1. CHAP. 3 : INTRODUCTION TO THE HEARSAY RULE P. JANICKE 2008

2. Chap. 3 -- Intro to Hearsay2 IN GENERAL: WITNESSES ARE NOT ALLOWED TO TESTIFY TO OUT-OF-COURT UTTERANCES –OF THEMSELVES –OF OTHERS DOCUMENTS CONTAIN STATEMENTS AND AREN’T ALLOWED IN EVIDENCE –THEY ARE WRITTEN OUT OF COURT

3. 2008Chap. 3 -- Intro to Hearsay3 EXAMPLES WITNESS CAN’T SAY WHAT HE TOLD THE POLICE LETTERS ARE INADMISSIBLE POLICE REPORTS ARE INADMISSIBLE

4. 2008Chap. 3 -- Intro to Hearsay4 RATIONALE: WE WANT WITNESSES TO TELL US FIRST-HAND ON THE STAND WHAT THEY SAW –CROSS-EXAMINATION IS AN ADVERSARY’S RIGHT E.G.: THE CHEMIST FROM THE POLICE LAB TESTIFIES TO THE BLOOD TYPE

5. 2008Chap. 3 -- Intro to Hearsay5 THE MAIN EXCEPTION TO WHAT IS HEARSAY: STATEMENTS OF OPPOSING PARTY A PARTY TO A CASE CAN ASK ANY WITNESS WHAT THE OTHER PARTY SAID (IF THE WITNESS WAS THERE) –WITNESS CAN BE THE OTHER PARTY –WITNESS CAN BE A BYSTANDER

6. 2008Chap. 3 -- Intro to Hearsay6 THE OPPOSING PARTY’S WRITINGS ARE SIMILARLY O.K. –LETTERS –MEMOS –RECORDS

7. 2008Chap. 3 -- Intro to Hearsay7 THESE ARE CALLED “ADMISSIONS” ANY STATEMENT BY A PARTY WILL QUALIFY WHEN OFFERED BY HER ADVERSARY PARTY NO ANALYSIS FOR WHETHER IT CUTS FOR OR AGAINST THE SPEAKER’S INTEREST

8. 2008Chap. 3 -- Intro to Hearsay8 OPPOSING PARTY MEANS THE ONE THE OFFERING LAWYER IS AGAINST IN CASE OF JONES vs. SMITH, JONES’S LAWYER CAN INTRODUCE TESTIMONY ON WHAT SMITH STATED, AND SMITH’S LAWYER CAN INTRODUCE TESTIMONY ON WHAT JONES STATED NEITHER SIDE CAN INTRODUCE ITS OWN OUT-OF-COURT STATEMENTS

9. 2008Chap. 3 -- Intro to Hearsay9 WHO THE TESTIFYING WITNESS IS HAS NOTHING TO DO WITH IT! –JONES LAWYER CAN ASK JONES WHAT SMITH SAID –JONES LAWYER CAN ASK SMITH WHAT SMITH SAID –JONES LAWYER CAN ASK A BYSTANDER WHAT SMITH SAID JONES IS SAID TO BE “OFFERING” THE STATEMENT (VIA A WITNESS)

10. 2008Chap. 3 -- Intro to Hearsay10 TRIAL IN JONES v. SMITH BENCH (JUDGE) JONES JURY COUNSEL FOR JONESCOUNSEL FOR SMITH CLERK AND REPORTER SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) RAILING PODIUM HIGH UP

11. 2008Chap. 3 -- Intro to Hearsay11 TRIAL IN JONES v. SMITH BENCH (JUDGE) BYSTANDER JURY COUNSEL FOR JONESCOUNSEL FOR SMITH CLERK AND REPORTER SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) RAILING PODIUM HIGH UP

12. 2008Chap. 3 -- Intro to Hearsay12 TRIAL IN JONES v. SMITH BENCH (JUDGE) SMITH JURY COUNSEL FOR JONESCOUNSEL FOR SMITH CLERK AND REPORTER SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) RAILING PODIUM HIGH UP

13. 2008Chap. 3 -- Intro to Hearsay13 N.B.!!! A PARTY CAN ALWAYS TESTIFY TO WHAT HAPPENED BUT NOT WHAT THAT PARTY –WROTE DOWN –REPORTED BY PHONE –TOLD OTHERS ORALLY

14. 2008Chap. 3 -- Intro to Hearsay14 A NON-PARTY WITNESS CAN LIKEWISE SAY ON THE STAND WHAT HAPPENED BUT NOT WHAT THE WITNESS –WROTE DOWN –REPORTED BY PHONE –TOLD OTHERS ORALLY

15. 2008Chap. 3 -- Intro to Hearsay15 GENERALLY, CAN A WITNESS TELL US WHAT PLAINTIFF SAID? YES, IF ASKED BY DEFENDANT’S COUNSEL (THE “ADVERSE PARTY”) NO, IF ASKED BY PLAINTIFF’S COUNSEL

16. 2008Chap. 3 -- Intro to Hearsay16 ADMISSIONS IN THE CORPORATE CONTEXT IF A PARTY IS A CORPORATION: –OUT-OF-COURT STATEMENTS OF ITS OFFICERS ARE ADMISSIBLE (BY ADVERSARY) –OUT-OF-COURT STATEMENTS OF ITS EMPLOYEES ARE ADMISSIBLE (BY ADVERSARY) –OUT-OF-COURT STATEMENTS OF ITS LAWYERS OR REPRESENTATIVES ARE ADMISSIBLE (BY ADVERSARY) –ITS GENERATED DOCUMENTS ARE ADMISSIBLE (BY ADVERSARY)*

17. 2008Chap. 3 -- Intro to Hearsay17 * NOTHING TO DO WITH WHETHER THE DOCUMENTS WERE GENERATED IN THE ORDINARY COURSE OF BUSINESS OR NOT THE OTHER SIDE’S WRITINGS ARE “ADMISSIONS”

18. 2008Chap. 3 -- Intro to Hearsay18 EXAMPLES OF ADMISSIONS DEFENDANT INTRODUCES POLICE LAB REPORT DEFENDANT INTRODUCES POLICE CRIME-SCENE REPORT PROSECUTOR ASKS ANY WITNESS WHAT D. SAID (IF THE WIT. KNOWS) PLAINTIFF INTRODUCES LETTER FROM DEFENDANT’S EMPLOYEE

19. 2008Chap. 3 -- Intro to Hearsay19 MORE EXAMPLES 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

20. 2008Chap. 3 -- Intro to Hearsay20 A VICTIM IS NOT A PARTY IN A CRIMINAL CASE –HENCE, VICTIM’S OUT-OF-COURT STATEMENTS TO POLICE OR NEIGHBORS ARE USUALLY NOT ALLOWED TO BE INTRODUCED AT TRIAL BY EITHER SIDE, OR BY THE VICTIM –VICTIM CAN OF COURSE TESTIFY TO WHAT HAPPENED

21. 2008Chap. 3 -- Intro to Hearsay21 CIVIL CASE – PARTIES ARE: –PLAINTIFF –DEFENDANT A VICTIM COULD BECOME A CIVIL PLAINTIFF, HENCE A PARTY –IN THAT CASE, THE DEFENDANT COULD OFFER THE VICTIM/PLAINTIFF’S OUT-OF-COURT STATEMENTS

22. 2008Chap. 3 -- Intro to Hearsay22 SOME OUT-OF-COURT UTTERANCES AREN’T “STATEMENTS” –WORDS THAT ARE THEMSELVES AN ELEMENT OF THE CASE ARE NOT REGARDED AS STATEMENTS; EXAMPLES > >

23. 2008Chap. 3 -- Intro to Hearsay23 –OFFER AND ACCEPTANCE (in contract case) –WARRANTY OF GOOD CONDITION (in warranty case) –DEFAMATORY UTTERANCE (in defamation case) –CHECK DRAWN ON A BANK (payment defense) –THE LEASE (in eviction case) –PERMISSION TO DRIVE MY CAR (theft defense)

24. 2008Chap. 3 -- Intro to Hearsay24 THESE AREN’T TREATED AS “STATEMENTS,” BUT AS ELEMENTS; THEY AREN’T HEARSAY –THEY CAN BE ADMITTED IN EVIDENCE BY EITHER SIDE, THROUGH TESTIMONY TO WHAT WAS SAID, OR, IF IN WRITING, INTRODUCING THE DOCUMENT

25. 2008Chap. 3 -- Intro to Hearsay25 MUCH MORE ON THE RULE EXCLUDING HEARSAY STATEMENTS, LATER IN THE COURSE !!