1. General rules of hearsay and policy rationale
    Hearsay is not admissible

    • out of court statements are not under oath
    • may be error in transmission
    • fact finder couldnt see the declarant's demeanor at the time the statement was made
    • cant cx the declarant when statement was made
  2. What is Federal Hearsay
    • Statement- written or oral verbal assertion
    • usually commands are not included unless they are the functional equivalent of an assertion
    • nonverbal conduct intnetded to be an assertion by the declarant
    • declarant is a person out of the court
    • statement is offered to prove the truth of the matter asserted- express truth of the matter asserted, not implied
  3. What is Texas Heasary (Rule 801)
    • Statement-written or oral verbal expression (can include questions and commands)
    • also non verbal conduct that is intended by the declarant to be an expression
    • burden of proving the intent is on the party claiming it should be excluded as hearsay

    out of this court declarant- must be a person (data that was inputted by a person can be hearsay also)

    • Offered to prove TOMA
    • Texas TOMA can be express or implied
    • implied if the probative value flows from the belief of the declarant as to the truth of the matter
  4. TOMA
    • Ask what the statement is being offered to prove. If not the truth of the matter, then it is not hearsay.
    • Examples of when it is not offered for the TOMA
    • Information acted upon
    • Operative fact- things with independent significance regardless of their truth
    • offered to show declarant's mental state
    • offered to show effect on hearer or reader of the statement
    • offered to show prior inconsistent statements by the declarant
    • to show that the statement was made
    • and more
  5. 801(e) First Hearsay Exemption
    • 1) the declarant testifies at trial or hearing and is subject to CX concerning the statement AND the statement is
    • a) inconsistent with the declarant’s testimony given
    • under oath subject to penalty of perjury at trial, hearing or other proceeding (except grand jury proceedings in criminal cases)
    • Or in a deposition
    • Remember these statements CAN be offered for truth, because NOT hearsay
    • B) prior consistent statements, offered to rebut an express or implied charge of recent fabrication, improper influence, or motive.
    • The prior statement must have been made prior to the time the motive to falsify occurred
    • This provision allows you to rehabilitate your witness
    • Also remember the statement can be offered for truth because not hearsay
    • Also remember that 613 prior consistent statements may not be admitted unless they meet the 801 requirements
    • C) identifications of a person made after perceiving the person
  6. 801(e) Second Hearsay Exemption
    • Admissions made by a party opponent and later used against him by the other party
    • a) party's own statements made in individual or representative capacity
    • b) adoption or beleif it its truth (ex: signing your name to it)
    • C) statements made by someone authorized to speak on the party's behalf (spokespersons)
    • d) statements made by an agent in the scope of employment (employees)
    • e) statements made by co-conspirators
    • conspiracy must be shown by preponderance of evidence
  7. 801(e) Third Hearsay Exemptin
    • Depositions taken in the same civil case (Texas; only Civil)
    • jurors may not take the deposition into the jury room, but they can consider the introduced statements from it for their truth.
    • Remember- unavailability of the deponent is not necessary for admissibility under this rule
  8. First 2 hearsay exceptions under 803
    • Present Sense Impressions
    • declarant must have made the comments at the time the event took place or immediately after.
    • Rationale: NO time for fabrication or defect of memory
    • Waiting too long renders it inadmissible under this provision
    • key: look for present tense verbs in the statement
    • declarant must have been personally perceiving the event or condition
    • note- 803(3) includes conditions too

    • Excited Utterances
    • Proponent must show by preponderance that statement was the product of a startling event or condition (must relate to the occurrence)
    • what is a startling event? What is the standard?
    • Show that it was a startling event for that declarant
    • statement was made while declarant was under the stress of the excitement caused by the event or condition
    • Rationale: event speaking through person rather than person speaking through an event
    • Again: declarant didn’t have time to fabricate anything
  9. Third and Fourth Hearsay exceptions under 803
    • 3) Then existing mental, emotional, or physical condition must be regarding a current state at the time the expression was made; not referring to a past condition
    • can include:
    • state of mind
    • emotions/sensations
    • physical pain or health
    • intent/plan/motive/design
    • Intent to do something in the future may be included under this rule
    • See Mut. Ins. Co. v. Hillmon:
    • admissible to show intent of the victim to travel with the defendant
    • Key is intent to act with others
    • intent to act individually is not included here
    • Rationale: statements made contemporaneously with a condition minimizes the hazards of hearsay

    • 4) Statements for purpose of medical diagnosis/ treatment
    • the statements must be reasonably pertinent to the diagnosis
    • physician reasonably relied on it
    • what happened is usually pertinent
    • who did it, probably is not
    • past feelings may be admissible here because they are helpful for diagnoses
    • Rationale: People typically tell the truth to a doctor to get a proper diagnosis
  10. Past Recollection Recorded
    • deals with records concerning a matter that a witness once had personal knowledge about but now has insufficient recollection to testify
    • accurately (even after using the document to refresh memory)
    • must show that the record was made or adopted when the witness’s memory was fresh
    • the record may be read into evidence but not itself be received asexhibit (unless offered by adverse party)
    • Note- in Texas it cannot be read
    • into evidence without first being marked
  11. Present Recollection Refreshed
    • Rule 612- NOT hearsay because it is only used to jog memory, and not entered into evidence
    • the witness looks at the document then hands it back and answers questions
    • if the witness cant remember, then go to 803(5) hearsay exception

    • Under the rule, the adverse party is entitled to have the written product to inspect, cross examine the witness about it, and introduce into evidence portions regarding the testimony, WHEN the evidence was used to
    • Civil-
    • refresh memory while testifying OR
    • before testifying (this is discretionary by the court)
    • Criminal
    • During testimony or before testifying (not discretionary here)
  12. Rule 803(6) Business Records
    • this apples to any kind of regular organized activity
    • 1- records must be kept in regular course of business activity
    • 2- must be regular practice to make the record
    • person reporting should have a duty to record
    • 3- Person who made the record OR supplied the information must have personal knowledge of the thing being recorded
    • 4- Record must be made at or near the time of the act, event, etc. that is the subject of the record
    • EVEN if the requirements are met, judge can still throw it out if not trustworthy

    NOTE business records may be self authenticating under 902(10), if they dont meet the requirements, then a sponsoring witness may be used to prove them up (someone with knowledge of the reporting procedures)
  13. Rule 803(8)-Public Records
    • a) activities of the ofice or agency
    • b)matters observed pursuant to a duty UNLESS the evidence is being offered in a criminal case and the matters were observed by police/ law enforcement
    • can introduce police reports in civil though Additional information from Cole case
    • Lab reports done for the purpose of a criminal case are not admissible under 803(8)(b) because lab techs were part of criminal justice team
    • If something is not admissible under 803(8)(b), you cant try to bring it in under 803(b)

    • c) if a reports or record contains factual concusions resulting from investigation, it may only be introduced
    • in civil case as to any party OR
    • in a criminal case offered by the defense against the government
    • UNLESS it lacks trustworthiness
  14. 803(16),(18),(21)
    • 16**) ancient documents
    • 20+ years old
    • See 901/902 for authenticity requirements

    • 18) Learned Treatises (also in federal)
    • f used in CX or Direct examination by expert witnesses, they are exceptions
    • does NOT apply for lay witnesses
    • must be considered reliable authority by the witness or other expert testimony
    • tell how it was written, why it is reliable, its uses, etc.
    • ex: DSM psychology book
    • must be published material
    • subject of history, medicine, or science
    • if admitted, may be READ into evidence but not entered as exhibit

    • 21) Reputation of character among associates or in the community
    • remember this is still subject to all the character rules, it just provides an exception to hearsay for reputation evidence
  15. Rule 803(24) Statements against interest
    • A statement that when made was
    • so far contrary to declarant’s pecuniary or proprietary interest or
    • so far tended to subject the declarant to civil or criminal liability, or
    • to render invalid a claim by the declarant against another or
    • to make the declarant an object of hatred ridicule or disgrace (social interest)
    • that a reasonable person in declarant’s position would not have made unless they beleieved it to be true
    • corroboration is required only in criminal cases whether offered for inculpatory or exculpatory purposes

    • Compare with Federal Rule 804(b)(3); same as Texas 803(24) except that the declarant must be UNAVILABLE
    • Also the federal rule does not include social interest
    • The federal rule requires corroboration (to show trustworthiness) only when the statement is offered to exculpate the accused
    • BUT in Federal corroboration is necessary in criminal OR civil
    • Exculpate= getting the defendant
    • off and blaming declarant
  16. Differences between party admissions(801e) and statements against interest (803(24))
    • Party admissions (801e)
    • NOT hearsay
    • Declarant is a party
    • Statement was against interest when offered at trial
    • The OTHER party can offer it into evidence
    • And must offer it against the declarant party
    • No corroboration necessary

    • Statements against interest
    • Hearsay, but admissible
    • Declarant is any person
    • It is against declarants interest when made
    • Any party may offer into evidence
    • May require corroboration in criminal
  17. SHowing unavailability of a witness under 804(a)
    proponent must show by preponderance that declarant is unavailable and judge will decide

    • Declarant is unavailable when
    • 1) exempted by the court from testifying on the ground of privilege
    • 2) refuses to testify despite court order
    • court order may not be necessary if declarant has made it clear that we wont change his mind
    • 3) testifies as to lack of memory as to the certain statement being testified about
    • if there is just a lack of memory to a certain party, the declarant may still have to testify to the other parts he remembers
    • 4) death or physical or mental illness preventing him from testifying
    • may want to bring in another witness attesting to the reason declarant cant testify
    • affidavits may be helpful here too
    • 5)proponent is unable to procure declarant’s attendance by reasonable means
    • proponent must show that he used reasonable means

    • in all of these, there must not be absence due to procurement or wrongdoing on the part of the proponent
    • showing wrongdoing must be done by preponderance of evidence
  18. 804(b) former testimony in civil
    • Testimony given as a witness at another hearing of the same or different proceeding OR
    • In a deposition taken in another proceeding
    • Note- for depositions in same hearing see Texas 801e3, hearsay exemption
    • In Federal, depositions in same hearing are part of 804(b)(1)
    • IF the party the testimony is offered against OR a person with similar interest had an opportunity and
    • similar motive to develop the prior testimony
    • Federal requires that party or “predecessor in interest” have had move and opportunity to develop
  19. 804(b) former testimony in criminal and Federal
    • Criminal
    • Testimony given in hearing of same or different proceeding
    • NOT depositions (these are in the Texas Code of Crim Proc)
    • Must have had motive and opportunity to develop testimony
    • MUST be same parties in both cases

    • Federal rule does not specify differently for criminal and civil as to depositions
    • Depositions for same or different proceeding are included in this rule
  20. 804(b) dying declarations in Texas and Federal
    • statement made when declarant believed death was imminent AND
    • statement concerns the cause or circumstances of the impending death
    • Texas- applies in any civil or criminal proceeding
    • Federal- all civil, or in criminal only for homicide cases
    • The declarant does not have to actually be dead
    • He just must have made the statement believing he was dying
    • And under this rule, his unavailability at trial must be shown
  21. Rules 805 and Texas 806
    805 Hearsay within hearsay may be admissible if each part conforms to an exemptions or exception

    • Texas 806- If hearsay or a hearsay exemption (under 801(e)(2)(c)-(e) or in civil, 801(e)(3) also) then the credibility of the declarant may be attacked
    • The recognized methods of impeachment and rehabilitation are applicable here
    • This can be done EVEN THOUGH the declarant is not present
    • BUT the party who the hearsay statement has been used against may call the declarant as a witness and cross examine him to show that he is not credible
  22. Federal only hearsay rules
    • 807- Residual Hearsay: “catch-all”
    • When something is not covered as an exception to in the Rules, but it has
    • (1) equivalent circumstantial guarantees of trustworthiness
    • it is reliable
    • (2) it is offered as evidence of material fact
    • (3) it is more probative on the point (and probably more relevant) than any other evidence which proponent can procure by reasonable efforts
    • and justice will be served by admitting it, it may be admitted
    • also the proponent must give notice to the other party of its intent to introduce such evidence

    • 804(b)(6)- Forfeiture by wrongdoing
    • party may introduce a hearsay statement made by an unavailable declarant if the opposing party caused the declarant to be unavailable
    • party who caused the unavailability forfeits right to object to declarant’s hearsay statements
    • must show by preponderance that the opposing party made the declarant unavailable
  23. Confrontation clause and testimonial hearsay
    • confrontation clause ONLY applies in criminal cases
    • Testimonial hearsay may be excluded as a violation of the confrontation clause
    • things done in preparation for trial are considered testimonial
    • business records may or may not be testimonial
    • when there is testimonial hearsay, try to call the declarant to testify at trial to avoid the confrontation issue OR show that he is unavailable if you had a past oppotrunity to CX him
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