CHAP. 3 -- RESUMED:
THE RULE EXCLUDING
HEARSAY – WHAT IS
HEARSAY EVIDENCE?
P. JANICKE
2014
BASIC OPERATION OF THE
RULE EXCLUDING HEARSAY
1.
2.
3.
2014
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
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 IN PROVING THAT
THE FACT STATED IN THE STATEMENT IS
TRUE
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3
BIG EXCEPTION
• STATEMENTS MADE BY A PARTY,
WHEN ELICITED BY THE OPPOSING
PARTY’S LAWYER,
• FROM ANY KNOWLEDGEABLE
WITNESS
• THESE ARE “NOT HEARSAY”
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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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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
STATEMENTS, AND THEREFORE
INADMISSIBLE HEARSAY
– MAIN EXCEPTIONS:
• OTHER SIDE’S WRITINGS
• OPERATIVE FACT DOCUMENTS (CONTRACT;
LEASE; WILL)
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6
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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7
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 INTRODUCED
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RULES
• MOST DOCUMENTS CONTAIN
STATEMENTS, AND THEREFORE ARE
LIKELY INADMISSIBLE
• BUT, A DEFINITIONAL EXCEPTION: THE
OTHER SIDE’S DOCUMENTS AREN’T
HEARSAY IF OFFERED BY YOUR SIDE
– THEY COME UNDER THE DEFINITIONAL
EXCEPTION FOR “ADMISSIONS” BY PARTY
OPPONENT
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THE PROBLEM OF IMPLIED
STATEMENTS
• EXAMPLE: TESTIMONY THAT
DECLARANT SHOUTED “YES!”
AFTER OPENING A LETTER
• LITERALLY: NO STATEMENT
– DOESN’T ASSERT ANY FACT
• IMPLIEDLY: THE UTTERANCE SAYS,
“I LIKE WHAT IS IN THIS LETTER.”
THAT IS A STATEMENT
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LEGAL TREATMENT OF IMPLIED
STATEMENTS
• FOR OUT-OF-COURT WORD UTTERANCES,
JUDGE MUST ANALYZE BOTH THE
EXPRESS AND IMPLIED SENSES TO SEE IF
THERE IS A “STATEMENT”
• FOR OUT-OF-COURT CONDUCT, WE IGNORE
IMPLICATIONS AND CONSIDER ONLY
WHETHER THE ACTOR WAS INTENDING TO
STATE A FACT (e.g., BY SIGN LANGUAGE)
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EXAMPLE:
• TESTIMONY:
– HE OPENED THE LETTER
– HE THEN JUMPED IN THE AIR
• NO “STATEMENT” HERE FOR
HEARSAY PURPOSES (NO INTENT)
• » CAN’T BE KEPT OUT VIA THE
RULE EXCLUDING HEARSAY [R802]
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WHEN CONDUCT 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)]
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CONDUCT AS A STATEMENT: WE
MEAN DIRECT SIGN LANGUAGE; NOT
HINTS OF FEELINGS OR BELIEFS:
EXAMPLES OF CONDUCT STATEMENTS:
1. NOD OR SHAKE OF HEAD FOR YES OR
NO
2. POINTING TO IDENTIFY A PERSON,
PLACE, OR THING
3. REENACTMENTS
2014
•
14
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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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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FURTHER EXAMPLES OF CONDUCT
THAT IS NOT A STATEMENT (NONNARRATIVE)
•
•
•
•
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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FURTHER EXAMPLES OF CONDUCT
THAT IS NOT A STATEMENT (NONNARRATIVE)
• PILING UP ANOTHER PERSON’S
BELONGINGS IN MIDDLE OF FLOOR OR
SIDEWALK
• BURNING THE FLAG
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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 A
FACT ---– eye contact + [H, C, DoKn, CaSe/CaHe, OK]
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WORDS THAT COLOR CONDUCT ARE
TREATED AS NON-STATEMENTS
• WHERE 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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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
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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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PROBLEMS/CASES
• 3A
• 3B
• CHECK
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“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
PER R. 802
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EXAMPLES OF USING
STATEMENTS FOR OTHER
PURPOSES
1. IMPEACHING A WITNESS
– E.G.: PRIOR INCONSISTENT
STATEMENT
– DOES NOT COME IN FOR ITS TRUTH
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2. WORDS THAT ARE THEMSELVES
A NECESSARY ELEMENT OF THE
CASE
– E.G.: FALSE OFFICIAL STATEMENT
– E.G.: OFFER AND ACCEPTANCE IN
CONTRACT CASE
– E.G.: WARRANTIES IN BREACH OF
WARRANTY CASE
2014
– SOMETIMES CALLED “RES GESTAE”
– SOMETIMES CALLED WORDS THAT ARE
AN “OPERATIVE FACT”
– M-K CALL THIS A “VERBAL ACT”
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3. PROVING THE LISTENER’S STATE OF MIND
THAT IS RELEVANT TO THE CASE OR
DEFENSE, i.e., WHERE STATE OF MIND
MATTERS
•
TESTIMONY THAT X SAID TO D: “I HAVE A GUN
THAT IS POINTED AT YOU”
–
–
•
TESTIMONY THAT X SAID TO D: “THESE T.V.
SETS ARE STOLEN”
–
–
2014
SELF-DEFENSE REQUIRES PROOF OF ACTOR’S
STATE OF MIND
TRUTH OF THE STATEMENT HAS NOTHING TO DO
WITH IT
IF THE TRIAL IS FOR RECEIVING, KNOWLEDGE IS
AN ELEMENT
CAVEAT: LIMITED OFFER WILL BE ENFORCED!
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• 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
• CAN AN UNCONSCIOUS PERSON ACT
“NEGLIGENTLY”? NO.
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• TESTIMONY THAT X SAID TO
PLAINTIFF: “THE BRAKES ON MY
CAR ARE BAD” OFFERED TO SHOW
PLAINTIFF’S ASSUMPTION OF RISK
IN RIDING IN THE CAR
– ASSUMPTION OF RISK IS A STATE OF
MIND
• CAN AN UNCONSCIOUS PERSON ASSUME
A RISK WHILE UNCONSCIOUS? NO.
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THE TWO KEYS:
• NO STATEMENT = NO HEARSAY
• NOT OFFERED TO ESTABLISH
TRUTH OF THE STATEMENT =
NOT HEARSAY
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PROBLEMS/CASES
•
•
•
•
•
•
3C
3D
3E
3F
3G
3H
(cont’d)
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• 3J
• PACELLI
• BETTS
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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
– NO WORRY ABOUT WHY IT’S OFFERED
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SUGGESTED MENTAL
SEQUENCE
1. CHECK 801(d) – NOT HEARSAY
2. IS THE WIT. TESTIFYING ABOUT 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?
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• M-K HEARSAY QUIZ, Q&A ----
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