Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series - RULE 802
Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.
Rule 801 if you remember is the definition of hearsay and what things seem like they would be hearsay but are purposefully excluded from the definition. Rule 802 is the actual rule which proscribes that hearsay as defined under 801 is not admissible. The rule is however, defined by its exceptions. NOT to be confused with exclusions. Please if you are arguing a hearsay objection in court do not confuse an exclusion from the definition of hearsay under Rule 801 with an exception listed in 803 and 804.
Rule 802. The Rule Against Hearsay Hearsay is not admissible unless any of the following provides otherwise: a statute; these rules; or other rules prescribed under statutory authority. Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.
Notice the last sentence, that inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay. That means that all the rules that we discuss related to exclusions, exceptions, rationale, reliability, all go out the window if the opposing counsel waives the objection. This might be waived because of timeliness of the objection! So if you want to get hearsay evidence in front of the jury and actually argue that it is substantive evidence then give it a shot and see if opposing counsel objects.
This sentence is here because there used to be a Texas evidence rule which stated that inadmissible hearsay that was admitted because of opposing counsel's failure to object was considered to have no probative value and could not be used to support a verdict. Aetna Ins. Co. v. Klein, 325 S.W.2d 376, 381 (1959).
Attorney's used to wait until the case was on appeal to then object that there was no substantive evidence in the record to support a verdict because although it had been adduced at trial it was hearsay and should be denied probative value. I once heard an older lawyer complain that being a lawyer or knowing the law used to matter but that we had legislated away a lawyers value. I don't know if I believe that but its measures like this which remove trickery that I think he was referring to. I for one am glad any time I see the law bending more towards fairness and clarity. Life is complicated enough without lawyers making it worse. /endsoapbox.
In a criminal law context hearsay has to be viewed through another lens called confrontation. The 6th Amendment to the United States Constitution provides that criminal defendants have a right to confront the witnesses against them through cross examination. This gives the criminal defense attorney an additional arrow in their legal quiver which we will discuss in our next post so stay tuned!
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