Hearsay Exception #4 – Statements Made for the Purpose of Medical Diagnosis or Treatment

June 11, 2014

The fourth hearsay exception found in Texas Rules of Evidence 803 pertains statements made for the purpose of receiving a medical diagnosis or treatment. In order to fall within this exception, the statement must describe:

  • the declarant’s medical history,
  • past or present symptoms, pain, sensations, or
  • the inception or general character of the cause or external source of such symptoms, pain or sensations,

and,

  • as the name of the exception suggests, the statement must be reasonably pertinent to diagnosis or treatment.

As with all hearsay exceptions, the rationale behind this particular exception is deeply embedded in the presumption of trustworthiness that such statements carry. In most cases, the desire for an accurate medical diagnosis and effective treatment, coupled with the understanding that such diagnosis or treatment will depend in part upon what the patient says, is thought to override any motive to lie. A fact reliable enough to serve as the basis for a diagnosis should also be reliable enough to escape hearsay proscription.

When considering the admissibility of such statements, a two-part test is applied:

  1. Whether the declarant’s motive is consistent with the purpose of the rule, and
  2. Whether it was reasonable for the statement to be relied upon for the purpose of diagnosis or treatment.

There are two nuances in the rule that are also worthy of note – statements made during ongoing treatment and statements made to non-medical personnel.

Ongoing Treatment:

The second prong of the test becomes the critical factor in analyzing statements made during ongoing or long-term treatment. Once diagnosis has been made and treatment has begun, the rationale behind this exception may disappear. Because the reports and comments made by a patient during an extended course of treatment may be rooted in different motivations, e.g., denial, deception or secondary gain, or may be influenced by the treatment process itself, these statements may not carry with them the presumption of veracity which forms the basis for this exception. In order for the hearsay exception to apply in this context, the proponent must demonstrate two things:

  1. The truth-telling was a vital component of the particular course of therapy or treatment involved; and
  2. That it is readily apparent that the declarant was aware that this was the case.

Otherwise, in the circumstance of ongoing treatment, the justification for admitting the out-of-court statement over a valid hearsay objection has been held to be simply too tenuous.

Statements Made to Non-Medical Personnel:

One aspect of the rule which is not self-evident is the broad scope of witnesses to which this hearsay exception may be applied. The language of the rule itself does not require that the statement be made to a medical provider, but rather for the purpose of medical diagnosis or treatment. Therefore, under the plain language of the rule, the witness need not be a physician or have any medical training whatsoever. Over the years, the exception has been applied to statements made to psychologists, therapists, licensed professional counselors, social workers, hospital attendants and ambulance drivers. But, under certain circumstances, the exception may extend to friends and family members – or even strangers – if other requisites are present.

The essential qualification expressed in the rule is the declarant’s belief that the statement made will ultimately be utilized in diagnosis or treatment of a condition from which the declarant suffers. The selfish motive for truthfulness under circumstances where deception would likely result in misdiagnosis or error in treatment is sufficient to render such a statement likely trustworthy. That the witness may be a medical professional, or somehow associated with the medical profession, is no more than a circumstance tending to demonstrate that the declarant’s purpose was in fact to obtain medical help for himself. A declarant’s statement made to a non-medical professional under circumstances that show he expects or hopes it will be relayed to a medical professional as pertinent to diagnosis or treatment would be admissible under the rule, even though the witness who actually heard the statement is not a medical professional himself.

- Bonnie Sudderth, Judge of the 352nd District Court, Tarrant County, Texas

 

 


Hearsay Exception #3 – Then-Existing Mental, Emotional or Physical Condition

February 2, 2014

The third hearsay exception – TRE’s 803(3) then existing mental, emotional or physical condition – is also similar to the first hearsay exception, the present sense impression.  As its name implies, this exception applies to statements about a declarant’s state of mind at the time the statement is made.  Included within this exception are statements about thoughts, emotions, sensations and physical condition.

Texas courts have held that the type of statement contemplated by this rule would include a statement which, on its face, expresses or exemplifies the declarant’s state of mind, e.g., fear, hate, love, pain. What isn’t included in the exception are statements of memory or belief.*  As with the excited utterance, this exception includes an element of contemporaneity. Once the subject matter sensation has passed, a declarant’s statement about it no longer falls within this exception.

Likewise, while a statement regarding the existence of a mental, emotional or physical condition falls within this exception, its cause does not. One federal court has explained this distinction this way:

A (declarant may say) “I am scared,” but not “I am scared because the defendant threatened me.” The first statement indicates an actual state of mind or condition, while the second statement expresses belief about why the declarant is frightened. The phrase “because the defendant threatened me” is expressly outside the state-of-mind exception because the explanation for the fear expresses a belief different from the state of mind of being afraid.

That being said, don’t let the inquiry stop there.  In the above example a creative lawyer still might manage to get both statements into evidence by looking to other hearsay exceptions.  Depending upon the circumstances under which the statement “the defendant threatened me” was made, the latter statement, while not falling within the state of mind exception, might constitute an excited utterance discussed in the last post.

Most understand the notion of objecting to evidence on the grounds of “double hearsay” (hearsay-within-hearsay); don’t forget the possibility of offering evidence under a “double hearsay exception” as well.

– Bonnie Sudderth, Judge of the 352nd District Court, Tarrant County, Texas

*(unless the statement is related to the execution, revocation, identification or terms of a declarant’s will)


Hearsay Exception #2 – The Excited Utterance Exception

September 8, 2013

Hearsay exception number two – the excited utterance exception – is often confused with previously-discussed hearsay exception number one, the present sense impression.  And while they are similar, and even on occasion, simultaneously applicable, the excited-utterance exception is significantly broader in scope.  One way to differentiate between these first two hearsay exceptions is to identify the rationale underlying each of them.  As discussed in the prior post, the rationale for the present sense impression exception stems from the statement’s contemporaneity.  The rationale for the excited utterance exception, on the other hand, is rooted in its spontaneity.

Texas Rules of Evidence 803(2) defines the excited utterance as a statement relating to a startling event or condition made while the declarant was under stress or excitement caused by the event or condition. So, unlike the present sense impression statement which must have been made at or near the time the declarant was perceiving the event or condition, the excited utterance may occur at any time – hours or even days later.  The test in determining whether a statement is an excited utterance is not when the statement was made, but whether the declarant was still dominated by the emotions, excitement, fear or pain of the event when the words were uttered. Of course, the amount of time which has elapsed between the occurrence of the startling event and the utterance is a factor considered in determining the admissibility of the hearsay statement, but it is not the only consideration.

Another key difference between the present sense impression and the excited utterance is the type of testimony which can be elicited using these exceptions.  The subject matter restriction of the excited utterance exception is considerably more liberal than that of the present sense impression.  Statements of present sense impression are limited to statements “describing or explaining an event or condition,” whereas, excited utterances need only “relat(e) to a startling event or condition.”

For the excited utterance exception to apply, three conditions must be met:

  1. the statement must be a product of a startling occurrence that produces nervous excitement in the declarant and renders the utterance spontaneous and unreflecting,
  2. the state of excitement must still so dominate the declarant’s mind that there is no time or opportunity to contrive or misrepresent, and
  3. the statement must relate to the circumstances of the occurrence preceding it.

These first two exceptions – the present sense impression and the excited utterance – often occur at the same time, and when they do the hearsay statement will fall within both exceptions.  However, it is important to recognize the differences between them.  Especially when too much time has passed between the occurrence and the statement, or when the statement delves into matters beyond mere description or explanation of the event, the proponent should move to hearsay exception number two, the excited utterance exception, to find a basis for admissibility.

– Bonnie Sudderth, Judge of the 352nd District Court, Tarrant County, Texas


Hearsay Exception #1 – The Present Sense Impression

June 30, 2013

The first exception to the hearsay rule, Rule 803(1) of the Texas Rules of Evidence, is the present sense impression – a statement describing or explaining an event made while the declarant was perceiving the event or immediately thereafter.  A simple rule requiring little explanation or discussion, this exception is based upon the premise that the contemporaneity of an event and the declaration that follows ensures reliability of the statement.  The reliability rationale which underlies the present sense impression exception is that:

  1. the statement is safe from any defective memory errors because of its contemporaneous nature;
  2. there is little or no time for a calculated misstatement; and
  3. the statement will usually be made to another (the witness who reports it) who would have an equal opportunity to observe and therefore check a misstatement.

One court has characterized the rule as “predicated on the notion that the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes:”

It is instinctive, rather than deliberate.  If the declarant has had time to reflect upon the event and the conditions he observed, this lack of contemporaneity diminishes the reliability of the statements and renders them inadmissible under the rule.  Once reflective narratives, calculated statements, deliberate opinions, conclusions, or conscious thinking-it-through statements enter the picture, the present sense impression exception no longer allows their admission.  Thinking about it destroys the unreflective nature required of a present sense impression (Fisher v. State, 252 S.W.3d 375, Tex. Crim. App. 2008).

Understanding the rationale for the rule will help the practitioner understand whether a particular statement falls under this exception. While the declarant need not be in an excited or agitated state, as with the exited utterance exception (which will be discussed in the next post), the declarant’s statement should evince a stream-of-consciousness or unguarded quality that would not be present in a declarant’s later statement regarding the very same observation or event.

The present sense impression is to hearsay statements what the play-by-play announcer is to broadcast sports.  When Frank Gifford said, “Thiesmann’s in a lot of trouble,” no one had yet seen the replay which later became NFL’s Most Shocking Moment in History.  Yet Gifford’s present sense impression was dead-on accurate, reliable and worthy of repeating, even in a court of law.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas.


Statements Which Are Not Hearsay

May 5, 2013

While it is generally true that if an animal looks like a duck and quacks like a duck, it’s a duck, when it comes to hearsay statements, this isn’t necessarily so.  A statement can look like hearsay, sound like hearsay and still not be hearsay at all.  Several general types of statements fall squarely within the definition of hearsay provided in Texas Rules of Evidence 801, but simply aren’t.  Why not?  Because subsection (e) of TRE 801 says so.

As mentioned in the prior post, these five categories of non-hearsay which have been carved out and enumerated in TRE 801(e) are:  (1) prior inconsistent statements, (2) prior consistent statements offered to rebut a charge of recent fabrication, improper influence or motive, (3) prior statements of identification of a person made after perceiving the person, (4) admissions by a party opponent, and (5) depositions taken in the same proceeding.  These statements described in TRE 801(e) are not hearsay exceptions, but rather statements which are not considered hearsay to begin with.  When responding to a hearsay objection lodged against these types of statements, the proper response is not that the statement falls within an exception to hearsay.  The appropriate response is that these statements are not, by rule, hearsay at all.

Impeachment by Prior Inconsistent Statements:

Any witness may be impeached by showing that on a prior occasion he made a material statement inconsistent with his trial testimony.  Such a statement can be taken from many sources – from formal, sworn statements made in prior testimony, affidavits or discovery responses, to casual remarks made by a witness to a bartender at the local pub.  With regard to the latter, because it is unsworn, this statement can only be used to attack the credibility of the witness, and may not be received as evidence to prove the truth of the matter asserted by the witness on the prior occasion.  (In such situations, the attorney resisting the admission of the prior statement should request that the court give a limiting instruction to the jury that the statement can be considered for impeachment purposes only.)

However, if the prior inconsistent statement meets the requisites of sworn testimony under TRE 801(e)(1)(A-D), then it is admissible as non-hearsay both to impeach credibility and to prove the truth of the matter asserted.  In order to rise to the level of substantive, probative evidence, the witness’s prior statement must be: (1) inconsistent with the witness’s current testimony during a trial or hearing, and (2) given under oath, subject to the penalty of perjury, at a trial, hearing, deposition or other proceeding (see TRE 613(c)).  In addition, the witness must testify at trial or hearing and be subject to cross-examination concerning the prior inconsistent statement.  Assuming these conditions have been met, the actual substance of a witness’s prior inconsistent statement is admissible as non-hearsay to prove the truth of the matter previously asserted.

Prior Consistent Statement to Rebut:

Bolstering a witness by attempting to elicit prior consistent statements is generally not permitted.  However, while a witness’s prior consistent statements would normally be inadmissible hearsay, TRE 801(e)(1)(B) categorizes certain prior consistent statements as non-hearsay.  Under this rule, the admissibility of prior consistent statements is restricted to use in rebutting an express or implied charge of either recent fabrication or improper influence or motive.  Absent such an allegation, either express or implied, a prior consistent statement remains inadmissible under TRE 613(c).

If admissible, then the prior consistent statement may be used to both rebut the charge levied and to prove the truth of the matter asserted in the prior staement.  However, the statement must have been made before the charged recent fabrication, improper influence or motive arose in order to fall within the ambit of TRE 801(3)(1)(B).

Statement of Identification:

A prior statement of identification of a person made after perceiving the person is also defined as non-hearsay.  While this rule is obviously used mostly in criminal cases, the rule is applicable in civil cases as well, so it’s a good rule to remember, especially for situations where a tortfeasor’s identity is at issue.

(Applicable only to criminal cases, a statement made by a child under the age of 13 is also defined in TRE 801(e) as non-hearsay, if the statement comples with Texas Code of Criminal Procedure 38.071.)

Admissions by Party-Opponent:

Admissions by party-opponent are included in TRE 801(e) as statments which are considered non-hearsay.  This type of admission is defined as a statement which is offered against a party and is (A) the party’ own statement in either an individual or representatiave capacity; (B) a statement of which the party has manifested an adoption or belief in its truth; (C) a statement by a person authorized by the aprty to make a statement concerning the subject; (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.  The rule is broad in application and basically boils down to this – any relevant statement of fact made by a party (or his authorized agent, acting within the scope of the existing agency) is admissible against that party.

  • Pleadings and Other Statements Made by Attorneys:  Included within this rule are not only statements appearing in discovery responses and pleadings from the present case, but also statements appearing in other proceedings as well.  Given the nature of the relationship between attorney and client, it is understandable why courts have little trouble finding that the allegations and statements made by the party’s attorney in motions and pleadings constitute authorized admissions under this rule.  The Texas Supreme Court has construed the rule to apply even to pleadings which have been superceded and not inconsistent with the party’s position at trial.  Stepping beyond written motions and pleadings, federal courts have applied the federal rule (which mirrors the Texas rule) to statements made by attorneys during advocacy in opening statements and closing arguments.  Even pleadings of a party in other causes of action which contain statements inconsistent with that same party’s present position are receivable and admissible as admissions.  Finally, one Texas appellate court has extended these general rules even further, proclaiming that even pleadings which have not been verified and “bear no file mark” may constitute admissions under this rule.
  • Statements from Interpreters:  If a party makes an interpreter his agent to communicate – whether by authorizing the interpreter to translate a statement for him concerning a specific subject, or by designating the interpreter as his agent for purposes of translating a specific statement – the fact that the original statement, as received in English, came through a translator will not turn an otherwise admissible out-of-court admission into objectionable hearsay.  To determine whether a party has adopted an interpreter as his agent, four factors are considered: (1) who supplied the interpreter; (2) whether the interpreter had any motive to mislead or distort; (3) the interpreter’s qualifications and language skills; and (4) whether actions taken subsequent to the translated statement were consistent with the statement as translated.  After taking these factors into account, if the proponent can demonstrate to the satisfaction of the trial court that the party authorized the interpreter to speak for him on a particular occasion or otherwise adopted the interpreter as his agent for purposes of translation, then the out-of-court translation may be properly admitted under TRE 801(e)(2)(C) and (D).  If the court, acting within its discretion, is not so satisfied, then the court should not admit it over a hearsay objection.
  • Admissions in the Context of Social Media:  Admissions by a party-opponent can often be found in social media postings.  If relevant to the issues in the case, statements in the form of texts, tweets, emails, wall posts and blogs are textbook, albeit new-fangled, examples of admissions by a party-opponent.  Some statements may lend themselves to particular hearsay exceptions.  For example, tweets are often present-sense impressions, “OMG” may signal that a text includes an excited utterance, and what is an emoticon if not a statement of then-existing emotional condition?  Each of these fit squarely within the traditional rules regarding hearsay exceptions.  But no hearsay exception need be urged if the witness posting the social media message is a party to the litigation.  Because admissions are not hearsay to begin with, a hearsay objection, standing alone, cannot work to keep these statements away from the jury’s ears (although these statements may be subject to objection on other grounds).

Depositions:

In a civil case, a statement is not considered hearsay simply because it is contained in a deposition.  TRE 801(e)(3) provides that as long as the deposition is one which was taken in the same proceeding, the statement may be admitted into evidence whether or not the witness is available to testify at trial.  This contrasts with federal practice, which requires a showing of witness unavailability before deposition testimony may be used in lieu of live testimony.

  • “Same Proceeding”:  Beware, the Texas Rules of Civil Procedure define the term “same proceeding” to include a proceeding in a different court that involves the same subject matter and the same parties, or their representatives, or successors in interest.  Also, under TRCP 203.6, a deposition is admissible against a party, even if that party was not joined in the lawsuit until after the deposition was taken, if (1) the deposition is admissible under the former testimony exception, or (2) if the party was given a reasonable opportunity to re-depose the witness but failed to do so.
  • Hearsay Within Non-Hearsay:  While the deponent’s testimony is considered non-hearsay, this rule extends only to testimony provided by the deponent which has been made on personal knowledge.  To the extent that a deponent offers testimony regarding statements made by others, these other statements would be subject to a hearsay objection.  This is similar to the concept of hearsay-within-hearsay (except that it is, technically speaking, hearsay-within-non-hearsay).  Hearsay-within-hearsay is a hearsay statement which is contained within another hearsay statement.  When this occurs, both layers of hearsay must independently satisfy an exception to the hearsay rule in order to be admissible into evidence.  A court would commit error if it allowed hearsay statements made by a deponent into evidence simply because the deponent repeated the hearsay statement during the course of a deposition.  Even if non-hearsay, the deposition testimony may be objectionable on other grounds.  TRCP 199.5(e) provides only three objections which can be raised during a deposition: (1) Objection – Leading, (2) Objection – Form, and (3) Objection – Nonresponsive, but don’t forget that any other objections to a deponent’s testimony – relevance, reliability, hearsay-within-hearsay – may be raised afterwards before the trial judge.
  • Non-hearsay vs. Hearsay Exception:  TRE 801(e)(3) defines a witness’s deposition testimony in the same proceeding as non-hearsay.  On the other hand, if taken in a different proceeding, a witness’s deposition testimony is hearsay.  Nevertheless, this deposition testimony may still be admitted into evidence, under the exception provided by TRE 804(b)(1), an exception which will be discussed later.  For now, however, suffice it to say that in order for deposition testimony taken in a different proceeding to be admissible, the deponent must be unavailable for trial.

In the next post, we will begin to take up the twenty-four hearsay exceptions found in TRE 803.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Let’s Talk Hearsay

November 3, 2012

HEARSAY, GENERALLY

Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.[1] The Texas Rules of Evidence define the term “matter asserted” to include any matter explicitly asserted, as well as any matter implied by a statement, if the probative value of the statement as offered flows from declarant’s belief as to the matter.[2] (Under the Federal Rules of Evidence the term “matter asserted” is not defined, thus limiting the applicability of the hearsay rule in federal courts to those matters actually asserted, not to those merely implied.)

TRE 802 boldly declares hearsay to be inadmissible unless otherwise permitted by rule or statute.[3] Never has there been a better example of the “exception swallowing the rule” than in the notion that hearsay is inadmissible. Not counting hearsay that is admissible pursuant to statutory authority, four separate hurdles in the Rules of Evidence themselves must be cleared before hearsay evidence will actually be inadmissible.  In order to constitute inadmissible hearsay, the statement must: (1) fall within the Rule 801(a-d) definition of hearsay and not within the Rule 801(e) definition of “non-hearsay”; (2) not fall within 24 enumerated exceptions which apply no matter whether the declarant is “available” or “unavailable”; (3) not fall within the three other enumerated exceptions which apply when the declarant is “unavailable”;[4] and (4) meet resistance in the form of a timely, specific objection.  The fourth hurdle is especially significant, because if no objection is lodged, hearsay evidence is both competent and probative.[5]

When it comes to hearsay, it is never too ambitious an undertaking to look for an exception for every objection. Even hearsay-within-hearsay is admissible, as long as each offered portion fits a rule or exception.[6]  The next series of posts will examine the hearsay exceptions, but before tackling the exceptions, it might be a good idea to take another quick look at what hearsay is, and what it isn’t.

STATEMENTS THAT ARE NOT HEARSAY

Wise practitioners follow the King’s advice to the White Rabbit and “begin at the beginning”[7] when considering the admissibility of evidence within the context of hearsay. Rather than skip directly to the exceptions, it is usually best to begin with the more fundamental question – is this evidence really hearsay?

The answer isn’t always as obvious as it seems. For example, an attorney need not fret over whether a lunatic’s outburst “Repent now – the end is near!” meets the excited utterance exception to the hearsay rule if the statement isn’t offered to prove that, in fact, the world is coming to an end. Not offered for the truth of the matter asserted, the apocalyptic warning simply isn’t hearsay to begin with. On the other hand, just because a witness is available and providing testimony in court doesn’t mean that his own prior out-of-court statement isn’t hearsay.  If offered to prove its truth, a prior statement may very well be barred by hearsay notwithstanding the fact that the witness is available in court and subject to thorough cross-examination regarding it.

HEARSAY BASICS

TRE 801 defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The three terms, “statement,” “declarant,” and “matter asserted” are defined in the rule.

The “declarant” is the person who made the statement. The term “matter asserted” includes any matter explicitly asserted, as well as any matter implied by the statement.  “Statement” means: (1) an oral or written verbal expression, or (2) nonverbal conduct, if it is intended as a substitute for verbal expression. Because hearsay statements encompass both verbal and non-verbal assertions, silent gestures such as pointing, nodding, or headshakes may be subject to challenge if these gestures are used as a substitute for a verbal response such as “over there,” “yes,” and “no.”  However, other non-verbal gestures, such as tears, may not be characterized as hearsay if the declarant did not intend the gesture to be an assertion.

In the hearsay context, an out-of-court “statement” will generally fall within one of six categories, as explained below:

  1. Explicit Verbal Assertion.  Example: The statement – “A section of the bridge collapsed, and I fell into the icy water as I walked across it” used to prove that the bridge collapsed and the declarant fell into the water.  HEARSAY
  2. Implicit Verbal Assertion.  Example: The statement – “Don’t walk on that bridge,” used to prove that the bridge was unsafe. HEARSAY
  3. Explicit Non-Verbal Assertion Substituting for Verbal Assertion.  Example: The gesture – a shake of the head in response to the question, “Is the bridge safe?” used to prove that the bridge was unsafe.  HEARSAY
  4. Implicit Non-Verbal Assertion Substituting for Verbal Assertion.  Example: The gesture – declarant grabs another person’s arm to impede his progress as his approaches the bridge, used to prove that the bridge ahead was unsafe. HEARSAY
  5. Verbal Expression. Example: The question – “Do you have a blanket I could use?” used to prove that the declarant was cold. HEARSAY
  6. Non-Verbal Expression.  Example: The gesture – declarant’s teeth were chattering, used to prove that declarant was cold. NOT HEARSAY

As these six examples demonstrate, “statements” can be assertions or merely expressions, explicit or implicit, verbal or non-verbal.  Only in the latter category, the non-verbal expression, does the statement fall outside the definition of hearsay. The nonverbal expression fails to meet the definition of “statement” because the declarant did not intend it to be an assertion.  (According to the rule, only if the declarant intends for his conduct to be an assertion will nonverbal conduct be considered hearsay.)

THE HEARSAY STATEMENTS THAT AREN’T

Sometimes a statement can look like hearsay and sound like hearsay – heck, it can even meet the very definition of hearsay – and still it isn’t hearsay.  To remember which statements fall within this loophole, one must think like a child.  When is hearsay not hearsay?  Either when someone uses magic words, or when your mother says so, that’s why.

Magic Words:  When the mere making of an out-of-court statement – regardless of its truthfulness – has legal significance, then it is magically transformed into a statement of “operative fact” which is not hearsay.  In this situation, even though the statement itself could provide proof of the truth of the matter asserted therein, it is offered for a more essential purpose. For example, when the words themselves constitute a necessary part of the cause of action or defense, such as when the mere making of the statement forms the basis of a fraud claim or constitutes the offer, acceptance or terms of a contract, then the statement itself is an operative fact and, therefore, not hearsay.

Because The Rule Says So, That’s Why:  Then there are those statements which fit squarely within the definition of hearsay, but nevertheless Rule 801(e) simply declares them not to be. Rule 801(e) identifies five categories of non-hearsay statements: (1) prior inconsistent statements, (2) prior consistent statements offered to rebut a charge of recent fabrication, improper influence or motive, (3) prior statements of identification of a person made after perceiving the person, (4) admissions by a party opponent, and (5) depositions taken in the same proceeding.  (Some of these non-hearsay statements have been discussed in prior posts. Follow the link provided for a more in-depth look at these.)

Keep in mind that when responding to a hearsay objection lodged against these non-hearsay statements, it may be tempting to respond that these statements are exceptions to the hearsay rule.  But, technically, that is not correct.  These statements don’t fall within a hearsay exception – they are simply not hearsay to begin with.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


[1] Tex. R. Evid. 801(d).

[2] Tex. R. Evid. 801(c).

[3] Tex. R. Evid. 802; see Tex. R. Evid. 801(e), 803, 804.

[4] See, Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.—San Antonio 1991, pet ref’d).

[5] Unobjected to hearsay statements will not be denied their probative value merely because they are hearsay. Tex. R. Evid. 802.

[6] Tex. R. Evid. 805.

[7] Lewis Carroll, Alice’s Adventures in Wonderland.


Summaries of Evidence

February 26, 2012

Perhaps the best summary ever written appears in the Hitchhiker’s Guide, a fictitious travel guide touted in Douglas Adams’ humorous five-part “trilogy,” Hitchhiker’s Guide to the Galaxy, as the most comprehensive source of information on intergalactic space travel destinations. In the Guide, planet Earth is summed up in two words: “Mostly harmless.”

Summaries are a very efficient means of communication.  They can also be an effective evidentiary tool at trial, especially when a jury, or judge for that matter, would be otherwise overwhelmed with voluminous data necessary to determine a fact issue in dispute.  In recognition of that, the Texas Supreme Court long ago wisely decided that in certain circumstances summaries should be allowed to substitute for voluminous documents at trial and established a three-part test for admission of summaries. Applying this test, a summary of records would be admissible as long as the underlying records on which the summary was based were:  (1) admissible, (2) voluminous, and (3) provided to the opposing counsel for inspection.  

The purpose of this common law rule was convenience and ease in handling of exhibits, a practical solution to the problem presented to the trier of fact who faces massive amounts of documents in evidence. 

Rule 1006 Summaries:

More than a decade later, the Texas Rules of Evidence codified the common law rule on summaries and expanded it to include recordings and photographs.  The three-prong test was also incorporated into the language of the rule.  TRE 1006 now provides: 

The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation.  The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place… 

 Under Rule 1006, a summary which meets the original three-prong test has one additional hurdle to admission.  Pursuant to the express language of the rule, a proponent must show that the summary is necessary because the voluminous underlying materials “cannot conveniently be examined in court.”  Trial courts are given broad discretion to decide what is convenient and what’s not. Provided the summary meets the requirements of Rule 1006 and does not convey a false impression of the evidence, it should be admitted into evidence.

The value of a Rule 1006 summary is in the use the jury may make of it.  When a summary is admitted into evidence, it is sent to the jury room as an exhibit, the same as would the underlying records on which it is based.  The jury may rely on the summary as evidence and base a verdict on it.  This is the essential difference between a Rule 1006 summary and the next type of summary, the pedagogical summary. 

Demonstrative (Pedagogical) Summaries:

A demonstrative summary, or as the federal courts often call it, a “pedagogical summary,” is the most common summary used at trial.  Like a Rule 1006 summary, a demonstrative summary also summarizes evidence for the jury to consider.  It may look a lot like a Rule 1006 summary, but it serves a different purpose.  While a Rule 1006 summary is used for convenience, a demonstrative summary is generally used as a tool of persuasion. 

For example, a demonstrative summary chart might be used simply to connect evidence that might otherwise seem disjointed or unrelated, as opposed to summarizing voluminous data, which is the purpose of the Rule 1006 summary. While the demonstrative summary may also have the added benefit of being convenient to the jury in considering the evidence, it is used primarily to highlight or organize certain evidence to aid in persuasion.

Trial courts generally permit the use of demonstrative aids, including summaries, during trial, especially during closing argument, because they are useful to the jury in considering the evidence.  However useful they may be, though, demonstrative summaries have no place in the jury room during deliberations.  This is the primary difference between the Rule 1006 summary and the demonstrative summary – a Rule 1006 summary is evidence in and of itself, a demonstrative summary is not.

Business Record Summaries:

There is yet a third type of summary which is frequently offered into evidence at trial.  Like a Rule 1006 summary, it may be received as actual evidence and considered by the jury during deliberations as evidence, yet it doesn’t have to satisfy the Rule 1006 requirements for admissibility.  These are summaries of voluminous business records which are normally maintained in summary format.  If a summary is the format in which business records are normally kept, then they can be admitted under the rules of evidence providing for the admission of business records, such as Rule 902(10), instead of Rule 1006.

To determine whether the summary may be admissible as an exception to hearsay, rather than a Rule 1006 summary, one should look to its purpose.  Rule 1006 summaries (and demonstrative summaries) are prepared for the purpose of litigation.  In contrast, the business summary is prepared for use by the company who keeps the record.  If they are business record summaries, then their admission is governed by TRE 803(6), the business record exception to the hearsay rule.  None of the requirements of Rule 1006 will be a predicate to admissibility.              

As a practice pointer, don’t limit the use of summaries to jury trials.  Even in a bench trial, a well-organized demonstrative summary can be a surprisingly effective persuasive technique.  Perhaps even more helpful, however, is the Rule 1006 summary, which can save a judge countless hours of sorting through records, data or other information necessary to make a decision in a case.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


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