Usually when you break your arm, the X-ray shows a jagged white
line and the doctor points at the film and says, well, there
it is. Right, it's visible.
I mean it is binary. It's either broken or not
broken. Exactly.
But imagine stepping into a courtroom.
You sit down at the counsel table and you realize the
diagnostic machine for truth is just completely shattered.
Oh yeah, opposing counsel stands up and introduces a statement
from a phantom. Right.
A witness who isn't even in the room, whispering into the jury's
ear through a piece of paper or like a second hand story.
And this is really the invisible ghost of evidence law.
You run your mental diagnostic and the statement is absolutely,
undeniably, 100% hearsay. It is an out of court statement
being offered to prove the truth of the matter asserted.
Which means you know under the standard rules of engagement
that evidence is dead on arrival.
Right. The judge slams the gavel,
sustains your objection, and the jury is instructed to disregard
it entirely. Because the system is built on
the premise that we do not trust statements unless we can look
the speaker in the eye, we want to put them underoath and
subject them to the absolute Crucible of cross examination.
But imagine you aren't the one objecting.
Imagine you are the one offering that phantom statement.
Oh, that's a terrifying place to be.
It really is. Your entire case hinges on it.
Your star witness is gone, and this hearsay is literally the
only thread keeping your client's case alive.
And that is our mission for this deep dive.
Yes, we are looking for the life lines, the secret passages in
the Federal Rules of Evidence that save out of court
statements from the shredder. We are going to master rule
eight O 4 and rule eight O 3 before we eventually face the
ultimate constitutional boss fight at the end of the
gauntlet. The confrontation clause.
Exactly. And if you are studying for a
law school final or, you know, preparing for the bar exam, this
is where you have to fundamentally reorganize your
brain. Yeah, you cannot just memorize a
laundry list of acceptance. No, not at all.
You have to degrade these life lines into two entirely
separate, impenetrable universes.
Unpack that for us. Well, you have the tomb
exceptions, which live under rule eight O 4, and you have the
ghost exceptions, which live under rule 8 O three.
Mixing up the philosophy behind these two rules is honestly the
number one reason brilliant students hemorrhage points on an
exam. I wanted to get into that
architecture, actually, because calling them tomb versus ghost
implies a totally different level of desperation on the part
of the lawyer offering the evidence.
Desperation is exactly the right word.
I mean, let's look at the rule eight O 4 tomb exceptions.
The fundamental philosophy here is that the law actually hates
these exceptions. The courts do not want this
evidence. They view it as second rate.
Right. Inherently flawed and dangerous.
So to unlock a tomb exception, you have to prove to the judge
that you are entirely out of options.
Person who made the statement. The declarant must be legally or
physically sealed away. Yes, they cannot be brought into
the courtroom. They're strict.
Legally defined Unavailability is the heavy iron key that
unlocks the tomb. Contrast that with Rule 803, the
ghost exceptions. If I'm understanding the
structure, these are statements that the law actually kind of
loves. Well, loves might be a strong
word, but the law deeply trusts them.
OK, the ghost exceptions come floating into court regardless
of whether the declarant is sitting right there at the
plaintiffs table totally healthy, or if they have
vanished off the face of the earth.
Wow. Yeah, the law assumes the
circumstances surrounding these specific statements are so
inherently reliable, so profoundly spontaneous, or so
boringly routine that bringing the witness into court to face
cross examination wouldn't actually add any value.
So availability is totally, completely immaterial.
Precisely. So before we can even touch the
specific rules inside the eight O 4 tune, we have a massive
gateway issue. The gateway of unavailability.
Right. We have to prove to the judge
that our witness is truly legally unavailable.
And if I put myself in the shoes of a first year law student, my
instinct is to say, well, the witness is dead, That's
unavailable. Sure, death is the ultimate
unavailability, certainly. But the drafters of the Federal
Rules of Evidence recognize that a witness can be just as useless
to a trial lawyer while sitting in the witness box with a pulse
as they would be 6 feet under. Interesting.
So Rule 8 O 4A carves out five distinct, highly specific
categories of unavailability, and the diagnostic acronym you
want to burn into your memory here is PRISM.
PRISM. Prism, OK.
If your witness doesn't fit into one of these 5 letters, the tune
door stays shut and your hearsay is excluded.
Let's run the PRISM diagnostic, starting with P privilege.
Imagine you're a prosecutor. You finally get the mob boss's
wife on the stand. She knows where the bodies are
buried. She saw everything.
Star witness, Exactly. You ask her the golden question
and she leans into the microphone and invokes the
spousal privilege. Or maybe an accomplice invokes
the 5th Amendment right against self incrimination.
They are sitting right in front of the jury, breathing the
courtroom air. But legally, they have ceased to
exist. The court has formally ruled
that a recognized privilege exempts them from testifying
about the subject matter. And the friction here is
fascinating. You know how so?
Well, the justice system is desperate for the truth, but
society has decided that protecting the sanctity of
marriage, protecting the constitutional shield against
self incrimination is actually more important than your
specific trial. So the judge honors the
privilege. Yes, and the moment that
happens, the witness is deemed unavailable under the P in
Prism. Which brings us to the R in
prism Refusal. Now I want to push back on the
mechanics of this a little bit. If I'm a witness and I just
don't want to get involved, like maybe I don't like the
prosecutor, maybe I'm annoyed I had to take time off work.
Can I just walk in, cross my arm, say I refuse to answer, and
suddenly the lawyer gets to use all my out of court hearsay
statements? No, absolutely not.
Does the law reward sheer stubbornness?
The law absolutely punishes stubbornness.
You cannot just express a casual preference not to talk.
For a witness to be deemed unavailable due to refusal, it
has to be a high stakes standoff with the judicial system itself.
Walk me through that. OK, The witness takes the stand.
The lawyer asks the question. The witness refuses.
The judge then leans over the bench and gives a direct, formal
court order. You must answer the question.
And if they still say no? Then they are staring down the
barrel of contempt of court. Yeah, they are risking fines or
more likely sitting in a jail cell until they decide to open
their mouth. The refusal has to persist
despite the court order. So the judge has to essentially
throw their hands up and say I have threatened them with jail
and they still won't talk. Exactly.
I cannot physically force the words out of their throat.
Only when that absolute defiant threshold is crossed does the R
in Prism trigger. That paints a much clearer
picture of the the stakes. So asserting a right gets you
off the stand, and defiant stubbornness in the face of jail
gets you off the stand. Let's move to the I in prism.
Incapacity. This is the one we touched on
earlier. Death, obviously, but the rule
also includes a then existing severe physical or mental
illness or infirmity, and this is where the medical reality
crashes into the legal schedule. Exactly.
Let's look at the Fifth Circuit case, United States versus
Amaya. This perfectly illustrates the
tension. OK, you have a witness who was
in a severe automobile accident resulting in a loss of memory.
The proponent of the hearsay wants to use their prior
statements claiming they are incapacitated.
Makes sense. But the opposing counsel cries
foul, arguing wait a minute, you haven't brought in an expert
neurologist to prove this memory loss is permanent.
Maybe they just have a concussion.
Postpone the trial until they heal.
Which puts the judge in a terrible position.
Do you freeze the entire justice system for six months waiting to
see if a witness regains their memory right?
How does a judge define the duration of an illness for the
sake of unavailability? Well, the Amaya court provided a
brilliant pragmatic standard. They clarified that establishing
absolute medical permanence of an illness isn't required.
We aren't asking for a guarantee that the witness will be sick
forever. OK, so what's the standard?
The legal standard is whether the duration of the illness is
in all probability long enough that the trial simply cannot be
postponed. Because criminal defendants have
a right to a speedy trial, you can't just leave someone sitting
in pretrial detention for three years because a witness is in a
coma. Precisely.
The judge balances the severity of the illness against the
importance of the testimony and the logistics of the trial
calendar. It is a practical standard, not
a purely medical one. Now, some legal scholars get
incredibly pedantic here, pointing out that analyzing a
car crash memory loss under the illness prong of incapacity is
messy because the drafters actually created a specific
separate letter just for memory. Oh, for sure.
But before we get to that, let's tackle the in Prism subpoena
failure. This is the ultimate exam trap,
and honestly, in real practice, it's where sloppy lawyers lose
their cases. How so?
Well, subpoena failure happens when the witness is absent from
the hearing and the proponent of the statement has been
completely unable to procure their attendance.
So let's say my witness gets wind of the trial, panics and
flees to a country with no extradition treaty.
I walk into court and say, your Honor, my witness is in a
Chateau in the South of France. They are unavailable.
I win, right? The tomb opens.
You lose and the door stays bolted shut.
Wait, really? Why?
Because you just said they are in France.
You didn't tell the judge what you did about it.
The rule demands that you show you used reasonable means to get
them. Oh, I see.
Did you contact the State Department?
Did you attempt to serve them internationally?
Did you offer to pay their travel expenses back to the
jurisdiction? You cannot just shrug and say
they are gone. You have to prove you exhausted
the judicial machinery trying to drag them back.
And the trap goes even deeper than just geographic distance,
doesn't it? Especially in civil cases.
It's a massive hidden tripwire. Let's say you are trying to
introduce a dying declaration, or a statement against interest,
or a family history statement. If you are in a civil lawsuit,
it is not enough to just show you couldn't get them to
physically walk into the courtroom for the trial.
You actually have to prove you attempted to depose them first.
Why the distinction? Why do civil cases require this
extra hoop of a deposition? Because civil cases are
fundamentally about money, and they drag on for years, the law
assumes you had plenty of time during the discovery phase.
Look at the North Dakota Supreme Court case State versus POITRA.
It's construing a state rule that is identical to the federal
rule. What happened there?
In Poitra, a party wanted to introduce testimony of someone
who overheard A confession. The declarant couldn't attend
the trial. But here is the kicker.
The declarant had been deposed by agreement of counsel prior to
the trial. So they already had their
testimony on the record. Right.
And because they had that deposition, the court said they
are not unavailable for the purposes of unlocking hearsay
exceptions. But a logic is simple.
If you have a deposition, you don't need the hearsay exception
because you already have sworn testimony that was subject to
cross examination. And if you could have reasonably
deposed them but just got lazy, the judge will punish you by
keeping the hearsay out. That is a brutal mechanism for
enforcing diligence. Very brutal.
OK, let's hit the final letter of Prism, the M memory.
Yes. The witness takes the stand and
testifies to a genuine lack of memory regarding the subject
matter. But I have to put on my
skeptical student hat again. I know exactly where you are
going. The feigned amnesia.
Exactly. Yeah.
Imagine a witness who is terrified of the defendant.
The defendant is a known cartel enforcer staring daggers at the
witness from the defense table. Intimidating.
Right. The witness panics.
They know if they refuse to testify, the judge will hold
them in contempt. So they take the stand and
certainly say, you know what? I don't remember a single thing
about that night. Total blank.
Does that legally establish a lack of memory and unlock the
hearsay? This brings us to the NSANA
standard. The answer is no, it is not
automatic. The courts are deeply cynical
about sudden bouts of selective amnesia.
So the judge just decides. Basically, the judge is not a
robot who just hears the words I forget and pushes the
unavailability button. The judge has to act as a
gatekeeper of credibility. They will evaluate the demeanor
of the witness, the surrounding circumstances, and the nature of
the questions being asked. OK, if the judge determines the
claimed lack of memory is a that they are faking it out of fear
or loyalty, then they are not unavailable under the memory
Bron. Which creates an incredible
paradox. If the judge says I don't
believe you, you're faking your memory loss.
Then the witness is technically available, but they still aren't
talking. So the lawyer is stuck with a
mute witness on the stand and no hearsay exceptions to save them.
It's a nightmare for the proponent of the evidence.
And Speaking of nightmares, there is an ultimate overriding
caveat to everything we just discussed with Prism.
Oh boy. A master lock that prevents the
tomb from ever opening. Forfeiture by wrongdoing.
The ultimate unclean hands doctrine.
Precisely if the judge finds that the proponent of the
statement wrongfully procured the witness's absence, the PRISM
diagnostic is irrelevant. You cannot murder your star
witness to keep them off cross examination or bribe them to
flee to Mexico. No.
And then waltz into court in a tailored suit and say, your
Honor, tragically the witness is unavailable.
I'd like to use their previous hearsay statement.
You cannot benefit from your own obstruction of justice.
The door slams shut forever. OK, so let's assume we have
successfully navigated the gateway.
We have proven genuine unavailability without dirtying
our hands. The heavy stone door to the tomb
exceptions rolls open. We're in.
Let's explore the specific life lines hiding behind that door,
starting with arguably the most famous rule in all of evidence
law, straight out of a medieval courtroom, Rule 8 O 4B2, the
Dying Declaration. The historical roots of this
exception are deeply embedded in common law.
Hundreds of years ago, the legal scholars working in a highly
religious society developed a psychological theory.
No one wants to meet their Maker with a lie on their lips.
The underlying assumption is that the terrifying immediate
prospect of death strips away the human desire to fabricate,
scheme or seek Betty revenge. Right.
The psychological pressure of impending doom forces absolute
truthfulness. So the law is essentially
treating the fear of Hellfire as a substitute for the oath and
cross examination. That is exactly the
jurisprudential trade off. But practically, you know, in a
modern courtroom, what are the strict requirements because
people say crazy things when they are hurt.
True, there are two two ironclad requirements.
First, the declarant must subjectively believe that their
death is imminent and absolutely inevitable.
Inevitable. 2nd, the statement they make must specifically
concern the cause or the circumstances of their impending
death. You can't use your dying breath
to confess to an unrelated bank robbery from 10 years ago.
It has to be about why you are dying right now.
I want to zoom in on that first requirement, the belief in
imminent death, because the devil is entirely in the details
of the victim's state of mind. Always.
Let's talk about the landmark Supreme Court case, Shepherd
versus United States. This case is a master class in
how judges dissect the psychology of a dying person.
Shepherd is brilliant. Picture the scene in the early
1930's. The victim, Missus Shepherd, is
suffering terribly from bichloride of mercury poisoning.
She's fading fast. And her husband, Doctor
Shepherd, is the prime suspect, Yes.
She turns to her nurse and says Doctor Shepard has poisoned me.
If the prosecution is practically salivating, they try
to get this incredibly damning statement in as a dying
declaration. On the surface, I mean, it looks
perfect. She's dying from poison, and her
statement is entirely about the cause and circumstances of her
death, identifying her killer, right?
But the Supreme Court threw it out.
Why? Because the law demands more
than just a mortal wound and a fearful victim, the Supreme
Court rigorously analyzed Missus Shepherd's exact phrasing and
behavior. Yes, she was dying.
But she had also asked the nurse for help to get better.
She had asked for a doctor. She still harbored A faint,
desperate hope of recovery. Justice Cardozo, writing for the
court, famously articulated that mere fear or suspicion of death
is not enough. There must be a settled
expectation of death. A settled expectation.
You have to believe the Grim Reaper is literally standing in
the room with his hand on your shoulder and there's absolutely
no escape. Exactly.
If there is even a sliver of hope that the doctors might save
you, the psychological guarantee of truthfulness evaporates.
The law assumes that as long as you think you might survive, you
might still have a motive to frame your husband for poisoning
you. That is so dark but logically
sound. You have to compare Shepherd
with cases like People versus Cavazos, where the victims
specifically requested last rites from a priest or
explicitly told the paramedics. I know I'm not going to make it.
Clear evidence. Right.
Without clear, demonstrable evidence of that specific
fatalistic state of mind, the exception fails.
OK, so the internal state of mind is a massive hurdle, but
there was a structural exam trap built into this rule that
catches almost everyone. Because it is so
counterintuitive, I'm going to put you in the hot seat with a
classic bar exam hypothetical. Bring it on, I'm ready.
Imagine you are the prosecutor. A guy is shot multiple times in
a dark alley. A police officer runs up to him.
The victim is bleeding out. Completely fatalistic.
He gasps. Dave shot me.
Tell my wife I love her. I'm dying.
He then slips into a deep coma. Now, miraculously, modern trauma
surgeons managed to stabilize him.
He survives the gunshot. The prosecutor charges Dave with
attempted murder. At the time of the trial, the
victim is still in a persistent vegetative state, a coma, so we
run our PRISM diagnostic. He is legally incapacitated,
completely unavailable. Can the prosecutor use that
gasping alleyway statement as a dying declaration against Dave?
And the gut instinct for every student is to scream yes, I mean
the victim thought he was dying, The statement was about the
shooting and he is legally unavailable.
It seems perfect. But the legal answer is
absolutely, unequivocally no. And this is how test makers
separate the meticulously prepared students from the rest
of the pack. Breakdown.
Why the system rejects it? It comes down to the bizarre
historical restrictions placed on what types of trials are
allowed to use this exception. Under the federal rules, a dying
declaration is only admissible in two types of proceedings, any
civil case or a criminal homicide case.
An attempted murder is not a homicide because nobody actually
died. Precisely.
In a Criminal Court, someone else actually has to be on a
slab in the morgue for the rule to apply.
It is an archaic relic. Under the old common law, you
could only use dying declarations in homicide cases.
The drafters of the modern federal rules decided to expand
it slightly by allowing it in civil cases, figuring money is
less important than liberty so we can be a bit looser with the
evidence. But they were too terrified to
expand it to all criminal cases, so the strict homicide
limitation remains in place. It's wildly counterintuitive.
The rule is called a dying declaration, but the declarant
themselves doesn't actually have to die to use it.
They just have to be in a coma or otherwise unavailable.
Yet for a criminal prosecutor to use it, the charge must be
homicide. The legal acrobatics are
staggering. They really are.
Let's move to another major tomb exception.
Rule 8. O 4B one former testimony.
This is a highly mechanical rule.
It requires that the currently unavailable witness previously
gave sworn testimony at a trial, a formal hearing, or a lawful
deposition. But the critical element is that
this prior transcript is now being offered against a party
who had an opportunity and a similar motive to develop that
testimony through cross examination back when it was
originally given. So if we are in a retrial
because of a hung jury and a witness dies before the second
trial, the prosecutor can just read the transcript of their
testimony from the first trial to the new jury.
Yes, because the defense attorney had the exact same
motive to tear that witness apart in the first trial as they
would in the second. The cross examination was
already performed. But let me flag the trap I see
constantly on message boards in law school study groups.
A student reads a fact pattern where a witness gave a grueling,
heavily cross examined deposition in the exact same
civil case six months ago. OK, the student sees that
perfectly preserved sworn transcript and immediately jumps
to the conclusion that the deposition is automatically
admissible at trial. And they failed a question
because they forgot the gateway. You must prove the witness is
unavailable first. The law fundamentally prefers
live testimony. We want the jury to see the
witness sweat, to see their eye contact, to gauge their
demeanor. Right, that human element.
If that witness is alive, healthy, and living in the next
town over, and the lawyer just didn't feel like paying the
subpoena fee to bring them into court, that pristine deposition
transcript is completely inadmissible hearsay.
You cannot just choose the transcript because it's more
convenient than managing a live human being.
Convenience is not an exception to the hearsay rule.
Definitely not. OK, let's look at Rule 8 O 4B3,
the statement against interest. The psychological theory here is
the exact opposite of the dying declaration.
Instead of relying on the fear of death, we rely on the
fundamental human instinct for self preservation.
OK, the rule applies when a statement at the exact moment it
was made was so incredibly contrary to the declarant
self-interest that a reasonable person would never have said it
unless they firmly believed it was true.
What kind of interest are we talking about?
Like any interest. No.
The law recognizes 3 specific types of interest.
Pecuniary, meaning it costs them money or invalidates a debt.
Proprietary, meaning it diminishes their property
rights, like admitting the boundary of your farm is
actually 10 feet smaller than you claimed.
And then third penal, meaning it subjects them to criminal
liability. Let me give you a hypo.
Imagine I'm sitting in a bar and I told my friend, yeah, I've
been cooking the books at my company for five years.
I've stolen millions in tax revenue.
OK, spicy. A month later, I flee the
country to avoid arrest. I'm legally unavailable.
The IRS is auditing my company. Can they use my bar room
confession? Absolutely.
Admitting to massive tax fraud is a profoundly powerful
statement against your penal and pecuniary interest.
No rational human being brags about committing a major federal
felony unless it actually happened.
The law trusts the sheer self-destructive nature of the
words. But there is a massive red flag
when we deal with penal interest in criminal cases, specifically
when it involves pointing the finger away from the defendant.
Oh yes, the some guy named Jimmy did it defense.
Exactly. If a statement exposes the
unavailable declarant to criminal liability and it is
offered in a criminal trial to exculpate the accused, meaning
the defense is trying to use it to get their client off the
hook, the rule throws up an enormous roadblock.
Well, it's the roadblock. The defense must provide
corroborating circumstances that clearly indicate the
trustworthiness of the statement.
Why the extra hurdle? Because the justice system is
deeply, inherently suspicious of a conveniently absent person
taking the fall for the guy sitting at the defense table.
Criminals have friends. It is incredibly easy for a
defendant to find a buddy who is already fleeing the jurisdiction
to say, hey, write a letter saying you robbed the bank, not
me, you're leaving anyway. That makes total strategic
sense. Without independent, objective
corroboration tying that absent friend to the crime scene, the
judge will exclude the statement to prevent blatant fraud on the
court. Now there are a couple of other
minor eight O 4 tomb exceptions like family history or pedigree,
which allows unavailable relative to testify about
births, marriages and bloodlines.
Yeah, and we already deeply explored forfeiture by
wrongdoing. So I want to execute a hard
pivot. Let's do it.
We are leaving the cemetery. Time to step into the light and
look at the ghost exception. Exactly.
We are transitioning to rule eight O 3.
The paradigm completely shifts here.
We no longer care if the witness is dead, alive, in a coma,
hiding in France, or sitting in the front row of the jury
gallery eating a sandwich. Not at all.
Availability is absolutely immaterial.
And we have to ask ourselves why?
Why does the law suddenly drop the unavailability requirement?
Right. The unifying theory behind all
Rule 803 exceptions is that these specific types of
statements are generated under conditions that are so
incredibly spontaneous or so deeply embedded and routine
institutional bureaucracy, that dragging the witness into the
courtroom wouldn't actually enhance the reliability of the
evidence. Cross examination is useless
against a perfectly formed spontaneous reaction.
Exactly. Let's unpack the spontaneous
family first. We have present sense impression
and excited utterance. They are cousins.
They look similar on a law school exam, but they operate on
fundamentally different internal mechanisms.
Very different. One is governed by the clock and
the other is governed by the heart rate.
Let's start with the clock. Present sense impression Federal
Rule of Evidence 8 O3 one. I like to call this the play by
play rule. It is a statement describing or
explaining an event or condition made while or immediately after
the declarant perceived it. Like a sports announcer calling
a football game. He's at the 20, the 10.
He dodges the tackle touchdown. The announcer is describing the
event exactly as the photons are hitting his retinas.
Perfect analogy. If a husband and wife are
standing at their living room window and the husband says look
at that blue car speeding through the red light, the
husband is the declarant. Even if that husband is sitting
right there at the counsel table, perfectly available to
testify, the wife can take the witness stand and repeat his
exact quote. But the timing constraint here
is incredibly rigid. We're talking about strict
contemporaneity. Let's change your hypothetical
slightly, OK? The husband watches the blue car
blow the red light. He doesn't say anything.
He turns around, walks into the kitchen, pours a cup of coffee,
takes a sip and 15 minutes later says to his wife, Hey, I saw a
maniac in a blue car run the light earlier.
The present sense impression vanishes entirely.
It's gone, and the reason is rooted in cognitive science.
The reliability of this exception comes from the sheer
physical lack of time to fabricate a lie.
The brain needs time. A human brain needs time to
process an event, calculate the implications, invent a
falsehood, and then speak it. If you speak while the event is
happening, your brain is entirely occupied with
perception. It cannot multitask and build a
lie simultaneously. But give a human brain 15
minutes. Oh, it can invent an entirely
fictional universe. Once the timeline detaches from
the event, the exception dies. You talk.
The clock is unforgiving. Now let's contrast that with
it's more dramatic cousin, the excited utterance.
Rule 8 O 3-2. This is the OMG rule.
Yes, a statement relating to a startling event or condition
made while the declarant was under the stress of excitement
that it caused. The exam distinction here is
paramount. You have to stop looking at the
stopwatch and start looking at the emotional trauma.
Let's look at the chilling North Carolina case state versus
right. Oh, that's a heavy one.
It is, the court admitted, A911 tape where a son, breathing
heavily and frantic, tells the operator mom shot a minute ago.
Now, a defense attorney might argue a minute or two has
passed. The present sense oppression is
dead. The brain had time to think.
And they would be right about present sense impression, but
wrong about excited utterance. Hearing your mother get shot is
an inherently traumatizing, startling event.
The law recognizes that massive psychological shock completely
short circuits the brain's reflective capacity.
You are in fight or flight mode. Exactly.
Your capacity to scheme and fabricate is completely
suspended by the adrenaline and terror.
So the statement comes in. And the really fascinating part
is how long that shockwave can last depending on the biology of
the declarant. Look at the state versus young
case. A heartbreaking but brilliant
legal precedent. You have a 2 1/2 year old child
at a daycare center. The child is violently hitting
two dolls together and saying mommy has Boo boos all over.
Wow. This event at the daycare
happened a full six days after the child's mother was murdered
in front of them. The trial court admitted the
child's statement as an excited utterance.
Six days? I mean a six day delay would
obliterate a present sense impression 1000 times over.
How can someone be under the stress of excitement for nearly
a week? Because the law adapts to the
psychological reality of the declarant, child psychology
experts confirm that massive traumatic stress lasts much,
much longer in toddlers than in adult brains.
Right. A2 year old does not have the
coping mechanisms to process grief or terror.
The traumatic event literally suspends their capacity to
invent a narrative for days. The stress is a continuous,
unbroken chain from the murder to the daycare center.
OK, let me throw a Socratic curveball at you.
Let's hear it. If a law student is sitting in a
cavernous exam hall and they read a fact pattern where there
is a 10 minute delay between a car crash and the statement to
the police officer, how on earth did they choose between present
sense impression and excited utterance?
That is the ultimate test of diagnostic skill.
You immediately stop looking at the 10 minutes and you scan the
text for adjectives describing the physical state of the
declarant. OK, if the fact pattern says the
witness is standing on the curb calmly narrating the events to
the officer 10 minutes later, well, it fails both.
It fails present sense impression because 10 minutes is
way too long for a play by play, and it fails excited utterance
because they are calm, the stress is evaporated.
But what if the text changes one word?
If the fact pattern says the witness is trembling, bleeding
and speaking frantically, 10 minutes later the excited
utterance wins the day. The physical manifestation of
stress, the trembling, the frantic tone is your flashing
green light. Emotion overrides the clock.
That is a phenomenal exam metric.
Let's transition from exclamations about external
events like car crashes and shootings to statements about
the declarant's internal universe.
Rule eight O 3. Three and eight O 34.
Rule 8 O 33 is the state of mind exception.
It allows a statement of the declarant's then existing
mental, emotional or physical condition.
It's the law allowing you to be the narrator of your own current
internal reality. I am terrified right now or my
lower back is an agonizing pain but.
There is a massive structural restriction built into this rule
that prevents it from destroying the entire concept of hearsay.
It cannot be a statement of memory or belief used to prove
the fact remembered. This is crucial.
You can say I am terrified of Frank.
That statement comes in to prove your internal emotional state.
That fear exists in your body. But you absolutely cannot say I
am terrified of Frank because he hit me with a tire iron
yesterday. Because the second-half of that
sentence he hit me yesterday is a memory of a past event.
Exactly. If we allowed memories of past
events to come in just because they are attached to a current
emotion, it would swallow the hearsay rule whole.
Every single piece of hearsay ever spoken is technically a
reflection of the declarant's current state of mind regarding
a past memory. The courts aggressively sever
the emotion from the memory. Emotion comes in the factual,
memory stays out. But here is where the state of
mind exception becomes one of the most powerful offensive
weapons in a trial lawyer's arsenal, the Hillman Doctrine.
This is heavily tested and it is beautifully logical once you
grasp it. Oh, Hillman is a classic.
The Supreme Court case Mutual Life Insurance Company versus
Hillman established A paradigm that a statement of present
intent to do something in the future can be used as evidence
to prove that the person actually followed through and
did it. Let's map this onto a modern
hypothetical. A guy tells his Co worker on a
Friday afternoon, I'm going to drive to Colorado with Larry
this weekend to go fishing. Tragically, a body is found on
the Colorado mountains on Monday burned beyond recognition.
Larry is the prime suspect. Can the prosecutor use the dead
man's Friday afternoon statement against Larry?
Under the HILM on doctrine, that statement of present intent is
admissible to prove 2 incredibly damaging things to Larry, Which
are first, it proves the victim actually acted on his intent and
traveled to Colorado. 2nd, and more dangerously, it proves he
was likely in the company of Larry.
It bridges the gap between a thought in the brain and a
physical action in the real world.
It's evidentiary time travel. You use a statement from Friday
to prove a physical reality on Sunday.
Perfectly said. Let's move to the physical
reality of the human body. Rule 8.
O 3-4 Statements made for medical diagnosis or treatment.
The theory underlying this rule is one of raw self preservation.
When you are sitting on an examination table in an
emergency room bleeding, you do not lie to the person holding
the scalpel and the antibiotics. The overwhelming desire to be
healed properly overrides any motive to fabricate.
But there's a razor sharp distinction in how courts apply
this, and it revolves around the difference between cause and
fault. Let's use the ER triage
scenario. You walk in with a smashed
shoulder. You tell the intake nurse I was
hit in the shoulder by a wooden baseball bat.
That statement is completely admissible because the medical
team needs to know the physical mechanism of the trauma to treat
you properly. A bat causes blunt force trauma
requiring X-rays for bone fractures and checks for
internal hemorrhaging. It dictates their medical
protocol. But what if you finished the
sentence? I was hit in the shoulder by a
wooden baseball bat swung by my furious wife.
The phrase swung by my furious wife is inadmissible hearsay.
It is completely severed from the medical reality.
The trauma surgeon does not need to know the name, identity or
motive of your attacker to stitch up your flesh or set your
bone. Identity is an issue of legal
fault, not medical costs. Exactly.
You could have been hit by your wife, a stranger or a pitching
machine. The medical treatment is
identical, therefore the guarantee of trustworthiness
doesn't extend to the naming of the attacker.
But we have to address the one major profanity, profoundly
tragic exception to this cause versus fault divide.
There is a scenario where naming the attacker is actually a
medical necessity. Yes, child abuse cases occurring
within the home. In these specific scenarios, the
courts recognize that the identity of the abuser is
fundamentally, inextricably linked to medical diagnosis and
treatment. Because treatment doesn't end
when the stitches are tied. Exactly.
A pediatrician's medical duty includes creating a safe
discharge plan. A doctor cannot medically or
ethically discharge a battered child back into a living room
where the predator is waiting to prevent the re injury.
To complete the medical care, the doctor must know who
inflicted the wounds to ensure the child goes to a safe
environment. Therefore, a child statement
identifying their parent or guardian as the abuser becomes a
statement made for medical treatment and it is admissible.
The logic is grim, but absolutely bulletproof.
It is. OK.
We have covered the spontaneous exclamations, the internal
emotional states, and the medical triage realities.
Now I want to leave the realm of spoken words and guide our
listeners into what I call the boring but incredibly reliable
world of paper trails. We are moving to the corporate
and government machinery. Rule 8 O3 6 business records and
Rule 8 O 38 public records. These are the twin engines that
drive almost all complex civil litigation.
Without these exceptions, prosecuting corporate fraud or
trying a breach of contract case would be logistically
impossible. Let's start with business
records. The foundation is strict.
You can't just wave a piece of paper and say it's a receipt.
You must have a custodian of records or other qualified
witness take the stand. They have to testify to a multi
part formula. The record was made at or near
the time of the event. It was made by someone with
personal knowledge and, crucially, it is kept in the
ordinary course of a regularly conducted business activity.
And that last element is where the battles are fought.
Let's look at one of the most famous cases in American
jurisprudence, Palmer versus Hoffman.
This is a Supreme Court case that defines the boundaries of
corporate trustworthiness. Picture the scene.
It's the 1940s. A massive railroad locomotive
plows into a vehicle at a grade crossing.
It's a catastrophic accident. The railroad company immediately
dispatches their risk management team.
They interview the engineer, they take measurements, and they
produce a highly detailed formal accident report.
At trial, the railroad's defense attorneys try to introduce this
report as a business record. They argue to the judge, look,
we are a massive railroad business and unfortunately train
crashes are part of our regular operations.
It is our standard regular practice to write these reports
whenever a train hits something. Therefore, it's a business
record. It sounds incredibly logical on
its face. They followed a routine
corporate protocol, but the Supreme Court saw it right
through the illusion. The court excluded the report,
ruling it was not a valid business record.
Breakdown the court's rationale because it's brilliant.
It comes down to the underlying incentive of the author.
Why do we trust a normal business Ledger?
We trust a Ledger because the business relies on its accuracy
to make money. If a grocery store inventory is
wrong, they go bankrupt. But an accident report prepared
immediately after a fatal crash? That document is not created to
facilitate the business of railroading.
It is created specifically in anticipation of a massive
lawsuit. Its primary purpose is to shield
the corporation from liability. The incentive is entirely self
preservation, not objective accuracy.
The court ruled that you cannot manufacture your own
self-serving defense evidence and launder it into court under
the guise of routine paperwork. Which perfectly illustrates the
primary purpose analysis. But let's Fast forward from
1940s trains to modern finance. There is a heavily tested trap
involving the 2008 financial crisis and modern corporate
mergers. The modern successor trap.
We see this litigated constantly in cases like Hunter versus
Aurora Loan Services and the Wamsi case.
This is a massive battleground right?
Now think about the modern mortgage industry.
Bank A originate your home loan. Two years later, Bank A goes
bankrupt, or they bundle the loan and sell it.
Bank B takes over, then Bank B merges with Bank C.
OK, a mess. Exactly.
Suddenly, Bank C decides to foreclose on your house.
Bank C brings their current employee into court to
authenticate the digital financial records showing you
missed your payments. But those records were
originally typed into a computer 10 years ago by some unknown
clerk at Bank A. So the defense attorney jumps up
and says, objection, This witness works for Bank C They
have no personal knowledge of how Bank A's computer system
worked a decade ago. They can't authenticate the
creation of this record. And for a while, some lower
courts, like the initial rulings in the Hunter case Trajectory,
mistakenly bought that argument and blocked the foreclosures.
But the prevailing correct interpretation of Rule 8O36,
which the WAMCO court articulated perfectly, is far
more pragmatic. How does the law bridge the
corporate gap? A qualified witness does not
need to be the person who physically typed the data.
They don't even need to have worked at the the original
company. When a successor entity like
Bank C purchases Bank A's portfolios, integrates those
files into its own proprietary computer system, audits them for
baseline accuracy, and then relies on those records for its
own daily $1,000,000 business operations, those documents
legally transform into Bank C's business records.
The witness simply needs to be able to testify about how Banksy
currently relies on the system. The systemic integration cures
the hearsay. That is a critical nuance for
modern corporate practice. Now, what about the double
hearsay trap lurking within these records?
The Russian nesting doll problem?
Oh. Well, this is a classic exam
hypothetical. Let's use the grocery store slip
and fall. A customer slips on a puddle of
spilled milk. The store manager rushes over
and fills out the official corporate incident log.
The manager writes. I arrived at aisle 4 and saw a
puddle of milk on the floor. That sentence is perfectly
admissible. The manager is a corporate
employee fulfilling A strict business duty to accurately
report their own observations. But the log continues.
The manager writes a second sentence.
A random shopper who was walking by told me that a kid dropped
the milk jug 10 minutes ago. And there the trap snap shut.
That second sentence is entirely inadmissible.
It is hearsay nested inside hearsay.
But wait, the manager's report is a perfectly valid business
record. Doesn't the umbrella of the
business record shield everything written inside it?
No, the corporate umbrella only protects the actions of the
people standing underneath it. The random shopper is not an
employee. They are not part of the
business enterprise. They have absolutely no legal or
corporate duty to accurately report report anything to the
manager. They could just be gossiping or
making a wild guess. Because the outer layer, the
manager's log, cannot cure the unreliability of the inner
layer, the random bystanders gossip.
The court will literally redact that second sentence out of the
document before handing it to the jury.
It's surgical extraction of hearsay.
Let's move to the sibling of business records, Public
records, Rule 8 O 3/8. This exception covers the vast
machinery of government records of public offices setting out
their internal activities or observations made under a strict
legal duty to report. Think weather reports from the
National Weather Service or Health Department Restaurant
inspections. But there is a massive,
incredibly dangerous trap hidden inside this rule, specifically
for criminal prosecutors. In criminal cases, matters
observed by police officers and other law enforcement personnel
cannot be used by the prosecution against the
defendant under the public records exception.
Why not? I mean, a police officer is a
public servant under a strict legal duty to report their
observations accurately. Why does the law suddenly
distrust them? It's not about distrusting the
officer's integrity, it's about the fundamental fairness of the
adversarial system. The prosecution cannot be
allowed to just hand the jury a cold, sterile police report to
prove the defendant's guilt. A piece of paper cannot be cross
examined about lighting conditions, bias, or poor
eyesight. The law forces the prosecution
to bring the actual living police officer to the witness
stand so the defense attorney can look them in the eye and
test their observations. What's fascinating though is
that this restriction is a one way St.
The defense is absolutely allowed to use the police report
against the prosecution if it contains exculpatory
observations, say an officer, noting that the suspect was
wearing a red shirt when the defendant was arrested in a
green shirt. Exactly.
The shield only protects the accused.
But let me play the role of a hyper aggressive, clever
prosecutor. I'm in trial.
My key police officer is suddenly unavailable.
The judge tells me I can't use their police report under the
public records exception because of the law enforcement
restriction. Can I just pivot, point out that
a police precinct is technically a functioning enterprise and
sneak the report into evidence as a business record under Rule
8O36 instead? It is a brilliant attempt at a
workaround, and prosecutors have tried it for decades, but the
courts have slammed that back door permanently shut.
We looked at cases like State versus Forte in North Carolina
to see how courts handle this. Walk us through the Forte logic.
In Forte, you had an analyst from the State Bureau of
Investigation, which is law enforcement personnel.
The analysts left the Bureau before the trial.
The state, desperate to get the lab results into evidence, tried
to bring in the analysts forensic reports by having a
supervisor testify attempting to authenticate the lab reports as
standard business records under exception 6.
Trying to bypass the exception 8 restriction entirely.
Yes, and the Supreme Court of North Carolina, aligning with
the vast majority of federal courts, shut it down entirely.
They noted that the rules are interlocking.
If a document is specifically categorized as a law enforcement
public report and the drafters explicitly made it inadmissible
against a criminal defendant under Exception 8, you cannot
just use a different, more general rule to subvert that
specific constitutional protection.
That makes total sense. The rules are not a menu where
you can just order a different exception to bypass a strict
prohibition. That is a critical boundary
line. Before we leave the paper
trails, I want to briefly touch on learned treatises Rule eight
O 318. If you have an expert witness on
the stand, say a neurosurgeon testifying in a malpractice
suit, you can read excerpts from a recognized authoritative
medical textbook to the jury. But there is a weird mechanical
quirk to this rule. The quirk is that while the
words can be read aloud into the transcript, the physical
textbook itself is not received as an exhibit.
It does not go back into the jury deliberation room.
Why, if it's a brilliant piece of medical literature, shouldn't
the jury be allowed to study it? Absolutely not.
The law is terrified of a jury full of lay people taking a
complex neurosurgery textbook into a closed room and trying to
play amateur doctor. They might misinterpret a
diagram, read a section out of context, and reach a wildly
unscientific conclusion. That is a fairpoint.
The expert is required to be on the stand to contextualize the
dense academic language. We trust the experts
interpretation, but we don't trust a jury alone in a room
with a medical journal. The law is so paternalistic.
OK, take a breath. We have survived the tomb
exceptions. We have mapped the ghost
exceptions. We have navigated the paper
trails and the exclamations, but as we warned at the very
beginning of the session, there's a final boss waiting at
the end of the hearsay gauntlet. The constitutional blockade.
The 6th Amendment. In all criminal prosecutions,
the accused shall enjoy the right to be confronted with the
witnesses against him. This is the Confrontation
clause. And here is the terrifying
reality for a prosecutor. Even if a statement perfectly
Florida State fits a hearsay exception, it's a textbook
excited utterance or a perfectly authenticated business record,
the United States Constitution might still rise up and
completely block it from coming into evidence.
The Constitution overrides the rule book every single time, and
the modern era of the Confrontation Clause is entirely
defined by 1 earthquake of a Supreme Court case, Crawford
versus Washington. To understand how revolutionary
Crawford was, we have to understand the history it
overturned. Let's talk briefly about Sir
Walter Raleigh in 16 O 3. It is the founding myth of the
Confrontation Clause. Sir Walter Raleigh was tried for
treason against the Crown. The primary evidence against him
was a written confession from an alleged Co conspirator, Lord
Cobham. Raleigh begged the judges to
bring Cobham into the courtroom so they could argue face to
face. He famously demanded call my
accuser before my face, but the judges refused.
They just read the piece of paper and Raleigh was sentenced
to death. And the framers of the US
Constitution were obsessed with preventing that exact scenario.
They hated trial by affidavit. They demanded the physical
confrontation of accusers. But over the centuries, the
American courts drifted away from that strict physical
requirement. Before Crawford, the Supreme
Court had developed a test based purely on reliability.
If a hearsay statement fit a firmly rooted hearsay exception,
like an excited utterance, the courts figured, well, it's
reliable enough so the Confrontation Clause is
satisfied. The rulebook essentially
swallowed the Constitution. But then Justice Scalia writes
the Crawford opinion, and he completely destroys that
reliability framework. Scalia pointed out that the 6th
Amendment doesn't say you have a right to reliable evidence, it
says you have a right to confront witnesses.
He shifted the entire paradigm away from the reliability of the
statement and focused purely on the nature of the statement.
Which brings us to the elements of the Crawford blockade.
It is a strict checklist. First, it must be a criminal
case. The Confrontation Clause does
not exist in civil lawsuits. Corporations don't have a right
to confront each other under the 6th Amendment.
Second, the evidence must be offered against the defendant by
the prosecution. And 3rd and this is the entire
ball game. The statement must be
testimonial. If all three of those prongs are
met, the statement is blocked. Period.
It doesn't matter how reliable it is.
It doesn't matter if an Archbishop swore it was true.
It is blocked unless the prosecutor can prove two things.
The declarant is currently unavailable and the defendant
had a prior opportunity to cross examine them.
So the entire architecture of modern criminal evidence hinges
on one word, testimonial. What does it actually mean?
It is the $1,000,000 question and the Supreme Court has spent
20 years trying to refine it. The core test courts use today
is the primary purpose test. We asked when the declarant was
speaking, what was the primary objective purpose of their
statement? Were they trying to resolve an
active, chaotic, ongoing threat? Or were they acting essentially
as a witness, building a historical factual record for
the police to use in a future prosecution?
This is best understood to the classic bar exam favorite, the
911 call Hypo. I am going to give you 2
scenarios that look similar but result in vastly different
constitutional outcomes. Let's do it.
Scenario A. A woman calls 911.
You can hear glass shattering in the background.
She is screaming. My husband is punching me right
now. He has a knife.
Send the police immediately. The husband was later arrested.
The wife refuses to testify at trial.
Can the prosecutor play that 911?
Plus, let's analyze the primary purpose.
The woman is facing a terrifying ongoing emergency.
The objective of her call is not to build a legal case.
Her objective is to summon armed officers to stop an active
lethal threat to her life. Because the primary purpose is
to resolve an emergency, the Supreme Court has ruled that
this statement is non testimonial.
Therefore, the confrontation clause does not apply at all.
The prosecutor can simply use the excited utterance hearsay
exception to play the tape for the jury.
Now let's look at scenario. BA woman calls 911.
He sounds incredibly uset. He's crying.
He tells the operator, my husband beat me U 10 minutes
ago. He grabbed his keys, got into a
blue pickup truck, and he just drove away.
He's wearing a blue shirt. Same husband, same charge.
She refuses to testify. Can the prosecutor play this
tape? Absolutely not.
The Constitution walks it. Let's look at the primary
purpose here. The physical emergency is over.
The immediate threat. The husband has left the scene.
There is no act of violence occurring.
When she describes the truck in the shirt, she is providing
historical facts to help the police track him down, catch him
and eventually prosecute him. She has transitioned from a
victim crying for help into a witness building a factual
record. Exactly because she is
functioning as a witness for the state, her statement is
classified as testimonial. If she refuses to testify at
trial and the defendant never had a chance to cross examine
her, the prosecutor is legally forbidden from playing that
tape. And here is the brutal part for
prosecutors. It doesn't matter that she was
crying. It doesn't matter that the
statement Florida State qualifies as an excited
utterance under Rule eight O 3. The hearsay rule says admit, but
the Constitution says block. And the Constitution always
wins. It is a stunning, brilliant
distinction that forces prosecutors to rely on live
witnesses rather than audio recordings of domestic violence.
Are there other context where this primary purpose test gets
complicated? What about children?
Children complicate everything in the law.
Look at the Supreme Court case Ohio versus Clark.
You had a situation involving a very young preschooler.
A teacher noticed suspicious bruising on the three-year old
child and asked who did this to you?
The child named the mother's boyfriend.
The question for the court was is a three-year old child's
answer to a preschool teacher testimonial?
I mean, a three-year old has no concept of building a
prosecutorial record. And that is exactly what the
court concluded. Statements made by very young
children to civilian caregivers like teachers or doctors, are
generally non testimonial. The primary purpose of the
teacher asking the question was to protect a vulnerable child
from immediate ongoing harm, not to gather evidence for a grand
jury. So the Confrontation clause did
not block the child's statement. What about our old friend, the
dying declaration? Let's say I'm shot.
I know I'm dying. I look at the police officer
kneeling next to me and I gasp out the name of my killer.
My primary purpose is obviously to ensure my killer is brought
to justice. That is the definition of
building a prosecutorial record. It is wildly testimonial.
Does Crawford block dying declarations?
It's the great paradox. By all modern logic, a dying
declaration made to a police officer is completely
testimonial. However, the Supreme Court has
strongly signaled in dicta that dying declarations are a sui
generous historical exception to the Crawford Rule entirely.
A grandfather clause. Exactly because the dying
declaration exception was firmly established at common law at the
exact time the Framers drafted the 6th Amendment, the Court
assumes the Framers never intended the Confrontation
Clause to override it. It is the one historical anomaly
that survives the Crawford Revolution intact.
We have covered an immense, staggering amount of doctrinal
ground today. We have moved from the
philosophy of unavailable phantoms to the constitutional
rights of the accused. But I want to bring it all
together into a final, actionable framework.
If you are walking into a brutal evidence final exam or sitting
down for the multi State Bar, you cannot just rely on vague
concepts. You need a mental algorithm, a
day 5 hearsay protocol. I cannot stress enough how vital
disciplined adherence to this specific order of operations is.
If you jump around, you'll miss a trap.
If you follow the checklist you will pass.
Step one, the definition. You look at the fact pattern.
Is this statement actually hearsay?
Is it an out of court statement made by a human being offered to
prove the truth of the matter asserted in the text?
If no, admit it. If yes, move to Step 2.
Step 2. The exemptions Is it explicitly
exempt under Rule 8 O 1D? Things like opposing party
admissions or certain prior sworn inconsistent statements.
The law treats these as simply not hearsay.
If yes, admit it. If no, you are officially in
hearsay territory. Move to Step 3.
Step 3. The tomb is the declarant
unavailable. You run your Prism diagnostic
privilege, refusal, incapacity, subpoena, failure, memory.
You check for the forfeiture trap if they're genuinely
legally unavailable. You check your eight O 4 tune
rules Dying declaration Statement against interest
former testimony. Step 4, the ghosts, if they are
available or if the tomb exceptions don't fit, you move
to rule 8 O3 Does it fit a ghost exception?
These are the spontaneous family, present sense
impression, excited utterance, the internal state, family state
of mind, medical and the paper trail, family business records,
public records. Remember for these you do not
care if the witness is dead or alive.
Step 5, The final check, the boss fight.
If it is a criminal case and the hearsay evidence is being
offered by the prosecutor against the defendant, you must
ask, does the confrontation clause block it?
Is the primary purpose of the statement testimonial?
If yes, it is constitutionally blocked, period.
Unless the defendant had a prior chance to cross examine that
unavailable witness. If you run that five step
algorithm ruthlessly on every single hearsay question you
encounter, you will navigate the muddiest waters of evidence law
with absolute precision. I want to congratulate you on
surviving the deepest, most complex architecture of evidence
law. You have mastered the life
lines. You know how to resurrect the
phantom witness. But I want to leave you with a
final provocative thought to Mull over before our next
session. Today, we focused entirely on
human communication. The spoken words, the frantic 91
calls, the corporate paper trails drafted by employees.
We focused on the ghosts and tombs of human declarants.
But what happens when the evidence isn't human at all?
What happens when the evidence is entirely fizzy?
We have a dangerous tendency in modern litigation to just assume
that physical things are exactly what they appear to be.
We trust the object. Exactly.
But how do you prove a piece of evidence is actually what you
claim it is in a modern courtroom?
If I hand the judge a bloody knife, how do I prove it's the
same knife from the crime scene and not one I bought at a
hardware store? If I introduce an audio
recording, how do I prove it hasn't been altered by AI?
How do you prove a physical contract on the mahogany desk is
the real contract and not a flawless high resolution
forgery? We have mastered the words, but
next time we have to master the objects.
Get ready because our next deep dive will plunge into the best
evidence rule, the chain of custody, and the incredibly high
stakes of authentication. Thank you for joining us on this
deep dive into the hearsay exceptions.
Keep running that five step diagnostic, trust the protocol,
and we will see you next time. Welcome, everyone.
So we've already hammered home that hearsay is, as a general
rule, inadmissible in court. It's a huge roadblock for any
trial lawyer. But what happens when that piece
of hearsay is, well, the key to your whole case?
Is it just game over? Not by a long shot.
Today we're diving into the critical life lines known as
hearsay exceptions. Let's get into it.
So let's just imagine this for a second.
Your entire case, everything you've worked on, hangs on one
single piece of evidence. And then you hear those dreaded
words from opposing counsel. Objection.
Hearsay. Is that it?
Is your case just dead in the water?
Do you just pack up your briefcase and at home?
Well, while that general rule excluding hearsay is incredibly
powerful, it is not absolute. There are essential, and I mean
essential tools for saving that crucial evidence.
And that is exactly what we're talking about today.
You know this quote right here, it perfectly sums up the
thinking, the entire theory behind all hearsay exceptions,
the law is basically saying, look, we get it, this is an out
of court statement. It's a ghost, but we think it's
a trustworthy ghost. Every single exception we are
going to discuss today is a loophole, sure, but it's a
loophole that is justified by this one powerful idea,
reliability. OK, before we go a step further,
we have to get this straight. It's a crucial distinction.
On one side, you have exemptions, which we talked
about before. Under rule AO1D, those things
are legally defined as not hearsay to begin with.
They never even get a hearsay label.
But what we're talking about now, exceptions under rules
eight O 3 and eight O 4, they work totally differently Here.
We actually admit, we concede. Yep, this statement is 100%
hearsay. But then we argue that it's got
such a high degree of reliability that it should be
allowed in any way. I promise you, confusing these
two on an exam is a guaranteed way to lose a lot of points.
So let's start by metaphorically grabbing our shovels and heading
into the first big category of exceptions, rule eight O 4.
I like to call these the tomb exceptions.
And why is that? Because to use any of them, the
person who actually made the statement, we call them the
declarant. They have to be unavailable to
testify in court. We're literally dealing with
testimonial ghosts. So the absolute first step, the
gateway to using any Rule 84 exception, is that you have to
prove to the judge that the declarant is legally
unavailable. Now, a really common mistake is
to think that unavailable just means the person has died.
And while death certainly counts, the legal definition is
actually way, way bigger than that.
And to help you remember the ways to establish
unavailability, there's a great mnemonic, PRISM.
Think PRISMP is for privilege, like when someone invokes their
5th amendment right against self incramation.
R is for a direct refusal to testify, even when a judge
orders them to. I is for incapacity, that's
death, a coma, a serious illness, S is for subpoena
failure, meaning you just can't find the witness, and M is for a
genuine lack of memory. You have to check one of these
prism boxes before you can even think about using the powerful
exceptions waiting for you inside.
Rule 804. OK, now let's talk about the
most famous, the most dramatic, and probably the most tested
hearsay exception of them all, the dying Declaration.
The theory behind it is, well, it's powerful, even if it feels
a little old fashioned today. The law just presumes that a
person who truly believes they're about to die isn't going
to lie. They're going to be compelled to
tell the truth. Now, to get this into evidence,
you have to prove three specific things. 1st, and this is the big
one, the declarant must have a subjective belief that their
death is imminent, that it's right around the corner.
It doesn't matter what the doctors think, it only matters
what's going on in the declarant's head. 2nd, and this
always surprises people, they don't actually have to die.
And 3rd, the statement itself has to be about the cause or
circumstances of what they believe is their impending
death. OK, everybody listen up.
Pencils down for a second. This is the massive, enormous
exam trap that catches so many smart students.
You cannot, I repeat, cannot use a dying declaration in just any
criminal trial. It is only admissible into very
specific situations. One, any civil case or two, a
criminal homicide case. That's it, full stop.
You have to memorize this limitation.
It will save you on an exam. All right, let's see how this
trap actually plays out. A man gets shot, he thinks he's
dying, and he gasps out. Dave shot me, then he survives.
So Dave gets charged, but with attempted murder.
Can the prosecutor use that statement in court?
Well, let's just run through the analysis.
Is this a civil case? Nope.
Is it a criminal homicide case? No.
It's attempted murder, so therefore the dying declaration
exception does not apply. That evidence is blocked.
Simple as that. OK, so we're leaving the
graveyard of rule eight O 4 now, and we're entering a totally
different world. Rule eight O 3.
For this whole set of exceptions, we do not care one
bit whether the declarant is available or not.
They could be sitting right there in the courtroom.
With these, the reliability doesn't come from the speaker's
status, but from the inherent trustworthiness of the context
in which the statement was made. A classic example of a rule
eight O 3 exception, One you'll see all the time is the business
records exception. And the thinking here is pretty
simple. Businesses need accurate records
to function to make money, so that gives their records an
inherent reliability. To get a business record
admitted, you'll have a custodian testify to a few
things that was made at or near the time of the event, that it
was made by someone with knowledge, and it was kept as
part of a regularly conducted business activity.
And this brings us to another classic exam trap, what we call
hearsay within hearsay or double hearsay.
So look, if a Business Report says the cashier noted the floor
was wet, that's probably coming in.
The cashier is part of the business.
They have a duty to report. But what if the report says a
random customer told the cashier the floor was wet?
Ah, now we have a problem. That customer statement is a
whole other layer of hearsay. And for the entire report to
come in, that customer statement has to find its own separate
hearsay exception. And now we get to the final and,
frankly, most important part of our analysis because everything
we've talked about so far, all these detailed exceptions and
rules, can be completely wiped out by a single constitutional
dragon. This, my friends, is the final
boss fight, the 6th Amendment's Confrontation Clause, brought to
life by the landmark case Crawford V Washington Core.
Holding in Crawford is just profound.
It says that in a criminal case, a defendant's 6th Amendment
right to confront their accuser Trump's the rules of evidence.
What does that mean in practice? It means a prosecutor can't just
use an otherwise valid hearsay exception to sneak in an
accusation. If the defendant hasn't had a
chance to cross examine that accuser, the Constitution wins.
Justice Scalia put it perfectly. He said dispensing with
confrontation because testimony is obviously reliable is akin to
dispensing with jury trial because the defendant is
obviously guilty. The point is that the
Confrontation Clause is about procedure.
It's a guarantee. It doesn't ask a judge to guess
about reliability. It demands that reliability be
tested in what he called the Crucible of cross examination.
So this Crawford rule, it doesn't apply to all hearsay.
It only kicks in for a specific kind of statement, what the
court calls a testimonial statement.
So what is that? Well, a statement is testimonial
when its primary purpose is to establish past events
specifically for a future criminal prosecution.
Think about a formal police interrogation after an emergency
is over or testimony given to a grand jury.
That's the stuff we're talking about.
Let's look at this classic bar exam hypo.
It makes the distinction so clear.
On the left, you've got a 911 call happening during an attack.
My husband is punching me right now.
Send help. What's the primary purpose
there? It's to get help to resolve an
ongoing emergency. That's non testimonial and it
can probably come in under an exception.
But look at the right. The emergency is over.
The caller says my husband beat me up 10 minutes ago.
He just drove away. Now, what's the purpose?
Get shifted? Now she's recounting historical
facts to help the police investigate and prosecute.
That statement is testimonial, and Crawford's going to block it
if she doesn't testify in court. OK, you made it.
You survived the hearsay gauntlet.
You've been through the tombs of rule eight O 4.
You've walked the land of the living in Rule eight O 3, and
you have faced down the Crawford dragon.
So what's your reward? It's the single most important
tool you can have for any evidence exam.
A solid attack plan. And here it is.
The five step protocol for any hearsay problem you see on an
exam. Follow it in this exact order
every time. Step one.
Is it even hearsay to begin with?
Out of court statement offered for the truth of the matter
asserted. Step 2.
If it is, is it exempt under 8 O 1D?
Step three? If not, is our declarant
unavailable? Check PRSM and open the door to
rule eight O 4. Step 4.
Or does the rule eight O 3 exception apply where we don't
care about availability? And finally, Step 5.
The final boss check is this a criminal case with a testimonial
statement? Because if it is, the
confrontation clause might block it anyway.
This structure, this protocol is the key to mastering hearsay.
And that really just leaves us with one last big question to
think about. We've seen these two systems
working side by side. You have the evidence rules,
which are all built on finding these guarantees of reliability.
And then you have the Constitution, which demands the
procedure of a face to face confrontation.
So when these two powerful principles collide in a
courtroom, which one do you think truly serves the higher
purpose of justice? Some to think about.