1. CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE?
P. JANICKE
2010

2. BASIC OPERATION OF THE RULE EXCLUDING HEARSAY
A WITNESS SHOULD TESTIFY WHAT SHE SAW
A WITNESS SHOULD USUALLY NOT TESTIFY TO WHAT ANYONE SAID OR WROTE BEFORE TRIAL
THIS INCLUDES WHAT THE WITNESS HERSELF SAID OR WROTE
A DOCUMENT SHOULD NOT BE ADMITTED TO TELL US WHAT HAPPENED
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3. Chap. 3 -- hearsay resumed
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
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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
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5. Chap. 3 -- hearsay resumed
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
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6. Chap. 3 -- hearsay resumed
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
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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”
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8. Chap. 3 -- hearsay resumed
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)
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9. Chap. 3 -- hearsay resumed
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
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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
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11. Chap. 3 -- hearsay resumed
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)
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12. Chap. 3 -- hearsay resumed
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]
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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
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14. Chap. 3 -- hearsay resumed
CONDUCT AS A STATEMENT: WE MEAN DIRECT SIGN LANGUAGE; NOT SIGNALING OF FEELINGS OR BELIEFS:
NOD OR SHAKE OF HEAD FOR YES OR NO
POINTING TO IDENTIFY A PERSON, PLACE, OR THING
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
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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
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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
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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
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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
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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]
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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”
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21. Chap. 3 -- hearsay resumed
RULES OF THUMB
MIXED WORDS AND CONDUCT:
TREAT AS CONDUCT (FIND ACTOR’S PURPOSE; IGNORE IMPLICATIONS)
IF YOU CAN’T DECIDE ACTOR’S INTENTION (WAS SHE SIGNING/NARRATING?):
TREAT AS A NON-STATEMENT
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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
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23. Chap. 3 -- hearsay resumed
PROB. 3A, 3B, CHECK CASE
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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
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25. Chap. 3 -- hearsay resumed
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
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26. Chap. 3 -- hearsay resumed
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”
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27. Chap. 3 -- hearsay resumed
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!
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28. Chap. 3 -- hearsay resumed
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
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29. Chap. 3 -- hearsay resumed
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
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30. Chap. 3 -- hearsay resumed
PROB. 3C, 3D, 3E, 3F, 3G, 3H, 3I, 3J, SINGER, 3K, PACELLI, 3M, BETTS.
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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
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32. Chap. 3 -- hearsay resumed
SEQUENCE
CHECK 801(d) – NOT HEARSAY
IS THE WIT. TESTIFYING TO A STATEMENT?
IS THE TEST. OFFERED TO PROVE THAT THE STMT. WAS TRUE?
IF SO, THE TEST. IS BRINGING IN HEARSAY
IS THERE AN APPLICABLE EXCEPTION TO THE RULE?
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