CHAP. 3 : INTRODUCTION TO THE HEARSAY RULE P. JANICKE 2008

CHAP. 3 :INTRODUCTION TO THE

HEARSAY RULE

P. JANICKE

2008

2008 Chap. 3 -- Intro to Hearsay 2

IN GENERAL:

• WITNESSES ARE NOT ALLOWED TO TESTIFY TO OUT-OF-COURT UTTERANCES– OF THEMSELVES– OF OTHERS

• DOCUMENTS CONTAIN STATEMENTS AND AREN’T ALLOWED IN EVIDENCE– THEY ARE WRITTEN OUT OF COURT


EXAMPLES

• WITNESS CAN’T SAY WHAT HE TOLD THE POLICE

• LETTERS ARE INADMISSIBLE

• POLICE REPORTS ARE INADMISSIBLE


RATIONALE:

• WE WANT WITNESSES TO TELL US FIRST-HAND ON THE STAND WHAT THEY SAW– CROSS-EXAMINATION IS AN ADVERSARY’S

RIGHT

• E.G.: THE CHEMIST FROM THE POLICE LAB TESTIFIES TO THE BLOOD TYPE


THE MAIN EXCEPTION TO WHAT IS HEARSAY: STATEMENTS OF

OPPOSING PARTY

• A PARTY TO A CASE CAN ASK ANY WITNESS WHAT THE OTHER PARTY SAID (IF THE WITNESS WAS THERE)

– WITNESS CAN BE THE OTHER PARTY– WITNESS CAN BE A BYSTANDER


• THE OPPOSING PARTY’S WRITINGS ARE SIMILARLY O.K.– LETTERS– MEMOS– RECORDS


THESE ARE CALLED “ADMISSIONS”

• ANY STATEMENT BY A PARTY WILL QUALIFY WHEN OFFERED BY HER ADVERSARY PARTY

• NO ANALYSIS FOR WHETHER IT CUTS FOR OR AGAINST THE SPEAKER’S INTEREST


OPPOSING PARTY MEANS THE ONE THE OFFERING LAWYER

IS AGAINST

• IN CASE OF JONES vs. SMITH, JONES’S LAWYER CAN INTRODUCE TESTIMONY ON WHAT SMITH STATED, AND SMITH’S LAWYER CAN INTRODUCE TESTIMONY ON WHAT JONES STATED

• NEITHER SIDE CAN INTRODUCE ITS OWN OUT-OF-COURT STATEMENTS


• WHO THE TESTIFYING WITNESS IS HAS NOTHING TO DO WITH IT!– JONES LAWYER CAN ASK JONES

WHAT SMITH SAID– JONES LAWYER CAN ASK SMITH

WHAT SMITH SAID– JONES LAWYER CAN ASK A

BYSTANDER WHAT SMITH SAID

• JONES IS SAID TO BE “OFFERING” THE STATEMENT (VIA A WITNESS)


TRIAL IN JONES v. SMITHBENCH (JUDGE) JONES

JURY

COUNSEL FOR JONESCOUNSEL FOR SMITH

CLERK AND REPORTER

SPECTATORS( FOR SMITH)

SPECTATORS(FOR JONES)

RAILING

PODIUM

HIGH UP


TRIAL IN JONES v. SMITHBENCH (JUDGE) BYSTANDER

JURY


CLERK AND REPORTER



RAILING

PODIUM

HIGH UP


TRIAL IN JONES v. SMITHBENCH (JUDGE) SMITH

JURY


CLERK AND REPORTER



RAILING

PODIUM

HIGH UP


N.B.!!!

• A PARTY CAN ALWAYS TESTIFY TO WHAT HAPPENED

• BUT NOT WHAT THAT PARTY– WROTE DOWN– REPORTED BY PHONE– TOLD OTHERS ORALLY


• A NON-PARTY WITNESS CAN LIKEWISE SAY ON THE STAND WHAT HAPPENED

• BUT NOT WHAT THE WITNESS – WROTE DOWN– REPORTED BY PHONE– TOLD OTHERS ORALLY


GENERALLY, CAN A WITNESS TELL US WHAT PLAINTIFF SAID?

• YES, IF ASKED BY DEFENDANT’S COUNSEL (THE “ADVERSE PARTY”)

• NO, IF ASKED BY PLAINTIFF’S COUNSEL


ADMISSIONS IN THE CORPORATE CONTEXT

• IF A PARTY IS A CORPORATION:– OUT-OF-COURT STATEMENTS OF ITS

OFFICERS ARE ADMISSIBLE (BY ADVERSARY)

– OUT-OF-COURT STATEMENTS OF ITS EMPLOYEES ARE ADMISSIBLE (BY ADVERSARY)

– OUT-OF-COURT STATEMENTS OF ITS LAWYERS OR REPRESENTATIVES ARE ADMISSIBLE (BY ADVERSARY)

– ITS GENERATED DOCUMENTS ARE ADMISSIBLE (BY ADVERSARY)*


* NOTHING TO DO WITH WHETHER THE DOCUMENTS WERE GENERATED IN THE ORDINARY COURSE OF BUSINESS OR NOT

THE OTHER SIDE’S WRITINGS ARE “ADMISSIONS”


EXAMPLES OF ADMISSIONS

• DEFENDANT INTRODUCES POLICE LAB REPORT

• DEFENDANT INTRODUCES POLICE CRIME-SCENE REPORT

• PROSECUTOR ASKS ANY WITNESS WHAT D. SAID (IF THE WIT. KNOWS)

• PLAINTIFF INTRODUCES LETTER FROM DEFENDANT’S EMPLOYEE


MORE EXAMPLES

• 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


• A VICTIM IS NOT A PARTY IN A CRIMINAL CASE

– HENCE, VICTIM’S OUT-OF-COURT STATEMENTS TO POLICE OR NEIGHBORS ARE USUALLY NOT ALLOWED TO BE INTRODUCED AT TRIAL BY EITHER SIDE, OR BY THE VICTIM

– VICTIM CAN OF COURSE TESTIFY TO WHAT HAPPENED


• CIVIL CASE – PARTIES ARE:– PLAINTIFF– DEFENDANT

• A VICTIM COULD BECOME A CIVIL PLAINTIFF, HENCE A PARTY– IN THAT CASE, THE DEFENDANT

COULD OFFER THE VICTIM/PLAINTIFF’S OUT-OF-COURT STATEMENTS


• SOME OUT-OF-COURT UTTERANCES AREN’T “STATEMENTS”

– WORDS THAT ARE THEMSELVES AN ELEMENT OF THE CASE ARE NOT REGARDED AS STATEMENTS; EXAMPLES > >


– OFFER AND ACCEPTANCE (in contract case)

– WARRANTY OF GOOD CONDITION (in warranty case)

– DEFAMATORY UTTERANCE (in defamation case)

– CHECK DRAWN ON A BANK (payment defense)

– THE LEASE (in eviction case)– PERMISSION TO DRIVE MY CAR (theft

defense)


• THESE AREN’T TREATED AS “STATEMENTS,” BUT AS ELEMENTS; THEY AREN’T HEARSAY

– THEY CAN BE ADMITTED IN EVIDENCE BY EITHER SIDE, THROUGH TESTIMONY TO WHAT WAS SAID, OR, IF IN WRITING, INTRODUCING THE DOCUMENT


• MUCH MORE ON THE RULE EXCLUDING HEARSAY STATEMENTS, LATER IN THE COURSE !!

Documents

CHAP. 3 : INTRODUCTION TO THE HEARSAY RULE P. JANICKE 2008