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February 2022 - Page 2

Chapter & Verse: Hearsay Part 2


Dear and Beloved Colleagues,

After our date with John Wigmore (or was it more of a one-night stand? Hmmm? I’d see him again, but does he want to see me?) last issue, I was thinking about how we should get into the reality of this hearsay thing. It’s so much! Have I finally bitten off more than my big mouth can chew? Fear not dear reader, for I have the jaw muscles of a much younger woman.

I suppose that the best way to tackle this thing, now that we know what hearsay is, is to talk about admissible hearsay, exception by glorious exception. I can’t wait. Turn now, if you will, to Texas Rule of Evidence 803 and read along with me,


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.”

Ok, let’s stop there and evaluate this first exception: “present sense impression.” We are told in our law school evidence classes that the exceptions to the hearsay rules are time-honored traditions, truisms passed down throughout human existence that supply sufficient “indicia of reliability.” But that’s kind of bull, isn’t it? What does that mean, exactly? That it’s some kind of ancient Roman maxim that we all recognize the inherent truth in? If that’s the case, why don’t we also admit hearsay statements made under the influence of alcohol, since in vino, veritas, after all?

It turns out that the origins of some hearsay exceptions are not much more complex than just that. Present Sense Impression, along with some of the other exceptions we will look at in future columns, comes from trying to tease some sense out of the “res gestae” rule, which had, at the end of the 19th century, become a veritable dumpster fire on which judges burned the rights of defendants. In Latin, “res gestae” means “things done.” For our purposes, it basically means the story of the crime. We still use “res gestae” in legal Latin for other reasons, “the police said he made a ‘res gestae’ statement” (usually meaning that it was a voluntary utterance from someone at or near the time of the offense- “I shot that guy because he was coming at me!”) but just general “res gestae” itself as a whole blob of concepts doesn’t work as a hearsay exception anymore.

So back in the days when smarter folks than your dearest correspondent sat down to puzzle things out, they decided to try and define what, specifically, made statements that were otherwise hearsay credible, other than just being sloppily categorized as “res gestae.” In 1898, James Thayer, a Harvard law professor, issued his “A Preliminary Treatise on Evidence at the Common Law.” Yes, dear reader, it was as fascinating as it sounds, and beat out my own beloved John Wigmore’s evidentiary edicts by about six years. It was a big thing at the time, but if you look up the digitized copy that the Cornell library keeps on hand, it hasn’t been checked out since 1993. Boo. Hiss.

Thayer identified the present sense impression as a distinct type of res gestae statement with unique reliability. He indicated that the reliability of the present sense impression came largely from its proximity in time to the event that was being described, and clarified that the requirements for admissibility of such statements were that they were: spontaneous statements describing the event, made at the time of the event, and witnessed by another person who also witnessed the event.

Ok. So that’s a lot of requirements. Texas law doesn’t require the witness who also witnessed the event, instead teasing apart the elements thusly: “a statement must (a) describe or explain an event or condition, (b) be expressed by the person who made the observation, and (c) be made contemporaneously with or immediately after the observation.”

If you go digging Lexis or Westlaw for some cases about present-sense impression, you will find sadly very little. That said, there is some really interesting stuff on there that defense lawyers ought to be aware of.

“The rationale underlying the present sense impression is that: (1) the statement is safe from any error of the defect of memory of the declarant because of its contemporaneous nature, (2) there is little or no time for a calculated misstatement, and (3) the statement will usually be made to another (the witness who reports it) who would have an equal opportunity to observe and therefore check a misstatement.”
Fischer v. State, 252 S.W.3d 375 (Tex. Crim. App. 2008).

In Fischer, a trooper stopped defendant’s vehicle with the intention of citing defendant for failing to wear a seatbelt, and the trooper subsequently discovered that defendant had been drinking and arrested him for DWI. During the stop, the trooper contemporaneously dictated his observations on to his patrol car videotape. On appeal of the appellate court’s decision that the trooper’s taped observations were not admissible as a present sense impression hearsay exception under Rule 803(1), the court affirmed. The evidence showed that the trooper calmly walked back and forth from his patrol car to defendant several times, and that he carefully and deliberately narrated the results of his DWI field tests and investigation. The trooper’s statements were testimonial and reflective in nature, and they were the type of statements that were made for evidentiary use in a future criminal proceeding; therefore, they were not the sort of spontaneous, unreflective, contemporaneous present sense impression statements that qualified for admission under Rule 803(1).

One of the things I think we ought to be mindful of in this modern era is the use of social media as essentially present-sense impression machines. Twitter, Facebook, Instagram…aren’t they all just saying what we’re doing and feeling at any given time? If I were arguing against admission of a social media post, I might suggest that written statements are more calculated than oral exclamations, no matter how speedy the typist, and that the calculation and reflection sufficient to put something on social media defeats at least the spontaneity element. But the times, as they say, are a’ changin’.

 I am hopeful that by understanding the underpinnings of the hearsay exceptions, the things that historical men with historical mustaches have thought made them as reliable as a live cross-examination would have, we can contest things that are not so reliable. The key to understanding is dissection. Next time, we will evaluate the EXCITED UTTERANCE, which I find fascinating since the utterance I am most likely to make as I’m witnessing a catastrophic event is usually a superlative expletive, which, if taken literally, are not accurate descriptions, unless such events are scatological or reproductive in nature. Until then, sweet reader, I remain,


Federal Corner: Saving the Confrontation Clause


The Confrontation Clause

One of the greatest trial rights and protections owned by a criminal defendant is the Sixth Amendment right to confront and cross-examine witnesses at trial. The Sixth Amendment of the United States Constitution states that: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him;”

 – U.S. Const. amend. VI.

The Confrontation Clause and the rule against hearsay found in the rules of evidence protect similar interests.  However, in California v. Green, 339 U.S. 149 (1970), the United States Supreme Court held that the 6th Amendment’s right to confrontation and the hearsay rule in the rules of evidence are not the same.  In doing so, the Court stated the following: “While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.”

The distinction of the confrontation right and the hearsay rule is significant.  Constitutional protections carry more weight than evidentiary rules in trial courts and on appeal. Further, the hearsay rule’s many exceptions do not apply to the confrontation clause.  California v. Green, 339 U.S. 149 (1970); See Barber v. Page, 390 U.S. 719 (1968); Pointer v. Texas, 380 U.S. 400 (1965).  

Crawford v. Washington

In 2004, the United States Supreme Court issued an important opinion in confrontation litigation, Crawford v. Washington, 541 U.S. 36 (2004).  In Crawford, husband, Michael Crawford, and wife, Sylvia Crawford, were charged related to the stabbing of a man. Both Michael and Sylvia gave recorded statements to the police at the police station regarding the incident. Michael admitted to stabbing the man in self-defense, but Sylvia’s statement to the police was inconsistent with Michael’s defense. At Michael’s trial, the State could not compel Sylvia to testify against Michael due to the spousal privilege rule in Washington. Therefore, the State introduced Sylvia’s prior recorded statement under the “statement against interest” exception to the hearsay rule over the Defense’s objection that the recording violated the Confrontation Clause. The Supreme Court in Crawford held that the introduction of Sylvia’s statement at trial without Sylvia appearing to testify in court violated the Confrontation Clause and was inadmissible. The Court held “that any out of court declaration that is testimonial in nature, is inadmissible if the declarant does not testify at trial and the Defendant has not had a prior opportunity to cross examine the witness.” 

Opening the Door Exception to Confrontation

In Hemphill v. New York, 2022 WL 174223 (2022), the Supreme Court had to decide whether the statutory exception to the Confrontation Clause violated the Sixth Amendment. The Confrontation Clause was under attack by New York, which had created an exception to the confrontation clause: “Opening the Door.”

Facts of the Case

A two-year old boy traveling in vehicle was killed by a stray 9-millimeter bullet shot by a person involved in a street fight. Police suspected that either Nicholas Morris or Darrel Hemphill was the shooter. A search of Morris’ apartment yielded 9-millimeter ammunition only and a .357-magnum handgun. Morris was initially charged with the murder of the child, but later was offered and agreed to plea to a charge related to possession of the .357-magnum handgun and dismissal of the murder charge.

Hemphill was then charged with the murder of the child. During Hemphill’s trial, Hemphill used a third-party culpability defense, blaming Morris for the murder.  During opening statement, Hemphill’s counsel told the jury that a search was conducted of Morris’s apartment hours after the shooting, and the police had recovered 9-millimeter ammunition, he ame aliber ammunition that had been used to shoot the boy. 

To controvert the Defense’s opening statement, the prosecution sought to introduce the plea colloquy transcript from Morris’ plea hearing in which Morris had pleaded guilty to possession of the .357-magnum handgun.  The State cited to the Reid Rule, as a judicially and legislatively created exception to the Confrontation Clause in New York that allowed the trial court to admit evidence at trial for the prosecution that would be otherwise inadmissible if the court determines that the defense has “opened the door” to the evidence by creating a misleading impression with the jury.  The Defense objected that the testimony sought by the prosecution (the plea transcript) violated the Confrontation Clause and Crawford v. Washington, because Morris was unavailable to testify and the defense had not had a previous opportunity to cross-examine him.

The trial court found that Hemphill’s attorney “opened the door” during opening statements by telling the jury about the 9-millimeter ammunition that was found in Morris’ apartment on the night of the murder. Therefore, the trial court allowed Morris’ plea colloquy transcript from the possession of the .357-magnum handgun charge into evidence to correct a “false impression” created by the defense.

Question Presented

Whether New York’s “opening the door” rule to the Confrontation Clause is a violation of the Confrontation Clause.   The rule allows the trial court to admit evidence for the prosecution at trial that would be otherwise inadmissible if the court determines that the defense has “opened the door” to the evidence by creating a misleading impression with the jury.


The Court first analyzed some of the history of Confrontation Clause Jurisprudence. In 1980, the Supreme Court held in Ohio v. Roberts, 448 U.S. 56 (1980) that the Confrontation Clause did not bar the admission of statements of an unavailable witness, so long as the statements bear an “adequate ‘indicia of reliability,’” meaning that they fell “with a firmly rooted hearsay exception” or other “particularized guarantees of trustworthiness.”

However, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court abrogated Ohio v. Roberts.  The Court held “that any out of court declaration that is testimonial in nature, is inadmissible if the declarant does not testify at trial and the Defendant has not had a prior opportunity to cross examine the witness.”  

State’s Arguments on Appeal

In its arguments to the Court, the State conceded that Morris’ plea colloquy was testimonial, meaning the Confrontation Clause was implicated.  However, the State argued that New York’s “opening the door” rule was not an exception to the Confrontation Clause.  Instead, the State argued that the “opening the door” rule was a procedural rule, like failing to object to the confrontation clause violation, and thus there was no violation. 

The Court has approved procedural rules and allows the States and the Government to adopt procedural rules related to objections to testimonial evidence.  For example, in Melendez-Dias v. Massachusetts, 557 U.S. 305 (2009), the Court approved “notice and demand” statutes.  These statutes require the State to give notice that it plans on introducing testimonial evidence (such as a lab report) without a sponsoring witness and the defense is given a deadline by which to object to the introduction of the evidence.  Failure to object is considered a waiver of the right to confront the witness. 

The Court’s Analysis – Procedural Rules

First, the Court emphasized that it approves of procedural rules that allow for admission of testimonial evidence.  The Court reiterated its approval of the “notice and demand” statutes discussed in Melendez-Dias.  The Court also approved the rule stated in Illinois v. Allen, 397 U.S. 337 (1970), which allows for removal of a criminal defendant from his trial when despite repeated warnings, he has become so disorderly, disruptive, and disrespectful in court that his trial cannot be cannot be carried on with him in the courtroom. 

The Court’s Analysis – Substantive Rules

However, the Court held that New York’s “opening the door” rule was not a procedural rule, but instead it was substantive.  In other words, the “opening the door” rule was a substantive rule like the one in Ohio v. Roberts, 448 U.S. 56 (1980) that allowed the testimonial statements of an unavailable witness, so long as the statements bear an “adequate ‘indicia of reliability,’” meaning that they fell “with a firmly rooted hearsay exception” or other “particularized guarantees of trustworthiness.”  However, Ohio v. Roberts was rejected in Crawford v. Washington, 541 U.S. 36 (2004).  In rejecting Ohio v. Roberts, Crawford stands for the principal that judges are barred “from substituting their own determinations of reliability for the method the Constitution guarantees.”  In other words, a judge should not substitute her wisdom about reliability for the reliability of cross-examination.

Similarly, the Court held that New York’s “opening the door” rule was substantive, requiring the trial court to weigh evidence. “It was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression.  Such inquiries are antithetical to the Confrontation Clause.”

The Holding

Because New York’s “opening the door” rule was substantive, requiring the trial court to weigh evidence, the rule violated the Confrontation Clause.  Judges are not allowed to weigh the reliability, credibility, or misleading nature of testimony as a substitute for cross-examination. 

The Authors’ Thoughts

  • The Court properly distinguished between procedural and substantive rules.  Procedural rules like Texas’ Article 38.41 (Certificate of Analysis) which allows the State to give notice that it intends to introduce a laboratory report without a sponsoring witness, are approved because the defense has an opportunity to object to the evidence.  However, rules like New York’s “opening the door” rule rely on judge’s weighing the credibility, reliability, or weight of evidence are substantive in nature, and thus violate the principles set out in Crawford
  • This case is a significant opinion because the Court did not take a step back from Crawford. This is and 8-1 opinion.  Crawford is still the rule of law and confrontation continues to be one of the most important and protected trial rights for a defendant.

From the Front Porch: Patches of humanity: a writer, his ranch, and the art of storytelling


In 1974, John Graves published Hard Scrabble, a wide-ranging series of essays about his ranch near Glen Rose. The writing – “observations on a patch of land,” as he described it – meanders his property beautifully. He offers some armchair history, a lay of the land itself, and spends his time showing you the trees and describing all the birdsong and guessing at why the creek runs differently now than it did before. You’re walking with him, really, and trusting the gentle clip of your nicely-paced tour guide – happy that he seems particularly adept and knowing when to chat and when to let the world speak for itself.

Fourteen years earlier, Graves did something similar in Goodbye to a River. It was his homage to a portion of the Brazos River that he had known and loved quite intimately, one that appeared ready to change course with the construction of a series of dams. So, he took his dog, hopped in a canoe, and spent a few weeks traveling. You’re with him as he hunts, you feel the chill of autumn and the warmth of his fire – it’s as if he handed you a paddle, too, and asked for a little help from time to time.

He did it all again a few years later in From a Limestone Ledge, which, on its cover, was described perfectly: a celebration of “the casual but constant observation of detail, the noticingness of rural life.” More essays, more description, more questions, more thoughts. It was almost as if Graves spent his life quietly watching and hearing, comfortably quiet in his pauses between books, and offering up what I would consider to be the most magical writing about “place” I have come across.

When I moved to rural Texas (Beeville, more specifically) to begin my work as a public defender – what Graves may describe as when I “put my boots to earth with a mingled set of feelings” (Hard Scrabble, p. 44) – I was continually searching for the words that seemed to flow so easily from Graves. I was trying to understand a world I hadn’t known before, and his sentences became the soundtrack to my curiosities – it was as if he had decided to do something that felt resonant: tip the balance in favor of listening and looking and wondering.

On people: “There were cattle kings and horse thieves and half breeds and whole sons of bitches and preachers in droves and sinners in swarms.” (Goodbye to a River, p.200).

On the lovely dynamic between rain and land: “Hence, it depends not only on rainfall year by year but also on the way the land receives and handles the rain.” (Hard Scrabble, p.53).

On aging and time: “’Maybe it is, at that,’ said his grandfather, nudging dark loose earth with his toe and feeling in old hurts the certainty of rain. ‘We feed the dirt, and the dirt feeds us.’” (Hard Scrabble, p. 139).

Rural Texas mystique is (and always will be) a mine for creative plundering. There is a fierce identity to it, and a romance that accompanies its exploration. And, I firmly believe that defense lawyers whose practice carries them into the hard scrabble of Texas, will do well spending time with the likes of John Graves. He is not there to give you the answer, but he does prod you along to truly soak in what’s around.

His genius is to give the lesser known a profound, authentic, feeling identity. With him, you are not between other places, not described in reference to elsewhere, not on a road between somewhere you might know (Fort Worth) and somewhere else you might know (Abilene) – you are in Somervell County, and being there is just right. There is a depth of humanity that exists in each of Graves’ paragraphs, and with a level of simplicity that is reassuring. We, as lawyers, are also at our best when we can take in the complexities that lie before us and speak about them with some combination of plainness and straightforwardness and minimalism.

That Graves writes about rural Texas – and, therefore, the idea that his writing is applicable to it alone – is to miss out on what he teaches about the ways in which we can all find identity (and, in turn, humanity) no matter where our place is. In her brilliant collection On Photography, Susan Sontag offers a mission that defense lawyers can certainly borrow: “There is one thing the photograph must contain, the humanity of the moment.” (p. 122). The humanity of the moment, the humanity of our client – the re-insertion of these photographs into a process built upon its proficiency at stripping away those very things – that is our non-stop mission.