Originally from:
Texas Rules of Evidence Manual - 9th Edition - Hardcover
Texas Rules of Evidence Manual - 9th Edition - Electronic
Hearsay - Article VIII - Preview Page
§ 801.01 Official Text
RULE 801. DEFINITIONS
The following definitions apply under this article:
(a) Statement. A “statement” is (1) an oral or written verbal expression or (2)
nonverbal conduct of a person, if it is intended by the person as a substitute
for verbal expression.
(b) Declarant. A “declarant” is a person who makes a statement.
(c) Matter Asserted. “Matter asserted” includes any matter explicitly asserted,
and any matter implied by a statement, if the probative value of the statement
as offered flows from declarant’s belief as to the matter.
(d) Hearsay. “Hearsay” is 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.
(e) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing
and is subject to cross-examination concerning the statement, and the
statement is:
(A) inconsistent with the declarant’s testimony, and was given under oath
subject to the penalty of perjury at a trial, hearing, or other proceeding
except a grand jury proceeding in a criminal case, or in a deposition;
(B) consistent with the declarant’s testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication or
improper influence or motive;
(C) one of identification of a person made after perceiving the person; or
(D) taken and offered in a criminal case in accordance with Code of
Criminal Procedure article 38.071.
(2) Admission by party-opponent. The statement is offered against a party
and is:
(A) the party’s own statement in either an individual or representative
capacity;
(B) a statement of which the party has manifested an adoption or belief in
its truth;
ARTICLE VIII. HEARSAY
RULE 801. DEFINITIONS
§ 801.01 Official Text
§ 801.02 Editorial Analysis
[1] Introduction to Hearsay
[a] In General
[b] The Policy Reasons Supporting the Rule Against Hearsay
[c] Is the Statement Hearsay? — A Methodology
[2] Rule 801(a) — Statement
[a] Summary
[b] In General
[c] Assertive Verbal Conduct — Oral and Written
[d] Nonassertive Verbal Conduct
[e] Conduct Intended to Be a Substitute for a Verbal
Expression
[f] Conduct That Is Not Intended to Be a Substitute
for a Verbal Assertion
[g] Nonassertive Verbal Conduct Offered to Infer
Something Other Than the Matter Expressly
Asserted
[h] Nonassertive Statements and Silence
[3] Rule 801(b) — Declarant
[a] Summary
[b] In General
[4] Rule 801(c) — Matter Asserted
[a] Summary
[b] Express Assertions
[c] Implied Assertions and Statements
[d] Illustrations in Texas Drafters’ Comment
[5] Rule 801(d) — Hearsay
[a] Summary
[b] In General
[c] Declarant Testifying in Court — Hearsay?
[d] Statements Not Offered for Their Truth
[i] In General
[ii] The Role of Relevancy
[iii] Statements That Are “Operative Facts”
or Parts of “Operative Facts”
[iv] Statements Offered to Impeach a Witness
or Show Other Mental Output of Witness
[v] Statements Offered to Show Effect on
Hearer or Reader
[vi] Other Nonhearsay Statements
[e] Nonhearsay Statements and Limiting Instructions
[f] Indirect or “Backdoor” Hearsay
[g] Out-of-Court Affidavits and Other Sworn Documents
[h] Self-Serving Statements
[i] Out-of-Court Language Translations
[6] Rule 801(e) — Statements That Are Not Hearsay
[a] Summary
[b] In General
[7] Rule 801(e)(1) — Prior Statement by Witness
[a] Summary
[b] In General
[8] Rule 801(e)(1)(A) — Prior Inconsistent Statements
[9] Rule 801(e)(1)(B) — Prior Consistent Statements
[a] In General
[b] Declarant Must Testify
[c] The Improper Motive or Recent Fabrication
Requirement
[d] Timing of the Prior Consistent Statement
[e] Evidence of Prior Statement
[10] Rule 801(e)(1)(C) — Prior Identifications
[a] In General
[b] Declarant Must Testify
[c] The Bolstering vs. Corroboration Issue
[d] Confrontation Clause Issues
[11] Rule 801(e)(1)(D) — Videotaped or Filmed Statements
of Child Victims
[a] Summary
[b] Application in Criminal Cases
[12] Rule 801(e)(2) — Admission by Party-Opponent
[a] Summary
[b] In General
[13] Rule 801(e)(2)(A) — Personal Admission
[a] In General
[b] Complaining Witness’s Statements as Party Admissions
[14] Rule 801(e)(2)(B) — Adoptive Admissions
[a] In General
[15] Rule 801(e)(2)(C) — Statements by Authorized Persons
[a] In General
[16] Rule 801(e)(2)(D) — Statements by Agent Concerning
Matters Within the Scope of Employment
[a] In General
[b] Agency/Employment Relationship
[c] Matter Within Scope of Relationship
[d] Relationship to Other Rules
[e] Judicial Admissions
[i] Application in Civil Cases
[ii] Application in Criminal Cases
[17] Rule 801(e)(2)(E) — Statements by Co-Conspirators
[a] In General
[b] Foundation for Co-Conspirator’s Statements
[c] Definition of Conspiracy
[d] Proving the Underlying Conspiracy
[e] Procedure for Determining Admissibility of Statements
[f] Statements Must Be in Furtherance of Conspiracy
[g] Statements Must Be Made During Course of
Conspiracy
[i] In General
[ii] Statements Made After Arrest or Withdrawal
[h] Statements Made to Co-Conspirators and Others
[i] Confrontation Clause Issues
[18] Rule 801(e)(3) — Depositions
[a] Summary
[b] Application in Civil Cases
[i] In General
[ii] Method of Using a Deposition
[c] Application in Criminal Cases
[19] Statutory Exemptions and Exclusions to the Hearsay
Rule
[a] In General
[b] Family Code
[i] Suits Affecting Parent-Child Relationship
[ii] Outcry Statements by Abuse Victims
[iii] Written Reports at Disposition Hearing
[c] Transportation Code
[d] Uniform Interstate Family Support Act
[e] Code of Criminal Procedure
[i] Certification of Competency
[ii] Outcry Statements by Child-Abuse Victim
[iii] Pre-Sentence Investigation Report
[f] Civil Practice and Remedies Code—Affidavit
Concerning Charges for Services
§ 801.03 Drafters’ Comment — Civil and Criminal
RULE 802. HEARSAY RULE
§ 802.01 Official Text
§ 802.02 Editorial Analysis
[1] Summary
[2] The General Rule of Exclusion
[3] Exemptions, Exclusions, and Exceptions to the Hearsay
Rule
[4] Hearsay and Probative Value
[5] Hearsay and the Right of Confrontation
[a] In General
[b] Application to Testimonial Hearsay Statements
[i] Statement Must Be Offered in Criminal
Prosecution
[ii] Statement Must Be Offered to Prove Truth
of Matter Asserted
[iii] Statement Must Be “Testimonial”
[c] Application to Nontestimonial Hearsay
[d] Defendant Must Object to Violation
[e] Declarant Unavailable for Cross-Examination
[f] Waiver of Right
[g] Forfeiture of Right by Wrongdoing
RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY
OF DECLARANT IMMATERIAL
§ 803.01 Official Text
§ 803.02 Editorial Analysis
[1] Introduction
[2] Rule 803(1) — Present Sense Impression
[a] Summary
[b] In General
[c] Confrontation Issues
[3] Rule 803(2) — Excited Utterance
[a] Summary
[b] Rationale for Exception
[c] Factual Predicate or Foundation
[d] Proof of Startling Event or Condition
[e] Requirement That Statement Relate to Event
or Condition
[f] Declarant Under Stress of Excitement
[g] The Personal Knowledge Requirement
[h] Statements Made in Response to Questions
[i] The “Res Gestae” Problem
[j] Statements by Children
[k] Statements of Sympathy
[l] Application in Criminal Case—Right of Confrontation
Issues
[4] Rule 803(3) — Then Existing Mental, Emotional,
or Physical Condition
[a] Summary
[b] Rationale for Exception
[c] Present State of Mind, Emotion or Sensation
[d] Present Intent or Plan for Future Conduct
[e] Statement of Memory or Belief
[f] Statements of Memory or Belief Concerning Will
[g] Physical Condition
[h] Opinion Poll Surveys
[i] Right of Confrontation Issues
[5] Rule 803(4) — Statements for Purposes of Medical
Diagnosis or Treatment
[a] Summary
[b] In General
[c] Statement Must Be Made to Obtain Medical Care
[i] Determining the Motive for the Statements
[ii] Statements by Adults Versus Children
[d] Statements Must Be Pertinent to Medical Care
[e] Statements by Medical Personnel
[f] Statements Assigning Fault or Guilt
[g] Statements Made by Non-Patients
[h] Statements Made for Purpose of Litigation
[i] Relationship to Other Exceptions and Rules
[j] Right of Confrontation Issues
[6] Rule 803(5) — Recorded Recollection
[a] Summary
[b] In General
[c] Right of Confrontation Issues
[d] Relationship of Rule 803(5) to Other Rules
[7] Rule 803(6) — Records of Regularly Conducted Activity
[a] Summary
[b] In General
[c] Definition of Records
[d] Records of Facts and Opinions
[e] Admissibility of Law-Enforcement Records
[i] In Criminal Cases
[ii] In Civil Cases
[f] Requirement of Business Duty
[g] Requirement of Routine Business Practice
[h] Requirement of Personal Knowledge
[i] Requirement of Timely Recording
[j] The Trustworthiness Veto
[k] Laying the Predicate for Business Records
[i] Authentication of Business Records
[l] Hearsay-Within-Hearsay in Business Records
[m] Relationship to Other Exceptions
[n] Right of Confrontation Issues
[8] Rule 803(7) — Absence of Entry in Records Kept
in Accordance With the Provisions of Paragraph (6)
[a] Summary
[b] In General
[9] Rule 803(8) — Public Records and Reports
[a] Summary
[b] In General
[c] Laws of Other States and Foreign Countries
[d] Authentication of Records
[e] Types of Records or Reports
[10] Rule 803(8)(A) — Office Activities
[11] Rule 803(8)(B) — Matters Observed and Reported Under
Official Duty
[a] In General
[b] Application in Criminal Cases
[12] Rule 803(8)(C) — Results of Official Investigations
[a] In General
[13] Trustworthiness Veto
[14] Relationship of Rule 803(8) to Other Rules
[15] Right of Confrontation Issues
[16] Rule 803(9) — Records of Vital Statistics
[a] Summary
[b] In General
[c] Right of Confrontation Issues
[17] Rule 803(10) — Absence of Public Record or Entry
[a] Summary
[b] In General
[c] Right of Confrontation Issues
[18] Rule 803(11) — Records of Religious Organizations
[a] Summary
[b] In General
[19] Rule 803(12) — Marriage, Baptismal, and Similar
Certificates
[a] Summary
[b] In General
[20] Rule 803(13) — Family Records
[a] Summary
[b] In General
[21] Rule 803(14) — Records of Documents Affecting an
Interest in Property
[a] Summary
[b] In General
[22] Rule 803(15) — Statements in Documents Affecting
an Interest in Property
[a] Summary
[b] In General
[23] Rule 803(16) — Statements in Ancient Documents
[a] Summary
[b] In General
[24] Rule 803(17) — Market Reports, Commercial
Publications
[a] Summary
[b] In General
[25] Rule 803(18) — Learned Treatises
[a] Summary
[b] In General
[26] Rule 803(19) — Reputation Concerning Personal or
Family History
[a] Summary
[b] In General
[27] Rule 803(20) — Reputation Concerning Boundaries
or General History
[a] Summary
[b] In General
[28] Rule 803(21) — Reputation as to Character
[a] Summary
[b] In General
[29] Rule 803(22) — Judgment of Previous Conviction
[a] Summary
[b] In General
[c] Right of Confrontation Issues
[30] Rule 803(23) — Judgment as to Personal, Family or
General History, or Boundaries
[a] Summary
[b] In General
[31] Rule 803(24) — Statement Against Interest
[a] Summary
[b] In General
[c] Statements Against Penal Interest
[i] In General
[ii] The Degree of Culpability Admitted
[iii] The Corroboration Requirement
[iv] The Reliability Standard
[v] The Personal Knowledge Requirement
[vi] Statements by Accomplices
[vii] Statements by Third Persons That
Inculpate the Defendant
[d] Statements Against Pecuniary Interest
[e] Statements Against Social Interest
[f] Party Admissions Distinguished from Statements
Against Interest
[g] Trustworthiness Concerns
[h] Statements That Are Partly Self-Serving and
Partly Against Interest
[i] Admissibility of Opinions Against Interest
[j] Right of Confrontation Issues in Criminal Cases
[k] The Federal “Residual” or “Catch-All”
Hearsay Exception
§ 803.03 Original Drafters’ Comment — Civil and Criminal
RULE 804. HEARSAY EXCEPTIONS; DECLARANT
UNAVAILABLE
§ 804.01 Official Text
§ 804.02 Editorial Analysis
[1] Introduction to Hearsay Exceptions Requiring Unavailability
[2] The Rule 803 and Rule 804 Exceptions Distinguished
[3] Right of Confrontation and Unavailability
[4] Admissible Hearsay
[5] Rule 804(a) — Definition of Unavailability
[a] Summary
[b] In General
[c] Burden on the Proponent to Prove Unavailability
[d] Grounds for Unavailability
[i] Declarant Invokes a Privilege
[ii] Declarant Refuses to Testify
[iii] Declarant Has Insufficient Memory
[iv] Declarant Is Physically or Mentally
Incapacitated
[v] Declarant Is Absent
[vi] Unavailability Caused by the Proponent
[e] Trial Court’s Decision
[6] Rule 804(b)(1) — Hearsay Exceptions — Former Testimony
[a] Summary
[b] Application in Civil Case
[i] In General
[ii] Distinguishing Judicial Notice and
Admission of Prior Testimony
[c] Application in Criminal Cases
[i] In General
[ii] Grand Jury Testimony in Criminal Cases
[iii] Deposition Testimony in Criminal Cases
[7] Rule 804(b)(2) — Hearsay Exceptions — Dying Declarations
[a] Summary
[b] In General
[c] The Foundation for Dying Declarations
[d] Application in Criminal Cases
[8] Rule 804(b)(3) — Hearsay Exceptions — Statement
of Personal or Family History
[a] Summary
[b] In General — Declarant’s Own Pedigree
[c] Pedigree of Another Person
[d] Relationship to Other Rules
[e] Federal Exceptions Not Adopted by Texas Rules
§ 804.03 1986 Drafters’ Comment — Civil
RULE 805. HEARSAY WITHIN HEARSAY
§ 805.01 Official Text
§ 805.02 Editorial Analysis
[1] Summary
[2] In General
RULE 806. ATTACKING AND SUPPORTING CREDIBILITY
OF DECLARANT
§ 806.01 Official Text
§ 806.02 Editorial Analysis
[1] Summary
[2] In General
[3] Methods of Impeaching a Hearsay Declarant
[4] Rehabilitation of Hearsay Declarant
[5] Calling the Hearsay Declarant as a Witness
About the Authors:
David A. Schlueter is the Hardy Professor of Law and Director of Advocacy
Programs at St. Mary’s University School of Law in San Antonio, Texas. Professor
Schlueter teaches evidence, trial advocacy, and constitutional law and has served as
both a criminal trial and appellate counsel. He has authored, co-authored, or edited
ten books on procedure and evidence, including the two-volume work, FEDERAL
EVIDENCE TACTICS. His writings have been cited over 950 times by state and federal
courts, including the Supreme Court of the United States, and legal commentators.
Before joining the faculty at St. Mary’s in 1983, he served on active duty as an Army
JAGC and for two years as legal counsel for the Supreme Court of the United States.
He is a fellow in the American Law Institute and a Life Fellow in the American Bar
Foundation. From 1988 until 2005, he served as the Reporter for the Federal Rules of
Criminal Procedure Advisory Committee.
Jonathan D. Schlueter is a shareholder at the San Antonio based law firm of Cox
Smith Matthews Incorporated. Mr. Schlueter represents commercial business clients
in a myriad of litigation matters with an emphasis on construction law, real estate law
and complex commercial litigation. Before joining Cox Smith, he was the Senior
Executive Editor for the Baylor Law Review and clerked for Judge Sandee Brian
Marion of the Texas Fourth Court of Appeals. He is a member of the American Bar
Association, Texas Bar Association, Texas Construction Law Section, San Antonio
Bar Association, Officer and Board Member of the Construction Law Section for the
San Antonio Bar Association, Member of the Education Committee for the San
Antonio Chapter of the Associated General Contractors of America.
