CHAPTER 4, PART 2 OF 3:

EXCEPTIONS TO THE RULE THAT HEARSAY IS

INADMISSIBLE

P. JANICKE

2012

2012 Chap. 4, part 2 2

RULE 802 EXCLUDES MOST HEARSAY

• BUT THERE ARE EXCEPTIONS

• CONTEXT: THE EVIDENCE IS HEARSAY, BUT IS ALLOWED IN ANYWAY

2012 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]

UNRESTRICTED EXCEPTIONS

2012 Chap. 4, part 2 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

2012 Chap. 4, part 2 6

SO --

• WE ARE HERE TALKING ABOUT WHERE THE DECLARANT WAS

– ONE OF OUR OWN PEOPLE, or– A THIRD PARTY

2012 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

2012 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

2012 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

2012 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

2012 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

2012 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.’ ”

2012 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

2012 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

2012 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

2012 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! >>>

2012 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

2012 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

2012 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.”

2012 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

2012 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]

PROBLEMS/CASES

• Nutall

• Arnold

• Hillmon

• Pheaster

• Blake

• Petrocelli

• Melendez-Diaz

2012 Chap. 4, part 1 22

2012 Chap. 4, part 2 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”

2012 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

2012 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

2012 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

2012 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

2012 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

2012 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

2012 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

2012 Chap. 4, part 2 31

FOUNDATION FOR (6) IS COMPLEX

• FOUNDATION NEEDED:1. REGULAR ACTIVITY GOING ON

2. THIS DOC. MADE IN THE REGULAR COURSE OF IT

3. MADE AT OR NEAR THE TIME OF EVENTS LISTED

4. MADE BY (OR VIA) A PERSON WITH ACTUAL KNOWLEDGE

5. WAS THE REGULAR PRACTICE TO KEEP RECORDS OF THIS TYPE

2012 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

2012 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

2012 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

2012 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

2012 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

PROBLEMS/CASES

• Exercise #12

2012 Chap. 4, part 2 37

2012 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

2012 Chap. 4, part 2 39

THREE TYPES OF RECORDS FIT UNDER (8)

1. 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

2012 Chap. 4, part 2 40

2. 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

2012 Chap. 4, part 2 41

3. 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)

2012 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)]

2012 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]

2012 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 “

2012 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.

2012 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

2012 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

2012 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