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

CHAPTER 4, PART 2 OF 2: EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE. P. JANICKE 2009. 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.

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

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  1. CHAPTER 4, PART 2 OF 2:EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE P. JANICKE 2009

  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 • WITNESS: “HE SAID ‘I SEE THE TRUCK IS HEADING NORTHBOUND’ ” • WITNESS: “I SAID ‘HE IS COMING STRAIGHT THIS WAY’ ” • WITNESS: “SHE SAID ‘IT’S HOT IN HERE’ ” Chap. 4, part 2

  8. (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

  9. 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

  10. 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

  11. (3) THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL CONDITION OF DECLARANT • A SUBSET OF (1) • REDUNDANT • IS INCLUDED FOR EMPHASIS • THIS IS WHERE WE PUT TESTIMONY ON DECLARATIONS OF INTENT, OFFERED TO PROVE LATER CONFORMING CONDUCT Chap. 4, part 2

  12. 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” Chap. 4, part 2

  13. 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

  14. THEREFORE, WE ARE ADMITTING ONLY THE MOST BASIC LEVELS OF FEELING • JOY • PAIN • INTENT • NOT THE UNDERLYING MOTIVATIONS OR CAUSES • NOT THE ACTUAL OR EXPECTED CONDUCT OF OTHERS Chap. 4, part 2

  15. 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 BECAUSE HE WITHHELD PROCEEDS OF A HEIST. HE FELT THEY WOULD KILL HIM FOR SURE.” • [GREEN TEXT IS INADMISSIBLE] Chap. 4, part 2

  16. (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

  17. DIVIDING LINE: NO STATEMENTS AS TO FAULT • WIT.: HE SAID TO THE DOCTOR, “IT BEGAN AFTER I ATE THOSE EGGS THAT WERE BAD, WHICH IS PRETTY USUAL FOR THE MAIN STREET DINER” • PROBABLY EVERYTHING AFTER “EGGS” WILL BE KEPT OUT • WIT.: HE SAID TO THE NURSE: “IT BEGAN WHEN JACK HIT ME WITH A HAMMER” • WILL HAVE TO BE REPHRASED TO ELIMINATE JACK’S FAULT Chap. 4, part 2

  18. 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

  19. 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

  20. (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

  21. 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

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

  23. 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

  24. 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

  25. 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

  26. 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

  27. (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

  28. (8) OFFICIAL RECORDS • LAW ENFORCEMENT RECORDS CAN’T BE USED IN A CRIMINAL CASE • OTHER KINDS ARE O.K. (e.g. BIRTH CERTIFICATE) • ALL KINDS ARE FREQUENTLY USED IN CIVIL CASES • BUT NOTE THE LIMITS >>> Chap. 4, part 2

  29. THREE TYPES OF RECORDS ALLOWED • 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

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

  31. 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

  32. DIFFERENCE BETWEEN (2) MATTERS OBSERVED AND (3) INVESTIGATIONS: • (2) COVERS DIRECT OBSERVATIONS BY OFFICERS • THIS EXCEPTION CAN’T BE USED BY EITHER SIDE IN CRIMINAL CASES FOR LAW ENFORCEMENT REPORTS • BUT COULD BE A STATE ADMISSION • (3) CAN BE BASED ON INPUT FROM NON-OFFICIALS Chap. 4, part 2

  33. THE RESTRICTIONS ON USE OF POLICE RECORDS DO NOT APPLY IF 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

  34. 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

  35. (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

  36. (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

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

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