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Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series RULE 803

Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series Rule 803


We are finally to the point in our series where we discuss the hearsay rules and exceptions. There are exclusions to the rule against hearsay for example the most common admission by a party opponent. But today we will be discussing Rule 803 the exceptions where it doesn't matter if the witness is testifying or not. (804 is a list of exceptions that only apply when the witness isn't there to testify, or is there and can't remember a damn thing making them "unavailable.")


THERE ARE 24 SEPARATE EXCEPTIONS IN RULE 803 ALONE! Don't you just love lawyers. The inside joke here among lawyers is that hearsay is inadmissible. But if someone said something and you can't figure out how to get it into evidence using one of the exceptions to the hearsay rule . . . then you might want to look at other professions. There is almost always an argument that a statement made out of court can be offered under one of the exceptions to the rule against hearsay.


This is going to be a multi tier blog post over Rule 802 so today we are just going to cover the first three exceptions.

  1. Present Sense Impression

  2. Excited Utterance

  3. Then Existing Mental, Emotional, or Physical Condition.

PRESENT SENSE IMPRESSION:

A Present sense impression is a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. You can think of it like the livestreaming exception to the rule against hearsay. If you are giving an account of what you are witnessing happen RIGHT NOW (or shortly thereafter) then it can come into evidence. You see this most typically with 911 calls from bystanders calmly explaining, "Oh the red car just went through the red light and hit the green car, nobody's hurt." In Barber v. State, 989 S.W.2d 822, 837 (Tex. App. -- Fort Worth 1999, pet. ref'd) the court ruled that a murder victim's statement to her neighbor that the defendant was in her apartment was a present sense impression even though it took some time (approximately 1 minute) for her to walk over to the neighbor's house to make the statement. Remember in a criminal context to check to see if the statement is testimonial and therefore excludable under Crawford v. Washington's 6th amendment protections. In the Barber case a statement made during an ongoing emergency to non law enforcement personnel would likely not be a violation of the confrontation clause.


For example I think you could run into a house and say, "My husband just got sucked up by a tornado!" And if your neighbor could corroborate that they looked outside and saw a tornado then they wouldn't have to see the husband as well and your statement that he was sucked up by the tornado would be admissible under the present sense impression exception.

Contrast this with a 10 minute lapse between a drug deal and a statement about what happened during the drug deal to police and you can see why the court rejected the present sense impression argument in Green v. State, 876 S.W. 2d 226, 228 (Tex. App. -- Beaumont 1994, no pet.).


Now a lot of 911 calls are more like, "OH SHIT! That guy in the graphic tee just punched that guy with the glasses in the face and I think I saw a tooth fall out! He's bleeding!" That would be both a present sense impression and an Excited utterance. The OH SHIT gives it away as an excited utterance because that tends to show that the person is still feeling the excited emotional state caused by the act which they are describing.


So there can be a delay, but it has to be very short. For example I think you could run into a house and say, "My husband just got sucked up by a tornado!" And if your neighbor could corroborate that they looked outside and saw a tornado then they wouldn't have to see the husband as well and your statement that he was sucked up by the tornado would be admissible under the present sense impression exception. Again this would probably overlap with excited utterance . . . depending on how much you cared about your husband I suppose.


In Fischer v. State, 252 S.W. 3d 375 (Tex. Crim. App. 2008) the Court of Criminal Appeals held that you may not offer a Police Officer's present sense impression of his investigation when an officer was dictating into his body microphone all the mistakes a defendant was making in a DWI case. The reasoning was that the officer was in the process of collecting evidence and was not giving a reflexive description but rather a reflective opinion on what he was observing. This removed the reliability rationale of the rule's exception.


EXCITED UTTERANCE:


Excited utterance is the best hearsay exception in the rules of evidence. There I said it. It is true. More cuss words are uttered in court because of this rule than any other. And the funniest statements you'll ever hear in court are sourced almost entirely from the excited utterance exception. If it ends with an exclamation point then it might be an excited utterance. If it was screamed, shouted, sobbed through tears, or caterwauled . . . you might be a redneck, I mean, it might be an excited utterance.


Examples:


"Oh my god he's got a gun!"

"HELP me Myrtle finally had enough and shot me."

"Look at that explosion caused by the negligent county official directing traffic! The smoke plume is still rising!"


The first one would count as a present sense impression because its still happening right now. But what about Myrtle? How long ago could she have shot her husband Edgar and Edgar's statement still be admissible as an excited utterance? Well it could be up to a few days even. As long as Edgar is still suffering from the excitement caused by the event it could be that he is having to relive that trauma and it could still be an excited utterance.


If it was screamed, shouted, sobbed through tears, or caterwauled . . . you might be a redneck, I mean, it might be an excited utterance.

An excited utterance is technically "a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused."


So what doesn't count? "Oh my god I've been bitten by a shark! I want you to have all my stock options in the divorce!" You see? You can offer the part about the shark, because the shark is what caused the excited state. You can't offer the part about the stock options because that is not related to the startling event or condition. So please don't encourage shark cage diving right before a divorce.


The events could be three months old and it could still be an excited utterance. That was the case when "some three months after the event, K.S. . . . became upset after hearing a news story regarding an abused child. The news story related details about a ten-year-old girl who had been stabbed by the man who had raped her. . . . At that point, K.S. fell to the floor and began sobbing. Eventually, K.S. related that appellant had 'messed with' her." Hunt v. State, 904 S.W.2d 813, 815 (Tex. App. 1995)


One nerdy point to make here is that an excited utterance is the proper legal term. It is not "Res Gestae." Can we please stop using this phrase. Look how bad a federal court would make you look as it discussed the term "Res Gestae." "[A]s for 'res gestae,' it is a phrase which has been accountable for so much confusion that it had best be denied any place whatever in legal terminology; if it means anything but an unwillingness to think at all, what it covers cannot be put in less intelligible terms. United States v. Matot, 146 F.2d 197, 198 (2d Cir. 1944). It is meaningless and it certainly doesn't suffice to admit evidence over a proper hearsay objection.


THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION


There are some examples written right into the rule itself for Then-existing mental, emotional, or physical condition.


1. motive,

2. intent

3. plan,

4. mental feeling,

5. pain, or

6. bodily health.


If you ask a witness, what did they say about their mental feeling, I think you're going to draw an objection to hearsay. But if you're asking about a relevant time period for the legal action and you're getting the answer of their mental feeling that then existed, I think you're in the clear.


The statement may be made to a mother on a playground for example. "My knee hurts." This would be a statement of then existing physical condition. What if the kid said, "Yesterday my knee hurt?" Well then no that would be a statement about a past condition not a then-existing condition. What about, "I'm sad because my knee hurt yesterday." Well is he sad right now? Then yes admissible. Not to prove his knee was hurt yesterday but to prove that he is sad today. Get it?


In a criminal context you could offer a defendant's letter to someone else saying that they were scared of the victim prior to a murder. Shurgart v. State, S.W.3d 355 (Tex. App. -- Waco 2000, pet. ref'd).


Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

(4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

(5) Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge, unless the circumstances of the record’s preparation cast doubt on its trustworthiness. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by—or from information transmitted by—someone with knowledge; (B) the record was kept in the course of a regularly conducted business activity; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by an affidavit or unsworn declaration that complies with Rule 902(10); and (E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. “Business” as used in this paragraph includes every kind of regular organized activity whether conducted for profit or not.

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) the opponent fails to show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

(8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness.

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

(10) Absence of a Public Record. Testimony—or a certification under Rule 902—that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that: (A) the record or statement does not exist; or (B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate: (A) made by a person who is authorized by a religious organization or by law to perform the act certified; (B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and (C) purporting to have been issued at the time of the act or within a reasonable time after it.

(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if: (A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it; (B) the record is kept in a public office; and (C) a statute authorizes recording documents of that kind in that office.

(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose—unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.

(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.

(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if: (A) the statement is called to the attention of an expert witness on cross examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit.

(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage—or among a person’s associates or in the community—concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

(20) Reputation Concerning Boundaries or General History. A reputation in a community—arising before the controversy—concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.

(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if: (A) it is offered in a civil case and: (i) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea; (ii) the conviction was for a felony; (iii) the evidence is admitted to prove any fact essential to the judgment; and (iv) an appeal of the conviction is not pending; or (B) it is offered in a criminal case and: (i) the judgment was entered after a trial or a guilty or nolo contendere plea; (ii) the conviction was for a criminal offense; (iii) the evidence is admitted to prove any fact essential to the judgment; (iv) when offered by the prosecutor for a purpose other than impeachment, the judgment was against the defendant; and (v) an appeal of the conviction is not pending.

(23) Judgments Involving Personal, Family, or General History or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter: (A) was essential to the judgment; and (B) could be proved by evidence of reputation.

(24) Statement Against Interest. A statement that: (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability or to make the declarant an object of hatred, ridicule, or disgrace; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.


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