1. CHAPTER 4, PART 2 OF 3: EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE
P. JANICKE
2012

2. RULE 802 EXCLUDES MOST HEARSAY
BUT THERE ARE EXCEPTIONS
CONTEXT: THE EVIDENCE IS HEARSAY, BUT IS ALLOWED IN ANYWAY
2012
Chap. 4, part 2

3. TWO GROUPS OF EXCEPTIONS TO THE RULE THAT HEARSAY EVIDENCE IS INADMISSIBLE
GROUP OF EXCEPTIONS THAT APPLY WHETHER OR NOT THE 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]
2012
Chap. 4, part 2

4. UNRESTRICTED EXCEPTIONS

5. KEEP IN MIND --
WE DON’T NEED ANY EXCEPTION TO THE EXCLUSIONARY 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
2012
Chap. 4, part 2

6. SO -- WE ARE HERE TALKING ABOUT WHERE THE DECLARANT WAS
ONE OF OUR OWN PEOPLE, or
A THIRD PARTY
2012
Chap. 4, part 2

7. (1) PRESENT SENSE IMPRESSION
TESTIMONY THAT --
DECLARANT SAID SOMETHING ABOUT WHAT SHE WAS PERCEIVING AT THAT VERY TIME, OR IMMEDIATELY THEREAFTER
2012
Chap. 4, part 2

8. EXAMPLE
WITNESS: “HE SAID ‘I SEE THE TRUCK IS HEADING NORTHBOUND’ ” OFFERED TO HELP ESTABLISH THAT THE TRUCK WAS HEADING NORTH
A STATEMENT; OFFERED TO PROVE THE TRUTH OF THE STATEMENT
IT IS HEARSAY
IT IS ADMISSIBLE
2012
Chap. 4, part 2

9. EXAMPLE WITNESS: “I SAID ‘HE IS COMING STRAIGHT THIS WAY’ ”
OFFERED TO SHOW THE PERSON WAS APPROACHING THE SPEAKER
IS HEARSAY
IS ADMISSIBLE
2012
Chap. 4, part 2

10. EXAMPLE WITNESS: “SHE SAID ‘IT’S HOT IN HERE’ ”
OFFERED TO HELP ESTABLISH THE ROOM WAS WARM
IS HEARSAY
IS ADMISSIBLE
2012
Chap. 4, part 2

11. (2) EXCITED UTTERANCE TESTIMONY THAT --
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
2012
Chap. 4, part 2

12. 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.’ ”
2012
Chap. 4, part 2

13. DECLARANT MUST HAVE PERSONALLY OBSERVED THE STARTLING EVENT
IT IS OFTEN DIFFICULT TO PROVE THIS LATER
THE JUDGE FINDS IT AS A FOUNDATION FACT
2012
Chap. 4, part 2

14. (3) THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL CONDITION OF DECLARANT
COULD BE VIEWED AS A SUBSET OF (1), PRESENT SENSE IMPRESSION, BUT FOCUSING ON INTERNAL FEELINGS AND THOUGHTS
MANY SITUATIONS CAN BE ANALYZED UNDER EITHER (3) OR (1), WITH SAME RESULT
2012
Chap. 4, part 2

15. HE SAID HE INTENDED TO DO IT; THEREFORE, LIKELY HE DID DO IT
** THIS IS WHERE WE PUT TESTIMONY ON DECLARATIONS OF INTENT, OFFERED TO ESTABLISH LATER CONFORMING CONDUCT **
HE SAID HE INTENDED TO DO IT; THEREFORE, LIKELY HE DID DO IT
2012
Chap. 4, part 2

16. 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”
ADMISSIBLE TO SHOW THE PLAN
ALSO ADMISSIBLE TO SHOW THE FRUITION OF THE PLAN! >>>
2012
Chap. 4, part 2

17. WE KNOW THE INTENT WAS TO ADOPT THE RULE OF HILLMON
THE LANGUAGE OF 803(3) DOESN’T REALLY ADDRESS USING THE STATEMENT TO SHOW CONFORMING CONDUCT
WE KNOW THE INTENT WAS TO ADOPT THE RULE OF HILLMON
2012
Chap. 4, part 2

18. 803(3) INCLUDES STATEMENTS OF INTENT THAT INVOLVE ADDITIONAL PERSONS (JOINT PLAN)
AS IN HILLMON
BUT NOT A STATEMENT OF A PLAN INVOLVING ONLY A THIRD PERSON’S CONDUCT
2012
Chap. 4, part 2

19. 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.”
2012
Chap. 4, part 2

20. THEREFORE, WE ARE ADMITTING ONLY THE MOST BASIC LEVELS OF FEELING
JOY
PAIN
INTENT [PLAN]
NOT THE ACTUAL OR EXPECTED CONDUCT OF OTHERS ACTING ALONE
2012
Chap. 4, part 2

21. EXAMPLE
TESTIMONY: “X SAID HE WAS GOING TO HEAD FOR NEW YORK, IN ORDER TO GET AWAY FROM THE GANGSTERS WHO HAD BEEN PURSUING HIM. HE FELT THEY WOULD KILL HIM FOR SURE IF HE STAYED HERE.”
[GREEN TEXT IS INADMISSIBLE; GOES BEYOND DECLARANT’S PLAN AND MOTIVATION; ORANGE TEXT IS BORDERLINE]
2012
Chap. 4, part 2

22. PROBLEMS/CASES Nutall Arnold Hillmon Pheaster Blake Petrocelli
Melendez-Diaz
2012
Chap. 4, part 1

23. (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”
2012
Chap. 4, part 2

24. DIVIDING LINE: NO STATEMENTS AS TO FAULT, UNLESS NEEDED MEDICALLY
WIT. DOCTOR: HE TOLD ME “IT BEGAN WHEN JACK HIT ME WITH A HAMMER”
WILL HAVE TO BE REPHRASED TO ELIMINATE JACK’S FAULT
2012
Chap. 4, part 2

25. ANOTHER EXAMPLE:
WIT. TESTIFIES: “I HEARD HIM SAY TO THE DOCTOR, ‘IT BEGAN AFTER I ATE THOSE EGGS THAT WERE BAD, WHICH IS PRETTY USUAL FOR THE MAIN STREET DINER’”
THE GREEN PART IS UNNECESSARY FOR DIAGNOSIS OR TREATMENT, AND WILL BE KEPT OUT; ORANGE TEXT IS BORDERLINE
2012
Chap. 4, part 2

26. 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
2012
Chap. 4, part 2

27. ONCE AGAIN RECALL: ADVERSE PARTY’S STATEMENTS
ARE NOT UNDER ANY OF THESE CONSTRAINTS
DO NOT NEED A HEARSAY EXCEPTION
CAN BE ADMITTED BY THE OPPOSING PARTY IN FULL, UNEXPURGATED VERSION
2012
Chap. 4, part 2

28. (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
2012
Chap. 4, part 2

29. 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
2012
Chap. 4, part 2

30. (6) BUSINESS RECORDS
NEED NOT BE COMMERCIAL; ANY REGULAR ACTIVITY WILL QUALIFY
CHURCH
BOOK CLUB
ONLY APPLIES TO FACTS GENERATED INSIDE THE BUSINESS
REPORTS FROM OUTSIDE ARE NOT COVERED AND HAVE TO BE MASKED OUT
2012
Chap. 4, part 2

31. FOUNDATION FOR (6) IS COMPLEX
FOUNDATION NEEDED:
REGULAR ACTIVITY GOING ON
THIS DOC. MADE IN THE REGULAR COURSE OF IT
MADE AT OR NEAR THE TIME OF EVENTS LISTED
MADE BY (OR VIA) A PERSON WITH ACTUAL KNOWLEDGE
WAS THE REGULAR PRACTICE TO KEEP RECORDS OF THIS TYPE
2012
Chap. 4, part 2

32. 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
2012
Chap. 4, part 2

33. THE RULE CHANGES ADOPTED IN 1998 AND 2000
FEDERAL RULE 902 (11) WAS ADOPTED IN 2000, RE. 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 TO REMOVE HEARSAY PROBLEMS
2012
Chap. 4, part 2

34. 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
2012
Chap. 4, part 2

35. CAUTION DO IT THE TEXAS WAY, EVEN IN FEDERAL COURT
MUCH SAFER FOR THE AFFIANT [AND ULTIMATELY FOR YOU]
NOTE THE RECENT SCANDAL ABOUT MORTGAGE FORECLOSURE SIGNATURES
2012
Chap. 4, part 2

36. (7) ABSENCE OF A BUSINESS ENTRY
SERVES AS PROOF THAT THE EVENT DID NOT HAPPEN
REQUIRES SHOWING OF THE USUAL PRACTICE OF THE ORGANIZATION
2012
Chap. 4, part 2

37. PROBLEMS/CASES
Exercise #12
2012
Chap. 4, part 2

38. (8) OFFICIAL RECORDS and (9) VITAL STATISTICS 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
2012
Chap. 4, part 2

39. THREE TYPES OF RECORDS FIT UNDER (8)
ONES THAT RECITE THE GENERAL ACTIVITIES OF THE OFFICE
E.G., DOCUMENTS DESCRIBING:
PROCEDURES FOR HIGHWAY CONSTRUCTION BIDDING
HOW THE CENSUS IS TAKEN
HOW THE I.R.S. CONDUCTS AN AUDIT
2012
Chap. 4, part 2

40. ONES THAT RECITE MATTERS OBSERVED PURSUANT TO DUTY IMPOSED BY LAW.
E.G., REPORTS ON:
REAL ESTATE APPRAISALS DONE
BUILDING INSPECTIONS PERFORMED
HIGHWAY CONSTRUCTION BIDS RECEIVED
2012
Chap. 4, part 2

41. FACTUAL FINDINGS FROM INVESTIGATIONS E.G., REPORTS ON:
FAA AIR DISASTER INVESTIGATIONS
CENTERS FOR DISEASE CONTROL INVESTIGATION OF EPIDEMICS
BALLISTICS INVESTIGATIONS (CIVIL ONLY)
FINGERPRINT CHECKS (CIVIL ONLY)
2012
Chap. 4, part 2

42. TYPES OF PUBLIC RECORDS THAT FIT UNDER (9)
BIRTHS, DEATHS, MARRIAGES
THE PUBLIC RECORDER OFFICE NEED NOT HAVE ANY FIRST-HAND KNOWLEDGE OF THE FACTS RECORDED FOR THESE EVENTS
REPORTS MADE TO THE OFFICE BY CITIZENS ARE OK HERE [BUT NOT UNDER (8)]
2012
Chap. 4, part 2

43. THE RESTRICTIONS ON USE OF POLICE RECORDS DO NOT APPLY WHEN 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]
2012
Chap. 4, part 2

44. SENTENCING Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)
IN TEXAS COURTS THE RESTRICTIONS ON POLICE REPORTS ARE LIKEWISE NOT APPLICABLE WHERE THE RULES IN GENERAL ARE NOT APPLICABLE; E.G.:
SENTENCING Tex. Code Crim. Proc. Ann. art , § 3(a)
GRAND JURIES [R 101(d)(1)]
HABEAS CORPUS “
BAIL “
SEARCH WARRANTS “
2012
Chap. 4, part 2

45. CHURCH AND FAMILY RECORDS [803(11-13)]
TREATED MUCH LIKE OFFICIAL RECORDS
LIMITED SUBJECT MATTER
BIRTHS
DEATHS
DIVORCES
BAPTISMS
ETC.
2012
Chap. 4, part 2

46. (18) LEARNED TREATISES FOUNDATION: PROCEDURE:
ACKNOWLEDGED AS AUTHORITATIVE BY TESTIMONY OF A WITNESS
PROCEDURE:
READ IN RELEVANT PASSAGES
CAN’T PUT THE BOOK IN
2012
Chap. 4, part 2

47. (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
2012
Chap. 4, part 2

48. (22) JUDGMENTS OF FELONY CONVICTIONS
ADMISSIBLE TO PROVE ANY UNDERLYING ESSENTIAL FACT
ONLY JUDGMENTS
NOT ARRESTS
NOT INDICTMENTS
NOT VERDICTS
2012
Chap. 4, part 2