Hearsay & Rules of Evidence

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Hearsay Evidence

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The rule against hearsay is deceptively simple, but it is full of exceptions. At its core, the rule against using hearsay evidence is to prevent out-of-court, second hand statements from being used as evidence at trial given their potential unreliability.

Hearsay Defined

Hearsay is defined as an out-of-court statement, made in court, to prove the truth of the matter asserted. These out-of-court statements do not have to be spoken words, but they can also constitute documents or even body language. The rule against hearsay was designed to prevent gossip from being offered to convict someone.

Exceptions to the Rule Against Hearsay Evidence

Hearsay evidence is not admissible in court unless a statue or rule provides otherwise. Therefore, even if a statement is really hearsay, it may still be admissible if an exception applies. The Federal Rules of Evidence (FRE) contains nearly thirty of these exceptions to providing hearsay evidence.

Generally, state law follows the rules of evidence as provided in the Federal Rules of Evidence, but not in all cases. The states can and do vary as to the exceptions that they recognize.

Most Common Hearsay Exceptions

There are twenty-three exceptions in the federal rules that allow for out-of-court statements to be admitted as evidence even if the person made them is available to appear in court. However, only a handful of these are regularly used. The three most popularly used exceptions are:

  1. Present Sense Impression. A hearsay statement may be allowed if it describes or explains an event or condition and was made during the event or immediately after it.
  2. Excited Utterance. Closely related to the present sense impression is the hearsay exception for an excited utterance. The requirements for this exception to apply is that there must have been a startling event and the declarant made the statement while under the excitement or stress of the event.
  3. Then-Existing Mental, Emotional, or Physical Condition. A statement that is not offered for the truth of the statement, but rather to show the state of mind, emotion or physical condition can be an exception to the rule against hearsay evidence. For instance, testimony that there was a heated argument can be offered to show anger and not for what was said.

Other Exceptions to Rule Against Hearsay Evidence

In addition to the three most common exceptions for hearsay, there are several other statements that generally will be accepted as admissible evidence. These fall into three categories:

  • Medical: Statements that are made to a medical provider for the purpose of diagnosis or treatment.
  • Reputation: Statements about the reputation of the person, their family, or land boundaries.
  • Documents: These documentstypically include business records and government records, but can include learned treatises, family records, and church records.

Hearsay Exceptions if the Declarant is Unavailable to Testify in Court

There are exceptions to the rule against the admissibility of hearsay evidence that apply only when the declarant is unavailable. A declarant is considered unavailable in situations such as when:

  1. The court recognizes that by law the declarant is not required to testify;
  2. The declarant refuses to testify;
  3. The declarant does not remember;
  4. The declarant is either dead or has a physical or mental illness the prevents testimony; or
  5. The declarant is absent from the trial and has not been located.

If the declarant is deemed to be unavailable, then the following type of evidence can be ruled admissible in court. This includes:

  1. Former testimony;
  2. Statements made under belief of imminent death;
  3. Statements against a person’s own interest; and
  4. Statements of personal or family history.

Catchall Exception to the Rule against Hearsay

Finally, the last exception is the so-called “catchall” rule. It provides that evidence of a hearsay statement not included in one of the other exceptions may nevertheless be admitted if it meets these following conditions:

  • It has sound guarantees of trustworthiness
  • It is offered to help prove a material fact
  • It is more probative than other equivalent and reasonably obtainable evidence
  • Its admission would forward the cause of justice
  • The other parties have been notified that it will be offered into evidence

Defenses Against Hearsay Evidence

If the court admits hearsay evidence under one the exceptions, then the credibility of the person offering the statement may be attacked. This attack must be supported by admissible evidence, but can be prior inconsistent statement, bias, or some other evidence that would show that the declarant has a reason to lie or not to remember accurately.

Is It Just Hearsay, or Actual Evidence? Get Help From a Defense Attorney

If you’re facing a criminal trial, there may be several pieces of evidence that the government is relying on for their case. However, that doesn’t mean that the evidence is admissible in court. A skilled criminal defense attorney can challenge questionable evidence, such as hearsay statements, and help you prepare your strongest defense.

Childhood Violence The juvenile justice system has attracted special attention by the last decades because the increase of people and lawmakers awareness regarding the importance of juveniles as special population with special needs inherents to the juveniles social development. In USA the English heritage brang to us the fundamental scopes for the development of juvenile courts. The principle of parens patriae (parents of the country) is the base for the governmental authority over those juveniles needed of protection and guidance, addressing the government acting as loco parentis (in place of the parents) and deciding issues in the best interest of the juveniles (Lawrence, 2008). Accomplishing with this responsibility it is important to perform the proper evaluation or analysis of current situation and the posibility for enhancement of the juvenile system. Study on Violence issued by the United Nations Organization (2006) “found that children in care and justice institutions may be at higher risk of violence than virtually all other children” (Sheahan & Randel, 2012). Moreover, the International Convention on the Rights of Childs (CRC) has stated the responsibility of the participant states for develop the legislative and administrative measures to protect children under detention against any form of physical or mental abuse, and negligent treatment or exploitation (edil). The treatment on children must be consonants with the child’s sense of worth and dignity encouraging the respect for the human rights and basic principles of freedom (CRC Art. 40 as cited by Sheahan & Randel). Giovanny Melchiore Bosco, AKA Saint John Bosco did not beleive in punishment as an educational or behavioral tool. Thus, quoting St. John Bosco: “Try to gain love before inspiring fear” (as cited by Dermot Meagher, 2010). More sorprising is the reality of children within the communities with a higher families in the margin of poverty. According to a study released by U. S. Dept. of Justice (2009) “more than 60 percent of the children surveyed were exposed to violence within the past year either directly or indirectly”. The exposure to violence in early childhood is associated with the further behavioral changes, whereas the harm is shown in their physical, psychological, and emotional development. Therefore, those children exposed to violence in their early life are more likely to be later compromised in a cycle of violence, and ending within our Criminal Juvenile Justice System. Some findings of the study are: Children exposed to violence are more likely to abuse drugs and alcohol; suffer from depression, anxiety, and post-traumatic disorders; fail or have difficulty in school; and become delinquent and engage in criminal behavior. Sixty percent of American children were exposed to violence, crime, or abuse in their homes, schools, and communities. Almost 40 percent of American children were direct victims of two or more violent acts, and one in ten were victims of violence five or more times. Children are more likely to be exposed to violence and crime than adults. Almost one in ten American children saw one family member assault another family member, and more than 25 percent had been exposed to family violence during their life. A child’s exposure to one type of violence increases the likelihood that the child will be exposed to other types of violence and exposed multiple times. *Finkelhor, D., Turner, H., Ormrod, R., Hamby, S., and Kracke, K. 2009. Children’s Exposure to Violence: A Comprehensive National Survey. Bulletin. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Excepted from Dept. of Justice Not all children enjoy the “carefree” days of childhood. Unfortunately, when things start to go wrong, people often despair of being able to repair the damage. Childhood is a time of developing the attitude, character of personality, and the formation of ideas about the environment in which the children are interacting with others. Adults are the responsible for the caring for the good wellness of their dependents. Therefore, an ecliptic approach is appropriate to face the challenges against violence, whereas every family members and relatives must be properly educated about the immediate and long time effects of violence in the family circle and their members individually . This is a time of high concern about violence committed by and against young people. As a nation, we are in a period of reflection as to what can be done to stem this tide. Helping young people avoid or overcome emotional problems in the wake of violence or disaster is one of the most important challenges a parent, teacher, or mental health professional can face. Moreover, children often face violence in their own homes.

The juvenile justice system has attracted special attention by the last decades because the increase of people and lawmakers awareness regarding the importance of juveniles as special population with special needs inherents to the juveniles social development. In USA the English heritage brang to us the fundamental scopes for the development of juvenile courts. The principle of parens patriae (parents of the country) is the base for the governmental authority over those juveniles needed of protection and guidance, addressing the government acting as loco parentis (in place of the parents) and deciding issues in the best interest of the juveniles (Lawrence, 2008). Accomplishing with this responsibility it is important to perform the proper evaluation or analysis of current situation and the posibility for enhancement of the juvenile system. Study on Violence issued by the United Nations Organization (2006) “found that children in care and justice institutions may be at higher risk of violence than virtually all other children” (Sheahan & Randel, 2012). Moreover, the International Convention on the Rights of Childs (CRC) has stated the responsibility of the participant states for develop the legislative and administrative measures to protect children under detention against any form of physical or mental abuse, and negligent treatment or exploitation (edil). The treatment on children must be consonants with the child’s sense of worth and dignity encouraging the respect for the human rights and basic principles of freedom (CRC Art. 40 as cited by Sheahan & Randel). Giovanny Melchiore Bosco, AKA Saint John Bosco did not beleive in punishment as an educational or behavioral tool. Thus, quoting St. John Bosco: “Try to gain love before inspiring fear” (as cited by Dermot Meagher, 2010).

More sorprising is the reality of children within the communities with a higher families in the margin of poverty. According to a study released by U. S. Dept. of Justice (2009) “more than 60 percent of the children surveyed were exposed to violence within the past year either directly or indirectly”. The exposure to violence in early childhood is associated with the further behavioral changes, whereas the harm is shown in their physical, psychological, and emotional development. Therefore, those children exposed to violence in their early life are more likely to be later compromised in a cycle of violence, and ending within our Criminal Juvenile Justice System.

Some findings of the study are:

Children exposed to violence are more likely to abuse drugs and alcohol; suffer from depression, anxiety, and post-traumatic disorders; fail or have difficulty in school; and become delinquent and engage in criminal behavior.

Sixty percent of American children were exposed to violence, crime, or abuse in their homes, schools, and communities.

Almost 40 percent of American children were direct victims of two or more violent acts, and one in ten were victims of violence five or more times.

Children are more likely to be exposed to violence and crime than adults.

Almost one in ten American children saw one family member assault another family member, and more than 25 percent had been exposed to family violence during their life.

A child’s exposure to one type of violence increases the likelihood that the child will be exposed to other types of violence and exposed multiple times.

*Finkelhor, D., Turner, H., Ormrod, R., Hamby, S., and Kracke, K. 2009. Children’s Exposure to Violence: A Comprehensive National Survey. Bulletin. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

Excepted from Dept. of Justice

Not all children enjoy the “carefree” days of childhood. Unfortunately, when things start to go wrong, people often despair of being able to repair the damage. Childhood is a time of developing the attitude, character of personality, and the formation of ideas about the environment in which the children are interacting with others. Adults are the responsible for the caring for the good wellness of their dependents. Therefore, an ecliptic approach is appropriate to face the challenges against violence, whereas every family members and relatives must be properly educated about the immediate and long time effects of violence in the family circle and their members individually .

This is a time of high concern about violence committed by and against young people. As a nation, we are in a period of reflection as to what can be done to stem this tide. Helping young people avoid or overcome emotional problems in the wake of violence or disaster is one of the most important challenges a parent, teacher, or mental health professional can face. Moreover, children often face violence in their own homes.

The juvenile justice system has attracted special attention by the last decades because the increase of people and lawmakers awareness regarding the importance of juveniles as special population with special needs inherents to the juveniles social development. In USA the English heritage brang to us the fundamental scopes for the development of juvenile courts. The principle of parens patriae (parents of the country) is the base for the governmental authority over those juveniles needed of protection and guidance, addressing the government acting as loco parentis (in place of the parents) and deciding issues in the best interest of the juveniles (Lawrence, 2008). Accomplishing with this responsibility it is important to perform the proper evaluation or analysis of current situation and the posibility for enhancement of the juvenile system. Study on Violence issued by the United Nations Organization (2006) “found that children in care and justice institutions may be at higher risk of violence than virtually all other children” (Sheahan & Randel, 2012). Moreover, the International Convention on the Rights of Childs (CRC) has stated the responsibility of the participant states for develop the legislative and administrative measures to protect children under detention against any form of physical or mental abuse, and negligent treatment or exploitation (edil). The treatment on children must be consonants with the child’s sense of worth and dignity encouraging the respect for the human rights and basic principles of freedom (CRC Art. 40 as cited by Sheahan & Randel). Giovanny Melchiore Bosco, AKA Saint John Bosco did not beleive in punishment as an educational or behavioral tool. Thus, quoting St. John Bosco: “Try to gain love before inspiring fear” (as cited by Dermot Meagher, 2010).

More sorprising is the reality of children within the communities with a higher families in the margin of poverty. According to a study released by U. S. Dept. of Justice (2009) “more than 60 percent of the children surveyed were exposed to violence within the past year either directly or indirectly”. The exposure to violence in early childhood is associated with the further behavioral changes, whereas the harm is shown in their physical, psychological, and emotional development. Therefore, those children exposed to violence in their early life are more likely to be later compromised in a cycle of violence, and ending within our Criminal Juvenile Justice System.

Some findings of the study are:

Children exposed to violence are more likely to abuse drugs and alcohol; suffer from depression, anxiety, and post-traumatic disorders; fail or have difficulty in school; and become delinquent and engage in criminal behavior.

Sixty percent of American children were exposed to violence, crime, or abuse in their homes, schools, and communities.

Almost 40 percent of American children were direct victims of two or more violent acts, and one in ten were victims of violence five or more times.

Children are more likely to be exposed to violence and crime than adults.

Almost one in ten American children saw one family member assault another family member, and more than 25 percent had been exposed to family violence during their life.

A child’s exposure to one type of violence increases the likelihood that the child will be exposed to other types of violence and exposed multiple times.

*Finkelhor, D., Turner, H., Ormrod, R., Hamby, S., and Kracke, K. 2009. Children’s Exposure to Violence: A Comprehensive National Survey. Bulletin. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

Excepted from Dept. of Justice

Not all children enjoy the “carefree” days of childhood. Unfortunately, when things start to go wrong, people often despair of being able to repair the damage. Childhood is a time of developing the attitude, character of personality, and the formation of ideas about the environment in which the children are interacting with others. Adults are the responsible for the caring for the good wellness of their dependents. Therefore, an ecliptic approach is appropriate to face the challenges against violence, whereas every family members and relatives must be properly educated about the immediate and long time effects of violence in the family circle and their members individually .

This is a time of high concern about violence committed by and against young people. As a nation, we are in a period of reflection as to what can be done to stem this tide. Helping young people avoid or overcome emotional problems in the wake of violence or disaster is one of the most important challenges a parent, teacher, or mental health professional can face. Moreover, children often face violence in their own homes.

FISA

The Foreign Intelligence Surveillance Act of 1978 (FISA)

Background

After the release of the famous or infamous Muller Report about the Russian intervention in the 2016 elections, and after the clearance on President Trump in no-collusion, nor illegal obstruction of investigations, we had been heard the news and commentators talking about FISA warrants . But what it is, and how it has evolved until now? To have a clear notion about what FISA is we must start by looking into the events that were pushing the enactment of this important legal procedure and guidelines to the government’s intelligence agencies in the use of electronic surveillance for national security purposes.

The Foreign Intelligence Surveillance Act of 1978 (FISA), was a Congressional response to a series of complaints about a governmental abuse of power in the use of electronic surveillance in prejudices to the privacy rights of the U. S. citizens. The Article II (a) of the U. S. Constitution is giving to the Executive branch (specifically to The President of USA) an inherent authority to conduct warrantless electronic surveillance for non-criminal national security purposes. However, this consention began to change in the early ’70s.

In 1968 was enacted the Omnibus Crime Control and Safe Streets Act (“Wiretap Act”/Pub. L. 90-351; 6/19/68), in which is prohibited the unauthorized interception of “wire, oral, or electronic communications”. The same law established the requirements and procedures to obtain a warrant authorizing wiretap by government officers.

Four years later the Supreme Court in the “Keith Case” (United States vs United States District Court 407 U.S. 297 1972) release the opinion about the legality of a warrantless electronic surveillance authorized by the Attorney General where the target was a U. S. citizen in this case accused of the bomb attempted in a CIA building. Although The Court holds that the 4th Amendment prohibited the warrantless surveillance over a a domestic threats to U.S. national security, in an inconclusive opinion, refused to stand over the legality of warrantless surveillance when a the target is a “foreign power or their agents” involved. The aforementioned inconsistency gives the path to a posterior inquiry to the U. S. Congress to provide a judicially manageable standards and/or guidelines, as applicable, to the performance of electronic surveillance for national security purposes.

Watergate investigations between 1972-1976 gives an extra impact to the needs for a bolder approach to the electronic surveillance system used by the government agencies. The Church Committee (Senator Frank Church from Idaho was the Committee leader) in the report delivered on April 26, 1976 highlights the need for Congress to assert itself to stop the lawlessness and use of a government agencies as a political weapons against political enemies, concerned organizations, and U.S. citizens. It was a call for a clarification of the Constitutional system of checks and balances on Executive powers. (Frank Church and the Abyss of Warrantless Wiretapping, by John Nichols, The Nation, April 26, 2006 as cited by McAdams, J.D.).

FISA Enacted

With these incidents inside the Lawmakers minds, and a public expectations for a government accountability, the Foreign Intelligence Surveillance Act (FISA) was introduced on May 18, 1977, by Senator Ted Kennedy and was signed into law by President Jimmy Carter on October 25, 1978.

Amendments

After 1978 FISA has been amended by the Intelligence Authorization Act of 1995 (Pub. L. 103-359; 10/1494) including physical searches and electronic surveillance. However, it’s also recognized the limited authority of the President to authorize a physical searches without a court warrant.

In 2001 is expanded the surveillance authority to the Federal law enforcement agencies by the USA PATRIOT Act (Pub. L. 10756; 10/26/2001), and reaffirmed by the USA PATRIOT Additional Reauthorization Amendments Act of 2006 (Pub.L. 109-178; 3/9/06), in which are given the procedure and requirements to the request of a court warrant.

More changes were also followed by the FISA Amendments Act 2008 (Pub. L. 110-261; 7/10/2008), and by the FISA Sunsets Extensions Act 2011 (Pub. L. 112-3; 2/25/2011). These aforementioned Amendments are giving an eased restrictions on foreign intelligence gathering and a greater access to information unearthed during a criminal investigation by the U. S. Intelligence community.

FISC

Within the FISA was established the Foreign Intelligence Surveillance Court that is a body of eleven U. S. District Court judges designed by the Chief of Justice. This is an extracurricular court body that is composed in secrecy and empowered to hear and approve the applications for a electronic surveillance and searches within the United States. At the same time the Chief of Justice is designing three U. S. District or court of appeals as an special court of appeals if a warrant is denied. The government may then appeal to the Supreme Court.

Civil Rights and Liberties Implications

On FISA is clearly prohibited the surveillance of or production of business records concerned to a U. S. Person (50 USC §§ 1805,1842,1861). It’s also providing the guidelines for the process of sharing foreign intelligence information among the Federal agencies, and other law enforcement agencies in the States and local partners (Section 1806). Others guidelines are drafted in Sections 1825 (Physical searches), and Section 1845 (pen registers, trap and trace devices). The term “agents of foreign powers” as defined is including those U. S. citizens and permanent residents engaged in espionage in violation of U. S. law on any territory under the control of USA [Section 1801(b)].

A new conception was added in the definition of “agent of foreign power” by The Intelligence Reform and Terrorism Prevention Act of 2004. A non citizens who engages in international terrorism should be considered within the definition of “agent of foreign power” under FISA. Under the called individual “lone wolf”, it’s refered to any U.S. person who “knowingly engages in clandestine intelligence gathering”, or “engages in sabotage, or international terrorism”, or in any activities on behalf of a foreign power.

FISA’s constitutionality is upheld in United States v. Duggan (1984) as “constitutionally adequate balancing of the individual’s Fourth Amendment rights against the nation’s need to obtain foreign intelligence information.”

FISA in Substance

FISA warrants is not a rigorous standards process as a traditional law enforcement search warrant, in which is required an evidence that the subject whose property is searched was involved in some criminal activity. It’s easier targeting an “agent of foreign power” when this is not a United States person.

“United States person” as defined on FISA, cannot be a target of FISA surveillance solely upon the base “of activities protected by the first amendment”. At least on of the following requirements must be met in order to have a United States person be a target of FISA surveillance.

    1) Is engaged in intelligence activities on behalf of a foreign power. and such activities may involve a criminal violation.
    2) Is engaged in a secret activity in pursuant of an Intelligence network, an such activities involve or are about to involve a criminal violation.
    3) Is engaged in sabotage, or international terrorism, or is in preparation for such activities.
    4) Is engaged in aiding or abetting another who acts in one of the above.

The intelligence gathering agencies have forty five days to conduct a search as described in the warrant on the search objectives. Electronic surveillance and/or physical searches are authorized for the purposes of foreign intelligence only if the target is a “foreign power” or “agent of a foreign power” as defined by FISA.

Appendix

Article II Oath Clause

“Before he enter on the Execution of the Office, he shall take the following Oath or Affirmation: ‘I do solemnly swear (or affirm) they I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States “.

Fourth Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.”

References:

Justia Opinions and Annotations United States v. United States Dist. Ct., 407 U.S. 297 (1972) Retrieved from; https://supreme.justia.com/cases/federal/us/407/297/

History.com Editors Watergate Scandal June 05, 2019 Retrieved from; https://www.history.com/topics/1970s/watergate

Dept. of Justice Office of Justice Programs Retrieved from; https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1286

Banks, W. Foreign Intelligence Surveillance Act 1978 Encyclopedia.com. Retrieved from; https://www.encyclopedia.com/history/United-states-and-Canada/foreign-Intelligence-surveillance-Act-1978