CHAP 3 RESUMED THE RULE EXCLUDING HEARSAY WHAT

CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE? P. JANICKE 2008 Chap. 3 -- hearsay resumed

RULE 801 CONTAINS THE DEFINITION • SUBJECT TO VARIOUS DEFINITIONAL EXCEPTIONS IN 801(d), THE GENERAL DEFINITION OF HEARSAY EVIDENCE IS: – A STATEMENT – MADE OUTSIDE THE PRESENT HEARING – OFFERED TO PROVE THAT SOME FACT STATED IN THE STATEMENT IS TRUE 2008 Chap. 3 -- hearsay resumed 2

RULE 802 SAYS OUT-OF-COURT STATEMENTS USUALLY CANNOT BE TESTIFIED TO • NOR CAN ANY DOCUMENT CONTAINING A STATEMENT OF FACT BE INTRODUCED • SUCH TESTIMONY OR DOCUMENT MIGHT FIT UNDER AN EXCEPTION, AND CAN THEN BE ADMITTED 2008 Chap. 3 -- hearsay resumed 3

RECALL: • MOST DOCUMENTS CONTAIN STATEMENTS, AND THEREFORE ARE LIKELY TO BE INADMISSIBLE – IF THE ONLY RELEVANCE IS TO ESTABLISH TRUTH OF THE STATEMENTS, THEY ARE HEARSAY • BUT THE OTHER SIDE’S DOCUMENTS AREN’T HEARSAY IF OFFERED BY YOU – THEY COME UNDER THE DEFINITIONAL EXCEPTION FOR “ADMISSIONS” 2008 Chap. 3 -- hearsay resumed 4

BASIC OPERATION OF THE RULE EXCLUDING HEARSAY 1. 2. 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 3. A DOCUMENT SHOULD NOT BE ADMITTED TO TELL US WHAT HAPPENED 2008 Chap. 3 -- hearsay resumed 5

• EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE: A WITNESS CAN TESTIFY WHAT HE OR SOMEONE ELSE SAID OR WROTE IF: – THE UTTERANCE FITS A DEFINITIONAL EXCEPTION [R 801(d)], OR – THE UTTERANCE FITS AN EXCEPTION [RULES 803, 804] TO THE RULE EXCLUDING HEARSAY EVIDENCE 2008 Chap. 3 -- hearsay resumed 6

TO BE HEARSAY, UTTERANCE MUST CONTAIN A “STATEMENT” • HAS TO ASSERT A PRESENT OR PAST FACT [R 801 (a)] OR OPINION • NOT ALL OUT OF COURT UTTERANCES DO – PROMISES (“YOU’LL LIKE IT”) – COMMANDS (“GET OUT OF HERE”) • SOME DO – “IT’S SUNNY HERE” – “IT RAINED YESTERDAY” – “I LOVE YOU” 2008 Chap. 3 -- hearsay resumed 7

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 HEARSAY, AND THEREFORE INADMISSIBLE – MAIN EXCEPTIONS: • OTHER SIDE’S WRITINGS • OPERATIVE FACT DOCUMENTS (CONTRACT; LEASE) 2008 Chap. 3 -- hearsay resumed 8

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 2008 Chap. 3 -- hearsay resumed 9

THE PROBLEM OF IMPLIED STATEMENTS • EXAMPLE: TESTIMONY THAT DECLARANT SAID “YES!” AFTER OPENING A LETTER • LITERALLY: NO STATEMENT – DOESN’T ASSERT ANY FACT • IMPLIEDLY: THE UTTERANCE SAYS: “I LIKE WHAT IS IN THIS LETTER. ” A STATEMENT 2008 Chap. 3 -- hearsay resumed 10

LEGAL TREATMENT • FOR OUT-OF-COURT WORD UTTERANCES, JUDGE MUST ANALYZE BOTH THE EXPRESS AND IMPLIED SENSES TO SEE IF THERE IS A STATEMENT • FOR CONDUCT, WE IGNORE IMPLICATIONS AND CONSIDER ONLY WHETHER THE ACTOR WAS DIRECTLY NARRATING (SIGNING) 2008 Chap. 3 -- hearsay resumed 11

EXAMPLE: • TESTIMONY: – HE OPENED LETTER – HE THEN JUMPED IN THE AIR • NOT A “STATEMENT” FOR HEARSAY PURPOSES • CAN’T BE KEPT OUT VIA THE RULE EXCLUDING HEARSAY [R 802] 2008 Chap. 3 -- hearsay resumed 12

THE SPECIAL RULE FOR CONDUCT -- WHEN IT 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)] • IMPLICATIONS DON’T COUNT • ACTS THAT MERELY SIGNAL FEELINGS OR BELIEFS DON’T COUNT 2008 Chap. 3 -- hearsay resumed 13

CONDUCT AS A STATEMENT: WE MEAN DIRECT SIGN LANGUAGE; NOT SIGNALING OF FEELINGS OR BELIEFS: 1. NOD OR SHAKE OF HEAD FOR YES OR NO 2. POINTING TO IDENTIFY A PERSON, PLACE, OR THING 3. REENACTMENTS • 2008 NEARLY ALL OTHER CONDUCT IS NOT PRIMARILY INTENDED TO TELL A STORY, AND IS NOT TREATED AS A “STATEMENT, ” EVEN THOUGH LOADED WITH IMPORTANT IMPLICATIONS Chap. 3 -- hearsay resumed 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 2008 Chap. 3 -- hearsay resumed 15

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 2008 Chap. 3 -- hearsay resumed 16

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 2008 Chap. 3 -- hearsay resumed 17

FURTHER EXAMPLES OF CONDUCT THAT IS NOT A STATEMENT (NONNARRATIVE) • “THE FINGER” [PROBABLY A REQUEST OR SUGGESTION, NOT A STATEMENT] • PILING UP OTHER PERSON’S BELONGINGS IN MIDDLE OF FLOOR OR SIDEWALK • BURNING THE FLAG 2008 Chap. 3 -- hearsay resumed 18

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 DIRECTLY STATES SOMETHING (no implications allowed) ---– eye contact + [H, C, Do. Kn, Ca. Se/Ca. He, WKG OK] 2008 Chap. 3 -- hearsay resumed 19

WORDS THAT COLOR CONDUCT ARE TREATED AS PART OF THE CONDUCT • NOT A STATEMENT – 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” 2008 Chap. 3 -- hearsay resumed 20

RULES OF THUMB 1. MIXED WORDS AND CONDUCT: – TREAT IT 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 2008 Chap. 3 -- hearsay resumed 21

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 2008 Chap. 3 -- hearsay resumed 22

• PROB. 3 A, 3 B, CHECK CASE 2008 Chap. 3 -- hearsay resumed 23

“OFFERED TO PROVE THE TRUTH OF THE STATEMENT” • 2008 SOME OUT-OF-COURT STATEMENTS ARE ELICITED AT TRIAL FOR OTHER REASONS, AND ARE THEREFORE NOT HEARSAY Chap. 3 -- hearsay resumed 24

1. IMPEACHING A WITNESS – E. G. : PRIOR INCONSISTENT STATEMENT – DOES NOT COME IN FOR ITS TRUTH NOTE: IF THE PROPONENT ALSO WANTS IT IN FOR ITS TRUTH, A DEFINITIONAL EXCEPTION OR RULE EXCEPTION HAS TO BE FOUND 2008 Chap. 3 -- hearsay resumed 25

2. WORDS THAT ARE THEMSELVES AN ELEMENT OF THE CASE – E. G. : FALSE OFFICIAL STATEMENT – E. G. : OFFER AND ACCEPTANCE – E. G. : WARRANTIES – SOMETIMES CALLED “RES GESTAE” – SOMETIMES CALLED WORDS THAT ARE AN OPERATIVE FACT – M-K CALL THIS A “VERBAL ACT” 2008 Chap. 3 -- hearsay resumed 26

3. PROVING THE LISTENER’S STATE OF MIND THAT IS AN ELEMENT OF THE CASE/DEFENSE • 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” – – 2008 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! Chap. 3 -- hearsay resumed 27

• 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 2008 Chap. 3 -- hearsay resumed 28

• TESTIMONY THAT X SAID TO D: “THE BRAKES ON MY CAR ARE BAD” OFFERED TO SHOW ASSUMPTION OF RISK IN RIDING IN THE CAR – ASSUMPTION OF RISK IS A STATE OF MIND 2008 Chap. 3 -- hearsay resumed 29

• PROB. 3 C, 3 D, 3 E, 3 F, 3 G, 3 H, 3 I, 3 J, SINGER, 3 K, PACELLI, 3 M, BETTS. 2008 Chap. 3 -- hearsay resumed 30

THE HEARSAY QUIZ IN M-K [pp. 182 -184] • APPLY THE DEFINITIONAL EXCEPTIONS IN R 801(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 – DON’T WORRY ABOUT WHY IT’S OFFERED 2008 Chap. 3 -- hearsay resumed 31

SEQUENCE 1. CHECK 801(D) – NOT HEARSAY 2. IS THE WIT. TESTIFYING TO 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? 2008 Chap. 3 -- hearsay resumed 32