Saturday, March 27, 2010

Legal Matters: Evidence (2)

2. HEARSAY. What others than the witness have said before the trial is not generally admissible in evidence because not sworn to, and because not subject to cross-examination. This because not subject to cross-examination. This rule, known as the 'hearsay-evidence rule,' is subject to several important exceptions:

a) Admissions and Confessions:

Statements, either oral or written, made at any time by a party to an action or by his predecessor in interest, may be introduced in evidence against him, but not by him or in his favor. The rule is based upon the inherent probable truth of statements which are prejudicial to the interests of the party making them. Under the rule as to predecessor in interest, the admissions of a deceased person are admissible in evidence in actions against his executor, or admissions as tot he title of real estate made by its then owner are admissible in an action founded upon the title brought against his subsequent grantor. Admissions made by an agent within the scope of his authority are admissible in evidence against the principal. Confessions are strictly admissions made by one charged with a crime, and, because of the necessity of safeguarding one charged with a crime, are not admissible when obtained by means of threats or promises of favor. This rule has been extended by statute in many of the States.

b) Reported Testimony in a Prior Trial:

In general the testimony of a witness in an earlier trial between the same parties and relating to the same issues, or between parties identical in interest with the parties at the present trial, may be introduced in evidence if the witness is dead, insane, unable to attend the trial, out of the jurisdiction, or kept from appearing at the trial by an opposing party. The testimony in the earlier trial must have been sworn to and subject to cross-examination thus obviating the usual objection to hearsay evidence.

C) Dying Declaration:

Declarations made by a person in extremis are admitted in evidence upon the trial of one charged with the crime of homicide, either in favor of the prosecution or the prisoner.

D) Admissions Against Interest:

These should not be confused with admissions. (See above) They are admissions in any form against financial or proprietary interest of the person making them and made by one who, at the time of trial is dead. Unlike admissions, they need not be made by one having some connection with the party to the action. They must, of course, in themselves be relevant to matters in issue at the trial. Thus an endorsement written on a note by the holder that a part of the note is paid, or a book entry that a bill has been paid, or a statement that the declarant is a tenant (rather than the owner), are all admissions against financial or propriety interest, and are admissible in evidence upon proper authentication if relevant, and if the declarant be dead.

e) Book Entries:

Book entries or reports made pursuant to a legal duty or in the usual course of business by one since deceased having personal knowledge of the matter so entered or reported are admissible in evidence to prove the truth of matters contained in the entry. Thus the book entries of clerks or written reports of officers are admissible in evidence under this head, but not the entries in a diary, because not made pursuant to a duty. Closely related to the rule as to entries made in the course of business is the so-called shop-book rule. This rule varies considerably in different jurisdictions, but the effect in all is substantially to allow a party to an action, although present at the trial in person, to prove an account by introducing in evidence his book of account. He is usually required to make preliminary proof that he is engaged in the business in which the charges in the book are made, and that he has made correct entries. A witness may always be allowed to refresh his memory by referring to memoranda or book entries; in that case the memoranda or book entries are, however, not directly in evidence, and the jury may rely only upon the witness's oral testimony.

(f) Res Gestae:

Any statement made at the time of the happening of an event by one who was then present may be introduced when the event itself is in issue or relevant. Such evidence is admitted on the theory that the statement is incidental to the event itself, and to some extent characterizes or explains it. Thus on the murder trial of a defendant it is proper to prove a statement made at the time of the homicide by any person present, which tended to show that the defendant committed the homicide or that the act was intentional or malicious. There are some other exceptions to the hearsay-evidence rule, but these are of infrequent occurrence and of comparative unimportance, and do not admit of discussion here.

To be continued: Evidence (3)

Bibliography: The New International Encyclopedia 1902-1905 Dodd, Mead and Company

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