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CHAP. 3 -- RESUMED: THE RULE EXCLUDING HEARSAY – WHAT IS HEARSAY EVIDENCE?. P. JANICKE 2011. 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

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Chap 3 resumed the rule excluding hearsay what is hearsay evidence

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

P. JANICKE

2011


Basic operation of the rule excluding hearsay
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


Meaning of hearsay
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

Chap. 3 -- hearsay resumed


Rule 802 says out of court statements usually cannot be testified to
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

Chap. 3 -- hearsay resumed


  • 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

Chap. 3 -- hearsay resumed


  • EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE 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

Chap. 3 -- hearsay resumed


To be hearsay utterance must contain a statement
TO BE HEARSAY, UTTERANCE MUST CONTAIN A “STATEMENT” INADMISSIBLE

  • 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”

Chap. 3 -- hearsay resumed


Most documents are loaded with statements and thus presumptively contain hearsay
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)

Chap. 3 -- hearsay resumed


Note the same facts can and should be testified to by a live witness with knowledge
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

Chap. 3 -- hearsay resumed


The problem of implied statements
THE PROBLEM OF IMPLIED STATEMENTS LIVE WITNESS WITH KNOWLEDGE

  • 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

Chap. 3 -- hearsay resumed


Legal treatment
LEGAL TREATMENT LIVE WITNESS WITH KNOWLEDGE

  • 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)

Chap. 3 -- hearsay resumed


Example
EXAMPLE: LIVE WITNESS WITH KNOWLEDGE

  • 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]

Chap. 3 -- hearsay resumed


The special rule for conduct when it is a statement
THE SPECIAL RULE FOR CONDUCT -- WHEN IT IS A STATEMENT LIVE WITNESS WITH KNOWLEDGE

  • 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)]

Chap. 3 -- hearsay resumed


Conduct as a statement we mean direct sign language not signaling of feelings or beliefs
CONDUCT AS A STATEMENT: WE MEAN DIRECT SIGN LANGUAGE; LIVE WITNESS WITH KNOWLEDGENOT 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

  • Chap. 3 -- hearsay resumed


    Example of conduct that is not a statement
    EXAMPLE OF CONDUCT THAT IS NOT A STATEMENT LIVE WITNESS WITH KNOWLEDGE

    • 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

    Chap. 3 -- hearsay resumed


    Further example of conduct that is not a statement
    FURTHER EXAMPLE OF CONDUCT THAT IS LIVE WITNESS WITH KNOWLEDGENOT 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

    Chap. 3 -- hearsay resumed


    Further examples of conduct that is not a statement non narrative
    FURTHER EXAMPLES OF CONDUCT THAT IS LIVE WITNESS WITH KNOWLEDGENOT 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

    Chap. 3 -- hearsay resumed


    Further examples of conduct that is not a statement non narrative1
    FURTHER EXAMPLES OF CONDUCT THAT IS LIVE WITNESS WITH KNOWLEDGENOT 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

    Chap. 3 -- hearsay resumed


    Can you think of another example of conduct that is a statement
    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]

    Chap. 3 -- hearsay resumed


    Words that color conduct are treated as part of the conduct
    WORDS THAT COLOR CONDUCT ARE TREATED AS PART OF THE CONDUCT STATEMENT?

    • 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”

    Chap. 3 -- hearsay resumed


    Rules of thumb
    RULES OF THUMB STATEMENT?

    • 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

    Chap. 3 -- hearsay resumed


    Handling very short sets of words
    HANDLING VERY SHORT SETS OF WORDS STATEMENT?

    • “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

  • Chap. 3 -- hearsay resumed


    Chap. 3 -- hearsay resumed


    Offered to prove the truth of the statement
    “OFFERED TO PROVE THE TRUTH OF THE STATEMENT” STATEMENT?

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

    Chap. 3 -- hearsay resumed


    • IMPEACHING A WITNESS STATEMENT?

      • 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

    Chap. 3 -- hearsay resumed


    • WORDS THAT ARE THEMSELVES AN ELEMENT OF THE CASE STATEMENT?

      • E.G.: FALSE OFFICIAL STATEMENT

      • E.G.: OFFER AND ACCEPTANCE

      • E.G.: WARRANTIES

      • SOMETIMES CALLED “RES GESTAE”

      • SOMETIMES CALLED WORDS THAT ARE AN OPERATIVE FACT

      • M-K CALL THIS A “VERBAL ACT”

    Chap. 3 -- hearsay resumed


    • PROVING THE LISTENER’S STATE OF MIND STATEMENT?THAT IS AN ELEMENT OF THE CASE/DEFENSE

      • 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!

    Chap. 3 -- hearsay resumed


    Chap. 3 -- hearsay resumed


    Chap. 3 -- hearsay resumed


    Chap. 3 -- hearsay resumed


    The hearsay quiz in m k pp 182 184
    THE HEARSAY QUIZ IN M-K BAD” OFFERED TO SHOW D’S NEGLIGENCE IN DRIVING THE CAR[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

    Chap. 3 -- hearsay resumed


    Sequence
    SEQUENCE BAD” OFFERED TO SHOW D’S NEGLIGENCE IN DRIVING THE CAR

    • 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?

    Chap. 3 -- hearsay resumed


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