testify because of a brain
aneurysm and surgery which affected his
memory.
• Issue: Can Gardner’s audio statement be used in
evidence over Archibald’s hearsay objection?
Mitchell v. Archibald
• Held: Yes – the statement may be admitted as
substantive evidence as contrasted with
refreshing a witness’s recollection under Rule
612.
Why?
• 1) Record was in form of audio
• 2) Gardner had firsthand knowledge
• 3) Gardner was unable to testify accurately
• 4) Gardner remembered giving the statement
• 5) While it was fresh on his mind
• 6) When he gave statement he had full memory
Exception # 7 : Business Records
Requirements for exception:
• 1) Document must be made at or near time of
event recorded;
• 2) Based on first hand knowledge of events;
• 3) Must be under business duty to record info;
• 4) Business must have regular practice of making
such documents;
• 5) Manner document is prepared must not
indicate lack of trustworthiness
•
Arias v. Duvo Standard Products
•
303 S.W.3d 256 (Tenn. 2010)
State v. Harlan
(Tenn.Cr.App. 2013)
• Facts: Defendant was charged with felony theft from
Kohl’s. Loss prevention officers prepared list of stolen
items which were admitted into evidence under
business records exception to hearsay rule.
• Held: List was properly admitted into evidence
pursuant to testimony of two records custodians. Both
were familiar with record keeping system; it was their
regular practice to record list of stolen items
immediately after a theft and it was their duty to so
record. There was no evidence of lack of
trustworthiness in the method or procedures used.
State v. Bradford
(Tenn.Cr.App.2014)
• Facts: In case involving bomb threat, records
custodian was called to testify regarding “call
records,” typically used for billing purposes.
• Issue: “The critical inquiry is whether the record
itself is created in the regular course of business
at or near the time of the reported event.”
• Held: Admissible as it was created in regular
course of business, pursuant to duty to so record,
for a legitimate business activity (billing).
LVNV Funding v. Mastaw
(Tenn.Ct.App.2012)
• Facts: In this collection case, the affidavits of
purported records custodian were prepared
specifically for purposes of the litigation-- to
trace the debt and establish LVNV ownership.
• Held: The exhibits were inadmissible under
business records exception due to fact they
were not prepared in normal course of
regularly conducted business activity, which
undermines trustworthiness required for rule.
Exception # 8:
Public Records and Reports
• 1) Records, reports, statements, or data compilations in
any form;
• 2) Of public offices and agencies;
• 3) About activities of the office or agency or matters
observed pursuant to duty imposed by law;
• 4) As to which matters there was a duty to report;
• 5) Unless source or method indicate lack of
trustworthiness;
• 6) And excluding matters observed by police and other
law enforcement personnel.
State v. Sisk
(Tenn.Cr.App. 1999)
• Issue: Whether a certified copy of the
defendant’s driving record as maintained by TN
Department of Safety is admissible to prove that
defendant was driving on revoked license?
• Held: Yes –“Such a driving record is admissible as
substantive evidence under the public records
hearsay exception to hearsay rule.”
Authenticating witness is unnecessary, and
evidence may be admitted anytime by simply
offering the document as an exhibit.
State v. Parker
(Tenn.Cr.App. 2004)
• Facts: In DUI and driving on revoked cases against
defendant, the state was allowed to introduce into
evidence an affidavit of Kenneth Birdwell, records
custodian for TDOT, stating that defendant’s license
privileges were revoked on 3/9/98.
• Held: The bare affidavit of Birdwell was not the driving
record of the defendant and was clear hearsay. It was a
statement what the records would show and was
prepared exclusively for use in litigation. It was not
prepared pursuant to duty as the statute does not
require agents of TDOT to prepare affidavits.
Exception #9 : Records of Vital
Statistics
• 1) Records or data compilations,
• 2) In any form of births, fetal deaths, deaths,
marriages or divorces;
• 3) If the report was made to a public office;
• 4) Pursuant to requirements of law.
Exception # 10: Marriage, Baptismal
and Similar Certificates
• 1) Statements of fact contained in a certificate
• 2) That the maker performed a marriage or
other ceremony authorized by rules of the
religious organization or by law to perform the
act certified;
• 3) Purporting to have been issued at the time
of the act or within a reasonable time
thereafter.
Exception # 11 : Family Records
1) Statements of fact concerning personal or
family history;
2) Contained in family Bibles, genealogies,
engravings on rings, inscriptions on family
portraits, engravings on burial urns, crypts,
tombstones, or the like
Why?: It may be the only evidence available.
The proof is not conclusive and may be
rebutted.
Exception #12: Records of
documents affecting an interest in
property
• 1) Record of a document purporting to establish
or affect an interest in property;
• 2) As proof of the contents of the original
recorded document and its execution and
delivery by each person by whom it purports to
have been executed;
• 3) If the record is a record of public office; and
• 4) An applicable statute authorizes the recording
of documents of that kind in that office.
Exception # 13:
Statements in ancient documents
affecting an interest in property
• 1) If a document -- be it deed, security
agreement or other instrument;
• 2) Affects a property interest, and
• 3) If it is 30 years old and authentic;
• 4) The trier of fact may take as true
statements within the document.
Exception # 14: Market reports and
Commercial Publications
• Allowable under rule:
• 1) Market quotations, tabulations, lists,
directories, or other published compilations,
• 2) Generally used and relied upon by the
public or by persons in particular occupations.
Tire Shredders, Inc. v. ERM-North
Central, Inc. (Tenn.Ct.App. 1999)
Facts: The defendants argued trial court erred in
excluding certain trade journals from entry into
evidence.
Held: Trade journals qualify as published
compilations and are admissible as exception to
hearsay rule if found to be relevant to trial
issues.
Exception # 15: Reputation Concerning
Personal or Family History
• 1) Reputation among members of a person’s
family- (a) by blood;
•
(b) by adoption;
•
© by marriage;
• 2) Or among associates;
• 3) Or in the community
Rule 803 (19)- Reputation Concerning
Personal or Family History
• The Advisory Commission states that this rule “admits
reputation to prove pedigree,” which has been the
common law in Tennessee.
• State v. Taylor (Tenn. 2007)
• Facts: Officer testified that a third person (Tori Renfro)
told him that the defendant was a cousin of Lewis,
which implied some significant facts for purposes of
the case.
• Held: The testimony was wrongfully admitted as officer
was only given statement by one person and officer did
not know defendant’s reputation for familial
relationships in the community. No foundation.
Exception # 16: Reputation Concerning
Ancient Boundaries
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•
Elements concerning hearsay exception:
1) Reputation in a community;
2) Arising before the controversy;
3) And existing 30 years;
4) As to boundaries or customs affecting lands
in the community.
Sweeney v. Koehler
(Tenn.Ct.App. 2010)
• Facts: Sweeney contended that trial court had
erroneously admitted evidence regarding an oral
agreement between predecessors in title to
purportedly establish a common boundary line
between adjoining properties.
• Held: Rule 803(20) allows declarations of former
owners which took place during ownership and
especially when accompanied with possession. It
is not necessary that the former owner testify but
only third parties who heard the declarations.
Exception # 17:
Reputation as to Character
• Donald F. Paine:
• “What is my reputation? It is what people say behind
my back. Their collective gossip forms my repute as
scholar or dunce, workaholic or sloth, beer aficionado
or beer swiller.
• “If the gossipers (elevated by evidence nomenclature
to the status of declarants) must be telling the truth for
my reputation to be relevant, then I guess we have a
hearsay problem. But even if the gossipmongers are
lying, my reputation remains the same and there is no
hearsay problem. Despite this conundrum, the Rules of
Evidence treat reputation as hearsay.”
The Wisdom of Donald Paine
• “Please observe that one’s reputation can be
formed in a community (the olden common
law neighborhood) or among associates. Your
author knows few folks at his Inskip
apartment complex, and few know the
recluse. I have no community reputation. But I
am known by my ‘associates’ at the Law
College and at several Knoxville restaurants.”
The Wisdom of Donald F. Paine
• “Let us close with the words of Shakespeare’s
notorious liar Iago, speaking to Othello shortly
before Desdemona’s murder:
• Good name in man and woman, dear my lord,
• Is the immediate jewel of their souls:
• Who steals my purse steals trash;
•
‘tis something, nothing;
• But he that filches from me my good name
• Robs me of that which not enriches him,
• And makes me poor indeed.
Donald F. Paine
• We are poor indeed without you in our midst.
• We miss you and thank you for years of humor
and wisdom in Tennessee Institute seminars,
for wisdom at our judicial conferences, and for
always being available for a phone call or a
quick cite to a case, law review article or some
morsel of law just perfect for what we needed
– post-haste.
• Thank you, Don -- rest in peace, friend ……
Exception # 18:
Judgment of Previous Conviction
• (1) Evidence of a final judgment adjudging a
person guilty of a crime punishable by death or
imprisonment in excess of one year (effectively a
felony conviction)
• (2) To prove any fact essential to sustain the
judgment,
• (3) But not including, when offered by the
prosecution in a criminal case for purposes other
than impeachment, judgments against persons
other than the accused.
State v. Scarbrough
(Tenn. 2005)
• In Scarbrough, the Tennessee Supreme Court, in
allowing the state to introduce the defendant’s
previous burglary conviction in a trial for felony
murder, said:
• “Allowing the prosecution to use a final conviction as
evidence in the trial is consistent with 803 (22), as well
as with the reality that the conviction is final and may
have probative value. Because the conviction is simply
evidence , however, and is not entitled to preclusive
effect under collateral estoppel, the defendant may
contest the conviction by introducing contrary
evidence and argument.”
Exception # 19: Judgment as to
Personal or Family History or
Boundaries
• 1)The judgment must pertain to matters of
personal or family history or boundaries;
• 2) The matters must be essential to the
judgment;
• 3) Res judicata and collateral estoppel do not take
the matter out of the realm of proof.
Exception #20 :
Children’s Statements
• 1) If circumstances indicate trustworthiness,
• 2) Statements about abuse or neglect,
• 3) Made by a child alleged to be the victim of
physical, sexual, etc., abuse or neglect,
• 4) Offered in a civil action involving issues of
D & N, severe child abuse, termination of
parental rights, custody or shared parenting.
• 5) Declarants of age 13 or older at time of
hearing must testify unless unavailable.
Tennessee Dept. of Human Services
v. Purcell (Tenn.Ct.App. 1997)
• Facts: Case involved termination of parental
rights. Hearsay statements of children under 13
pertained to potential sex abuse.
• Held: Pursuant to Rule 803 (25), such statements
were found to be admissible as circumstances
indicated trustworthiness, and the statements
were corroborated by other proof. The proof
established severe child abuse and wanton
disregard for the welfare of children.
Issue: Video of Forensic Interview in
cases of child sex victim
• State v. McKaughan (Tenn.Cr.App. 2014)
• Facts: Trial court allowed into evidence a video of
forensic interview of child sex abuse victim
pursuant to T.C.A. 24-7-123.
• Held: Court of Criminal Appeals found statute
allowing introduction of such hearsay statements
of children was not in conflict with 803(25),
which, even though it applies only to civil cases,
does not say anything foreclosing possibility of
introduction of such evidence in criminal case.
State v. McKaughan
• Held: The Court of Criminal Appeals stated
that the statute (TCA 24-7-123) was not
contrary to TN case law, nor was it a violation
of the “separation of powers” clause of the
Tennessee Constitution. The court said that
the statute leaves the ultimate decision of
admissibility with the trial court which can
determine trustworthiness of declarations of
the child declarant.
State v. Davis
(Tenn.Cr.App. 2014)
• Facts: Child victim of sex crime testified at trial, and
also forensic interview of child was allowed into
evidence pursuant to TCA 24-7-123.
• Held: The right of the defendant to confrontation of
witnesses is not violated by the statute’s allowing video
of forensic interview because the statute requires (1)
that the child testify at trial, (2) be subject to crossexamination; (3) that the trial court must be convinced
of particularized guarantees of trustworthiness about
the video, and (4) the trial court is vested with
discretion to make its own conclusions based on all the
factors.
Exception # 21 : Prior Inconsistent
Statement of a Testifying Witness
• 1) the declarant must testify at trial and be
subject to cross-examination about statement.
• 2) the statement must be audio or video, a
written statement signed by witness, or a
statement given under oath.
• 3) the judge must conduct a hearing outside
presence of jury to determine by preponderance
of evidence that the prior statement was made
under circumstances indicating trustworthiness.
State v. Zaloba
(Tenn.Cr.App. 2012)
• Facts: The defendant sought to introduce video
statement of child victim in which the victim denied
that the defendant had sexually abused him in an
apartment. The trial court denied the request.
• Held: The trial court erred in not allowing the video
into evidence. The Court of Criminal Appeals found
that the prior inconsistent statement should have been
admitted into evidence, including instruction that it
was substantive evidence and not just impeachment
evidence.
Hearsay exceptions when declarant is
“unavailable”
• “Unavailability” includes the following:
• (1) When declarant is exempted from testifying due to
“privilege”;
• (2) When declarant refuses to testify despite an order of
the court to do so;
• (3) When declarant demonstrates lack of memory of the
subject matter;
• (4) Unable to testify due to death or infirmity;
• (5) Absent and proponent is unable to procure declarant’s
attendance by process;
• (6) For depositions in civil action, and witness is at a greater
distance then 100 miles from hearing.
Hearsay exceptions when declarant is
unavailable
• The following are not excluded by hearsay rule when
declarant is “unavailable”:
• 1) Former testimony – when testimony was given and
party had opportunity to cross- examine with a similar
motive;
• 2) Statement under belief of impending death;
• 3) Statement against interest – so contrary to
declarant’s best interests that statement would not be
made if not believed to be true;
• 4) Statement of personal or family history;
• 5) Forfeiture by wrongdoing – procuring the
unavailability of a witness by wrong conduct
•
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Dwight E. Stokes
General Sessions Judge
125 Court Ave. Suite 109W
Sevierville,TN
865-908-2560
e-mail: [email protected]