CHAPTER 4, PART 2 OF 3:
EXCEPTIONS TO THE RULE
THAT HEARSAY IS
INADMISSIBLE
P. JANICKE
2012
RULE 802 EXCLUDES MOST
HEARSAY
• BUT THERE ARE EXCEPTIONS
• CONTEXT: THE EVIDENCE IS
HEARSAY, BUT IS ALLOWED IN
ANYWAY
2012
Chap. 4, part 2
2
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]
2012
Chap. 4, part 2
3
UNRESTRICTED EXCEPTIONS
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
2012
Chap. 4, part 2
5
SO -• WE ARE HERE TALKING ABOUT
WHERE THE DECLARANT WAS
– ONE OF OUR OWN PEOPLE, or
– A THIRD PARTY
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Chap. 4, part 2
6
(1) PRESENT SENSE IMPRESSION
TESTIMONY THAT -• DECLARANT SAID SOMETHING
ABOUT WHAT SHE WAS
PERCEIVING AT THAT VERY TIME,
OR IMMEDIATELY THEREAFTER
2012
Chap. 4, part 2
7
EXAMPLE
• WITNESS: “HE SAID ‘I SEE THE TRUCK
IS HEADING NORTHBOUND’ ”
OFFERED TO HELP ESTABLISH THAT
THE TRUCK WAS HEADING NORTH
• A STATEMENT; OFFERED TO PROVE
THE TRUTH OF THE STATEMENT
• IT IS HEARSAY
• IT IS ADMISSIBLE
2012
Chap. 4, part 2
8
EXAMPLE
• WITNESS: “I SAID ‘HE IS COMING
STRAIGHT THIS WAY’ ”
• OFFERED TO SHOW THE PERSON
WAS APPROACHING THE SPEAKER
• IS HEARSAY
• IS ADMISSIBLE
2012
Chap. 4, part 2
9
EXAMPLE
• WITNESS: “SHE SAID ‘IT’S HOT IN
HERE’ ”
• OFFERED TO HELP ESTABLISH THE
ROOM WAS WARM
• IS HEARSAY
• IS ADMISSIBLE
2012
Chap. 4, part 2
10
(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
2012
Chap. 4, part 2
11
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.’ ”
2012
Chap. 4, part 2
12
• DECLARANT MUST HAVE
PERSONALLY OBSERVED THE
STARTLING EVENT
• IT IS OFTEN DIFFICULT TO PROVE
THIS LATER
• THE JUDGE FINDS IT AS A
FOUNDATION FACT
2012
Chap. 4, part 2
13
(3) THEN EXISTING MENTAL,
EMOTIONAL, PHYSICAL
CONDITION OF DECLARANT
• COULD BE VIEWED AS A SUBSET OF
(1), PRESENT SENSE IMPRESSION,
BUT FOCUSING ON INTERNAL
FEELINGS AND THOUGHTS
• MANY SITUATIONS CAN BE
ANALYZED UNDER EITHER (3) OR (1),
WITH SAME RESULT
2012
Chap. 4, part 2
14
• ** THIS IS WHERE WE PUT
TESTIMONY ON DECLARATIONS
OF INTENT, OFFERED TO
ESTABLISH LATER CONFORMING
CONDUCT **
• HE SAID HE INTENDED TO DO IT;
THEREFORE, LIKELY HE DID DO
IT
2012
Chap. 4, part 2
15
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”
– ADMISSIBLE TO SHOW THE PLAN
– ALSO ADMISSIBLE TO SHOW THE
FRUITION OF THE PLAN! >>>
2012
Chap. 4, part 2
16
• THE LANGUAGE OF 803(3) DOESN’T
REALLY ADDRESS USING THE
STATEMENT TO SHOW
CONFORMING CONDUCT
• WE KNOW THE INTENT WAS TO
ADOPT THE RULE OF HILLMON
2012
Chap. 4, part 2
17
• 803(3) INCLUDES STATEMENTS OF
INTENT THAT INVOLVE ADDITIONAL
PERSONS (JOINT PLAN)
– AS IN HILLMON
– BUT NOT A STATEMENT OF A PLAN
INVOLVING ONLY A THIRD PERSON’S
CONDUCT
2012
Chap. 4, part 2
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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.”
2012
Chap. 4, part 2
19
• THEREFORE, WE ARE ADMITTING
ONLY THE MOST BASIC LEVELS OF
FEELING
– JOY
– PAIN
– INTENT [PLAN]
• NOT THE ACTUAL OR EXPECTED
CONDUCT OF OTHERS ACTING
ALONE
2012
Chap. 4, part 2
20
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. HE FELT THEY
WOULD KILL HIM FOR SURE IF HE
STAYED HERE.”
– [GREEN TEXT IS INADMISSIBLE; GOES
BEYOND DECLARANT’S PLAN AND
MOTIVATION; ORANGE TEXT IS
BORDERLINE]
2012
Chap. 4, part 2
21
PROBLEMS/CASES
•
•
•
•
•
•
•
Nutall
Arnold
Hillmon
Pheaster
Blake
Petrocelli
Melendez-Diaz
2012
Chap. 4, part 1
22
(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”
2012
Chap. 4, part 2
23
• DIVIDING LINE: NO STATEMENTS
AS TO FAULT, UNLESS NEEDED
MEDICALLY
– WIT. DOCTOR: HE TOLD ME “IT BEGAN
WHEN JACK HIT ME WITH A HAMMER”
• WILL HAVE TO BE REPHRASED TO
ELIMINATE JACK’S FAULT
2012
Chap. 4, part 2
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• ANOTHER EXAMPLE:
– WIT. TESTIFIES: “I HEARD HIM SAY TO
THE DOCTOR, ‘IT BEGAN AFTER I ATE
THOSE EGGS THAT WERE BAD, WHICH
IS PRETTY USUAL FOR THE MAIN
STREET DINER’”
– THE GREEN PART IS UNNECESSARY
FOR DIAGNOSIS OR TREATMENT, AND
WILL BE KEPT OUT; ORANGE TEXT IS
BORDERLINE
2012
Chap. 4, part 2
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• 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
2012
Chap. 4, part 2
26
• 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
2012
Chap. 4, part 2
27
(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
2012
Chap. 4, part 2
28
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
2012
Chap. 4, part 2
29
(6) BUSINESS RECORDS
• NEED NOT BE COMMERCIAL; ANY
REGULAR ACTIVITY WILL QUALIFY
– CHURCH
– BOOK CLUB
• ONLY APPLIES TO FACTS GENERATED
INSIDE THE BUSINESS
– REPORTS FROM OUTSIDE ARE NOT
COVERED AND HAVE TO BE MASKED OUT
2012
Chap. 4, part 2
30
FOUNDATION FOR (6) IS
COMPLEX
•
FOUNDATION NEEDED:
1. REGULAR ACTIVITY GOING ON
2. THIS DOC. MADE IN THE REGULAR
COURSE OF IT
3. MADE AT OR NEAR THE TIME OF
EVENTS LISTED
4. MADE BY (OR VIA) A PERSON WITH
ACTUAL KNOWLEDGE
5. WAS THE REGULAR PRACTICE TO KEEP
RECORDS OF THIS TYPE
2012
Chap. 4, part 2
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• 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
2012
Chap. 4, part 2
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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
2012
Chap. 4, part 2
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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
2012
Chap. 4, part 2
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CAUTION
• DO IT THE TEXAS WAY, EVEN IN
FEDERAL COURT
• MUCH SAFER FOR THE AFFIANT
[AND ULTIMATELY FOR YOU]
– NOTE THE RECENT SCANDAL ABOUT
MORTGAGE FORECLOSURE
SIGNATURES
2012
Chap. 4, part 2
35
(7) ABSENCE OF A BUSINESS
ENTRY
• SERVES AS PROOF THAT THE
EVENT DID NOT HAPPEN
• REQUIRES SHOWING OF THE
USUAL PRACTICE OF THE
ORGANIZATION
2012
Chap. 4, part 2
36
PROBLEMS/CASES
• Exercise #12
2012
Chap. 4, part 2
37
(8) OFFICIAL RECORDS and
(9) VITAL STATISTICS RECORDS
• LAW ENFORCEMENT RECORDS
CAN’T BE USED IN A CRIMINAL
CASE
• OTHER KINDS ARE O.K.
• ALL KINDS ARE FREQUENTLY
USED IN CIVIL CASES
2012
Chap. 4, part 2
38
THREE TYPES OF RECORDS
FIT UNDER (8)
1. ONES THAT RECITE THE GENERAL
ACTIVITIES OF THE OFFICE
• E.G., DOCUMENTS DESCRIBING:
– PROCEDURES FOR HIGHWAY
CONSTRUCTION BIDDING
– HOW THE CENSUS IS TAKEN
– HOW THE I.R.S. CONDUCTS AN AUDIT
2012
Chap. 4, part 2
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2. ONES THAT RECITE MATTERS
OBSERVED PURSUANT TO DUTY
IMPOSED BY LAW.
• E.G., REPORTS ON:
– REAL ESTATE APPRAISALS DONE
– BUILDING INSPECTIONS PERFORMED
– HIGHWAY CONSTRUCTION BIDS
RECEIVED
2012
Chap. 4, part 2
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3. FACTUAL FINDINGS FROM
INVESTIGATIONS
• E.G., REPORTS ON:
– FAA AIR DISASTER INVESTIGATIONS
– CENTERS FOR DISEASE CONTROL
INVESTIGATION OF EPIDEMICS
– BALLISTICS INVESTIGATIONS (CIVIL
ONLY)
– FINGERPRINT CHECKS (CIVIL ONLY)
2012
Chap. 4, part 2
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TYPES OF PUBLIC RECORDS
THAT FIT UNDER (9)
• BIRTHS, DEATHS, MARRIAGES
• THE PUBLIC RECORDER OFFICE
NEED NOT HAVE ANY FIRST-HAND
KNOWLEDGE OF THE FACTS
RECORDED FOR THESE EVENTS
– REPORTS MADE TO THE OFFICE BY
CITIZENS ARE OK HERE [BUT NOT
UNDER (8)]
2012
Chap. 4, part 2
42
THE RESTRICTIONS ON USE OF
POLICE RECORDS DO NOT APPLY
WHEN 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]
2012
Chap. 4, part 2
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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. 37.07, § 3(a)
•
•
•
•
GRAND JURIES
HABEAS CORPUS
BAIL
SEARCH WARRANTS
2012
Chap. 4, part 2
[R 101(d)(1)]
“
“
“
44
CHURCH AND FAMILY RECORDS
[803(11-13)]
• TREATED MUCH LIKE OFFICIAL
RECORDS
• LIMITED SUBJECT MATTER
– BIRTHS
– DEATHS
– DIVORCES
– BAPTISMS
– ETC.
2012
Chap. 4, part 2
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(18) LEARNED TREATISES
• FOUNDATION:
– ACKNOWLEDGED AS AUTHORITATIVE
BY TESTIMONY OF A WITNESS
• PROCEDURE:
– READ IN RELEVANT PASSAGES
– CAN’T PUT THE BOOK IN
2012
Chap. 4, part 2
46
(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
2012
Chap. 4, part 2
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(22) JUDGMENTS OF FELONY
CONVICTIONS
• ADMISSIBLE TO PROVE ANY
UNDERLYING ESSENTIAL FACT
• ONLY JUDGMENTS
– NOT ARRESTS
– NOT INDICTMENTS
– NOT VERDICTS
2012
Chap. 4, part 2
48