chapter 4, part 2 of 2: exceptions to the rule that hearsay is inadmissible p. janicke 2006
TRANSCRIPT
CHAPTER 4, PART 2 OF 2:
EXCEPTIONS TO THE RULE THAT HEARSAY IS
INADMISSIBLE
P. JANICKE
2006
2006 Chap. 4, part 2 2
RULE 802 EXCLUDES MOST HEARSAY
• BUT THERE ARE EXCEPTIONS
• CONTEXT: THE EVIDENCE IS HEARSAY, BUT IS ALLOWED IN ANYWAY
2006 Chap. 4, part 2 3
TWO GROUPS OF EXCEPTIONS TO THE RULE THAT HEARSAY EVIDENCE
IS INADMISSIBLE
• GROUP OF EXCEPTIONS THAT APPLY EVEN IF 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
2006 Chap. 4, part 2 5
KEEP IN MIND --
• WE DON’T NEED ANY EXCEPTION TO THE 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
2006 Chap. 4, part 2 6
SO --
• WE ARE HERE TALKING ABOUT WHERE THE DECLARANT WAS– ONE OF OUR OWN PEOPLE, or– A THIRD PARTY
2006 Chap. 4, part 2 7
(1) PRESENT SENSE IMPRESSION
• 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’ ”
2006 Chap. 4, part 2 8
(2) EXCITED UTTERANCE
• 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
2006 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.’ ”
2006 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
2006 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 DECLARATIONS OF INTENT, OFFERED TO PROVE LATER CONFORMING CONDUCT
2006 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”
2006 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.”
• IF WE ALLOWED SUCH UTTERANCES TO BE TESTIFIED TO, THERE WOULD BE NO HEARSAY RULE LEFT
2006 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
2006 Chap. 4, part 2 15
(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”
2006 Chap. 4, part 2 16
• 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
2006 Chap. 4, part 2 17
• 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
2006 Chap. 4, part 2 18
• ONCE AGAIN RECALL: ADVERSE PARTY’S STATEMENTS ARE NOT UNDER ANY OF THESE CONSTRAINTS
2006 Chap. 4, part 2 19
(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
2006 Chap. 4, part 2 20
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
2006 Chap. 4, part 2 21
(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
2006 Chap. 4, part 2 22
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
2006 Chap. 4, part 2 23
• 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
2006 Chap. 4, part 2 24
THE RULE CHANGES ADOPTED IN 1998 AND 2000
• FEDERAL RULE 902 (11) WAS ADOPTED IN 2000, ON 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
2006 Chap. 4, part 2 25
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
2006 Chap. 4, part 2 26
(7) ABSENCE OF A BUSINESS ENTRY
• SERVES AS PROOF THAT THE EVENT DID NOT HAPPEN
• REQUIRES SHOWING OF THE USUAL PRACTICE OF THE ORGANIZATION
2006 Chap. 4, part 2 27
(8) OFFICIAL 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
• BUT NOTE THE LIMITS >>>
2006 Chap. 4, part 2 28
THREE TYPES OF RECORDS ALLOWED
1. ONES THAT RECITE THE GENERAL ACTIVITIES OF THE OFFICE
• HIGHWAY CONSTRUCTION BIDDING• HOW THE CENSUS IS TAKEN• HOW THE I.R.S. CONDUCTS AN AUDIT
2006 Chap. 4, part 2 29
2. ONES THAT RECITE MATTERS OBSERVED PURSUANT TO DUTY IMPOSED BY LAW
• REAL ESTATE APPRAISALS DONE• BUILDING INSPECTIONS PERFORMED• MARRIAGE CEREMONIES
PERFORMED• DEATHS OBSERVED
2006 Chap. 4, part 2 30
3. FACTUAL FINDINGS FROM INVESTIGATIONS
• FAA AIR DISASTER INVESTIGATIONS• CENTERS FOR DISEASE CONTROL
INVESTIGATION OF EPIDEMICS• BALLISTICS INVESTIGATIONS (CIVIL
ONLY)• FINGERPRINT CHECKS (CIVIL ONLY)
2006 Chap. 4, part 2 31
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
2006 Chap. 4, part 2 32
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]
2006 Chap. 4, part 2 33
IN TEXAS COURTS THE RESTRICTIONS ON POLICE REPORTS ARE LIKEWISE
NOT APPLICABLE WHERE THE ROLES 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 “
2006 Chap. 4, part 2 34
(18) LEARNED TREATISES
• FOUNDATION:– ACKNOWLEDGED AS AUTHORITATIVE
BY TESTIMONY OF A WITNESS
• PROCEDURE: – READ IN RELEVANT PASSAGES– CAN’T PUT THE BOOK IN
2006 Chap. 4, part 2 35
(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
2006 Chap. 4, part 2 36
(22) JUDGMENTS OF FELONY CONVICTIONS
• ADMISSIBLE TO PROVE ANY UNDERLYING ESSENTIAL FACT
• ONLY JUDGMENTS– NOT ARRESTS– NOT INDICTMENTS– NOT VERDICTS
HEARSAY EXCEPTIONS THAT ARE LESS RELIABLE:
DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE
2006 Chap. 4, part 2 38
THOUGHT TO BE WEAKER
• RULES DRAFTERS (AND COMMON LAW) DEVELOPED A SET OF HEARSAY EXCEPTIONS THAT COULD BE USED ONLY WHEN THE DECLARANT IS UNAVAILABLE AT TRIAL
• A COMPROMISE BETWEEN OUTRIGHT EXCLUSION AND OUTRIGHT ADMISSIBILITY
2006 Chap. 4, part 2 39
MEANING OF “UNAVAILABLE”
• WITHOUT ANY CONNIVANCE BY PROPONENT, DECLARANT IS:– NOT FINDABLE– REFUSES TO ATTEND– REFUSES TO ANSWER EVEN WHEN
DIRECTED BY COURT– HAS A LOSS OF MEMORY– IS DEAD– IS INCAPACITATED MENTALLY OR
PHYSICALLY
2006 Chap. 4, part 2 40
FORMER TESTIMONY
• AT A HEARING OR DEPOSITION IN THIS OR ANOTHER CASE
• NOW-OPPONENT MUST HAVE HAD OPPORTUNITY AND MOTIVE TO CROSS-EXAMINE– DIRECTLY, or– THROUGH A PARTY WITH SIMILAR
INTEREST (CIVIL CASES ONLY)
2006 Chap. 4, part 2 41
SOME THINGS THAT WON’T QUALIFY
• AFFIDAVITS [NOT A HEARING OR DEPOSITION; NO CHANCE TO CROSS-EXAMINE]
• GRAND JURY TESTIMONY [NO CHANCE TO CROSS-EXAMINE]
2006 Chap. 4, part 2 42
SOME THINGS THAT WILL QUALIFY
• TESTIMONY AT EARLIER TRIAL OF THIS CASE
• TESTIMONY AT A DEPOSITION IN THIS OR ANOTHER CASE (WHERE OPPONENT WAS PARTY)
• TESTIMONY AT A PRELIMINARY INJUNCTION HEARING IN THIS CASE
2006 Chap. 4, part 2 43
DYING DECLARATIONS
• BASIS: NO ONE WOULD FALSIFY WHILE SOON TO MEET HIS MAKER
• REQUIREMENTS:– HOMICIDE OR CIVIL CASE– DECLARANT THOUGHT HE WAS DYING– STATEMENT WAS RE. CAUSE OF
DEATH
2006 Chap. 4, part 2 44
• VICTIM’S RECOVERY DOESN’T MAKE A DYING DECLARATION INADMISSIBLE
• BUT THE VICTIM-DECLARANT HAS TO BE “UNAVAILABLE” AT TRIAL
2006 Chap. 4, part 2 45
EXAMPLE
• IN A HOMICIDE CASE: “JACK DID IT!!”
• IN A WRONGFUL DEATH ACTION: “BOB SHOT ME IN SELF-DEFENSE”
• IN A WRONGFUL DEATH ACTION: “I NEVER SHOULD HAVE EATEN THOSE OYSTERS”
2006 Chap. 4, part 2 46
THIRD PARTY ADMISSIONS
• STATEMENT THAT WAS AGAINST INTEREST– PECUNIARY– PENAL
• MADE BY A NON-PARTY• MOST ARE OFFERED BY
DEFENDANTS, CIVIL AND CRIMINAL, THROUGH WITNESSES– OFFERED TO DEFLECT BLAME
2006 Chap. 4, part 2 47
EXAMPLES OF THIRD-PARTY ADMISSIONS OFFERED BY D,
THROUGH WITNESSES:
• TESTIMONY: “X SAID: ‘SORRY WE BLEW UP YOUR HOUSE’”
• TESTIMONY: “X SAID: ‘OUR MAN WIRED IT WRONG’”
• X’S WRITING, RECALLING AUTOS FOR DEFECTIVE FUEL LINES
2006 Chap. 4, part 2 48
RESTRICTION ON THIRD-PARTY ADMISSIONS
• WHEN OFFERED TO EXCULPATE A CRIMINAL ACCUSED:– MUST HAVE CORROBORATING
CIRCUMSTANCES THAT “CLEARLY INDICATE ITS TRUSTWORTHINESS”
– MOST CASES HOLD THEM INADMISSIBLE
• BASED ON A GENERAL MISTRUST OF THE CRIMINAL COMMUNITY
2006 Chap. 4, part 2 49
OUT OF COURT STATEMENT RE. FAMILY HISTORY
• EXAMPLE: TESTIMONY THAT “MY MOTHER TOLD ME I WAS HARRY’S SON”
• EXAMPLE: TESTIMONY THAT “HIS FATHER TOLD ME HE WAS BORN IN THE NAVAL HOSPITAL AT NEWPORT”
• NOTE: RECALL THAT DECLARANT MUST BE UNAVAILABLE
2006 Chap. 4, part 2 50
DECLARATIONS BY PERSONS WHO HAVE SINCE BEEN
“RUBBED OUT”
• IF THE REMOVER IS A PARTY, THESE ARE NOW ADMISSIBLE AGAINST HIM
• EXAMPLES:– EARLIER AFFIDAVIT– EARLIER GRAND JURY TESTIMONY– EARLIER ORAL STATEMENT– EARLIER LETTER
2006 Chap. 4, part 2 51
DECLARANTS ARE IMPEACHABLE
• THEY ARE TREATED JUST LIKE WITNESSES
• TO PREVENT ABUSIVE USE OF EXCEPTIONS
• SAME RULES OF IMPEACHMENT
2006 Chap. 4, part 2 52
THE “CATCHALL”: RULE 807
• FOR THE “ALMOST” SITUATIONS
• FOR THE UNPREPARED LAWYER WHO DOESN’T KNOW HOW TO REFUTE A HEARSAY OBJECTION
• FOR THE JUDGE WHO WANTS TO BE BULLETPROOF ON APPEAL
2006 Chap. 4, part 2 53
REQUIREMENTS:
• EVIDENCE OF A “MATERIAL FACT”– ???
• MORE PROBATIVE THAN ANYTHING ELSE REASONABLY AVAILABLE– A HAVEN FOR THE UNPREPARED
• IN THE INTERESTS OF JUSTICE
• ADVANCE NOTICE REQUIRED
2006 Chap. 4, part 2 54
• COURT EFFECTIVELY REWRITES THE HEARSAY EXCEPTIONS
• A PROBLEM WITH SIXTH AMENDMENT CONFRONTATION CLAUSE, WHEN USED AGAINST A CRIMINAL D– NOT AN EXCEPTION KNOWN AT 1791– NOT “FIRMLY ROOTED”
• USUALLY SEEN IN CIVIL CASES