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

1. CHAP. 3 -- RESUMED:THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE? P. JANICKE 2012

2. BASIC OPERATION OF THE RULE EXCLUDING HEARSAY • 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 • A DOCUMENT SHOULD NOT BE ADMITTED TO TELL US WHAT HAPPENED

3. 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 PROVE THAT THE FACT STATED IN THE STATEMENT IS TRUE

4. 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 ADMITTED

5. MOST DOCUMENTS CONTAIN STATEMENTS, AND THEREFORE ARE LIKELY INADMISSIBLE • IF THE ONLY RELEVANCE IS TO ESTABLISH TRUTH OF THE STATEMENTS, THEY CAN’T COME IN • DEFINITIONAL EXCEPTION: THE OTHER SIDE’S DOCUMENTS AREN’T HEARSAY IF OFFERED BY YOU • THEY COME UNDER THE DEFINITIONAL EXCEPTION FOR “ADMISSIONS” BY PARTY OPPONENT

6. 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

7. 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”

8. 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)

9. 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

10. 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

11. 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 INTENDING TO NARRATE (e.g., BY SIGN LANGUAGE)

12. 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]

13. 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)]

14. CONDUCT AS A STATEMENT: WE MEAN DIRECT SIGN LANGUAGE; NOT SIGNALING OF FEELINGS OR BELIEFS: • NOD OR SHAKE OF HEAD FOR YES OR NO • POINTING TO IDENTIFY A PERSON, PLACE, OR THING • REENACTMENTS • 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

15. 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

16. 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

17. 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

18. FURTHER EXAMPLES OF CONDUCT THAT IS NOT A STATEMENT (NON-NARRATIVE) • “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

19. 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 SOMETHING ---- • eye contact + [H, C, DoKn, CaSe/CaHe, WKG OK]

20. 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”

21. RULES OF THUMB • MIXED WORDS AND CONDUCT: • TREAT AS CONDUCT (FIND ACTOR’S PURPOSE; IGNORE IMPLICATIONS) • IF YOU CAN’T DECIDE ACTOR’S INTENTION (WAS SHE SIGNING/NARRATING?): • TREAT AS A NON-STATEMENT

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 ARE NOT HEARSAY

23. PROBLEMS/CASES • 3A • 3B • CHECK

24. “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

25. 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

26. 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”

27. 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!

28. 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.

29. 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.

30. PROBLEMS/CASES • 3C • 3D • 3E • 3F • 3G • 3H • 3I (cont’d)

31. 3J • SINGER • 3K • PACELLI • 3M • BETTS

32. 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

33. SEQUENCE • CHECK 801(d) – NOT HEARSAY • IS THE WIT. TESTIFYING TO A STATEMENT? • IS THE TEST. OFFERED TO PROVE THAT THE STMT. WAS TRUE? • IF SO, THE TEST. IS BRINGING IN HEARSAY • IS THERE AN APPLICABLE EXCEPTION TO THE RULE?

34. M-K HEARSAY QUIZ, Q&A ----