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Hearsay, Part Three: Some 803 Exceptions

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NITA’s blog theme this September is Hearsay? Say What? Recognize It; Use the Rule at Trial

At NITA programs, we train you to the daily thrill of advocating at trial. We ask you to perform constantly, using the rules of evidence. What about the evidence rules themselves? This month, we discuss one set of evidence rules that cannot be covered in the span of our intense performance programs: the substantive rules on hearsay. Each week, we describe the rule’s bounds and (in true NITA fashion) talk about your advocacy punch for that piece of evidence.

Hearsay Part Three: Some 803 Exceptions

written by guest blogger and NITA Program Director Professor Frederick Moss 

Last time, I discussed the hearsay exemptions, the first way in which out-of-court assertions can be admitted for their truth, as tending to prove or disprove some material fact. Like exemptions, assertions admissible via the Rule 803 (and 804) exceptions meet the definition of hearsay but are admitted for their truth nevertheless. The reason for this pass is that the assertions were supposedly made under circumstances that make them more reliable than “rank” hearsay.

The exceptions are divided into two rules: Rule 803 exceptions work regardless of whether the out-of-court declarant testifies. Rule 804 exceptions apply only if the declarant is “unavailable” to testify.

The Federal Rules of Evidence (FRE) have twenty-three 803 exceptions. I can’t discuss all twenty-three, so I will cover a few of the most frequently used exceptions.

Probably the most used exception is the “Business Records” exception. Civil litigation is document heavy. Rule 803(6) allows the introduction of records of a business, institution, association, profession, occupation, or other “regularly conducted” “calling of every kind” without having to call the maker of the record. If businesses depend upon the records for the success of the businesses (not for litigation purposes), then the courts trust their reliability, at least to the extent of not banning them as hearsay. Hence, a records custodian or other person from the business who knows how records of the kind offered are made and kept, and who can answer the five or six predicate questions embedded in Rule 803(6), can get the records admitted. Recently, states and the FRE have made it even easier, dispensing with the need to call any witness by allowing the proponent to submit an affidavit by a business employee affirming the predicate questions. See FRE 902(11) and (12). The only catch is that the offering party must notify all opposing parties before trial in writing and make the affidavit and the records available for inspection.

The second catch is that statements in the report by others not associated with the business (outsiders) may be inadmissible hearsay rendering the report inadmissible. See FRE 805 (Hearsay Within Hearsay). These outsiders are not covered by the exception because they do not have a business duty to report accurately to the report writer. When this is the case, another hearsay exception or exemption must be found for the outsider’s assertion or else the report is not admissible for the truth of the outsider’s assertion.

Rule 803(8) provides the exception for documents produced by government agencies. This rule is tricky because it incorporates Confrontation Clause protections for criminal defendants. However, it allows the statements of outsiders to be admitted in civil cases when they are part of an investigation by the public agency.

The next most used exception is probably Rule 803(2), the Excited Utterance. It is an assertion about a “startling event or condition” while under the stress of excitement caused by the event or condition. Assuming we have a “startling event,” admissibility is dependent on showing that the declarant was still startled when he or she made the statement. While the time between the event and the assertion is a factor in determining whether the declarant spoke while under stress, courts have found that declarants can remain stressed for rather long periods of time.  It is all about how the declarant looked, acted, and sounded when the statement was made.

Statements by which the declarant is recounting what the declarant is seeing, hearing, feeling, smelling, or tasting at that moment—“or immediately thereafter”—are admissible as present sense impressions per 803(1). The passage of time enough for reflection before speaking defeats this exception.

Finally, there is Rule 803(3), the “Then Existing Mental, Emotional, or Physical Condition” exception. This exception assumes increased reliability inheres when the declarant is speaking about a “then existing” condition, such as an emotion, physical feeling, or intention. This exception is often misunderstood. Many think it applies when the assertion is relevant to prove the state of mind of the person who heard the assertion. Wrong. This exception applies only when offered to prove the declarant’s expressly asserted condition. If offered as circumstantial evidence that, say, the hearer possessed certain information at a particular time, the statement is not hearsay; it is not offered for its truth.

Excluded from this exception are statements of memory to prove the fact remembered. After all, unless we are describing a current feeling or intent, most of what we talk about are memories of past events. If memories were excepted from the hearsay ban, the exception would swallow the rule.

Next time, I’ll write about some Rule 804 exceptions, especially the requirement that the declarant be “unavailable”—a multi-faceted concept.

Making Lemonade Out of Lemons: Using the Ray Rice Domestic Violence Video to Teach Trial Skills

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Caldwell_Markwritten by NITA’s Program Development and Resource Director Mark Caldwell

On September 8, the nation was shocked and entranced to witness the in-elevator recording of football star Ray Rice knocking out his then fiancée. Domestic violence plagues our culture, with one in four women facing it at least once in her life. Our society’s voyeuristic nature suggests than most students will hear about, read about, or actually watch the video. The media—sports, news, and periodicals—will be filled with reports of the event. Questions over the investigation will abound.

The currency of this newly released video also focuses a learning opportunity for advocates. If you were Ray Rice’s lawyer, his wife’s counsel, or even Roger Goodell’s attorney, how would you conduct your examination of a witness in this event? Pausing to consider the risks that this blog post might border on sensationalism, I quickly recognized this: this is no better way to drive home the importance of mastering advocacy skills than by bringing it to life through a developing dramatic case. Here are some principles to guide direct examination in factually graphic cases.

  1. The power of word choice in examination. Lawyers can be squeamish in talking about sensitive subjects. We avoid talking about private body parts, giving names to events such as assaults and rape, or even drawing out discussion of events like horrid accidents, physical violence, or even heated arguments that use course language. We forget that as lawyers we are the voice of our clients and it is our responsibility to speak for them, including using words that accurately describe events and feelings. A direct examination that forces the examiner to call something child abuse instead of the “incident” is far more powerful.
  2. Avoiding “What happened next.” Examinations that plod along because the examiner shows no creativity except to ask “what happened next” are the bane of judges and juries alike. Inquiring of the victim/witness in a way that portrays the horror of an event is important. Explore thoughts and feelings in a way that brings the event alive to the fact finder.
  3. Using pacing to either slow or speed the perception of the event. How fast, or slow, an examination proceeds creates a sense of timing to the listener. By experimenting with how quickly or slowly we ask questions, get answers, and even put space between questions creates a sense of time passage to the listener. Adding questions about the thoughts and physical reactions of the witness also adds to the perception of speed—was it in the “blink of an eye” or the slow motion of instant replay?
  4. Dealing with bad facts or disarming cross-examination. Cases that go to trial often include a share of bad facts that each side must deal with. Offering an explanation, excuse, or changing the “spin” on the facts can blunt the power of cross-examination. Asking your witness the hard question—those that the fact finders wants to know and understand—is a valuable skill. Take the time to explore those bad facts. Remember primacy and recency. Ask these questions in the middle of your examination where they will be heard but not necessarily remembered.
  5. Handling a recanting witness. Far too often in domestic and child abuse cases, complaining witnesses recant their previous testimony. Handling a hostile witness on direct examination is an important skill. Make use of the video and other exhibits and demonstrative aids to illustrate the violence. Use of exhibits at trial is often forgotten, so the picture being worth a thousand words is an important lesson to remember. Familiarize yourself with the process of having a witness recognized as a hostile.
  6. Preparing a witness to testify on difficult issues. Prepare, prepare, prepare. Do not ignore or pay lip service to the process of preparing a witness to testify. Whether it is Janay Rice or Roger Goodell, the opportunity to practice responses to questions, vent and express anger, concerns, and fears, and to recognize counsel is there to help you be successful is critical.

How you present case story and specific facts and conduct yourself may be fraught with issues. Of utmost importance is sensitivity to the audience. Any perception you are making light of the subject of domestic violence or any other subject that would trigger an unforseen reaction must be avoided. Increase your awareness of how the fact finder reacts—remembering how many women have been victimized by domestic violence or rape.

Teaching in the moment through the use of current events can enliven advocacy classes. Newsworthy events bring a greater sense of reality to the classroom and offer opportunities for discussions on skills, professionalism, and ethics. Done with care and sensitivity, these opportunities make for a more engaging course. Recognized by trial lawyers, current events give us the opportunity to reflect on how we can improve ourselves.

Hearsay, Part Two: Hearsay Exemptions

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NITA’s blog theme this September is: Hearsay? Say What? Recognize It; Use the Rule at Trial

At NITA programs we train you to the daily thrill of advocating at trial. We ask you to perform constantly, using the rules of evidence. What about the evidence rules themselves?
This month, we discuss one set of evidence rules that cannot be covered in the span of our intense performance programs: the substantive rules on hearsay. Each week, we describe the rule’s bounds, and (in true NITA fashion) talk about your advocacy punch for that piece of evidence.

Hearsay, Part Two: Hearsay Exemptions

written by guest blogger and NITA Program Director Professor Frederick Moss 

Last time, I discussed “What is Hearsay?,” emphasizing that whether an out-of-court factual assertion is hearsay depends what it is offered to prove. If offered for its truth—that is, if the relevance of the assertion requires the fact-finder to assume the asserted fact is true—then it is hearsay. But if offered only to prove the assertion was made (by and/or to whom, and when) as circumstantially relevant to prove a material proposition regardless of the truth of the asserted fact, it is not hearsay.

However, that an assertion meets the definition of hearsay does not determine its admissibility. Hearsay may be admissible via an “exemption” or “exception.” In short, exemptions and exceptions allow out-of-court assertions to be offered for their truth.

What are “exemptions”? They did not exist at common law; there were only exceptions. Some exceptions are now exemptions. Why? Don’t ask; just accept. The reason you don’t need to know why there are exemptions versus exceptions is that both deliver the same result: the assertion gets in for its truth. Go figure. (If you must know, read the drafters’ comments to Federal Rule of Evidence 801(d).)

Let’s look at exemptions using FRE 801(d).  It begins, “A statement is not hearsay if—.”  It should be read to say, “A statement that meets the definition is nevertheless not barred by the hearsay ban if—.”  Abracadabra! The following hearsay is not hearsay—by fiat.

This section is divided into two sub-parts: out-of-court statements by trial witnesses and statements by opposing parties or their agents. Yes, Virginia, the fact the out-of-court declarant is sitting on the stand subject to cross-examination doesn’t exempt the witness’s prior statements from the hearsay ban. This is a common misconception. Intuitively, one would think that if declarants can be cross-examined about their pretrial statements, there is no need to exclude their statements. Wrong. The definition of hearsay nowhere defines it as “out-of-court assertions by non-witnesses.” The fact that Rule 801(d)(1) exempts only three types of witness statements proves the general ban. Other than those listed in Rule 801(d)(1), assertions by witnesses that meet the definition of hearsay are banned—unless they fall within an exception or other exemption.

The first witness statements deemed non-hearsay are prior statements inconsistent with the witness’s trial testimony. Note, if (what I call) the PIS is offered merely to impeach the witness—that is, not for its truth but only to show lack of consistency—it is not hearsay and is admissible for this limited purpose. However, not all PISs are admissible for their truth as well. Not only must the declarant/witness be subject to cross regarding the PIS, but the PIS must have been made while the declarant/witness was testifying under oath at a proceeding (including a deposition in any case).

The second category of prior witness statements deemed non-hearsay are those that are consistent with the witness’s trial testimony (PCSs). However, while the PCS does not have to have been made under oath at a proceeding, it is admissible for its truth only under two circumstances—the second having been added to the FRE only this year. First, the PCS must be offered to rebut an express or implied claim that the witness’s trial testimony was recently fabricated or improperly influenced, such as by bias, a bribe, or threat. As of this year, the PCS is admissible for its truth when it will also rehabilitate the witness’s credibility after being attacked on some other ground, such as faulty memory.

Finally, Rule 801(d)(2) includes the biggest hole in the hearsay ban: statements by opponents. This exemption is simplicity itself. Anything said or written by your trial opponent is not hearsay, even though offered for its truth. Period. End of the analysis. The statement does not have to have been “against interest” when made. I repeat: if your opponent said, wrote, or adopted it, it is not hearsay. The same is true for your opponent’s agents, if the agent was the opponent’s spokesperson (which includes lawyers representing opponents [!]), an employee speaking (to anyone [!]) about a matter within the scope of her employment, or a co-conspirator. The only catch with regard to statements by agents is that the statements alone are not sufficient to establish the agency or conspiracy, another recent amendment to FRE 801(d).

Next time, some of the most utilized exceptions under Rule 803.

Hearsay Part One: When is a statement hearsay?

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NITA’s blog theme this September is: Hearsay? Say What? Recognize It; Use the Rule at Trial

At NITA programs we train you to the daily thrill of advocating at trial. We ask you to perform constantly, using the rules of evidence. What about the evidence rules themselves?
This month, we discuss one set of evidence rules that cannot be covered in the span of our intense performance programs: the substantive rules on hearsay. Each week, we describe the rule’s bounds, and (in true NITA fashion) talk about your advocacy punch for that piece of evidence.

Hearsay Part One: When is a statement hearsay?

written by guest blogger and NITA Program Director Professor Frederick Moss 

The litigator who understands hearsay has a tremendous advantage in getting her evidence admitted and having her opponent’s excluded.  Plus, mastery of hearsay will really impress the judge, who still may be baffled by it.

Why is mastery of hearsay so hard?  First, the rule banning hearsay is counter-intuitive.  We rely on hearsay every day to conduct our affairs.  When John comes into my office and says Bob told him my car was on fire, I certainly am not going to dismiss John’s remark as “mere hearsay” and return to my work.  But, courts, bound by the hearsay rules, must turn their backs (and the juries’) on such evidence.  Second, the legal concept of hearsay is very slippery.  Statements can be sliced and diced and offered for non-hearsay purposes. Then, there are all those bizarre exceptions and exemptions….. Where to start?

When is a statement hearsay?  Not all are.  Let us brush past two requirements: that the statement be made by a “person,” out of court.  Forget about traffic signs, clocks, time stamps and the like.  Though written or posted or set by persons, they are not assertions by those persons. Trust me on this. We don’t have the space to examine this point more closely.

Essentially, one must answer only two questions to determine if a statement is hearsay. The first is, did the out of court declarant intend to state a fact?  Given the nuanced ways in which we use the English language, this can be a tricky question. When someone refers to something as a “Big deal,” what do they mean? Do they mean that the something is really important, or just the opposite — “No big deal”? Remember: it is what the declarant intended to say, not the literal words that count.  Note: one can state a fact with non-verbal conduct, such as, by writing the statement, or when Ms Golightly points to suspect # 5 in the lineup when asked if she sees the man who snatched her purse.

If the answer to the first question – did the declarant intend to state a fact or facts – is “yes,” then we move to the second, tougher question: Is the statement being offered for the truth of that fact?  Put another way, to be relevant, does the fact-finder have to believe that the fact asserted is true? If so, the out of court statement meets the definition of hearsay.

The second step is the key to both understanding and using the hearsay rules to your advantage. This is the “slicing and dicing” step. Remember a basic premise of our trial system: a piece of evidence can tend to prove many things, relevant and irrelevant, AND the offering party can pick and choose among those purposes and offer the evidence for only one purpose  – one not barred by the evidence rules.  Example: X says to W a few days before passing away, “My nurse, Manny, is an untrustworthy scalawag.”  After X dies, Manny drives off in X’s Cadillac, claiming that X, on his deathbed, gave him the car.  At the trial to recover the car, the estate puts on W to repeat what X said about Manny.  Hearsay?  If offered to prove Manny was an untrustworthy scalawag, yes.  But if offered as circumstantial evidence of X’s ill feelings toward Manny as tending to prove X was unlikely to have given Manny the car shortly thereafter, it is not hearsay.  Or, W overhears a store customer tell the manager that there is a spill on isle 3 a half an hour before Plaintiff slips and falls there. The customer’s statement is hearsay if offered to prove there was a spill on isle 3, but it is not hearsay if offered only to prove that the manager had notice of the spill in time to clean it up before Plaintiff fell.  Voila!  The “limited offer” is how you turn potential hearsay into non-hearsay.

August 2014 Executive Director’s Letter. NITA Growth and Accomplishments: Excitement Expressed to “Headquarters”

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In July, I asked you what “real people” activities you were planning for August. While you are in the middle of enjoying those activities (and we’d like to hear about them ), I hope you will enjoy our news about happy developments here at Boulder “headquarters.” (We pay attention also to being “real people,” enjoying homemade barbecue—thank you, Gary Pope, our HR director—and grilled burgers in the Rocky Mountain sun, as you can see in the staff party photos.)

I am happy to receive a wonderful crescendo of nice comments and interested new members of our network. We are witnessing the continued growth of NITA and the spread of NITA enthusiasm. You are part of making that happen.

We thank you for keeping NITA top of mind when talking with your lawyer colleagues and friends, for checking in with our news and opportunities on and on Facebook. Those who know us well already experience what I call “NITA Love”—a devotion that lasts a lifetime, thanks to the transformation from experiencing a live program. Talk about that transformation and unique experience, wherever you are!

Here are some more things you can talk about.

  • 2014 Award for Outstanding Achievement in Programs, awarded by ACLEA for our 2013 innovations using pre-recorded lectures to allow more time learning in-person “by doing” and NITA-quality critiquing. Press Release 8-12-2014
  • Outstanding, newly designed Annual Report released in early June. We are in our second printing! It is fun, interactive, and packed with information tied by our overarching mission. 2013 Annual Report pdf version. Contact us for your personal copy, which you will be proud to show others.
  • Year-long growth in public program enrollments continues through the summer. Focus your friends and colleagues on September through December—spaces are filling, and it is very helpful to sign up early and have time to prepare! We are now expanding program attendance limits as they exceed the planned size, so encourage latecomers call us to try to get in.
  • Urgent sign-up programs: Boston Deposition, September 12-14; Seattle Trial, September 2-7; Complete Advocate (Minnesota), September 13-19; Hanley Advanced Trial (San Francisco), September 15-19.
  • The complete program list and links through December 2014, in chronological order, is at You can navigate to “view all programs” or click here to find the August-December list. NITA programs 2014 chron
  • Planning the program lineup for 2015. We announce it in early fall, and are working to continue our fresh and ready, high-quality standards for all programs across the nation. Stay tuned online.
  • “Global impact.” That is how we describe the work that we turn attention to outside the fifty states. We understand the tight connection between skilled advocacy in fair justice systems and the rule of law. More interest is coming in from countries in important regions on all continents. We regard all with great attention and engage where we will have impact.
  • Handsome array of eBooks. Taking our unique and intensely useful publications onto our eBookstore, we are proud of the facile and attractive offerings of these electronic versions for Kindle and Apple devices. You may purchase our print publications from the website as well. If you are linking with LexisNexis, you will find paths to the print publications directly from there as well.
  • NITA Awards! We couldn’t do it without our stellar, imaginative, and devoted faculty members. Among the many, we receive many nominations for our three annual awards. This year the awardees are Jim McCrystal (Cleveland), Ben Rubinowitz (New York), Beth Sher (New York), and Dan Toomey. Thank you again, Jim, Ben, Beth, and Dan for all that you do—it is done with great talent! In case you missed the Press Release, click here. NITA Award Winners!

A unique free webcast next Tuesday, August 19, will address an important subject to us all and one that matters to every lawyer in court: bias in the courtroom. It promises to be an interesting focus on a subject that is always at play but that is subtle enough to miss. I hope to see you there! Sign up here: Bias in the Courtroom: What and Why / See It and Address It.

Much of the news I gather here appears in greater detail on our blog pages. Notice that the home page of The Legal Advocate shows “news columns” listed at the right side. The NITA Community column is particularly important for news that you wish to share with other faculty and NITA community members. Be sure to check there often—not all of those are emailed to you, so watch your favorite columns every week.

Finally—add your comments below. Hit the link, and share your good news and contributions with the NITA community. I would love to hear from you. (And remember—what are your “real people” refreshers this month?)




Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goal is to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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