CHAP 3 RESUMED THE RULE EXCLUDING HEARSAY WHAT

CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE? Prof. JANICKE 2019

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, EXCEPT WHAT THE OTHER SIDE SAID/WROTE 3. EXCEPT FOR THE OTHER SIDE’S DOCUMENTS, A DOCUMENT SHOULD USUALLY NOT BE ADMITTED ON THE FACTS 2019 Chap. 3 -- Hearsay Evidence 2

MEANING OF HEARSAY • USUALLY, NO TESTIMONY IS ALLOWED CONCERNING ANY HUMAN UTTERANCE THAT: – CONTAINS A STATEMENT [i. e. , A RECITATION OF FACT]; and – WAS MADE OUTSIDE THE PRESENT HEARING; and – IS OFFERED TO HELP IN PROVING THAT THE FACT STATED IN THE STATEMENT IS TRUE 2019 Chap. 3 -- Hearsay Evidence 3

DOCUMENTS • SAME 3 -PART RULE • MOST DOCUMENTS CONTAIN HEARSAY – NEED TO BE REDACTED 2019 Chap. 3 -- Hearsay Evidence 4

BIG EXCEPTION: THE OPPOSING PARTY’S STATEMENTS • STATEMENTS MADE BY PARTY “A”, OFFERED IN EVIDENCE BY PARTY “B”: – FROM ANY WITNESS KNOWLEDGEABLE ABOUT PARTY A’S STATEMENT • ARE “NOT HEARSAY” R. 801(d) 2019 Chap. 3 -- Hearsay Evidence 5

PARTY “A”s FACTUAL WRITINGS • ARE NOT HEARSAY IF OFFERED IN EVIDENCE BY PARTY “B” • ARE HEARSAY IF OFFERED IN EVIDENCE BY PARTY “A” !! • WHY? R. 801(d) 2019 Chap. 3 -- Hearsay Evidence 6

NON-PARTY UTTERANCES: • “HE SAID” “SHE TOLD ME” • THESE ARE LIKELY TO CONTAIN STATEMENTS OF FACT • ARE LIKELY TO FIT THE HEARSAY DEFINITION 2019 Chap. 3 -- Hearsay Evidence 7

HOWEVER: • NOT ALL OUT-OF-COURT HUMAN UTTERANCES CONTAIN STATEMENTS OF FACT: – COMMANDS (“GET OUT OF HERE” “STUDY THIS WELL”) DO NOT STATE FACTS – EXCLAMATIONS (“WOW!” “OMG”) DO NOT STATE FACTS • SO THESE ARE NOT HEARSAY PROBLEMS 2019 Chap. 3 -- Hearsay Evidence 8

EXAMPLES OF OUT-OFCOURT “STATEMENTS” • “IT’S SUNNY HERE” RECITES A FACT • “IT RAINED YESTERDAY” RECITES A FACT • “I LOVE YOU” RECITES A FACT • THESE ARE POTENTIALLY HEARSAY IF A WITNESS LATER TESTIFIES TO WHAT WAS SAID 2019 Chap. 3 -- Hearsay Evidence 9

THE FACTS CAN AND SHOULD BE TESTIFIED TO BY A LIVE WITNESS WITH KNOWLEDGE • WITNESS CAN TESTIFY “WE GOT SOME FLOODING. ” NOT: “SHE SAID WE GOT SOME FLOODING” • WITNESS CAN TESTIFY “WE MET ON THE SUBJECT OF A MERGER. ” NOT : “THE MEMO STATED THAT WE MET ON THE SUBJECT OF A MERGER” 2019 Chap. 3 -- Hearsay Evidence 10

THIS IS THE WHOLE POINT OF THE HEARSAY RULE – IT’S THE MANNER OF PROVING A FACT THAT IS BLOCKED BY THE HEARSAY RULE, NOT THE FACT ITSELF – WE WANT TO HEAR THE FACTS LIVE, AND SUBJECT TO CROSSEXAMINATION 2019 Chap. 3 -- Hearsay Evidence 11

CONDUCT • A PERSON’S CONDUCT IS OFTEN HIGHLY RELEVANT TO THE CASE • BUT IS THAT CONDUCT A “STATEMENT”? 2019 Chap. 3 -- Hearsay Evidence 12

WHEN IS OUT-OF-COURT CONDUCT A “STATEMENT”? • CONDUCT CAN BE REGARDED AS A “STATEMENT” FOR HEARSAY PURPOSES, ONLY IF: – THE ACTOR’S PRIMARY PURPOSE WAS TO NARRATE (RECITE) FACTS [R 801 (a)] 2019 >>> Chap. 3 -- Hearsay Evidence 13

• THE VAST MAJORITY OF HUMAN CONDUCT (99%) IS NOT DONE PRIMARILY FOR THIS PURPOSE – IT IS DONE MAINLY TO GET ON WITH LIFE! • THEREFORE, CONDUCT IS RARELY TREATED AS A “STATEMENT”; HENCE NOT HEARSAY; OK FOR A WITNESS TO TESTIFY ABOUT IT 2019 Chap. 3 -- Hearsay Evidence 14

• EXAMPLES OF THE 1% CONDUCT THAT IS A STATEMENT: 1. NOD OR SHAKE OF HEAD FOR YES OR NO 2. POINTING TO IDENTIFY A PERSON, PLACE, OR THING 3. REENACTMENT 4. SIGN LANGUAGE FOR FACTS 2019 Chap. 3 -- Hearsay Evidence 15

CLOSE CALLS: • IF IN DOUBT, ASSUME THE ACTOR’S PRIME PURPOSE WAS NOT TO COMMUNICATE FACTS 2019 Chap. 3 -- Hearsay Evidence 16

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 – >>> 2019 Chap. 3 -- Hearsay Evidence 17

• THE CAPTAIN WAS NOT MAKING A STATEMENT • HE WAS ACTING IN A CERTAIN WAY, HIGHLY RELEVANT TO THE CASE – CONDUCT, NOT A STATEMENT • RECALL: NO STATEMENT = NO HEARSAY 2019 Chap. 3 -- Hearsay Evidence 18

FURTHER EXAMPLES OF RELEVANT CONDUCT THAT IS NOT A STATEMENT (NON-NARRATIVE) • PROMOTING A LIEUTENANT TO CAPTAIN • GIVING AN EMPLOYEE A BONUS • HOSPITAL PUTTING PATIENT IN I. C. U. 2019 Chap. 3 -- Hearsay Evidence 19

SOME CLOSE CALLS • SHE THROWS WINE IN HIS FACE, AND LEAVES THE RESTAURANT – [THIS ONE MAY BE ARGUABLE. IS HER MAIN INTENT TO NARRATE A FACT? ? ] • THE JUDGE DECIDES THE PRIMARY PURPOSE 2019 Chap. 3 -- Hearsay Evidence 20

• IF SHE SAID “YOU ARE A JERK” – THAT IS A STATEMENT – POTENTIALLY HEARSAY [DEPENDING ON WHY THE TESTIMONY IS NOW OFFERED] 2019 Chap. 3 -- Hearsay Evidence 21

WORDS THAT ADD MEANING TO CONDUCT ARE NOT STATEMENTS (ALTHOUGH FACIALLY THEY LOOK LIKE STATEMENTS) • EXAMPLE 1: HANDING OVER CASH, AND SAYING “THIS IS FOR THE JULY RENT” • EXAMPLE 2: HANDING CAR KEYS, AND SAYING “IT’S IN THE GARAGE” – WE TREAT THESE TOTALLY AS CONDUCT. NO HEARSAY INVOLVED. 2019 Chap. 3 -- Hearsay Evidence 22

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 CANNOT BE HEARSAY 2019 Chap. 3 -- Hearsay Evidence 23

SOME CLOSE CALLS? 2019 Chap. 3 -- Hearsay Evidence 24

2019 Chap. 3 -- Hearsay Evidence 25

PROBLEMS/CASES • 3 A • 3 B • CHECK 2019 Chap. 3 -- Hearsay Evidence 26

“OFFERED TO PROVE THE TRUTH OF THE STATEMENT” • I. E. , TO ESTABLISH THAT THE STATEMENT WAS CORRECT • SOME OUT-OF-COURT STATEMENTS ARE ELICITED AT TRIAL FOR OTHER REASONS, AND ARE THEREFORE NOT HEARSAY PER R. 802 2019 Chap. 3 -- Hearsay Evidence 27

EXAMPLES OF USING STATEMENTS FOR OTHER PURPOSES 1. PROVING THE LISTENER’S STATE OF MIND, WHERE STATE OF MIND MATTERS: • 2019 TESTIMONY THAT X SAID TO D: “I HAVE A GUN THAT IS POINTED AT YOU” – SELF-DEFENSE REQUIRES PROOF OF D’s STATE OF MIND – TRUTH/CORRECTNESS OF THE STATEMENT HERE HAS NOTHING TO DO WITH IT! Chap. 3 -- Hearsay Evidence 28

2. WORDS THAT ARE THEMSELVES A NECESSARY ELEMENT OF THE CASE – FALSE OFFICIAL STATEMENT – OFFER AND ACCEPTANCE IN A CONTRACT CASE – WARRANTIES IN A BREACH OF WARRANTY CASE – SOMETIMES CALLED “WORDS THAT ARE AN OPERATIVE FACT” – M-K CALL THIS A “VERBAL ACT” >>> 2019 Chap. 3 -- Hearsay Evidence 29

• FOR THE LAWYER OFFERING THESE, TRUTHFULNESS OF THE WORDS DOES NOT MATTER • SAYING THEM MATTERS 2019 Chap. 3 -- Hearsay Evidence 30

THE TWO KEYS: 1. NO STATEMENT = NO HEARSAY 2. NOT OFFERED TO ESTABLISH TRUTH OF THE STATEMENT = NOT HEARSAY 2019 Chap. 3 -- Hearsay Evidence 31

PROBLEMS/CASES • • • 3 C 3 D 3 E 3 F 3 G 3 H (cont’d) 2019 Chap. 3 -- Hearsay Evidence 32

• 3 J • BETTS 2019 Chap. 3 -- Hearsay Evidence 33

THE HEARSAY QUIZ IN M-K [pp. 161 -164] • DO APPLY THE DEFINITIONAL EXCEPTIONS IN R 801(d) WHERE 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] 2019 Chap. 3 -- Hearsay Evidence 34

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, IT IS BRINGING IN HEARSAY 4. IS THERE AN APPLICABLE EXCEPTION TO THE RULE AGAINST HEARSAY EVIDENCE? 2019 Chap. 3 -- Hearsay Evidence 35