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