CHAP 3 RESUMED THE RULE EXCLUDING HEARSAY WHAT

CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE? Prof. JANICKE 2020

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 OR A DOCUMENT THAT IS AN ELEMENT OF THE CASE (e. g. , A WILL), DOCUMENTS SHOULD USUALLY NOT BE ADMITTED 2020 Chap. 3 -- Hearsay Evidence 2

MEANING OF HEARSAY(1) • ASSIGNED: Rule 801(a)–(c); Rule 802 • “STATEMENT” IS DEFINED AS “ASSERTION” – MEANING: A RECITATION OF FACT OR OPINION 2020 Chap. 3 -- Hearsay Evidence 3

MEANING OF HEARSAY(2) • MADE OUTSIDE THE PRESENT TRIAL, AND RELATED NOW AT TRIAL • THE WITNESS CAN MAKE THE SAME STATEMENT ON THE STAND; IT’S OK 2020 Chap. 3 -- Hearsay Evidence 4

MEANING OF HEARSAY(3) • PURPOSE OF THE OFFERING LAWYER IS TO HELP ESTABLISH THE CORRECTNESS OF WHAT WAS SAID 2020 Chap. 3 -- Hearsay Evidence 5

CONDUCT • A PERSON’S CONDUCT IS OFTEN HIGHLY RELEVANT TO THE CASE • BUT IS CONDUCT A “STATEMENT”? – USUALLY NOT 2020 Chap. 3 -- Hearsay Evidence 6

WHEN IS OUT-OF-COURT CONDUCT A “STATEMENT”? • Rule 801(a) - CONDUCT CAN BE REGARDED AS A “STATEMENT” FOR HEARSAY PURPOSES, ONLY IF: – THE ACTOR’S PURPOSE WAS TO NARRATE (RECITE) FACTS TO SOMEONE >>> 2020 Chap. 3 -- Hearsay Evidence 7

• THE VAST MAJORITY OF HUMAN CONDUCT (99%) IS NOT DONE FOR THIS PURPOSE – IT IS DONE MAINLY TO GET ON WITH LIFE! (BUSINESS, EDUCATION, LOVE) • THEREFORE, CONDUCT IS RARELY TREATED AS A “STATEMENT”; HENCE NOT HEARSAY; OK FOR A WITNESS TO TESTIFY ABOUT IT 2020 Chap. 3 -- Hearsay Evidence 8

• EXAMPLES OF THE 1% OF CONDUCT THAT IS A STATEMENT: 1. NOD OR SHAKE OF HEAD FOR YES OR NO, TO A QUESTION 2. POINTING TO IDENTIFY A PERSON, PLACE, OR THING 3. REENACTMENTS 4. SIGN LANGUAGE FOR FACTS/OPINIONS 2020 Chap. 3 -- Hearsay Evidence 9

CLOSE CALLS: • IF IN DOUBT, ASSUME THE ACTOR’S PURPOSE WAS NOT TO COMMUNICATE FACTS 2020 Chap. 3 -- Hearsay Evidence 10

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 – >>> 2020 Chap. 3 -- Hearsay Evidence 11

• HELD: THE CAPTAIN WAS NOT MAKING A STATEMENT – WITNESS CAN TESTIFY TO THE CONDUCT • RECALL: NO STATEMENT = NO HEARSAY 2020 Chap. 3 -- Hearsay Evidence 12

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. 2020 Chap. 3 -- Hearsay Evidence 13

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 OR OPINION? ? ] • THE JUDGE DECIDES THE PRIMARY PURPOSE 2020 Chap. 3 -- Hearsay Evidence 14

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. 2020 Chap. 3 -- Hearsay Evidence 15

DEALING WITH 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 2020 Chap. 3 -- Hearsay Evidence 16

SOME CLOSE CALLS? 2020 Chap. 3 -- Hearsay Evidence 17

2020 Chap. 3 -- Hearsay Evidence 18

PROBLEMS/CASES • 3 A • 3 B • CHECK 2020 Chap. 3 -- Hearsay Evidence 19

“OFFERED TO PROVE THE TRUTH OF THE STATEMENT” • I. E. , TO HOPEFULLY PERSUADE 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 2020 Chap. 3 -- Hearsay Evidence 20

EXAMPLES OF USING STATEMENTS FOR OTHER PURPOSES 1. TO PROVE THE LISTENER’S STATE OF MIND, WHERE STATE OF MIND MATTERS: • 2020 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 21

2. WHERE WORDS 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” >>> 2020 Chap. 3 -- Hearsay Evidence 22

HOW DO WE KNOW THE OFFERING LAWYER’S PURPOSE? ? ? • THE JUDGE ASKS – WHERE ARE YOU GOING WITH THIS? – MAY BE ADMITTED FOR A LIMITED PURPOSE 2020 Chap. 3 -- Hearsay Evidence 23

THE TWO KEYS: 1. NO STATEMENT = NO HEARSAY 2. NOT OFFERED FOR PURPOSE OF ESTABLISHING CORRECTNESS OF THE STATEMENT = NOT HEARSAY 2020 Chap. 3 -- Hearsay Evidence 24

PROBLEMS/CASES • • • 3 C 3 D 3 E 3 F 3 G 3 H (cont’d) 2020 Chap. 3 -- Hearsay Evidence 25

• 3 J • BETTS 2020 Chap. 3 -- Hearsay Evidence 26

EXCEPTIONS TO THE DEFINITION! • RULE 801(d) -- ASSIGNED 2020 Chap. 3 -- Hearsay Evidence 27

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] 2020 Chap. 3 -- Hearsay Evidence 28

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? 2020 Chap. 3 -- Hearsay Evidence 29