Evidence 2 Outline

EVIDENCE II Hearsay Intro: a. def.- an out-of-court statement offered in court for the truth of its content. b. Purpose of hearsay rule:deprivation of the right of crossexamination (x-examine)of declarant which constitutes the principal justification for rule. i. safeguards to finding truth; ii. someone who has knowledge of facts should be present b/f jury, b/c jury bases decision on that knowledge of fact & credibility; iii.W swears oath, affirmation-less likely to lie especially b/c of penalties; iv.Confrontation Clause of 6th Amend.lets parties see each other, idea that harder to lie about someone starring at you; v. X-examine-all Ws are subject to X, best tool for obtaining truth; c. failure to object to hearsay is considered a waiver & thus admissible. If don't object until after stated in court, very dangerous b/c jury may have heard & will use. d. ie., accident occurred. Red car goes thru red light, travelling at 70m/hr. & smashes into green car, causing injury to driver. At trial, W appears for G & states that "R went thru red light" - ok, but if said "my friend told me that R went thru red light" - hearsay. e. declarant - person making the out-of-court statement(ocs) f. witness - person testifying in ct. but sometimes W = D. W telling court about his/her own ocs may be considered hearsay. ???ie. g. Rt of confrontation: crim case-constitutional rt of confrontation civil case-statutory rt.???? Witness(W) on stand repeats x's ocs, there is a quasi-confrontation b/c  can confront W but not declarant. Sup.Ct said ok as long as certain indicia of reliability-see supra (a)i-vi. ie., Cop heard P say "joe stabbed me"-hearsay but admissible even though lose some confrontation b/c of add'l elements of reliability w/i the dying declaration exception (see infra). h. Unavailability - usually meant that declarant = dead, def. now includes those beyond jurisdiction, will not testify & can't force b/c of constitutional privilege, etc. II. Exceptions Rule against hearsay-if denied opp't to apply tests created I. It see supra a(i-v). But there are may exceptions to rule. is allowed only when we have add'l evid. or likelihood of reliability to supplement lack of confrontation. 1. Apparent exceptions-not every ocs statement being offered in ct = hearsay. a. statements are not being offered for truth of their content. It may be offered instead to show declarant's state of mind. ie., relatives offer at probate hearing W's testimony(test) to show that testator lacked mental capacity. Wanted W to say he heard decedent say "I'm Napoleon". Ct allowed b/c not offered to prove Testator = Napoleon, rather just to show what state of mind was. b. statement offered not for truth but to show statement made was false. ie., Dr. said there's "arsenic in silk". Factory shutdown b/c wkers wouldn't work. Owner sued Dr & introduces W who said he heard Dr make statement. Attn objected as hearsay but ct allowed b/c it wasn't offered as truththat there was arsenic in silk-but to show statement was false. c. can be used to show listener's state-of-mind as long as contents of statement not offered for truth. ie., M murders Wife, Wife had said "I'm pregnant by Joe", at trial M wants to testify to Wife's statement but DA objects as hearsay. Ct said it's admissible b/c not to prove Wife = pregnant, rather just to show M's extreme emotional disturbance. ie., DA calls W that says he heard girlfriend tell  "I'm preg. w/ your child", next day girlfriend = dead. 'se objects as hearsay but DA said not hearsay b/c not proving preg. just trying to introduce evid. that statement made to , creating a motive & 's state-ofmind. ie.,  sold drugs to undercover, arrested & now claims entrapment.  test. that "cop wanted drugs b/c sick, etc." to show that cop's statements wore  down to buy & that not predisposed to do so. DA objects, Ct. said ok b/c not used to show cop really needed drugs, only to show that cop made statements affecting 's state-ofmind. 2. Admissions NY + Maj.- treated as exceptions to hearsay rule. Fed. 801-admissions are not hearsay thus admissible. Prof: Not logical b/c clearly hearsay. a. ADMISSION OF A PARTY-ANYTHING A PARTY SAYS OCS IS 2 HEARSAY BUT ALWAYS ADMISSIBLE b. doesn't matter whether: 1. express admission 2. adoptive admission or admission by silence-if made in presence of party if not true, the party would object & if doesn't, it's as if they said it themselves. Also, agency theory c. Leake v. Hagert p.596 F: 's car hit 's plow,  counter-claimed b/c  had broken reflectors. At trial, insurance investigator was called by  & test. that 's said"the light was missing b/f accident", Son = unavailable.  objects but ct statement = hearsay but not prejudicial. Prof: both hearsay & prejudicial. HYPOS , son & adjuster at farm, A questions both & son says it was broken but  says nothing. Admission by silence. Son works for ,  not present, son = 's agent & son tells A that light was broken b/f accident.  finds out but doesn't object. Admission by silence. **son = 's employee(ee). Son told adjustor that it was broken. At trial son is W for dad & says reflector ok at time of accident-not hearsay & can be admissible as true if jury believes. Problem: 'se wants to impeach w/ prior inconsistent statement w/ test. of adjustor. Is prior statement hearsay? NY - jury can't use prior inconsistent statement as basis to decide that light was in fact broken b/c then prior would be used as evid. in chief & thus hearsay. Judge must give instruction to jury that prior can't be used as truth, just to impeach son. FED - Prior inconsistent statements may be used to i. impeach ii. truth of content if under oath, prior inconsistent statements made under oath, not hearsay & thus admissible. NY - doesn't matter whether under oath Witness states, "I don't remember" FED - inconsistent statement & thus could be used if 1st made under oath as the truth NY - "couldn't even be used to impeach b/c doesn't hurt DA's case Misc a.Central of Georgia Railway F:  sues employer railway,  on stand says "dr told me I will never walk again" & this statement made my injuries worse.  objects as hearsay.  said statement 3. 3 caused mental anguish. Ct said no good. NY if mental anguish is part of damages, ocs by doc. is admissible. NY TEST: 1. was statement one that a reasonable dr, based on facts, would have made re: injury, and 2. was statement fairly traceable to injury 3. can show basis of 's mental anguish. ie., Ferrara F:  said "dr told me I have cancer from improper X-ray treatments". statements allowed to show basis of cancerphobia. Passed 3 prong-test HYPO /man walking dog, A says "stop", man doesn't.  hit by car. At trial, A test. "I said stop",  objects, hearsay. Ct not a declaration of fact, only offered to show warning given & denied. Woman in supermkt, A says "watch out, don't slip on wet floor". W sues supermkt &  calls A to test.to warning. Ct said not hearsay b/c offered to show W's state-of-mind, that she ignored warning. It would be hearsay if offered to show there was ketchup on floor. Co-conspirator's declarations a. def. declaration must be made during & in furtherance of conspiracy. Admissible as if coconspirator said it himself. Vicarious admission, coconspirators act as agents for each other and thus bound. confrontation clause? unavailability doesn't matter. 5. not, Spontaneous declarations a. irrelevant whether the declarant is available or can still have W discuss what declarant said. 4. can Proceedings where hearsay rules not applicable: 1. arbitration hearing 2. motion to suppress evid. 3. administrative hearings a. NY - residual rule - decision of hearing officer couldn't be based solely on officer report. - 1985 - now decision of hearing officer be based solely on hearsay, you need substantial evid. in admin. hearing report to support decision. b. types of admin hearings: prison hearings-ie., guard finds gun in bunk but unavailable at time of hearing so report used. Clearly hearsay but sufficient b/c no longer a residual rule. hearing to suspend driver's license-ie., A 4 drunk & refused breath test, automatic grounds for revocation of license. If refuse must have a hearing to confirm revocation. at hearing cop wasn't available so used report.  "cop never told me about automatic revocation if I refused", report said that warning was be given. COA 4-3, suspension stands-public policy, drunk driving terrible. Dissent: rt to drive is important privilege, report shouldn't be enough to revoke, cop should be called. Child protection proceeding - civil hearing. Social services temporarily deprives parents of custody. OCS of child is admissible for truth, whether or not child is available. ie., child tells teacher dad beat him, showed bruises but at hearing denied beatings. May teacher test. as to prior statements? No spontaneous utterance but still admissible b/c at hearing (not crim.) ???? -crim. hearing - ocs of child is admissible for truth of content if: a. child = available ??&/or?? b. child tells different story 6. Pedigree def.: relationships by blood, parentage, lineage etc. Particularly used in intestate situations & thus must be admitted to surrogates court. a. NY allows you to testify as to your own status in court, ie., Joe Smith was my father, but problem arises when state "mary said JS was my dad", both considered hearsay but cts allow. NY will allow hearsay declarations to establish pedigree or non-pedigree if: NY 1. if pedigree is issue in case; 2. declaration made b/f controversy arose; 3. declarant must be dead at time of trial; 4. declarant must be member of family of which he speaks. FED 803(19) 1. irrelevant if declarant available; 2.declarant does not have to family member, good enough if situated to know facts, see infra In re Lewis. IF ALL ELEMENTS PRESENT, ADMISSIBLE. b. NY anyone can be a witness, but declarant must be family member. ie., capt B says to cop "I have 1 son, S" at trial S calls cop as W, objection hearsay, but ct said pedigree. Doesn't matter who the W is, here the declarant is capt. B & he's obviously a member of family for which he speaks, his own-no need for 5 independent evid., now dead. So, if declarant speaks of his own relationships, no need for further independent evid. NOTE: cop = disinterested party to c. ie., capt. B died, no will, left 1m. Son B claims be capt's son, (1) son can testify as to his own status & (2) son states "mary B told me capt. B was my dad". 'se objects, ct said it's hearsay but comes w/i pedigree exception. Mary's statements made b/f controversy pedigree at issue mary was member of capt. B's family mary = dead NY - Independent evid. needed for 3rd party situationsneed to know by independent evid. that mary was in fact related to capt. B. Son would have to establish Mary wife of capt. B, could do this by calling Ws to test. that they at least held themselves out to be married. d. S goes to visit capt. B who tells s "I'm your dad", Capt dies 10 yrs later & leaving 1m & no will. at Surrogates hearing s states "I'm capt.'s only son, he told me". State objects-it is w/i pedigree exception but dead man's statute renders S incompetent as a witness b/c how do we know he's not lying, S is not a disinterested party(compare to cop ie.,). To win, s would have to bring in a disinterested party. dead man's statute - person interested in the event or his predecessor in interest, is incompetent to testify to a personal transaction or communication w/ a deceased, when such testimony is offered against the representative or successors in interest of the deceased. transaction - anything you heard him do or say pedigree e. positive or negative declarations - part exceptions: ie., "I have 2 sons" & "I have no sons" - both admissible w/i pedigree exception. of f. CHECK WHETHER OR NOT NY ALLOWS SUCH STATEMENTS IN CRIM. CASES: IE., TESTIFYING AS TO OWN STATUS IN CRIM. CASES WHERE ELEMENT OF CRIME = FAMILY RELATIONSHIP, INCEST g. FED. In re Lewis - nanny was present at time of S's birth so knew mom & dad. Nanny dead but husband was permitted to testify as to what nanny said. Hearsay but w/in pedigree exception b/c close enough to family to know true facts. NY would not allow, D 6 must be family member. DECLARATIONS AGAINST INTEREST a. don't confuse w/ admission against interest!!!!!!!!!! admission exception-made by party to a c/a b/f trial which turns out to be contrary to position at trial declarations against interest-NO need for declarant to be a party, the fact that the ocs was against the declarant's interest at the time it was made gives statement an indicia of reliability. b. ELEMENTS: 804(3) & NY 1. declarant must be unavailable; 2. the declaration when made was against the pecuniary, proprietary or penal (ppp)interest of the declarant; 3. the declarant had competent knowledge of the facts; 4. there was no probable motive to misrepresent the facts; 5. declarant knows statement is against interest; NY 6. crim. cases-where statements offered to exculpate defendant, not admissible unless corroborating circumstances clearly indicate that the declarant or someone implicated as accomplice actually committed a crime. Law remains unclear whether it may be used to inculpate-even if corroborated. RD: not fair b/c of confrontation clause. FED where statements offered to exculpate & inculpate defendant, not admissible unless corroborating circumstances clearly indicate trustworthiness of the statement. c. Declarations against pecuniary or proprietary interest the declaration must prejudice a $ or property interest of the declarant. ie., LL tells tenants that they'll always have elevator operators, but he dies & when new LL comes, fires operators.  sues & wants to admit evid. of 1st LL's statement. 'se = inadmissible b/c hearsay & property case but ct held admissible as against pecuniary interest-oral statements ok as long as not creating or defeating title. ie., truck hits car, passenger dies but b/f dies says "yes, I'm sorry, it wasn't your fault". Wrongful death action &  wants to show car driver was at fault 7. 7 by introducing decedent's statement. Admissible? it's hearsay but admissible under pecuniary exception-but ct only allowed "yes, I'm sorry" b/c remaining statement was inadmissible as an opinion. NY - would allow ocs of fault as a declaration against interest and as an admission b/c in a wrongful death action, the decedent's statements were imputed to the husband, as wife's agent. Problem: only witness = truck driver, w had an interest in outcome, testified against decedent, NY incompetent testify b/c only witness pursuant to the deadman's But W not incompetent to testify as to facts, just as the decedent's testimony. ie., A driving, stops at red light, light turns green, A looks b/f driving, truck goes thru red light & hits & kills driver. T says "i'm not in shock, I went thru red light" & dies. In A v. T, A wants to testify as to T's statement, incompetent b/c of dead man's statute. Exception: an otherwise incompetent party may testify facts of a car or plane accident, ie., I was hit by a car, T went thru red light. NOTE: A would not be able to testify as to T's declarations-so A could not say "I heard T say he went thru red light". NOTE: if X, bystander, heard T say he went thru a red light, ok b/c deadman's statute only precludes those w/ interest in case, since X has none, not incompetent. to stat. to to red d. declarations against interests against others NY - statements made by low level employees don't bind a corp., he's authorized to do, not to say. Considered hearsay-not admissible. FED - 801-statements by ees concerning matters w/i scope of agency, during existence of relationship are admissible against corp. since ee has auth. to do & say. Not hearsay. ie., Man driving corp. truck & VW, T falls asleep & injures VW. At accident scene T tells cop he fell asleep. In VW v. T,  wants to admit evid., admissible in NY as against the driver under the admission exception but not as against the corp., in FED admissible against both. ?????? ie., 2 mos after accident, T commits suicide, statement admissible as against pecuniary interest. Elements: T = unavailable, & against interest. Can't be an admission 8 b/c of the dead man's stat. yes?????could be used as an admission ag. er. only ie., A, B & C come to 3-way intersection & crash, A one seriously injured. A sues B & not C. 3 days later, C says to X, "I caused accident, I pushed B's car into A, which caused A's injury". C =insane. At A v. B, B calls X to testify to C's statement. A objects, hearsay. H: it's hearsay but admissible as: not an admission b/c C not a party; not res gestaeexcited utterance b/c not said for 3 days; but it is a declaration ag. pecuniary interest, C = unavailable, against C's interest at time said. g. Awareness by declarant that declaration was against interest: It is the declarant's awareness at the time of making the statement that his declarations is against his ppp interest that furnishes the circumstantial probability of its trustworthiness. HYPO: Night watchman's statement that he chased children into the street was not against his proprietary or pecuniary interest b/c he didn't at time that it was against such interests at time it was made. h. statement admissible for collateral facts gen. rule-statement must be against interest when made but some declarations of interest include collateral facts not against interest but admissible nonetheless. ??? hypo: midwife assisting wife in birth. Midwife wrote "received $25 from Ms. Jones in birth of john jones". Midwife died. Wanted evidence of child's age. Under what exception? Pedigree? no b/c in NY declarant must be a family member; FED ct would allow if relationship close enough. Business Rec'ds? possibly see later. Declaration against pecuniary interest of midwife? yes, fact that not owed $ = declaration against pecuniary interest. Collateral fact is "For the birth of Mrs. Jones son". She wrote "pd" in books so no $ owed. Rule since the collateral issue is so close, it's admissible under the collateral facts rule as a declaration against pecuniary interest. i. Rule no need for privity b/t the declarant & party against or in favor of whom evid. is admitted. Rule declaration may be written or know the 9 oral, except if it is admitted to destroy or create title NY will not accept oral declarations. j. Declarations against penal interests FED 804(b)(3) Elements: 1. declarant unavailable (see infra Chambers exception); 2. statement is sufficiently reliable to warrant an inference that a reasonable man in declarant's position would not have made statement unless believed true; 3. corroborating circumstances clearly indicate trustworthiness. NY DPI used to exculpate the accused if have add'l evid. NYCOA Brown -  claims self-'se but victim's alleged gun never found, another convict later said to cops that he found the gun & used it in a robbery but took the 5th.  argued that constituted exception to hearsay = declaration ag. penal interest. Elements: convict = unavailable b/c of 5th amen.; against interest since admitted to robbery but in NY need add'l evid. connecting declarant to scene & evid. tending to show the convict was not lying & had no motive to lie. eg., told his friends. ie., man stabbed in woods, father of assailant said that father did it & killed himself, Son wanted to use letter to exculpate himself, but ct said no dad had (i)motive to lie; & thus lacked indicia of reliability. FED: Chambers-applies to NY b/c on constitutional interest- F:  on trial for murder & X had told 3 different people that he had killed V.  now wants to use - so calls X, on stand X denied statements. 'se can't impeach b/c it was his witness, (in NY can't impeach own witness unless prior inconsistent statements were in writing or under oath) Can't use DPI b/c X was available. TEST: Are X's statements hearsay? Yes Applicable exceptions? Is it an admissions?no b/c X isn't a party; statement against interest? Yes, but X is available--Sup. Ct. - CRIM. CAses-Out of court statements which are corroborated will not be excluded b/c declarant is available since it would be a violation of due process; miscarriage of justice to exclude. FED - remember can impeach anytime, anywhere, anyhow. FED 804(B)(3) f. a. Bruton v. U.S. -admissions case against 1 but also against 2 - both parties to action 10 F: 2 co-s were jointly tried in fed. ct. 1 confessed that he did it & that 2 helped-"I killed victim & 2 helped". "I killed v" = an admission ag. 1, court allowed entire statement so it's as if 2 admitted. CT charged jury to count only as to 1 after 2 objected & claimed that a separate exception needed. At trial neither took std. & both convicted. 2 appeals claiming denied rt of confrontation. H: Sup. ct agreed, 1 really became witness ag. 2 & thus by not allowing cross, 2 denied rt of confrontation. PURE HEARSAY b/c 2 DIDN'T SAY IT b. 3 ways lower cts avoid Bruton - NY 1. redact 's confession - ie., remove "& 2 helped"; sometimes doing this is unfair to confessing  as it makes him sound more culpable. 2. If , takes std. would be subject to examination & thus confession mentioning 2 could be admitted w/ charge that jury didn't use. No argument of lack of confrontation. 3. have 2 juries-each tries  separately c. FED Can DA use declarations ag. interest to inculpate ? yes i. penal interest - drafters assumed penal interest wouldn't implicate a  b/c might violate Bruton. U.S. v. Katsougrakis -  hired 2 men to burn down diner but got caught inside. One died, A in hospital. Friend went to visit A & F asks A if he was set up, A nodded no, F asked if he was paid, A nodded yes & died. DA wants to use nods ag. s who hired A. H: Admissible? yes under DPI. RD: Hearsay? yes; Exception = DPI b/c 1. declarant dies, so unavail 2. nods clearly made him L-ag. penal interest 3. How do we know it's reliable: reas. to assume truthful-death, talking privately w/ friend, clearly not lying, no motive. (cross-ref. elements to dying decl.) CHECK: not an admissions case b/c A wasn't a party. FN: Directly ag. interest - I burned down diner. collateral facts - "i was paid by " FED - always accepts collateral facts NY - doesn't take collateral facts - only direct. See infra Thomas. 11 Lee v. Illinois p. 752 F: Millie confessed to aunt's murder but said it was self-'se; Thomas confessed to murder but said it was planned, some discrepancies.DA wants to use Thomas' confession ag. Millie, Millie is convicted. She appeals stating Bruton problem, but DA says no b/c no admission-ha,ha this is penal interest. H: on appeal maj. rev'd & unconstitutional b/c no reliability. Ct said not a Bruton problem b/c inadmissible as an admission-Thomas didn't say Millie did it, just that she planned it. Prof: difference: DA called exception a DPI & not an admission (Students = Studs: flimsy.) Hearsay? yes 1. Unavail.? - yes 2. statement ag. penal interest of Thomas 3. indicia of reliability - not trustworthy b/c T probably tried to cut deal w/ DA; inculpated Millie more than him-so unreliable. Ct. said not wrong to allow collateral facts-ok to mention co-s in DPI & all still admissible in this exception Burton - come out same way under this exception: Key: circumstances under which declaration was made, Bruton & Thomas both under custody as opposed to Katsougrakis statements made in private & to friend. NY & FED declarations in police custody can't be used as a declaration ag. interest. ii. NY - People v. Thomas F: Chain-snatch mugging. DA claimed  = chain snatcher, declarant acted w/  - D would hold arms &  would pull chain. D caught & admitted both, pleaded guilty. At allocution- statement at time of pleading where  pleads g or non-g- pleaded non-g. Longer punishment if did crime w/ another. Several eyewitnesses willing to testify that  took chain, DA wants D to testify to prove 2 people involved b/c longer punishment. D took 5th. Admissible as DPI? NY don't take collateral facts along w/ declaration only takes "I held victim while chain stolen" - won't take "while another, Thomas stole chain". FED ok see supra Lee In Thomas ct declarations weren't made in custody, don't need corroborating evid. since D wasn't trying to cut a deal for himself, just wanted to plead guilty - so reliable. Statement was still good for DA b/c proves another person 12 involved coupled w/ the testimony of witnesses would prove 2d party. NY version of diner case "I burned down diner" " hired me to burn" & D dies NY would allow only #1 while Fed would allow both. But even if NY only allows 1/2 of statement still helps DA. see, e.g., Thomas & in diner case would only have to prove that  hired someone since someone admitted to burning-rather than having to prove both arson & hiring. iii. deal. iv. CAN GRAND JURY STATEMENTS INCULPATE ANOTHER? ny - NO GOOD B/C  doing it voluntarily to get better Police station statements NYCOA-F: Friends of victim stuffed rocks down victims throat, & told cops in station that more than one did it. H: station house admissions aren't admissible b/c of presumption against reliability. Even if can show that you had hope to make a deal = enough to make unreliable BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE a. Three Requirements: NY and FED 1) Record must have been made in regular course of business; 2) must have been a part of course of business to make record (usually do so, ie., always give a receipt-if don't usually make receipts but did so here in preparation for trial-not admissible) 3)must have been made at or about time of event. If witness is available to make these statements, ADMISSIBLE b/c foundation laid - i. for truth of contents ii. statement made Rules: If admitted jury still doesn't have to conclusive, just allows jury to hear statements. something for them to consider. b. take as Rec'd = Not necessary to be a party of transaction - once it is established that = a business rec'd, good to use for or against anyone if relevant. Availability is irrelevant 13 Cts don't care how many people involved as long as everyone involved in business & had a business duty. HYPOS: dr's wife might be able to lay foundation if she knew enough-seeing husband do it everyday, but better to have someone in business. A steals goods from truck FBI arrests & have judgment since goods transported interstate. AT trial, DA must prove interstate commerce-uses bill of lading as a business rec'd; W = ee from trucking co may satisfy elements. -Joey Fazool, who rules the school, argued "but it's not my business, I'm in the salami business". H: ct said doesn't matter b/c bus. rec'd exception may be used against or for anyone-no privity required no matter what business you're in. Butcher store ee hired by butcher, he sells turkey & tells butcher; B writes what ee said; all die from bowel infections. Declarant = ee; rec'd = B said assistant said X owed $. This is basically a double hearsay. loading dock cases - X tells B who tells C who tells A - etc. Cts don't care how many people involved as long as everyone involved in business & had a business duty. Argue: more people =  error so don't give any weight. Computers: NY & FED same requirements NJ - many move requirements NY & FED says argue other elements c. can d. BEST EVID. RULE - if offer a doc. must be original unless can explain why you don't have original. ie., printout = business rec'd even though computer disk = original. Johnson v. Lutz p. 826 F:  driving a motorcycle & hit by a truck & killed. TD offers police report. It's part of cop's job to file accident reports, called after accident & questions Ws & dies. TD calls clerk from dep't. H: error to admit report b/c cop didn't witness accident rather he questioned Ws. Ws not in dept, not their duty to witness & report accidents. Thus UNLESS ALL IN CHAIN HAD A DUTY, NOT ADMISSIBLE AS BUSINESS REC'D & CAN'T BE USED FOR TRUTH OF CONTENT. ???Admissible to show statements made but need another exception to use as truth. Fed Rule 805. hearsay within hearsay. 14 ***2/28 e. More HYPOS  A supposed to make sure elderly care of. B says "I'm Joan of Arc", A now At hearing re: B's mental capacity. A repeats statement: no hearsay b/c statement made: truth of its content? prove she's Joan of Arc. clients are taken thinks B = senile. just want to show No, not trying to Hypo 2 same facts except A dies, and there was no record of the interview. A had told supervisor "B told me she was Joan of Arc". What is being proved here? ""A told me that B said ..." ans: that old lady made the statement & thus it's offered for truth of content that B told A. 3: same facts but A writes in log book w/o telling Sup. A dies. Sup. brings rec'd to ct., Sup: lays foundation by satisfying elements, and states not offered for truth. 'se objects- that's hearsay. Bk = Sup., each reporting what A talk them about it, so even the making of the statement = Hearsay. But even if hearsay - bk is admissible b/c of the Business Exception rule. Case: Kelly v. Wasserman F: W gives promised K that she would live rent-free for life if she deeded her home. W ended up kicking her out, dispute over deal. K had told Social worker about deal & then W confirms, wrote it down & died. A wants to use rec'd for truth.  wants to establish rec'd was a business rec'd & submit statements.  objection -it's hearsay  SW had a duty to find out & rec'd  can establish W made statements but  wants to admit for truth & can't admit for truth under bus. rec'd when no duty to speak - here W didn't have a duty. Judge -  is right. Rule - can let in 3-4-5 hearsay statements if everyone in chain had business duty to give, take info. Jury can't hear info. w/o proving true b/c unfair & statement not valuable unless used for truth.  but statement - if proved that it was made it would constitute it was an admission since B = party. So wanted 1. to use exception bus. rec'ds to prove statement made 2. let jury hear for truth b/c constitutes an admission & thus exception to hearsay, Inconsistent statements made out-of-court doesn't jive w/ in court statement = admissible. Can make a chain of hearsay 15 exceptions. can't use unavailable. declaration ag. interest b/c declarant = Case: F: car accident happened, cop called, he's a specialist to investigate accident. Cop sees positions, tracks etc. making notes. speaks to people in accident. A says - I hit green car b/c I passed red lt. B " - A hit me b/c A went thru red light C = bystander  same story; cop types all up, case later comes & B wants to call C but C =dead. Cop = dead but rec'd exists. Foundation - since official rec'd - ans. 3 questions in certificate & signed. No witness necessary. W = paper = hearsay - still admissible b/c bus. exception as to what cop saw, allowed b/c had duty to go to accident & report. What about A's statement-can't be offered for truth under bus. rec'd exception b/c A had no duty to make statement. But as in Kelly case, can use bus. rec'd exception to prove said it, & admissions exception to offer for truth of content. B wants to put in his own statement - NOT ADMISSIBLE B/C IT'S SELF-SERVING HEARSAY, NOT UNDER ADMIS. EXCEPTION Bystander statement can be offered to show that he said it, but not for truth b/c had no bus. duty to make statement & no other exceptions available. if statement hurts you & not party = D ag. I if " " " & are " = admission Rule something offered just to show it was said is ok if legitimate probative value other than truth of its content. Case: Baker v. Elcona p. 831 F: car accident resulting in 5 deaths & 1 injury when collided w/ truck. TD claims cars fault b/c passed red light & wants to use cop's report-bus. rec'd of what cop saw at accident is admissible for truth. Cop got td's statement that car went thru red light but not admissible - can't be coupled with the admission exception since it's self-serving; not bus. exception b/c td no duty to speak. Jury will just hear what cop saw not td's statements. Report concluded that car went thru red light. Are conclusions admissible? NY & Fed generally opinions are not admissible but if it's the kind of expert who can give an opinion of the stand, he's allowed to do so on bus. rec'd. 16 Fed Rule 803(c)Factual findings are admissible. conclusion a factual finding? SC has said yes. Is a Statements which are not hearsay 801(d)1(b) 's mistake was charging the Witness with recent fabrication. Once a charge of recent fabrication is made under rule 801(d)1 you may admit prior consistent statements made at time of accident to bolster what witness is now saying at the trial- if door wasn't opened he couldn't offer his own statement to bolster his in ct testimony. Fed Ct- admissible for truth-evidence in chief New York can use to prove statement not bolstering credibility but not for its truth Palmer v. Hoffman RR ran over somebody, fucked him up bad RR engineer filed a report with his er, the RR. Maybe an admission if it hurt them Company accident reports can be admiss. as business records whether helpful to Co. or not, even against 3rd parties with no relation to Co. --If business record is also used for litigation that's O.K. it will be allowed, its only if its prepared solely for litigation that it will not be allowed. Loansharking case Illegitimate business records can be admissible, for truth. Foundation wasn't laid here but if it was then o.k. HOSPITAL RECORDS They are business records and admiss. foundation, to show statement made and truth. if proper fabricated, History- patients info about what happened and illnesses. Even though patient is not in the business of being a patient, when he gets hurt he becomes part of hospital's business. Rule If what patient says is relevant to diagnoses and treatment it is w/i business and admiss. under BRE. Bush case 17 2 cars collided, all admitted to boozefest that night Driver brought to hospital and nurse wrote that "he was unable to give history b/c drunk" Key question -- It is admiss. for truth if it is found to be relevant to diagnosis and treatment.-- under business records -here party did not establish relevance so not admiss. NY--- Consumption of Narcotics, alcohol, always relevant BRE generally - whether records are self serving or hurt party is irrelevant. HYPOS 1) A driving car stops at red light, B walking by & C rams into A pushing A into B. C takes off. B admits to A what happened & now wants to sue but C is gone. In B v. A, A gets Hospital rec'd which states, "B said hit by car that was pushed into another car"-wants to admit for truth.  - fact that 2d car hit A's car is not relevant for diagnostic purposes, all dr. needs to know patient was hit by car, so not w/i BRE. Can't even prove it was said. 'se argues that it was an admission. Ct said would have to prove statement was said b/f you could use admission exception. Solutions: a. proving statement made calling dr., nurse, etc.,  said it was hearsay, ct. rt but (i)admission exception  admitted for truth; (ii) personal knowledge  statement made & (iii) inconsistent with party's position at trial. b. If Ws don't remember - 'se attns may show rec'd & : i. refresh recollection so -statement made & admission. ii. past recollection rec'd - if don't remember ask, remember making statement? yes, true at time? yes; so offer as past recollection to prove STATEMENT MADE & then use admission exception to prove statement = truth. No dr/patient privilege - b/c "pushed by another car" not w/i course of treatment so thus not w/i privilege. HYPO: if you sprain ankle can't say "I killed my wife" - not w/i privilege. A goes to dr. - depressed & right ankle hurts (Pat) toe torn off by a little guy (steve) and admits he wife. NY relevant to emotional care of patient, if not then privileged unless Dr worried that patient will & left killed waived kill a 18 stupid mick. BRE: generally - can be impeached as to its weight but not its admissibility by contradictory statements of declarant. HYPO: woman falls off chair, dying but doesn't know it, tells cop that boyfriend pushed her, signs affirmation. dies.  indicted for manslaughter.  wants to offer hospital record for truth to show fell from chair. Admissible yes - BRE & relevant. DA wants DA wants to admit signed affidavit.  - hearsay DA - under oath not admissible b/c no oath exception to hearsay rule, not dying declaration b/c didn't know dying; not excited utterance. Ct would allow to impeach hospital rec'd., but not as evid. in chief. POLICE REC'DS Rosters = Bus. rec'd; daily cop logs are not bus. rec'd HYPO - cops watching , sees people give $ to ,  gives glassine envelops. Goes back & logs, waited to arrest b/c wanted big fish. Next day, not selling drugs. Both cops die, but have rec'd. Hearsay? yes DA - BRE, ct. said no even if Bus. rec'd b/c it's a doc. prepared for litigation to prosecute & lacks reliability TESTING OFFICE REC'D testing = routine, even if possible law enforcement use, ok b/c random testing of devices - admissible. drug tests, speedometer tests, breathalizer tests - ok can be done w/o live witness, certificate of report = suff. U.S. v. Oats - NY & FED testing heroine & gov't wanted to offer lab report w/o chemist. FED & NY can't use reports w/o chemist (not sure if any expert will do). E. 1. DYING DECLARATIONS NY requires that declarant: a. must be dying & dies 19 b. knows he is in fact dying(nature of wounds can prove he knows he is dying or other circum.); c. has no hope of recovery; d. if lived would have been a competent witness; e. death of declarant must be charge ag. ; f. only admitted in crim. homicide cases don't have to prove religious belief what if person is an agnostic or town atheist a. NY - jury decides how much weight it will be given but it gets in. b. FED - can't even mention. can impeach a dying declarant FED 804(b)(2) requires that declarant: a. declarant must think he is dying (must be unavail but does not have to die); b. make statement to that affect; c. can be used in civil cases; d. if used in crim. case must be crim homicide; e. does not have to abandon all hope of recovery; f. can be crim. homicide of someone other than the declarant. NOTE: once admitted, can be used to inculpate or exculpate anyone. Wilson v. State F: Feltus was victim of shooting. He was at super club when  walked in & asked to speak w/ Feltus outside. Seconds later shot heard, Feltus reentered w/ gun wound & said to woman & cop "Stan shot me", also nodded yes to "Stan Wilson?". Statements offered for truth. H: Hearsay, but admissible as dying declarations. RD: going to maker so wouldn't lie. So what if declarant didn't believe in after life? Ct said doesn't matter, DA didn't have to prove. BUT if public knowledge that declarant = atheist, in NY, statements are admissible but 'se would argue weight since declarant didn't believe there was no indicia of reliability (arguing weight). 4. RULES: if declarant doesn't think wounds = fatal, even if they are, NY will not allow declarations to be admitted. if declarant asks to be taken to hospital - NY will not admit dying declarant's testimony b/c hasn't given up all hope. NY holds that asking for last rights or asking for someone to take care of children etc. evidences no hope of 3. 2. 20 recovery. NY if live not admissible. F. RES GESTAE - the things done NY & FED REQUIREMENTS: a. genuine res gestae-words that accompany acts explain the act. It's not hearsay. Rule 803(1-4) not res gestae, interpreted by cts as such. NY words must accompany act to = RG. b. i. present sense impression - occurs immediately after or before event; ii. excited utterance - occurs after act & not = time as act; iii. then existing mental, emotional or physical condition, iv. statements for purpose of medical diagnosis or treatment c. person doesn't have to be unavailable ie. get one for rg d. Commonweath v. coleman p. 765 F: daughter(A) calls mom & says Coleman/ is going to kill me, call cops. Cops pick up  later w/ blood stains & saying "I hurt A". A found dead. DA wants to offer conversation to show  killed A. 'se objected stating opinion(was only A's opinion b/c killing hadn't happened) is not admissible. H: not an exited utterance but it was a present sense impression. NO need to be excited. Prof. thought it should be excited utterance even if also present sense but EU better. NY only 1st Dep't has accepted present sense exceptions 2d dep't - rev'd decision using present sense b/c facts of case not proper. e. CASE F: Cathy on phone w/ Daniela, bell rings, "pizza man". Cathy says "well Dan, I didn't order any but what the heck, I could always use a good pie-I call you back." Dan gets worried - "hey, wait a minute, I wants a piece pie too"(oh, better not call Steve & tell him about pizza & Pat never has a car, so I won't even call him or I'll have to pick him up). When Dan gets there, oh no, pizza's gone & yeah, Cathy was axed to death (I swear I didn't do it). I: can Dan testify as to pizza man being at door? H: Hearsay? Yes but not EU, not PSI b/c Dan & Cathy weren't physically together. HYPO: 2d Dep't Rich & Bill at parade, Bill says "there's Dinkins". Rich too busy looking at some 16 year old in her 21 catholic uniform & didn't see. Can Rich testify as to what Bill said under PSI? Yes can be verified if 2 were physically together. 1st Dep't - 911 call - M says I'm looking at a guy w/ black pants & red Gucci hat breaking into store. Cops get to scene & pick up guy fitting description. DA wants to offer 911 call which was recorded. Machine & M not together but ct said ok b/c facts were corroborated by what cops found. Fed Rule - don't need corroboration - unlike 2d dep't, doesn't require physical presence g. EXCITED UTTERANCES (EU) spontaneous declarations all jurisdictions accept 1. FED & NY - both civil & crim. cases 2. indicia of reliability - startling event causes person to speak w/o time to think about lying so likely to be telling truth. 3. NY OLD 3 men walking together, Pat, Steve, & Bill. Steve takes 5 steps forward, falls on his nose(it breaks). Pat says "what happened" & he says to the other guys he says "Rich stabbed me" & dies. Pat wants to testify that "although I didn't see what happened, I heard Steve say...". NY admissible under EU exception. The 5 steps do not remove spontaneity. What about asking question no, still spontaneous. Q: what's spontaneous: Civil Case - A climbs ladder at wk, ladder breaks & falls. Co-Wker, B, walks over & asks A question. NYCOA can't be spontaneous b/c asked a question. Man falls into boiling vat of oil, pulls himself out & running around, A asks what happened & M says "plank broke & I fell in" COA - allowed b/c of pain level One foot in & one foot out so M dragged by train until falls 200ft. A"what happened" , M answers "why did conductor close door on me". COA said this is hearsay, M had time to think. TODAY People v. Edwards F: crim. homicide. Hubby hears wife in apt. struggling, asks "Edna, vut's de matta", "oooh, Mr. Eddy is trying to kill me". "Vut?" "Eddy vill kill you too" "Vut?". 22 Finally breaks door down, wife dead, Eddy seen running away. COA H: overruled earlier cases, asking a question is not dispositive. Must all facts to determine if declarations were spontaneous & continued to be throughout. Q: how long does excitement exist after accident/crime? NYCOA - 30min. ok as long as declarant is still under pain, shock etc. - 2.5 hrs ok as long as pain & shock admissible. - gang member shot, small puncture wound, responding calmly, reads & signs consent form & dies. Not EU based on facts. FNS: can have both EU & dying declaration. h. SUPPOSE DECLARANT DIDN'T PARTICIPATE & ONLY A WITNESS TO EU? crowd of people, shot rings out & bystander yells "Y shot Z". At trial, bystander can't be found But DA found A who was there and heard statement. Is A's statement admissible? NY - allowed, bystander can make an EU as long as excited. Q: must declarant be available? NY & FED - no C = bystander sees X shoot B & screams it. At trial, C is available & testifies so NOT hearsay, C can also testify that he screamed "X shoot B" offered as add'l evid. offered for truth b/c it's an EU. a declarant testify. & any witnesses who heard declaration can i. CAN EU END & START AGAIN? Well, depends on how much alcohol was consumed, how much time in between & Cathy said "and what he/she looks like" and of course, whether she can howl like a wolf. Anyway. . . A "i've been robbed" very excited, cops calm him down when cops comes back w/ robber. A says "that's him", Is A's "that's him" an EU? COA - sudden reappearance of robber was suff. to cause excitement again. j. MENTAL, EMOTION, PHYSICAL CONDITION declarations of pain or suffering - Physical Condition of declarant - bodily pain, health, etc. FIDELITY SERVICE INS. - p. 776 23 F: Pat drunk decides to bathe, so much to Cathy's chagrin, takes clothes & sits in tub. Drowns. 2 theories: 1. accident 2. blackout due to illness.  ins. co claims he was sick causing blackout & thus they aren't L.  argued accident. At trial, witness testified that Pat wasn't sick. Present Physical condition exception FED RULE - ct will allow statements of physical & mental conditions. Silence is interpreted as "I feel fine". Such statements can be made to anyone. NY RULE - Involuntary expressions of pain such as groans, moans & screams are always admissible as circumstantial evid. - Declarations of present pain & suffering are not admissible except if: 1. made to treating doctor; and 2. there for treatment (anything aside from treatment, eg., ins. purposes or dr. solely preparing for trial as expert is inadmissible). Statements to ins. Dr. may be admitted as an admission. 3. Or, if declarant is dead (maybe ltd to family), eg., "Mom said my head hurts to daughter, statement of present pain but not dr., but Declarant = dead so no other way to get info., so admissible. 4. or if admissible by some other exception. Past pain & condition exception FED RULE - not admissible under 803(3) but admissible under 803(4) as long as made for purpose of medical diagnosis or treatment. what if want only diagnosis & not treatment - sure. if want expert to testify after accident, he can testify as to what was said as the truth. NY RULE - Never allows past pain or conditions even if made to a treating doctor. Exception: past pain in medical rec'd - medical rec'd is admissible for past pain. Can't orally testify. U.S. v. Iron Shell p. 778 F: Assault of 9year old girl. Dr said during treatment victim said she was dragged into bushes. Ct said these were past statements used for diagnosis & treatment b/c go to cause or source of injuries, thus reasonably pertinent to 24 treatment. Ct also said that if she had been treated w/i min. might have been an EU. NY - truck ran over Steve's toe, Steve yelled "Bitch's truck ran over my toe, & my toe hurts like no one's toe has ever hurt b/f." Coby hears this, can Coby testify? As to 1st part - yes b/c EU; and "my toe hurts terribly" admitted b/c it is PSI; EU ok too, but not present pain exception b/c not made to a dr. What if statements of pain made at hospital to Coby? NY Coby can't testify b/c not under present pain b/c not made to dr; not under PSI nor EU b/c too much time has passed. Coby could testify to Steve's moaning & groaning as circum. evid. of pain & not as a declaration. FED admissible - under present pain & symptoms exception. Allows as state of mind b/c statements can be made to anyone, not just drs. k. WHAT ABOUT ID OF ABUSER If abuser was member of family, a dr. can testify b/c identity goes to treatment & to diagnosis. Usually if family member involved shows greater emotional damage. Only time id is relevant is if family member, even though dr. not psych. dr. treats whole body. So regular dr. could say "victim said to me her father abused her." L. ILLNESS Declarations of past illnesses FED ct - dr can testify for the truth of its content. NY - verbal test. of past pain can't be admitted unless written in doc. & admitted in via bus. rec. In 1892 the fact that some guy couldn't get it up (Ct found it was not caused by alcohol, lack of sleep, not short period of time in between-hey guys don't sweat it, you're really too young or maybe not, it could come at any time) was considered a past symptom & dr. not allowed to testify. NY - wanted to prove that X was in Chicago on 5/2/91. 1. ask X to testify - ok, not hearsay 2. X not available - told friend on 5/5 that he was in Chicago on 5/1. F testifies as to this statement. Is this Hearsay? yes, no exception applicable. 3. X says to friend 4/30, I'm going to Chicago on 5/1, F is allowed to testify as to statement. NY RULE - Past fact not admissible, eg., #2 - Future fact is admissible as long as not offered for truth & is offered for intention, eg. #3. Not hearsay, rather it's circumstantial evid. that X HYPO: 25 will do something in future. NY - not hearsay, just state of mind FED - it is hearsay but declaration of intention is an hearsay exception Mutual life v. Hillman F: Action ag. mutual. Hillman suing to get life ins. policy on Mr. Hillman. Ins. co says body isn't Hillman's, it's Walters. Ins. co wants to introduce letters written by Walters to family stating intention to leave state w/ Hillman on next day. Letters = circum. evid. that Walters left state & that he left w/ Hillman even though no evid. suggesting Hillman planned to leave. FED - declaration of intention of (i) speaker & (ii)of someone (HIllman). Ct said it was hearsay but admissible as cir. evid. Since it's admissible, can argue weight. Hillman seems to require unavailability. Q: does this apply to crim cases? US v. Pheaster - p. 793 F: Victim disappeared, never to be seen again - told friends he was meeting  to get drugs. "I am going to a meeting & I'm meeting Angelo()". "I'm going to a meeting" was admissible to prove V's intention of future acts-some evid. that V actually went. "I'm meeting Angelo" - admissible under Hillman doc. also evid. that Angelo was at meeting. Admissible no matter what penalty is, & irrelevant whether it's a crim. case or civil. Rule 803(3) - says nothing about crim or civil cases. says rule is used to show intentions of declarant, doesn't mention another. Advisory comm. note - follows Hillman; House report - limits Hillman, not used to show intention of another party. Ct ignores both stating ok, b/c fed rules not adopted yet. NY - if use declaration of A ag. B NY would probably require A's unavailability. FED - doesn't seem to require it. Alcalde - p. 795 declarant is unavailable  " told friend she was meeting w/   " turns up dead Ct used statements to (i)show intention of declarant that she was going & (ii) some evid. that  killed. NY 26 1. People v. Malizia - 1st Dep't Victim's brother was allowed to testify that victim told him that he was going to meet the  to consummate a drug deal. Statement thus included victim's intention & assessment of what  was going to do. H: app Div aff'd by NYCOA admitted brother's testimony to prove: that victim went to meet  b/c circumstances shewed it was a serious meeting & likely that  would show up b/c of money involved and Witnesses also saw  in car w/ victim. 2. LL says to friend "I'm going to meet Joe/ who I just evicted b/c I owe him property." LL found dead. Admissible to prove that LL went & that he met w/  & that b/c it was likely that  would go to get prop. & infers that  killed LL. 3. 1st Dep't "My old boyfriend-Bill is coming to see me" ends up dead. Arrest Bill. 1 Dep't rev'd conviction b/c lacked suff. evid. to show  would have been motivated to show up-compare w/ cash & property hypos. Shepard v. U.S. p. 799 F: Dying wife tells nurse that hubby poisoned her. Hubby on trial for murder. DA offers statement for truth of content so = hearsay. Trial ct - dying declaration Fed CT - not " " - she didn't know she was dying. NY - harder to admit dying declarations b/c must know you're dying, abandon all hope & then actually croak. 'se argued that she had often wanted to die, called Ws to testify how depressed she was-inference that she intended to kill herself & that she did. DA also tried to prove her state of mind - that she had a will to live which would normally be ok except that the DA failed to argue it in lower ct & was now barred from doing so on appeal and if allow anti-suicide statement will be prejudicial b/c will be used not only to rebut but to prove  did it. If evidence unfairly outweighs probative value a charge to jury is insufficient & thus should be excluded. m. PRIOR CONSISTENT STATEMENTS (PCS) 27 1. RULE - PCS are not admissible exceptions: RULE - if exception applies, PCSs will be admissible to estab. credibility & not admissible to prove statements are true. a. can be testified to if the door is opened by opposing party accusing W of recently fabricating test; or b. prompt complaint - usually in forcible rape cases. HYPO: W raped and runs to neighbors & cops. At trial she can testify that she immediately told others. It is admissible to show that victim is more likely telling the truth & not admissible as the truth. b. If no prompt complaint - can be used to hurt W's credibility. c. DA can use evid. of prompt complaint on direct to buttress credibility. HYPO: W says I was raped by 5 Met players, happened last year but I didn't tell anyone.  can use lack of prompt complaint as some evid. that she was lying. NY - RULE - although a victim will be allowed to testify that he/she made a prompt complaint, the V will not be allowed to testify as to the detailed description b/c it is not part of prompt complaint. RULE - detailed descriptions will be admissible to show that V: (i)she was able to observe situation accurately at time of crime; & (ii)current memory is accurate since restating what happened. Offered to buttress credibility & not for truth. Can be used on direct to establish credibility. the people W spoke to immediately after the crime may also testify. has been used in other violent crimes. n. 1. SPECIAL DECLARATIONS declarations of a testator RULE: revocation & non-revocation are admitted only when they are pure Res Gestae(RG) a. revocations: NY - will allow declarations of a revocation of a will but only if they are res gestae statements (words must accompany act). Words are admitted for the purpose of showing the intent which accompanied the act. 28 HYPOS: A = testator A tearing up will and saying "I'm revoking this will" admissible. A says "Last week I tore up my will" - inadmissible b/c not R.G. b. non-revocation: NY - will allow if RG statements. HYPOS I was in testators office & A picked up papers & tore up will accidentally. - admissible to show wasn't revoking will. c. lost wills: RULES NY & FED If A tells F everything in will F can't testify to prove the contents. May prove contents of a lost or destroyed will by calling: (i)2 or + credible witnesses who saw the will; or (ii) copy of will & 1 witness who saw will. d. evid. of duress, misrep., fraud: usually if a will made under duress - invalid. NY - admits but only if res gestae, must say while writing that A was under (i)duress, (ii)fraudulent or (iii)misrep. e. undue influence - suggestive means, using position of trust to get A to do something he didn't want to. NY - will take statements at anytime, no need for simultaneous acts. f. testamentary capacity statements that A had or lacked testamentary capacity may have been made at any time. Mental condition once shown is deemed to have existed in past & into future. HYPOS: arguably evid. of lack of capacity b/c if love someone won't leave them $0.00 Hubby says "I love wife & daughter." Month later writes will & leaves all to son. NY RULE may impeach validity of will on the grounds of both undue influence & lack of test. capacity - the declarations of A made b/f, at or aft. making of will, if not too remote, are admissible for the sole purpose of evidencing A's mental state at the time of the execution of the will. This declarations are not admissible as evid. as the truth of the facts. 29 g. former testimony: Civil actions - NY 1. witness who testified at 1st trial must be unavailable to testify at 2d; 2. must be substantially the same c/a &/or issues; 3. parties against whom the testimony is being offered at the 2d trial must be a party at both trials (if party against whom test. is offered dies it's ok that executor takes over b/c same party or predecessor in interest). How to prover former test. - NY - usually transcript &/or anyone who heard or remembers test & X-cross(even if have #1). Who may testify? judge, jury, parties, "Ct house buffs". HYPOS A v. B. A said that B ran him over. B says it's As fault. C = witness & says "I saw everything & it's As fault". A says that B's attorney made inflammatory summation. COA agreed & called for new trial. In new trial, C dead so B is in trouble. Wants to use prior testimony of C at 2d trialespecially since A cross-examined C. It is hearsay but admissible as former testimony. Test: 1. C is unavailable; 2. At second trial still trying to determine whose fault accident was-so same issue involved; 3. Evid. is being used against A & A was a party at 1st & 2d trial. If admitted must read both direct & cross of W will be read to jury. Q: must issues be exactly alike? Gains v. Thomas 1st c/a: C v. T. assuming C doesn't die & sues T. At trial T testifies & says it was C's fault. 2d trial: G v. C - Gains has been working on road near accident & his head was runned over & eye balls popped out but miraculously he didn't die. G thinks it was C's fault. T would be great for G but T dies. G wants transcript of T's testimony but C says it not the same parties so can't use former testimony exception & issue different since 1st case it was C's injuries now it's G's injuries. 1) admissible b/c C had fair opportunity to crossexamine T. 2)only need the party against whom former testimony is offered. 3)Issues don't have to be precisely the same as long as similar-here sufficient b/c focused on who H: 30 caused accident. FED - 804(b)(1) Lloyd v. American p. 872 1st Action: Coast Guard v. Lloyd - disciplinary action to take Lloyd's license away. L testified at hearing, refuting Alverez's testimony & then disappeared. 2d Action: Alverez v. Export - A said L provoked fight, Export wants to use L's transcript in 1st action b/c rebuts A's test. Export said ok that A didn't cross-examine b/c Coast Guard did. I: whether coast guard is predecessor in interest of A. H: Admitted testimony stating Coast Guard is a predecessor in interest of A. SHEA - wrong, 804(b)(1) doesn't apply b/c CG isn't a true predecessor in interest. NY - very strict - in order for former testimony to be admitted, need same party against whom test. is offered or must be a true predecessor interest. HYPO - O's red maserati hits P1 fence & hits P2. 1st action: P1 sues O for property damage. O claims not his car & calls W. W states that it was W's car & that W did it-fence & P2. 2d action: P2 v. O. W = dead. O wanted to read in prior testimony; P2 objects as hearsay. It's hearsay. O says admissible as former testimony. P2 says "no way Jose", b/c the evid. is being used against me & I wasn't a party in action 1 & didn't cross W. Compare Gains case where testimony of W was used by B against A in 1st action & by G against A in 2d action & A was a party in both actions. Any other way to admit? admissions? no b/c admissions only against parties & W not party. declaration ag. interest? yes. elements:W must be unavailable; statement must be ag. pecuniary interest. - Suppose A v. B. A testifies & hurts himself but wins anyway. Case was rev'd & in 2d trial B wants to read in A's test. that hurt A. Not former Testimony b/c declarant, A, is available; But may be used as an admission since A = a party & may be used as truth. - A v. B for b/k. Jury finds A a good witness & A wins but on appeal rev'd. 2d trial - B dies but executor continues. A about to testify & B objects stating inadmissible b/c of Dead man's statute. Elements: 1. does declarant have interest in outcome of 31 trial; 2. transaction in question involved dead person; 3. are you testifying against the executor of dead. A is incompetent as a W. However, A will still be permitted to read in former testimony of B b/c the issues are =; the parties are the same(executor = predecessor in interest of B) and A is unavailable w/in definition of former testimony exception b/c A has been declared incompetent. - Suppose B had testified. Can executor use B's former testimony against A in 2d trial? yes. B is unaval. b/c he is dead; is party against whom test. is offered against a party at 2d trial - yes A is a party & had opp't to cross; and no dead man stat. problem b/c A is alive. But once testimony of decedent is given into evid. as former test. this lifts the dead man stat. & A is no longer incompetent. - RULE - ANYONE CAN LIFT DEAD MAN'S STAT. - THAT MEANS A CAN INTRO. DECEDENT'S TESTIMONY. HYPO- A asks B's executor to put in B's former test. but B says "no dice." A wants to bring in B's test. & lift dead man's stat., so he could testify. NY - ok, no where does it say that only executor may intro. decedent's testimony. Crim. Cases - C.P.L. 670.10 Crim. C.P.L.R. 4517 Civil 1. can only use transcript to prove former testimony (compare w/ civil can use transcript or anyone's test.) 2. former test. must have occurred in: a. prior trial of same  on same charge; or b. hearing on felony complaint re: same  on same charge; or c. conditional examination of a W - ie., W prepared to testify ag.  at trial but gets very sick. DA gets order to take W's test. subject to X. Condition - if ok at time of trial must come to trial. NY & FED - must give  chance to cross-examine W Former test. - may be used for or ag. ; if former test. not taken at one of 3 places (see supra a-c) can't use; may be used by  or DA. HYPO:  charged w/ killing bookie. Decedent's wife sued for wrongful death for taking away "meal ticket". Pending 32 actions: P v.  - crim & W v.  - civil. A.Civil action comes up 1st: W test. that he saw  stab victim. Crim - DA can't use dead W's test. b/c taken at civil trial. B.Crim action 1st:  acquitted Civil - W is dead. test. of W can be used if:  was given opp't to cross-exam W offered ag. same party Fleury v. Edwards - NY civil case F: Accident b/t F in car #1 & E in car #2 owned by Mr. E. Motor vechile hearing to determine whether licenses should be taken away. F sues in civil case but dies, executor takes over. Can ct. use F's former test. at hearing. C/A is different b/c hearing based on whether licenses should be revoked & trial based on negligence-Issue is the same. Both parties are involved; both had chance to cross-examine F. NYCOA - former test. may be used no matter where it was taken as long as the issues are =, so hearings ok. People v. Harding p. 885 F: Cop steals stuff, admin. hearing held to determine if should be fired.. Store owner sues & test. that cop stole stuff. Cop fired & DA wants to prosecute. Store owner dead. Can transcript be read in? NYCOA no reading statute literally & b/c disciplinary hearings not included ct refused to admit. Case - NYCOA held that test. elicited at grand jury hearings is not in stat. & thus inadmissible. RULE: Former testimony requirement(670.10) can be waived in crim. action when  didn't cross W at grand jury (note:  nor attn. is permitted to attend grand jury hearing) & W is killed. NOTE: both NY & FED just discussing GJ but no suggestion that it's limited to GJ hearings; & hearing on admissibility is done outside of jury's presence. BOP on DA NY - DA must show by clear & convincing evid. to judge that  had knowledge of or had something to do w/ killing; FED - preponderance of the evid. HYPO: gov'ts W is member of gang & refuses protection. On way 33 to trial killed. DA now wants to use grand jury test. & it will incriminate . FED - Rules 803 & 804 allow for new hearsay exceptions if enough reliability & justice warrants it. 2d Cir. said that if can prove by perpond. of evid. that  killed or involved as if  waived his own rts to the confrontation clause. No need to make up new exception. NY - NY  would say can't b/c not w/i NY's 670.10 & no cross & it's hearsay. Need C & C evid. to admit. o. UNAVAILABILITY 1. unavailability = death, 5th amend., UTL, not within jurisdiction, sickness. 2. physical or mental incapability = unavailability. freaked out rape victim that refused to testify again is considered unaval. 3. "due diligence" is required in finding or getting W to appear b/f W will be declared unaval, e.g. if W is in jail in another jurisdiction have to at least try to get authorities to bring into your jurisdiction. 4. Following hearsay requires unaval. i. former test ii. dying declarations iii. pedigree(not always in fed ct.) iv. declarations ag. interest 5. Following doesn't require: i. conspirator ii. EU Ohio v. Roberts - p.888 F: Roberts charged w/ forgery of check. At preliminary hearing  called daughter of victim expecting her to say she had given him permission. She said opposite & then disappeared. At hearing  did not declare W hostile so couldn't lead W or cross. 's attn w/drew from case. At trial DA tried really hard to find her but impossible so wants to use her former test.  'se argues that 'se was not given opp't to cross since 's witness. H: admissible b/c she was clearly a hostile W &  failed to take opp't to cross by declaring her as such. Here ct looked to: Reliability - W was under oath; - X-exam was permitted by  at hearing; Unaval - applied due diligence to find but couldn't. Unnecessary dicta suggested that b/c of Confrontation eg. 34 clause, declarant must always be unaval. this caused problems for 8-10 yrs. but later in subsequent case, Sup. Ct said "no you stupids, no requirement of unaval. for conspirator & EU". p. ADMISSIONS it is a statement made by a party to an action that is contrary to their position at trial or which constitutes the acknowledgement of a relevant fact that can be used against that party. FED - says admissions aren't hearsay. NY - stupid, admissions are clearly hearsay but are admitted via an exception. b. admissions made by a party may be used if party dies & executor takes over. c. As opposed to declarations ag. interest - admissions do not have to hurt you when said as long as contrary to position at ct. eg., Suppose tax assessor asks A how much house is worth, knowing A just told B it was worth 200K but tells Tax man 20K. Can assessor prove 1st statement? Yes wasn't against interest at time but is now contrary to position at trial. d. confessions are glorified admissions only better. Confession = acknowledgment of crime. An admission is not an acknowledge guilt of crime, rather it acknowledges a relevant fact. Civil Bill v. Bureau p. 680 F: s' son was found dead at farm where he worked. Seems like suicide b/c noose around neck. Examiner asked dad if "he had any doubt that son committed suicide." - Dad shook head in negative manner. Ct - equivalent of nodding = "my son committed suicide". Does this = an admission against speaker? Yes, dad = party. Not declaration b/c dad = present. Ins. co. claims son committed suicide & exclusion in policy. However, father can always explain admission-explanations can only go to weight since already admitted. What evid.? physical evid = noose dad's nod Opinions can be admissions. Adopting other people's statements may = your admissions HYPO: Hired hand sees boy jump off, tells dad. When examiner questions dad, dad says "my son just committed suicide". Admissible? yes, even w/o personal knowledge, can adopt a. 35 prior hearsay - hired hand's statement. Same facts except dad said "hired hand told me . . . " Admissible? no b/c dad didn't adopt statement, just recounting what hired hand said. Can one make admissions by silence - a statement made which is likely to be wrong & you were silent, acts as if said "yes, the statement is true". eg., Wife also there during father's nod & also a partyadmission good against father & against wife b/c she was there & didn't negate statement/nodding just silent. U.S. v. McKeon - p. 689 F: Cops in Ireland opened a box & found potatoes & firearms. Box labeled from standard tools. US Customs found corp's address & spoke to owner of building - McKeon.  said he rented to J. Moran (Pat's IRA friends).  blamed J.M.. Evid. included shipping doc. - copied on copy machine w/ Mr. & Mrs. 's fingerprints. Experts sued doc. Xeroxed at Mrs. McKeon's bank. Chain of inferences - she worked in bank, thus she had access to machine, copies made in bank, she made them. 3 trials - in 2d trial 's attn. said in opening that experts will show that Ms. McKeon didn't copy documents. In 3d trial, 's attn. said she did make copies but as favor to J.M.. Conflicts in s theories. DA at 3d trial wants to use 2d trial opening of 's attn. as an admission based on theory of consciousness of guilt (cir. evid.). H: False exculpatory statement - statement which tends to exculpate you & turns out to be false, eg. consciousness of guilt = nature of admission but really a false exculpatory statement & is cir. evid.?????????????  argued that "my lawyer said it, not me" FED - 801(d)(2)(d) - statement by party's agent concerning a matter w/i scope of agency is not hearsay. Here, attn = your agent &  hired attn. Cts are troubled b/c it's like using attn ag. clients. Allow under rare conditions: (1)statement of fact made by attn; (2)clear inconsistency b/t 2 statements. RULE - Admissions are admissible but usually just some evid. of truth, not conclusive. Declarant/ can still explain & argue weight. Types of admissions: a. formal - conclusive 36 b. informal - some evid. RULE - Formal judicial admissions (FJA) made in course of judicial proceedings or made during preparation of judicial proceedings are conclusive, which means  can't argue weight. Civil Case - eg., parties file & serve pleadings on each other.  serves complaint,  files ans denying allegations.  states "I own red car but deny that I hit you." Admission = "I own red car" & thus conclusive so  can't say later say he didn't own car. RULE - anything stated in complaint, allegation, ans. = admission. May amend ans. w/i stated statutory dates. So if amend. pleadings to state he didn't own car, 1st ans. would become an informal judicial admission(IJA), & so still some evid. by which jury could find that  did actually own car. RULE - if  fails to deny or admit something in pleadings = FJA but if file an amend. ans & denys or admits something, SILENCE IS KNOCKED OUT. IJA - statements taken at - depositions; on stand etc. weight up to jury. FJA - eg., stipulations Crim. Cases FJA - a. stipulations b. plea of guilty - no jury. Very conclusive when  pleads guilty b/c = FJA. In rare case, plea may be w/drawn if  is shown to lack capacity, or under duress. CASE - A charged w/ murder & wants to plead G. J explains consequences to A & asks if "A killed w/ intent", A says "no, I'm innocent but I will surely get convicted & if I do I get death penalty but if I plead guilty I can only get life." Trial ct made  go to trial. On appeal, Sup. Ct. rev'd holding that due process was violated & that must let A plead guilt even if claims innocent b/c giving guilty party better choice. FED CT - nolo contendere - "I will not contend charges" considered a plea of G in crim case. Plea of nolo contendere may not be used in a later civil case ag. . NY does not recognize the nolo contendere plea. NY -  committed crime & pleads g but w/draws plea b/f sentencing. Rare. DA decides he'll use plea as some evid. 37 RULE: NY + FED + MAJ. - can never use plea of g once w/drawn. DA wanted to use J's question & 's ans. - "did you kill" "no" & then withdraws plea. RULE: NY + FED + MAJ STATEMENTS MADE IN CONNECTION W/ PLEA CAN'T BE USED AT ALL treated as if plea never happened. NY - man charged w/ murder 2, Attn says DA has great case & you should plea to lesser charge. DA rejects b/c of strong case, wants to use admission made during plea negotiations,  had told DA that "he hit victim but no intent to kill". NY Rule - will allow, no immunity in plea negotiations. Good against  as an admission for truth. NY Civil & Crim Cases - Anything stated at civil settlement discussions may be used later at trial as admissions. Should safeguard against this by stipulating that: these statements are hypothetical or phrase hypothetically; or state that any statements are w/o prejudice. FED - NO STATEMENTS MADE AT NEGOTIATIONS OR SETTLEMENTS ARE ADMISSIBLE. RD: Fed ct wants to promote settlement. NY + FED - an offer of settlement does not = an admission of guilty & will not be admissible. eg. "I will settle for 100K" - inadmissible "I went thru red light I'll settle" - admissible eg. A & B hit by C. A & C settle. At subsequent trial B v. C - B wants to intro. evid. of C's settlement to prove C liable or why else would he have settled. FED & NY C's settlement not an admission b/c just b/c settled doesn't mean he's guilty. RULE - if make a FJA in case #1 against A, B can use FJA from 1st action against A in 2d action but no longer a FJA, it's now an IJA & thus not conclusive. ADMISSIONS BY SILENCE - ok to use in both Crim & Civil a. Crim. - Uncle states to  "you shot V last night" &  remains silent. At trial uncle testifies ag. .  permitted to explain silence but (1) silence is admissible (2) weight of each determined by jury b. Cops arrest Steve for X's murder, they tell S "you S killed X last night didn't you".  is silent. Miranda Rights - have a rt to remain silent so can't be used as an admission for truth b/c cops accusing . NY - in presence of police questioning, under arrest or not, whether given miranda warnings or not - SILENCE CAN'T BE USED 38 AS AN ADMISSION FED - if you've been given Miranda rts, silence can't be used against you as an admission nor can it be used to impeach you. But if no miranda given, silence can't be used as an admission against you, but if  takes stand & pleads innocent, silence can be used to impeach credibility. HYPO: A arrested by FBI & charges A w/ "robbery of the day b/f" A doesn't respond. 6 mos. later at trial, evid offered, but can't offer silence as evid. in chief (admission).  takes stand & says "I didn't rob bank, I was w/ Cardinal O'Connor" Cardinal dies. DA says "A why didn't you tell FBI" DA clearly trying to use A's silence to impeach. FED ct will allow use of silence to impeach. NY - silence whether miranda given or not: (1) can't be used as evid. in chief (same as fed); (2) can't be used to impeach (see infra Rothchild exception). Miranda Elements: MUST HAVE ALL 3 1.  in custody; 2.  subject to interrogation; 3. by agents of law enforcement. if vol. go to precient, not considered custody. custody - when reasonable man would believe that his freedom of motion had been significantly impaired. Cops arrest  at precinct etc., forget to give miranda. "Did you kill X last night?"  "yes". orally, written, videos. Can any evid. used? no b/c no miranda.  wants to take std at trial & says "I didn't kill X". DA now wants to admit statements stating that he's trying to impeach  not for truth. US Sup Ct - admissible since non-miranda case can be used to impeach  who take stand. FNS - if your given rights & speak anyway, admissible unless beaten. -miranda only applies to cop situations so anything you tell your friend, etc., may be admissible. Suppose they gave Miranda-but when  asked for his attn & cops refused & continued questioning - anything after that point = violation & thus inadmissible. If  later takes stand, DA can't use statements after violation to impeach credibility or as an admission b/c this would give cops a reward. FED & NY If coercion used to elicit testimony cts will not allow to impeach or as admission. 39 Rothchild is exception to NY rule that silence can't be used to impeach. Limited to this case. F: R = cop. goes to bar & wants bar owner to pay or he'd give tickets. Owner calls DA & tells him, cop set-up & caught. Cop says nothing when arrested. At trial evid. admitted, taped conversation, marked $.  argues owner wanted to bribe me & I was setting him up. DA "well did you tell superiors, others?" "No". NYCOA said silence in this case is admissible to impeach b/c cop had affirmative duty to speak due to nature of job & didn't. Admission by conduct Rules NY - Silence can't be used as an admission of truth or to impeach exception: Rothchild police case & only allowed to impeach credibility. NY - NYCOA - Smile same as silence. F:  smiled to DA's accusations of crime. DA wanted to admit evid. of smile. H: not allowed NY - NYCOA - inaction in presence of police isn't admissible as an admission. F: A in bar near B dying on floor. Cops think it's A, everyone is silent when asked by cops. A just stood there, didn't help. DA wanted admitted to show A was acting with a depraved mind. H: not admissible. NY - Actions - form of flight is weak but admissible. ADMISSIONS BY SPECIAL RELATIONSHIPS 1. Ptnership - all ptners are agents for each other when speaking of ptnership matters. HYPO: A, B & C are ptners. Tell A to negotiate for a new library. Books delivered but never paid. Seller sues & B&C say they pd & A admission that he didn't pay doesn't bind us. H: A binds B & C due to ptnership relationship. 2. Principal & surety surety makes sure "something will happen"; principle = debtor. F: debtor goes to buy car, wants a maserati that's 90K. Car dealer wants cash but work out deal where debtor brings in surety-"I'll pay if D doesn't". C gives Debtor car. Debtor makes pay'ts for a while & stops, C said "D admitted 40 that he stopped pay'ts" wants this admitted as an admission against surety. S says we didn't say that. H: statements by debtor during the existing relationship are admissible against surety for truth of statements. Prior crim conviction is admissible in subsequent civil suit - ie. a conviction of rape may be used later in civil suit & conviction will be conclusive evid. that  committed crime. NY - Letendre v. Hartford Ins. - NYCOA's new exception to hearsay. F: L hires F to wk while L goes away but doesn't trust F so gets  as a surety. When L returns he finds 5k missing & wants  to pay. F admits to  that he stole $ & writes it. L fires F & sues . L wants to introduce writing. F is available so not declaration ag. interest. COA allows written statement even if aval. & even if writing after relationship. ?????????????????????? What if F unava. admission-no b/c written statement written after fired so no relationship. Declaration ag. penal interest - yes. Doesn't care whether a relationship exists when declaration made. Admissible ag. surety co. Once surety loses, would sue ee for indemnification but wouldn't surety's statements that ee didn't steal hurt their position at 2d trial - yes but at 2d trial admissions wouldn't be conclusive. HYPOS: A hires chauffeur. A tells C to pick up his wife, on way, C goes thru red light & kills F. When questioned, C admits to going thru red light. F's estate sues A. may cop test. as to C's statements. 'se: objects as hearsay Ct: rt but qualifies as an admission. 'se: I didn't sy it & I'm only party : F is your driver/agent & give rt to speak. 'se: F not hired to speak, just to act. NY - hired to drive & not to speak unless give F auth. to speak. Can't imply auth to speak. NY - some agents are impliedly allowed to speak on b/half of boss, eg., mger of plant; high ranking ee; ee has major branch of business under control. c. Low level agents Case - Wife owns office building, H = janitor of W 41 building. H tells delivery guy to put supplies in hall, dark & B falls & sues W. H had told X that he directed boxes to be put there.  wants to offer statement.  objects b/c H = low level ee, no auth to speak. CT: but H is also 's husband so not admissible against A.  calls H to stand & finds out that H isn't just janitor instead more like general manager. CT admissible b/c high enough ee. Case - Janitor left brooms in hall & X fell & now X sued owner & to use J's statements against owner. J disappeared. Ok b/c = declarations against pecuniary interest. He could have been sued. Doesn't matter that J is = low level ee. EE's position matters if trying to admit statements based on agency theory but here admission based on declaration against interest so not a requirement that declarant = high level ee. Mahlandt p. 699 F: Bitch-wolf case (a case all about me). 3yr. old walking across street & supposedly attacked by Sophie who was considered tame. Wolf standing over child, howling but no one wold bite child. Mr. Poo, works at corp. which owns wolf, his son claimed that wolf bit child.  sued both corp. & Poo. 3 statements which were allegedly admissions: 1. Poo's note to boss stating "Sophie bit a child". NY - Although hearsay, NY would allow statement to be admitted against Poo to prove child was bitten by wold. NY - would be an example of Poo adopting son's out-of-ct statement as his own so admissible. If Poo said "my son said Sophie bit child" would not have been deemed adopted & thus inadmissible. FED - admissible as an admission - NOTE: fed. cts refuse to call admissions hearsay. 2. Poo told boss orally that Sophie bit child. NY & FED - statement would be admissible against Poo b/c he's a party. What about Corp's L? FED - 801(d)(2)(D) - would be admissible b/c in fed. ct, statements by an ee concerning matters w/i scope of employment, stated **while still an ee** are not hearsay & admissible as admissions. NY - only high officials or one specifically auth. by corp to speak. So in NY, statements would not be admissible against corp. only Poo. 3. Statements made by bd. in meeting. H: admissible ag. Corp. but not against Poo. 42 NY - allowed ag. corp. What if Poo had seen Sophie bit child. would corp be held to statement? NO, not an EU; NY - will allow adoption of statement against adopter will not allow adopter to impute adoption onto corp. where adopter/ee had no duty to speak. FED - will allow adoption of statement by ee & impute adoption on ee & corp. CASE - F: accident in hospital & patient injured by B. A nurse is told to find out what happened. N interviews A & reports to boss that B should have been supervised, wasn't & now another hurt. H: NYCOA said N had auth. to speak but not to adopt hearsay of others. Different if she had seen incident herself. exception - if N had been told to find out & tell corp what happened & tell 3r/parties, eg. press, public, what happened then admissible against hospital. As if given auth. to adopt hearsay. NY - ee granted auth. only to work, eg. drive HYPO: Truck driver (td) hits V's car. When not excited, td admits to cop that he had fallen asleep at wheel.  sues td & corp. Statement will be admissible against TD but not against corp. b/c td = low level ee, auth to drive, not speak. any other exceptions? declarations ag. interest? no b/c td is available. EU? no, td was calm. NOTE: if in FED ct. - statement would have been admissible ag. corp. b/c of 801(d)(2)(d). Admissible for truth ag. td & corp. since td was still working for corp & thus w/i scope of employment. NY - min. d. FED - maj. Ptners 1. agents for each other when act for ptnership. Ptners are co-= agents & not ees, they are authorized to act & speak as long as it relates to ptnership business. see supra 2. ptners in crime - group decides to buy & sell coke. Co-conspirators agree to commit crime-sale & distribution. At wk, whatever A says re: dist, obtaining coke etc., is admissible against A & all other ptners under Agency of conspirators. FED - 801(d)(2)(e) - not hearsay, it's an admission. A statement by co-conspirator during course & furtherance of conspiracy is admissible against all conspirators. 43 NY - admissible under crim. agency theory. eg., B walks into dealership to buy car. B says "I'm buying car for C". B agrees to pay 82K & signs, A for C. Pay't upon delivery next day. Price  & C doesn't want to pay, saying B isn't my agent. At trial, dealer wants statements of A to be binding on B. Offering party must prove it's admissible by preponderance of evid. Dealer must prove: 1. agency exists 2. A is in fact B's agent Out of ct. statement by B can be admissible but only if B is really the agent & can't use out-of-ct statement to prove agency, this would be bootstrapping (no foundation for itself). NY -Conspiracy is similar. must prove: 1. conspiracy exists-can't use out-of-ct statements made by conspirators to prove conspiracy exists. Must have outside evid. to prove conspiracy existed; 2. then can admit ocs for truth as an admission. FED Bourjaily p. 705 - changed FED law which was like NY F:  charged w/ conspiracy to sell coke. Informant involved-Mr. Greathouse. G sets up sale w/ L. L says I have to speak to a friend b/f deal. L calls G & says ok, tonight at 6pm, my friend will be waiting in another car w/ cash. At meeting, cops arrest everyone, including Bourjaily who was waiting in car. 'se - I don't know what you're talking about, I was just sitting in car. What would be evid. that  = conspirator? phone conversations incriminating L & -b/c L said that a friend would be in car &  was. that  present in car  argued that it was hearsay & that DA first had to prove a conspiracy existed b/f co-conspirator exception could be used & that DA couldn't use ocs to prove conspiracy. H: US Sup CT - Fed ct. can now use ocs to prove as some evid. conspiracy b/c Fed. Rules 104(a) states that fed. cts not bound by rules of evid. unless there is a privilege. Not sure if ocs would be sufficient statement - remember here there were other circumstances, eg.  was in car & on scene. 44 CASE - Gotti F: Conspiracy to murder gang members. Gotti picks out who is to be "whacked", tells Gravano to do it. Gravano needs help so asks Stevie bigga butta. Bigga butta says "I got too much eating to do, anyway, Yankees are losin' so I gotta go bust some heads." Both G & G are indicted for murder. Stevie gets hauled into ct (literally, had too much for lunch) & testifies as to his conversation w/ Gravano. 1. it's an admission & thus admissible as against Gravano. 2. NY it could be used against Gotti if DA can prove a conspiracy existed-need add'l, & totally independent evid. FED - some evid. eg., "John & I will kill B" is sufficient. In concurring opinion - J. Stevens said that need more that just ocs to lay foundation for it's own admissibility. NY & FED - judge determines if conspiracy exists in order to determine whether or not to allow the ocs against coconspirators. This is determined outside of presence of jury. Must be proven by a preponderance of evid. Suppose Gravano arrested & admits that "John & I agreed to kill A, B, C." Even assuming independent evidence present = conspiracy existed, would statements be admissible against (i) Gravano? yes, he said it, he's a party. (ii) Gotti? no b/c when statement made, Granvano was no longer in the furtherance of conspiracy. RULE: Statements must be made during & in furtherance of conspiracy. Once arrested no longer w/i conspiracy so not w/i conspirator exceptions (not sure if this applies in NY too). US Sup Ct - irrelevant whether or not declarant is unavailable. NY - During Ohio v. Roberts - said can use conspirator statement only if unavailable. Even though US Sup. Ct said unava. isn't necessary NYCOA hasn't readdressed so NY law still requires unavailability when using declarant's of conspirator. NOTE: when one testifies there's no hearsay problem q. PUBLIC RECORDS a. intro CRIM: Records of conviction of a crim. CIVIL: plea of guilty & jury convictions are conclusive evid. eg. A kills B, B's wife sues for wrongful death. At civil trial  claims that he didn't do it, but  wants to admit guilty conviction. 'se argued that it was hearsay buy 45  stated that it was admissible under the official document exception & that it is conclusive so  can't even offer evid. to contrary. NY Rule - record of conviction only admissible against party convicted & are conclusory. Can be either a misdemeanor or felony. -will not allow A's conviction of guilt to be used against B. FED Rule - such rec'd admitted only if a. crime = felony b. but also admissible against other people. c. Conclusive if used against person convicted & some evid. against others. Rozier v. Ford Motor Co. F:  = widow of decedent. 's husband was in car driven by Frank when car hit by Wilson's car who was speeding. Gas tank exploded &  sued Ford design defect. Wilson pleaded guilty to crim. charges. In civil action  doesn't want W's conviction admitted against ford. Ford wants in to show W caused accident. H: trial ct admitted fed ct - can use another's conviction. NY - inadmissible. b. Public officers w/ duty to make report other than police Has duty to make investigation & file reports, admissible for truth against anyone. Criminal - also admissible except if prepared by cops. NY - findings of coroner reports & medical examiners - public officials. CIVIL - makes findings, eg. overdose, & conclusions & both admissible. CRIM - autopsy finds puncture wound of certain dimensions, etc., Conclusions: death caused by sharp instrument. At trial examiner is unava. but have rec'ds. Admissible? NY the findings are admissible but opinion/conclusions aren't. DA must introduce rec'd & then call another expert to read findings & draw separate conclusions. NY - need live witnesses. HYPO A convicted of killing X. X's widow sues for W-death. Conviction admissible and conclusive that A killed K. 46 CIVIL: Collateral Estoppel-conclusive in subsequent civil action. (i) a found negligence in #1, in #2 plaintiff can use it as conclusive of A's negligence. Administrative Proceedings: NO HEARSAY RULES. If found L in an admin. proceeding, may be used later. Collateral estoppel applies. eg., cop thrown off force hearing may be used by person Conclusive against cop. for stealing. Finds at robbed at civil trial. NO collateral estoppel in unemployment compensation hearings. Traffic infractions HYPOS: A pleads guilty of going thru red light. When sued for personal injuries, plea of guilty will be admissible as an admission-it's an IJA & is some evid. that A went thru light. Suppose A pleads not guilty & found guilty at trial. Sued civilly for injuring B, CONVICTION AT TRAFFIC CT IS NOT ADMISSIBLE b/c notion that such trials aren't tried w/ suff. care & effort. NEVER PLEAD GUILTY TO ANYTHING fight - A pushed by B & A charged B with harassment.  pleaded not guilty, convicted & later sued for injuries. A wanted to use conviction as some evid. that B pushed her. Ct said no collateral estoppel effect b/c it's a petty offense, like traffic convictions. FNS: acquittals can't be used in subsequent civil cases public rec'd can't be used as evid. of no-fault civil fault can't be used in subsequent crim. case a. NY - CRIM: r. AUTHENTICATION must prove authentication to judge by clear & convincing evid. - CIVIL: must prove to judge by a preponderance b. FED Rule 901 - must authenticate by introducing some evid. supporting a finding that the matter in question is what you say it is. Jury determines whether evid. is relevant & judge determines if suff. so that a rational jury could 47 conclude that it is what the person claims it is by a preponderance. But if insuff. must lk at examples of what constitutes authentication - 901 (b)(1)testimony of witness w/ knowledge. eg., A says he saw  shoot B & drop gun. A says he picked up gun & gave to cops, he knows its the same gun b/c he signed it b/f giving to cops. (b)(8)Ancient documents - evid. that a doc. in (i)any form which doesn't create suspicion; (ii)was found in a place where it would likely be; (iii)has been in existence for 20 yrs + at time offered. In fed ct, these 3 elements would be suff. to establish document's authenticity. (iv)must also be relevant If doc. isn't 20 yrs old can still admit if - call witness who saw person write letter or handwriting analysis. NY same but must be 30 yrs old. eg., A wrote B letter & found in B's file, 20 yrs old. admissible. Once establish ancient doc: 1. doc. deemed authentic 2. if want to admit for truth a. FED - 803 (16) would allow for truth eg. A wants to admit into evid. & read to jury. B objects. A says it's authentic, B ok but now you're admitting it for truth so it's hearsay. A looks to 803(16), it's an exception whether or not declarant is available. b. NY - not sure if admissible for truth. Just b/c old doesn't mean it's true, but more likely that it is. c. Once authentic & admissible for truth, is it conclusive upon jury? no it's just some evid. & would argue weight. 902 Self-authentication - no foundation required & admissible for truth under 803. eg., CIVIL - essential for  to establish price of AT&T stock. 's counsel uses NYTimes to show price. According to 902(6)(b) states that newspapers, periodicals, printed materials purporting to be " " " self authenticate & thus no foundation required & are admissible for their truth under 803(17)- "You can throw on judge's desk". (includes mkt reports, d. 48 tabulations) NY same rule eg., my client libeled by Time Mag. "voted embezzler of the year". Attn didn't call experts etc. just introduced & stated it was authentic.  objected as hearsay;  said not offered for truth of contents, in fact I'm proving my client didn't embezzle.  claims mag. = forgery but looks & smells like a time mag so is a time mag. A eating green giant peas & bit into piece of glass & sues green giant. A is person w/ knowledge of facts & offers can of peas.  objects as hearsay,  says not hearsay, just trying to show trademark, origin under 902(7) (inscriptions, labels). H: Circumstantial evid. ok to show it came from green giant, not hearsay. NY same rule s. OPINION a. CL - party couldn't be a witness b/c interested. b. General rule - Lay witnesses could only testify to facts. FED - 602 - adopts but requires that the witness had personal knowledge of matter. NY c. Cts have deemed the following statements of lay persons as OPINIONS BUT ADMISSIBLE w/o foundation: being drunk(at spring fling, taking a bath) presence of whiskey type of motor vehicle ID from picture apparent age Some foundation must be laid: a. NY & FED person testifying must be able to state that he has ridden in a car & observed the speedometer. Once this foundation laid, can testify as to speed of car. but in NY must be a driver of a motorcycle in order to testify as to speed of motorcycle. exception: If trying to establish the speed of Patrick J. Moran riding his motorcycle, one may testify as long as that person has ridden a tricycle. 49 b. ID - one person is sufficient to identify anther. c. Voice Id - eg., A hears thru door voice saying "i'm going to kill you". A enters room but  gone. RULE: W can testify as to the voice but needs: 1. saw him face-to-face & heard him speak on a prior occasion; or 2. circumstantially a. fed - thru self-ID b. NY self-id = insuff. but need familiarity w/ subject. #1. NOTE: even if A didn't recognize the voice at first & 1 wk later at a gas station meets  & speaks to him & recognizes voice, can go to cops, same if didn't hear until court date. Admissible b/c cts don't care how or when knowledge acquired. Ct can order a  to repeat the words heard by W. Allowed b/c probable cause present & reasonable to compel voice examples. In order to avoid suggestive recognition - some cts. will create a "line-up" situation where W must pick out the voice heard. eg. NYCOA - ct refused to admit evid. of W picking 's voice b/c picked voice right after cops told W "we have your man". Ct held improper, too suggestive, not admissible even if recognized again at trial. #2. what if didn't see in person, eg. phone conversations. a. FED - authenticated w/o voice recognition - cir. evid eg. A lks up X's # & calls & asks for X, X answers & says "this is X & I don't know who you are but I just killed" "This is X" = self-id & suff. in fed. ct. b. NY - same conversation is insuff. cir. evid., X must also indicate familiarity w/ matter/incident to connect him to voice id. eg. A lks up XYZ corp's # to tell about a nondelivery & calls X answers w/ XYZ corp. A tells about non-delivery X we shipped last week At trial X says never had K to ship but A says "yes we did, I even spoke to you on phone about it" never had conversation & A can't recognize voice. A says it doesn't matter that I can't recognize voice b/c X answered phone w/ "XYZ & was familiar w/ ship't. X 50 argued that wasn't familiarity b/c person on phone said goods shipped & really weren't. H: NY ct adopted X's version. Speedy lines case F:  leaves knife at scene, police call his brother &  wasn't home.  calls cops back & when told that he left knife at scene,  answers "oh no". Later picked up by cops(guess he wasn't so speedy). Cop couldn't recognize voice but NY said ok b/c cop called him at home, asked for ,  not home but called back etc. 'se argues that it wasn't an admission b/c could have meant "not me". Goes to jury to determine if = admission. Opinions as to fault eg., lay person says accident was fault of  in red car. H: too much of an opinion. W can't determine fault. Could expert testify as to 's fault? No could only say that "in my opinion  veered to rt going into other lane". (different if W said "A told me he went into other lane" - admission). d. In person Ids out-of-ct ids can be used as evid. in chief, ie., lineup, show-up, as further evid. in ct. for jury to hear & use to decide ID. Problem: what if line-up = improper?  is 6'4" & everyone else is Rich's height. Victim said  was tall so picked out tallest - suggestive. Consequence of suggestive line-up: a. line-up could be suppressed b. any in ct. id may also be suppressed b/c not id'ing robber, id'ing guy incline up. ways out: a. DA would have to show by C & C evid. that there was an independent basis for id., eg., V had known  for long time & thus id'ing on long-time relationship & not line-up. Show-ups - cops only show victim one person shortly after crime. Not all will be suppressed, if close to scene of crime, w/i short period of time, not necessarily suggestive if these factors present. If done at preceict probably will deem too suggestive. e. photos as basis of id. U.S. v. Robinson F: 3 armed men robbed bank & surveillance camera filmed 51 all. 'se wrong guy, I wasn't there. Who can id ? Tellerwould lk at video & say that's what happened, surveillance camera, if at bank during robbery & later see picture. Ok even if seems like opinion b/c identifier had seen  b/f or aft. incident.  wanted to bring in 3r/p to say it wasn't . 3r/p wasn't a witness to robbery. Rather he'd testify that he'd seen picture of  & this man isn't man in picture. NY - would allow. 52