1. CHAPTER 4, PART 2 OF 2: EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE P. JANICKE 2006

2. Chap. 4, part 22 RULE 802 EXCLUDES MOST HEARSAY BUT THERE ARE EXCEPTIONS CONTEXT: THE EVIDENCE IS HEARSAY, BUT IS ALLOWED IN ANYWAY

3. 2006Chap. 4, part 23 TWO GROUPS OF EXCEPTIONS TO THE RULE THAT HEARSAY EVIDENCE IS INADMISSIBLE GROUP OF EXCEPTIONS THAT APPLY EVEN IF DECLARANT IS AVAILABLE AS TRIAL WITNESS [RULE 803] –THESE ARE THOUGHT TO BE EXTRA RELIABLE FORMS OF EVIDENCE GROUP OF EXCEPTIONS THAT APPLY ONLY IF DECLARANT IS UNAVAILABLE AS TRIAL WITNESS [RULE 804]

4. UNRESTRICTED EXCEPTIONS

5. 2006Chap. 4, part 25 KEEP IN MIND -- WE DON’T NEED ANY EXCEPTION TO THE RULE IF WE HAVE A DEFINITIONAL EXCEPTION R801(d) –E.G.: STATEMENT IS AN ADMISSION; ALL YOU HAVE TO SHOW IS THE OTHER SIDE SAID IT

6. 2006Chap. 4, part 26 SO -- WE ARE HERE TALKING ABOUT WHERE THE DECLARANT WAS –ONE OF OUR OWN PEOPLE, or –A THIRD PARTY

7. 2006Chap. 4, part 27 (1) PRESENT SENSE IMPRESSION DECLARANT SAID SOMETHING ABOUT WHAT SHE WAS PERCEIVING AT THAT VERY TIME, OR IMMEDIATELY THEREAFTER –WITNESS: “HE SAID ‘I SEE THE TRUCK IS HEADING NORTHBOUND’ ” –WITNESS: “I SAID ‘HE IS COMING STRAIGHT THIS WAY’ ” –WITNESS: “SHE SAID ‘IT’S HOT IN HERE’ ”

8. 2006Chap. 4, part 28 (2) EXCITED UTTERANCE DECLARANT SAID SOMETHING ABOUT A STARTLING EVENT, WHILE UNDER THE EXCITEMENT CAUSED BY THE EVENT –OVERLAPS WITH (1), BUT HAS LONGER TIME FRAME -- THE EXCITEMENT MAY LAST FOR HOURS –TYPE (1) WAS FOR ANY KIND OF EVENT; TYPE (2) HAS TO BE STARTLING

9. 2006Chap. 4, part 29 EXAMPLES OF EXCITED UTTERANCES: TESTIMONY: “JACK SAID TO ME: ‘THE ROOF COLLAPSED!’ IT HAPPENED THREE HOURS BEFORE. HE WAS VERY UPSET.” TESTIMONY: “JILL SAID TO ME: ‘THE TRUCK PLOWED INTO THAT CAR TWENTY MINUTES AGO.’ ”

10. 2006Chap. 4, part 210 DECLARANT MUST HAVE PERSONALLY OBSERVED THE STARTLING EVENT IT IS OFTEN DIFFICULT TO PROVE THIS LATER THE JUDGE FINDS IT AS A FOUNDATION FACT

11. 2006Chap. 4, part 211 (3) THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL CONDITION OF DECLARANT A SUBSET OF (1) REDUNDANT IS INCLUDED FOR EMPHASIS THIS IS WHERE WE PUT DECLARATIONS OF INTENT, OFFERED TO PROVE LATER CONFORMING CONDUCT

12. 2006Chap. 4, part 212 EXAMPLES OF (3) TESTIMONY: HE SAID TO ME, “MY HEAD HURTS” TESTIMONY: I TOLD HIM, “I AM REALLY DEPRESSED” TESTIMONY: SHE SAID, “I PLAN TO LEAVE HOUSTON ON FRIDAY”

13. 2006Chap. 4, part 213 NO BELIEFS ALLOWED UNDER THIS EXCEPTION OUT-OF-COURT DECLARATIONS OF BELIEF ARE USUALLY NOT ALLOWED IN FOR THEIR TRUTH –TESTIMONY: X SAID TO ME, “I THINK JACK DID IT.” –TESTIMONY: I TOLD HER, “I BELIEVE MARIE IS SANE.” IF WE ALLOWED SUCH UTTERANCES TO BE TESTIFIED TO, THERE WOULD BE NO HEARSAY RULE LEFT

14. 2006Chap. 4, part 214 THEREFORE, WE ARE ADMITTING ONLY THE MOST BASIC LEVELS OF FEELING –JOY –PAIN –INTENT NOT THE UNDERLYING MOTIVATIONS OR CAUSES NOT THE ACTUAL OR EXPECTED CONDUCT OF OTHERS

15. 2006Chap. 4, part 215 (4) STATEMENTS TO PHYSICIANS WIDER GROUP OF STMTS. THAN MERE PHYSICAL, MENTAL, EMOTIONAL CONDITION HERE, ONSET INFO IS INCLUDED –WITNESS TESTIMONY: I HEARD HIM SAY TO THE DOCTOR: “THIS STARTED LAST MONTH” GENERAL CAUSE INFO INCLUDED –WITNESS TESTIMONY: I SAID TO THE DOCTOR: “IT BEGAN WHEN I ATE THOSE EGGS”

16. 2006Chap. 4, part 216 DIVIDING LINE: NO STATEMENTS AS TO FAULT –WIT.: HE SAID TO THE DOCTOR, “IT BEGAN AFTER I ATE THOSE EGGS THAT WERE BAD, WHICH IS PRETTY USUAL FOR THE MAIN STREET DINER” PROBABLY EVERYTHING AFTER “EGGS” WILL BE KEPT OUT –WIT.: HE SAID TO THE NURSE: “IT BEGAN WHEN JACK HIT ME WITH A HAMMER” WILL HAVE TO BE REPHRASED TO ELIMINATE JACK’S FAULT

17. 2006Chap. 4, part 217 KEY FOUNDATION FACT FOR (4): STATEMENT MUST HAVE BEEN MADE FOR PURPOSES OF DIAGNOSIS OR TREATMENT –THUS A VICTIM’S STATEMENT TO A DOCTOR HIRED BY POLICE TO FIND OUT WHAT HAPPENED OR WHO CULPRIT IS WOULD NOT QUALIFY –STATEMENTS DURING AN INSURANCE PHYSICAL WOULD NOT QUALIFY

18. 2006Chap. 4, part 218 ONCE AGAIN RECALL: ADVERSE PARTY’S STATEMENTS ARE NOT UNDER ANY OF THESE CONSTRAINTS

19. 2006Chap. 4, part 219 (5) PAST RECOLLECTION RECORDED DIFFERENT FROM MEMORY REFRESHING HERE THE WITNESS TESTIFIES HER MEMORY CANNOT BE REFRESHED –BUT IT WAS FRESH AT ONE TIME –AND SHE (OR A HELPER) MADE A RECORD OF IT AT THAT TIME

20. 2006Chap. 4, part 220 MECHANICS OF USING EXCEPTION (5) LAY FOUNDATION: –WITNESS CAN’T NOW RECALL –WITNESS AT ONE TIME COULD RECALL –WITNESS CAUSED RECORD TO BE MADE RECORD CAN THEN BE READ IN, BUT THE DOCUMENT CAN’T BE INTRODUCED EXCEPT BY OTHER SIDE

21. 2006Chap. 4, part 221 (6) BUSINESS RECORDS NEED NOT BE COMMERCIAL; ANY REGULAR ACTIVITY WILL QUALIFY ONLY APPLIES TO FACTS GENERATED INSIDE THE BUSINESS –REPORTS FROM OUTSIDE ARE NOT COVERED AND HAVE TO BE MASKED OUT

22. 2006Chap. 4, part 222 FOUNDATION FOR (6) IS COMPLEX FOUNDATION NEEDED: 1.REGULAR ACTIVITY GOING ON 2.THIS DOC. MADE IN THE REGULAR COURSE OF IT 3.MADE AT OR NEAR THE TIME OF EVENTS LISTED 4.MADE BY (OR VIA) A PERSON WITH ACTUAL KNOWLEDGE 5.WAS THE REGULAR PRACTICE TO KEEP RECORDS OF THIS TYPE

23. 2006Chap. 4, part 223 PRONGS (3) AND (4) COULD BE DIFFICULT TO PROVE IF CHALLENGED UNTIL RECENTLY, MOSTLY LAWYERS USED THE HABIT/ROUTINE PRACTICE RULE [R406] –WIT. DOESN’T REALLY KNOW WHAT HAPPENED ON THIS TRANSACTION –WIT. CAN SAY WHAT THE REGULAR PRACTICE OF THE BUSINESS IS RE. MAKING RECORDS

24. 2006Chap. 4, part 224 THE RULE CHANGES ADOPTED IN 1998 AND 2000 FEDERAL RULE 902 (11) WAS ADOPTED IN 2000, ON AFFIDAVIT PRACTICE TEXAS RULE 902 (10) IS SIMILAR, AND WAS ADOPTED IN 1998 THESE ARE AUTHENTICITY RULES, BUT THEY ARE REFERENCED IN 803(6) AS O.K. FOUNDATION METHOD

25. 2006Chap. 4, part 225 THE TEXAS RULE IS MORE ENLIGHTENED THE FEDERAL RULE SPECIFIES THAT THE AFFIANT SWEAR THE ENTRIES WERE MADE BY A PERSON WITH KNOWLEDGE, ETC. THE TEXAS RULE SPECIFIES THAT THE AFFIANT SWEAR IT’S THE USUAL PRACTICE TO HAVE THE ENTRIES MADE THAT WAY

26. 2006Chap. 4, part 226 (7) ABSENCE OF A BUSINESS ENTRY SERVES AS PROOF THAT THE EVENT DID NOT HAPPEN REQUIRES SHOWING OF THE USUAL PRACTICE OF THE ORGANIZATION

27. 2006Chap. 4, part 227 (8) OFFICIAL RECORDS LAW ENFORCEMENT RECORDS CAN’T BE USED IN A CRIMINAL CASE OTHER KINDS ARE O.K. ALL KINDS ARE FREQUENTLY USED IN CIVIL CASES BUT NOTE THE LIMITS >>>

28. 2006Chap. 4, part 228 THREE TYPES OF RECORDS ALLOWED 1.ONES THAT RECITE THE GENERAL ACTIVITIES OF THE OFFICE HIGHWAY CONSTRUCTION BIDDING HOW THE CENSUS IS TAKEN HOW THE I.R.S. CONDUCTS AN AUDIT

29. 2006Chap. 4, part 229 2.ONES THAT RECITE MATTERS OBSERVED PURSUANT TO DUTY IMPOSED BY LAW REAL ESTATE APPRAISALS DONE BUILDING INSPECTIONS PERFORMED MARRIAGE CEREMONIES PERFORMED DEATHS OBSERVED

30. 2006Chap. 4, part 230 3.FACTUAL FINDINGS FROM INVESTIGATIONS FAA AIR DISASTER INVESTIGATIONS CENTERS FOR DISEASE CONTROL INVESTIGATION OF EPIDEMICS BALLISTICS INVESTIGATIONS (CIVIL ONLY) FINGERPRINT CHECKS (CIVIL ONLY)

31. 2006Chap. 4, part 231 DIFFERENCE BETWEEN (2) MATTERS OBSERVED AND (3) INVESTIGATIONS: (2) COVERS DIRECT OBSERVATIONS BY OFFICERS –THIS EXCEPTION CAN’T BE USED BY EITHER SIDE IN CRIMINAL CASES FOR LAW ENFORCEMENT REPORTS –BUT COULD BE A STATE ADMISSION (3) CAN BE BASED ON INPUT FROM NON- OFFICIALS

32. 2006Chap. 4, part 232 THE RESTRICTIONS ON USE OF POLICE RECORDS DO NOT APPLY IF RULES OF EVID. DO NOT APPLY –SENTENCING –GRAND JURIES –HEARING ON REVOCATION OF PROBATION –BAIL PROCEEDINGS –WARRANTS [R 1101(d)(3) -- FED. RULES INAPPLICABLE; NO HEARSAY RULE, SO NO EXCEPTION NEEDED]

33. 2006Chap. 4, part 233 IN TEXAS COURTS THE RESTRICTIONS ON POLICE REPORTS ARE LIKEWISE NOT APPLICABLE WHERE THE ROLES IN GENERAL ARE NOT APPLICABLE, E.G.: SENTENCING Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) GRAND JURIES [R 101(d)(1)] HABEAS CORPUS “ BAIL “ SEARCH WARRANTS “

34. 2006Chap. 4, part 234 (18) LEARNED TREATISES FOUNDATION: –ACKNOWLEDGED AS AUTHORITATIVE BY TESTIMONY OF A WITNESS PROCEDURE: –READ IN RELEVANT PASSAGES –CAN’T PUT THE BOOK IN

35. 2006Chap. 4, part 235 (19-21) REPUTATION TOPICS ALLOWED RE.: –PERSONAL OR FAMILY HISTORY -- “WE ALL SAID ‘FRANK IS JOHN’S NEPHEW’” –BOUNDARIES -- “FOLKS IN THESE PARTS ALWAYS SAID ‘THE RANCH ENDED AT THE OLD OAK TREE’” –CHARACTER -- IN LIMITED INSTANCES, AS WE HAVE SEEN

36. 2006Chap. 4, part 236 (22) JUDGMENTS OF FELONY CONVICTIONS ADMISSIBLE TO PROVE ANY UNDERLYING ESSENTIAL FACT ONLY JUDGMENTS –NOT ARRESTS –NOT INDICTMENTS –NOT VERDICTS

37. HEARSAY EXCEPTIONS THAT ARE LESS RELIABLE: DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE

38. 2006Chap. 4, part 238 THOUGHT TO BE WEAKER RULES DRAFTERS (AND COMMON LAW) DEVELOPED A SET OF HEARSAY EXCEPTIONS THAT COULD BE USED ONLY WHEN THE DECLARANT IS UNAVAILABLE AT TRIAL A COMPROMISE BETWEEN OUTRIGHT EXCLUSION AND OUTRIGHT ADMISSIBILITY

39. 2006Chap. 4, part 239 MEANING OF “UNAVAILABLE” WITHOUT ANY CONNIVANCE BY PROPONENT, DECLARANT IS: –NOT FINDABLE –REFUSES TO ATTEND –REFUSES TO ANSWER EVEN WHEN DIRECTED BY COURT –HAS A LOSS OF MEMORY –IS DEAD –IS INCAPACITATED MENTALLY OR PHYSICALLY

40. 2006Chap. 4, part 240 FORMER TESTIMONY AT A HEARING OR DEPOSITION IN THIS OR ANOTHER CASE NOW-OPPONENT MUST HAVE HAD OPPORTUNITY AND MOTIVE TO CROSS-EXAMINE –DIRECTLY, or –THROUGH A PARTY WITH SIMILAR INTEREST (CIVIL CASES ONLY)

41. 2006Chap. 4, part 241 SOME THINGS THAT WON’T QUALIFY AFFIDAVITS [NOT A HEARING OR DEPOSITION; NO CHANCE TO CROSS-EXAMINE] GRAND JURY TESTIMONY [NO CHANCE TO CROSS-EXAMINE]

42. 2006Chap. 4, part 242 SOME THINGS THAT WILL QUALIFY TESTIMONY AT EARLIER TRIAL OF THIS CASE TESTIMONY AT A DEPOSITION IN THIS OR ANOTHER CASE (WHERE OPPONENT WAS PARTY) TESTIMONY AT A PRELIMINARY INJUNCTION HEARING IN THIS CASE

43. 2006Chap. 4, part 243 DYING DECLARATIONS BASIS: NO ONE WOULD FALSIFY WHILE SOON TO MEET HIS MAKER REQUIREMENTS: –HOMICIDE OR CIVIL CASE –DECLARANT THOUGHT HE WAS DYING –STATEMENT WAS RE. CAUSE OF DEATH

44. 2006Chap. 4, part 244 VICTIM’S RECOVERY DOESN’T MAKE A DYING DECLARATION INADMISSIBLE BUT THE VICTIM-DECLARANT HAS TO BE “UNAVAILABLE” AT TRIAL

45. 2006Chap. 4, part 245 EXAMPLE IN A HOMICIDE CASE: “JACK DID IT!!” IN A WRONGFUL DEATH ACTION: “BOB SHOT ME IN SELF-DEFENSE” IN A WRONGFUL DEATH ACTION: “I NEVER SHOULD HAVE EATEN THOSE OYSTERS”

46. 2006Chap. 4, part 246 THIRD PARTY ADMISSIONS STATEMENT THAT WAS AGAINST INTEREST –PECUNIARY –PENAL MADE BY A NON-PARTY MOST ARE OFFERED BY DEFENDANTS, CIVIL AND CRIMINAL, THROUGH WITNESSES –OFFERED TO DEFLECT BLAME

47. 2006Chap. 4, part 247 EXAMPLES OF THIRD-PARTY ADMISSIONS OFFERED BY D, THROUGH WITNESSES: TESTIMONY: “X SAID: ‘SORRY WE BLEW UP YOUR HOUSE’” TESTIMONY: “X SAID: ‘OUR MAN WIRED IT WRONG’” X’S WRITING, RECALLING AUTOS FOR DEFECTIVE FUEL LINES

48. 2006Chap. 4, part 248 RESTRICTION ON THIRD- PARTY ADMISSIONS WHEN OFFERED TO EXCULPATE A CRIMINAL ACCUSED: –MUST HAVE CORROBORATING CIRCUMSTANCES THAT “CLEARLY INDICATE ITS TRUSTWORTHINESS” –MOST CASES HOLD THEM INADMISSIBLE BASED ON A GENERAL MISTRUST OF THE CRIMINAL COMMUNITY

49. 2006Chap. 4, part 249 OUT OF COURT STATEMENT RE. FAMILY HISTORY EXAMPLE: TESTIMONY THAT “MY MOTHER TOLD ME I WAS HARRY’S SON” EXAMPLE: TESTIMONY THAT “HIS FATHER TOLD ME HE WAS BORN IN THE NAVAL HOSPITAL AT NEWPORT” NOTE: RECALL THAT DECLARANT MUST BE UNAVAILABLE

50. 2006Chap. 4, part 250 DECLARATIONS BY PERSONS WHO HAVE SINCE BEEN “RUBBED OUT” IF THE REMOVER IS A PARTY, THESE ARE NOW ADMISSIBLE AGAINST HIM EXAMPLES: –EARLIER AFFIDAVIT –EARLIER GRAND JURY TESTIMONY –EARLIER ORAL STATEMENT –EARLIER LETTER

51. 2006Chap. 4, part 251 DECLARANTS ARE IMPEACHABLE THEY ARE TREATED JUST LIKE WITNESSES TO PREVENT ABUSIVE USE OF EXCEPTIONS SAME RULES OF IMPEACHMENT

52. 2006Chap. 4, part 252 THE “CATCHALL”: RULE 807 FOR THE “ALMOST” SITUATIONS FOR THE UNPREPARED LAWYER WHO DOESN’T KNOW HOW TO REFUTE A HEARSAY OBJECTION FOR THE JUDGE WHO WANTS TO BE BULLETPROOF ON APPEAL

53. 2006Chap. 4, part 253 REQUIREMENTS: EVIDENCE OF A “MATERIAL FACT” –??? MORE PROBATIVE THAN ANYTHING ELSE REASONABLY AVAILABLE –A HAVEN FOR THE UNPREPARED IN THE INTERESTS OF JUSTICE ADVANCE NOTICE REQUIRED

54. 2006Chap. 4, part 254 COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS A PROBLEM WITH SIXTH AMENDMENT CONFRONTATION CLAUSE, WHEN USED AGAINST A CRIMINAL D –NOT AN EXCEPTION KNOWN AT 1791 –NOT “FIRMLY ROOTED” USUALLY SEEN IN CIVIL CASES