CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE?

CHAP. 3 -- RESUMED:THE RULE EXCLUDING HEARSAY – WHAT IS

HEARSAY EVIDENCE?

P. JANICKE2010

2010 Hearsay -- resumed 2

BASIC OPERATION OF THE RULE EXCLUDING HEARSAY

1. A WITNESS SHOULD TESTIFY WHAT SHE SAW2. A WITNESS SHOULD USUALLY NOT TESTIFY

TO WHAT ANYONE SAID OR WROTE BEFORE TRIAL

– THIS INCLUDES WHAT THE WITNESS HERSELF SAID OR WROTE

3. A DOCUMENT SHOULD NOT BE ADMITTED TO TELL US WHAT HAPPENED

2010 Chap. 3 -- hearsay resumed 3

MEANING OF HEARSAY• NO TESTIMONY IS ALLOWED

CONCERNING ANY CONVERSATION THAT:– CONTAINS A “STATEMENT” [RECITATION

OF PRESENT OR PAST FACT]– WAS MADE OUTSIDE THE PRESENT

HEARING– IS OFFERED TO HELP PROVE THAT THE

FACT STATED IN THE STATEMENT IS TRUE


RULE 802 SAYS OUT-OF-COURT STATEMENTS USUALLY CANNOT

BE TESTIFIED TO

• NOR CAN ANY DOCUMENT CONTAINING A STATEMENT OF FACT BE INTRODUCED, GENERALLY

• BUT: SUCH TESTIMONY OR DOCUMENT MIGHT FIT UNDER A HEARSAY EXCEPTION, AND CAN THEN BE ADMITTED


• MOST DOCUMENTS CONTAIN STATEMENTS, AND THEREFORE ARE LIKELY INADMISSIBLE– IF THE ONLY RELEVANCE IS TO ESTABLISH

TRUTH OF THE STATEMENTS, THEY CAN’T COME IN

• DEFINITIONAL EXCEPTION: THE OTHER SIDE’S DOCUMENTS AREN’T HEARSAY IF OFFERED BY YOU– THEY COME UNDER THE DEFINITIONAL

EXCEPTION FOR “ADMISSIONS” BY PARTY OPPONENT


• EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE: A WITNESS CAN TESTIFY WHAT HE OR SOMEONE ELSE SAID (OR WROTE) IF:– THE UTTERANCE FITS A DEFINITIONAL

EXCEPTION [R801(d)], OR – THE UTTERANCE FITS AN EXCEPTION

[RULES 803, 804] TO THE RULE EXCLUDING HEARSAY EVIDENCE


TO BE HEARSAY, UTTERANCE MUST CONTAIN A “STATEMENT”• RECITATION OF A PRESENT OR PAST

FACT [R 801 (a)] OR OPINION • CALLED “ASSERTION” IN THE RULE• NOT ALL OUT OF COURT UTTERANCES

CONTAIN STATEMENTS– PROMISES (“YOU’LL LIKE IT”)– COMMANDS (“GET OUT OF HERE”)

• SOME DO– “IT’S SUNNY HERE”– “IT RAINED YESTERDAY”– “I LOVE YOU”


MOST DOCUMENTS ARE LOADED WITH STATEMENTS AND THUS PRESUMPTIVELY

CONTAIN HEARSAY– E.G.: MEMO THAT SAYS: “WE GOT SOME

FLOODING”– E.G.: LETTER THAT SAYS: “YOU AND I MET

LAST MONTH ON THE SUBJECT OF A MERGER”

– ALL DOCUMENTS SHOULD BE THOUGHT OF AS PRESUMPTIVELY CONTAINING HEARSAY, AND THEREFORE INADMISSIBLE

– MAIN EXCEPTIONS: • OTHER SIDE’S WRITINGS• OPERATIVE FACT DOCUMENTS (CONTRACT;

LEASE)


NOTE: THE SAME FACTS CAN AND SHOULD BE TESTIFIED TO BY A LIVE

WITNESS WITH KNOWLEDGE• WITNESS CAN TESTIFY “WE GOT SOME

FLOODING”• WITNESS CAN TESTIFY “WE MET ON THE

SUBJECT OF A MERGER”

THIS IS THE WHOLE POINT OF THE HEARSAY RULE– IT’S THE MANNER OF PROOF THAT IS BLOCKED BY

THE HEARSAY RULE– WE WANT TO HEAR IT LIVE, AND SUBJECT TO CROSS-

EXAMINATION


THE PROBLEM OF IMPLIED STATEMENTS

• EXAMPLE: TESTIMONY THAT DECLARANT SAID “YES!” AFTER OPENING A LETTER

• LITERALLY: NO STATEMENT– DOESN’T ASSERT ANY FACT

• IMPLIEDLY: THE UTTERANCE SAYS: “I LIKE WHAT IS IN THIS LETTER.” A STATEMENT


LEGAL TREATMENT• FOR OUT-OF-COURT WORD UTTERANCES,

JUDGE MUST ANALYZE BOTH THE EXPRESS AND IMPLIED SENSES TO SEE IF THERE IS A STATEMENT

• FOR CONDUCT, WE IGNORE IMPLICATIONS AND CONSIDER ONLY WHETHER THE ACTOR WAS INTENDING TO NARRATE (e.g., BY SIGN LANGUAGE)


EXAMPLE:• TESTIMONY:

– HE OPENED LETTER– HE THEN JUMPED IN THE AIR

• NOT A “STATEMENT” FOR HEARSAY PURPOSES

• CAN’T BE KEPT OUT VIA THE RULE EXCLUDING HEARSAY [R802]


THE SPECIAL RULE FOR CONDUCT -- WHEN IT IS A

STATEMENT• IN A FEW RARE INSTANCES, CONDUCT IS

REGARDED AS A STATEMENT FOR HEARSAY PURPOSES

• ONLY WHEN ACTOR’S PRIMARY PURPOSE WAS DIRECTLY TO NARRATE PRESENT OR PAST FACTS [R 801 (a)]

• IMPLICATIONS DON’T COUNT• ACTS THAT MERELY SIGNAL FEELINGS

OR BELIEFS DON’T COUNT


CONDUCT AS A STATEMENT: WE MEAN DIRECT SIGN LANGUAGE; NOT

SIGNALING OF FEELINGS OR BELIEFS:1. NOD OR SHAKE OF HEAD FOR YES OR NO2. POINTING TO IDENTIFY A PERSON,

PLACE, OR THING3. REENACTMENTS

• NEARLY ALL OTHER CONDUCT IS NOT PRIMARILY INTENDED TO TELL A STORY, AND IS NOT TREATED AS A “STATEMENT,” EVEN THOUGH LOADED WITH IMPORTANT IMPLICATIONS


EXAMPLE OF CONDUCT THAT IS NOT A STATEMENT

• ACTION ON MARINE INSURANCE POLICY– MAIN ISSUE: SEAWORTHINESS OF

VESSEL LATER LOST AT SEA– EVIDENCE: TESTIMONY THAT AN

EXPERIENCED CAPTAIN INSPECTED THOROUGHLY, THEN TOOK HIS FAMILY ABOARD AND SET SAIL


FURTHER EXAMPLE OF CONDUCT THAT IS NOT A

STATEMENT• WILL PROBATE

– MAIN ISSUE: TESTATOR’S SANITY– EVIDENCE: TESTIMONY THAT LOCALS

SOMETIMES LAUGHED AT HIM, CHECKED UP ON HIM, WOULD NOT ENGAGE HIM IN ANY SERIOUS ENTERPRISE


FURTHER EXAMPLES OF CONDUCT THAT IS NOT A STATEMENT (NON-

NARRATIVE)• PROMOTING A LIEUTENANT TO CAPTAIN• GIVING AN EMPLOYEE A BONUS• PUTTING PATIENT IN I.C.U.• THROWING WINE IN HIS FACE

– AND LEAVING THE RESTAURANT• APPLAUDING AT END OF A CONCERT


FURTHER EXAMPLES OF CONDUCT THAT IS NOT A STATEMENT (NON-

NARRATIVE)

• “THE FINGER” [PROBABLY A REQUEST OR SUGGESTION, NOT A STATEMENT]

• PILING UP OTHER PERSON’S BELONGINGS IN MIDDLE OF FLOOR OR SIDEWALK

• BURNING THE FLAG


CAN YOU THINK OF ANOTHER EXAMPLE OF CONDUCT THAT

IS A STATEMENT?

• [OTHER THAN SIGNING, NODDING HEAD, POINTING, REENACTMENTS]

• IT HAS TO BE AN ACTION THAT DIRECTLY STATES SOMETHING (no implications allowed) ----– eye contact + [H, C, DoKn, CaSe/CaHe, WKG OK]


WORDS THAT COLOR CONDUCT ARE TREATED AS PART OF THE

CONDUCT• NOT A STATEMENT

– MAIN PURPOSE IS NOT TO TELL A STORY, BUT TO GET ON WITH LIFE

• EXAMPLE: HANDING OVER CASH, AND SAYING “THIS IS FOR THE JULY RENT”

• EXAMPLE: HANDING CAR KEYS, AND SAYING “IT’S IN THE GARAGE”


RULES OF THUMB

1. MIXED WORDS AND CONDUCT:– TREAT AS CONDUCT (FIND ACTOR’S

PURPOSE; IGNORE IMPLICATIONS)

2. IF YOU CAN’T DECIDE ACTOR’S INTENTION (WAS SHE SIGNING/NARRATING?):

– TREAT AS A NON-STATEMENT


HANDLING VERY SHORT SETS OF WORDS

– “CORONA” ON BEER MUG– “PORSCHE” ON CAR– “PLAZA CLUB RESTAURANT”– LAUNDRY MARK “JAN”– “UNIVERSITY OF HOUSTON” ON

ENTRANCEWAY• THESE ARE REGARDED AS MERE

MARKERS, NOT STATEMENTS• THEREFORE ARE NOT HEARSAY


• PROB. 3A, 3B, CHECK CASE


“OFFERED TO PROVE THE TRUTH OF THE STATEMENT”

• SOME OUT-OF-COURT STATEMENTS ARE ELICITED AT TRIAL FOR OTHER REASONS, AND ARE THEREFORE NOT HEARSAY


1. IMPEACHING A WITNESS– E.G.: PRIOR INCONSISTENT

STATEMENT– DOES NOT COME IN FOR ITS TRUTH

NOTE: IF THE PROPONENT ALSO WANTS IT IN FOR ITS TRUTH, A DEFINITIONAL EXCEPTION OR RULE EXCEPTION HAS TO BE FOUND


2. WORDS THAT ARE THEMSELVES AN ELEMENT OF THE CASE– E.G.: FALSE OFFICIAL STATEMENT– E.G.: OFFER AND ACCEPTANCE– E.G.: WARRANTIES

– SOMETIMES CALLED “RES GESTAE”– SOMETIMES CALLED WORDS THAT ARE

AN OPERATIVE FACT– M-K CALL THIS A “VERBAL ACT”


3. PROVING THE LISTENER’S STATE OF MIND THAT IS AN ELEMENT OF THE CASE/DEFENSE

• TESTIMONY THAT X SAID TO D: “I HAVE A GUN THAT IS POINTED AT YOU”– SELF-DEFENSE REQUIRES PROOF OF ACTOR’S

STATE OF MIND– TRUTH OF THE STATEMENT HAS NOTHING TO DO

WITH IT

• TESTIMONY THAT X SAID TO D: “THESE T.V. SETS ARE STOLEN” – IF THE TRIAL IS FOR RECEIVING, KNOWLEDGE IS

AN ELEMENT– CAVEAT: LIMITED OFFER WILL BE ENFORCED!


• TESTIMONY THAT X SAID TO D: “THE BRAKES ON YOUR CAR ARE BAD” OFFERED TO SHOW D’S NEGLIGENCE IN DRIVING THE CAR– NEGLIGENCE IS A STATE OF MIND


• TESTIMONY THAT X SAID TO D: “THE BRAKES ON MY CAR ARE BAD” OFFERED TO SHOW ASSUMPTION OF RISK IN RIDING IN THE CAR– ASSUMPTION OF RISK IS A STATE OF

MIND


• PROB. 3C, 3D, 3E, 3F, 3G, 3H, 3I, 3J, SINGER, 3K, PACELLI, 3M, BETTS.


THE HEARSAY QUIZ IN M-K[pp. 182-184]

• APPLY THE DEFINITIONAL EXCEPTIONS IN R801(d) IF APPLICABLE

• SOME LAWYERS START WITH 801(d) ANALYSIS, TO SAVE TIME– IF YOU FIND IT IN 801(d), IT CAN’T BE

HEARSAY– DON’T WORRY ABOUT WHY IT’S OFFERED


SEQUENCE1. CHECK 801(d) – NOT HEARSAY2. IS THE WIT. TESTIFYING TO A

STATEMENT?3. IS THE TEST. OFFERED TO PROVE

THAT THE STMT. WAS TRUE?• IF SO, THE TEST. IS BRINGING IN

HEARSAY4. IS THERE AN APPLICABLE

EXCEPTION TO THE RULE?

CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE?

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Transcript of CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE?