TITLE EIGHT — HEARSAY
Rule 802. The Rule Against Hearsay
Sources of Exception. The exceptions prescribed by the Supreme Court appear in Rule 803 and Rule 804. Hearsay within hearsay is governed by Rule 805. Nothing in this Title limits an exception established by the common law of Ridgeway or by statute, and where a statute and these rules both address the admissibility of a statement, the statute governs.
Objection; Burden; Ruling.
Objection. A party objecting to a statement as hearsay shall state that ground, as Rule 103(1)(a) requires. Where the objection is overruled, the objecting party need not repeat it as to each further question upon the same subject after the court so indicates.
Burden. The proponent of a hearsay statement bears the burden of establishing every condition of the exception relied upon. Where more than one exception is relied upon, the proponent shall identify each.
Preliminary Questions. Whether a statement is hearsay, and whether the conditions of an exception are satisfied, are preliminary questions for the court under Rule 104(1). The court may admit a statement conditionally under Rule 104(2), and shall strike it upon motion where the condition is not satisfied.
Findings. Where the court admits a statement over objection under an exception requiring a finding, the court shall state the finding on the record.
Constitutional Limitation in Criminal Cases.
The Right of Confrontation. In all prosecutions for criminal offenses a person has the right to be confronted with the witnesses, as Const. art. I, § 6 guarantees. No exception in this Title shall be applied to admit against a defendant a testimonial statement of a declarant who does not testify at the trial, unless the declarant is unavailable as a witness under Rule 804(1) and the defendant had a prior opportunity to cross-examine the declarant upon the subject of the statement.
Testimonial Statements. A statement is testimonial where it was made in circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use at a later trial, including a statement made to a law enforcement officer, an investigator, or a judicial officer whose primary purpose in obtaining it was to establish or to prove past events potentially relevant to a later prosecution; a statement made in a formal or recorded interrogation; and an affidavit, certificate, or report prepared for use in a prosecution.
Statements That Are Not Testimonial. A statement is not testimonial where its primary purpose was to obtain or to direct assistance in an ongoing emergency, including a call or transmission over the Dispatch radio channel made to summon assistance while a threat was continuing; a statement made to a person who is not a law enforcement officer or an agent of the State; or a record made in the regular course of a regularly conducted activity for a purpose other than prosecution.
Forfeiture. A defendant who wrongfully procures the unavailability of a declarant, with the intent to do so, forfeits the objection stated in paragraph (a) as to that declarant, as Rule 804(2)(c) provides.
Effect. This subdivision limits the admission of evidence against a defendant only. It does not restrict a defendant’s offer of evidence, and it does not apply in a civil action or in a proceeding before the administrative court.
Defendant Tried in Absence. A defendant who waives or forfeits the right to be present under 6 R. Stat. § 131.501(b) waives the right to be personally confronted with the witnesses for the period of the absence, but does not waive the right of confrontation itself. The right is exercised through counsel of record, who shall be afforded the full opportunity to cross-examine every witness that 6 R. Stat. § 131.501(f) and Rid. R. Crim. P. 18.4(3) require. A testimonial statement of an absent declarant remains inadmissible against the defendant except as paragraph (a) permits, and neither the defendant’s absence nor the entry of a criminal default supplies the prior opportunity for cross-examination that paragraph (a) requires. Where the defendant appears before the close of the evidence, Rid. R. Crim. P. 18.4(6)(c) governs the recall of a witness for further cross-examination.
Proceedings in Which This Rule Does Not Apply or Applies Differently.
Before the Grand Jury. An indictment shall not be dismissed on the ground that the evidence presented before the grand jury consisted in whole or in part of the record from the defendant’s probable cause hearing or that other hearsay evidence was presented before the grand jury, as Rid. R. Crim. P. 4(3) provides.
Determination of Probable Cause for Detention. In a determination of probable cause for detention made at a first appearance, the judicial officer shall consider only the affidavit submitted by the arresting officer, as 6 R. Stat. § 131.204(a)(2) requires and Rid. R. Crim. P. 3.1(5)(b) provides. The rule against hearsay does not exclude that affidavit.
Preliminary Hearing. The rule against hearsay does not apply at a preliminary hearing held under 6 R. Stat. § 131.204(b) and Rid. R. Crim. P. 7.2, as 6 R. Stat. § 131.204(b)(c)(1)(B) provides.
Issuance of Process. The rule against hearsay does not apply to the showing made upon an application for a summons, an arrest warrant, a search warrant, or other process, or to an application for a criminal information under Rid. R. Crim. P. 3(6).
Before the Administrative Court. Hearsay evidence shall be admissible before the administrative court where it uses the statements of the accused, and no other hearsay evidence shall be admitted, as 3 R. Stat. § 141.107 requires. That statute governs over Rule 803 and Rule 804 in every proceeding before the administrative court, and the exceptions stated in those rules shall not be applied there.
Sentencing and Other Post-Conviction Proceedings. The rule against hearsay does not exclude information received at sentencing, upon a petition for revocation of probation, or upon a petition to seal or expunge, except as a statute or another rule provides, and the court shall consider the reliability of the information received.