Hearsay and the Confrontation Clause
41 Pages Posted: 17 Oct 2016 Last revised: 21 Feb 2017
Date Written: October 28, 2016
This speech was delivered to the Wicomico Co. Bar Association on October 28th, 2016. It is an updated version of the 2012 speech, SSRN abstract number 2030313. http://ssrn.com/abstract=2030313
Overview: Only an out-of-court statement ("OCS") offered for the truth of the matter that was being asserted by the out-of-court declarant ("declarant") at the time when s/he made the OCS ("TOMA") = hearsay ("HS"). If evidence is not HS, the HS rule cannot exclude it. The Confrontation Clause also applies only to HS, but even then, only to its subcategory comprising "testimonial hearsay." Cross-references to "MD-EV" are to section numbers of L. MCLAIN, vols. 5, 6, and 6A of the Maryland Practice Series, MARYLAND EVIDENCE: STATE AND FEDERAL (Thomson Reuters 3d ed. 2013 and 2015-2016 pocket parts, which were compiled by Leonard Stamm, Esq.), which is available hardbound or on Westlaw. The books are most easily found on Westlaw by searching for "McLain" under "Secondary Sources" in the Maryland database. They contain much more detail than does vol. 7, which is softbound and provides a short overview of the Maryland Rules of Evidence. An earlier version of the charts in this handout is found in section 800:0 of the treatise. That version may be accessed on Westlaw by clicking on the PDF icon for each particular chart.
Keywords: criminal law, criminal procedure, Maryland, rules of evidence, hearsay, confrontation clause, out of court statements, constitutional law, hearsay exceptions, admissibility of evidence, exclusion of evidence, flow charts
JEL Classification: K14, K19, K39, K41, K49
Suggested Citation: Suggested Citation