CHAPTER 4, PART 2 OF 2: EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE P. JANICKE 2010

RULE 802 EXCLUDES MOST HEARSAY BUT THERE ARE EXCEPTIONS CONTEXT: THE EVIDENCE IS HEARSAY, BUT IS ALLOWED IN ANYWAY 2010 Chap. 4, part 2

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] 2010 Chap. 4, part 2

UNRESTRICTED EXCEPTIONS

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 2010 Chap. 4, part 2

SO -- WE ARE HERE TALKING ABOUT WHERE THE DECLARANT WAS ONE OF OUR OWN PEOPLE, or A THIRD PARTY 2010 Chap. 4, part 2

(1) PRESENT SENSE IMPRESSION TESTIMONY THAT -- DECLARANT SAID SOMETHING ABOUT WHAT SHE WAS PERCEIVING AT THAT VERY TIME, OR IMMEDIATELY THEREAFTER 2010 Chap. 4, part 2

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 2010 Chap. 4, part 2

EXAMPLE WITNESS: “I SAID ‘HE IS COMING STRAIGHT THIS WAY’ ” OFFERED TO SHOW THE PERSON WAS APPROACHING THE SPEAKER IS HEARSAY IS ADMISSIBLE 2010 Chap. 4, part 2

EXAMPLE WITNESS: “SHE SAID ‘IT’S HOT IN HERE’ ” OFFERED TO HELP ESTABLISH THE ROOM WAS WARM IS HEARSAY IS ADMISSIBLE 2010 Chap. 4, part 2

(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 2010 Chap. 4, part 2

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.’ ” 2010 Chap. 4, part 2

DECLARANT MUST HAVE PERSONALLY OBSERVED THE STARTLING EVENT IT IS OFTEN DIFFICULT TO PROVE THIS LATER THE JUDGE FINDS IT AS A FOUNDATION FACT 2010 Chap. 4, part 2

(3) THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL CONDITION OF DECLARANT COULD BE VIEWED AS A SUBSET OF PRESENT SENSE IMPRESSION, FOCUSING ON INTERNAL FEELINGS AND THOUGHTS REDUNDANT; IS INCLUDED FOR EMPHASIS 2010 Chap. 4, part 2

HE SAID HE INTENDED TO DO IT; THEREFORE, LIKELY HE DID DO IT ** 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 2010 Chap. 4, part 2

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” 2010 Chap. 4, part 2

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.” 2010 Chap. 4, part 2

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 2010 Chap. 4, part 2

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 BECAUSE HE WITHHELD PROCEEDS OF A HEIST. HE FELT THEY WOULD KILL HIM FOR SURE.” [GREEN TEXT IS INADMISSIBLE] 2010 Chap. 4, part 2

(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” 2010 Chap. 4, part 2

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 2010 Chap. 4, part 2

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 2010 Chap. 4, part 2

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 2010 Chap. 4, part 2

(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 2010 Chap. 4, part 2

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 2010 Chap. 4, part 2

(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 2010 Chap. 4, part 2

FOUNDATION FOR (6) IS COMPLEX FOUNDATION NEEDED: REGULAR ACTIVITY GOING ON THIS DOC. MADE IN THE REGULAR COURSE OF IT MADE AT OR NEAR THE TIME OF EVENTS LISTED MADE BY (OR VIA) A PERSON WITH ACTUAL KNOWLEDGE WAS THE REGULAR PRACTICE TO KEEP RECORDS OF THIS TYPE 2010 Chap. 4, part 2

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 2010 Chap. 4, part 2

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 2010 Chap. 4, part 2

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 2010 Chap. 4, part 2

(7) ABSENCE OF A BUSINESS ENTRY SERVES AS PROOF THAT THE EVENT DID NOT HAPPEN REQUIRES SHOWING OF THE USUAL PRACTICE OF THE ORGANIZATION 2010 Chap. 4, part 2

(8) OFFICIAL RECORDS LAW ENFORCEMENT RECORDS CAN’T BE USED IN A CRIMINAL CASE OTHER KINDS ARE O.K. (e.g. BIRTH CERTIFICATE) ALL KINDS ARE FREQUENTLY USED IN CIVIL CASES BUT NOTE THE LIMITS >>> 2010 Chap. 4, part 2

THREE TYPES OF RECORDS ALLOWED 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 2010 Chap. 4, part 2

ONES THAT RECITE MATTERS OBSERVED PURSUANT TO DUTY IMPOSED BY LAW. E.G., REPORTS ON: REAL ESTATE APPRAISALS DONE BUILDING INSPECTIONS PERFORMED MARRIAGE CEREMONIES PERFORMED DEATHS OBSERVED HIGHWAY CONSTRUCTION BIDS RECEIVED 2010 Chap. 4, part 2

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) 2010 Chap. 4, part 2

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 2010 Chap. 4, part 2

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] 2010 Chap. 4, part 2

SENTENCING Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) 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 “ 2010 Chap. 4, part 2

(18) LEARNED TREATISES FOUNDATION: PROCEDURE: ACKNOWLEDGED AS AUTHORITATIVE BY TESTIMONY OF A WITNESS PROCEDURE: READ IN RELEVANT PASSAGES CAN’T PUT THE BOOK IN 2010 Chap. 4, part 2

(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 2010 Chap. 4, part 2

(22) JUDGMENTS OF FELONY CONVICTIONS ADMISSIBLE TO PROVE ANY UNDERLYING ESSENTIAL FACT ONLY JUDGMENTS NOT ARRESTS NOT INDICTMENTS NOT VERDICTS 2010 Chap. 4, part 2