Evidence 2 Notes and Outline- Professor Alexander

Michael M. Wechsler Evidence 2 1 I. Statements as Hearsay: If offered to prove the truth of the matters asserted (I am insane) it is hearsay and inadmissible. If it is offered as circumstantial evidence of the state of mind of speaker or listener, then it is hearsay, but admissible under the hearsay exception. Hypo: I‟m in court and testifying that on 5/2 I made a telephone call to Boston to my wife and she said to me that it was raining in Boston. If I am trying to prove in court that it was raining in Boston on May 2 it is hearsay as it is an out of court statement brought into court to prove the matter asserted. - But if I was merely trying to prove that on May 2 my wife was alive, and I recognized her voice on the phone, and that is how I know she is alive. Not Hearsay - these out of court statements made by my wife are NOT hearsay because those facts were not trying to be asserted as truth in court. The truth of her statements is irrelevant, we don‟t care about the truth as to whether it was raining, just that she uttered words. You have me testifying on the stand to cross examine regarding the fact that I heard my wife talk, and the jury can conclude as to my credibility. Rule: Therefore, out of court words being spoken by someone can provide circumstantial evidence of something else other than the truth of the matter asserted in the statement. Central Georgia Railway v. Reeves - p. 602 A doctor examined the plaintiff at the request of the Defendant railway. The plaintiff is trying to introduce the evidence regarding the doctor‟s statements during this examination. The doctor said to the plaintiff that he indicated different problems with his limbs and body, basically stating that he is a “physical wreck.” He will never be able to work another day in his life. The doctor is not in the courtroom and the plaintiff is stating what the doctor told him, which is hearsay. The damages that the plaintiff was trying to prove was that his mental condition was that of being distraught, recovering for mental anguish in tort, not that his body was necessarily a physical wreck. Just that the plaintiff himself thought that he was, which was his mental anguish, a tort. The plaintiff is not trying to assert the truth of the statements made by the doctor that he was actually a physical wreck in reality, and that he could never work in the railroad again. He is only stating that when the doctor told him those words, truth or not, he believed that he would never ever be able to work again in the job that he loved. The truth of the diagnosis is irrelevant, only the effect. The Alabama Supreme Court got it totally wrong - hearsay is an out of court statement being offered in court to prove truth of the matter asserted in the statement. The truth of the doctor‟s statement is that he is a physical wreck, but the matter being asserted is that he had mental anguish, NOT that his arm ad body was a physical wreck. He is using the doctor‟s statement as circumstantial evidence of something else - that anyone who heard such news would suffer terrible mental anguish. The ruling of the Alabama S.C. is an anomaly, ruling that this was an indirect way of proving truth of the matter Rule: When the statement is being offered to prove the mental anguish, it does not matter whether the doctor was accurate in his analysis, so it is not hearsay, and the witness/plaintiff is on the stand to be cross examined as to his mental state. All that matters is whether the doctor said those words, and the patient can be crossed for credibility. 1. whether the doctor actually said those words so we test his memory 2. whether he really suffered mental anguish Ferraro v. Galuccio plaintiff went in for radiation treatment and the radiologist applied x-rays to the plaintiff. The application started to fester and the skin started to fall off. plaintiff later went to a dermatologist who went berserk and told her that she was going to get cancer because of this. So she sued the radiologist, who applied the X-rays for: 1. he used an excess of x-rays that caused this skin problem 2. cancerphobia developed as a result of what the dermatologist told her At trial, the court did not want to allow her statement that the doctor told her that she would get cancer as it would be hearsay. But this was allowed and not hearsay because this again, was a suit for mental anguish in tort. The dermatologists statement is not being offered to prove the matter asserted. All that matters is that: 1. The dermatologist made the statement 2. The plaintiff heard the dermatologist make that statement McCormick: The speaker’s statement is being offered as circumstantial evidence as to the listener’s state of mind. - This all hinges upon whether we believe the patient that the statement was said and that she suffered mental anguish because of them - and she is available for cross as to credibility. - If we are trying to prove physical condition, then the statement would be inadmissible hearsay and the doctor needs to be brought to prove the truth of the matter asserted. Evidence 2 Michael M. Wechsler 1 Michael M. Wechsler Evidence 2 2 The truth of what the doctor said is one again immaterial, his diagnosis could have been completely wrong, and the point is whether he made those statements to his patients and that caused the patient to react. The question is to credibility, as to whether we believe the patient that the words were uttered and that they had the effect the patient said that they did. if the plaintiff was trying to prove that the arm was unfixable and she could never work again, or bad skin, then the doctor‟s accuracy becomes important, we need to cross him, but he is not available, and THAT is hearsay and inadmissible. Rule: You must look at the purpose for which these out of court statements are being offered. We give limiting instructions to the jury - which in reality is difficult, that the jury cannot use the evidence that the doctor told the patient that he was a physical wreck - they must have other evidence, such as the testimony of an expert witness other doctor that will show that the plaintiff was truly a physical wreck. Hypo: Auto accident, plaintiff sues Defendant for negligence that Defendant was driving car with bald tires and he knew it. First witness called to stand states he was with Defendant two days before accident in the mechanic‟s shop, and mechanic investigated the car and told Defendant that he needed new tires because his tires were bald. Defendant may object that the out of court statement of the mechanic is hearsay - his observation is that he is trying to bring the truth of the matter asserted. plaintiff can state that the statement is not hearsay because all that matters is the Defendant‟s state of mind. Whether or not the mechanic was right or not - the truth - is irrelevant. The point is that the Defendant had notice, that he was warned beforehand. The plaintiff will prove that the tires were bald from other evidence, but this evidence is brought by witness to show the Defendant‟s state of mind. The witness is on the stand to cross as to whether or not the statement was actually made and whether the Defendant heard it. Hypo - note 3 p.604 - Woman in store says “look out, there is a bottle of ketchup broken in aisle 3.” Not offered to prove that there actually was a broken bottle of ketchup in aisle 3, only that there was a prior warning to the plaintiff. Hypo - Sex discrimination case. plaintiff goes to place of potential employment and is not hired and sues only because she is female. There is discrimination and damages. Defendant claims good faith reason for not hiring her. Defendant takes stand and testifies that when he considered hiring her he did a background check and called plaintiff‟s former employer - this would be hearsay. The former employer told him that she stole from petty cash. This is not hearsay as once again it tries to prove mental state of good faith - the Defendant may claim that he believed that this person may not be the right person for the job through the statement. Whether she was in fact a thief is not relevant for the defense. This is only offered to prove that you actually believed in good faith that this person was not right for the job. It is merely circumstantial evidence as to the listener‟s state of mind. RULE - when statement offered to prove mental state but not truth of the matter asserted, it is NOT hearsay. -----------------------------------------------------------------Statements not hearsay: 1) Legal significance of words - verbal acts, e.g. contract formation - Proving the truth of oral contracts - requires repeating the words heard of the offer and acceptance. It does NOT matter of the subjective intent of the speaker who accepts - it is objective manifestation. Therefore, the truth of the words are not necessary to prove the “truth” of the matter asserted, whether B actually meant to accept. All he needs to do is say those words he is bound. - X holds placard “Alexander is a dirty cheat.” and Alex sues X for defamation. I call Witness W who say the placard and I will ask him to testify as to what he heard X say at the trial. X will claim hearsay, but it is not for two reasons: 1) Alex is not trying to prove the truth of what X said - no, Alex is not trying to prove the opposite, that he is not a dirty cheat, just that the words were stated and the witness is there for cross and credibility. 2) The words have legal significance attached as once they are said and are false in public, then there is defamation. The law simply requires proof that the words were stated. - President of the US is threatened to be killed, that is a crime. Words have legal significance. - Fraud is spoken to you, words have legally operated effect and merely need to show that the words were stated. Verbal Parts of acts - words that characterize a transaction. The mere fact that they are spoken yields significance Hypo - Witness on stand sees A hands Rolex watch to B, and issue at trial, is why did A hand the Rolex to B, what is the significance of the transaction? Gift, loan, bribe? What if A said that he wanted B to have this long family heirloom, I want you to have it? It seems like a gift, but we don‟t care whether there was any truth to the fact that it was or was not an actual family heirloom. Once again there is legal Evidence 2 Michael M. Wechsler 2 Michael M. Wechsler Evidence 2 3 significance attached, the fact that there was a gift made. The law requires merely a manifestation of donate intent, and here is seems that words of gift were made amongst what is an ambiguous act. Evidence 2 Michael M. Wechsler 3 Michael M. Wechsler Evidence 2 4 Sollars - 627 Defendant caught red handed and claims insanity, and therefore is not criminally culpable. Burden is on Defendant to show he is not sane. Defendant offers evidence of letters that he wrote to people while he was in the psychiatric home. The court says they were not hearsay, just evidence of his mental state at the time they were written. - Let us say these letters were written to the Pope, Walter Winchell, etc.. and let us say that he wrote to the Pope that he is the reincarnation of St. Paul, I am being held by the FBI, help me out. This is NOT hearsay because the assertion by Defendant is that he is St. Paul, but the Defendant is not trying to prove this. he is merely trying to prove the inference that anyone who writes such letters to the Pope infers insanity. It is circumstantial evidence of something else, being the speaker‟s state of mind. Rule: When the speaker‟s out of court statement is not being offered to prove the truth of the speaker‟s statement, but of his state of mind, it is not hearsay. - Question as to whether he is faking is a different issue of credibility Betts - 629 Mrs. Betts is living with someone new named Ray, and the suit involves a custody action. Two kids, one is killed as victim of a homicide, and Ray, the wife‟s new boyfriend was charged with the male child‟s death. In the case against Ray he was acquitted of the crime/mistrial. He is still living with her and the one surviving child, Tracy, Issue is custody of Tracy between Mr. and Mrs. Betts. Custody law usually favors the mother but family court judges feel that the child‟s physical and emotional well-being and which parent the child will flourish is paramount substantive law issue. The judge is trying to figure out which parent would be best interests for the child. racy had been living with foster mother during the trial and foster mother is testifying to things that Tracy told her, and Tracy said that Ray told her that he killed her brother and he‟ll kill her mother too. Tracy‟s out of court statements are not being offered to prove the truth of the matters asserted by Tracy, that he killed her brother and that he will kill her mother. They are being offered to show that the child thinks that Ray killed her brother and that living with the mother and Ray will be more than uncomfortable, despite whether or not Ray was even completely innocent. What matters is merely what she believes. The child‟s statements are circumstantial evidence of the speaker’s state of mind. Loetsch -p. 628 NY case person who is suing tortfeasor for wrongful death of wife. Sues for pecuniary benefits suffered by the surviving family members. This concerns merely the money that the decedent could have earned had the decedent lived. You must prove that you would have made this money. Defendant wanted to rebut the evidence by introducing the victim‟s will, which stated that she believed that her husband was a cruel piece of scum, and that all she should have given him when she died was one dollar. But this proceeding is not what husband would have gotten at a probate hearing, but how much he would have gotten had she been alive. - We will say that in all previous cases, all the assertions were not to prove truth, but to prove fact B. e.g. Sollars writes to the Pope “I am insane”, Tracy says “I feel uncomfortable with Ray”, Mrs. Loetsch said in will “I really don‟t like my husband” ? Then the assertions have been changed, and if I was trying to prove in Sollars that he was insane, and that Tracy was uncomfortable with Ray, Loetsch didn‟t like her husband, then these are out of court statements being offered to prove the truth of the matters asserted. These are direct assertions of state of mind. Rule: direct assertions of state of mind are hearsay (e.g. I hate my husband, I am scared of Ray, I am insane) - There is a exception for state of mind hearsay - These situations they ARE hearsay but are merely exceptions so are admissible. Evidence 2 Michael M. Wechsler 4 Michael M. Wechsler Conduct as Hearsay Evidence 2 5 Hypo: Auto accident, question as to who ran the red light. plaintiff calls police officer who testifies that he went to the scene, questioned the bystanders who ran the red light, and one of them pointed at the Defendant. The bystander, through his conduct, made an assertion - he didn‟t have to say anything, his conduct was as though he was saying that the Defendant ran the red light by pointing. We would have wanted to cross examine him because his credibility is at issue. This is inadmissible conduct as hearsay that makes an assertion. Hypo: Paul Revere is going to hang lanterns in the church tower “One by land, two by sea” as to how the British will come to Lexington by Concord. Is it hearsay if one of the witnesses testifies as to how the British came, and he says that it was a prearranged signal. This is conduct asserted as fact, and this would be hearsay. See FRE 801. FRE 801(2) - Out of court conduct is hearsay through what is a statement. A statement is an : 1) Oral or written assertion 2) Non verbal conduct of a person if it is intended by the person as an assertion (e.g. pointing or using a signal) Animals are not hearsay with conduct as assertions. Hypo: Defendant is smuggling drugs through airport. Air police officer testifies that a trained dog ran over to the Defendant‟s suitcase and went wild as he would when there is drugs in a suitcase. This is NOT hearsay because it only applies and is relevant only to human people who have the ability to be cross examined and have the ability to be insincere. Dogs cannot lie. What if I don‟t want to make any assertions from my conduct? Hypo: I am trying to prove it was raining in Boston on May 2, and I have no testimony from anyone who was there, and all I have is a videotape, taken by a person in Boston on May 2, and you can see this person reaching out into his briefcase to pull out and umbrella, he opens it, and continues walking. The conduct of the person walking down the street is an implied assertion that they thought that it was raining. Their conduct implied their belief that it was raining. Since this is trying to prove that it was raining, and therefore the truth of the matter asserted, than the implied assertion should be given the same treatment as a direct and outright assertion when such implied assertions are drawn from conduct. Wright v. Tatham - 613 - Common Law (Marsden case) There were letters to a guy name Marsden, who is dead at the time of the case, and he left a will. In his will he left all of his property to his stable keeper named Wright. Marsden‟s relatives (Tatham) were very unhappy that they got cut out of the will so he wants to get the will thrown out and as an heir at law he gets the estate. This can be done by showing that at the time of writing the will Marsden was not of sound mind and was insane. Wright tries to show that Marsden was sane by trying to use these letters that Marsden received from other people to show that these letters that discuss ordinary things would not have been written by people who thought that Marsden was a loon. They wouldn‟t have written these letters if they thought that Marsden was insane. This is an implied assumption by the writers that Marsden is capable of understanding them. While the House of Lords threw out the letters as inadmissible hearsay, that indirectly through their conduct, these were implied assertions that they believed Marsden to be sane, and stated that an implied assertion through conduct is hearsay but inadmissible hearsay. It is just as though these writers were writing letters that stated “Hi Marsden, we are writing these letters to you because we think you are sane.” The House believes that this is just as inadmissible as if they wrote “Marsden, you are sane,” or said to their spouse at the time of the writing “I‟m writing Marsden because he is sane,” and that this is trying to prove truth of the matter asserted. Evidence 2 Michael M. Wechsler 5 Michael M. Wechsler Evidence 2 6 Doctor - 621 Issue: What is the ailment that the patient is suffering from. The evidence is that the patient went to see doctor and doctor said nothing after the examination but quarterized the back. Another physician wasn‟t there, but he testified that such a back quarterization is for a spinal injury. Now if you link the two together, this can be hearsay as the treatment administered to the back should be stricken because the doctor who performed the quarterization was impliedly saying that he believes that the patient has a spinal injury. NY said that this is hearsay just like the Wright case that the letters said the same as those writing to Marsden that he is sane, here the doctor is impliedly saying that he has a back injury. Hypo: Was the ship Lollipop seaworthy? A famous sea captain looked at it, and afterwards he booked passage on the ship to a destination without stating a thing about whether the ship was seaworthy. NY and Common Law: Implied assertions are hearsay: would say that by booking the passage it would be impliedly asserting that it was a safe ship and therefore inadmissible hearsay. Modern View: FRE 801(a)(2): Nonassertive conduct is not hearsay: Admissible Hearsay: When a person is not intending to make an assertion, they are just going about their usual business, there is no danger of unreliability, insincerity and falsehood, because no one would lie to himself. A doctor wouldn‟t quarterize the back without making a statement because he simply likes to, the Captain wouldn‟t lie to himself and book passage because he is trying to signal anyone. He is just doing what he would ordinarily do. Therefore the danger of potential lying is taken out of the picture. By taking this factor out of the picture it is NOT a direct assertion of the speaker‟s beliefs. - FRE 801(A)(2): Nonverbal conduct of a person that is intended to make an assertion. Therefore, if the conduct was not intended as an assertion, the conduct is not an assertion and not hearsay. In federal court this may be used to prove implied conduct. Zenni - p. 618 Bookmakers case. Tried to show this was a bookmaking house. When the cops raided the place, the phone rang, the cop picked up the phone after it rang constantly and each one was trying to make a bet. At trial, an attempt to show that the nonassertive conduct showed that those people thought it was a bookmaking house. If they didn‟t think it was a bookmaking house, they wouldn‟t have called to make bets. The people who were trying to make the bets were impliedly asserting that it was a bookmaking house or else they wouldn‟t have called the house. Held: The conduct of people placing bets were not intended as assertions that it was a bookmaking house. They just acted upon their beliefs that it was without actually saying that. It is merely an implied assertion. Rationale of FRE dumping CL position - 619: Two Principal arguments for removing implied assertions: 1) If a person acts in a way consistent with a belief without intention in his actions to convey that belief, the principle of the hearsay rule to exclude declarations whose veracity cannot be tested through cross examination does not apply because the declarant‟s sincerity is not involved. 2) Some cases the trustworthiness is self verifying - his actions speak louder than words. Since he is not trying to assert anything, then the danger of hearsay is never encountered. NONASSERTIVE CONDUCT IS NOT HEARSAY IN FEDERAL COURT The prosecutor in Zenni must show that the people calling for bets are not intending any signal that it was a bookmaking house, only that they were simply calling to make bets. Sea captain wasn‟t asserting that the ship was seaworthy by booking passage is NOT an assertion and therefore is NOT hearsay. The doctor‟s treatment of spinal injury is not hearsay. Evidence 2 Michael M. Wechsler 6 Michael M. Wechsler Class 3 - 2-6 Evidence 2 7 Definition: An out of court statement being offered in court for the purpose of proving the truth of the matter asserted. RULES 1) A person makes an assertion of fact A and is offering to prove the truth of A then we have hearsay. Assertion of A -----> Truth of A = HEARSAY - Verbal acts and verbal parts of acts of legal acts of contract formation are NOT offered for truth of matters asserted. We don‟t care about the honesty of the words or truthfulness in the statement, as the law attaches significance to certain spoken words in our lives (defamation, perjury, contract formation). The only concern is that the words were stated and the consequence is that a contract was formed. 2) Assertion of A -----> B This is no hearsay. If it is being offered to show circumstantial evidence of the speaker or of listener's state of mind it is not hearsay. - e.g. "I am the Pope" is offered to show insanity, not truth of that statement. The statement A is shown to prove B not the fact of A, which would be hearsay. To show insanity. - e.g. “my husband has been cruel to me” - not offered to show that he was actually cruel, fact A, only to prove speaker‟s state of mind, B, wife‟s dislike for husband. - e.g. The statement of proof of the doctor to show cancerphobia and not show proof of development of cancer itself, shows circumstantial evidence of the listener's state of mind and that she was told, and that she believed and was mentally affected by the statement being uttered. 3) Conduct is NOT assertion of A ------> Not hearsay under FRE. NONASSERTIVE CONDUCT IS NOT HEARSAY PER FRE - e.g. if witness points at A that he passed light, that is a signal of assertion. But if non-assertive relevant conduct because we infer a fact, that is NOT hearsay under FRE. - e.g. Marsden. the people weren't writing to prove that he is sane saying “we are writing to you because you are sane.” They were only writing only ordinary things, and we can draw an inference that they believed him to be sane, therefore relevant, and also not hearsay. Zenni - p. 618 Facts above regarding the bookmaking house, and all people did was place a bet. NOT hearsay because this is verbal conduct that is NOT an assertion of fact A. They weren‟t intending to assert anything, but we are merely drawing an inference that this must be a bookmaking house or else they wouldn‟t have called. Footnote 4 with coal mining site, whether it was safe. The mining inspectors ate their own lunch in an area that was supposedly unsafe. NOT hearsay per FRE. The miners were not trying to assert anything. We can draw the inference that they thought it was safe or else they wouldn't have eaten there. Court uses the sea captain example. Neither example did either state or assert that it was safe, only that their actions allow us to draw an inference that they thought it was safe. Evidence 2 Michael M. Wechsler 7 Michael M. Wechsler Silence as an Assertion Evidence 2 8 Silver - 633 Train was cold and there were 11 passengers in the car, none of them stated anything about too cold. Defendant tries to draw an inference that the passengers by their silence were inferring that the car wasn‟t cold. However, this was nonassertive conduct. Their silence was not intended to be a signaling, or a prearranged code that it was to cold. e.g. this is not like a contract stating that "if we don't hear from you within 6 days we assume you are satisfied." That is a prearranged signal of silence. There was no code, they were simply sitting there being silent and we can assume that the people were not asserting anything. Common Law: Silence under the circumstances is the functional equivalent of a statement of satisfaction - an implied assertion of fact is the same as if the people were making an assertion. Same as Marsden. FRE: Like silver - the silence is not an assertion of fact and therefore not hearsay and that the people were not making an assertion and therefore not hearsay as in the Marsden court. - Hypo: If conductor gets on train and says that if you don‟t complain now I will assume that you aren‟t cold and I wont turn up the heat. This is a signal, like the estoppel letter. PREREQUSITE FOR FEDERAL COURT: The court must first be satisfied that no signal was intended. Q: What was the intent of the people/signaler? If their intent was to give a signal, then it is hearsay and is an assertion. It is only when their conduct is not intended to be an assertion of anything. Remember though that ALL evidence must be relevant. - FRE would say that Marsden letter writers were not trying to assert anything. MODERN RULE: NONassertive conduct is not hearsay. NY RULE - probably same as FRE: Unsure as in both NY leading cases, both say that the nonassertive conduct was hearsay. 621 Thompson - as though doctor was asserting the truth of the cancer through diagnosis. Second Case: People who had the paint and until now no one complained about the paint. But what was the truth of it? Was it a signal? NO but the court said that the silence is all as though they were making a communication and stating there was nothing wrong with the paint. - However, THESE ARE OLD CASES and usually these issues are never brought up, and these are also appellate division. - in dicta: NYCA in 1979 said that "an act that is not intended to serve as an expressive communication is not hearsay." People v. Salko 47 NY2d 230 at page 239. it is saying that conduct not asserting fact A is not hearsay. This is therefore the same as the FRE. Evidence 2 Michael M. Wechsler 8 Michael M. Wechsler Evidence 2 9 EXCEPTIONS TO THE HEARSAY RULE - these exceptions are making inadmissible hearsay admissible for some rationale that excepts the general rule 1. PARTY ADMISSIONS - FRE 801(d)(2) The words or conduct of an opposing party introduced against the opposing party. Bill - p. 680 Facts: plaintiff son is dead and Mr. Bill and wife are parents/beneficiaries are making the claim, but insurance co. wont pay because they claim that their son's death was suicide. The employer found the dangling body, not the insured or medical examiner. It could have been an accident or murder, and it is also possible that he did it himself and it was suicide, or it could have been murder and that someone hung him. There was no evidence to suggest a suicide as no note or any conduct on that day of suicide indicated depressive behavior or suicidal tendency. Medical examiner is in the kitchen with the plaintiffs and he asks whether there is any doubt in his mind that his son committed suicide, and Mr. Bill shook his head as to indicate no. Mrs. Bill said nothing other, just the lateral shaking of his head. Trial court did not let it in - the shaking of the head is conduct intended as an assertion of no when done laterally. The appellate court looked at this as an admission by Mr. Bill that he had no doubt that his son committed suicide. The Defendant is trying to offer this evidence against him as a party admission. (Note that the term admission against interest used by the court is bad language and not a declaration against interest. That is not necessarily an admission by a party to the suit, but could be made by a witness against his interest, unlike here where Mr. Bill is a party.) - If an insurance agent said that it looked like an accident to the plaintiffs, then that could be used as it is the words of an opposing party used against that party. But here, Mr. Bill is the party and the Defendant is offering the evidence - Mr. bill's evidence against him - an admission by the plaintiff that his son committed suicide. This is a party admission NOT a declaration against interest. - An admission against interest - the court should NOT have used that term. This is bad language because you can confuse this hearsay exception with declarations against interest, which does NOT involve statements by parties, by anyone who might make a declaration against their own interests. - HYPO: X is arrested by the FBI for killing someone in Boston on January 1 and they toss him in jail without lawyer. He talks to them - he tells them that he wasn‟t in Boston, but was in Chicago, and then they let him go because he says he was in Chicago and wasn‟t in Boston. Now they found out someone was in Chicago on January 1 and they get him. The cops say at trial that he told us that he was in Chicago on January 1, and Defendant lawyer objects and says that it is hearsay, and no exception because the admission was not against his own interest at the time he made the statement it was self serving. NO - the point is that if it is something the party says, if it is contrary to his position at trial THAT makes it admissible as a party admission which was a statement against interest. (Note: the other hearsay exception for “declaration against interest” to be admissible, it must be against your interest at the time you made the statement. This does not have to be made by a party to the proceedings, just made by a witness, or anyone who stated something that was against their interest at the time they made the statement and improves veracity.) THEREFORE: It is words or conduct of an opposing party introduced against the opposing party. If plaintiff said, Defendant could use it against the plaintiff and vice versa. Rationale if Reliability in these exceptions: we have rules against hearsay because we are unable to cross the person who made the out of court statement in regard to their veracity, accuracy, memory, perception, sincerity, it is all in issue, but not there for cross. The reliability of hearsay exceptions are that usually you don‟t say damaging things against yourself. Therefore if you say something bad about yourself it probably is true. However, as we just saw in Boston example, it doesn‟t have to bad to you at the time you made the statements. It only has to be harmful to your case at the time it is offered against you at the trial. There may be times where the party makes the statement and it would be against his interest. At the time of the utterance originally, the guy made a statement that was self serving and within his interest. - The statement does not have to bad at the time you made your statement to be admissible as a party admission - it could have been initially self-serving. (e.g. Guy in hypo said he was in Chicago and helped originally.) - All that matters is that the statement is against the party‟s interest at the time of trial, and that the opposing party made the statement. Evidence 2 Michael M. Wechsler 9 Michael M. Wechsler Evidence 2 10 NO PERSONAL KNOWLEDGE REQUIRED FOR PARTY ADMISSION ADMISSIBILITY: usually before we allow a witness to take the stand, they have to know what it is that they are talking about. - In Bill, Mr. Bill did not have personal knowledge that his son committed suicide, yet we allow his testimony into evidence his statement that he thinks his son committed suicide and his assertion is being used against him. - We do NOT allow a lay person to testify - What if we had a person who is a lay person state that in his opinion, from the body, he concludes that the guy committed suicide? We wouldn‟t allow that kind of testimony into court. While Mr. Bill who gave his opinion that his son committed suicide, it is still admissible against the party as a party admission. - We would also not allow the testimony of a witness who was driving, and he cannot be allowed to testify that in his observance he was driving with due care. This is conclusory and not helpful to the jury. BUT if he jumped out of the car and yelled “Oh my G-d I was negligent!” then that is useable against him as a party admission. - where is the veracity? We live by our words and deeds, and if they happen to assert a fact, they can be used against you. This is a good thing because this party admission is not absolute, later he can refute the statement, he can explain it, e.g. that he didn‟t know what he was saying, his son just died, he wasn‟t thinking, etc. and he can explain the circumstances. - Note that a party cannot complain about the inability to cross examine itself, and this is another justification for party admissions. New York State - party admission admissible as hearsay exception - Admission of a party is hearsay but it falls within the party admission exception against hearsay (merely semantics, effect is the same as in Federal.) Judicial v. Evidentiary Hearings a. Evidentiary admissions are not binding on a person, they can be explained (e.g. Mr. Bill case) b. Judicial admissions may be binding - those that are made during the course of a litigation itself (e.g. those made formally during the pleadings, the complaint and answer, those statements are absolutely binding on those that make them). 1. Pleadings: If you admit something during the pleadings it is binding. - HYPO: you are Defendant and plaintiff alleges they slipped and fell. If you submit an answer to the complaint that you own the building, it is binding and conclusive in that action and the plaintiff does not have to introduce evidence of that ownership, even if later contested during the trial. Ownership is now an established fact. - Note that even if you later discover that you made a mistake that you really didn‟t own the property, you cannot even offer rebuttal!! For the purposes of the lawsuit, this case is ongoing, the statement is binding, and the only way to get out of it is to win the lawsuit and show that you weren‟t negligent. But see note that you may be able to amend the pleadings. - Note that if the plaintiff sues, and you don‟t deny ownership in your pleadings, an omission to deny is the same as an admission of ownership and it would be binding. - NOTE: However, you may be permitted to amend the pleadings so long as there is no unfair prejudice to the other side - e.g. if after 3 years of pretrial discovery it could be a problem. If you can't amend the pleadings then you are stuck with those statements. e.g. The case is only 6 months in and then you realize that you sold the property, then you should be fine, and it may be dismissed. - HYPO - What if the plaintiff pleads he owns the property in the pleadings, but later claims that the title records were forged and that he doesn‟t own the property. In this case, the original pleadings go from being binding admissions, to evidentiary admissions that are not binding. While they lose the binding value of the admission, they can be introduced against the party as a party admission. (This is consistent with the adversary system, where each side tries to introduce evidence and you live and die by your words that you say. If you do a lousy pretrial preparation it can be used against you. However, you get a chance to rebut it and explain why you previously made the admission.) Use of evidence of prior trials: 1. Current Action: Binding Admissions: You, Defendant admit that you own the property and you don‟t amend the pleadings. 2. Later Actions: Non-Binding Evidentiary Admissions: Another pedestrian falls down and sues the Defendant and the Defendant claims he doesn‟t own the property. Can the plaintiff in Action 2 use the Defendant‟s statement that he owns, Rule: The admission in pleadings of a prior lawsuit are useable in a second trial as non-binding evidentiary admissions. General Rule: In the same lawsuit an admission or pleading/answer is binding, but in subsequent lawsuits, they are only useable as evidentiary admissions, and not binding but rebuttable. Guilty pleas: Rule: While not binding, a prior plea of guilty is admissible a person in subsequent litigation as an evidentiary admission and not binding. This rule varies by state. Evidence 2 Michael M. Wechsler 10 Michael M. Wechsler Evidence 2 11 Hypo: You are charged with arson and plead guilty. You then sue your casualty insurance company for the fire you had on your property! In many states we have collateral estoppel and the person cannot bring such a lawsuit and is bound by the pleadings. But some states still allow suit for the proceeds. We allow the insurance company to introduce into evidence against the plaintiff the fact that he pleaded guilty to the felony of arson for burning down the building that he is suing for the insurance proceeds, however, the pleading is not binding but admissible as an evidentiary admission of a prior pleading of guilty. Hypo: Cop stops you for speeding. If he says in traffic court "I'll plead guilty and pay my fine with no points and that's fine.” But if he hit a pedestrian and pedestrian sues, can pedestrian use the guilty plea of the traffic infraction be admitted? He plead guilty in a kangaroo court? MAJORITY: NY: Pleas of guilty to traffic infractions are admissible in future proceedings, even in a kangaroo court, which is a formal setting. If Defendant didn‟t take it seriously, let him explain that. We have a rough sense of justice and what you say can be used against you in court. MINORITY: It is too prejudicial and cannot be used. Rule: NY: Traffic infractions and pleas to traffic infractions in lower court can be used in subsequent proceedings. Criminal Cases NY Rule: FRE 410: Withdrawn pleas are not admissible for use against the Defendant, even as an evidentiary admission. Once withdrawn and accepted by the court, it is as though the guilty pleas never happened. In criminal cases we allow a Defendant‟s plea of guilty to withdraw that plea. The judge may allow the Defendant to change his plea after speaking to his lawyers. It is now trial of whether he committed arson. can we admit into evidence the fact that he plead guilty at the beginning. We don't allow a withdrawn guilty plea. In a criminal case we don't want to require the criminal to take the stand and explain the prior guilty plea. This places a burden on the criminal Defendant that we don't want to put it on him, which also subjects him to cross, he will have to disclose attorney client privileges if he is subject to cross on why he changed his pleas, and contrary to policy reasons, 5th Amendment self incrimination right of silence, 6th Amendment right to effective counsel. Adoptive admissions: FRE 801(d)(2) (b): A party adopts what somebody else had said as his own statement. Double Hearsay: e.g. Issue: Whether the brakes in the Defendant‟s car were defective. W takes the stand and says that “he was with the Defendant in the bar and Defendant said that his mechanic told him that the brakes were defective.” Important Note: The Defendant did not say that his brakes were defective. Defendant only said that his mechanic told him the brakes were defective. Double hearsay - 2 out of court statements - one by Defendant and one by mechanic. - The only way that the plaintiff can get those statements into court is by justifying each out of court statement as either not hearsay or a hearsay exception. Adoptive Position - was the Defendant adopting the mechanic's position? Not here, but it is one where the party manifests his beliefs in the truth. it does NOT mean he believes it. Rule: A bald statement by the party which merely repairs what someone else said to him is not an adoptive admission. Simply because a Defendant repeats what is said does not mean he believes it or cares to adopt the position. Hypo of Adoptive Admission: Defendant submits claim to insurance co., and in response to question on the form as to what caused the accident the party attaches to the form a written letter from his mechanic which states that the brakes were defective. If you give this statement with the letter and you don't explain it, then you are manifesting the truth of the other guy's statement and are corroborating it. Hypo: You want to submit claims forms to an insurance company to get proceeds of a death, and you have a death certificate, and that proves he's dead, but it says death by asphyxiation and cause was suicide. The only way to show that you do not adopt the position of the certificate is by attaching a letter that you do not agree with the portion of the coroner‟s report and you therefore adopt the position of death but protest the cause. Silence may be an adoptive admission: Silence is admissible against an individual, when in the face of an accusation, a reasonable person would protest with words or conduct the statement made in front of their presence. However, the person whom the adoptive admission is being used against MAY explain the behavior, e.g. they didn‟t hear the question, they were shocked, etc.. Evidence 2 Michael M. Wechsler 11 Michael M. Wechsler Evidence 2 12 Bill Case: Mr. Bill shook his head to indicate “no” in response to the question that there was no doubt in his mind that his son committed suicide. Mrs. Bill‟s silence, after hearing her husband‟s answer is an adoptive admission of what Mr. Bill said. She remains silent in the face of an accusation which a person reasonably would protest if they felt it was incorrect. If it was untrue, then the normal reaction of people would be to protest. Hypo - A bystander watching a car accident, runs up to the Defendant in front of everyone and yells “you ran the red light!” But the Defendant just sat there and didn‟t protest. This is an adoptive admission because it would have been reasonable for the Defendant to protest. This is conduct as an admission. Criminal Cases - Silence not an admission before Miranda - Silence is NOT an adoptive admission because you have a right to remain silent when in custody of the police. Miranda warnings must be properly given, and his silence could not be unfairly used against him at trial when Defendant has this right. You cannot use the silence as affirmative evidence or for impeachment purposes, when you have a right to remain silent - which is in custody of the police. If not in custody, you take way Miranda as it does not apply, and it may be admissible. Criminal Hypo: Defendant hasn‟t said a word until trial. At trial the Defendant takes the witness stand voluntarily, and makes a self-defense argument with the V brandishing a knife. Can prosecutor ask for impeachment of credibility "why didn't he tell that to the police when he was arrested? He was silent then." You cannot use his prior silence to impeach his credibility as a prior inconsistent statement. While it is arguably inconsistent, it still is not admissible as affirmative evidence or for impeachment purposes. You have a right to remain silent when you are in the custody of the police, and your silence cannot be used as affirmative evidence to convict you, or as inferring evidence. NY LAW: NYCA says that silence in the presence of the police is irrelevant as it way too ambiguous and therefore irrelevant. Criminal Hypo 2 - Important NYCA: e.g. A fight in a bar. Defendant leans up against the bar when the police arrive, and the V is lying with his face in the blood. Police ask him whether he did it and Defendant says nothing. Silence in the face of an accusation when not under an arrest and when not in custody - the cops saw him and asked him and said "you did this didn't you?" He had no gun. It is not an adoptive admission. Although Miranda is not applicable because you are not in custody, it is a pure evidence question as it would not be relevant. A reasonable person may not tell the police anything. The NYCA said that people remain silent when cops stand around for a number of reasons, such as: a. There is no obligation to speak to police b. You may believe your attempt at exoneration would be futile (e.g. the blood splattered all over your shirt, but you didn‟t do it) c. You simply don't trust the police Criminal Hypo 2a: Taking the cops out of the picture, the bartender enters and says “I leave for a few minutes, and you did it, didn‟t you?” and Defendant Ralph remains silent. This is admissible because it is with a regular person, and not in front of the police. Relevance of adoptive admission in discretion of judge: If you are accused of something serious by a regular person, and you don't respond, then the trial judge decides whether a reasonable person in those situations would respond, and is an adoptive position. Questions are also asked for foundation, such as did you hear the speaker, etc.. e.g. 2 year old child accused the Defendant of doing something, and the court held that the silence of the Defendant was not unreasonable as you shouldn‟t have to respond to accusations by a small child, but in light of new child abuse cases there may be different rulings. Evidence 2 Michael M. Wechsler 12 Michael M. Wechsler Class - 4 - 2/13 Evidence 2 13 Rule: Admissions of a party - anything that a party says or does that is inconsistent with the party‟s position at trial is admissible against that party. A guilty plea in a criminal proceeding, even a traffic infraction, may be used against him in a subsequent civil proceeding. Nolo Contendre Pleas NY: no NC pleas in NY. FRE 410: It cannot be used in subsequent proceedings in federal practice because it is like a settlement as per FRE 410, an exclusive exclusionary rule. Settlements in the interest of policy do not allow further use. Vicarious admissions - usually agents and employees of a party. - where the declarant‟s of the out of court statement is not the actual party, but vicariously the admission by X are attached to the party in court. This usually occurs in agency or employees of the party. FRE 801(d)(2)(c) - the statement is made by a party that is authorized by the party to make a statement on behalf of that party. The attorney may say something, but as per the law of agency, the statement is attributable to the client. A party doesn‟t actually draft the pleading - the attorney does. The attorney is not the party - you aren‟t suing the Defendant‟s lawyer, but the Defendant‟s party - there is a principal agency relationship. The statements are attributable to the client. The attorney is authorized to speak for the client. This is done through the law of agency, and attorney is the client‟s mouthpiece as per FRE 801(d)(2)(c) HYPO - An employee of the acme trucking company while driving duties, fell asleep at the wheel and caused severe property damage to your house. He says to you that he apologizes for falling asleep at the wheel, and that he works for the Acme Trucking Company. You would sue through respondeat superior as you have the evidence of the driver‟s statement. Query: Is the driver‟s statement admissible as a party admission? a. CL and NY Rule on Agency Admissions: The agent must have speaking authority before his statements can be admitted against his principal. An agent is only authorized to do certain things. The FRE applied the same CL applied the same CL agency analysis to things that are said by an agent. The truck driver is not one of those people who can make statements on behalf of his employer. The driver here is a lower echelon employee, but as we go up the chain we find others with implied authority to make such statements, such as President, VP, manager of a store (not the shoe salesman but the manager). b. FRE / Modern Rule: FRE 801(D)(2)(d) - statement made concerning the scope of the agency OR the employment, and made during the existence of your relationship, before you get fired or you quit, as you still have that connection between the two - otherwise it would be the word of a disgruntled employee and unfair for the employer to be stuck with this. There is NO requirement in (d) that the agent be authorized to speak, and under the FRE, it doesn‟t matter even if the employer told him not to speak prior to any incident. No foundation of speaking authority requirement as per CL. (Note: NOT admissible under the subdivision of the FRE 801 (d)(2)(c) as the truck driver was not authorized to make a statement concerning the subject matter. The driver was hired to drive and not make speeches.) - Most modern authorities go beyond the simple agency with same rationale as which the hearsay exceptions are based - we live in an adversary system and anything you say or do can be used against you. If a party has entrusted an agent with the authority to act on their behalf, the rule implies an authority to speak. The rationale is that you ought to be bound by what your agent said. It doesn‟t even matter if the employer says “if you get into an accident you have no authority to say anything” it wouldn‟t matter here, as there is an implied authority, and any statement made within the scope of the agency relationship, about his employers, then the agency statement can be used against the employer. Mahlandt v. Wild Canid Survival - 699 Fact: Defendant Poos had a wolf in his backyard chained that was owned by the Wolf Society. His son saw the wolf on top of the child, and the child was scratched, thus he believed that Sophie caused the scratches. Poos came home later in the day, talks to his son, talks to some neighborhood people, and then goes to his employer‟s place of business, and finds nobody there. Statement #1: He leaves a note “Sophie bit a child.” Statement #2: Later in the day he orally told the head of the Society that Sophie bit a child. Statement #3: There was a meeting a few days later about Sophie biting a child. The statement was not made by Mr. Poos, but by the BOD in the meeting and recorded in the Corporate Minutes about “Sophie biting a child.” - There is no eyewitness testimony that someone saw Sophie bite the child. Daniel‟s mother only saw him walking by the chain link fence, and then someone else afterwards after something happened, saw the wolf on top of the child, and the wolf was baying over the child. Evidence 2 Michael M. Wechsler 13 Michael M. Wechsler Evidence 2 14 - An expert took the stand to state that when a wolf bays, it is a caring attitude as a mother. The Defendant was that Daniel was scratched, but he scratched himself by climbing under the hurricane fence. plaintiff claims that Sophie did it and it was negligence to keep an animal as such. At the trial we have two Defendants - Poos and the employer. There are 3 out of court statements being offered to prove the point that Sophie bit the child. They are offered as a party admission against the Defendant, and they are all out of court statements offered to prove the truth of the matter asserted, that Sophie bit the child -> therefore it is technically hearsay. 1) Hearsay Exception: However, it falls within the exception for party admissions. 2) FRE - NOT hearsay for party admissions: It is not hearsay or hearsay exception under the FRE because it defines party admissions as NOT hearsay. In NY it is hearsay but qualifies under this exception rule. Statements #1 & 2 by Mr. Poos. - Poos has no personal knowledge that Sophie bit the animal, even though he said outright that Sophie bit the child. Thus: - FRE says it is inadmissible against the employer since the test of a statement of an agent against an employer is personal knowledge, the statements are inadmissible against the employer. - NY and the CL only requires that the agent must have “speaking authority.” P. 702 says that this is not an FRE 801(D)(2)(c) situation where a person has been authorized to speak because Poos was not authorized by anyone to make the statements. However, it is a FRE 801(D)(2)(D) application, as there is no requirement that the agent or employee be authorized to speak for it to be admissible under (D), just that the agent is speaking about a matter that is in the scope of his agency employment - which was his control and care of Sophie. Lack of authorization for 801(d)(2)(D) does not require authorization, only within scope. - Note: If this case had arisen in state court, then it would have applied state rules in state court, and then applies the CL rule of speaking authority, and it would have been brought to court as to whether Poos was high enough employee to be said to have speaking authority for his employer. Defendant argument to weasel out of Rule (D) by stating that Poos didn‟t have first-hand knowledge. However, it does not matter if a party lacks first-hand knowledge, as per Mr. Bill (he didn‟t have first hand knowledge that his son hanged himself, he assumed it, that “there was no doubt that Sonny hanged himself” he assumed it. But he made this outright statement and you are stuck with what you say. All that was needed was an assumption, and a statement. Once it was said, it can be used against him (such as the hanging). The Defendant Company says this argument should not apply. It is one thing to attribute a party admission to the party himself, (Mr. Bill on Mr. Bill) but the party here is an agent, one step removed. This should require that the agent have first-hand knowledge if you are removed and should read this into the rule as to do otherwise would be unfair. However, the court didn‟t buy this and stated that this was merely the law, and such a reading to change the rule is left for Congress. This was made during the agency relationship, and is thus attributed to the employer and is as if the employer himself made the statement. There is no rule that the affect has to have first hand knowledge, and an agent‟s statement is the same as if the employer said it and useable against the employer as per FRE 801(d)(2)(d) because it is a statement made about the employer and made during the course of the relationship. Obviously the statement is useable against the individual himself. Held: - The statement is useable against the party that made the statement. - The statement is useable against the employer per FRE 801 (d)(2)(D) because it was a statement made concerning the employment, during the period of employment. Statement #3 by BOD: The third one is the corp. minutes - useable against the corporation, a statement made by agents of the corporation, which are the BOD. However, Poos was not a member of the BOD AND WASN‟T EVEN THERE. If he was there and he didn‟t say anything, it could have been an admission as an adoptive admission. Therefore it is not useable against Mr. Poos. Therefore the corporate minutes is admissible against the corp., but not him since he did not adopt these statements. At this point we said that all the statements number 1 and 2 are admissible against him personally, and against his employer. But the corporate minutes are only admissible against the corporation. The Defendant corporation‟s lawyer will probably want to request a jury instruction - “the statement of the corporate minutes is admissible only against the Defendant corporation but not against the Defendant Mr. Poos.” The jury will probably scratch their heads, and the trial judge will do the same as the judge in this case and might consider this cumulative evidence evidence that is clearly admissible and relevant but might confuse or inflame the jury, it might be considered cumulative (as against the corporate Defendant it is cumulative but against the Defendant Poos it isn‟t) there is a danger of unfair prejudice to Mr. Poos here. Normally we believe juries can follow limiting instructions, but in some Evidence 2 Michael M. Wechsler 14 Michael M. Wechsler Evidence 2 15 cases like here the evidence is cumulative. The corporate minutes is also a rather ambiguous statement as it says “and now we will discuss Sophie biting the child” which is really a backhanded way about going about all of this anyway. There is no real statement that Sophie actually bit the child. You could make an argument of the FRE 403 rule and it was upheld by the Circuit Court of Appeals. The lower court erroneously excluded the first 2 statements of Mr. Poos because an agent has to have actual knowledge - but the Appeals court corrects that and states that the agent does not have to have actual knowledge, and it is admissible against the employer because he was speaking about the employment situation. There is a different rule in NY - you have to see if the agent had speaking authority. You have to lay a foundation in regard to agency admissions. Foundation for agency relationship: 1. There must be an agency relationship. 2. Statement made during the relationship by an actual agent. 3. Look at appropriate rule: (a) CL/NY - Show that the agent had speaking authority OR AS PER (b) FRE - Show that the agent had speaking authority or a statement made concerning the agency while the agency relationship is still in existence. Sometimes the Defendant disputes the agency relationship (that the Defendant or speaker isn‟t an agent or employee of the employer). You, the proponent plaintiff would have to prove agency of the Defendant. How do you prove agency, that the Defendant was an agent of the principal? 1. Circumstantial evidence - the circumstances suggest that his engaging in activities show that he is an agent of the principal. 2. Someone with knowledge - He also works for the same company 3. Defendant admission - The Defendant can say he works for the employer. Hypo 1: Circumstantial Evidence suggesting agency: e.g. this person responded to a phone call, when there is a call to the principal asking for “the best troubleshooter” and then Charlie appears as a result of that phone call. Hypo 2: someone with knowledge: Someone takes the stand and says that he works for the same company and he says that Charlie works with him at the company. Hypo 3: what if Charlie steps out of the truck at the accident scene and says “I‟m sorry I ran the red light. I work for Acme.” What if Acme says that Charlie doesn‟t work for us? You respond that you have an out of court statement from him saying he works for you, and it is admissible as a party admission. However, before we can get in that second statement that he works for Acme, we have to establish that he is an agent. Here we are trying to offer Charlie‟s statement which was made out of a courtroom, which is hearsay - we are trying to prove that he is the agent. There is no hearsay exception that applies because in order for it to be a party admission, we have to prove that he is the party, that he is an agent. (If we can‟t show that he is an agent, the statements are inadmissible hearsay against Acme Defendant, despite what is in them because until Charlie is proven to be a agent of Acme, he is not the agent of Acme. We can‟t do it backwards by taking the admission and saying that proves he was an agent.) Rule: You cannot use the agent‟s own out of court assertion that he is an agent because it is hearsay subject to no exception (on these facts). - If he testifies in court that he is an agent under oath, that is a sufficient foundation. PRIVITY BASED ADMISSIONS - p. 704 note 3 - Common law - NY - not in FRE Where persons with a joint interest in property or a successive interest in property Hypo: X and Y have a joint interest in Blackacre. Y is the party and X is the declarant who says something about the joint interest in Blackacre. Can the statement of X be admissible against Y as a vicarious admission? CL says Yes. CL RULE: Where persons are in privity, a statement by one of those persons in the privity relationship concerning their joint interest and if made while the speaker has his interest in the property, is admissible against the other joint interest holders. Privity require: 1. joint or successive interest in property, and 2. that property is the subject matter of the litigation. (It must be a lawsuit about Blackacre.) The statement must: (I) concern the property and (ii) must be made while the party had an interest in that property. Evidence 2 Michael M. Wechsler 15 Michael M. Wechsler Evidence 2 16 Narrow rule, but good because e.g. Y is a lousy driver. If X says Y ran the red light, inadmissible against Y because we aren‟t talking about Blackacre, totally unrelated. Both own the property but we shouldn‟t make everything admissible simply because of the privity relationship. The statement that should be admissible should be about the land, that which the privity relationship is based upon. Successive Property Interest: X no longer owns Blackacre, is a prior owner of Blackacre and sold it to Y, and then Y sells it to plaintiff and sues Y alleging fraud that in connection with the sale Y lied to plaintiff regarding the termite infested seller. While X still owned the property, X told a friend of his, that he should see his cellar, that it is a lunch center for termites. Can plaintiff offer X‟s statements against Y to prove the defect in the premises? YES because X was successive owner with respect to Blackacre, X made statement while he owned the property, and the statement concerns the property which is the subject matter in litigation, therefore a successive privity relationship and the basis for a party admission against a subsequent owner and admissible. Rule. A decedent is in privity with his estate. Hypo: Car accident at an intersection. X gets out of his car and says that it was all his fault and then drops dead of a heart attack. His estate is suing the driver of the other car and the other driver says contributory negligence against the estate of X by trying to use the decedent‟s statements. Since X is in privity with his estate so X‟ statement can be used as a party admission. This is CL and is still used in NY. Not in FRE 801(D)(2) In FRE , the privity based admission is NOT found in 801(D)(2) AND THEREFORE THERE IS NO BASIS TO USE THE PRIVITY PROPERTY OWNERSHIP CONCEPT AS A BASIS FOR ONE PROPERTY OWNER‟S INTEREST TO BE USED AGAINST ANOTHER. these two happened to be property owners of the same property and it is therefore not a basis or an admission. (Since none of the subdivisions apply then there is no privity based admission for plaintiff to use X‟s statements in the termite example.) The drafters of the FRE saw no basis to use the property ownership concept as a basis for allowing one property owner‟s statement to be used against another property owner. It isn‟t like they were in cahoots, they just happened to own the same property. There is therefore no basis for such a vicarious admission and therefore it is no good in Federal practice for a party admission. However, if X was dead, something that he said that was contrary to his interest, it could come in for declarations against interest, and that has its own built in reliability factors. This however, is a totally different area. Note that in the car accident hypo, the statement made is admissible against the estate - the statement of someone who is dead and is a declaration against interest, but is not a privity based admission. The only way to admit hearsay if not allowed under one theory, hunt through the exceptions to see if you can get it in. Conspirator’s Statements FRE 801(D)(2)( Statement against a party that is made by a coconspirator against the party. Three Part Requirement: (codification of the CL) (1) There must be a conspiracy (2) The statement must be made during the course of the conspiracy (while the conspiracy is still in progress) (3) made in furtherance of the conspiracy (something that moves the conspiracy along). Rationale: Partnership in crime. If one party says something during the crime, as a consequence of committing the crime is that anything the other conspirators say can be used against you subject to the 3 part requirements. Once the conspiracy is over it is each party for themselves as the unity of interest has dissolved. May be used in criminal and civil cases. Not necessary that a conspiracy be alleged in the complaint. (You don‟t have to be suing or prosecuting alleging a conspiracy, just the mere fact of a conspiracy triggers the rule.) No requirement that the speaker/conspirator also be a party to the litigation, just that he was a member of a conspiracy at the time. Foundation: Must be established as a prerequisite to admissibility. BOURJEALY - 705 Leonardo is the person to whom the sale is going to be made. Leonardo said to the employee that he has a friend that will buy it from him, and the friend is on trial, who is going to distribute. Leonardo told the employee that he has a friend who will distribute the drugs. Defendant friend is on trial for possession with the attempt to distribute cocaine, a much more serious charge than mere possession. He is also charged with conspiracy with the attempt to distribute. Note that for the hearsay exception it doesn‟t matter if the Defendant was charged with conspiracy, just the existence of it. Evidence 2 Michael M. Wechsler 16 Michael M. Wechsler Evidence 2 17 Leonardo didn‟t testify because he is in trouble too. he didn‟t know that he was talking to an FBI informant, and he wouldn‟t say that his friend was going to distribute. So the government is introducing into Bourjaly, the friend, Leonardo‟s out of court statements made in the parking lot that were tape recorded. We use the CL hearsay exception of the coconspirator hearsay exception of NY CL. Bourjealy‟s lawyer objects when the government plays the tape recorder as hearsay, and the government claims it is the co-conspirator hearsay exception. The government must establish a sufficient foundation for the basis of its admissibility. The statement was made to further the conspiracy and during the course of the conspiracy, but was he in a conspiracy with the person whose out of court statement is being used against him? You don‟t have a co-conspirator statement unless we can establish the presence of a conspiracy (between Leonardo and the friend Bourjealy) by a preponderance of the evidence. Bourjealy Rule: The standard that the foundation must be proved by the proponent by a preponderance of the evidence. All we are talking about is this individual item of evidence for a foundation requirement. The judge must be persuaded in a federal court more likely than not that the foundation elements are required (here that the Defendant and Leonardo were members of a conspiracy). The jury ultimately has to find guilt beyond a reasonable doubt, but only need a preponderance of evidence to get this evidence admitted by the judge. (Note that this is a threshold question of FRE 104(a) and determined by the judge and never told to the jury.) FOUNDATION REQUIREMENTS FOR ADMISSIBILITY OF HEARSAY EXCEPTION: Standard is a preponderance of the evidence in Federal Court. (authority Bourjealy case). - Glasser Rule: We will not allow the judge to rely upon the very statement in issue: Fact finding determination must consist of evidence independent of the statement that is being offered into evidence - the prosecution must come in with some witnesses testifying to the existence of the conspiracy, or documents or circumstantial evidence. However, I cannot look at the statement of the conspiracy which is attempting to be admitted. rationale: To do so and admit the statement would be bootstrapping and admitting the evidence by virtue of the statement. FRE 104(a): Glasser decided before the adoption of the FRE and was changed and FRE supersedes Glasser. The last sentence of FRE 104(a), the court is not bound by the rules of evidence in making a preliminary fact-finding determination such as to whether the foundation for a hearsay exception has been satisfied except as to privileged communications. This means that the judge, while he must do it rationally, he can rely upon hearsay, which is inadmissible evidence, in ruling as to whether or not the foundation requirement is satisfied - this was determined in Bourjealy. The judge can use evidence that would otherwise be inadmissible in making his decision. Issue in Bourjealy: making the court rely upon Leonardo‟s out of court statement in making his determination that there was in fact a conspiracy? Yes, the federal courts may in determining the foundation for the admissibility of a hearsay exception may rely upon the very hearsay statement that is the subject matter of the dispute. The judge in determining whether or not there was a conspiracy between Leonardo and Bourjealy can rely upon the statement “I got some dope, I am going to sell it to my friend who will distribute it to all the kids in the neighborhood.” He must find by a preponderance of the evidence, including that statement, as to whether the conspiracy existed between Leonardo and Bourjealy. thus the court can rely upon everything. Q: what if the only evidence of a conspiracy is Leonardo‟s statement without any other evidence - can the judge rely exclusively on that statement? A: NO. J. Deamons concurrence: The only thing Bourjealy decides is in cases in conjunction with corroborating evidence. Stevens says, however, if it is the sole thing we have, we will not allow it to bootstrap into evidence. We only allow it to use its own bootstraps in conjunction with other evidence to get it into evidence. Here Leonardo‟s out of court statement were corroborative with other evidence to find evidence of a conspiracy. CL - NY Rule - (not the same as Bourjealy) To lay the foundation for the existence of a co-conspiracy, the court may only consider independent evidence from the coconspirator statement itself. The Bourjealy decision also suggest that in the Charlie the truck driver case where he “ran the light and works for Acme,” the federal judge can rely on that out of court statement as part of its determination that Charlie was an employee of Acme as a preliminary determinative factor of the case. Blackmun Dissent: The radical change in the law undermines what is really a very shaky type of hearsay exception in the first place. Where is the built in reliability? This is almost like the privity rule of the CL. Just because you are a partner in crime, you are bound by everything that your partner says? He says that we should stick to the CL Rule. If we let in the co-conspirator exception, we feel convinced by other evidence that the conspiracy exists and the statement would then be admissible. Third issue of Bourjealy as to which of the amendments of the bill of rights applies in terms of evidence being offered against them - the right of confrontation. Leonardo has refused to testify, so how will Bourjealy be able to confront Evidence 2 Michael M. Wechsler 17 Michael M. Wechsler Evidence 2 18 Leonardo? See later in outline regarding this issue, the right of confrontation is not absolute and would be an unnecessary expansion or else we would never be able to admit a lot of this evidence against a criminal Defendant. Wooten v. US p. 685 D1 and D2 are bank robbers and both are nabbed. They read D1 Miranda rights and interrogate him. He says that D2 and him robbed the bank. D1 and D2 are joint defendants. The cop who took the confession room D1 said he waived his Miranda rights, and the lawyer jumps up and claims hearsay as that is an out of court statement that is hearsay. Prosecution says no as it is a party admission, he confessed to robbery. But D2 yells no - it is not admissible against D2, only D1 as a confession, as the prosecutor wants to go ahead and claim it‟s a conspiracy statement. But as per FRE 801(D)(2)(e) it is not admissible against D2 because here the conspiracy is over - confessing to a conspiracy does not further the conspiracy and help it to succeed. It is every man for himself. It is therefore not admissible against D2 because it does not fall within the hearsay exception. It is D1's out of court statement, but it is admissible with a limiting instruction, that the jury can only consider the statement in regard to the guilt of D1. Bruton Rule in joint Defendant trial: The right of confrontation issue: D1 cannot be compelled to testify because he is a criminal Defendant. It isn‟t admissible against D2, and we let it into evidence even with a limiting instruction, what about D2s right to cross examine D1 whose very damaging statement will be heard by the jury. This is a situation where we cannot be able to presume that a jury will be able to hold this only against D1 - SEE BRUTON v. US p. 686. I lose my ability to cross examine - the holding of Bruton. The confession of one Defendant charged jointly with another Defendant cannot be admitted into evidence even with limiting instructions if the confession implicates the other Defendant. The Bruton rule causes great problems. The only way to include the confession is to redact the statement if possible that it can only be seen as applying to D1, or alternatively have separate trials. HEARSAY EXCEPTION- FORMER TESTIMONY A. Common Law Rule of Hearsay Former Testimony CL Definition: Testimony introduced in a former trial is being introduced into evidence in a subsequent trial in a case involving the same issues and the same parties. Requirement - The person who gave the testimony on the prior occasion is now unavailable. p.870 GAINES - 870 facts: Auto collides with a truck. Martin was the driver of the car, Peerless was the owner of the truck. Action 1: Martin v. Peerless: Here a witness Byars testified for Peerless (Byars was employed by Peerless) and testified that Martin was the negligent party. In that collision, Gaines was a poor road worker in the wrong place at the wrong time and he got hit by the vehicles and was killed. Action 2: Gaines v. Martin: Gaines sues Martin and claims Martin was the negligent party. The issue is whether the testimony of Byars, introduced into evidence in the first action by Gaines against Defendant martin, is admissible or not because Byars cannot testify because he is now dead and cannot testify. Byars‟ former testimony is definitely hearsay, as it is an out of court statement that was introduced in Action 1 , being offered to prove that truth of the matter asserted, the negligence of Defendant Gaines. But this falls under the exception to the hearsay rule in a subsequent case involving essentially the same issues and essentially the same parties, and where the declarant is unavailable. While here they aren‟t exactly the same parties (Gaines was not in the first lawsuit), on both occasion the testimony of Byars was evidence that had been offered against Martin. Why is that important? Because this gives us an INDICIA OF RELIABILITY, as Martin had the opportunity to cross examine Martin - THE PARTY AGAINST WHOM THE FORMER TESTIMONY IS NOW BEING OFFERED, HAD AN OPPORTUNITY IN THE PRIOR PROCEEDING TO CROSS EXAMINE THE DECLARANT. The fact that there was cross examination allows us to get over the burden of why we have hearsay rules (see in the case). While it is not as good as having Byars in the courtroom, it is still most important evidence and much better than nothing. Since the witness Byars is dead and unavailable, we admit this second class type of evidence and there is a necessity for this evidence. If Byars was still here, the court could have made Gaines subpoena Byars and bring him in. However, Byars was cross examined by the Defendant with full vigor of the Defendant Martin and thus is indicative of an indicia of reliability - it was the same issues and motivated Martin to indulge in that type of cross examination on a prior occasion. While in the prior trial the issue was negligence, the second it was contributory negligence, it is still essentially the same issues. Former Testimony Hearsay Exception Evidence 2 Michael M. Wechsler 18 Michael M. Wechsler Evidence 2 19 Common Law Definition - Three Parts (NY Civil CPLR 4517, Criminal CPL 670.10 and 670.20) 1. The declarant of action 1 must be unavailable. - Rationale: We prefer live testimony, but if we cannot obtain it and the evidence is crucial, we will settle for second best. 2. Identity of issues of both proceedings - so the subject matter of the cross examination of that witness in the first proceeding would cover the same grounds, and that in the first proceeding it was effective. if it was on other topics or issues it would be unfair to just spring it out in the second trial. 3. The party against whom the former testimony is now being offered, had an opportunity in the first proceeding to examine the declarant OR if the party against whom the testimony is now being offered was in privity with the party in the first action who had the opportunity of cross examination. - Actual cross is not required, only opportunity to examine the witness. - A fairness concept that you had opportunity, or someone that had the opportunity. Definition of privity: A successive or a joint ownership interest in the same property. That property must be the subject matter of that litigation. Same definition as in party admissions. Hypo - Civil Action Action 1: State prosecuting A for arson of a building he allegedly burned and jointly owned with B. Only A is being prosecuted. W claims and testifies that A hired him to burn down the building. Action 2: A and B are jointly suing the insurance company for the building that burned down but hasn‟t paid out the proceeds. The insurance company offers into evidence W‟s former testimony that he was hired by A to burn down the building, and uses that testimony in their defense against a payout due to arson. Q: Can the insurance company offer this former testimony into evidence? - W must be unavailable and we assume here that he is, or else he would have to be subpoenaed. Q1: Can the testimony be offered against A? Yes. (i) Same issue. (ii) Witness unavailable. (iii) A had opportunity to cross W in the first action, and he would have been highly motivated to do so, because if the jury believes W‟s testimony then A will go to jail. Thus it was a vigorous full examination. Q1: Can the testimony be offered against B? Yes. (i) B was not a party to the prior proceeding. (ii) Witness unavailable. (iii) B did not personally have an opportunity to cross examine W. While all these issues were not completely satisfied in B‟s case, B was in privity with A and as we said it can be used against a party that someone in privity had the opportunity. This is because your interest is protected by a party with which you are in privity with. A has just as much desire to do a good job in cross examining A as B would. Their interests are joint and both are equally interested in protecting that same interest. Rule: However, the ability to use the privity exception is in civil actions, only. Privity concept is not applicable in criminal cases. Hypo - Criminal Action Action 1. Prosecution against A. Action 2. Prosecution State against B. W drops dead before the trial. Q1: Can the testimony be offered against B? No. (I) Witness unavailable. (ii) Same issues. (iii) B did NOT have the ability to cross W in the first action, but this is a criminal prosecution, and the privity concept does not apply. In criminal prosecutions, the party against whom the former testimony is being offered MUST have a personal opportunity to cross examine. This may be fair in civil context because all that is at stake is money, but here life and liberty is at stake, and if B was not a party in the prior proceeding, he would not have had that personal opportunity. FRE 804 - HEARSAY EXCEPTIONS, WHERE DECLARANT IS UNAVAILABLE. Evidence 2 Michael M. Wechsler 19 Michael M. Wechsler Evidence 2 20 B-1 The former testimony exception - requires unavailability of the declarant: Subdivision A: 1. Privilege - the witness is unavailable because he claims a privilege such as 5th Amendment against self incrimination of testimony offered by W. 2. Contempt - W is willing to go to jail so as not to testify despite an order of the court to do so. 3. Forget - have a lack of memory. 4. Death or physically incapacitated or infirmed. 5. Absent from the jurisdiction and cannot be procures by process (subpoena) such as in Brazil. - Note a declarant is not unavailable if his absence is caused by the one whom the evidence is being offered to make them unavailable. You can‟t buy the witness a one way ticket to Brazil. FRE 804 (B)(1) exception: Testimony given as a witness at the same or another proceeding IF party against whom the evidence is now being offered or in a civil action a predecessor in interest the party against whom it is being offered, had opportunity and similar motive to develop the testimony by direct cross examination or redirect of that witness. “a civil action a predecessor in interest” - similar to the concept of privity, available only in civil actions. The person who was the party in the prior proceeding was a predecessor in interest. LLOYD - p. 872 - Does the FRE desire the privity rule or something broader? Action 1. Coast Guard v. Lloyd: First action was a coast guard hearing against Lloyd for misconduct. Lloyd had a Seaman‟s license subject to coast guard regulation, and there was a fight. Lloyd had a past record of fighting and there was a fight on the ship involving Lloyd. He testified at the first proceeding. Lloyd gave self giving testimony as he wanted to keep his license, stating that Alvarez was the one who started the whole fight. Alvarez was injured. Action 2. Alvarez v. Export company - The export company was the company which hired Lloyd. Alvarez sues damages for injury due to the assault based on exports company‟s negligent hiring in employ when they knew or should have known of Lloyd‟s past reputation, making the ship unseaworthy and subject to admiralty action. Lloyd is unavailable in this action for some reason. Issue: Can the preliminary testimony be brought in the second action against the insurance company? Lloyd‟s statement in the prior trial is hearsay, because Export is seeking to exonerate itself with Lloyd‟s testimony - an out of court statement brought into court to prove the truth of the matter asserted - that Lloyd never did nasty stuff on the ship and they were not liable. 1. Unavailable declarant. 2. Same issues - The fighting on the ship. FRE didn‟t really require this in the writing in the federal rules, but it has been practically imposed this from the common law because in a way there wouldn‟t be a motive or opportunity to cross examine if the same issues weren‟t present. This requirement serves a clerical function of weeding out the cases that wouldn‟t qualify. 3. Alvarez was not a party in the first proceeding - he had no personal opportunity to cross examine Lloyd in the first proceeding. The coast guard had opportunity to cross Lloyd. But Alvarez is technically not in privity at all there are no “joint or successive interests in property which is the subject of the action” This is a personal injury suit, not about property. However, we are not dealing with common law, and in FRE in a civil action or proceeding if a “predecessor in interest” had an opportunity to cross on a prior occasion, as here the coast guard is the predecessor in interest of Alarez, and this will allow him to get beyond part one of this hurdle of step 3. The other part of the rule requires that the predecessor in interest had (1) an opportunity to cross, and (2) a motive to cross the witness whose testimony is now being offered. The coast guard, predecessor in interest, did have the opportunity to cross, as well as the same motive - neither Alvarez nor the coast guard wants Lloyd around, and coast guard wants to revoke Lloyd‟s license, and wants to show what a bad guy Lloyd is and that he presents a potential threat to the other seamen. He will vigorously cross examine Lloyd. Alvarez also wants to show the same thing that the coast guard wanted to prove - that Lloyd is a troublemaker. Issue in Lloyd: The meaning of the term “predecessor in interest.” The majority defines it as “seeking the same result” which is really the second requirement in requiring a similar motive- having the same motive and opportunity to develop the testimony of cross examination. The majority is not defining the interest in common law terms (joint interest in property), but the court gives a much broader definition that the common law definition - “having the same motive and opportunity to develop the testimony.” Here Alvarez and the Coast Guard have the same congruent and aligned interests in developing the testimony. Evidence 2 Michael M. Wechsler 20 Michael M. Wechsler Evidence 2 21 The concurring judge states that the motive in interest requirement is too broad, and the former testimony should be admitted here under FRE 804 (a)(5) and NOT the former testimony hearsay exception used here. He doesn‟t agree with the common motive rule that we have here. He says that we should define the rule narrow, in terms of privity itself, same as common law (“people who have joint interests in the same property which is the subject matter of the litigation”) - it should be defined narrowly. He says that there are two requirements in the federal rule predecessor in interest and similar motive. Why would Congress set up two requirements and define the second requirement as part of the first. (the court here calls both parts the same thing, so Congress must have meant something different that the court interprets.) Obviously it means different things NOT similar in motive or else it collapses the two definitions into one. Therefore Congress must have meant privity for the second requirement. Additionally, he says as per policy, the successor in this case has no opportunity to cross the witness in the first case as well as you would like because you are at the mercy of the first lawyer on the first occasion. The lawyer in the prior action could have been the bottom of the heap. Lloyd was crossed by the government in the first action, and Alvarez had no chance at all, and he didn‟t have even a property interest! If he did have a property interest he could have made motions to intervene because he was not in privity with the government or Lloyd, so he must be at the mercy. He should get his OWN crack at the witness. This opinion in terms of precedent - some circuits are influenced - they usually allow the predecessor in interest as used in this case and tend to allow it in this context only when the first proceeding was brought by the government in a prosecution, as it seems to say that government lawyers are pretty good so it‟s not so fair to subject the subsequent civil litigant in the second situation to the government lawyer‟s performance. Hypo: Bus crashes into tree, and there are two passengers on the bus who are injured. A beings action against Lloyd Bus Company. W testifies for the bus company that the bus driver drove fine but the tree jumped up in the middle of the street and crashed into the bus and it was the bus company‟s fault. In a second action B sues the bus company but the W is unavailable and the bus company tries to bring into evidence the statement of W against B. A and B are not in privity per common law. They are not joint owners in property which is the subject matter of the litigation. B didn‟t have an opportunity to cross W on a prior occasion. But using the FRE, here A would be a predecessor interest of B! This is so because it is the Lloyd logic states that it is the definition of predecessor in interest as having the same motive that is crucial. A , the predecessor in interest, who is so because he had the same motive as B, was able to cross examine the witness. In the extreme, in the second action, W‟s testimony is now admissible by the bus company against B where W is unavailable. Note this would never happen in a state court that uses the common law such as NY under the former testimony exception, as there is a privity requirement. OHIO V. ROBERTS - p.888 Roberts was charged with forgery and possession of stolen credit cards belonging to Anita‟s parents. Action 1. State v. Roberts - Roberts Defendant called Anita, the witness, to the stand. They were girlfriend and boyfriend, Robert and Anita, and he claimed that he never forged anything, it was all one big happy relationship, and that they all knew about it as they were her parents and there was no forgery. But Anita turns around and stabs him in the back, that she knew nothing about this and that he did the forgery, etc. - he treats her like a hostile witness in preliminary hearing to indict Roberts before trial. Action 2. State v. Roberts - Roberts is on trial, and the government doesn‟t call Anita because they tried getting her several times but she is unavailable. The mother was talked to - the witness disappeared in the West somewhere. Difficult to find her. So the government is offering Anita‟s former testimony. This is a criminal case so there is no privity issue. Issue: Does this fall within the former testimony hearsay exception? 1. Witness unavailable. 2. identical issues. 3. Former testimony is offered against person who on the prior occasion to examine the witness. 804(B)(1) talks about the ability to do any kind of examination to develop the testimony of the witness - it doesn‟t have to be classical full cross exam, only that you could develop the witness‟s testimony. Here Robert did have the opportunity in the indictment. Next, however, Roberts cites the confrontation clause of the 6th Amendment. While the 6th Amendment applies only to the federal government, it applies to the states through the 14th Amendment which incorporates many but not all of the bill of rights. As per due process, the State of Ohio cannot prevent the Defendant from confronting the witnesses against you, a 6th Amendment right. Does this mean that we cannot use hearsay exceptions against criminal defendants? Not exactly. Evidence 2 Michael M. Wechsler 21 Michael M. Wechsler Evidence 2 22 Q: In light of the 6th Amendment, that an accused has a right to confront his accuser to cross examine, can there can never be hearsay exceptions against criminal defendants by definition as the witness/accuser is not present? A: No. If we were to give such a strict reading that out of court statements could never be used against you in court then we could never have hearsay exceptions used against criminal defendants. The USSC states that: 1. The Prosecution must make a good faith effort to obtain that witness - there must be a real necessity for the testimony and sincere inability to procure the person whose former testimony is being used in evidence. The witness must be unavailable to the full meaning of the word. 2. Indicia of reliability - The out of court statement must have a sufficient indicia of reliability to compensate for the lack of the defendant‟s opportunity to cross examine - the substitute for the lack contemporaneous cross examination of the declarant. - The indicia of reliability are that we compensate in a case like this in that there was a prior opportunity to cross the declarant whose testimony is now being offered against you. This one is easier to justify because there was a bona fide opportunity to cross examine with the same motive and opportunity to case doubt upon the witness to suggest that the witness is incredible, with the same vigor and force. (p. 890 - 891) TWO PART TEST which reconciles the 6th Amendment Right of confrontation 1. Necessity of the evidence 2. Indicia of reliability Note that hearsay exceptions are firmly ensconced in the law - we cannot apply the 6th Amendment literally as it would overturn years of prior law. We did have hearsay exceptions since the year 1666. Example is the dying declaration which was there even before the 6th amendment was adopted, and obviously its adoption of the 6th Amendment had this idea of hearsay exceptions in mind. The USSC rationalizes that the 6th Amendment tries to protect the same interests as the common law judges, and that is that both try to find something that makes it fair to use this hearsay as an exception, and that is accomplished through he use of the reliability factor requirement which compensates for the absence of contemporaneous cross examination. Roberts - TWO PART TEST IN CONFORMANCE WITH 6th Amendment 1. Unavailability: hearsay exception only when declarant is unavailable (footnote this is not always required.) 2. Reliability: Trustworthiness - we want accuracy in the fact-finding process. - Go back to the co-conspirator case in the Bourjaily case on p. 705. The defendant says that there has got to be a sufficient indicia of reliability and the court did not engage in a fact specific analysis of the particular indicia of reliability of the facts of that case. But on p. 710 the last paragraph states that there is only a general approach to the problem - there is a conclusion in Roberts that no independent inquiry into reliability if the evidence being offered against the criminal Defendant falls within in a firmly rooted hearsay exception, we wont force the judge go into a rationale indicia of reliability evidence - there is a presumption of the evidence being good and admissible - such as the co-conspirator exception. It is prima facie admissible. Rule: If the hearsay exception is a firmly rooted hearsay exception in jurisprudence, a court need not independently inquire into the reliability of such statements. (Roberts) On 710 the court says that there is no need to inquire into the reliability of such statements because it is a firmly rooted hearsay exception of co conspirator. It almost rubber stamps the rule the common law and puts hearsay in the constitution as sufficient to satisfy the 6th Amendment limitation of confrontation. Rule: If the hearsay exception is not firmly rooted the objector is entitled to a independent fact specific analysis as to whether that piece of hearsay evidence is reliable, which satisfies the 6th Amendment requirements of right of confrontation. Hypo: If the new hearsay exception rule is that anything in the NY Times is trustworthy and can be brought into court. The plaintiff will says it is fine to bring it in since. Defendant won‟t object with hearsay because he will lose as the hearsay exception statute and wont be able to overcome it, and therefore the Defendant will raise the 6th Amendment right of confrontation objection. He doesn‟t have a hearsay objection. Defendant should claim that there should be an investigation as to its reliability - note for this to be Prima Facie reliable, it as to be something that is long and firmly rooted in our jurisprudence - which is a lot of gray area as to what is firmly rooted. BUT the NYT example here is definitely not a firmly rooted hearsay exception. ==> There are TWO separate objections --> hearsay objection and right of confrontation objection - you have to be specific or else you waive the objection. You must waive BOTH. Evidence 2 Michael M. Wechsler 22 Michael M. Wechsler Evidence 2 23 But in these cases there is no independent reliability analysis needed because it is firmly rooted in our jurisprudence and it is Prima facie admissible and reliable. Unavailability Requirements Hypo - In the coconspirator - the Prosecutor knows where the witness is, but they don‟t want him on the stand because he is a lousy witness as he has a record and has s of prior convictions that will be brought up. But they do have a tape of his admission and the dirt on the other Defendant. The witness leaves in the neighborhood. Prosecution admits that tape under the coconspirator hearsay exception. Defendant doesn‟t make an objection to hearsay because this one is firmly rooted. Defendant makes an objection of 6th Amendment, the fact that the prosecution should call him because of the fact that he is available - he is right near the courthouse. Q: is unavailable always going to be a prerequisite to the government‟s introducing the evidence? NO - US v. Inadi 722- this question was left open in Roberts - that necessity was required. But footnote on p. 890 states that in the usual case there must be an indicia of reliability. But here a demonstration of unavailability is not always required. The Defendant could subpoena the witness as well!! - Unavailability was required in Ohio v. Roberts for a former testimony hearsay exception. The rationale of allowing this evidence in is because while we prefer live testimony, if it is unavailable we settle for second. With 2 versions of the same former testimony, we prefer the contemporaneous, current testimony. Thus the requirement of unavailability makes sense. BUT, in the definition of coconspiracy, we prefer the statements of co-conspiracy “while the conspiracy is in progress.” Statements made during conspiracy cannot be duplicated like testimony. We take those statements because they have unique evidentiary value involved in them. They are not “lesser forms” of evidence where we settle for second best. Here the people are talking about their drug deal in their own street language. There is thus no preference for “current” testimony. The statement in its form itself is tremendous evidentiary value. Rule: There is no need for unavailability (there is no Constitutional prerequisite) if the hearsay exception embodies statements that have unique evidentiary significance. - If the Defendant wants current testimony the Defendant can send out a subpoena himself. Important Summary Ohio v. Robert 2 part test Modified by Bourjaily - (I) Firmly rooted hearsay exception, and (ii) Unavailability not always required by the Constitution, required with former testimony hearsay exception like the common law, but not for the coconspiracy exception, where the prosecution is not required to demonstrate the unavailability of the coconspirator into court.. US v. Inadi says that unavailability is not required by the FRE or common law, but is required by the Constitution in the 6th Amendment in connection with the co-conspiracy declaration - USSC says it is not required by the common law, the FRE, or the 6th Amendment. Analysis of Problems: 1. What is the definition of the hearsay exception? 2. What about the satisfaction of the client‟s 6th Amendment right of confrontation? DYING DECLARATIONS WILSON V. STATE - p.899 Feltus is nolding his intestines in, blood gushing out, and he is obviously dying. As he is lying there on the ground he asks for some brandy, and after the drink he says that Stan shot him. Then Officer Dingle arrives asked him the same question and he said who shot him, that it was Stanely Wilson. No one saw Stanely Wilson shoot Feltus, it was just a gunshot that was heard and Feltus comes back into the place and says who did it, Stan Wilson. Stanely Wilson is on trial for murder. The prosecution offers the dying declaration of Feltus. The statement is definitely hearsay as it is offered to prove the fact te the defendant is the killer. The exception is the dying declaration. Dying declaration exception consists of: 1. declarant is aware of his impending death, and 2. the declarant must die, and 3. must be used in a homicide case, and 4. and declarant is speaking about the cause of his death and identifying his killer Reliability of a dying declaration? Built in as presumably you would want your killer brought to justice, and you have no motive to lie as you are about to die. Evidence 2 Michael M. Wechsler 23 Michael M. Wechsler Evidence 2 24 Defendant raises the issue of Feltus, that his background is that the victim is not a model citizen, he is a pimp. He says that he should be able to not only impeach the credibility of the declarant and introduce evidence that the declarant was a pimp, but ALSO that the declarant believe that there is an Almighty being, and he believes that he must be honest at death for fear he will go to hell with a lie on his lips. He is stating that the declarant must be somewhat religious or else he couldn‟t care less and will lie even at death. This should be the only thing that would make a hearsay declaration reliable. The court said that this religious requirement is not required as this would be too heavy a burden on the prosecution. There is no right to even show that the witness is an atheist to show he may lie on the stand because he doesn‟t believe in the existence of G-d. In testimony, there is no requirement to state you are a religious man, you can be totally honest without it, and it is not permissible to ask about being a religious man. Here there is an independent indicia of reliability that the declarant states these words at a very solemn occasion which doesn‟t happen often in your life, and at the time you will die you have no motive to lie. That is the reason for the requirement that the person really knew or believed that they were a goner. The most important requirement of this hearsay exception is the belief by the declarant that he is about to die. What proof here is that the declarant thought he was going to die and didn‟t need an ambulance? The circumstantial evidence - the declarant had an excessive amount of blood, entrails falling out, or other examples include the doctor saying sorry, you‟re a goner, priest possibly being present, etc.. The declarant can state something as well such as don‟t call the doctor, I‟m dead. But if he says that it‟s bad but call the doctor, it is not valid. With any glimmer of hope, we don‟t allow this exception. There must be an understanding of imminent death, that you will go, and that this develops the sense of hopelessness. If you think you may be settled around for a while you aren‟t into that “settled sense of hopelessness.” Rule: The fact question of whether the speaker has the” settled sense of hopelessness” is as per 104(a) is a preliminary fact that the judge decides as a prerequisite as to the admissibility of the evidence. Feltus fell over dead immediately - but what if he lingered around in the hospital for a couple of weeks? It doesn‟t matter that he doesn‟t die so long as at the time the statements were uttered, the declarant really thought that he was going to die a that time. Even if he later believes that the will recover and he dies, that is the hearsay exception of dying declaration and is fine. Note that it should be equally as reliable when the defense uses it - e.g. if the declarant said, “it wasn‟t smith but jones” but the Prosecution still goes after Smith so Smith uses the statement in his defense. Rule: NY and Common Law rule ways that this exception is ONLY available in criminal homicide cases. e.g. If it was a bank robbery and the teller/declarant is dying of a heart attack, and he says that Jones did the bank robbery. He says that he knows he is dying but this NOT admissible in NY because the prosecution is only for robbery, not homicide. Since this is somewhat of a shaky hearsay exception and used only in cases used where there is a strong social need to bring killers to justice. We also don‟t want it to be a tip off to perpetrators that they should kill their victims because it wont be able to be used against them. The cause or circumstances Common law - requires that the dying declaration has to identify the killer. Federal Rule 804(B)(2) Concerning the cause or circumstances of what the declarant believed to be impending death - e.g. If the heart attack was triggered by the horrible experience of the bank robbery, it might be allowed in the case if the prosecution was for homicide. The FRE also includes a civil proceeding - the federal rule goes beyond NY and common law - there must be a prosecution for homicide in a criminal case, or in a civil action or proceeding (civil action that they are suing Jones for damages for wrongful death and damages.) Q: What if it is a civil action for assault and the guy didn‟t die even though his guts were all over the floor? There are 5 grounds for unavailability in the FRE. It is a dying declaration if he is too sick to come to the court to testify in the assault action, we CAN use the dying declaration in civil court, where we use federal rules of evidence, (but not good in common law). It is NOT good for robbery, rape for criminal in state prosecutions. It does not matter however, what kind of civil action and is useable so long as the declarant is unavailable. The common law has made a definition of “in extremis” where the mind of the declarant is what is at issue here. DECLARATION AGAINST INTEREST WILSON V. LAMM -p. 725 Land dispute. plaintiff sues estate of Lamm . Lamm transferred the property to the school district several years before. The school is suing the estate to obtain a declaration of ownership in fee simple absolute, that there are no conditions attached. The estate wants to hold onto the land, and they claim that it wasn‟t transferred to the school for fee simple Evidence 2 Michael M. Wechsler 24 Michael M. Wechsler Evidence 2 25 absolute, but attached with a right of reversion to revert when the land is not used for school purposes to Lamm and/or his heirs. The Defendant proves this with something that Lamm said when the land was transferred to the school district - at the time the land was transferred, Lamm said that he transferred the land with the stipulation that it would only be used for school purposes. This is hearsay. This is not a party admission as that is only admissible when the party introduces evidence to be used against the opposing party. Lamm estate is using the declaration for its own benefit. This is a declaration against interest. Definition of declaration against interest: A declaration which evinces or manifests some detriment to your pecuniary or proprietary interests. (if it hurts your money (pecuniary) or property (proprietary) interest in some way) Here the statement is against interest in a proprietary fashion in that he admits that he is giving away his land under a condition - it is a declaration against his interest. - The declarant is also unavailable to testify. - It is admissible against anybody so long as it is relevant. Requirements of declaration against interest 1. declarant unavailable 2. statement against pecuniary or proprietary interests 3. statement by declarant made with personal knowledge Lamm obviously had personal knowledge of his own land and his giving it away. The rationale for the declaration against interest - you wont make a declaration against yourself and your pecuniary or proprietary interests unless it is probably true. After class clarification: Same example where clerk says that Jones robbed the bank, statement made while dying. In a jurisdiction that follows the FRE, there is a broader rule which allows circumstantial evidence surrounding the murder, so for prosecution for murder in a FRE jurisdiction, the evidence of the clerk merely stating who robbed the bank, which is circumstantial evidence that it caused the heart attack or shooting, it is admissible. BUT in NY which is a common law jurisdiction, this evidence is NOT admissible, as the statement must identify the killer and the circumstantial evidence is not admissible. The 6th amendment is not “trumped” by the co-conspirator hearsay exception. The majority says that it is consistent. It is the only hearsay exception that does not require the necessity of witness, or unavailability because we don‟t prefer it necessarily, it is statement is made when coconspiracy was occurring, so contemporaneous testimony is not necessarily preferable. Rationale for declaration against interested person telling the truth or probably would at the time the statement was made. Differentiation between declaration against interest and party admissions. Declaration against interest: - The person must believe that the statement is disserving against interest at the time she is making the statement. The key is the timing that the words are uttered - the belief at the time of the making of the statement. - In order for this to be disserving, the person must have known about the facts at the time of making the statement, and requires personal knowledge. - The person/declarant must be unavailable. No good reason but it is a requirement. - The declarant does not have to be a party to the action, a Defendant or plaintiff, only that what the person says is relevant. If relevant it can be admitted against anybody. Party Admission: - Timing does not matter, only that it is contrary to the party‟s position at trial. At the time of making the statement it could be made in their interest at the time. - Additionally, it did not matter that the party did not have personal knowledge about the matter - e.g. Mr. Bill didn‟t have personal knowledge that his son committed suicide. He merely speculated by it didn‟t matter. - It must the party that makes the statement, the plaintiff or the Defendant. - Person must be unavailable, and in order to be a party admission it must be a party, but declaration against interest, it does not matter who is doing the talking - anyone who says something relevant is covered by this rule. Hypo: Charlie the truck driver crashes into your living room and says nothing - months later he talks to an insurance adjuster and tells her that he fell asleep at the wheel after drinking that fateful night. He gets fired before this interview when he makes the admission. Then after the interview, he drops dead. Vou homeowner / plaintiff sues Charlie‟s employer under respondeat superior and to show that it was the driver was at fault, is Charlie‟s testimony admissible against the employer to show that he was at fault? Evidence 2 Michael M. Wechsler 25 Michael M. Wechsler Evidence 2 26 While it is hearsay, it is: 1. Inadmissible as a party admission under the agency rule because he was fired at the time he made the statement and not an employee. 2. declaration against interest - yes. i. He is not available ii. Statement against his pecuniary or proprietary interests at the time he made the statement as he exposed himself to potential criminal and civil liability admitting that he was drunk at the time. This is a disserving statement to his interests. He wouldn‟t have made such a statement against his interest if not the truth iii. First hand knowledge of the facts up until he fell asleep. Therefore it is admissible against the employer not under party admission, but under declaration against interest. CARPENTER - p. 728 - ** Review with facts *** The deceased wife made just one statement - there was an issue of punctuation. Truck Driver: “You pulled out in front of me” Wife “Yes. Yes, I know. It wasn‟t your fault” Defendant is offering the out of court statements, which is hearsay. Defendant invokes the declaration against interest and party admission to get both pieces of evidence in. This court uses “admission against interest” and this is a bad idea to use this terminology. Party admission is the proper terminology. To begin with, she is not a party. The only way it could come in as a party admission is through privity: Is she in privity with her estate according to the court? A. The statement cannot come into evidence as a party admission for the following reasons: The majority of the court speaks about privity, same as FRE in this court, they don‟t recognize privity as a basis for allowing party admissions into evidence: 1. She is not a party - she is dead and dead people can‟t sue. 2. Only privity can get the statement in - is she in privity with her estate or with her husband? NO according to this court. Same as FRE in disallowing privity concept to allow it in. Rationale for not recognizing the privity concept: A party can usually cross examine the hearsay declarant, but you want to explain and reclarify your statement and restate t. Since she is dead she can‟t do this, and the court says that it doesn‟t see any point in recreating privity rule that would impose upon her husband to explain what she was saying. Thus it cannot come in as a party admission. B. Can the statement be admitted as a declaration against interest? 1. Yes when the wife responded with “Yes, I know” and you can put it together that she admitted that she pulled out in front of the driver. i. She is unavailable as she is dead. ii. She had personal knowledge as she was the driver. iii. Against her interest, as even though she is dead, she is admitting negligence if she pulls out in front of the other driver. This either exposes her to liability or it serves to relinquish her claim against the other driver. Statements that prevent her from bringing suit is relinquishing a claim, is also a proprietary right. Even though she is not a party it is relevant to the lawsuit. 2. Second half of what she said: “It wasn‟t your fault” which: i. Serves to relinquish a claim against the other driver. ii. She is still unavailable iii. She had personal knowledge However, the court does not admit this statement because it was a statement of opinion as to fault. We do not allow witnesses to testify in baldly opinionated form. Those are conclusory forms of testimony which we don‟t allow lay persons to testify to. She would not have been allowed to testify as a witness as to her opinion in this case as to whose fault it was in her opinion that “the party drove negligently.” (Conclusory forms of testimony are opinions such as “she shot to kill,” or he drove negligently through the intersection.”) If she were alive on the witness stand, she may not have put it in such terms, but it is a big if and she isn‟t alive. She isn‟t around to rephrase what she said. If she were on the witness stand we don‟t throw her off the stand if she began to state her opinion, they would simply ask her to rephrase here statement not to be opinionated as such. But she is dead. While at the scene of the accident people try to sum up their recollections in quick terms. They talk in the best way that they can - isn‟t that better than nothing? Evidence 2 Michael M. Wechsler 26 Michael M. Wechsler Evidence 2 27 The court admits that if she were alive and a party we would let it in as anything a party says, even in opinionated form, is useable against them. Even baldfaced opinions such as in Mr. Bill‟s case for declaration against interest in terms of her being alive. The concurring judge makes that point as does the dissenting judge. Ruling Under NY LAW: Mrs. Carpenter‟s statements admissible against her and her estate in NY under the privity admission rule and the declarations against interest rule: Defendant wife‟s statements would be admissible as party admissions, and also against her and her estate as declarations against interest, as NY does recognize privity even though the FRE does not recognize privity. In NY both statements are allowable as Judge Cuyler does not hold the hearsay declarant to the niceties of courtroom testimony. The fact that a hearsay declarant makes his declaration in the form of an opinion is fine. Remember that even in dying declaration, if a guy is dying, and he says “X murdered me.” The Defendant may object that it is merely an opinion, but it is admissible because even though the statement of murder was in the form of an opinion, it is admissible for dying declaration. And these statements like this one, are admissible for both admission against interest, AND party admission. Ruling Under FRE: Neither statement would come in as a party admission because the FRE do not accept privity as a ground for the admissibility of party admissions. As declarations against interest both statements would be admissible under that theory. Declaration of interest by someone now unavailable and the fact that it is in opinion form is not a disqualifying factor. Courts have to look at the context and circumstances in order to determine whether the statement is against the person‟s interest at the time the person is speaking. Hypo: If an unavailable declarant said that he owed X $2,000 dollars to someone, it is obviously against their pecuniary interests to say that they owe somebody money. To say someone owes you money is a self-serving interest. - What if you wrote in your diary that X paid $2,000 to me. It is against your interest as you are giving up a claim against the party. - You state “I am a member of the ABC Partnership.” Whether against interest depends upon the facts at the time. If it is a profitable venture, it is self serving, but if the partnership is insolvent and the speaker knows that fact, then it is against your interest because then you are stating that you are responsible for the debts of the partnership which is about to go under. Note that the speaker must know that the partnership is about to go under. FRE 804(b)(3) Statement which at the time of its making contrary to the declarant‟s pecuniary or proprietary interests or so far tended to subject the declarant to civil or criminal liability or rendering invalid a claim by one against another that the person making the statement made it and wouldn‟t have not believing it to be untrue. PEOPLE V. BROWN - exposure to criminal liability declaration against interest. *** Get facts Brown Defendant argues that he fired in self-defense because the man who shot - the victim - had a gun. Prosecution said that ******** but there was no gun found on the body of the victim at the time the authorities arrived. That destroyed the evidence of self-defense. Brown is arguing that he was denied that opportunity to show self-defense by arguing a hearsay exception to get in the statement that Seals made to the attorney that he took the gun from the scene off the dead body, which would explain why no gun was found on the body. But Seals wont testify because he pleads the 5th Amendment as he committed bank robbery. Seals was in jail for he was under investigation for committing a bank robbery with a gun, the said gun being taken from Brown‟s victim. You can‟t force Seals to testify that might incriminate himself. Brown argues that he should be able to introduce Seals‟ out of court statement to Brown‟s lawyer in the jailhouse that he had taken the gun from the dead body by using the hearsay exclusion of declaration against penal interest. He could possibly go to jail by building a chain of evidence against you by making such a statement. Seals is unavailable because he has refused to testify, so it should be simple. The reason that this is an important case is that in 1970, this represented a change in the law in NY. NY Common law didn‟t allow declarations against penal interest. Unless you said something against your proprietary and pecuniary interest in the property, the common law said that they were not admissible. But the NYCA changed the NY common law to bring it up to date as it is codified in the FRE. 804(b)(3) - (last sentence) Is this any kind of requirement that the Brown court imposed here? NO. The FRE has an additional requirement that in a criminal case where the criminal Defendant is offering the out of court statement by somebody like Seals, there is a requirement of corroboration of the our of court statement. The FRE imposes this additional requitement when it is the criminal Defendant offering the evidence. There is a belief that criminal Defendants are not beyond arranging for some buddies willing to perjure themselves who will say that they heard someone else confess to the crime, but conveniently they are unfortunately dead. There is danger criminal defendants will manufacture exculpatory evidence by misusing this exception for hearsay, and they will find someone willing to perjure themselves that they heard x, who is now dead, take the rap before he died. Therefore to ensure Evidence 2 Michael M. Wechsler 27 Michael M. Wechsler Evidence 2 28 reliability, the FRE requires corroboration - something that makes the declaring‟s out of court statement have some corroborating evidence that this in fact took place. e.g. physical evidence or that someone saw the declarant near the scene of the crime, or that the declarant had a motive to commit the crime, that he was seen fleeing the scene of the crime, etc. something connecting the declarant to the crime. The NY court in BROWN id NOT impose this corroboration requirement, but subsequent case law has done so, see p. 744 NY case of People v. Short Ridge. The father of the Defendant, prior to committing suicide, took the rap for committing son‟s death, but no corroborating evidence, and the Court of Appeals threw it out. If there isn‟t something that corroborates the willingness of the speaker, it is inadmissible. If there is strong evidence to fabricate or no evidence to corroborate this exception will not apply. WILLIAMSON Prosecution tries to introduce evidence that is made by an unavailable declarant which is against the declarant‟s interest and inculpatory of the Defendant. Williamson on trial for sales of narcotics allegations, star witness to be Harris. The cops got suspicious after they stopped this guy Harris for speeding, they conducted a search and found a number of kilos of cocaine. He admits that he knew that there was cocaine in the trunk and that he was transporting it. This is definitely against his interest, but he didn‟t stop. In his first story he said that Williamson directed him to meet him at the dumpster but that the Cuban did everything and arranged everything. The Cuban told him to do that. But just as soon as the DEA agent goes to set up a controlled delivery at the dumpster, then Harris says not to do that because Williamson was following them by car and he saw everything happen. Then there is story number 2 where he says that really Williamson was behind everything and told him to go to the dumpster. There is no point because Williamson knows what is going on. They wanted Harris to testify, they granted him full immunity from prosecution, but he refused to testify. He now loses his 5th Amendment tight to remain silent - it is the quid pro quo for immunity as you can‟t incriminate yourself. He didn‟t want to get killed so he refused to testify. The prosecution brought the DEA agent to the stand to testify what Harris stated as Harris being unavailable because Harris is unavailable under FRE 804(d)(3). While this statement was against Harris‟ interests (when he said that he knew that there was cocaine in his trunk) but the prosecution is trying to get into evidence against Williams the additional statements made by Harris (Williamson is the one who directed me to put it there, I was delivering it for Williamson.”) Issue: USSC phrases the issue as to whether the collateral statements, which themselves are not self inculpatory or selfdisserving, can come in together with the self inculpatory statements. Held: NO, they can‟t come in because they felt that the purpose behind the rule would be thwarted because there was an absence of trustworthiness involved in those statements. The trustworthiness that it is X, a statement against your interest, that is reliable. A lot of other lower courts took the opinion that all the spillover effect is truth, that everything said in he same context becomes disservice by osmosis, or spillover - when in fact, the contrary may be true. The best way to tell a convincing lie is by mixing truth with false statements. Here Harris was not talking to his friends, but in police custody. The potential danger with other people involved is that he will say whatever it takes to curry favor with the authorities and dump all over other people to minimize your own potential statements, making these collateral statements anything but trustworthy. The terms statement is to be applied literally - only those particular statements that are against your interest at the time you are making the statement is what falls within the reliability/trustworthiness rationale and rule, and only that particular statement falls within the hearsay exception. Collateral statements are hearsay and do not ride the coattails of the individualized statements that are against interest. It will be difficult for a prosecutor to introduce evidence that is incriminating against Y, as all it can use is the selfincriminating statements of X, but not the link to Y. Has the court thrown out the declaration against interest? O‟ Connor gives 2 examples: 1. If Y said that “I killed the bank teller” and both X and Y were being charges with felony murder, X could be found vicariously liable and this would be useful against X. 2. Y‟s inculpatory statement that “Friday morning I was robbing a bank” and there is independent evidence that X and Y were seen having lunch together only 15 minutes before the robbery. Y‟s statement would be inculpatory of X. 3. The declarant by stating that he is associated with certain people might be exposing himself to a bigger conspiracy, he puts himself in cahoots with these people. If the declarant knows that these people are racketeers might be useable against the other people. This is best described in Kennedy‟s dissenting opinion where someone is charged with possessing stolen property. One of the elements in the crime is that the property was stolen. If Y says “I stole these 50 television sets serial numbers 1 to 50" and they match serial numbers of TVS found in possession of X, this can be used as evidence in the prosecution against X that the TV sets were stolen. It is relevant in the case against the particular Defendant even though there are no collateral statements surrounding it. On the facts of this case, it was remanded - is there anything that could be used against Williamson? Some of what Harris said might be useable against Williamson. Harris admitted knowing cocaine was in the car, and that might be relevant in the prosecution of Williamson, but the trial court has to parse the paragraph that Harris said to the agent Evidence 2 Michael M. Wechsler 28 Michael M. Wechsler Evidence 2 29 and has to see what portions of those statements are particularly incriminatory against Harris. But that which is incriminatory against Williamson will probably have to be thrown out because those statements were not self incriminatory of Harris. Context, circumstances, careful analysis is required by the trial courts. Probably same result in NY. Many are reexamining this decision which is merely an interpretation of the FRE, and important as most states apply the declaration against interest, and the USSC analysis is important. NY case law suggests that it followed the same way that FRE is applied. A statement is not admissible against a criminal defendant unless it is disserving against the speaker and the collateral statements are no good against criminal Defendant when self serving. Civil Context This rule seems to also apply in civil cases in Williamson - at state court level, the idea of collateral statements which were allowed, e.g. like a doctor writes in his book about Mrs. Smith who he treated for dementia, Mrs. Smith paid her bill. There the doctor gives up his claim for an unpaid bill. But where he says “I treated her for her mental dementia” is part of why she paid the bill. The whole package came in by the now available doctor. The USSC did not allow that in because that statement is not against the doctor‟s interest, that is collateral. The USSC would now say that isn‟t admissible. Is this really a good idea? EXCITED UTTERANCES Coleman - p. 765 Coleman was charged with murdering the daughter of the witness, the mother. The daughter called the mother saying that the Defendant would not let her leave the apartment, that he was going to kill her, the phone connection was broken, she was found later by the police with 102 stab wounds. This was hearsay - offered to prove the truth of the matter, that Coleman was going to kill her. That is merely opinion that “someone is going to kill me.” Are there hearsay exceptions? - Not declaration against interest - Not dying declaration because the hopelessness of death hadn‟t set in as she called her mother to save her. There was no settled hopelessness of death.. - 1. Present Sense Impression - However, the court called this a present sense impression. The daughter was giving a contemporaneous description, yielding the present impression by the declarant, that she thinks the man is going to kill her. This is the daughter‟s present sense impression - 2. Excited Utterance - Something you say when there is an exciting thing that happens - something you say in a response to an exciting event that happens. The court uses the phrase “res gestae” as a generic description of several statements that have unique features, but the court has no idea what the hell it is talking about. The res gestae hearsay exceptions is not something used anymore, especially not in the FRE, although you may find it in old NY cases. Modern trend is to analyze the hearsay exceptions according to their own characteristics. Don‟t use this. We have two hearsay exceptions introduced in this case - present sense and excited utterance. 1. Excited utterance: Response to an excitable event. This is spontaneous and you really wouldn‟t have time to reflect what you have to say because you are startled. The startling even has suspended your powers of reflection and your ability and motivation to fabricate. You are only under the influence of the event for a short period of time (eliminates the memory problem of hearsay) and the fact that it is made spontaneously in response to an event while you are still under the influence of it, your powers of fabrication have been suspended. No requirement for the speaker to be unavailable for the excited utterance to be available. (FRE 803(2)) 803 states in the caption states: “availability of declarant is immaterial.” - You could have a witness on the stand testifying as to her observations of a bank robbery. She is in the lobby, sees guys come in with machine guns, shooting all over the place, it is exciting. Prosecutor asks if she said anything at the time while Defendant objects that her statement is hearsay, if she made the statement in response to an exciting event, it falls under the independent hearsay exception for excited utterances and it could come in. It is not merely a prior consistent statement. The fact that the exciting event puts you under its influence is the key. Even though the witness is available, we still allow her testify and repeat what excited utterance she said at the time as it has a separate indicia of reliability, and the statement made at the time has independent evidentiary significance. Arguably even better than her courtroom testimony because it was made at the time, contemporaneously at the time of the excitement, without any ability to think, to coach, to scheme, it is dripping with “indicia of reliability.” Requirements: 1. Must be a startling event e.g. bank robbery, car accident, shooting. Evidence 2 Michael M. Wechsler 29 Michael M. Wechsler Evidence 2 30 2. The statement must relate to the startling event while still under the influence (e.g. a woman states “Wow, that‟s Jesse James robbing the bank, and BTW, D breached a contract with me last week”). This former statement admissible, not latter because it does not relate to the startling event. 3. The declarant must have personal knowledge. 4. Declarant must be under the influence of the event. Hypo: What if woman who sees the bank robbery, she hits the deck like everyone else, and the cops arrive, and when the cop asks her what happens, she responds to the cops after the event - “Oh my G-d it was Jesse James” - the event doesn‟t end and that can still be excited utterances. She can still be under the influence of the exciting event and the same rationale still applies if you haven‟t calmed down. The fact that it is a response to a question is OK, it all depends upon the circumstances of the events, and it is up to the judge to decide as to whether or not the declarant was still under the influence of the event. What if the cops arrived 2 minutes, 30 minutes, even 2 hours later, it ALL DEPENDS UPON THE FACTS AND CIRCUMSTANCES. Common sense says that after 20 minutes is the threshold, 1 hour it starts to get a difficult case. The test “Is the speaker still under the influence of the excited state?” and that question is a preliminary question answered and decided by the JUDGE as to whether the statement is admissible. Remember there are more than one way to skin a cat and you can search through all the hearsay exceptions and find one if available. - Dying declaration: Must be homicide case and a settled hopelessness of death. It is not a dying declaration if the guy was dying, and still had hope. But it may come in as an excited utterance, even if it is not a homicide case. Thus the statement comes in although not under this exception. - Charlie crashes into your house with his truck. He jumps down and says “oh my this is horrible! I fell asleep at the wheel, it‟s all my fault!” Not a party admission in NY as he does not have the authority to speak. Not a declaration against interest if he is still available. However this may be an excited utterance while he is still under the influence of the event. Why didn‟t this court let in the daughter‟s statement as an excited utterance hearsay exception and they used a present sense impression? Court doesn‟t really say. It is based upon what she said - the only evidence that there was an exciting event is from the exciting utterance itself. The foundation requirement cannot be based only upon the statement itself in PA. The majority may have felt this was a little skeptical and this is an unusually cautious approach, and said that they could use a present sense impression and there is no problem of that here. There is no requirement of excitement for a present sense impression exception. It could be an unexciting event of watching 2 lawyers drafting a contract The reliability factor of the present sense impression is stating that if you are stating something while it is happening, and there is no real time and ability to fabricate. Everything is contemporaneous and there is no TIME to fabricate, under the exciting utterance you have no CAPACITY to fabricate. Neither one of these hearsay exceptions requires unavailability of the declarant. If a declarant describes something while it is happening: Houston 1942 case p. 766 - Car driving on highway and there was an auto accident. The was trying to prove that the plaintiff was driving recklessly before the accident. Defendant said that he was driving on the highway when all of a sudden the plaintiff‟s car sped past. Defendant‟s car had a driver and a passenger. The driver turned to passenger and said “boy those people are really driving fast... we‟ll see them around the pike wrapped around a telephone pole.” The passenger of the Defendant‟s car is called to testify for the Defendant, recall a statement made by the driver contemporaneously perceive immediately after the event was perceived, the plaintiff‟s car shooting down the road. There is no requirement of a showing of unavailability of the declarant driver. Arguably that statement is even more reliable that if the declarant driver came in today and stated that he remembered the car speeding past him. Adopted in FRE 803(1) - present sense impression. The witness in the Houston case, however, was also present and also saw what happened, as opposed to the Coleman case. In most present sense impression cases, you have people that were also there - built in corroboration. The Coleman case is a reminder that in our age of telephone communications, that someone might describe things to you while it was happening, and the mother was not in the room. She is not an equally percipient witness - the mother wasn‟t in the room being able to perceive the events. The opinion rule is not used when it is a contemporaneous impression. You don‟t have the opportunity to rephrase at the time, same idea with the independent evidentiary significance rule. => FRE: No independent corroboration required for 803(1) of Present Sense Impression => NY: Requires independent corroboration. NY V. BROWN 2 years ago the NYCA adopted the present sense impression hearsay exception . There was a 911 call by a person who was watching a burglary taking place across the street - there is a white guy in a blue t shirt and a black guy in a red t shirt and that is all he says. Cops arrive. Second 911 call, and he says to call for backup that there is a guy on the roof Evidence 2 Michael M. Wechsler 30 Michael M. Wechsler Evidence 2 31 getting away. The cops nailed 2 guys, went to the informer address that was given but it was a fake. At trial for burglary, the prosecution offers into evidence the 911, and that it was a 911 telephone call, objected that it was hearsay. Remember the 911 call is taped - the tape seemed to show it wasn‟t excitable for him, he was very calm. But the court did adopt the present sense impression hearsay exception BUT the court the NY court REQUIRES CORROBORATION, that adds to the reliability, which is NOT required by the federal rules. The corroboration here was that when the cops arrived the description received matched up perfectly with the apprehended suspects. Black guy had red shirt, white guy had blue shirt. The corroboration in this case was that when the police arrived, the defendant burglars were wearing the same clothing as described by the 911 caller. If something is not a firmly rooted hearsay exception, you should challenge that there is a 6th Amendment right of confrontation, that it needs a sufficient indicia of reliability and corroborative evidence. Here they only challenged the ruling on hearsay definitional grounds. There could have been a challenge by the Defendant here because usually you know who the out of court declarant is, so that you know what their potential motives might be, whether they have previous convictions. These poor defendants had NOTHING that they could use against the caller. This was anonymous and we have no idea who called - this is a real problem to Alexander because these guys may have had a serious grudge against them and wanted to nail them. They might not have been the actual burglars. - In an adversary system, you must raise your sixth amendment rights or they will have been deemed to be waived. - We haven‟t resolved how long a hearsay exception has to be around to be considered “firmly rooted.” -Present sense impression the time is much more narrow unlike the excited utterance which is given a much larger leeway time to be included, so long as the condition continues in the excited state. STATE OF MIND EXCEPTIONS - FRE 803 Statements as to one‟s then existing physical condition was under the res gestae impression - You are describing something internally as to how you feel as a present sense impression (e.g. I have a headache, my arm hurts, etc..) Rationale was contemporaneous description of something internal. Issue: In a suit for personal injury, whether someone could testify whether a person can testify what was said at the time it was said. e.g. a doctor during examination asks the patient how she felt at the time of the examination, or someone who witnessed the person stating how he felt. Fidelity - 776 The question was whether the guy fell into the bathtub by slipping, or blacking out because of a physical condition. Family wanted to introduce silence as a form of assertion, that he never ever complained about blackouts. Silence introduced as an assertion is given a hearsay exception, by NOT stating anything about blackouts, it is as though you are making an assertion that you are not suffering from blackouts. Statements about your physical condition. It is as though he says to his family “I do not currently feel that I am having blackouts.” Common law rule, and FRE 803(3) A then existing mental, emotional, or physical condition. Hypo: You are talking to a friend after being involved in an accident. You say to him that “last week when I was in that car accident, I felt a lot of pain at the scene of the accident.” Statement 2 “I still feel lousy right know, everything hurts.” Issue: What is admissible under 803(3) where the plaintiff is trying to prove pain and suffering? FRE: Only the second statement because there is a requirement of having contemporaneous impression. To talk about something that happened in the past relates to something happening to your memory. You can fabricate it much easier in retrospect. While you can fabricate what you are saying right now, the person who is hearing you can be cross examined, and the person heard you make the statement while you were supposedly feeling it, and that witness can state his impression as to whether he really believed you, were you really writhing in pain, and his other impressions of what you said right there. THIS IS THE FRE. NY: NYCA only allows in statements about a person‟s physical condition if he is then unavailable because we are skeptical of the personal injury plaintiff who will go around creating such evidence. There is no necessity here unless the plaintiff is unavailable. Has not fully embraced this hearsay exception and is very skeptical about such self serving statements about physical condition. The court said it will only allow in such statements if the person is unavailable because we are skeptical of personal injury plaintiffs. If they are dead there is necessity, but not narrative statements made to a lay person. NYCA only allows in statements about a person‟s physical condition if he is then unavailable because we are skeptical of the personal injury plaintiff who will go around creating such evidence. There is no necessity here unless the plaintiff is unavailable. Evidence 2 Michael M. Wechsler 31 Michael M. Wechsler Evidence 2 32 OTOH, if the person gives an inarticulate expression of pain, such as a groan, that is admissible, even if the declarant is available. This is said to be like an excited utterance. e.g. Charlie the truck driver sues you after he runs into your house, saying it is in a bad place increasing the likelihood that his truck wold run into it! He says that someone walked up to him and asked him if he is OK right after the accident, and he says to a layman, he says “Oh my G-d I‟m really hurting.” This would then be an excited utterance. If the statements of physical condition are made to a doctor, this is different FRE 803(4) - the purpose for which a statement is made. A statement made for the purpose of obtaining medical treatment and diagnosis which has a separate indicia of reliability. Common Law Descriptions of Res Gestae - they have their own indicia of reliability FRE 803(3) - A statement of a person‟s then existing physical condition. In NY such statements are not generally admissible when made to a lay person or family member on the street. The NYCA has had this rule for over 100, and despite NY‟s adoption of the FRE‟s contemporaneous sense impression, there is still no rule straight out regarding the internal pain of an individual, and is really the same rule as a present sense impression. FRE 803(4) Statements made for the purposes of medical diagnosis or treatment. - Purpose of the statement is of importance Hypo: Person goes to her doctor complaining of the following. Which are admissible under this exception? #1: My legs hurt and they are throbbing #2: They were throbbing last week #3: They began throbbing when John Jones hit me with his car last week. Statement 1 is admissible in all jurisdictions and within this exception because its made for the purpose of medical diagnosis or treatment. The reliability of this statement is that there is a self interested motive of wanting to be healed and to get better and if you want to get better than you have to speak truth to allow the doctor to help. It is spoken contemporaneously as well. In addition the doctor can corroborate the statement and he can say whether or not he thought you were lying. - Admissible in all jurisdictions. - No need for unavailability as the rationale is the purpose. - The self interest for treatment and healing. Statement 2: FRE: Admissible per FRE/modern trend, as despite the time that you had to think about it because past or present treatment for medical treatment and there is the same rationale that if it has been hurting that long you want treatment and the doctor would want and need to know the entire condition. This includes the past problems and symptoms as well. NY/CL: Inadmissible per NY/common law, which allows only contemporaneous statements of then existing physical conditions, and that past statements may be contrived and fabricated. Therefore NY currently does not allow into evidence over hearsay objections evidence about past conditions because of danger of fabrication, even to a doctor for medical treatment. e.g. you complain to the doctor about suffering from a previous week. e.g. you are at trial and question to testimony of expert doctor as to how he reached his opinion and his diagnosis. He would have to state that the charts, tests, and that he also talked to the patient‟s past symptoms as part of it that he was complaining about pain since the past week. The Defendant lawyer will object, but the judge will say he is an idiot, because a doctor cannot give an expert medical opinion unless he took into account the patient‟s medical history. The judge will give a limiting instruction to the jury that they should not take the statement for past pain, as that would be hearsay, but it is admitted for the limiting purpose of what the doctor used to give his expert opinion and the jury can decide how much value to attribute to it as a basis for the expert‟s opinion. It is not admissible for the purpose of proving truth of the matter asserted. This is really difficult for juries to do and is somewhat ridiculous to expect them to deal with it, but it is the law. Statement #3 US V. IRON SHELL - 778 Defendant was charged with assault with attempt to commit rape. Defendant admitted that he assaulted the child, and that he was arguing as a defense that he did not have the intent to commit rape. He was charged with attempted rape. He said assault yes, rape, no. Evidence 2 Michael M. Wechsler 32 Michael M. Wechsler Evidence 2 33 In order for the prosecution to convict for intended rape he must prove not only intent to rape but that there had to be an attempt at penetration, which would have involved removing the child‟s clothing and an attempt to bring his body close to hers. This would show an attempt to do something. While he called the child to the stand, the prosecutor was unsuccessful in eliciting the necessary testimony from the victim. It was scary, there was a big courtroom, intimidating etc.. she didn‟t say much at all and all she could say was that if she didn‟t shut up he would choke her. He couldn‟t have the evidence to make out the case because he couldn‟t elicit that testimony from the child. So the prosecution tries to prove his case by using the hearsay testimony of the doctor that the child told him stuff during the exam. She allegedly told him about the facts of the attempted rape - hearsay. Is this a statement about her physical condition being made to the doctor, or is this about collateral, external events? This is a statement being made in reference to the past, there are other statements such as - current physical condition made to a doctor - past physical condition made to a doctor - here it is different. Where is the indicia of reliability? - No motive to lie made by a child but there is no special rule here and it is the same rationale, that there was no reason to believe that she was saying anything more than she was submitting all the information for a good diagnosis. This is what the rational patient would say, it is a spontaneous description of those factors that is reasonably related to getting a good medical diagnosis from the doctor. Q: Assuming the child described the rape - what if the doctor asked her a direct question as to who did the crime? Q2: A statement to doctor “I was crossing the street and the next thing I know is I had a bumper up against my legs and I saw the Defendant staring at me from behind the wheel? A: The statement as to who did the act is irrelevant as to the fact that the person were hurt. The general cause is important to the doctor to determine how deep to go with the examination. But it is irrelevant that it was X who ran the light and not Y who ran the light. It may be pertinent that you were hit by a tall 7 foot, and not a 4 foot guy, and in that case the identity of the person would be important. In cases of a child, especially in cases of abuse, identity of the abuser is most pertinent to medical treatment for diagnosis. If it was a parent who did it there would probably be far more trauma and need for a certain kind of therapy. A NY case allowed the identity in as pertinent that it was her foster father who did the crime. - He believes that modern day treatment of abuse cases, the identity of the person who committed the abuse is important to treat, or refer to another doctor for treatment. - Generally the identity is not important, especially in FRE, the general character of the cause is not pertinent, unless it is a problem such as illustrated above. NY Case: Sex abuse admission to a nurse by a child, and the court let it in. While it seems that the statement can only be made to a physician, NY is really moving to the FRE as indicated here. FRE is very broad to whom the admission is made: Note that in FRE 803(4) it does NOT say anything about a physician. Thus even to a nurse, or anyone for the purposes of diagnosis. - You are hurt on the slopes and the ski rescue team goes to find you. You tell them that you were hurt by someone riding a snowmobile. FRE allows this in because it was for the purposes of medical diagnosis or treatment. FRE does not distinguish between present and past diagnosis. All information for purposes of diagnosis is admissible in FRE. The FRE does not distinguish motive - between physicians consulted for treatment for diagnosis, and those for diagnosis for expert testimony in the courtroom. The doctor is subject to cross examination. Hypo: Patient goes to a physician and says “ ”I feel great now, but a year ago my legs were throbbing terribly every day because I was hit by a Volvo which pinned my legs against a building.” I went to the doctor not for treatment, but because I want an expert opinion in support of my personal injury case and I have to tell him about my prior pain and suffering. This would be different as there is a much lower indicia of credibility. This is not for present diagnosis, but for a diagnosis given the past facts. The FRE says for diagnosis or treatment. The FRE draws no distinction between docs who were consulted for current treatment, or even for diagnosis just to be presented in the courtroom. - FRE says that a doctor is a doctor and they are subject to cross and we don‟t want to draw distinctions for the purposes that you are going to the doctor. While this is highly controversial, this is nevertheless the rule. Common Law Rule of expert testimony by physicians: The evidence will eventually come in to support the basis for the doctor‟s opinion and the judge gives a limiting instruction that are for the limited purpose of showing the basis as to how the expert arrived at his diagnoses and opinion, not for the validity of the injury and pain. - Same case “doctor what did you base your opinion on?” He will answer that he based his opinion on the statements of the patient, and he will have to repeat those statements - not to prove the pain, just to show the basis of the opinion of the doctor. We give a ridiculous limiting instruction, and end of story. The doctor is going to bring in the statements anyway - not to prove the truth of the matter asserted, just the basis on how the expert reached his or her opinion. This is simply to state that the doctor had a good foundation for his opinion. Evidence 2 Michael M. Wechsler 33 Michael M. Wechsler Evidence 2 34 This is why the FRE says screw all your exceptions because as under this common scenario the statements will be admitted anyway, even for the limiting purpose of solely for how the doctor reached his testimony, therefore 803(4) allows this in. But the common law still says that the only way these statements are admitted are for the limited purpose of showing how the expert arrived t his diagnoses. What if you went to a doctor for treatment and he will be your expert testimony. NY treats that doctor as it would treat any treating physician, that if you go for both purposes, the fact that you went for treatment allows you to bring it in for the purposes of treatment. Therefore statements made concerning your current physical condition are admissible for the purpose of their truth, statements about your past physical condition admissible to show the basis for the expert‟s, statements made about the cause are admissible for the purpose of truth - now the rule in NY (e.g. child telling the nurse that his was sexually abused by his father) FRE 803(3) Includes a statement of the declarant‟s then existing state of mind, emotion, sensation, etc.. Important is when the person‟s state of mind is one of the key issues in the case. We know that the substantive law frequently makes the person‟s state of mind a very important factor in the case in terms of liability. e.g. Did the criminal Defendant act at the time with the proper mens rea, did the decedent have the mental capacity to make the will at the time list was made, mental emotional anguish present at the time of a physical injury? - You prove a person‟s mental state of mind through circumstantial evidence and how they acted, as well as through testimony from the plaintiff, or the Defendant‟s statement that he had no intent to do the act. (e.g. he wanted to injure the victim but not kill the victim). US v. DiMaria - 785 Appropriate tax not paid on contraband cigarettes which can be sold very cheap. He was allowed to possess 60,000 contraband cigarettes without having a felony. He was also charged with having stolen cigarettes - charged with both crimes - stolen and contraband of more than 60,000 cigarettes. He was caught red handed. Dimaria‟s defense was that he had no knowledge and this was a specific intent crime - you have to specifically intend to possess stolen cigarettes, and here there is specific intent to possess 60,000 cigarettes. He didn‟t specifically intend to possess 60,000 contraband cigarettes. He wouldn‟t be charged with the federal offense if he only intended to possess 50,000 contraband cigarettes. So in issue is his state of mind at the time he was acting. DiMaria didn‟t want to testify on his own defense because he had a prior record and didn‟t want to be crossed on it. So he tries to offer his state of mind. He made a statement at the time of his arrest that he was there just to get some cigarettes real cheap - while some may consider it as inculpatory, others may say it could be viewed as exculpatory, that his statement suggest that he only wanted less than 60,000 (some) and that they were only contraband, not stolen (real cheap). The jury may reasonably determine the statement that way. He isn‟t trying to prove the truth with this contemporaneous out of court statement as to the fact that the cigarettes were not stolen or contraband, just to prove his current state of mind as to what he thought about the cigarettes and he is trying to prove his belief at that time by the statements he made at the time of the bust. This is not a present sense impression because he is not describing an external event as it is happening, this is just an attempt to indicate his then existing state of mind - his purpose in being here is to possess some cigarettes real cheap. The court said that the statement should have been admissible under 803(3), statement about your then existing state of mind. The prosecutor and the dissenting judge made that point that the statement that the Defendant made want trustworthy at all. The Defendant says to an FBI agent that he knows will be an FBI agent, a self serving statement. He‟ll say anything to avoid liability, therefore tainting the motive for the statement and probably fabricating this completely. The prosecution and dissenting judge want to have as a general rule that court have to look at the context and use a case by case basis to see if the statement is reliable. The majority agrees with the rationale, but didn‟t agree with it here. Some courts will use FRE 403 the general balancing as to admissibility for individual hearsay exceptions for prejudice v. probative value. But this court as led by judge Friendly, takes the position of the majority that we deal with hearsay exception as a class of statements that fall within the definition of the hearsay exception, and then the statements will probably come in. A criminal Defendant has the presumption of innocence, and more importantly, he has the right of confrontation, and the prosecution doesn‟t have the right of that argument. This can keep out hearsay exception evidence offered by the Prosecution - the right to confront his accuser. the majority here says “let‟s not make it so hard on the criminal Defendant and keep out their evidence if it doesn‟t fall within one of the definitional hearsay exceptions - OK, let it in and let the jury decide the credibility of the statement. The jury could be very skeptical about the statements made at the scene of the crime and the juries will correct this and give the weight it feels is appropriate. => Note it is important that the Dimaria case stands for the proposition that the Defendant‟s state of mind was at issue in this case. What is the element of reliability that justifies this state of mind hearsay exception? Evidence 2 Michael M. Wechsler 34 Michael M. Wechsler Evidence 2 35 Lack of time to fabricate, contemporaneousness, the difficulty in proving one‟s state of mind so we allow a little more evidence as a matter of necessity to best find out what is going on in a person‟s mind. - FRE and NY: Unavailability not required because these statements have an independent evidentiary value - they are contemporaneous but these statements made at that time 3 years ago at the time he was experiencing the events is worth more than now trying to do it in retrospect. While as in Dimaria the rule is strained it still falls within the rule of the criminal Defendant. Out of court assertions to show the speaker‟s state of mind where the speaker‟s state of mind is an operative issue in the case: Other examples of the assertions of the speaker‟s state of mind where mens rea is an element at issue. - Whether X acted under duress, or coercion from a guy names John, and at the time he said “I am afraid of John” who is doing the coercion. We are trying to prove his state of mind so his feelings toward John so it is admissible under the state of mind hearsay exception as the state of mind is an operative issue in the case. How do you prove domicile in a tax case? A showing that a person lives in that location and an intent to make it his permanent residence. A general statement of even saying that he is terribly depressed here in NY or that he “loves it here in NY” is also within the hearsay exception as it is within issue of state of mind. Many situations. The state of mind might itself not be the operative issue, but circumstantial evidence of the speaker‟s conduct. The prior discussion was where the state of mind was the operative issue. We know what the declarant did - we know Dimaria had a bunch of cigarettes in his possession, but what was his state of mind at that time. The state of mind might also bear on, in a chain of circumstances, something regarding the speaker‟s conduct or behavior where the behavior or conduct is the operating issue. Mutual v. Hillmon - 789 Hillmon is dead and his wife is suing to recover on the policy. He left to go to Crooked Creek. There was a dead body found and there was a question as to whether it was Hillmon or Walters. She claims it was Hillman‟s, and the insurance company claims it is Walters. If Walters then Mrs. Hillmon can‟t recover, and insurance company tries to prove that it was Walters‟ body in Crooked Creek and deny recovery. The insurance company seeks to prove that the body was that of Walters that he wouldn‟t go just to CO in general, but his destination more specifically was the expression by Walters to specifically express the intent to go to Colorado in his letters to his family, with Hilmon . Is this relevant? These are out of court statements contained in a letter and therefore hearsay - the insurance company is trying to prove truth of the matters asserted of what Walters said - that Walters planned to go to Crooked Creek with Hillmon. The insurance company is trying to show that he did in fact go to Crooked Creek. There is a chain of inferences that if you plan to go to a location, chances are you will go, and if you do go to that location, then that increased the chances that if there is a body found, that it is you. Since the time of the letters, no one has seen Walters since. We have a hearsay exception of the state of mind exception of state of mind. We are looking to Walters‟ state of mind his intention - his plan to do something. Intent falls within the state of mind hearsay exception if it is relevant to prove conduct. USSC discusses the element of reliability in a statement of intent that the letters from him to his family were the natural, if not the only attainable evidence of his intention. Additionally ,they state “wherever bodily or mental feelings of an individual are material to be proved the usual expressions of such feelings are original and competent evidence of expressions of the natural reflexes of what it might be impossible to show by other testimony.” The natural reflexes are the best evidence of what was on a persons mind - it is natural. US v. Pheaster - 793 Issue: Whether this person named Angelo is if not the killer, at least the abductor of a guy named Larry Adell. Larry made a statement to his girlfriend before he disappeared that he was going to meet Angelo in the parking lot who was going to give him a pound of free marijuana. This is the statement in issue. No one saw Larry meeting Angelo in the parking lot that night. There is a chain of inferences. If he planned to meet Angelo that night, then that increases the likelihood that he did in fact meet Angelo that night, and if he did in fact go to meet Angelo that night, that would also place Angelo at the scene of the crime and increases the chances that Angelo was the abductor. The hearsay declaration is the statement of this meeting by Larry, and the hearsay exception applicable is the intent to meet per 803(3) state of mind which includes intent, plan, motive or design - if I intended to meet with Angelo, it is circumstantial evidence that I met Angelo. This is critically different than Hillmon: The issue: Walters‟ / speaker‟s intent and his state of mind, as there we say if Walters intended to go, he probably went. But here there is a question of two parties and including a third party‟s intent Evidence 2 Michael M. Wechsler 35 Michael M. Wechsler Evidence 2 36 to meet him - Angelo‟s intent to meet Larry. Maybe Larry did indeed go, but there is no indication that a statement of that third party supposed to show up that it makes it any more probable that the third party did in fact show up. In Hillmon only the speaker‟s intent was at issue. Here two people‟s intention‟s are at issue - the intent of the speaker and the intent of a third party, Angelo. The reliability in regard to Angelo is what? We are using the state of mind exception of the speaker to impute a similar state of mind on someone else. Larry‟s opinion as to what is going on in Angelo‟s state of mind is the best evidence and this is a huge stretch of best evidence. But the court looked at legislative history which stated that the committee intended to limit the doctrine of Hillmon only to prove the conduct of that person, not third persons. But the court continues that the common law was very broad, and influential, and thus used the common law interpretation. In Hillmon, p. 791 fourth paragraph, where the USSC describes the hearsay exception that it applies here, and states about Walters‟ letters, that Walters had the intent of going, and going with Hillmon, which made it more probable that he did go, and more probable that he went with Hillmon went with him. This is dicta that it is imputed that they went together, and the court gives a lengthy notation that allowed that same type of evidence as in Pheaster of evidence that was admissible to prove what the other person did. The rational of that NJ court being, on 792, that “in reference to the companion who is to accompany the person leaving, is as natural a part of the transaction as is any other incident or qualities of it. It is legitimate to show by a man‟s own declaration that a person left his home for a week, or for a certain destination, which seems incontestible - why not it be proved in the same way that a person was going to bear a company with him. At the time the words were uttered or written there appeared no wrongdoing to anyone, and the reference to the companion was another circumstance of his going. It is in the ordinary train of events to not only describe what you are going to do, but who you are going to do it with.” It is like a collateral statement that is let in, and what justifies it the nature of the circumstances, one which is not likely to be done unilaterally, one which naturally involves the participation of another person and is naturally expected under the circumstances, perhaps through corroborating evidence, we will let it in. This is the USSC rationale, and it is extended in Pheaster in a criminal action to rope in the conduct of the defendant. In NY app. division case - “we will allow such statements where they are made under circumstances which make it probable that the expressed intent was a serious one and that it was realistically likely that a meting would in fact take place with the other specified person.” If you say you are going to meet with Angelo, we would let it in if the circumstances indicate that you would do so - there were prior business dealings with Angelo to buy weed, and circumstances show that the intent was serious and realistically likely the meeting would occur. 1. expressed intent was a serious one 2. realistically likely that a meeting would take place with the other specified individual Corroborating circumstances are a key factor. But note the key distinction between the issues between the issue in Hillmon v. that in Pheaster. SHEPARD - 799 -What about memory - also a “state of mind” and fall within the hearsay exception? ** get facts A person‟s statements are circumstantial evidence regarding one‟s state of mind. e.g. “I am the Pope” is not a statement that we are trying to prove truth, but circumstantial evidence of the speaker‟s state of mind. This is where the speaker‟s state of mind is a relevant issue - very important to remember. Facts: The woman said that the Dr. has poisoned her using whiskey. His defense is that yes, she died by poisoning, but it was by suicide. The prosecution admitted evidence at trial that the victim asked the nurse to get a bottle of whiskey from the nurse, and told the nurse “Doctor Shepard is poisoning me.” The prosecution Defendant tried to object that this statement was hearsay - the prosecutor claimed it was a dying declaration, since she knew that she was dying, that she identified her killer and she knew that she was dying as she had a settled hopelessness. But she didn‟t really have this settled hopelessness but the trial court let this in erroneously. It was explained to the jury that this was affirmative evidence that Dr. Shepard killed her - brought in hearsay to prove the truth of the matter asserted. This is wrong. The Prosecution tries to justify this by trying to bring this within the state of mind hearsay exception but they don‟t buy it. The Defendant offered evidence at trial that the death was suicide by the testimony of other witnesses that testified that they were with Mrs. Shepard and she constantly talked about how much she hated the world and life, and she lost the will to live. Her state of mind was admissible for the Defendant as per the exception, and this makes it more likely that she killed herself. Now this opens the door for the prosecution to offer by rebuttal that her state of mind was not that of someone who lost her will to live. They offered statements that she made (not the definitely admissible statement, had she made them, that she opened the window and said “oh what a great day I love the world!”) They offered the words to the nurse “Dr. Shepard poisoned me!” - her statement is not being offered to prove the truth of the matter asserted, but proof that she had a will to live. The statement is circumstantial evidence of her state of mind of that will to live, not the truth of the matter asserted. She wants to get an ambulance to help her live. Judge Cardozo states, however, that we have 12 lay persons not psychological experts. Even it came in under the theory that the prosecution is arguing, if the trial judge said to the jury a limiting statement that it was only offered as indicative Evidence 2 Michael M. Wechsler 36 Michael M. Wechsler Evidence 2 37 of her will to live, not the truth that she was poisoned by the doctor. Cardozo states that having it stated is far too prejudicial and the jury will disregard the distinction - this is one of the situations were the limits of the jury have gone too far. The victim is describing memory - prior conduct of the assailant. It is based on something that the victim states about something she remembered in the past -> Hillmon only deals with prospective statements, statements that are planned, forward looking statement as to what you plan to do. e.g. if someone says he remembers being in Chicago 2 weeks ago and is offered for the speaker‟s state of mind as proof of being there 2 weeks ago. Rule: Memory is a state of mind but does not fall within the hearsay exception. Hearsay exceptions only apply to contemporaneous and forward looking statements such as planning and description of current activity. Hearsay Rationale for its exclusion: 1. We wont to be able to cross examine witnesses and we want to do so regarding their perception, their credibility. If we allow memory in as a state of mind, everything will be admissible. Everything is such a statement of past, present or future. Thus there would be no hearsay rule as arguably everything is a statement of one of these. Hillmon is the high water mark beyond which we will not go in this area of state of mind. Statements about your then existing state of mind, and things you will do are admissible. Your memory of things that you have done in the past are not within the hearsay exception of state of mind. In cases where we are not trying to prove that you are the Pope - technically it is not hearsay. But if it is in a criminal case it is much more scrutinized because of the inadequacy of limiting instructions. If it doesn‟t fall within other hearsay exceptions then we wont allow it in under the hyper technical exception of state of mind - FRE 803(**) “not including a statement of memory or belief to prove the fact remembered or believed “ - The exception is regarding a will. Unless it relates to terms of the declarant‟s will (the person known as the testator) statements made by a testator, even when he plans to do so in his will, his statements will be admissible. -> If he states he “left it all to the BBB Pet Cemetery” then that is admissible to show his intent, especially when there is an ambiguity in the will as to who was to get the money. Why should these things be allowed in? Because with every hearsay answer always state that there is a reliability factor, and what that is. Here the reliability is that the testator knew better than anyone else what he intended. With the will contests, the members of the family would even go at length to perjure themselves to say what the testator said. This is a danger, there is also a danger made by people that may say the wrong things currently. He may want to keep people on his good side so he keeps telling everyone they are in, yet nobody sees this will. There is a motive to misrepresent this state of the will. - There is a long tradition in the law that wills and last testaments that a will speaks for itself, and if it doesn‟t speak clearly enough, then too bad, so sad, you are considered to have no will. NY disallows ANY statements regarding the existence or contents of his will as a matter of policy: In NY hearsay declarations regarding existence or contents of the will - even if it falls within state of mind hearsay exception e.g. “I plan to leave everything to my niece” which would clearly fall within the plan exception that you plan to follow through on your plans, NY disallows ANY statements regarding the existence or contents of his will as a matter of policy. On the other hand, if the testator‟s mental capacity is in issue - we know what the will says - a person must be of sound mind and body and if he lacked testamentary capacity at the time of making the will, then the will is not valid. Many times the family that is left out of the will and the family will argue a lack of testamentary capacity. IF THAT is the issue, then statements made about the will in regard to state of mind and his sanity - then that is admissible ONLY for the purpose of sanity. e.g. Fester leaves all his money to the BBB Pet Cemetery. What if at the time of the will, Fester said that he hates his son, and the BBB cemetery would admit it to show that he knew exactly what he was doing. They are trying to admit it to show state of mind that he knew exactly what he was doing. But, what if he said “my son is a dope addict.” As long as it is introduced to show other than the truth that the son is a dope addict, that would not be hearsay, but there is a question of relevance. It is sufficient that Fester might think his son is a dope addict, and it is circumstantial evidence of Fester‟s state of mind in regard to his son. This is like saying “I am the Pope” which is not offered to prove truth that he is the Pope, just state of mind - here being that the testator‟s state of mind was that of negative feelings for his son, believing him to be a dope addict whether true or not. Policy dictates that we need to know testator‟s state of mind and it will be how he felt about is son (I hate my son), or that it is circumstantial evidence (my son is dope addict) and therefore admissible. Excited Utterances and Medical Treatment Evidence 2 Michael M. Wechsler 37 Michael M. Wechsler Evidence 2 38 1. Does it fall under a deeply rooted hearsay exception? Are these of recent origin? 2. Reliability requirement - as in Ohio v. Roberts - Reliability plus (unavailability is not always required) White v. Illinois answers the question in 502 US 1. The excited utterance and medical fall within deeply rooted hearsay exception 2. Unavailability is NOT required for these two hearsay exceptions for the purpose of 6th Amendment analysis because they have independent evidential value, same as the coconspirator hearsay exception. There is this independent reliability. For excited utterances, we don’t care whether the speaker is in the room, because it might be better this way than to have them reflect about the past and think about it and maybe change the story to the way they want to remember it. NOTE: Of a so called prior consistent statement that falls within a hearsay exception, it is admissible. It would have to fall within an independent hearsay exception, like purposes for medical treatment or excited utterances, and the only question is the 403 weighing factors, such as cumulative evidence, etc.. e.g. if you hear someone yell “Oh my G-d Joe Smith from down the block is robbing the bank” then that may be a prior consistent statement, but it will be admissible because of the fact that it is an excited utterance. Statements made to a friend about medical treatment FRE - statements made to friend under 803(3) about your existing medical condition is admissible, but not in NY which does not allow such testimony. Stretch of hearsay rule of identification for cases involving children - Dr. Shepard has poisoned me - statements made for purposes of medical treatment - it is not pertinent for diagnosis or treatment that it was Dr Smith who treated her and not Dr. X? No. With a little child, the psychological diagnosis, the person might be important in treating the child, but there is really no psychological treatment with the fact that it is Dr. Shepard who was treating her and is collateral. Note that the statement about the child is contrary - the fact that a car hit a person is the only thing relevant, not who did it. Same idea, get it? The source is NOT relevant, just the facts that occurred. The stretch is allowed ONLY for children because they are children. BUSINESS RECORDS - FRE 806 e.g. Co. A sues B for nonpayment of goods. B says A never delivered. At trial A tries to prove this at trial by offering their business records, that are regularly kept regarding shipments, cost, date of delivery, and routinely recorded in A‟s business. It shows that the delivery took place and left on B‟s warehouse steps. This is hearsay - a written out of court statement being offered to prove the truth of the matter asserted. But this is probably admissible under the business records exception. Reliability factor of Business Records 1. Reliance factor: all business take these records and they rely on them so they may function efficiently and accurately. People‟s jobs depend upon this. Since such books are made on a regular basis, habits of regularity build up and this enhances the reliability factor. 2. Convenience factor - the record is a one step ability to look at the record and determine the result. If A had to prove delivery other than business records, how would you be able to prove delivery? You would need the driver, loader of truck, the maker of the order, the taker, the receiver of the goods, and this is too much. -> The business of America is not to be in court. There is an element of convenience and efficiency of commerce. But the overriding reliability is that businesses rely on their own records to stay in business. There are three foundation elements - see p. 826 (the 1930 version and current NY statute NY 4518 (a). Same three elements are in FRE 806: Foundation elements for the Business Records Exception: 1. Made in the regular course of any business what does business mean? The last sentence says that it includes business, profession, occupation, and calling of every kind. e.g. criminal prosecution against X for being in loan sharking conspiracy. The evidence is X‟s pocket diary. Assuming we can lay a foundation that he did this as a matter of habit, this is admissible, as all it says is business, it doesn‟t say legitimate business. This hearsay exception allows it as it is good business loan sharks have to keep good records. 2. It was the REGULAR course of such business to make such records. Ad hoc memos do not qualify - those created for a specific occurrence will NOT qualify, it must be something regularly and systematically prepared, which then have earmarks of reliability, that will be admitted. 3. made at the time of the act, occurrence, or event, or within a reasonable time thereafter. Evidence 2 Michael M. Wechsler 38 Michael M. Wechsler Evidence 2 39 - This element is included here as if done immediately it is more accurate, and memory fades after a while and then the accuracy diminishes. You must lay a foundation and show that the records are for business records. You can call a person from within that business that is familiar with the records as an expert witness; someone who is familiar with the record keeping procedures of the business. Rule: You don’t have to call the maker of the record to lay the foundation - It is sufficient that you call someone in the business familiar with the record keeping practices, that it is made regularly, habit and routine, and made at about the time in question. - This is not codified in NY, but is in 803(6) of FRE, but it is required in both sets of rules: “...by the custodian or other qualified witness.” It could be someone in records or someone in management who is familiar with how the record keeping system works. Hypo: A is suing B and A is trying to prove B made such a call to X at such a place and time. A does not keep all the phone records. How do you prove this? You can subpoena the phone company to produce the records of B on such a date and time. The phone company would have to bring the records to court and testify as to how the phone company‟s records are kept. General rule of thumb is that you will need someone within the business to testify as to how this whole thing works. FRE 803(7) - Evidence of non-occurrence of an event Company B brings in its business records of all its deliveries and they find no entrance recorded of any delivery made by company A that were supposedly ordered and delivered. It is admissible, as if they regularly record such events, and that is regular practice of recording. Ii no such entrance of delivery, then it must not have happened. If the foundation sufficiently establishes that such activity of such events is habitually and continuously recorded. This is codified in FRE 803(7). - Arguably, this is not even hearsay, it is like silence or nonassertive conduct. There is lower court case law that suggests differently, that this is not admissible. JOHNSON - p. 826 Facts: Defendant is offering the policeman‟s report, being sued by plaintiff for alleged engligent in the accident. Policeman reported the accident filed by him in the station house. Something in this report hurts the plaintiff. Rule: Police department is considered a business. Policemen generally make a report at an accident scene in the regular course of their business, and are made contemporaneously. This is a proper foundation for a business record concerning the happening of the accident. However, it was held inadmissible in this case because the policeman who made the report was not at the scene of the accident when it happened, and never saw it. He just arrived at the scene after it happened. This matters because of the language of the hearsay exception for business records states that after the 3 part foundation: “all other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker may be shown to affect its weight, but not its admissibility.” Thus when the officer that arrives at the scene, he has no personal knowledge of what happened, and he writes down that the guy in the blue car ran the red light. The FRE would seem to say that it is admissible and it doesn‟t matter that the officer has a lack of personal knowledge because it affects its weight, not its admissibility. However, it is inadmissible here because there is a double hearsay problem - the policeman here is reporting in the record the statement made by somebody else. This is a potential double hearsay problem of two out of court statements: (I) the business record made by the cop (out of court to prove truth of the matters asserted, the record), and (ii) the contents of the record, which is a statement which made by someone else who said something to the cop when he arrived at the scene. What the person said to the cop at the scene - that the guy in the blue car ran the red light - is also hearsay. While it is the policeman‟s job to write down what all the witnesses state at the scene of an accident. however, we must dig a little deeper. The person who fed the information to the cop, his role in the matter is as merely a witness and not part of the police department and therefore is not within the same business. Thus the statements of this witness are not given the same reliability factor. There is a need for accurate business records, but there is no habitual systematic ritual giving an indicia of reliability if the person giving the information who is not part of the business. If someone in the business doesn‟t make accurate records, we fire him. We can sanction the keeper of the records - that makes them reliable. but someone who lies to a cop, someone who is not part of that business who doesn‟t report accurately, we cannot sanction him. -> Thus there is no indicia of reliability of statements made by outsiders of the business. Rationale of Reliability of Business: - Only applies to people who are participants in that business. Duty of the speaker is a business duty, within the same enterprise where sanctions are the penalty for inaccuracy. Evidence 2 Michael M. Wechsler 39 Michael M. Wechsler - Cannot be an outside third party. Evidence 2 40 Yates - p. 829 “Thus, the hearsay statement of a volunteer contained in the police officer‟s report is no more admissible than would be the testimony of the police officer on the stand as to the hearsay statement made at the scene of the accident.” This is hearsay as the cop‟s reliance is something said by an outsider. If we put the cop on the stand as to the statement made at the scene of the accident and the report in te business record, he can only state that he knew that the owner of the blue car ran the red light because X told him. You can object that it is inadmissible hearsay because the cop has no firsthand knowledge. If we don‟t let him testify to it, we wont let him bring it in through the back door letting it in through the business record exception. Important Analysis - Think of the Business record exception in terms of levels: Level 1: Business record itself Here the cop acted in the regular routine course of business, he wrote down things said at the scene of the accident, all which is germane to his job, and made contemporaneously. This level is satisfied. Level 2: The contents of the business record e.g. Change case, the cop arrives and sees that the blue car is at an angle to the street, the yellow car is on the curb, there are skidmarks on the street, and he drew a little sketch. Here the maker has first hand information of what he is writing down, thus there is no problem with this e.g. 2: The problem is only where the maker does not have first hand knowledge. If so, then we must ask where did the maker get his information from? The possibilities of outsider statement hypotheticals: (1) Is the person to whom the declarant got the information from an internal person or an outsider? (2) If from an outsider, did the outsider‟s statements fall within an independent hearsay exception? - If they do fall within an independent hearsay exception, then the business record becomes the vehicle for the out of court statement made by the outsider. (3) If the outsider‟s statement is not being offered to prove the truth of the matter, and is then not hearsay, and the question is whether it is relevant. (a) Person supplying information under business duty to report the information The officer who made the record arrives at the scene and a fellow officer Muldoon is there, a co-employee, who tells Officer Smith that the accident happened in such and such a way, and Smith‟s report contains this. This is admissible because the second cop was under the business duty to report the very same information. This is the reason why the shipping example, the person took the invoice, prepared the invoice, took the order, took it to the shipping room, the shipping room loaded it onto the truck, assuming the trucking company was part of the same business, they are all under the same business duty and that is why there is satisfaction of the second level. (b) Third Party Statement no other exception Change the facts again, the cop arrives, no Officer Muldoon, instead it is just X who was a bystander. He tells the officer what happened that the blue car ran the red light. Johnson v. Lutz states that if the source is an outsider, someone who is not under a business duty, it generally does no fall within the rationale for the hearsay exception. If we don‟t allow the cop to testify live what happened at trial what the outsider said to him, we don‟t allow his record as to what a bystander says through the backdoor. (c) Excited Utterance Same situation, talks to X who is an outsider who is visually shaken by the accident he witnessed 10 minutes ago who is blathering and going crazy and screaming where was the cop, and that the blue car ran the red light! The cop writes down that this person X is totally excited by what he has seen. This case is an excited utterance -If the information given to the maker of record falls within an independent hearsay exception such as excited utterance, then this is admissible because there is an independent exception. (d) Present Sense Impression Same situation, where X states calmly to the cop who arrived at the scene 30 seconds later after he heard the crash while standing with his back to the cop at the corner, that he just saw X run the light. This is also admissible under the present sense impression. While he is an outsider, it was said contemporaneously and an unexcited statement said immediately after the event, and falls under the independent hearsay exception. (e) Party Admission The officer sees this guy crying on the curb, upset but not excited. He asks him what happened. The guy looks up and says that he is the driver of the blue car, and he says that he ran the red light. He isn‟t excited, and the accident Evidence 2 Michael M. Wechsler 40 Michael M. Wechsler Evidence 2 41 happened a half hour ago. The driver of the yellow car, the opponent, wants to admit this in against the driver of the yellow car as a party admission. (f) Third Party no other exception The officer sees this guy crying on the curb, upset but not excited. He asks him what happened - he looks like the driver of the yellow car. The guy looks up and says that he is the driver of the yellow car, and he says that the driver of the blue car ran the red light. He isn‟t excited, and the accident happened a half hour ago. The driver of the yellow car wants to admit this in against the driver of the blue car as a party admission and as a business record of the cop. But this statement is completely self serving. he is an outsider, it does not fall within any independent hearsay exception, not excited utterance, etc. and does not fall within the party admissions as it is not a statement being offered against the speaker but a self serving statement. Thus after this business records analysis this is not admissible. (3) If the outsider‟s statement is not being offered to prove the truth of the matter, and is then not hearsay, and the question is whether it is relevant. e.g. A hotel is being sued for negligent maintenance as someone was mugged in a corridor in the hotel. plaintiff sues to show the hotel didn‟t take adequate precautions against such muggings from happening. Best way to show this is that the hotel was on prior notice. You find that in the business records of the hotel, that they recorded complaints made by other residents of the hotel. If you can show that the hotel kept such records as regular routine business recordings as part of routine duties, even though the clerk got such information outsider and doesn‟t have firsthand knowledge but from the other tenants of the hotel. BUT note that their statements of complaint is not trying to prove the truth that acts actually happened, only that the hotel was on prior notice of such events, that the hotel had notice of probable criminal events that were afoot. Therefore the contents of the records are not hearsay. Q: What is considered as being within the same business? - An independent contractor is not in the same business: The general rule is that the relevant person with knowledge of the business record making function has to be someone within the business. It has to be someone who is a coemployee of the maker of the record, someone within the same business enterprise. - Janitor in the business: ?????? - Officers observation of the facts are admissible. But what if he gives an analysis in his record and describes his version in his expert opinion as to what happened based upon the marks: (a) We call the officer as a witness at trial but does not write them in his records - we do let experts give opinions at trial and here the police officer is an expert opinion. (b) As part of a business record - Admissible! This is because if an opinion in a business record could be admissible at trial if the person was testifying live, we will let it in if it is part of the business record, but we must satisfy both levels: Level 1. A record made in the regular course of business? If such opinions are made within the regular course of business to do so, we pass level 1 and we move to level 2. If it is not, then it fails the 2 part test and it is over. - Adoptive admission: If the other person hears the statement of one driver complain that he ran the red light, and he does not complain in front of the police officer, it is admissible in the record as an adoptive admission. Hospitals are a business - treatment of sick people Hospitals deal with treating sick people. When nurses or physicians examine someone they take a record/report on a chart as part of regular routine practice. They write down temperature and observations of symptoms, blood pressure, etc.. All these things fall within the business of treating sick people. This is just the same way it is germane to a cop to write down the facts and what witnesses say about the accident, the observance of marks, and his opinion of the accident. In addition, these records are usually made contemporaneously, and thus meet the 3 part requirements to admit as a business record. Sometimes we may need experts to decipher things such as the handwriting of doctors who are notorious for bad handwriting. But what about when the doctor writes down all the facts and conditions that he observes, and then writes that in his opinion, the patient is suffering from XYZ. This is admissible because it is in the regular course of business to make such opinions, he is allowed to testify at trial, and this is one of the best examples of expert testimony from a physician. The fact that he put this information into a business record it is admissible because he would have been allowed to testify to that same information at trial - assuming that it meets all the foundation requirements. Hypo: Johnson v. Lutz context - Person comes into the hospital and the nurse writes down a chart all the facts, and then the patient starts talking to the nurse or doctor as to what his condition is. The doctor writes down that the patient says stuff about his condition - how do we get this information into evidence in regard to the Johnson rule because the doctor no longer has no firsthand knowledge of what is going on inside the patient‟s body? The doctor has no way of knowing what is true, and just writes down what is said by the patient. He is an outsider and not under a business duty. However, this is admissible as statements made for purposes of treatment of medical diagnosis is a separate hearsay exception that allows it in. If so, then statements made by a patient are admissible. If Level 1 is satisfied that collecting this Evidence 2 Michael M. Wechsler 41 Michael M. Wechsler Evidence 2 42 information from the patient is germane to the treatment or diagnosis, the statements by the patient is within the course of business, and we go to level 2 where we have an independent hearsay exception. Hypo: Nurse asks patient why his arm is dangling. He says that “I got hit by a car. The driver of the car was X.” The first part would be admissible as necessary for treatment, but not the second, as it has nothing to do with diagnosis. It is not pertinent for diagnosis, hospitals do not conduct investigation in how accidents happen (thus it fails Level 1 because then it isn‟t their business), their business is just what the result is to the patient. Just because the nurse humors the person and writes down everything said, only the parts pertinent to treatment are admissible as part of the hospital‟s business. The judge has to make a decision as a preliminary decision to decide whether it is pertinent to treatment and diagnosis. If the judge concludes that it is, then it passes level one. Then we see if it falls within an independent hearsay exception and passes level 2, as if it is statements made for purposes of treatment and diagnosis then it is an independent hearsay exception. Hypo: a hospital decides to go into treating and diagnosis, as well as investigating an accident. It gets you past Level 1 as the statements of general cause of an accident are part of the ordinary and germane cause of business, but fails on Level 2 because the statement of the specific person as to who caused the accident is not necessary for treatment. (unless it is a child) William v. Alexander - It doesn‟t matter who was driving the car that hit the plaintiff, the only relevant thing for treatment and diagnosis, which is the only business of a hospital, is the fact that it was a car and not a particular identity of a driver. Level 1 - 3 part foundation proved through a custodian Level 2 - Look at the contents, go through the Johnson v. Lutz analysis FRE is applied in exact same way, a landmark decision as to Federal business records exception. Palmer - p. 839 - Negligence action. Facts: There was a railroad accident at a grade crossing. A record was made by an employee who died prior to the trial. The record made by the railroad company was self serving and helped their case. It was prepared by their employee an engineer who had first hand information. He was under a business duty to report to his employer. Level One - this was not satisfied as it was not made for the regular course of business for mere records, but for a self serving record for trial purposes in case of a litigation. The fact that the records are self serving does not make them inadmissible. The fact that a company keeps records is self serving, but it is not disqualifying because the self serving nature here becomes inadmissible - this is because it is coupled with the factor that it is made for the purpose of pending litigation, not for the regular course of business. Rule: Records made for the purposes of litigation fall outside of the rationale of the business records exception. The question is how broadly will you take this concept? What if you have multiple purposes for a report and that one of those purposes is for litigation purposes? Rule: If the report is for the regular course of business, it is not automatically excluded if one of the reasons the report is made is for litigation purposes. MTA has accidents every day and they always write up an accident report. The purpose of these reports is not just for litigation purposes. It also writes them up for quality control and for insurance purposes and insurance companies may require it. It may be written up for quality control, for disciplinary purposes, as well as litigation purposes. Note that Palmer is interpreting the federal business exception. FRE was adopted in 75. The drafters did take Palmer into account in drawing up 803(6). There is no express language that mentions litigation purposes. It doesn‟t say anything about situations where there are circumstances where there is lack of trustworthiness. They didn‟t reject Palmer in drawing up FRE 803(6), but there is something in the end of 803(6) right after the 3 foundation requirements are spelled out, there is statement of if we satisfy the requirements it is admissible unless there are circumstances that indicate a lack of trustworthiness - this is as such where the report is done for litigation purposes. This is Palmer but not spelled out. This is therefore not an automatic inadmissibility because of the litigation potential, but is there to be put forward as a potential objection to admissibility, with the burden on the opponent to demonstrate that in the particular case based on the circumstances there are no motives other than litigation, etc. and there is a case by case basis for exclusion. Palmer is not dead, just eroded. If something is only for litigation purposes, it severely detracts from its value as business records. If the opponent is offering the business records against the business (as opposed to the usual self serving nature) it may be considered as a party admission. NY follows same FRE approach and recognizes the existence of a litigation factor, then the Palmer doctrine can find the source of an exclusion. It is not in CPLR but imposed by case law. Evidence 2 Michael M. Wechsler 42 Michael M. Wechsler Evidence 2 43 PUBLIC RECORDS - FRE 803(8) - NY CL product of case law The government is a business, e.g. police reports. In Johnson v. Lutz the police report was analyzed in accordance with the business records hearsay exception. Many times you can get government evidence in by business records hearsay exceptions by satisfying the necessary foundation. But common law courts recognized a separate hearsay exception for public records justified by the same rationale that the government must have accurate records to work properly, and that government employees are to be expected to report accurately because their jobs depend upon it. But the extra push is that public officers are under a public duty to take their jobs seriously, beyond the payroll issue, and there is a presumption in the common law that government officials accurately do their jobs - this is subject to rebuttal. Generally the government has no motive to lie about things when preparing reports. There is also a public convenience factor where we don't want business to come to a halt if we would have to have all the government employees had to come into court to testify all the time to describe the transactions. FRE 803(8) Government records. NY 4520 - not as broad as FRE 803(8), and mostly a product of case law. Not well developed and not much case law because public records are usually admitted through the business records exception. FRE 803(8) - much more detailed and developed than the common law hearsay exception. NY - little case law, most government records are admitted via the government business records exception, and you will not find common law because this is used. FRE 803(8) Public records, well developed which is much more detailed comes in three parts with three categories of public records, A, B, or C. A: If it sets forth the activities of the office or agency e.g. internal house-keeping inventory of government property, or branch of government keeping track of cash disbursements between contractors. B: Records of items observed externally - matters observed pursuant to duty imposed by law as to which matters there was a duty to report - , not idle observations, but where there is a duty to make a report. e.g. the weather bureau is to keep track of the weather and they must issue reports. C: Civil actions, factual findings of resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate a lack of trustworthiness. Hypo: Airplane accident. Trainee is on the flight when the plane crashes. The FAA is notified of the crash and they send a team of investigators to collect the wreckage, examine and inspect it, check the flight records and conduct interviews, check the weather that day, etc.. They prepare a report and set forth their factual findings. Let us say that they reach a conclusion after looking at all the factual data that this is the result of pilot error. There is a lawsuit by the family of survivors suing the manufacturer of the airplane manufacturer alleging a defect in the combustion system of the airplane, products liability, that it didn‟t work correctly to slow the plane down properly. The manufacturer will try to defend by proving pilot error by using the FAA investigator‟s report. This report is hearsay, but under the exception of 803(8)(c), it is a civil action, and a factual finding made pursuant to an investigation authorized by law, and it seems on its face to be a valid hearsay exception. But, the FAA‟s report is not a factual finding, it is a CONCLUSION, it is the investigator‟s OPINION. 803(8) only talks about factual findings, not opinion. The language of FRE does not exclude opinions specifically, and does not fall within 803(3) which says factual findings. It just says records and reports that set forth factual findings. If the conclusion is capped off by a great deal of investigation and factual findings, there is nothing in the language that excludes opinions that are based on such factual findings. It is also difficult to differentiate between fact findings and conclusions. The conclusion that there was pilot error could be either opinion of fact finding. Alexander says we don‟t have to draw the line here so long as there are plenty of facts to support the opinion. All of the report will be admissible as it will be within the intent of Congress. This is different than if the report says that the FAA investigated the matter of the Cessna, and we conclude that there was pilot error. Would that be admissible? NO because there are no facts in that report, just a bald faced conclusory opinion that does not fall within FRE 803(8). USSC held in Beech Aircraft 488 US 153 (1988) - that the type of report described above (the detailed evaluative FAA report with an opinion) and falls within the language and the spirit of 803(8)(C), if it is a evaluative report which means that it contains factual findings. - In regard to untrustworthiness, the burden is on the opponent of the party introducing the evidence to show untrustworthiness. The plaintiff here does not have the burden of showing a foundation of lack of trustworthiness. Government evidence of this kind is prima facie admissible if it contains factual findings, “unless rebutted” means that the burden of inadmissiblity is on the opponent. The Advisory Committee Report of this (p. 153 of supplement) that just like exception (6) of business records rule, this rule assumes admissibility in the first instance with ample provision for escape if significant negative factors are present.] Factors include: 1. Timeliness - how close in time: How long did it take FAA to get to the crash - was it immediately and an element of contemporaneousness? Evidence 2 Michael M. Wechsler 43 Michael M. Wechsler Evidence 2 44 2. The expertise of the investigators (their qualifications) 3. Whether a hearing was held and the level where it was conducted - was the testimony held at the airport, or was it a regimented and elaborate hearing. 4. Possible motivation problems suggested by Palmer v. Hoffman - where records were made solely in preparation for litigation, which goes to the trustworthiness of the document, as you could slant the document because you know it will be used in litigation and obviously very self serving. e.g. guy is injured on a ship, owned by US, and immediately after the injury the Coast Guard happens to come out with a report saying the ship was fine and it was all the plaintiff seaman‟s fault. Of course the Coast Guard‟s report will say his agency isn‟t responsible, (the government may find that the guy was drinking by finding an empty bottle on the ship!) but there still is the potential motivation of preparation for litigation and thus subject to exclusion. This is different tant the FAA above where the FAA was not an interested party to the suit. In the case involving the FAA arriving on the scene you cannot get the report in under the business records hearsay exception. The permissible source of a business record is that you: (1) must have firsthand knowledge, (been there when the accident happened) or (2) are permitted to rely and take statements from people within the same business who have a business duty to convey information, or (3) If you are recording independently admissible hearsay exceptions. But NONE of this applies under 803(C). This is a radical departure from the business records exception. Why should we allow an investigatory report that relies on bystanders, not experts of the FAA, people who simply observe the plane as it crashed in the air? There is nothing in 803(C) that will specifically exclude it, the lack of trustworthiness is only a factor of circumstances that might suggest untrustworthiness. We will let it in under this context, but not under the business records exception, because of the nature of what a government investigator is supposed to do. The sorts of people that the FAA will send to the accidents will usually be highly trained, with the analytical ability to discern truth fact and fiction more so than ordinary business people who merely go about doing their business. There is a presumption that government officials do their job carefully, do not jump to conclusions too quickly, and due to their training they will be more attuned to what should be more discernible as evidence than bystanders and included in their reports. BUT if they get all their information from bystanders with no facts, physical examination of wreckage of firsthand knowledge for themselves, then these are circumstances that goes to the weight of the untrustworthiness of the evidence. This is a more flexible approach that under the business records rule. The business records rule it is very clear and dry as to the permissible sources that the maker of a business record can rely upon. The business record rule is a more flexible rule with the burden on the opponent to point out such defects as to the sources of information. US v. Oates - p. 856 Oates Defendant was charged with possession of heroin with intent to distribute. At trial the court admitted testimony by a US Customs Service chemist who explained the worksheet and the official report prepared by another chemist, Weinberg, who was unavailable to testify because he became sick by the time of the trial. There were some discrepancies between the worksheet and the official report which the witness co-worker was unable to explain. Weinberg sits all day and just analyzes stuff and then he prepares a report as to what the stuff is, and he writes up a report and states what he did and the tests he ran, and the conclusion he drew from those tests. An essential element of the prosecutions case is that the substance was heroin. The prosecution could have called Weinberg who was originally available to testify, but later became unavailable due to illness. There is no problem getting his expert opinion as to what happened in the lab. The government here, however, sought to prove that the substance was heroin by calling another expert - another chemist at the lab stating the procedures of the job. This is hearsay but this is a foundation being laid by a co-worker of a business record. This shows that it is a report made in the regular course of business and it is regular practice to do so. Here the observation is regular, and the conclusion was that it was heroin. At trial the record was offered under 803(8)(B) - the public record - a matter observed pursuant to a duty imposed by law, the duty of a customs checklist to make observations about substances he examines and to do a report thereon. Like the FAA investigator, that he was investigating what was in the bag, and his conclusion was that the substance that was in the bag was heroin. It is admissible as long as the report sets forth factual findings and not just a bad faced opinion. The objection is 6th amendment, but not the basis for the opinion. The report is inadmissible under the public records exception. There is exclusionary language in 803(8)(B) and (C) which are matters observed pursuant to duty imposed by law as to which matters there was a duty to report “excluding however, in criminal cases, matters observed by police officers and other law enforcement personnel.” Subdivision (C) also contains an exclusion - the factual findings are admissible in civil actions, and against the government in criminal cases, and that tells us that it is not admissible against the Defendant in criminal cases. Why does 803(B) and (C) exclude law enforcement personnel reports, but under (C), ANY kind of evaluative report when offered under the (C) is inadmissible against the Defendant? Why in Evidence 2 Michael M. Wechsler 44 Michael M. Wechsler Evidence 2 45 this case as opposed to excited utterances, co-conspirator, is this not admissible against criminal defendants without a problem with the 6th Amendment right of confrontation? Rationale: Palmer v. Hoffman: Reports prepared for litigation. This is because of the inherent problem as law enforcement personnel are in the business of trying to seek a conviction. They are going to try to get a successful conviction, and like Palmer, there is a sense of inherently being slanted because the reports are being prepared for prosecution. Thus Congress excluded these kinds of reports. p. 158 of the supplement regarding subdivision (B) “Ostensibly the reason for this exclusion is that observations by police officers at the scene of a crime or the apprehension of the Defendant are not as reliable as observations of public officials in other cases because of the adversarial nature of the confrontation of the police and the Defendant in criminal cases. p. 155 supp. Congressman Dennis - you ought to have to be able to call the policeman on the beat in criminal cases. You ought to be able to give the Defendant the ability to cross examine the cop and not just read the testimony into evidence. Subdivision (C) is not limited just to cops and law enforcement personnel, it says any type of evaluative reports of factual findings. The fear is that even though it might not technically be a law enforcement agency, the report may be based upon hearsay, the conclusions may be based on interviews of people, and thus the government simply took a blanket approach of exclusion of evaluative reports under (C) against a criminal Defendant so as not to get into confrontational problems. Can it be used against the government? e.g. What if the government investigation concludes that it wasn‟t Jesse James who robbed the bank but Bonnie and Clyde. Let‟s say Jesse is trying to introduce evidence of government that it was Bonnie and Clyde and use the government fact finding document. This can be used against the government because the government has no right of confrontation, and in addition, if it is something that would hurt the government‟s case then it wouldn‟t say it unless it believed it was true and therefore is like a party admission. Jesse can use the report against the government. It applies to (B) as well. Q: Is a custom‟s service chemist a law enforcement officer as per FRE 803? A: Under FRE 803(C) it is going to be excluded regardless of whether he is a law enforcement officer. Under 803(B) as per p. 858, this phraseology must be read broadly enough to make its prohibitions against the use of government generated reports in criminal cases coterminous with the analogous prohibitions obtained in FRE 803(C). For purposes of this rule they will treat him as a law enforcement personnel. The US Attorney makes an alternate argument - that there are no exclusions under 803(6) for business records prepared by law enforcement personnel. Our general rule is that if you can‟t get something under one of the hearsay exceptions, look around for some alternate basis for admissibility. The other chemist comes in and lays the foundation for a business record. The customs service is a government business, like in Johnson v. Lutz the investigation of the accident is a government business. However, there is Congressional intent of Congress (as per R. Dennis) was not to include the admissibility of such reports of this nature, regardless of the exception - it is policy. Such reports shouldn‟t be admitted, as per the context of 803(8). If the reports were not admitted under 803(B) or (C) should not be admissible under 803(6) either. The Oates court views 803(8)(B) as superseding 803(6) in these circumstances. e.g. Assume we are in the trial and that Weinberg isn‟t sick and is in court. He will tell the court what his everyday activities are. He won‟t remember specifically that test that he did on that day for that bag, but he will say that he has a report, but he doesn‟t remember doing that specific test of the hundreds of tests he does per day. Even though he doesn‟t remember this specifically, he can testify, as per another hearsay exception of an FRE 803(5) recorded recollection - that the witness currently has no memory of something but he prepared a memorandum thereof at or about the time of the events that were happened, and if they are on the stand to testify that on the day that when they made the memo, it is admissible under 803(5). But what about Oates? The Oates court said that law enforcement reports, which are inadmissible under 803(8) then it is inadmissible under 803(6), then shouldn‟t Congressional intent be the same under 803(5)? But in the Oates case, the right to cross examine was lost, it is a different kind of hearsay exception in this hypothetical. Here you have the maker of the report on the witness stand subject to cross exam, so the Oates language isn‟t so broad that it says that all the reports of government are inadmissible from any hearsay exception. But this is differentiated as in 803(5) you have the witness on the stand subject to cross so this is not the same. Hypo: Part of the prosecution involving possession with intent to distribute is also based upon another provision of federal code, that the heroin was transported in international commerce and imported from a foreign country. To prove this fact, the government seeks to offer into evidence, that on a certain date at the US-CA border, a car bearing the license number 84345 crossed the border into the US, and it happens that the car is registered to the Defendant. The official of the customs department sits at the border and tags each car that crosses the border, and he records every license plate number crossing the border. He does this all day and night, every stinking license plate. One day he is asked for his records and they find a car that passed the border on such a date. If they prove crossing the border the report of the customs official who records, one of several hundred, the Defendant will object it is hearsay. Evidence 2 Michael M. Wechsler 45 Michael M. Wechsler Evidence 2 46 Government claims it is a public record. Defendant - cite Oates that it border official is a government official and construed broadly is a law enforcement officer. Government - As opposed to the chemist in Oates, the border official‟s record is routines, non-adversarial in nature, and later just happens to be relevant to the prosecution. There was no stakeout. Defendant - but there is no such exception to the exception. Government - US v. Orozco 2nd Cir. - Congress did not intend in 803(8) to exclude routine non-adversarial reports, even by law enforcement officials, to exclude reports that were not adversarial in nature. - Orozco leaves open some argument for the government as to whether a position and report is adversarial in nature and thus should be admitted. Hypo: This Orozco case was decided after Oates in the 2nd Circuit. Let us say the 9th circuit has the same case. Let us say that the Chemist is unavailable as per Oates, and the Defendant will cite Oates. The Prosecutor will argue that the chemist‟s report was not adversarial and merely routine practice, he tests powder every hour. If he finds something, he writes it down. He isn‟t motivated to find anything. If he tells the DA, then the Defendant will be able to test it and if it turns out NOT to be heroin, the US Attorney would look very stupid. Before 803 (c) was adopted, there was Federal case law allowing lab reports into evidence, analysis all on reliance that it was routine stuff, non-adversarial, no motivation to find that it was a bad substance. Then came 803(C) and the Oates decision, and the dust is not clearly settled on this issue. There are arguments that a lab report is much different than a stake out or drug bust, and this is like a crossing guard at the border typing in numbers, he just sees powder. In the Oates case it dealt with Federal government labs and in that case there could be motivational bias. There could also be things going wrong in the lab, as there was in Oates that there was a question of mix ups and mistakes and errors, and that the work that goes on in government labs is less than great. While Oates is correct on the result, it is not necessarily correct for all cases. The whole thing is somewhat iffy, and do not make a rule that anytime a government official does something it cannot be used against a criminal Defendant. Public Records 803(10) - absence of a public record e.g. Let‟s say that when Oates was apprehended he was carrying a firearm, and the alcohol and tobacco and firearms authorities found that it was unlicenced. That is also a federal violation. How do they prove that he didn‟t have a license? Can you imagine how disruptive it would be to have all the clerks in the offices have to go to court and do the routine, etc.. It would be better to have the clerk sign a certified statement that he did a diligent search and he found no application for a license and no license having been issued, and introduce that certification into court against Oates to prove that the gun was unlicenced. Does Oates stand for the proposition that this can‟t be admissible? NO - FRE 803(10) admits this as a public record. FRE 803(10) is not superseded by Oates. Not having a license is unquestionably like the license plates crossing the border. The Second Circuit in US v. Yakobov, same court as Oates, held that a proper certification showing factually that there was a diligent search, then 803(10) maybe used even against a criminal Defendant to prove the absence of a license. OTHER 803 HEARSAY EXCEPTIONS 803(9) - records of vital statistics, birth certificate, fetal deaths, deaths or marriages, if such reports are filed in a public office pursuant to requirements by law. These are reports not prepared by government, but prepared by doctors and ministers, and they have no motive to fabricate. Almost like business records. 803(11) records of religious organizations regarding family history, birth, death, marriage, etc.. 803(12) Marriage, baptism certificate. 803(17) Market reports - e.g. You need to prove in a probate proceeding what the value of stock was on 7/9/93, you don‟t have to bring in the treasurer of the company whose stock you own, but you can bring in market reports in the WSJ, as businesses rely on those reports, and they are in public domain, if there is a mistake, someone is going to catch it. Real Property Records - 803(14),(15),(16) and (20). Recorded documents and ancient deeds. People are generally pretty careful when it comes to real property filings. By tradition you have various hearsay exceptions relating documents concerning property. These are typical of statutes you would find in individual jurisdictions. You would probably find these miscellaneous hearsay exceptions that are analogous to the same concepts. In NY it is article 45 of the CPLR - These items are analogous birth certificates and marriage certificates. IN RE LEWIS - 907 The sister was rich and the family heirs are trying to get at it. Charles ------------- sister (Mignon) her estate in question. | \ | \ 3 sons William Johnston (mother the maid) Evidence 2 Michael M. Wechsler 46 Michael M. Wechsler Evidence 2 47 | | | | sons - grand nephews ------ William English plaintiff English is trying to prove that he is the grandson of Charles Denhalter, and the grand nephew of Mignon, that he is on the same line as the other grand nephews. He has to prove that he is the grandson of Charles Denhalter and the issue is the following: Issue: is William Johnston the son of Charles Denhalter? If he is, then there is no question of English being the son of Johnston. Mr. Clark is the witness for the plaintiff at trial. He claims that Mrs. Clark, his wife, once told him of what happened on a dark night that Rosa, the daughter of the cleaning woman, came to Mrs. Clark‟s home to have the baby there. Mrs. Clark made the arrangements for Rosa. Three days later the baby was taken by the Johnstons who took the child as their own. Denhalter and Rosa came to get the baby back after they were married but the Johnstons refused. If this is true then it shows that the Johnston boy was the son of Charles Denhalter, and then he established his rights as a grand nephew to the estate of Mignon. Mrs. Clark can‟t say her story because she is dead, and Mr. Clark testify what his wife told him, and that is hearsay. But there is a hearsay exception in regard to pedigree. Where an issue of ancestry is presented in court (pedigree issue) we will allow statements made concerning family history made by a person who is unavailable (Mrs. Clark is dead) stated by another person. Rationale and requirements of reliability: 1. The declarations were made at the time when there was no controversy - ante litum motum (before a litigation motive). 2. The person must be someone who under the circumstances would be likely to know the facts about a person’s family history. Extension of traditional rule. The traditional rule that the person who made the statement was that the speaker describing ancestry must be a blood relation or affinity to the family, as that would have contributed to the reliability element because family members would want to know who their family members are, as well as have actual knowledge of experience with other relations. While Mrs. Clark wasn‟t a member of the family, she was likely to know the facts, was present at the birth, and was likely to know. While the record is barren as to what Mrs. Clark‟s real connection was to the Denhalter family, but because she arranged all this stuff, she must have been a very close friend to Charles or Rosa or both, or a midwife for them. FRE 804(B)(4): Pedigree is not an issue that comes up much in federal courts, covered in FRE 804(B)(4) statement of family history. Speaker does not have to be a member of the family, as it can be related by blood, adoption or marriage, or was so intimately associated with the other‟s family to be likely to have such information. He says that if you are in federal court, you better have a better foundation than in the Lewis case about the intimate relation between the family and the speaker. - There is no ante litum motum requirement in the pedigree exception of the FRE. It simply goes to the weight of the evidence, not its admissibility. - The speaker must be unavailable. NY - The pedigree hearsay exception is applied in its strict common law form. 1. speaker must be unavailable 2. statement must be ante litum motum (before the controversy arose) 3. speaker must be related by marriage, adoption or family The NY rule does not currently extend to close members of the family. 803(13) Family Records -family bibles, charts, engravings on rings, family portrait writings, crypts, tombstones and the like. No need to identify the engraver as reliability is that you don‟t go through the trouble of engraving on a tombstone or ring unless what you are engraving is true. RESIDUAL HEARSAY EXCEPTIONS - OTHER NONCATEGORICAL OR CODIFIED What if you have evidence that you feel is very reliable - is there any way to get it in? The catch all exceptions are virtually identical and can be found in two sections. (1) 803(24) If declarant is available and you don‟t want to call him, you make your proper per this rule. statements that have inherent trustworthiness, more probative and useful, and there must be notification to the opposing party. (2) 804 (B)(5) If declarant is dead or unavailable, you make your proper per this rule. Evidence 2 Michael M. Wechsler 47 Michael M. Wechsler Evidence 2 48 The requirements are the same as there must be: 1. Circumstantial guarantees of trustworthiness (particularized showing) 2. It relates to a material fact in the case (there has to be an important reason for offering it) 3. The statement is more probative evidence than anything else available 4. The interests of justice will be served with it 5. You give advance notice to the opposing party (fairness so they can do their own investigations) The frequency to which 803(24) and 804(B)(5) should be used - they do not contemplate an unfettered exercise discretion (we don‟t want to give judges carte blanche), but they do provide for treating new and presently unanticipated situations which demonstrate a trustworthiness within the spirt of the specifically stated exceptions. Dallas County Precedent in this area is of very little value because each matter is specific. p. 268 3rd par. “It is intended that this rule is to be used rarely and only in exceptional circumstances. The court doesn‟t just give licenses for lawyers to try to shove something that is questionable within this section. It must be a very convincing argument for admissibility. Criminal Defendants Your chances of using residual hearsay exception against a criminal Defendant are good if a firmly rooted hearsay exception. It is prima facie admissible - prosecutor gets the ability to use it if it is firmly rooted, and if not you need at a minimum: (1) Unavailability (2) Indicia of reliability If not firmly rooted, it does not mean that it is inadmissible, only that it enhances the burden of proof on the prosecution to demonstrate to the court sufficient particularized guarantees of trustworthiness. There must a particularized (as applicable to the facts of the case.) -If you can satisfy the hearsay exception you can satisfy the right of confrontation. - If it is a categorical exception that is firmly rooted, it will come in against the Defendant. Dallas County - p. 167 This case gave the drafters of the FRE the idea to put these residual hearsay exceptions. A clock tower in town collapsed during a stormy night. The local county owned the clock. They sue the insurance company for proceeds as it covered by lightning, which was hit by lightning. The insurance company said that it wasn‟t hit by lightning even though the clock was charred, this was because of a fire in the tower 50 years ago, and that weakened the beams, and that was what caused the clock to fall. They found a newspaper report in the hall archives that June 9, 1901, there was an unsigned article how there had been a fire in the clock tower on that day. This is hearsay, out of court to prove truth, and the Defendant wanted to show it as a business record. It wasn‟t, as newspaper. While it is true the news writers go out and talk to people, they aren‟t required to account to anyone articles do NOT fall within the business records exception as there is no sanctioning for the business records rationale. Thus, the necessity component. This happened 50 years ago. Indicia of Reliability - while it is true the news writers go out and talk to people, they aren‟t required to account to anyone but they talk to everyone and write an article - but this is a small town - everyone in town would have known about this, and there would have been a real commotion. 50 years went by and no one had challenged it, there were no retractions printed. So it is reliable enough and has substantial enough guarantees of reliability.‟„ This exception is done on an ad hoc basis and does not state that newspaper articles are admissible hearsay exceptions. No residual exception in NY: We have nothing like this in NY, there is no residual hearsay exception by case law or by statute. It is only FRE. Half the states have this clause modeled after the federal rules thus they he the residual hearsay exceptions. Hypo: Is this a potential exception? Defendant is on trial for being a drug czar in a drug conspiracy, and prosecutor has a key witness, Mr. X testified before a grand jury about the Defendant‟s massive drug involvement. Between this time of the grand jury testimony and the trial, Mr. X is found decapitated. The government has pretty good evidence that Defendant is responsible for the crime. Prosecutor will want to admit grand jury testimony. Does it fall within any of the exceptions? NO Former grand jury testimony fall within a hearsay exception? NO even though transcript and unavailable - no cross by in a grand jury, so it cant come in under that. Reliable enough to be residual in Federal court? This is questionably reliable enough as there are only circumstantial degrees of trustworthiness... however...Another perspective - the Defendant should not get the benefit of his probable action of killing the Defendant. If we exclude the evidence because of no cross exam, then policy would be problem because we will say to the criminals “get rid of the witness.” Rule: So a new categorical rule, in NY and Federal, a criminal Defendant who is proven to be responsible for the unavailability of the witness, cannot say that hearsay is to be a problem. Evidence 2 Michael M. Wechsler 48 Michael M. Wechsler Evidence 2 49 FRE: The burden is by a preponderance of the evidence in Fed court, because it is not going to the merits which is beyond reasonable doubt. NY: is more cautious, and requires clear and convincing evidence that Defendant is responsible for the unavailability of the witness. NOTE it is the JUDGE who determines in the area of hearsay, the judge alone makes the fact-finding within what falls within the hearsay exception. No explanation is obviously given to the jury that the Defendant is responsible of the unavailability of the witness. That is between the lawyers and the judge, or there is a violation of 404(b) evidence not admissible for unproved crimes. FRE 806: when hearsay statements come into evidence pursuant to a hearsay exception, the person against whom such evidence is introduced, has a right to attack the credibility of the hearsay declarant. As we know, once there has been an attack on the witness‟ credibility, the proponent of the evidence has a right to rehabilitate the hearsay declarant. - This mirrors how we attack the credibility of a live witness. AUTHENTICATION - OF WRITINGS 901(A) In the absence of a stipulation, the evidence must show that the thing is what it purports to be. Authentication: In the absence of a stipulation there must be evidence that the thing is that which it purports to be - Rule 901(a). ZENITH RADIO V. MATSUSHITA ELECTRIC p. 187- Diaries (** facts) The party who didn‟t make them - the opponent plaintiff is offering them into evidence. The plaintiff is trying to prove the truth of the matter asserted in the diaries so it is hearsay. This is during business, recordings by the employees as to the everyday occurrences there. The authors of the diaries are employees of one of the Defendants. - Business records rule may be applicable, admissions by the employees. - Party admissions - while some of the employees aren‟t Defendants, it is admissions of an agent during the course of employment. Q: Are they business records made by the Defendant, records made by the Defendant? A: Provided that they genuine, that they actually the diaries written by those employees that are alleged to have written them. The Defendant isn‟t admitting anything concerning those diaries, therefore plaintiff has to prove that they were written by the Defendant and that they are their diaries. Rule of authentication: Are these things really what they purport to be? e.g. is this the gun that was used to kill the victim. If so, prove the connection to the crime. If the relevance of a document depends upon its authorship, there has to be sufficient evidence that it really is the author‟s. This was a pretrial evidentiary ruling in connection with a summary judgment motion and not in front of a jury, and plaintiff did not admit that he wrote the diary. The plaintiff did not conduct any pretrial depositions of the employees in connection with the diaries. If we did have testimony by the authors it would be over. The plaintiff didn‟t do that. There is a question of fact here: - The jury decides the authenticity, but the judge has to decide upon admissibility. This is a case of conditional relevancy, but there are two types in FRE 104: Conditional Relevancy FRE 104: Two types 104(a): In general, preliminary questions of fact upon which the admissibility of evidence are decided by the judge. - A judge could rely on hearsay in deciding whether something is or is not admissible. e.g. you are trying to prove the unavailability of the witness so you come in with a letter from the guy saying that “I am unavailable for trial.” The judge may rely on that as the judge is not bound by the rules of evidence so he could rely upon that hearsay. 104(b) Q: The issue here in this case is whether the same fact finding rule applies with the authentication of documents. A: It is not the same. The answer here is that the judge must rely on admissible evidence. The judge here is saying that the ultimate evidence to support a finding means that there is a two step finding process. (The relevance of these diaries are relevancy conditioned on fact. The diaries aren‟t relevant until it can be determined that they actually are written by the Defendants.) magic words are “to support a finding.” FRE 901(a) Questions of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponents claim. J. Becker says that the finding requirement is that of the jury. evidence sufficient to support a finding - the magic language in the FRE that shows a 2 step required process: Is there enough evidence sufficient for a fact finder to make a determination of authenticity (fact finder in a jury trial is a jury trial) 104(b) - relevancy conditioned on fact. The relevance of these diaries is conditional on the fact that they were written by Evidence 2 Michael M. Wechsler 49 Michael M. Wechsler Evidence 2 50 the corporate officers. These diaries, however, are not relevant until the fact that authorship is established, which triggers a 2 step process. (1) The judge decides whether there is there enough evidence sufficient for a rational fact finder to make a determination of authenticity (authorship) (2) The judge in making this preliminary determination can only rely upon admissible evidence, not hearsay. The judge cannot rely upon hearsay or inadmissible evidence. If a jury can only rely on admissible evidence for the ultimate question of admissibility, then the judge can only use the reliable evidence as well. The judge may say that he will admit it into evidence even though he isn‟t sure that the employees wrote the diaries, but there is sufficient evidence that it may have been written by Defendants. Here the jury can take the evidence to the jury room and they are not found by the fact that the judge has allowed them into evidence that he found that there is enough to get the diaries into evidence. Rule: The ultimate question of genuineness or authenticity is for the jury to determine. - The jury doesn‟t retire as every document comes into evidence. It all comes in if it is sufficient to bring it in, and if the evidence has been contested as to authenticity, they evaluate the evidence at the end. NOTE: Issues of authentication is different from hearsay which is different from the best evidence rule. METHODS OF AUTHENTICATION OF DOCUMENTS - p. 202 A. Stipulations: The easiest ways to dispose of issues quickly. The lawyers know it isn‟t worth it to put the other side through the burden of contesting things. It will take forever and they know that it will be practically useless to protest. B. You can also get admission based upon pretrial discovery techniques. Rule: You have to establish authenticity when authenticity is disputed. (e.g. this is a contract, but is the contract - the other party says it never saw this) How do you establish authenticity? 1. Direct evidence of authenticity (e.g. by admission of the Defendant that he wrote that diary) - Someone saw the Defendant/author write the diary. - While the other side may contest the witness, the jury is the ultimate finder of authentication and decide whether they believe the witness, but the witness‟ testimony is sufficient to admit the diary into evidence. The witness is credible enough that a rational jury may choose to believe the witness. Ultimately the jury may accept or reject, but the diary is still in evidence because there was sufficient evidence that a rational fact finder could find authenticity. FRE 901(b) - Illustrations of how things can be authenticated - writings 901(b)(1). Testimony of a witness, by a person with knowledge that it is what it claimed to be. - e.g. author says it‟s his, someone else saw him write it. 901(b)(2) non expert opinion on handwriting - such as lay people who have become familiar with X‟s handwriting, our background knowledge can be used to look at the document in court and state whether you think in your opinion that it is the handwriting of X. Q: Where can you get that information - where is the competency of the witness? a. If you have seen X write his name in the past: stating that you have seen it once, is enough and sufficient, but may not be convincing but it could be sufficient. - husband sees wife‟s handwriting all the time in the books, checks, etc. as he is familiar with the writing. b. Business setting - memos sent from other officers: - you have never actually seen these other people write, but if you see memos purportedly written by John CEO, that is sufficient to state that it could be written by John, and the likelihood is that it was him. While this is not conclusive, it is probable that if this guy sends memos every week we are pretty sure that his handwriting isn‟t forged every week. The jury weighs it whether it is admissible. 901(b)(3) Comparison between a genuine sample and the disputed document - comparison by the trier of fact or by expert witnesses by specimens that have been authenticated. -we have a specimen, and we bring to the witness stand an expert in handwriting. The expert never saw John write, but he gets some paper that John definitely wrote the document and it is genuine, and he is asked whether in his expert opinion, as a comparison between the genuine sample and specimen and the document in question, and as to whether he believes them to be written by the same person. - No need for expert witness and jury can evaluate themselves - Note that the FRE says comparison by the trier of fact, not by an expert witness. If the plaintiff cannot afford an expert witness but only a sample of X‟s handwriting, he can Evidence 2 Michael M. Wechsler 50 Michael M. Wechsler Evidence 2 51 send the pieces to the jury and you don‟t need an expert to make a comparison. You never have had to need an expert to do this and this is a long standing idea. The jury can make the comparison for themselves. - plaintiff cannot put opinion of general layperson without knowledge to testify with non-expert opinion. - no value added of layperson. The jury can make the comparison by itself.- e.g. plaintiff can‟ t afford an expert, but he wants to impress the jury with a witness. plaintiff cannot just ask a passerby to testify in the court to say that he thinks that samples are the same and that it would add weight to his case. This isn‟t Gallup poll, and there is no value of a lay person taking the stand, with no expertise and no value to add, why does the jury need this guy when it could do just as good a job by itself. Rule: Only an expert opinion or jury can make sample analysis as per 901(b)(3). Who decides the authenticity of the specimen? NY: The judge alone decides the authenticity of a specimen. FRE: The jury decides the authenticity of a specimen (thus jury has 2 issues to decide as to whether the specimen is authentic, and if so, is the sample affirmatively the writer of the sample‟s.) 901(b)(4) - the appearance, contents, patterns, or other distinctive characteristics taken in conjunction with the circumstances. - As per Zenith, if we don‟t have direct evidence by someone that wrote it or someone who saw X write it, we can have circumstantial evidence. Examples of circumstantial evidence: There may be distinctive characteristics of the diary. - e.g. the usage of certain Japanese symbols in the diaries in Zenith, the source of the document - where did it come from? Did it come from the offices of Toshiba in the desk or from a garbage pail in the street? The place where the document is found is circumstantial evidence. - Contents - If the person was writing about something that only that person would know about and from the contents it seems apparent he would be the only one to know the facts contains within. e.g. Jones is the only one who could have known about the secret delivery written in the diary. - Solicited Reply Doctrine A says he made a contract with B, B disputes it. A testifies that he mailed a contract to B at such and such an adress. in the mail and got back in the mail a contract with B‟s signature. B says didn‟t happen, didn‟t get it. It is possible B is telling the truth that someone else got it and signed it. But the circumstances suggest that the person who signed it was the person at the address - that being B. Why would someone else sign it if it went to a different address? What is the motive? This is sufficient circumstantial evidence of authenticity. 901(b)(5) and 901(b)(6) deal with voice identification. e.g. drug transaction taped, X and Y on trial for drug conspiracy, their alleged voices on the tape. e.g. Obscene phone call. How do you prove that these obscene voice was X? The FRE says that you give an opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. e.g. You herd the voice of the obscene caller, and then watching the Donahue show and the person telling about the Church there is the guy - you recognize his voice. You can say that you heard this guys voice under other circumstances in connection with the unidentified alleged speaker. e.g. You are in your deli buying baloney and a guy says that he wants to buy a pound of turkey - you recognize his voice as the obscene phone call. Note: There is no time limit. You could even have heard the voice for the first time at trial while the person was on the witness stand. Circumstantial evidence not mentioned - e.g. you get a call from X discussing facts, never heard the voice before or since, but the authentication that it was X is like solicited reply doctrine, that the person was talking about something that only X would know about and no one else. 901(b)(6) Telephone conversations - when a call is placed to X - did you in fact reach X? Assuming you never heard X before or since the rule is below: Rule: You can authenticate that it was a call to X, the number assigned then at the time by the telephone company, and if it is a person, the circumstances were that the person answering was the person who was called. This is sufficient circumstantial evidence that you reached the party X. - Also, that if you reached a business, the person picking up the phone said “yeah, what do you want” and you say you want to cancel an order, this is sufficient circumstantial evidence - that the person picking up the phone at the number that the telephone company says was X company, we presume that you reached X company or their agent. Two part test of 901(b)(6) for telephone conversations 1) Check that the phone directory that the telephone number comports to X 2) Either self identification by a person that it is the business, or that it relates to business, that the business you did was conducted over the phone and in comport with that business. Evidence 2 Michael M. Wechsler 51 Michael M. Wechsler Evidence 2 52 901(b)(7) Public Records - public office If this is the sort of record that is usually filed in a public office, this is sufficient authentication that it came from the particular public office. It does not have to be a public document, just one that can be file din a public office. e.g. Let us say that we are trying to bring in the report of the weather bureau of 1993? Public office. e.g. a deed. This is a private document that gets filed in the county clerk‟s office. You can say that you brought in the deed from the county clerk‟s office, sufficient circumstantial evidence of its authenticity as there is a presumption that public officials will only file authentic documents. This allows public records like weather reports to be used just like private files such as tax returns which come from the IRS. If you get a diary from X‟s bedroom and you say that you know its his because it was there, although no signature. There isn‟t the same presumption of authenticity, but it is a circumstance going towards authentication, but not great. Rule: Assume NY rule is identical to the federal rule unless he says otherwise. 901(b)(8) Ancient document rule 1. document 20 years or older is ancient. This is because if it has been around 20 years any type of fraud would have been discovered by now. In addition, it is also difficult to find witnesses to dispute or authenticate the document after the passage of all that time. 2. - document is regular on its face, that there are no visible signs of alteration 3. - document is found in a place whether the document is naturally expected to be found. This makes it prima facie authentic. Common Law/NY Ancient Document Rule 1. - document 30 years or older was considered ancient 2. - document is regular on its face, that there are no visible signs of alteration 3. - document is found in a place whether the document is naturally expected to be found. This makes it prima facie authentic. FRE 803(16) - statements in a document that has been around 20 years or more. If it is a document where the authenticity has been established as per 901(b)(8), then this addresses the separate issue - the contents of the document - a nice transition. e.g a 35 year old diary states that X committed fraud. This is hearsay but admissible. NY Rule: Unsure - Only concerning property - Old cases seem to suggest that there is such a rule in NY if and only if it is a document concerning property, like a deed or mortgage. But the ancient document hearsay exception seem to limit it to land and dealings in property because people are usually most careful what they say in regard to their property, but not in regard to other things. They would expand the rule to the FRE definition. Self Authentication Wouldn‟t it be nice if when trying to prove a document‟s authenticity, you didn‟t have to bring in circumstantial evidence? You can do that even without stipulation by self authentication. Document that cam be self authenticated: (no extrinsic evidence needed) 1. Documents under seal e.g. a document claimed to be signed executive order by the mayor that contains his seal, we don‟t have to bring him in to testify. The seal makes the document self authenticating. Seals are tough to forge and nobody does it, and it is prima facie admissible without any extrinsic evidence that the seal is the Mayor‟s. 2. Public Records - need second document of someone with a seal What if the person who signed the document does not have a seal, just a signature “John Jones, procurement officer of NY.” It is a mere public record. 902(2) still allows it in as self authentication if you can obtain a second document that someone has that does have a seal, e.g. Rachel Roe Comptroller of NY who has a seal, if she certifies that John Jones is a procurement officer of the city of NY. You have a document that purports to bear the signature of any one that is a public officer - John Jones. If another public officer certifies under seal that the signer has the official capacity and the signature is genuine, that is sufficient and saves John Jones an Rachel Roe from having to come to court. - With a foreign document you need certain ribbons attached. 901(4) Certified Copies of Public Records - duplicates - Original records not required, only certified copies. No government agencies give out original records as they don‟t want these documents leaving government files --> 901(4) admits certifies copies. This is an exception to the best evidence rule. When it comes to public records, we don‟t require that public records come into court, but certified copies are fine. Evidence 2 Michael M. Wechsler 52 Michael M. Wechsler Evidence 2 53 e.g. Mike Jones certifies on the document that “I certify that this is a true copy of xxxxx.” - What is makes the certification genuine? 901(4) - If he certifies the document under seal, the certification is prima facie authentic. So you walk into court with a certified copy of a procurement order signed by Jones, and that Rachel Roe certifies that the document is his signature and that he is a procurement officer, he has capacity and it is authentic. - same rules in NY CPLR 4540. 901(5) - official publication e.g. you try to prove regulations of an office, the regulations of Department of motor vehicles. It is primae facie authentic. e.g. Libel case - you can walk in with a copy of the NY Times and it is a copy. The NY Times can‟t claim that the whole newspaper is a forgery in a bald faced denial - it must bring in some proof of a forgery. e.g. Trade inscription indicates origin - What if it is a label - you have a Jolly Green giant label which you peeled off the can. This is sufficient of a trade signature - you don‟t have to prove that it is the Jolly Green company. Commercial Paper - Self authentication on signature on a promissory note. 902(8) - Acknowledged document e.g. you come into court with a document with a notary public stating that all was done within compliance. You have entered into a written contract and you signed your name. In order to make that contract a knowledge document, you must go before a notary public and say this is my signature and he brings in identification, and the notary stamps it. The notary either knows the person personally or he asks to see his driver‟s license, and the notary stamps it saying: On (such a date), before me came John Jones known to me and known to be the person described in and who executed the foregoing document and did acknowledge that he executed same” signed Susan Smith, notary. This is NOT a statement under oath - it is just an acknowledgment. NOTE - this is NOT a statement under oath, and it does not have to be as it is merely an acknowledgment by the author that he is the author, and the notary public certifies the fact that he knows you and that he acknowledged that you signed this document. If you put this stuff at the bottom of the document, that makes the document a self authenticating document for purposes of presenting that in court as the signature of Jones and executed by Jones. The notary‟s signature makes it prima facie authentic. CPLR 4538. BEST EVIDENCE RULE - 215 e.g. plaintiff sues Defendant for breaching a contract, and states that on June 4, 1994 B agreed to do the following. Hearsay objection - this is not hearsay because it is a legally operative term and therefore not hearsay. Then the plaintiff said it was a written contract and a statement of contractual obligation is a legally operative term. Objection - B says that this is oral testimony of a written contract and the best evidence of the terms of the writing is the writing itself. A says he wrote out the terms of the contract before court. Objection - not the original writing. This also is not the original writing and that also is not good. BEST EVIDENCE RULE - THE ORIGINAL WRITING SHOULD BE USED UNLESS THE ORIGINAL IS UNAVAILABLE THROUGH NO FAULT OF THE PROPONENT. 215 - McCormick - In proving the terms of the writing where the terms are material the original writing must be produced unless it is shown to be unavailable to be unavailable for some reason other than the serious fault of the proponent. If you do have a good reasonably acceptable excuse for not having the original writing, then how do you prove the terms of the contract? e.g. your house burns down a week ago from being struck by lightning and the contract original was burned. You can still bring suit and you ca resort to secondary evidence. - If the best evidence rule is applicable and you can show excuse for not having the original, then you can resort to secondary evidence. You can use oral testimony based upon your memory, an unauthenticated copy lying around somewhere. Rationale the best evidence rule? Memory problems - we would rather see the writing that rely on someone‟s memory in regard to what was in the writing. - Memory can be falsified - fraud - Danger of alteration - why would we want the copy and not the original? - The words are central to the law - We are looking at words which are central to the law - they turn upon everything that we learn with contracts, the subtleties are important. - The best evidence rule is not limited to written contracts Seiler v. Lucasfilms - p. 212 Evidence 2 Michael M. Wechsler 53 Michael M. Wechsler Evidence 2 54 Seiler runs to the copyright office only in 1981 to copy his “Garthian Striders.” He doesn‟t have the original drawings only models he made subsequent to the movies. He used his memory to what his striders looked like in 1977, and said that George Lucas copied his striders in his 1980 film “Star Wars.” a. Are the original 1976-77 drawings of the Garthian Striders “writings” contained within the Best Evidence Rule? Yes. Seiler used his memory to reconstruct his models in the 1980s and he said , yep, they looked exactly like the imperial walkers and that Lucas stole his drawings. Definitonal Statute FRE 1001 Definition of Writings. “letters, words or numbers, or their equivalent, set down by typewriting, photographs, still, x-ray, videotapes, motion pictures, sound recordings, or other form of data...” (now it includes artwork after this case) - The statute doesn‟t say strokes of an artist‟s pen are a writing according to the statute and argues that it can‟t be just “words and numbers” - the rationale of the best evidence rule is to get original writings of what it looked like. The court says that the whole purpose of the statute is to prevent fraud, and it expands to the drawings and the best evidence rule is applicable by using the words “or their equivalent” which expands the meaning. The rule provides that Seiler should have to come forward with his original drawings. If the originals have been lost or destroyed through no fault of his own, then he can rely upon good faith to rely with secondary evidence. However, the court did not find that he had a good excuse for not having the original evidence. However, the court found in a preliminary hearing that Seiler cannot resort to secondary evidence because he destroyed his drawings based upon bad faith. Q: Who should decide whether he properly destroyed his drawings in good faith? A: The court holds that based upon 1008 Judge - Fact: The judge decides the fact question whether to admit the drawings as to whether there is a good excuse for having the original Jury - Weight: Once it is admitted, the jury can give it weight,. If the excuse is satisfied, as it was not in Seiler‟s case, and the proponent is allowed to bring in secondary evidence, then the jury decides what weight to give the secondary evidence. Seiler was trying to argue that per 1008(c) the jury gets to decide that issue, being whether other evidence of the contents accurately reflects the contents. Seiler never got to that point. What other sort of writings fall within the best evidence rules? a) you try to prove 2 people were married on a particular day and you saw it on a tombstone. b) you saw a license plate on a getaway car from a bank robbery c) what if you found a shirt in the Defendant‟s with the collar having the written name of the victim on it? Are those writings or are they chattels? Should the court demand that you bring in the shirt with the laundry markers, the tombstone itself with the writing? Do we need to bring this in on the best evidence Rule? Rule: We can take into account how important it is to the case and how difficult it is to bring it in? e.g. a tombstone is difficult. Courts HAVE discretion to decide that something is a writing or a chattel, and they can use factors to decide how important it is to the case. FRE 1002 - Requirement of Original: states the best evidence rule that to prove the content of a writing, the original writing or photograph is required, but when are you trying to prove the definitional terms of the writing? If the document has a legally operative effect in creating or destroying the rights and obligations of the parties, a legally operative document defining the relationship between the parties - then you are trying to prove the terms of a writing e.g a deed, written contract, a mortgage, notes, the law treats these all as being inherently written transactions. But what if a writing simply memorializes an event which in the eyes of the law has an independent existence? Meyers v. US - p. 219 Lamar perjured himself and Meyers allegedly suborned the perjury. Rogers & Wells law firm. Someone allegedly lied under oath in giving testimony before the senate and investigative committee. You have to prove what was said. Rogers took the stand and said that he was there and he heard what Lamar had said under testimony. We are trying to prove the words that were uttered. Defendant claims that there is no excuse for not producing the written transcript here because of the Best Evidence Rule. The court ruled however, that we are not trying to prove what the transcript contained, just what he said - that he gave false testimony under oath - perjury. Lamar could be a perjurer and lied under oath, and despite a court stenographer not being there, you committed perjury despite the fact that there was no one there to memorialize it. The event has independent legal significance regardless of the lack of any parallel writing and therefore the Best Evidence rule is NOT applicable. The event is legally operative. Evidence 2 Michael M. Wechsler 54 Michael M. Wechsler Evidence 2 55 RULE: Where a writing memorializes an independent event and it is a situation where the law does not treat the writing itself as being the legally operative document (the document that shows the perjury) then the proponent has an option to produce either testimony describing the event, or the writing. If you have the option it does not matter what order you present that evidence. Rogers could testify to what he heard and then put in the transcript - bottom line was Best Evidence Rule not applicable. An affidavit is a writing under oath, and if we try to prove the terms of that writing, then the best evidence rule is triggered. In the same example Rogers is testifying that he saw the government‟s affidavit and what it said. Since the affidavit is a false affidavit - it has no independent existence outside the document. In trying to prove the terms of that writing the Best Evidence Rule obviously applies. Meyers is FRE and NY Rule. When you are trying to prove testimony you could prove testimony by the person who heard it or by the stenographer‟s record - the transcript. You are better however, proving it through the transcript. (One Exception - Using former hearsay exception in criminal cases in NY you can only use transcript.) Other events that have independent significance Example p. 219 bottom: Someone trying to prove the earnings of a partnership. If someone says that the partnership records contain $33,000 profit. This doesn‟t be struck down as Best evidence Rule because the books weren‟t brought in. The partnership had those earnings regardless of the books are brought in or not. e.g. A says he paid B $10,000 he owed on 5/22/94. He doesn‟t have receipt. This isn‟t abolished by the best evidence rule. If he paid it, that event happened regardless of whether the other side gave him a receipt. It is merely a memorialization and not a legally operative document. The event of payment has an independent existence and can be proved independently and it is not subject to the best evidence rule. e.g. you want to prove you were born - you don‟t have to being in a birth certificate - that event took place. You don‟t need to come in with your marriage certificate or birth - these events happen regardless that there is no document to memorialize it. You can show great evidence, but the birth certificate is best to bring. e.g. what if I want to prove we got married or divorced on a certain date. Marriage - no writing required - For marriage, it occurred and you can prove it independently with the witnesses that were at the event Divorce - writing required - However, for divorce, you need a judicial decree, and that is a writing. A divorce does not exist by law unless you have a judicial signed writing. That is a written transaction, and is the document that destroys a legal relationship. A document that creates or destroys a legal relationship is subject to the best evidence rule. e.g. 1: Two cops listening in on a stakeout, they are also recording it. The cops want to testify on what was heard. Defendant objects that they must bring in the tape recording. They do NOT because they heard the event with their own ears. even though they memorialized it on a tape recording. RULE: Merely memorializing something does not make it into a legal transaction. The event has independent significance and the Best Evidence Rule does not apply. e.g. #2 Assume the DA wants to prove the drug deal by the means of the tape recording and the Prosecutor states that he has a tape recording, but all he has is a second hand copy. Does the best evidence rule apply? NO. This does not apply because there is too much room to fraudulently do something to the tape. Once a tactical decision is made to prove something through a writing like a tape recording, then the best Evidence Rule is triggered as you are trying to prove the terms of a writing. If this is an event that has an independent significance you don‟t have to prove it through the writing. But once you try to prove the independent event through the writing, e.g. prove the writing of the transcript of Lamar‟s testimony, prove the drug deal through tape, to prove the receipt of payment, then you would be trying to prove the matter through the writing and would need the original brought into court tactically. @@@@@@@@@@ If there is a reasonable excuse for not having the original we allow proof of secondary evidence - copies of the writing, oral testimony. What is the original document? FRE 1001(3) The original of a writing is the writing itself or any counterpart intended to have the same effect by the person writing it or issuing it. - A and B both sign copy one of the contract - you have 2 originals, each intended to have the same effect. Photographs - the original is a negative or any print thereof. Computer data - If anything readable by sight, it qualifies as an original. Evidence 2 Michael M. Wechsler 55 Michael M. Wechsler Carbon Copies Evidence 2 56 Federal Union Surety - p. 223 Materials in contractors suppliers, warehousemen, the original purchase order was signed and carbons were distributed. The court concluded that each one of them qualifies as an original, all produced by the same act as the original that was produced. The court decided to give each carbon duplicate the effect as if they were original. You don‟t have to bring in the inky top one, the carbon is the same weight as a matter of common sense. Photocopying Uniform Act for Photographic Copies p. 226 - If guy comes into court with a photocopy of an original of the contract in his office. Inadmissible, he must bring in the original. He can only bring it in if the copy was made by the business in the regular course of business - NOT for purposes of litigation. NY Statute 45.39: Adopts this uniform act “a photocopy made by a business in the regular course of business.” Rationale for the Best Evidence Rule - we want the original writings because we don‟t want to rely on people‟s memory, and this gets the evidence right in front of us. Additionally, there is a danger of fraud, but not usually in the regular course of business, it would be unlikely that there would be a serious fraud. However if there is a regularity in the course of business there is a probability that there has been no fraud. FRE 1001(4) Duplicates A counterpart produced by the same impression of the original or from the same matrix, or by means of photography, or electronic re-recording (dual cassette) or other equivalents that accurately duplicate the original.” FRE 1003 - Duplicates are admissible to the same extent as the original unless: 1. a genuine question is raised as to the authenticity of the original or in the circumstances it would be unfair to admit the duplicate. - primae facie if you walk into court with a photocopy you don‟t have to provide and excuse as to why you provided a photocopy. It is prima facie admissible. Nothing says it has to be made in the regular course of business. This is MUCH broader than the CPLR. It doesn‟t matter where the photocopy was made or under what circumstances. However, there is the ability to raise issues of authentication and the other side may be able to raise genuine questions of authenticity for unfairness. The unfairness issue could be that it was a 10,000 page contract and the proponent is only offering 10 pages. FRE 1005 - Certified copy of a public record Public record - any record which is authorized to be and is filed in a public office. If it is a certified copy offered in a courtroom it is admissible without violation of the Best Evidence Rule. - Presumption of reliability - the public office wouldn‟t file them unless they were reliable. - Records aren‟t taken out of public offices. What justifies this separate provision for public records? They are considered and presumed reliable as the public office wouldn‟t file them unless they were legitimate. Genuineness as well. it is also difficult to take public records out of the public offices, as there is too much danger they will be destroyed or wont be returned properly. FRE 1006: Voluminous writings, recordings or photographs which cannot be conveniently examined in court, may be presented in court in the form of a chart, summary or calculation. e.g. someone is being charges with embezzling $$$ from some government office or business and in order to prove the embezzlement that took place over 10 years, the FBI calls dozens of records on file and wants to prove the contents of those records in court. Should all those records be brought into the courtroom? A reasonable compromise may be to let the expert, accountant, FBI agent to summarize the documents and make the originals made available to both parties. - This happens often in tax cases. - Examination at reasonable time and place - judge has discretion to dispense with the requirements of producing the originals. - Includes voluminous recordings of days of tape recordings such as stake outs of organized crime. Within the same concept of voluminous writings. - All the forms and documents must be made available to the opponent. Evidence 2 Michael M. Wechsler 56 Michael M. Wechsler Evidence 2 57 Valid Excuses for not Producing Originals - FRE 1004(1) Davenport v. Ourisman-Mandell Chevrolet - p. 228 Facts: Damage from sale of an automobile. Davenport went to buy a car as new, and she claims that the car wasn‟t ruly new, but used as a demo by the dealership. She tried to prove this by showing that there are stickers done when you try to re-lubricate the engine. Mr. Davenport discovered this later and listed the car with certain mileage, and that this would tend to show that the car had indeed reached these mileages prior to the sale. Mr. Davenport used his memory as to what those numbers were. The Best Evidence Rule is raised as there is a writing, and you are trying to prove the terms of those writings, you are to bring in the original writing unless there is some excuse. There was no excuse given there why the original wasn‟t brought in, so the appellate court dismissed - you need some excuse if the writings weren‟t brought in. NOTE: As plaintiff you could say that the stickers either fell of while driving the car, that he couldn‟t peel them off and when he tried it ripped to shreds, trying to bring it in would destroy the writing itself, etc.. But if you come into court you need at least some type of excuse or else it is inadmissible. FRE 1004(1) If you can demonstrate that the originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. - Silas v. Lucas - Garthian Striders, the plaintiff said that he lost or destroyed them, but we did see there was bad faith in his destruction, therefore didn‟t have a valid excuse. - Loss claimed - proponent must show diligent efforts of trying to find it. Diligence requirement. - Destruction - must be in good faith. e.g. if your house burnt down. - Document destruction program - in the regular course o business in document “retention programs” then it is OK, so long as in program and in good faith. - e.g. If you have been served with a subpoena and you have a document destruction program the next day of all your stuff. You cant be destroy anything because you have been put on notice that the court needs to examine those documents. FRE 1004(2) Original not obtainable by any judicial process or procedure - Idea that the document is in the hands of the third party that is not within the jurisdiction of the court. Service can only be given within the state. You have to try to use whatever means that are available to you through the compulsory process, but if you did try and are still unable to produce it - e.g. the document is in a person‟s suitcase that is in Venezuela, there is no power even of any court there, then it is beyond your power to produce. - NOTE: A judge cannot require anything, e.g. a photo of the Davenport‟s signature - it is up to the party to bring in te evidence, and produce it, or have a good excuse. - When it comes o proof by secondary evidence, there are no degrees of secondary evidence. Once you have laid the foundation for an excuse, you may prove the contents of your writing by any method, such as memory, copy, photograph. There is no secondary best evidence rule. Once you are there the law is not concerned with best secondary evidence, and the judge has it within his discretion - as advocate you would want to use the most persuasive secondary evidence. While a photo is more persuasive than memory with what was on that sticker, but it doesn‟t have to be brought in. You can claim you don‟t have a camera. FRE 1004(3) Notice to Produce Exception: When the evidence is in the possession of your adversary, and you put him on notice that the document relevant to the case and you have notified your adversary to bring the original or else you will use secondary evidence. You must put him on notice and tell him that if he doesn‟t show up with the original document you are then free to prove the contents of the documents by secondary evidence. There are two obvious shortcomings: (1) This only works when the documents are in the possession of the adversary, - you can‟t use this device if the evidence is in the custody of a third party, e.g. telephone records - you must issue a subpoena. (2) Even if it is in the possession of the adverse party, you have to have secondary evidence to show that the evidence exists or else it would be useless. e.g. no one on your side remembers what was on the contract. If you don‟t have secondary evidence to support someone‟s partial recollection you have nothing. Lawyers stipulate to admissibility of certain documents. FRE 1004(4) The original is not required and secondary evidence is permitted if the writing recording or photograph is not related to a controlling issue - if it is a collateral issue to the material issue. - The court decides whether something is collateral and dispense with the Best Evidence Rule, even when you are trying to prove the terms of the document. Evidence 2 Michael M. Wechsler 57 Michael M. Wechsler Evidence 2 58 e.g. a bigamy case and claim that Mr. smith married to 2 people at the same time. His defense is that he got a divorce from wife 1. The proper objection to getting a divorce from wife one, the best evidence rule is a good objection, because you are trying to prove the contents of a document. A divorce is a legal written event, and that requires the best evidence rule. e.g. #2: what if he is on trial for auto vehicle accident? He said he drove safely , only drove 30 MPH, he stopped at the stop sign. Question as to whether anyone was in the car with him, and he says yes- his wife. He wants a missing witness charge as there should be an adverse inference because she was expected to appear before the court to testify in favor of him. But he claims that they got a divorce since then - but here, he doesn‟t need the actual divorce document itself because the matter could be deemed collateral to the main issue as to what he did, and the judge can dispense with the requirements of the Best Evidence Rule and allow secondary testimony. Common Law Rule: A lay person was normally not allowed at common law to make an opinion. We want the jury to draw inferences from the facts and make conclusions - to draw inferences from the facts. Lay persons can testify to facts only, not opinions. If they did, it would be invading the province of the jury and would be improper, superfluous and redundant. Garver - 359 Garver found guilty of murder and Defendant pleaded insanity. Objection to the mother‟s statement that he was “in such terrible shape.” The Defendant lived with her for a long time. Any time she tried to say something that may have been her opinion, the judge struck it from the record after the plaintiff objected. What is she supposed to do? What would have been a permissible fact that she could talk about. A lay witness is not supposed to testify in the form of an opinion. It was up to the jury to decide whether the son was in terrible shape, that he had lost a terrible amount of weight, and if such, whether he was insane. Q: Where do you draw the line between a fact and an opinion? Here the witness had no idea what was expected of her and she couldn‟t phrase it properly. She was a lay person. REVERSED: Where a lay person has firsthand knowledge based upon observations of the person, they allow in personal injury cases and where physical condition is at issue the testimony can be given in the form of an opinion. - The court recognized that these are statements of opinion but it is OK here because you can cross examine her. The other side‟s cross examination would cure the problem by helping the jury understand what the impressions that the lay person based her knowledge and opinion on. The jury will understand what is going on. the jury knows that this is a common sense approach to the matter and is the best evidence that the plaintiff has to offer. sometimes we are going to let a witness testify as to what seems an opinion when there is nothing better that can be offered. Necessity exception: Sometimes we allow an opinion because of a necessity as nothing else can do: e.g. there is a red liquid that is on the floor. what did it look like to you? It looked like blood. It looked like red paint. These would normally be objected to as it is an opinion, but what else are we going to use? The witness isn‟t a biochemist, and the law allows it as kind of a shorthand to sum up what is otherwise impossible to describe another way. It looked like that, and we will allow it out of necessity. Modern Rule - witness will be allowed to testify only as to facts, not to opinion, unless there is necessity. NY Rule: Preference for specifics - the more concrete the description the more willing we are gong to accept the witness to testify, and if too general it will not be allowed. - The opinion is necessitated by the circumstances - allows witnesses to testify as to color, approximate height, weight, speed of an auto, all these things based upon a human experience as such. He could even get a bit more specific if he drives often - e.g. 50-60 MPH. Motorcycles are not common knowledge, so it would be out of the realm as a general matter, but cars are normal. You can give a gestalt opinion that someone was going slow if you don‟t drive much. - intoxication opinion disallowed- You cannot attest that someone was intoxicated - There NO necessity to say you think someone was drunk, as you can describe his behavior otherwise sufficiently? Staggered, slurred speech, bloodshot eyes. Common sense is that the jury can infer that the person was intoxicated by the surrounding circumstances. - Sobriety allowed- but nevertheless, we DO allow the statement that in the witnesses opinion, the person was sober or that he was an intoxicated. This is more indicative of an acceptance of an opinion. - Appearance of Love disallowed - John and Mary appeared to be in love - NY CA objects to that!!! But all else is fine, John was happy, sad, morose, they were caressing each other, etc. - No opinion of other’s intent - Having a witness opine over what someone else said what someone‟s intent was is an ultimate issue and we don‟t want people choosing sides and sending barrage of witnesses. - Person may testify to opinion of his own intent - self serving, but who else knows about his intent but himself. Evidence 2 Michael M. Wechsler 58 Michael M. Wechsler Evidence 2 59 - Opinion of another’s handwriting - admissible to say that it is your opinion in your experience that this was his handwriting. so is voice on telephone - based upon prior first hand knowledge. FRE 701 - The witness is not testifying as an expert, if in the form of an opinion, we will allow a layperson to testify in the form of an opinion under 2 conditions: 1. rationally based upon the perception of the witness (firsthand knowledge) 2. helpful to a clear understanding of the witness’ testimony or of a fact in issue - This leaves great discretion e.g. Mrs. Mitchell - Here she was talking about her own son that she had been with for years - firsthand knowledge. She therefore passes step one. The fact that her son was a wreck - it is helpful to get across the person‟s understanding the way a person normally would. It was helpful for the jury to understand her perception. Let the person speak as he or she naturally would. - This leaves a great deal of discretion in the judge as to whether the prerequisites are satisfied. - There is no test of necessity in the FRE, only helpfulness. Robinson - p.361 Issue - whether bank robber #3 is Mr. Robinson. There was a video surveillance of a bank robbery in progress. The first 2 are unquestionably identifiable. The issue is whether the third was Robinson. You are going to blow up the picture and try to have the jury compare them side by side and draw the conclusion that they are the same man. This is admissible. Let us say you bring in 3 former friends of Robinson and you have them testify that they are familiar with Robinson, and that they saw the picture before and without any pushing they said it looked like Robinson. Properly Objectionable - It is not helpful to the jury. We don't need a lay witness as the jury can draw the conclusion themselves. FRE - HELPFULNESS TO THE JURY IS THE THRESHOLD FOR ADMISSIBILITY BEYOND PERSONAL KNOWLEDGE However, here the correctional officer was willing to testify that the picture was that of Turner, not Robinson. Turner is not going to be in the courtroom because he is a fugitive and isn‟t available. In FRE 701 this is not an expert opinion but a layperson, he must give an opinion that is helpful to the jury for a clearer understanding of the facts or to determine a fact in issue as to whether the picture is of someone else. FRE - HELPFULNESS TO THE JURY IS THE THRESHOLD FOR ADMISSIBILITY BEYOND PERSONAL KNOWLEDGE: 1. Personal knowledge 2. Helpful NY Proposed Code (not adopted) - Does not adopt the FRE per se and makes it a three part test: Limited to opinions that are: 1. difficult to describe in more concrete terms 2. rationally based on the perception of the witness 3. helpful to understand the testimony or determine a fact in issue. Rationale of FRE 701: Helpfulness requirement because of difficulty of lay people being able to express themselves. It says to let the adversary system work these things out. - Hypo: Where would testimony from the bank robber‟s friends that would be admissible beyond merely making a comparison? If Defendant changed his appearance since the time of the bank robbery and the present, e.g. beard, scraggly hair, etc.. Then it would be very helpful from his friends what he looked like at the time of the bank robbery. EXPERT TESTIMONY We allow expert to give opinions because he is not really invading the province of the jury because there are areas where the jury isn‟t competent to make these decisions. - How many jurors went to medical school as to know what is generally accepted medical standards in the profession? You need an expert to describe what those standards are in medical school, and there is a question in opinion as to whether a medical professional‟s actions were within it. The jury uses the expert to form their opinion. Evidence 2 Michael M. Wechsler 59 Michael M. Wechsler Evidence 2 60 Do we let an expert testify where there is no need for it, but where it would help an adversary‟s case? Common Law: NYCA - NO, the use of experts should be discouraged and used only in cases of necessity, where the jury is unable to draw valid conclusions about te facts placed in front of them. e.g. a liquid in front of the witnesses, and they can‟t tell whether the liquid is toxic or not, but need an expert to do so. This is a case where an expert will qualify. Issues when an expert is taking the stand 1. Qualifications of an expert 2. what is a proper subject matter for expert testimony 3. What is a proper form for the expert’s testimony 4. What is a proper basis for the expert’s opinion 5. How can you impeach the testimony of an expert 1. Is the expert qualified to give an opinion on the matter? - ask the expert to recite his or her credentials. - don‟t need a college degree, as you could be in plumbing for 30 years and be an expert. - education or experience is adequate - education but no experience is fine. e.g. an engineer can give the components of an elevator even though he never built an elevator. - Plain MD may give testimony on specialty areas: If it is brain surgery, is an MD qualified or do you need a brain surgeon? A regular MD can be qualified as he knows a lot more than laymen, although it definitely will affect the weight of the evidence. Standard of whether someone is qualified as an expert: - Whether there is a sufficient fit between the expert’s qualifications and the particular scientific or technical matter at issue. - within the discretion of the judge, - a “reasonably close” relationship should suffice - shortcomings go to the weight of the testimony. Expert qualification requirements by jury: Although it is the judge making the decisions, it is done in the presence of the jury. The jury should hear the qualifications so it should know the weight to give to the opinions later on. The other side can stipulate that the expert witness is such qualified. You may want the jury to hear all the qualifications, so you may not want to have the other party stipulate, but you want the jury to hear the qualification. As a tactical matter, never accept a stipulation. As a legal matter, you aren‟t required to accept such a stipulation. Standard for Admissibility of Expert Testimony Common Law - only if it is necessary for a jury to understand the data. FRE 702: helpfulness standard : If scientific or other technical specialized matter will assist the jury - their knowledge, education, etc.. Same standard as laypersons. While the jury could reach the conclusions on their own, the expert testimony will help sharpen their analysis. Een - p. 369 Auto accident. Cop - Sheriff with 17 years of experience reconstructing accidents arrives on the scene and finds two cars over on the left side, the skid marks, degrees, etc.. He didn‟t see the accident. He was asked to give an opinoin as to where the cars crashed. He says on the left side of the road in his opinoin which helps the Defendant - He is an accident reconstruction expert. While the jury could have drawn the inferences on their own, it is very helpful to the jurors as to how the specialist saw the reconstruction. -> Instruction of the jury “they are not bound by the opinons of the expert, but the testimony of an expert witness is purely advisory and give such weight as proper under the circumstances.” Test of jury assistance in Federal court. Alexander - p. 148 - Where the main issue is only one point (photography) there will be more leeway given to the judges discretion. Defense is mistaken identity. No evidence at all linking Defendant to the robbery except for the surveillance photographs. The court allowed the government to let three bank employees at the time of the robbery make the identification. Not only employees, but the government also was allowed to present 4 acquaintances state that they believed the Defendant to be the man in the photos. It is now a swearing contest. But Defendant brings in his own experts: Evidence 2 Michael M. Wechsler 60 Michael M. Wechsler Evidence 2 61 One guy was a head expert, the other one was one expert to show photos can distort and from that angle taken it is a completely different person. The trial court didn‟t allow it in stating that the jury could draw their own inferences and the Defendant has enough. There is no reason to have to see 10 dimensions of the same photograph. The appellate court reverses and states that the testimony of the Defendants expert witnesses should be admissible here, although this is not the case in every case, because: i. not any other evidence for the conviction - the identification was so crucial to the case. ii. The court said that it wasn‟t necessary, but it is helpful for a clear understanding. THEREFORE it is NOT a case of necessity, but of helpfulness in the situation. This should not mean that in every case of a surveillance camera means that you should bring in such witnesses all the time, but here the situation was most pressing. The appellate court here felt that the judge was said to have imposed a superficial requirement for necessity, and usually we acquiesce to the discretion of the lower court judge. But here it was so important for the Defendant to have the testimony and the helpfulness factor was most important. US v. Dorsey 45 F.3d 809 - refused to allow a Defendant to bring in expert in photography of photography, and distinguished Alexander as being a case of necessity as exclusive evidence that is based upon photography. @@@@@@@@@@@ EXPERT TESTIMONY FRE/NY/Modern Rule: Experts are permitted to express their opinion in their area of expertise if, according to FRE 702 there is some specialized knowledge will assist the trier of fact to understand the evidence or determine the fact in issue. Common law: Restricted expert testimony to areas of necessity for the testimony to help the trier of the fact understand something. Whether something is helpful to a jury in a particular case is a discretionary decision by the judge. - Criminal prosecutions in determining modus operandi there is a lot of jargon used by street dealers and the typical jury may not have as much awareness of what that jargon consists of or how street deals operates - who is the signaler, who handles the money, drugs, etc.. This is quite an operation that many people don‟t know and the expert testimony helps. - Rape cases usually the Defendant tries to cast doubt on the victim that a rape didn‟t happen because the victim didn‟t report the rape immediately. The prosecution could elicit the testimony of the psychologist to illustrate the Rape Trauma Syndrome. The person is said to be so traumatized by the event that they suppress it, they try not to deal with it early on, they are so ashamed they can‟t face people, etc. and most courts allow the evidence since it has a good foundation in psychology. - The Rape Trauma Syndrome can only be offered as explanatory of the victim‟s conduct, but not as indicating the fact that the rape actually happened. It is just explanatory of the victim‟s conduct for that specific purpose. - Hypo: Bank robbery occurs and a bystander who came in off the street catches a glimpse of the bank robber as he flees from the bank and this person provides eyewitness testimony at the trial and he describes the perpetrator as 6'3" male, Caucasian, star on his face, with a gun, etc.. The Defendant wishes to introduce the testimony of a psychologist who has conducted numerous studies of testimony under stress and the psychologist wants to testify that people under stress in such a situation aren‟t really that good in identifying people in those situations. -> The prosecutor cane successfully object because the expert testimony is not helpful as the jury is perfectly capable of evaluating this under their own - it is cumulative. The jury can figure out that people under stress may not be as aware as not under stress and don‟t need a PhD to by adding a whole lot of mumbo jumbo to bury this. You can establish the weaknesses of identification of eyewitnesses by vigorous cross exam, in closing arguments, and the judge may even give instructions as to consideration. - Rule: The judge decides whether or not the use of an expert witness is helpful to the trier of fact. Depends upon the circumstances. - Cross racial identification: Most courts exclude such evidence: Specific type of problem: Psychologist may under certain circumstances testify that people of certain races have increased difficulty in making identifications of people of other races with some significance more than is regular. However, there is always the danger that such testimony will be within FRE 403 and a waste of time, unhelpful, prejudicial. - NY never admitted this and excluded several times and that the trial court did not abuse its discretion to exclude it in those particular cases. Hard Science - Chemical Analysis, issues of causation e.g. Did the use of Agent Orange cause cancer in service persons who were exposed to it in Vietnam. We need scientific evidence. Daubert Evidence 2 Michael M. Wechsler 61 Michael M. Wechsler Evidence 2 62 Parents of children sued Defendant drug manufacturers for drug which they claimed caused birth defects - Bendectin. It was a prescription drug that was used for anti-nausea to cure morning sickness. The children born from mothers who used this were born with birth defects. They sued the makers of Bendectin alleging that Bendectin was the cause of the defects. They claimed that the drug was negligently tested and caused the defects in the children. Issue: Has there been sufficient evidence linking Bendectin to the birth defects in the children? - toxic tort causation. Defendant moves for summary judgment that there is no study by experts or scientific study that shows birth defects with Bendectin. 30 published studies on over 130,000 patients by eminent scientists found no linkage between Bendectin and birth defects. Affidavits for this - and the Defendant claim that as a matter of law Bendectin does not cause birth defects. plaintiff got this case into trial by introducing evidence that experts by the plaintiff tested animals, an analysis of the chemical structure of Bendectin in labs, as well as a re-analysis of the studies that had been done on the human population. Aside from the re-analysis they did not do any tests on humans and there had never been published studies to the scientific community at large. (Published studies were done on humans - epidemiological studies same kind of studies of Agent Orange studies.) Admissibility for Scientific Evidence Frye Standard: Whether the scientific principles, methods or conclusions have gained general acceptance within the scientific community of which that evidence happens to be a part. (1920 device at issue was primitive lie detector test, attempt to show he passed it and told the truth. Judge said he didn‟t know science and that he could only rely upon the generally accepted methods of the scientific community. This is directly the same as our standard for relevance.) How does one determine whether something is generally accepted with in the scientific communities? Looking at the studies, the names, definitely use of expert testimony to explain, as well as authoritative literature such as the AMA, and usually there is a Frye hearing out of the presence of the jury to decide the threshold question of admissibility, which turns on generally accepted standard within the community. Lower court dismissed because the Defendant‟s evidence was generally accepted and the plaintiff only tested some animals. Held: Reversed - the FRE has superseded the Frye test - Under the FRE there is a very liberal standard of relevance. - They looked at FRE 702 where standard for admissibility of expert testimony scientific in nature is if the scientific, technical or other specialized knowledge that will assist the trier of fact. It does NOT say that the standard of admissible evidence of the expert testimony does not even state anything about it having to be generally accepted. Therefore the court said that the Frye standard does not apply. - USSC also adds that in order to be scientific knowledge, the principles or methodology should be based upon the scientific method. The scientific knowledge does not have to be indisputable, only that it is testing which can or cannot be evaluated. We have a hypothesis, we test the data, and then reach a conclusion based upon the results. In order to qualify, the conclusions have to be not necessarily incredibly sound, just “valid reasoning and valid methodology.” Factors include: - is it something that can be tested, and has been tested? This gives reliability of the knowledge. - Has it been published and subject to peer review? This is part of the scientific method where it is put out into the marketplace of ideas, there is criticism, they defend it, intellectual progression. - rate of errors - polygraph (lots of errors in this process?) - whether or not there is general acceptance within the scientific community. (the Frye test is no longer the determinative factor, only the relevant factor. This does still have a bearing on the admissibility of the evidence.) The trial judge is supposed to do this before trial in Daubert hearings. Under Frye it is really the scientific experts that decide - the court defers to the scientific community as to whether the scientific evidence is admissible. - But in Daubert it is the judge that makes the decision for admissibility. The judge is the “gatekeeper” of the evidence of scientific evidence. - If all the evidence passes those factors, there is still a balance with FRE 403, and we decide whether there is a danger that the jury will give the studies too much weight? The court must decide whether or not there is a real fit between the scientific evidence/results and the case? Is there a good relevance connection between animal studies and the effects on humans? these are all balancing factors. - VIP: Always threshold question as to whether the scientific evidence will assist the trier of fact. Remanded and Held: same result as the experts all wanted to testify as to all their in the closet analysis. NOTE: The plaintiff‟s experts to conduct the study were all hired guns for the purposes of the litigation. This was a major factor. The list in Daubert is not all inclusive and you can add factors. Rule: Judge takes into account objectivity of the study: For what purpose and circumstances the scientific study was conducted. Was there a litigation bias? Polygraphs have never been admissible in N.Y. as it is too subjective reading by examiners, the questions they ask, mixed results, too many errors. Evidence 2 Michael M. Wechsler 62 Michael M. Wechsler Evidence 2 63 NY Rule Standard of admissibility: Frye Standard:- Daubert had no influence on the NYCA. - DNA generally admissible in NY subject to the Frye standard. - NY laser gun to register speed is generally accepted. Rule 702 deals with scientific or other specialty knowledge: How far does it go? - accounting principles subject to this? We are unsure and there is little decisions on this new law. Form of Expert Testimony - what can an expert rely upon in giving expert testimony - Expert is schooled and has training. - Expert has firsthand knowledge himself Applicability of Facts of the case to the opinion (1) Firsthand knowledge: e.g. personal injury case and a doctor treats plaintiff for broken bones, he can testimony that the findings are what he examined firsthand, and he discloses this to the jury and gives his opinion. (2) Opinion without firsthand knowledge: If the expert gives the opinion without firsthand knowledge, the expert is only allowed (a) on what data to rely upon, and (b) how he is made aware of that data in the following: Early Common Law: “The hypothetical question”: The expert who lacks firsthand knowledge is asked to assume by the person who is doing the questioning in court the following facts, and then the expert (e.g. doctor) should give an opinion if he is able on the hypothetical facts given. The expert is asked to give the whether he is capable of giving an opinion within a reasonable degree of confidence and probability in his professional opinion. Of course he says yes and then gives the opinion on the diagnosis of the hypothetical. Actually this isn‟t really hypothetical because the assumed facts come from the case itself. The assumed facts would have to be in the record as per the traditional rule. The evidence may not yet be believed by the jury, this is just the assumed facts. (I) The jury must see whether they believe the assumed facts happened and exist. (ii) The jury must see whether they believe that the expert gave a reasonable, honest and accurate opinion. (iii) The judge gives an instruction to the jury that if you don‟t accept the facts that were given actually happened, then you should disregard the opinion of the expert as the facts did not exist. If the facts are not in the record before or later, you make a motion to strike the expert‟s opinion from the record, as ultimately the opinion was not based upon facts in evidence. It was based upon facts not in evidence. Rebotta - 432 *** Facts - Common law Wisconsin Rule: Hypothetical question of common law not required - counsel‟s option whether to use it. - Judge retains discretion whether or not hypothetical is required if it will assist the progress of the trial They just put the accident reconstruction expert on the stand as to how the impact occurred and the position of the cars. But the objecting party objects that there wasn‟t a proper foundation, as you have to give the expert all the assumed facts in a hypothetical. However, the court rejects this and states that you don‟t have to give the hypothetical. The Defendant used the classical hypothetical example. What if the expert spouts out an opinion that Bendectin causes birth defects? The judge still retains discretion FRE 705: Eliminates the need of the hypothetical question. - The court may require that they need to hear the facts and require it if it helps the jury understand. - The expert can be required on cross to reveal the basis of his or her opinion. If on cross it is determined that the expert has relied upon facts not in evidence or later excluded from evidence, upon motion the expert‟s opinion is stricken on the record. However, it can backfire against the adversary ******* get INFO **** Rule 705 **** Two Perspectives: (A) What is the proper basis of an expert‟s opinion? (1) Evidence in the record, OR (accident reconstruction expert he bases his opinion on witnesses, photos, police reports, etc..) (2) Firsthand knowledge (Dr. who treats patient) (B) How do we make sure that the expert is relying upon a proper basis for his testimony? Evidence 2 Michael M. Wechsler 63 Michael M. Wechsler Evidence 2 64 - Hypothetical question: Recitation to the expert of the evidence in the record that we want him to rely upon in rendering his opinion. (Dr. I want you to assume facts A,B,C,D and these are ultimately in the record. He can base his opinion on these facts assuming all of them are supported by evidence in the record. The hypothetical question is used as a foundation) - FRE 705 - we don‟t have to recite the hypothetical question to the expert. However, the facts that the expert bases his opinion on must be admitted in the record of Evidence in the record or firsthand knowledge. - There is no requirement of the hypothetical and the opponent can poke a whole in the facts supporting the conclusion. - It is up to the judge‟s discretion whether to use the hypothetical question. Traditional rule is that it may be only admissible evidence in the record or firsthand knowledge. McClellan p. 437 accident, plaintiff claims that the Defendant‟s negligence was the proximate cause of injury of a minor ache in her left elbow, then had problem with the hand. There was a car accident where Defendant crossed the center line. plaintiff didn‟t think her injuries were serious, headaches, scratch on elbow, bruised knee. However, the fingers were tingling and Dr. diagnosed that problem of the nerve in her elbow. She had surgery, and while the Dr. was looking in her elbow during surgery, the doctor realized that had there been a causal connection to the accident there would have been scar tissue as the result of an impact. However, he saw no scar tissue, thus it was probably not caused by the past accident. plaintiff calls her own doctor and he states that he found no scar tissue in her elbow and his opinion is that the elbow accident was not caused by the car accident. - This is not physician - patient privilege. The privilege was waived impliedly when you sue in personal injury. All communication with your doctor is in issue and cannot be a privilege once the plaintiff sues. The doctor states his opinion based upon his conversation with a neurosurgeon. When he gave his opinion the doctor stated that he based it upon his conducting the surgery and his firsthand knowledge and his discussion with a neurosurgeon. Isn‟t there a requirement that the doctor can only base his opinion on the evidence in the record and firsthand knowledge? How can Dr. Griffin then rely on the neurosurgeon‟s statement which is not in the record. However, when one experts in the field generally rely upon such data on conferring with other experts, then it is not inadmissible for the expert on the stand to base his opinion in part upon such out of court data. Held: As per ME CL the actual telephone conversation was inadmissible, but the Dr.‟s opinion, based in part on the discussion with another neurosurgeon is admissible without revealing the contents. FRE 703: The facts or data in the case that an expert bases his opinion on may be those of: 1. firsthand knowledge, or 2. evidence in the record that is made known to him, or 3. One of the above combined with if of a type reasonably relied upon by experts in the particular field in forming opinions, even upon data not admissible in evidence. Dr.s in the field generally rely upon reports of other doctors in the field - they make life and death decisions on what we call in court hearsay and technically not admissible. Rationale: If it is good enough to be used in the real world for life and death decisions, it is good enough for an expert to give his opinion when it is based in part on such out of court data, Provided, that the data is of the type reasonably relied upon by experts in the field. - Judge decides whether the data is of the type reasonably relied upon in the field. He can rely upon witness or have a hearing. The judge can decide whether it is reliable to rely upon. Remember Daubert. What if the expert you are calling to the witness stand has no firsthand knowledge, there are no facts in the record to support his opinion, and he has simply read the report of Dr. Jones, not in evidence. You just hire someone to come into court to be a mouthpiece for Dr. Jones. Here you are cheating and using someone else to be a conduit for someone else‟s opinion. The most we will allow is for an expert to rely in part upon an expert‟s opinion. We know here that Dr. Griffin performed the surgery and he relied upon conversation with the neurosurgeon. Can the expert state on the stand go one step farther and state that he found no scar tissue, and he called Dr. Jones who told me that if you don‟t find scar tissue there was no trauma to the area? These are not the facts in the XXX case, as here the Dr. did more than the fact that he revealed on someone else‟s knowledge, he effectively puts the other Dr. on the witness stand. While the expert can rely upon out of court data, how much may be properly exposed to the jury? Can he say that he relied upon the expert to say that he relied upon the opinion of Dr. Jones, and Dr. Jones said “X,Y,Z.” This is hearsay. If we let it in the hearsay rule is obliterated. Dr. Jones is not on the stand. Q: How much can be admitted? Majority FRE: The most the expert can reveal is the fact that part of his opinion was based somebody else or other reports, but we will not allow the contents of those reports to be disclosed to the jury, at least not by the proponent of the evidence. Serious danger of prejudice that the jury will give the inadmissible evidence too much weight. - The opponent can do her homework and the opponent can bring out the contents of this report which would be ordinarily inadmissible. Evidence 2 Michael M. Wechsler 64 Michael M. Wechsler Evidence 2 65 RULE: An expert today may rely on 3 things in giving an opinion: 1. Evidence in the record 2. Firsthand knowledge 3. Data outside the record if it is of a type reasonably relied upon by experts in the field, judge’s discretion of reasonably relied upon by the experts, the contents of that out of court data may not be revealed, only the fact that the expert relied upon those records and what those records were. FRE 704: Opinion on Ultimate Issue FRE 704(a) testimony in the form of an opinion is not objectionable because it embraces an ultimate issue CL: We don‟t allow a layman or expert to give an opinion on the ultimate issue in the case. - No one know what this means, just that we don‟t want an expert to say that he saw all the facts and his opinion the guy was speeding and he is guilty. These are the ultimate questions that the jury is supposed to decide - did the Defendant pull the trigger with the intent to kill, was he speeding - this is invades the province of the jury. When a layman takes the stand and says that in a case where everything turns upon the authenticity of a particular document e.g. I was John Jones‟ secretary for 20 years and I saw his handwriting every day, and in my opinion this memo is the handwriting of my boss, John Jones. This is the ultimate issue. The FRE thus abolished the objection that something goes to the ultimate issue. However, this rule will still not let in a criminal case a cop take the stand and say that he saw the Defendant and it looked like he was speeding, or a civil case a witness who says he saw the Defendant drive and he was driving negligently, or the expert stating the he looked at the facts and in his opinion concludes the Defendant was driving over the divider negligently. This is because the testimony must be helpful to the jury, it is just conclusory and just choosing up sides. Handwriting analysis by secretary is helpful to the jury so that is admissible. Objection to FRE 704: That the testimony is not helpful to the jury. Hypo: case involving discrimination against Asian Americans and in this shop where they have been applying for jobs, there has been none that have ever been hired even with sterling credentials. A statistician takes the stand and states that in his opinion this employer discriminated against Asian Americans. Objection? It is not helpful to a jury when the expert or a layperson testifies in legal jargon. The jury never went to law school so they don‟t know what it is. - “What does it mean to have or not have capacity to make a will?” There is an entire law school course on this. It is a legal standard Advisory committee notes (p. 117)Testimony shall be excluded if it is phrased in terms of inadequately explored legal criteria. e.g. If a witness testifies that his employer engaged in unlawful discrimination against Blacks, e.g. Did T have capacity to make a will? Excluded because it is legal jargon. e.g. 2: Did T have sufficient mental capacity to know the nature and extent of his property and the natural object of his bounty and to formulate a rational scheme of distribution. This is the explanation of what capacity means. This is merely a definition. We wont allow the expert to say that in his opinion the maker of the will didn‟t have the “capacity.” Rule of Analysis: Thus your proper objection is not that it goes to the ultimate issue of whether capacity was present. You make the objection that the testimony is not helpful to the jury as it is legal jargon. Insanity: Common Law: State v. Garber: It allows lay people to give their opinion on sanity as in that case where the mother gave her opinion. If the question is about a person‟s acts and regular activities you don‟t need to require an expert opinion as to their ability. NY Rule: Lay people generally are not allowed to give an opinion that the person is insane. They can only do so indirectly by describing the acts of the person. e.g. I observed X jumping over the turnstile in the subway back and forth, and in my opinion those were irrational actions. BUT you can‟t say that you thought that X was irrational. Only question is “were those acts that you saw irrational acts.” - exception: The subscribing witness to the will. When you go before a lawyer and 2 witnesses, you say you are of sound mind and body. The challenger to the will says the testator was insane. The witnesses can give a direct opinion that they never thought he was insane, a rational, etc. and that he was not insane in their opinion - pure opinion. Ultimate Issues of Sanity FRE 704(b) - Ultimate issues of sanity Hinckley shot the president and pleaded insanity - he claimed that he was insane and therefore he didn‟t have the capacity for the intent for murder. There was a battle of the experts and it went on forever. Therefore the Congress adopted that in a criminal case, in regard to the mental state of the J, the expert cannot give a direct opinion as to whether the Defendant had the requisite intent to commit the crime. He may discuss the symptoms, that the Defendant couldn‟t distinguish between an elephant and a car, that is OK. However, you can‟t have the expert connect his medical findings to the doing of the particular Evidence 2 Michael M. Wechsler 65 Michael M. Wechsler Evidence 2 66 act in question - he must stop just short of that. Only the jury is allowed to connect the mental state to the doing of the act in question. - Expert cannot say that Patty Hearst did not have the capacity to rob a bank, she was acting under duress. Cannot do this because in criminal cases the expert cannot testify the ultimate issue. NY Criminal cases - an expert may testify to the ultimate issue on the issue of sanity when there is a psychologist or psychologist. @@@@@@@@ Impeachment Expert Witness - Using a learned treatise - the contents of which contradict his testimony e.g. plaintiff exposed to asbestos in the lungs and claims cancer as a result. Expert says actually it is good for you because it helps lungs from catching on fire, healthy, etc.. plaintiff has 25 articles from AMA stating asbestos causes cancer from poisoning. P. 440 NY/Common Law: An expert who gives testimony against learned teachings impoeaches credibility (sky is green, asbestos is good for you) if the test is: (a) one which the expert relied upon for his expertise, then that lays your foundation for using the contents of that context. (b) Expert agrees that your text is authoritative - If he admits that the book is a treatise and authoritative. Most experts don‟t rely on texts that contradict them so this one is used. - The common law rule says that you cannot use impeachment of expert witnesses with sources that the expert does not agree is authoritative. e.g. Witness says that it is good for you to have asbestos. You use AMA document, but the expert says he really doesn‟t recognize it as authoritative. Common law says you can‟t admit it. e.g. Only a passage of a book recognized as authoritative is used, e.g. only that asbestos is bad for you. The most that can be used is the impeachment value of the book, the credibility of the expert‟s opinion, but NOT the truth of that matter asserted. FRE 803(18) Statements contained in published treatises may be made a hearsay exception if it established that it is authoritative that the expert agrees it is authority, but he doesn‟t agree with the conclusions read in the book. - The hearsay exception allows the jury to rely upon the fact in the book to assert the truths of the matter asserted. AMA document is now his own test, e.g. Grey‟s Anatomy. - Judicial Notice may be taken - even if the expert states that the AMA isn‟t authority the Judge can state that something is recognized as authority. The cross examiner is NOT bound by the witness‟ answer in federal court. Much more liberal. - e.g. Your own expert is on the stand who testifies asbestos isn‟t good for you. He says Grey‟s also states it is bad for you. The other lawyer can object to hearsay, but it is admissible because it can be used as affirmative evidence, not just cross examination. - e.g. You can‟t afford expert witnesses, you are plaintiff, and you use Grey‟s anatomy - this does not work. Rule: The treatise MUST be used in conjunction with the testimony from the expert witness. The book cannot speak for itself. It qualifies as a hearsay exception only if used in conjunction with actual testimony. The FRE doesn‟t allow only the use of a treatise because you must have an element of reliability - that it has been in the marketplace of ideas, generally accepted, etc.. A trained lay jury won‟t understand the plain words in the scientific book, so the court says - yes, the book is reliable as there is no real litigation bias, but you must have an expert witness. Rule: The contents of the book may be read into evidence, but will not be allowed to be taken into the jury room. (they will read other sections, etc..) COMPETENCY OF WITNESSES That the witness has the qualifications to give testimony. Four requirements for competency (1) Perception - The power to perceive things (2) Recall - The power of memory (3) Communication - The ability of the witness to communicate (4) Testify Truthfully - The witness recognizes telling the truth FRE 603: No need for oath: If the witness refuses to take an oath it does NOT mean that he is disqualified. He can just state that he is willing to tell the truth under penalty of perjury to the satisfaction of the judge. - You cannot use religion for the basis of casting doubt on the truthfulness of a witness. Therefore an affirmation rather than an oath is inconsequential. Evidence 2 Michael M. Wechsler 66 Michael M. Wechsler Evidence 2 67 Insanity, drug abuse, intoxication - at time of trial - Does NOT prevent the witness from taking the witness stand unless they lack virtually all forms of capacity. As long as they can give reasonably accurate accounts of something they saw or heard they are competent and may affect credibility. - Must qualify for all 4 requirements. - Judge decides competency during voi dire regarding the requirements - especially testifying truthfully. Age - competency - No magic dividing line so long as they are competent based upon judge‟s voi dire. - You can ask the child what it means to tell the truth, what happens to people who lie, etc. as long as the judge is convinced that the child is willing to tell the truth, can tell the truth, etc.. - e.g. Girl is 5 and 1/2 and she is 6 years and 8 months at trial. Court decided that she was competent to give testimony regarding her father‟s killing. FRE: requires children to understand truth and give affirmation: What if child is able to communicate but doesn‟t understand truth or the importance of truth. FRE states that EVERY witness must have the ability to know how to tell the truth and give an affirmation. NY: Criminal Cases: CPL 60.20: Exception for swearing (all must be) for children under 12 as they do not need to swear. Statute creates a presumption of incompetency for children under the age of 12. However, there can be a voi dire to establish the child‟s competency and ability to testify. If it is established that the child has the 4 requirements the child‟s testimony is admissible fully. - If the child does not understand the difference between truth or false, or duties of an affirmation, the courts can permit the child to give “unsworn evidence.” However, there must be corroborating evidence for there to be a conviction. e.g. If child gives testimony she saw the man stab her dad but doesn‟t understand truth, the jury can hear it but the jury can give it less weight. There is also a need for corroboration for a conviction. NY Civil Cases: All testimony must be sworn including that of children. Witness with an interest in the subject matter of the litigation Common Law - didn‟t allow such witnesses to testify because of danger of perjury. Criminal Defendant has a constitutional right to testify in his own defense but he has no right to testify to hearsay, his own expert testimony, it is all subject of the usual rules of evidence. Rock v. Arkansas She was holding the gun which went off after she had a fight with her husband who wouldn‟t let her eat. The gun was supposedly discharged by the scuffle, but she didn‟t pul the trigger. He got an expert who said that there was a defect in the gun. It would be more forceful if she could have remembered the fact that her finger wasn‟t on the trigger. She couldn‟t remember. The lawyer submitted her to hypnosis at a psychologist. During the hypnosis she remembered that she didn‟t have her finger on the trigger. Then she remembered after hypnosis that she didn‟t have her finger on the trigger. Supposedly the hypnosis triggered her memory. She wanted to testify at trial, but the trial judge did not allow hypnotically refreshed testimony to be permitted because of the unreliability of the testimony. The subject can fill in the gaps by themselves without the real facts, the hypnotist can make subjective impressions, etc.. Lower court only allowed prehypnotic testimony as per Arkansas rule that made post hypnotic memory testimony incompetent as the hypnosis is not recommended as a recognized means for refreshing memory - the courts say it isn‟t scientifically reliable. (NY has same rule). Reversed: The USSC can make hypnosis more reliable so the testimony is not subject to abuse, e.g. a neutral hypnotist, under supervision of both parties, etc.. Problem with Arkansas rule was that per se across the line it made hypnosis testimony inadmissible. It must be determined on a case by case basis as to whether the particular hypnotic testimony was reliable. This case does NOT change state evidence law except in criminal Defendant cases where it refreshed testimony through hypnosis must be allowed if proper conditions and memory not tainted by the hypnosis. The Constitutional Right of Defendant: There must be a balance when it is the criminal Defendant testifies as there is a constitutional right so the rule is of balancing test. Prosecution witness: NY has per se rule that prosecutor cannot use a witness who has recollection by hypnosis. Civil actions: They have no such constitutional right. DEAD MAN‟S STATUTE NY - CPLR 4519: Evidence 2 Michael M. Wechsler 67 Michael M. Wechsler Evidence 2 68 In a civil action - no role in criminal cases - interested witnesses excluded. If there was a transaction with a person who is now deceased and we have a interest witness who is still alive, if the witness has a stake in the outcome of the civil action, that witness is disqualified and incompetent to give testimony on her own behalf. - Rationale: Risk of perjury too great. Decedent can‟t give his side of the story, and since death has sealed the lips of the decedent, the statute seals the lips of the surviving participant. - Evidence from other sources will be necessary, documentary, disinterested witnesses, etc. When analyzing a Dead Man‟ Statute problem: I. Who is disqualified to testify? II. Who within a protected class has standing to object? III. Concerning what matters is the witness incompetent to testify. Disqualified witnesses: - Party Defendant or plaintiff, or person interested in the event. To have an interest in the outcome means that you will be bound by the terms of the decision in a res judicata sense. - Someone who is testifying on his own behalf - A person from whom or under whom the person derives his interest - predecessor in interest. Evidence 2 Michael M. Wechsler 68