EVIDENCE NOTES6

Chapter 10: HEARSAY RULE 804-807 [Exceptions] I. DEFINITION of UNAVAILABILITY—804(a): a. 804(a): Definition of unavailability—„unavailability as a witness‟ includes situations in which the declarant: i. (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or ii. (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 iii. (3) testifies to a lack of memory of the subject matter of the declarant's statement; or iv. (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or v. (5) is absent from the hearing and 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. vi. 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. b. 804: 2-step analysis… i. Whether declarant is unavailable to testify?? ii. Look at other requirements… c. Federal Justification 804(a): i. Privilege: 1. To demonstrate… a. MUST put witness on stand b. Witness has to invoke a privilege [that is my H, I will NOT testify against him] c. Court has to recognize that witness can NOT testify 2. 5th Amendment—do NOT need to call a criminal D a. Prosecutor should NOT call D just for purpose of invoking privilege…presumption ONLY with respect to criminal D that will claim the privilege b. Criminal D wants to use deposition testimony and claims 5th Amendment privilege at the same time = NOT allowed, he would be procuring his own unavailability [motive to avoid cross-examination] ii. Refusal to Testify: 1. Steps: a. Call witness to stand b. Get witness to say that „I refuse to testify‟ c. Ask the court to order the witness to testify under pain of contempt of court [penalty of contempt MUST be made clear to witness…] d. If witness persists in refusing to testify… i. Court will declare the witness unavailable ii. Court will throw witness in jail or impose a fine iii. Absence of Memory: 1. Fed. Rules requires witness to be called to stand and be cross-examined 2. Examined so court can make determination that absence of memory is actually absence of memory, rather than refusal to testify a. If court determines witness is faking…go back to steps of refusal to testify b. If determine that witness really doesn‟t remember, declare the witness unavailable iv. Death/Serious Illness: 1. Death—witness is dead, they can‟t testify 2. Serious illness: a. If short illness, ask for continuance [migraine or cold] b. Prognosis must be fairly uncertain or will take a significant amount of time to recover v. Absence: 1. Attendance— a. Can court issue a subpoena to compel the witness to testify?? If witness lives in the area, they will NOT be absent (MUST try to subpoena the witness) b. In addition to demonstrating witness is out of jurisdiction, MUST try to take witness‟ deposition 2. Before allow you to use a dying declaration, statement against interest…MUST try to take witness‟ deposition [can offer that as former testimony, better because opportunity for crossexamination] II. Depositions: routinely admitted in civil cases v. rarely admitted in criminal cases [admitted as alternative] d. Cal. Justification: 804(a)—list is NOT exclusive i. Refusal to testify [case law] ii. Does NOT mention absence of memory, but Cal. case law recognizes iii. Person disqualified from testifying = unavailable [incompetent to testify; truly can NOT communicate] iv. 2 provisions for absence… e. Problem: 10-65—in a civil assault and battery action, S was called as a central eye-witness for defense…at trial, S was asked to state name for record, responded by singing „I‟m a Toys R Us Kid‟ theme song…soon discovered that S had been in and out of psychiatric hospitals for years i. Mental illness is reason to find that witness lacks capacity to testify 1. Federal court = unable to testify due to serious illness 2. Cal. = subpart 2 of 240…NOT qualified for testifying in this manner ii. Assume S instead had full mental capacity and D had given S an all-expenses-paid trip to Mexico to avoid stress of testifying at trial and S was out of jurisdiction at time of trialNOT unavailable…defense is calling him and defendant paid for his trip…if procure the unavailability of witness, can NOT claim the witness is unavailable [NOT wanted to see eyewitness, last sentence of 804(a)] HEARSAY EXCEPTIONS 804(b)(1): a. 804(b): Hearsay Exceptions—the following are NOT excluded by the hearsay rule if the declarant is unavailable as a witness… i. (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 with 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 and similar motive to develop the testimony by direct, cross, or redirect examination b. Requirements: i. Unavailable ii. Prior proceeding/deposition iii. (1) Against same party with (2) similar motive to develop 1. Exception—Civil cases ONLY…NOT restricted to same party, can be predecessor in interest with opportunity to develop through direct or cross examination c. Examples: i. P v. D: Who was speeding?? 1. Trial 1: Witness testifies D was speeding 2. W dies…on appeal there is a retrial 3. Trial 2: Witness is now unavailable, testimony is being offered against same D…would have had prior opportunity to examine and same motive to develop [same case!] ii. P v. D: Who was speeding?? 1. Deposition: W says D was speeding 2. W dies 3. Trial: Deposition is admissible assuming that D‟s attorney was at the deposition…if NOT present, there would be NO opportunity to develop the W‟s testimony, therefore NOT admissible d. Rationale: i. Necessity—fact that witness is unavailable makes it necessary to rely upon hearsay ii. Indicia of reliability—under oath and subject to cross-examination…not as comfortable as putting W on stand, but former testimony is at least reliable enough to be admitted into evidence e. Grand Jury Proceeding—same court proceeding where there is NOT the opportunity for opponent to develop testimony: i. Criminal D can NEVER have opportunity to develop a grand jury witness‟ testimony ii. Prosecutor can NEVER rely on former testimony of Grand Jury if offered against D f. Horne v. Owens-Corning Fiberglass Corp. (4th Cir. 1993)—most liberal reading of predecessor in interest i. Asbestos case where expert witness became unavailable to testify 1. Plaintiff 1 v. Corning—admitted 2. Plaintiff 2 v. Corning—former testimony… ii. Is completely different P with completely different injury is considered a predecessor in interest…however, MOST courts would say no (requiring privity in K…would want to see a privity relationship) iii. MINORITY—similar injuries from exposure to products…creates a high water mark 1. Similar opportunity/motive to develop testimony 2. Collapsed motive to develop/opportunity to be cross-examined and predecessor in interest [be wary of 3rd and 4th Circuit] g. Problems: 3. i. 10-66: during investigation of Dr. H for illegal distribution of steroids, important government witness, W, testified before the grand jury…prior to trial, W diedgovernment can NOT use W‟s sworn testimony against Dr. H in subsequent prosecution because there was NO opportunity for Dr. H [D] to develop [D nor D‟s attorney were likely there] ii. 10-67: The primary witness for the government in a homicide prosecution, J, tells a completely different story on witness stand than he did in sworn deposition immediately after killing 1. Deposition is NOT admissible as former testimony because he is NOT unavailable…he is testifying, therefore can NOT claim as unavailable a. Can get in as impeachment by prior inconsistent statement…does not even have to be testimony to discredit the witness [NON-hearsay = impeachment] b. If offered for TOMA, prior inconsistent statements admissible under 801(d)(1)(A)—prior inconsistent statement under oath/penalty of perjury at prior proceeding 2. Instead of changed his story on witness stand, J was simply unable to remember events in question saying „I‟ve had some serious memory problems recently; I‟ve forgotten what happened‟, can J be impeached with deposition as prior inconsistent statementif saying I forget, the prior statement is NOT inconsistent enough, NOT impeaching because can no longer remember a. Former recollection is NOT inconsistent in sense that rules require for admission under 801(d)(1)(A) b. Can 1st try to refresh recollection…if that doesn‟t work and assuming he has reviewed testimony and accepts it, could come in under 803(4) [recorded recollection—assuming witness can lay foundation (fresh in mind when given, accurate, reviewed and adopted as own statement)] 3. Can deposition by admitted as former testimony on behalf of governmentunavailable due to absence of memory and assuming can show there was a similar opportunity and motive to develop…likely defense had motive to fully develop testimony = ADMISSIBLE 4. Would deposition be admissible as former testimony if defense, during deposition, had declined to cross examine JNOT going to depend on whether there was actual cross-examination, although in criminal case the court may wonder if similar motivation = admissible if opportunity iii. 10-68: Government‟s confidential informant, K, testified before grand jury, implicating D in a conspiracy to unlawfully import firearms…prior to trial K is murdered 1. Prosecution can NOT offer K‟s grand jury testimony in D‟s subsequent conspiracy trial….NOT going to come in as former testimony [grand jury] = NO opportunity to cross-examine 2. Assume same facts, except that K testified before grand jury under grant of immunity and was considered to be „almost comically unreliable character‟…admissible if offered by defense?? Grand jury testimony offered by D against government…D offering against government and government had opportunity to develop a. Might be admissible… b. But if witness is testifying under grant of immunity [suggests that suspected of criminal activity], and could be no motive to develop [„comically unreliable‟] = opportunity to impeachNOT admissible [MUST ask if similar motive and opportunity to develop!! Not likely here] iv. 10-69: Car accident in which one car was driven by P and other by D…G was a guest in P‟s car at time of accident and W, the witness, observed the accident…P sues D (P v. D) and W testifies at trial on P‟s behalf…in later proceeding, G sues D (G v. D), W has moved far away and is unavailable to testify…G offers W‟s testimony from 1st trial (P v. D), D objectsoffered against same party AND unavailable [ABSENCE] = similar opportunity/motive to develop at previous trial, therefore ADMISSIBLE v. 10-70: F, defendant, tried on felony charge of arson (US v. F), W, the witness, testifies for prosecution…in subsequent case, F sues GH Ins. Co. to recover losses caused by fire (F v. GH)…GH proves W‟s death and offers a transcript of W‟s former testimony in arson trial…F objects 1. Cases a. US v. F b. F v. GH 2. Dead, so she is unavailable…witness is testifying AGAINST F in BOTH [criminal, then civil]ADMISSIBLE a. However, if GH case 1st then W died and want to offer against F [civil, then criminal] argument that stronger motive to develop testimony in criminal than civil casesNOT admissible b. CriminalCivil = admissible because stronger motive to develop v. CivilCriminal = NOT admissible vi. 10-71: D, Wayne, is charged with conspiracy to distribute narcotics…W offers testimony of coconspirator, who promptly invokes privilege against self-incrimination…D then offers testimony of co- III. conspirator during his guilty plea proceedinggenerally speaking in criminal guilty plea, there is NOT opportunity for cross-examination = judge does questioning [NOT in shoes of prosecutor] 1. Guilty Plea TestimonyNO opportunity to develop testimony 2. NOT similar motive = NOT admissible!! [saying you are guilty v. other guy trying to not be found guilty] HEARSAY EXCEPTIONS 804(b)(2)-(4), (6): 804(b)—the following are NOT excluded by the hearsay rule if the declarant is unavailable as a witness…. a. 804(b)(2): 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. i. ELEMENTS: Dying Declaration 1. Unavailable [declarant] 2. Homicide/civil cases [limitation on type of case (Fed.) v. NO limitation (Cal.)] 3. Declarant believed his death was imminent 4. Regarding cause or circumstance of impending death [limitation as to subject matter] ii. Rationale—psychological forces that come into play when one believes that they a re about to die and causes one to be truthful [however, movement toward questioning this exception] iii. Problems: 1. 10-72: Mrs. H become ill after her morning coffee…later that afternoon, as she lay sick in her bed, she said to her maid „it was my husband who poisoned me‟…she later lapsed into coma and week later died without regaining consciousness…if her husband is prosecuted for murder, can prosecution offer in evidence Mrs. H‟s statement to maidNOT admissible…require that believe that actually dieing [can recover from poisoning] a. Problem is that there is NOTHING in facts to indicate that she believed she was about to die [Shephard—statement inadmissible because she said H poisoned her when she was actually recovering] b. E.g.—If doctor says „You are about to die‟ = offer doctor‟s statement and it is NOT hearsay, but circumstantial evidence of effect on hearer…then could prove that declarant believed they were dying 2. 10-73: As JP lay dying of gunshot wounds after robbery of her purse, she gasped „I know my time is almost up, thanks to that gunshot wound. I want you to know that it was PP who robbed me!‟…JP then lapsed into coma…prosecution offer J‟s statement against PP in his subsequent trial for robberyNOT admissible because it is a robbery trial, does NOT fit within case limitation of homicide or civil case [federally], a. But if in California there is NO limitation [but issue would be whether cause or circumstance of impending death (require inference that guy who robbed her shot her) b. Could get in under excited utterance 803(2) [made under stress of exciting event (being robbed) and it was continuous] 3. 10-74: W returns home to find husband, H, shot in shoulder…H said „Honey, I‟ve been shot! Call Dr. FG right away to fix me up. By the way, JS shot me.‟…H then dies…in subsequent prosecution of JS for murder can prosecution use H‟s statements to WNOT admissible because he feels he is fixable because advised to call doctor [does NOT believe death is imminent] + „oh by the way‟ [will NOT come in as excited utterance] 4. 10-75: As SB knowingly lay dying, he stated „It was J the exterminator who shot me‟…SB miraculously recovered and brought suit against J for his injuries, can SB offer prior statement at trialNOT admissible, since he is suing there is NO showing of unavailability…doesn‟t matter that he didn‟t die, but fact that he is NOT unavailable 5. 10-76: DD charged with conspiracy to illegally influence operations of Employee Benefit Plan…government witness states in testimony to grand jury, „I known he‟s going to kill me for saying this, but it was D who tried to heist million from EBP‟…witness is later mysteriously killedGrand Jury testimony is NOT admissible a. Grand Jury testimony will NOT come in as former testimony because NO similar motive to develop [D] b. May actually believe he may be killed, but NO imminence [must deal with cause or circumstance that is about to occur (backward looking)] + problem with colloquium that „she is going to kill me‟ where usually are NOT actually killed b. 804(b)(3): Statement against interest—a statement which was at the time of its making so far contrary to the declarant‟s pecuniary or propriety interest, or so far tending 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 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 and offered to exculpate the accused is NOT admissible UNLESS corroborating circumstances clearly indicate the trustworthiness of the statement i. ELEMENTS: Against Interest 1. Unavailable 2. Statement against pecuniary, proprietary or penal interest of declarant at time statement was made a. Cal.—against social interest (E.g.—admit that you are really fat) 3. Would NOT make statement UNLESS true (reasonable person would NOT make unless true) 4. Qualification—If defendant uses to exculpate MUST corroborate statement [facts of declaration of truth/reliability of declarant] a. Defendant using someone else‟s statement to exculpate themselves…MUST be corroborated [criminal D offering to exculpate] i. Can‟t prosecute that declarant because they are not around or dead ii. E.g.—Fred said that he was the one who robbed the bank iii. Usually admitting guilt of declarant and they are NOT within reach of prosecution = untrustworthy b. Cal.—does NOT require this!!! 801(d)(2)—party admission [will admit conclusory statements] 804(b)(3)—most courts will NOT admit conclusory statements Party Anyone—but MUST be unavailable Can be self-serving when made Against interest when made [need to know their interest] ii. Context: 1. Against Interest—Chase going into Starr‟s office and telling him she has 4 grams of cocaine to sell [against her interest] v. saying during drug sale [NOT against interest] 2. Would NOT make unless true—statement in Starr‟s office [wouldn‟t make unless true] v. boasting on street had 4 grams and only had 1 [possibly make even though untrue] 3. Consider statement made during card game that robbed bank [joking] v. telling police station that robbed bank [against interest and would NOT make unless true] iii. Williamson v. US (1994)—interpretation of federal rules of evidence, NOT construction of constitutional principle [NOT binding on other jurisdictions…just federal court] 1. Statements: a. „I transported cocaine‟ = against declarant‟s interest because confession after arrest b. „It was W‟s cocaine‟ = could show against interest because conspiracy or guilty involvement in drug transportation scheme [against penal interest]…but context of statement made [post-arrest, caught with trunk of cocaine]could minimize involvement 2. ISSUE: whether lower court erred in admitting against W, the declarant pled out…decided reliability ONLY attached to statements against declarant‟s interest 3. RULE: ONLY statements actually against declarant‟s OWN interest at the time are admissible 4. Holding—case remanded with strong suggestion that these kinds of cases are made with selfserving motives [post-arrest statement are almost NEVER used against D, unless solely against D (rather than sharing blame or passing)] 5. What if?? Pre-arrest statement that „It was W‟s cocaine‟: Party Admission—co-conspirator statement 801(d)(2)(E) [pre-arrest: pendency; in furtherance; members of conspiracy (coventurer)] iv. Problems: 1. 10-77: GW tell 4-H Club during speech, „I own Watts Savings and Loan Co.‟…at the time he made statement, WS & L was considered one of most robust banks in country…2 years later unraveled and GW charged with misconduct pertaining to bank…in later civil suit against several of GW‟s partners, GS becomes unavailable to testify…P wants to use GW‟s statement conceding ownershipNOT admissible as statement against interest because at the time there was NOTHING to indicate that against pecuniary, proprietary, property interest…statements made later indicate this, but NOT „at the time‟ 2. 10-78: R, who often suffered from delusions of grandeur, took visitors on tour of San Francisco…as neared GG Bridge, R exclaimed: a. „Hey, that‟s the GG Bridge; I must confess I don‟t own it‟NOT admissible, statement that he doesn‟t own bridge is NOT against his interest b. „Let me confess that I don‟t own this Jag, either, I just lease it‟NOT admissible, statement NOT against his interest 3. 10-79: KVR, billionaire, discovers Buddhism…denounces possessions and boards flight to Tibet, where she plans to spend rest of her life in a monastery…as plane takes off, she exclaims „I must set record straight before I begin my new life; I did pay L to kill by poor husband and his lover‟…statement offered by prosecution in L‟s subsequent trial for murdering KVR‟s husbandcould argue that it is NOT against her interest because she waits until plane takes off, she is going to Tibet and is never planning to come back [did NOT actually believe that she could be prosecuted] c. If prosecution is trying to use it in case against L = do NOT need to corroborate, ONLY if L is using to exculpate himself [defendant] b. If tire had blown out and she was NOT actually leaving when made statement = Williamson problem—part about having H killed is against her interest, but part about paying L is NOT against her interest truly [identity of person who did it may NOT be directly against her interest] c. Possible issue that if L is her butler—801(d)(2)(D): party admission of employment 4. 10-80: H was boasting one day in prison, „I‟m the greatest killer, no one can touch me, I float so fast. Why, I‟m the one who killed that J fellow. Hah! They‟re prosecuting that poor goat, S; what a joke‟…at S‟s trial, S wishes to offer H‟s statement after demonstrating that H is unavailable to testify a. If boasting = advancing some interest, rather than against interest and could harm some admissibility [could be against penal interest, but NOT necessarily statement that would NOT make unless true (what if in prison and lying)] b. S [D] is offering to exculpate himself would require some corroboration [show that is reliable or corroborate some of details] 5. 10-81: On special edition of „Larry Lives!‟, guest is FF, known for being cool…in startling admission F concedes, „Yes, it is true that I had affair with Cher‟s cousin who is 35 years my senior. I also act uncool by watching Brady Bunch reruns with her. I‟m embarrassed to tell you these things‟…F becomes unavailable to testify about these statements in later trialStatements NOT against interest in federal system [could make argument that affects proprietary interest of working again], BUT would be admissible in California as qualifying against social interest 6. 10-82: WW asked whether he shot and injured co-worker, C…W responded by stating, “Sure I shot the #$@@#! Guy! He was beating me up with a tire iron!”…assume W is unavailable to testifyCONTEXT…because self-defense this would NOT be against his interest, but made to advance interest of self-defense, therefore NOT admissible…however, if offered by another defendant could have Williamson issue or necessity of corroboration if offered to exculpate D 7. 10-83: Defendant, I, charged with possession with intent to distribute cocaine…WW who just pled guilty to 98 counts on a criminal indictment, told authorities that he would be able to help them because he had personal information that the defendant was guilty….soon thereafter WW disappears a. WW‟s statement are NOT admissible against defendant at trial because actually in furtherance of interest b. If I testifies that while in prison, he was told by WW, a fellow inmate, „too ad you‟re going down for the count, I was the one who was gong to sell all the coke to the government informant‟I is on trial and offering that WW did it…offered by defendant to exculpate, NEED something to corroborate [conclusory statements usually NOT admitted („I am guilty‟; „It was me‟), but would require further facts/evidence] 804(b)(4): Statement of personal or family history: i. (A) A statement concerning the declarant‟s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of matter stated; or ii. (B) A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other‟s family as to be likely to have accurate information concerning the matter declared iii. ELEMENTS: 1. Unavailable 2. Family history/pedigree of D or family history of very close associate [someone who would reliably tell you] 3. Facts ONLY [NOT motives] iv. Examples: 1. Chase‟s grandmother came from the Netherlands…no one was alive when this happened, but because family history would be allowed in [declarants unavailable because all dead, but still deemed to have personal knowledge] 2. Would NOT be able to testify that grandfather married grandmother to gain legal citizenship because that is motive, rather than facts!! v. Problem: 10-84—S sought payment from insurance company relating to her sister‟s death…at trial, S‟s counsel, St, asked her on direct examination, „What did your sister say was her date of birth?‟…defense counsel, L, objected, stating „That would be speculation, Your Honor. Her sister had no personal knowledge of her date of birth. Furthermore, it would be hearsay‟NO personal knowledge of date of day you were born a. IV. Double Hearsay—witness is being asked what her sister said and her sister found out about it from someone else [ONLY source of sister‟s knowledge of her birth date would be that someone told her that] a. Mother told sister date of her birth [mother‟s statement to sister] = 804(b)(4) works b. Sister repeated it to witness [sister‟s statement to witness] = 804(b)(4) works d. 804(b)(6): 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 i. NOT exception to hearsay rule, but forfeiture provision ii. Prevents a person who has procured the unavailability of a witness from objecting on HEARSAY grounds iii. E.g.—If you kill a witness to prevent them from testifying, you can NOT object 1. Judge would find by preponderance of evidence 2. Court could find that D killed the witness and use that as a basis for admitting the witness‟ statement against D [NOT in front of jury!] REVIEW PROBLEMS: a. 10-85: S went to a party to take break from data entry…the last time anyone saw her was when she left the party, apparently alone…P is charged with S‟s murder [which testimony is admissible] i. Su says I heard S say at the party „I‟m going to go to the liquor store with Peter; I‟ll be back‟ 1. „I‟m going to liquor store‟ admissible under 803(3) state of mind—statement of future intent 2. Statement can be offered to prove S‟s future intent to which we can infer that she probably did this 3. Reliability issues to prove P‟s intent—Hillmon case indicates that it COULD be admitted to show P was going too ii. Su: I told S, „Is that a gun P is showing D over there? It looks like a Smith and Wesson‟probably will come in as present sense impression 803(1) iii. Su: P said as he left the party that he was going to go home to sleep because he was feeling very tired: 1. If offered by prosecution, admission of party opponent 801(d)(2)(A) 2. If offered by defense could be admitted as statement of future intent 803(3) 3. Feeling very tired: a. Come in under present physical condition 803(3) b. Present sense impression 803(1) iv. Su: S knew that I was doing my neurology residency and she asked me what to do about some dizzy spells that she had been havingadmissible under 803(4) medical diagnosis or treatment…seems that seeking treatment/diagnosis for physical problem that she is having [purpose for patient receiving medical diagnosis/treatment]…backward looking statement so definitely would NOT come in under 803(3) [dizzy spells BEEN having…not presently] b. 10-86: several hours after eating Shepard‟s Pie, Mrs. C shrieked, “My hands are tingling; that snake Mr. C must have poisoned me!”…Mrs. C then collapsed and died, Mr. C charged with her murder…statements admissible at trial? i. Hands tingling = 803(3) statement of present physical condition OR 803(1) present sense impression OR 803(2) excited utterance ii. NOTHING to indicate that she though she was dying = 804(b)(2) iii. Problem with excited utterance 803(2) is that she does NOT have personal knowledge that Mr. C poisoned her…even though it concerns a startling event, it does NOT look like it is within her personal knowledge, too speculative!! c. 10-87: In prom-night accident, intoxicated senior named R drives at high speed into group of freshman at street corner…no one is killed, several serious injuries occur…in subsequent trial brought by parents of injured bystanders, which records admissible: i. Hospital records reflecting injuries of bystandersAdmissible as business records 803(6) [if records JUST reflect injury it is undertaken by hospital personnel], BUT if statements taken from patients or bystanders it is still admissible under 803(4) as statement for purpose of medical diagnosis or treatment ii. Repair records of car that crashed as regularly maintained by B Service Station & Auto Repairprobably admissible as business records 803(6)…likely to be satisfied iii. Notes taken by one of parents detailing torturous recovery of victimif parent is on stand and asked to explain, and past memory appears to be failing, could be recorded recollection 803(4)…otherwise inadmissible hearsay iv. Records of weather bureau for that day regarding rain and time of sunsetAdmissible as public records 803(8)…factual findings by a public agency v. Police report providing description of accident and its causeAdmissible because it is CIVIL, restriction of 803(8) does NOT allow police reports in criminal cases…evaluative report can be excluded if NOT trustworthy, even though it reaches a conclusion d. 10-88: Witness, AS, testified at Congressional oversight hearing on subcontracting irregularities in the Army and then disappeared…in subsequent criminal trial brought against one of the subcontractors, can the defendant offer the videotape of AS‟s testimony against the prosecution 1. V. i. Cases: argument that DA is NOT same as Congress…NOT same party 1. Congressional hearing—Congress v. Army 2. Criminal trial—DA v. Subcontractor ii. Could make argument that predecessor in interest, but NOT same factsNOT going to come in as former testimony [804(b)(1)]…Congressional hearing is different matter and NOT likely to come in because different motives as well e. 10-89: Issue in probate proceeding was whether fugitive, F, who was wanted at death of his wife, was still alive…2 months earlier, A knowingly lay dying at the hands of an intruder,, he blurted out, „J killed F last month!‟…A then died…statements admissible at trial: i. NOT going to come in as dying declaration 804(b)(2) because NOT regarding the cause or circumstance of impending death ii. Does NOT qualify under 803(2) excited utterance because must be statement that is prompted by exciting event/occurrence that relates to the event and excitement has been continuous [can‟t sustain excited state for 1 month!!] f. 10-90: J‟s best friend P was charged with improperly charging for „overdrive‟ on model cars when merely decorative…when J was asked why he did NOT come to friend‟s defense, J stated, „because they would‟ve found out that I knew more about those charges than P did‟…J suffers stroke and unable to testify, can P offer J‟s statement at his trial on fraud chargescriminal trial an brought charges…804(b)(3)—offering as excuse for why he didn‟t come forward, recognizes as against penal interest i. P [defendant] offering it and claiming that NOT responsible, so need corroboration ii. May come in as statement against interest, because he is offering as reason to why he didn‟t come forwardoffered by D to exculpate D, limitation of corroboration [reliability of declarant and statement of fact] g. 10-91: Witness, D, testified before grand jury investigating claims of child abuse at a day-care center…prior to trial, D suffers stroke…can D‟s grand jury testimony be offered at trial: 804(b)(1) i. Prosecution could NEVER admit as former testimony ii. D could possibly offer ONLY if can show prosecution had similar opportunity and motive to develop…was witness reliable?? FED. R. EVID. 805-807: a. 805: Hearsay Within Hearsay—hearsay included within hearsay is NOT excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules i. Example—“I phoned my wife and heard a commotion [at this point there is NO hearsay…]. My wife said Harold was screaming that Evan ran over his dog”Double Hearsay: 1. Wife‟s statement could be admitted as present sense impression 803(1) [recording what she is seeing as it occurs] 2. Harold‟s statement could come in as excited utterance 803(2) because screaming ii. MOST likely to see when a piece of paper comes in [court reporter‟s statement] iii. Problem—10-92: H and C were at their favorite fast food restaurant when H began to choke on piece of boneless chicken…H rushed to hospital where fragment of hair brush was extracted from stomach…Officer D‟s report contained notation: „It was reported to my by store manager, AB, that the assistant manager, ML, said that an employee, GM, had lost her hair brush earlier that day at the restaurant‟ 1. Police report [CIVIL trial…NOT criminal] could be admissible as public record 803(8) 2. Restaurant is being sued, could be admitted as admission offered against party-opponent 801(d)(2)(D)—would cover manager and other employees [statement being offered as nonhearsay use, then got business record exception allowed] 3. Do NOT know how GM lost her hairbrush, whether saw it or she told ML, however personal knowledge is NOT required for admission offered against party opponent b. 806: Attacking and Supporting Credibility of Declarant—When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. i. Provides anything you could use to impeach a testifying witness, could also use to impeach a declarant‟s credibility 1. E.g.—prior statement by witness that light was red, then testify that light was green = admissible for impeachment purposes [NOT being offered for TOMA] 2. Same true is statement by declarant that light was red, then green ii. Inconsistent statements 1. With live witnesses = it will always be prior inconsistent statement v. VI. With declarant = it is ONLY necessary to impeach with inconsistent statements [statement does NOT need to be made prior to have inconsistent statement offered into evidence] iii. Opportunity to explain 1. If life witness going to be impeached, MUST have opportunity to explain v. 2. With declarant = does NOT matter that they will NOT have opportunity to explain [NO limitation] iv. Impeachment RULE for impeaching a declarant’s credibility!! v. Problem—10-93: J, an eyewitness, testifies for D, L, in robbery trial…J states that she heard a bystander, D, exclaim at the time of the robbery, „Look! There goes L with the purse down the alley!‟…the hearsay statement of D was admitted as an excited utterance after some discussion at sidebar…prosecution subsequently offers evidence that D has been convicted of burglary twice and shoplifting once, D‟s prior convictions admissible806, offering to discredit the declarant….anything that can be used to discredit a witness can be used to discredit a declarant [assuming these are felony convictions, routinely admitted therefore admitted against declarant] 1. Certified copy of conviction = HEARSAY, but admissible under 803(8) public record 2. Ask anyone in court room about when conviction was handed down c. 807: Residual Exception—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 i. (A) the statement is offered as evidence of a material fact; ii. (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 iii. (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. iv. 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 and address of the declarant v. ELEMENTS: applies when you think you have HS that in all fairness should be admitted 1. NO other exception [careful that there isn‟t an indicia of reliability that you fail to rely on] 2. Circumstantial guarantees of trustworthiness = to exceptions 3. 3 findings a. Materiality—important to determination of action b. “Superiority”—barely any other available evidence on point [if there is other evidence that doesn‟t involve HS and it is just as probative, will be admitted instead] c. Justice—in interest of justice to be admitted [silly requirement] 4. Notice—opponent of HS evidence has to be given enough time to „meet the evidence‟…discover a. Pre-trial notice is preferred—should notify opponent that going to offer, information about who declarant is so they can do some investigation b. Allowed to give notice in trial—usually grant continuance so other side can do some investigation vi. Example—used almost exclusively for statements of very young children in cases of sexual abuse 1. Circumstantial guarantee of reliability—describing an act that a 4 year old would NOT be aware of UNLESS he/she had experienced it 2. Declarant would NOT know about this unless they experienced it 3. Related to victim, therefore material vii. Cal. does NOT have residual HS exceptionwhen something becomes an issue for courts…legislature will develop new rule 1. Nicole Simpson rule = domestic violence declarant 2. Child abuse rule viii. Problem—10-94: K was interviewing eyewitness, E, in highly publicized criminal case involving baseball manager and several politicians for her morning show…interview was taped. Same day, K taped a deposition given by the same witness, as part of her on-going story…next day, E disappeared never to be seen again…can either of K‟s videotapes be admitted in criminal trial?? 1. InterviewNOT recording regularly conducted business activity, therefore inadmissible under 803(6) business records exception 2. Depositionprobably not going to come in as FORMER testimony [804(b)(1)] = question of whether there was anyone there to cross-examine [were all parties to litigation there??] a. Assuming that attorney was there, was there motive to develop?? b. Could come in under 806…residual exception SUMMARY: Problem 10-95—JD was fired from his job at State University…the dismissal letter stated that he was a drunkard on the job, which caused him to be unable to fulfill his responsibilities and duties…JD brought suit against University claiming defamationa former co-worker, A, will testify: 2. a. b. c. d. e. f. g. h. i. j. k. l. „JD is 46 years old and has 2 relatives living in Akron area near where we work‟NOT hearsay…need to show personal knowledge some how, but in court testimony „All of us at work think that J is the nicest guy, and that he does NOT have a major alcohol problem‟HEARSAY [offered to prove TOMA…he doesn‟t have alcohol problem], but admissible under 803(21) Reputation as to Character „I heard in the lunch room at work that he had fallen down 8 times last week and that his breath was real bad, smelled like alcohol‟HEARSAY [offered to prove that he was a drunkard (TOMA)] = NOT admissible „I saw him at work every day of each semester and he seemed to be fine. I could NOT tell if he was intoxicated‟NOT hearsay [in court testimony based on personal knowledge] „I saw him stumble at times, but J said that he had a hip problem that caused him trouble when he walked‟ i. Part about seeing him stumble = in court testimony [NOT hearsay] ii. Part about hip problem = 1. If offered by JHEARSAY [not admissible] 2. If offered by UniversityHEARSAY, but admissible as party admission [801(d)(1)(A)]…however, NOT likely that they would want to introduce this iii. Should get on stand and talk about his own hip problem…not being told for medical purpose/treatment „Here‟s the University memorandum that says „Dear J; We must unfortunately release you from your employment. You have been a drunkard on the job, causing you to be unable to fulfill your responsibilities and duties‟‟NOT hearsay…fact that statement was made is what is important to the action [defamation to be actionable must be false]…memorandum that makes allegedly false statement is VERBAL ACT (act of independent legal significance) „I saw J at the Salty Bar quaffing 2 lite beers last Wednesday at lunch‟NOT hearsay „When J was handed the memorandum, I heard S, the assistant registrar, exclaim, „He‟s fainting. Catch him!‟HEARSAY, but admissible as 803(1) present sense impression or 803(2) excited utterance „Last week S said that she was going to meet J at the Salty Bar after work to have a couple of beers‟HEARSAY i. If offered to prove S went = could be admissible under 803(3) state of mind exception ii. Problem with proving whether J was going = 803(3) Hillmon dilemma…further, less reliable because NO indication that J was going to drink „I heard J tell the nurse that his hip hurt bad, so much that he was having trouble sleeping and walking, and that he needed some medication to ease the paid. He also told the nurse that the University was trying to run him out of school on some trumped up alcohol charge and he had to work harder as a result‟ i. Telling nurse about painHEARSAY, but admissible under 803(4) statements for purpose of medical diagnosis/treatment ii. Part about University trying to run him out of school on alcohol chargeHEARSAY, NOT admissible iii. Fact that he is having to work harderHEARSAY, but possibly admissible under 803(4) if offered as cause of medical problems „I have here a memo from University Security, stating that „The subject, J, has been investigated on suspicion of narcotics use. We conclude that he is not a drug addict. We believe, however, that he has experimented with marijuana. We further conclude that he is an alcoholic”HEARSAY i. Offered by J = could come in as party admission [801(d)(2)(A)] ii. 803(8)(C)?? iii. Potential for NON-hearsay use if point of view of effect on hearer [NOT TOMA] „After work one day we were all standing around, teasing each other. Another employee, I forget who, said to J, „So, is it true that you are best friends with Jack Daniels? Is it?‟ Jones just blushed, sort of smiled, and did NOT say anything‟ HEARSAY i. adoptive admission by silence [801(d)(2)(B)]…problem is that you are trying to figure out if it is sort of thing would deny if NOT true [can‟t really know without knowing the person who made it would be taken seriously] ii. Courts tend to be conservative in admitting adoptive admission by silence…LONGSHOT to get i