Hearsay and Exemptions to Hearsay - Research Paper Example

? Hearsay and Exemptions to Hearsay Introduction The idea of ‘hearsay’ in legal cases is principally regarded as the information or ment which is collected by an individual from any source concerning an event of which the first person had no direct relation with the event. In general, it represents the evidences which are acquired usually through second-hand sources (The Cochran Firm, n.d.). The conception of preliminary hearing is principally described as a critical phase in legal proceedings, especially concerned to a criminal case. The notion of preliminary hearing is also acknowledged as “probable cause” hearing which acts as a proceeding in which the prosecuting authority ought to ascertain in court that they possess feasible grounds to arrest a particular individual being accused as criminal. In relation to the Wisconsin Laws, the aspect of preliminary hearing has been primarily designed for the advantage of those imprisoned individuals, who are unable to post any sort of bonds ensuring that they are not detained in jail due to any irrelevant charges imposed over them. Nevertheless, the imprisoned individuals who are not able to post any kind of bonds are allowed to request for a preliminary hearing in order to dismiss the case based on specified grounds (Siegel, 2009). It has been viewed that the major aim of preliminary hearing is to verify the reality that whether a prosecutor possesses sufficient proof in order to validate further illicit proceedings against any accused individual. Furthermore, the other main target of preliminary hearing is that it tends to establish the reality that there lay every possible ground to believe that an individual has been imprisoned on the basis of the filed charges against committing a criminal act (Herman, 2006). In this discussion, whether hearsay can be used in preliminary hearings on the basis of Wisconsin laws will be taken into concern. Moreover, certain grounds relating to the exemptions of hearsay will also be portrayed in the discussion henceforth. A Brief Overview of Preliminary Hearing The role of preliminary hearing in criminal cases can be well justified in relation to the present hearsay laws in the US statutory procedure and the recently amended Wisconsin Act. A defendant is usually allowed to experience a preliminary hearing only when he/she has been detained for the conduct of any sort of felony offense or performed certain disregardful actions in federal courts as well as in the state laws. The perceptions of preliminary hearing has been introduced as well as developed for the purpose of delivering significant benefits to the imprisoned individuals who are not capable to post statutory bonds assuring that they are not detained in jail due to any irrelevant charge. According to the facets of preliminary hearing, it has been apparently observed that if a particular defendant seems to be in jail at the time of conducting preliminary hearing and the responsible state fails to present any feasible grounds to prove the criminal offenses, the defendant would be entitled to enjoy the right to get dismissal from his/her case. Moreover, along with the dismissal of case, the defendant would also be entitled to get immediate release from the jail. Similarly, if a particular defendant is not present in jail at the time of performing preliminary hearing and the responsible state fails to ascertain possible reasons to the circumstances, the defendant would bear the right to get dismissed from his/her case and also to get immediate release from imprisonment (Siegel, 2009). The defense attorneys characteristically make the use of preliminary hearings as a helpful tool for collecting valuable evidences regarding any case in opposition to the defendant. This is due to the reason that the attorneys view the aspect of preliminary hearing as a sort of deposition by which they can discover what exactly the defendant confides about committing a felony or a criminal offense. With regard to the benefit of those imprisoned individuals who are not able to post bonds and prove their innocence, it can be stated that the defendants who are arrested for conducting any sort of felony offenses must file an instantaneous request for availing a preliminary hearing. It is fundamentally owing to the fact that by requesting to perform preliminary hearing, the imprisoned individuals, able to post statutory bonds can be facilitated in terms of getting the case dismissed or avail immediate release from the imprisonment. On the basis of the above discussion, it can be stated that the sole intention of a preliminary hearing is that it intends to determine whether there exists any possible ground consider that a felony offense has taken place. Moreover, the other intention of a preliminary hearing is to identify the evidences in support of the defendant conducting any felony offenses. One of the imperative facets of a preliminary hearing is that it is adversarial in process as well as in nature. This is because the prosecution relating to preliminary hearing bear the burden in order to persuade the magistrate that there lay possible grounds to consider that a felony or a criminal offense has been committed by the defendant. In this similar context, the prosecutor might present various witnesses, physical as well as documentary proofs for the purpose of lessening the burden on the defendant about conducting any felony offense. Contextually, the defendant is believed to avail the opportunity to present any kind of argumentative statement and also to cross-examine the witnesses by presenting proofs with the intention of revealing that the proclaimed ground(s) is/are invalid. The proven invalidity of the possible grounds relating to preliminary hearing would ultimately lead towards the dismissal of the various charges which are made in opposition to the defendant and also the release of the defendant from imprisonment (Siegel, 2009). After acquiring a brief idea about the nature as well as the significance of preliminary hearing, it can be stated that the legal stature intends to deliver significant benefits to defendants who are not able to post legal bond for the purpose of getting withdrawal from the criminal case. In this regard, one of the advantages of preliminary hearing is that it serves as an informal way of discovery in the criminal cases. It has been typically viewed that discovery is much limited in civil activities in comparison with criminal cases. The capability to make argumentative statements as well as to interrogate the evidences can be viewed as an effectual discovery tool relating to preliminary hearing. The major advantage of preliminary hearing from the perspective of the prosecution can be identified as the prospect to perpetuate testimony. In this regard, once a witness has provided evidence or testimony at the background of preliminary hearing, that testimony can be initiated as evidence at the initial phase of trial only if the witness becomes inaccessible. The other significant benefit of preliminary hearing is that it helps to educate the prosecution, court and most importantly the defendant. From the perspective of the defendant, preliminary hearing educates the defendants by assisting them in realizing the requirements of posting bonds in order to dismiss the case or get immediate release from imprisonment. With regard to the prosecution, preliminary hearing expands the understanding of the prosecution by presenting the case in a formal situation with the expectation to ultimately reveal the performance of the witnesses while experiencing cross-examinations. From the viewpoint of the court, the execution of preliminary hearing educates the courts by confirming significant information which would assist in providing appropriate judgments (Advice Company, 2012). Along with the advantages, there also persist certain crucial disadvantages of preliminary hearing. One of the major disadvantages of preliminary hearing is that if a particular defendant wins the case, still there lies a probable chance of charging against the defendant after the state collects adequate evidences p. The other disadvantage of preliminary hearing is that it compels the prosecutor to view the weaknesses in his case which implies that the prosecutor requires knowing extra information in order to make his case stronger in opposition to the defendant. Another disadvantage of preliminary hearing is that a particular defendant may not be allowed to avail the facility immediately after the prosecution is being executed resulting inability to cross-examine the government evidences. In this regard, it has been apparently observed that there are certain states which permit the defendants to ask for preliminary hearings only when a complaint or indictment has not been filed. Conversely, there are certain states which automatically provide the right to the defendants about asking for preliminary hearing immediately when they are alleged with a Criminal Act (Advice Company, 2012). On the basis of the above discussion, it can be stated that the main target of preliminary hearing is determining whether the prosecutor possesses sufficient proof for the purpose of justifying further illicit proceedings in opposition to the defendant. Although, the notion of preliminary hearing possesses certain crucial disadvantages, the defendant or the accused possesses the chance to respond towards the court against his/her committed crime (Siegel, 2009). A Brief Overview of Hearsay Conception According to Wisconsin Statute and Section 908.01 (3), the perception of hearsay is often described as information or statements which are normally congregated by a particular individual concerning any specific incident, which the first person had no direct relation with the event or the condition. When those information or the statements are presented into the attention of the court, such statements are usually acknowledged as hearsay evidence. From the legal perspective, it has been viewed that the idea of hearsay is fundamentally represented as the execution of certain information or statements as a type of proof in order to witness the truth of the evidences presented. In various instances, the implementation of those hearsay statements, as a form of proof, is principally avoided in a prosecution from of the end of the legislative body. This exclusion is known as hearsay rule. In general, hearsay is regarded as second hand evidences which are placed before the court in favor of the defendant or the accused. In relation to the hearsay rule, it has been viewed that there exists two groups of hearsay which include declarant hearsay and assertion hearsay. In this similar context, the facet of assertion hearsay is presented as a form of evidence into the attention of the court with the motive of delivering the actual truth about the subject matter. Conversely, the aspect of declarant hearsay is employed only when if there exists any kind of reliability of the witness testifying. The most general form of hearsay which is utilized within the case of committing a criminal act is the declarant hearsay which considers the behavior of the individuals as a means of betrayal or impeachment (The Cochran Firm, n.d.). The major advantage of hearsay is that the hearsay statements or information, as a nature of proofs, can be made and presented outside a trial or hearing in order to prove as well as to validate the truth of the contents associated with the statement. However, there lay certain crucial limitations of hearsay. The hearsay statements which are usually regarded as second-hand evidences are impermissible in a few courts because of their untrustworthiness as well as unreliability. This is due to the reason that an individual who made the original statement may not be available at the time of cross-examination. Moreover, the other significant reason for considering the hearsay evidences to be unreliable acclaims that the witnesses are viewed to be unreliable as their statements are generally presented in a casual way which night not be inevitably true and thus must not be presented into the attention of the court. For these particular reasons, hearsay statements, as a form of evidence, are often excluded from the prosecution process or are deemed as impermissible in the court. From the aforementioned statements, it can be asserted that the conception of hearsay does not obtain its value exclusively from the acclamation of the witness but rests typically upon the capability as well as the actuality of other individuals (The Lectric Law Library, 2012). A Brief Analysis of the Exemptions to Hearsay There pertain certain hearsay statements which are not considered as hearsay evidences and thus qualify as exemptions. It has been apparently observed that the evidences which meet the criteria as exemptions to hearsay are considered to be those statements which are trustworthy as well as dependable and are supposed to be unfabricated. In this similar context, according to Wisconsin Statute and Section 908.03, relating to the accessibility of the declarant irrelevant, the common exemptions of a hearsay law include the business records which are performed in regular business course, official records, court judgments, prehistoric documents and the assertions made by individuals who are observed to be under serious psychological pressure. The other exempted hearsay statements or evidences encompass religious as well as family records, marriage certificates, any sort of documents relating to property such as legal deeds and the statements which are made in opposition to an individual’s financial interests. Furthermore, the other statements which are not considered under the provision of hearsay comprise the statements explaining a specific circumstance or event which is made by an individual immediately after experiencing the situation and the statements which are usually made with the motive of medical cure or diagnosis (Wisconsin Legislative Documents, 2011). In addition, the other exempted hearsay statements include regular recorded activities, documentations of imperative statistics, records related to important facts such as testimonials of marriages, deaths, legitimacy, market statements as well as commercial publications. Moreover, according to Wisconsin Statute and Section 908.04, emphasizing on the unavailability of the declarant, the exemptions to hearsay include the inability of the defendant to remain present or to give evidence at the hearing due to his/her death or suffering from any physical or any psychological illness. The exemption also includes shortage of memory about the subject of the witness made in the declarants’ statement (Wisconsin Legislative Documents, 2011). Discussion Regarding the Use of Hearsay in Preliminary Hearings A law has recently been passed in accordance with 2011 Wisconsin Act 285 that took effect from the month of April’ 2012 concerning the use of hearsay in the preliminary hearings. The Assembly Bill 509 or the Senate Bill 399 represents the statute of allowing hearsay evidences at preliminary hearings. In this regard, Wisconsin Coalition against Domestic Violence (WCADV) enthusiastically supported this particular bill due to the reason that they realized the earlier rule, which was against implementing hearsay in preliminary hearings, needlessly required the victims to give evidence at preliminary hearings (Wisconsin Coalition against Domestic Violence, n.d.). It has been viewed that the bill was passed by the Wisconsin Senate in accordance with the Wisconsin legislature in the year 2012 expecting that the execution of hearsay evidences would be able to easily determine whether there exists a probable ground in order to indict an alleged felony or a criminal. In general, the prosecutors, different agencies related to law enforcement and the ‘rights groups’ of the victims supported the bill with greater enthusiasm. However, the defense attorneys strictly opposed the bill affirming that by utilizing hearsay, preliminary hearings would become costlier and most significantly would not deliver meaningful defense, especially for the defendants (State Bar of Wisconsin, 2012). Apart from the defense attorneys, the Public Defenders belonging to the Wisconsin State, the Lawyers associated with the Wisconsin Association of Criminal Defense, the State Bar as well as the Liberties Section of Civil Rights of Wisconsin also did not supported the bill. According to them, the existing procedure, i.e. the application of preliminary hearings without the use of hearsay, is quite essential and valuable which makes sure that the illicit defendants are guiltless until their culpability is being proved and thereby, safeguards the defendants from spending unnecessary time in jail. This aspect can be considered to be one of the major reasons for opposing the bill by the aforesaid individuals. The other vital reason for not supporting the bill is that the opposed parties such as the lawyers linked with criminal defense strongly believed that permitting hearsay would beat the aim of preliminary hearings i.e. delivering significant benefits to the imprisoned individuals and will not ensure an appropriate verification upon prosecutorial power. Most of the opposed parties also asserted that by using hearsay in the preliminary hearings, necessary statements would be heard only from the officers in charge instead of the suspected victims creating a possible gap between the actual demand of the defendant and that presented to the court (State Bar of Wisconsin, 2012). However, it is worth mentioning that the notion of hearsay can be used in preliminary hearings due to significant reasons. In this similar context, one of the chief causes for implementing or permitting hearsay in preliminary hearing is that it will considerably safeguard the defendants as well as the victims, particularly in the criminal cases by possessing the ability of cross-examining against different witnesses relating to hearsay statements. Moreover, by applying hearsay in the preliminary hearings, the defendant or the victim would also possess the right to provide their individual exculpatory hearsay proof through the concerned officer. By exercising this significant right, the protection of the victims or the defendants is expected raise by a considerable level. The various parties who supported the bill including the prosecutors as well as the different agencies associated with law enforcement affirmed that passing the bill, i.e. permitting hearsay in preliminary hearings, will be the greatest virtue of the Wisconsin legislature. This is because the bill is expected to make certain deliberate efforts for delivering and simultaneously, preserving the rights of the defendants or the accused victims while committing any criminal acts (State Bar of Wisconsin, 2012). In addition, the idea of hearsay can broadly be used in preliminary hearings owing to its advantage of proving as well as validating the truth of the contents associated with the hearsay statements. The proponents relating to the bill considered that the defendants possess the right to jury trial, cross-examining the witnesses and most importantly right to deal with the witnesses which are composed against them. The proponents also strongly believed that the bill relating to the use of hearsay in the preliminary hearings would not offend any component of the US or Wisconsin constitutions by any means (State Bar of Wisconsin, 2012). Thus, on the basis of the above discussion, it can broadly be stated that hearsay can be used on the basis of Wisconsin law and constitutions in preliminary hearings by a greater extent. Conclusion After acquiring a brief idea about the conception, nature as well as the merits and demerits of preliminary hearing and hearsay, it can be considered that hearsay can be used in preliminary hearing by a significant extent. It has been viewed that the aspect of preliminary hearing is mainly designed for those imprisoned individuals who are not able to post any sort of bond ensuring that they are not detained in jail due to any irrelevant charge imposed over them. The feature of preliminary hearing intends to support the defendants by dismissing their case as well as to get immediate release from imprisonment. Conversely, the notion of hearsay is primarily represented as the implementation of certain information or statements as a kind of proof for evaluating the reliability of the statement. In context with the facets of preliminary hearing and hearsay, recently a bill was passed stating that hearsay can be implemented in preliminary hearings. It was the Wisconsin Senate who passed the bill in the year 2012 affirming that the Wisconsin Legislature will permit the execution of hearsay evidences at the preliminary earnings. The purposes motivating the enactment of the bill emphasizes on that it would strengthen the support of the defendants and most importantly would protect the victims or the suspected individuals from being sentenced with unjust punishment. References Advice Company. (2012). Preliminary hearing. Retrieved from http://criminal-law.freeadvice.com/criminal-law/criminal-law/preliminary-hearing.htm Herman, S. N. (2006). The right to a speedy and public trial: a reference guide to the United States constitution. United States: Greenwood Publishing Group. Siegel, L. J. (2009). Introduction to criminal justice. United Kingdom: Cengage Learning. State Bar of Wisconsin. (2012). Proposed legislation allows hearsay evidence to overcome probable cause standard. Retrieved from http://www.wisbar.org/AM/Template.cfm?Section=Home&CONTENTID=109550&TEMPLATE=/CM/HTMLDisplay.cfm The Cochran Firm. (n.d.). What is hearsay? Retrieved from http://www.cochranfirm.com/resources/Ask%20our%20Lawyers/hearsay.htm The Lectric Law Library. (2012). Hearsay. Retrieved from http://www.lectlaw.com/def/h007.htm Wisconsin Legislative Documents. (2011). Evidence — hearsay. Retrieved from https://docs.legis.wisconsin.gov/statutes/statutes/908/04 Wisconsin Coalition against Domestic Violence. (n.d.). 2011-2012 legislative session review. Retrieved from http://www.wcadv.org/2011-2012-legislative-session-review Read More