CHAP. 3 -- RESUMED:THE RULE EXCLUDING HEARSAY – WHAT IS

HEARSAY EVIDENCE?

P. JANICKE

2014

2014

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

– 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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MEANING OF HEARSAY

• NO TESTIMONY IS ALLOWED CONCERNING ANY CONVERSATION THAT:– CONTAINS A “STATEMENT” [RECITATION

OF PRESENT OR PAST FACT]

– WAS MADE OUTSIDE THE PRESENT HEARING

– IS OFFERED TO HELP IN PROVING THAT THE FACT STATED IN THE STATEMENT IS TRUE

BIG EXCEPTION

• STATEMENTS MADE BY A PARTY, WHEN ELICITED BY THE OPPOSING PARTY’S LAWYER,

• FROM ANY KNOWLEDGEABLE WITNESS

• THESE ARE “NOT HEARSAY”

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TO BE HEARSAY, UTTERANCE MUST CONTAIN A “STATEMENT”

• RECITATION OF A PRESENT OR PAST FACT [R 801 (a)] OR OPINION

• CALLED “ASSERTION” IN THE RULE• NOT ALL OUT OF COURT UTTERANCES

CONTAIN STATEMENTS– 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 STATEMENTS, AND THEREFORE INADMISSIBLE HEARSAY

– MAIN EXCEPTIONS: • OTHER SIDE’S WRITINGS• OPERATIVE FACT DOCUMENTS (CONTRACT; LEASE;

WILL)

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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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RULE 802 SAYS OUT-OF-COURT STATEMENTS USUALLY CANNOT

BE TESTIFIED TO

• NOR CAN ANY DOCUMENT CONTAINING A STATEMENT OF FACT BE INTRODUCED, GENERALLY

• BUT: SUCH TESTIMONY OR DOCUMENT MIGHT FIT UNDER A HEARSAY EXCEPTION, AND CAN THEN BE INTRODUCED

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RULES• MOST DOCUMENTS CONTAIN

STATEMENTS, AND THEREFORE ARE LIKELY INADMISSIBLE

• BUT, A DEFINITIONAL EXCEPTION: THE OTHER SIDE’S DOCUMENTS AREN’T HEARSAY IF OFFERED BY YOUR SIDE– THEY COME UNDER THE DEFINITIONAL

EXCEPTION FOR “ADMISSIONS” BY PARTY OPPONENT

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THE PROBLEM OF IMPLIED STATEMENTS

• EXAMPLE: TESTIMONY THAT DECLARANT SHOUTED “YES!” AFTER OPENING A LETTER

• LITERALLY: NO STATEMENT– DOESN’T ASSERT ANY FACT

• IMPLIEDLY: THE UTTERANCE SAYS, “I LIKE WHAT IS IN THIS LETTER.” THAT IS A STATEMENT

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LEGAL TREATMENT OF IMPLIED STATEMENTS

• FOR OUT-OF-COURT WORD UTTERANCES, JUDGE MUST ANALYZE BOTH THE EXPRESS AND IMPLIED SENSES TO SEE IF THERE IS A “STATEMENT”

• FOR OUT-OF-COURT CONDUCT, WE IGNORE IMPLICATIONS AND CONSIDER ONLY WHETHER THE ACTOR WAS INTENDING TO STATE A FACT (e.g., BY SIGN LANGUAGE)

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EXAMPLE:

• TESTIMONY: – HE OPENED THE LETTER– HE THEN JUMPED IN THE AIR

• NO “STATEMENT” HERE FOR HEARSAY PURPOSES (NO INTENT)

• » CAN’T BE KEPT OUT VIA THE RULE EXCLUDING HEARSAY [R802]

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WHEN CONDUCT 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)]

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CONDUCT AS A STATEMENT: WE MEAN DIRECT SIGN LANGUAGE; NOT

HINTS OF FEELINGS OR BELIEFS:

EXAMPLES OF CONDUCT STATEMENTS:

1.NOD OR SHAKE OF HEAD FOR YES OR NO

2.POINTING TO IDENTIFY A PERSON, PLACE, OR THING

3.REENACTMENTS

•

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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 (NON-

NARRATIVE)

• 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 (NON-

NARRATIVE)

• PILING UP ANOTHER 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 IS INTENDED TO DIRECTLY STATE A FACT ----– eye contact + [H, C, DoKn, CaSe/CaHe, OK]

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WORDS THAT COLOR CONDUCT ARE TREATED AS NON-STATEMENTS

• WHERE 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 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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PROBLEMS/CASES

• 3A

• 3B

• CHECK

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“OFFERED TO PROVE THE TRUTH OF THE STATEMENT”

• SOME OUT-OF-COURT STATEMENTS ARE ELICITED AT TRIAL FOR OTHER REASONS, AND ARE THEREFORE NOT HEARSAY PER R. 802

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EXAMPLES OF USING STATEMENTS FOR OTHER

PURPOSES

1. IMPEACHING A WITNESS– E.G.: PRIOR INCONSISTENT

STATEMENT– DOES NOT COME IN FOR ITS TRUTH

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2. WORDS THAT ARE THEMSELVES A NECESSARY ELEMENT OF THE CASE– E.G.: FALSE OFFICIAL STATEMENT– E.G.: OFFER AND ACCEPTANCE IN

CONTRACT CASE– E.G.: WARRANTIES IN BREACH OF

WARRANTY CASE

– 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 RELEVANT TO THE CASE OR DEFENSE, i.e., WHERE STATE OF MIND MATTERS

• TESTIMONY THAT X SAID TO D: “I HAVE A GUN THAT IS POINTED AT YOU”– SELF-DEFENSE REQUIRES PROOF OF ACTOR’S

STATE OF MIND

– TRUTH OF THE STATEMENT HAS NOTHING TO DO WITH IT

• TESTIMONY THAT X SAID TO D: “THESE T.V. SETS ARE STOLEN” – IF THE TRIAL IS FOR RECEIVING, KNOWLEDGE IS

AN ELEMENT

– CAVEAT: LIMITED OFFER WILL BE ENFORCED!

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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• CAN AN UNCONSCIOUS PERSON ACT

“NEGLIGENTLY”? NO.

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• TESTIMONY THAT X SAID TO PLAINTIFF: “THE BRAKES ON MY CAR ARE BAD” OFFERED TO SHOW PLAINTIFF’S ASSUMPTION OF RISK IN RIDING IN THE CAR

– ASSUMPTION OF RISK IS A STATE OF MIND

• CAN AN UNCONSCIOUS PERSON ASSUME A RISK WHILE UNCONSCIOUS? NO.

THE TWO KEYS:

• NO STATEMENT = NO HEARSAY

• NOT OFFERED TO ESTABLISH TRUTH OF THE STATEMENT = NOT HEARSAY

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PROBLEMS/CASES

• 3C

• 3D

• 3E

• 3F

• 3G

• 3H (cont’d)

• 3J

• PACELLI

• 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– NO WORRY ABOUT WHY IT’S OFFERED

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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, THE TEST. IS BRINGING IN HEARSAY

4. IS THERE AN APPLICABLE EXCEPTION TO THE RULE?

• M-K HEARSAY QUIZ, Q&A ----

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