CHAPTER 4, PART 2 OF 3: EXCEPTIONS TO THE RULE THAT HEARSAY IS INADMISSIBLE P. JANICKE 2014

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

PROBLEM 3A 2014Chap. 4, part 23

2014Chap. 4, part 24 TWO GROUPS OF EXCEPTIONS TO THE RULE THAT HEARSAY EVIDENCE IS INADMISSIBLE GROUP OF EXCEPTIONS THAT APPLY REGARDLESS OF WHETHER 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

2014Chap. 4, part 26 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 OR IF NO STATEMENT IS INVOLVED

2014Chap. 4, part 27 SO -- WE ARE HERE TALKING ABOUT STATEMENTS, WHERE THE DECLARANT WAS –ONE OF OUR OWN PEOPLE, or –A THIRD PARTY

2014Chap. 4, part 28 (1) PRESENT SENSE IMPRESSION TESTIMONY THAT -- DECLARANT SAID SOMETHING ABOUT WHAT SHE WAS PERCEIVING AT THAT VERY TIME, OR IMMEDIATELY THEREAFTER

2014Chap. 4, part 29 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 BUT, IT IS ADMISSIBLE

2014Chap. 4, part 210 EXAMPLE WITNESS: “I SAID ‘HE IS COMING STRAIGHT THIS WAY’ ” OFFERED TO SHOW THE PERSON WAS APPROACHING THE SPEAKER IS HEARSAY BUT, IS ADMISSIBLE

2014Chap. 4, part 211 EXAMPLE WITNESS: “SHE SAID ‘IT’S HOT IN HERE’ ” OFFERED TO HELP ESTABLISH THE ROOM WAS WARM IS HEARSAY BUT, IS ADMISSIBLE

2014Chap. 4, part 212 (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

2014Chap. 4, part 213 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.’ ”

2014Chap. 4, part 214 DECLARANT MUST HAVE PERSONALLY OBSERVED THE STARTLING EVENT IT IS OFTEN DIFFICULT TO PROVE THIS LATER THE JUDGE FINDS IT AS A FOUNDATION FACT

CASES Nutall Arnold 2014Chap. 4, part 215

2014Chap. 4, part 216 (3) THEN EXISTING MENTAL, EMOTIONAL, PHYSICAL CONDITION OF DECLARANT COULD BE VIEWED AS A SUBSET OF (1), PRESENT SENSE IMPRESSION, BUT FOCUSING ON INTERNAL FEELINGS AND THOUGHTS MANY SITUATIONS CAN BE ANALYZED UNDER EITHER (3) OR (1), WITH SAME RESULT

2014Chap. 4, part 217 ** THIS IS WHERE WE PUT TESTIMONY ON DECLARATIONS OF INTENT, OFFERED TO HELP ESTABLISH LATER CONFORMING CONDUCT ** HE SAID HE INTENDED TO DO IT; THEREFORE, A LITTLE MORE LIKELY THAT HE DID DO IT

2014Chap. 4, part 218 EXAMPLES OF (3) TESTIMONY: HE SAID TO ME, “MY HEAD HURTS” [WOULD ALSO FIT UNDER (1)] TESTIMONY: I TOLD HIM, “I AM REALLY DEPRESSED” [WOULD ALSO FIT UNDER (1)] TESTIMONY: SHE SAID, “I PLAN TO LEAVE HOUSTON ON FRIDAY” –ADMISSIBLE TO SHOW THE PLAN –AND TO SHOW THAT SHE LEFT ON FRIDAY! [WOULD NOT FIT UNDER (1)]

2014Chap. 4, part 219 WE KNOW THE INTENT WAS TO ADOPT THE RULE OF HILLMON –IN THAT CASE, THE EVIDENCE OF INTENT WAS TREATED AS CREATING SOME DEGREE OF LIKELIHOOD THAT THE INTENT WAS CARRIED OUT

CASES Hillmon Pheaster 2014Chap. 4, part 220

2014Chap. 4, part (3) INCLUDES STATEMENTS OF INTENT THAT INVOLVE ADDITIONAL PERSONS (JOINT PLAN) –AS IN HILLMON –BUT NOT A STATEMENT OF A PLAN INVOLVING ONLY A THIRD PERSON’S CONDUCT>>>

EXAMPLES -- TESTIMONY: SHE SAID TO ME, “I FEAR JACK IS GOING TO SHOOT ME!” DIARY ENTRY: “I FEAR JACK IS GOING TO SHOOT ME!” THESE ARE STATEMENTS OF SOMEONE ELSE’S STATE OF MIND INADMISSIBLE 2014Chap. 4, part 222

2014Chap. 4, part 223 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.”

2014Chap. 4, part 224 THEREFORE, WE ARE ADMITTING ONLY THE MOST BASIC LEVELS OF FEELING –JOY –PAIN –INTENT [PLAN] NOT THE ACTUAL OR EXPECTED CONDUCT OF OTHERS ACTING ALONE

2014Chap. 4, part 225 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. HE FELT THEY WOULD KILL HIM FOR SURE IF HE STAYED HERE.” –[GREEN TEXT IS INADMISSIBLE; GOES BEYOND DECLARANT’S PLAN AND MOTIVATION; ORANGE TEXT IS BORDERLINE; WHITE TEXT IS ADMISSIBLE]

PROBLEMS/CASES Blake 2014Chap. 4, part 226

2014Chap. 4, part 227 (4) STATEMENTS TO PHYSICIANS WIDER GROUP OF STMTS. THAN MERE PHYSICAL, MENTAL, EMOTIONAL CONDITION HERE, ONSET INFO IS INCLUDED –TESTIMONY: I HEARD HIM SAY TO THE DOCTOR: “THIS PAIN STARTED LAST MONTH” GENERAL CAUSE INFO IS INCLUDED –WITNESS TESTIMONY: I SAID TO THE DOCTOR: “IT BEGAN WHEN I ATE THOSE EGGS”

2014Chap. 4, part 228 DIVIDING LINE: NO STATEMENTS AS TO FAULT, UNLESS NEEDED MEDICALLY –WIT. DOCTOR: HE TOLD ME “IT BEGAN WHEN JACK HIT ME WITH A HAMMER” WILL HAVE TO BE REPHRASED TO ELIMINATE JACK’S FAULT

2014Chap. 4, part 229 ANOTHER EXAMPLE: –WIT. TESTIFIES: “I HEARD HIM SAY TO THE DOCTOR, ‘IT BEGAN AFTER I ATE THOSE EGGS THAT WERE BAD, WHICH IS PRETTY USUAL FOR THE MAIN STREET DINER’” –THE GREEN PART IS UNNECESSARY FOR DIAGNOSIS OR TREATMENT, AND WILL BE KEPT OUT; ORANGE TEXT IS BORDERLINE

2014Chap. 4, part 230 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 THE CULPRIT IS, WOULD NOT QUALIFY –STATEMENTS DURING AN INSURANCE PHYSICAL WOULD NOT QUALIFY

2014Chap. 4, part 231 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

CASE Petrocelli 2014Chap. 4, part 232

2014Chap. 4, part 233 (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

2014Chap. 4, part 234 MECHANICS OF USING EXCEPTION (5) LAY FOUNDATION: –WITNESS CAN’T NOW RECALL –WITNESS AT ONE TIME COULD RECALL –WITNESS CAUSED RECORD TO BE MADE –IDENTIFY THE RECORD RECORD CAN THEN BE READ IN, BUT THE DOCUMENT CAN’T BE INTRODUCED EXCEPT BY OTHER SIDE

2014Chap. 4, part 235 (6) BUSINESS RECORDS NEED NOT BE COMMERCIAL; ANY REGULAR ACTIVITY WILL QUALIFY –CHURCH –BOOK CLUB ONLY APPLIES TO FACTS GENERATED INSIDE THE BUSINESS –REPORTS FROM OUTSIDE ARE NOT COVERED AND HAVE TO BE MASKED OUT

2014Chap. 4, part 236 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

2014Chap. 4, part 237 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

2014Chap. 4, part 238 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

2014Chap. 4, part 239 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

2014Chap. 4, part 240 CAUTION DO IT THE TEXAS WAY, EVEN IN FEDERAL COURT MUCH SAFER FOR THE AFFIANT [AND ULTIMATELY FOR YOU] –AFFIANT CAN BE DEPOSED AND CROSS-EXAMINED –AVOID EMBARRASSING OVERREACH!

2014Chap. 4, part 241 (7) ABSENCE OF A BUSINESS ENTRY SERVES AS PROOF THAT THE EVENT DID NOT HAPPEN REQUIRES SHOWING OF THE USUAL PRACTICE OF THE ORGANIZATION

2014Chap. 4, part 242 (8) OFFICIAL RECORDS and (9) VITAL STATISTICS RECORDS ARE GENERALLY OK, EXCEPT FOR LAW ENFORCEMENT RECORDS OTHER KINDS OF OFFICIAL RECORDS ARE O.K. IN CIVIL AND CRIMINAL CASES

A BIG CAVEAT IN CRIMINAL CASES 2014Chap. 4, part 243

LAW ENFORCEMENT RECORDS BY THIS PHRASE WE MEAN: WHAT THE POLICE WROTE DOWN –POLICE RECORDS OF CITIZEN STATEMENTS ARE HEARSAY BUT MIGHT BE O.K. AS EXCITED UTTERANCE, ETC. [e.g., 911 CALL] 2014Chap. 4, part 244

POLICE REPORTS ARE FREQUENTLY ADMITTED IN CIVIL CASES BUT ARE INADMISSIBLE IN CRIMINAL CASES [TX. RULE IS THE SAME] –AND YOU CAN’T SNEAK THEM IN UNDER ANY OTHER EXCEPTION (LIKE BUSINESS RECORDS) 2014Chap. 4, part 245

CASE Melendez-Dias 2014Chap. 4, part 246

2014Chap. 4, part 247 THREE TYPES OF RECORDS FIT UNDER (8) 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

2014Chap. 4, part ONES THAT RECITE MATTERS OBSERVED PURSUANT TO DUTY IMPOSED BY LAW. E.G., REPORTS ON: –REAL ESTATE APPRAISALS DONE –BUILDING INSPECTIONS PERFORMED –HIGHWAY CONSTRUCTION BIDS RECEIVED

2014Chap. 4, part FACTUAL FINDINGS FROM INVESTIGATIONS E.G., REPORTS ON: –NATL. TRANSP. SAFETY BOARD AIR DISASTER INVESTIGATIONS –CENTERS FOR DISEASE CONTROL INVESTIGATION OF EPIDEMICS –POLICE BALLISTICS INVESTIGATIONS (CIVIL ONLY) –POLICE FINGERPRINT CHECKS (CIVIL ONLY)

2014Chap. 4, part 250 TYPES OF PUBLIC RECORDS THAT FIT UNDER (9) BIRTHS, DEATHS, MARRIAGES FOR THESE PARTICULAR EVENTS, THE PUBLIC RECORDER OFFICE NEED NOT HAVE ANY FIRST-HAND KNOWLEDGE OF THE FACTS RECORDED –REPORTS MADE TO THE OFFICE BY CITIZENS ARE OK HERE

2014Chap. 4, part 251 BLOCKAGE OF POLICE RECORDS DOES NOT APPLY IN THE PARTS OF CRIMINAL CASES WHERE RULES OF EVID. DO NOT APPLY –SENTENCING –GRAND JURY PROCEEDINGS –HEARING ON REVOCATION OF PROBATION –BAIL PROCEEDINGS –WARRANTS [R 1101(d)(3) -- FED. RULES INAPPLICABLE; NO HEARSAY RULE, SO NO EXCEPTION NEEDED]

2014Chap. 4, part 252 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 “

2014Chap. 4, part 253 CHURCH AND FAMILY RECORDS [803(11-13)] TREATED MUCH LIKE PUBLIC RECORDS UNDER (9) SIMILAR LIMITED SUBJECT MATTER –BIRTHS –DEATHS –DIVORCES –BAPTISMS –ETC.

2014Chap. 4, part 254 (18) LEARNED TREATISES FOUNDATION: –ACKNOWLEDGED AS AUTHORITATIVE BY TESTIMONY OF A WITNESS PROCEDURE: –CAN THEN READ IN RELEVANT PASSAGES –CAN’T PUT THE BOOK IN

2014Chap. 4, part 255 (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

2014Chap. 4, part 256 (22) JUDGMENTS OF FELONY CONVICTIONS ADMISSIBLE TO PROVE ANY UNDERLYING ESSENTIAL FACT ONLY JUDGMENTS –NOT ARRESTS –NOT INDICTMENTS –NOT VERDICTS