CHAP. 3 : INTRODUCTION TO THE HEARSAY RULE P. JANICKE 2006

Chap. 3 -- Intro to Hearsay 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 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay EXAMPLES WITNESS CAN’T SAY WHAT HE TOLD THE POLICE LETTERS ARE INADMISSIBLE POLICE REPORTS ARE INADMISSIBLE 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay 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 2006 Chap. 3 -- Intro to Hearsay

THE MAIN EXCEPTION TO WHAT IS HEARSAY: STATEMENTS OF OPPOSING PARTY A PARTY TO A CASE CAN ASK A WITNESS WHAT THE OTHER PARTY SAID (IF THE WITNESS WAS THERE) WITNESS CAN BE THE OTHER PARTY WITNESS CAN BE A BYSTANDER 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay THE OPPOSING PARTY’S WRITINGS ARE SIMILARLY O.K. LETTERS MEMOS RECORDS 2006 Chap. 3 -- Intro to Hearsay

THESE ARE CALLED “ADMISSIONS” ANY STATEMENT BY OPPOSING PARTY WILL QUALIFY WHEN OFFERED BY HER ADVERSARY PARTY NO ANALYSIS FOR WHETHER IT’S FOR OR AGAINST THE SPEAKER’S INTEREST 2006 Chap. 3 -- Intro to Hearsay

OPPOSING PARTY MEANS THE ONE THE OFFERING LAWYER IS AGAINST IN CASE OF JONES vs. SMITH, JONES’S LAWYER CAN INTRODUCE SMITH’S STATEMENTS, AND SMITH’S LAWYER CAN OFFER JONES’S STATEMENTS NEITHER SIDE CAN INTRODUCE ITS OWN OUT-OF-COURT STATEMENTS 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay TRIAL IN JONES v. SMITH HIGH UP BENCH (JUDGE) JONES JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay TRIAL IN JONES v. SMITH HIGH UP BENCH (JUDGE) BYSTANDER JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay TRIAL IN JONES v. SMITH HIGH UP BENCH (JUDGE) SMITH JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay 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) 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay N.B.!!! A PARTY CAN ALWAYS TESTIFY TO WHAT HAPPENED BUT NOT WHAT HE WROTE DOWN REPORTED BY PHONE TOLD OTHERS ORALLY 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay A NON-PARTY WITNESS CAN LIKEWISE SAY ON THE STAND WHAT HAPPENED BUT NOT WHAT SHE WROTE DOWN REPORTED BY PHONE TOLD OTHERS ORALLY 2006 Chap. 3 -- Intro to Hearsay

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 2006 Chap. 3 -- Intro to Hearsay

ADMISSIONS IN THE CORPORATE CONTEXT IF A PARTY IS A CORPORATION: STATEMENTS OF ITS OFFICERS ARE ADMISSIBLE (BY ADVERSARY) STATEMENTS OF ITS EMPLOYEES ARE ADMISSIBLE (BY ADVERSARY) STATEMENTS OF ITS LAWYERS OR REPRESENTATIVES ARE ADMISSIBLE (BY ADVERSARY) ITS GENERATED DOCUMENTS ARE ADMISSIBLE (BY ADVERSARY) 2006 Chap. 3 -- Intro to Hearsay

EXAMPLES OF ADMISSIONS DEFENDANT INTRODUCES POLICE LAB REPORT DEFENDANT INTRODUCES POLICE CRIME-SCENE REPORT PROSECUTOR ASKS ANY WITNESS WHAT D. SAID PLAINTIFF INTRODUCES LETTER FROM DEFENDANT’S EMPLOYEE 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay 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 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay A VICTIM IS NOT A PARTY IN A CRIMINAL CASE HENCE, VICTIM’S OUT-OF-COURT STATEMENTS ARE USUALLY NOT ALLOWED TO BE INTRODUCED AT TRIAL VICTIM CAN OF COURSE TESTIFY TO WHAT HAPPENED 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay 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 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay SOME OUT-OF-COURT UTTERANCES AREN’T “STATEMENTS” WORDS THAT ARE THEMSELVES AN ELEMENT OF THE CASE ARE NOT REGARDED AS STATEMENTS; EXAMPLES > > 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay 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) 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay SINCE THESE AREN’T “STATEMENTS,” 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 2006 Chap. 3 -- Intro to Hearsay

Chap. 3 -- Intro to Hearsay MUCH MORE ON THE RULE EXCLUDING HEARSAY STATEMENTS, LATER IN THE COURSE !! 2006 Chap. 3 -- Intro to Hearsay