Article 8 - Hearsay

801 - Definitions That Apply to This Article; Exclusions From Hearsay (Texas)

(a) statement - oral or written verbal expression; nonverbal conduct if intended as substitute for verbal expression

(b) declarant - a person making a statement

(c) matter asserted - matter explicitly asserted or implied by “statement” if its probative value “flows from declarant’s belief”

(d) hearsay - out of court statement offered to prove the truth of the “matter asserted”

(e) statements which are not hearsay:

— (1) prior statements by witness, except statements made under oath during grand jury proceedings and depositions in criminal cases. Also includes statements made in accordance with Tex. Code Crim. 38.071

— (2) statements by by party opponents

— (3) depositions taken in same proceedings in civil cases; unavailability of deponent not requirement for admissibilty

801 - Definitions That Apply to This Article; Exclusions From Hearsay (Federal)

(a) statement - oral or written assertion; nonverbal conduct intended as an assertion (omits “verbal” in both clauses)

(b) same

(c) same as texas rule 801(d) except “matter asserted” does not extend to matters flowing form belief of declarant

(d) same as texas rule 801(c)

(e) federal rule 801(d)(1) and (2) are same as texas rule 801(e)(1) and (2); no provision regarding depositions

• provision recognizes that “if a party’s claim, defense, or potential liability is directly derived from a declarant or the declarant’s principal, a statement that would be admissible against the declarant or the principal under this rule is also admissible against the party”

803 - Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant is Available

the following are not excluded by the hearsay rule, even though declarant is available as witness:

(1) present sense impression

(2) excited utterance

(3) then existing mental, emotional, or physical condition

(4) statements for purposes of medical diagnosis or treatment

(5) recorded recollection

(6) records of regularly conducted activity; including affidavit which complies with 902(10)

(7) absence of entry in records kept in accordance with the provisions of paragraph (6)

(8) public records exception, excluding police reports in criminal cases;

(9) records of vital statistics;

(10) absence of public record or entry;

(11) records of religious organizations;

(12) marriage, baptismal, and similar certificates;

(13) family records;

(14) records of documents affecting an interest in property;

(15) statements in documents affecting an interest in property

(16) statements in ancient documents

(17) market reports, commercial publications

(18) learned treatises

(19) reputation concerning personal or family history

(20) reputation concerning boundaries or general history

(21) reputation as to character

(22) judgment of previous conviction; different rule for criminal cases

(23) judgement as to personal, family, or general history, or boundaries

(24) statement against interest. also requires corroboration of statements tending to expose the declarant to criminal liability

804 - Hearsay Exceptions to the Rule Against Hearsay - When Declarant is Unavailable as a Witness (Texas)

(a) unavailable declarant is one who (1) is exempted by privilege (2) refuses to testify (3) has lack of memory (4) is dead or ill (5) is absent from hearing, unless due to actions of proponent

(b) hearsay exceptions

— (1) former testimony. includes deposition testimony in civil cases, in criminal cases, deposition testimony controlled by Tex. Code Crim Pro ch 39

— (2) dying declarations

— (3) statement of personal or family history

804 - Hearsay Exceptions to the Rule Against Hearsay - When Declarant is Unavailable as a Witness (Federal)

(a) same

(b)(1) same, except requites prior opportunity and similar motive to examine testimony on part of opposing party in criminal cases

(b)(2) same, except limited to civil actions and homicide prosecutions

(b)(3) not analogous to Texas Rule; statement against interest - similar to Tex Rule 803(24), except excludes social interest (object of hatred, ridicule, or disgrace); in criminal cases requires corroborating evidence for inculpatory statement by declarant re criminal liability

(b)(4) same as texas rule 804(b)(3)

(b)(5) catch all exception deleted and moved to new federal rule 807, the residual hearsay exception

(b)(6) exception that provides for “forfeiture by wrongdoing.” no texas counterpart

805 - Hearsay Within Hearsay

if hearsay upon hearsay, admissible if each part is independently admissible under exception or exclusion

(*same)

806 - Attacking and Supporting the Declarant’s Credibility

hearsay declarant’s credibility may be attacked; no requirement for declarant opportunity to deny or explain; if declarant called as a witness, subject to cross-examination

(*same)

807 - Residual Hearsay Exception

there is not texas counterpart

(*rule provides hearsay exception in cases where (1) statement is supported by sufficient guarantees of trustworthiness, after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and (2) statement is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts)

Proponent must give notice to adverse party