1 / 48

CHAPTER 4, PART 2 OF 3: EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE

CHAPTER 4, PART 2 OF 3: EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE. P. JANICKE 2012. RULE 802 EXCLUDES MOST HEARSAY. BUT THERE ARE EXCEPTIONS CONTEXT: THE EVIDENCE IS HEARSAY, BUT IS ALLOWED IN ANYWAY. TWO GROUPS OF EXCEPTIONS TO THE RULE THAT HEARSAY EVIDENCE IS INADMISSIBLE.

khuong
Download Presentation

CHAPTER 4, PART 2 OF 3: EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. CHAPTER 4, PART 2 OF 3:EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE P. JANICKE 2012

  2. RULE 802 EXCLUDES MOST HEARSAY • BUT THERE ARE EXCEPTIONS • CONTEXT: THE EVIDENCE IS HEARSAY, BUT IS ALLOWED IN ANYWAY Chap. 4, part 2

  3. TWO GROUPS OF EXCEPTIONS TO THE RULE THAT HEARSAY EVIDENCE IS INADMISSIBLE • GROUP OF EXCEPTIONS THAT APPLY WHETHER OR NOT THE DECLARANT IS AVAILABLE AS TRIAL WITNESS [RULE 803] • THESE ARE THOUGHT TO BE EXTRA RELIABLE FORMS OF EVIDENCE • GROUP OF EXCEPTIONS THAT APPLY ONLY IF DECLARANT IS UNAVAILABLE AS TRIAL WITNESS [RULE 804] Chap. 4, part 2

  4. UNRESTRICTED EXCEPTIONS

  5. KEEP IN MIND -- • WE DON’T NEED ANY EXCEPTION TO THE EXCLUSIONARY RULE IF WE HAVE A DEFINITIONAL EXCEPTION R801(d) • E.G.: STATEMENT IS AN ADMISSION; ALL YOU HAVE TO SHOW IS THE OTHER SIDE SAID IT Chap. 4, part 2

  6. SO -- • WE ARE HERE TALKING ABOUT WHERE THE DECLARANT WAS • ONE OF OUR OWN PEOPLE, or • A THIRD PARTY Chap. 4, part 2

  7. (1) PRESENT SENSE IMPRESSION TESTIMONY THAT -- • DECLARANT SAID SOMETHING ABOUT WHAT SHE WAS PERCEIVING AT THAT VERY TIME, OR IMMEDIATELY THEREAFTER Chap. 4, part 2

  8. EXAMPLE • WITNESS: “HE SAID ‘I SEE THE TRUCK IS HEADING NORTHBOUND’ ” OFFERED TO HELP ESTABLISH THAT THE TRUCK WAS HEADING NORTH • A STATEMENT; OFFERED TO PROVE THE TRUTH OF THE STATEMENT • IT IS HEARSAY • IT IS ADMISSIBLE Chap. 4, part 2

  9. EXAMPLE • WITNESS: “I SAID ‘HE IS COMING STRAIGHT THIS WAY’ ” • OFFERED TO SHOW THE PERSON WAS APPROACHING THE SPEAKER • IS HEARSAY • IS ADMISSIBLE Chap. 4, part 2

  10. EXAMPLE • WITNESS: “SHE SAID ‘IT’S HOT IN HERE’ ” • OFFERED TO HELP ESTABLISH THE ROOM WAS WARM • IS HEARSAY • IS ADMISSIBLE Chap. 4, part 2

  11. (2) EXCITED UTTERANCE TESTIMONY THAT -- • DECLARANT SAID SOMETHING ABOUT A STARTLING EVENT, WHILE UNDER THE EXCITEMENT CAUSED BY THE EVENT • OVERLAPS WITH (1), BUT HAS LONGER TIME FRAME -- THE EXCITEMENT MAY LAST FOR HOURS • TYPE (1) WAS FOR ANY KIND OF EVENT; TYPE (2) HAS TO BE STARTLING Chap. 4, part 2

  12. EXAMPLES OF EXCITED UTTERANCES: • TESTIMONY: “JACK SAID TO ME: ‘THE ROOF COLLAPSED!’ IT HAPPENED THREE HOURS BEFORE. HE WAS VERY UPSET.” • TESTIMONY: “JILL SAID TO ME: ‘THE TRUCK PLOWED INTO THAT CAR TWENTY MINUTES AGO.’ ” Chap. 4, part 2

  13. DECLARANT MUST HAVE PERSONALLY OBSERVED THE STARTLING EVENT • IT IS OFTEN DIFFICULT TO PROVE THIS LATER • THE JUDGE FINDS IT AS A FOUNDATION FACT Chap. 4, part 2

  14. (3) THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL CONDITION OF DECLARANT • COULD BE VIEWED AS A SUBSET OF (1), PRESENT SENSE IMPRESSION, BUT FOCUSING ON INTERNAL FEELINGS AND THOUGHTS • MANY SITUATIONS CAN BE ANALYZED UNDER EITHER (3) OR (1), WITH SAME RESULT Chap. 4, part 2

  15. ** THIS IS WHERE WE PUT TESTIMONY ON DECLARATIONS OF INTENT, OFFERED TO ESTABLISH LATER CONFORMING CONDUCT ** • HE SAID HE INTENDED TO DO IT; THEREFORE, LIKELY HE DID DO IT Chap. 4, part 2

  16. EXAMPLES OF (3) • TESTIMONY: HE SAID TO ME, “MY HEAD HURTS” • TESTIMONY: I TOLD HIM, “I AM REALLY DEPRESSED” • TESTIMONY: SHE SAID, “I PLAN TO LEAVE HOUSTON ON FRIDAY” • ADMISSIBLE TO SHOW THE PLAN • ALSO ADMISSIBLE TO SHOW THE FRUITION OF THE PLAN! >>> Chap. 4, part 2

  17. THE LANGUAGE OF 803(3) DOESN’T REALLY ADDRESS USING THE STATEMENT TO SHOW CONFORMING CONDUCT • WE KNOW THE INTENT WAS TO ADOPT THE RULE OF HILLMON Chap. 4, part 2

  18. 803(3) INCLUDES STATEMENTS OF INTENT THAT INVOLVE ADDITIONAL PERSONS (JOINT PLAN) • AS IN HILLMON • BUT NOT A STATEMENT OF A PLAN INVOLVING ONLY A THIRD PERSON’S CONDUCT Chap. 4, part 2

  19. NO “BELIEFS” ALLOWED UNDER THIS EXCEPTION • OUT-OF-COURT DECLARATIONS OF BELIEF ARE USUALLY NOT ALLOWED IN FOR THEIR TRUTH • TESTIMONY: X SAID TO ME, “I THINK JACK DID IT.” • TESTIMONY: I TOLD HER, “I BELIEVE MARIE IS SANE.” Chap. 4, part 2

  20. THEREFORE, WE ARE ADMITTING ONLY THE MOST BASIC LEVELS OF FEELING • JOY • PAIN • INTENT [PLAN] • NOT THE ACTUAL OR EXPECTED CONDUCT OF OTHERS ACTING ALONE Chap. 4, part 2

  21. EXAMPLE • TESTIMONY: “X SAID HE WAS GOING TO HEAD FOR NEW YORK, IN ORDER TO GET AWAY FROM THE GANGSTERS WHO HAD BEEN PURSUING HIM. HE FELT THEY WOULD KILL HIM FOR SURE IF HE STAYED HERE.” • [GREEN TEXT IS INADMISSIBLE; GOES BEYOND DECLARANT’S PLAN AND MOTIVATION; ORANGE TEXT IS BORDERLINE] Chap. 4, part 2

  22. PROBLEMS/CASES • Nutall • Arnold • Hillmon • Pheaster • Blake • Petrocelli • Melendez-Diaz Chap. 4, part 1

  23. (4) STATEMENTS TO PHYSICIANS • WIDER GROUP OF STMTS. THAN MERE PHYSICAL, MENTAL, EMOTIONAL CONDITION • HERE, ONSET INFO IS INCLUDED • WITNESS TESTIMONY: I HEARD HIM SAY TO THE DOCTOR: “THIS STARTED LAST MONTH” • GENERAL CAUSE INFO INCLUDED • WITNESS TESTIMONY: I SAID TO THE DOCTOR: “IT BEGAN WHEN I ATE THOSE EGGS” Chap. 4, part 2

  24. DIVIDING LINE: NO STATEMENTS AS TO FAULT, UNLESS NEEDED MEDICALLY • WIT. DOCTOR: HE TOLD ME “IT BEGAN WHEN JACK HIT ME WITH A HAMMER” • WILL HAVE TO BE REPHRASED TO ELIMINATE JACK’S FAULT Chap. 4, part 2

  25. ANOTHER EXAMPLE: • WIT. TESTIFIES: “I HEARD HIM SAY TO THE DOCTOR, ‘IT BEGAN AFTER I ATE THOSE EGGS THAT WERE BAD, WHICH IS PRETTY USUAL FOR THE MAIN STREET DINER’” • THE GREEN PART IS UNNECESSARY FOR DIAGNOSIS OR TREATMENT, AND WILL BE KEPT OUT; ORANGE TEXT IS BORDERLINE Chap. 4, part 2

  26. KEY FOUNDATION FACT FOR (4): STATEMENT MUST HAVE BEEN MADE FOR PURPOSES OF DIAGNOSIS OR TREATMENT • THUS A VICTIM’S STATEMENT TO A DOCTOR HIRED BY POLICE TO FIND OUT WHAT HAPPENED, OR WHO CULPRIT IS, WOULD NOT QUALIFY • STATEMENTS DURING AN INSURANCE PHYSICAL WOULD NOT QUALIFY Chap. 4, part 2

  27. ONCE AGAIN RECALL: ADVERSE PARTY’S STATEMENTS • ARE NOT UNDER ANY OF THESE CONSTRAINTS • DO NOT NEED A HEARSAY EXCEPTION • CAN BE ADMITTED BY THE OPPOSING PARTY IN FULL, UNEXPURGATED VERSION Chap. 4, part 2

  28. (5) PAST RECOLLECTION RECORDED • DIFFERENT FROM MEMORY REFRESHING • HERE THE WITNESS TESTIFIES HER MEMORY CANNOT BE REFRESHED • BUT IT WAS FRESH AT ONE TIME • AND SHE (OR A HELPER) MADE A RECORD OF IT AT THAT TIME Chap. 4, part 2

  29. MECHANICS OF USING EXCEPTION (5) • LAY FOUNDATION: • WITNESS CAN’T NOW RECALL • WITNESS AT ONE TIME COULD RECALL • WITNESS CAUSED RECORD TO BE MADE • RECORD CAN THEN BE READ IN, BUT THE DOCUMENT CAN’T BE INTRODUCED EXCEPT BY OTHER SIDE Chap. 4, part 2

  30. (6) BUSINESS RECORDS • NEED NOT BE COMMERCIAL; ANY REGULAR ACTIVITY WILL QUALIFY • CHURCH • BOOK CLUB • ONLY APPLIES TO FACTS GENERATED INSIDE THE BUSINESS • REPORTS FROM OUTSIDE ARE NOT COVERED AND HAVE TO BE MASKED OUT Chap. 4, part 2

  31. FOUNDATION FOR (6) IS COMPLEX • FOUNDATION NEEDED: • REGULAR ACTIVITY GOING ON • THIS DOC. MADE IN THE REGULAR COURSE OF IT • MADE AT OR NEAR THE TIME OF EVENTS LISTED • MADE BY (OR VIA) A PERSON WITH ACTUAL KNOWLEDGE • WAS THE REGULAR PRACTICE TO KEEP RECORDS OF THIS TYPE Chap. 4, part 2

  32. PRONGS (3) AND (4) COULD BE DIFFICULT TO PROVE IF CHALLENGED • UNTIL RECENTLY, MOSTLY LAWYERS USED THE HABIT/ROUTINE PRACTICE RULE [R406] • WIT. DOESN’T REALLY KNOW WHAT HAPPENED ON THIS TRANSACTION • WIT. CAN SAY WHAT THE REGULAR PRACTICE OF THE BUSINESS IS RE. MAKING RECORDS Chap. 4, part 2

  33. THE RULE CHANGES ADOPTED IN 1998 AND 2000 • FEDERAL RULE 902 (11) WAS ADOPTED IN 2000, RE. AFFIDAVIT PRACTICE • TEXAS RULE 902 (10) IS SIMILAR, AND WAS ADOPTED IN 1998 • THESE ARE AUTHENTICITY RULES, BUT THEY ARE REFERENCED IN 803(6) AS O.K. FOUNDATION METHOD TO REMOVE HEARSAY PROBLEMS Chap. 4, part 2

  34. THE TEXAS RULE IS MORE ENLIGHTENED • THE FEDERAL RULE SPECIFIES THAT THE AFFIANT SWEAR THE ENTRIES WERE MADE BY A PERSON WITH KNOWLEDGE, ETC. • THE TEXAS RULE SPECIFIES THAT THE AFFIANT SWEAR IT’S THE USUAL PRACTICE TO HAVE THE ENTRIES MADE THAT WAY Chap. 4, part 2

  35. CAUTION • DO IT THE TEXAS WAY, EVEN IN FEDERAL COURT • MUCH SAFER FOR THE AFFIANT [AND ULTIMATELY FOR YOU] • NOTE THE RECENT SCANDAL ABOUT MORTGAGE FORECLOSURE SIGNATURES Chap. 4, part 2

  36. (7) ABSENCE OF A BUSINESS ENTRY • SERVES AS PROOF THAT THE EVENT DID NOT HAPPEN • REQUIRES SHOWING OF THE USUAL PRACTICE OF THE ORGANIZATION Chap. 4, part 2

  37. PROBLEMS/CASES • Exercise #12 Chap. 4, part 2

  38. (8) OFFICIAL RECORDS and (9) VITAL STATISTICS RECORDS • LAW ENFORCEMENT RECORDS CAN’T BE USED IN A CRIMINAL CASE • OTHER KINDS ARE O.K. • ALL KINDS ARE FREQUENTLY USED IN CIVIL CASES Chap. 4, part 2

  39. THREE TYPES OF RECORDS FIT UNDER (8) • ONES THAT RECITE THE GENERAL ACTIVITIES OF THE OFFICE • E.G., DOCUMENTS DESCRIBING: • PROCEDURES FOR HIGHWAY CONSTRUCTION BIDDING • HOW THE CENSUS IS TAKEN • HOW THE I.R.S. CONDUCTS AN AUDIT Chap. 4, part 2

  40. ONES THAT RECITE MATTERS OBSERVED PURSUANT TO DUTY IMPOSED BY LAW. • E.G., REPORTS ON: • REAL ESTATE APPRAISALS DONE • BUILDING INSPECTIONS PERFORMED • HIGHWAY CONSTRUCTION BIDS RECEIVED Chap. 4, part 2

  41. FACTUAL FINDINGS FROM INVESTIGATIONS • E.G., REPORTS ON: • FAA AIR DISASTER INVESTIGATIONS • CENTERS FOR DISEASE CONTROL INVESTIGATION OF EPIDEMICS • BALLISTICS INVESTIGATIONS (CIVIL ONLY) • FINGERPRINT CHECKS (CIVIL ONLY) Chap. 4, part 2

  42. TYPES OF PUBLIC RECORDS THAT FIT UNDER (9) • BIRTHS, DEATHS, MARRIAGES • THE PUBLIC RECORDER OFFICE NEED NOT HAVE ANY FIRST-HAND KNOWLEDGE OF THE FACTS RECORDED FOR THESE EVENTS • REPORTS MADE TO THE OFFICE BY CITIZENS ARE OK HERE [BUT NOT UNDER (8)] Chap. 4, part 2

  43. THE RESTRICTIONS ON USE OF POLICE RECORDS DO NOT APPLY WHEN RULES OF EVID. DO NOT APPLY • SENTENCING • GRAND JURIES • HEARING ON REVOCATION OF PROBATION • BAIL PROCEEDINGS • WARRANTS [R 1101(d)(3) -- FED. RULES INAPPLICABLE; NO HEARSAY RULE, SO NO EXCEPTION NEEDED] Chap. 4, part 2

  44. IN TEXAS COURTS THE RESTRICTIONS ON POLICE REPORTS ARE LIKEWISE NOT APPLICABLE WHERE THE RULES IN GENERAL ARE NOT APPLICABLE; E.G.: • SENTENCING Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) • GRAND JURIES [R 101(d)(1)] • HABEAS CORPUS “ • BAIL “ • SEARCH WARRANTS “ Chap. 4, part 2

  45. CHURCH AND FAMILY RECORDS[803(11-13)] • TREATED MUCH LIKE OFFICIAL RECORDS • LIMITED SUBJECT MATTER • BIRTHS • DEATHS • DIVORCES • BAPTISMS • ETC. Chap. 4, part 2

  46. (18) LEARNED TREATISES • FOUNDATION: • ACKNOWLEDGED AS AUTHORITATIVE BY TESTIMONY OF A WITNESS • PROCEDURE: • READ IN RELEVANT PASSAGES • CAN’T PUT THE BOOK IN Chap. 4, part 2

  47. (19-21) REPUTATION TOPICS • ALLOWED RE.: • PERSONAL OR FAMILY HISTORY -- “WE ALL SAID ‘FRANK IS JOHN’S NEPHEW’” • BOUNDARIES -- “FOLKS IN THESE PARTS ALWAYS SAID ‘THE RANCH ENDED AT THE OLD OAK TREE’” • CHARACTER -- IN LIMITED INSTANCES, AS WE HAVE SEEN Chap. 4, part 2

  48. (22) JUDGMENTS OF FELONY CONVICTIONS • ADMISSIBLE TO PROVE ANY UNDERLYING ESSENTIAL FACT • ONLY JUDGMENTS • NOT ARRESTS • NOT INDICTMENTS • NOT VERDICTS Chap. 4, part 2

More Related