P. JANICKE
2014

• BUT THERE ARE EXCEPTIONS
• CONTEXT: THE EVIDENCE IS
HEARSAY, BUT IS ALLOWED IN
ANYWAY
2014 Chap. 4, part 2 2

2014 Chap. 4, part 2 3

TWO GROUPS OF EXCEPTIONS TO
THE RULE THAT HEARSAY EVIDENCE
IS INADMISSIBLE
• GROUP OF EXCEPTIONS THAT APPLY
REGARDLESS OF WHETHER 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]
2014 Chap. 4, part 2 4

• 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
• OR IF NO STATEMENT IS INVOLVED
2014 Chap. 4, part 2 6

• WE ARE HERE TALKING ABOUT
STATEMENTS, WHERE THE
DECLARANT WAS
– ONE OF OUR OWN PEOPLE, or
– A THIRD PARTY
2014 Chap. 4, part 2 7

TESTIMONY THAT --
• DECLARANT SAID SOMETHING
ABOUT WHAT SHE WAS
PERCEIVING AT THAT VERY TIME,
OR IMMEDIATELY THEREAFTER
2014 Chap. 4, part 2 8

• 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
• BUT, IT IS ADMISSIBLE
2014 Chap. 4, part 2 9

• WITNESS: “I SAID ‘HE IS COMING
STRAIGHT THIS WAY’ ”
• OFFERED TO SHOW THE PERSON
WAS APPROACHING THE SPEAKER
• IS HEARSAY
• BUT, IS ADMISSIBLE
2014 Chap. 4, part 2 10

• WITNESS: “SHE SAID ‘IT’S HOT IN
HERE’ ”
• OFFERED TO HELP ESTABLISH THE
ROOM WAS WARM
• IS HEARSAY
• BUT, IS ADMISSIBLE
2014 Chap. 4, part 2 11

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
2014 Chap. 4, part 2 12

• 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.’ ”
2014 Chap. 4, part 2 13

• DECLARANT MUST HAVE
PERSONALLY OBSERVED THE
STARTLING EVENT
• IT IS OFTEN DIFFICULT TO PROVE
THIS LATER
• THE JUDGE FINDS IT AS A
FOUNDATION FACT
2014 Chap. 4, part 2 14

• Nutall
• Arnold
2014 Chap. 4, part 2 15

• 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
2014 Chap. 4, part 2 16

• ** THIS IS WHERE WE PUT
TESTIMONY ON DECLARATIONS
OF INTENT, OFFERED TO HELP
ESTABLISH LATER CONFORMING
CONDUCT **
• HE SAID HE INTENDED TO DO IT;
THEREFORE, A LITTLE MORE
LIKELY THAT HE DID DO IT
2014 Chap. 4, part 2 17

• TESTIMONY: HE SAID TO ME, “MY
HEAD HURTS”
[WOULD ALSO FIT UNDER (1)]
• TESTIMONY: I TOLD HIM, “I AM
REALLY DEPRESSED”
[WOULD ALSO FIT
UNDER (1)]
• TESTIMONY: SHE SAID, “I PLAN TO
LEAVE HOUSTON ON FRIDAY”
– ADMISSIBLE TO SHOW THE PLAN
– AND TO SHOW THAT SHE LEFT ON
FRIDAY!
[WOULD NOT FIT UNDER (1)]
2014 Chap. 4, part 2 18

• WE KNOW THE INTENT WAS TO
ADOPT THE RULE OF HILLMON
– IN THAT CASE, THE EVIDENCE OF
INTENT WAS TREATED AS CREATING
SOME DEGREE OF LIKELIHOOD THAT
THE INTENT WAS CARRIED OUT
2014 Chap. 4, part 2 19

• Hillmon
• Pheaster
2014 Chap. 4, part 2 20

• 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 >>>
2014 Chap. 4, part 2 21

• EXAMPLES --
• TESTIMONY: SHE SAID TO ME, “I
FEAR JACK IS GOING TO SHOOT
ME!”
• DIARY ENTRY: “I FEAR JACK IS
GOING TO SHOOT ME!”
• THESE ARE STATEMENTS OF
SOMEONE ELSE’S STATE OF MIND
• INADMISSIBLE
2014 Chap. 4, part 2 22

• OUT-OF-COURT DECLARATIONS OF
BELIEF ARE USUALLY NOT
ALLOWED IN FOR THEIR TRUTH
– TESTIMONY: X SAID TO ME, “I THINK
JACK DID IT.”
2014
– TESTIMONY: I TOLD HER, “I BELIEVE
MARIE IS SANE.”
Chap. 4, part 2 23

• 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
2014 Chap. 4, part 2 24

• 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; WHITE TEXT IS
ADMISSIBLE]
2014 Chap. 4, part 2 25

• Blake
2014 Chap. 4, part 2 26

• WIDER GROUP OF STMTS. THAN MERE
PHYSICAL, MENTAL, EMOTIONAL
CONDITION
• HERE, ONSET INFO IS INCLUDED
– TESTIMONY: I HEARD HIM SAY TO THE
DOCTOR: “THIS PAIN STARTED LAST
MONTH”
• GENERAL CAUSE INFO IS INCLUDED
– WITNESS TESTIMONY: I SAID TO THE
DOCTOR: “IT BEGAN WHEN I ATE THOSE
EGGS”
2014 Chap. 4, part 2 27

• 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
2014 Chap. 4, part 2 28

• 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’ ”
2014
– THE GREEN PART IS UNNECESSARY
FOR DIAGNOSIS OR TREATMENT, AND
WILL BE KEPT OUT; ORANGE TEXT IS
BORDERLINE
Chap. 4, part 2 29

• 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 THE CULPRIT IS,
WOULD NOT QUALIFY
– STATEMENTS DURING AN INSURANCE
PHYSICAL WOULD NOT QUALIFY
2014 Chap. 4, part 2 30

• 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
2014 Chap. 4, part 2 31

• Petrocelli
2014 Chap. 4, part 2 32

• 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
2014 Chap. 4, part 2 33

• LAY FOUNDATION:
– WITNESS CAN’T NOW RECALL
– WITNESS AT ONE TIME COULD RECALL
– WITNESS CAUSED RECORD TO BE MADE
– IDENTIFY THE RECORD
• RECORD CAN THEN BE READ IN, BUT
THE DOCUMENT CAN’T BE
INTRODUCED EXCEPT BY OTHER SIDE
2014 Chap. 4, part 2 34

• 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
2014 Chap. 4, part 2 35

• 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
2014 Chap. 4, part 2 36

• 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
2014
– WIT. CAN SAY WHAT THE REGULAR
PRACTICE OF THE BUSINESS IS RE.
MAKING RECORDS
Chap. 4, part 2 37

• 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
2014 Chap. 4, part 2 38

• 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
2014 Chap. 4, part 2 39

• DO IT THE TEXAS WAY, EVEN IN
FEDERAL COURT
• MUCH SAFER FOR THE AFFIANT
[AND ULTIMATELY FOR YOU]
– AFFIANT CAN BE DEPOSED AND
CROSS-EXAMINED
– AVOID EMBARRASSING OVERREACH!
2014 Chap. 4, part 2 40

• SERVES AS PROOF THAT THE
EVENT DID NOT HAPPEN
• REQUIRES SHOWING OF THE
USUAL PRACTICE OF THE
ORGANIZATION
2014 Chap. 4, part 2 41

• ARE GENERALLY OK, EXCEPT FOR
LAW ENFORCEMENT RECORDS
• OTHER KINDS OF OFFICIAL
RECORDS ARE O.K. IN CIVIL AND
CRIMINAL CASES
2014 Chap. 4, part 2 42

2014 Chap. 4, part 2 43

• BY THIS PHRASE WE MEAN: WHAT
THE POLICE WROTE DOWN
– POLICE RECORDS OF CITIZEN
STATEMENTS ARE HEARSAY BUT
MIGHT BE O.K. AS EXCITED
UTTERANCE, ETC. [e.g., 911 CALL]
2014 Chap. 4, part 2 44

• POLICE REPORTS ARE
FREQUENTLY ADMITTED IN CIVIL
CASES
• BUT ARE INADMISSIBLE IN
CRIMINAL CASES
[TX. RULE IS THE SAME]
2014
– AND YOU CAN’T SNEAK THEM IN
UNDER ANY OTHER EXCEPTION (LIKE
BUSINESS RECORDS)
Chap. 4, part 2 45

• Melendez-Dias
2014 Chap. 4, part 2 46

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
2014 Chap. 4, part 2 47

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
2014 Chap. 4, part 2 48

3. FACTUAL FINDINGS FROM
INVESTIGATIONS
• E.G., REPORTS ON:
– NATL. TRANSP. SAFETY BOARD AIR
DISASTER INVESTIGATIONS
– CENTERS FOR DISEASE CONTROL
INVESTIGATION OF EPIDEMICS
– POLICE BALLISTICS
INVESTIGATIONS (CIVIL ONLY)
– POLICE FINGERPRINT CHECKS (CIVIL
ONLY)
2014 Chap. 4, part 2 49

• BIRTHS, DEATHS, MARRIAGES
• FOR THESE PARTICULAR EVENTS,
THE PUBLIC RECORDER OFFICE
NEED NOT HAVE ANY FIRST-HAND
KNOWLEDGE OF THE FACTS
RECORDED
2014
– REPORTS MADE TO THE OFFICE BY
CITIZENS ARE OK HERE
Chap. 4, part 2 50

BLOCKAGE OF POLICE RECORDS
DOES NOT APPLY IN THE PARTS OF
CRIMINAL CASES WHERE RULES OF
EVID. DO NOT APPLY
– SENTENCING
– GRAND JURY PROCEEDINGS
– HEARING ON REVOCATION OF
PROBATION
– BAIL PROCEEDINGS
– WARRANTS
2014
[R 1101(d)(3) -- FED. RULES INAPPLICABLE; NO
HEARSAY RULE, SO NO EXCEPTION NEEDED]
Chap. 4, part 2 51

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
[R 101(d)(1)]
“
“
“
2014 Chap. 4, part 2 52

• TREATED MUCH LIKE PUBLIC
RECORDS UNDER (9)
• SIMILAR LIMITED SUBJECT MATTER
– BIRTHS
– DEATHS
– DIVORCES
– BAPTISMS
– ETC.
2014 Chap. 4, part 2 53

• FOUNDATION:
– ACKNOWLEDGED AS AUTHORITATIVE
BY TESTIMONY OF A WITNESS
• PROCEDURE:
– CAN THEN READ IN RELEVANT
PASSAGES
– CAN’T PUT THE BOOK IN
2014 Chap. 4, part 2 54

• 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
2014 Chap. 4, part 2 55

• ADMISSIBLE TO PROVE ANY
UNDERLYING ESSENTIAL FACT
• ONLY JUDGMENTS
– NOT ARRESTS
– NOT INDICTMENTS
– NOT VERDICTS
2014 Chap. 4, part 2 56