1. CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE? P. JANICKE 2012

2. BASIC OPERATION OF THE RULE EXCLUDING HEARSAY 1.A WITNESS SHOULD TESTIFY WHAT SHE SAW 2.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

3. 2012 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

4. 2012 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

5. 2012 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

6. 2012 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

7. 2012 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”

8. 2012 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)

9. 2012 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

10. 2012 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

11. 2012 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)

12. 2012 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]

13. 2012 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)]

14. 2012 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 NO 2.POINTING TO IDENTIFY A PERSON, PLACE, OR THING 3.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

15. 2012 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

16. 2012 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

17. 2012 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

18. 2012 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

19. 2012 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 IS INTENDED TO DIRECTLY STATE SOMETHING ---- –eye contact + [H, C, DoKn, CaSe/CaHe, WKG OK]

20. 2012 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”

21. 2012 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

22. 2012 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

23. 2012 23 PROBLEMS/CASES 3A 3B CHECK

24. 2012 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

25. 2012 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

26. 2012 26 2.WORDS THAT ARE THEMSELVES A NECESSARY ELEMENT OF THE CASE –E.G.: FALSE OFFICIAL STATEMENT –E.G.: OFFER AND ACCEPTANCE IN CONTRACT CASE –E.G.: WARRANTIES IN BREACH OF WARRANTY CASE –SOMETIMES CALLED “RES GESTAE” –SOMETIMES CALLED WORDS THAT ARE AN “OPERATIVE FACT” –M-K CALL THIS A “VERBAL ACT”

27. 2012 27 3.PROVING THE LISTENER’S STATE OF MIND THAT IS RELEVANT TO THE CASE OR DEFENSE, i.e., WHERE STATE OF MIND MATTERS 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!

28. 2012 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 CAN AN UNCONSCIOUS PERSON ACT “NEGLIGENTLY”? NO.

29. 2012 29 TESTIMONY THAT X SAID TO PLAINTIFF: “THE BRAKES ON MY CAR ARE BAD” OFFERED TO SHOW PLAINTIFF’S ASSUMPTION OF RISK IN RIDING IN THE CAR –ASSUMPTION OF RISK IS A STATE OF MIND CAN AN UNCONSCIOUS PERSON ASSUME A RISK WHILE UNCONSCIOUS? NO.

30. 2012 30 PROBLEMS/CASES 3C 3D 3E 3F 3G 3H 3I (cont’d)

31. 3J SINGER 3K PACELLI 3M BETTS 201231

32. 2012 32 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

33. 2012 33 SEQUENCE 1.CHECK 801(d) – NOT HEARSAY 2.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 HEARSAY 4.IS THERE AN APPLICABLE EXCEPTION TO THE RULE?

34. M-K HEARSAY QUIZ, Q&A ---- 201234