Trial Handbook Sample by qwc99136

VIEWS: 120 PAGES: 50

									Rule 804                                      Trial Handbook


Rule 804(b)(1)—Prior Testimony Exception
                                                          The fact that prior testimony meets the criteria set
Established Doctrine                                      by this rule and hence is not excludable on the
                                                          ground that it is hearsay does not, however, make
                                                          it admissible. The court retains its normal discretion
Rule 804(b)(1) permits former testimony elicited in       to exclude the evidence on other grounds such as
the course of the same or another proceeding to be        lack of relevance, improper purpose, or undue
admitted, if the party against whom the testimony         prejudice. Jian v. Canarozzi, 142 F.3d 83 (2d Cir.
is now offered had an opportunity and similar             1998).
motive to develop the testimony by direct, cross, or
redirect examination. However, such testimony is          Specific Applications
excluded as non-hearsay only if the declarant is               Each element of Rule 804(b)(1) must be satis-
unavailable as a witness. United States v. Kennard,       fied in order for the former testimony of an
472 F.3d 851 (11th Cir. 2006); Stanley Martin             unavailable witness to be deemed admissible,
Cos. v. Universal Forest Prods. Shoffner, LLC, 396        and the proponent of the evidence bears the bur-
F. Supp. 2d 606 (D. Md. 2005); Kamara v. United           den of establishing that all of the elements have
States, 2005 U.S. Dist. LEXIS 20651 (S.D.N.Y.             been satisfied. United States v. Burge, 2009 U.S.
2005); United States v. Garcia, 117 F. App’x 162          Dist. LEXIS 34667 (N.D. Ill. 2009).
(2d Cir. 2004); United States v. McElhiney, 85 F.              Rule 804(b)(1) requires that a defendant have
App’x 112 (10th Cir. 2003); Budden v. United              an opportunity for cross-examination. Mere
States, 748 F. Supp. 1374 (D. Neb. 1990).                 “naked opportunity” to cross-examine is not
                                                          enough; there must also be a perceived real need
For purposes of Rule 804(b)(1), “similar motive”          or incentive to thoroughly cross-examine at the
does not mean “identical motive.” When consider-          time the former testimony was given. United
ing whether the similar motive requirement has            States v. Burge, 2009 U.S. Dist. LEXIS 34667 (N.D.
been met, courts look to the similarity of issues and     Ill. 2009).
the purpose for which testimony was given. Circum-             The opportunity for cross-examination is gen-
stances or factors that influence motive to develop       erally satisfied for purposes of Rule 804 when the
testimony include (1) the type of proceeding in           defense is given a full and fair opportunity to
which the testimony was given, (2) trial strategy, (3)    probe and expose the infirmities of testimony
the potential penalties or financial stakes, and (4)      through cross-examination, thereby calling to the
the number of issues and parties. United States v.        attention of the factfinder the reasons for giving
McElhiney, 85 F. App’x 112 (10th Cir. 2003);              scant weight to the witness’s testimony. Ordi-
United States v. Reed, 227 F.3d 763 (7th Cir. 2000).      narily, the fact that the opponent of the former testi-
                                                          mony actually undertook an extensive cross-
Rule 804(b)(1) indicates that if the opportunity to       examination of the unavailable witness when that
cross-examine is lacking, the prior testimony must        testimony was given would foreclose any need for
be excluded. However, the rule does not require           a court to continue the Rule 804 “opportunity”
that the opposing party actually cross-examine the        inquiry. United States v. Burge, 2009 U.S. Dist.
witness; it is instead enough that the opposing           LEXIS 34667 (N.D. Ill. 2009).
party be given a meaningful opportunity to cross-              The question under Rule 804(b)(1) is whether
examine if it wishes to do so. The opportunity-to-        the opponent of the former testimony of an unavail-
cross-examine requirement is generally satisfied          able witness had the opportunity during cross-
when the defense is given a full and fair opportu-        examination to fully develop such testimony on rel-
nity to probe and expose the infirmities of testi-        evant issues. The rule does not require that an
mony through cross-examination, thereby calling           opportunity be had to fully develop testimony on
to the attention of the factfinder the reasons for giv-   collateral matters. United States v. Burge, 2009
ing scant weight to the witness’s testimony. Anto-        U.S. Dist. LEXIS 34667 (N.D. Ill. 2009).
nucci v. Morgan Stanley Dean Witter & Co., 2005                Rule 804(b)(1) requires that the court determine
U.S. Dist. LEXIS 1621 (S.D.N.Y. 2005); United             whether the opponent of the former testimony of an
States v. Garcia, 117 F. App’x 162 (2d Cir. 2004);        unavailable witness had a similar motive in devel-
A.I.A. Holdings, S.A. v. Lehman Bros., Inc., 2002         oping the testimony. In determining whether a
U.S. Dist. LEXIS 22675 (S.D.N.Y. 2002).                   party had such a motive, a court must evaluate not
                                                          only the similarity of the issues, but also the pur-
                                                          pose for which the testimony was given. Factors to
                                                          be considered include (1) the type of proceeding in



                                                    CA–694
                                             Case Authority                                       Rule 804


which the testimony was given, (2) trial strategy, (3)    required under Rule 403. United States v. Carneg-
the potential penalties or financial stakes, and (4)      lia, 256 F.R.D. 366 (E.D.N.Y. 2009).
the number of issues and parties. United States v.            Under Rule 804(b)(1), “similar motive” does
Burge, 2009 U.S. Dist. LEXIS 34667 (N.D. Ill.             not mean “identical motive.” Determining whether
2009).                                                    a motive is sufficiently similar is a factual inquiry,
     Rule 804(b)(1) does not prohibit the admission       depending in part on the similarity of the underly-
of testimony from a prior civil proceeding in a           ing issues and on the context. United States v.
later-filed criminal case where the motive under-         Carneglia, 256 F.R.D. 366 (E.D.N.Y. 2009).
lying the cross-examination is similar. United                Prior trial or preliminary hearing testimony is
States v. Burge, 2009 U.S. Dist. LEXIS 34667 (N.D.        admissible under Rule 804(b)(1) only if the defen-
Ill. 2009).                                               dant had an adequate opportunity to cross-exam-
     The requirement that the party had an opportu-       ine. An adequate opportunity to cross-examine
nity to develop former testimony of an unavailable        means the defense must be given a full and fair
witness for purposes of Rule 804(b)(1) is generally       opportunity to probe and expose infirmities in the
satisfied when the defense was given a full and fair      testimony through cross-examination, thereby
opportunity to probe and expose the infirmities of        calling to the attention of the factfinder the rea-
the testimony through cross-examination. United           sons for giving scant weight to the witness’s testi-
States v. Carneglia, 256 F.R.D. 366 (E.D.N.Y.             mony. United States v. Fitzgerald, 2009 U.S. Dist.
2009).                                                    LEXIS 15656 (S.D. Cal. 2009).
     A motive to develop testimony is “sufficiently           The former testimony of an unavailable witness
similar” for purposes of Rule 804(b)(1) when the          is not admissible under Rule 804(b)(1) unless the
party now opposing the testimony would have had,          party against whom the testimony is offered or, in a
at the time the testimony was given, an interest of       civil action or proceeding, a predecessor in inter-
substantially similar intensity to prove (or disprove)    est had an opportunity and similar motive to
the same side of a substantially similar issue now        develop the testimony by direct, cross-, or redirect
before the court. The nature of the two proceedings       examination. Under this rule, refusal to answer per-
and, to a lesser extent, the cross-examination at the     tinent questions on cross-examination bars the use
prior proceeding are relevant though not conclu-          of the witness’s direct testimony. SEC v. Ficken, 546
sive on the ultimate issue of similarity of motive.       F.3d 45 (1st Cir. 2008).
United States v. Carneglia, 256 F.R.D. 366                    In a bankruptcy proceeding in which a debtor
(E.D.N.Y. 2009).                                          becomes unavailable, the transcript of the debtor’s
     The rigor of a preliminary hearing’s cross-exam-     meeting with creditors conducted under 11 U.S.C.
ination may support a finding of a “sufficiently sim-     § 341 is not admissible as “former testimony,” as
ilar” motive to what one would expect at a                the debtor has no opportunity to develop such a
subsequent criminal trial, for purposes of Rule           meeting by direct or cross-examination. Salven v.
804(b)(1). United States v. Carneglia, 256 F.R.D.         Mendez (In re Mendez), 2008 Bankr. LEXIS 653
366 (E.D.N.Y. 2009).                                      (Bankr. E.D. Cal. 2008).
     Similarity of motive, as required by Rule                Answers to interrogatories do not constitute
804(b)(1), does not imply that the charges facing         former testimony under Rule 804(b)(1), as the party
the defendant at the prior and current proceed-           has no opportunity to cross-examine those
ings must be identical. Where both cases involve          answers. Knudsen v. City of Tacoma, 2008 U.S.
serious felonies with substantial potential punish-       Dist. LEXIS 11842 (W.D. Wash. 2008).
ments and the conduct to be proven by the prior               Rule 804(b)(1) implements the command of the
testimony in the first trial is identical to that to be   Sixth Amendment’s Confrontation Clause that the
proven by the testimony in the second trial, a            accused shall enjoy the right to be confronted with
defendant’s motive is sufficiently similar to justify     the witnesses against him. Accordingly, the prose-
admission. United States v. Carneglia, 256 F.R.D.         cution may not offer proof of a prior statement that
366 (E.D.N.Y. 2009).                                      is testimonial in nature unless (1) the accused has
     The mere fact that prior testimony meets the         or will have forfeited the opportunity to be con-
criteria set by Rule 804(b)(1), and hence is not          fronted with the witness who made the statement,
excludable on the ground that it is hearsay, does         and (2) the witness is unavailable to testify at trial.
not make it admissible. After the district court          The latter requirement stands on separate footing
finds by a preponderance of the evidence that a           that is independent of and in addition to the
hearsay statement is admissible under Rule                requirement of a prior opportunity for cross-
804(b)(6), it must still perform the balancing test       examination. United States v. Yida, 498 F.3d 945
                                                          (9th Cir. 2007).



(Sinclair, Rel. #14, 9/09)                          CA–695
Rule 804                                      Trial Handbook


    Pursuant to Rule 804(b)(1), deposition testi-         his testimony and eliciting testimony on the wit-
mony from a prior civil proceeding is not admissi-        ness’s own criminal record. United States v. Garcia,
ble in a criminal case unless the declarant is            117 F. App’x 162 (2d Cir. 2004).
unavailable as a witness and the party against                Where both proceedings are trials and the same
whom the testimony is offered in the criminal case        matter is seriously disputed at both trials, it will nor-
had an opportunity and similar motive to develop          mally be the case that the side opposing the version
the testimony by direct, cross-, or redirect examina-     of a witness at the first trial had a motive to develop
tion in the prior civil proceeding. United States v.      that witness’s testimony similar to the motive at the
Kennard, 472 F.3d 851 (11th Cir. 2006).                   second trial. United States v. Garcia, 117 F. App’x
    In unusual circumstances, separate sovereigns         162 (2d Cir. 2004).
may be treated as one for the purposes of the                 Vigorous cross-examination conducted at the
Rule 804(b)(1) exception. However, if federal             first trial—which included references to past crimi-
authorities control the actions of a state prosecutor     nal activities and previous instances in which the
before the grand jury, it may well be that the state      witness lied to the government, as well as questions
and the federal governments should not be consid-         regarding his motive for testifying—sufficiently
ered separate sovereigns for the purposes of this         allowed the jury at the second trial to evaluate the
exception. United States v. Carson, 455 F.3d 336          truth of the testimony. United States v. Garcia, 117
(D.D.C. 2006).                                            F. App’x 162 (2d Cir. 2004).
    When prosecutors seek to admit a nontestifying            The “similarity of motive” requirement necessi-
witness’s preliminary hearing testimony under Rule        tates an inquiry into whether the party resisting the
804(b)(1), the Confrontation Clause requires two          offered testimony at a pending proceeding had an
things. First, the prosecution must establish that the    interest of substantially similar intensity to prove (or
declarant is “unavailable” by showing that prosec-        disprove) the same side of a substantially similar
utorial authorities have made a good-faith effort to      issue. Antonucci v. Morgan Stanley Dean Witter &
obtain the declarant’s presence at trial. Second, to      Co., 2005 U.S. Dist. LEXIS 1621 (S.D.N.Y. 2005).
satisfy the “indicia of reliability” requirement, the         Where a party failed to provide signed authori-
prosecution must demonstrate that the defendant           zations in a timely manner for release of medical
had an adequate opportunity to cross-examine the          records, none of this ammunition was available to
declarant at the preliminary examination. Gibbs v.        the examining party when a deposition began. As
Harry, 2006 U.S. Dist. LEXIS 82094 (E.D. Mich.            a consequence, the questioning party clearly did
2006).                                                    not have an adequate opportunity to question the
    Nothing in the language of Rule 804(b)(1) sug-        witness regarding several of the central factual
gests that a court may admit former testimony             issues in the case. The opportunity to cross-exam-
absent satisfaction of each of the rule’s elements.       ine must be full, substantial, and meaningful in
Kamara v. United States, 2005 U.S. Dist. LEXIS            view of the realities of the situation. Antonucci v.
20651 (S.D.N.Y. 2005).                                    Morgan Stanley Dean Witter & Co., 2005 U.S.
    The fundamental purpose of the prior opportu-         Dist. LEXIS 1621 (S.D.N.Y. 2005).
nity to cross-examine is to ensure that the former            Under Rule 804(b)(1), the federal courts no
testimony was endowed with some indicia of reli-          longer draw a distinction between discovery depo-
ability; the trier of fact must have a satisfactory       sitions and trial depositions. Accordingly, any dep-
basis for evaluating the truth of the prior statement.    osition taken by a party may potentially be
United States v. Garcia, 117 F. App’x 162 (2d Cir.        introduced at trial if the deponent becomes
2004).                                                    unavailable through no fault of the party proffering
    In determining whether the former testimony of        the testimony. For this reason, attorneys taking dep-
an unavailable witness, whom defendant has had            ositions in federal cases often must make a strate-
a prior opportunity to cross-examine at an earlier        gic decision as to whether to treat a deposition as a
trial, can be admitted at a subsequent trial without      discovery deposition (in which unearthing the facts
violating the Confrontation Clause, courts have           and committing the deponent to a position are the
looked to the actual transcript of the witness’s testi-   primary goals), or a trial deposition (in which there
mony—in particular to defense counsel’s cross-            is often an effort to tarnish the witness’s credibility),
examination of the witness—to determine whether           or both. Antonucci v. Morgan Stanley Dean Witter
the cross-examination imbued the testimony with           & Co., 2005 U.S. Dist. LEXIS 1621 (S.D.N.Y.
the requisite indicia of reliability, through a serious   2005).
effort by defense counsel to undermine and dis-               The “similar motive” requirement protects the
credit the witness’s testimony, including by ques-        party to whom the witness is “unavailable” in order
tioning the witness about certain inconsistencies in      to accord that party some degree of adversarial



                                                    CA–696
                                            Case Authority                                     Rule 804


fairness, thereby assuring that the earlier treatment        Statements made by a coconspirator during his
of the witness is the rough equivalent of what the       plea hearing were inadmissible, under exception
party against whom the statement is offered would        to hearsay rule for a testimony given at another
do at trial if the witness were available to be exam-    proceeding by an unavailable witness, in a prose-
ined by that party. When the declarant is unavail-       cution for drug conspiracy, where government’s
able to the party against whom the testimony is          motive at coconspirator’s plea hearing was to
being offered, the “similar motive” requirement not      ensure that plea was knowing, voluntary, and intel-
only ensures that the right of cross-examination is      ligent, and that there was an adequate factual
preserved, but also ensures that the party against       basis to accept it, and the government had no need
whom the testimony is offered has been afforded a        or motive to develop a testimony about defendant.
fair chance to seek the truth, and is not blindsided     United States v. Preciado, 336 F.3d 739 (8th Cir.
at trial by the hearsay testimony. Antonucci v. Mor-     2003).
gan Stanley Dean Witter & Co., 2005 U.S. Dist.               Statements made by a coconspirator at his plea
LEXIS 1621 (S.D.N.Y. 2005).                              allocution, which arguably exculpated defendant,
    The opportunity to examine a relative of a party     were not admissible at defendant’s trial under hear-
cannot serve to fill the gaps in the showing neces-      say exception for testimony from a prior hearing or
sary under Rule 804(b)(1) if the opportunity to          proceeding; although the coconspirator was
question the central witness was stymied in the          unavailable at defendant’s trial because he had
prior proceeding because of refusal to disclose          properly invoked his Fifth Amendment right against
needed information for exploration on cross-exam-        self-incrimination, government had neither an
ination. Antonucci v. Morgan Stanley Dean Witter         opportunity nor a similar motive to examine the
& Co., 2005 U.S. Dist. LEXIS 1621 (S.D.N.Y.              coconspirator at latter’s plea allocution as it would
2005).                                                   have had at trial. United States v. Jackson, 335
    Former testimony in a juvenile court litigation      F.3d 170 (2d Cir. 2003).
involving a governmental department of children’s            The opportunity to cross-examine cannot be an
services was not admissible under Rule 804(1)            empty formality. It must be full, substantial and
because the children’s agency was not the prede-         meaningful in view of the realities of the situation,
cessor in interest of the present adversaries. Har-      and this standard is not met when a deponent uni-
ville v. Vanderbilt Univ., 95 F. App’x 719 (6th Cir.     laterally decides not to appear for cross-examina-
2003).                                                   tion. A.I.A. Holdings, S.A. v. Lehman Bros., Inc.,
    Rule 804(b)(1) does not require that the prior       2002 U.S. Dist. LEXIS 22675 (S.D.N.Y. 2002).
testimony be given in the context of identical               Depositions taken in a separate case may be
charges. United States v. McElhiney, 85 F. App’x         admissible under the former testimony exception
112 (10th Cir. 2003).                                    when: (1) they involve the same counsel, (2) they
    A state supreme court determination that             involve the same issue, and (3) the unavailable wit-
because a suppression hearing focused on different       nesses were fairly examined on the subject matter
issues from the trial the state didn’t have the incen-   for which their testimony may have been relevant in
tive or opportunity to test co-defendant’s reliability   the instant case. Clay v. Buzas, 208 F.R.D. 636 (D.
fully is nonsense; the issues were different—proba-      Utah 2002).
ble cause to seize the drugs versus the defendant’s          An arresting officer’s testimony from a state
possessing them—but the incentive to destroy the         suppression hearing was properly admitted as
co-defendant’s credibility during the suppression        prior testimony where the officer died prior to a
hearing was the same as it would have been had           federal suppression hearing and defendant had
he testified at the trial; the issues were different     similar motive in both proceedings to demonstrate
from a legal standpoint, but they were not different     that his taped confession was coerced and involun-
so far as the relevance of the co-defendant’s testi-     tary; any failure to more fully cross-examine the
mony was concerned. Rice v. McCann, 339 F.3d             officer in the state proceedings resulted from coun-
546 (7th Cir. 2003).                                     sel’s attorney’s failure to do so, not from lack of
    Testimony of grand jury witnesses was not            opportunity. United States v. Geiger, 263 F.3d
admissible to prove drug quantity beyond a rea-          1034 (9th Cir. 2001).
sonable doubt at sentencing under former-testi-              Testimony at a prior trial, unlike a written con-
mony exception to hearsay rule, where, even if the       fession or recorded conversation, is a particularly
witnesses were “unavailable,” defendant had no           reliable form of hearsay evidence. United States v.
opportunity to cross-examine them in grand jury          Thomas, 2000 U.S. App. LEXIS 2224 (2d Cir.
proceedings. United States v. Darwich, 337 F.3d          2000).
645 (6th Cir. 2003).



(Sinclair, Rel. #14, 9/09)                         CA–697
Rule 804                                       Trial Handbook


     In prosecution for smuggling of illegal aliens,       (D. Mass. 1998); United States v. McKeeve, 131
two of the aliens were unavailable because they            F.3d 1 (1st Cir. 1997).
were inadvertently returned to Mexico, were                    When evaluating the similarity of the govern-
beyond the subpoena power of the district court,           ment’s motive in different proceedings for pur-
and at least one of them failed to respond to efforts      poses of Rule 804(b)(1), it is the government’s
to persuade them to return to the United States to         interest in the particular proceeding, as prosecu-
testify. United States v. Olafson, 213 F.3d 435 (9th       tor, not its broader interest in achieving justice, as
Cir. 2000).                                                sovereign, that must be examined. United States v.
     Where a defendant had ample opportunity to            Bartelho, 129 F.3d 663 (1st Cir. 1997).
cross-examine and impeach a witness at a former                Statements at a suppression hearing were prop-
trial, where he had the same motive, Rule                  erly excluded where the government had no inter-
804(b)(1) is satisfied. United States v. Reed, 227         est in developing the declarant’s credibility. United
F.3d 763 (7th Cir. 2000).                                  States v. Bartelho, 129 F.3d 663 (1st Cir. 1997).
     The fact that a former witness was actually sen-          The similar motive inquiry under Rule 804(b)(1)
tenced and received a downward departure in sen-           requires scrutiny of the factual and procedural con-
tencing after the first trial does not really change       text of each proceeding to determine both the issue
the defendant’s motives on cross. Where defen-             in dispute and the intensity of interest in developing
dant knew of the plea agreement well before the            the particular issue by the party against whom the
first trial, the incentives were present, and the testi-   disputed testimony is offered. United States v. Bar-
mony was later admissible under Rule 804(b)(1).            telho, 129 F.3d 663 (1st Cir. 1997).
United States v. Reed, 227 F.3d 763 (7th Cir.                  A purely tactical decision not to develop particu-
2000).                                                     lar testimony despite the same issue and level of
     Mere naked opportunity to cross-examine is            interest at each proceeding does not constitute a
not enough; there must also be a perceived real            lack of opportunity or a dissimilar motive for pur-
need or incentive to thoroughly cross-examine at           poses of Rule 804 (b)(1). United States v. Bartelho,
the time of the deposition. The testimony must be          129 F.3d 663 (1st Cir. 1997).
subject to the scrutiny of a party thoroughly inter-           The Rule 804(b)(1) hearsay exception for prior
ested in testing its validity. Schimpf v. Gerald, Inc.,    testimony extends, where all its conditions are met,
52 F. Supp. 2d 976 (E.D. Wis. 1999).                       to grand jury testimony taken at the government’s
     In a suit alleging excessive use of force by cor-     behest and later offered against it in a criminal
rections officers, prior testimony given by the plain-     trial. United States v. Omar, 104 F.3d 519 (1st Cir.
tiff, who had subsequently passed away, during a           1997); United States v. Dinapoli, 8 F.3d 909, 914
criminal prosecution of the plaintiff, was admissible      (2d Cir. 1993) (en banc).
against the police officers. The prior testimony               A grand jury proceeding can be regarded as a
occurred in a prosecution for assault in which             “hearing,” especially in the context of a rule that
plaintiff took the stand in his own defense and was        applies as well to depositions, and—assuming “an
subjected to vigorous cross-examination. Because it        opportunity and similar motive to develop the testi-
was a criminal trial, the stakes were as high if not       mony”—the rationale for an exception to the hear-
higher than the civil case, and the prosecutor had a       say rule is made out, namely, that the party against
very strong motive to develop the testimony. The           whom the testimony is now offered earlier had the
prosecutor in the criminal case, and the defendants        opportunity and similar motive to discredit the testi-
here, each seek to show that plaintiff, not the offic-     mony, and so did then whatever it would do now if
ers, initiated the use of force. The court found that      the declarant were on the stand. United States v.
the motivations of the prosecutor in the criminal          Omar, 104 F.3d 519 (1st Cir. 1997).
trial and the defendant police officers in the instant         The prosecution may not in a grand jury pro-
case were similar, and that the prosecutor can be          ceeding have the kind of motive to develop testi-
viewed as a “predecessor in interest.” Wright v.           mony that it would in an ordinary trial or that is
Kelly, 1998 U.S. Dist. LEXIS 20424 (W.D.N.Y.               required to meet the express test and rationale of
1998).                                                     Rule 804(b)(1). United States v. Omar, 104 F.3d
     In an antitrust prosecution of foreign manufac-       519 (1st Cir. 1997).
turers, videotaped testimony of a foreign depo-                Deposition testimony of a nonparty witness can
nent taken abroad may be admitted under the                be read into the record only if the witness is
former testimony exception, if it approximates trial       unavailable. O’Berry v. Allendale Police Dep’t,
conditions to a significant degree. United States v.       1997 U.S. App. LEXIS 252 (4th Cir. 1997).
Nippon Paper Indus. Co., Ltd., 17 F. Supp. 2d 38               If a witness testifies, inconsistencies between the
                                                           witness’s deposition and trial testimony can be used



                                                     CA–698
                                             Case Authority                                      Rule 804


for impeachment under Rule 32 of the Federal              goals at a trial (United States v. Salerno, 120 L. Ed.
Rules of Civil Procedure. O’Berry v. Allendale            2d 255 (1992)), along with the obvious opportu-
Police Dep’t, 1997 U.S. App. LEXIS 252 (4th Cir.          nity to question; where the examination was the
1997).                                                    rough equivalent of what cross-examination would
    A defendant was properly denied permission to         have provided in the case on trial, the requirement
offer state grand jury testimony in a federal trial       of the rule is met. United States v. Salerno, 974 F.2d
because the United States was not a party to the          231 (2d Cir. 1992).
state proceeding. United States v. Peterson, 100              Testimony of jointly charged co-defendants on
F.3d 7 (2d Cir. 1996).                                    separate suppression motions was not subject to
    The fact that former testimony may qualify under      examination with a motive and opportunity to
the hearsay rule does not address the issue whether       cross-examine similar to that arising later at the
use of the former testimony is barred by an appli-        separate trial of defendant, where the suppression
cable “dead man statute.” Rosenfeld v. Basquiat,          applications turned in part on standing (on which
78 F.3d 84 (2d Cir. 1996).                                the two perpetrators differed) and the defendant
    In an antitrust action alleging price-fixing by       was not participating in the hearing “qua defen-
several dairies, prior testimony by an unavailable        dant” but as a movant on a different motion.
witness from a criminal proceeding where the dairy        United States v. Taplin, 954 F.2d 1256 (6th Cir.
officials were defendants was admissible. Super-          1992).
market of Marlinton, Inc. v. Meadow Gold Dairies,             Because a combine manufacturer had similar
Inc., 71 F.3d 119 (4th Cir. 1995).                        motive in previous products liability proceedings to
    The exception for former testimony of unavail-        develop the testimony of three of its employees,
able declarant was inapplicable where defendant,          their sworn testimony given in prior proceedings
against whom testimony was offered, had no                could be admitted despite a hearsay objection.
opportunity to develop that testimony at the prior        Burke v. Deere & Co., 780 F. Supp. 1225, 1261–
trial of his coconspirator, even if the reason for the    62 (S.D. Iowa 1991).
missed opportunity was that the defendant was a               Declaration against interest by a witness who
fugitive from justice at that time. United States v.      was in prison in the Bahamas was improperly
Shaw, 63 F.3d 1249 (4th Cir. 1995).                       admitted, since the government had not shown the
    District court abused its discretion in admitting     witness to be unavailable. United States v. Curbello,
testimony of expert witness for manufacturer of           940 F.2d 1503, 1505 (11th Cir. 1991).
products containing asbestos which was given in               Where the government refused defense coun-
earlier, unrelated trial under former testimony           sel’s request to grant witness use immunity, absent
exception to hearsay rule in subsequent products          witness’s grand jury testimony exculpating defen-
liability action where no finding was made on             dant was admissible despite government claim that
record by trial court that the expert was unavail-        it had lacked similar motive to develop the testi-
able. Kirk v. Raymark Indus. Inc., 61 F.3d 147 (3d        mony. United States v. Salerno, 937 F.2d 797, 805
Cir. 1995).                                               (2d Cir. 1991).
    Admission at fraud defendant’s trial of deceased          Absent government agent’s deposition describ-
witness’s testimony from prior trial of defendant         ing investigation results was admissible as former
and coconspirators was not an abuse of discretion         testimony. Moss v. Ole S. Real Estate, Inc., 933 F.2d
even though different counsel with different defense      1300, 1311 (5th Cir. 1991).
theories conducted the cross-examination at prior             Where a legislative governmental unit took cer-
trial. United States v. Tannehill, 49 F.3d 1049 (5th      tain testimony, and another unit was involved in
Cir. 1995).                                               prosecuting the pending case, the “party” against
    In a suit alleging legal malpractice for settling a   whom the prior transcript would be offered was
claim against plaintiff’s insurer, transcripts from the   perhaps not the same. United States v. North, 910
prior trial offered by the defendant law firm to          F.2d 843 (D.C. Cir. 1990).
show the impossibility of winning should have been            Where the party against whom the transcript is
admitted not for the truth of the testimony under         offered was a party to the prior proceeding, the
Rule 804(b)(1), but to show the damaging effect of        transcript is inadmissible unless the motive to
the testimony. Transcraft, Inc. v. Galvin, Stalmack,      develop or contest the evidence was the same pre-
Kirschner & Clark, 39 F.3d 812 (7th Cir. 1994).           viously. United States v. North, 910 F.2d 843 (D.C.
    A defendant seeking to use exculpatory testi-         Cir. 1990). Accord United States v. Powell, 894
mony of grand jury witnesses is required under the        F.2d 895 (7th Cir. 1990) (sentencing statements not
text of this rule to demonstrate that the government      admissible against government in later prosecution
had an incentive to question them similar to its          of co-actor).



(Sinclair, Rel. #14, 9/09)                          CA–699
Rule 804                                       Trial Handbook


    A deposition of the former supervisor in an            opportunity and motive to oppose the former testi-
employment discrimination case, taken on six days’         mony now being offered. Neal v. Carey Canadian
notice, was properly admitted under this rule, since       Mines, Ltd., 548 F. Supp. 357 (E.D. Pa. 1982).
the party against whom it was later offered had the            Post-plea statement, possibly helpful in related
opportunity to cross-examine. Pearl v. Keystone            civil action, not admitted. United States v. L’Hoste,
Consol. Indus., 884 F.2d 1047 (7th Cir. 1989).             640 F.2d 693 (5th Cir. 1981).
    Prior cross-examination motive is more impor-              Statements at plea not admissible later on
tant than whether in fact all questions were asked.        behalf of a defendant since government did not
United States v. McClellan, 868 F.2d 210 (7th Cir.         have motive or opportunity to cross-examine in
1989).                                                     normal fashion at earlier plea proceeding. United
    Testimony of a true predecessor in interest may        States v. Lowell, 490 F. Supp. 897 (D.N.J. 1980),
be received under this rule. United States v.              aff’d, 649 F.2d 950 (3d Cir. 1981).
McDonald, 837 F.2d 1287 (5th Cir. 1988) (here                  Neutral portions of incriminating statement
civil fraud case deposition was not admissible             admitted along with the parts against interest
against government since the strategic incentive of        where integral to statement as a whole. United
the private plaintiffs was not sufficiently similar to     States v. Lieberman, 637 F.2d 95 (2d Cir. 1980).
that of a state prosecutor’s office to establish similar       Preliminary hearing testimony admissible if
motive for examination).                                   defendant had incentive to cross-examine similar to
    Generally: United States v. Gravely, 840 F.2d          that at trial. Glenn v. Dallman, 635 F.2d 1183 (6th
1156 (4th Cir. 1988); Azalea Fleet, Inc. v. Dryfus         Cir. 1980); see Scott v. State, 612 S.W.2d 110
Supply, 782 F.2d 1455 (8th Cir. 1986) (predeces-           (Ark. 1981) (finding no incentive for defense to dis-
sor in interest had motive and interest to make the        close theory of case at preliminary examination).
same claim of negligence against the same party);             Statement purporting to admit to lesser crime
Hannah v. City of Overland, 795 F.2d 1385 (8th             than charged, not corroborated by other facts, not
Cir. 1986) (depositions of third parties inadmissible      received. United States v. Evans, 635 F.2d 1124
due to different setting and motives); Lohrmann v.         (4th Cir. 1980).
Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.             Prior testimony may be shown by transcript or
1986) (deposition in earlier suit not admissible in        testimony of one who heard it; summaries or sec-
present action since issues and incentives were dif-       ondhand descriptions are not adequate. Black
ferent); In re Bankers Trust Co., 752 F.2d 874 (3d         Hills Jewelry Mfg. Co. v. Gold Rush, Inc., 633 F.2d
Cir. 1984); Dartez v. Fibreboard Corp., 765 F.2d           746 (8th Cir. 1980).
456 (5th Cir. 1985); United States v. Feldman, 761
F.2d 380 (7th Cir. 1985); United States v. Young           Rule 804(b)(2)—Dying Declarations
Bros., 728 F.2d 682 (5th Cir. 1984).                           Though they are admissible under Rule
    Letters rogatory as the form of former testi-          804(b)(2), dying declarations are often not reli-
mony. United States v. Salim, 664 F. Supp. 682             able. In particular, the lack of inherent reliability of
(E.D.N.Y. 1987).                                           deathbed statements has often been pointed out.
    Videotaped deposition of deceased witness              Experience suggests that the desire for revenge or
was properly admitted under the rule. Mainland             self-exoneration or to protect one’s loved ones may
Indus. v. Standal’s Patents, Ltd., 799 F.2d 746 (Fed.      continue until the moment of death. United States v.
Cir. 1986).                                                Carneglia, 256 F.R.D. 384 (E.D.N.Y. 2009).
    Failure to cross-examine earlier testimony does            Rule 804(b)(2) exempts a declarant’s statements
not bar its use if opportunity and motive existed          from the hearsay rule when the declarant believes
then. DeLuryea v. Winthrop Labs., 697 F.2d 222             that he or she faces imminent death, and the state-
(8th Cir. 1983).                                           ment concerns the circumstances or cause of his or
    Depositions of unavailable foreign witnesses           her death. SEC v. 800America.com, Inc., 2006
were properly admitted in criminal case where              U.S. Dist. LEXIS 85571 (S.D.N.Y. 2006).
issue material and opponent had opportunity to                 Dying declarations are well-established excep-
participate in deposition. United States v. Steele,        tions to the hearsay rule and are admissible in evi-
685 F.2d 793 (3d Cir. 1982).                               dence under Rule 804(b)(2). Pippin v. Dir., Tex.
    Participation or opportunity of “predecessor in        Dep’t of Criminal Justice, 434 F.3d 782 (5th Cir.
interest” construed broadly in civil cases to permit       2005).
use of former testimony. In re Johns-Manville, 93              Proponents of a “dying declaration” must lay a
F.R.D. 853 (N.D. Ill. 1982).                               foundation showing a declarant’s belief that his
    Identity of parties not required, so long as           death is imminent. This state of mind may be evi-
party against whom testimony will be used had              dent from the individual’s own statements, circum-



                                                     CA–700
                                           Case Authority                                    Rule 804


stantial evidence, or the opinion of a physician.
Vazquez v. Nat’l Car Rental Sys., Inc., 24 F. Supp.    v. Kostopoulos, 119 F. App’x 308 (2d Cir. 2004);
2d 197 (D.P.R. 1998).                                  United States v. Saget, 377 F.3d 223 (2d Cir.
    The proponent’s failure to lay adequate founda-    2004); Dora Homes, Inc. v. Epperson, 344 F.
tion for dying declaration exception, including the    Supp. 2d 875 (E.D.N.Y. 2004); United States v.
extent of the declarant’s wounds, precluded admis-     Bonty, 383 F.3d 575 (7th Cir. 2004); United States
sion of the statement under this Rule. United States   v. Shukri, 207 F.3d 412, 416 (7th Cir. 2000);
v. Tolliver, 61 F.3d 1189 (5th Cir. 1995).             United States v. Ochoa, 229 F.3d 631 (7th Cir.
    Generally: United States v. Layton, 549 F. Supp.   2000); United States v. Tocco, 200 F.3d 401 (6th
903 (N.D. Cal. 1982), aff’d, 702 F.2d 548 (9th         Cir. 2000); Am. Auto. Accessories v. Fishman, 175
Cir. 1983).                                            F.3d 534 (7th Cir. 1999); United States v. Paguio,
                                                       114 F.3d 928 (9th Cir. 1997); United States v.
Rule 804(b)(3)—Declarations Against                    Jinadu, 98 F.3d 239 (6th Cir. 1996); United States
       Interest                                        v. Canan, 48 F.3d 954 (6th Cir. 1995); United
                                                       States v. MacDonald, 688 F.2d 224 (4th Cir.
Established Doctrine                                   1982).

                                                       Where a party seeks to introduce a narrative, each
Rule 804(b)(3) provides an exception to the gen-       portion must be examined, and only those indi-
eral rule against admission of a hearsay statement.    vidual statements that inculpate the declarant are
A statement against penal interest offered to excul-   admissible under Rule 804(b)(3). In determining
pate a defendant is not admissible via Rule            whether a statement is genuinely inculpatory for
804(b)(3) unless three elements are met: (1) the       purposes of applying the Rule 804(b)(3) exception,
declarant must be unavailable; (2) the statement       a court must examine the circumstances under
must be so far contrary to his pecuniary, propri-      which the statement was given. A statement is not
etary, or penal interest that a reasonable person in   truly self-inculpatory if it merely attempts to shift
his position would not have made the statement         blame or curry favor. Sinkfield v. Brigano, 487
unless he believed it to be true; and (3) the state-   F.3d 1013 (6th Cir. 2007); United States v. Chase,
ment must be corroborated by circumstances             451 F.3d 474 (8th Cir. 2006); United States v.
clearly indicating its trustworthiness. The propo-     Johnson, 430 F.3d 383 (6th Cir. 2005); Elnashar v.
nent of the statement bears the burden of proof on     Speedway Super-America, LLC, 2005 U.S. Dist.
these issues. United States v. Honken, 541 F.3d        LEXIS 23464 (D. Minn. 2005); United States v.
1146 (8th Cir. 2008); Sinkfield v. Brigano, 487        Saget, 377 F.3d 223 (2d Cir. 2004); Pratt v. Har-
F.3d 1013 (6th Cir. 2007); United States v. Log-       vey, 2004 U.S. Dist. LEXIS 26185 (M.D.N.C.
gins, 486 F.3d 977 (7th Cir. 2007); United States      2004); United States v. Scheurer, 2003 CCA LEXIS
v. Kelley, 2007 U.S. Dist. LEXIS 14854 (S.D. Tex.      195 (Air Force Ct. Crim. App. 2003); United
2007); Mike’s Train House, Inc. v. Lionel, L.L.C.,     States v. Ochoa, 229 F.3d 631 (7th Cir. 2000);
472 F.3d 398 (6th Cir. 2006); United States v.         Am. Auto. Accessories v. Fishman, 175 F.3d 534
Leahy, 464 F.3d 773 (7th Cir. 2006); United States     (7th Cir. 1999); United States v. Valenzuela, 53 F.
v. Paulino, 445 F.3d 211 (2d Cir. 2006); JVC Am.,      Supp. 2d 992 (N.D. Ill. 1999); United States v.
Inc. Guardsmark, L.L.C., 2006 U.S. Dist. LEXIS         Paguio, 114 F.3d 928 (9th Cir. 1997); United
59270 (N.D. Ga. 2006); SEC v. 800America.com,          States v. Mendoza, 85 F.3d 1347 (8th Cir. 1996);
Inc., 2006 U.S. Dist. LEXIS 85571 (S.D.N.Y.            United States v. Jinadu, 98 F.3d 239 (6th Cir.
2006); Grace United Methodist Church v. City of        1996); Williamson v. United States, 512 U.S. 594
Cheyenne, 427 F.3d 775 (10th Cir. 2005); United        (1994); Stephens, Inc. v. Geldermann, 962 F.2d
States v. Johnson, 121 F. App’x 912 (2d Cir.           808 (8th Cir. 1992); Rock v. Huffco Gas & Oil Co.,
2005); Pavlica v. Behr, 2005 U.S. Dist. LEXIS          922 F.2d 272, 282 (5th Cir. 1991); United States
29877 (S.D.N.Y. 2005); United States v. Zapata,        v. Parker, 903 F.2d 91 (2d Cir. 1990).
2005 U.S. Dist. LEXIS 2025 (S.D.N.Y. 2005);
United States v. Camacho, 2005 U.S. Dist. LEXIS
1430 (S.D.N.Y. 2005); United States v. Phillips,
2005 U.S. Dist. LEXIS 1334 (N.D. Ill. 2005); Nel-
son v. Pilkington PLC (In re Flat Glass Antitrust
Litig.), 385 F.3d 350 (3d Cir. 2004); United States




(Sinclair, Rel. #14, 9/09)                       CA–701
Rule 804                                    Trial Handbook



In determining whether there are corroborating          Under Rule 804(b)(3) the proponent of a state-
circumstances clearly indicating trustworthiness for    ment must show that the declarant is “unavail-
purposes of Rule 804(b)(3), courts may consider,        able.” This requirement can be established by
among other things, (1) whether the declarant, at       showing, for example, that the witness is either
the time of making the statement, was still exposed     dead, incapacitated, or outside the subpoena
to prosecution for making the statement and the         power of the court, or that the witness has exer-
extent to which the declaration is truly against the    cised his or her Fifth Amendment right not to testify.
declarant’s penal interest; (2) the timing of the       United States v. Anthony, 2006 U.S. Dist. LEXIS
statement and whether the statement was made            92132 (W.D. Ky. 2006); United States v. Phillips,
spontaneously; (3) whether other people heard the       2005 U.S. Dist. LEXIS 1334 (N.D. Ill. 2005); Dora
out-of-court statement and the party or parties to      Homes, Inc. v. Epperson, 344 F. Supp. 2d 875
whom the statement was made; (4) whether the            (E.D.N.Y. 2004); United States v. Smallwood, 299
declarant repeated the statement and did so con-        F. Supp. 2d 578 (E.D. Va. 2003).
sistently; (5) the relationship of the declarant with
the accused, and whether there was any apparent         Rule 804(b)(3) does not allow the admission of
motive or reason for the declarant to lie or misrep-    self-exculpatory statements, incriminating others,
resent the matter; (6) whether the statements were      even if they are made within a broader narrative
made under oath or made after Miranda warnings          that is generally self-inculpatory. This is so because
were given; and (7) the nature and strength of          portions of inculpatory statements that pose no risk
independent evidence relevant to the conduct in         to the declarants are not particularly reliable; they
question. The purpose of this corroboration             are just garden variety hearsay. United States v.
requirement is to circumvent fabrication by the         Johnson, 430 F.3d 383 (6th Cir. 2005); United
declarant. Even so, the requirement of corroborat-      States v. Jinadu, 98 F.3d 239 (6th Cir. 1996);
ing circumstances need not remove all doubt with        United States v. Mendoza, 85 F.3d 1347 (8th Cir.
with respect to the hearsay statement; rather, the      1996); United States v. Nagib, 56 F.3d 798 (7th
requirement only mandates that corroborating cir-       Cir. 1995); Williamson v. United States, 512 U.S.
cumstances clearly indicate the trustworthiness of      594 (1994); Carson v. Peters, 42 F.3d 384, 386
the statement itself, as opposed to whether other       (7th Cir. 1994).
evidence in the case corroborates what the state-
ment asserts. Sinkfield v. Brigano, 487 F.3d 1013       See also cases describing unavailability within the
(6th Cir. 2007); United States v. Kelley, 2007 U.S.     context of Rule 804(a)(4).
Dist. LEXIS 14854 (S.D. Tex. 2007); United States
                                                        Specific Applications
v. Johnson, 440 F.3d 832 (6th Cir. 2006); United
States v. Johnson, 121 F. App’x 912 (2d Cir.                There is no requirement imposed by Rule
2005); Pratt v. Harvey, 2004 U.S. Dist. LEXIS           804(b)(3) that the statement must of itself estab-
26185 (M.D.N.C. 2004); Canter v. Hardy, 188 F.          lish criminal culpability. On the contrary, a facially
Supp. 2d 773 (E.D. Mich. 2002); United States v.        neutral statement can trigger the exception. The
Tocco, 200 F.3d 401 (6th Cir. 2000); Am. Auto.          question under Rule 804(b)(3) is always whether
Accessories v. Fishman, 175 F.3d 534 (7th Cir.          the statement was sufficiently against the
1999); United States v. Price, 134 F.3d 340 (6th        declarant’s penal interest, and that question can
Cir. 1998); United States v. Barone, 114 F.3d           only be answered in light of all the surrounding cir-
1284 (1st Cir. 1997); United States v. Bumpass, 60      cumstances. N.H. Ins. Co. v. Blue Water Off Shore,
F.3d 1099 (4th Cir. 1995); United States v. Moore,      LLC, 2009 U.S. Dist. LEXIS 24223 (S.D. Ala.
936 F.2d 1508 (7th Cir. 1991); United States v.         2009).
Brainard, 690 F.2d 1117 (4th Cir. 1982). But see            For a statement against interest to be admissi-
United States v. Camacho, 2005 U.S. Dist. LEXIS         ble under 804(b)(3), the proponent must show that:
1430 (S.D.N.Y. 2005) (inference of trustworthiness      (1) the declarant is unavailable as a witness; (2) at
from the proffered corroborating circumstances          the time the statement was made, it was so far con-
must be strong, not merely allowable).                  trary to the declarant’s pecuniary or proprietary
                                                        interest, or so far tended to subject the declarant to
                                                        civil or criminal liability, that a reasonable person
                                                        in the declarant’s position would not have made the
                                                        statement unless believing it to be true. Whether a
                                                        statement is in fact against interest must be deter-
                                                        mined from the circumstances of each case.




                                                  CA–702
                                            Case Authority                                      Rule 804


United States v. Bonds, 2009 U.S. Dist. LEXIS                A statement against penal interest under Rule
16120 (N.D. Cal. 2009).                                  804(b)(3) is not limited to confessions of criminal
    Many courts require a broad reading of Rule          responsibility, but can include statements showing
804(b)(3). The word “tending” broadens the               detailed knowledge of the crime. The fact that the
phrase, so that the statement need not be a plain        statement was made to a friend or cellmate does
confession making the difference between guilty          not effect whether the statement was against the
and not guilty. The logic of Rule 804(b)(3)—that a       declarant’s penal interest. United States v. Williams,
reasonable person would not falsely subject himself      2008 U.S. Dist. LEXIS 88383 (C.D. Cal. 2008).
to criminal liability—also requires, however, that           Self-inculpatory statements made in a suicide
the statements, in a real and tangible way, subject      note that might otherwise be excepted from the bar
the declarant to criminal liability. A showing that      of the hearsay rule as admissions against penal
the statements solidly inculpate the declarant is        interest under Rule 804(b)(4) are not against the
required. United States v. Bonds, 2009 U.S. Dist.        declarant’s penal or pecuniary interests, because
LEXIS 16120 (N.D. Cal. 2009).                            such concerns are an interest of no moment to a
    Statements against interest are admissible under     dead man. ReliaStar Life Ins. Co. v. Thompson,
Rule 804(b)(3) if they are statements that at the time   2008 U.S. Dist. LEXIS 71726 (S.D. Tex. 2008).
of their making are so far contrary to the                   Statements by deceased declarant that he pur-
declarant’s pecuniary or proprietary interest that a     chased illegal drugs at a house near a school were
reasonable person in the declarant’s position would      admissible under the rule because “a reasonable
not have made the statement unless believing it to       man would [not] falsely admit to waiting for
be true. Such statements are admissible if a defen-      cocaine at the . . . home, a serious crime, knowing
dant shows (1) that the declarant is unavailable as      there was a chance, albeit slight, that the admission
a witness, (2) that the statement was against the        could be used to subject him to severe penalties.”
declarant’s penal interest when made, and (3) cor-       United States v. Westry, 2008 WL 1735384 (11th
roborating circumstances clearly suggest that the        Cir. 2008).
statement is trustworthy. United States v. Hatfield,         A statement may be received under this rule
2009 U.S. Dist. LEXIS 1689 (S.D. Ill. 2009).             even if made to a person “close” to the declarant,
    The statement against interest exception found in    with whom declarant had engaged in “frequent
Rule 804(b)(3) applies only when the declarant is        drug-related transactions,” since there was “a
unavailable as a witness and allows the admission        chance, albeit slight,” that the statement could
of a statement that was at the time of its making so     expose the declarant to severe penalties. United
far contrary to the declarant’s pecuniary or propri-     States v. Westry, 2008 WL 1735384 (11th Cir.
etary interest, or so far tended to subject the          2008).
declarant to civil or criminal liability, or to render       An unavailable witness’s admission to sexual
invalid a claim by the declarant against another,        relations with a minor is admissible as a statement
that a reasonable person in the declarant’s posi-        against penal interest, even where he claims that
tion would not have made the statement unless            the sex was consensual (a self-exculpatory expla-
believing it to be true. The rule requires that the      nation). United States v. Udeozor, 515 F.3d 260
declarant know that the statement was against his        (4th Cir. 2008).
interests at the time it was made. Kesey, LLC v.             Under Rule 804(b)(3), statements contained in
Francis, 2009 U.S. Dist. LEXIS 28078 (D. Or.             a letter may be admissible as a statement against
2009).                                                   penal interest. United States v. Leahy, 464 F.3d 773
    The exception to the hearsay rule embodied in        (7th Cir. 2006).
Rule 804(b)(3) only applies if the declarant is              A statement is against penal interest within the
unavailable as a witness; thus, where the defendant      scope of the hearsay exception embodied in Rule
was available to and did, in fact, testify on his own    804(b)(3) if it subjects the declarant to criminal lia-
behalf at trial, his prior out-of-court statement to     bility; however, it does not include statements that
another is not admissible under the statement            could possibly subject the declarant to prosecu-
against interest exception to the hearsay rule.          tion. United States v. Leahy, 464 F.3d 773 (7th Cir.
United States v. Hughes, 535 F.3d 880 (8th Cir.          2006).
2008).                                                       A district court may not just assume, for pur-
    When a defendant invokes his right to refuse         poses of this Rule, that a statement is self-inculpa-
to testify under the Fifth Amendment, he makes           tory because it is part of a fuller confession, and
himself unavailable to any other party under Rule        this is especially true when the statement implicates
804, but he is not unavailable to himself. United        someone else. United States v. Johnson, 430 F.3d
States v. Hughes, 535 F.3d 880 (8th Cir. 2008).          383 (6th Cir. 2005).



(Sinclair, Rel. #14, 9/09)                         CA–703
Rule 804                                      Trial Handbook


    A police informant’s admission of personal            felon possessed the gun. Ownership and posses-
involvement in criminal activity is presumed reli-        sion are wholly distinct concepts. United States v.
able under Rule 804 (b)(3). United States v. Randle,      Phillips, 2005 U.S. Dist. LEXIS 1334 (N.D. Ill.
2005 U.S. Dist. LEXIS 22263 (W.D. Wis. 2005).             2005).
    Diary entries can satisfy the requirements of             A statement made under oath before a grand
Rule 804(b)(3), but a searching inquiry is appro-         jury after the witness was fully advised that she
priate where such evidence is offered. Nelson v.          could be prosecuted for perjury if she lied weighs
Pilkington PLC (In re Flat Glass Antitrust Litig.), 385   heavily against a finding that the contrary state-
F.3d 350 (3d Cir. 2004).                                  ments are trustworthy. United States v. Phillips,
    Courts require corroboration of both the              2005 U.S. Dist. LEXIS 1334 (N.D. Ill. 2005).
declarant’s trustworthiness as well as the state-             A close relationship between the declarant and
ment’s trustworthiness. United States v. Johnson,         the defendant weighs against a finding of corrobo-
121 F. App’x 912 (2d Cir. 2005).                          rating circumstances. United States v. Phillips,
    A finding that a statement was not adequately         2005 U.S. Dist. LEXIS 1334 (N.D. Ill. 2005).
corroborated was supported by findings that the               The corroboration requirement of Rule
declarant had made prior inconsistent statements to       804(b)(3) reflects the long-standing concern that a
his parole officer (denying possession of a gun)          criminal defendant might get a pal to confess to the
and to the Federal Public Defender’s Office (stating      crime the defendant was accused of, the pal figur-
that another passenger in the car admitted posses-        ing that the probability of his actually being prose-
sion of the gun). United States v. Johnson, 121 F.        cuted either for the crime or for perjury was slight.
App’x 912 (2d Cir. 2005).                                 United States v. Phillips, 2005 U.S. Dist. LEXIS
    Noninculpatory statements are not admissible          1334 (N.D. Ill. 2005).
under Rule 804(b)(3) even if made within a                    A declarant’s apology for stealing items was a
broader context of a generally inculpatory narra-         declaration against interest admissible under Rule
tive. United States v. Bonty, 383 F.3d 575 (7th Cir.      804(3). United States v. Duran Samaniego, 345
2004).                                                    F.3d 1280 (11th Cir. 2003).
    A district court correctly determined, after an           Inconsistent out-of-court statements of an under-
adequately particularized analysis, that the bulk of      cover law enforcement agent made in the course of
a co-actor’s statements were self-inculpatory             exercise of his authority and within the scope of
because they described acts that the defendant and        that authority, which statements would be admis-
the other individual committed jointly. Those state-      sions against interest binding upon the govern-
ments in which declarant described acts that defen-       ment in civil cases, were not admissible to prove
dant alone had committed—such as a statement              the truth of the matter asserted in a criminal prose-
that the authorities arrested one of defendant’s          cution under the exception to the hearsay rule for
straw purchasers while defendant himself escaped          admissions against interest by an agent of party-
investigation—were self-inculpatory in context, the       opponent since the agent was an independent dis-
court concluded, because the statements reflected         interested party for the purposes of the prosecution.
the declarant’s attempt to give the confidential          United States v. Yildiz, 355 F. App’x 80 (2d Cir.
informant examples of how he and defendant                2004).
operated and why their scheme worked. United                  Portion of statements to which murder victim’s
States v. Saget, 377 F.3d 223 (2d Cir. 2004).             roommate was expected to testify at defendants’
    The circumstances of a proffered statement cast       trial, in which the victim admitted that he had stolen
grave doubt upon the prerequisite of admissibility        drugs from the defendants and had plans to rob
that it be against the declarant’s penal interest         them, was admissible under the exception to the
where the picture that emerges from was that the          hearsay rule governing statements against penal
declarant was stating or intimating that he was the       interest; the victim was unavailable to testify
murderer not as an individual making a credible           because he had been murdered, the statements
statement against his own penal interest, but rather      were adverse to the victim’s interests, and a suffi-
as playing a leading role in a fictitious drama           cient corroboration existed given that the victim
designed to free the defendants and dismay the            repeated the statement and had no reason to lie.
government (which, given the declarant’s world            United States v. Smallwood, 299 F. Supp. 2d 578
view, would constitute a gratifying killing of two        (E.D. Va. 2003).
birds with one stone). United States v. Camacho,              Because guilty plea allocutions qualify as state-
2005 U.S. Dist. LEXIS 1430 (S.D.N.Y. 2005).               ments against penal interest, they are admissible
    A witness’s statement that a gun was hers in no       under Rule 804(b)(3). United States v. Viana, 2003
way excludes the possibility that the defendant           U.S. Dist. LEXIS 19536 (S.D.N.Y. 2003).



                                                    CA–704
                                             Case Authority                                      Rule 804


    Rule 804(b)(3) does not allow admission of non-       ject the declarant to criminal liability, such that a
self-inculpatory statements, even if they are made        reasonable person in his position would not have
within a broader narrative that is generally self-        made the statement unless believing it to be true.
inculpatory. United States v. Scheurer, 2003 CCA          Statement in question was introduced to prove
LEXIS 195 (Air Force Ct. Crim. App. 2003).                existence of murder-for-hire conspiracy; on its face,
    In a prosecution for being a former felon in pos-     it did not incriminate the defendant and did not
session of a weapon, a statement by another wit-          prejudice rights of the defendant. United States v.
ness that the defendant could not have seen the gun       Lee, 2003 WL 1746968 (S.D.N.Y. 2003).
was not admissible because it was not corrobo-                Post-arrest statements made by defendant that
rated as required by Rule 804(3). United States v.        he never touched the weapon that was found inside
Henderson, 86 F. App’x 213 (8th Cir. 2003).               his jacket and that the only motion he made was his
    A declarant’s statement that he shot the victims      arms moving forward and back when he was run-
in self-defense because the statement was exculpa-        ning did not qualify as admissions against defen-
tory, and not against his penal interest. United          dant’s penal interest as they were most likely made
States v. Shryock, 342 F.3d 948 (9th Cir. 2003).          to avoid prosecution for assaulting a federal officer
    Statements were not admissible at defendant’s         and could not be construed to be an admission of
trial under hearsay exception for statements              guilt. United States v. Peeples, 2003 WL 57030
against penal interest, for the statements were not       (N.D. Ill. 2003).
themselves self-inculpatory as to the coconspirator,          A defendant’s descriptions of the sequence of
and the statements lacked corroborating circum-           physical events leading to his wounding during his
stances indicating their trustworthiness. United          arrest are not admissible under Rule 804 when his
States v. Jackson, 335 F.3d 170 (2d Cir. 2003).           statement is likely made to avoid prosecution for
    Statements in others’ plea colloquies implicat-       assaulting a federal officer and could not be con-
ing civil defendant were inadmissible hearsay and         strued to be an admission of guilt. United States v.
thus could not be considered by court in civil pro-       Peeples, 2002 U.S. Dist. LEXIS 106 (N.D. Ill.
ceeding for truth of matter asserted; those state-        2003).
ments did not fall within any exception to hearsay            Self-incriminating statements from the guilty
rule since they were made pursuant to a plea              pleas of coconspirators are admissible under Rule
agreement that served to substantially reduce             804 when those coconspirators invoke the Fifth
pleader’s criminal liability and thus provided no         Amendment, provided that the guilty pleas con-
great indicia of reliability, and were not admissible     tain indicia of trustworthiness. This requirement is
as statements against interest because only those         met when each co-defendant admits participation
specific statements within a general confession           in terms that do not attempt to shift the responsibil-
which are self-inculpatory are admissible as state-       ity for guilt to another, under oath, with the advice
ments against interest. S.E.C. v. Healthsouth Corp.,      of counsel, and in the presence of the judge. United
261 F. Supp. 2d 1298 (N.D. Ala. 2003).                    States v. Aguilar, 295 F.3d 1018 (9th Cir. 2002).
    Former defendant’s plea allocution was admissi-           Admissions about selling drugs to a third per-
ble against defendant in a prosecution for conspir-       son were inadmissible under the statement against
acy to make an extortionate extension of credit and       interest hearsay exception of Rule 804(b)(3)
for conspiracy to use and using extortionate means        because they implicated not only the declarant but
to collect an extension of credit; former defendant’s     also the third person. United States v. Chapin, 231
plea allocution was against his penal interest since      F. Supp. 2d 600 (E.D. Mich. 2002).
it exposed him to a potentially long prison sen-              The credibility of the witness who relates the
tence, and the allocution did not mention defen-          statement in court is not a proper factor for the
dant. United States v. Lombardozzi, 2003 WL               court to consider in assessing corroborating cir-
1907965 (S.D.N.Y. 2003).                                  cumstances for Rule 804(b)(3) purposes, insofar as
    A statement redacted pursuant to Bruton was           it usurps the jury’s role. Canter v. Hardy, 188 F.
properly admitted, where the declarant who made           Supp. 2d 773 (E.D. Mich. 2002).
the statement against his penal interest was                  To reach the conclusion that an out-of-court
unavailable for trial. In its redacted form, the state-   hearsay declaration would be admissible under
ment read: “About three months ago, I was offered         Rule 804(b)(3) the court need not conclude that the
$1,500 to kill a kid. I then drove around with the        testimony of the in-court witness describing that
person who offered me the job looking for the kid. I      declaration is credible. United States v. Camacho,
also took a handgun from that person. We didn’t           188 F. Supp. 2d 429 (S.D.N.Y. 2002).
find the kid.” In its redacted form, the statement            A declaration against the interest of the
inculpated the declarant, and so far tended to sub-       declarant’s employer does not fall within the



(Sinclair, Rel. #14, 9/09)                          CA–705
Rule 804                                    Trial Handbook


exception to the hearsay rule under Rule 804(b)(3).     examination would be of marginal utility in deter-
CGB Occupational Therapy, Inc. v. RHA/Pa. Nurs-         mining the truthfulness of the statements. Such
ing Homes, Inc., 2002 U.S. Dist. LEXIS 21550            guarantees must be shown by the circumstances of
(E.D. Pa. 2002).                                        the statements themselves and cannot be proven by
    In order for taped conversations between a          other evidence produced at trial. United States v.
defendant and a co-defendant while confined             Ochoa, 229 F.3d 631 (7th Cir. 2000).
together awaiting trial to be admissible under Rule        A very strong presumption of unreliability
804, the statements by the co-defendant must be         attaches to statements of coconspirators where the
admissions of guilt which clearly inculpate him in      statements (1) are produced through government
the crime. United States v. Church, 2002 U.S. Dist.     involvement; (2) describe past events; and (3) have
LEXIS 17887 (W.D. Va. 2002).                            not been subject to adversarial testing. United
    A murder coconspirator’s out-of-court-state-        States v. Ochoa, 229 F.3d 631 (7th Cir. 2000).
ments inculpating himself and defendant were               Where a declarant heard agents say that he
admissible statements against interest, including       could benefit from testifying, and might not be
those statements that apparently implicated solely      charged, gave him a strong incentive to curry favor
defendant. United States v. Westmoreland, 240           with the FBI by falsely implicating his two cocon-
F.3d 618 (7th Cir. 2001).                               spirators so that he would not be charged. United
    A co-defendant’s statement during a plea allo-      States v. Ochoa, 229 F.3d 631 (7th Cir. 2000).
cution that more than one person was involved in a         Statements made by a coconspirator to a law
conspiracy was not sufficiently self-inculpatory to     enforcement official are far less likely to be trust-
be admissible as statement against penal interest;      worthy than those to family or friends. United
although the answer did not attempt to shift blame,     States v. Ochoa, 229 F.3d 631 (7th Cir. 2000).
the question posed at the government’s request             Where the government seeks to introduce a
invited the co-defendant to curry the government’s      statement, otherwise hearsay, which inculpates its
favor by responding, and lacked necessary guar-         declarant but which, in its detail, also inculpates
antees of trustworthiness. United States v. Trope-      the defendant by spreading or shifting onto him
ano, 252 F.3d 653 (2d Cir. 2001).                       some, much, or all of the blame, the out-of-court
    In a prosecution for murder of a drug dealer, a     statement entirely lacks necessary indicia of reli-
tape-recorded conversation between defense coun-        ability. It is garden variety hearsay as to the defen-
sel and a drug dealer was not admissible as             dant and it does not lose that character merely
against penal interest where the attorney promised      because it in addition reliably inculpates the
to protect the declarant and indicated that             declarant. United States v. McClesky, 228 F.3d 640
declarant could not be charged with a crime, leav-      (6th Cir. 2000).
ing the impression that the declarant was not sub-         An alleged coconspirator in the custody of law
jecting himself to real criminal liability. United      enforcement officials will generally have a salient
States v. Alvarez, 266 F.3d 587 (6th Cir. 2001).        and compelling interest in incriminating other per-
    Police notes of an anonymous call from a tip-       sons, both to reduce the degree of his own appar-
ster referring to the perpetrator of a murder with      ent responsibility and to obtain lenience in
which defendant was charged were not admissible         sentencing. United States v. McClesky, 228 F.3d
as declarations against penal interest where the        640 (6th Cir. 2000).
declarant invoked the privilege against self-incrimi-      While advice of rights and knowing waiver of
nation and there was no corroboration of identity       them are strong indicators that a statement was vol-
of the “boss” mentioned in the call. United States v.   untary and therefore presumptively reliable as to
Patrick, 248 F.3d 11 (1st Cir. 2001).                   the declarant himself, they offer no basis for find-
    An unavailable coconspirator’s statements           ing the necessary circumstantial guarantees of
made during his plea colloquy were admissible           trustworthiness as to the portion inculpating
under Rule 804(b)(3) given their self-inculpatory       another defendant. United States v. McClesky, 228
nature, even if they tended to incriminate other        F.3d 640 (6th Cir. 2000).
defendants when coupled with other evidence at             It is highly unlikely that post-arrest, custodial
trial. United States v. Centracchio, 265 F.3d 518       statements, which clearly shift the brunt of the
(7th Cir. 2001).                                        blame to defendants effectively can be rebutted.
    Because a coconspirator’s statements incriminat-    Vincent v. Seabold, 226 F.3d 681 (6th Cir. 2000).
ing the defendant do not fall within a firmly rooted       The key for Rule 804(b)(3), and indeed any
hearsay exception, the Confrontation Clause             hearsay exception, is the reliability of the
requires that such evidence contain “particularized     declarant’s original statement, not the reliability of
guarantees of trustworthiness” such that cross-         the hearsay witness (who may be cross-examined



                                                  CA–706
                                              Case Authority                                      Rule 804


at trial). United States v. Shukri, 207 F.3d 412 (7th      FBI required him to provide truthful information,
Cir. 2000).                                                did not grant immunity for criminal activity of
    Where a witness’s statements about a conspir-          which he informed the FBI, and did not release him
acy linked himself to the others in the conspiracy,        from the terms of probation, and the favorable
they were against his own penal interest; thus, the        treatment the declarant was to receive under the
statements were not rendered inadmissible by vir-          agreement was not contingent on convicting the
tue of the fact that others were implicated. United        defendant in the instant case. United States v. Kelt-
States v. Tocco, 200 F.3d 401 (6th Cir. 2000).             ner, 147 F.3d 662 (8th Cir. 1998).
    Where alleged coconspirator invoked the Fifth              Even if the declarant was unavailable and the
Amendment at trial of defendant, testimony of pub-         statement was against his penal interest, the fact
lic defender’s investigator of statements exculpatory      that the declarant later recanted the statement
of defendant made by the coconspirator were not            under oath in court indicates that it was not suffi-
admissible hearsay where the statements were in            ciently trustworthy to be admitted under Rule
direct conflict with the statements made by the            804(b)(3). United States v. Garcia, 1998 U.S. Dist.
coconspirator in conjunction with her plea agree-          LEXIS 16720 (D. Conn. 1998).
ment and thus were insufficiently trustworthy under            Under Rule 804(b)(3), the term trustworthiness is
Rule 804(b)(3), although made in an attorney’s             analyzed by two distinct elements. In order for a
office and with a contemporaneous written record.          declaration against penal interest to be trustworthy
United States v. Lumpkin, 192 F.3d 280 (2d Cir.            evidence, the statement must actually have been
1999).                                                     made by the declarant, and it must afford a basis
    No abuse of discretion where the trial judge           for believing the truth of the matter asserted. United
excluded as untrustworthy under 804(b)(3) the affi-        States v. Johnson, 19 F. Supp. 2d 720 (W.D. Tex.
davit of a witness who contended that two pack-            1998) (excluding a statement against penal interest
ages of cocaine found at the crime scene belonged          where the declarant volunteered the statement after
to the witness. The affidavit appeared to be care-         an opportunity for reflective thought under circum-
fully drafted to create an impression that a third         stances she herself carefully engineered).
package of cocaine found at the scene belonged to              Exclusion of statements by an unavailable wit-
the witness, which, due to its location, was highly        ness as untrustworthy was appropriate where the
improbable. United States v. Amerson, 185 F.3d             defendant sought to introduce unsworn statements
676 (7th Cir. 1999).                                       made to the government during its investigation of
    Rule 804(b)(3) expressly requires corroborat-          the matter that the declarant later expressly
ing circumstances only for statements exculpating          recanted in a stipulation executed as part of a cor-
the accused. It is best to continue to utilize a unitary   porate plea agreement. United States v. Doyle, 130
standard for applying Rule 804(b)(3) to statements         F.3d 523 (2d Cir. 1997).
offered both to exculpate and to inculpate a third             The credibility of an absent declarant is a con-
party. Am. Auto. Accessories v. Fishman, 175 F.3d          sideration pertinent to the probative value of her or
534 (7th Cir. 1999).                                       his testimony and, thus, relevant to a judge’s deci-
    Given the timing of the settlement agreements          sion to admit or exclude evidence under the ever-
between the declarant and the authorities, it was          vigilant Rule 403, even if not a proper question for
reasonable to infer the declarant’s statements were        the judge under Rule 804. United States v. Doyle,
made to curry favor with them and thus the state-          130 F.3d 523 (2d Cir. 1997).
ments were properly excluded. Am. Auto. Accesso-               District court erred in admitting a statement
ries v. Fishman, 175 F.3d 534 (7th Cir. 1999).             given to police by a declarant who was offered
    Declarant’s statement was neither against his          leniency in exchange for cooperation. United States
own interest nor trustworthy, where declarant made         v. Beydler, 120 F.3d 985 (9th Cir. 1997).
his unsworn statement immediately after his arrest             The court properly admitted a declarant’s self-
without the benefit of counsel, was an obvious flight      inculpatory statements, but incorrectly excluded the
risk, needed to cooperate to obtain bond to attend         declarant’s statement that the defendant, his son,
his daughter’s baptism, and pointed to defendant           had nothing to do with the crime, where there was
as ringleader, hopefully shifting blame and reduc-         sufficient corroborating evidence. United States v.
ing any potential prison sentence. United States v.        Paguio, 114 F.3d 928 (9th Cir. 1997).
Valenzuela, 53 F. Supp. 2d 992 (N.D. Ill. 1999).               Williamson does not creates a per se bar to any
    Statement given by an unavailable declarant to         and all statements against interest that also impli-
the FBI regarding his involvement in a racketeering        cate another. United States v. Barone, 114 F.3d
scheme was admissible against coconspirators               1284 (1st Cir. 1997).
where the agreement between declarant and the



(Sinclair, Rel. #14, 9/09)                           CA–707
Rule 804                                       Trial Handbook


    A statement inculpating both the declarant and             Where a declarant agreed to cooperate with
defendant may be sufficiently reliable as to be            authorities after she was caught red-handed with
admissible where the statement is made in a non-           $16,000 in drug money, her statement that the
custodial setting to an ally, rather than to a law         defendant delivered narcotics was not admissible
enforcement official, and where circumstances sur-         under the rule because she had “nothing to lose” at
rounding the portion of the statement that incul-          the time of the statement inculpating the defen-
pates the defendant provide no reason to suspect           dant. United States v. Mendoza, 85 F.3d 1347 (8th
that this portion of the statement is any less trust-      Cir. 1996).
worthy than the portion that inculpates the                    Statements by one who later invokes the Fifth
declarant. United States v. Barone, 114 F.3d 1284          Amendment do not necessarily meet the “against
(1st Cir. 1997).                                           penal interest” requirement of Rule 804(b)(3).
    Where it is clear that the statements inculpating      United States v. Thomas, 62 F.3d 1332 (11th Cir.
both the declarant and the defendant were not              1995).
made in order to limit the declarant’s exposure to             In a trial for mail and wire fraud related to oper-
criminal liability, the declarations against interest      ation of a loan brokerage company, statements by
exception is firmly rooted for Confrontation Clause        principals of another brokerage firm that defen-
purposes. United States v. Barone, 114 F.3d 1284           dants prepared their loan packages well and regu-
(1st Cir. 1997).                                           larly checked on the status of applications were not
    In general a plea of guilty is a statement against     statements against declarants’ interests. United
the penal interest of the pleader for the obvious          States v. Thomas, 62 F.3d 1332 (11th Cir. 1995).
reason that it exposes him to criminal liability, and          A self-inculpatory statement in which the defen-
so much of the allocution as states that that defen-       dant confessed to the crime made by a friend of
dant committed or participated in the commission           defendant who later invoked the Fifth Amendment
of a crime, thereby permitting the court to accept         was not admissible where a government investiga-
the plea, is normally against his interest. United         tor reported rumors that defendant might have
States v. Muyet, 958 F. Supp. 136 (S.D.N.Y. 1997).         paid his friend to confess and three eyewitnesses
    Statements made at a bond hearing could be             saw defendant shoot the victim. United States v.
against the declarant’s penal interest, and hence          Bumpass, 60 F.3d 1099 (4th Cir. 1995).
admissible under the rule. United States v. Tokars,            Self-inculpatory statements by a co-defendant
95 F.3d 1520 (11th Cir. 1996).                             made during a plea hearing, offered to exculpate
    The fact that a person is making a broadly self-       defendant, were admissible as statements against
inculpatory confession does not make more credi-           penal interest. United States v. Nagib, 56 F.3d 798
ble the confession’s non-self-inculpatory parts.           (7th Cir. 1995).
United States v. Mendoza, 85 F.3d 1347 (8th Cir.               In criminal trial for illegal possession of fire-
1996).                                                     arms, an unavailable declarant’s statements to
    One actor’s admission that drugs “belonged” to         police which placed declarant in the room where
him is not necessarily exculpatory of another actor        the weapons were found did not amount to state-
charged with knowing possession of the contra-             ments against penal interest. United States v. Butler,
band. United States v. Pohlman, 1996 U.S. App.             71 F.3d 243 (7th Cir. 1995).
LEXIS 24775 (10th Cir. 1996).                                  In prosecution for illegal weapons possession,
    A statement may be deemed to subject the               testimony of a passenger in defendant’s car that
declarant to liability if it would be probative at trial   upon seeing the flashing police lights defendant
against the declarant. United States v. Jinadu, 98         told him to shove the shotgun through the stereo
F.3d 239 (6th Cir. 1996).                                  speaker into the trunk was admissible as a state-
    A person’s adoption of an agent’s statement,           ment against interest. United States v. Elkins, 71
indicating he knew packages contained China                F.3d 81 (10th Cir. 1995).
White heroin, would have been admissible under                 In prosecution of defendant for destruction of
Rule 804(b)(3) as a statement against interest if          motor vehicles and shooting of driver of motor
person had made the statement himself, rather than         vehicle as vehicles attempted to cross a picket line,
adopting the agent’s statement by responding               proffer by a witness’s attorney regarding the wit-
“yes.” United States v. Jinadu, 98 F.3d 239 (6th           ness’s alleged purchase of pistol from defendant
Cir. 1996).                                                was not admissible as a statement against interest,
    Statements in plea allocutions were against            due to lack of sufficient corroborating circum-
penal interests, and thus properly admitted. United        stances. United States v. Lowe, 65 F.3d 1137 (4th
States v. Santobello, 1996 U.S. App. LEXIS 4511            Cir. 1995).
(2d Cir. 1996).



                                                     CA–708
                                            Case Authority                                     Rule 804


    Investigator’s hearsay testimony pertaining to an       No abuse of discretion to exclude decedent’s
employee’s statement that the employee had been         statement made during brief recovery from a coma
told by his boss to steal from a customer was           for lack of trustworthiness where statement
admissible as a statement against interest. PECO        absolved decedent of fault. Pau v. Yosemite Park &
Energy Co. v. Boden, 64 F.3d 852 (3d Cir. 1995).        Curry Co., 928 F.2d 880, 890 (9th Cir. 1991).
    In a prosecution for drug offenses, a co-defen-         Newspaper accounts of defendant’s out-of-
dant’s statement during plea negotiations that          court statement were not more probative on the
defendants had not known of the proposed drug           point because the reporters were available to tes-
exchange at the time the sale was to take place was     tify. Larez v. City of Los Angeles, 946 F.2d 630,
not sufficiently corroborated to be admissible as       644 (9th Cir. 1991).
declaration against penal interest, in light of evi-        Commonwealth’s “Plea of Guilty” form signed
dence of defendants’ involvement in the conspir-        by defendant conclusively established that defen-
acy and the fact that defendant’s statements did not    dant was advised of his rights, and was admissible
preclude the other defendants’ involvement. United      under the residual exception. Raley v. Parke, 945
States v. Dean, 59 F.3d 1479 (5th Cir. 1995).           F.2d 137, 143 n.4 (6th Cir. 1991).
    Statements made by two coconspirators to a              Unavailable conspirator’s statement made after
third concerning the delivery of a package that         defendant’s arrest that she had told defendant to
turned out to be a kilogram of cocaine constituted      pick up the money lacked sufficient trustworthiness
admissions that they were dealing in cocaine and        to be offered by defendant to prove that he was
thus were statements against their penal interest.      told to pick up money, not drugs. United States v.
United States v. Saccoccia, 58 F.3d 754 (1st Cir.       Gomez, 927 F.2d 1530, 1536 (11th Cir. 1991).
1995).                                                      Undercover agent’s testimony that deceased
    Coconspirator’s statement, made when he was         coconspirator had demanded advance payment
arrested and found in possession of a gun, that he      because defendant was delinquent in payments
had the gun because he had heard that people            was an admissible statement against penal interest.
were sometimes robbed during drug deals and             United States v. Nazemian, 948 F.2d 522, 530
there was a lot of money involved in the deal at        (9th Cir. 1991).
issue was admissible as statement against penal             Tape recordings of defendant’s conversations
interest. United States v. Sandoval-Curiel, 50 F.3d     were admissible as statements against interest
1389 (7th Cir. 1995).                                   where corroborating testimony confirmed their
    Coconspirator who was a fugitive was unavail-       trustworthiness. United States v. Harty, 930 F.2d
able as a witness and his statement against penal       1257, 1263 (7th Cir. 1991).
interest was, therefore, admissible. United States v.       Statements against interest made by unavailable
Sandoval-Curiel, 50 F.3d 1389 (7th Cir. 1995).          witness to a stranger that exculpated defendant
    Statement made by coconspirator immediately         lacked trustworthiness. United States v. Hendrieth,
after being advised of his Miranda rights and           922 F.2d 748, 750 (11th Cir. 1991).
against his penal interest was sufficiently trustwor-       Defendant’s threat “to get” witness for testifying
thy to be admissible, where nothing indicated that      truthfully was admissible as statement against inter-
it was made in an attempt to gain leverage with         est. United States v. Triplett, 922 F.2d 1174, 1182
law enforcement officers. United States v. Sando-       (5th Cir. 1991).
val-Curiel, 50 F.3d 1389 (7th Cir. 1995).                   Co-defendant’s statement was against penal
    Though available for use against the declarant      interest even though declarant had been granted
in her own case, her statement made after her           immunity. United States v. Gabay, 923 F.2d 1536,
arrest that implicated the defendant could not be       1540 (11th Cir. 1991).
considered against penal interest since she had             Error to exclude unavailable witness’s confession
already been found with two kilograms of cocaine        to FBI, which would have exculpated defendant,
and had nothing to lose by implicating herself or       since the statement was against penal interest and
the defendant. United States v. Hazelett, 32 F.3d       had been corroborated. United States v. Arthur,
1313 (8th Cir. 1994).                                   949 F.2d 211 (6th Cir. 1991).
    A statement by defendant’s brother that a gun           Toll record of coconspirator’s telephone calls
was his and not defendant’s was not admissible          was improperly admitted under catch-all exception
under the rule, upon consideration of whether the       because defendant had not received pretrial notice.
declarant had any motive to misrepresent the facts,     United States v. Gomez, 921 F.2d 378, 384 (1st
declarant’s character, his relationship with the        Cir. 1990).
defendant, and other factors. United States v. Bobo,        Declarations putatively made against penal
994 F.2d 524 (8th Cir. 1993).                           interest were not properly received where the



(Sinclair, Rel. #14, 9/09)                        CA–709
Rule 804                                    Trial Handbook


declarant was in custody and had almost irresist-       should have been allowed to testify to inculpatory
ible incentives to curry favor with the government,     statement made to him); United States v. Stratton,
the government in fact offered to reduce the            779 F.2d 820 (2d Cir. 1986) (foundation amply
declarant’s incarceration by half if he made state-     laid here); United States v. Scopo, 861 F.2d 239
ments against the target, and the statements trivial-   (2d Cir. 1988) (guilty plea allocution properly
ized his own role rather than exposing him to any       admitted as declaration against interest).
real risks. United States v. Magana-Olivera, 917           Admissions to help a friend may not qualify.
F.2d 401 (9th Cir. 1990).                               United States v. Tovar, 687 F.2d 1210 (8th Cir.
    In the absence of corroborating circumstances,      1982).
purported declarations against penal interest are          Statements short of implicating declarant in
inadmissible. United States v. Parker, 903 F.2d 91      crime may not be admissible. United States v.
(2d Cir. 1990).                                         Tovar, 687 F.2d 1210 (8th Cir. 1982).
    Generally: United States v. Candoli, 870 F.2d          Guilty plea allocutions of coconspirators,
496 (9th Cir. 1989); United States v. Johnson, 802      redacted to avoid direct reference to defendant,
F.2d 1459 (D.C. Cir. 1986); United States v. Wool-      received as trustworthy under this rule. United
bright, 831 F.2d 1390 (8th Cir. 1987); Pfeil v. Rog-    States v. Winley, 638 F.2d 560 (2d Cir. 1981).
ers, 757 F.2d 850 (7th Cir. 1985); United States v.        Benefits to an already-jailed declarant from
Ford, 771 F.2d 60 (2d Cir. 1985) (corroboration         confessing and implicating others renders state-
requirement); United States v. Ospina, 739 F.2d         ment inadmissible as not truly against declarant’s
448 (9th Cir. 1984); United States v. Williams, 738     penal interest. United States v. Sarmiento-Perez,
F.2d 172 (7th Cir. 1984).                               633 F.2d 1092 (5th Cir. 1980); United States v.
    Exculpatory statements generally: United States     Oliver, 626 F.2d 254 (2d Cir. 1980).
v. Chalan, 812 F.2d 1302 (10th Cir. 1987) (com-            Third party’s confession implicating defendant
patriots’ assertion of the Fifth Amendment, com-        held inadmissible absent corroborating evidence.
bined with their presence near the crime scene,         United States v. Alvarez, 584 F.2d 694 (5th Cir.
was insufficient to make a declaration against          1978).
interest).
    Corroboration requirement for exculpatory           Rule 804(b)(4)—Statement of Personal or
statements of third parties: United States v. Salva-           Family History
dor, 820 F.2d 558 (2d Cir. 1987) (Second Circuit           Rule 804 of the Federal Rules of Evidence pro-
requires corroboration of both the declarant’s trust-   vides that statements “concerning the declarant’s
worthiness and the statement’s content via other        own birth, adoption, marriage, divorce, legitimacy,
evidence); United States v. Eagle Hawk, 815 F.2d        relationship by blood, adoption, or marriage,
1213 (8th Cir. 1987); United States v. Lopez, 777       ancestry, or other similar fact of personal or family
F.2d 543 (10th Cir. 1985); United States v. Strat-      history” are not excluded by the hearsay rule if the
ton, 779 F.2d 820 (2d Cir. 1986).                       declarant is unavailable. Neither party contested
    Inculpatory statements: United States v. Harrell,   that citizenship was such a personal fact. United
788 F.2d 1524 (11th Cir. 1986) (tape of several         States v. Pluta, 176 F.3d 43 (2d Cir. 1999).
defendants planning crime admissible); United              An unavailable witness’s statement to immigra-
States v. Rasmussen, 790 F.2d 55 (8th Cir. 1986)        tion officers regarding his alienage is admissible
(exclusion of insufficiently corroborated matter).      under exceptions to the hearsay rule for statements
    Co-defendants’ statements: Lee v. Illinois, 476     of personal or family history. United States v.
U.S. 530 (1986) (confrontation right limits use of      Castillo-Reyes, 1998 U.S. App. LEXIS 28323 (9th
co-defendant’s statements).                             Cir. 1998).
    Statements against penal interest: United States       Generally: United States v. Carvalho, 742 F.2d
v. Lopez, 777 F.2d 543 (10th Cir. 1985) (since a        146 (4th Cir. 1984); United States v. Medina-
reasonable person would not have made the state-        Gasca, 739 F.2d 1451 (9th Cir. 1984).
ments were they not true, attorney for third party




                                                  CA–710
                                             Case Authority                                    Rule 804


Rule 804(b)(5)—[Reserved]
                                                          Dist. LEXIS 85305 (M.D. Ga. 2006); Davis v. Ham-
Rule 804(b)(6)—Forfeiture by Wrongdoing                   mon, 547 U.S. 813 (2006); United States v.
                                                          Johnson, 403 F. Supp. 2d 721 (N.D. Iowa 2005);
Established Doctrine                                      United States v. Rodriguez-Marrero, 390 F.3d 1
                                                          (1st Cir. 2004); Garcia-Martinez v. City & County
                                                          of Denver, 392 F.3d 1187 (10th Cir. 2004); United
Rule 804(b)(6), entitled “Forfeiture by Wrongdo-          States v. Mikos, 2004 U.S. Dist. LEXIS 13650
ing,” applies only when the defendant engaged or          (N.D. Ill. 2004); United States v. Rivera, 292 F.
acquiesced in wrongdoing that was intended to,            Supp. 2d 827 (E.D. Va. 2003); United States v.
and did, procure the unavailability of the declarant      Scott, 284 F.3d 758, 762 (7th Cir. 2002); United
as a witness. This rule codifies the common-law           States v. Gurmeet Singh Dhinsa, 243 F.3d 635 (2d
forfeiture doctrine; as such, the requirement of          Cir. 2001).
intent means that the exception applies only if the
defendant, at the time of engaging in the wrong-          While wrongdoing under Rule 804(b)(6) need not
doing, has in mind the particular purpose of              consist of a criminal act, causing a person not to
making the witness unavailable. Giles v. Califor-         testify at trial cannot be considered wrongdoing
nia, ___ U.S. ___, 128 S. Ct. 2678 (2008).                itself. The courts must focus on the actions procur-
                                                          ing the unavailability. Although such malevolent
Prior confronted statements by witnesses who are          acts as murder, physical assault, and bribery are
unavailable are admissible whether or not the             clearly sufficient to constitute wrongdoing, they
defendant was responsible for their unavailabil-          are not necessary. The rule merely contemplates
ity. Giles v. California, ___ U.S. ___, 128 S. Ct.        application against the use of coercion, undue
2678 (2008).                                              influence, or pressure to silence testimony and
                                                          impede the truth-finding function of trials. Apply-
The rule of forfeiture by wrongdoing extinguishes         ing pressure on a potential witness not to testify,
Confrontation Clause claims on essentially equita-        including by threats of harm and suggestions of
ble grounds, providing that one who obtains the           future retribution, is wrongdoing. Hodges v. Att’y
absence of a witness by wrongdoing forfeits the           Gen., 506 F.3d 1337 (11th Cir. 2007); United
constitutional right to confrontation. The Federal        States v. Scott, 284 F.3d 758 (7th Cir. 2002).
Rules of Evidence codify the forfeiture doctrine for
federal trials in Rule 804(b)(6). Hodges v. Att’y         The “forfeiture by wrongdoing” exception con-
Gen., 506 F.3d 1337 (11th Cir. 2007); United              tains no limitation on the subject matter of the
States v. Carson, 455 F.3d 336 (D.D.C. 2006);             statements that it exempts from the prohibition on
United States v. Natson, 2006 U.S. Dist. LEXIS            hearsay evidence. United States v. Johnson, 403 F.
85305 (M.D. Ga. 2006); Davis v. Hammon, 547               Supp. 2d 72 (N.D. Iowa 2005); United States v.
U.S. 813 (2006); United States v. Rodriguez-Mar-          Gurmeet Singh Dhinsa, 243 F.3d 635 (2d Cir.
rero, 390 F.3d 1 (1st Cir. 2004).                         2001).

A district court may admit hearsay evidence as to         Specific Applications
statements by an unavailable declarant under Rule            A defendant who engages in wrongdoing which
804 if it finds by a preponderance of the evidence        procures the unavailability of a witness does not
that (a) the party against whom the out-of-court          forfeit his rights under the Confrontation Clause
statement is offered was involved in, or responsible      with respect to that witness’s statements unless he
for, procuring the unavailability of the declarant        engaged in the wrongdoing with the intent to pro-
through knowledge, complicity, planning, acquies-         cure the witness’s unavailability. Giles v. Califor-
cence or in any other way, and (b) that party acted       nia, ___ U.S. ___, 128 S. Ct. 2678 (2008).
with the intent of procuring the declarant’s unavail-        California Supreme Court’s theory of forfeiture
ability as an actual or potential witness. This rule is   by wrongdoing as permitting the admission into
necessary in order to deal with abhorrent behav-          evidence in a murder trial the unconfronted state-
ior that strikes at the heart of the system of justice    ments the victim made to police that, three weeks
itself. United States v. Stewart, 485 F.3d 666 (2d        earlier, the defendant had choked her, pulled a
Cir. 2007); United States v. Carson, 455 F.3d 336         knife on her, and had threatened to kill her, based
(D.D.C. 2006); United States v. Natson, 2006 U.S.         on its conclusion that the defendant had forfeited
                                                          his right to confront the victim’s testimony by com-
                                                          mitting an intentional criminal act (murder) that



(Sinclair, Rel. #14, 9/09)                          CA–711
Rule 804                                    Trial Handbook


made the victim unavailable to testify, was errone-         Rule 804(b)(1) permits cross-examined, sworn
ous. Such theory is not an exception to the Sixth       testimony of an unavailable witness to be admitted
Amendment’s confrontation requirement because it        as an exception to the hearsay rule. Former testi-
was not an exception established at the founding.       mony will not be excluded as hearsay when: (1) the
Under the common law at the time of the founding,       declarant is now unavailable; (2) it was given at a
unconfronted testimony would not be admitted            formal legal proceeding; (3) at the time it was
without a showing that the defendant intended to        given the party against whom it is now offered had
prevent a witness from testifying. In cases where       the opportunity to adequately develop it by direct,
the evidence suggested that the defendant wrong-        cross-, or redirect examination; and (4) at the time
fully caused the absence of a witness, but had not      it was given the party against whom it is now
done so to prevent the witness from testifying,         offered had a similar motive to develop it. United
unconfronted testimony was excluded unless it fell      States v. Carneglia, 256 F.R.D. 366 (E.D.N.Y.
within the separate common-law exception to the         2009).
confrontation requirement for statements made by            Under Rule 804(6), the wrongdoing that invokes
speakers who were both on the brink of death and        the rule need not consist of a criminal act, and a
aware that they were dying. Giles v. California,        variety of courts have found that something much
554 U.S. ___, 128 S. Ct. 2678 (2008).                   less than a defendant’s “extreme action” can lead a
    Statements of an unavailable declarant are not      witness to become unavailable at trial. Accord-
excluded as hearsay when offered against a party        ingly, conduct falling short of “extreme action,”
who has engaged or acquiesced in wrongdoing             such as a single threat to a witness, does not pre-
that was intended to, and did, procure the unavail-     vent the application of the forfeiture by wrongdo-
ability of the declarant as a witness, by operation     ing doctrine embodied in the rule. Ware v. Harry,
of Rule 804(b)(6). This exception applies both to       2008 U.S. Dist. LEXIS 96859 (E.D. Mich. 2008).
out-of-court statements and to in-court testimony.          Rule 804(b)(6) applies in equal force to all par-
United States v. Carneglia, 256 F.R.D. 366              ties, whether they be a criminal defendant or the
(E.D.N.Y. 2009).                                        prosecuting government. It contemplates applica-
    A court may admit hearsay evidence as to state-     tion against the use of coercion, undue influence,
ments by an unavailable declarant under Rule            or pressure to silence testimony. The doctrine of for-
804(b)(6) if it finds by a preponderance of the evi-    feiture by wrongdoing, as codified in Rule
dence (a) that the party against whom the out-of-       804(b)(6), thus covers a wide range of coercive
court statement is offered was involved in, or          and threatening action used to prevent witnesses’
responsible for, procuring the unavailability of the    in-court testimony. Ware v. Harry, 2008 U.S. Dist.
declarant through knowledge, complicity, planning       LEXIS 96859 (E.D. Mich. 2008).
or in any other way, and (b) that that party acted          The Sixth Amendment does not protect the right
with the intent of procuring the declarant’s unavail-   to confront witnesses who are absent because of a
ability as an actual or potential witness. United       defendant’s wrongdoing. Therefore, the “testimo-
States v. Carneglia, 256 F.R.D. 366 (E.D.N.Y.           nial” standard of Crawford v. Washington, 541
2009).                                                  U.S. 36 (2004), does not apply to statements
    Rule 804(b)(6) is prophylactic in nature and        admitted under 804(6). Morales v. Campbell,
deals with deliberate and wrongful behavior which       2008 U.S. Dist. LEXIS 10597 (N.D. Cal. 2008).
strikes at the heart of justice itself. To permit the       When confrontation becomes impossible due to
defendant to profit from such conduct would be          the actions of the very person who would assert the
contrary to public policy, common sense, and the        right, logic dictates that the right has been waived.
underlying purpose of the Confrontation Clause.         The law simply cannot countenance a defendant
United States v. Carneglia, 256 F.R.D. 366              deriving benefits from murdering the chief witness
(E.D.N.Y. 2009).                                        against him. To permit such subversion of a crimi-
    Where a party has intentionally procured a          nal prosecution would be contrary to public policy,
declarant’s unavailability as a witness, Rule           common sense, and the underlying purpose of the
804(b)(6) allows the declarant’s hearsay statements     Confrontation Clause, and make a mockery of the
to be offered against that party at future proceed-     system of justice that the right was designed to pro-
ings. A defendant who wrongfully and intentionally      tect. Hodges v. Att’y Gen., 506 F.3d 1337 (11th
renders a declarant unavailable as a witness in any     Cir. 2007).
proceeding forfeits the right to exclude, on hearsay        The text of Rule 804(b)(6) requires only that the
grounds, the declarant’s statements at any subse-       defendant intend to render the declarant unavail-
quent proceeding. United States v. Carneglia, 256       able as a witness. The text does not require that the
F.R.D. 366 (E.D.N.Y. 2009).                             declarant would otherwise be a witness at any par-



                                                  CA–712
                                            Case Authority                                      Rule 804


ticular trial. Thus, a defendant who wrongfully and           The district court refused to decide whether an
intentionally renders a declarant unavailable as a       unavailable declarant’s hearsay statements could
witness in any proceeding forfeits the right to          be admitted under the wrongdoing exception using
exclude, on hearsay grounds, the declarant’s state-      a pretrial proffer procedure. The court stated that
ments at that proceeding and any subsequent pro-         it was troubled by the proposed procedure because
ceeding. Indeed, this forfeiture principle applies       the hearsay statements were potentially powerful
even to situations where there was no ongoing pro-       evidence against the accused and the accused was
ceeding in which the declarant was scheduled to          on trial for the very wrongdoing alleged by the
testify. This result is both logical and fair since a    government for purposes of taking advantage of
contrary rule would serve only as a prod to the          the wrongdoing hearsay exception. Allowing oth-
unscrupulous to accelerate the timetable and mur-        erwise inadmissible evidence to prove an accused’s
der suspected “snitches” sooner rather than later.       guilt in a capital case based upon a judge’s pretrial
United States v. Stewart, 485 F.3d 666 (2d Cir.          conclusion that the accused is in fact guilty of that
2007).                                                   very crime appeared to be a slippery slope. United
    Case law has not favored a proffer procedure         States v. Mikos, 2004 U.S. Dist. LEXIS 13650 (N.D.
as an appropriate mechanism for making the               Ill. 2004).
determinations required under Rule 804(b)(6). Pro-            Evidence obtained from the defendant’s
cedures similar to those employed in assessing           recorded conversations with gang members, a let-
coconspirator declarations have been endorsed,           ter recovered from the defendant’s cell and the testi-
including (a) ruling based on a pretrial proffer, sub-   mony of three gang experts was sufficient to
ject to the court’s later determination that, based on   establish that the witness’s murder was committed
all the evidence admitted at trial, the government       within the scope of and in furtherance of the con-
has proven the foundational elements by a prepon-        spiracy in which the defendant participated, and
derance of the evidence; (b) ruling on each state-       that the murder was reasonably foreseeable to the
ment as it is elicited based on the evidence             defendant, and thus the witness’s statements to her
adduced to that point; (c) in the absence of a pre-      guardian and attorney that incriminated the defen-
trial proffer, conditionally admitting the coconspira-   dant were admissible in the murder prosecution
tor’s statements subject to the government’s eventual    under the hearsay exception applicable where a
proof of the foundational elements (the penalty for      defendant has procured a declarant’s absence.
not so proving being a possible mistrial); or            United States v. Rivera, 292 F. Supp. 2d 827 (E.D.
(d) holding a “full blown” preliminary hearing.          Va. 2003).
United States v. Mikos, 2004 U.S. Dist. LEXIS                 Under Rule 804(b)(6), a defendant who acqui-
13650 (N.D. Ill. 2004).                                  esces in conduct intended to procure the unavail-
    The potential importance of the testimony, and       ability of a witness waives his hearsay objection
whether the pending case is a capital crime, and         and that waiver is imputed to a conspirator when
the fact that the alleged wrongdoing is one of the       the conduct resulting in the witness’s unavailability
crimes to be proven at trial all bear on the issue       has been committed in furtherance of the conspir-
whether a proper showing under the rule has been         acy, is within its scope, and is reasonably foresee-
met. United States v. Mikos, 2004 U.S. Dist. LEXIS       able to a conspirator. United States v. Thompson,
13650 (N.D. Ill. 2004).                                  286 F.3d 950 (7th Cir. 2002).
    The sponsor of a declarant’s former testimony             Under 18 U.S.C. § 3731, coconspirators can be
may not create the condition of unavailability and       deemed to have waived confrontation and hear-
then benefit therefrom. Garcia-Martinez v. City &        say objections as a result of certain actions that are
County of Denver, 392 F.3d 1187 (10th Cir. 2004).        in furtherance, within the scope, and reasonably
    “Unavailability,” for purposes of Rule 804(b)(6),    foreseeable as a necessary or natural conse-
is determined based on whether the proponent was         quence of an ongoing conspiracy (murder of a wit-
able to “procure” the witness’s attendance at trial      ness). United States v. Cherry, 217 F.3d 811 (10th
“by process or other reasonable means.” Garcia-          Cir. 2000).
Martinez v. City & County of Denver, 392 F.3d
1187 (10th Cir. 2004).




(Sinclair, Rel. #14, 9/09)                         CA–713
Rule 805                                    Trial Handbook


Rule 805:           Hearsay Within Hearsay


Established Doctrine                                    Specific Applications
                                                           Under Rule 802, hearsay is inadmissible, even if
Under Rule 805, hearsay within hearsay is only          relevant, unless there is an applicable exception.
admissible if each part of a statement or docu-         Where evidence consists of multiple layers of
ment containing multiple incidents of hearsay           hearsay, it is only admissible if there is an excep-
conforms with an exception to the hearsay rules.        tion for each layer, by operation of Rule 805.
The rule contemplates situations involving two or       AmeriSource Corp. v. RxUSA Int’l, Inc., 2009 U.S.
more levels of hearsay, where each is indepen-          Dist. LEXIS 6864 (E.D.N.Y. 2009).
dently covered by another hearsay exception.               Hearsay that is contained within hearsay subject
King v. Marriott Int’l, Inc., 2007 U.S. Dist. LEXIS     to an exception is not admissible, by operation of
23854 (D.S.C. 2007); Chapala v. Interfaith Med.         Rule 805. This rule requires that each instance of
Ctr., 2006 U.S. Dist. LEXIS 73033 (E.D.N.Y.             hearsay in a multi-layer hearsay statement be
2006); Sana v. Hawaiian Cruises Ltd., 181 F.3d          admissible under some exception, in order for the
1041 (9th Cir. 1999); New York v. Hendrickson           multi-layer statement to be admitted into evidence.
Bros., 840 F.2d 1065 (2d Cir. 1988); Kulick v.          Thus, with respect to a police report, placing oth-
Pocono Downs Racing Ass’n, 816 F.2d 895 (3d             erwise inadmissible hearsay statements by third
Cir. 1987); United States v. Stratton, 779 F.2d 820     parties into the report does not make the state-
(2d Cir. 1985); Shafer v. Comm’r, 749 F.2d 1216         ments admissible under the public records and
(6th Cir. 1984); United States v. Gironda, 758 F.2d     reports exception to the hearsay rule embodied in
1201 (7th Cir. 1985); United States v. Portsmouth       Rule 803(8). United Techs. Corp. v. Mazer, 556
Paving Co., 694 F.2d 312 (4th Cir. 1982); Petro-        F.3d 1260 (11th Cir. 2009).
celli v. Gallison, 679 F.2d 286 (1st Cir. 1982);           Where an OSHA report, on the whole, qualified
United States v. Torres, 685 F.2d 921 (5th Cir.         as a business record under Rule 803(6), and the
1982).                                                  report contained an interview of plaintiff conducted
                                                        by the OSHA investigator, the statements made by
When documents are offered, the proponent must          plaintiff during the interview and recounted in the
establish that both the document itself and the         report constitute “double hearsay” under Rule 805.
hearsay statements it contains fit within an            Pursuant to that rule, double hearsay is not admis-
exception to the hearsay rule. United States v. Tay-    sible unless each level of hearsay is covered by an
lor, 462 F.3d 1023 (8th Cir. 2006); Ruffin v. City of   exception to the hearsay rule. However, because
Boston, 146 F. App’x 501 (1st Cir. 2005); Sana v.       the plaintiff is a party to the lawsuit, his statements
Hawaiian Cruises Ltd., 181 F.3d 1041 (9th Cir.          in the OSHA report, if they are legible, may be
1999); Schneck v. IBM, 1996 U.S. Dist. LEXIS            admitted as non-hearsay party admissions under
17486 (D.N.J. 1996).                                    801(d)(2)(B). Rodriguez v. Modern Handling
                                                        Equip. of N.J., Inc., 604 F. Supp. 2d 612 (S.D.N.Y.
In the business records context, double hearsay         2009).
within the meaning of Rule 805 exists when a busi-         In accordance with Rule 805, each level of a
ness record is prepared by one employee from            multiple-layer statement must conform to an excep-
information supplied by another employee. It is         tion to the hearsay rule. The mere fact that one
excepted from the hearsay rule provided both the        level of a multiple-level statement qualifies as
source and the recorder of the information, as well     “non-hearsay” does not excuse the other levels
as every other participant in the chain producing       from the rule’s mandate that each level satisfy an
the record, are acting in the regular course of busi-   exception to the hearsay rule for the statement to
ness. If the information provided to the employee       be admissible. Kelly v. Labouisse, 2009 U.S. Dist.
comes from an “outsider” to the business, such          LEXIS 13287 (S.D. Miss. 2009).
information must itself fall within a hearsay excep-       Information in a police report otherwise qualify-
tion to be admissible. United States v. Gurr, 471       ing for admission under Rule 803(8)(c), such as
F.3d 144 (D.C. Cir. 2006); United States v. Gwath-      witness statements offered to prove the truth of the
ney, 465 F.3d 1133 (10th Cir. 2006).                    matter asserted, are “hearsay within hearsay” and
                                                        inadmissible under Rule 805 unless each level of
                                                        hearsay qualifies under one of the hearsay
                                                        exceptions. ReliaStar Life Ins. Co. v. Thompson,
                                                        2008 U.S. Dist. LEXIS 71726 (S.D. Tex. 2008).



                                                  CA–714
                                            Case Authority                                      Rule 805


    The mere fact that police reports are business       Sweeney v. MARC Global, Inc., 2008 U.S. Dist.
records is not determinative of the question of          LEXIS 11490 (W.D.N.C. 2008).
whether the reports are properly admissible under            Rule 805 allows hearsay within hearsay, and
Rule 803(6) for the purpose tendered, because            the Fourth Circuit has extended the rule to include
where there is hearsay within hearsay, or double         admissions within hearsay. Wade v. Gutierrez,
hearsay, Rule 805 provides each separate level of        2007 U.S. Dist. LEXIS 48137 (D. Md. 2007).
hearsay must fall within an exception to the hear-           A police report that contains double hearsay is
say rule. No authority exists for the proposition that   inadmissible unless each level of hearsay falls
the business record exception should apply in a          within an exception to the hearsay rule. United
manner broad enough to swallow the rule requir-          States v. Taylor, 462 F.3d 1023 (8th Cir. 2006).
ing level-by-level exceptions for double hearsay.            In some cases, no single hearsay rule is invoked,
Bertoni v. Campion, 2008 U.S. Dist. LEXIS 63274          but rather many are, in the alternative. Sometimes
(E.D. Mich. 2008).                                       several hearsay rules are invoked for a single doc-
    Rule 805 of the Federal Rules of Evidence covers     ument: A medical report made out while defen-
“double hearsay.” Under the rule, in order for           dant was at the police station, as well as
“double hearsay” to be admitted, each statement          testimony based off of this medical report, falls
in the chain must fit a hearsay rule exception, and      under multiple hearsay exceptions, argued in the
this term should be read also to reach statements        alternative, as follows: 803(1) (present-sense
that qualify as “not hearsay” under Rule 801(d), as      impression), 803(5) (past recollection recorded),
well as statements that are hearsay but that are         803(6) (business record exception), and 803(8)
offered for non-hearsay purposes. United States v.       (public record exception). Statements by defendant
Calabrese, 2008 U.S. Dist. LEXIS 84583 (N.D. Ill.        which were themselves incorporated into the
2008).                                                   report, hence making double-hearsay, are them-
    Double hearsay in the context of a business          selves admissible under 801(d)(2)(A) (admission by
record exists when the record is prepared by an          party opponent), 803(2) (excited utterance),
employee with information supplied by another            803(3) (existing state of mind), and 803(4) (state-
person. If both the source and the recorder of the       ments for purposes of medical diagnosis). As such,
information, as well as every other participant in       they satisfy the double-hearsay rule, Rule 805. Ruf-
the chain producing the record, are acting in the        fin v. City of Boston, 146 F. App’x 501 (1st Cir.
regular course of business, the multiple hearsay is      2005).
excused by Rule 803(6). However, if the source of            Plaintiff’s allegation that he was told by his
the information is an outsider, Rule 803(6) does         mother that someone in library management told
not, by itself, permit the admission of the business     her that the library would never rehire plaintiff
record. The outsider’s statement must fall within        because of his pre-accident letters was inadmissible
another hearsay exception to be admissible               hearsay. Although underlying statement (library’s
because it does not have the presumption of accu-        alleged statement to plaintiff’s mother) was admissi-
racy that statements made during the regular             ble under Rule 801(d)(2) as an admission by a
course of business have, and Rule 805 requires that      party opponent, statement allegedly made by
all levels of hearsay satisfy exception hearsay          plaintiff’s mother to plaintiff (that she was told that
requirements before the statement is admissible.         the library would not rehire her son based on his
Koch Indus. v. United States, 564 F. Supp. 2d 1276       pre-accident writings) was inadmissible hearsay to
(D. Kan. 2008).                                          which no exclusion or exception applied. Adefumi
    Although an OSHA inspection report itself is         v. City of Phila. Free Library, 2003 WL 21956417
admissible hearsay under Rule 803(8) as the              (E.D. Pa. 2003).
report of a public agency, the employee state-               Testimony by the plaintiff police officer about a
ments within these reports are inadmissible dou-         statement made to him by a second officer who
ble-hearsay under Rule 805. Vasquez v. FCE               was supposedly quoting a third officer was not
Indus., 2008 U.S. Dist. LEXIS 91767 (E.D.N.Y.            admissible. McGivern v. City of Indianapolis, 2003
2008).                                                   WL 21989996 (S.D. Ind. 2003).
    Where a person in a managerial position makes            Report of insurance agent that employee’s
a statement to an employee about a plaintiff’s           coworkers stated that plaintiff had bumped his
employment, and the employee repeats that state-         head at work (where defendant contracted viral
ment to the plaintiff, both levels of hearsay meet the   encephalitis and became comatose), involved sev-
standards for a statement by an agent                    eral layers of hearsay: (1) it is an unsworn, out-of-
(801(d)(2)(D)). Hayden v. Freightcar Am., Inc.,          court statement by the insurance agent; (2) it con-
2008 U.S. Dist. LEXIS 9913 (W.D. Pa. 2008);              tains unsworn, out-of-court statements by plaintiff’s



(Sinclair, Rel. #14, 9/09)                         CA–715
Rule 806                                    Trial Handbook


coworkers; (3) which recall unsworn, out-of-court       say exists. Romano v. Howarth, 998 F.2d 101 (2d
statements by plaintiff. For the document to be         Cir. 1993).
admissible, each layer of hearsay must satisfy an          Nonparty statement about plaintiff contained in
exception to the hearsay rule. Sana v. Hawaiian         hospital record is double hearsay. Wilson v. Zap-
Cruises Ltd., 181 F.3d 1041 (9th Cir. 1999).            ata Off-Shore Co., 939 F.2d 260, 272 (5th Cir.
   In an action for age discrimination in employ-       1991).
ment, a memorandum written by the company’s                Plaintiff’s statements recorded in defendant
CEO containing allegedly ageist comments made           investigator’s accident report were inadmissible
by unidentified company executives who were             hearsay within hearsay. Rock v. Huffco Gas & Oil
authorized to make personnel decisions was prop-        Co., 922 F.2d 272, 280 (5th Cir. 1991).
erly admitted. Ryder v. Westinghouse Elec. Corp.,          Witness’s statement in police report recounting
128 F.3d 128 (3d Cir. 1997).                            what plaintiff had said is inadmissible. Parsons v.
   A paragraph within a document, recounting a          Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.
conversation with another individual, is hearsay        1991).
within hearsay. Bausch & Lomb, Inc. v. Comm’r,             Portions of absent government investigator’s
T.C. Memo 199657 (Tax Ct. 1996).                        deposition relating witness statements are hearsay.
   Statements of defendant regarding business           Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300,
negotiations with plaintiff found in the notes of       1311 (5th Cir. 1991).
plaintiff’s accountant were admissible as nonhear-         Hearsay within hearsay is barred absent an
say within a business record where defendant’s          exception for each link in the chain, and while
statements were offered only to show knowledge of       statements which are admissions under 801(d)
the matters discussed. Hoselton v. Metz Baking Co.,     need no other exception and are treated as non-
48 F.3d 1056 (8th Cir. 1995).                           hearsay, if the admission itself quotes a further
   Statements made by an officer to a nurse, con-       statement, another exception is needed to render
tained in the progress notes of the latter, do not      the statement admissible. United States v. Dotson,
qualify under the business records exception, and       821 F.2d 1034 (5th Cir. 1987).
are thus inadmissible since a second layer of hear-


Rule 806:           Attacking and Supporting Credibility of Declarant


Established Doctrine
                                                        Impeachment of an out of court declarant is inap-
Rule 806 provides that when a hearsay statement         propriate, in fact impossible, if the credibility of the
has been admitted in evidence, the credibility of       out of court declarant is not at issue (so that there is
the declarant may be attacked, and if attacked          nothing to impeach), which is to say if the declara-
may be supported, by any evidence that would be         tion is not being placed in evidence for its truth
admissible for those purposes if declarant had tes-     value. Thus, evidence intended to impeach the
tified as a witness. The clear purpose of the rule is   declarant may properly be excluded consistent
to allow a party to attack the credibility of the       with Rule 806 under such circumstances. United
declarant of an admitted statement. United States       States v. Perez, 2005 U.S. Dist. LEXIS 24444
v. Mallay, 2007 U.S. Dist. LEXIS 39583 (E.D.N.Y.        (S.D.N.Y. 2005); United States v. Stefonek, 179
2007); United States v. Naiden, 424 F.3d 718 (8th       F.3d 1030 (9th Cir. 1999); United States v.
Cir. 2005); United States v. Perez, 2005 U.S. Dist.     McClain, 934 F.2d 822 (7th Cir. 1991).
LEXIS 24444 (S.D.N.Y. 2005); United States v.
Chandler, 197 F.3d 1198 (8th Cir. 1999).                Rule 806 does not apply to hearsay statements that
                                                        are no longer considered to be hearsay because
Rule 806 does not modify Rule 608(b)’s ban on           the court has deemed them to be nonhearsay (for
extrinsic evidence of prior bad acts in the context     example, coconspirator statements). United States
of hearsay declarants, even when those declarants       v. Zagari, 111 F.3d 307 (2d Cir. 1997).
are unavailable to testify. United States v. Saada,
212 F.3d 210 (3d Cir. 2000).                            Specific Applications
                                                           Rule 806 provides that if the government intro-
                                                        duces the statement of a coconspirator pursuant to
                                                        Rule 801(d)(2)(E), the defendant can introduce



                                                  CA–716
                                           Case Authority                                      Rule 806


impeachment evidence just as if the coconspira-        United States v. Grant, 256 F.3d 1146 (11th Cir.
tor had testified. United States v. Cao, 2008 U.S.     2001).
Dist. LEXIS 48067 (S.D. Fla. 2008).                        Rule 806 allows impeachment of a hearsay
    Normally a defendant cannot introduce self-        declarant only to the extent that impeachment
exculpatory hearsay statements made by                 would be permissible had the declarant testified
coconspirators, since they do not further the con-     as a witness, which, in the case of specific
spiracy. However, if the government offers inculpa-    instances of misconduct, is limited to cross-exami-
tory statements by coconspirators, a defendant         nation under Rule 608(b). United States v. Saada,
may also introduce exculpatory statements by those     212 F.3d 210 (3d Cir. 2000).
same coconspirators as impeachment evidence.               The language of Rule 806 implicitly rejects the
United States v. Cao, 2008 U.S. Dist. LEXIS 48067      asserted rationale for lifting the ban on extrinsic
(S.D. Fla. 2008).                                      evidence. Rule 806 makes no allowance for the
    The fact that evidence impeaching a hearsay        unavailability of a hearsay declarant in the context
declarant’s credibility were admitted at an odd        of impeachment by specific instances of miscon-
point in trial, even in a “virtual vacuum,” does not   duct, but makes such an allowance in the context of
mean that the opponent’s ability to impeach the        impeachment by prior inconsistent statements. Rule
declarant was unfairly hindered. Bauer v. United       613 requires that a witness be given the opportu-
States, 2008 U.S. Dist. LEXIS 48636 (S.D. Fla.         nity to admit or deny a prior inconsistent statement
2008).                                                 before extrinsic evidence of that statement may be
    Rule 806 does not permit the admission of a        introduced. If a hearsay declarant does not testify,
hearsay declarant’s denial of making certain           however, this requirement will not usually be met.
statements even though a reporting witness testi-      Rule 806 cures any problem over the admissibility
fied that the hearsay declarant made such state-       of a nontestifying declarant’s prior inconsistent
ments because admission of the denial does not         statement by providing that evidence of the state-
seek to impeach the declarant, but instead seeks to    ment “is not subject to any requirement that the
impeach the reporting witness by contesting            declarant may have been afforded an opportunity
whether such statements were made. Wezorek v.          to deny or explain.” The fact that Rule 806 does not
Allstate Ins. Co., 2007 U.S. Dist. LEXIS 45595 (E.D.   provide a comparable allowance for the unavail-
Pa. 2007); United States v. Graham, 858 F.2d 986       ability of a hearsay declarant in the context of Rule
(9th Cir. 1988).                                       608(b)’s ban on extrinsic evidence indicates that
    Where an informant’s statements were neither       the latter’s ban on extrinsic evidence applies with
hearsay statements nor statements offered pursu-       equal force in the context of hearsay declarants.
ant to one of the recognized hearsay exceptions        United States v. Saada, 212 F.3d 210 (3d Cir.
under Rule 801, such statements were not subject to    2000).
impeachment pursuant to Rule 806. United States v.         Admission of an interview with the hearsay
Perez, 2005 U.S. Dist. LEXIS 24444 (S.D.N.Y.           declarant to impeach by omission was an example
2005).                                                 of “silence . . . so ambiguous that it is of little pro-
    Where out-of-court statements were admitted by     bative force.” United States v. Chandler, 197 F.3d
the government to prove that the statements were       1198 (8th Cir. 1999).
made and that the accused knew that it was subject         A witness can be impeached by evidence of a
to a Securities Exchange Commission investiga-         previous conviction. When the witness’s “testimony”
tion, the statements were not hearsay; the accused     consists of her out-of-court declaration that is
could not admit statements in a written report         admissible under an exception to the hearsay rule,
pursuant to Rule 806 to rebut a nonhearsay use of      the conviction can be used to impeach that “testi-
out-of-court statements. United States v. Ander-       mony” in the course of cross-examination of the
sen, 374 F.3d 281 (5th Cir. 2004).                     witness who is testifying to the out of court declara-
    Whether the Jencks Act requires production of      tion. United States v. Stefonek, 179 F.3d 1030 (9th
material usable to impeach a hearsay declarant is      Cir. 1999).
not clearly established. United States v. Jackson,         In trial for Medicare and Medicaid fraud, state-
345 F.3d 59 (2d Cir. 2003).                            ments by coconspirator that defendant had been
    An affidavit by a coconspirator was admissible     above-board in dealing with lawyer and accoun-
to impeach an agent’s testimony that coconspirator     tants concerning various categories of employees,
had told him he had partner, since statements in the   was admitted for the truth of what the conspirator
affidavit indicated that he had no partner and that    said to show no intent to defraud, and therefore the
defendant had no involvement in drug transactions.     conspirator’s hearsay statements were subject to




(Sinclair, Rel. #14, 9/09)                       CA–717
Rule 807                                     Trial Handbook


impeachment under Rule 806. United States v. Ste-            Denial of defense requests to discover the prior
fonek, 179 F.3d 1030 (9th Cir. 1999).                    record of a police informant whose statement was
    An FBI agent’s report of an interview with a         offered in hearsay form was error, since the rule
decedent who allegedly purchased cocaine from            allows the declarant to be impeached and Brady
the defendant was not legitimate Rule 806                supports such discovery. United States v. Becerra,
impeachment. United States v. Chandler, 197 F.3d         992 F.2d 960 (9th Cir. 1993).
1198 (8th Cir. 1999).                                        Where taped conversations of nontestifying wit-
    Evidence of the hearsay declarant’s guilty plea      ness and defendant were admitted without qualifi-
to crimes involving dishonesty (conspiracy to com-       cation, witness comments were hearsay and
mit mail fraud and to violate federal securities         defendant should have had chance to impeach.
laws) “is probative of truthfulness or untruthfulness”   United States v. Burton, 937 F.2d 324, 326 (7th
as required by Rule 608(b). In re Adler, Coleman         Cir. 1991).
Clearing Corp., 1998 Bankr. LEXIS 406 (S.D.N.Y.              When a nontestifying declarant’s statements are
1998).                                                   admitted in any trial, the adversary has a right to
    The credibility of a hearsay declarant may not       offer impeachment about the declarant’s character
be attacked with specific examples of misconduct,        trait for truthfulness, including calling witnesses to
which, under FED. R. EVID. 608(b), cannot be             give opinion or reputation testimony on the credi-
proved by extrinsic evidence. United States v.           bility issue. United States v. Moody, 903 F.2d 321
White, 116 F.3d 903 (D.C. Cir. 1997).                    (5th Cir. 1990).
    The court erred allowing impeachment of the              The hearsay declarant may be impeached.
testimony of a defense witness, who introduced an        Bourjaily v. United States, 483 U.S. 171 (1987);
out of court statement made by defendant, with an        United States v. Inadi, 475 U.S. 387 (1986);
inconsistent statement of defendant that the govern-     United States v. Newman, 849 F.2d 156 (5th Cir.
ment illegally acquired, where defendant’s hear-         1988); United States v. Paris, 812 F.2d 471 (9th
say statement was insufficiently inconsistent with       Cir. 1987); United States v. Price, 774 F.2d 1526
the statement made by the witness. United States v.      (11th Cir. 1986); United States v. Robinson, 763
Trzaska, 111 F.3d 1019 (2d Cir. 1997).                   F.2d 778 (7th Cir. 1986); United States v. Vretta,
    Rule 806 does not overcome a Rule 410 objec-         790 F.2d 651 (7th Cir. 1986); United States v. Ber-
tion if the statements being offered were obtained       nal, 719 F.2d 1475 (9th Cir. 1983); United States
in a proffer session and are being offered against       v. Katsougrakis, 715 F.2d 769 (2d Cir. 1983).
the person who made the proffer. United States v.            Failure to depose the out-of-court declarant, or
Rosario, 111 F.3d 293 (2d Cir. 1997).                    give the declarant an opportunity to explain, will
    Rule 806 allows an adversary to call the hear-       not bar impeachment of a hearsay declarant,
say declarant as a witness and cross-examine him.        including a coconspirator, by evidence of inconsis-
United States v. Jackson, 88 F.3d 845 (10th Cir.         tent statements. United States v. Wali, 860 F.2d
1996).                                                   508 (3d Cir. 1988).


Rule 807:            Residual Exception


Established Doctrine
                                                         analysis by the court considering the question of
Rule 807 is an exception to the hearsay rule that        admissibility is required. United States v. Ingram,
provides for the admissibility of statements that        501 F.3d 963 (8th Cir. 2007); Tatum v. Pactiv
have the same circumstantial guarantees of trust-        Corp., 2007 U.S. Dist. LEXIS 69867 (M.D. Ala.
worthiness as the other hearsay exceptions. Con-         2007); Wezorek v. Allstate Ins. Co., 2007 U.S.
gress intended that this exception to the hearsay        Dist. LEXIS 45595 (E.D. Pa. 2007); United States v.
rule be used only rarely in truly exceptional cir-       Mallay, 2007 U.S. Dist. LEXIS 39583 (E.D.N.Y.
cumstances, and Rule 807 must be construed nar-          2007); Ross v. Mercer Univ. Corp., 506 F. Supp.
rowly to prevent it from becoming the exception          2d 1325 (M.D. Ga. 2007); United States v. Libby,
that swallows the general hearsay rule embodied          475 F. Supp. 2d 73 (D.D.C. 2007); Bouygues Tele-
in Rule 802. Thus, the proponent of a statement          com, S.A. v. Tekelec, 473 F. Supp. 2d 692
sought to be admitted under the rule bears a heavy       (E.D.N.C. 2007); Barry v. Trs., 2006 U.S. Dist.
burden to establish its admissibility, and rigorous      LEXIS 92396 (D.D.C. 2006); State Fin. Bank NA v.
                                                         City of S. Milwaukee, 2006 U.S. Dist. LEXIS 67629



                                                   CA–718
                                              Case Authority                                     Rule 807



(E.D. Wis. 2006); United States v. Twoshields,             F.3d 196 (2d Cir. 2004); In re Cornfield, 2004
2006 U.S. Dist. LEXIS 56566 (D.N.D. 2006);                 U.S. Dist. LEXIS 26274 (E.D.N.Y. 2004); United
United States v. Dumeisi, 424 F.3d 566 (7th Cir.           States v. Mikos, 2004 U.S. Dist. LEXIS 13650
2005); Cook v. Miss. Dep’t of Human Servs., 108            (N.D. Ill. 2004); Mason v. Mitchell, 293 F. Supp.
F. App’x 852 (5th Cir. 2004); In re Cornfield,             2d 819 (N.D. Ohio 2003); Schering Corp. v.
2004 U.S. Dist. LEXIS 26274 (E.D.N.Y. 2004);               Pfizer, Inc., 189 F.3d 218 (2d Cir. 1999).
Butler v. State Farm Mut. Auto. Ins. Co., 2004 U.S.
Dist. LEXIS 19686 (D. Kan. 2004); Mason v.                 Rule 807’s requirement that proffered evidence be
Mitchell, 293 F. Supp. 2d 819 (N.D. Ohio 2003);            more probative than any other available evidence
Schimpf v. Gerald, Inc., 52 F. Supp. 2d 976 (E.D.          goes beyond the evidence’s mere reliability and
Wis. 1999); Conoco, Inc. v. Dep’t of Energy, 99            trustworthiness. Rather, it must be very important
F.3d 387 (Fed. Cir. 1996); O’Brien v. Nat’l Gyp-           and very reliable, such that it is the best evidence
sum Co., 944 F.2d 69, 73 (2d Cir. 1991).                   to prove the defense’s point and there is no other
                                                           evidence available that would have the same
To invoke the residual exception the hearsay rule          influence. United States v. Libby, 475 F. Supp. 2d
embodied in Rule 807, the party offering the state-        73 (D.D.C. 2007); Bouygues Telecom, S.A. v.
ment must give notice of its intention to rely on the      Tekelec, 473 F. Supp. 2d 692 (E.D.N.C. 2007); In
rule. A statement will be admitted under Rule 807          re WorldCom Sec. Litig., 2005 U.S. Dist. LEXIS
if (1) it is particularly trustworthy; (2) it bears on a   2214 (S.D.N.Y. 2005).
material fact; (3) it is the most probative evidence
addressing that fact; (4) its admission is consistent      In assessing the qualitative degree of trustworthi-
with the rules of evidence and advances the inter-         ness of a particular statement, courts should
ests of justice; and (5) its proffer follows adequate      inquire into the reliability of and necessity for the
notice to the adverse party. High degrees of both          statement. A mere suggestion of trustworthiness
probativeness and necessity are required with              cannot suffice. Factors relevant to a “trustworthi-
respect to the statement under consideration.              ness” analysis under Rule 807 include (1) whether
United States v. Bonds, 2009 U.S. Dist. LEXIS              the statement was made under oath; (2) whether
16120 (N.D. Cal. 2009); FTC v. Magazine Solu-              the statement was voluntarily made; (3) whether
tions, LLC, 2009 U.S. Dist. LEXIS 20629 (W.D. Pa.          the statement was based on personal knowledge;
2009); Land Grantors v. United States, 86 Fed. Cl.         (4) whether the declarant made a prior inconsistent
35 (2009); Oelzen v. United States, 2009 U.S.              statement; (5) whether the statement was video-
Dist. LEXIS 27640 (E.D. Mo. 2009); United States           taped; (6) whether the declarant was subject to
v. Berrios, 2008 U.S. Dist. LEXIS 52951 (D.V.I.            cross-examination; (7) the proximity of time
2008); Baude v. Heath, 2007 U.S. Dist. LEXIS               between the events described and the statement;
64444 (S.D. Ind. 2007); De Venustas v. De Venus-           (8) whether the statement is corroborated; (9) the
tas Int’l, Inc., 2007 U.S. Dist. LEXIS 50143               declarant’s motivation to fabricate; (10) whether
(S.D.N.Y. 2007); Dorado v. Dial Corp., 2007 U.S.           the statement is prepared in anticipation of litiga-
Dist. LEXIS 25562 (N.D. Ill. 2007); Wezorek v. All-        tion; (11) the spontaneity of the statement;
state Ins. Co., 2007 U.S. Dist. LEXIS 45595 (E.D.          (12) whether the declarant’s memory was faulty;
Pa. 2007); United States v. Mallay, 2007 U.S. Dist.        (13) whether the witness ever recanted his testi-
LEXIS 39583 (E.D.N.Y. 2007); United States v.              mony; and (14) if the witness is “unavailable,” the
Nguyen, 2007 U.S. Dist. LEXIS 27623 (W.D.N.Y.              reasons for the witness’s unavailability. Wezorek v.
2007); Bouygues Telecom, S.A. v. Tekelec, 473 F.           Allstate Ins. Co., 2007 U.S. Dist. LEXIS 45595
Supp. 2d 692 (E.D.N.C. 2007); United States v.             (E.D. Pa. 2007); Myers v. Richland County, 2004
Peneaux, 432 F.3d 882 (8th Cir. 2005); Rowland             U.S. Dist. LEXIS 19944 (D.N.D. 2004); Butler v.
v. Rowland, 2005 U.S. Dist. LEXIS 30296 (N.D.              State Farm Mut. Auto. Ins. Co., 2004 U.S. Dist.
Ga. 2005); In re WorldCom Sec. Litig., 2005 U.S.           LEXIS 19686 (D. Kan. 2004); United States v.
Dist. LEXIS 2214 (S.D.N.Y. 2005); Cook v. Miss.            Mikos, 2004 U.S. Dist. LEXIS 13650 (N.D. Ill.
Dep’t of Human Servs., 108 F. App’x 852 (5th Cir.          2004); Brown v. Phillip Morris, Inc., 228 F. Supp.
2004); United States v. Marmolejas, 112 F. App’x           2d 506 (D.N.J. 2002); United States v. Sanchez-
779 (2d Cir. 2004); United States v. Morgan, 385           Lima, 161 F.3d 545 (9th Cir. 1998); Amcast Indus.
                                                           Corp. v. Dotrex Corp., 779 F. Supp. 1519, 1527
                                                           (N.D. Ind. 1991); Brookover v. Mary Hitchcock
                                                           Mem’l Hosp., 893 F.2d 411 (1st Cir. 1990).




(Sinclair, Rel. #14, 9/09)                           CA–719
Rule 807                                     Trial Handbook


Specific Applications                                    before the court. Kesey, LLC v. Francis, 2009 U.S.
    Where police reports contain statements of wit-      Dist. LEXIS 28078 (D. Or. 2009).
nesses, the contents of the reports may not be               Rule 807 provides a residual exception for
admitted without analysis of the hearsay contained       statements not covered by any of the enumerated
within them. Any statement that is made by a             exceptions to the hearsay rules, so long as the
declarant not testifying at trial, offered in evidence   statement has “equivalent circumstantial guaran-
to prove the truth of the matter asserted, is            tees of trustworthiness.” In addition to finding that
excluded as hearsay under Rule 802 absent appli-         the statement has such “guarantees,” to admit the
cability of one of the hearsay exceptions provided       statement under this exception, a court must deter-
in the rules or a relevant statute. For example, some    mine that: (1) the statement is offered as evidence
statements of witnesses contained in police reports      of a material fact; (2) the statement is more proba-
may constitute excited utterances under Rule             tive on the point for which it is offered than any
803(2) or present-sense impressions under Rule           other evidence that the proponent can procure
803(1). Others may constitute dying declarations         through reasonable efforts; and (3) the general
under Rule 804(b)(2). If no other explicit hearsay       purposes of these rules and the interests of justice
exceptions in the Federal Rules of Evidence apply,       will be served by admission of the statement. Tele-
however, a hearsay statement may still be admit-         visa, S.A. de C.V. v. Univision Comm’s, Inc., 2009
ted under the “catch-all exception” of Rule 807.         U.S. Dist. LEXIS 33689 (C.D. Cal. 2009).
United States v. Carneglia, 256 F.R.D. 384                   A court’s most important inquiry under Rule
(E.D.N.Y. 2009).                                         807 is whether the proffered evidence has trust-
    The rules on hearsay should be read to               worthiness equivalent to that of the enumerated
exclude unreliable hearsay but to admit reliable         hearsay exceptions in Rules 803 and 804. Aluisi
hearsay. Such “reliable hearsay” has, of course,         v. Elliott Mfg. Co., Inc. Plan, 2009 U.S. Dist. LEXIS
the effect of promoting the truth-seeking function of    20180 (E.D. Cal. 2009).
a criminal trial and, therefore, ought to be pre-            In determining whether a statement has suffi-
sented to the finders of facts. United States v.         cient equivalent circumstantial guarantees of trust-
Carneglia, 256 F.R.D. 384 (E.D.N.Y. 2009).               worthiness under the residual hearsay exceptions,
    Under the residual hearsay exception of Rule         courts compare the circumstances surrounding the
807, properly considered factors in an analysis of       statement to the closest hearsay exception. The
reliability of hearsay statements contained in           following factors are thus relevant to a court’s
reports of investigative interviews include: (1) the     determination of whether the statements possess the
amount of time that elapsed between the event and        “guarantees of trustworthiness” required under
the statements; (2) the degree of specificity of the     Rule 807: the declarant’s disinterest; the declarant’s
statements; and (3) whether they were intended to        motivation to lie; whether the statement was made
be helpful to the officer or agent interviewing the      under oath; the declarant’s probable motivation in
witness. United States v. Carneglia, 256 F.R.D. 384      making the statement; the extent of the declarant’s
(E.D.N.Y. 2009).                                         personal knowledge of the events recounted in the
    Congress intended for the residual exception to      statement; the probable accuracy of the witness’s
the hearsay rule embodied in Rule 807 to be used         recounting of the declarant’s statement; a testifying
very rarely, and only in exceptional circum-             witness’s knowledge of the statement’s contents; the
stances, and it applies only when certain excep-         declarant’s age; the declarant’s character for truth-
tional guarantees of trustworthiness exist and when      fulness and honesty; the frequency with which the
high degrees of probativeness and necessity are          declarant made similar statements; whether the
present. A declarant’s position as a target in a         declarant recanted the statement; and the state-
criminal investigation provides him with ample           ment’s temporal proximity to the event related.
motivation to implicate others (even falsely) in his     Land Grantors v. United States, 86 Fed. Cl. 35
misconduct in order to diffuse and mitigate his own      (2009).
culpability; thus, his statements in an investigative        The residual hearsay exception of Rule 807 was
report lacked the equivalent circumstantial guaran-      not intended to confer a broad license on trial
tees of trustworthiness that Rule 807 requires.          judges to admit hearsay statements that do not fall
United Techs. Corp. v. Mazer, 556 F.3d 1260 (11th        within one of the other exceptions contained in
Cir. 2009).                                              Rules 803 and 804(b). Land Grantors v. United
    To qualify for the residual exception to the hear-   States, 86 Fed. Cl. 35 (2009).
say rule set out in Rule 807, the statement offered          Congress intended the residual hearsay excep-
must be evidence of a material fact—in other             tion embodied in Rule 807 to be used very rarely,
words, it must be relevant to the ultimate issue         and only in exceptional circumstances. The state-



                                                   CA–720
                                           Case Authority                                       Rule 807


ment must have circumstantial guarantees of trust-          By its express terms, Rule 807 only applies to
worthiness, and the reliability of and necessity for   statements the likes of those discussed in Rules 803
the statement must both be compelling. United          and 804; it does not apply to self-authenticating
States v. Hughes, 535 F.3d 880 (8th Cir. 2008).        documents under Rule 902. Ross v. Mercer Univ.
    Statements made in a prison yard conversation      Corp., 506 F. Supp. 2d 1325 (M.D. Ga. 2007).
obtained via a covert wiretap, which implicated             The second of the two main requirements of the
both speakers and the defendant challenging the        catchall exception to the hearsay rule—that the
introduction of the conversation, were properly        statement is more probative on the point for which
admitted under Rule 807. There was no reason to        it is offered than any other evidence the proponent
believe that the speakers had any motive to lie, or    can procure through reasonable efforts—provides
were lying, during the discussion. In addition, the    a basis for a trial court to evaluate the need for the
conversation was highly incriminating against the      statement in the case as compared to the costs of
speakers, and neither was attempting to deflect        obtaining alternative evidence. Barry v. Trs., 2006
criminal liability or to inculpate others, including   U.S. Dist. LEXIS 92396 (D.D.C. 2006).
the defendant. Moreover, if the speakers had                The “circumstantial guarantees of trustworthi-
known that they were being overheard, neither          ness” required by Rule 807 are not present where
would have engaged in such a discussion. Thus,         the statement of the declarant is plainly self-serv-
the statements possessed a particularized guaran-      ing and no corroboration is available. Boyd v. City
tee of trustworthiness for purposes of applying Rule   of Oakland, 2006 U.S. Dist. LEXIS 80303 (N.D.
807. United States v. Berrios, 2008 U.S. Dist. LEXIS   Cal. 2006).
52951 (D.V.I. 2008).                                        The materiality requirement in Rule 807 is
    Plea agreements are not “more probative” on a      merely a restatement of the general requirement
point of fact than live witness testimony merely       that evidence must be relevant. United States v.
because they are sworn and because a jury might        Peneaux, 432 F.3d 882 (8th Cir. 2005).
be less likely to believe the live witness. United          Mostly this rule serves as a backup, argued in
States v. Hawley, 562 F. Supp. 2d 1017 (N.D. Iowa      the alternative, such that if the original rule of evi-
2008).                                                 dence does not work, the hearsay in question at
    A plea agreement in which the declarant admits     least falls under this “catch-all” exception. Even if
actual intent to defraud does not lack trustworthi-    the statements in question were not legitimate
ness merely because the declarant admitted to          “coconspirator” statements, they would have fallen
committing said fraud. The penal consequences of       under 807. However, it is not entirely clear which
that admission outweigh the fraudulent character of    rule they fell under, only that they fell under either
the offense. Santa Barbara Capital Mgmt. v. Neil-      801(d)(2)(E) or 807. United States v. Sanders, 421
son (In re Slatkin), 525 F.3d 805 (9th Cir. 2008).     F.3d 1044 (9th Cir. 2005).
    Critical to the admission of a hearsay state-           Semi-official files kept by unofficial associates of
ment under Rule 807 is a finding that the state-       a defendant can be admitted under this rule. United
ment is trustworthy. Dorado v. Dial Corp., 2007        States v. Dumeisi, 424 F.3d 566 (7th Cir. 2005).
U.S. Dist. LEXIS 25562 (N.D. Ill. 2007).                    Rule 807 does not apply where the admissibility
    Generally, Rule 807 provides that statements not   of a statement is directly addressed by one of the
covered by Rule 803 or 804 but having “equivalent      listed exceptions in Rule 804. United States v. Zap-
circumstantial guarantees of trustworthiness” are      ata, 2005 U.S. Dist. LEXIS 2025 (S.D.N.Y. 2005).
not excluded by the hearsay rule if they meet cer-          The district court was well within its discretion in
tain requirements. However, if such statements lack    concluding that after-the-fact testimony grand jury
corroborating circumstances indicating their trust-    testimony did not have circumstantial guarantees of
worthiness under Rule 804(b)(3), the statements        trustworthiness for purposes of Rule 807. Nelson v.
clearly likewise lack the guarantees of trustworthi-   Pilkington PLC (In re Flat Glass Antitrust Litig.), 115
ness required under Rule 807. United States v. Mal-    F. App’x 570 (3d Cir. 2004).
lay, 2007 U.S. Dist. LEXIS 39583 (E.D.N.Y. 2007).          Faxed documents from a state department of
    Where the defendant’s attorneys notified the       motor vehicles under Rule 807 were more proba-
government in a criminal case that they intended to    tive on the point for which they are offered than
introduce certain recording transcript excerpts into   any other evidence which may be procured at this
evidence on the evening before cross-examination,      point through reasonable efforts, and served the
they failed to comply with the notice requirement of   general purposes of the rules and the interests of
Rule 807. United States v. Mallay, 2007 U.S. Dist.     justice to receive it. United States v. Marmolejas,
LEXIS 39583 (E.D.N.Y. 2007).                           112 F. App’x 779 (2d Cir. 2004).




(Sinclair, Rel. #14, 9/09)                       CA–721
Rule 807                                     Trial Handbook


    If a statement is made to a person whom the          survey contained leading questions that raised the
declarant believes is an ally rather than a law          risk of insincerity in responses and cast doubt on its
enforcement official, and if the circumstances sur-      trustworthiness. Because the survey focused on
rounding the portion of the statement that incul-        direct perceptions, it approximated a particular
pates the defendant provide no reason to suspect         memory survey with enough indications of trust-
that that inculpatory portion is any less trustworthy    worthiness to be admitted. New Colt Holding Corp.
than the part of the statement that directly incrimi-    v. RJG Holdings of Fla., Inc., 312 F. Supp. 2d 195
nates the declarant, the trustworthiness of the por-     (D. Conn. 2004).
tion that inculpates the defendant may well be               Hearsay statements made by a murdered
sufficiently established that its admission does not     declarant to her sister were admitted under the
violate the Confrontation Clause. United States v.       residual hearsay exception because the court
Morgan, 385 F.3d 196 (2d Cir. 2004).                     deemed them trustworthy. The statements were
    A letter not written in a coercive atmosphere,       adequately trustworthy because there was no seri-
not addressed to law enforcement authorities, writ-      ous question as to the declarant’s character for
ten by a co-defendant to an intimate acquaintance,       honesty and truthfulness. She lived and worked at
a boyfriend, in the privacy of her hotel room,           a church. The declarant was not under investiga-
which the drafter had no reason to expect would          tion and had no apparent reason to lie about her
ever find its way into the hands of the police was       statements. The declarant told the same story from
trustworthy; she did not write it to curry favor with    the time she was first contacted by law enforcement
them or with anyone else. United States v. Mor-          agents until the day she was murdered. Moreover,
gan, 385 F.3d 196 (2d Cir. 2004).                        the declarant’s statements were not elicited by law
    Two letters, both in existence twenty years or       enforcement officers or government officials but
more at the time they were offered were received         were taken from conversations she initiated with
as evidence under Rule 901(b)(8)(C), were authen-        her sister and trusted friends. These conversations
ticated as ancient documents. There was no reason        occurred when there was little or no time for reflec-
to suspect their authenticity, and a witness with rel-   tion, embellishment or fabrication. United States v.
evant knowledge testified that the letters were what     Mikos, 2004 U.S. Dist. LEXIS 13650 (N.D. Ill.
they purported to be. The letters were therefore         2004).
properly received under the exceptions to the hear-          The district court admitted as trustworthy hear-
say rule: Rule 803(16) and Rule 807. Martha Gra-         say statements by an alleged victim of child abuse
ham Sch. & Dance Found., Inc. v. Martha Graham           under the residual exception, despite the
Ctr. of Contemporary Dance, Inc., 380 F.3d 624           declarant’s alleged failure to repeat the same facts
(2d Cir. 2004).                                          consistently. Several circumstantial guarantees of
    Indictments were far less probative than the         trustworthiness supported admission of the state-
admissible evidence that was available to the par-       ments. First, the proximity of the statement to the
ties in a lawsuit, and the general purposes of the       alleged acts—seventeen days after the incident,
Rules of Evidence and the interests of justice would     while one of the declarant’s contradictory state-
in fact be undermined, instead of served, by admit-      ments was made at a motel room almost six months
ting the documents. In re WorldCom Sec. Litig.,          later. Second, experience of the interviewer—the
2005 U.S. Dist. LEXIS 2214 (S.D.N.Y. 2005).              interviewer had twenty years of experience inter-
    Although a final judgment had not been entered       viewing child victims. The interviewer testified that
at the time a plea agreement was admitted into evi-      she asked the victim open-ended questions rather
dence in a subsequent proceeding, the plea agree-        than leading questions. Third, the victim was ten
ment was admissible under the residual hearsay           years old and discussed the incident of sexual
exception because the plea was made under oath           abuse in a childlike way. Lastly, the declarant
with the advice of a competent attorney and it           denied on cross-examination making one of the
subjected the accused to severe criminal penal-          contradictory statements. United States v. Thunder
ties. Moreover, the judge who accepted the plea          Horse, 370 F.3d 745 (8th Cir. 2004).
appraised the accused of his rights and concluded            Purported identification made from a photo-
that the plea was made “knowingly and voluntar-          graphic array by severely injured and vocally par-
ily.” Rosen v. Neilson (In re Slatkin), 2004 U.S.        alyzed victim five days before his death was not
Dist. LEXIS 10555 (C.D. Cal. 2004).                      admissible in a murder prosecution under the
    The court admitted survey evidence pursuant to       residual hearsay exception, where the victim’s
the residual hearsay exception despite the fact that     blinks and nods in the alleged “response” to the
people with knowledge of the litigation partici-         array were simply too ambiguous to constitute a
pated in the administration of the survey, and the       meaningful statement, and thus lacked the circum-



                                                   CA–722
                                            Case Authority                                       Rule 807


stantial guarantees of trustworthiness. United States    rule for lack of trustworthiness, shown by witness’s
v. Lawrence, 349 F.3d 109 (3d Cir. 2003).                financial interest in litigation and his personal rea-
    A self-exculpatory statement by a third party        sons in refusing to testify at trial. Factors bearing on
did not have the circumstantial guarantees of trust-     trustworthiness of affidavit offered under residual
worthiness required under the residual exception.        exception to hearsay rule are whether:
United States v. Shryock, 342 F.3d 948 (9th Cir.         (1) declarant was known and named; (2) state-
2003).                                                   ment was made under oath and penalty of perjury;
    To establish that testimony exhibits a guarantee     (3) declarant was aware of pending litigation at the
of trustworthiness, a court should look not to cor-      time he made declaration and thus knew that his
roborating testimony but to the circumstances sur-       assertions were subject to cross-examination;
rounding the testimony itself. Thus, if the              (4) statements were based on personal observa-
declarant’s truthfulness is so clear from the sur-       tion; (5) declarant was employed by a party at time
rounding circumstances that the test of cross-exam-      of statements, and thus had financial interest in liti-
ination would be of marginal utility, then the           gation’s outcome; (6) affidavit was corroborated;
hearsay rule does not bar admission of the state-        and (7) declarant’s position and background quali-
ment at trial. Mason v. Mitchell, 293 F. Supp. 2d        fied him to make assertions. ID Sec. Sys. Canada,
819 (N.D. Ohio 2003).                                    Inc. v. Checkpoint Sys., Inc., 249 F. Supp. 2d 622
    Failure to give the pre-notification required by     (E.D. Pa. 2003).
the rule bars use of this exception to justify receipt       News accounts, unsupported by corroborating
of hearsay evidence. Chaloult v. Interstate Brands       evidence and offered to prove that certain state-
Corp., 2003 U.S. Dist. LEXIS 13602 (D. Me.               ments were made, will usually lack the circumstan-
2003).                                                   tial guarantees of trustworthiness that the residual
    Coconspirators’ out-of-court statements to a wit-    exception to the hearsay rule requires. Wright v.
ness regarding amount of drugs they bagged for           Montgomery County, 2002 U.S. Dist. LEXIS 9442
sale lacked circumstantial guarantees of trustwor-       (E.D. Pa. 2002).
thiness and thus were not admissible under residual          Unlike taped interviews under oath, statements
hearsay exception to prove drug quantity beyond a        of deported witness contained in the border patrol’s
reasonable doubt at sentencing, where the state-         interview notes do not fall within the catch-all
ments were off-the-cuff estimations subject to mis-      hearsay exception of Rule 807 because they lack
calculations and/or inaccurate representations,          sufficient indicia of trustworthiness. United States v.
and defendant did not have an opportunity to             Ramirez-Lopez, 315 F.3d 1143 (9th Cir. 2002).
explore the integrity and accuracy of those state-           A statement to a law enforcement officer by an
ments through cross-examination. United States v.        alleged victim of child sexual abuse indicates suffi-
Darwich, 337 F.3d 645 (6th Cir. 2003).                   cient trustworthiness under the catch-all hearsay
    Statements made by a coconspirator at his plea       exception of Rule 807 when it is consistent with two
allocution, which arguably exculpated defendant,         other admissible statements, is elicited by a highly
were not admissible at defendant’s trial under           professional law enforcement interrogator, and
residual hearsay exception, for the plea allocution      contains compelling detail regarding an incident
statements lacked corroborating circumstances            which occurred four years earlier. United States v.
indicating their trustworthiness. United States v.       Harrison, 296 F.3d 994 (10th Cir. 2002).
Jackson, 335 F.3d 170 (2d Cir. 2003).                        Inculpatory statements made after arrest and
    Survey sent to companies in utility industry on      confrontation with the prospect that cooperation
their usual routine maintenance was not admissi-         with law enforcement might help are too inherently
ble under residual hearsay exception, since the risk     unreliable to warrant admission under Rule 807.
of insincerity was very high, as it was based on         United States v. Chapin, 231 F. Supp. 2d 600 (E.D.
responses from interested parties who were               Mich. 2002).
informed of purpose of survey, risk of faulty mem-           Witness unavailability does not, standing
ory was inherent in questions regarding projects         alone, meet the requirements of Rule 807.
that were over sixty years old, and attorney             McGrory v. City of New York, 2002 U.S. Dist.
involvement in the design and administration of          LEXIS 20177 (S.D.N.Y. 2002).
survey exceeded what was necessary to assure                 In the context of Rule 807, substantial contem-
legal relevance of the questionnaire. United States      poraneity of an event and statement negate the
v. S. Ind. Gas & Elec. Co., 258 F. Supp. 2d 884          likelihood of deliberate or conscious misrepresenta-
(S.D. Ind. 2003).                                        tion and bolster a finding of trustworthiness. Nat’l
    Affidavits given by an unavailable witness were      W. Life Ins. Co. v. Merrill Lynch, Pierce, Fenner &
not admissible under residual exception to hearsay       Smith, Inc., 213 F. Supp. 2d 331 (S.D.N.Y. 2002).



(Sinclair, Rel. #14, 9/09)                         CA–723
Rule 807                                     Trial Handbook


    The mere fact that a statement is made under             An article in the Chinese People’s Daily news-
oath is not enough to guarantee its trustworthi-         paper was admissible as the most probative evi-
ness. United States v. Noorlun, 2002 U.S. Dist.          dence of material fact that could be procured to
LEXIS 11862 (D.N.D. 2002).                               reflect the official opinion of the Chinese govern-
    Purchase orders and other records regarding          ment. Chase Manhattan Bank v. Traffic Stream
defendant’s alleged purchase of hydriodic acid           (BVI) Infrastructure Ltd, 86 F. Supp. 2d 244
were not admissible under the business records           (S.D.N.Y. 2000).
exception for lack of a showing that the testifying          In prosecution for aiding and abetting harbor-
witness was familiar with the company’s record-          ing an undocumented alien, statements of other,
keeping system, but they were admissible under           deported aliens to INS agents were not admissible
residual hearsay exception. United States v. Laster,     under residual hearsay exception because they
258 F.3d 525 (6th Cir. 2001).                            were made during informal interview and were not
    Bahamian bank records were properly admit-           subject to cross-examination or made under oath
ted under the catch-all hearsay exception because        and hence were not trustworthy. United States v.
the reliance of the banks and customers upon these       Perez, 217 F.3d 323 (5th Cir. 2000).
records provides circumstantial guarantees of trust-         In a drug prosecution, admission of a taped
worthiness. United States v. Wilson, 249 F.3d 366        conversation between co-defendant and third per-
(5th Cir. 2001).                                         son implicating defendant under the residual
    An affidavit from a now deceased declarant           exception did not violate the defendant’s confronta-
was admissible under the rule where the declarant        tion rights because the statements had a high
had been aware of pending litigation at time of          degree of trustworthiness. United States v. Bryce,
making affidavit and thought that his assertions         208 F.3d 346 (2d Cir. 2000).
were subject to cross-examination, the statements            In prosecution under Hobbs Act for committing
were base on personal observation, the declarant         motel robberies, testimony of motel clerks regard-
was not employed by plaintiff and had no financial       ing registering of out-of-state guests was admissi-
stake in outcome of litigation, his assertions were      ble to show interstate commerce element. United
partially corroborated by minutes of directors’          States v. Rodriguez, 218 F.3d 1243 (11th Cir.
meetings, and the adversary had means to rebut           2000).
affidavit. Bohler-Uddeholm Am., Inc. v. Ellwood              Patient’s written statement had circumstantial
Group, Inc., 247 F.3d 79 (3d Cir. 2001).                 guarantees of trustworthiness because it was con-
    Information in subsidiary company’s annual           sistent with a prior interview with and FBI agent
financial statements to parent concerning amounts        and with other witnesses’ testimony. United States v.
charged by parent for comprehensive general lia-         Daniels, 117 F. Supp. 2d 1038 (D. Kan. 2000).
bility insurance policies purchased by parent for            Evidence of defendant’s ownership of a vessel
subsidiary was admissible under the catch-all rule       was taken off Worldwide Web—Coast Guard’s on-
in the subsidiary’s lawsuit to establish coverage        line vessel data base was not satisfactory because
under the policies. Burt Rigid Box, Inc. v. Travelers    any evidence procured off Internet is adequate for
Prop. Cas. Corp., 126 F. Supp. 2d 596 (W.D.N.Y.          almost nothing, even under most liberal interpreta-
2001).                                                   tion of hearsay exception rules found in Rule 807.
    Witness’s grand jury testimony possessed suffi-      St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.
cient circumstantial guarantees of trustworthiness       Supp. 2d 773 (S.D. Tex. 1999).
and was properly admitted when witness refused to            The fact that proffered evidence consists of
testify at trial, where witness was not in policy cus-   memory statements offered to establish the occur-
tody nor charged with any crime at time testimony        rence of remembered events, which excludes evi-
was given, was asked non-leading questions by            dence from hearsay exception for statements that
government and answered them with lengthy nar-           express declarant’s present state of mind, does not
ratives. United States v. Papajohn, 212 F.3d 1112        automatically preclude admission of evidence
(8th Cir. 2000).                                         under residual exception to hearsay rule, since
    Grand jury testimony of unavailable witness          residual exception sets forth additional require-
should not have been admitted under residual             ments, such as necessity and trustworthiness, that
hearsay exception where the government’s consid-         must be met before evidence may be admitted. A
eration of perjury charges against the witness           hearsay statement need not be free from all four
based on this testimony undermined its trustworthi-      categories of risk, namely, insincerity, faulty per-
ness. United States v. Bros. Constr. Co. of Ohio,        ception, faulty memory, and faulty narration, to be
Inc., 219 F.3d 300 (4th Cir. 2000).                      admitted under residual exception to the hearsay




                                                   CA–724
                                                Case Authority                                      Rule 807


rule. Schering Corp. v. Pfizer, Inc., 189 F.3d 218           purpose for the documents or any incentive for the
(2d Cir. 1999).                                              declarant to prepare false documents at the time
    Statements by unavailable witness about defen-           they were drafted. In re Hanson, 1999 U.S. Dist.
dant’s arrest were numerous and inconsistent, and            LEXIS 8442 (W.D. Mich. 1999).
thus lacked the indicia of trustworthiness required              The residual hearsay exception does not apply
for introduction under the catch-all exception or as         when a more specific hearsay rule actually deals
a statement against interest, and did not constitute         with situation. It was not intended to confer a
a report containing factual findings resulting from          broad license on trial judges to admit hearsay
an investigation. United States v. Hannaford, 1999           statements that do not fall within one of the other
U.S. App. LEXIS 18846 (9th Cir. 1999).                       exceptions contained in Rules 803 and 804(b).
    Vague testimony by now-deceased witness that             Schimpf v. Gerald, Inc., 52 F. Supp. 2d 976 (E.D.
an adjunct professor in plaintiff’s master’s program         Wis. 1999).
with access to her screenplay may have had the                   In Title VII national origin discrimination action
writer/director of the motion picture “Lone Star” in         court properly refused to admit statement of Egyp-
his home, though the witness had never seen the              tian attorney investigator who found that employee,
two together, does not have equivalent circumstan-           contrary to his representations to employer, did not
tial guarantees of trustworthiness, nor do double            actually graduate from certain university in particu-
hearsay rumors of a rift between the professor and           lar year. Akrabawi v. Carnes Co., 152 F.3d 688
the writer/director. Neither are admissible under            (7th Cir. 1998).
Rule 801 or 807. Herzog v. Castle Rock Entm’t,                   In a suit alleging injuries caused by repeated
193 F.3d 1241 (11th Cir. 1999).                              use of defendant’s keyboards on the theory that the
    Determination as to trustworthiness of surveys           defendant had not appropriately warned users of
that asked physicians to relate their memories of            the possibility of such injury, the court admitted vid-
what drug company’s agents stated about particu-             eotapes produced by keyboard manufacturers
lar antihistamine in their presentations to physi-           other than the defendant, which warned their
cians, or physicians’ beliefs about what agents had          employees how to prevent comfort disorders
said, for purpose of admitting surveys under resid-          caused by keyboard use, under Rule 807, because
ual exception to hearsay rule, required evaluation           the court determined that the videotapes were
on basis of surveys’ methodological strengths as             analogous to business records as they had been
well as their relative susceptibilities to risks of faulty   prepared by a company for a legitimate business
memory and perception. Schering Corp. v. Pfizer,             reason with no motivation to fabricate, based in
Inc., 189 F.3d 218 (2d Cir. 1999).                           large part on information generated internally.
    In a tax case, the government returned records           Gonzalez v. Digital Equip. Corp., 8 F. Supp. 2d
to the taxpayer and then lost its own copies. The            194 (E.D.N.Y. 1998).
government made no showing that the original                     The trial court avoided an analysis of the “pre-
documents are unobtainable by ordinary service of            decessor in interest” requirement of Rule 801(b)(1)
process, and therefore the revenue agent’s report            by holding that the prior testimony was admissible
was not admissible as evidence of the contents of a          under Rule 807 where the court was uncertain as to
lost or destroyed document, nor as a summary of              what would constitute a “predecessor in interest” in
documents otherwise admissible. Since the report             the circumstances of the instant case. In re Indus.
contained the opinions of the revenue agent, and             Silicone Antitrust Litig., 1998 U.S. Dist. LEXIS
no guarantee that the determinations of liability            20460 (W.D. Pa. 1998).
based on the missing documents were correct, here                In a prosecution alleging that the defendant
is no outside guarantee of the worksheets’ trustwor-         assaulted U.S. border patrol officers, the district
thiness and they are not admissible under the                court erred in not admitting sworn videotaped
catch-all exception of Rule 807. United States v.            statements of eyewitnesses deported to Mexico
Crisp, 190 F.R.D. 546 (E.D. Cal. 1999).                      shortly after the alleged assault, where declarants
    Hearsay statements by coconspirator in kick-             (1) were under oath and subject to the penalty of
back scheme implicating both himself and the                 perjury; (2) made the statements voluntarily;
defendant were admissible under Rule 807 where               (3) based the statements on facts within their own
defendant was unavailable, because the documents             personal knowledge; (4) did not contradict any of
were prepared during the time the kickback                   their previous statements to government agents and
scheme was in operation, and were based upon                 defense investigators; and (5) had their testimony
the declarant’s personal knowledge of the informa-           preserved on videotape which would allow the
tion included in the documents. Defendant offered            jurors an opportunity to view their demeanor. The
no explanation or evidence suggesting some other             government had an opportunity to develop the tes-



(Sinclair, Rel. #14, 9/09)                            CA–725
Rule 807                                       Trial Handbook


timony of these witnesses before they were                 twenty-six different states, was admitted given the
deported, and the government also had notice and           competency and reliability of those involved in its
the option to participate in taking the videotaped         preparation. Estate of Bradley v. Comm’r, 1997 Tax
statements. United States v. Sanchez-Lima, 161             Ct. Memo LEXIS 412 (T.C. 1997).
F.3d 545 (9th Cir. 1998).                                     The majority of circuit courts hold that the
    The district court properly allowed the govern-        phrase “specifically covered” means only that if a
ment to read into the record parts of the transcript       statement is admissible under one of the prior
of testimony a witness gave at the trial of the            exceptions, such prior subsection should be relied
defendant’s coconspirators in 1988 (which was              upon instead of the catch-all. If, on the other hand,
when the defendant would have been tried also, if          the statement is inadmissible under the other
he had not become a fugitive), where the witness           exceptions, these courts allow the testimony to be
had died in the interim and the witness had been           considered for admission under catch-all. United
extensively cross-examined at that earlier trial.          States v. Earles, 113 F.3d 796 (8th Cir. 1997).
United States v. Tellechia, 1998 U.S. App. LEXIS              Grand jury testimony of now unavailable wit-
18786 (7th Cir. 1998).                                     ness who was not subject to cross-examination was
    In a prosecution for the illegal possession of fire-   held to be admissible where there were sufficient
arms in which the defendant’s daughters recanted           guarantees of the trustworthiness of the statements.
statements which they made to a state social               United States v. Earles, 113 F.3d 796 (8th Cir.
worker, the trial court properly admitted the daugh-       1997).
ters’ statements because sufficient indicia of trust-         As written, the plain language of the rule does
worthiness was present: Both daughters told                not require that the issue on which a statement is
different people of the gun incident at different          most probative be a material fact; it requires only
times; statements were made to government offi-            that it be probative on the point “for which it is
cials in the most serious context of the arrest of their   offered.” United States v. Sposito, 106 F.3d 1042
father; one of the daughter’s bruises corroborated         (1st Cir. 1997).
the part of her story in which she stated that her            A statement that one defendant voluntarily
father hit her; and evidence of physical abuse sup-        made to police after the defendants allegedly
plied a motive for the daughters to testify falsely in     attempted to murdering, was admitted where the
court. United States v. Dunford, 148 F.3d 385 (4th         was no indication that police pressured the
Cir. 1998).                                                declarant into making the statement or gave or
    The district court did not abuse its discretion in     promised anything in return. United States v.
admitting statements made by children who were             Colon-Miranda, 1997 U.S. Dist. LEXIS 19460
victims of sexual abuse to an FBI agent where the          (D.P.R. 1997).
agent had been trained to interview children in               Although the notice requirements of Rule
abuse cases, interviewed the children individually         804(b)(5) are construed “strictly,” when new evi-
at their home, and did not ask leading questions.          dence is uncovered on the eve of trial advance
United States v. Rouse, 111 F.3d 561 (8th Cir.             notice is obviously impossible. United States v.
1997).                                                     Bracey, 1996 U.S. App. LEXIS 33871 (4th Cir.
    In a suit for assault and battery and Fourth           1996).
Amendment violations by police officers, state-               When “reasonable steps” have been taken to
ments which the decedent made to the Internal              locate an unavailable witness, and “pretrial notice
Affairs Department of the police department were           was wholly impracticable,” a court should grant
admitted under Rule 803(24). Crawford v. City of           “notice flexibility” under Rule 804(b)(5). United
Kansas, 952 F. Supp. 1467 (D. Kan. 1997).                  States v. Bracey, 1996 U.S. App. LEXIS 33871 (4th
    Although as a general rule, the declarant’s            Cir. 1996).
unavailability for cross-examination weighs                   A continuance to allow the party entitled to
against admitting such statements, courts have con-        advance notice an opportunity to prepare to meet
sistently relaxed the hearsay rule, when the defen-        the evidence is often the preferred remedy. United
dant has wrongfully caused the witness’s                   States v. Bracey, 1996 U.S. App. LEXIS 33871 (4th
unavailability. Crawford v. City of Kansas, 952 F.         Cir. 1996).
Supp. 1467 (D. Kan. 1997).                                    Where the defense was substantially aware of
    A Private Offering Memorandum, which con-              the gist of the testimony, courts have also waived
tained summaries of the agreements covering the            the notice requirement. United States v. Bracey,
transactions involved, the opinion letter of a law         1996 U.S. App. LEXIS 33871 (4th Cir 1996);
firm, financial projections by an accounting firm,         United States v. Panzardi-Lespier, 918 F.2d 313,
and legally required disclosures for residents of



                                                     CA–726
                                            Case Authority                                     Rule 807


317–18 (1st Cir. 1990); United States v. Leslie, 542    at airport were not admissible under residual
F.2d 285, 291 (5th Cir. 1976).                          exception to hearsay rule where defendant did not
    Grand jury testimony of a coconspirator who         explain why the dealer did not testify at trial, defen-
had died before trial possessed the “requisite indi-    dant presented no circumstantial guarantees of
cia of reliability,” and was properly admitted under    trustworthiness, and defendant did not show that
the rule, and did not violate Sixth Amendment           the statements were the most probative evidence
rights. United States v. McHan, 101 F.3d 1027 (4th      reasonably available to him. United States v. Col-
Cir. 1996).                                             lins, 66 F.3d 984 (8th Cir. 1995).
    The preconditions for deployment of Rule                In a criminal prosecution for drug crimes, the
804(b)(5) are formidable, and statements made           former testimony of now deceased declarant was
when “litigation was in the wind” were suspect and      not admissible under the exception for former testi-
hence inadmissible under the rule. Colasanto v. Life    mony where the defendant, against whom testi-
Ins. Co. of N. Am., 100 F.3d 203 (1st Cir. 1996).       mony was offered, had no opportunity to develop
    Immediacy of the declarant’s knowledge is one       that testimony at the prior trial of a coconspirator,
of the key circumstances indicating trustworthiness     even if reason for missed opportunity was that
of a statement. United States v. Sinclair, 74 F.3d      defendant was fugitive from justice at that time.
753 (7th Cir. 1996).                                    United States v. Shaw, 63 F.3d 1249 (4th Cir.
    A statement was significantly less probative than   1995).
other evidence that could reasonably have been              District court erred in looking beyond the imme-
obtained because live testimony was available.          diate circumstances of a deceased witnesses’ state-
United States v. Sinclair, 74 F.3d 753 (7th Cir.        ments to other corroborating evidence in the
1996).                                                  record, in determining that statements were admis-
    Although statements of credit card holders do       sible under residual hearsay exception, as trust-
not qualify as business records, both the written       worthiness must emanate from circumstances of
affidavits and the oral statements made to the bank     hearsay statement, not from its consistency with
personnel are admissible under the residual excep-      other evidence offered in case. United States v.
tions to the hearsay rules. United States v. Ismoila,   Shaw, 63 F.3d 1249 (4th Cir. 1995).
100 F.3d 380 (5th Cir. 1996).                               Testimony of witnesses at the previous trial of a
    Lack of motivation to dissemble is not alone suf-   coconspirator was sufficiently trustworthy to war-
ficient to support the admission of evidence over a     rant admission in prosecution of defendant under
hearsay objection. Conoco, Inc. v. Dep’t of Energy,     residual exception to hearsay rule, and did not vio-
99 F.3d 387 (Fed. Cir. 1996).                           late Confrontation Clause where the prior trial
    Summaries apparently prepared long after the        involved the same events, the witnesses testified
events they purport to record, designed to be           under oath and in the presence of a judge and
passed on to others, not to be relied on by the pre-    jury, and defendant’s interest in undermining the
paring company itself, were not admissible under        witnesses’ testimony was effectively represented by
the residual exceptions. Conoco, Inc. v. Dep’t of       coconspirator’s counsel through cross-examina-
Energy, 99 F.3d 387 (Fed. Cir. 1996).                   tion. United States v. Shaw, 63 F.3d 1249 (4th Cir.
    Where the documents underlying proposed             1995).
summary exhibits were available, the proffered              Evidence that a witness who testified at the prior
summaries were not more probative than other evi-       trial of coconspirator “hated” defendant did not
dence reasonably available, and hence were not          render the witness’s testimony so untrustworthy as
admissible under the residual exceptions. Conoco,       to preclude admission of the testimony in defen-
Inc. v. Dep’t of Energy, 99 F.3d 387 (Fed. Cir.         dant’s trial where the testimony did not focus on
1996).                                                  defendant and defendant was permitted to intro-
    Statements by the mother of an abused thirteen-     duce evidence of the witness’s bias. United States v.
year-old handicapped child to a nurse examining         Shaw, 63 F.3d 1249 (4th Cir. 1995).
the victim a few days after the incident made in            The trial court erred by allowing into evidence
connection with allegations of sexual abuse, where      information from a computer database of explo-
the child was incapable of communicating with the       sives and arson incidents, which tended to show
nurse herself, were reliable and could not be           that an earlier bomb admittedly made by the
admitted under this rule. Lovejoy v. United States,     defendant and an alter car bomb attributed to the
92 F.3d 628 (8th Cir. 1996).                            defendant were the only bombs, out of 40,867
    Taped statements made during a phone conver-        entries, which had eight characteristics in com-
sation between defendant and an alleged drug            mon, where the source of the data was not known
dealer that the dealer could not pick defendant up      and there was no standardization of procedures



(Sinclair, Rel. #14, 9/09)                        CA–727
Rule 807                                      Trial Handbook


for verifying and updating the information. United            An affidavit made under oath by a deceased
States v. Trenkler, 61 F.3d 45 (1st Cir. 1995).           deputy police chief could not be admitted since the
    Evidence that law enforcement authorities rely        death was not unexpected, the plaintiff could have
on the information does not guaranty sufficient           deposed him prior to death, and the document
trustworthiness to warrant admissibility under the        itself lacked the required trustworthiness by failing
residual hearsay exception. United States v. Tren-        to describe the context, times, and locations of the
kler, 61 F.3d 45 (1st Cir. 1995).                         conversations described. Stokes v. City of Omaha,
    In a criminal trial for sexual abuse of minors, the   23 F.3d 1362 (8th Cir. 1994).
testimony of experienced, unbiased social workers             In a criminal court-martial for attempted sod-
recounting the victims’ graphic descriptions was          omy on a minor, where defendant declined to
sufficiently trustworthy. United States v. Juvenile       cross-examine the victim whose out-of-court state-
N.B., 59 F.3d 771 (8th Cir. 1995).                        ments were later admitted under a catch-all excep-
    In a suit alleging that asbestos manufactured by      tion, the trial judge properly considered extrinsic
A caused the death of plaintiff’s spouse, where           corroborating evidence to determine the circum-
plaintiff settled with manufacturer B and offered B’s     stantial guarantees of trustworthiness since con-
response to an interrogatory in rebuttal to A’s           frontation had been waived. United States v.
defenses, but did not give notice that she was rely-      Martindale, 40 M.J. 348 (C.M.A. 1994).
ing on Rule 803(24) for admissibility, the interroga-         Bills of lading and related shipping documents
tory response was not admissible. Kirk v. Raymark         were properly received under this residual excep-
Indus., Inc., 51 F.3d 1206 (3d Cir. 1995).                tion in light of particularized showings of trustwor-
    An interrogatory response of a co-defendant           thiness, including reliance on such records by U.S.
who is seeking to avoid liability lacks the circum-       Customs Service. United States v. Bachsian, 4 F.3d
stantial guarantees of trustworthiness required by        796 (9th Cir. 1993).
Rule 803(24). Kirk v. Raymark Indus., Inc., 51 F.3d           The trial court noted correctly that hearsay that
1206 (3d Cir. 1995).                                      is not within an enumerated exception is presump-
    Where a declarant denies the accuracy of state-       tively unreliable, and the burden of overcoming
ments recorded and the recorder is also uncertain         that presumption falls on the party seeking to intro-
of the accuracy, the statements do not have “sub-         duce the evidence. Doe v. United States, 976 F.2d
stantial guarantees of trustworthiness” as required       1071, 1079 (7th Cir. 1992).
by the catch-all exception. United States v. Sever-           A three-year-old child’s hearsay statements con-
son, 49 F.3d 268 (7th Cir. 1995).                         cerning alleged acts of child abuse were sufficiently
    An out-dated FDIC certificate of insurance cou-       reliable to be admitted under the residual excep-
pled with a declaration that there is no FDIC record      tion to the hearsay rule; although peripheral details
of insurance termination prior to the date of the         she provided expanded over time, and some of her
alleged offense is sufficient to establish that the       responses were prompted by adult questioning, the
bank was FDIC-insured on that date, and is admis-         basic framework of her story remained the same,
sible as nonhearsay under Rule 801(c) rather than         and her core statements were offered on her own
Rule 803(24). United States v. Alexander, 48 F.3d         initiative shortly after the alleged incident. Doe v.
1477 (9th Cir. 1995).                                     United States, 976 F.2d 1071, 1079 (7th Cir.
    Rule 102 provides the definition for the Rule         1992).
803(24)(C) requirement that any exception under               A lack of spontaneity (such as exists in state-
that rule to the hearsay doctrine must serve the          ments elicited by questions) is not necessarily fatal
general purposes of the Federal Rules of Evidence.        to the admission of hearsay, especially in the child
United States v. Johnson, 904 F. Supp. 1303 (M.D.         abuse context. Doe v. United States, 976 F.2d
Ala. 1995).                                               1071, 1080 (7th Cir. 1992).
    Self-serving statements made to an investigator           The statements of a three-year-old male child
by witnesses to an alleged rape were inherently           concerning alleged acts of sexual abuse were suffi-
unreliable because they had not been subject to           ciently reliable to be admissible under the residual
cross-examination. Miller v. Field, 35 F.3d 1088          exception to the hearsay rule, because the core of
(6th Cir. 1994).                                          his story remained consistent over time, the child
    Prior inconsistent statements of a government         volunteered specific information when asked gen-
witness that did not meet the standards of Rule           eral, nonleading questions, and he became agi-
801(d)(1)(A) could be admitted under the catchall         tated and uncomfortable when discussing the
exception since corroborating evidence provided           incident. Doe v. United States, 976 F.2d 1071,
adequate reliability. United States v. Valdez-Soto,       1081 (7th Cir. 1992).
31 F.3d 1467 (9th Cir. 1994).



                                                    CA–728
                                            Case Authority                                       Rule 807


    The trial court’s failure to determine child vic-        Social worker’s testimony relaying statements
tims’ competency to testify did not render their         made by defendant’s children was admissible since
hearsay testimony inherently unreliable in a sexual      the children also testified about the alleged sexual
abuse case. Doe v. United States, 976 F.2d 1071,         abuse. United States v. Spotted War Bonnet, 933
1081–82 (7th Cir. 1992).                                 F.2d 1471, 1474 (8th Cir. 1991). See also United
    The Ninth Circuit requires “detailed findings”       States v. Ellis, 935 F.2d 385, 393 (1st Cir. 1991)
under this rule, as under Rule 803(24), to provide a     (social worker was allowed to testify under resid-
record for review and ensure that the trial court        ual exception as to how the victim’s two-year-old
applies the policies of the rules. Mutuelles Unis v.     sister had acted while playing with anatomically
Kroll & Linstrom, 957 F.2d 707, 713 (9th Cir.            correct dolls).
1992).                                                       Hearsay statement contained in police report is
    An oath alone is not sufficient to guarantee the     beyond residual exception, where the eyewitness is
trustworthiness of a hearsay declaration, though a       able to testify. Parsons v. Honeywell, Inc., 929 F.2d
joint offer of the declaration with a related deposi-    901, 907 (2d Cir. 1991).
tion may suffice, since the deposition version could         An accident victim’s statement absolving herself
be used to cross-examine the declaration. Mutu-          of fault, uttered after two days in a coma, cast
elles Unis v. Kroll & Linstrom, 957 F.2d 707, 714        doubt on its own trustworthiness and was not erro-
(9th Cir. 1992).                                         neously excluded. Pau v. Yosemite Park & Curry
    A survey of realty appraisal firms was admissi-      Co., 928 F.2d 880, 890 (9th Cir. 1991) (“the
ble under the residual exception to the hearsay rule     brakes failed”).
because it was the only practical manner for a real          Deceased plaintiff’s past statements to family
estate firm to meet its burden of proof on the issue     members about the incident were too self-serving to
of determining whether such firms had a long-            provide circumstantial guarantees of trustworthi-
standing practice of treating nonowner appraisers        ness. Rock v. Huffco Gas & Oil Co., 922 F.2d 272,
as employees or as independent contractors. Reag,        281–82 (5th Cir. 1991).
Inc. v. United States, 801 F. Supp. 494 (W.D. Okla.          Undated affidavit lacked indicia of trustworthi-
1992).                                                   ness where counsel declined to reveal circum-
    Statements of audience members at an auction         stances surrounding its preparation because of
identifying their company affiliations could be          attorney-client privilege. Gallo v. John Powell Chev-
received under residual rule, where the content of       rolet, Inc., 765 F. Supp. 198, 207 (M.D. Pa. 1991).
the declarations was expected information, and the           Where plaintiffs are source of “obscure” hear-
statements were made at a place where the corpo-         say statements, and nonparty had denied those
rate personnel would be likely to go. F.T.C. v. U.S.     statements attributed to him, sufficient trustworthi-
Sales Corp., 785 F. Supp. 737, 746 n.5 (N.D. Ill.        ness was lacking. Anesthesia Advantage, Inc. v.
1992).                                                   Metz Group, 759 F. Supp. 638, 654 (D. Colo.
    A videotape of an interview with a retarded          1991).
rape victim was properly received under this rule            Plaintiff’s testimony that employer’s son advised
and did not violate Confrontation Clause rights,         her of employer’s discriminatory statement was not
because of particularized evidence negating the          within catch-all exception; the mere fact of a father-
likelihood of fabrication by the victim. United States   son relationship is not a sufficient indication of reli-
v. Lyons, 36 M.J. 183 (C.M.A. 1992).                     ability. EEOC v. Indep. Stave Co., 754 F. Supp.
    Pretrial testimony from a government witness         713, 717–18 (E.D. Mo. 1991).
who died under suspicious circumstances before               Where an expected government witness was
trial was not admissible under this rule because it      found murdered on the eve of trial, his grand jury
was unreliable, and hence also violated the Con-         testimony was properly read to the jury under the
frontation Clause. United States v. Mokol, 939 F.2d      residual exception to the hearsay rule. United
436, 439 (7th Cir. 1991).                                States v. Panzardi-Lespier, 918 F.2d 313 (1st Cir.
    Error to admit coconspirator’s confession made       1990).
after arrest under residual exception since it lacked        “Every circuit has determined” that in a proper
trustworthiness. United States v. Gomez-Lemos,           case grand jury testimony may qualify for admis-
939 F.2d 326–29 (6th Cir. 1991).                         sion under this rule, and guarantees of trustworthi-
    Foreign document’s reference to defendant’s          ness are present. United States v. Donlon, 909 F.2d
prior conviction did not satisfy residual exception      650 (1st Cir. 1990).
because lack of firsthand knowledge suggested                The existence of a former testimony exception
lack of trustworthiness. United States v. Chu Kong       does not foreclose admission of grand jury testi-
Yin, 935 F.2d 990, 999 (9th Cir. 1991).                  mony under the residual exception, and evidence



(Sinclair, Rel. #14, 9/09)                         CA–729
Rule 901                                    Trial Handbook


may be used if admissible under any of the excep-          A corporate party’s S1 registration statement,
tions. United States v. Donlon, 909 F.2d 650 (1st       making a self-serving assertion of ownership of
Cir. 1990).                                             certain artistic property rights, was properly admit-
     A deposition of a now-deceased asbestos scien-     ted upon the offer by that company under the
tist, taken several years earlier in another suit not   residual exception given the reliability of the state-
involving the party against whom it was later           ment, exposure to cross-examination, and satisfac-
offered, qualified for admission under this rule        tion of the other requirements of the rule. Hal
because of its extraordinary trustworthiness. King      Roach Studios v. Feiner & Co., 883 F.2d 1429 (9th
v. Armstrong World Indus., 906 F.2d 1022 (5th           Cir. 1990).
Cir. 1990).                                                Letters, reviews, and advertisements concerning
     Where grand jury testimony lacks guarantees        plaintiff’s cookbook were inadmissible where none
of trustworthiness, it will not qualify for admission   of the authors was called as a witness. Branch v.
under this rule. United States v. Lang, 904 F.2d 618    Ogilvy & Mather, Inc., 765 F. Supp. 819, 822
(11th Cir. 1990) (estranged father’s testimony that     (S.D.N.Y. 1990).
forgery defendant son “had a knack for signing             Simultaneous translation from a foreign lan-
names”).                                                guage is not hearsay, and if it were, this residual
     Testimony taken at a former trial by a witness     exception would warrant receipt of the statements
who was examined there, and died prior to the           being translated nonetheless. United States v.
retrial, was properly admitted under this rule.         Kramer, 741 F. Supp. 893 (S.D. Fla. 1990).
United States v. Zannino, 895 F.2d 1 (1st Cir.
1990).



ARTICLE NINE:               AUTHENTICATION AND IDENTIFICATION

Rule 901:           Requirement of Authentication or Identification


General Principles
                                                        F.3d 767 (6th Cir. 2007); United States v. Hyles,
Established Doctrine                                    479 F.3d 958 (8th Cir. 2007); United States v.
                                                        Stuckey, 2007 U.S. Dist. LEXIS 75624 (S.D.N.Y.
Authentication pursuant to Rule 901 is a special        2007); Lachira v. Sutton, 2007 U.S. Dist. LEXIS
aspect of relevancy concerned with establishing         33250 (D. Conn. 2007); Bellino v. Mineta, 2007
the genuineness of evidence. Rule 901 of the Fed-       U.S. Dist. LEXIS 26728 (N.D. Ill. 2007); United
eral Rules of Evidence allows a district court to       States v. Garcia, 452 F.3d 36 (1st Cir. 2006); U.S.
admit evidence if sufficient proof has been intro-      Info. Sys., Inc. v. Int’l Bhd. of Elec. Workers Local
duced so that a reasonable juror could find in          Union No. 3, AFL-CIO, 2006 U.S. Dist. LEXIS
favor of authenticity or identification. Under Rule     52870 (S.D.N.Y. 2006); Harris v. City of St. Clairs-
901, authentication is satisfied by evidence suffi-     ville, 2006 U.S. Dist. LEXIS 92505 (S.D. Ohio
cient to support a finding that the matter in ques-     2006); Schmutte v. Resort Condos. Int’l, LLC, 2006
tion is what its proponent claims. At a minimum,        U.S. Dist. LEXIS 86725 (S.D. Ind. 2006); Conse-
Rule 901 requires some type of testimony, by one        jode Desarrollo Economico de Mexicali, AC v.
having personal knowledge, showing that the evi-        United States, 438 F. Supp. 2d 1207 (D. Nev.
dence is what the party offering it says it is. The     2006); R.R. Mgmt. Co. v. CFS La. Midstream Co.,
witness need not, however, have personal knowl-         428 F.3d 214 (5th Cir. 2005); United States v. Sex-
edge of the underlying events described in a doc-       ton, 119 F. App’x 735 (6th Cir. 2005); United
ument, the substance or accuracy of the document,       States v. Block, 148 F. App’x 904 (11th Cir. 2005);
or the methods of calculation reflected in it. United   Kamara v. United States, 2005 U.S. Dist. LEXIS
States v. Rommy, 506 F.3d 108 (2d Cir. 2007);           20651 (S.D.N.Y. 2005); Bazak Int’l Corp. v. Tar-
Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir.              rant Apparel Group, 378 F. Supp. 2d 377
2007); Harlamert v. World Finer Foods, Inc., 489        (S.D.N.Y. 2005); Boim v. Quranic Literacy Inst.,




                                                  CA–730
                                              Case Authority                                       Rule 901



340 F. Supp. 2d 885 (N.D. Ill. 2004); Fischer v.           (N.D. Ohio 2004); Telewizja Polska USA, Inc. v.
City of Portland, 2004 U.S. Dist. LEXIS 20453 (D.          Echostar Satellite Corp., 2004 U.S. Dist. LEXIS
Or. 2004); Wells v. Liddy, 37 F. App’x 53 (4th Cir.        20845 (N.D. Ill. 2004); APA Excelsior III, L.P. v.
2002); United States v. Taylor, 1999 U.S. App.             Windley, 329 F. Supp. 2d 1328 (N.D. Ga. 2004);
LEXIS 19239 (4th Cir. 1999); United States v.              United States v. Jackson, 345 F.3d 59 (2d Cir.
Henry, 164 F.3d 1304 (10th Cir. 1999); United              2003); Wells v. Liddy, 37 F. App’x 53 (4th Cir.
States v. Garrison, 168 F.3d 1089 (8th Cir. 1999).         2002); Transclean Corp. v. Bridgewood Servs.,
                                                           Inc., 77 F. Supp. 2d 1045 (D. Minn. 1999); Lentz
The bar for authentication of evidence under Rule          v. Mason, 32 F. Supp. 2d 733 (D.N.J. 1999);
901 is not particularly high. In other words, the          United States v. Arce, 997 F.2d 1123 (5th Cir.
rule does not impose a particularly high hurdle for        1993); United States v. Caldwell, 776 F.2d 989,
the proponent of the evidence to overcome to ren-          1002 (11th Cir. 1985).
der it admissible. The proponent need only dem-
onstrate a rational basis for his or her claim that        There is no single way to authenticate evidence for
the evidence is what he or she asserts it to be. The       purposes of Rule 901. The direct testimony of a
burden of authentication under Rule 901 does not           custodian or a percipient witness is not a sine qua
require the proponent of the evidence to rule out          non to the authentication of a writing. Thus, a doc-
all possibilities inconsistent with authenticity, or to    ument’s appearance, contents, substance, internal
prove beyond any doubt that the evidence is what           patterns, or other distinctive characteristics, taken
it purports to be. Rather, the standard for authenti-      in conjunction with circumstances, can, in cumula-
cation, and hence for admissibility, is one of rea-        tion, even without direct testimony, provide suffi-
sonable likelihood. There need only be a prima             cient indicia of reliability to permit a finding that it
facie showing, to the court, of authenticity, not a        is authentic. Authentication of item of real evidence
full argument on admissibility. The opponent of the        may be accomplished by any means sufficient to
evidence, on the other hand, bears the burden of           support finding that item is what its proponent
showing that a genuine issue of authenticity exists.       claims, and may be based upon circumstantial evi-
Once the court determines that the proponent of a          dence. United States v. Garcia, 452 F.3d 36 (1st
document has produced evidence sufficient to               Cir. 2006); Schmutte v. Resort Condos. Int’l, LLC,
show by a “reasonable likelihood” that the docu-           2006 U.S. Dist. LEXIS 86725 (S.D. Ind. 2006);
ment in question is what its proponent claims, then        United States v. Dumeisi, 424 F.3d 566 (7th Cir.
the evidence may be admitted and any outstand-             2005); Bouriez v. Carnegie Mellon Univ., 2005
ing issues regarding its authenticity are to be            U.S. Dist. LEXIS 18324 (W.D. Pa. 2005); United
resolved by the fact-finder. United States v.              States v. Henry, 164 F.3d 1304 (10th Cir. 1999);
Gagliardi, 506 F.3d 140 (2d Cir. 2007); United             United States v. Lepanto, 817 F.2d 1463, 1466
States v. Hyles, 479 F.3d 958 (8th Cir. 2007);             (10th Cir. 1987). Mauldin v. Upjohn Co., 697 F.2d
United States v. Stuckey, 2007 U.S. Dist. LEXIS            644, 648 (5th Cir. 1983); United States v. Will-
75624 (S.D.N.Y. 2007); Lachira v. Sutton, 2007             iams, 809 F.2d 75 (1st Cir. 1986) (reasonable
U.S. Dist. LEXIS 33250 (D. Conn. 2007); Bellino v.         probability that evidence was not altered is the
Mineta, 2007 U.S. Dist. LEXIS 26728 (N.D. Ill.             required showing); United States v. O’Connell,
2007); United States v. Garcia, 452 F.3d 36 (1st           841 F.2d 1408, 1420 (8th Cir. 1988);
Cir. 2006); U.S. Info. Sys., Inc. v. Int’l Bhd. of Elec.   McQueeney v. Wilmington Trust Co., 779 F.2d
Workers Local Union No. 3, AFL-CIO, 2006 U.S.              916, 928 (3d Cir. 1985); United States v. Gironda,
Dist. LEXIS 52870 (S.D.N.Y. 2006); United States           758 F.2d 1201, 1218 (7th Cir. 1985); United
v. Block, 148 F. App’x 904 (11th Cir. 2005); Lex-          States v. Bruner, 657 F.2d 1278 (D.C. Cir. 1981).
ington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318 (3d
Cir. 2005); Kamara v. United States, 2005 U.S.             Specific Applications
Dist. LEXIS 20651 (S.D.N.Y. 2005); Bledsoe v. Pot-             Under Rule 901(a), to establish that evidence is
ter, 2005 U.S. Dist. LEXIS 19600 (N.D. Ill. 2005);         authentic, a proponent need only present evidence
Bazak Int’l Corp. v. Tarrant Apparel Group, 378 F.         sufficient to support a finding that the matter in
Supp. 2d 377 (S.D.N.Y. 2005); Boim v. Quranic              question is what the proponent claims. The factual
Literacy Inst., 340 F. Supp. 2d 885 (N.D. Ill.             determination of whether evidence is that which
2004); Fiordalisi v. Zubek, 342 F. Supp. 2d 737            the proponent claims is ultimately reserved for the
                                                           jury. United States v. Vidacak, 553 F.3d 344 (4th
                                                           Cir. 2009).




(Sinclair, Rel. #14, 9/09)                           CA–731
Rule 901                                     Trial Handbook


    The district court’s role in conducting a Rule 901   Holdings, LLC v. Punch Int’l, NV, 2009 U.S. Dist.
authenticity inquiry is to serve as gatekeeper in        LEXIS 27406 (S.D. Tex. 2009).
assessing whether the proponent has offered a sat-           Authentication, required by Rule 901(a), is not
isfactory foundation from which the jury could rea-      satisfied simply by attaching a document to an
sonably find that the evidence is authentic. In other    affidavit. The affidavit must contain testimony of a
words, the court need not find that the evidence is      witness with personal knowledge of the facts who
necessarily what the proponent claims, but only          attests to the identity and due execution of the doc-
that there is sufficient evidence that the jury ulti-    ument. Frost v. Robertson, 2009 U.S. Dist. LEXIS
mately might do so. The burden to authenticate           24006 (D. Idaho 2009); Scott v. United States,
under Rule 901 is not high—only a prima facie            2009 U.S. Dist. LEXIS 14945 (D. Idaho 2009).
showing is required. United States v. Vidacak, 553           Pursuant to Rules 901 and 902, evidence other
F.3d 344 (4th Cir. 2009).                                than live testimony must be authenticated as a con-
    The burden of proof for authentication under         dition precedent to a finding of relevance. In addi-
Rule 901 is slight. Under the rule, the requirements     tion, under Rule 901, the proponent of the
of authentication or identification as a condition       evidence bears the burden of providing evidence
precedent to admissibility is satisfied by evidence      sufficient to support a finding that the matter in
sufficient to support a finding that the matter in       question is what its proponent claims. United States
question is what its proponent claims. Importantly,      v. Bonds, 2009 U.S. Dist. LEXIS 16120 (N.D. Cal.
there need only be a prima facie showing, to the         2009).
court, of authenticity, not a full argument on admis-        When an evidentiary item is not readily identifi-
sibility. Once such a showing is made, the evidence      able—as with a blood or urine sample—the
goes to the jury and the jury will ultimately deter-     authentication required by Rule 901 can be
mine the authenticity of the evidence, not the court.    accomplished by establishing through a “chain of
Jiminez v. United States, 2009 U.S. Dist. LEXIS          custody” that there is a reasonable probability that
40358 (E.D. Pa. 2009).                                   the evidence has not been altered in any material
    Under Rule 901, a bag of crack cocaine is            aspect since the time of the crime and that the evi-
admissible in a prosecution for possession with          dence is relevant. A defect in the chain of custody
intent to distribute if the evidence supports a find-    goes to the weight, not the admissibility, of the evi-
ing that the specific bag in question was in the         dence introduced. Nevertheless, the existence of
defendant’s possession at the time of his arrest. Tate   serious gaps in the chain or suspicious discrepan-
v. United States, 2009 U.S. Dist. LEXIS 31761 (D.        cies in the records, descriptions, or quantum or
Conn. 2009).                                             nature of the material may raise enough doubt to
    Rule 901 does not erect a particularly high hur-     require exclusion. United States v. Bonds, 2009
dle, and the proponent of the evidence is not            U.S. Dist. LEXIS 16120 (N.D. Cal. 2009).
required to rule out all possibilities inconsistent          Authentication under Rule 901 does not erect a
with authenticity, or to prove beyond any doubt          particularly high hurdle to admissibility and is sat-
that the evidence is what it purports to be. The         isfied by evidence sufficient to support a finding
requirement under Rule 901 is satisfied if sufficient    that the matter in question is what its proponent
proof has been introduced so that a reasonable           claims. The party offering the evidence is not
juror could find in favor of authenticity or identifi-   required to rule out all possibilities inconsistent with
cation. Ibrahim v. City of Houston, 2009 U.S. Dist.      authenticity, or to prove beyond any doubt that the
LEXIS 31735 (S.D. Tex. 2009).                            evidence is what it purports to be. Asher v. Baxter
    The proponent does not have to rule out all          Int’l, 2009 U.S. Dist. LEXIS 7877 (N.D. Ill. 2009).
possibilities not consistent with authenticity; the          Under Rule 901(a), the bar for authentication of
standard is one of “reasonable likelihood.” To           evidence is not particularly high, and proof of
authenticate documents used to support a motion,         authentication may be direct or circumstantial. The
a party must attach the documents as exhibits to an      rule is satisfied if sufficient proof has been intro-
affidavit made by a person through whom the              duced so that a reasonable juror could find in
exhibits could be admitted into evidence at trial. To    favor of authenticity or identification. United
authenticate by affidavit, an affiant must affirma-      States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008);
tively show that he has personal knowledge and is        Pugliese v. Verizon N.Y., Inc., 2008 U.S. Dist. LEXIS
competent to testify to the matters stated therein.      52677 (S.D.N.Y. 2008).
The parties may also authenticate exhibits with              Rule 901(a) provides that the requirement of
deposition excerpts as long as these excerpts are        authentication or identification as a condition pre-
accompanied by the court reporter’s certification        cedent to admissibility is satisfied by evidence suffi-
that the copy is true and correct. Madison One           cient to support a finding that the matter in



                                                   CA–732
                                             Case Authority                                      Rule 901


question is what its proponent claims. Under the              The requirement of authentication or identifica-
rule, the party offering the evidence is not              tion as a condition precedent to admissibility is sat-
required to rule out all possibilities inconsistent       isfied by evidence sufficient to support a finding
with authenticity, or to prove beyond any doubt           that the matter in question is what its proponent
that the evidence is what it purports to be. Collins      claims, not a particularly high hurdle. The require-
v. Cook County, 2008 U.S. Dist. LEXIS 92748               ment under Rule 901 is satisfied if sufficient proof
(N.D. Ill. 2008); Pugliese v. Verizon N.Y., Inc.,         has been introduced so that a reasonable juror
2008 U.S. Dist. LEXIS 52677 (S.D.N.Y. 2008).              could find in favor of authenticity or identification.
    Testimony by a “witness with knowledge” that a        United States v. Ford, 279 F. App’x 68 (2d Cir.
matter is what it is claimed to be is sufficient for      2008).
authentication, for purposes of Rule 901. Stated              If in the court’s judgment it seems reasonably
differently, a document can be authenticated              probable that the evidence is what it purports to be,
under the rule by a witness who wrote it, signed          the command of Rule 901(a) is satisfied, and the
it, used it, or saw others do so. Shanklin v. Colum-      evidence’s persuasive force is left to the jury. United
bia Mgmt. Advisors, L.L.C., 2008 U.S. Dist. LEXIS         States v. Ford, 279 F. App’x 68 (2d Cir. 2008).
91797 (S.D. Tex. 2008); C.N. v. L.A. Unified Sch.             The Rules of Evidence do not provide an excep-
Dist., 2008 U.S. Dist. LEXIS 80429 (C.D. Cal.             tion for the case of a possible authenticator who is
2008).                                                    too frightened to appear and authenticate an item
    Rule 901 provides, as a matter of conditional         of evidence. Authentication requirements satisfy the
relevance, that documents are authenticated if            legitimate interest in the criminal trial process of
there is evidence sufficient to support a finding that    screening unreliable photographs, and authentica-
the matter in question is what its proponent claims.      tion is neither arbitrary nor does it disproportion-
A document may be either self-authenticating or it        ately constrict a defendant’s right to present a
may be authenticated by a witness laying the              complete defense. The rule is not so narrow as to
proper foundation for such evidence. The burden           limit authentication only to the photographer. The
of proof for authentication is slight and may be          rule ably ensures that the trier of fact has some evi-
satisfied by the distinctive characteristics of the       dence linking the photograph to the object other
document itself, if they suggest an official appear-      than the submitting counsel’s good word. James v.
ance. Capital City Cab Serv. v. Susquehanna Area          Smith, 2008 U.S. Dist. LEXIS 50073 (E.D.N.Y.
Reg’l Airport Auth., 2008 U.S. Dist. LEXIS 89707          2008).
(M.D. Pa. 2008).                                              Under Rule 901(b)(4), appearance, contents,
    Rule 901 provides that authentication or identifi-    substance, internal patterns, or other distinctive
cation of a document is a condition precedent to          characteristics, taken in conjunction with circum-
the document’s being admissible into evidence. To         stances, can support a finding that the matter in
be admissible, documents must be authenticated by         question is what its proponent claims. Bauer v.
and attached to an affidavit that meets the require-      Bayer A.G., 564 F. Supp. 2d 365 (M.D. Pa. 2008).
ments of FED. R. CIV. P. 56(e) and the affiant must           A party’s pro se status did not exempt him from
be a person through whom the exhibits could be            compliance with relevant rules of procedural and
admitted into evidence. Shannon v. Potter, 2008           substantive law, such as the authentication of
U.S. Dist. LEXIS 87627 (S.D. Fla. 2008).                  records relied upon. Shambreskis v. Bridgeport &
    Authentication, required by Rule 901(a), is not       Port Jefferson Steamboat Co., 2008 U.S. Dist.
satisfied simply by attaching a document to an            LEXIS 37841 (E.D.N.Y. 2008).
affidavit. The affidavit must contain testimony of a          The purpose of the authentication requirement is
witness with personal knowledge of the facts who          to ensure that the evidence submitted is what the
attests to the identity and due execution of the          proponent claims. While this purpose is served if
document. Estate of Young v. County of Boundary,          the opposing party supplies a record during dis-
2008 U.S. Dist. LEXIS 62196 (D. Idaho 2008).              covery, it is not necessarily served when a third
    Even where some witnesses were unable to pos-         party, such as a doctor or hospital, is the source. In
itively identify a bat as the same used in the assault,   order for such records to be admissible, the offer-
the prosecution made a prima facie showing suffi-         ing party needed to properly authenticate the docu-
cient such that a reasonable juror could find in          ments as it did other records. Am. Gen. Life Ins.
favor of authenticity or identification, and for the      Co. v. Green, 2008 U.S. Dist. LEXIS 39985 (E.D.
district court to conclude that the evidence in ques-     Cal. 2008).
tion is what its proponent claims. United States v.           If the party offering evidence is unable to self-
Quagigant, 282 F. App’x 633 (9th Cir. 2008).              authenticate it pursuant to Rule 902, the party is
                                                          not precluded from attempting to authenticate it



(Sinclair, Rel. #14, 9/09)                          CA–733
Rule 901                                        Trial Handbook


under the general provision of Rule 901 that the            those records. Casey v. Phelan Ins. Agency, 2006
requirement of authentication or identification as a        U.S. Dist. LEXIS 31120 (N.D. Ind. 2006).
condition precedent to admissibility is satisfied by            Evidence that is not oral testimony must, under
evidence sufficient to support a finding that the           Rule 901, be shown to be what it purports to be
matter in question is what its proponent claims.            rather than a forgery or other fabrication or an
Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007).           innocent misidentification. However, there are no
    Illustrative examples of evidence sufficient to         rigid rules, such as chain of custody, for authentica-
support a finding that the matter in question is what       tion; all that is required is adequate evidence of
its proponent claims include the testimony of a wit-        genuineness. United States v. Dawson, 425 F.3d
ness with knowledge that a matter is what it is             389 (7th Cir. 2005).
claimed to be, or testimony describing a process                The showing of authenticity under Rule 901 is
or system used to produce a result and showing              not on a par with more technical evidentiary rules,
that the process or system produces an accurate             such as hearsay exceptions, governing admissibil-
result. United States v. Rommy, 506 F.3d 108 (2d            ity. Rather, there need be only a prima facie show-
Cir. 2007).                                                 ing, to the court, of authenticity, not a full
    With respect to the authentication of computer          argument on admissibility. Once a prima facie
business records under Rule 901, it is not neces-           case is made, the evidence goes to the jury and it is
sary that the person authenticating the record              the jury who will ultimately determine the authentic-
have technical knowledge of how the computer                ity of the evidence, not the court. The only require-
functions, nor is it necessary that the authentica-         ment is that there has been substantial evidence
tor be the one who created the file. It is sufficient       from which they could infer that the document was
if the person authenticating the records has per-           authentic. Lexington Ins. Co. v. W. Pa. Hosp., 423
sonal knowledge of the record system and is the             F.3d 318 (3d Cir. 2005).
custodian of the record in question itself. Linderoth           For authentication purposes, Rule 901(a) does
Assocs. Architects, Inc. v. Amberwood Dev., Inc.,           not require the document to be probative of a
2007 U.S. Dist. LEXIS 67716 (D. Ariz. 2007).                particular fact, but requires only that there be suffi-
    A public record is self-authenticating under Rule       cient evidence for a jury to conclude that it is what
902 if it is submitted under seal or if it is a certified   its proponent claims it to be. Lexington Ins. Co. v.
copy. If a public record does not fall into one of          W. Pa. Hosp., 423 F.3d 318 (3d Cir. 2005).
these two categories, however, the proponent of the             No rule of evidence makes a jury incompetent to
record must produce evidence that it complies with          determine genuineness of a signature by compar-
the requirements of Rule 901(b)(7). Lachira v. Sut-         ing it to a signature known to be genuine. United
ton, 2007 U.S. Dist. LEXIS 33250 (D. Conn. 2007).           States v. Spano, 421 F.3d 599 (7th Cir. 2005).
    Unauthenticated documents cannot be consid-                 The key question under FED. R. EVID. 901 is
ered in a motion for summary judgment. Reed v.              whether the matter in question is what its propo-
Haferkamp, 2007 U.S. Dist. LEXIS 45079 (E.D.                nent claims. Thus, with respect to videotapes
Cal. 2007).                                                 depicting the defendant engaging in various con-
    The issue for the trial judge considering authen-       duct, evidence of how the tapes were made and
tication under Rule 901 is whether there is prima           handled prior to their seizure was not required.
facie evidence, circumstantial or direct, that the          United States v. Damrah, 412 F.3d 618 (6th Cir.
document or other evidence is what it is pur-               2005).
ported to be. Consejo de Desarrollo Economico de                Authentication evaluates the genuineness of a
Mexicali, AC v. United States, 438 F. Supp. 2d              document, not its admissibility. Bouriez v. Carnegie
1207 (D. Nev. 2006).                                        Mellon Univ., 2005 U.S. Dist. LEXIS 18324 (W.D.
    Rule 901(b) lays out a nonexhaustive list of fac-       Pa. 2005); see Orr v. Bank of Am., NT & SA, 285
tors that courts may consider as evidence of                F.3d 764, 776 (9th Cir. 2002).
authenticity. Bowoto v. Chevron Corp., 2006 U.S.                For a document to be properly authenticated
Dist. LEXIS 41776 (N.D. Cal. 2006).                         by a nonexpert opinion on handwriting, Rule
    Objections predicated upon Rule 901 are                 901(b)(2) requires that the nonexpert’s opinion as
appropriate in the context of a motion for summary          to the genuineness of handwriting be based upon
judgment under FED. R. CIV. P. 56. In re Burch,             familiarity with the writing that was not acquired
2006 U.S. Dist. LEXIS 36506 (E.D. Cal. 2006).               for purposes of the litigation. When there is noth-
    For purposes of Rule 901, authentication relates        ing in the record to indicate that the lay witness
only to whether the documents originate from their          was familiar with the handwriting at issue outside
alleged source; it is not synonymous to vouching            of his preparation for the instant case, the pur-
for the accuracy of the information contained in            ported authentication is questionable under this



                                                      CA–734
                                            Case Authority                                      Rule 901


Rule. Thomas v. Fred Meyer Jewelry, Inc., 2005           (but did not) provide detailed information regard-
U.S. Dist. LEXIS 18204 (D. Or. 2005).                    ing his or her relationship with the signatory—
    Distinctive characteristics of intelligence commu-   whether it be familial, professional, or otherwise
nications used in authenticating them under the rule     personal. Hall v. United Ins. Co. of Am., 367 F.3d
included the style and form of the documents, sym-       1255 (11th Cir. 2004).
bols, codes, abbreviations, and signatures of some           Where only copies of original receipts were
fellow officers. The “circumstances” which to be         available, they were sufficient for Rule 901’s mini-
considered in conjunction with the physical charac-      mal standards for authentication to show that they
teristics include those surrounding discovery of an      were signed by the accused at the times and places
item. United States v. Dumeisi, 424 F.3d 566 (7th        where they were generated. The combined prof-
Cir. 2005).                                              fered testimony (1) the accused’s wife (that she had
    Rule 901 requires only some competent evi-           not made the purchases), (2) the store managers
dence in the record to support authentication, and       (regarding their transaction practices), and (3) a
circumstantial evidence of where the documents           handwriting expert (identifying the accused’s signa-
were found can be sufficient to authenticate docu-       ture) was sufficient. United States v. Tin Yat Chin,
ments in the absence of any evidence of adultera-        371 F.3d 31 (2d Cir. 2004).
tion or forgery. United States v. Dumeisi, 424 F.3d          Breaks in the chain of custody do not bear upon
566 (7th Cir. 2005).                                     the admissibility of evidence under Rule 901, only
    As for authentication, Rule 901(a) states that the   the weight of the evidence. United States v. Jack-
requirement of authentication is satisfied by evi-       son, 345 F.3d 59 (2d Cir. 2003).
dence sufficient to support a finding that the matter        Ball of crack cocaine was properly authenti-
in question is what its proponent claims. An exhibit     cated in a police officer’s trial for distribution of
containing the Internet domain address from which        cocaine, where another officer testified that he took
the table was printed, and the date on which it was      a bag containing crack cocaine during a search of
printed, checked by the court, was sufficient to         an apartment, he gave it to defendant officer while
authenticate the exhibit. U.S. Equal Employment          they were still in the apartment, later in the day he
Opportunity Comm’n v. E.I. Dupont De Nemours &           retrieved the bag from defendant officer, and that
Co., 2004 U.S. Dist. LEXIS 20753 (E.D. La. 2004).        on following day he gave the bag to an informant,
    The proponent of evidence need not establish a       an agent testified that he picked up the informant
proper foundation through personal knowledge; a          within minutes of informant receiving the bag, and
proper foundation can rest on any manner permit-         the agent gave the bag to another agent within
ted by Rules 901(b) and 902. Jazz Photo Corp. v.         minutes. United States v. McGraw, 62 F. App’x 679
United States, 2004 Ct. Int’l Trade LEXIS 149 (Int’l     (7th Cir. 2003).
Trade Ct. 2004).                                             Rules 901(a) and 104(b) provide a framework
    Courts may look to other evidence in the case to     for preliminary admissibility. The trial judge may
determine whether a challenged document meets            conditionally admit the evidence if sufficient proof
the authenticity standard of Rule 901. APA Excel-        has been introduced so that a reasonable juror
sior III, L.P. v. Windley, 329 F. Supp. 2d 1328 (N.D.    could find in favor of authenticity or identification,
Ga. 2004).                                               even though the authenticity of a recording is ulti-
    Authentication is a condition precedent to           mately a factual determination for the jury to
admissibility under Rule 901, and the court will not     decide. United States v. Stephens, 202 F. Supp. 2d
consider evidence that has not been properly             1361 (N.D. Ga. 2002).
admitted in compliance with the requirements of              Authentication of documents requires a prima
the evidentiary rules. Lowe v. Experian, 340 F.          facie showing of genuineness, leaving it to the jury
Supp. 2d 1170 (D. Kan. 2004).                            to decide the true authenticity and probative value
    District court ruled that a lay person laid an       of evidence. United States v. Thornton, 197 F.3d
inadequate foundation to testify concerning hand-        241 (7th Cir. 1999).
writing. The lay person asserted that she saw the            It has long been recognized that one of the prin-
person in question write correspondence, review          cipal situations where the authenticity of a letter is
documents he executed, and received correspon-           provable by circumstantial evidence arising out of
dence from him. But the lay witness was obligated        the letter’s context, other than proof of handwriting
to provide more detailed information regarding           or the business records exception, is where it can
any “correspondence,” “documents,” or the like,          be shown that the letter was sent in reply to a pre-
relied upon to establish familiarity with handwrit-      vious communication. United States v. Henry, 164
ing. Such instruments must be identified with partic-    F.3d 1304 (10th Cir. 1999).
ularity. Moreover, the lay witness was obligated to



(Sinclair, Rel. #14, 9/09)                         CA–735
Rule 901                                     Trial Handbook


    While the mere assertion by a person talking on
the telephone of his or her identity is not sufficient   have otherwise been tampered with. United States
evidence of the authenticity of the conversation, the    v. Krieger, 2007 U.S. Dist. LEXIS 37941 (S.D. Ill.
requisite additional evidence need not fall in any       2007); Galaxy Computer Servs. v. Baker, 325 B.R.
set pattern. Indeed, a telephone conversation may        544 (E.D. Va. 2005); United States v. Jones, 356
be shown to have emanated from a particular per-         F.3d 529 (4th Cir. 2004).
son by virtue of its disclosing knowledge of facts
known peculiarly to him. United States v. Garri-         When physical evidence is authenticated by a
son, 168 F.3d 1089 (8th Cir. 1999).                      chain of custody pursuant to Rule 901, any flaws
    Evidence must be shown to have suffered no           or “breaks” in the chain of custody bear only on
material alteration after coming into custody of the     the weight of the evidence, and not on its admis-
proponent, though the rule does not expressly state      sibility. United States v. Stuckey, 2007 U.S. Dist.
this requirement. United States v. Collado, 957 F.2d     LEXIS 75624 (S.D.N.Y. 2007); United States v.
38 (1st Cir. 1992).                                      Barrow, 448 F.3d 37 (1st Cir. 2006); Galaxy Com-
    A writing or object must be identified as a con-     puter Servs. v. Baker, 325 B.R. 544 (E.D. Va.
dition precedent to admissibility. Nolin v. Douglas      2005); United States v. Jones, 356 F.3d 529 (4th
County, 903 F.2d 1546 (11th Cir. 1990).                  Cir. 2004); United States v. Taylor, 1999 U.S. App.
    Proper authentication under Article IX does not      LEXIS 19239 (4th Cir. 1999); United States v. Mor-
resolve hearsay defects in a document. Fagiola v.        rison, 153 F.3d 34 (2d Cir. 1998); United States v.
Nat’l Gypsum Co., 906 F.2d 53 (2d Cir. 1990).            Gelzer, 50 F.3d 1133 (2d Cir. 1995); United States
    Physical objects should be shown to be in the        v. Sparks, 2 F.3d 574 (5th Cir. 1993).
same condition as when seized, where presence of
drug fragments is in issue. United States v. Dicker-     Specific Applications
son, 857 F.2d 1241 (9th Cir. 1988) (airplane).               Breaks in the chain of custody for a laboratory
    The “requirement of showing authenticity falls in    report go to the weight of the exhibit and not its
the category of relevancy dependent upon fulfill-        admissibility. United States v. Elm, 283 F. App’x
ment of a condition of fact and is governed by the       554 (9th Cir. 2008).
procedure set forth in Rule 104(b).” In re Bobby             The showing required under Rule 901 is satis-
Boggs, Inc., 819 F.2d 574, 580 (5th Cir. 1987).          fied by sufficient proof that the evidence is what it
    Production of item by a party may support            purports to be and has not been altered in any
authentication, even if done by attorney. United         material respect, and is not intended as an “iron-
States v. Brown, 688 F.2d 1112 (7th Cir. 1982).          clad” rule that requires exclusion of real evi-
    Initial showing of caution in chain of custody       dence based on a missing link in its custody.
will normally be sufficient to admit; defects go to      United States v. Fuller, 269 F. App’x 274 (4th Cir.
weight. Ballou v. Henri Studios, Inc., 656 F.2d          2008).
1147 (5th Cir. 1981).                                        Handbag bearing allegedly counterfeit trade-
                                                         marks was admissible in a trademark infringement
Chain of Custody Issues                                  action despite the claim that trademark holder had
                                                         not satisfactorily established a chain of custody
Established Doctrine                                     over the bag so as to confirm the manufacture by
                                                         alleged infringer; there was a deposition testimony
The chain of custody requirement of Rule 901 is          by a representative of the alleged infringer that the
properly considered a hybrid of several of its pro-      large bag currently not containing an identifying
visions, all of which conclude that authentication or    marker had one such marker when the bag was
identification may be established by any evidence        brought to the evidentiary hearing but that it
sufficient to support a finding that the matter in       slipped off during the course of the hearing. Gucci
question is what its proponent claims. The “chain        Am., Inc. v. Ashley Reed Trading, Inc., 2003 WL
of custody” rule requires that admitted items be         22327162 (S.D.N.Y. 2003).
preceded by such evidence. In this way, the propo-           There was a sufficient basis to find in favor of
nent may convince the court that the items are in        the authenticity of drugs where the government
substantially the same condition as they were when       established a chain of custody consisting of (i) a
acquired, and that it is improbable that the origi-      videotape that showed defendant giving the sub-
nals have been exchanged with others or that they        stance to a paid informant for DEA; (ii) a DEA
                                                         agent’s testimony regarding the government’s sur-
                                                         veillance of the paid informant for most of the time
                                                         before, during and after the videotaped transac-



                                                   CA–736
                                             Case Authority                                      Rule 901


tion; (iii) an agent’s testimony regarding the DEA’s          The break in the chain of custody that occurred
field-testing and storage of the drugs; and (iv) the      when the first person to receive the two pill bottles
testimony of the forensic chemist who subjected the       containing crack cocaine from the arresting officer
substance to laboratory testing. United States v.         did not testify only went to the weight, not the
Jackson, 345 F.3d 59 (2d Cir. 2003).                      admissibility, of the evidence since the arresting
    Shipping evidence from investigators’ offices to      officer testified as to the bottles being the same and
crime analysis laboratories by Federal Express did        a proper chain of custody existed after the break.
not create a problematic gap in the chain of cus-         United States v. Sparks, 2 F.3d 574 (5th Cir. 1993).
tody. United States v. Jones, 356 F.3d 529 (4th Cir.          Chain of custody established by lack of evidence
2004).                                                    of tampering; mere possibility of tampering goes
    To prove that a proffered tape is a true, accu-       only to weight of evidence, not admissibility.
rate, and authentic recording, the government must        United States v. Harrington, 923 F.2d 1371 (9th
either establish the tape’s chain of custody or other-    Cir. 1991).
wise lay a foundation as to the trustworthiness and           In “chain of custody” cases the proffering party
accuracy of the evidence. The recollection of eye-        need only show a rational basis for concluding that
witnesses is sufficient to establish such a founda-       the exhibit is what it is claimed to be, leaving for
tion. United States v. Westmoreland, 312 F.2d 302         the jury any questions about the weight of the offer.
(7th Cir. 2002).                                          United States v. Hon, 904 F.2d 803 (2d Cir. 1990).
    It was sufficient to establish the chain of custody   See Huss v. United States, 738 F. Supp. 1098
where a forensic chemist with the U.S. Postal             (W.D. Mich. 1990).
Inspection Service testified that drugs introduced            A chain of custody was required for bag of
into evidence, which were in sealed bags bearing          drugs, but the chain need not be “perfect” with all
his initials, were the same drugs that he had evalu-      witnesses testifying. United States v. Cardenas, 864
ated. United States v. Taylor, 1999 U.S. App. LEXIS       F.2d 1528 (10th Cir. 1989) (sufficient if “no sub-
19239 (4th Cir. 1999).                                    stantial break” is shown); United States v. Mays,
    Even a radically altered item of real evidence        822 F.2d 793 (8th Cir. 1987) (testimony about
may be admissible if its pertinent features remain        integrity of dollar bills obviated need to piece chain
unaltered. Transclean Corp. v. Bridgewood Servs.,         of custody together); United States v. Doddington,
Inc., 77 F. Supp. 2d 1045 (D. Minn. 1999).                822 F.2d 793 (8th Cir. 1987) (sergeant who had
    Breaks in the chain of custody of a tape record-      custody of powder at one point was not called to
ing do not bear upon the admissibility of evidence,       testify).
only the weight of the evidence where the tape
recording can be authenticated based on its con-          Internet Communications and Email
tent. United States v. Morrison, 153 F.3d 34 (2d              A series of archived web pages from the “Way-
Cir. 1998).                                               back Machine” Internet service, which preserves
    “Gaps” in the evidence went to the weight that        old versions of web pages, suffers from fatal prob-
could be accorded to the evidence, not to its admis-      lems of authentication under Rule 901, where not
sibility. United States v. Williams, 1996 U.S. App.       accompanied by evidence sufficient to meet the
LEXIS 30038 (4th Cir. 1996).                              requirements of the rule. Chamilia, LLC v. Pandora
    A break in the chain of custody was not fatal to      Jewelry, LLC, 2007 U.S. Dist. LEXIS 71246
authentication where it was more likely than not          (S.D.N.Y. 2007).
that the gun offered at trial was the same as the             In a criminal case concerning a charge of
gun recovered from the defendant. United States v.        attempting to entice a minor to engage in illegal
Gelzer, 50 F.3d 1133 (2d Cir. 1995).                      sexual activity pursuant to 18 U.S.C. § 2422(b),
    Where defendant failed to object to the govern-       the defendant’s claim that emails and transcripts of
ment’s chain of custody and there is no evidence of       instant-message chats offered by the government
tampering, admission of the evidence following a          as exhibits were not properly authenticated pursu-
presumption that a system of regularity accompa-          ant to Rule 901 was rejected. Two witnesses, one of
nied the handling of evidence within official cus-        whom was an undercover informant, testified that
tody did not constitute plain error. United States v.     these documents were accurate records of the
Williams, 44 F.3d 614 (7th Cir. 1995).                    defendant’s conversations and, based on this testi-
    Any objection to authentication based on chain        mony, a reasonable juror could have found that the
of custody was waived where defense counsel               exhibits did represent those conversations, notwith-
failed to challenge the introduction of the item into     standing that the emails and online chats were edit-
evidence. United States v. Gelzer, 50 F.3d 1133           able. United States v. Gagliardi, 506 F.3d 140 (2d
(2d Cir. 1995).                                           Cir. 2007).



(Sinclair, Rel. #14, 9/09)                          CA–737
Rule 901                                       Trial Handbook


   Reproductions of portions of “instant message”             Emails sent to two witnesses were properly
or “chat” conversations conducted via computer,            authenticated where each bore defendant’s email
accomplished by “cutting and pasting” notes taken          address, which was same as email sent by defen-
by a law enforcement officer from the online chats         dant, where a second witness testified that when he
into a Microsoft Word document, were held not to           replied to the email in question, the reply function
be authentic for purposes of Rule 901, in that the         on his email system automatically used defendant’s
document into which the selections were “pasted”           email address as the sender, the context of the
did not accurately represent the entire conversa-          emails showed the author to have been someone
tions that took place and included editorializing by       who would have known details of defendant’s con-
the officer. United States v. Jackson, 488 F. Supp.        duct, where one email made reference to a corrob-
2d 866 (D. Neb. 2007).                                     orated event, both emails referred to author by
   A district court did not abuse its discretion in rul-   defendant’s nickname, and both witnesses testified
ing that the admission of audio tapes containing           that they spoke with defendant by phone shortly
recordings of the defendant’s voice was supported          after emails and he made same requests on phone
by sufficient evidence to satisfy the foundational         that emails had made. United States v. Siddiqui,
requirements of Rule 901(a). Despite the fact that         235 F.3d 1318 (11th Cir. 2000).
the law enforcement official who testified that he            The authenticity of log printouts of chat room
recognized the voice on the tapes as being that of         where members discussed, traded, and produced
the defendant did not speak Spanish, only minimal          child pornography was satisfactory where a coop-
familiarity with the defendant’s voice was required,       erating witness explained how he created the logs
and the law enforcement official testified that he         with his computer and stated that printouts, which
recognized the defendant’s voice through the               did not contain deleted material, appeared to be
defendant’s use of his nickname, “Cacho,” in at            accurate representation of chat room conversations
least one of the recordings. United States v.              among members. United States v. Tank, 200 F.3d
Zepeda-Lopez, 478 F.3d 1213 (10th Cir. 2007).              627 (9th Cir. 2000).
   To authenticate printouts from a website pursu-
ant to Rule 901, the party proffering the evidence         Recordings, Tapes, and Transcripts
must produce some statement or affidavit from
someone with knowledge of the website; for exam-           Established Doctrine
ple, a web master or someone else with personal
knowledge would be sufficient. St. Lukes Cataract
& Laser Inst. v. Sanderson, 2006 U.S. Dist. LEXIS          Before an audio tape recording may be properly
28873 (M.D. Fla. 2006).                                    admitted at trial, Rule 901(a) requires the govern-
   Printouts from government websites have been            ment to offer evidence sufficient to support a find-
held to be self-authenticating pursuant to Rule            ing that the tape in question is what its proponent
901(a) and/or 902(5). Colt Defense LLC v. Bush-            claims. This requires the government to show by
master Firearms, Inc., 2005 U.S. Dist. LEXIS 20874         clear and convincing evidence that the proffered
(D. Me. 2005).                                             tape is a true, accurate, and authentic recording
   An “Internet Archive” does not fit neatly into any      of the conversation between the parties. It may
of the nonexhaustive examples listed in Rule 901,          do so by establishing the chain of custody or by
since it is a relatively new source for archiving          offering testimony of an eyewitness that the record-
websites. Nevertheless, where an adversary has             ing accurately reflects the conversation he or she
presented no evidence that the Internet Archive is         witnessed. United States v. Eberhart, 467 F.3d 659
unreliable or biased, and has neither denied that          (7th Cir. 2006).
the exhibit represents the contents of its website on
the dates in question, nor come forward with its           Regarding authentication of a videotape, the key
own evidence challenging the veracity of the               question under Rule 901, which states the basic
exhibit, the proponent had supplied sufficient foun-       requirement for admission of an exhibit, is whether
dation to satisfy Rule 901’s threshold requirement         the matter in question is what its proponent claims.
for admissibility. The opponent remains free to            A videotape that clearly identifies the persons
raise its concerns regarding reliability with the jury.    depicted in it may be self-authenticating and thus
Telewizja Polska USA, Inc. v. Echostar Satellite           may not requiring any additional authentication
Corp., 2004 U.S. Dist. LEXIS 20845 (N.D. Ill.              testimony from a witness present at the scene
2004).                                                     depicted in the video. Courts have often focused




                                                     CA–738
                                             Case Authority                                      Rule 901


                                                              A videotape prepared by gang members,
on seven criteria for the admission of videotape          shown to be unaltered, was not erroneously
recordings: (1) that the recording device was             received. United States v. Fields, 138 F. App’x 622
capable of taking the activity now offered in evi-        (5th Cir. 2005).
dence; (2) that the operator of the device was com-           Audio tapes were properly authenticated under
petent to operate the device; (3) that the recording      Rule 901 where law enforcement officers present
is authentic and correct; (4) that changes, addi-         during the tapings testified in detail about the pro-
tions, or deletions have not been made in the             cedures used when an individual was outfitted with
recording; (5) that the recording has been pre-           the transmitter and recorder during the controlled
served in a manner that is shown to the court;            narcotics buys. The fact that person who was
(6) that the persons recorded are identified; and         “wired up” did not testify to authenticate the tape
(7) that the activity elicited was made voluntary         recordings or identify the other voices does not ren-
and in good faith, without any kind of inducement.        der them inadmissible. United States v. Sexton, 119
If authentication testimony is required, a witness        F. App’x 735 (6th Cir. 2005).
can authenticate the video under Rule 901 by                  Case law on the prerequisites for admitting vid-
establishing that the tape accurately depicts the         eotaped evidence is sparse. However, arguments
events illustrated in the recording. Jordan v. United     that where a videotape is edited its proponent
States, 2007 U.S. Dist. LEXIS 67743 (W.D. Va.             must call to the stand the tape’s editor to authenti-
2007); Holder v. Gold Fields Mining Corp., 2007           cate the tape have been rejected. United States v.
U.S. Dist. LEXIS 7592 (N.D. Okla. 2007); United           Damrah, 334 F. Supp. 2d 967 (N.D. Ohio 2004).
States v. Morrow, 2005 U.S. Dist. LEXIS 8328                  Absent a challenge that the tape was inaccurate
(D.D.C. 2005); Stringel v. Methodist Hosp. of Ind.,       in any way or that it had been altered since the
89 F.3d 415 (7th Cir. 1996).                              date of recording, receipt in evidence was proper.
                                                          United States v. Damrah, 334 F. Supp. 2d 967
It is not necessary for a participant of the              (N.D. Ohio 2004).
recorded conversation to testify to the authenticity          Where there was no claim that videos did not
of the recordings so long as other indicia of accu-       accurately depict the events that transpired at cer-
racy and reliability are established. United States       tain public rallies, and the translations of foreign
v. Sexton, 119 F. App’x 735 (6th Cir. 2005).              words in the tapes was stipulated to be accurate,
                                                          and several participants in the rallies were identi-
The court has an obligation to ascertain that the         fied in testimony, there was a satisfactory showing
recording itself is sufficiently audible to constitute    that the videos fairly depicted the actual events that
reliable evidence of the conversation recorded.           took place at the rallies. United States v. Damrah,
Stringel v. Methodist Hosp. of Ind., 89 F.3d 415          334 F. Supp. 2d 967 (N.D. Ohio 2004).
(7th Cir. 1996).                                              Government’s proof satisfied authentication
                                                          requirements for admitting voice recordings made
Specific Applications                                     using a digital recording device; defense counsel
    Under Rule 901, a video recording is admissi-         could have probed complications of recording and
ble as a depiction of the scene it represents. Its lack   reproducing technology through cross-examina-
of sound, or the presence of visual barriers in the       tion of government witnesses and opinion testimony
video, affects the weight that the video receives, but    of defense expert witness, with reliability of record-
not its admissibility. Kies v. City of Lima, 2009 U.S.    ings being left to jury. In the case at bar, the gov-
Dist. LEXIS 20773 (N.D. Ohio 2009).                       ernment, as the proponent of voice recordings,
    Testimony by DEA agents identifying defendant’s       must have offered evidence “sufficient to support a
voice on an audio tape of the drug transaction sat-       finding” that recordings were of voices of individu-
isfied Rule 901(b)(5) where the agents had an             als the government said participated in recorded
“hour-long discussion” with him; the discussion was       conversations at the times and places government
clearly a circumstance connecting the voice with the      alleged. To that end, government may have relied
defendant. United States v. Norman, 415 F.3d 466          upon testimony of a witness with knowledge, Rule
(5th Cir. 2005).                                          901(b)(1), or upon Rule 901(b)(5), identification of
    Inaudible portions of the tape were insufficient      a voice, whether heard firsthand or through
to make an audio tape as a whole inadmissible,            mechanical or electronic transmission or recording,
especially where the government’s proffer included        by opinion based upon hearing the voice at any
sufficient indicia of reliability for the tape to be      time under circumstances connecting it with alleged
admissible. United States v. Norman, 415 F.3d 466         speaker. United States v. Capanelli, 257 F. Supp.
(5th Cir. 2005).                                          2d 678 (S.D.N.Y. 2003).



(Sinclair, Rel. #14, 9/09)                          CA–739
Rule 901                                    Trial Handbook


    Defendant’s stipulation that tape recordings        the article has not been changed in important
offered by government were intercepted pursuant         respects.” United States v. Tellier, 1996 U.S. App.
to court order or consensually recorded, made at        LEXIS 10932 (2d Cir. 1996).
the dates and times stated on corresponding tran-           Surveillance audiotapes of undercover cocaine
scripts, over telephones or at locations reflected in   purchases were sufficiently authenticated by an
the corresponding transcripts, were accurate cop-       agent’s testimony that he equipped the confidential
ies of originals except for redacted portions, and      informant with sound monitoring equipment, that
that the originals were not altered or tampered         the agent monitored each transaction as it
with, established accuracy, authenticity and gen-       occurred, and that the agent observed at least part
eral trustworthiness. United States v. Panaro, 266      of each transaction from a short distance while
F.3d 939 (9th Cir. 2001).                               simultaneously listening to the conversation. United
    The trial court erred in not admitting a tape       States v. Polk, 56 F.3d 613 (5th Cir. 1995).
recording of a telephone conversation, where the            Taped conversations between defendant and
authenticating witness testified that he recognized     witness had been authenticated when witness iden-
the voice on the tape as that of the defendant          tified them at trial. United States v. Singh, 922 F.2d
based on a conversation some three years earlier.       1169, 1174 (5th Cir. 1991).
United States v. Knox, 1998 U.S. App. LEXIS                 A tape recording may be authenticated by cir-
27655 (6th Cir. 1998).                                  cumstantial evidence, such as the telephone num-
    Videotapes were admissible under Rule               bers called showing that the phone in a defendant’s
901(b)(4) where the videotapes were clearly             home was used. United States v. Degaglia, 913
labeled as Apple’s, IBM’s, and other corporations’      F.2d 372 (7th Cir. 1990). Accord United States v.
materials developed by these companies for their        Santana, 989 F.2d 821 (1st Cir. 1990) (combina-
own use. Gonzalez v. Digital Equip. Corp., 8 F.         tion of tape circumstances, some voice identifica-
Supp. 2d 194 (E.D.N.Y. 1998).                           tion, and witness to the live meeting).
    Tape recordings made with a hidden wire trans-          A recording found in a defendant’s possession
mitter were sufficiently authenticated by the testi-    should not be subject to the same authenticity
mony of a police detective that he personally wired     requirements applied when a government agent or
the transporter prior to each transaction and that      informant initiates a conversation knowing that it is
he and his partner operated and monitored audio         to be recorded. United States v. O’Connell, 841
recording equipment while the other detective dealt     F.2d 1408, 1420 (8th Cir. 1988).
with defendants. United States v. Wilson, 115 F.3d          Tapes in Spanish were authenticated by agent
1185 (4th Cir. 1997).                                   who spoke to defendant for hours in Spanish and
    Videotapes with date and time signatures, sup-      who heard voice exemplars. United States v. Alva-
ported by stipulations negating any alteration, and     rez, 860 F.2d 801 (7th Cir. 1988); United States v.
testimony about the setting up of the recording         Vega, 860 F.2d 779 (7th Cir. 1988) (similar).
equipment, were properly authenticated in the               Self-identification by a speaker alone is not suf-
absence of any specific attack. United States v.        ficient authentication of a voice. United States v.
Payton, 1996 U.S. App. LEXIS 18955 (9th Cir.            Puerta Restrepo, 814 F.2d 1236, 1239 (7th Cir.
1996).                                                  1987) (timing of other calls and defendant’s con-
    Based on testimony of an attorney that he com-      duct in accord with calls was sufficient); United
pared a transcript to the original tape and found       States v. Miller, 771 F.2d 1219 (9th Cir. 1985)
that it accurately represented the testimony at a       (self-ID plus timing of related calls was sufficient to
deposition, the foundation for use of the transcript    identify defendant as caller).
was satisfactory. United States v. Workinger, 90
F.3d 1409 (9th Cir. 1996).                              Telephone Conversations
    Where there was no reasonable doubt about              Although Rule 901(a) does not definitively
the authenticity of the contents of a tape or about     establish the nature or quantum of proof that is
the accuracy of the recording, there was no basis       required to establish the authenticity of a tele-
for fearing that the tape had been altered, much        phone conversation, subsection (b) provides illus-
less altered in any material respect, and proof of      trations of what will suffice. Subsection (b)(5),
the chain of custody was not required. United           dealing specifically with voice identification, states
States v. Campbell, 1996 U.S. App. LEXIS 12141          that identification of a voice, whether heard first-
(9th Cir. 1996).                                        hand or through mechanical or electronic transmis-
    A defect in evidence of the chain of custody        sion or recording, can be established “by opinion
does not preclude the admission of tapes, if the        based upon hearing the voice at any time under
judge is satisfied that “in reasonable probability      circumstances connecting it with the alleged



                                                  CA–740
                                              Case Authority                                      Rule 901


speaker.” Thus, a telephone conversation is                    Telephone voice identification bases can include
admissible in evidence if the identity of the              self-identification of the person answering and cir-
speaker is satisfactorily established and the ques-        cumstantial evidence showing that the person
tion is for the jury if, as reasonable people, they        answering is the person called. United States v.
could find the claimed identification to be accu-          Kingston, 971 F.2d 481 (10th Cir. 1992).
rate. Pugliese v. Verizon N.Y., Inc., 2008 U.S. Dist.          Call “out of the blue” with apparent identifica-
LEXIS 52677 (S.D.N.Y. 2008).                               tion as X is insufficient to offer against X without
    A single telephone call, combined with hearing         more. United States v. Pool, 660 F.2d 547 (5th Cir.
a voice in court, is sufficient for voice identification   1982).
testimony to go to the jury under Rule 901, and                Expected call, accompanied by self-description
such voice identification need only rise to the level      of caller for purposes of meeting, sufficient to
of minimal familiarity. United States v. Parker, 521       admit. United States v. Leon, 679 F.2d 534 (5th Cir.
F. Supp. 2d 1174 (D. Kan. 2007).                           1982).
    Where a detective had heard a defendant’s                  Phone orders to X, followed by receipt of mate-
voice for some four hours during an interview, this        rial with X’s fingerprints, sufficient to receive order
was sufficient under Rule 901 to permit the detec-         conversation against X. United States v. Espinoza,
tive to offer opinion testimony identifying the defen-     641 F.2d 153 (4th Cir. 1981).
dant as the person who had made certain 911                    Phone call to X at his wife’s listed number, fol-
calls, which the detective also heard. The fact that       lowed by meeting set up in call, sufficient to admit
the detective had allegedly made up his mind               call against X. United States v. Alessi, 638 F.2d 466
who the 911 caller was before he listened to the           (2d Cir. 1980).
tapes goes to the weight, not the admissibility of
the voice identification. United States v. Parker,         Handwriting
521 F. Supp. 2d 1174 (D. Kan. 2007).                           A host of legal authority supports the trial
    The mere announcement of identity by a person          court’s use of comparison as the means by which
who has placed a telephone call does not suffice to        to authenticate a signature, using a comparison
make it admissible against the person so identi-           with an already authenticated signature. This is in
fied. Rule 901 requires evidence to support the            accord with Rule 901(b)(3), permitting the trier of
claim that the self-identifying caller is indeed who       fact to authenticate handwriting by comparing the
he says he is. Wells v. Liddy, 37 F. App’x 53 (4th         disputed handwriting with a sample that already
Cir. 2002).                                                has been authenticated. Generally the trier of fact
    Telephone conversation may be shown to have            may compare a contested sample of handwriting
emanated from a particular person by virtue of its         with an authenticated sample and decide that the
disclosing knowledge of facts known peculiarly to          contested sample is authentic even in the absence
him. The content of a telephone conversation com-          of expert testimony. United States v. Miner, 272 F.
bined with the caller’s self-identification can suffi-     App’x 530 (8th Cir. 2008).
ciently support a finding that the caller is who she           The admitted or proven handwriting of any
says she is. Wells v. Liddy, 37 F. App’x 53 (4th Cir.      person is admissible for purposes of comparison,
2002).                                                     to determine genuineness of other handwriting
    A detective’s opinion was not facially inadmissi-      attributed to such person. United States v. Miner,
ble merely because he did not hear the telephone           272 F. App’x 530 (8th Cir. 2008).
conversations first-hand, since Rule 901(b)(5) per-            Even if there are subtle differences between
mits “identification of a voice, whether heard first-      two signatures, they may not be so dissimilar in
hand or through mechanical or electronic transmis-         form and style that the district court’s finding of
sion or recording, by opinion based upon hearing           identical authorship would be clearly erroneous.
the voice at any time under circumstances connect-         United States v. Miner, 272 F. App’x 530 (8th Cir.
ing it with the alleged speaker.” United States v.         2008).
Hardwell, 80 F.3d 1471 (10th Cir. 1996).                       Under Rule 901(b)(3), where the authenticity of
    Where a phone call from a woman who identi-            a signature is in dispute, the trier of fact may make
fied herself as defendant and provided the address         a comparison with specimens that have been
of defendant’s father was received shortly after the       authenticated. Clifton v. Anthony, 401 F. Supp. 2d
recipient had left a message on an answering               686 (E.D. Tex. 2005).
machine at a number provided by defendant, notes               Deposition testimony that a witness was familiar
of that call met the requirement for authentication.       with a form and that it bore her signature was
United States v. Khan, 53 F.3d 507 (2d Cir. 1995).         proper authentication, rendering the exhibit admis-
                                                           sible under Rule 901(a)(1). Astudillo v. US News &



(Sinclair, Rel. #14, 9/09)                           CA–741
Rule 901                                      Trial Handbook


World Report, 2004 U.S. Dist. LEXIS 18685                 Voice Identification
(S.D.N.Y. 2004).
    Under Rule 901(b)(3), expert opinion on hand-         Established Doctrine
writing is not necessary. United States v. Saadey,
393 F.3d 669 (6th Cir. 2005).
    Where the government presented known hand-            Where evidence includes a voice identification,
writing material—the tax forms that defendant             Rule 901(b)(5) provides that a witness may identify
admitted contained his signature, along with credit       or authenticate the voice or speaker if he has
applications, which contained his name, address,          heard the voice at any time under circumstances
and social security number, and also contained sig-       connecting it the voice with the alleged speaker,
natures—the district court did not abuse its discre-      whether heard firsthand or through mechanical or
tion by allowing the jury, pursuant to Rule               electronic transmission or recording. Minimal
901(b)(3), to make lay comparisons between the            familiarity is sufficient for admissibility purposes.
signatures on each of these documents and defen-          United States v. Rommy, 506 F.3d 108 (2d Cir.
dant’s signature on the tax forms. United States v.       2007); United States v. Sexton, 119 F. App’x 735
Saadey, 393 F.3d 669 (6th Cir. 2005).                     (6th Cir. 2005); United States v. Fearon-Hales,
    Source of handwritten notes seized from defen-        2005 U.S. Dist. LEXIS 21619 (S.D.N.Y. 2005);
dant’s residence and the correspondence of infor-         United States v. Hull, 74 F. App’x 615 (7th Cir.
mation contained in the notes to members of drug          2003); United States v. Plunk, 153 F.3d 1011 (9th
conspiracy provided ample foundation for their            Cir. 1998); United States v. Duran, 4 F.3d 800 (9th
admissibility. United States v. Reyes, 798 F.2d 380,      Cir. 1993).
383 (10th Cir. 1986); United States v. Calbas, 821
F.2d 887 (2d Cir. 1987) (notebook of coconspira-          Under Rule 901, courts consider the “totality of
tor found in room with kilo of drugs sufficiently tied    the circumstances” to determine whether voice-
to the coconspirator).                                    identification testimony is sufficiently reliable to be
    Lay witnesses are allowed to give opinions as to      allowed into evidence, and due process requires
the genuineness of handwriting in order to authen-        the exclusion of such testimony only where there is
ticate it. United States v. Barker, 735 F.2d 1280,        a very substantial likelihood of irreparable misi-
1283 (11th Cir. 1984).                                    dentification. United States v. Brown, 510 F.3d 57
    Union authorization cards can be authenticated        (1st Cir. 2007).
by witnesses to their execution or by comparison
with known specimen of person’s handwriting. Ona          Expert testimony is not required for identification
Corp. v. NLRB, 729 F.2d 713, 723 (11th Cir.               of a voice. United States v. Hardwell, 80 F.3d
1984).                                                    1471 (10th Cir. 1996).
    Contents of letter found in defendant’s home
sufficient to authenticate. United States v. Bagaric,     Specific Applications
706 F.2d 42, 67 (2d Cir. 1983); Burgess v. Premier            Rule 901 governs the authentication of evi-
Corp., 727 F.2d 826, 835 (9th Cir. 1984).                 dence as a precondition to admissibility, and sub-
    Jury can compare known handwriting sample             section (b) provides examples of acceptable
with this another sample to determine if handwrit-        methods of voice authentication or identification.
ing in latter sample is genuine. United States v. Clif-   Under the rule, a witness properly authenticates a
ford, 704 F.2d 86, 91 (3d Cir. 1983).                     voice, whether heard firsthand or through mechan-
    Handwriting expert may compare records                ical or electronic transmission or recording, by
known to be authored by person with exemplar              opinion based upon hearing the voice at any time
under dispute. United States v. Maucklin, 670 F.2d        under circumstances connecting it with the alleged
746 (7th Cir. 1982) (using prison records).               speaker. United States v. Recendiz, 557 F.3d 511
                                                          (7th Cir. 2009).
                                                              Because aural voice identification is not a sub-
                                                          ject of expert testimony, the requisite familiarity
                                                          may be acquired either before or after the particu-
                                                          lar speaking that is the subject of the identification,
                                                          for purposes of the authentication requirement
                                                          imposed by Rule 901. As long as the basic require-
                                                          ment of familiarity with the voice is met, lay opinion
                                                          testimony is an acceptable means for establishing a




                                                    CA–742
                                              Case Authority                                     Rule 901


speaker’s identity. United States v. Recendiz, 557             An agent’s familiarity with the voice of a target
F.3d 511 (7th Cir. 2009).                                  person was sufficient to authenticate reliance upon
    A speaker’s voice may be identified under Rule         tapes in which that individual participated in tele-
901(b)(5) by opinion testimony based upon hear-            phone conversations. United States v. Castellon, 80
ing the voice at any time under circumstances              F. App’x 562 (9th Cir. 2003).
connecting it with the alleged speaker. Once a                 Officer could testify that a voice he heard nego-
witness establishes familiarity with an identified         tiating a drug transaction over a radio transmitter
voice, it is up to the jury to determine the weight to     was defendant’s, based upon hearing defendant’s
place on the witness’s voice identification. United        voice after the transaction and defendant’s arrest.
States v. Perez, 283 F. App’x 716 (11th Cir. 2008).        United States v. Townsend, 1999 U.S. App. LEXIS
    Where there is evidence from witnesses con-            13872 (5th Cir. 1999).
necting the defendant to a voice, the jury was                 In a drug case, testimony of a courier that she
properly instructed that the issue of identity was         received a threatening telephone call a couple of
within their discretion, and a jury’s credibility deter-   days before her cooperation with the government,
minations will not be disturbed on appeal. United          from someone identifying himself as “Ike,” was
States v. Perez, 283 F. App’x 716 (11th Cir. 2008).        properly admitted. United States v. Garrison, 168
    Voice identification testimony can be admitted         F.3d 1089 (8th Cir. 1999).
under Rule 901 only after it is determined sufficient          Where the detective later heard a party’s voice
evidence supports a finding the matter in question         both in person and on a tape of his court appear-
is what its proponent claims. A speaker’s voice may        ance, he could identify the voice on the tape of the
be identified by opinion testimony based upon              drug negotiations under Rule 901(b)(5). United
hearing the voice at any time under circumstances          States v. Hardwell, 80 F.3d 1471 (10th Cir. 1996).
connecting it with the alleged speaker. Once a wit-            The proponent of evidence need not rule out
ness establishes familiarity with an identified voice,     every conceivable chance that somehow the iden-
it is up to the jury to determine the weight to place      tity or character of the evidence underwent change.
on the witness’s voice identification. United States v.    Hulmes v. Honda Motor Co., 936 F. Supp. 195
Johnson, 277 F. App’x 890 (11th Cir. 2008).                (D.N.J. 1996).
    Where a detective testified he heard a particu-            Police officer who spoke Spanish, conducted a
lar voice three times prior to the date on which he        wire tap and overheard the conversations in Span-
made his identification, this was sufficient to estab-     ish was capable of authenticating the transcripts
lish his familiarity with Johnson’s voice under Rule       and identifying defendant’s voice even though the
901(b)(5). Accordingly, the voice identification           original tapes had been destroyed. United States v.
could properly be permitted to go to the jury, as it       Puentes, 50 F.3d 1567 (11th Cir. 1995).
was up to the jury to determine the weight to place            Wiretap recordings and transcripts were prop-
on this identification. United States v. Johnson, 277      erly admitted and authenticated, even though none
F. App’x 890 (11th Cir. 2008).                             of the persons who prepared the transcripts testi-
    Where various witnesses, who heard the                 fied to their accuracy, where the government estab-
recorded conversations and were familiar with the          lished the identity of each speaker through
voices therein, testified as to the identity of the        telephone subscriber information, surveillance, and
speakers recorded on the tape, in conformance              self-identification on the tapes. United States v.
with Rule 901, the government adequately demon-            Green, 40 F.3d 1167 (11th Cir. 1994).
strated through testimony by the police who were               A DEA agent who met several times with
monitoring the controlled buys and testimony of            defendant was permitted to identify his voice on a
persons familiar with the voices that the tapes were       tape, authenticating it. United States v. Degaglia,
in fact what they claimed to be, even without testi-       913 F.2d 372 (7th Cir. 1990); accord United States
mony of the person wearing the “wire,” and it              v. Carrasco, 887 F.2d 794 (7th Cir. 1989) (meeting
was not error to admit the tapes. United States v.         with declarant sufficient).
Sexton, 119 F. App’x 735 (6th Cir. 2005).




(Sinclair, Rel. #14, 9/09)                           CA–743

								
To top