CHAP. 3 : INTRODUCTION TO THE HEARSAY RULE P. JANICKE 2018

ONLY “STATEMENTS” CAN BE HEARSAY EVIDENCE – CAN’T BE REVEALED IN COURT

MUCH HUMAN DISCOURSE IS NON-STATEMENT UTTERANCES statements

MEANINGS UTTERANCE = ANYTHING WE SAY OR WRITE STATEMENT = UTTERANCE THAT RECITES A FACT ERGO: SOME UTTERANCES ARE STATEMENTS, BUT OTHERS ARE NOT

THE LAW ONLY STATEMENTS MADE OUT OF COURT CAN POSSIBLY BE HEARSAY EVIDENCE NON-STATEMENTS CAN BE REVEALED AT TRIAL

Chap. 3 -- Intro to Hearsay ??? “HE SAID ...” “SHE SAID ...” “I SAID ...” WE DON’T KNOW IF THESE WERE STATEMENTS COULD HAVE BEEN “GET OUT OF HERE” or “HEY! 2018 Chap. 3 -- Intro to Hearsay

EXAMPLES OF OUT-OF-COURT STATEMENTS WIT.: “SHE SAID: ‘IT IS RAINING’” WIT.: “HE SENT ME AN EMAIL SAYING: ‘THE SUN ROSE AT ABOUT 6:00’” WIT.: “SHE TOLD ME SHE HAD A GUN IN HER HAND”

MOST DOCUMENTS CONTAIN STATEMENTS IF SO, THEY ARE HEARSAY, AND PRIMA FACIE INADMISSIBLE CAN BE EXCEPTIONS ALLOWING THIS KIND OF HEARSAY TO COME IN IT IS STILL HEARSAY, BUT ADMISSIBLE

WHEN AN OPPOSING LAWYER PICKS UP A PIECE OF PAPER, YOU SHOULD THINK “H”

ALL OF THESE WOULD BE OK IF THE SAME FACTS WERE TESTIFIED TO IN COURT: WIT.: “IT WAS RAINING” WIT.: “THE SUN ROSE AT ABOUT 6:00” WIT.: “SHE HAD A GUN IN HER HAND”

EXAMPLES OF HEARSAY EVIDENCE IN GENERAL: LETTERS ARE USUALLY INADMISSIBLE POLICE REPORTS ARE INADMISSIBLE NEWSPAPER ACCOUNTS ARE INADMISSIBLE 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay RATIONALE: WE WANT WITNESSES TO TELL US FIRST-HAND ON THE STAND WHAT THEY SAW AND DID OUT-OF-COURT STATEMENTS ARE DIFFICULT TO CROSS-EXAMINE (ESPECIALLY IF SPEAKER IS NOT AT TRIAL) 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay HOW IT WORKS: CHEMIST FROM THE POLICE LAB TESTIFIES TO THE BLOOD TYPE; THE WRITTEN REPORT OF BLOOD TYPE IS NOT ADMITTED HOMEOWNER TESTIFIES THERE WAS AN INTRUDER; NOT WHAT SHE TOLD THE POLICE; NOT WHAT HER WITNESS STATEMENT TO THE POLICE SAID BORROWER TESTIFIES LOAN PAYMENTS WERE MADE ON TIME; HER LETTER TO BANK SAYING SO IS NOT ADMITTED 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay THE MAIN EXCEPTION TO WHAT IS HEARSAY: STATEMENTS OF A PARTY, WHEN OFFERED BY AN ADVERSARY PARTY CAN BE INTRODUCED BY THE OPPONENT, VIA ANY WITNESS WHO KNOWS WHAT THE PARTY SAID CORPORATE DOCUMENTS (LETTERS; MEMOS) OF ONE SIDE ARE ADMISSIBLE BY THE OTHER SIDE 2018 Chap. 3 -- Intro to Hearsay

EXAMPLE: WHAT MR. JONES SAID ISSUE: ADMISSIBILITY IN THE CASE OF JONES v. SMITH 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay ADMISSIBLE HIGH UP BENCH (JUDGE) JONES JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay ADMISSIBLE HIGH UP BENCH (JUDGE) BYSTANDER JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay ADMISSIBLE HIGH UP BENCH (JUDGE) SMITH JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay NOT ADMISSIBLE. WHY? HIGH UP BENCH (JUDGE) SMITH JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay NOT ADMISSIBLE. WHY? HIGH UP BENCH (JUDGE) BYSTANDER JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay NOT ADMISSIBLE. WHY? HIGH UP BENCH (JUDGE) JONES JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay THE BASICS A PARTY, OR ANY OTHER WITNESS, CAN ALWAYS TESTIFY TO WHAT HAPPENED IF THE WITNESS HAS FIRST-HAND KNOWLEDGE WITNESSES CAN ALSO TESTIFY WHAT THE PARTY X SAID, BUT ONLY IF ASKED BY OPPOSING PARTY Y’S LAWYER PARTY X’S LAWYER CANNOT ASK ANY WITNESS WHAT HER CLIENT X OR A BYSTANDER SAID 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay NOTE THAT CONFESSIONS ARE STATEMENTS OF FACT BY “A PARTY” (DEFENDANT) HENCE NOT HEARSAY WHEN OFFERED BY THE PROSECUTION PROS. CAN ASK A BYSTANDER WHAT D. SAID PROS. CAN ASK A POLICEMAN WHAT D. SAID (IF HE HEARD IT) IF D. TESTIFIES AT TRIAL, PROS. CAN ASK D. WHAT D. SAID 2018 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay A VICTIM IS NOT A PARTY IN A CRIMINAL CASE HENCE, VICTIM’S OUT-OF-COURT STATEMENTS TO POLICE, NEIGHBORS, ETC., ARE USUALLY NOT ALLOWED TO BE INTRODUCED AT TRIAL BY EITHER SIDE VICTIM CAN OF COURSE TESTIFY TO WHAT HAPPENED 2018 Chap. 3 -- Intro to Hearsay