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  • Exceptions to the Hearsay Rules

    Perhaps some here will find the following helpful:

    https://www.law.cornell.edu/rules/fre/rule_803
    Rule 803. Exceptions to the Rule Against Hearsay

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    The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
    (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
    (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
    (3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
    (4) Statement Made for Medical Diagnosis or Treatment. A statement that:
    (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
    (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
    (5) Recorded Recollection. A record that:
    (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
    (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
    (C) accurately reflects the witness’s knowledge.
    If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
    (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
    (A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
    (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
    (C) making the record was a regular practice of that activity;
    (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
    (E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.
    (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
    (A) the evidence is admitted to prove that the matter did not occur or exist;
    (B) a record was regularly kept for a matter of that kind; and
    (C) neither the opponent does not show that the possible source of the information nor or other circumstances indicate a lack of trustworthiness.
    (8) Public Records. A record or statement of a public office if:
    (A) it sets out:
    (i) the office’s activities;
    (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
    (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
    (B) neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness.
    (9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
    (10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:
    (A) the testimony or certification is admitted to prove that
    (i) the record or statement does not exist; or
    (ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
    (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.
    (11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.
    (12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:
    (A) made by a person who is authorized by a religious organization or by law to perform the act certified;
    (B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and
    (C) purporting to have been issued at the time of the act or within a reasonable time after it.
    (13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
    (14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:
    (A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;
    (B) the record is kept in a public office; and
    (C) a statute authorizes recording documents of that kind in that office.
    (15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose — unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
    (16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.
    (17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
    (18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:
    (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
    (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
    If admitted, the statement may be read into evidence but not received as an exhibit.
    (19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
    (20) Reputation Concerning Boundaries or General History. A reputation in a community — arising before the controversy — concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.
    (21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.
    (22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
    (A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
    (B) the conviction was for a crime punishable by death or by imprisonment for more than a year;
    (C) the evidence is admitted to prove any fact essential to the judgment; and
    (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.
    The pendency of an appeal may be shown but does not affect admissibility.
    (23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:
    (A) was essential to the judgment; and
    (B) could be proved by evidence of reputation.
    (24) [Other Exceptions .] [Transferred to Rule 807.]




    We are not now that strength which in old days
    Moved earth and heaven; that which we are we are; One equal temper of heroic hearts
    Made weak by time and fate but strong in will
    To strive to seek to find and not to yield.

  • #2
    So, 90%+ of the testimony is still hearsay, gossip, and bureaucratic whining. You'd think something like a national policy involving the President and State Department would have produced a veritable pile of memos, documents, e-mails, phone records, etc. Yet, we have one several page transcript and a complaint filed by a "whistleblower" that the head Democrat is shielding from testimony probably because that person was a plant and agent provocateur within the White House.

    The parade of so-called witnesses so far are all saying they heard this, or so-and-so said this, or they overheard something, etc. That's all hearsay and gossip. Dragging in disgruntled employees to take a potshot at their ex-boss doesn't help the case either.

    This is where Schiff's show trial is right now. I call it a show trial because Schiff has repeatedly stated over various causes that Trump deserves impeachment and that he'd vote for it. No impartiality there. If you watch his interactions with Republicans on his committee, Schiff is doing everything he can to limit cross examination, confound and limit the other party to question any of his "witnesses" (I use quotes since most didn't witness anything), and won't even call the witnesses (who may well be equally useless) the Republicans have formally asked to appear.

    Comment


    • #3
      Let's say that the hearsay is all admisible. That preponderance of evidence shows Trump was using withholding aid to get the Ukrainians to investigate Hunter Biden, so what? Does being the son of an ex vice-president shield you from investigation?

      There is a chain of consequences from a central evil. That evil is Hillary Clinton. Had she or her surrogates not used the intimidation of the U.S. government to pressure the Ukrainians to participate in smearing the opposition candidate and got away with it perhaps Joe Biden would not have been so cavalier about using U.S. aid to get a prosecutor investigating a company his son was working for dismissed. Had she not destroyed her illegal servers and had the DNC turned over their servers Wikileaks and Russian collusion would have been irrelevant. Had she not been running for president the head of the FBI would not have discredited the intelligence community by creating the fictitious defense of intent. Had the intelligence community and media not supported her Barr and Durham would have little to investigate. If the mess of covering up her misdeeds had never happened Trump would have been able to go through normal channels to investigate what happened in the Ukrainian.
      We hunt the hunters

      Comment


      • #4
        You left out the Awan family cover up the FBI did for the Democrats since it could have implicated 30 to 40 House members and pretty much trashed the Democrat's chances of having a majority in Congress for decades....



        What I see is this one was so big, so devastating to the Democrats that they circled the wagons, got the MSM to shut up, and forced the federal bureaucracy to sweep this under the rug.

        Comment


        • #5
          First, there have been witnesses who do not express a hearsay and transcripts with facts by the main protagonists.

          Second, those witnesses who do recall what other people told them are still useful in focusing the investigation towards the right people.

          Third, those who really want a honest investigation should demand that people like Giuliani and other protagonists with first hand information come forward and testify instead of complaining that some witnesses offer hearsay.


          Fourth, notice that many of the exceptions mentioned above about the use of hearsay in a federal trial could be used even if the impeachment was actually a criminal process.

          Fifth, the impeachment is not a criminal process

          My most dangerous mission: I landed in the middle of an enemy tank battalion and I immediately, started spraying bullets killing everybody around me having fun up until my computer froze...

          Comment


          • #6
            Originally posted by wolfhnd View Post
            Let's say that the hearsay is all admisible. That preponderance of evidence shows Trump was using withholding aid to get the Ukrainians to investigate Hunter Biden, so what? Does being the son of an ex vice-president shield you from investigation?

            There is a chain of consequences from a central evil. That evil is Hillary Clinton. Had she or her surrogates not used the intimidation of the U.S. government to pressure the Ukrainians to participate in smearing the opposition candidate and got away with it perhaps Joe Biden would not have been so cavalier about using U.S. aid to get a prosecutor investigating a company his son was working for dismissed. Had she not destroyed her illegal servers and had the DNC turned over their servers Wikileaks and Russian collusion would have been irrelevant. Had she not been running for president the head of the FBI would not have discredited the intelligence community by creating the fictitious defense of intent. Had the intelligence community and media not supported her Barr and Durham would have little to investigate. If the mess of covering up her misdeeds had never happened Trump would have been able to go through normal channels to investigate what happened in the Ukrainian.
            It does shield you from an investigation from scams like Giuliani and others who acted outside of the normal channels. And it does shield you from a public announcement of an investigation as Trump was trying to get from the Ukrainian Prime Minister
            Hunter was a lawyer who became in charge of the legal affairs of an Ukrainian company. This by itself does not ring any bell unless we adopt the theory that we should investigate every lawyer who provides his service to an international corporation that has some form of legal troubles. And this applies to every lawyer regardless if he is a son of an ex vice-president or not.

            If the FBI has additional information which makes any such lawyer (and US citizen) suspect, then the DOJ can request cooperation with authorities from other countries. From what we have heard from the diplomats, there was not any such request by the DOJ.
            My most dangerous mission: I landed in the middle of an enemy tank battalion and I immediately, started spraying bullets killing everybody around me having fun up until my computer froze...

            Comment


            • #7
              Originally posted by pamak View Post

              It does shield you from an investigation from scams like Giuliani and others who acted outside of the normal channels. And it does shield you from a public announcement of an investigation as Trump was trying to get from the Ukrainian Prime Minister
              Hunter was a lawyer who became in charge of the legal affairs of an Ukrainian company. This by itself does not ring any bell unless we adopt the theory that we should investigate every lawyer who provides his service to an international corporation that has some form of legal troubles. And this applies to every lawyer regardless if he is a son of an ex vice-president or not.

              If the FBI has additional information which makes any such lawyer (and US citizen) suspect, then the DOJ can request cooperation with authorities from other countries. From what we have heard from the diplomats, there was not any such request by the DOJ.
              Except Biden was hired by Burisma to sit on the Board of Directors. His position had nothing to do with legal matters of the company. He had zero managerial experience in the energy industry. But, the company was engaged in trying to get a deal between the EU, US, and Ukraine to move and sell natural gas to Europe. The US part required that the US State Department okey doak the deal and it seems awful convenient that they hire Hunter Biden, son of the Vice President shortly before they try to do this, particularly since he has no experience in the position he's being hired to.

              Of course, there's always the $1.5 billion deal between Hunter Biden's investment company Rosemont Seneca Partners LLC and the State Bank of China that got made while his dear old dad was hobnobbing with top Chinese government officials on an official US visit to China....

              Basically, there's plenty of graft and corruption to go around and Joe Biden's hands are covered in it. I suspect the Clinton's rubbed off on him...

              Comment


              • #8
                The impeachment hearing are not a legal process, it is strictly a political process. Much like a kangaroo court, which is why I never supported the Clinton impeachment hearings.
                Dispite our best intentions, the system is dysfunctional that intelligence failure is guaranteed.
                Russ Travers, CIA analyst, 2001

                Comment


                • #9
                  Originally posted by T. A. Gardner View Post

                  Except Biden was hired by Burisma to sit on the Board of Directors. His position had nothing to do with legal matters of the company. He had zero managerial experience in the energy industry. But, the company was engaged in trying to get a deal between the EU, US, and Ukraine to move and sell natural gas to Europe. The US part required that the US State Department okey doak the deal and it seems awful convenient that they hire Hunter Biden, son of the Vice President shortly before they try to do this, particularly since he has no experience in the position he's being hired to.

                  Of course, there's always the $1.5 billion deal between Hunter Biden's investment company Rosemont Seneca Partners LLC and the State Bank of China that got made while his dear old dad was hobnobbing with top Chinese government officials on an official US visit to China....

                  Basically, there's plenty of graft and corruption to go around and Joe Biden's hands are covered in it. I suspect the Clinton's rubbed off on him...
                  We have already talked about it and Freebird (who does not seem to be on the liberals side) provided the information that Biden as a member of the Board of Directors was in charge of the legal affairs. He did not need to have a managerial position for this assignment and no experience related to the gas industry.

                  And no, if you want to talk about appearance of corruption and convenient deals, you should demand that there is a public investigation of Ivanka's convenient deals in China

                  And again, if there is something that raises legitimate legal concerns, there are institutions and formal channels and procedures like the DOJ and the FBI. Shady people like personal attorneys and the US representative in EU (not in Ukraine) are not the ones who should push such investigations and at the expense of career diplomats.
                  My most dangerous mission: I landed in the middle of an enemy tank battalion and I immediately, started spraying bullets killing everybody around me having fun up until my computer froze...

                  Comment


                  • #10
                    So what exception to the hearsay rule are you claiming applies?
                    Avatar is General Gerard, courtesy of Zouave.

                    Churchill to Chamberlain: you had a choice between war and dishonor. You chose dishonor, and you will have war.

                    Comment


                    • #11
                      Originally posted by Cambronnne View Post
                      So what exception to the hearsay rule are you claiming applies?
                      First of all, here as i said the procedure is political. So it is not about what exceptions apply. You should rephrase the question to what exceptions WOULD apply IF the procedure was a criminal one prosecuted by the DOJ. And in that case, here is one

                      https://www.rulesofevidence.org/article-viii/rule-804/

                      Rule 804 – Hearsay Exceptions; Declarant Unavailable


                      (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

                      (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;


                      (2) refuses to testify about the subject matter despite a court order to do so;

                      My most dangerous mission: I landed in the middle of an enemy tank battalion and I immediately, started spraying bullets killing everybody around me having fun up until my computer froze...

                      Comment


                      • #12
                        Originally posted by pamak View Post

                        First of all, here as i said the procedure is political. So it is not about what exceptions apply. You should rephrase the question to what exceptions WOULD apply IF the procedure was a criminal one prosecuted by the DOJ. And in that case, here is one

                        https://www.rulesofevidence.org/article-viii/rule-804/

                        Rule 804 – Hearsay Exceptions; Declarant Unavailable


                        (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

                        (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;


                        (2) refuses to testify about the subject matter despite a court order to do so;


                        Ignoring your admission that this is just a political show trial, would you care to identify the declarant?.
                        Avatar is General Gerard, courtesy of Zouave.

                        Churchill to Chamberlain: you had a choice between war and dishonor. You chose dishonor, and you will have war.

                        Comment


                        • #13
                          Originally posted by Cambronnne View Post



                          Ignoring your admission that this is just a political show trial, would you care to identify the declarant?.
                          All the first hand people who refuse to appear. And no, telling the truth regarding the fact that this process is political does not make it a "show trial"
                          My most dangerous mission: I landed in the middle of an enemy tank battalion and I immediately, started spraying bullets killing everybody around me having fun up until my computer froze...

                          Comment


                          • #14
                            Originally posted by Cambronnne View Post



                            Ignoring your admission that this is just a political show trial, would you care to identify the declarant?.
                            I do positively enjoy it when laypeople pull out court rules, not rulings, just 'rules', and start waxing eloquent about them and how such and so applies. It's not quite as entertaining as a traffic stop with a "Free Man Traveling on the Land", but it's damned close. And I'm not concerned that said laypeople will pull a hogleg out and shoot me to assert their right to travel or somesuch.


                            Now as to the Hearsay, and Hearsay exceptions, especially as it relates to things in Criminal proceedings (of which while wholly political, an impeachment and the later 'trial' do attempt to clothe themselves in the trappings thereof):

                            Legend: W-Witness. D-Defendant. EW-Expert Witness. LW-LE Witness

                            Witness can testify about what they saw, heard, smelled, tasted, read, etc. Anything that they have direct first-hand accounting of, to include anything which they recorded their past memories of (notes, emails, etc) is viable testimony. That can include impressions of demeanor, though it's open to some heavy cross-examination.

                            Witnesses can testify about anything that the defendant told them, period. So long as they were not acting at the direction of an LW, a W can question a D as much as they please. Anything the D tells a W is fair game. Any recordings made by a W, provided that they're not otherwise illegal, are also fair game provided that the W who made the recording is present to testify that it is indeed their recording and a true and accurate depiction.

                            Expert Witnesses are allowed to make some presumptions, inferences, and opinions within their area of expertise. This is something not allotted to other witnesses.

                            LE Witnesses, and other witnesses (though rare), can testify to the accounts given them by say a witness who is now deceased, incompetent, or otherwise UNABLE to testify in a permanent sense.

                            Hearsay is specifically trying to testify to second or third hand information. There is no exception to one witness saying that he heard another witness tell him that the defendant told him X or overheard Y. You get that OTHER witness, provided that they're not dead etc. The firsthand witness refusing to cooperate does not suddenly make a secondhand or thirdhand witness valid.

                            Roughly 75% of my job as an investigator is finding those firsthand accounts and/or records. Typically I hear something second hand from my victim or reporting party, and then have to go run down admissible testimony. That's called an interview and it's done back of the house. What's being done publicly and now is sworn testimony, so we're looking at minimum at a deposition....you can't get hearsay in a deposition, you can only get admissible testimony.

                            I'd say that if hearsay is involved, it means that they haven't put a proper investigator in charge of ferreting out witnesses and testimony. When my DA puts one of my witnesses on the stand, he's been extensively briefed by me on what that witness will testify to that is not hearsay and how their testimony is admissible, and has had opportunity to confer with the witness to confirm this.

                            As to my CV on the topic, I've been doing it in real life for over 10 years. I have a solid track record of good investigations and a high conviction/plea rate. And I'm one of my local DA's office top 5 detectives that they like to work with and work cases from because I deliver them solid conviction cases on a silver platter with whipped cream and a cherry on top.
                            Last edited by TacCovert4; 17 Nov 19, 19:48.
                            Tacitos, Satrap of Kyrene

                            Comment


                            • #15
                              Originally posted by TacCovert4 View Post

                              I do positively enjoy it when laypeople pull out court rules, not rulings, just 'rules', and start waxing eloquent about them and how such and so applies. It's not quite as entertaining as a traffic stop with a "Free Man Traveling on the Land", but it's damned close. And I'm not concerned that said laypeople will pull a hogleg out and shoot me to assert their right to travel or somesuch.


                              These are "Just rules" is not a counterpoint without anything additional information such as a court rulings that strikes down these rules. A voter will need to adopt a political position, so he needs to evaluate everything, including information that does not come from his field of expertise.

                              Of course, when the non-experts were chanting "lock her up" immediately after the experts refused to even prosecute a political figure, we did not hear a lot about the need to have laypeople defer to the experts....


                              My most dangerous mission: I landed in the middle of an enemy tank battalion and I immediately, started spraying bullets killing everybody around me having fun up until my computer froze...

                              Comment

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