CHAP 3 INTRODUCTION TO THE HEARSAY RULE P

CHAP. 3 : INTRODUCTION TO THE HEARSAY RULE P. JANICKE 2018

ONLY “STATEMENTS” CAN BE HEARSAY EVIDENCE – CAN’T BE REVEALED IN COURT

MUCH HUMAN DISCOURSE IS NON-STATEMENT UTTERANCES statements 2018. REV 2 Chap. 3 -- Intro to Hearsay 3

MEANINGS • UTTERANCE = ANYTHING WE SAY OR WRITE • STATEMENT = UTTERANCE THAT RECITES A FACT • ERGO: SOME UTTERANCES ARE STATEMENTS, BUT OTHERS ARE 2018. REV 2 Chap. 3 -- Intro to Hearsay NOT 4

THE LAW • ONLY STATEMENTS MADE OUT OF COURT CAN POSSIBLY BE HEARSAY EVIDENCE • NON-STATEMENTS CAN BE REVEALED AT TRIAL 2018. REV 2 Chap. 3 -- Intro to Hearsay 5

? ? ? • “HE SAID. . . ” • “SHE SAID. . . ” • “I SAID. . . ” • WE DON’T KNOW IF THESE WERE STATEMENTS • COULD HAVE BEEN “GET OUT OF HERE” or “HEY! 2018. REV 2 Chap. 3 -- Intro to Hearsay 6

EXAMPLES OF OUT-OF-COURT STATEMENTS • WIT. : “SHE SAID: ‘IT IS RAINING’” • WIT. : “HE SENT ME AN EMAIL SAYING: ‘THE SUN ROSE AT ABOUT 6: 00’” • WIT. : “SHE TOLD ME SHE HAD A GUN IN HER HAND” 2018. REV 2 Chap. 3 -- Intro to Hearsay 7

MOST DOCUMENTS CONTAIN STATEMENTS • IF SO, THEY ARE HEARSAY, AND PRIMA FACIE INADMISSIBLE • CAN BE EXCEPTIONS ALLOWING THIS KIND OF HEARSAY TO COME IN – IT IS STILL HEARSAY, BUT ADMISSIBLE 2018. REV 2 Chap. 3 -- Intro to Hearsay 8

• WHEN AN OPPOSING LAWYER PICKS UP A PIECE OF PAPER, • YOU SHOULD THINK “H” 2018. REV 2 Chap. 3 -- Intro to Hearsay 9

ALL OF THESE WOULD BE OK IF THE SAME FACTS WERE TESTIFIED TO IN COURT: • WIT. : “I SAW THAT IT WAS RAINING” • WIT. : “I SAW THE SUNRISE AT ABOUT 6: 00” • WIT. : “I HAD A GUN IN MY HAND” 2018. REV 2 Chap. 3 -- Intro to Hearsay 10

EXAMPLES OF HEARSAY EVIDENCE – LETTERS ARE USUALLY INADMISSIBLE – THEY CONTAIN STATEMENTS – POLICE REPORTS OF WHAT HAPPENED ARE INADMISSIBLE – NEWSPAPER ACCOUNTS OF EVENTS ARE INADMISSIBLE 2018. REV 2 Chap. 3 -- Intro to Hearsay 11

RATIONALE: • WE WANT WITNESSES TO TELL US FIRST-HAND ON THE STAND WHAT THEY SAW AND DID – OUT-OF-COURT STATEMENTS ARE DIFFICULT TO CROSS-EXAMINE (ESPECIALLY IF SPEAKER IS NOT AT TRIAL) 2018. REV 2 Chap. 3 -- Intro to Hearsay 12

• HOW IT WORKS: – CHEMIST FROM THE POLICE LAB TESTIFIES TO THE BLOOD TYPE; THE WRITTEN REPORT OF BLOOD TYPE IS NOT ADMITTED – HOMEOWNER TESTIFIES THERE WAS AN INTRUDER; NOT WHAT SHE TOLD THE POLICE; NOT WHAT HER WITNESS STATEMENT TO THE POLICE SAID – BORROWER TESTIFIES LOAN PAYMENTS WERE MADE ON TIME; HER LETTER TO BANK SAYING SO IS NOT ADMITTED 2018. REV 2 Chap. 3 -- Intro to Hearsay 13

THE MAIN EXCEPTION TO WHAT IS HEARSAY: STATEMENTS OF A PARTY, WHEN OFFERED BY AN ADVERSARY PARTY • CAN BE INTRODUCED BY THE OPPONENT, VIA ANY WITNESS WHO KNOWS WHAT THE PARTY SAID • CORPORATE DOCUMENTS (LETTERS; MEMOS) OF ONE SIDE ARE ADMISSIBLE BY THE OTHER SIDE >>>> 2018. REV 2 Chap. 3 -- Intro to Hearsay 14

• THIS LOOKS AND SMELLS LIKE HEARSAY. BUT: • RULE 801(d) STATES IT IS AN EXCEPTION TO THE DEFINITION • NO LOGIC TO THIS! 2018. REV 2 Chap. 3 -- Intro to Hearsay 15

EXAMPLE: WHAT MR. JONES SAID • ISSUE: ADMISSIBILITY IN THE CASE OF JONES v. SMITH 2018. REV 2 Chap. 3 -- Intro to Hearsay 16

ADMISSIBLE HIGH UP BENCH (JUDGE) JONES CLERK AND REPORTER PODIUM COUNSEL FOR SMITH JURY COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) 2018. REV 2 SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay 17

ADMISSIBLE HIGH UP BENCH (JUDGE) BYSTANDER CLERK AND REPORTER PODIUM COUNSEL FOR SMITH JURY COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) 2018. REV 2 SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay 18

ADMISSIBLE HIGH UP BENCH (JUDGE) SMITH CLERK AND REPORTER PODIUM COUNSEL FOR SMITH JURY COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) 2018. REV 2 SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay 19

NOT ADMISSIBLE. WHY? HIGH UP BENCH (JUDGE) SMITH CLERK AND REPORTER PODIUM COUNSEL FOR SMITH JURY COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) 2018. REV 2 SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay 20

NOT ADMISSIBLE. WHY? HIGH UP BENCH (JUDGE) BYSTANDER CLERK AND REPORTER PODIUM COUNSEL FOR SMITH JURY COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) 2018. REV 2 SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay 21

NOT ADMISSIBLE. WHY? HIGH UP BENCH (JUDGE) JONES CLERK AND REPORTER PODIUM COUNSEL FOR SMITH JURY COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) 2018. REV 2 SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay 22

THE BASICS • A PARTY, OR ANY OTHER WITNESS, CAN ALWAYS TESTIFY TO WHAT HAPPENED IF THE WITNESS HAS FIRST-HAND KNOWLEDGE • WITNESSES CAN ALSO TESTIFY WHAT THE PARTY X SAID, BUT ONLY IF ASKED BY OPPOSING PARTY Y’S LAWYER • PARTY X’S LAWYER CANNOT ASK ANY WITNESS WHAT HER CLIENT X OR A BYSTANDER SAID 2018. REV 2 Chap. 3 -- Intro to Hearsay 23

• NOTE THAT CONFESSIONS ARE STATEMENTS OF FACT BY “A PARTY” (DEFENDANT) • HENCE NOT HEARSAY WHEN OFFERED BY THE PROSECUTION – PROS. CAN ASK A BYSTANDER WHAT D. SAID – PROS. CAN ASK A POLICEMAN WHAT D. SAID (IF HE HEARD IT) – IF D. TESTIFIES AT TRIAL, PROS. CAN ASK D. WHAT D. SAID 2018. REV 2 Chap. 3 -- Intro to Hearsay 24

• A VICTIM IS NOT A PARTY IN A CRIMINAL CASE – HENCE, VICTIM’S OUT-OF-COURT STATEMENTS TO POLICE, NEIGHBORS, ETC. , ARE USUALLY NOT ALLOWED TO BE INTRODUCED AT TRIAL BY EITHER SIDE – VICTIM CAN OF COURSE TESTIFY TO WHAT HAPPENED 2018. REV 2 Chap. 3 -- Intro to Hearsay 25