1. CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE? P. JANICKE 2011

2. 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

3. 2011 Chap. 3 -- hearsay resumed3 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

4. 2011 Chap. 3 -- hearsay resumed4 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

5. 2011 Chap. 3 -- hearsay resumed5 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

6. 2011 Chap. 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. 2011 Chap. 3 -- hearsay resumed7 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”

8. 2011 Chap. 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. 2011 Chap. 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. 2011 Chap. 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. 2011 Chap. 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 INTENDING TO NARRATE (e.g., BY SIGN LANGUAGE)

12. 2011 Chap. 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. 2011 Chap. 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)]

14. 2011 Chap. 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. 2011 Chap. 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. 2011 Chap. 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. 2011 Chap. 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. 2011 Chap. 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. 2011 Chap. 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 IS INTENDED TO DIRECTLY STATE SOMETHING ---- –eye contact + [H, C, DoKn, CaSe/CaHe, WKG OK]

20. 2011 Chap. 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. 2011 Chap. 3 -- hearsay resumed21 RULES OF THUMB 1.MIXED WORDS AND CONDUCT: –TREAT 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. 2011 Chap. 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. 2011 Chap. 3 -- hearsay resumed23 PROB. 3A, 3B, CHECK CASE

24. 2011 Chap. 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. 2011 Chap. 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. 2011 Chap. 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. 2011 Chap. 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. 2011 Chap. 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. 2011 Chap. 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. 2011 Chap. 3 -- hearsay resumed30 PROB. 3C, 3D, 3E, 3F, 3G, 3H, 3I, 3J, SINGER, 3K, PACELLI, 3M, BETTS.

31. 2011 Chap. 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. 2011 Chap. 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?