Modern jurisprudence

One of the most complicated rules of evidence in modern jurisprudence is the hearsay rule and its various exceptions. The general rule is deceptively simple and applies in roughly the same form regardless of jurisdiction. In the Federal rules of Evidence (FRE) as well as the state rules for both North and South Carolina, the rule is that hearsay is inadmissible. It is defined in all of these jurisdictions as testimony as to the statement of an individual by a person other than that individual (referred to as the declarant).

Despite the simplicity of the general rule, each code has a series of exceptions to the hearsay rule. In the FRE, there are no fewer than sixteen exceptions to the hearsay rule. They include the present sense impression exception. This refers to the admitting of hearsay statements that show what the declarant is believing to be true at the time he or she makes the statement. ( Federal Rules of Evidence 7. 2) A second exception in the FRE is if the declarant is making what is determined to be an excited utterance. ( Federal Rules of Evidence 7.

3) This would be a statement made while the declarant is in an emotional state, such as fear, anger or excitement. ( Federal Rules of Evidence 7. 4) Statements made by medical professionals for the purposes of diagnosis or treatment are also admissible as an exception to hearsay in the FRE. ( Federal Rules of Evidence 7. 5) The so-called “dying declaration” is another exception to the hearsay rule. If the declarant believes that he or she is about to die, his or her statements are an exception to the hearsay rule. ( Federal Rules of Evidence 7.

6) Yet another exception to the hearsay rule is the reading into evidence of former testimony of the declarant. ( Federal Rules of Evidence 7. 7) The rationale for this rule is that since testimonial evidence is given under oath, it is more reliable, so long as the statements are read from valid records. One of the largest exceptions of the hearsay rule according to the FRE is statement against interest of the declarant. If the declarant is heard to have made incriminating statements, or statements that would impeach their credibility at trial, those statements are admissible. ( Federal Rules of Evidence 7.

8) Additionally, both business and public records are not considered to be hearsay, nor are recorded recollections, such as journals or diaries. (All of these documents are subject to questions of authenticity, however) ( Federal Rules of Evidence 7. 10-7. 12) Evidence as to reputation is also not considered to be an exception to hearsay under the FRE. ( Federal Rules of Evidence 7. 13) Statements referred to as treatises are also admissible, if relied upon by an expert witness. These refer to papers, journal articles, or studies relied upon by experts in forming their opinions.

( Federal Rules of Evidence 7. 14) The FRE also includes a catchall exception for any circumstance not described in the exceptions that has probative value and whose admittance would serve the interest of justice. ( Federal Rules of Evidence 7. 15) Another exception in the FRE is hearsay within hearsay, if the combination of statements falls under the heading of one of the other exceptions. ( Federal Rules of Evidence 7. 16) Finally, the FRE allows heasay exceptions for statements which may be used to attack or support the credibility of the declarant.

( Federal Rules of Evidence 7. 17) In the North Carolina Rules of evidence, most of the hearsay rules are the same. There are some notable variations in the North Carolina code. In the area of public records, for example, North Carolina allows an exception of hearsay regarding the absence of records that should, under normal circumstances, be present. (North Carolina Evidence Code Rule 803, sec. 10) North Carolina also includes statements in ancient documents (over 20 years of age) as not being subject to the hearsay rule.

(North Carolina Evidence Code Rule 803, sec. 16) North Carolina’s code also gives many more specific examples of public records that fall under the exception to hearsay. These include marriage, baptismal and other family records. (North Carolina Evidence Code Rule 803, sec. 6-17) The North Carolina Code also includes a broader range of specifics regarding reputation statements. North Carolina specifies judgments as to family and general history, reputation as to character, boundaries or general history, and personal history.

(North Carolina Evidence Code Rule 803, sec. 19-23) North Carolina also incorporates the miscellaneous hearsay provisions and restrictions in nearly identical language as the FRE. (North Carolina Evidence Code Rule 803, sec. 24) South Carolina’s code is almost identical to that of North Carolina. It does, however, contain clarifications and embellishments deriving from high court rulings in the State. For example, the code indicates that present sense and excited utterance must occur together in order to qualify under the hearsay exceptions.

(South Carolina Rules of Evidence Article 8 notes) The exception regarding the admitting of medical statements for the purposes of diagnosis is slightly different than the comparable provision in the other two codes in that it allows for judicial discretion on the admittance of statements made under those circumstances. (South Carolina Rules of Evidence Article 8 Section 4) The judgment of previous convictions is also expanded in South Carolina to include juvenile convictions. (South Carolina Rules of Evidence Article 8 Section 22) This expansion does not exist in the FRE.

Despite its complexity, the hearsay rule and its myriad of exceptions is in place to ensure the fundamental fairness of evidence at trial. The rules seem to boil down to the notion that certain statements, even if they are not subject to cross-examination, ought to be considered by the court to be as reliable, if not more so, than first-hand testimony. Work Cited Federal Rules of Evidence Section 7 Subsection 7. 1-7. 17. North Carolina Evidence Code Chapter 8, Rules 801-808. South Carolina Rules of Evidence Article 8 Sections 801-806.