CHAPTER 4, PART 2 OF 2: EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE P. JANICKE 2009

Chap. 4, part 22 RULE 802 EXCLUDES MOST HEARSAY BUT THERE ARE EXCEPTIONS CONTEXT: THE EVIDENCE IS HEARSAY, BUT IS ALLOWED IN ANYWAY

2009Chap. 4, part 23 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]

UNRESTRICTED EXCEPTIONS

2009Chap. 4, part 25 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

2009Chap. 4, part 26 SO -- WE ARE HERE TALKING ABOUT WHERE THE DECLARANT WAS –ONE OF OUR OWN PEOPLE, or –A THIRD PARTY

2009Chap. 4, part 27 (1) PRESENT SENSE IMPRESSION TESTIMONY THAT -- 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’ ”

2009Chap. 4, part 28 (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

2009Chap. 4, part 29 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.’ ”

2009Chap. 4, part 210 DECLARANT MUST HAVE PERSONALLY OBSERVED THE STARTLING EVENT IT IS OFTEN DIFFICULT TO PROVE THIS LATER THE JUDGE FINDS IT AS A FOUNDATION FACT

2009Chap. 4, part 211 (3) THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL CONDITION OF DECLARANT A SUBSET OF (1) REDUNDANT IS INCLUDED FOR EMPHASIS THIS IS WHERE WE PUT TESTIMONY ON DECLARATIONS OF INTENT, OFFERED TO PROVE LATER CONFORMING CONDUCT

2009Chap. 4, part 212 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”

2009Chap. 4, part 213 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.”

2009Chap. 4, part 214 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

2009Chap. 4, part 215 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]

2009Chap. 4, part 216 (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”

2009Chap. 4, part 217 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

2009Chap. 4, part 218 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

2009Chap. 4, part 219 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

2009Chap. 4, part 220 (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

2009Chap. 4, part 221 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

2009Chap. 4, part 222 (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

2009Chap. 4, part 223 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

2009Chap. 4, part 224 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

2009Chap. 4, part 225 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

2009Chap. 4, part 226 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

2009Chap. 4, part 227 (7) ABSENCE OF A BUSINESS ENTRY SERVES AS PROOF THAT THE EVENT DID NOT HAPPEN REQUIRES SHOWING OF THE USUAL PRACTICE OF THE ORGANIZATION

2009Chap. 4, part 228 (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 >>>

2009Chap. 4, part 229 THREE TYPES OF RECORDS ALLOWED 1.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

2009Chap. 4, part 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

2009Chap. 4, part 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)

2009Chap. 4, part 232 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

2009Chap. 4, part 233 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]

2009Chap. 4, part 234 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 , § 3(a) GRAND JURIES [R 101(d)(1)] HABEAS CORPUS “ BAIL “ SEARCH WARRANTS “

2009Chap. 4, part 235 (18) LEARNED TREATISES FOUNDATION: –ACKNOWLEDGED AS AUTHORITATIVE BY TESTIMONY OF A WITNESS PROCEDURE: –READ IN RELEVANT PASSAGES –CAN’T PUT THE BOOK IN

2009Chap. 4, part 236 (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

2009Chap. 4, part 237 (22) JUDGMENTS OF FELONY CONVICTIONS ADMISSIBLE TO PROVE ANY UNDERLYING ESSENTIAL FACT ONLY JUDGMENTS –NOT ARRESTS –NOT INDICTMENTS –NOT VERDICTS