Evidence Outline[3]

Evidence Outline Introduction I. Tanner v. United States A. Jury was involved in rampant drinking and drug use during the trial; Petitioner wanted a new trial and the district judge considered Rule 606(b) B. Rule 606(b): Competency of Juror as Witness- Inquiry into validity of verdict or indictment. 1. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury‟s deliberations or to the effect of anything upon that or any other juror‟s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror‟s mental processes in connection therewith, except that t juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror‟s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. C. Court refused to overturn the District Ct‟s. denial of an evidentiary hearing D. Justice O‟Connor said that drunkenness does not qualify as an outside influence. She found that the judiciary committee had already considered drunkenness. To allow inquiry into jury deliberations would diminish community trust in verdicts. E. The overriding policy considerations are legitimacy and finality. F. Justice Marshall dissents in O‟Connor‟s opinion in that he considers the alcohol and drug were outside influences. These were influences during trial, not deliberation. II. Overriding Principles of Evidence A. Relevance B. Reliability C. Privilege III. Relevance -String together inferences -Are the inferences supportable based on facts and evidence? Can they be used to reach the sought after conclusion? - Rule 401: Definition of Relevant Evidence -“Relevant evidence” means evidence having any tendency to make the evidence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. -Just because you can make counter-arguments does not mean it is not relevant. Rule 401 is very generous. Evidence only has to move the ball in some direction. A. Probativeness 1. Problem 1.1- “Show Me the Body” a. When a husband is arrested, the wife yells Where‟s the Body, Show Me the Body, rather than He didn‟t do it. Statement relevant? b. Possible inference that husband talked to her about the body and the murder. Or maybe she‟s the guilty party. Maybe she found the information elsewhere. c. The existence of other possible inferences does not make the evidence irrelevant. d. The evidence has to have a tendency to advance the ball, in either direction, to be relevant. 2. Problem 1.3- Polygraph Consent a. ∆ took the polygraph test despite knowing the machine‟s ability to detect deceit. Was ∆‟s willingness relevant? b. Here, it is relevant enough to beat out the low Rule 401 test even though the willingness may not demonstrate his innocence B. Materiality 1. Problem 1.4- Knowledge a. DA accuses the ∆ of being a felon and guilty under statute illegalizing transport of ammunition if you have been convicted of crime punishable by imprisonment exceeding one year. The ∆ argues that he didn‟t know that his prior was punishable by more than 1 year in the state. Material? b. No, the information is not material b/c the definition of the crime does not require intent. 2. United States v. James a. ∆ is charged w/ a crime when her daughter shot O after O was attacking daughter‟s boyfriend and ∆ passed her a gun. ∆ claims self-defense b/c she knew of O‟s violent tendencies, can ∆ admit O‟s police records of violent history to show that ∆ was valid in her fear? b. Court finds the evidence material b/c if ∆ had knowledge of O‟s violence it would go to her state of mind c. The evidence was relevant b/c it goes to her credibility and her credibility could be directly corroborated through the documentary evidence. 3. Problem 1.6- Violin Case a. Officer was on the scene after a bloody gang fight, sees person with a violin case and the suspect appeared to point the case at the officer; Turns out there was no gun in the violin case. Is it relevant that there was no gun in the violin case? b. No, b/c the only relevant evidence is the officer‟s state of mind. Although the minority has a strong argument that whether or not there was a gun in the case would be relevant. C. Conditional Relevance - Every piece of evidence has some conditional relevance to it 1. Rule 104(a): Questions of Admissibility Generally a. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). b. Questions of fact that have to be admitted by judge before relevancy can be established. c. Example: Deciding whether couple is lawfully married at the time of relevant communication 1) Judge will decide if they are lawfully married to determine if the communication is covered by the marital privilege. d. Example: Excited Utterance Exception Hearsay 1) Judge decides if there was an excited event that is required for admissibility under excited utterance exception. e. Higher standard of evidence and more likely to keep evidence out than FRE 104(b) 2. Rule 104(b): Relevancy Conditioned on Fact a. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. b. Judge tries to determine if a reasonable jury could based on that evidence find a fact to be true 1) Judge is screener, not factfinder like in FRE 104(a) situation c. Jury is factfinder 3. Difficult to tell when a fact is appropriate for Rule 104(a) and when it is appropriate for Rule 104(b) 4. Problem 1.7- Threat to Disclose a. DA thinks that the ∆ was motivated to kill his wife by wife‟s intention to tell her son that ∆ was not his father. Subject evidence is ∆‟s statement to police “her older son.” b. If the husband knew of her intention, then there would be motive; if he didn‟t know, there would be no motive. c. “It‟s only relevant if the defendant knew…” d. This is a FRE 104(b) question for the jury. e. Judge should instruct the jury that this evidence is only relevant if you find that the ∆ knew of his wife‟s intention by a preponderance of the evidence 5. Cox v. State a. ∆ is accused of shooting man after ∆‟s friend‟s bond reduction hearing was unsuccessful for the charge that he molested the man‟s daughter b. Evidence at question is deputy‟s testimony regarding the bond reduction hearing & the friend‟s mother being at the hearing 1) The evidence is only relevant if Cox knew of the molestation charge c. Rule 104(b) instance 6. If you can trust the jury to disregard the evidence, it is likely a Rule 104(b) case. If you cannot trust the jury to disregard it and not consider it, it is probably a Rule 104(a) case. D. Probativeness Versus the Risk of Unfair Prejudice 1. Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time a. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. b. Countervailing considerations are efficiency & substantive effect on the jury 2. Default position is to let the evidence in rather than out 3. Consider each factor as high, medium or low a. High level of probative value, low level of unfair prejudice? b. Medium level of probative value, low level of unfair prejudice? c. If the levels are the same, the evidence is admitted. 4. Unfair prejudice must cause the jury to reach a conclusion based on inappropriate basis. 5. Photos & Other Inflammatory Evidence a. State v. Bocharski 1) ∆ is accused of killing an elderly woman. Admit grisly photos of injuries? 2) If a photograph “is of a nature to incite passion or inflame the jury,” the court must determine whether the danger of unfair prejudice substantially outweighs the exhibit‟s probative value. 3) The cause of death was not disputed, only the guilty party and the photographs do not suggest who committed the crime, so the pictures have low probative value. 4) Here, the app. court held that the picture should not have been admitted, but there was harmless error b/ the jury seemed unaffected by the photos. b. Problem 1.8- Photo of Guns 1) Question was whether a rifle would rapid fire. In one test, it didn‟t. In another test, it did. The defense argued that the gun rapid fired the 2nd time b/c it was worn, defective, or dirty inside. The gov‟t. wanted to introduce a picture of the gun being clean on the outside, but in the picture were dozens of other weapons belonging to the ∆‟s roommate. 2) Is it unfair for the jury to draw the inference that the other weapons belonged to the ∆ as well, even though they didn‟t? 3) The unfair prejudice is high and the probative value is low so Rule 403 would exclude the evidence here readily. c. Excerpts from the Ruling on the Fuhrman Tapes 1) Fuhrman was accused of having racial bias and denied having used the “n” word. Admit tapes of F using the “n” word to prove his lack of credibility? 2) Arguable as to probative value. 3) Jury could find F racist and then acquit OJ to send message to police force (unfair prejudice) 4) Judge allowed the jury to hear 2 instances of the racial epithet being used on the audio tapes, but they were told that he used it 41 times 5) Argument is that there is such little probative value in hearing it 41 times and it is outweighed by unfair prejudice 7) The more inferences that can be made and fewer jumps there are, the more probative the evidence is. 6. Evidence of Flight a. US v. Myers 1) ∆ robs FL bank, flees, robs PA bank, flees to CA. Should the jury have been instructed that the ∆ fled from the FBI agents on 2 occasions subsequent to the commission of the robbery he is accused of committing? 2) Supposed Inferences from Flight a) Behavior  Flight  Consciousness of Guilt  Consciousness of Guilt for this Offense  Guilty 3) Difficult to infer that his CA flight was evidence of guilt to either robbery 4) Appellate court finds the jury instruction improper and reverses, however the defense doesn‟t seem unfairly prejudiced by the admitted evidence and the evidence seems adequately probative. b. Problem 1.9: Flight 1) DA asks the ∆ why he fled the site and he had to disclose his priors 2) The evidence was prejudiced b/c in order to rebut the flight evidence the ∆ is forced to bring in evidence of his prior convictions which he would normally not be required to disclose and then be biased against based on his priors. 3) The court held that the evidence was not unfairly prejudice and the jury was given instructions to disregard the evidence of prior convictions. (Limiting instructions) 4) Rule 105: Limited Admissibility a) When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. c. Problem 1.10: Staying Put 1) Could a suspect like Gary Condit bring in evidence that he DID NOT flee when the police investigation went on? 2) There may be other reasons he stuck around, but at the same time just b/c there are other reasons does not mean that the evidence is not relevant since he was a visible and public figure. 3) Courts generally are less wiling to introduce this evidence of non-flight. By sticking around, the suspect does what is expected and not unusual; flight is much more interesting and probative. RELIABILITY III. Authentication, Identification, and the “Best Evidence” Rule A. Authentication and Identification 1. Rule 901(a): Requirement of Authentication or Identification; General Provision a. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. b. Rule 901 purposely echoes Rule 104(b) because documentation is always based on conditional relevance. If you can‟t prove the authenticity, the document has no relevance. c. Chain of Custody 1) Proof of a “perfect” chain of custody consists of testimony by each person who had custody of the item from the moment it was seized from the ∆ until its delivery to the courtroom. 2) Normally a chain of custody is good enough if it supports a finding that the item in question is the same item and that it is in substantially the same condition. 2. 3. 4. of 5. d. Rule 901(b)(1): Testimony of witness with knowledge 1) Testimony that a matter is what it is claimed to be. 2) Example a) What is People‟s Exhibit A? This is the gun that ∆ tried to kill me with. b) How do you know? I know b/c he held it against my face. Rule 901(b): Illustrations a. Testimony of witness with knowledge. b. Nonexpert opinion on handwriting. c. Comparison by trier or expert witness. d. Distinctive characteristics and the like. e. Voice identification. f. Telephone Conversations. g. Public records or reports. h. Ancient documents or data compilation. i. Process or system. j. Methods provided by statute or rule. Rule 902: Self-Authentication a. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: 1) Domestic public documents under seal 2) Domestic public documents not under seal 3) Foreign public documents 4) Certified copies of public records 5) Official publications 6) Newspapers and periodicals 7) Trade inscriptions and the like. 8) Acknowledged documents 9) Commercial paper and related documents 10) Presumptions under Acts of Congress. 11) Certified domestic records of regularly conducted activity. Documents a. Problem 10.1: To Send Money 1) How do you authenticate Western Union wire transfer forms if the ∆ is named as the sender? 2) Various ways, use secretary‟s testimony (3), Western Union employee testimony (1), handwriting expert (2). Under 901(b)(3), jury can do the analysis themselves. b. US v. Stelmokas 1) Did Stelmokas legitimately get his citizenship? Records show that he was involved in Lithuanian military groups which slaughtered Jews. 2) 2 experts verified the validity of the records and 2 Lithuanians in the camps testified to the conduct of Lithuanian militants in general. 3) DA uses the 901(b)(8) Ancient Documents rule where if the document can be authenticated then it can be introduced. c. Problem 10.2: Anonymous Note II 1) There is an armored truck robbery and the car is abandoned with an anonymous note in it that identifies the change of cars. Is anonymity okay for purposes authenticity? 2) 901(b)(4) looks at the distinctive characteristics and the like and allows the contents & the circumstances to be considered in regards to authenticating the evidence. 3) The only standard is to show that there is a fact issue. Phone Calls a. Problem 10.3: Star 69 1) Robber calls the store he robbed to make sure no one has gotten fired and the store Star 69ed and caught him. Can the evidence of the phone call be admitted? 2) FRE 901(b)(5) allows for identification of a voice if the witness has ever heard the party‟s voice in the past (easiest method in this case) a) Fairly low standard; if the witness has heard the voice any time b) Compare to 901(b)(2) regarding handwriting and the familiarity must be established prior to the litigation 3) FRE 901(b)(6) call a personal number and the person identifies himself. This authenticates the telephone conversation. Not applicable here since the suspect made the call, not the other way around. 4) May need to use FRE 901(b)(9) to authenticate the process and that the results are accurate. (unless the process is reliable and common) 5) FRE 901(b)(4) allows evaluation of the content of the conversation to establish authenticity b. People v. Lynes 1) ∆ ran from the police and the officer finds the ∆‟s brother and finds out the ∆‟s real name and leaves a note for the ∆ to call him. The ∆ calls and identifies himself as the suspect. Can the call be authenticated? 2) 901(b)(4) can be used b/c the contents of the conversation would establish authenticity 3) 901(b)(6) doesn‟t work since the suspect is the caller 4) Reply doctrine a) Party sends the suspect a letter & if there is a response involving the same subject matter & is responsive to the letter & within an appropriate time period; the reply is authenticated b) Same applies for phone calls, esp. w/ self-identification, etc. c. Rulings in Simpson Trial Fuel Second-Guessing 1) In civil case, ∏s want to admit evidence regarding a phone call from “Nicole” a few days before the murder and described her abusive husband 2) Court admitted the evidence b/c the party who took the call said that she recognized the voice based on other recordings by Nicole Brown Simpson on 911 tapes 3) This standard is adequate under 901(b)(5) d. For phone calls, 901(b)(4), (5), (6), and (9) are all potentially relevant 6. Photographs a. Standard is that a witness can be brought in to authenticate that the evidence accurately reflects the facts allegedly portrayed in them. 4) Same standard applies for a diagram b. Thelma & Louise clip 1) How do you authenticate the video of the convenience store robbery? 2) If the cashier is available to testify, witness can take her own recollection and determine that the tape is a fair and accurate depiction of the events FRE 901(b)(3) 3) If the cashier is unavailable to testify, can bring in a witness from the security camera company who can testify as to the way the camera functions and that it is maintained FRE 901(b)(9) a) The tape has to be authenticated by this witness, not the suspect. Go through the chain of custody and have every person ever in possession to testify as to the custody. Verify that the tape is in the same condition as it was during the event c. Silent Witness 1) If witness is unavailable, can use a video tape as a witness 2) Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which “speaks for itself.” 3) Requirements a) evidence establishing the time and date of the photographic evidence b) any evidence of editing or tampering c) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product d) the procedure employed as it relates to the preparation, testing, operation & security of the equipment used to produce the photographic product, including the security of the product itself. e) testimony identifying the relevant participants depicted in the photographic evidence. B. The “Best Evidence Rule” 1. FRE 1002: Requirement of Original a. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required. 2. There is no rule that the best evidence is introduced 3. Proof of Content a. A litigant does not have to prove the content of a writing, recording, or photograph is itself at issue in the litigation when the evidence is itself at issue, i.e. child porn or the tape has independent probative value b/c there is no other witness. 4. Problem 10.6: Alice‟s Restaurant II a. Neighbor saw arsonist drive away and gave the police a card w/ the license plate number on it. Defense objects to the witness‟ testimony which is based on the card b. The best evidence rule only applies if the witness is proving what the evidence says, the content of the evidence. c. She can testify from memory what the license plate number is, but the rule would apply if she said that she was testifying off the card and not her memory. 5. If you’re testifying from personal knowledge (observation, what you heard, what you know), there cannot be a best evidence rule problem even if there is another documented evidence of what happened. 6. Rule 1003: Admissibility of Duplicates a) A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. 7. Rule 1004: Admissibility of Other Evidence of Contents a) The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if1) Originals lost or destroyed: All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or 2) Original not obtainable: No original can be obtained by any available judicial process or procedure; or 3) Original in possession of opponent: At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or 4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue. 8. Seiler v. Lucasfilm a. Seiler sued Lucasfilm based on the idea that Lucas stole his ideas for some of the machines in his movie. The case was dismissed based on the best evidence rule b/c S could not provide any documents pre-dating the movie‟s release and the court held that Seiler had lost or destroyed the originals in bad faith under Rule 1004(1). b. The drawings were considered “the equivalent” of writings and recordings under Rule 1001(1) c. Does the rule require production of the original drawings in this case? 1) In general, yes, original drawings would be required. Under Rule 1002 and 1003, a copy is acceptable as well. Rule 1004 allows for the admissibility of other evidence of contents but only if the documents were not lost or destroyed under bad faith. 2) Rule 1004 allows for oral testimony too but not if there is bad faith present. d. Seiler‟s evidence would not qualify as “exact duplicates” b/c Rule 1001 defines as photographic like, not manual. 9. Problem 10.7: Threatening Calls a. Accuser would listen and transcribe the contents of the tape and then erase the message. Can the transcriptions of the threatening phone call be admitted? b. There is no bad faith here but there is no original or duplicate either. c. Party will have to affirmatively show that the original was not lost or destroyed in bad faith and then the evidence will be admissible. 10. The Verdict clip a. Testimony from the admitting nurse that the she changed the admittance form. She brought in evidence of the form prior to the change she made. Under Rule 1003, could the duplicate be admitted? b. Defense could argue against admitting the document b/c there is a genuine question as to the authenticity of the original since the “original” says 9 hours, rather than 1 c. FRE 1008: Functions of Court & Jury 1) lays out the application of FRE 104(a) & (b) and this rule identifies which rules are judge questions and which are jury questions 2) When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled ordinarily for the court to determine in accordance with the provisions rule 104. However, when an issue is raised (a) whether the asserted ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact determine as in the case of other issues of fact. d. Rule 1003 says that if a copy is in question, bring in the original. e. Here, the original was destroyed since the document was altered/changed. For purposes of the best evidence rule, the “original” is destroyed & no longer exists. hour is of writing to HEARSAY Every time there is a document, have to go through the hearsay analysis b/c by definition a document is an out of court statement. I. Defining Hearsay A. The Basic Rule 1. FRE 801(b): -------------------------2. FRE 801(c): Definitions; Hearsay a. 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. 3. FRE 801(d): Definitions: Statements Which Are Not Hearsay a. 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, or in a deposition, or (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, or (C) one of identification of a person made after perceiving the person or b. Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. 4. Risks of Hearsay a. Risk of misperception b. Risk of faulty memory c. Risk of narrative ambiguity 1) The declarant could mis-speak or be mis-understood by listeners. d. Risk of insincerity 1) Risk that the witness is lying 5. 3 Testimonial Safeguards a. Witness is under oath b. Witness is under demeanor scrutiny by the trier of fact c. Witness is subject to cross-examination 6. The critical question is whether the litigant is offering evidence of the out-of-court statement to prove what the out-of-court speaker was asserting (in which case the evidence is hearsay) or merely to prove that the statement was made and heard )in which case the evidence is not hearsay). 7. OCS (Out of Court Statement) + OFIT (Offered For Its Truth) = Hearsay a. The out of court statement must be intended to be heard and for its truth. 8. Problem 7.1: Affidavit a. ∏‟s chief witness was ill so her statement was taken in an affidavit. Is the affidavit hearsay? b. Yes, it is an out of court statement being offered for its truth c. The oath, notary, etc. has no bearing as to whether the statement is hearsay 9. Problem 7.2: Gesture a. Witness testifies to a gesture that the declarant had made which is the universal symbol for money. Is it hearsay? b. FRE 801(a)(2) says that a statement includes nonverbal conduct of a person, if it is intended by the person as an assertion. 10. Problem 7.3: Quoting Herself a. If a witness testifies to what she said at a police lineup, is it hearsay? b. It is hearsay, the witness can also be the declarant in a hearsay situation. 11. Video Clip a. ∆ testifies that her husband threatened violence against her b. It is not hearsay b/c although it is an out of court statement, when she says that he said that he was going to beat her, the truth of the matter is whether he would have beat her, however the importance is to show her fear and the effect that the statement had on her, not the truth of the matter asserted c. Witness has to testify to the fact that he said it, she heard it, and she was afraid 12. Video Clip a. Witness testifies that it was a policy to travel in pairs to avoid an employees‟ improper conduct. Relevant use of the evidence is to prove the fear of the employees and also to show that the company was on notice. b. The statement to the supervisor is hearsay b/c she is asserting the truth of the statement that she and the employees were afraid of the other male employee. However, for the purposes of giving the company notice, it is not hearsay b/c the truth of the statement is not important. Witness told supervisor and he heard her. 13. Problem 7.6: Ineffective Assistance counsel a. A‟s lawyer told the other ∆, B‟s, lawyer that a could take the B out of the crime scene. Is evidence of the lawyer‟s statement hearsay in an ineffective assistance of case? b. This is a non-hearsay purpose, it is only meant to show that the ∆‟s lawyer had notice, whether the statement was true is not relevant. 14. Verbal Acts a. In a defamation case, the defaming statement is not hearsay b/c the truth of the matter is not important, only that the statement was made and heard. 1) Can‟t prove defamation without the actual statement b. With verbal acts, the truth of the statements are not in it of itself hearsay b/c the truth of the statement may not always be relevant. 1) Perjury, forgery, and contracting are always verbal acts. 15. Impeachment evidence is never hearsay evidence b/c the whole point is that the ∆’s statements are inconsistent. 3 MAJOR CATEGORIES OF NON HEARSAY 1. Effect on Listener 2. Verbal Acts 3. Impeachment B. Defining Assertions 1. When can conduct be used as simple circumstantial evidence v. hearsay? a. It is clear that evidence of conduct must be taken as freed from at least one of the hearsay dangers, mendacity. A man does not lie to himself. Put otherwise, if in doing what he does a man has no intention of asserting the existence or nonexistence of a fact, the trustworthiness of evidence is sufficient. 3. Problem 7.8: Ship Inspection a. Witness testifies to watching a sea captain inspect a ship before later boarding it with his family. b. There is no risk of misperception here; there is a risk of faulty memory present, in case he forgets about a problem; there is a risk of narrative ambiguity if the captain does want his family to die; is there a risk of insincerity, no b/c people don‟t lie to themselves c. Conduct as opposed to speech does not run the risk of insincerity, unless he is acting for an audience, like the site inspector 4. Problem 7.9: Amchitka Holiday a. There were questions regarding the safety of a blast site and the site inspector announced to the reporters that he was taking his family to the site. b. This situation is different and does qualify as hearsay since the conduct is being performed for an audience and in order to assert something, that the site is safe. LOOK AT THE PARTY’S INTENT IN PERFORMING HIS CONDUCT 5. Video Clip of A Few Good Men a. Tom Cruise notes that Santiago had not packed any bags or made any phone calls. Is this hearsay? b. No, b/c Santiago was not intending to assert anything by not packing or by not calling anyone. He was not trying to assert that he was not going to be transferred. 6. Video Clip of Miracle on 34th Street a. All the letters addressed to Santa Claus were sent to Kris Kringle. Is it hearsay? b. No, b/c the Post Office was not trying to assert that the man was Kris Kringle, it was just delivering the mail, but one can infer that this man is Santa Claus 7. The Nature of Assertions a. Conduct 1) Nothing is an assertion unless intended to be one 2) Nonassertive conduct cannot constitute hearsay 3) Sea captain who inspects the boat by himself v. site inspector who publicly brings his family to the site to prove its safety never lying Hence (Not trying to belief. b. A Focus on Context 1) Nonassertive Words a) Very small category b) Involuntary expressions are perhaps the only clear example (e.g. Ouch!). 2) Words Offered to Prove Something OTHER Than What They Assert a) Verbal conduct that fits this category is analogous to the non-verbal conduct of the sea captain. b) Example: Beneficiaries of a will sought to prove the decedent was competent by offering in evidence letters that various persons had written to the testator about business & social matters. i. The letters indicate that the letter writers were operating on their belief that the testator was competent, a belief they felt no need to communicate. ii. Here the question is whether the letter writers might have been lying about their belief that the testator was competent. Because they asserted the testator‟s competence- they never intended to communicate that fact to anyone- they could not have been about it. iii. Using the letters to prove sanity is not an assertive use of the words, since it is in a manner which the authors never intended to communicate. 3) Implied Assertions a) Example: If a friend said “Laura ought to give that dog a bath,” you would naturally conclude Laura‟s dog was dirty. That is what your friend intended to communicate. b) Both express & implied assertions both fit into the FRE 801(c)‟s definition of hearsay. 4) Indirect Assertions a) Sometimes the matter asserted is just one small link in a chain of inferences leading to the ultimate thing to be proved. b) Example: A litigant might offer the declarant‟s statement, “He is going to kill me,” as evidence that the declarant was in fear. i. But “he is going to kill me” is best understood as, “I think he is going to kill me.” To get from that statement to the conclusion that the speaker was in fear, we must assume the truth of the assertion. the statement would be hearsay. c. Defining Assertions: Problems 1) Problem involving party eating a burger to prove the safety of eating beef 2) Police offer‟s conduct of pointing and aiming his gun at a suspect who had just shot him, this is not intended to communicate that the suspect is the culprit intended to communicate that the defendant is the one who shot.) 3) Police answer phone at a suspected gambling den and an anonymous caller calls and tries to place gambling bet. This is not hearsay b/c the caller is not assert that the location is a gambling den, he is just acting under that 4) Officer wants to testify to ∆‟s statement to another co-∆ saying “I didn‟t tell them anything about you.” This is hearsay b/c DA wants to bring the evidence to prove the truth of the matter asserted, that the co-∆ was in fact involved in the crime. THROW IN GRAPH ON PG. 357--------------------------C. Exceptions to the Hearsay Rule: An Introduction 1. Rule 801(d)(1) Prior Statements by Witnesses (A) Prior Inconsistent Statements (B) Prior Consistent Statements (C) Statements of Identification 2. Rule 801(d)(2) Admissions by Party-Opponents 3. Rule 803 4. Rule 804 5. Rule 807 (A) The Party‟s Own Statements (B) Adoptive Statements (C) Statements by Spokespersons (D) Coconspirator‟s Statements Exceptions in Which the Availability of the Declarant is Immaterial (1) Present Sense Impressions (2) Excited Utterances (3) Then-Existing Mental, Emotional, or Physical Condition (4) Statements for Medical Diagnosis (5) Recorded Recollections (6&7) Business Records (8&10) Public Records & Reports Exceptions Applicable Only When the Declarant is Unavailable (b)(1) Former Testimony (b)(2) Dying Declarations (b)(3) Statements Against Interest (b)(6) Forfeiture by Wrongdoing Residual Exception special court] 1. Most of the exceptions to the hearsay rule are traditionally justified by reference to 2 values: necessity & trustworthiness (or reliability). For each exception, there is some reason to think that this hearsay is more reliable than run of the mill hearsay 2. Necessity is perhaps the clearest when the declarant is unavailable. Unavailable is different from physically absent. A witness could be unavailable b/c she asserts a privilege, refuses to testify, or testifies to loss of memory. 3. Some hearsay exceptions apply only if the declarant is present & testifying. Rule 801(d)(1) requires that the declarant be “subject to cross-examination concerning the [out of statement”. II. Statements of Party-Opponents -Rule 801(d)(2)(A) declares that a party‟s own words are “not hearsay” when offered against her at trial. Think of this rule as providing that statements of party-opponents, although hearsay, are nonetheless admissible against their maker. -In both civil and criminal actions the exception for statements of party-opponents extends beyond the party‟s own statements to include those made by her spokespersons, agents, or coconspirators. -Rule 801(d) statements are technically hearsay, but the drafters of the rules have chosen to call them non-hearsay. A. The Party’s Own Words- FRE 801(d)(2)(A) 1. FRE 801(d)(2)(A): Statements which are not hearsay; Admission by party-opponent a. The statement is offered against a party and is the party’s own statement in either an individual or a representative capacity. 2. Problem 7.10: Billables a. ∏ claims that she was injured and can‟t work as well, ∆ wants to bring into evidence records of the ∏ billing over a hundred hours a week after the “injury.” b. It would come in b/c they are her own statements. 1) ∏ may argue that the records weren‟t admissions b/c they were in her interest, career-wise, but statements don‟t have to be against one‟s interest. 3. Problem 7.11: “Take My Blood” a. This rule only applies to the opposing party, here, the defense is trying to bring in the ∆‟s own statements. So, it is hearsay. 4. Why Let in any Statements by the Opposing Party?- Justifications for 801(d)(2)(A) a. Reliability is not at issue b/c they can get on the stand and refute the statement b. The structure of the adversary system makes these types of statements admissible 5. The hearsay statement does not actually have to admit something, it is more like “statements of the opponent,”, it does not have to hurt the other side or say anything, it only has to be relevant and stated by the opponent B. Adoptive Admissions- FRE 801(d)(2)(B) 1. FRE 801(d)(2)(B): Statements which are not hearsay; Admission by party-opponent a. The statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth. b. The easy cases of these is when the person does something affirmative, like says “I agree”; it is far more difficult when the party fails to respond, is silent, or acts tacitly. 2. Problem 7.12: Buddies a. Officer sees a drug sale in the backyard. M says I only had one, but you can get another from my buddy. The B was silent, but got up out of his chair and got a b aggie of crack. b. DA will have to prove 1) ∆ heard the statement made in reference to him a) can prove since he acted consistently right after M spoke 2) that the person was at liberty to respond, had the opportunity & ability to respond 3) that under the circumstances, one would have ordinarily expected him to respond c. The standard is probable human behavior, if the person would likely respond and how, if he was not involved, would we have expected him to jump out of his chair and deny it d. To apply the standard, assume the presumption is false, would we expect him to deny the statement as false (here the reasonable person would probably deny it) 3. Problem 7.13: Jailhouse Meeting a. Daughter visits her father at jail and when she says that she is just going to testify to the truth and doesn‟t that apply to both of us, her father pointed to a sign that said the station may be monitored b. It would be easy to prove that he had heard the statement. c. From the prosecution‟s perspective, if he were innocent wouldn‟t it be more likely for him to deny it since the prosecutor is actually listening d. From the defense‟s perspective, he was Mirandized and may not want to speak, however he was not talking to the police, he was talking to his daughter e. Could go either way, but probably admissible particularly since he was not talking to the police, but rather it was his daughter 4. Silence as an Adoptive Admission (Inconsistent Statement Offered to Impeach) a. Fletcher v. Weir 1) 2 ∆s testify that they were framed. DA wants to offer the ∆s post-arrest silence hearsay to impeach him. Admissible? 2) Supreme Court says that there is no way to use post-Mirandized silence as hearsay on its merits or to impeach the witness b/c it would hurt the ∆ to speak or to stay silent. 3) In the absence of the sort of affirmative measures embodied in the Miranda warnings, it does not violate due process of law for a State to permit crossexamination as to post-arrest silence when a ∆ chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post-arrest silence may be deemed to impeach a criminal ∆‟s own testimony. 4) Here, the court drew the line at Miranda, even though it may give cops incentive to postpone giving of Miranda warnings. b. Hearsay: Miranda and Silence 1) Silence sometimes constitutes an adoption under Rule 801(d)(2)(B). There are 4 preconditions to using silence as evidence of an adoptive admission: a) the statement was heard & understood by the party against whom it is offered; b) the party was at liberty to respond; c) the circumstances naturally called for a response; and d) the party failed to respond 2) Silence also may be used to impeach if the witness’s previous silence is inconsistent w/ his testimony on the stand. Again, one must ask “if it would have been natural, under the circumstances, to assert the fact” at issue. 3) If a person has been advised explicitly that she need not speak & that her words may be used against her, it is no longer natural to expect her to speak. 4) A ∆‟s silence may be used to impeach the ∆‟s testimony, whether or not the ∆ was in custody at the time of the silence in question. c. Adopted admissions are admissible against the declarant. ----------------------------------------------------------------------------------------------------------------------------C. Statements of Agents- FRE 801(d)(2)(C) & (D) 1. FRE 801(d)(2)(C)-(D): Statements Which Are Not Hearsay; Admission by PartyOpponent a. The statement is offered against a party and is (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). b. Examples of FRE 801(d)(2)(C) 1) Publicist 2) Lawyer c. FRE 801(d)(2)(C) is not that necessary since 801(d)(2)(D) is there and encompasses a lot of FRE 801(d)(2)(C) d. With FRE 801(d)(2)(D), there must be an agency relationship, must be stated during the agency, and be within the scope of the agency 2. Mahlandt v. Wild Canid Survival & Research Center a. 3 y.o. boy is found terribly injured and lacerated near wolf. Trial judge excluded evidence re: note that wolf caretaker, P, had left stating that the wolf had bitten the child, a similar oral statement to his boss, and corporate minutes discussing the legal ramifications of the wolf bite 1) Judge excluded the evidence since they lacked personal knowledge since P was not at the scene of the incident and b/c the evidence lacked reliability b. Appellate court held that the note written by P and his oral statement to his boss were admissible against the Research Ctr. b/c P was an agent/servant of the Ctr. and they concerned a matter within the scope of his agency, or employment, and were made during the existence of the that relationship. c. The fact that the statements were made within the company has no bearing b/c communication to an outsider has not generally been thought to be an essential characteristic of an admission. Thus a party’s books or records are usable against him, w/o regard to any intent to disclose to third parties. d. Once agency, and the making of the statement while the relationship continues, are established the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency. e. Hearsay admissions (i.e. agency, co-conspirator, etc.) are not restricted by the requirement of firsthand knowledge. f. Personal knowledge is not a concern and does not apply to admissions b/c reliability isnot an issue in regards to admissions since he can testify himself g. What if the note had said, “Clark my son told me that S bit a child.” Admissible? 1) It makes a difference b/c if he says S bit a child then it shows that he believes the truth, if he says Clark told me, then it shows that he may not believe it 3. Problem 7.14: Shovel & Bucket a. ∏ is injured on icy walkway and wants to admit witness‟ testimony of phone conversation w/ alleged company employee where the unidentified employee said, “Those guys on the day shift were supposed to shovel and salt, but they bagged it and went home early.” Admissible? b. The statement is admissible as long it can be established that he is the employee, the statement itself can be this evidence, as also as it is accompanied with other evidence. It cannot be independently used to establish agency. D. Coconspirator’s Statements- FRE 801(d)(2)(E) & FRE 104(a) 1. FRE 801(d)(2)(E): Statements Which Are Not Hearsay; Admission by Party-Opponent a. The statement is offered against a party and is a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). 2. FRE 104(a): Questions of admissibility generally. a. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court. In making its determination it is not bound by the rules of evidence except those with respect to privileges. b. To determine if an issue is a FRE 104(a) or (b) issue consider whether we can trust the jury to take the evidence and not be influenced by the information they have heard. 3. Rule requires characteristics surrounding the out of court statement: a. Conspiracy b. Pendency c. Futherance 4. Idle chatter can be made between conspirators and may be on the subject of the conspiracy, but are not in furtherance of the conspiracy. Not advancing the ball and won’t be admitted. 5. Bourjaily v. US a. L and an FBI agent arranged the sale of cocaine. L said over the phone that he had a friend who had some questions about the cocaine. The agent spoke to the friend about it. The agent then agreed w/L for a delivery and payment time and to meet in a parking lot. b. With the evidence of what happened in the parking lot and L‟s statements over the phone, the Gov‟t. had established by a preponderance of the evidence that a conspiracy existed and L‟s statements were during and in furtherance of the conspiracy. c. The preliminary questions posed by the coconspirator exception the hearsay rulesuch as whether a conspiracy in fact existed at the time the out-of-court statement was made and whether any such conspiracy included the declarant and the ∆are to be decided by the trial judge under Rule 104(a). 1) The trial judge should resolve such questions by a preponderance of the evidence standard. 2) Judge can consider any evidence, unhindered by considerations of admissibility. d. Without outside evidence, hearsay would lift itself by its own bootstraps to the level of competent evidence. 6. Co-conspirator admissions are almost all verbal acts, since they are almost always agreements. Multiple potential uses as hearsay and non-hearsay. 7. The coconspirator exception almost never applies to a confession made knowingly to the police & implicating one’s associates. The rule requires the statement to have been made “during the course & in the furtherance of the conspiracy.” Such a confession may well terminate the conspiracy. 8. Distinguishing 104(a) Questions from 104(b) Questions a. The preponderance standard of Rule 104(a) is higher than the sufficient-evidence standard of Rule 104(b). Under Rule 104(b), however, only admissible evidence may be used to prove contested preliminary facts. The rule requires “the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” Only admissible evidence, of course, may be introduced. Rule 104(a) cases can consider any evidence, regardless of admissibility. b. Rule 104(a) suggests that all preliminary questions are to be resolved by the court “subject to the provisions of subdivision (b).” And Rule 104(b) addresses only those preliminary questions upon which “the relevancy of evidence depends.” That is Rule 104(b) governs matters of conditional relevance, and Rule 104(a) governs everything else. III. Past Statements of Witnesses & Past Testimony -Declarant must be on the stand -Subject to cross-examination A. Introduction 1. There are 2 instances where a witness‟s past statements do not concern hearsay: a. Rule 613 governs the impeachment of witnesses with past inconsistent statements. 1) Past inconsistent statements, when offered to impeach, are not offered for the truth of what they assert, but merely to show that the witness says different things at different times and therefore should not be believed. b. Rule 612 deals with mechanics of refreshing a witness’s memory. 1) Information used to refresh a witness’s memory is not itself being admitted as evidence & need not be admissible. Rather, once the witness’s memory has been refreshed, the witness simply testifies from memory in the ordinary way. B. Inconsistent Statements Offered to Impeach 1. FRE 801(d)(1)(A): Statements Which Are Not Hearsay; Prior Statement by Witness a. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. 2. If a statement is admitted as an inconsistent statement, it cannot be used for a motion for directed verdict b/c it cannot be used substantively. This is used to impeach, but not under FRE 801(d)(1)(A). This statements comes in under Rule 613 XEROX PG. 386 3. US v. Ince a. Police officer wrote down witness‟ statement that the ∆ confessed to her, but testimony was not under oath. At trial, even after refreshing her memory, the witness would not testify that she heard the statement. b. Gov‟t. had the officer testify to the witness‟ statement that she heard the ∆ confess in order to impeach her. c. Appellate court found the officer‟s testimony improper. DA is not permitted, in the name of impeachment, to present testimony to the jury by indirection which would not otherwise be admissible. d. Rather, in determining whether a Gov‟t. witness‟ testimony offered as impeachment is admissible, or on the contrary is a “mere subterfuge” to get before the jury substantive evidence which is otherwise inadmissible as hearsay, a trial court must 403 and weigh the testimony‟s impeachment value against its the ∆ unfairly or to confuse the jury. 1) This type of impeachment will be rare b/c probative value is almost always little. 2) If testimony does no damage, impeachment evidence has no probative value. e. Here, the statement was not made under oath, so it was not to be admitted under FRE 801(d)(1)(A), but rather a Rule 403 analysis should be applied. C. Inconsistent Statements Offered Substantively- FRE 801(d)(1)(A) 1. FRE 801(d)(1)(A): Statements Which Are Not Hearsay; Prior Statement by Witness a. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. 2. Problem 7:18: Spousal Abuse a. Wife at grand jury hearing testified that her husband beat her, at trial testified differently. Can the DA offer the transcript of the grand jury hearing substantively or just to impeach? b. DA should be able to offer it substantively under FRE 801(d)(1)(A) b/c she had made the statement under oath at a grand jury hearing. 3. Problem 7:19: Spousal Abuse II a. What if the wife claimed that she can‟t remember what happened 1) If she has genuine memory loss, you can try to refresh her memory or try to admit the evidence b/c the witness is available. 2) If the memory loss is feigned, then the statement may be admitted to impeach. D. Past Consistent Statements 1. FRE 801(d)(1)(B): Statements Which Are Not Hearsay; Prior Statement by Witness a. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is 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. 2. Video Clip a. Witness testifies that the ∆ made a confession; Defense tries to prove that the witness is motivated by a lighter sentence. If defense can show that the witness had told his mother that he may get a lighter sentence if he testified, can his mom‟s testimony be admitted? b. It depends on when his motive arose, before or after the out of court statement was made c. One of the problems with the pre-motive requirement is that it is difficult to determine when the improper motive arose. 3. Tome v. United States a. 4 y.o. hesitantly testified that she was molested by her father. 6 witnesses testified that the girl had told them that she had been molested. The Court reversed the conviction b/c the girl‟s motive to live with her mother pre-dated her out of court statements to the witnesses. b. The most probative statements are the statements made pre-motive. Statements made after the improper motive is established are far, far less probative. E. Statements of Identification 1. FRE 801(d)(1)(C): Statements Which Are Not Hearsay; Prior Statement by Witness a. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person. 2. Statements of Prior Identification are admissible b/c the witness will be more likely to recognize the suspect right after the incident and the memory is fresher, also the courtroom setting is very suggestive. a. This is one of the rare cases when the in court testimony will almost always be weaker than the out of court statement. 3. Commonwealth v. Weichell apply FRE tendency to prejudice a. Witness testifies that ∆ was the man he saw commit the crime then afterwards meets with police officer to draw up a composite of the suspect, is the picture admissible? b. DA argues it should be b/c either the composite is simply a manifestation of the admissible testimony or b/c the composite isn‟t a “statement.” 1) Court does not address the harder question which is if a composite constitutes a “statement” as defined by Rule 801(a). c. If the verbal identification testimony is admissible, so is the composite which is just a sum/manifestation of the testimony/statements. d. The sketch artist does not need to testify b/c the artist made no statements, the artist was just manifesting the witness‟ statements. e. Police officer can testify as to what the declarant/witness said as long as the declarant is at some point put on the stand and subject to cross-examination. 4. United States v. Owens a. Does FRE 802 bar testimony concerning a prior, out of court identification when the identifying witness is unable, b/c of memory loss, to explain the basis for the identification? 1) FRE 802: Hearsay Rule a) Hearsay is not admissible except as provided by these rules or by other rules from the Supreme Court or Congress. b. Victim/witness could not initially remember the attack, later in the hospital he could remember it and identified his attacker, at trial, due to his injuries, he was not able to recall the attack, but he could remember being certain when he made the statement of his attacker‟s identity c. The premise for Rule 801(d)(1)(C) was that, given adequate safeguards against suggestiveness, out-of-court identifications were generally preferable to courtroom identifications b/c a witness‟ memory will fade, making the ID less reliable. d. Unavailability as a witness: These circumstances include not only absence from the hearing, but also claims of privilege, refusals to obey a court’s order to testify, and inability to testify based on physical or mental illness or memory loss. e. FRE 802 is not violated by admission of an identification statement of a witness who is unable, b/c of a memory loss, to testify concerning the basis for the identification. f. Under Rule 801, he was on the stand, under oath, and responds willingly to questions, therefore he was “available.” XEROX PGS. 404 IV. Hearsay Exceptions Under Rule 803: “Availability of Declarant Immaterial” -Generally, live testimony is better than hearsay which is better than a complete loss of evidence. -However, Rule 803 hearsay is often better than in court testimony b/c the circumstances under which the statement was made could foster guarantees of truthfulness -Reliability and Necessity are the justifications for admitting hearsay (R+N=1) -Sometimes necessity may be zero, but reliability is so strong, it can be 1 FRE 803: Hearsay Exceptions: Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a 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. 7) Absence of entry in records kept in accordance with the provisions of paragraph (6). 8) Public records & reports. 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. 23) Judgment as to personal, family, or general history, or boundaries. A. Present Sense Impressions & Excited Utterances- FRE 803(1) & (2) 1. FRE 803(1), (2): Hearsay Exceptions: Availability of Declarant Immaterial a. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. 2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. 2. Problem 7/27: Spousal Abuse IV a. Wife calls police after a fight w/ her husband and when they arrives she claims that he beat her, at trial she denied that he beat her, is her prior statement admissible? b. For a statement to be admitted under FRE 803(1), the statement must be made contemporaneous with the incident. It must be simultaneous. c. Too much time is left open here her to fabricate her story. d. Far fewer risks of mis-statement if it is a contemporaneous statement, no chance of forgetting, also less time for insincerity e. For FRE 803(2), the statement must be related to the startling event & linked in time. f. A FRE 803(2) statement must be a spontaneous statement, not a Q & A situation. 1) Also consider what type of question is being asked, is it a leading question, or an open-ended question? 3. Problem 7:28: “Joe Puleio” a. Bartender hears a shot and a scream and asks who shot the gun, E yelled out “Joe Pulieo”, is the bartender‟s testimony re: the statement admissible? b. Inadmissible, Court knows nothing about the declarant, don‟t even know if she saw the shooting 4. Problem 7.29: Dog Mauling a. Woman was bitten by dog and at lunchtime told her partner that she had told the dog owner “You need to control your dog!” and later that day she described the incident in more detail. Is her testimony admissible? b. Re: the statement where W said, “You need to control your dog!” 1) This statement goes to the purpose of notice to prove that the dog owners were told that the dogs were dangerous. Not offered for the truth of the matter asserted. Just to prove that the statement was stated and heard. c. Re: Smith comes home and W provided more details about the incident 1) For these to be admitted as exciting utterances, have to prove that she was still under the stress of the startling event, may be difficult to prove. d. Excited Utterances almost always come with an exclamation point or in all CAPS. 1) Excited Utterance exception has no time limit, fact sensitive, depends on the the person, etc.. Very subjective. (FRE 104(a) question for the judge) e. Problem here is that there could be enough time for it to be too far removed to be a present sense impression. The time requirement is strictly enforced. 5. Problem 7.30: Dog Mauling II a. Elderly woman made a 911 call during the dog mauling and said that it sounded like the woman could not control the dogs. Admissible by the defense? 1) There may be a problem with accurate first hand knowledge since she is in her apartment not in the hallway witnessing the event, also she cannot differentiate who is screaming, the dog owner or victim, need more info 6. Rationales for These Exceptions a. When startling events occur and the declarant is under the stress of the trauma, there is no time to reflect, so the declarant will not lie (heightened reliability). b. However, during a time of great stress, the person‟s senses may be warped rather than extra perceptive. B. Statements of Then-Existing Condition- FRE 803(3) 1. FRE 803(3): Hearsay Exceptions: Availability of Declarant Immaterial a. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 1) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will. b. Problem with this exception is that every statement says something about the declarant‟s state of mind, thus, the pertinent question is whether the statement is relevant. c. This exception is based on contemporaneousness as well. (less risk of insincerity, unreliability) d. Rule 803(1) & Rule 803(3) overlap, but 803(3) is more narrow e. The statement itself must be talking about something forward looking, in the future. The statement cannot be reflective. 2. Mutual Life Ins. Co. v. Hillmon a. Woman claims that her husband is dead and wants to recover on the life insurance claim, Ins. companies say that it is a false claim. Defense sets forth letters written by W stating that he had met H and would be traveling with him (evidence that H may have killed W and hid). Are the letters & surrounding testimony admissible? b. While a person is still alive, his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander‟s recollection of what he then said, and is less trustworthy than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation. c. Court holds that the letters should have been admitted b/c he sounded very happy & positive, not suicidal. 1) When he wrote the letters there was a reduced risk of insincerity & no chance of faulty memory, since he spoke to his current sense of mind. 2) Can use his intent in the letters to prove that it is more probable that he went to Colorado as planned d. The statements to prove his state of mind are admissible, but statement about him actually going to Colorado are inadmissible. e. Question is how broad is the Hillmon doctrine. Can it only prove the intent of the declarant or does it extend to the intent of 3rd parties? 3. Problem 7.31: Kidnapper a. Teenager is discovered missing after he told friends that he was going to meet ∆ for a drug deal and then be back. Is this testimony admissible to prove not the teenager‟s subsequent conduct? Can it be admitted to prove that the ∆ kidnapped him? b. Yes, it can be used to prove that the teenager did not leave voluntarily. Shows his intent c. No, it cannot be used to prove the future conduct of another person, in this case the ∆. d. Since this was the only evidence to put the ∆ at the scene, the court did not want to reverse the conviction and let the ∆ go, so the court added limitations on the use of the evidence, it must have particularized indicia of truthfulness. 4. Shepard v. United States a. Husband claims that his ill wife was suicidal and DA wants to introduce her dying declaration claiming that her husband had poisoned her not to prove her present state of mind, but rather to prove that the husband had killed her. b. Can the jury make the distinction between what the statement says about her statement of mind rather than his act? c. Cardozo says that no jury can make that differentiation, Cardozo in essence makes a FRE 403 analysis, but the probative value does not outweigh the unfair prejudice risk d. Court separated a statement “of intention, casting light upon the future” which it thought properly admissible- from a “declaration of memory, pointing backwards, to the past”- which it thought should stay out. 5. For extortion cases, there can be an unfair prejudice but the probative value is too high to exclude the evidence since the case is based on the hearsay. 6. How about in a murder case to show the victim‟s fear. Is the victim‟s fear relevant? Yes, the inference from the fear would be that the victim has a reason to be afraid. Risk of unfair prejudice is probably high and the evidence will likely be excluded. 7. FRE 803(3) allows for evidence related to a testator‟s intent or acts b/c the person is dead and unavailable, so this evidence is necessary. The statement has to be related to the execution of the will, terms of the will, identifying people in the will, etc.. Most testator information will be admitted. C. Statements for Medical Diagnosis- FRE 803(4) 1. FRE 803(4): Hearsay Exceptions; Availability of Declarant Immaterial a. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 1) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 2. Problem 7.32: Elder Abuse a. 80 y.o. man calls lawyer and says that his caretaker had pushed him during and argument, he hit his head falling and wanted to alter his will to reduce her inheritance from him. He then saw the doctor and said the same thing and that he now has headaches and nausea. Are the statements to the lawyer, to the doctor re: injuries, to the doctor re: ∆ pushing him admissible? b. Is the lawyer‟s statement admissible to prove that he had fallen and hit his head? 1) No, b/c there is a reliability issue since with doctors there is an assumption of truthfulness. The declarant has no heightened motivation for truth telling. c. How about the doctor‟s testimony? 1) Dr. can testify as to the injury b/c there is a presumption that the patient will tell the truth. The Dr. will also be able to testify that the patient said that M pushed him b/c d. Statements of fault are not reasonably pertinent to medical diagnosis or treatment. (Risk of insincerity) September 23, 2003 -Cal Evid Code §1235- Prior inconsistent statements are ALWAYS able to be brought in for the substance of the statement, not just to impeach the witness -Cal Evid. Code §1251- Statement of declarant‟s previously existing mental or physical state: Subject to §1252, evidence of a statement of the declarant‟s state of mind, emotion, or physical sensation including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at time prior to the statement is not made inadmissible by the hearsay rule if: (a) The declarant is unavailable as a witness; and b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical emotion. -CA allows for lots of situations for backward looking statements, not limited to testator, so long as qualifications are met. -There is no CA equivalent to FRE 803(4) which is generally applicable -Cal Evid Code §1253 copied FRE 803(4) except is limited to only children under 12 (Tender Years Exception) 3. United States v. Iron Shell a. ∆ assaulted and tried to rape a 9 y.o. girl. In response to questions to the doctor, the girl said that she had been dragged into the bushes, had her clothes removed, and that the ∆ tried to rape her. ∆ argues that these statements are not admissible under 803(4) b/c they are not pertinent to the medical diagnosis & treatment and b/c the Dr. would not have examined differently. b. Rule 803(4) admits 3 types of statements: 1) medical history 2) past or present sensations 3) inception or general cause of the disease or injury c. In regards to whether the statements were reasonably pertinent to diagnosis or treatment the analysis focuses upon the patient & relies upon the patient’s strong motive to tell the truth b/c diagnosis or treatment will depend in part upon what the patient says. It is thought that the declarant motive guarantees trustworthiness sufficiently to allow an exception to the hearsay rule. 1) The principle recognizes that life & death decisions are made by physicians in reliance on such facts & as such should have sufficient trustworthiness to be admissible in court. d. 2 Part Test 1) Is the declarant’s motive consistent w/ the purpose of the rule? 2) Is it reasonable for the physician to rely on the information in diagnosis or treatment? e. Here, it is important to note that the questions asked had to do with what happened rather than who assaulted her. f. It is enough that the information eliminated potential physical problems from the doctor’s examination in order to meet the test of Rule 803(4), it did not have to lead to a different examination. g. It is not necessary to find that the fact that the doctor took the information is prima facie evidence that it is pertinent. A close examination of the facts & circumstances in each case is required. h. Defense could argue that the child had a motive to please the doctor, but probably not viable, which is why the defense is arguing that the doctor is serving more as an investigator rather than a doctor i. The rule follows the assumption that the patient will be honest with his doctor, but it has a loophole if the patient is the ∏ in a personal injury incident and wants to exaggerate his ailments. j. The testimony that the doctor relies on can be offered for the truth of the matter asserted, so long as his reliance was reasonable; not just used to show his diagnosis‟ basis k. What if Lucy had also identified the ∆ to the doctor? Admissible by the doctor? 1) Defense would argue that the statement of fault would not help the doctor diagnose or treat the witness. 2) Could argue that the identity of the violator could be relevant if you don‟t want the child to be put back in the abusive situation (e.g., if it is a family member who is abusing) 4. FRE 803(4) focuses on the doctor, not the declarant like the other exceptions 5. Problem 7.33: Child Abuse I a. Child had a slap mark and a broken arm. Father said he slapped his 4 y.o. and he fell off the porch. Dr. asked child what happened and the child said that he had been playing w/ his father‟s records and that it got dirty, so his father twisted his arm. b. It looks like a statement of fault, but it would be admissible b/c of the Dr‟s professional responsibility and must treat the social dynamic of the family by not placing the child back in the dangerous situation. 6. Problem 7.34: Child Abuse II a. Dr. testifies that he never talked to the 5 y.o. child about “telling the truth.” b. It could be argued that the testimony should be included since the young child does not have the motive assumed by the rule, since the child wouldn‟t appreciate the need to be honest c. In child abuse contexts, courts have applied only a “reasonable reliance” factor, but that is wrong, the motive factor should still be considered (courts are blurred as to the effect in elder abuse) 7. Problem 7.35: Food Poisoning a. M‟s husband is home sick and says he ate bad meat, pointing to empty carton from DD. b. Can M‟s testimony about her husband‟s statement & gesture be admitted to prove that he ate from DD? For 803(4), the statement need not be made to a doctor, can be to an ambulance driver, nurse, or even a family member. The important aspect is the purpose of making the statement. Could argue that the declarant had a personal knowledge problem, but probably not. The problem is there is a statement of fault which won‟t help the medical diagnosis or treatment. So, probably inadmissible. c. How about nurse‟s testimony that when M called she said that her husband had eaten bad meat from DD if offered to prove that M‟s husband ate from DD? Problem w/ statement is that there are 2 layers of hearsay. Have to find exceptions for both statements. Probably okay that the statement is made via the family member, since the Advisory Comm. allowed for statements to be made to family members, assuming the family member has a motive to be truthful. Still have to argue relevance of identifying DD d. How about M‟s testimony that when the Dr. arrived he said that the husband had signs of arsenic poisoning if offered to prove that he had signs of arsenic poisoning? M is not qualified to give a medical diagnosis since she is not the healthcare provider. Statements between doctors, however, are admissible, since the motive of helping the patient. Could admit the evidence by having the doctor testify to his opinion or admit the doctor‟s record. Or could admit as effect on listener to show why she took patient to hospital. D. Refreshing Memory & Recorded Recollections- FRE 803(5) & 612 1. FRE 803(5)-Hearsay Exceptions; Availability of Declarant Immaterial a. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 1) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. 2. FRE 612: Writing Used to Refresh Memory a. Except as otherwise provided…if a witness uses a writing to refresh memory for the purpose of testifying, either1) while testifying, or 2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. 3. Problem 7.36: License Plate a. One witness saw suspicious activity and kept repeating the license plate number, while the other witness wrote the number down on a candy wrapper. She is certain she accurately recorded what the other witness said. At trial, the writer was not able to remember the number even w/ the wrapper? Is the candy wrapper admissible at trial? 1) 2 layers of hearsay, since the writer did not see the license plate, 1) chanter told the writer, 2) wrapper: Need exception for both 2) 1st layer could fall under present sense impression since the declarant is perceiving the event at the time, narration 3) 2nd layer depends on whether it falls under FRE 803(5), it would be admissible b/c the situation satisfies all 4 requirements of 803(5) 4) The wrapper would be able to be read into evidence, but not received as an exhibit. 5) The evidence is not admitted as exhibit b/c the wrapper is only brought in for need to refresh the witness‟ testimony, not as independent evidence. So, the recorded statement made when the memory was fresh serves as a substitute for the witness‟ fresh memory. Fear is that the jury will give the testimony too much weight, even though it is only the equivalent of witness‟ oral testimony fresh. Written testimony is always given more weight than oral testimony, which is not necessarily right. 6) But depo transcripts can be offered into exhibit, but only for impeachment purposes b. The witness who saw the number was not able to remember the number, but did after he read and put down the wrapper. Is this procedure admissible? Yes c. Is the wrapper admissible now that the other witness has testified? No, b/c written testimony is offered too much weight compared to oral testimony. Only read into evidence 4. Johnson v. State a. Surviving victim of murder had given his statement to the police but upon trial could not refresh his memory, even after reading the statement. All he could authenticate was his signature on the statement and that the memory was fresher when the statement was made and that he can‟t remember. Is the statement admissible? b. Rule 803(5) requires: 1) the witness must have had firsthand knowledge of the event, 2) the written statement must be a memorandum made at or near the time of the event while the witness had a clear & accurate memory of it 3) the witness must lack a present recollection of the event, and 4) the witness must vouch for the accuracy of the written memorandum. c. To meet the 4th requirement, the witness may testify that she presently remembers recording the fact correctly or remembers recognizing the writing as accurate when she read it at an earlier time. 1) But if her memory is less effective, it is sufficient if the witness testifies that she knows the memorandum is correct b/c of a habit or practice to record matters accurately or to check them for accuracy. 2) At the extreme, it is even sufficient if the individual testifies to recognizing her signature on the statement & believes the statement is correct b/c she would not have signed it if she had not believed it true at the time. 3) However, the witness must acknowledge at trial the accuracy of the statement. An assertion of the statement‟s accuracy in the acknowledgement line of a written memorandum or such an acknowledgement made previously under oath will not be sufficient. No statement should be allowed to verify itself, esp. by boilerplate language routinely added by police, lawyers, or others experienced in litigation. d. Court is most concerned about the 4th element of the witness vouching for the statement‟s accuracy. e. Courts generally believe that even after 2 or 3 years, one‟s memory can still be fresh. f. Trustworthiness is heightened since we know that the declarant will be subject to crossexamination. E. Business Records- FRE 803(6) & (7) 1. FRE 803(6): Hearsay Exceptions; Availability of Declarant Immaterial a. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: b. Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. c. Business people have incentive to keep records accurate when part of regularly conducted business. Also, inefficient to have to call every business person to stand to testify. Likewise, the people probably won‟t remember taking the record down since they won‟t remember routine record taking. The source must have personal knowledge, which makes it okay even if there is other hearsay within the same business. 2. FRE 803(7): Hearsay Exceptions; Availability of Declarant Immaterial a. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: b. Absence of entry in records kept in accordance w/ the provisions of (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance w/ the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. September 25, 2003 -What if patient wanted to offer a record that he had told nurse he had eaten and he got wrong treatment from the Dr. -admissible as non-hearsay for the effect on reader (i.e., the Doctor was on notice) -Admissible for truth of the matter asserted under 803(4) b/c it was said for medical diagnosis/treatment -No Doctor-patient privilege b/c that privilege is waived by conduct when the patient files suit 3. Palmer v. Hoffman a. In drafting Rule 803(6), Congress intended to relax the hearsay rule “in one respect only, i.e., that where there is a regular system of making entries, and the system is such as to be „likely to ensure accuracy,‟ there is no necessity of introducing the testimony of the entrants. b. The statute does not permit the introduction in evidence of a hearsay statement … concerning an accident, if the statement was prepared after the accident has occurred, where the person who makes the memorandum or report knows at the time of making it that he is very likely, in a probable law suit resulting to that accident, to be charged w/ wrongdoing as a participant in the accident, so that he is almost certain, when making the memorandum or report, to be sharply affected by a desire to exculpate himself and to relieve himself or his employer of liability. c. Car driver is hit by a train, claims that the train conductor never blew a whistle nor lit his headlight. ∏ is trying to exclude the railroad‟s interview transcript claiming that it was part of its regularly conducted business. d. Court held that the engineer‟s statement was not a record made for the systematic conduct of the business as a business. An accident report…is not typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions w/others, or to provide internal controls. The fact that a company makes a business out of recording its employees‟ version s of their accidents does not put those statements in the class of records made “ in the regular course” of the business within the meaning of the Act. e. What if the federal government required that these types of records be taken after accidents? Would this change the Court‟s conclusion that these types of records would become regular practice of that business activity? 1) Probably not b/c the reports still wouldn‟t be part of the regular practice of the business and there is a reliability risk. f. Business records are not per se admissible, must consider the circumstances. Federal regulation can provide for more trustworthiness if required, but not necessarily always. Very fact-sensitive. g. The burden of the trustworthiness is on the party objecting to the admission of the document. h. Railroad could argue that the document was work-product if it is bad for them, admit as business record if it is good for them. 4. Problem 7.37: Lawn Mowers a. D sued lawn mower manufacturer for injuries sustained during her use. She claimed that the plug was defective b/c it was loose. b. At trial, can D offer to submit 2 merchandise return records from a service counter where the cashier wrote that other parties had returned the items for having loose cords, but the cashier never checked the items? 1) A manager could testify b/c the witness does not have to be familiar w/ the particular record, he is familiar with the routine practice of the preparation of the records and that is sufficient. 2) The record would not be admissible b/c the information on the record came from the customer, unverified by the cashier. The customer is not part of the business and has a different motivation from the business. So, all 4 risks of hearsay are present. 3) Often times these records will be admissible only as to show notice, not for the truth of the matter asserted. So, manufacturer is on notice of the problem. c. What if the manufacturer wanted to turn in D‟s return form which stated that she returned the mower for clogging? Is this return form admissible? 1) This would still not be admissible under the business records exception for the same reason. Would be admissible under admission by party opponent under 801(2)(A). 5. United States v. Vigneau a. ∆ charged with drug related crimes claims that Western Union forms with his name on them should not be admitted as evidence b. When a clerk records the receipt of an order over the telephone, the regularity of the procedure, coupled with business incentives to keep accurate records, provide reasonable assurance that the record thus made reflects the clerk‟s original entry. c. But no such safeguards of regularity or business checks automatically assure the truth of a statement to the business by a stranger to it, such as that made by the bystander to the police officer or that made by the money sender who gave the form containing his name, address, and telephone number to Western Union,. d. The evidence could be admitted w/ sufficient circumstantial evidence that the forms were linked to the ∆ (e.g. forms found in ∆‟s car or if the clerk checked the sender‟s ID to match the name on the form). However, the gov‟t. relied solely on the forms, not on the location of the others. The location was not used enough independently to uphold the convictions. 1) In this analysis, the Court is applying a harmless error analysis. The Court is determining whether or not the misapplication of the Business Records exception was harmless error relative to the records found in ∆‟s car. Court found there was insufficient independent evidence. e. The hearsay statement itself can be supportive, but cannot alone beyond the form itself to show that ∆ sent each of the forms. DA has to have separate independent evidence. f. Business Duty Requirement of 803(6)- (implied) 1) Business duty requires that all statements in record have to have been made by someone who had a duty to work for the business (to ensure trustworthiness). 6. Business Records exception is very broad, almost anything is a business record (except documents kept only for one‟s self, like a diary). Boundaries include statements only made by people in the business and there is a trustworthiness boundary (excluded if the circumstances show risk of untrustworthiness). F. Public Records & Reports-FRE 803(8) & (10) Records, reports, statements or data compilations setting forth -Activities of the office or agency, like court report documents -matters observed pursuant to a duty imposed by law 1. FRE 803(8): Hearsay Exceptions; Availability of Declarant Immaterial a. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: b. Public Records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. c. Criminal cases are excepted in order to maintain criminal ∆s rights to fair trial and face accusers. d. Generally, admissions doctrine does not apply to the government. Evidence can only be admissible for impeachment or under business records exception. e. Also, question is who are law enforcement personnel? Courts have generally held that it applies to anyone in an agency with a law enforcement purpose, including chemists, coroners, lab technicians, etc.. Broad interpretation. 2. Beech Aircraft Corp. v. Rainey a. Does FRE 803(8)(c) which provides an exception to the hearsay rule for public investigatory reports containing “factual findings.” extends to conclusions and opinions contained in such reports b. Pilots‟ families are suing the aircraft manufacturer and the aircraft manufacturer wants to offer a Naval officers report that the incident may have been caused by pilot error. 1) ∏s argue that even though the report is called factual findings, the ∏s argue that the report draws conclusions, which are not admissible c. Evaluative reports are admissible “unless the sources of information or other circumstances indicate lack of trustworthiness.” This trustworthiness inquiry-and not an arbitrary distinction between “fact” and “opinion”- was the Committee‟s primary safeguard against the admission of unreliable evidence, and it is important to note that it applies to all elements of the report. Thus, a trial judge has the discretion, and indeed the obligation, to exclude an entire report or portions thereof-whether narrow “factual” statements or broader “conclusions”- that she determines to be untrustworthy. d. Rather than requiring that we draw some inevitably arbitrary line between the various shades of fact/opinion that invariably will be present in investigatory reports, we believe the Rules instructs us to admit “reports…setting forth…factual findings.” e. The Rule‟s limitations and safeguards lie elsewhere: First, the requirement that reports contain factual findings bars the admission of statements not based on factual investigation. Second, the trustworthiness provision requires the court to make a determination as to whether the report, or any portion thereof, is sufficiently trustworthy to be admitted. f. The structure of 803(8)(C) makes it sound like it would include opinions and conclusions when compared to the structure of 803(8)(B). g. Court‟s considerations can be the timeliness of the investigation, investigator‟s skill or experience, whether a hearing was held, and possible bias when reports are prepared with a view to possible litigation. 3. Police Reports & Business Records a. Rule 803(8) creates a hearsay exception for certain public records and reports. The rationales for the exception, according to the advisory committee, are “the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record.” By their clear terms, however, sections 803(8)(B) and 803(8)(C) do not extend to the reports of law enforcement personnel or evaluative reports if offered against the ∆ in a criminal case. b. Confrontation Clause: It was the clear intention of Congress to make law enforcement reports absolutely inadmissible against ∆s in criminal cases b/c it wanted to avoid impinging upon a criminal ∆’s right to confront the witnesses against him. c. The 5th & 9th Cir. have rejected the breadth of Oates, and reason that the exclusionary provision of Rule 803(8(B) was only intended to apply to observations made by law enforcement officials at the scene of a crime or in investigating a crime, and not to reports of routine matters made in nonadversarial settings. 1) Oates said that nothing from a law enforcement agency would be admissible. d. Does 803(8)(C) block evidence admissible by 803(5) (past recorded recollection)? Probably not, business records exception cannot be used to get around public records exception. However, other exceptions could be used, like 803(5) b/c there is no risk since the witness is cross-examinable. e. Hayes case is different b/c the records were not made during an adversarial period b/c there was no investigation or prosecution pending. These records were created during the regular course of the gov‟t‟s. business and the court held that they were admissible as business records, since it was a non-adversarial circumstance. 4. FRE 803 (10): Hearsay Exceptions; Availability of Declarant Immaterial a. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: office or 902, 1) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence of nonexistence of a matter of which a record, report, statement, or data compilation, in any form was regularly made and preserved by a public agency, evidence in the form of a certification in accordance with rule or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. September 30, 2003 Minor 803 Rules 803(13): Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. 803(16): Statements in ancient documents. Statements in a document in existence 20 years or more the authenticity of which is established. 803(17): Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used & relied upon by the public or by persons in particular occupations. 803(18): Learned treatises. To the extent called to the attention of an expert witness upon crossexamination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. 803(21): Reputation as to character. Reputation of a person‟s character among associates or in the community. 803(20): Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, & reputation as to events of general history important to the community or State or nation in which located. V. Hearsay Exceptions Under Rule 804: “Declarant Unavailable” A. Past Testimony- FRE 804(a) & 804(b)(1) 1. FRE 804(a): Hearsay Exceptions; Declarant Unavailable a. Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant‟s statement; or 2) persists in refusing to testify concerning the subject matter of the declarant‟s statement despite an order of the court to do so; or 3) testifies to a lack of memory of the subject matter of the declarant‟s statement; or 4) is unable to be present or to testify at the hearing b/c of death or then existing physical or mental illness or infirmity; or 5) is absent from the hearing & the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant‟s attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. a) Party will have to prove a showing that he has undertaken reasonable means, i.e. find the witness, subpoena the witness, have them in possession, don‟t let her go, etc. 2. FRE 804(b)(1): Hearsay Exceptions: Declarant Unavailable a. Hearsay exceptions. The following are not excluded bythe hearsay rule if the declarant is unavailable as a witness: 1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance w/law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest had an opportunity & similar motive to develop the testimony by direct, cross, or redirect examination. 3. Problem 7.20: Spousal Abuse III a. Woman testified at a grand jury hearing w/ only the prosecutor and the jurors present that her husband had hit her. At trial, she refused to testify even when threatened with contempt of court. Is the grand jury hearing transcript admissible? b. The witness is unavailable under 804(a)(2) since she won‟t testify despite order of the court. Her testimony will be excluded under 804(b)(1) b/c ∆ had no chance to crossexamine during the grand jury hearing. c. 804(b)(1) is concerned about protecting the party who the evidence is offered against, so the party‟s lawyer (or predecessor in interest) is the one that must have the opportunity & similar motive. d. Cannot admit grand jury testimony against ∆s under Rule 804(b)(1) b/c ∆ has no opportunity to cross-examine the witness e. Study Tip: Draw out each proceeding and the parties and their adversaries 4. Problem 7.21: Roadway Incident a. C & M were involved in a car accident when C was driving drunk. M testified in a civil suit about the accident and was cross-examined by C‟s lawyer. If M is unavailable due to injury to testify at the criminal trial, can the DA read M‟s prior testimony into the record? b. DA will argue that C had a motivation to win the civil suit by performing a full and complete examination. c. C will argue that it is a different matter (Tort v. DWI) b/c his insurance company will pay, not him, so he may not have the same incentive b/c insurance premium v. freedom. d. Rule has a big gray area, could go either way 5. US v. DiNapoli a. Issue: Whether the prosecution had a “similar motive to develop” the testimony of 2 grand jury witnesses compared to its motive at a subsequent criminal trial at which the witnesses were unavailable. b. There is a criminal trial regarding a “Club” of 6 concrete construction companies rigging bids. In a grand jury trial, 2 witnesses formerly employed by 1 of the companies testified under grants of immunity and denied awareness of the bid-rigging scheme. During the hearing, the DA pushed DeMatteis further, but he continued to deny any knowledge (the DA secretly had contradictory wiretaps), so the DA disclosed 1 wiretap which was already publicly known. Bruno also lied on the stand and the prosecutor told him that the grand jury doubted his honesty. Bruno‟s attorney later acknowledged that he had lied and offered to have Bruno sign an affidavit, which the DA declined. c. At trial, ∆s tried to offer D & B‟s grand jury testimony when they both pled the 5 th Am., but the judge would not admit them b/c the “motive of a prosecutor in the investigatory stages of a case is far different from the motive of a prosecutor in conducting the trial” and hence the “similar motive” requirement of FRE 804(b)(1) was not satisfied. d. Whether the degree of interest in prevailing on an issue is substantially similar at 2 proceedings will sometimes be affected by the nature of the proceedings. e. Prosecutor had an interest in not disclosing all that he knew, only enough to get indictments. The standard of proof is so much lower that the DA‟s status as an “opponent” of the testimony does not necessarily create a motive to challenge the testimony that is similar to the motive at trial. (or carefully testimony. f. The proper approach in assessing similarity of motive under Rule 804(b)(1) must consider whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove disprove) the same side of a substantially similar issue. g. Here, DA had no interest in proving the witness‟ dishonesty b/c the ∆s had already been indicted and the grand jury had indicated to the DA that they did not believe the denial, also the difference btn. the 2 proceedings is apparent in that the DA limited questions and did not take the witness‟ offer to clear up his h. If the witnesses were being presented by the gov‟t. and they pled the 5th, the DA would offer immunity and the witnesses would have to testify or be held in contempt. However, here they are being offered by the defense & the DA does not want their testimony to be heard, so he offers no immunity. i. Defense here argues that the court should not follow a narrow reasoning b/c the DA can offer immunity if beneficial and not offer immunity and the evidence is excluded, win both ways. j. Consider how much the prosecutor examines the witness. If it is limited, there is an inference that the prosecutor has a different motive. k. Very fact sensitive inquiry l. Distinction btn. criminal & civil cases is that in criminal cases, must offer former evidence against the same party that was in the prior proceeding. In civil cases, the party can be the same party or a predecessor in interest. 6. Lloyd v. Am. Export Lines, Inc. a. A is injured in a fight while on E‟s boat and sues E for negligence b/c the boat was aware of the other fighter‟s dangerous propensities. At trial, the jury was not permitted to hear any version of the story other than A‟s, including the other fighter L‟s. L had his case dismissed when he failed to appear 7 times at hearings. L had given his testimony had a Coast Guard hearing while under oath and subjected to cross when accused of wrongfully assaulting and battering A with his fists and wrongfully failing to perform his duties due to intoxication. b. Court finds that L‟s testimony was very relevant since it concerned the incident as well as his history with A. c. In order for the hearsay exceptions of Rule 804 to apply, it is required that the declarant be “unavailable”- in this case, that he be “absent from the hearing & the proponent of his statement be unable to procure his attendance…by process or other reasonable means.” Here, numerous attempts were made to secure L‟s testimony, but to no avail. d. Did A or a “predecessor in interest” have the “opportunity and similar motive to develop the testimony by direct, cross or redirect examination” as required by Rule 804(b)(1)? e. Rule 804(b) expresses preferences: testimony given on the stand in person is preferred over hearsay, and hearsay, if of the specified quality, is preferred over complete loss of the evidence of the declarant. f. The basic interest advanced by both proceedings was that of determining culpability and, if appropriate, exacting a penalty for the same condemned behavior thought to have occurred. The Coast Guard investigating officer functioned as a prosecutor. He attempted to establish what A later attempted to prove: L‟s intoxication, his role as the aggressor, & his prior hostility toward A. g. Courts strive to favor those interpretations of the Rule that facilitate the presentation of a complete picture to the fact-finder. While we do not endorse an extravagant interpretation of who or what constitutes a “predecessor in interest,” we prefer one that is realistically generous over one that is formalistically grudging. We believe that what has been described as “the practical & expedient view” expresses the congressional intention: “if it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was be accorded an adequate opportunity for such examination, the testimony may received against the present party.” h. Concurrence argues that acc. to the majority‟s view the Coast Guard investigator & A merely had to share a community of interest, but that means only that the investigating officer sought to establish the same facts as A attempted to prove in the instant suit. Used in this sense, community of interest means nothing more than similarity of interest or similarity in motive. But similar motive is a separate prerequisite to admissibility under Rule 804(b)(1) & thus the majority‟s analysis which reads “predecessor in interest” to mean nothing more than person w/ “similar motive” eliminates the predecessor in interest requirement entirely. 1) The predecessor in interest should be in privity with the party in the latter proceeding. i. If predecessor in interest means “similar in motive,” it is contrary to statute interpretation b/c each element of the statute should have its own meaning. B. Statements Against Interest- FRE 804(b)(3) 1. FRE 804(b)(3): Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: a. Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability & offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. b. The test is a reasonableness test. Whether a reasonable person would have made the statement if not true. 2. Problem 7.22: Ask Magnolia a. Detective investigating a robbery went to B‟s home. B‟s mother came to the door & speak to the detective and then asked B, “Bobby, did you rob that truck? Don‟t lie to me.” B replied “Ask M. It was her idea.” What are the best arguments by the government to admit the statement against M? What is M‟s best argument to exclude? How should the court rule? b. Can come in against B as a party opponent admission under 802(b)(2)(a) c. Against M, cannot come in under coconspirator exception b/c it is not in the furtherance of the conspiracy, B is unavailable since he has a 5th Am. privilege, also the statement could be to shift blame, so not against his interest, Could go a number of ways 3. Williamson v. US a. H arrested for drug related crime. H gave a story, when the detective began to investigate, H “got out of his chair & took a half step towards the detective” and admitted to lying. H freely implicated himself but refused to sign a written version of his statement. H still refused to testify despite being held in contempt. Admissible? b. Issue: What the Rule means by “statement,” which FRE 801(a)(1) defines as “an oral or written assertion.” One meaning is “a report or a narrative,” which connotes an extended declaration. Under this reading, H‟s entire confession-even if it contains both self-inculpatory & non-self-inculpatory parts- would be admissible so long as in the aggregate the confession sufficiently inculpates him. Another meaning of “statement,” “ a single declaration or remark,” would make Rule 804(b)(3) cover only those declarations or remarks within the confession that are individually selfinculpatory. c. The principle of the rule points to the narrower reading. Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true. 1) Most likely to apply to statements which are short and narrow b/c good way to lie is to mix in truth with lies in a broader sentence. 2) Court interprets statement as “single remark” d. The most faithful reading of Rule 804(b)(3) is that it does not allow admission of nonself-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory…This is especially true when the statements implicate someone else. e. DA will want to admit 3rd party statements implicating others, ie the ∆, and the majority‟s view diminishes this opportunity if the statement can only be used if it implicates himself f. O‟Connor & Scalia thinks that the test should be applied and the statement should not be all in or all out, it can be splintered so that only the statements that subject him to criminal liability are admitted 1) Like that he knew that cocaine was in the suitcase, b/c it forfeits his defense of lack of knowledge g. Ginsburg and the concurrence believe that in this context, the possibility of currying favor is so great, that it is going to be highly unlikely that the statements will be against his own interest h. Kenney in the dissent argues that the whole narrative should be admitted, the statements against interest as well as the collateral neutral statements October 2, 2003 State v. Delbert D  L  Officer D‟s Statements would be admitted under party opponent admission L‟s statements would not fit in with the co-conspirator admission L‟s statements may be admitted as a statement against interest, context is important, since he is talking to an officer, L could be trying to curry favor (thus lying to get leniency), speaker has a great interest to lie, also he admits responsibility, but he was pointing his finger to D -All or most of L‟s statements will not be admitted under against best interest 4. Problem 7.23: Alice‟s Restaurant a. Arsonist claims that he was hired by restaurant owner to burn down the restaurant. Judge allows an officer to testify that the arsonist said, “I drove to the restaurant with a can of gas. But I lost my nerve when I remembered that a family w/ little kids lived upstairs from the restaurant. So I just pored a little bit of gas into the window. Then I lit it and took off.” Admissible against owner? b. R could argue that the arsonist was just trying to curry favor with the officer in his statement c. The statement means to inculpate R. d. The judge has taken out anything that explicitly points to another party. The statements that implicitly inculpate R are left in. e. When the person made the statement was he getting something out of it or was it really against his interest? 5. Problem 7.24: Accomplices a. B was charged with robbery. J testified that B told him that he and L were responsible for the robbery & that B had shot the security guard. D testified that the morning of the robbery her brother L had asked for lemon juice to wash your hands off after shooting a gun. D testified that L had admitted to her that he and B had committed the robbery and shot the guard. L died prior to trial. Can D‟s testimony be admitted? b. Could be excited utterance b/c it is relatively soon c. Maybe under coconspirator exception, but in furtherance of diff. conspiracy d. If statements are made to sister, not police, could argue that the statement is more favorable b/c not trying to curry favor. He does open himself up to potential criminal liability, robbery & aggravated battery. ∆ will argue that L‟s testimony isn‟t nearly as bad as what he claims B said, so he‟s trying to implicate B. However, L probably doesn‟t know that he is responsible for B‟s actions under conspiracy law. e. Was that word against his interest or advancing his interest? Because of this rule, not much is admitted anymore 6. Problem 7.25: “Bucky Wasn‟t Involved” a. M wants to testify to a conversation he had w/ T when T admitted that T and Buzzy were involved in a stamp theft and when M asked Bucky or Buzzy, T said, “No, Bucky wasn‟t involved. It was Buzzy.” Bucky argues that the trial court erred in not admitting the statement by M. b. Showing you have insider knowledge could be against one‟s interest C. Dying Declarations- FRE 804(b)(2) 1. FRE 804(b)(2): Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: a. Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. b. Idea is that no one would want their last act on earth to be a lie right before they meet God c. Statement has to be limited to the cause or circumstances of his own death 2. Movie clip a. Woman finds murdered man and he wrote the name Dyle on the ground. Admissible? b. Could be excited utterance, dying declaration c. Can‟t verify who wrote it, though there is circumstantial evidence d. Don‟t know what the person saw, so there may be a personal knowledge problem e. Judge has to decide under 104(a) and consider under preponderance of the evidence 3. Problem 7.26: Clyde Mattox a. Dr. attended to a patient and told him, “The chances are all against you; I do not think there is any show for you at all.” The patient told a witness that her son had not been the one to shoot him. If the Dr. said that he was “perfectly conscious” and “in a normal condition as regards to his mind,” should the statement be excluded for incompetency? b. Could argue that he didn‟t know of the imminence of his death, the imminent factor is read very narrowly c. The critical point is the state of mind of the declarant. d. The declarant has to be unavailable, but does not have to be dead in order to be admissible. 4. Shepard v. US a. Man is tried for poisoning his wife. Nurse wants to testify that prior to the wife‟s death she had asked the nurse to go to her room and grab the whisky bottle and asked if there was enough for it to be tested for poison. She also said, “Dr. Shepard has poisoned me.” Admissible? b. To make out a dying declaration, the declarant must have spoken w/o hope of recovery & in the shadow of impending death. c. Court decided that the statement was not a dying declaration b/c the declarant had not shown to have spoken w/o hope of recovery. d. Fear or even belief that illness will end in death will not avail of itself to make a dying declaration. There must be “a settled hopeless expectation” that death is near at hand, and what is said must have been spoken in the hush of its impending presence. Despair of recovery may indeed be gathered from the circumstances if the facts support the inference. e. Homicide may not be imputed to a ∆ on the basis of mere suspicions, though they are the suspicions of the dying. The argument is pressed upon us that knowledge & opportunity are excluded when the declaration in question is read in the setting of the circumstances. D. Forfeiture By Wrongdoing-FRE 804(b)(6) 1. FRE 804(b)(6): Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: a. Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. b. Waiver-voluntary relinquishment of a known right; here it is not a voluntary relinquishment c. There is no reliability question, rule is based on the ∆ creating the necessity of the evidence 2. US v. Houlihan a. 2 drug ringleaders and their hitman were ratted out by S, their distributor, who implicated both of them and was later shot to death. b. Issue: Whether a ∆ waives his rights under the Confrontation Clause by murdering a potential witness to prevent that witness from turning state‟s evidence and/or testifying against him at trial c. A ∆ who wrongfully procures a witness‟s absence for the purpose of denying the gov‟t. that witness‟s testimony waives his right under the Confrontation Clause to object to the admission of the absent witness‟s hearsay statements. d. Court hold that when a person who eventually emerges as a ∆ (1) causes a potential witness’s unavailability (2) by a wrongful act (3) undertaken w/ the intention of preventing the potential witness from testifying at a future trial, then the ∆ waives his right to object on confrontation grounds to the admission of the unavailable declarant’s out-of-court statements at trial. e. Following the coconspirator exception, the court set a preponderance of evidence standard for the government to prove in order to establish wrongdoing. f. Misconduct waives not only one‟s confrontation rights, but also his hearsay objections, thus rendering a special finding of reliability superfluous. VI. Residual Exception- FRE 807 A. FRE 807: Residual Exception 1. A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules & the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent‟s intention to offer the statement and the particulars of it, including the name & address of the declarant. October 2, 2003 B. Dallas County v. Commercial Union Assurance Co. 1. County claims that the courthouse was hit by lightning, the insurance company claims that there was previously a fire, which was not under the policy. Insur. Co. wants to submit a 50 y.o. newspaper article reporting a fire at the courthouse into evidence. 2. In a prior case, Judge Hand seta two requirements. a. Necessity: Unless the hearsay statement is admitted, the facts it brings out may otherwise be lost, either b/c the person whose assertion is offered may be dead or unavailable, or b/c the assertion is of such a nature that one could not expect to obtain evidence of the same value from the same person or form other sources b. Trustworthiness: There are 3 sets of circumstances when hearsay is trustworthy enough to serve as a practicable substitute for the ordinary test of cross-examination: 1) Circumstances are such that a sincere & accurate statement would naturally be uttered, & no plan of falsification be formed. 2) Even though a desire to falsify might present itself, other considerations, such as the danger of easy detection or the fear of punishment, would probably counteract its force. 3) Statement was made under such conditions of publicity that an error, if it had occurred, would probably have been detected & corrected. 3. Here, there is a clear necessity b/c of the date of the article, one witness would be too old or not remember the incident. The article would be more accurate & reliable than any persons‟ memory. a. Court does not consider admitting the evidence under the ancient documents exception 4. Here, it would make no sense for a newspaper article to report a fire that never occurred. Reporter has no incentive to falsify and the usual hearsay dangers are not here (lack of memory, faulty narration, intent to influence the court proceedings, & plain lack of truthfulness) 5. In matters of local interest, when the fact in question is of such a public nature it would be generally known throughout the community, & when the questioned fact occurred so long ago that the testimony of an eye-witness would probably be less trustworthy than a contemporary newspaper account, a federal court…may relax the exclusionary rules to the extent of admitting the newspaper article in evidence. 6. The evidence is admissible b/c it is necessary & trustworthy, relevant & material, & its admission is within the trial judge‟s exercise of discretion in holding the hearing within reasonable bounds. C. US v. Laster 1. Employee ordered chemicals for drug production through his company 2. DA wants to admit records from the company, incl. 4 invoices, which reflected the sale on each date of the chemical by the detective 3. ∆s argue that the detective was not qualified to admit the company‟s business records 4. The records were not admissible under 803(6), but they are admissible under 803(7), b/c ther is no indication that the records were not reliable. 5. Although some courts have held that if proffered evidence fails to meet the requirements of the FRE 803 or 804 exceptions, the court declines to adopt this narrow interpretation of FRE 807 as suggested by ∆s. Rather, this court interprets FRE 807 to mean that “if a statement is admissible under one of the hearsay exceptions, that exception should be relied on instead of the residual exception.” 6. The phrase “specifically covered” by a hearsay exception means only that if a statement is admissible under one of the 803 or 804 exceptions, such subsection should be relied upon instead of the residual exception. Therefore, the analysis of a hearsay statement should not end when a statement fails to qualify under a traditional hearsay exception, but should be evaluated under the residual hearsay exceptions. 7. Dissent a. Under the majority‟s approach, out of court statements inadmissible under either Rule 803 or 804 may still be admissible under Rule 807, even when they are of a sort “specifically covered” by Rule 803 or 804, if they possess “equivalent circumstantial guarantees of trustworthiness.” b. Argues that the majority approach might be called the “close-enough” theory of the residual exception, i.e. , the doctrine that hearsay is admissible under the residual exception even when it just misses admissibility under an established exception. c. The majority‟s holding thus appears to make it unnecessary ever to call a sponsoring witness to establish the admissibility of business records, at least so long as there is “‟no indication‟ that the records are not reliable.” This cannot be squared with the language of records or other qualified witness” to vouch for the existence of the other elements of the business records exception. Nor is it clear how, as a general matter, business records introduced w/o the testimony of a qualified sponsoring witness can be said to have “circumstantial guarantees of trustworthiness” equivalent to those that exist when a qualified sponsoring witness testifies to the trustworthiness of the records in question. d. Under the majority‟s “close-enough” approach, the residual exception swallows all the other exceptions, as well as the rule. Confrontation & Compulsory Process I. The Confrontation Clause & Hearsay A. Mattox v. US 1.