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Author Topic: Hearsay - Statement Not Under Oath  (Read 2268 times)

brewha

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Hearsay - Statement Not Under Oath
« on: September 22, 2007, 08:15:54 PM »
Ok, here is the situation.  I am trying to get a statement into evidence that was not given under oath.  The guy was one of the offenders and was offered a deal by the prosecution if he testified against the remaining defendants.  The statement I want in is his first testimony, again not under oath, given to an officer where he denies any knowledge of the crime. 

My initial thoughts are that I can only get this in by impeachment.  It is a prior inconsistent statement that would go to his credibility and obvious bias.  I'm trying to remember if there was a way I could get this in as substantive evidence. 
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jacy85

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Re: Hearsay - Statement Not Under Oath
« Reply #1 on: September 22, 2007, 08:50:01 PM »
If its not under oath, then it's not testimony.

You're talking about a statement to the police?  And under the federal rules of evidence?

I think your first thought is correct - his testimony is his testimony, but you can both show bias (that he was a suspect, and has been offered a deal for his testimony) and impeachment by prior inconsistent statement.

brewha

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Re: Hearsay - Statement Not Under Oath
« Reply #2 on: September 22, 2007, 08:58:29 PM »
Just went through my old evidence outline and it seems that our thoughts are the only ways to go about getting that statement in front of the jury.  Either way, I'll get to have some fun with the impeachment cross.  Thanks for the thoughts jacy
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jacy85

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Re: Hearsay - Statement Not Under Oath
« Reply #3 on: September 23, 2007, 11:48:34 AM »
Cross is fun in general, and impeachment is like the cherry on top.  :)

Have fun!

Jumboshrimps

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Re: Hearsay - Statement Not Under Oath
« Reply #4 on: September 23, 2007, 03:13:05 PM »
Because you are not offering the statement for its truth, it is really not hearsay at all. This is really just another formulation of the impeachment exception, but it is technically more correct to call it "non-hearsay."

Lenny

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Re: Hearsay - Statement Not Under Oath
« Reply #5 on: September 23, 2007, 04:44:19 PM »
That's not necessarily true, Jumbo.  The witness's statement is basically "It wasn't me, I had nothing to do with it."  I can see a reason why an attorney would want to get this in for the truth of the matter - i.e. that the witness indeed had nothing to do with the crime.  The inference would then be that, if the witness had nothing to do with it, perhaps the D also had nothing to do with it.  Thus, it would be hearsay, although the practical strength of this inference is a bit silly.  So, because it could be hearsay in that instance, we need to find an exception.  The one that immediately came to mind was coconspirator hearsay, assuming there is a conspiracy charge in there.  But I don't think that would work because, in this posture, it would be self-serving to the D, the one seeking to introduce the statement.

That's just a long way of saying that Jacy et al. are right - have fun with impeachment, cuz that's all you got.

Jumboshrimps

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Re: Hearsay - Statement Not Under Oath
« Reply #6 on: September 23, 2007, 06:42:21 PM »
The statement is "I had nothing to do with the crime." It is being offered solely to impeach the credibility of the witness. Therefore, it is patently not offered for the truth of its contents and thus not hearsay at all.

Then, the other attorney pipes up and says, "Your honor, counsel's stated purpose of introducing this statement solely for impeachment purposes is a mere pretext to get it in for the truth of its contents, namely, that the witness had nothing to do with the crime.
It is plain hearsay and does not fall under an exception."

Then, the first attorney says, "Your honor, I am merely trying to impeach the credibility of this witness. Moreover, this statement could not be offered for its truth in ANY circumstance because it is in fact false. A false statement is never offered for its truth, and therefore never hearsay."

Judge: I will allow the statement. It is either not hearsay or it falls under the impeachment "exception."

robsanpedro

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Re: Hearsay - Statement Not Under Oath
« Reply #7 on: October 05, 2007, 08:50:04 PM »
I am still taking Evidence, so I am by no means an expert, but doesn't it matter what court you are in?  For instance, I know under California, impeachment evidence doesn't have to have been under oath.
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