EVIDENCE OUTLINE, PRATER, FAll 2014
Hearsay
1. Generally:
a. First you decide if it is hearsay
b. Second you decide if it is excluded under the prior statements or admissions doctrine
c. If that doesn’t work, you go to the unavailability exceptions to the hearsay rule
d. If that doesn’t work you go to the exceptions not requiring unavailability
2. Hearsay-defined: A declarant's statement other than the one made at this hearing offered to prove the truth of the matter asserted
a. Generally
i. Statements made at court hearings are hearsay if it’s another hearing
1. Example, things said at preliminary hearing are hearsay when offered at a later trial or things said at criminal case used in a civil case
ii. A statement made by a witness on the stand that was made previous to trial meets the initial definition of hearsay
1. “I said at the scene that I saw hecker run the stop sign” -Hearsay
2. *In court* “I saw hecker run the stop sign” – Not Hearsay
b. Declarant
i. Not Hearsay because not a declarant
1. “Colonel Redstone (dog) sniffing and barking and alerting”
2. What a thermometer reads
ii. It must be a person saying or writing or conduct
c. Whether something is offered to prove the Truth of the matter asserted
i. Words that create or terminate legal rights or responsibility are not hearsay (these are not there to show the truth of the matter asserted, just that they were written) For a contract, you don’t have to prove the worlds are true to have a binding contract, just that they were spoken or written
1. Examples
a. Contracts
b. Leases
c. Licenses
d. Easements
e. Money Orders
f. Checks
2. Hypo: “Objection! That contract is hearsay”
a. That is not hearsay, those words are not offered to prove the truth of the matter asserted, just to show that they were written
ii. Words of Perjury
1. Never offered to prove the truth of the matter asserted
a. You aren’t trying to prove the words spoken are true, infact you are proving they are false
iii. Fraud
1. Words of fraud are not being offered to prove the truth of the matter asserted, in fact you have to prove they are false
iv. Defamation “hecker is an ammoral slug”
1. Words of defamation are not offered to prove the truth of the matter asserted, in fact you have to prove they are false
v. Threats or assault “I’m going to kick your ass”
1. Not offered to prove the truth of of the matter asserted, just to show they were spoken or written, because they are the elements of the case
vi. State of Mind (comes up more often than the others)
1. (go back to the cases in the book)
2. State of mind of person hearing the words: Funeral Home case where the daughter and wife supposedly slipped and fell on the slippery ramp
a. For the daughter to win had to prove two things
i. Funeral home had Notice of ramp was wet and slick
ii. Ramp was slick
b. She called husband to the stand: “I received phonecalls that the ramp was slick” His state of mind is relevant to the case because he is president of the company and if someone told him the ramp was slick, he has notice he has to do something about it, sufficient to establish he had notice.
c. However, it only can be offered to prove notice, not that the ramp was slick because it was only offered on the state of mind of the person who heard it, and is clearly hearsay if you’re trying to prove the ramp was wet
i. Inadmissible that the ramp was slick
ii. Admissible for notice
3. Texas case: diminished culpability if you kill wife for sleeping around
a. Billie sue smith said my wife was sleeping around: not hearsay if offered to prove the state of mind that he believes she was sleeping around
b. If it was for adultery then it could be used because you are trying to prove she was sleeping around because his state of mind is irrelevant, but not the diminished culpability
d. Statement
i. Most questions are not hearsay problems at all because they don’t assert anything. Hearsay must assert a fact.
ii. All writings are assertions, and therefore statements
iii. Oral Conversations are often verbal sta
r not
2. Statement made in deposition is admissible as to credibility and is admissible as proof that hecker did run the stop sign
iii. Prior Consistent Statement
1. Witness has to testify and subject to examination about the prior statement, prior statement has to be consistent with the in court testimony, offered to rebut a recent charge of fabrication or improper motive, and consistent statement must predate the motive to fabricate or other improper motive
a. Prior statement can be made anywhere
2. Case about sexual abusing daughter
a. Supreme court said inadmissible because statements were made after motive to fabricate arose. (after mom made absolutely clear she wanted custody of child
iv. Prior Identification of person
1. Witness on stand, he or she has identified someone differently than in court, the prior identification is admisisble as an exclusion the hearsay rule
2.
b. Admission (23 minutes)
i. Own Statement
1. Rule: Statement by a party, or attributable to a party, offered against a party
a. Johnson Case
i. An accountant for a business, prosecution puts this person on to testify that defendant was charged with failure to withhold taxes,
1. Admissible: Excluded from the definition of hearsay, offered to prove the truth of the matter asserted.
ii. Now defendant wants account to tell a bit more of the story, wants the account to say that the defendant said that the reason he did not withhold taxes is because he didn’t control the money
1. Not admissible because it is not being offered against him, it is being offered in his favor, even though it is his own statement
2. He could stand up and testify that he didn’t control the money, but he can’t testify to what he said prior to this hearing
