Transcript CHAP. 4: EXCEPTIONS TO THE RULE EXCLUDING HEARSAY

CHAP. 3 -- RESUMED:
THE RULE EXCLUDING
HEARSAY – WHAT IS
HEARSAY EVIDENCE?
P. JANICKE
2007
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
2007
Chap. 3 -- hearsay resumed
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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
2007
Chap. 3 -- hearsay resumed
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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”
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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
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• 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 [R801(d)], OR
– THE UTTERANCE FITS AN EXCEPTION
[RULES 803, 804] TO THE RULE EXCLUDING
HEARSAY EVIDENCE
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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”
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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)
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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
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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
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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)
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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 [R802]
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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
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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
•
2007
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
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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
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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
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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
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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
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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, DoKn, CaSe/CaHe, WKG OK]
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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”
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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
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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
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• PROB. 3A, 3B, CHECK CASE
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“OFFERED TO PROVE THE
TRUTH OF THE STATEMENT”
•
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SOME OUT-OF-COURT
STATEMENTS ARE ELICITED AT
TRIAL FOR OTHER REASONS, AND
ARE THEREFORE NOT HEARSAY
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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
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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”
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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”
–
–
2007
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
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• 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
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• 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
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• PROB. 3C, 3D, 3E, 3F, 3G, 3H, 3I, 3J,
SINGER, 3K, PACELLI, 3M, BETTS.
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THE HEARSAY QUIZ IN M-K
[pp. 182-184]
• APPLY THE DEFINITIONAL EXCEPTIONS
IN R801(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
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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?
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