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South Texas College of Law Houston
Wilks, William Lee

3 Questions to ask:
1. Is there an out-of-court statement?
2. What is the statement being offered to prove?
3. Does the probative value of this statement depend upon the credibility of the declarant?
                If not, NOT HEARSAY (all we care about is that the stmt was made)
                If yes, it gets tricky – there may be some exceptions
801(a)                     STATEMENT – oral, written, conduct (must be intended to be an assertion).
801(b)                     DECLARANT – person who makes stmt out of court (can be the witness)
801(c)                      HEARSAY – stmt…out of court…offered in evidence…for the truth of the matter being asserted.
Legally Operative Conduct – Contract, Gift, Adverse Possession (not looking at credibility of declarant)
·         Statements given for notice, or other not for truth purposes are not hearsay.
·         Nodding, pointing, etc. can be hearsay.
801(d)(1)(A)           INCONSISTENT WITH PRIOR TESTIMONY (under oath), can be offered for substance & impeachment
                                I don’t remember is not inconsistent.
801(d)(1)(B)           CONSISTENT WITH PRIOR TESTIMONY, to rebut motive or lie, made prior to motive – Tome. Offered for substance
801(d)(1)(C)           PRIOR IDENTIFICATION, after perceiving the person, and subject to CX at trial or hearing.
                                JUDICIAL ADMISSION, where a party admits to a pleading.
ADMISSION BY PARTY OPPONENT (party can explain stmt, admissible):
·         Not based on reliability, based on RESPONSIBILITY
·         Limited Admissibility (might want limiting instructions)
·         Personal knowledge NOT REQUIRED
·         Stmt does not have to be an admission; Cannot offer own statement (only opponent’s)
801(d)(2)(A)           OWN/REPRESENTATIVE (broad)
801(d)(2)(B)           MANIFEST/ADOPTIVE (must be reasonable)
·         Silence, must be              1.    Heard by the party
2.        Understood by party
3.        Party knows about the subject
4.        Had no reason to believe no response
5.        In a position to deny it
801(d)(2)(C)           AUTHORIZED (vicarious, narrow), spokesperson
801(d)(2)(D)           AGENT (vicarious), in course of & during relationship
·         Agent may be authorized to act & not speak.
801(d)(2)(E)           Co-CONSPIRATORS (vicarious), during course of & in furtherance of conspiracy.
·         Predicate – conspiracy, defendant & declarant conspirators, during & in furth of.
(C), (D), (E) – Vicarous – relationship can’t be established by one HS stmt alone.
804(b)(3) – Stmt Against Interest                                                                                       801(d)(2) – Admission by Party Opponent
1.             Declarant Unavailable                                                                                             1.             Available or Unavailable
2.             Can be made by ANYBODY                                                                                 2.             Can only be made by party opponent
3.             Exception                                                                                                                3.             Exemption
4.             Based on personal knowledge                                                                                 4.             Opinions allowed
5.             Made against declarant’s interest                                                                             5.             ——       
EXCEPTIONS (Hearsay BUT admissible):
·         Declarant availability does not matter (immaterial) under 803 exceptions
·         Thought to be trustworthy
·         Circumstantial evidence can be used to prove foundational elements
803(1)                     PRESENT SENSE IMPRESSION (unexcited utterance), contemporaneous – must be describing event/condition as it happens (or immediately thereafter) & limited to description of event – “Sufficiently Spontaneous” Check trustworthiness of declarant.
803(2)                     EXCITED UTTERANCE – declarant must still be under stress/excitement of startling event (does not need to be as it happens) & excited utterance must relate to event.
·         Time lapse is important (not determinative)
STATE OF MIND (3 & 4):
803(3)                     EXISTING MENTAL/PHYSICAL/EMOTIONAL CONDITION – special case of 803(1) – contemporaneous, offered to prove how declarant feels (mental state at time of statement, NOT remembered/believed – unless wills)
·         Declarant’s state of mind must be at issue in the case.
·         Hillman – Can include intent as a state of mind (to prove that a person did something)
o         House Report says intent should ONLY be used to prove declarant’s future conduct (NOT PAST).
o         EXCEPT – past is o.k. for wills.

rcumstances to 803 & 804 with no express exception – Court has discretion
·         Must give NOTICE to adverse party
·         Must not be related to another hearsay provision.
·         offered as evidence of material fact, more probative than other evidence from reasonable efforts, justice served by admission,
·         Allows testimony of those who have died.
·         CX of co-conspiritor is admitted if no evidence of untrustworthiness.
2 Questions to ask:
1. What is the evidence being offered?
2. What is the evidence being offered to prove?
401                          RELEVANT EVIDENCE – has “tendency” to make the existence of a fact MORE or LESS probable – that is of consequence to the case.
·         Tends to prove or disprove a fact that is of consequence to the case – failure to introduce evidence is relevant.
·         Logical relevance (meets the ldefinition of 401) – Legal relevance (after using definition in 403)
o         Condition of relevance may need to be shown – admit the lasagna
·         Direct evidence, Circumstantial evidence (need inferences), Conditional relevancy (need to prove other facts)
402                          RELEVANT EVIDENCE is admissible (other evidence is not admissible).
403                          EXCLUSION OF RELEVANT EVIDENCE – Probative value “substantially outweighed” by unfair prejudice (confusion of issues, misleading the jury, undue delay, waste of time, needless presentation of cumulative evidence).
·         Limiting the time of trials may have relevance issues – see, e.g. future damages slide rule – and legal issues (statutory).
                                NO CLEAR RULES – Court has discretionary power under 403:
·         SIMILAR HAPPENINGS EVIDENCE – did event occur under circumstances “substantially similar” to present case.
o         Where there is a less prejudicial way to introduce evidence, you must use it.
o         EXAMPLES: -Other accidents to prove dangerousness of a condition