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
2010 Chap. 3 -- hearsay resumed 4
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
2010 Chap. 3 -- hearsay resumed 5
• 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
2010 Chap. 3 -- hearsay resumed 6
• 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
2010 Chap. 3 -- hearsay resumed 7
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”
2010 Chap. 3 -- hearsay resumed 8
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)
2010 Chap. 3 -- hearsay resumed 9
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
2010 Chap. 3 -- hearsay resumed 10
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
2010 Chap. 3 -- hearsay resumed 11
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)
2010 Chap. 3 -- hearsay resumed 12
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]
2010 Chap. 3 -- hearsay resumed 13
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
2010 Chap. 3 -- hearsay resumed 14
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
2010 Chap. 3 -- hearsay resumed 15
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
2010 Chap. 3 -- hearsay resumed 16
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
2010 Chap. 3 -- hearsay resumed 17
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
2010 Chap. 3 -- hearsay resumed 18
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
2010 Chap. 3 -- hearsay resumed 19
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]
2010 Chap. 3 -- hearsay resumed 20
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”
2010 Chap. 3 -- hearsay resumed 21
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
2010 Chap. 3 -- hearsay resumed 22
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
2010 Chap. 3 -- hearsay resumed 23
• PROB. 3A, 3B, CHECK CASE
2010 Chap. 3 -- hearsay resumed 24
“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
2010 Chap. 3 -- hearsay resumed 25
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
2010 Chap. 3 -- hearsay resumed 26
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”
2010 Chap. 3 -- hearsay resumed 27
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!
2010 Chap. 3 -- hearsay resumed 28
• 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
2010 Chap. 3 -- hearsay resumed 29
• 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
2010 Chap. 3 -- hearsay resumed 30
• PROB. 3C, 3D, 3E, 3F, 3G, 3H, 3I, 3J, SINGER, 3K, PACELLI, 3M, BETTS.
2010 Chap. 3 -- hearsay resumed 31
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
2010 Chap. 3 -- hearsay resumed 32
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?
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