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					Palmer v. Hoffman, p. 354
P l       H ff
United States Supreme Court, 1942




                                    1
    Palmer v. Hoffman, p. 354
    P l       H ff
   United States Supreme Court, 1942




What s
What’s the holding of Palmer v. Hoffman?




                                           2
The Federal Rules of Evidence (1975) were enacted after the
decision in Palmer v. Hoffman (1942).

Under the Federal rules of Evidence, the statement in issue in
Palmer v. Hoffman would be --


1.    Admissible
2.    Inadmissible.

                                                    50%          50%




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                                                                            3
        Lewis B k
        L i v. Baker, p. 356
Court of Appeals for the Second Circuit, 1975




                                                4
                      Lewis B k
                      L i v. Baker, p. 356
             Court of Appeals for the Second Circuit, 1975




The court ruled that accident reports prepared by railroad employees were
admissible in evidence.




                                                                            5
                      Lewis B k
                      L i v. Baker, p. 356
             Court of Appeals for the Second Circuit, 1975




Is Palmer v. Hoffman distinguishable?




                                                             6
                      Lewis B k
                      L i v. Baker, p. 356
             Court of Appeals for the Second Circuit, 1975




Is Palmer v. Hoffman distinguishable?


In Lewis v. Baker, can any argument at all be made that the source and
circumstances throw doubt upon the trustworthiness of the record?




                                                                         7
Sana v. Hawaiian C i
S       H               Ltd.,
            ii Cruises, Ltd p. 358
 Court of Appeals for the Ninth Circuit, 1999




                                                8
              Sana v. Hawaiian C i
              S       H               Ltd.,
                          ii Cruises, Ltd p. 358
                 Court of Appeals for the Ninth Circuit, 1999



There were 3 levels of hearsay:
1. what Mr. Rutherford said, which contained
2. what the co-workers said, which contained
3. what Mr. Sana said.


Example: Mr. Rutherford said, “The co-workers said ‘Sana said “I bumped my
head.
head ”’”




                                                                       9
Under the factual situation presented in the Sana case:

Q. Offered to prove when Mr. Sana’s illness started,
testimony by a co-worker that on March 10, Mr. Sana said to
     My       hurts”
him “My head hurts would be --


                                                              88%
1.     Admissible because it
     is not hearsay.
2.
2      Admissible d
       Ad i ibl under an
     exception to the
     hearsay rule.
             y                                   9%
                                                                               3%
3.    Inadmissible.

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                                                                    In
                                                                                      10
HIDDEN SLIDE Instruction: Disregard the court’s opinion
         y
and make your own decision.

Q. Offered to prove that his illness started on March 10, Mr.
Sana s                                  I            head
Sana’s statement on that date saying “I bumped my head”
would be --.


1.     Admissible with a
     limiting instruction for a                                            61%
                   purpose.
     nonhearsay purpose
                                                 30%
2.      Admissible under a
     hearsay exception.
             y      p                                          9%

3.     Inadmissible hearsay.




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                                                                                    11
Q. Offered to prove that Mr. Sana was ill on March 10,
testimony by the insurer’s investigator that one of Mr.
Sana s                           Mr.
Sana’s coworkers said to him “Mr Sana was acting
strangely back on March 10” would be --


1.    admissible, routine
     business record.
2.
2      d i ibl      th i d
     admissible, authorized                      33%            33%            33%
     or agency admission
3.    inadmissible hearsay.


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                                                                         in
                                                                                        12
Q.   Assume that had the coworker testified, his statement
that Mr. Sana was acting strangely would have been
admissible. But the coworker did not testify. Instead, the
plaintiff offered into evidence the report of Mr. Rutherford,
the insurance agent, describing what the co-worker said.
His report is admissible because it is --

1.    Not offered for its truth
2.    An authorized admission
3.    The admission of an agent
                                                   25% 25% 25% 25%
4.    A business record.




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                                                                                                     13
   Sana,                   agent s
In Sana the insurance agent’s report was prepared in
anticipation of litigation. Why wasn’t it excluded as untrustworthy
on that ground?




                                                               14
 Fed. R. Evid. 803(8)
The public records exception




                               15
  Fed. R. Evid. 803(8)
The bli        d       ti
Th public records exception




   What does it add?




                              16
 Hypo. Plaintiff brings a civil action against defendant, a police officer,
claiming damages due to police brutality. Defendant seeks to put in a
finding b th      li d      t     t’ Ci ili Review B d Aft h i
fi di by the police department’s Civilian R i       Board. After hearing
testimony by civilian and police witnesses, the Review Board found that
the officer used force only after being attacked. The judge believes the
Board s               trustworthy.
Board’s finding to be trustworthy The finding is --



1.    Admissible as a business
      record
                                                                       68%
2.    Admissible as a public record
3.    Both of the above
4.    None of the above
                                                                                       17%
                                                                                                   12%
                                                            3%


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                                                                                                           17
Walk-thru-FRE803(8).wpd




Fed. R. Evid. 803. The following are not excluded by the hearsay rule,
     even though the declarant is available as a witness . . .
                            Reports Records, reports statements
(8) Public Records and Reports. Records reports, statements, or
     data compilations, in any form, of public offices or agencies, setting
     forth
                                    agency,
(A) the activities of the office or agency or
(B) matters observed pursuant to duty imposed by law as to which
     matters there was a duty to report, excluding, however, in criminal
     cases matters observed by police officers and other law
     enforcement personnel, or
(C) in civil actions and proceedings and against the Government in
               cases
     criminal cases, factual findings resulting from an investigation
     made pursuant to authority granted by law, unless the sources of
     information or other circumstances indicate lack of trustworthiness.


                                                                         18
Fed. R. Evid. 803. The following are not excluded by the hearsay rule,
     even though the declarant is available as a witness . . .
(8) Public Records and Reports. Records, reports, statements, or
     data compilations, in any form, of public offices or agencies, setting
     forth
(A) the activities of the office or agency, or
(B) matters observed pursuant to duty imposed by law as to which
     matters there was a duty to report, excluding, however, in criminal
     cases matters observed by police officers and other law
     enforcement personnel, or
(C) in civil actions and proceedings and against the Government in
     criminal cases, factual findings resulting from an investigation
     made pursuant to authority granted by law, unless the sources of   f
     information or other circumstances indicate lack of trustworthiness.



                                                                         19
Walk-thru-FRE803(8).wpd




Fed. R. Evid. 803. The following are not excluded by the hearsay rule,
     even though the declarant is available as a witness . . .
                            Reports Records, reports statements
(8) Public Records and Reports. Records reports, statements, or
     data compilations, in any form, of public offices or agencies, setting
     forth
                                    agency,
(A) the activities of the office or agency or
(B) matters observed pursuant to duty imposed by law as to which
     matters there was a duty to report, excluding, however, in criminal
     cases matters observed by police officers and other law
     enforcement personnel, or
(C) in civil actions and proceedings and against the Government in
               cases
     criminal cases, factual findings resulting from an investigation
     made pursuant to authority granted by law, unless the sources of
     information or other circumstances indicate lack of trustworthiness.


                                                                         20
Beech Aircraft C
B   h Ai                Rainey, p. 362
            ft Corp. v. R i
    United States Supreme Court, 1988




                                         21
               Beech Aircraft C
               B   h Ai                Rainey, p. 362
                           ft Corp. v. R i
                    United States Supreme Court, 1988




What was the argument against admitting the evidence?




                                                        22
               Beech Aircraft C
               B   h Ai                Rainey, p. 362
                           ft Corp. v. R i
                    United States Supreme Court, 1988




What was the argument against admitting the evidence?
What was the court’s answer to that argument?
                                      g




                                                        23
Rule 803(8)(C) creates an exception for reports “setting forth . . .factual
findings resulting from an investigation made pursuant to authority
     t d b law.” I th course of h ldi that the JAG officer’s
granted by l     ” In the          f holding th t th       ffi ’
conclusion about pilot error fit this exception, the Beech Aircraft Court
indicated that --

1.     The concept of “factual
      findings” can include fact-
      b     d      l i
      based conclusions.
2.    Because the rule says that
      reports setting forth “factual
      fi di    ”     d i ibl
      findings” are admissible,                           33%              33%              33%
      opinions are admissible if the
      report also sets forth factual
      findings
      findings.
3.      Both of the above.




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                                                                                                   24
                   Corp. v.         p 364
See Beech Aircraft Corp v Rainey at p. 364, stating that:



In the first place, it is not apparent that the term "factual findings" should be
read to mean simply "facts" (as opposed to "opinions" or "conclusions"). A
           definition f "finding f f t" is, for          l "[a]       l i by
common d fi iti of "fi di of fact" i f example, "[ ] conclusion b way of           f
reasonable inference from the evidence." Black's Law Dictionary 569 (5th ed.
1979). To say the least, the language of the Rule does not compel us to reject
                            factual findings
the interpretation that "factual findings" includes conclusions or opinions that
flow from a factual investigation. Second, we note that, contrary to what is often
assumed, the language of the Rule does not state that "factual findings" are
admissible but that "reports . . . setting forth . . . factual findings" (emphasis
admissible,               reports                              findings
added) are admissible. On this reading, the language of the Rule does not
create a distinction between "fact" and "opinion" contained in such reports.


                                                                              25
In reviewing the legislative history, the Beech Aircraft Court said that --




•      The Senate and House
     were in accord about the
     coverage of the rule.
•      There was a difference of
     view between the Senate
     and the House, and Senate’s
     view is more in accord with
     the wording of the Rule and
     the comments of the
     Advisory Committee.
     Ad i      C      itt
•    The legislative history affords
     no definitive guide.
•    More than one of the above.
                                                                          26
                   Corp. v.         p 365
See Beech Aircraft Corp v Rainey at p. 365, stating that:


Clearly hi legislative history reveals a diff
Cl l this l i l i hi                l                f i    between the S
                                         difference of view b        h Senate
and the House that affords no definitive guide to the congressional
understanding. It seems clear however that the Senate understanding is more
in accord with the wording of the Rule and with the comments of the Advisory
Committee.




                                                                         27
The end


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