CHAP. 3 : INTRODUCTION TO THE HEARSAY RULE

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CHAP. 3 INTRODUCTION TO THE HEARSAY RULE

• P. JANICKE
• 2006

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IN GENERAL

• WITNESSES ARE NOT ALLOWED TO TESTIFY TO
  OUT-OF-COURT UTTERANCES
• OF THEMSELVES
• OF OTHERS
• DOCUMENTS CONTAIN STATEMENTS AND ARENT ALLOWED
  IN EVIDENCE
• THEY ARE WRITTEN OUT OF COURT

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EXAMPLES

• WITNESS CANT SAY WHAT HE TOLD THE POLICE
• LETTERS ARE INADMISSIBLE
• POLICE REPORTS ARE INADMISSIBLE

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RATIONALE

• WE WANT WITNESSES TO TELL US FIRST-HAND ON THE
  STAND WHAT THEY SAW
• CROSS-EXAMINATION IS AN ADVERSARYS RIGHT
• E.G. THE CHEMIST FROM THE POLICE LAB TESTIFIES
  TO THE BLOOD TYPE

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THE MAIN EXCEPTION TO WHAT IS HEARSAY STATEMENTS
OF OPPOSING PARTY

• A PARTY TO A CASE CAN ASK A WITNESS WHAT THE
  OTHER PARTY SAID (IF THE WITNESS WAS THERE)
• WITNESS CAN BE THE OTHER PARTY
• WITNESS CAN BE A BYSTANDER

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• THE OPPOSING PARTYS WRITINGS ARE SIMILARLY O.K.
• LETTERS
• MEMOS
• RECORDS

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THESE ARE CALLED ADMISSIONS

• ANY STATEMENT BY OPPOSING PARTY WILL QUALIFY WHEN
  OFFERED BY HER ADVERSARY PARTY
• NO ANALYSIS FOR WHETHER ITS FOR OR AGAINST THE
  SPEAKERS INTEREST

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OPPOSING PARTY MEANS THE ONE THE OFFERING LAWYER
IS AGAINST

• IN CASE OF JONES vs. SMITH, JONESS LAWYER CAN
  INTRODUCE SMITHS STATEMENTS, AND SMITHS LAWYER
  CAN OFFER JONESS STATEMENTS
• NEITHER SIDE CAN INTRODUCE ITS OWN OUT-OF-COURT
  STATEMENTS

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TRIAL IN JONES v. SMITH
HIGH UP

• BENCH (JUDGE)

JONES
JURY
CLERK AND REPORTER
PODIUM
COUNSEL FOR JONES
COUNSEL FOR SMITH
RAILING
SPECTATORS ( FOR SMITH)
SPECTATORS (FOR JONES)
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TRIAL IN JONES v. SMITH
HIGH UP

• BENCH (JUDGE)

BYSTANDER
JURY
CLERK AND REPORTER
PODIUM
COUNSEL FOR JONES
COUNSEL FOR SMITH
RAILING
SPECTATORS ( FOR SMITH)
SPECTATORS (FOR JONES)
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TRIAL IN JONES v. SMITH
HIGH UP

• BENCH (JUDGE)

SMITH
JURY
CLERK AND REPORTER
PODIUM
COUNSEL FOR JONES
COUNSEL FOR SMITH
RAILING
SPECTATORS ( FOR SMITH)
SPECTATORS (FOR JONES)
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• WHO THE TESTIFYING WITNESS IS HAS NOTHING TO DO
  WITH IT!
• JONES LAWYER CAN ASK JONES WHAT SMITH SAID
• JONES LAWYER CAN ASK SMITH WHAT SMITH SAID
• JONES LAWYER CAN ASK A BYSTANDER WHAT SMITH SAID
• JONES IS SAID TO BE OFFERING THE STATEMENT (VIA
  A WITNESS)

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N.B.!!!

• A PARTY CAN ALWAYS TESTIFY TO WHAT HAPPENED
• BUT NOT WHAT HE
• WROTE DOWN
• REPORTED BY PHONE
• TOLD OTHERS ORALLY

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• A NON-PARTY WITNESS CAN LIKEWISE SAY ON THE STAND
  WHAT HAPPENED
• BUT NOT WHAT SHE
• WROTE DOWN
• REPORTED BY PHONE
• TOLD OTHERS ORALLY

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GENERALLY, CAN A WITNESS TELL US WHAT PLAINTIFF
SAID?

• YES, IF ASKED BY DEFENDANTS COUNSEL (THE
  ADVERSE PARTY)
• NO, IF ASKED BY PLAINTIFFS COUNSEL

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ADMISSIONS IN THE CORPORATE CONTEXT

• IF A PARTY IS A CORPORATION
• STATEMENTS OF ITS OFFICERS ARE ADMISSIBLE (BY
  ADVERSARY)
• STATEMENTS OF ITS EMPLOYEES ARE ADMISSIBLE (BY
  ADVERSARY)
• STATEMENTS OF ITS LAWYERS OR REPRESENTATIVES ARE
  ADMISSIBLE (BY ADVERSARY)
• ITS GENERATED DOCUMENTS ARE ADMISSIBLE (BY
  ADVERSARY)

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EXAMPLES OF ADMISSIONS

• DEFENDANT INTRODUCES POLICE LAB REPORT
• DEFENDANT INTRODUCES POLICE CRIME-SCENE REPORT
• PROSECUTOR ASKS ANY WITNESS WHAT D. SAID
• PLAINTIFF INTRODUCES LETTER FROM DEFENDANTS
  EMPLOYEE

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MORE EXAMPLES

• PROS. CAN ASK A BYSTANDER WHAT D. SAID
• PROS. CAN ASK A POLICEMAN WHAT D. SAID (IF HE
  HEARD IT)
• IF D. TESTIFIES AT TRIAL, PROS. CAN ASK D. WHAT
  D. SAID

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• A VICTIM IS NOT A PARTY IN A CRIMINAL CASE
• HENCE, VICTIMS OUT-OF-COURT STATEMENTS ARE
  USUALLY NOT ALLOWED TO BE INTRODUCED AT TRIAL
• VICTIM CAN OF COURSE TESTIFY TO WHAT HAPPENED

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• CIVIL CASE PARTIES ARE
• PLAINTIFF
• DEFENDANT
• A VICTIM COULD BECOME A CIVIL PLAINTIFF, HENCE A
  PARTY
• IN THAT CASE, THE DEFENDANT COULD OFFER THE
  VICTIM/PLAINTIFFS OUT-OF-COURT STATEMENTS

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• SOME OUT-OF-COURT UTTERANCES ARENT STATEMENTS
• WORDS THAT ARE THEMSELVES AN ELEMENT OF THE CASE
  ARE NOT REGARDED AS STATEMENTS EXAMPLES gt gt

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• OFFER AND ACCEPTANCE (in contract case)
• WARRANTY OF GOOD CONDITION (in warranty case)
• DEFAMATORY UTTERANCE (in defamation case)
• CHECK DRAWN ON A BANK (payment defense)
• THE LEASE (in eviction case)
• PERMISSION TO DRIVE MY CAR (theft defense)

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• SINCE THESE ARENT STATEMENTS, THEY ARENT
  HEARSAY
• THEY CAN BE ADMITTED IN EVIDENCE BY EITHER SIDE,
  THROUGH TESTIMONY TO WHAT WAS SAID, OR, IF IN
  WRITING, INTRODUCING THE DOCUMENT

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• MUCH MORE ON THE RULE EXCLUDING HEARSAY
  STATEMENTS, LATER IN THE COURSE !!