Transcript Document

Through the Back Door
Hearsay Rule Exceptions
Goals
• As we investigate our cases we need to
recognize and document observations that
will be useful at trial
• When we are on the witness stand, we need
to be aware of what we can say that will cause
an otherwise objectionable piece of evidence
to be admissible
Problems with Child Testimony
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Child may not be competent to testify due to age or mental status.
Child may be afraid of the courtroom setting
Child may not want to be around the offender
Child may not understand how to testify
Child may have problems with vocabulary, both the lawyers’ and
their own
Child may not have attention span or stamina to get through it
Child may be embarrassed to talk about “body parts” in front of a
bunch of people
They freeze, they forget
They recant because if they say nothing happened they don’t have
to talk about it
In other words they have the same issues that every other witness
has
There may be times that you want to spare them from testifying.
• Wouldn’t it be nice if you could go to court
and repeat what the child told you while
speaking to you earlier in a “child friendly
environment” ?
• That would be hearsay
What is Hearsay ?
• A statement (oral, written or nonverbal)
• Offered for the truth of the matter contained
therein
• Other than one made while testifying
Problems with Hearsay Statements
• When you repeat what someone else said,
you don’t know if:
• (1) the person who said it was being truthful,
• (2) the person accidentally misstated the facts,
• (3) the person’s memory of the fact is correct
• (4) the person properly perceived what he
believes he knows.
Not all statements are hearsay
• Some statements don’t make an assertion
• Some statements that make an assertion
aren’t offered for the truth of the assertion
“i” before “e” except after “c”
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Currently 22 exceptions to hearsay rule
Examples:
admissions against personal interest,
excited utterances,
existing mental, emotional, or physical
condition
• statements made for the purpose of medical
diagnosis and treatment,
• recorded recollection/business records.
803(4) Statements for Purposes of
Medical Diagnosis and Treatment
Statements made for purposes of medical
diagnosis and treatment describing medical
history; past or present symptoms, pain, or
sensations; or the inception or general character
of the cause or external source thereof insofar
as reasonably pertinent to diagnosis and
treatment.
Justification
If you are going to a doctor with the expectation
that he is going to treat you, you are most likely
going to tell him the truth so that you
1. Receive the treatment you need, and
2. Don’t receive treatment you don’t need,
which could involve harmful side effects
Reasonably Pertinent to Diagnosis and
Treatment
• The type and extent of the assault and when it
happened would seem to be diagnostic.
• Causation of the injury may be less relevant to
diagnosis
• In child abuse cases, identification of the
offender and the location of the incident,
particularly if the offender is a member of the
child’s family may be relevant to diagnosis due
to safety and psychological concerns if the child
could be placed back with the assailant
Assessing Reliability of History
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On objection, hold hearing to determine:
Were leading questions used
Is there motive for falsifying information
Relevance of information to diagnosis
Likelihood, in declarant’s mind, that
statements will actually lead to treatment
Thoughts about Medical History
• Statement can be made to a non physician such as a
social worker or even a family member
• The child or other provider of medical history needs
to understand the information they provide will be
used for diagnosis and treatment
• Fact that no medical treatment is provided after the
history is given is immaterial to the admissibility of
the history, as long as the provider understood the
purpose for giving a history
Caution
• In Tennessee, statements made for the purpose
of evaluation only are not admissible
• Statements made to psychologists and
counsellors are not for medical treatment
• Remember that purpose of sending a child to a
medical provider is concern for the child’s
health, not to obtain an interview
• Where medical examination is delayed, it may
look more like investigation and less like
treatment
• Treatment recommendations should be
followed
Reward
• If you comply with requirements:
• Medical provider, person providing history, or
person present when history is given can
testify to history given
• Regarding manner and nature of injury and
perhaps who caused injury
• Child doesn’t have to testify to these facts
Admissibility of Video Interview
TCA 24-7-123
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More hoops to jump through:
TCA 24-7-123(a):
Child must be under 13
Describe “an act of sexual contact”
Relevant “at the trial of the person for an
offense arising from the sexual contact”
TCA 24-7-123(b)
• Child must testify to authenticity of video and
be subject to cross
• Court must find before trial that:
– Video has “particularized guarantees of
trustworthiness”
– Forensic interviewer met statutory qualifications
at the time of interview
– Recording is both visual and oral
– Entire interview of child must be recorded
“Particularized Guarantees of
Trustworthiness” Factors
• (A) The mental and physical age and maturity
of the child;
• (B) Any apparent motive the child may have to
falsify or distort the event, including, but not
limited to, bias or coercion;
• (C) The timing of the child's statement;
• (D) The nature and duration of the alleged
abuse;
“Particularized Guarantees of
Trustworthiness” Factors
• (E) Whether the child's young age makes it
unlikely that the child fabricated a statement that
represents a graphic, detailed account beyond
the child's knowledge and experience;
• (F) Whether the statement is spontaneous or
directly responsive to questions;
• (G) Whether the manner in which the interview
was conducted was reliable, including, but not
limited to, the absence of any leading questions;
“Particularized Guarantees of
Trustworthiness” Factors
• (H) Whether extrinsic evidence exists to show
the defendant's opportunity to commit the act
complained of in the child's statement;
• (I) The relationship of the child to the
offender;
• (J) Whether the equipment used to make the
recording was capable of making an accurate
recording; and
“Particularized Guarantees of
Trustworthiness” Factors
• (K) Any other factor deemed appropriate by
the court
• (There will be several situations where
admissibility under a hearsay exception is
based on a showing of reliability. This would
be a good list to use to prove reliability in
those situations.)
Qualifications of Forensic Interviewer
• …at the time the video recording was made, as
determined by the court:
• (A) Was employed by a child advocacy center that
meets the requirements of § 9-4-213 (a) or (b);
• (B) Had graduated from an accredited college or
university with a bachelor's degree in a field
related to social service, education, criminal
justice, nursing, psychology or other similar
profession;
Qualifications of Forensic Interviewer
• (C) Had experience equivalent to three (3) years
of fulltime professional work in one or a
combination of the following areas:
• (i) Child protective services;
• (ii) Criminal justice;
• (iii) Clinical evaluation;
• (iv) Counseling; or
• (v) Forensic interviewing or other comparable
work with children;
Qualifications of Forensic Interviewer
• (D) Had completed a minimum of forty (40)
hours of forensic training in interviewing
traumatized children and fifteen (15) hours of
continuing education annually;
• (E) Had completed a minimum of eight (8)
hours of interviewing under the supervision of
a qualified forensic interviewer of children;
Qualifications of Forensic Interviewer
• (F) Had knowledge of child development
through coursework, professional training or
experience;
• (G) Had no criminal history as determined
through a criminal records background check;
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• (H) Had actively participated in peer review;
TCA 24-7-123 Administrative
• Statute says a recording admitted (to be
offered) under this statute shall be
discoverable under TRCrP 16
• Statute requires the Judge to make specific
findings of fact, on the record, as to
admissibility
• Statute requires a protective order to prevent
recording from being disseminated
Limitations of TCA 24-7-123
• Doesn’t keep child off witness stand
• Can’t be used at all if child is over 12
• Doesn’t say if age is measured at the time of
interview or trial
• Only applies in criminal cases
• Have to have a mini trial to see if it’s
admissible
Limitations of TCA 24-7-123
• Getting in the Hollywood Film business
• You are going to have to be producer, director
and editor of the film
• Got to get the right people and equipment,
film the right scenes, and make sure it is
edited so only the “relevant” stuff remains
• May not know what’s relevant until time to
roll the film
Exception for Statements of Children
TRE 803(25) - Civil
• “Provided the circumstances indicate
trustworthiness” (see factors 24-7-123)
• Statements about abuse or neglect made by
the victim of physical, sexual or psychological
abuse or neglect
• Offered in certain types of cases
• Are admissible, if child under 13
TRE 803(25) – Civil
Types of Cases Permitted
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Only applies in civil cases involving:
dependent and neglect TCA 37-1-102(b)(12),
severe child abuse TCA 37-1-102(b)(21),
termination of parental rights cases TCA 37-1-147
and 36-1-113, or
• civil trials involving custody, shared parenting or
visitation where physical, sexual or psychological
abuse or neglect is an issue.
• (not criminal)
TRE 803(25) – Civil
Age of Child
• Statement of child under 13, at the time of the
hearing, is admissible
• Statement of child 13 or over is admissible if:
• Child testifies at the hearing, or
• Child is unavailable as defined in TRE 804(a)
Unavailability-TRE 804(a)
• “Unavailability of a witness” includes
situations in which the declarant:
• (1) is exempted by ruling of the court on the
grounds of privilege from testifying
concerning the subject matter of the
declarant's statement; (marital privilege,
privilege against self incrimination), or
Unavailability-TRE 804(a)
• (2) persists in refusing to testify concerning the
subject matter of the declarant's statement
despite an order of the court to do so; (refuses to
talk, asserts a nonexistent privilege, feigns lack of
memory), or
• (3) demonstrates a lack of memory of the subject
matter of the declarant's (own) statement; (called
to the witness stand and says I don’t remember
saying that)(could come in under a number of
other exceptions as well) or
Unavailability-TRE 804(a)
• (4) is unable to be present or to testify at the
hearing because of the declarant's death or then
existing physical or mental illness or infirmity;
• (5) is absent from the hearing and the proponent
of a statement has been unable to procure the
declarant's attendance by process; (can’t find, out
of state, exempt from subpoena), or
• (6) for depositions in civil actions only, is at a
greater distance than 100 miles from the place of
trial or hearing.
Unavailability-TRE 804(a)
Wrinkles
• You can be available for some reasons and not for
others (like if you remember everything about
the case except the statement you previously
made about it 804(a)(3))
• A declarant is not unavailable as a witness if
exemption, refusal, claim of lack of memory,
inability, or absence is due to the procurement or
wrongdoing of the proponent of a statement for
the purpose of preventing the witness from
attending or testifying.
TRE 803(25) – Civil
Points of Interest
• The “child’s statement” can be an oral
statement the child made that was heard by
the witness. Doesn’t have to be recorded.
• There is no requirement the statement be
inconsistent with child’s trial testimony
• (The rule seems so broad that some Judges
may have problems with it because there are
concerns about the reliability of the
information.)
TRE 803(25) – Civil
Points of Interest
• Any statement meeting the requirements of
TCA 24-7-123, but not admissible under the
provisions of that statute in a civil case, should
be admissible under 803(25) in the type of
cases that fall within its scope.
• Only actual victim’s statement qualifies. A
statement by child x describing abuse he
observed to child Y would not qualify.
Prior Inconsistent Statements of a
Testifying Witness-803(26)
• Rule 803(26) recognizes the fact that people
will get on the witness stand and lie even
though you can prove that they are lying
Prior Inconsistent Statements of a
Testifying Witness-803(26)
• Example:
• Judge to Witness, “Do you understand that
you are on trial for murder?”
• Witness, “Yes”
• Judge, ”Do you understand the penalty for
perjury?”
• Witness, ”Yes, and it’s a lot less than the
penalty for murder.”
Prior Inconsistent Statements of a
Testifying Witness-803(26)
• The following are not excluded by the hearsay rule:
• A statement otherwise admissible under Rule 613(b) if all of the following
conditions are satisfied:
(A) The declarant must testify at the trial or hearing and be subject
to cross-examination concerning the statement.
(B) The statement must be an audio or video recorded statement, a
written statement signed by the witness, or a statement given under oath.
(C) The judge must conduct a hearing outside the presence of the
jury to determine by a preponderance of the evidence that the prior
statement was made under circumstances indicating trustworthiness.
Prior Inconsistent Statements of a
Testifying Witness-803(26)
• For evidence of a prior statement to be
admissible under TRE 613(b):
• The witness must be given an opportunity to
“explain or deny” the statement
• Explaining or denying could consist of
admitting, denying, equivocating or not
remembering making all or part of the
statement
Prior Inconsistent Statements of a
Testifying Witness-803(26)
• Rule doesn’t fulfill its promise of
circumventing lying witnesses and getting to
the truth:
• If you ask a person about a prior statement
and they admit they said it, you are finished
• If you ask a person about a prior statement
and they admit they said it, but they were
lying when they said it, you are finished
Prior Inconsistent Statements of a
Testifying Witness-803(26)
• You only get to offer the prior statement if the
witness denies, equivocates or can’t
remember and then only the part they don’t
admit
• An omission in the prior statement of
information about something the witness
testifies to at trial can be an inconsistency if
you would have expected the witness to
include it in the earlier statement
Prior Inconsistent Statements of a
Testifying Witness-803(26)
• What if you have a recanting victim who is going
to testify that what they said at FI is a lie?
• Can you even call a witness for the sole purpose
of impeaching them?
• If they admit, even if they say it was a lie, you are
barred from introducing the video. Now what?
• Can I offer the video w/o sound to show
demeanor at the time statement was made for
credibility purposes (nonassertive conduct?)
Prior Inconsistent Statements of a
Testifying Witness-803(26)
• Differences between TCA 24-7-123, TRE
803(25) and this rule:
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803(26) has no limits regarding :
Type of case
Age of declarant
Whether declarant is victim
Prior Inconsistent Statements of a
Testifying Witness-803(26)
• 803(26) does have the following
requirements:
• Must be recorded, signed or under oath
• Admissibility subject to Judicial determination
of trustworthiness
• Declarant must testify and not admit
• Statement must address a matter relevant to
issue at trial (not a collateral matter)
Prior Inconsistent Statements of a
Testifying Witness-803(26)
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Sources of Prior Inconsistent Statements:
Witness interview statements, if signed
Forensic Interviews
Previous testimony– If you are afraid a witness is going to recant
or run, try to get them on witness stand at a
preliminary hearing
Prior Inconsistent Statements of a
Testifying Witness-803(26)
• Problems:
• Be ready to edit. Can only use part of
recording witness was specifically asked about
and did not admit
• Two way street: Preserved statements by your
witness are subject to be used to impeach
your witness if the information was not
accurately presented and recorded
Prior Inconsistent Statements of a
Testifying Witness-803(26)
• Rule puts a premium on obtaining accurate
statements from witnesses and properly
preserving them because they can be used for
or against you.
Excited Utterance TRE 803(2)
• A statement relating to
• a startling event or condition
• made while the declarant was under the
stress of excitement caused by the event or
condition.
Excited Utterance TRE 803(2)
• Conditions for Admission:
• Must prove declarant remained under the
effect of the exciting event at the time the
statement was made.
• Stress must be sufficient to still ones reflective
faculties and prevent the opportunity for
deliberation.
Excited Utterance TRE 803(2)
• Be open minded about what could constitute
a startling event
• Document the circumstances surrounding the
statement so we can recognize and give
accurate testimony to support the hearsay
exception.
Excited Utterance TRE 803(2)
• Example:
• Child cries out in pain during urination.
Mother asks what is wrong. Child responds,
“Daddy hurt me.” Startling event is the
painful urination.
• Mom can testify to child’s statement.
Excited Utterance TRE 803(2)
• Example:
• Child learns that she is to be returned to the
care of the alleged assailant or the location
where the incident occurred and becomes
agitated and discloses prior incident.
Excited Utterance TRE 803(2)
• Example:
• Declarant is brought into the CAC with a victim
sibling for the purpose of a collateral
interview. When the declarant finds out that
the reason they are at the CAC is that “x”
molested her sister, she becomes excited and
says that he did it to her too.
Excited Utterance TRE 803(2)
• Timeliness:
• Excitement usually diminishes rapidly with the
passage of time, but children may not make a
statement until they have had time to process
the information or until they have contact
with an adult that they trust. Statement may
still be an excited utterance if the stress is still
there at the time of the telling.
Excited Utterance TRE 803(2)
• Reward:
• Child declarant does not have to testify.
• A person who heard the child make the
statement can testify to what the child said.
• Don’t have to see child make statement.
• Parent in another room hears it, 911 operator
Then Existing Mental, Emotional or
Physical Condition TRE 803(3)
• A statement of the declarant's then existing
state of mind, emotion, sensation, or physical
condition
• (such as intent, plan, motive, design, mental
feeling, pain, and bodily health),
• but not including a statement of memory or
belief to prove the fact remembered or
proved….
Then Existing Mental, Emotional or
Physical Condition TRE 803(3)
• Examples:
• Statement by child to parent that her private
hurts.
• (Doesn’t have to be excited utterance, doesn’t
have to be in expectation of medical care)
• Just has to be an instinctive statement about a
present condition
• Admissible through testimony of parent
Then Existing Mental, Emotional or
Physical Condition TRE 803(3)
• Example:
• Child’s statement that she did not disclose
because she is (currently) afraid of the
offender or afraid she would get in trouble
• Admissible at trial through person who heard
the statement to prove reason for delayed
disclosure.
Recorded Recollection 803(5)
• A memorandum or record
• concerning a matter about which a witness once had
knowledge but now has insufficient recollection to
enable the witness to testify fully and accurately,
• shown to have been made or adopted by the witness
when the matter was fresh in the witness's memory
and to reflect that knowledge correctly.
• If admitted, the memorandum or record may be read
into evidence but may not itself be received as an
exhibit unless offered by an adverse party.
Recorded Recollection 803(5)
• Are these admissible:
• You tell a witness to write down everything
they remember about the incident because it
may be a long time before court and they may
forget details.
• You conduct a forensic interview and tell the
child that it is being recorded and ask them to
agree that everything they say will be true.
Recorded Recollection 803(5)
• (1) there must be a memorandum,
presumably to include audio or video
recording,
• (2) must be a matter about which witness had
personal knowledge-not hearsay or
speculation,
• (3) made or adopted by the witness (what
would have to happen to a CAC FI for it to be
considered “made or adopted”?)
Recorded Recollection 803(5)
• (4) made when the matter was fresh in the
witness’ memory (go home and write down
what you remember)
• (5) document reflects witness’ knowledge
accurately (while witness doesn’t remember
what he said, he somehow knows that he
would not have lied)
• Similarities between this and 24-7-123,
803(25), 803(26)
Recorded Recollection 803(5)
• Where the witness does not remember or has
a hazy or partial memory,
• The recorded recollection is read or played for
the jury, but does not go to the jury room
Present Recollection Refreshed
• Alternative use for written statement:
• Witness can’t remember
• Witness is shown statement which “jogs
memory”
• Now witness remembers and can testify
without aid of document
• Not hearsay because witness is testifying from
independent memory
Admission by Party-Opponent 803(1.2)
• You can testify to what an opposing party said
in your presence.
• It is admissible as substantive evidence, not
merely for impeachment.
• It can be offered in your case in chief.
• It can be offered whether or not the person
who said it testifies at the trial.
• It doesn’t matter if the statement was
intended to be self serving.
Admission by Party-Opponent 803(1.2)
• Always interview the perpetrator, write down
what he says and get him to sign it if possible.
• A stupid lie is the next best thing to a
confession.
Your Duty as a Record Keeper
• Both civil and criminal rules of discovery
require disclosure of the type of information
we have been discussing
• You should anticipate that state and defense
attorneys as well as the court may be
reviewing your files
• Sanctions for failure to produce material, even
by accident, include refusal to allow use of
material or setting aside a judgment
Former Testimony 804(b)(1)
• Hearsay Exception for former testimony when
declarant unavailable
• Former Testimony. Testimony given as a witness
at another hearing of the same or a different
proceeding or in a deposition taken in compliance
with law in the course of the same or another
proceeding, if the party against whom the
testimony is now offered had both an
opportunity and a similar motive to develop the
testimony by direct, cross, or redirect
examination.
Former Testimony 804(b)(1)
• Can be any witness, isn’t limited to a party.
• Testimony can be from deposition, preliminary
hearing, from a previous hearing or trial in the
same case
• Can be presented as simply as having
someone who was in the courtroom repeat
what they heard a witness say.
Former Testimony 804(b)(1)
• Practice tip:
• If you are afraid that a witness will waiver on
their testimony or become unavailable in the
future, call them at some preliminary phase
and get their testimony on the record.
• Prior testimony is useful for de novo appeals,
retrials after appeal, sentencing hearings…