1. CHAPTER 4, PART 2 OF 2: EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE
P. JANICKE
2008

2. RULE 802 EXCLUDES MOST HEARSAY
BUT THERE ARE EXCEPTIONS
CONTEXT: THE EVIDENCE IS HEARSAY, BUT IS ALLOWED IN ANYWAY
2008
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]
2008
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
2008
Chap. 4, part 2

6. SO -- WE ARE HERE TALKING ABOUT WHERE THE DECLARANT WAS
ONE OF OUR OWN PEOPLE, or
A THIRD PARTY
2008
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
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’ ”
2008
Chap. 4, part 2

8. (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
2008
Chap. 4, part 2

9. 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.’ ”
2008
Chap. 4, part 2

10. DECLARANT MUST HAVE PERSONALLY OBSERVED THE STARTLING EVENT
IT IS OFTEN DIFFICULT TO PROVE THIS LATER
THE JUDGE FINDS IT AS A FOUNDATION FACT
2008
Chap. 4, part 2

11. (3) THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL CONDITION OF DECLARANT
A SUBSET OF (1)
REDUNDANT
IS INCLUDED FOR EMPHASIS
THIS IS WHERE WE PUT TESTIMONY ON DECLARATIONS OF INTENT, OFFERED TO PROVE LATER CONFORMING CONDUCT
2008
Chap. 4, part 2

12. 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”
2008
Chap. 4, part 2

13. 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.”
2008
Chap. 4, part 2

14. 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
2008
Chap. 4, part 2

15. 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 BECAUSE HE WITHHELD PROCEEDS OF A HEIST. HE FELT THEY WOULD KILL HIM FOR SURE.”
[GREEN TEXT IS INADMISSIBLE]
2008
Chap. 4, part 2

16. (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”
2008
Chap. 4, part 2

17. 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
2008
Chap. 4, part 2

18. 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
2008
Chap. 4, part 2

19. 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
2008
Chap. 4, part 2

20. (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
2008
Chap. 4, part 2

21. 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
2008
Chap. 4, part 2

22. (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
2008
Chap. 4, part 2

23. 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
2008
Chap. 4, part 2

24. 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
2008
Chap. 4, part 2

25. 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
2008
Chap. 4, part 2

26. 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
2008
Chap. 4, part 2

27. (7) ABSENCE OF A BUSINESS ENTRY
SERVES AS PROOF THAT THE EVENT DID NOT HAPPEN
REQUIRES SHOWING OF THE USUAL PRACTICE OF THE ORGANIZATION
2008
Chap. 4, part 2

28. (8) OFFICIAL RECORDS
LAW ENFORCEMENT RECORDS CAN’T BE USED IN A CRIMINAL CASE
OTHER KINDS ARE O.K. (e.g. BIRTH CERTIFICATE)
ALL KINDS ARE FREQUENTLY USED IN CIVIL CASES
BUT NOTE THE LIMITS >>>
2008
Chap. 4, part 2

29. THREE TYPES OF RECORDS ALLOWED
ONES THAT RECITE THE GENERAL ACTIVITIES OF THE OFFICE
PROCEDURES FOR HIGHWAY CONSTRUCTION BIDDING
HOW THE CENSUS IS TAKEN
HOW THE I.R.S. CONDUCTS AN AUDIT
2008
Chap. 4, part 2

30. ONES THAT RECITE MATTERS OBSERVED PURSUANT TO DUTY IMPOSED BY LAW
REAL ESTATE APPRAISALS DONE
BUILDING INSPECTIONS PERFORMED
MARRIAGE CEREMONIES PERFORMED
DEATHS OBSERVED
HIGHWAY CONSTRUCTION BIDS RECEIVED
2008
Chap. 4, part 2

31. FACTUAL FINDINGS FROM INVESTIGATIONS
FAA AIR DISASTER INVESTIGATIONS
CENTERS FOR DISEASE CONTROL INVESTIGATION OF EPIDEMICS
BALLISTICS INVESTIGATIONS (CIVIL ONLY)
FINGERPRINT CHECKS (CIVIL ONLY)
2008
Chap. 4, part 2

32. 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
2008
Chap. 4, part 2

33. 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]
2008
Chap. 4, part 2

34. 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 “
2008
Chap. 4, part 2

35. (18) LEARNED TREATISES FOUNDATION: PROCEDURE:
ACKNOWLEDGED AS AUTHORITATIVE BY TESTIMONY OF A WITNESS
PROCEDURE:
READ IN RELEVANT PASSAGES
CAN’T PUT THE BOOK IN
2008
Chap. 4, part 2

36. (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
2008
Chap. 4, part 2

37. (22) JUDGMENTS OF FELONY CONVICTIONS
ADMISSIBLE TO PROVE ANY UNDERLYING ESSENTIAL FACT
ONLY JUDGMENTS
NOT ARRESTS
NOT INDICTMENTS
NOT VERDICTS
2008
Chap. 4, part 2

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

39. 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
2008
Chap. 4, part 2

40. 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
2008
Chap. 4, part 2

41. 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)
2008
Chap. 4, part 2

42. 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]
2008
Chap. 4, part 2

43. SOME THINGS THAT WILL QUALIFY
NON-PARTY TESTIMONY AT EARLIER TRIAL OF THIS CASE
NON-PARTY TESTIMONY AT A DEPOSITION IN THIS OR ANOTHER CASE (WHERE OPPONENT WAS PARTY)
NON-PARTY TESTIMONY AT A PRELIMINARY INJUNCTION HEARING IN THIS CASE
2008
Chap. 4, part 2

44. PARTY’S TESTIMONY DOESN’T NEED THIS EXCEPTION
AGAIN RECALL –
PARTY’S TESTIMONY DOESN’T NEED THIS EXCEPTION
IF OFFERED BY THE ADVERSE PARTY, CAN BE OFFERED FREELY, REGARDLESS OF PRIOR OATH OR CROSS-EXAM
IF IT IS HER OWN FORMER TESTIMONY, PARTY NORMALLY DOESN’T NEED TO USE IT – CAN TESTIFY LIVE AGAIN
2008
Chap. 4, part 2

45. 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
2008
Chap. 4, part 2

46. VICTIM’S RECOVERY DOESN’T MAKE A DYING DECLARATION INADMISSIBLE
BUT THE VICTIM-DECLARANT HAS TO BE “UNAVAILABLE” AT TRIAL
2008
Chap. 4, part 2

47. 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”
2008
Chap. 4, part 2

48. 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
2008
Chap. 4, part 2

49. EXAMPLES OF THIRD-PARTY ADMISSIONS OFFERED BY D, THROUGH WITNESSES:
TESTIMONY: “X SAID: ‘OUR TECHNICIAN WIRED IT WRONG’”
X CO’S DOCUMENT RECALLING X’S AUTOS FOR DEFECTIVE FUEL LINES
TESTIMONY: “X SAID: ‘SORRY WE BLEW UP YOUR HOUSE’”
2008
Chap. 4, part 2

50. 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
2008
Chap. 4, part 2

51. 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 (MOTHER, FATHER) MUST BE UNAVAILABLE
2008
Chap. 4, part 2

52. 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 REMARK
EARLIER LETTER
2008
Chap. 4, part 2

53. DECLARANTS ARE IMPEACHABLE
THEY ARE TREATED JUST LIKE WITNESSES
TO PREVENT ABUSIVE USE OF EXCEPTIONS
SAME RULES OF IMPEACHMENT
2008
Chap. 4, part 2

54. 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
2008
Chap. 4, part 2

55. 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
2008
Chap. 4, part 2

56. 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
2008
Chap. 4, part 2