CHAP. 3 : INTRODUCTION TO THE HEARSAY RULE

CHAP. 3 :INTRODUCTION TO THE HEARSAY RULE P. JANICKE 2018

ONLY “STATEMENTS” CAN BE HEARSAY EVIDENCE – CAN’T BE REVEALED IN COURT

MUCH HUMAN DISCOURSE IS NON-STATEMENT UTTERANCES statements Chap. 3 -- Intro to Hearsay

MEANINGS • UTTERANCE = ANYTHING WE SAY OR WRITE • STATEMENT = UTTERANCE THAT RECITES A FACT • ERGO: SOME UTTERANCES ARE STATEMENTS, BUT OTHERS ARE NOT Chap. 3 -- Intro to Hearsay

THE LAW • ONLY STATEMENTS MADE OUT OF COURT CAN POSSIBLY BE HEARSAY EVIDENCE • NON-STATEMENTS CAN BE REVEALED AT TRIAL Chap. 3 -- Intro to Hearsay

??? • “HE SAID ...” • “SHE SAID ...” • “I SAID ...” • WE DON’T KNOW IF THESE WERE STATEMENTS • COULD HAVE BEEN “GET OUT OF HERE” or “HEY! Chap. 3 -- Intro to Hearsay

EXAMPLES OF OUT-OF-COURT STATEMENTS • WIT.: “SHE SAID: ‘IT IS RAINING’” • WIT.: “HE SENT ME AN EMAIL SAYING: ‘THE SUN ROSE AT ABOUT 6:00’” • WIT.: “SHE TOLD ME SHE HAD A GUN IN HER HAND” Chap. 3 -- Intro to Hearsay

MOST DOCUMENTS CONTAIN STATEMENTS • IF SO, THEY ARE HEARSAY, AND PRIMA FACIE INADMISSIBLE • CAN BE EXCEPTIONS ALLOWING THIS KIND OF HEARSAY TO COME IN • IT IS STILL HEARSAY, BUT ADMISSIBLE Chap. 3 -- Intro to Hearsay

WHEN AN OPPOSING LAWYER PICKS UP A PIECE OF PAPER, • YOU SHOULD THINK “H” Chap. 3 -- Intro to Hearsay

ALL OF THESE WOULD BE OK IF THE SAME FACTS WERE TESTIFIED TO IN COURT: • WIT.: “I SAW THAT IT WAS RAINING” • WIT.: “I SAW THE SUNRISE AT ABOUT 6:00” • WIT.: “I HAD A GUN IN MY HAND” Chap. 3 -- Intro to Hearsay

EXAMPLES OF HEARSAY EVIDENCE • LETTERS ARE USUALLY INADMISSIBLE – THEY CONTAIN STATEMENTS • POLICE REPORTS OF WHAT HAPPENED ARE INADMISSIBLE • NEWSPAPER ACCOUNTS OF EVENTS ARE INADMISSIBLE Chap. 3 -- Intro to Hearsay

RATIONALE: • WE WANT WITNESSES TO TELL US FIRST-HAND ON THE STAND WHAT THEY SAW AND DID • OUT-OF-COURT STATEMENTS ARE DIFFICULT TO CROSS-EXAMINE (ESPECIALLY IF SPEAKER IS NOT AT TRIAL) Chap. 3 -- Intro to Hearsay

HOW IT WORKS: • CHEMIST FROM THE POLICE LAB TESTIFIES TO THE BLOOD TYPE; THE WRITTEN REPORT OF BLOOD TYPE IS NOT ADMITTED • HOMEOWNER TESTIFIES THERE WAS AN INTRUDER; NOT WHAT SHE TOLD THE POLICE; NOT WHAT HER WITNESS STATEMENT TO THE POLICE SAID • BORROWER TESTIFIES LOAN PAYMENTS WERE MADE ON TIME; HER LETTER TO BANK SAYING SO IS NOT ADMITTED Chap. 3 -- Intro to Hearsay

THE MAIN EXCEPTION TO WHAT IS HEARSAY: STATEMENTS OF A PARTY, WHEN OFFERED BY AN ADVERSARY PARTY • CAN BE INTRODUCED BY THE OPPONENT, VIA ANY WITNESS WHO KNOWS WHAT THE PARTY SAID • CORPORATE DOCUMENTS (LETTERS; MEMOS) OF ONE SIDE ARE ADMISSIBLE BY THE OTHER SIDE >>>> Chap. 3 -- Intro to Hearsay

THIS LOOKS AND SMELLS LIKE HEARSAY. BUT: • RULE 801(d) STATES IT IS AN EXCEPTION TO THE DEFINITION • NO LOGIC TO THIS! Chap. 3 -- Intro to Hearsay

EXAMPLE:WHAT MR. JONES SAID • ISSUE: ADMISSIBILITY IN THE CASE OF JONES v. SMITH Chap. 3 -- Intro to Hearsay

ADMISSIBLE HIGH UP JONES BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay

ADMISSIBLE HIGH UP BYSTANDER BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay

ADMISSIBLE HIGH UP SMITH BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay

NOT ADMISSIBLE. WHY? HIGH UP SMITH BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay

NOT ADMISSIBLE. WHY? HIGH UP BYSTANDER BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay

NOT ADMISSIBLE. WHY? HIGH UP JONES BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 3 -- Intro to Hearsay

THE BASICS • A PARTY, OR ANY OTHER WITNESS, CAN ALWAYS TESTIFY TO WHAT HAPPENED IF THE WITNESS HAS FIRST-HAND KNOWLEDGE • WITNESSES CAN ALSO TESTIFY WHAT THE PARTY X SAID, BUT ONLY IF ASKED BY OPPOSING PARTY Y’S LAWYER • PARTY X’S LAWYER CANNOT ASK ANY WITNESS WHAT HER CLIENT X OR A BYSTANDER SAID Chap. 3 -- Intro to Hearsay

NOTE THAT CONFESSIONS ARE STATEMENTS OF FACT BY “A PARTY” (DEFENDANT) • HENCE NOT HEARSAY WHEN OFFERED BY THE PROSECUTION • PROS. CAN ASK A BYSTANDER WHAT D. SAID • PROS. CAN ASK A POLICEMAN WHAT D. SAID (IF HE HEARD IT) • IF D. TESTIFIES AT TRIAL, PROS. CAN ASK D. WHAT D. SAID Chap. 3 -- Intro to Hearsay

A VICTIM IS NOT A PARTY IN A CRIMINAL CASE • HENCE, VICTIM’S OUT-OF-COURT STATEMENTS TO POLICE, NEIGHBORS, ETC., ARE USUALLY NOT ALLOWED TO BE INTRODUCED AT TRIAL BY EITHER SIDE • VICTIM CAN OF COURSE TESTIFY TO WHAT HAPPENED Chap. 3 -- Intro to Hearsay

CHAP. 3 : INTRODUCTION TO THE HEARSAY RULE