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Please raise your right hand. Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God? So say I do. Thank you. Sir.
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Mr. Baron. Have you been advised at all today? Or do you know what we’re doing this podcast episode on? And if so, please tell me. Yes. So Tim told me that this week’s episode is all about hearsay. Objection, hearsay.
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All right. Well, as you probably saw, guys, we are doing an episode today on
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hearsay.
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This is a big thing that we hear about a lot, right? And you’ve probably hear about it just in the world a lot. You know, people saying, oh, that’s hearsay. That’s not admissible. They can’t use that. It won’t hold up in court. It’s all here. Say it’s all garbage. We have clients sitting in meetings with us initially where, they literally, you know, were going through their case, were kind of describing what’s going on.
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And we’re kind of advising our client as to the implications of some things. And they say, oh, well, that’s all hearsay. That won’t work. And I frequently find myself literally describing to my clients, no, that’s not hearsay or why it is here, say, and kind of almost giving the legal definition of what hearsay is. And then once you explain it to them, they’re like, oh yeah, you’re right.
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That’s not hearsay. So we’re going to try to unpack that kind of, you know, legal mystery that I think a lot of people think hearsay is when it really isn’t. So it’s something that comes up a lot in court, though we frequently object to it. We use it a lot. It’s a rule that has a ton of exceptions.
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We’re going to go over that. Those are kind of the fun ones because that’s how you can actually get here. Say in. So right off the bat I’m going to start us up today with what is hearsay. Exactly. So essentially what hearsay is, is it is a statement that is being offered in court under testimony for the truth of the matter that the statement is asserting.
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What that means is it’s literally saying that this statement that I heard someone else make out of court is true. And I want the jury to believe that what they said is facts that should be in record. The the reason that’s a problem is you’re not able to really cross-examine the person who made that statement. You’re just hearing second hand what that person said, and you’re asking a jury to believe it for the truth of what’s in that actual statement.
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And that’s why hearsay can be a problem. Because in the law, we as lawyers need to be able to confront witnesses and confront statements to test their credibility and their trustworthiness. So this is this is why it comes up a lot in court, and why you might hear on TV or hear other lawyers, even a real life objecting to hearsay.
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So simply put, is the jury being asked to believe that the statement made by another out of court is true? And if the answer to that is yes, you got here, say. Now that doesn’t mean it’s not coming in. It could have an exception, but that does mean that it is hearsay by definition and could be objectionable.
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And, you know, you get the lawyer fight after that with the judge to figure it out whether it’s actually coming in. So, Justin, I’m going to come over to you first today. I’d like to hear from you. Maybe a simple example of like what hearsay is, aside from the corny one that we started with. Yep. So, I guess just a simple example would be we’ll say John punch, Mike or John.
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Excuse me? John tells police Mike punched me. Right. And then you get to a hearing or a trial and the officer will say, Officer Tim is up on the stand. And the prosecutor asks, you know him what happened? And then the officer testifies, John told me that Mike punched him. So that statement is being offered for the truth of what John told the police officer that Mike punched him.
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Right. Which is textbook hearsay. Inherent in that is we’re asking the jury to believe that Mike actually punched John. But yes, we don’t have John on the stand saying that we have a cop on the stand staying. John told me this. Yeah, right. So, officer witness didn’t witness something. Someone tells them something happened or someone did something, but you’re not able to cross-examine the person that actually made the statement.
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That’s that’s the hearsay, right? Classic. You’re say yes. And so kind of on the other side of that, if the statement is not being offered for the truth of the matter, meaning the officer’s not saying, John told me that Mike punched him, for the jury to believe that Mike actually punched him. But for, you know, a reason or.
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Excuse me, the reason that the police went to look for, Mike. Right. So, like, if they’re investigating Mike and they’re bringing it into court to try to show the jury or the judge why they even investigate. Mike, it’s because of this statement. Yes, but we’re not asking the jury to necessarily believe the statement. We’re just saying this is the action we took based upon the statement.
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And that’s the truth of what we’re asking. Yes. And not the matter that was actually stated. Yes. And I think that’s.
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Something that comes up a lot where, you know, witnesses or officers whatever, or testifying to something that someone else told them. But again, it’s not being offered for the truth of that statement. They’re not, you know, asserting that what that statement is, is, is what the jury needs to believe. They’re using it to explain something they did. Like you just said, why they investigated someone, why they went to someone’s house while they went to someone’s place of employment, why they interviewed somebody.
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That is not going to be hearsay. Yeah. The shorthand for the exception that he’s describing, or really, it’s not an exception because it’s definitely not here, say, when it’s used this way. Yeah. But the legal jargon to kind of get around the here, say rule is that the statement is not being offered for the truth of the matter asserted, but it’s rather being offered to show the effect the statement had on the person who heard the statement.
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Oh, that’s a great way to put it. That’s that’s what you’re talking about. Yeah. Well done Tim. Great way to put it. Appreciate that. Because. Yeah. Why the person took the next action that they took. Not for us to believe the actual verbiage of the state. And if that’s the reason the statements being introduced, then by definition, it is not hearsay, not even hearsay.
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Right. So if there was an objection drawn and many times lawyers who aren’t either fully paying attention or aren’t thinking through it exactly might object just because, oh, I heard a statement about something someone else said automatically hearsay. But then when you unpack it, it’s like, hey, it’s not actually here. That’s one of the most common ways to try to get around the rule.
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And so in a sense, you know, judges I think are are guarded on this because there are some statements that might be so prejudicial that it’s obvious what you’re doing, and you can’t really say that that’s being offered to show the effect on the listener you are trying to backdoor hearsay in. And so, you know, it’s a common way to to defeat the hearsay objection, but it doesn’t work in every single case, because not every statement really is informative of what somebody did with the statement.
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Sometimes you may say, well, I’m just introducing this to show the effect it had on somebody who heard the statement, but there is no real effect on it, on the person. And so what you’re doing is you’re trying to get the jury to hear something they shouldn’t get to hear. You’re kind of putting a mask on it right at that point.
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And it does. Sometimes these things are objectionable, and they have to be reasoned through in court to determine by the judge whether or not it actually comes in as evidence. Right. But you are right in a sense that sometimes merely just getting it stated, the cat’s out of the bag and the jury heard it, and they’re going to interpret that in their mind in a way that you may want them to, for the truth of the matter is, even though it’s not being offered.
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But I think juries are pretty smart on some of that kind of stuff. Like, I think the jury is generally if if an officer would testify something like this and you are saying, well, we’re not we’re not at the part yet where we’ve established that Mike punch. John, we’re just showing what happened when the officer showed up to the scene, the steps he took to conduct the investigation.
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Juries, a lot of times it’s almost as if they tune out the statement that was made to the officer, in my experience, and they’re waiting for more. So, you know, you’re going to have to get to what is the evidence that Mike actually punched John. They are going to be looking for that. It’s not they know enough to know that just because Mike or John told the officer that Mike punched him doesn’t mean that might punched him.
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So it’s kind of like a teaser right? Right. Like there needs to be more. The jury should expect more. And that’s where the prosecution’s got to produce in that. Correct. Right. So a lot of times in this simple example, I mean, John would probably get on the stand at some point as the victim. I would think he has to and say, Mike punched me.
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And then it’s not here to say at all because it’s a declarative is sitting there. Right. So, okay. Tim, why do you think the hearsay rule even exists if you could kind of historically unpack that? And like, what are we trying to really protect from there? Well, there’s a couple of challenges that you could make to any hearsay statement that are implicit in the statement itself.
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And what I mean by that is if I got up and I say that you were just and told me something, there are several questions that are just immediately apparent on their face. The first one being, did they really say any of these things to me? Am I sure that that’s what they said, or am I spinning it in some way?
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Is that my. Is that a verbatim quote of the statement, or am I putting some kind of gloss on it? That’s my interpretation of what was said. That makes a big difference, because if I’m giving you my characterization of what someone else said, that’s very different than being able to say this is what they said word for word and establish that.
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So there’s the question of did the person hear the statement correctly? Did the person understand the statement correctly? But there’s another question that comes from that, which is, how do we know that the person who said the thing knew enough to make a statement about it? Just because you told me something doesn’t mean that you have it on good authority, or doesn’t mean that you have a reason to know that, or that you actually perceive something.
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You could have heard it secondhand. And so then we’re talking about, you know, hearsay within hearsay because you heard it from someone and I heard it from you. That’s hearsay within hearsay. Yeah. Yeah, I do actually. We’re going to unpack that later in the episode because that comes up almost sometimes by accident. Right? People aren’t even realizing it’s double hearsay.
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Hearsay within hearsay. Sometimes we have layers of here say, oh, yeah, it can get almost like a whisper down the lane game. Right? Right. And at that point, it becomes really, really up for scrutiny because at that point, like, y’all remember when you were a kid and you played whisper Down the Lane? By the time it got to the end of the rope, it was a whole different statement than where it started right now.
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Right? That was the how. It was comical and fun and that’s why we did it. But that’s the same thing with life and adults and hearsay in court and why it’s protected this way. And the other big reason that this is something that is kind of scrutinized is because criminal defendants under the Sixth Amendment have a right to confront their accusers.
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So if you’re going to get in testimony from someone who is not testifying about that fact or that statement, you are depriving potentially the defendant of the opportunity to confront that person and test their credibility, test their perception of what was said or or what they perceived. So you you have the ability to, to challenge people on that.
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But if I can say everything that you said, then you don’t have to take the stand and your credibility is never questioned or tested. So you’re depriving the defendant of a of a crucial fundamental right in, in the Bill of rights. Right. For sure. Yeah. So guys, the magic question with hearsay really is what are you asking the jury to believe?
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When you hear a statement in court, don’t just ask. Did somebody else say this? This is kind of what we were talking about earlier. Just because someone else said it doesn’t mean it’s by its. It doesn’t mean it’s here. Said it could be, but instead ask what is the lawyer asking the jury to believe that this statement actually proves?
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And if the answer to that is we’re asking them to believe what the person actually said is true. Well, then you’re in hearsay territory. However, if sometimes you know, somebody else’s statement can come into evidence because we’re not asking the jury to believe that the statement is actually true. We’re introducing it for an entirely different reason as we just unpacked here.
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So, Justin, I’m going to cut to you here real quick. I think, you know, it’s pretty inherent in what we just said, that just because it’s hearsay does not automatically mean it’s inadmissible. You know, you might hear lawyers objecting. Doesn’t mean it’s not going to get overruled. It might still come in. And I think there’s really kind of almost like a three part map to like how you get to whether or not it’s hearsay.
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I’d like to jump to you to kind of give us an example of that. Absolutely. Again, just because it’s technically hearsay or is hearsay, doesn’t necessarily mean that it’s it’s inadmissible or it never comes in. There’s a new a number of exceptions in the PA rules of evidence regarding hearsay and what the exceptions are. And like you said, it’s kind of the, we’ll say, a three part roadmap to hearsay.
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So you have one. What is here? Say, we we know it’s a statement. Of another offering court for the truth of the matter asserted. And then you have to ask number two, is it actually being offered for its truth? Right. What we just went over and then third, if it is hearsay and it is being offered for its truth, is there an exception that applies?
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Right. Very good. Okay. So, guys, I think before we get into all the exceptions here, there are, I believe, five interesting concepts that come up in here. Say that if we kind of understand them and we unpack them here for you a little bit, it will prevent a lot of the big misunderstandings surrounding this, this mystery of hearsay that we experience in court that I think the public might not completely understand.
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So number one is hearsay is about evidence. It’s not whether the statement is actually true. So this is subtle, but it’s very important to understand here, because hearsay is not a test of whether the statement is true. It’s a test of why you’re asking the jury to consider it. That’s the point. Why don’t you hit us up here?
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Tim, with number two. So. And this is what we alluded to earlier with hearsay within hearsay specifically, just because the person is, who made the statement is in court testifying about the statement. Actually, I think I said that wrong. Let me back up and say that more clearly. Just because the person who is talking about the statement in court is testifying about what they heard outside of court, that doesn’t necessarily mean they have to be the person who actually heard the statement.
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Yeah. And this gets into the hearsay with and hearsay that you and I were just having some dialog about, which is why I went to you for this. Kind of keep unpacking that for us. Yeah. So hearsay within hearsay would be like you told me something, which I then told to Justin. And Justin is now testifying about that statement.
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Every single layer of the hearsay has to be substantiated and it has to be justified independently. So there has to be an appropriate exception for in order to get the statement in from me to Justin. But then there also has to be a justification to get the statement in from you to me. And so there may be a justification for one of those, like maybe you, you had said we’re out on the street walking to lunch or something, and you see a car run a red light, and in the heat of the moment you scream out, my goodness, that guy just ran a red light.
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Well, that’s a hearsay exception potentially that we’ll talk about in a second. Right. But if Justin didn’t hear that statement I heard the statement and I turned to Justin at lunch and say hey man did you hear earlier t l said that he saw a guy run a red light. That’s two different layers of hearsay, right? Because.
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Because I could testify that I heard you say that so-and-so ran a red light, right? And that’s under an exception that would permit that called an excited utterance that we’re going to get to later or even present sense impression. Yes, potentially. But my subsequent relaying of that message to Justin would also have to be justified independently, independently, if they were going to introduce if they were going to have Justin on the stand to testify.
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Tim told me that TL said somebody ran a red light. Now you would, you would if there is no justification and it doesn’t sound like there would be from me telling Justin heard it through the grapevine. Yeah, they’re probably not a except it wouldn’t work, right? So you can’t have Justin testify to the statement. But you you could have me testify to the statement potentially.
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And so if there is a valid exception for my statement to Justin, then Justin doesn’t have to be the one who heard your excited utterance about that. Dude just ran a red light. There just has to be a justification for the hearsay that I had told him about your out-of-court statement. Right. Right. Okay. So we’re going to move on here the next one.
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Justin. So in 2026, hearsay is not just really what we’ve been talking up to this point about. I mean, that’s a big part of it, right? Statements that people actually say, but there’s other types of hearsay and they don’t have to be oral statements. Right. So tell me about that. Yep. So, doesn’t have to be a spoken statement.
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It doesn’t have to come out of somebody’s mouth. It can involve written statements, recordings, text messages, email, social media posts, potentially nonverbal conduct when the conduct is intended as an assertion. Right. And like you said, you know, it’s it’s 20, 26. Everything’s on camera. Everything’s documented. Most people are on social media in one way or another. You have 911 calls, body worn camera, motor vehicle recordings.
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Depending on what you’re showing those or presenting those to the jury for, they could be hearsay. Yeah. Okay. Number four is do not confuse hearsay with personal knowledge. Okay. If you have if you are on the stand and you are saying something from your own personal knowledge, your own personal acumen on the stand, that is not hearsay.
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Even though you might have seen something outside of court, because that pretty much everything you’re going to testify to is not going to have happened in the courtroom. So that is personal knowledge. There’s no hearsay objection there. You’re not making a statement about what someone else said to you, offering it for the truth of the matter asserted. You’re making a statement about what you saw, offering that for the truth of the matter asserted.
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So it’s not the statement of another and hence not hearsay. So do not confuse hearsay with personal knowledge of a defendant. I’m sorry of a witness. All right. Tim, I’m going to pop over to you for the last one. There’s a lot of reasons that hearsay can come in, but hearsay also isn’t the only reason that things can be excluded in court.
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So I’d like to hear from you about other things that I mean, this is, I think, concept number five, that people sometimes bleed into hearsay. But there’s a lot of other reasons you can’t introduce evidence in court. So what are some common ones. Yeah. So and these can apply to statements that are hearsay as well. So like it could be hearsay but and maybe it’s admissible or not admissible hearsay.
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But then potentially one of these other exclusions would apply. Relevance is a big one. That’s a very common objection. If the if the hearsay statement has nothing to do with what we’re talking about or, you know, anything central to the question presented, then the hearsay statement can’t come in for a more basic reason, which is it’s not relevant.
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By the way, I want to see your guys experience on this. I feel like every time a lawyer doesn’t know what to say on their objection, but they know it’s objectionable. The first thing out of their mouth is relevance. I love using that. Not, not not that you don’t know what to say. No, no, I, I think there are so many things in trials that whether it’s the prosecution or defense attorney and, you know, I’m guilty of this.
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I’m sure we’ve all been guilty of it at some point. Sometimes you just kind of lose track of a witness or, you know, kind of get you get off track, right? Or you kind of start going down a rabbit hole almost. And they’re talking really fast and like multiple things are happening at once and you almost have to object to stop the train.
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Yeah. And then be like, okay, there’s multiple reasons I need to object here. The first one is clearly relevant. Yes. And then there’s hearsay. And you have to kind of go through them like your mind’s not as fast as they’re vomiting out the testimony. Yeah. And that’s just the nature of the game. You you have those witnesses and hopefully.
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Well, when you’re a prosecutor, you never want it to be your officer, your detective or your app. But unfortunately, sometimes people, especially newer officers that aren’t used to testifying or it’s their first trial, like people get nervous. But then you also just lay witnesses, whether you’re, you know, a defense attorney or the prosecution. At some point, if you do trial work, you are going to be dealing with somebody that’s hostile, somebody that is just a wild card, somebody that you really have no idea what they’re going to say until they’re actually up there saying it.
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Yeah. And, like I said, I think people will just go kind of get off track. And I like using the relevance objection to kind of bring it back. Yeah, yeah. And again, it also gives you that chance to like, pause a second, make your objection, stop the train and then kind of also unpack other objections. Right. So Tim, I’m gonna cut back over to you.
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You were explaining some some of the other reasons things can’t come in. So I’ll let you kind of keep going on that. So authentication is a big one related to hearsay, especially when we’re talking about business records or other written statements. Those statements potentially can come in. And in many cases, you don’t even need the person who wrote the record or produced the record to come in and testify that it is a legitimate or authentic record, but it has to be authenticated some other way.
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And usually what that requires is a person who is the custodian of those records has to certify that they are legitimate business records, that they’re kept in the ordinary course of business, and that they would have been made with knowledge of whatever was happening at the time. So there’s a lot of different ways that something has to be authenticated, because you always have the the question for something like whether it’s written or video or something like that, is this real or was this altered in some way?
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So even if the the out-of-court statement, the record, the video can come in, you have to be able to satisfy the question that the video is real and that it hasn’t been altered in some, some way that affects what we’re seeing or hearing. Yeah. And a lot of times it’s like, it’s almost like I would say the, the non sexy, boring objection of authentication.
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Yeah. You know, and when you hear that, you’re like, what am I supposed to actually do here. And you have to. What does that mean legally? Justin I know you would say. What’s that? I yeah. All right. I have a guy. The case is still active, so I won’t give too many details, but there’s a body worn camera and an VR recording.
00:23:04:29 – 00:23:32:13
For the case. And, without even having seen it, he was very adamant that whatever is on those those videos, it’s a I. And so I got the videos. I can promise they are not AI. But yeah, I think that’s something that I’ve seen it a few times already and we are going to start seeing it so much, especially from people who are pro se without lawyers, because I mean, honestly, we all know this now.
00:23:32:14 – 00:23:53:15
I mean, if you are not living under a rock, you know, AI is pervasively invading all parts of our lives, right? I mean, most of you probably look at ChatGPT on a daily basis. You ask silly questions, you maybe ask real questions, and you’re probably getting a lot of really good information that way. But it also has led to, like, the idea that everything is now altered.
00:23:53:16 – 00:24:08:17
Right? Everything is now a because it’s I mean, even if you flip through Instagram, you’ll see videos and things and sometimes it is kind of hard to spot the difference. And so you’ll look at the comments and people will be like it’s AI or people are like, no it’s not. AI. This is a video that was circulating like five years ago or whatever.
00:24:08:19 – 00:24:26:20
But you do you remember crazy? Yeah. Do you remember we used to be talking about, like, deepfakes and, like, videos? Now, now everything’s a deepfake. Like, it could be, right? I saw a video recently of President Trump saying something like, and I it looked really he’s in the Oval Office looked really weird, real, you know, and it was clearly not what he would say, but it was in his voice and everything.
00:24:26:20 – 00:24:43:29
And yeah, you know, I’m thinking, oh, that’s like what we used to call deepfakes, but now it’s just comedy. And that they, that they put online because I allowed it. And then like there’s a big thing where it’s like they’re like politicians and famous people being edited in to other like, movies and stuff, like, you know, and so like that.
00:24:44:02 – 00:25:03:12
If you were going to introduce that statement or that video to show that this person said something in that setting, you have to be able to show that it is real and that it wasn’t altered in some way. That’s one of the objections we’re talking about. But there are others say that one that’s very similar to that is if sometimes you hear an objection like lack of foundation, right, right.
00:25:03:14 – 00:25:22:13
That’s really kind of saying, okay, I don’t think there’s a foundation. Authenticate it and show me there is, you know, or like, again, you haven’t proven that this is relevant in some way or you haven’t explained how we get from whatever the last answer was in the testimony to whatever they’re answering now, like there’s a gap in logic that needs to be addressed factually.
00:25:22:14 – 00:25:39:07
Right? One, one I have always found kind of interesting is the best evidence rule. Because I feel like there’s always a better piece of evidence for something, right? There’s always like, nobody uses that correctly, though. I agree with you that it comes up sometimes and you’re like, okay, does that just mean we need the absolute best piece of evidence?
00:25:39:07 – 00:26:01:25
And I don’t think that’s what it means. No, it’s not what that means. And very commonly what you see, what what you’ll see this used for nowadays from the defense perspective is that, that the defense is objecting to the officer testifying about what’s in body cam. And they’ll say, well, best evidence. And so the argument is, well, we have the video.
00:26:01:29 – 00:26:21:25
Just play the video. The officer shouldn’t get to talk about what’s in the video, but they are allowed to testify about certain things that they’re seeing in the video and their perception of the video. They are allowed to do that especially. I mean, they were there, right? They were there in real time. So the evidence, technically the best evidence is not what you’re seeing on video.
00:26:21:25 – 00:26:47:07
It’s the guy that was standing in the video that perceived everything around it. That’s not in the screen, right? Yeah. So that really is the best evidence. And and so this is linked very much to questions about whether evidence was preserved or not, but it is a basis for a valid objection potentially if you’re having because somebody can’t just say, well, I obtained business records that say this and then you never introduce the business records, right?
00:26:47:07 – 00:27:10:17
Because again, that’s that it is hearsay. But the best evidence would be the actual record itself. You can’t just get up and say, I looked at all the records and this is what I found. Yeah. And that’s it produced the record of like, because there is a business record exception to hearsay, where you could have a hearsay objection that could be allowed under the hearsay theory, but kept out for a different reason.
00:27:10:19 – 00:27:30:14
This is exactly what we’re talking about, the best, best evidence. Because again, you know, your your perception of what the record says is, is one of the facts the jury gets to decide is, are you characterizing this, this, whatever this evidence is, accurately. And in order for them to make that assessment, they have to be able to compare your statements to the actual record itself.
00:27:30:17 – 00:27:49:28
Yeah. What do you think about the unfairly prejudicial objection? Because I think that one is funny because that’s one where you’re basically saying, you’re killing me, Smalls. Like, come on, this is harm in my client. Keep it out. I just had this conversation with a client recently because they were basically like, there’s video here, but it’s prejudicial.
00:27:49:28 – 00:28:15:08
And it’s like, well, yeah, it’s prejudicial. That’s kind of the point. That’s why it’s evidence. Just because something is prejudicial, prejudicial doesn’t mean that you can exclude it on that basis. There has to be unfair prejudice. That’s the word unfairly prejudicial. If if the if the standard was merely this is harmful to my client or harmful to our case, well, then no evidence would ever be allowed to be introduced against you, because all evidence against you is prejudicial by definition.
00:28:15:09 – 00:28:45:08
I guess we wouldn’t have jobs if that was. It has to be unfair prejudice in some way, and there are lots of ways where you can get to unfair prejudice. For instance, the fact is something that maybe doesn’t directly address the question of guilt or innocence, but to introduce this statement would color the jury’s perception of your actions so badly that they would actually not consider other evidence that actually points to guilt or innocence, then the statement probably isn’t going to be able to come in.
00:28:45:10 – 00:29:08:13
And where you get to this is in the form of like character evidence, which is another objection, right? You can’t introduce propensity evidence. Like, I can’t introduce evidence against you that you dealt drugs five years ago to show that you’re guilty of dealing drugs now, right. That’s obviously unfair prejudice. So that’s really I mean, it’s obviously prohibited by the rules.
00:29:08:13 – 00:29:36:26
It’s propensity evidence. But even if there was, let’s say, something relevant about you dealing drugs five years ago to the case, now, the question of unfair prejudice is a little bit different, because they may want to introduce a prior episode criminal episode to show what we call mimic evidence, which is to show motive in the present case or show intent in the present case, or show that you had a mechanism or a plan in the present case.
00:29:36:26 – 00:30:10:13
Lack of mistake. But the question is if we introduce this prior incident for that purpose. Yeah. Is that so prejudicial that it will it will lead to a conclusion where the jury will automatically find that because this, this prior incident has been introduced, that you’re guilty here. That’s unfair prejudice. So again they’re balancing why you’re introducing the prior act, which could be for a legitimate purpose mimic or and they’re balancing that with how prejudicial is this information to the current case.
00:30:10:20 – 00:30:31:19
I mean that type of information could also be introduced to impeach. Right. So if I were to get up on the stand as a defendant and that scenario and say, I’ve never done this before, I, you know, that’s that’s the nail in the coffin. You never say that. We always score defendants about that because you opened the door for them to introduce impeachment evidence, such as, yeah, Mr. Kearney, we just pulled your record.
00:30:31:19 – 00:30:45:02
And guess what? There it is. And it’s coming in, and the jury’s going to hear it. And that’s regardless, because you open the door. Yeah, I have there’s a story and I won’t I won’t tell the story. But one of the attorneys that I learned from as a prosecutor has a great story about this. It was in a murder trial.
00:30:45:03 – 00:31:05:15
I’ll tell the story well, the gist of it, because he tells it so much better, and I don’t want to get it any of the details. You don’t want to give hearsay about his story? Well, yeah, exactly. I think. Come on. Justin always has great stories. I want to hear a story from the story. So the gist of the story is that the defendant in the murder trial got up and took the stand, and there were some very peculiar facts about this defendant.
00:31:05:17 – 00:31:29:29
The defendant, I believe, was, he was crippled in some way. So he he didn’t have use of his legs or he didn’t have legs. And so there was a question about, like, his ability to commit a violent act in the with the fact that he didn’t have legs or something. And so the drive by. No. So the officer or the, the prosecutor was asking questions about prior acts of violence.
00:31:29:29 – 00:31:54:11
He couldn’t get the prior acts of violence in because they would have been unfair prejudice. But the the defendant in that case was trying to package himself as like, look at me, I’m crippled. I could never do something like this. And so the prosecutor basically framed the question in such a way where he was like, so hypothetically, and he laid out a scenario, and the defendant’s answer was, no, I could never have done that.
00:31:54:13 – 00:32:16:09
And at that point, they had they approached the judge, and the prosecutor was like, judge, I think this comes in now because of what he just said. And the judge was like, absolutely. It comes in now because he basically point blank said, I could not have ever done this thing in my condition. And now, you know, we have a prior incident where you did show that you were capable of something, like you just kicked the door wide open, right?
00:32:16:10 – 00:32:43:02
Exactly. Okay. All right. Sounds good. Well, I think that’s another that’s a that’s a good one. Justin, the last one I want to go to here is the word speculation. Okay. One, two. This is speculative. This is speculation, judge. This shouldn’t come in. That’s a word that we lawyers use a lot. But again, I think is something that people, in normal jargon, you know, in your life, you don’t hear that word a lot, like, what does it even mean?
00:32:43:02 – 00:33:05:22
And what is it? What is it protecting from? Yeah, I like I said with speculation and relevance, are the two easiest ones to throw out there, I think. And again, I’ve used both of these a lot. But speculation. I think the best way I would describe that is, say you have someone on the stand and you ask a question,
00:33:05:25 – 00:33:25:25
Why did you go over to so-and-so’s house and they start talking and then, you know, they’re like, well, I went over to check on them and I didn’t see anybody, so I figured they were passed out using drugs. There’s no basis for them at this point. Lack of foundation for why they would believe someone was using drugs or speculating.
00:33:25:27 – 00:33:49:04
It’s basically guessing right. That’s, that’s I think the best. And the way that, that, that objection practically would play out because most times you wouldn’t have somebody that would just volunteer that information. If the person says, I looked over and didn’t see them, and then the next question is, why didn’t you see them then? You’re I mean, that’s a question that calls for speculation because you’re asking them to fill in the blanks about why they weren’t there or whatever.
00:33:49:04 – 00:34:12:14
So I could say anything in that situation. Well, it’s because I think he’s an astronaut. And he went to Mars. That’s that’s totally speculative, right? I think when you hear the words probably or I assumed or I thought, yeah, or I was thinking that these are your, your speculative objection should and outside of personal knowledge, right outside of personal knowledge.
00:34:12:15 – 00:34:30:10
And in terms of questions, I mean, we we often will ask the question why? But that can be a speculative question. Why? I mean, do you have a reason, really to know the answer to that question? And the real correct answer to that is if you don’t know and you are speculating, you should say, I don’t know. Right, right.
00:34:30:12 – 00:34:46:04
I couldn’t answer that, I think, or this is what I believe or I’m guessing or I assume or whatever, right. That’s immediate speculation. It’s the example we used earlier about like the guy running the red light. If some if you had said, I saw that guy run a red light and the officer’s like, why did he run the red light?
00:34:46:11 – 00:35:05:15
That’s exactly what we’re talking about. You can say anything in that. He was probably looking at his phone. Yeah. Exactly. Right. Yeah, yeah. No, because the driver was, you know, the driver was a was a dog or something, you know, like, is there really a basis for believing how you got to that conclusion? Yeah. Good. All right.
00:35:05:17 – 00:35:23:14
So we’re going to come back to hearsay here because now we’re going to get into the fun parts of all the different exceptions to hearsay. And we just talked about a lot of different objections that probably could be little mini episodes in their own right. And maybe one day we’ll do that. But I think that was a crash course on a lot of different objections that are common in the court system.
00:35:23:16 – 00:35:51:04
So here’s the part guys with here say that I think surprises people. Sometimes the most damaging evidence is what the witness personally saw or heard. It’s what someone else supposedly said. So that’s when we get into hearsay territory. So that’s where kind of understanding this hearsay objection can become extremely important to protect your client. So if you can, as an attorney and defense attorney and it’s damaging to your client and it’s it’s hearsay.
00:35:51:08 – 00:36:16:15
Keep it out. Protect your client. That’s why the rules exist. I had a judge once tell me that he keeps the rules of evidence by his toilet. And when he sits there, he reads the rules of evidence and specifically the hearsay exceptions, because he needs to be so brushed up on those. No pun intended there that he needed to be kind of Johnny on the spot with those so he would read them every time he had a hiatus on the toilet.
00:36:16:17 – 00:36:30:05
I’m not going to say which judge that was. He’s actually not a judge anymore. But, I thought that was really interesting when I heard that he actually said it in open court. So I thought that was kind of feel like, I know who you’re talking about, but we’ll talk later. Okay. We’ll talk later. All right. Well, let’s jump into some exceptions here.
00:36:30:05 – 00:36:59:02
So Justin, I’m going to cut over to you. First I kind of want to hear why do hearsay exceptions like, even exist? What’s the overarching reason. So essentially hearsay generally considered unreliable, right. Because the person who made that actual statement writing whatever you want to say isn’t in court to be cross-examined, right? And that’s like Tim said, you have a right to confront your accusers, witnesses, etc. so why would the law ever allow it in then?
00:36:59:04 – 00:37:23:02
Because circumstances can arise that give reliability to that hearsay statement. Right? So there are certain things, like you said, when when we’re talking about the exceptions. We’re talking about the reasons that the law or the courts have determined allow us to trust that statement enough to let the jury hear it. Right. So those are that’s exactly what an exception is.
00:37:23:02 – 00:37:41:04
It’s a it’s been predetermined under this exception that the jury should be able to hear it, that we trust that statement for this specific reason. And this is guys, what we’re going to talk to you about right now with why in certain circumstances you should trust certain statements, but you never give up that ghost. Really? What do you mean?
00:37:41:07 – 00:38:04:14
Because, you know, just because generally, you know, there are certain circumstances where hearsay could be trustworthy. The credibility of the statement is still always at issue for defense attorneys. We’re always kind of looking, even if there’s an exception that allows this to come in, because it’s generally maybe a trustworthy scenario. You’re never really taking the question of of is the statement legitimate?
00:38:04:14 – 00:38:21:21
Did the person have the ability to perceive it when they made the statement, or do they have the ability to actually know what they’re talking about? Those are questions that are kind of always in play. Yeah. And Tim, so we’re not really saying there is that just because there’s a hearsay exception that applies under the legal law letter of the law.
00:38:21:22 – 00:38:42:15
Right. We’re always going to look at correct credibility. Correct. It really comes down to is it believable. And that’s the point that I’m getting at is that is that there are times where the the statement is going to come in, but you’re going to attack it on some other basis, not because it’s hearsay, but you’re going to attack it because there are still questions about whether or not it’s true.
00:38:42:21 – 00:39:03:03
Maybe it’s motivated, right? This is exactly why when during Covid, when we actually had some jury trials on zoom, that it was a catastrophe because one of the best protections that a defendant can have is a jury looking at the witness and judging their credibility. And that was another Sixth Amendment issue, right. Doing virtual trials and just that body language that is unspoken.
00:39:03:03 – 00:39:24:23
Right. And there’s no unspoken body language hearsay. That’s not a hearsay. That’s not hearsay. But a lot of that is actual communication that you need to see it in person. Yeah. Well, and I think too, with, with that whole Covid thing, what a mess that was. But not only having the jury be able to see the witness, you know, up close personal read their body language, their facial expressions.
00:39:24:25 – 00:39:48:15
That also goes for the defendant, right. So they’re paying attention to the defendant to and also part of this and this sounds, I think, a little bit bad, I guess I don’t I don’t really know how to describe it, but part of being able to confront these witnesses and your accusers is like they’re they’re sitting the witness or the victim of the crime is sitting in pretty close proximity to the defendant, which can be terrifying.
00:39:48:16 – 00:40:10:27
Right. Yeah. So taking that out of it can really affect that witness or that victim’s demeanor and how they testify where normally if they’re, you know, ten feet away from the defendant, say it’s like a really egregious case, they’re going to be a lot more nervous. They’re going to be a lot more guarded. They may I mean, honestly, I think they testify different, right?
00:40:10:28 – 00:40:32:03
Like, there’s there’s so many things. And again, being in the jury box and the jury can look at the defendant who’s possibly scaring this individual merely by the way they’re looking at them or staring at them or posturing towards them. Right. That’s testimony from the defendant in a way, through body language. Right. And then you also can look at the witness and say, okay, this person is clearly scared.
00:40:32:04 – 00:41:08:27
Yeah. Well, that feeling that seeing that in their body language in their face is almost like testimony, right? That it makes almost this more reliable. Yeah. Because it’s more believable. Like this person clearly has a bodily reaction to this being even remotely close to this other person. Yeah. And I think it goes the other way too. Like there are cases where, you know, we have clients or the defendant is, I don’t want to say innocent, but we’ll say, you know, being able or excuse me for the jury to be able to see the defendant’s emotions, how they’re, you know, reacting to certain things in certain cases, if the defendant’s, you know, remorseful or sad,
00:41:08:28 – 00:41:30:23
like, say, it’s like a vehicle accident that someone died and it, you know, it was an accident, but they were criminally charged, and now they’re in trial. They can be very sad. They can be upset. It can be hard for them to deal with as well. And if the jury sees that and sees our clients, like, actually upset, actually showing remorse, you know, that could get in their head.
00:41:30:25 – 00:41:47:21
Okay, this this truly was an accident. He’s not criminally liable. Right. So it can go both ways. No, I mean, you’re very right. And I think all good attorneys that litigate cases, whether it’s in trial or any other aspect of their cases, they have prep sessions with their witnesses. Now, again, guys, as attorneys, we’re not sitting there saying, you need to say this in response.
00:41:47:21 – 00:42:04:08
We’re not giving them a script. And at this time you will shed a tear. Yes. Right. Little test, a lie. But I think for people who haven’t testified ever in a case, they need a crash course. Absolutely. They need to be under a little bit of pressure. And sometimes I will kind of mock it. Right. And you can mock that with your client.
00:42:04:09 – 00:42:21:25
I mean, as long as you’re not suggesting you must say this. You you’re supposed to lie. I mean, you can practice in a way how they present as a witness. And I frequently school my clients, which are always defendants, being a criminal defense attorney. Like, listen, when the witness, the victim is up there testifying, I want you to sit there stoically.
00:42:21:25 – 00:42:41:22
I don’t even want you to look at them, like, just sit there quietly subdued. Keep your shoulders down. Like, don’t look like you’re an aggressive person because the jury is looking at you. Absolutely. You know, and they’re watching you and you’re testifying by how you’re acting. Yeah. So I think that’s a you have to you have to train your client on how to be a defendant in a jury trial.
00:42:41:25 – 00:42:55:10
And even if they testify how to be a witness. Yeah. You know, obviously, you always tell the truth, but there’s a lot more that goes into being a witness than just telling the truth. Yeah, it’s how you say it. It’s how you act. It’s your body language. It’s who you look at when you talk things like that. Yeah.
00:42:55:11 – 00:43:15:14
So. All right. So, yeah, all very good points. All right, well, let’s get into some, some exceptions. You know, like we were saying, these exceptions exist because we’ve kind of established in the rules and the courts that these statements are trustworthy for this reason. Right. So, Tim, I’m going to come over to you to start on these, these are the fun ones.
00:43:15:14 – 00:43:34:29
These are the ones where I think come up in a lot of interesting situations. So we’re going to classify these in a few different ways because that’s how the rules of evidence does it. So the first kind of classifications of exceptions is regardless of whether the declarant of the statement is available to testify. This could be an exception.
00:43:34:29 – 00:43:53:16
So we’ll go to you for the first one. What what would be irregardless of whether the Declarant is available, this can come in present sense. Impression is the big one and this one bleeds into the next one. So just for claim for to make it easier. I’m actually going to use an example different than the one on the outline.
00:43:53:21 – 00:44:16:09
A sort of paradigm example of a present sense impression would be if you walk by a jewelry store and you can see in the big window looking into the store that there is an active robbery occurring, and you say to somebody with you, there are guys robbing that store. Yeah, oh my God, that store is being robbed. That is potentially a present sense impression.
00:44:16:09 – 00:44:37:15
But it is all or I’m sorry, it’s potentially an excited utterance, but it is almost certainly a present sense impression. You. Yeah. The present belief that there is a robbery occurring based on what you are seeing. And you’re saying to somebody there, there’s a robbery happening right now, it’s a little bit different than the example in the top line, because the one in the outline is like past tense, right?
00:44:37:16 – 00:45:01:23
It’s a statement that you’re immediately witnessing. Correct. And you’re saying it as you’re seeing it when. And you have to be careful of these because again, as we as the statements laid out in our outline, a past tense statement may not be present sense impression. That’s a good distinction, because if you’re just summarizing something that already happened right, then you are not presently witnessing the thing occurring.
00:45:01:23 – 00:45:21:07
It has already it has already happened. But there are provisions that allow for you to say something that even immediately after it’s happened to describe what just happened. So it’s not that the example that we gave is wrong, but I’m, I just framed my example as a as truly a present sense impression. It’s happening now. Yeah. Well it is an important distinction.
00:45:21:07 – 00:45:38:27
And I actually want to use the example that might actually not be right that I put in the outline. I think it is still right. It probably does still get in. But to your point, the example I had in there was you’re walking down the street. It’s kind of like the example you give earlier and you see an accident happened and you say, that blue truck just ran the red light, you know.
00:45:39:01 – 00:46:02:11
But technically that just happened a second or two ago. And I think it’s still probably satisfies the rule. But you’re not saying that blue truck is running the red light. You say it just happens. So it’s not. And that’s that’s maybe a semantic distinction is. And it probably doesn’t matter mechanically because you’re still presently in the situation, you’re observing whatever happened and you’re still under the stress of it, which gets into the next to the next.
00:46:02:13 – 00:46:26:09
Yeah. Tell us about that one. Well, the next one is excited utterance. And so this is immediately after a thing has happened or it it’s quick. It’s close enough to the event occurring that you are still under the influence of like excitement or adrenaline or stress. Right? So in that sense, in that sense, you know, saying something like that in the past tense may actually probably and this is, I think, something people struggle with.
00:46:26:15 – 00:46:53:03
They’ll say it’s a present sense impression, but maybe it’s both a present sense impression and an excited utterance. And it comes in either way. So, you know, again, I’m probably drawing a semantic distinction here, but exactly right. But like an example of an excited utterance would be like if someone is coming up to you like they want to rob you or something, and they have a gun tucked in their waistband and you say he has a gun.
00:46:53:05 – 00:47:12:21
Well that again could be a present sense impression because it’s happening now. But it also could be an excited utterance because you, you’re seeing someone with a gun now and you’re excited over it and you’re stressed and scared. Somebody shoots somebody right in front of you and you say immediately after it happened, my goodness, that guy just shot somebody.
00:47:12:21 – 00:47:39:16
That’s clearly an excited utterance because that’s a stressful situation and you are still under the influence of that stress, and you are blurting out something that has come to your mind. Oftentimes we do that and it’s we’re blurting out exactly what we’re seeing. And that’s why these kinds of exceptions are generally perceived to be reliable, but they’re subject to change to challenges in other ways, because how reliable can a statement really be when you are under a profound stress?
00:47:39:19 – 00:47:55:11
That’s an avenue of attack, right? Right. And that gets kind of into like I witness concerns, right? Are you did you actually see it? Did you have the right angles to see it? Were you under too much stress that you misperceived it? Things like that? I mean, again, to get back to the excited utterance, it basically it’s reliable.
00:47:55:11 – 00:48:17:03
It’s trustworthy because in the moment it’s said no one has time to sit down and think about it. Coordinate a story with other people, prepare for litigation or anything like that. It’s set in the moment, momentarily. It’s about what they’re essentially seeing or have just seen, and they’re under that stress in that, in that moment. So, that one is definitely an exception.
00:48:17:05 – 00:48:40:27
Justin, I’m going to pop over to you for tell me about the then existing mental, emotional or physical condition. Yep. So then existing mental emotional physical condition. So statements about beer pain, current physical condition. I’m scared he’s going to hurt me. I think it could be, he pointed a gun at me, or he hit me with a gun.
00:48:40:27 – 00:49:00:05
And now I have a, a bloody nose. You know, that one probably gets into statement for medical diagnosis, which I think is similar to. I guess it is similar. Yeah. So statements made to obtain medical care, including how physical injury happened. He punched me in the face again. He hit me with the butt of his gun.
00:49:00:08 – 00:49:21:07
And. Yeah. And people, people have reason to be accurate. Yes. When they’re talking to medical providers about getting care for their own personal well-being, which is why it’s trustworthy, right? Or why the law thinks it’s trustworthy. Okay. All right. Tim, I’m going to go back over to you. Tell me about recorded recollections and business records.
00:49:21:07 – 00:49:40:07
These are kind of similar. Yeah. So a recorded recollection, an example of this might be that I, something has happened, and I write it down to memorialize it in my memory. And there are there are some criteria that you would have to satisfy in order for that statement to be introduced. And what are they? They’re pretty simple.
00:49:40:08 – 00:49:53:27
I mean, and I don’t know if I’m getting these 100% right, but I, I think what they are, the gist of them is I have to be able to testify that I am, in fact, the one who made the the recorded recollection that it was made at a time when the matter would have been fresh in my mind.
00:49:53:27 – 00:50:12:17
That’s the big one, and it would have been something that I would have had knowledge of at the time. It’s usually a temporal thing. Right, right. It’s like, when did you actually write this down? When did you record this statement? And I would also have to be able to testify that not only am I the one who wrote it down, not only was it fresh in my mind, but this this recorded recollection is the thing that I wrote down.
00:50:12:17 – 00:50:28:16
It’s not a reproduction or something like that. You say this usually comes up if, like you like a year later, you’re at trial and you had written it down back then, but now you forget. So this could be a hearsay exception because it’s a statement that was made outside a court, right? It’s a written statement, kind of like what Justin was telling us.
00:50:28:16 – 00:50:52:14
It’s not an oral statement, right? It’s recorded recollection when it was fresh in your mind way back when. And now you might forget it. So now you’re trying to bring it up again. And that might draw an objection which could have an exception here. Right. And, and, I mean, the, the rules of evidence allow us pretty broad, abilities to refresh a witnesses recollection, but this is something a little bit different.
00:50:52:14 – 00:51:23:28
This is you’re not just refreshing the recollection of the witness. With the introduction of this statement, you are offering the statement itself for the truth of the matter asserted, which makes it hearsay. It’s kind of like two ways to get the same thing in correct, but for different reasons. Correct. And mechanically, the difference there is that I can testify about the thing that I wrote down as a recorded recollection, and the statement itself can come in as evidence, but if you’re just using it, to refresh my recollection, I get a chance to look at the thing and see if it jogs my memory, and then I can testify from memory.
00:51:23:28 – 00:51:43:10
I cannot testify by reading the statement into the record. Right. And there’s our two different there’s a specific way we actually do this in court. It’s a little legal dance that we do. You know, you show them the statement. Have you had an opportunity to read that statement? You give them a few minutes? Okay. Does reading that statement now refresh your recollection about said topic?
00:51:43:13 – 00:52:02:19
Yes it does. Okay. Now I risk the question. Yeah. And usually you take the the written statement away at that point. And, and there’s virtually no limit to what you can use to refresh a witnesses recollection. Yeah I love that one. That one’s so sort of a comical example that I once saw. And I think there are some objections that you could draw from this.
00:52:02:19 – 00:52:20:07
But an example I once saw was somebody said that they didn’t remember something. And so like, can an attorney just write the answer down, you know, as far as a date or something like that and show it to the witness and be like, hey, does that refresh your recollection right now? You’re probably going to get an objection for other reasons.
00:52:20:08 – 00:52:41:11
Does the answer I just fed to you refresh your recollection? Oh, we do do this in other ways, right? Like if and it’s very often for foundational purposes. In fact, I just did this a bunch yesterday in a hearing where we’re we’re talking about dates and nobody really remembers offhand a lot of dates. So they may speculate and say, I think that the date this occurred was around this time.
00:52:41:14 – 00:53:05:08
And so you can simply say, if I said that it occurred on June 30th, 2022, does. Does that sound right? And they they’d say, yes, it sounds that’s I think that’s correct. Right. I mean, so you’re kind of again skirting it. Right. In a different way. But yeah, the recorded recollection, it has to be something I wrote down because I remembered it and I wanted to remember it, and.
00:53:05:10 – 00:53:24:27
And that’s why you’re introducing it. Yeah. Right on. Okay, Justin, I’m going to pop over to you, actually for business records and public records because this is actually an exception to. So we’re really mainly when we’re talking about business and public records, guys, we are talking about written things that are coming in as evidence, as hearsay. And there’s a reason that this is considered reliable.
00:53:24:27 – 00:53:47:16
It is similar to kind of what Tim was describing, but more in like a business or public sector sense. So I’d like to hear from you on that. Yeah. So, basically for the business and public records, public records is is straightforward. It’s there are certain records and reports that are made by public offices or we’ll say public governmental entities for the most usually, almost always government.
00:53:47:17 – 00:54:07:21
Yeah. Like they they have policies and procedures that they are regularly keeping these, you know, these records, reports, etc., because they have to. Right. So like inherently good example of this would be a census. Yes. Right. Or something like that that you’re trying to bring in for the population of the area, or maybe who lived in a specific neighborhood or demographic area.
00:54:07:22 – 00:54:43:08
Yeah. And like, what is it like, land surveys, stuff like that. Yeah. Right. And then business records again regularly kept records of a business. It’s a regularly conducted activity. There’s, I think 3 or 4 prongs to that, that you go through, but, you know, phone records, bank records, medical records, taxes, payroll, credit cards, all of those things, like we always saw, like AT&T, Verizon, Wells Fargo, like those types of big companies that keep records of of all of that.
00:54:43:10 – 00:55:13:10
Essentially, you can get those records in through the business records exception, without having to bring someone in from one of those companies to testify. Yeah, these are authentic, whatever they actually have. I used to have a stock form that I would send out to these places, most of the bigger companies, when they send you those records, whether you get them through like a search warrant or a subpoena or whatever, we’ll send along with the documents a certification saying, you know, I am the custodian of records for AT&T.
00:55:13:13 – 00:55:33:01
And again, and I certify that as a business record in the regular course of business and the, the the reason that those are reliable is patently obvious. It’s because those records were not created for this specific purpose in this trial to prove whatever you’re trying to prove, it’s just always kept. Yeah. And we just need to kind of establish that foundation for it.
00:55:33:01 – 00:55:54:16
And it’s in. Yeah, it’s basically especially for phone and bank records like it’s it’s data. Yeah. You know what I mean. Yeah. So I think that yeah, I’ve had arguments in cases where I’ve had to argue that too, especially when you get into like the cell phone analysis and all of that. Like it’s, it’s a plot point on a map that the cell phone expert plotted.
00:55:54:17 – 00:56:16:11
Yeah. Right. And I found just in our criminal practice, that I think those types of records we all know and we don’t really fight about them because. So you might introduce it, and you’re not going to necessarily always draw an objection for it that you then have to say a business record. And then the prosecutor, you know, there’s a separate there’s another provision in the rules of evidence.
00:56:16:11 – 00:56:40:02
It’s a demonstrative exhibit. Yeah. That’s the other exception here, which is that I can take business records and synthesize those records into a like a visual aid that allows the, the jury to understand the business records. That is permitted. Just so we are a clear for everybody. Demonstrative evidence is essentially a demonstration of something kind of breaking it down into a more understandable form.
00:56:40:03 – 00:57:01:13
It can be in the form of like maps and graphs, and it can be in the form of diagrams. It can I mean, it could be like a house, physical demonstrations, like O.J. button on the glove. Correct. That’s demonstrative evidence. You know, the one murder trial that I did, we had the pathologist come in and the, Ada that was on the case with me.
00:57:01:14 – 00:57:22:15
She was questioning the pathologist and the trajectory of the bullet that actually killed the guy. Was very, very important to our theory that it was first degree murder and not third degree. Okay, and so he actually, I, I stood up and he had these, like, long. What are they, like, the wooden, skinny poles. I forget what they’re called.
00:57:22:16 – 00:57:37:25
Fifth pecs. No, no, no, no, I know what you’re talking about. It’s like. It’s like shows, like a straight line. I just can’t think of the word now. The. But the pole itself is demonstrative. Yes. Yeah, that’s the point of what you’re making. And then I stood up and he basically had me, like, taken to the side.
00:57:37:26 – 00:57:53:04
Yeah. Bend to the side. And like how the guy would have had to have been kind of like running away essentially when he was shot in the back to get it to be in that trajectory, that pole. Yeah. Yeah. So I got to be the, the demonstrative. You got to be the demonstrative evidence. Wow. Never again. Okay.
00:57:53:07 – 00:58:11:01
All right. One of the things that that comes up sometimes to with business records is the absence of a business record, right? Something that would normally be there if it occurred or if it was something that needed to be recorded and it’s not there. This would also be able to come in, even though it’s technically hearsay, because you’re kind of making a statement about it’s not being there.
00:58:11:04 – 00:58:34:20
But then there’s this exception because again, that’s reliable, because there would be no preconceived reason to do that except for the actual keeping of the data. So that that would come in as well. All right. Let’s move on to, hearsay exceptions where the declarant of the statement is not available to testify. So before guys, it was regardless of whether they’re available, it could come in this one.
00:58:34:20 – 00:59:01:17
They actually have to not be available for these exceptions to apply. Tim, I’m going to go to you first. I want you to tell me about former testimony of somebody and why that gets to come in and circumstances where that could occur. Yeah. So former testimony is there’s some requirements with it. It has to be in a, in a proceeding where the person would have been under oath and the opposing party would have been able to cross-examine the witness on what their testimony was.
00:59:01:20 – 00:59:22:15
That’s the big one, cases where this comes up. And I’ve worked several of these cases where we’re dealing with a witness who has profound health problems, and there’s a very real, distinct possibility this person is not going to be around through the conclusion of the case. So our rules allow us to file a motion in advance. We anticipate this person’s probably going to die.
00:59:22:17 – 00:59:49:29
It’s a little bit morbid, but we can preserve testimony in the event of their future unavailability. And that essentially takes the form of a of a recorded deposition where, the both parties will be there and that there will be a transcription. It’ll be treated just like it’s a normal court hearing. But the difference is that the sole purpose of that hearing is this person is now going to testify, and that allows for them for those statements.
00:59:49:29 – 01:00:11:03
All that testimony can be introduced when and if that person actually dies, you would be able to introduce those statements. The opposing party had the ability to question that witness, test their credibility, impeach them, do all that kind of stuff. So that’s why it gets to come in. It was otherwise a proceeding that would be identical to what you’re asking them to do right now.
01:00:11:05 – 01:00:34:19
But they’re gone or they’re unavailable or they went to Mars or whatever. So they’re not available to testify. Yeah. Yeah. Right. Only if Elon Musk is your witness there. But, Yeah. Tim, I think best done. This is done recorded by video as well. Correct. Right. And you can literally just play it for a jury, you know, high def because again, you want a jury or a judge to be able to see body language, to be able to see things like that.
01:00:34:19 – 01:00:51:27
And if you just have a transcript, it’s kind of sterile. You know, you almost need to have that recorded. I think the rules do, do either require or allow for it to be audio and visually recorded. Yeah, it does for sure. For sure. Okay, Justin, I’m going to come over to you here. Statement of a party against their own interest.
01:00:51:29 – 01:01:12:05
That’s an exception here. So give me some examples of that. And it’s pretty self-explanatory. But yeah. So basically the statement is so contrary to that person’s own interest that a reasonable person would never have said that or made that statement unless it were true. So I like the one that you have in the that line. The drugs the police found were mine.
01:01:12:11 – 01:01:30:23
Right, right. So I mean doesn’t really or that’s you say you get pulled over three people in the car. That’s actually my gun. And I’m not allowed to have a gun, right? I’m a P, but that’s my gun, right? People aren’t just saying those things to say them. Right. And let’s let’s be honest, as comical as it is, it’s somebody would just dime themselves out like that.
01:01:30:28 – 01:01:46:23
It happens all the time. All the time. We read police reports all the time where, like, my client said. What? Oh, I just said, you have to sit down with them and like, it says here that you said that. And they’re like. They usually say. I didn’t say that. Yeah, but then we get the video and it’s like, well, I just had a conversation with somebody like two weeks ago about that.
01:01:46:25 – 01:02:00:27
I met with them a few months ago and I, I’m like, did you talk to the police? No, never talk to him. They arrest me. He took me to book and whatever he did a recorded interview that was like 45 minutes long. And I got a copy of it and I was like, what are we doing here? Yeah, right.
01:02:01:02 – 01:02:16:28
Did you forget about this? We need to have a discussion here. Yeah. But that’s basically what that means. Okay. Yeah, that’s pretty straightforward. That one’s pretty easy. Yeah. All right, well, here’s the one I kind of been looking forward to. Tim, I’m going to go to you because it’s kind of technical and you’re our technical awesome guy with that stuff.
01:02:16:28 – 01:02:36:19
I think so, but I want to I want to get everybody involved in this discussion. This one’s fun. We’ve seen it in York here, I think on multiple usually high profile cases because it only really comes up usually in homicide cases, although I guess it could come up in some other scenarios that might not be an actual homicide, but that’s more the rarer part.
01:02:36:21 – 01:03:05:10
And guys, this is the dying declaration. Okay. So this is a statement usually again in homicide cases that is made with when someone is actually believing that they are imminently dying. Okay. And it’s concerning the cause or circumstances of their impending death. So those those are very, very important distinctions. There’s a lot of ways those those don’t both get satisfied.
01:03:05:10 – 01:03:32:11
Right? Right. So Tim, this is where I’m going to cut to you. I kind of want to hear some examples. I want to hear unpack it and technical but understandable terms okay. Yeah. So they have to believe that death is imminent. Yep. And they are making a statement related to the cause of that imminent death. Right. So like you said, it generally does apply in homicides, but it can apply in attempt homicides or aggravated assault or some of those kinds of cases to.
01:03:32:14 – 01:03:51:25
All right. So here’s an example. Yeah I am actively believing I’m dying. I’m bleeding out on the road. It’s everybody thinks I’m dying, I think I’m dying. And I say, my brother stole $30,000 for me last year, and then I die. Is that coming in under dying declaration? Probably not. But now why? It’s not because it doesn’t believe that was imminently dying.
01:03:51:26 – 01:04:16:08
Yeah. It doesn’t relate to the circumstances of the impending death. That’s right. Exactly. Fails. For that reason, you don’t check both boxes there. I had a case one time where the victim was shot and was was truly in a bad way. And, the officer kind of climbed into the ambulance and, and asked questions. And the guy did say, that’s the person this guy shot me.
01:04:16:10 – 01:04:39:29
And in fact, the officer then after a conversation with his sergeant, this was the example we were talking about back into the ambulance and, and basically asked all those same questions again. But he give this time. This time he gave kind of a disclaimer where he was basically like, hey, it’s not looking too good, man. Like, I like, you’re going to be taken to the hospital here.
01:04:39:29 – 01:04:58:14
They’re taking you into surgery, and I don’t know whether you’re going to make it. They’re not going to comment to us on whether you’re going to make it. He said a bunch of things. It’s almost like, how are you feeling? Do you think you’re gonna die? It’s almost asking. But that’s the point. It illustrates the difficulty that when these statements are made, sometimes it can be hard to establish that a person believed they were dying.
01:04:58:15 – 01:05:27:13
Right. And that that’s why they’re being truthful. So it’s it’s comical. And again, it’s one of those kind of weird scenarios. But the officer did what he did because he, he was not he wanted at least the recording of that statement to reflect that this is a dire situation for this guy, and he is agreeing to make the statement only because he believes he’s not going to be around anymore, because otherwise he wouldn’t have made those the statement in the first place.
01:05:27:13 – 01:05:46:19
So he was essentially trying to make the record clear that this guy was, under the impression that he was dying. So that was kind of an interesting occurrence, because you don’t often have that, like people don’t just say, well, I think I’m dying. So I’ll tell you all this information. You just ask a question and they’ll say the answer.
01:05:46:20 – 01:06:05:28
Yeah. And I do actually just want to touch on one thing here because we got to remember here, this isn’t just believing death is intimate, imminent and about the causes or circumstances of the death. The declarant also has to be dead in this scenario. Oh yeah, we’re unavailable for it to be admissible admitted after the fact. Yeah, yeah.
01:06:05:29 – 01:06:18:02
So if the guy ends up living, I guess I kind of took that part of it for granted, right? Yeah. If the guy ends up living. I just thought of this as we were saying. This guy ends up living. You can’t use this, right? Then he has to get up on the stand and say, this guy shot me, right?
01:06:18:03 – 01:06:32:05
Right. Exactly. Yeah. Then I guess he would. So then in that sense, as you are right, then it pretty much does only apply in homicide cases for the because I mean, if they live I mean, I think, well, it is rules of criminal procedure, but I think there are probably some reliability. It could come in in like civil cases.
01:06:32:05 – 01:06:51:23
Well, and you could also introduce it if it becomes a turncoat witness and they lie about who shot them later, then that statement can potentially be used for impeachment or substantive evidence. You can. Oh, you mean like they initially lived and then they died later? No, no, no, I mean, like, if they live. Right. And then and then you call them to court to testify about who shot them, and they’re, like, uncooperative.
01:06:51:26 – 01:07:11:21
Well, now, that prior statement potentially can be introduced. It’s a recorded impeachment. No, it can also be introduced as substantive evidence if they are like a turncoat witness. Oh yeah. Yeah, yeah, yeah. But again, I don’t think this is when that’s it wouldn’t be deception because he’s alive. You know. Yeah. You’re right. If he’s in a coma. What if he doesn’t die but he’s in it.
01:07:11:25 – 01:07:41:13
Well, he’s not available then. Yeah. He’s not available. So. Yeah. So but so death I guess he’s not only has they die, but if they’re unavailable for other reasons, you know, they’re in a coma that could also be used I would say. Yeah. So that’s true. That would qualify. I do think too for I don’t think we mentioned this, but for whether someone’s available or not to testify, there are under the rules, certain requirements or I guess boxes that you check for someone to actually not be available, right?
01:07:41:15 – 01:08:06:01
Am I wrong? I mean, no, you’re right. No, absolutely. Okay. Yeah. But I just think that that’s important to mention here, because just because someone doesn’t want to testify doesn’t owe them unavailable. Yeah, it doesn’t make them unavailable. No available means they’re, like, physically unavailable to testify. Not that they’re unwilling. There’s a big difference there. Yeah, but legal unavailability can also be established if you can’t find the person.
01:08:06:02 – 01:08:28:15
Yeah, that’s another way. Again, physically unavailable right there on the run there. Maybe they’re dead and maybe they’re alive. Well, we don’t know. We don’t know. Yeah, right. All those things. So there’s actually, some interesting things that have happened in your I’m going to kind of give you guys kind of an example of something, that I don’t think is considered a dying declaration, but I want to get your guys take on it.
01:08:28:16 – 01:08:57:05
So let’s say there’s a situation where, somebody, you know, say two brothers are together and one day, and, you know, something happens where the one almost kills the other in an apparent, like, accident. Okay. But ends up fine. And that person goes and writes a statement like, later, right? Like, hey, yesterday, my brother Joe almost killed me, and I think he might try again.
01:08:57:05 – 01:09:17:06
If anything happens to me, it’s probably, you know, this guy, right? And if that’s the case, you know, and then ends up that the guy dies, like, the next day or a few days later. Do you think that statement comes in as a dying declaration? And if not, why do you think it fails? Probably it’s going to depend on the definition of imminent.
01:09:17:08 – 01:09:33:21
Yeah, that’s true. And that’s that’s kind of what I was getting at in the statement, because they do, in fact, believe that there will be another attempt on their life. And so the question is how imminent is how imminent is it? How immediate is it? Right. I think in that scenario, you get that it’s a temporal question again, right?
01:09:33:23 – 01:09:51:27
To me, imminence is immediate. Yeah. It’s not this might happen. And then it does a couple of days of abstract time in the future. Yeah I would if they write it and then within like an hour they’re dead maybe. Yeah. But I think you start creeping. That’s hard to prove though. Again, like, when was that statement written? By whom?
01:09:51:27 – 01:10:08:26
All that stuff is, is all in question? Yeah. You have to look at the circumstances as to whether you you can do that. Yeah. It’s an interesting legal question. You know, I think you’re right. There are some scenarios. There’s arguments to maybe get it in, but there’s also, I think, strong arguments against it, too. I think you find try to find some other way to get that in.
01:10:08:28 – 01:10:34:08
Yeah. Yeah. Okay. I’ll tell you what. Can you guys give me some examples of things that are maybe, like, I was just saying, you think they’re dying declarations, but they’re not. So I’ll start. So, if this is spoken while someone is dying. Three years ago, my brother stole my truck. This is an example. Kind of like I gave about $30,000 earlier, right?
01:10:34:10 – 01:10:55:14
In that scenario, it’s not about the circumstances in relation to death. So again, guys, you got to check all the boxes here, right? Unavailable. Believing death is imminent and the circumstances of impending death has to be the topic. All right. So I’ll just. I’ll just take this myself. I love this next one. One other example. I was hoping you were going to give me this.
01:10:55:14 – 01:11:15:26
All right. Fine. Tim, you take it. Damn it. I love I love this example. It’s so funny the way that you describe this. Like. Like if I were if you shot me and I said, man, there. There’s no way that I’m gonna die. I’m not gonna see l shot me. I’ll be fine. I’m gonna pull through this. I’m a fighter.
01:11:16:02 – 01:11:38:20
Things are gonna be all right. That statement isn’t gonna come in because I’m saying I’m gonna be okay. Like I believe I’ll be fine, right? Now, I’d be so pissed if I was a prosecutor and got a Steven like that. But if I’m the the defense tram like this. Amazing. Yeah, like I’m not dying. This guy was so confident that he was not gonna die being shot in the face nine times, right?
01:11:38:21 – 01:11:54:13
His statement doesn’t come in on the screen. I’m like, wow. I mean, I think I think you would you would probably, you know, you’re only attempt to get that statement in would be to say that he didn’t genuinely believe what he said, you know, and that and that that’s a self-defeating argument because then how do you believe the rest of his statement?
01:11:54:13 – 01:12:09:21
Statement against interest? Yeah. I mean, if you’re, you know, so like that would be kind of a really weird paradox to be in, like, I’m going to be fine. I’m not dying because that guy shot me. But I could see people saying that. Yeah, right. Like out of just a pure pride thing. Like I’m not letting him take me out type of thing.
01:12:09:22 – 01:12:26:27
Right. But then they’re literally creating a process and they’re nightmare, and then they’re dead. Yeah. That’s crazy. Oh, my God, I wouldn’t have. I would have never thought of that. But that is that is a hilarious very. Yeah. And it could happen. I do think it’s a it’s even though it’s hilarious. It is also very cartoonish. Yeah.
01:12:26:28 – 01:12:43:28
Like the like type of guy that would say something like that is like the dude who played quarterback in high school and then just like, didn’t go to like, all this, like, still lives in his parents basement and, like, everything will be fine. The kid he used to bully, like, got like shot of. And he’s like, no, no way I’m dying.
01:12:43:29 – 01:13:03:13
Yeah. Not a chance. Not gonna let him take you. Throw football over those mountains. Only coach put me in back in the day. I can’t die yet. Oh, dude. The character dynamite. I was just thinking that the Uncle Rico. Yeah, that was stupid movie. All right, Levi, add the clip. Napoleon Dynamite, uncle Rico throwing him over the mountains.
01:13:03:13 – 01:13:06:05
01:13:06:05 – 01:13:06:29
01:13:06:29 – 01:13:10:24
01:13:10:24 – 01:13:12:08
01:13:12:08 – 01:13:12:16
01:13:12:18 – 01:13:33:05
Objection to relevance. Yeah, right. It’s a fun one to watch. Well, all right. Okay. So. All right, guys, so the last one, I think to kind of just touch on and this one I think is patently obvious, we all understand it is an actual opposing party’s own statement that’s made outside of court. Right. And the guy’s not on the stand.
01:13:33:06 – 01:13:53:28
So he’s he’s not testifying, but you’re introducing his or her statement out of court that comes in. That is an exception as it’s considered an emission by a party opponent. And, you know, essentially their own words can come back to haunt them. You know, if you’re if you’re the one that’s a party, anything you say can and will be used against you.
01:13:53:28 – 01:14:14:28
And I think there’s there’s an interesting distinction here between the Pennsylvania rules of Evidence and the federal Rules of Evidence, the federal Rules of evidence, by definition, this is not hearsay. So, okay, I believe that is how the federal rules treat it. It’s technically still hearsay in Pennsylvania’s rules of evidence, but it is admissible. So that’s a distinction okay.
01:14:15:00 – 01:14:38:09
All right. So again guys these exceptions that we’ve been going over are essentially that it’s not exceptions. Hearsay rule really aren’t about the truth. Kind of I want you to go back and remember where we started with this. Hearsay is a statement that is offered for its truth. But here’s the irony. Many of these exceptions don’t exist because the courts have somehow determined that the statement is definitely true.
01:14:38:11 – 01:15:03:26
The rules have decided that under particular circumstances, kind of as we’ve described and as we’ve given you examples of that, they are sufficiently reliable to be considered, you know, by the jury. So all right. So I’m going to give I want to go over some things, common statements that are not considered hearsay here. So, these may surprise you.
01:15:03:28 – 01:15:19:15
So we’re going to we’re going to touch on these, but I think one of them is rebuttal evidence. You know, we were kind of talking about this before with impeachment. It’s very kind of similar in a way. So, Justin, you want to kind of talk a little bit about rebuttal evidence and just kind of what that means exactly.
01:15:19:17 – 01:15:35:06
Yeah. So, actually, somebody I know from back in the day when the Lindsay Clancy trial was going on, had sent me a text about whatever day it was and they were putting on, like, their rebuttal evidence, and they were like, well, what does that mean? Oh, like, what is the word rebuttal even mean? Well, I think not.
01:15:35:06 – 01:16:07:16
What doesn’t mean, but like rebuttal evidence, right. Like if I think some people if you’re not again, doing trial work, you may not know what that is. So rebuttal evidence essentially after I think the easiest way to describe it is prosecution puts on their case in chief. They they rest and then the defense puts on, you know, a case in chief and then they rest, depending on what evidence was introduced or what testimony was elicited through the defendant’s case in chief, the prosecution can then put up rebuttal evidence.
01:16:07:23 – 01:16:31:03
So basically evidence that may usually it can’t come in in the case in chief if I remember correctly. But then again, depending on what the defendant testifies to or whatever it is they introduce, prosecution can then put up a witness or other evidence to rebut what the defendant is arguing. Essentially. Right. I think a good example of this is like a prior inconsistent statement.
01:16:31:04 – 01:16:47:06
Right. So if somebody says something at an earlier part of a court proceeding, maybe in a like a preliminary hearing, for instance, under testimony, under oath, and then they’re at trial saying something completely different. Yeah. Well, now you get to kind of bring that in on rebuttal and say, hey, listen, you know, we’re going to rebut that and this is why it’s relevant.
01:16:47:08 – 01:17:08:22
And you said this before and you’re kind of basically impeaching them. Yeah. So it’s like at the prelim there. You know they say the sky is blue. And then I trial. They say the sky is green, right? Yeah. You can then introduce their prior inconsistent statement. And again like you said, you’re you’re impeaching them. You’re attacking their credibility to try to show the jury that this person’s testimony is not trustworthy.
01:17:08:23 – 01:17:31:12
Yeah. Well, Tim, what about prior consistent statements? Those can sometimes be used in a rebuttal capacity to show, you know, recent fabrication or undue influence or suggestion by another party, that might come up in trial situation. So do you have any thoughts on that or give me an example? Well, that’s pretty much just what it sounds like.
01:17:31:16 – 01:17:53:28
You would introduce prior statements because they’re evidence that this person has been consistent the whole time. And what they’re saying now is the same as what they said before. You would introduce this primarily if they testified to statements now and then the the issue is raised that they’re not being truthful. So you would you would introduce prior statements to show they’ve been telling this same story the whole time.
01:17:53:28 – 01:18:17:17
So you should believe that it’s true because they haven’t changed their story. Yeah. It’s basically rehabilitating. Correct. Yeah. You’re somebody else might have tried to rebut you, but now opposite of impeachment. Yeah. You’re witness by a prior consistent statement. Yeah. Okay. It’s peach minute of evidence. Impeachment. Oh yeah. I mean, it’s straightforward. Like you said, it’s just. Yeah, you’re trying to just show the jury that with these consistent statements, this person is trustworthy.
01:18:17:18 – 01:18:42:06
Correct. What they’re saying you should. Yeah. They said this before, so. Yeah. All right, guys, well, I think that was a pretty lengthy unpacking of hearsay generally, and maybe even some other tidbits we added in there in the middle. So guys, here’s here’s your conclusion for today. If you remember one thing about hearsay, remember this. Don’t merely ask, did someone else say it, okay?
01:18:42:14 – 01:19:03:21
And then just scream here, say and interrupt everything and just play the hearsay card. Ask why is the statement being offered and what exactly is this jury or this judge being asked to believe from the statement? If you ask that question, then you will be at the point where it’s whether you’ll be able to determine whether or not it is hearsay.
01:19:03:23 – 01:19:20:23
So guys, thanks for watching. Now we defend podcasts here at Kearney Law. Again, we love coming to you every week with different topics and different things that we can talk about and stories that we’ve experienced. Keep coming with the comments. Keep hitting us hard with those. I’m trying to respond to every single one of them the good, the bad and the ugly.
01:19:20:26 – 01:19:39:06
Sometimes I try to respond comically. Sometimes I try to respond seriously, depending on the nature of the comment. But we will keep doing that. Check us out again on TikTok and Instagram and Facebook and YouTube and all that jazz. And again, we’re going to give a quick shout out to our producer, Levi Levi. We love you.
01:19:39:09 – 01:19:51:00
Next week, guys, we got our surprise new episode coming. We’re all super pumped about it. So definitely tune in next week to our podcast. I think you’re going to enjoy it. And it’s a treat. Take care.
