Chapter 10: HEARSAY EXCEPTIONS I. FED. R. EVID. 803(1)-(3)—HEARSAY EXCEPTIONS: a. 802: Hearsay Rule—hearsay is NOT admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress b. 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: i. (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 ii. (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 iii. (3) 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 c. 803: Hearsay Exceptions; Availability of Declarant is Immaterial i. (1) Present Sense Impression—someone explaining or describing what he is seeing right now…news reel type description 1. Justification—guarantee is that there is NOT time to reflect [E.g.—Oh look at that, the red car just ran through the red light]fact that statement was made while event was occurring makes it more reliable than at trial [could be modified] 2. Requirements: a. Timing—immediate [has enough time elapsed so they may have time to modify or think about their statement] b. Subject—describe the event or condition i. Limitation: purely descriptive…limited to commentary 3. Cal. R. § 1241: Contemporaneous statement—evidence of a statement is NOT made inadmissible by the hearsay rule if the statement: a. Requirements: i. Is offered to explain, qualify, or make understandable conduct of the declarant; AND ii. Was made while the declarant was engaged in such conduct b. E.g.—describe declarant‟s own acts… i. Declarant is driver who says „I am stepping on the gas hard now‟ = admitted ii. Bystander who says he sees car drive through light = NOT admitted ii. (2) Excited Utterance: 1. Justification—less opportunity to modify because too wrapped up in what just happened 2. Requirements: a. Emotional State (Timing)—excitement; continuous (depends on type of event that creates longer excitement…people cool off at different rates) i. Declarant was in excited emotional state and remained in that excited emotional state until statement was made [does NOT matter type of excitement—happy or in agony] ii. If excitement is revived, MOST courts will NOT allow [if declarant was calm during some of that period, reflection could have occurred that affected reliability of statement] iii. E.g.—person shotwas unconsciouswoke up and spontaneous shouted that X was the person who shot me = will be admitted because NO time to reflect while unconscious b. Subject—„relate to‟ [statement must relate to startling event/condition, rather than just describing the event] 3. US v. Iron Shell—D prosecuted for assault with intent to commit rape, 11 year old victim spoke to officer an hour after assaultstatements admitted under excited utterance exception to hearsay [she had been crying for entire period between] = court pushing it to admit the statement 75 minutes later (relies on the fact that it takes child longer to calm down) 4. Cal. R. § 1240: Spontaneous statement—evidence of statement is NOT made inadmissible by hearsay rule if the statement: a. Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; AND b. Was made spontaneously while the declarant was under the stress of excitement caused by such perception
Examples: a. If have long interrogation = can argue that statement no longer qualifies as spontaneous in Cal. Rules or excited utterance under Fed. Rules b. D [age 14] was struck by hit and run driver, she was uninjured, but frightened…when her mother arrived home 1 hour laterD exclaimed: „Mom, it was a blue truck that struck me!‟…at a subsequent trial of the driver, D‟s mother intends to testify about the statement i. D‟s statement is technically hearsay: out of court (uttered in D‟s house prior to trial); statement (assertion that blue truck hit her); by a declarant (D); and offered for TOMA (that a certain blue truck committed the hit and run) ii. D‟s statement may qualify as an excited utterance [803(2)] 1. It was made under stress of excitement caused by a startling event [question of whether made under continuous state of excitement…Timing Issue] AND 2. Statement related to that event c. “She just fell on the skate that had been on the sidewalk all day” i. Excited utterance?? Content is the issue [must relate to startling event, rather than just describe it] ii. Present sense impression?? Statement was before = been on sidewalk all day v. Present = she just fell iii. (3) Then Existing Mental, Emotional, or Physical Condition: 1. Requirements: a. Emotion/Sensation/Physical Condition = ‘then existing’ i. E.g.—“My head hurt last week” does NOT work because it is NOT „then existing‟ ii. Backward looking statements are NOT permitted b. State of Mind Exception: i. Examples: 1. „I am Elvis‟ to prove crazynon-hearsay circumstantial evidence of state of mind of speaker 2. „I think I am losing my mind‟HEARSAY [offered to prove TOMA], but would come in under state of mind exception 3. „I think I lost my mind last week‟HEARSAY, does NOT come in because NOT „then existing‟ = backward looking 4. „I am going to SB on Saturday‟HEARSAY, can be offered as circumstantial evidence that actually did go to SB [state of mind exception] ii. Mutual Life Ins. Co. v. Hillmon—case of life insurance claim [wife claiming that her H was dead, but insurance company said it was another‟s (Walter‟s) body] 1. W wrote letter to sister indicating intent to go to place where body was found that wife claims as her H‟sargues that letter should be admitted as evidence of INTENTION at the time of writing 2. Letter is relevant because: a. W intended to go to CC with H b. From that you can infer that he did go with H c. Gave H opportunity to kill W 3. Letting state of mind of 1 person prove state of mind of someone else…hard to see that what W intended [by letter] was what H intended to do a. Statement of intent allowed to prove acts of someone else b. However, there was evidence other than W‟s statement to prove that H was at CC [didn‟t have to rely on the letter to prove H was there—more narrow reading] 4. Advisory Committee accepts ruling v. House Judiciary Committee says federal rules limit this ruling [CONFUSING problem] iii. US v. Pheaster (9th Cir.)—Hillmon Doctrine requires that trier of fact infer from state of mind of declarant the probability of a particular act not only be declarant by also by the other person v. Advisory Committee notes which render statements of intent by a declarant admissible ONLY to prove his future conduct, NOT the future conduct of another person 1. RULE: Situation where declarant is unavailable, because of necessity can admit statement of intent to prove NOT just declarant‟s conduct,
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2. 3. d.
but conduct of those who declarant was intending to meet [declarant said he was going to meet A to get free pot…A charged with murdering declarant] 2. But NOT applying Fed. R. Evid. iv. Shepard v. US—H charged with killing his W…wanted evidence that W told her nurse that the smell and taste of whiskey was strange, to have the whiskey tested, and that „H has poisoned me‟declaration of memory pointing backward in the past [NOT declaration of intention casting light on future] = NOT hearsay exception 1. Statement of belief that H had poisoned her…if this allowed to come in as state of mind exception to hearsay rule, it would swallow the hearsay rule 2. Could get in a lot of factual assertions WITHOUT reliability 3. RULE: Statements of belief/opinion that look backward or statements of belief then existing can NOT come in to prove a fact then remembered or believed a. What she believes is irrelevant standing by itself = HEARSAY b. Doesn‟t matter what she believed, ONLY whether he poisoned herfact that she believes can NOT come in to prove that he killed her c. Wills Clause does NOT have to be ‘then existing’ i. Can use backward looking statements because in will contest with warring heirs…statements made by declarant are much more reliable than parties arguing ii. Statement used in execution, revocation, or termination of will iii. E.g.—Shepard…would admit „H ahs poisoned me‟ to prove why she cut him out of her will Justification—could be the ONLY way to get the information Cal. Rules—backward looking statements ARE admissible if the declarant is unavailable and if the state of mind is actually an issue in litigation, UNLESS it is unreliable
Problems: i. 10-39: B charged with murder of K…at trial prosecutions calls K‟s neighbor, Bari, to testify that 1 hour before K‟s disappearance, his son J calmly stated: „Dad there goes K with her basketball. She is with B‟J‟s statement is descriptive and being made contemporaneously = should come in under 803(1) present sense expression ii. 10-40: witness for prosecution in arson case testifies that as she was watching TV, she stated to her H, „I it smells like kerosene, don‟t you think?‟…then house caught fire 1. MUST knew that she knows what kerosene smells like because 803 exceptions require personal knowledge—witness is able to perceive what is being perceived 2. 803(1) present sense impression [but if she had never smelled kerosene, statement could be fabricated…must have foundational evidence that she knows what kerosene smells like] iii. 10-41: P sued D grocery store…P is on witness stand testifying on direct that slipped and fell in store and then clerk rushed up and statement „hey that garbage has been on the floor for a couple of hours; let me help you‟ 1. Could be admissible under 803(2) excited utterance [emotional state of continuous excitement], but NOT 801(1) present sense impression because too broad [discussing cause of fall, NOT just what happened]…or could get in under 801(d)(2)(D) as statement by employee within scope of employment 2. P says heard bystander who did not know and have not seen since say „Look H, that man just slipped and hit his head hard on floor‟possibly 803(1) present sense impression…do NOT know why bystander said this = a. BIG personal knowledge problem [OFTEN problem with unknown declarant] b. Does NOT show that he saw what repeatingcourt reluctant to admit this! 3. P testified that felt achy that nightNOT hearsay…because NOT out-of-court statement [just describing his feelings] 4. P told wife that skip-proof shoes did NOT stop from falling on junk left on floor of D‟s storeHEARSAY, even though it is witness‟ own statement made to his wife [NOT admissible] iv. 10-42: During lunch A witnessed car crash where several people were seriously injured…because A was shaken up she left job earlier than usual, after 1 hour commute she was still agitated and walked in house and barley able to contain herself told E „I was a woman practically killed by guy who ran a red light! He went through after light red…it made me sick‟…injured brought suit and E asked to testify about A‟s statement [A available, but prefers not to recall incident]if you consider what you have to go through
II.
driving for an hour, it is hard to imagine that she had this continued state of excrement, would have to bolster a strong argument that she was in a continuous state to qualify under 803(2) excited utterance v. 10-43: P files suit against E claiming E negligently cause car accident…E took witness stand on own behalf and stated „Just as I was preparing to stop at red light, I yelled to my wife, M…Honey I have no brakes‟: 1. Could come in under 803(2) excited utterance [fact that he yelled means he was excited] or 2. Under 803(1) present sense expression 3. Would NOT come in under 801(d)(2)(A) because party admissions MUST be offered by party opponent, would be admissible if P offered as party admission [NOT even hearsay!] vi. 10-44: B charged with murdering V…at trial W testified for defense, W stated that during conversation with B one week before V disappeared, B stated: 1. „I like V‟ = HEARSAYbut will come in under a. State of mind exception [more pertinent 803(3)] or b. Present sense expression [803(1)]—if view feelings about someone as event or occurrence [describing feelings of pain, liking someone is admissible as present sense expression] 2. „As a matter of fact, V was my best friend last year‟ = backward looking statement, reporting how he felt about V last year…can NOT come in because NOT „then existing‟ [prior state of mind] 3. „I think I‟ll pay V a visit tomorrow to tell him how I feel‟ = can admit statement of present intent as circumstantial evidence of future act [803(3)—state of mind exception] = shows what he is intending to do 4. “V told me, „B, I‟m going out of town in a couple of days to go fishing with F‟”double HEARSAY = B‟s out of court repetition of what V said [V and B are BOTH declarants]…W is testifying as what B said, that V said [double hearsay can still come in if you have an exception for both levels of hearsay] a. V is declarant that he is going fishing with F: i. Admissible to prove V was going fishing and that he was going fishing with F ii. If offered to prove that F was going fishingHillmon dilemma!!! MUST recognize…Chase believes Hillmon should be read narrowly and NOT admitted to prove F was going b. Had W heard V himself it would NOT be problem, but because W heard B say what V said there is a reliability problemwould want B on the stand to prove this i. Focus on (1) who is testifying [W]; (2) what is he testifying about [W testifying about B‟s statement about V‟s statement] ii. If W was testifying for prosecution, NOT defense: 1. B‟s statement admissible as party admission [801(d)(1)(A)] and 2. V‟s statement admissible as state of mind [803(3)] iii. Does NOT work here because NOT offered against party opponent [offered by D for D] vii. 10-45: HH charged with attempted murder after allegedly shooting and seriously injuring JT…at trial, government witness L testified about events when JR shot: 1. JR told me he was going to go to H‟s house that night to drink = admissible to prove declarant‟s future intent [803(3)] 2. JR told me he had visited HH for the 3 previous nights as well = backward looking statement, NOT admissible 3. JR said he‟s feeling kind of depressed and that he head hurts = admissible as to physical and emotional condition [803(3)] 4. JR said he had twisted his knee the week before in football game and wanted to know if I had any aspirin to give him = describing how injury occurred the prior week, NOT admissible as then existing physical condition [even though can infer from statement that his knee was hurting] a. Argument that statement to get treatment, NOT likely going to come in under 803(4)….rationale that want correct diagnosis/treatment does NOT apply when he already decided the drug that he needs b. If asking a friend what he should take describing circumstances could get in, but still less reliable because trying to treat his own symptoms viii. 10-46: B charged with murdering D at Cotton Club on 6/13 at 2 a.m.…she claims mistaken identity—she was in different city on night in question…on rebuttal, prosecution offers F to testify „D told me on 6/12 that he and B were going to meet at CC later that evening‟ 1. Hillmon dilemma… a. Narrow reading—admissible to prove that D went, but NOT admissible to prove B went b. Broad reading—admissible to prove BOTH went FED. R. EVID. 803(4)-(7)—HEARSAY EXCEPTIONS:
a.
803(4): Statements for purposes of medical diagnosis or treatment—statements made for purpose 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 i. Elements: 1. Purpose = medical diagnosis or treatment a. ANY diagnosis…do NOT need to be made directly to doctor b. If have multiple hearsay [exception can work at each level, allowing statement to come in….multiple people making statement concerning treatment of single patient] 2. Content = can include backward looking statements [unlike 803(3)] a. Medical history b. Post or present symptoms c. Pain d. Sensations e. Cause 3. Limitation = if pertinent to diagnosis or treatment ii. Rationale—guarantee of reliability that symptoms are accurately treated and person is most likely to know symptoms that they are having 1. Child telling mother that his head hurts and mother repeating to doctor = child statement to mother and mother statement to doctor covered 2. I hurt my back when that idiot F broadsided me when he ran the red light: a. I hurt my back and part regarding being broadsided admissible = pertinent to medical diagnosis and treatment b. Fact that F is an idiot and that he ran red light NOT admissible = NOT reliable for that purpose iii. Cal. Rules: statements for medical diagnosis are limited to statements while child was under age of 12 and for purposes of proving child abuse/neglect 1. However, Cal. version of state of mind allows backward looking statements [covers virtually the same] 2. Cal. and federallyCrawford may undermine admissibility under the Confrontation Clause [S. Ct. will hear issue in March] iv. E.g.—declarant yells out in pain at doctor‟s office: „my back is killing me!‟statement that is going to possibly come in under multiple exceptions 1. Present sense expression—803(1) patient stating what perceiving as perceiving it 2. Excited utterance—803(2) 3. Statement of present condition—803(3) 4. Medical diagnosis—803(4) v. Problems: 1. 10-47: S became sick, as she was transported to hospital she told EMT that „I started feeling dizzy and faint after I had lobster at E‟s Joint; I‟m sure it is food poisoning because E‟s chefs are careless and do NOT cook food thoroughly‟…S brings suit against E‟s Joint and wishes to introduce prior statements to EMT: a. Part regarding her feeling dizzy and faint [describing symptom/sensation] = admissible 803(4) b. She had just eaten lobster [what she ate, but NOT where she ate it…cause] = admissible 803(4) c. Food poisoning = NOT admissible [opinion and she has NO personal knowledge] d. Chefs careless and undercooked = NOT admissible [finger pointing] 2. 10-48: Father told mother that son „has bad cold and needs cold medicine‟…admissible to prove son had bad cold: statement for purposes of treatment a. Looks like father making statement in effort to get treatment for son, father has interest in son getting treated reliably [803(4)] v. b. If mother mistakenly buys stomach medicine rather than cold there with NOT be dyer consequences (over the counter); self-treatment reduces the indicia of reliability 3. 10-49: J, age 6, complained to mother about „all things babysitter did to me 2 days ago‟…mother took J to doctor who asked J about incident, J described sex acts babysitter allegedly performed: child‟s statements of pain or symptoms…children don‟t know that they need treatmentstatement being made by child for purposes of medical treatment event though they do NOT realize it AND mother‟s repetition of statement to doctor is more medical treatment [803(4)] a. Most jurisdictions—general cause or inception [pain/suffering], but identity of attacker is NOT pertinent for medical treatment b. Acts done to child—doctor can testify
b.
c.
Person who did acts to child—argument that relationship of person is pertinent to psychological treatment [courts have expanded with cases of young children because of traumatic experiences to child] 803(5): 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 when the matter was fresh in the witness‟ memory 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. i. Declarant MUST be the witness!! Without declarant…can‟t get foundation ii. Elements: 1. Memo or recording 2. Matter once within declarant‟s knowledge 3. Witness can NOT recall 4. Made while fresh 5. Accurate when made iii. Fed. R. Evid. 612—try to refresh the witness‟ memory…show to the witness, have them read and ask if the NOW remember [refresh their recollection] v. here they can‟t remember al all [memory is completely dead] iv. Limitation: read the memo into evidence or play the recording…writing itself does NOT come into evidence, UNLESS the opponent wants it to v. Reliability—likely made prior to inception of litigation; declarant witness on stand and can be cross examined about the statement vi. Problems: 1. 10-50: J prosecuted for murder after drug deal went sour…government informant I testified J told him to call a certain number for drugs, that number linked J to victim…I wrote down number 2 hours after learning about it…at trial I testified on direct a. Prosecutor asked what was phone number J gave you: phone number = 801(d)(2)(A), J is on trial (it is J‟s statement), if opponent offering D‟s statement it is admissible [statement by party opponent] b. I shown paper for identification purposes and told to silently read…objection that once witness is unable to remember factual observations under 612, counsel can NOT pursue matter further: WRONG, overruled can do all sorts of things to make witness remember [I can look at paper]…612 has virtually NO limits c. I testifies that remember writing number down and in his handwriting, number offered for identification purposes: i. Memory is completely dead—foundational questions to authenticate that it has not been created = objection is appropriate ii. NOTHING to indicate that it was fresh or accurate when made, must elicit questions to prove this [able to remember for 2 hours…lay the foundation] d. Prosecution asks when he wrote it and I says it was fresh in memory and knew that what he wrote was accurate, then number offered to evidence: it will come in…phone number will be read to jury, exhibit will NOT be given to jury UNLESS the opponents wants them to have it for some reason 2. 10-51: after hurricane, S‟s house had extensive damage and he made claim including ruined personal property…trial, issue of value of goods destroyed, S could NOT remember amounts he paid…S kept ledger book in which wrote down precisely what he paid because purchases were „still fresh in mind; I had remembered exact price‟: Refreshing Recollection—have to ask him 1st how much did you pay…if he doesn‟t have any present memory, can NOT offer ledger bookbut with proper foundation can have him read it, the attorney, or court read it 803(6): 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 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 be certification that complies with rule 902(11), 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 the paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or NOT conducted for profit i. Rationale—business needs to keep records to survive…because businesses need to rely on these records for their own survival, they are likely to be reliable [business has own controls for reliability, so allowed to be admitted at trial] 1. Avoids calling 30 employees from company = Efficiency driven rule
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E.g.—playground company: where purchasing supplies; where shipping; records of sales; invoices that filled; receipt of payments…if didn‟t keep records, business would NOT last very long Elements: 1. Business record—definition is broad, can be non-profit…does NOT have to be for-profit 2. Made ‘at or near time’—fresh 3. By/transmitted by person with knowledge—someone within the business who has personal knowledge of information recorded within this document [no controls of statements made outside the business, but control of employees = reliability] 4. Regularly conducted business activity: a. Palmer v. Hoffman (1943)—accident occurred and engineer of train [dead] made statement to superintendent of road [petitioners] and they offered to prove that it was the regular course of business to make statement = EXLUCDED i. NOT in regular course of business because business of petitioners was the RR business…reports are NOT for the systemic conduct of the enterprise as a RR business [unlike payrolls, accounts receivable, accounts payable, etc.] ii. Regular Course of Business = inherent nature of business in question and methods systematically employed for conduct of the business as a business [report made with eye toward litigation = excluded] 5. Regular practice to record—if so, there are reliability controls v. if NOT regular practice do NOT make that assumption 6. Custodian/foundation—do NOT need live person to call records 7. UNLESS not trustworthy— a. Palmer case where statements were taken of those involved in accident, taken with eye toward litigation rather than running a RR business [NOT trustworthy] Laying Foundation—how you get live, qualified custodian to testify [pg. 260-61] 1. MUST show that records made „at or near time‟ and by person with knowledge = required to show 2. Regularly conducted 3. Authenticated piece of paper itself—guarantees record is NOT altered 4. Questions are foundation for admitting business record—lots of questions, but easier than calling in 20 people to testify E.g.—nurse makes notation that patient‟s side is hurting = problem with admitting entire hospital record?? Double Hearsay 1. Patient‟s statement does NOT qualify under business record, ONLY nurse‟s notation 803(6) 2. But patient‟s statement about pain could be admitted under 803(4) [statements for purposes of medical treatment or diagnosis] 3. both levels of hearsay meet an exception Problems: 1. 10-52: Sch. Security supplied armed guards to grocery stores in city…Sm, night watchman at F‟s Grocery and employee of Sch. spotted a prowler…Sm immediately sent message to co. dispatcherdispatcher related message to chief of security secretarysecretary took notes and gave the to Sch. secretary to type up in report, which is customary practice…after Sm examined scene and took statement of store owner about what happened, a company practice…owner‟s statements incorporated into Sm‟s report…entire record, including owner‟s statements offered at trial involving attempted break in: a. Statements by grocery owner = person who does have knowledge is NOT within the businessperson NOT employed by security company, NOT within business therefore NOT admissible b. Everything else admitted [statements by owner could be redacted]…if there had been exception to meet owner‟s statements, they would be admitted, but there does NOT appear to be exception here! 2. 10-53: Law school [private] sues JS for theft of services after enrolled on fraudulent grounds…to prove enrollment, school offers employee of Student Services as witness a. State name, why here [testify], familiar with records, how [not records custodian, but work with records often] = Records custodian is NOT required to lay foundation…ANY person can law foundation for records through testimony as long as qualified b. What kind records, are related to your business [regular activity], show registration of JS, witness does NOT know who made registration [could have been 1 of four employees] i. Does NOT matter if witness does NOT know who made the record, as long as familiar with the record-keeping process [possibility of who] ii. However, is NOT enough of showing that records are trustworthy…suitably reliable
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10-54: J was gas station attendant at Phipps….J robbed and it is policy of P to record criminal activity in company logs, J wrote detailed description…can either prosecution or D offer J‟s entry into gas station logs as business records?? NO! a. Criminal activity would NOT be a regular practice…it was later, could be a problem with close enough in time to ensure reliability b. NOT a record of regularly conducted business activity [NOT same as record that we think is reliable because business relies on its existence] 4. 10-55: P brings suit against RR after train ran over her foot… a. Can RR offer accident report prepared by train‟s engineer, now deceased, about accident [routinely made]: Accident reports NOT made for business purposes at all, but to defend in the event of litigation….employee wants employer to NOT be liable, so motive fore records to NOT be reliable = Accident reports are considered NOT trustworthy i. If office with goal to improve safetystronger evidence that those records are reliable and should be admitted ii. Justification of business records exception could allow in: in anticipation of litigation v. relied on to improve safety b. P offers report of physician who evaluated P‟s injuries for purposes of testifying at trial: Medical/Doctor‟s records usually admitted because doctors are in business of keeping records… i. But if doctor hired for testimony, person who hired doctor can NOT offer records because considered unreliable ii. MUST either have the opponent want to admit them or bring in doctor to testify c. P offers hospital report prepared by emergency room which diagnosed P as suffering from shock and foot injury: Type of medical record that will come in, NOT being created with eye toward litigation….report seems to be created in regular course of business activity [emergency room] 5. 10-59: Which admissible as business records?? a. Merrill Lynch credit reportadmitted assuming that is what they were in business of doing b. IBM executive‟s daily appointment registerdepends on how report was prepared…regular conducted business activity, need to show it is business record [not just social] c. Letters sent by RP executive to business associatesneed to know something more about letters…if regularly sent out, might well be d. Bank teller‟s list of serial numbers of the currency the teller disbursed on a particular dayadmitted e. Grocery list kept by the same bank teller, maintained on weekly basisNOT admitted, bank NOT in business of buying groceries f. Notes taken by a Wall Street Journal reporter for a storysome journals might require that journalists keep notes, possibly admitted g. Occasional notes taken by a radio talk show hostOccasional is RED FLAG…does NOT sound like regularly conducted practice h. Invoice received by a customer of AK for 4 new tires purchased by customeradmitted, type of thing regularly kept d. 803(7): Absence of entry in records kept in accordance with the provisions of paragraph (6)—evidence that a matter is NOT included in the memoranda reports, records, or data compilations, in any form, kept in accordance with 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 source of information or other circumstances indicate lack of trustworthiness. i. If you have a records custodian who is testifying… 1. Did you search your records for a sale to ABC on 3/30?? Yes 2. Did you find the records?? NO, I did NOT 3. NOT hearsay = witness is testifying that they looked for record and based on their personal knowledge, they could NOT find itcan infer that sale did NOT occur [NOT issue because NOT hearsay to being with] ii. Even if it were hearsay, which it is NOT, there is NO obstacle to admitting: testimony does NOT repeat any out of court assertions [included to make sure though…] FED. R. EVID. 803(8)-(10)—HEARSAY EXCEPTIONS: a. 803(8): Public records and reports—records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth: i. Categories: 1. (A) the activities of the office or agency, or 3.
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(B) matters observed pursuant to duty imposed by laws 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 3. (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, [exclusion to criminal] UNLESS the sources of information or other circumstances indicate lack of trustworthiness Public offices or agencies = ANY arm of government in this country…must be public [federal, state, city, municipal, county, water district] Cal. v. Fed.—California does NOT recognize the factual findings exception (C)!!! Justification—without exception, going to have difficult time proving what is in the facts…most of what government does is routine [NOT memorable] 1. Absence of memory because of routine nature [E.g.—ask postal service worker how many stamps they sold 6 months ago] 2. Government employees tend to turn over at a much higher rate than in private sector [problem of finding] 3. Less disruptive than pulling government employees out of job 4. Public employees fulfill their duty, so it is more likely that they provide their work with care 5. Repetitive nature of activity tends to make it more likely that they are accurate 6. If it is good enough for government to function on these records, then it would be anomalous to not allow in court [sufficiently reliable] ELEMENTS: Public Records 1. (A) Activities of Agency [selling stamps…routine, NOT likely to be heart of controversy] a. Routine matters b. NO criminal restriction 2. (B) Matters Observed a. Duty to observe [health inspectors, Cal Trans inspectors] b. Duty to report i. Police reports ii. E.g.—tree trimmers report that saw meth lab in house is NOT allowed because NOT tree trimmers duty to report and observe meth labs c. Criminal Restriction: i. Can NOT offer police report in criminal case because D has right to cross examine witnesses in front of him = if didn‟t have limitation, inviting trial by police report and this is NOT what guaranteed by the Constitution…requires police officer to come in and testify ii. Can come in under 803(5) to refresh the witness‟ memory [police officer‟s] = past recollection recorded!! 3. (C) Evaluative Reports [Cal. does NOT permit] a. Factual findings—source of controversy i. Beech Aircraft Corp. v. Rainey (1988)—crash at Navy training where both pilots died and question whether pilot error or equipment malfunction caused crashJAG report only wanted factual finding, NOT opinion that was due to pilot error 1. ISSUE—Whether 803(8)(C) which provides an exception to the HS rule for public investigatory reports containing „factual findings,‟ extends to conclusions and opinions contained in such reports?? Portions of investigatory reports are NOT inadmissible merely because they state a conclusion or opinion 2. As long as the conclusion is based on factual investigation and satisfies the trustworthiness requirement…should be admissible with other portions of report ii. Trustworthiness: MOST courts find that applies to parts (A), (B), and (C) 1. Look at qualification of person giving opinion 2. Look at support for conclusion/opinion 3. Final report is more likely to come in v. draft which is NOT a finding, NOT allowed in 4. Based on personal knowledge…what was it based on 5. Is there a bias?? Did institution create this?? 6. Was there any hearing at all?? 7. Was the investigation timely?? If investigation is close in time to even it is more likely to be timely b. Opinion
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c. Criminal Restriction 803(9): Records of vital statistics—records or data compilations, in any form, or births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law i. ELEMENTS: Vital Records 1. Like public records 2. Source outside agency is ok a. Hospitals source that could be private—person outside agency supplied recording information b. Mother or doctor could be source of information [births] c. If county hospital, public records exception might work…but source is personal knowledge of someone NOT employed by the government, covered in this section] ii. Records ultimately kept by agency, BUT source of information is outside of the agency c. 803(10): Absence of public record or entry—to prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry i. NOT even hearsay to begin with…but included just to make sure d. Problems: i. 10-55: Plaintiff S brings suit against the Off track RR after one of Off track‟s trains ran over her foot 1. P offers rainfall records of National Weather Bureau that indicate it was sunny at time of accidentAdmissible as matters observed, duty to observe weather conditions [803(8)(B)] 2. The engineer of the train was given a breathalyzer test following the accident…prior to offering the results at trial, P offers a breathalyzer decal certifying that the machine was tested as required by law and found to be accurate and states the machine was calibrated at the required timesAssuming public agency a. Found to be accurate = admissible under 803(8)(C) b. When it was calibrated = admissible under 803(8)(B) c. NOT problem because this is civil case, but if for criminal negligence there could be a potential problem 3. P offers the report of a latent fingerprint examination which concluded that the engineer‟s fingerprints were on a bottle of whiskey under the engineer‟s seatassume public employee and admissible under 803(8)(C) as an evaluative report 4. P offers the results of an Interstate Commerce Commission (ICC) report containing conclusions that the engineer was at fault in the accidentadmissible under 803(8)(C), do work as to how report was created, UNLESS found NOT trustworthy ii. 10-56: State Hwy. Patrol Officer, AS, prepared accident report on 2 car crash and included statement of bystander that „I can‟t believe the lady in Buick made turn after the light turned red‟in subsequent person injury action, can report be introducedCIVIL case…police report could come in under 803(8)(C) as evaluative report or 803(2) as excited utterance 1. Double HEARSAY: a. Officer‟s report = can come in as public record…compiled evidence from different sources and drawing conclusion b. Bystander‟s statement = hearsay, but could come in as excited utterance 803(2) iii. 10-57: Several employees injured in accident at power plant bring suit against power plant company...at trial P offer report prepared by investigator of OSHA of federal government…after interviews with people involved with plant and trips to accident site, investigator concluded that accident caused by negligence of D company 1. Is report admissible in suit brought by employees803(8)(C), but trustworthiness issue 2. Birth certificate of person injured in accidentadmissible under 803(9) vital records 3. Offered by government in parallel criminal action against several power plant employees a. OSHA report—problem because would want investigator to be cross examined [Criminal Case Restriction] b. Birth certificate—admissible under 803(9) as vital record iv. 10-58: B is chemist for police, her job is to test substances to determine if illegal narcotics…after every test she writes a report of her findings…B usually testifies at trial about conclusions, but once she was sick with flu and unable to attend…can prosecution use her report to prove that the substance in question was an illegal narcoticNO!! Kept out because of criminal use restriction of 803(8) 1. 2nd Circuit found if it was private labrestriction in 803(8) could apply to business records as well v. REMEMBER: business and public records exception require the source to be within the agency MISCELLANEOUS HEARSAY EXCEPTIONS—803(11)-(23): b.
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803(11): Records of religious organizations—Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. i. Could be admissible under Business Records 803(6) as well…but 803(6) requires the source of information in documents to be from employee or member or business [NOT required by 803(11)] ii. Baptismal certificate provided by parent would satisfy 803(11), but NOT 803(6) because parents are NOT part of the church iii. Justification—would NOT have motive to fabricate 803(12): Marriage, baptismal, and similar certificates—Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter. i. Allows you to prove all facts that are asserted in documents…admits a broader range of evidence ii. Difference between public and business records is that source can be OUTSIDE of the religious entity iii. Justification—unlikely that there would be motive to provide false information 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. i. Need to prove someone‟s date of death: bring in earn to prove date of death ii. Need to prove date of marriage: bring in inscribed ring = you can infer from this date that they were married on this date iii. Justification—unlikely that going to lie…[photographs can work as duplicate] 803(14): Records of documents affecting an interest in property—The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. i. Can admit an abstract from county recorder‟s officeNOT deed itself is admitted, but the recording of the deed ii. Can bring in record that deed had been recorded on 3/3/93… 803(15): Statements in documents affecting an interest in property—A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document i. Admits the actual document that affects the property interest…the deed itself ii. Can admit the deed to prove facts that are contained in the deed iii. Deeds may be viewed as hearsay to the extent that there are factual assertions contained in them 1. Fact that transferred = NOT hearsay, verbal act [Contract] 2. Fact that transferred by operation of A‟s will = HEARSAY 803(16): Statements in ancient documents—Statements in a document in existence twenty years or more the authenticity of which is established. i. Have to prove authenticity [20 years old = admissible, assuming you can authenticate it] ii. Able to be admitted to prove whatever it asserts iii. Justification—unlikely that what is contained in the document is likely to be fabricated; unlikely that it is going to be central to the litigation iv. Dallas Co. Courthouse—Dallas Co. tower just one day collapsed…sued insurance company and said that it was due to lightning strike the week beforeoffered evidence of charred timbers 1. Insurance company found a 52 year old newspaper that the tower had caught fire [charred timbers were insignificant and unrelated], but it was faulty construction [wouldn‟t have to pay] 2. Fact that story was written and no one said it was a lielends credence to factual assertions contained therein [relied on residual exception because ancient documents required 100 years, but same principal] 803(17): Market reports, commercial publications—Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. i. NY Stock Exchange ticker tape could be admitted ii. Telephone directory to prove that someone had a particular phone number assigned to them iii. Justification—heavily relied on and put pressure on them to be accurate 803(18): Learned treatises—To the extent called to the attention of an expert witness upon cross-examination 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 a 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. i. Can ONLY use in connection with opinion witness [usually expert witness]!!
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ii. Requires A WITNESS to testify, NOT the declarant iii. Admissible as impeachment or to bolster the expert‟s opinion iv. E.g.—doctor performing surgery and doctor testifying that anesthesia was bad 1. Leaned treatise on anesthesia which contradicts or corroborates doctor‟s opinion 2. Can NOT send treatise back to jury room!! v. Read relevant portion into evidence [like recorded recollection] vi. Have to establish that leaved treatise…expert say that this is book relied on in my field [ONLY if judge decides that this is NOT credible evidence is it NOT admitted (NOT that common)] 803(19): Reputation concerning personal or family history—Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. i. Admits evidence of reputation that matters of family, generally concerning family ii. E.g.—prove grandmother immigrated from the Netherlands = everyone who was alive at the time is now dead…family reputation could prove 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, and reputation as to events of general history important to the community or State or nation in which located. i. Land boundary suit and may admit evidence that community treats this land as belonging to Smith and this land as belonging to Jones ii. Generally history of community is well enough known to have a reputation 803(21): Reputation as to character—Reputation of a person's character among associates or in the community i. Depends on WHAT you are trying to prove about reputation ii. Individual’s Reputation in community—reputation is hearsay because it is what everyone or a lot of people say about them [multiple people say]… 1. E.g.—reputation of X as a violent person… a. ISSUE: Why did Y use deadly force in self-defense = why Y acted?? i. NOT hearsay = circumstantial evidence of effect on state of mind of listener b. ISSUE: What do people think about X, how do people feel about X = state of mind i. HEARSAY, but state of mind exception works [„think‟] 803(3) c. ISSUE: If trying to prove that X is in fact a violent person = 803(21) 2. Why someone else acted toward X—NOT hearsay 3. What people THINK about X—state of mind 803(3) 4. What kind of person X is—Reputation Evidence as to Character 803(21) iii. MOST common…character evidence used that likely or not to commit a certain crime iv. Deals ONLY with hearsay aspect 1. Will come into prove the truth of what it asserts 2. Later character rules will impose a lot of restrictions 3. ON EXAM: Is X a violent person?? ISSUES: (1) Relevancy; (2) Hearsay—803(21) character; (3) Admissible under character rules v. Community—people who are associated with person and would know…entitled to opinion through 1st hand personal knowledge [work community; where they live; where they went to school; attending religious service] 803(22): Judgment of previous conviction—Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. i. To prove the facts that are essential to conviction ii. When judgment is entered in court it is considered a public record = judgment of guilt or innocence to impeach someone, will come in as public record [exception NOT necessary] iii. E.g.—Goes beyond convicted of bank robbery…if armed bank robbery, one of facts is essential that had weapon = proving MORE than just fact that had convictionusing facts surrounding essential to conviction iv. Restrictions: 1. MUST be felony and can NOT be based on plea of nolo contendere a. If misdemeanorcan offer to show convicted (public record), but NOT offered to show that was actually armed because NOT likely to be vigorously litigated 2. MUST be offered against the accused…restricts if prior judgment is someone other than defendant a. Can be used to impeach [discredit] b. If accused is alleged to have stolen property and want to admit conviction of person who was alleged to have stolen property
D has right to control and confront evidence of conviction…but if it was someone else‟ conviction, there is NO way else to contest that evidence v. Justification—vigorously litigated and found by proof beyond reasonable doubt m. 803(23): Judgment as to personal, family, or general history, or boundaries—Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation. i. Any matters were essential to be proved to obtain the judgment ii. Offered to prove divorce = judgment is finding that property belongs to X iii. Justification—these matters are carefully litigated, therefore reliable n. PROBLEMS: i. 10-60: S, stockbroker, was sued by client, R. R claimed S despite being asked to do so failed to purchase 1,000 shares of BF and V…to prove damages, R offers a copy of NY Times financial page on day in question listing opening and closing prices of BF and V 1. Newspaper listing is admissible under 803(17)—newspaper market reports come in 2. R also offers copy of NYC phone directory to show that the phone number S is alleged to have dialed was the number of rival brokerage house—phone directory is admissible under 803(17)— telephone book admissible ii. 10-61: In personal injury action for medical malpractice, Dr. MS is defendant…important issue is whether Dr. MS used correct surgical equipment, defense offered expert, Dr. SS who testified that Dr. MS used appropriate equipment to perform operation…on cross the opposing counsel wishes to question the witness about a passage from authoritative treatise „J‟s Medical Guide‟…book indicates that D selected improper equipment for P‟s operationevidence is HEARSAY, but admissible under 803(18) but MUST establish as an authoritative treatise iii. 10-62: In forgery prosecution of D, D offers character witness, M…M testifies that D‟s reputation in the community is one of truthfulness…prosecution objects, claiming that evidence about D‟s reputation is inadmissible HSevidence is HEARSAY, but admissible as character exception 803(21) iv. 10-63: JL, a billionaire dies of heart attack…leaves ½ estate to wife, E, and other ½ to charitable organizations…in subsequent proceeding, woman named JB steps forward claiming to be his wife offering marriage certificate into evidence in support of her claim 1. Certificate is admissible under 803(12) marriage certificate or as public record 803(8) 2. Later in same hearing, question arises as to whether JL owned particular piece of property located in S. Illinois…JB offers evidence of deed to property in JL‟s nameif ONLY offering to prove that JL got property from someone, then document that transferred property A to L, it is an act of independent legal significance, NOT hearsay 3. Man shows up claiming to be JL‟s long-lost son, F, from prior marriage…claim appears to be supported by old family bible, F‟s name had been written in as one of children of JL and SL [JL‟s 1st wife] who died suddenly at age 28Bible admissible under 803(13) family record…but MUST be authenticated to be genuine family bible 4. As a result of F‟s appearance, question arose as to precisely when JL‟s last wife, E, died…witness at trial testifies that E‟s tombstone states she died on 3/4/61HEARSAY, 803(13) family record would cover, but problem with witness testifying what tombstone said…MUST bring in photograph or tombstone itself [best evidence rule] v. 10-64: After its place of worship collapsed, Church brought suit against insurance company seeking payment on insurance policy…company claimed collapse resulted from structural damage due to fire 30 years before…P Church claimed that caused by lightning strike day before…at trial, P offered 30 year old newspaper article written and published at time of fire…article indicated that fire occurred behind Church without damaging [assume that newspaper is NOT ancient document]assuming it is NOT ancient document, residual exceptions to hearsay rule that permit evidence to be admitted assuming that you can prove that it is sufficiently reliablesame theory as Dallas Co. used [as it is it would come in under ancient document] c.