1. CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE? P. JANICKE 2008

2. Chap. 3 -- hearsay resumed2 RULE 801 CONTAINS THE DEFINITION SUBJECT TO VARIOUS DEFINITIONAL EXCEPTIONS IN 801(d), THE GENERAL DEFINITION OF HEARSAY EVIDENCE IS: –A STATEMENT –MADE OUTSIDE THE PRESENT HEARING –OFFERED TO PROVE THAT SOME FACT STATED IN THE STATEMENT IS TRUE

3. 2008Chap. 3 -- hearsay resumed3 RULE 802 SAYS OUT-OF-COURT STATEMENTS USUALLY CANNOT BE TESTIFIED TO NOR CAN ANY DOCUMENT CONTAINING A STATEMENT OF FACT BE INTRODUCED SUCH TESTIMONY OR DOCUMENT MIGHT FIT UNDER AN EXCEPTION, AND CAN THEN BE ADMITTED

4. 2008Chap. 3 -- hearsay resumed4 RECALL: MOST DOCUMENTS CONTAIN STATEMENTS, AND THEREFORE ARE LIKELY TO BE INADMISSIBLE –IF THE ONLY RELEVANCE IS TO ESTABLISH TRUTH OF THE STATEMENTS, THEY ARE HEARSAY BUT THE OTHER SIDE’S DOCUMENTS AREN’T HEARSAY IF OFFERED BY YOU –THEY COME UNDER THE DEFINITIONAL EXCEPTION FOR “ADMISSIONS”

5. 2008Chap. 3 -- hearsay resumed5 BASIC OPERATION OF THE RULE EXCLUDING HEARSAY 1.A WITNESS SHOULD TESTIFY WHAT SHE SAW 2.A WITNESS SHOULD USUALLY NOT TESTIFY TO WHAT ANYONE SAID OR WROTE BEFORE TRIAL –THIS INCLUDES WHAT THE WITNESS HERSELF SAID OR WROTE 3.A DOCUMENT SHOULD NOT BE ADMITTED TO TELL US WHAT HAPPENED

6. 2008Chap. 3 -- hearsay resumed6 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

7. 2008Chap. 3 -- hearsay resumed7 TO BE HEARSAY, UTTERANCE MUST CONTAIN A “STATEMENT” HAS TO ASSERT A PRESENT OR PAST FACT [R 801 (a)] OR OPINION NOT ALL OUT OF COURT UTTERANCES DO –PROMISES (“YOU’LL LIKE IT”) –COMMANDS (“GET OUT OF HERE”) SOME DO –“IT’S SUNNY HERE” –“IT RAINED YESTERDAY” –“I LOVE YOU”

8. 2008Chap. 3 -- hearsay resumed8 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)

9. 2008Chap. 3 -- hearsay resumed9 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

10. 2008Chap. 3 -- hearsay resumed10 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

11. 2008Chap. 3 -- hearsay resumed11 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 DIRECTLY NARRATING (SIGNING)

12. 2008Chap. 3 -- hearsay resumed12 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]

13. 2008Chap. 3 -- hearsay resumed13 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

14. 2008Chap. 3 -- hearsay resumed14 CONDUCT AS A STATEMENT: WE MEAN DIRECT SIGN LANGUAGE; NOT SIGNALING OF FEELINGS OR BELIEFS: 1.NOD OR SHAKE OF HEAD FOR YES OR NO 2.POINTING TO IDENTIFY A PERSON, PLACE, OR THING 3.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

15. 2008Chap. 3 -- hearsay resumed15 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

16. 2008Chap. 3 -- hearsay resumed16 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

17. 2008Chap. 3 -- hearsay resumed17 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

18. 2008Chap. 3 -- hearsay resumed18 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

19. 2008Chap. 3 -- hearsay resumed19 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]

20. 2008Chap. 3 -- hearsay resumed20 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”

21. 2008Chap. 3 -- hearsay resumed21 RULES OF THUMB 1.MIXED WORDS AND CONDUCT: –TREAT IT AS CONDUCT (FIND ACTOR’S PURPOSE; IGNORE IMPLICATIONS) 2.IF YOU CAN’T DECIDE ACTOR’S INTENTION (WAS SHE SIGNING/NARRATING?): –TREAT AS A NON-STATEMENT

22. 2008Chap. 3 -- hearsay resumed22 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

23. 2008Chap. 3 -- hearsay resumed23 PROB. 3A, 3B, CHECK CASE

24. 2008Chap. 3 -- hearsay resumed24 “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

25. 2008Chap. 3 -- hearsay resumed25 1.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

26. 2008Chap. 3 -- hearsay resumed26 2.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”

27. 2008Chap. 3 -- hearsay resumed27 3.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!

28. 2008Chap. 3 -- hearsay resumed28 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

29. 2008Chap. 3 -- hearsay resumed29 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

30. 2008Chap. 3 -- hearsay resumed30 PROB. 3C, 3D, 3E, 3F, 3G, 3H, 3I, 3J, SINGER, 3K, PACELLI, 3M, BETTS.

31. 2008Chap. 3 -- hearsay resumed31 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

32. 2008Chap. 3 -- hearsay resumed32 SEQUENCE 1.CHECK 801(D) – NOT HEARSAY 2.IS THE WIT.TESTIFYING TO A STATEMENT? 3.IS THE TEST. OFFERED TO PROVE THAT THE STMT. WAS TRUE? IF SO, THE TEST. IS BRINGING IN HEARSAY 4.IS THERE AN APPLICABLE EXCEPTION TO THE RULE?