Evidence - Hearsay

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801(c) : Hearsay Definition

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"Hearsay" means a statement that:(1) the declarant does not makewhile testifying at the current trial or hearing; and(2) a party offers in evidence toprove the truth of the matter asserted in the statement.(d)

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Rule 802. The Rule Against Hearsay

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Hearsay is not admissible unless any of the following provides otherwise: __

- a federal statute; these rules; or other rules prescribed by the Supreme Court.

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Statement

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– any action undertaken by the declarant that is intended to communicate a fact - written or oral

a) Oral Arguments;

(1) “I inspected the machinery and it was in good working order.”

b) Writings;

c) Assertive Conduct

d) Nonassertive Conduct – trad’l CL said yes, modern ct. say no(1) conduct the declarant didn’t intent as an assertion

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Recording

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- only hearsay if offered for the truth of the matter asserted.

a) pictures and videos – depends what they show. Usually they do not portray assertions. Security cameras showing a ∆ pulling g a gun, produce a video of the even they do’t report an assertion.

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Machines

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– information conveyed by a machine is usually not a statement; so if a W testifies I looked at my watch right when the accident happened and it said a quarter to nine that is not a statement. Same is true for breathalyzers, radar guns, etc.

a) sometimes, however, people can communicate through machines. So if a bank teller hit a hidden button to set off an alarm, the alarm is an assertion it is meant to convey a fact that the police officer who responds does in fact understand. If the officer says the robbery began at 10am b/c that is when h heard the alarm, that is hearsay, b/c essentially what he is saying is the robbery began at 10am b/c that is when the teller told me it began

b) policy – machines aren’t always accurate, but ok b/c it can be challenges

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"Offered to prove the truthof the matter"

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1. NOT verbal acts or verbal parts of act, NOT Effect or the hearer/reader (put on notice, had knowledge, had an emotion, behaved reasonably, etc), NOT declarant’s state of mind, NOT reputation, NOT impeachment

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2. If the significance of the statement lies solely in the fact that is was made, no issue is raised as to the truth of anything asserted and the statement is not hearsay.

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"A declarant-witness’s prior statements are NOT hearsay"

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1. (d)(1)(A): the statement is consistent with declarant’s testimony that was given under penalty of perjury i) this is admitted as substantive evidence_____________________

2. (d)(1)(B) the statement is consistent with declarant’s testimony and is offered to rebut an expressed or implied charge of fabrication or improper motive i) this is admitted as substantive evidence_______________________

3. (d)(1)(C): the statement identifies a person

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Policy of Rule Against Hearsay

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a. Dangers of Hearsay: Ambiguity, insincerity, incorrect memory, inaccurate perception____

b. Admitting statements of one P against other Ps or D’s creates a spill over effect, so what should we do?1. Redact the admission --> people can usually still figure it out though 2. Sever the trials3. Or forgo the use of the statements_________________

c. So, under FRE 802, hearsay is NOT admissible, unless if meets one of the exceptions _______________________

d. BUT, some hearsay is more trustworthy than others, so for that hearsay, we allow it in as an exception because:1. Necessityi) Cannot get it some other wayii) Any other way would be less reliable2. Reliability i) We believe the circumstances make the information more reliable than other hearsay.

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There are 31 Exceptions to the Rule against hearsay - some are more important than others

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a) some re more necessary that others (murdervictim’s “last words”

b) Four Categories

c) 801(d) defines two types of out ct.statements as “not hearsay.”Ignore this, these are really only labeled hearsay exceptions. They are(1) priorstatement

d) 803 23 exceptions

e) 804 has five exceptions (only if declarantis unavailable testify or privilege)

f) 807 has a catch-all residual exceptions

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801(d) Statements That Are Not Hearsay

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A statement that meets the following conditions is not hearsay: ________

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;(B) is consistent with the declarant’s testimony and is offered:(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or(C) identifies a person as someone the declarant perceived earlier. _____________________

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:(A) was made by the party in an individual or representative capacity;(B) is one the party manifested that it adopted or believed to be true;(C) was made by a person whom the party authorized to make a statement on the subject;(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

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801(d) Statements That Are Not Hearsay: Witness Prior Statement 801(d)(1)

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a) W out-of-ct. statements can be hearsay, even though they are here and are on the stand ready to be XXN’d.

b) if the declarant testifies and is subject to cross-exam about a prior statement, which helps somewhat w/ the reliability then three types of prior W statements are admissible

(1) statement that is inconsistent w/ the decl. testimony and was given undue penalty of perjury at a trial, hearing, or other proceeding or in a deposition.

(2) statement that is consistent w/ decl. testimony and is offered:(a) rebut an express or implied charge that the declarant recently fabricated it to acted from a recent improper influence or motive in so testifying(b) rehabilitate the declarant’s crew. as a W when attacked on another ground

(3) statement that identifies a person as someone the dec. perceived earlier c) * grand jury testimony, deposition,

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Statements that are Non-hearsay under Fed. Rules (801) : Statements by Opposing Party (Admissions by Party-Opponent)801(d)(2)

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a) Under the Federal Rules, a statement by an opposing party (traditionally known as an “admission by a party-opponent”) is not hearsay. (1) Simply put, any statement made by a party and offered against that party is not hearsay. The party who made the prior statement can hardly complain about not having had the opportunity to XX himself. He said it. He is stuck with it. Let him explain it if he can.

b) Vicariously Liable – statements made by a partner, co-conspirator, authorized spokesperson or agent (not co-party)

c) limit – must be offered against that party (can’t introduce own OOC statements)

d) no need for person needs personal knowledge

e) can still use 403 to exclude extremely unreliable evid. (double, triple hearsay) – unfair prejudice that would substantially outweigh any probative value

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Statements that are Non-hearsay under Fed. Rules (801) : Statements by Opposing Party (Admissions by Party-Opponent)801(d)(2) : General Rule

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General Rule: A party’swords or acts may be offered as evidence against him, even though these wouldbe inadmissible hearsay if said or done by someone other than the party.

1. Thiscan include opinions or conclusions of law, and is not based on first-handknowledge. This makes it almost easier to introduce than actual testimony atthe trial.

b. Requiresno guarantee of trustworthiness.

c. Whileagency law was not meant for criminals, this rule mimics agency – the reasoningis the same

1. Aconspirator who speaks in furtherance of a conspiracy speaks on behalf ofothers

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Statements that are Non-hearsay under Fed. Rules (801) : Statements by Opposing Party (Admissions by Party-Opponent)801(d)(2): Distinguishedfrom a Statement Against Interest & Personal Admission

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Distinguished from a Statement Against Interest

1. Unlike a declaration against interest, this statement need not be against the declarant’s interest at the time it was made. The statement may have been neutral or self-serving when made.

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Personal Admission:

1. This is a statement by the party offered against the party. Must be relevanti) Pleadings: Statements made in a party’s pleadings are treated as a personal admission for most purposes, and are thus admissible. ii) Conduct: Even if assertive, is admissible under this rule. a) Example: Proof of D’s attempt to conceal V’s body would be admissible as an admission by D of his guilt, even if the court decided that was assertive conduct.

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Statements that are Non-hearsay under Fed. Rules (801) : Public Records Exception

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a) The investigator’s report is admissible under the public records exception. Under this exception, records, reports, statements, or data compilations, in any form, of a public office or agency are admissible to the extent that they set forth:(1) (i) The activities of the office or agency;(2) (ii) Matters observed pursuant to a duty imposed by law (excluding police observations in criminal cases); or(3) (iii) In civil actions and proceedings and against the government in criminal cases, factual findings (including opinions and conclusions) resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

b) A record of a prior judgment is admissible as a hearsay exception in certain instances. However, this exception applies to civil and criminal judgments—not to a government agency’s written report of an investigation.

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Statements that are Non-hearsay under Fed. Rules (801) : Adoptive Admission

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a) Silence – For silence to be an admission the following requirements must be met:

(1) The party must have heard and understood the statement;

(2) The party must have been physically and mentally capable of denying the statement; and

(3) A reasonable person would have denied the accusation under the same circumstances.

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Statements that are Non-hearsay under Fed. Rules (801) : Statements by Opposing Party (Admissions by Party-Opponent)801(d)(2): Adoptive REAL OR KNOWING TEST

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1. A party may have been deemed to have adopted another person’s statement, in which case the statement will be admissible as an admission by the party.

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2. Real and Knowing Test: If a party is claiming to have adopted another’s statement and the adoption is merely implied, the test: whether taking into account all circumstances, the party’s conduct or silence justified the conclusion that he knowingly agreed with the other person’s statement.

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3. Silence: Often, the party’s silence in the face of another person’s statement will, under the circumstances, indicate that the party agrees with the statement. If so, he will be held to have made an adoptive admission which will be admissible. i) Criminal Case: In a criminal case, D’s failure to respond to an accusation made by police offers while D is in custody will NOT be admissible against him as an adoptive admission because this would violate the spirit of Miranda rights. But, silence in the fact of accusations outside of custody or accusations made by non-police may be admitted. ii) Writing: A party’s silence in the face of writing will be similarly adoptive admissions, if the party would be reasonably expected to have objected if the writing was not true. iii) Requirements:a) Person must have heard the accusatory statementb) Person must have been capable of denying itc) Reasonable person, under same circumstances, would have denied it.

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Statements that are Non-hearsay under Fed. Rules (801) : Statements by Opposing Party (Admissions by Party-Opponent)801(d)(2): Representative Admission & Party’s Co-conspirator

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Representative Admission

1. Even if a party did not make or even learn of another person’s admission, that admission may be admissible against the party because he authorized it in some way. This is a representative or vicarious admission.

2. Explicit Authorization: This may occur because the party explicitly authorized another to speak on her behalf. i) Statements to principal: even if the principal only authorizes the employee to report to her, this is still an adoptive admission. a) Example: An employee’s accident investigation report, given only to the employee’s boss, would nonetheless be admissible against the boss.

3. Vicarious: Even is an agent is not explicitly authorized to make statements, statements she made arising from a transaction within her authority will be deemed authorized admissions by the principal.

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Party’s Co-conspirator: 1. Standard: “common venture”i) This is not the same is actual conspiracy. You do not have to find the elements of an actual conspiracy to use this exception. ii) This is usually found whenever there are two or more criminals. 2. Must have happened during the conspiracy i) Issue: At what point is the conspiracy over? ii) This creates a big problem for using post-arrest confessions. iii) Statements by A after A, B, and C are arrested would be admissible against A, but not against B and C because the conspiracy has ended. iv) Conspirator leaves: If A leaves the conspiracy, but B and C continue to the conspiracy without him, statements by B and C after A leaves may not be admitted against A. BUT, statements made by A to the authorities after A leaves may be admissible against B and C, since their conspiracy is still continuing at the time of A’s statement. 3. Issues on Concealment: Generally, once the criminals have disbanded, the conspiracy is not considered to still be going on. 4. Analysis: Always ask is the conspirator speaking on behalf of all the other conspirators? If the answer is no, the it is not reasonable, the courts will usually hold no. 5. Examples/Hyposi) After arrest, A confesses regarding A & B’s crime. A then kills himself. Now B is on trial, can prosecutor bring in A’s statements as hearsay exception? no, this is based on policy reasons. We cannot assume that the conspirator is speaking on behalf of the others, so most courts would find is inadmissible under this exception. ii) A is arrested and convinced to call his supplier on the phone. While on the phone, supplier talks about the crime and police hear. Are the supplier’s statements admissible? Court held that this arrest did not stop the conspiracy. The Supplier was still speaking in furtherance of the conspiracy. iii) A and B work at a bank. C robs the bank with the help of A and B. A testifies against B and C, A says he went to C’s house for the money and that C said to hide it. Is this admissible against B? obviously okay for him to say this about C, but also okay for B. Statements made just after robbery while dividing up ill-gotten gains are considered part of the criminal venture, not an attempt to conceal the crime.

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EXCEPTIONS : Present Sense Impression § 803(1)

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Present Sense Impression – covers statements made while perceived or immediately thereafter.

(1) A statement of present sense impression describes or explains an event or condition happening contemporaneously with or immediately prior to the statement. “I intend to go to Hawaii next week” is not a present sense impression because it concerns the declarant’s future act.

(2) three conditions: (a) only applies to a description or an explanation of an event i) a play-by-play, not analysis, or commentator(b) must make it while observing the event or immediately after i) usually no more than a few seconds after – to prevent the time it takes for a person to think about a lie (c) no requirement that declarant be unavailable

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EXCEPTIONS: Excited Utterance § 803(2)

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a) two conditions:(1) must speak while excited by a starting event (subjective)(eggshell rule applies) (a) police officers, paramedics might not be as startled; startled enough to not think of a lie (2) excited utterance must directly relate to the startling event (a) doesn’t have to describe it like 803(1); can analyze and interpret, but still must relate to an event (3) No requirement that declarant be unavailable

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Excited utterance Hypo

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HYPO: Husband is juggling knife while Wife is on the phone with sister. Sister hears:

1. Kid say “ouch dad cut me” --> not excited, but present sense impression_________________

2. Wife say “husband is juggling knifes” --> excited utterance and present sense impression _______________

3. Wife say “I told you to stop that!” --> excited utterance.

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Then-Existing Mental,Emotional, or Physical Condition § 803(3)

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1. General Rule: statements of a declarant’s presentbodily conditions, symptoms, including pain, offered to prove the truth of thematter. They are generally not hearsay

2. Statement can ONLY be about the present condition,not the cause or source.

3. Presentemotional or mental state is relevant to show the state of mind or the emotionat issue. This can be relevant for the issue on intent. i) Often,these statements are not even assertive, so they are not hearsay.

4. Conditions/ Requirementsi) Norequirement that the declarant be unavailable ii) Mustbe an internal “present sense” impression. Cannot be about pain yesterday. iii) Doesnot apply to statements of memory or belief.

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Then-Existing Mental, Emotional, or Physical Condition § 803(3) II

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a) State of Mind – “I intend to go to Hawaii next week” falls under the state of mind hearsay exception. (1) Declarations of existing state of mind are admissible (i) when declarant’s state of mind is directly in issue, or (ii) if they are declarations of intent offered to show subsequent acts of the declarant. This statement would be offered to show the subsequent act of the declarant; i.e., that he actually went to Hawaii.

***Policy i) Sufficientlytrustworthy and reliable ii) Necessity--> no better wayto get this information. This was spontaneous, so it has greater probativevalue than anything said on cross-ex now.

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Then-Existing Mental, Emotional, or Physical Condition 803(3): Can look forward, can't look back

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Can look FORWARD i) A statement of intent to perform an act is admissible as proof that the act was in fact done --> statement as proof of a subsequent event. a) Note: Statements that require action on the part of other people are less reliable. 1) Example: I am going out with Frank tonight. Could be used to prove Frank’s intent or conduct, but often limited to the declarant in jury instructions, or may require independent evidence of other person’s conduct. 2) Common use: statement of intent to commit suicide3) In homicide/assault cases, statements of victims as threats against or towards the defendant used to prove self defense are not hearsay. ii) This is at the discretion of the trial judge --> probative value is enhanced by the specificity and concreteness of the intent. iii) State of mind can be used to prove subsequent condition, though it is less reliable that the person actually carried out this intention. Yet, it is okay to you a state of mind regarding future acts to prove plan/design/intention of the declarant. a) Other evidence is still needed to prove this. b) Note that the declarant is always unavailable when this exception is used, even though the rule doesn’t require it.

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Cannot look BACKWARDSi) Statements that show memory or belief that look backwards are not admitted. ii) Only exception --> execution of wills8. Examples/Hypos: i) Intent to establish domicileii) Statements expressing mental suffering for damagesiii) Statements showing confusioniv) Statements accompanying transfers of property v) Statements of ill will to show malice

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Statement Made for Medical Diagnosis or Treatment § 803(4)

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1. Statement regarding previous condition while trying to get medical treatment is allowed in.

2. Statement does not have to be made to a medical professional.

3. Statement does not have to be made by the patient – could be a friend or a parent.

Past Bodily Condition– i) Declarant does not have to be unavailable ii) Declarant must actually be seeking medical treatment or diagnosis a) Note that diagnosis can happen after treatment. This is often at issue in medical malpractice cases. iii) Statement must be reasonably pertinent to diagnosis or treatment (lots of leeway in this)iv) Must involve medical history, part or present symptoms. BLAME is not allowed.

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Past Recollections Records § 803(5)

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Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and

(C) accurately reflects the witness's knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Requirements:

a) must be a record

b) Can be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Made or adopted while “fresh”in mind – accurately reflected knowledge at the time

c) Must be written by W OR Adopted by W OR The person who wrote it also testifies

d) must have once known the info (first hand).

e) Witnessmust no longer recall the information enough to testify from memory

f) must have been made when memory was fresh

g) must testify that at the time record was made, it reflected the memory and was accurate.

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Business and Public Records 803(6)-(8)

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The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(6) Records of a regularly conducted activity. A record of an act, event, condition, opinion, or diagnosis if:(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;(C) making the record was a regular practice of that activity;(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

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(7) Absence of a record of a regularly conducted activity. Evidence that a matter is not included in a record described in paragraph (6) if:(A) the evidence is admitted to prove that the matter did not occur or exist;(B) a record was regularly kept for a matter of that kind; and(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

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(8) Public records. A record or statement of a public office if:(A) it sets out:(i) the offices activities;(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

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Records of a Regularly Conducted Activity (Business Records Exception) § 803(6) - requirements

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a) The record must have been made at or near the time of the transaction

b) must be made in course of regularly conducted activity and must be regularly made in conducting the activity - part of routine process

c)This is not a general business record exception- Applies to schools, churches, hospitals, occupations, or callings

d) Writer had knowledge or received it from someone who had knowledge

e) Qualified witness must introduce the record into evidence --> usually a record custodian, can be basically anyone who can lay the foundation.

f) Not admissible if the source/method indicates a lack of trustworthiness.

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Records of a Regularly Conducted Activity (Business Records Exception) § 803(6) -6 key elements

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(1) applies to any “record” 101(b)(4) – really broad, any kind of record

(2) info must have been recorded a person who has personal knowledge of data, or received from someone w/ personal knowledge 602(a) includes insiders talking to insides, not customers or 3rd parties relaying info to an org – interests are diff.(b) faulty battery – only a technicians notes would be allowed in, not the customers complaint

(3) regularity req – org made the record in a regular conducted business activity, and regular practice of keeping records

(4) qualified W has to introduce records into ev – the doc’s ‘custodian’ but can be anyone who has the necessary knowledge to lay a foundation (doesn’t even have to work there)

(5) biz.record not admissible if source/method/circumstances indicate a lack of trustworthiness(a) does the record help your business? help in litigation?(b) some bystander putting in a doc wouldn’t work (policy) b/c not the same interests

(6) any business, occupation, calling, non/for-profit (even self-employed)

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Records of a Regularly Conducted Activity (Business Records Exception) § 803(6): Police

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a) The fact that Officer and W are available to testify does not affect the report’s admissibility. Under the business records exception, the person who made the entry need not be unavailable.

b) W’s statements are inadmissible under the business records exception because W was not under a business duty to transmit the information to Officer. To fall under the exception, the business record must consist of matters within the personal knowledge of the entrant or with the personal knowledge of someone with a business duty to transmit the information to the entrant.

c) Generally, police reports are not admissible against a criminal defendant under the business records exception. However, some jurisdictions admit police reports if they contain only routine information rather than observations or opinions of officers.

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Records of a Regularly Conducted Activity (Business Records Exception) § 803(6) - Personal Knowledge Requirement

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(1) For the exception to apply, the business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. It is not sufficient that anyone in the business have personal knowledge of the matters in the record. Rather, the entrant or someone with a business duty to transmit such matters to the entrant must have personal knowledge.

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Records of a Regularly Conducted Activity (Business Records Exception) § 803(6) - In Anticipation of Litigation

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The Federal Rules have dealt with the problem ofrecords prepared “inanticipation of litigation” by granting the trial court discretion to exclude anybusiness record if the source of information or other circumstances indicatethe record lacks trustworthiness. Thus, it is correct to say that such recordsare disfavoredunder the exception.

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Absence of a Record of a regularly Conducted Activity §803(7)

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a) evid. is admitted to prove that the matter didn’t occur or exist, record was regularly kept for a matter of that kind, and opponent doesn’t show that the possible source of the information nor other circumstances indicate a lack of trustworthiness

b) sometimes the absence of a record is as significant as the presence of one(1) e.g. the garage attendant records every license plate coming in, and the ∆’s plate wasn’t there, might need to show ∆’s car was never there

c) Silence through admission, really

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Public Records §803(8)

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a) a record or statements of a public source of info or circumstances indicate a lack of trustworthiness & it sets out:(1) the office’s activities;(2) matter observed while under legal duty (not including (in crim. case) a matter observed by law enforcement); or(3) in civil case, factual findings from a legally authorized investigation(a) broader, can include opinions(b) e.g. Social Worker’s report admissible in civil custody case, not criminal case

b) * a certified cop of a felony conviction is admissible as an exception in civil and crim. cases to prove any fact essential to the judgment

c) (8)(B) allows opponent to attack the public record’s inadmissibility on the ground that it lacks trustworthiness

d) J/ of a prior felony conviction – to prove any fact essential to the J/, but only against the accused.

e) prior acquittals – not admissible

f) civil J/ – inadmissible in a subsequent criminal proceeding b/c differing std. of proof.

g) Reports made by law enforcement not included b/c bias, might violate 6Am’t, bff’s w/ DA(1) ∆ can include it for their defense

h) Most public records could also be business records. If something can but (6) or (8).

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Public Records §803(8) II

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1. This does NOT include law enforcement records, unless the defense offers it. This is because the records are too likely to be biased.

2. Policy:i) Reliable for the same reason that business records are reliable. ii) More necessary than other forms of hearsay.

3. Requirementsi) Document must set out: a) Office’s own Activities and Duties are listedb) Observations made under duty: These are matters that the agency has a duty to report --> these are the reliable things. This does not include information reported by a third party. c) Factual findings from a legally authorized investigation. ii) Truthfulness: (factors considered)a) Timeliness of the investigationb) Special skills or experience of the officials conducting the investigationc) Was there a hearing held on the matter?d) Is the motivation suspect?

4. Law Enforcementi) (A)(ii) and (iii) may not be used against a defendant in a criminal case. ii) Thus, a police officers written report stating that he has seen D commit a crime, or a detectve’s report, concluding that a preciously unsolved crime has probably been committed by D, could not be admitted against D in his trial. iii) Courts have held that this includes laboratory technicians reports, when the technician is affiliated for law enforcement.

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Absence of a Public Record §803(10)

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a) evid. is admitted to prove that the matter didn’t occur or exist, record was regularly kept for a matter of that kind, and opponent doesn’t show that the possible source of the information nor other circumstances indicate a lack of trustworthiness____

b) Criminal case – PA needs to give 14 days written note (6am’t issue)

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1. Flipside of FRE 803(6), (8) is FRE 803 (7), (9)

2. Sometimes,the absence of a record is as significant as the existence of a record.

3. Notethat these are not assertive silences, so they aren’t hearsay at all really.This exception is really not needed.

4. Incriminal procedure, must provide notice of intent to use absence of record.

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Records of Docs Affecting Prop. Interests §803(14)

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a) admitted to prove content of original doc;

b) has to be kept in public office

c) statute authorizes recording docs of that kind

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Statements Affecting Prop. Interests § 803(15)

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statementestablishing or affecting an interest in prop. (deed, will, etc.) is generallyadmissible under rules

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Ancient Docs § 803(16)

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Under the Federal Rules, statements in any authenticated document 20 years old or more are admissible.

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FRE 803(18) Statements in Learned Treatises, Periodicals, or

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A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit.

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Learned Treatises § 803(18)

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a) treaties and expert lit. can be used in conjunction w/ expert testimony(1) allowed as both impeachment evid. and substantive evid.

b) doesn’t have to be actually used by expert – can get it in by:(1) saying expert relied on it(2) saying that your own expert calls it authoritative(3) judicia lnotice

c) can be read to jury, but must be explained by expert

d) something you’d need an expert to explain (Grey’sAnatomy – not the show)(1) don’tput it into evid.; might confuse them, don’t wantthem to get their hands on it, read it, and screw up(2) needsto be qualified by an expert, basically

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a. Favors Admissibility

b. This is a document that requires an expert to explain it.

c. Must have an expert qualify the document and rely on the document OR can be qualified by judicial notice.

d. Important parts of the document may be read into evidence, not but admitting the entire document into evidence. Too much for the jury.

e. Contents or substance may be used for impeachment.

f. Similar to FRE 803(17), which recognizes an exception for commercial publications that are commonly relied upon by business people.

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§ 804(a) – Criteria for Being Unavailable

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A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:(A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or(B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.

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1. This is a decision for the judge

2. This is about the testimony being unavailable, not necessarily the witness

3. This is trying to protect the party trying to bring in the statements.

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§ 804(a) – Criteria for Being Unavailable: Proof

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i) Not remembers: this is notremembering the WHOLE matter, not just little details. To prove this witnessherself must testify, which means the witness must be produced and subject tocross examination.

ii) Mental/Physicalillness or death:illness must be disabling and person must be unlikely to recover in areasonable time. If the person may recover soon, trial will just wait. To proveillness, must have doctor testify as to condition and likelihood of recovery.

iii) Absent fromtrial: a) Ifthe party cannot find the witness, must show that they made a diligent searchb) Ifthe party CAN find the witness, but the witness won’t come, must make offer totransport them, host them, etc. OR must go to them and take a deposition. c) WrongdoingsCaveat: Party offering the statement cannot be the cause of the unavailabilitydue to wrongful means. d) Manycourts will find a declarant automatically unavailable if the declarant isoutside of the jurisdiction and not require any sort of serious search.

iv) Privilege –requires a ruling on the part of the judge.

v) Refuses totestify:may or may not have reason. Could be a privilege the court doesn’t recognize,like the journalist privilege.

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FRE 804(b)(1) Former Testimony

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FormerTestimony. Testimonythat:

(A) was given as a witness at atrial, hearing, or lawful deposition, whether given during the currentproceeding or a different one; and

(B) is now offered against a party whohad--or, in a civil case, whose predecessor in interest had--an opportunity andsimilar motive to develop it by direct, cross-, or redirect examination.

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§ 804 Exceptions Former Testimony II

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1. Given by a witness, who is now unavailable

2. Maybe offered against the party who is was previously offered against or againstthe party that previously offered ed.

3. In a hearing/trial/deposition à even if not in the same lawsuiti) Oldrule: did not include grand jury proceedings. ii) Modernrule: does include grand jury proceedings.

4. Must have had an opportunity to cross-examine thewitnessi) evenif no questions were actually asked.

5. Opposing party’s motive in asking the questions musthave been similar to the motive of the current opposing party, i) likea predecessor in interest. (i.e. same defendant, but new plaintiff for sameinjury) ii) Theremust have been enough overlap between the issues existing at the time of theprior hearing or deposition and the issues existing at the current trial, thatthe above opportunity to cross-examine was a meaningful substitute for crossexamination in the present case. iii) FREstandard: “similar motive” to earlier situation.

6. Ina criminal case, the parties must be identical.

7. Difference between Former Testimony and PriorInconsistent Statement i) FRE801(d)(1)(a): Do not have to have been cross-examined, can now cross-examinebecause the witness is now available.ii) 804(b)(1):Does have to have been cross examined, because now the witness isunavailable.

8. Requirements/Analysisi) Typeof proceedingii) Trialstrategy iii) Potentialpenalties or financial stakes iv) Numberof issues or parties

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§ 804 Exceptions – Declarant Unavailable: Dying Declaration– § 804(b)(2)

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a) available only in civil actions and homicide cases (not other crimes usually)

b) For the dying declaration exception to apply, the declaration cannot merely concern any subject; rather, it must concern the cause or circumstances of what the declarant believed to be his impending death.

c) The exception is not strictly limited to identification of the perpetrator of the declarant’s injuries. It applies to the cause or circumstances, which could be more than just who did it, e.g., it could be how he was mortally wounded even if he did not know by whom.

d) Religious origins – “don’t want to your meet maker, with a lie on your lips”(1) Assuming people more honest before died(2) don’t need to actually die

e) terminalor prolonged illness is not “imminent”death – except last moments thereat the hospital and about to go

f) Take into consideration the general circumstances, not the person’s individual idiosyncrasies.

g) declarant does not have to die, just must have "lost all hope" under common law standard.

***usually,when asked on a question, usually when someone dies on a problem, not a dying declaration, just put there to confuse you

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§ 804 Exceptions – Declarant Unavailable: Statements Against Interest – § 804(b)(3)

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General Rule: Reasonable person would not havemade the statement if it was not true, because the statement is soself-incriminating.

a) statement must have been made (1) against pecuniary, proprietary, or penal interest when made, (2) such that a RP in the declarant’s position would have made it only if she believed it to be true(3) dec. must have had personal knowledge of the facts(4) dec. must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement; and(5) dec. must be unavailable as a W

b) people say stuff against their own interest – “reasonable people don’t say self-inculpatory statements unless they believe them to be true.”

c) CriminalCases – needs corroboration

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§ 804 Exceptions – Declarant Unavailable: Statements of Personal or Family History – § 804(b)(4)

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GeneralRule: Thereis a hearsay exception for statements of “pedigree,” i.e. Statements about aperson’s birth, death, marriage, genealogy, or other facts of personal orfamily history

a) dec. own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, or similar facts

b) ofanother similar facts if related by blood, adoption, marriage, or was sointimately associated w/ the person’sfamily that dec. info likely to be accurate

c) never tested

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§ 804 Exceptions – Declarant Unavailable: Statements Offered Against a Party that Wrongfully Causedthe Declarant’s Unavailability – § 804(b)(6)

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a) Known as forfeiture – if you caused it, you forfeit that W’s testimony. Three reqs;

b) Wrongfully Caused – doesn’t mean you cannot assert a privilege and make them unavailable lawfully.(1) looked at broadly

c) Intended to Make them unavailable– even if intended for another a case, intent carries over

d) Caused them to actually be unavailable

e) no requirement that the statement be reliable

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Hearsay w/in Hearsay – § 805

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Test: The evidence is inadmissible if any ofthe declarations is hearsay not falling within an exception.

Analysis:

1. Askis this really double hearsay? Ask “what is it being offered to prove?” becauseit is likely not hearsay.

2. Howmany declarants/statements are there?

3. Lookfor an exception for each level/line i) Ifone doesn’t have an exception, line stops thereii) Ifall have exceptions, then all get in! r

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Hearsay within Hearsay Hypos

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1. Call sheet from complaint/help line at computer company. Notes will include what the customer and technician both said. i) Technician: allowed in as a regular business recordii) Customer: allowed in as a present sense impression

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2. Wants to admit complains recorded by employees from consumers. Is this admissible? Each complaint has two statementsi) Customer  not allowed in (policy: might not be telling the truth)ii) Employee notes  allowed in as a business recordiii) Court will probably redact the documents to leave only the employee’s notes.

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Rule 807. Residual Exception

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a) In General. Under the following circumstances, a hearsay statement is notexcluded by the rule against hearsay even if the statement is not specificallycovered by a hearsay exception in Rule 803 or 804:(1) the statement has equivalentcircumstantial guarantees of trustworthiness;(2) it is offered as evidence of amaterial fact;(3) it is more probative on thepoint for which it is offered than any other evidence that the proponent canobtain through reasonable efforts; and(4) admitting it will best servethe purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible onlyif, before the trial or hearing, the proponent gives an adverse partyreasonable notice of the intent to offer the statement and its particulars,including the declarant's name and address, so that the party has a fairopportunity to meet it

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Confrontation Clause

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1. Testimonial i) Anout-of court testimonial statement by a witness CAN’T be admitted in a criminalcase against the D unless the witness is made available for cross examinationat D’s trial or when witness made the statement. ii) Anout-of-court non-testimonial statement by a witness CAN be admitted against Dwithout any confrontation clause problem even if W is never made available forcross-examination.

2. Distinction: i) Generally,testimony does no include off-handed remarks. Rather, these are statements madeby the witness that the witness had some idea could be used in a serious legalproceedings. ii) Includes:a) Priortestimony at a preliminary hearing, grand jury, former trialb) Anaffidavit that was part of law enforcement proceedings c) Forensiclab reportsd) Statementsmade during the course of police interrogations, including interviews by policeat crime scenes. I

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Testimonial Statements

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Does not include:

a) Statements by a co-conspirator

b) Excited utterances

c) Present-sense impressions

d) State-of-mind statements

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(1) Affidavits or Written Reports of Forensic Analysis – Affidavits, certificates, or other written reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct (e.g., identifying narcotics seized from a suspect or matching a suspect to blood test results) are testimonial and thus may not be admitted into evidence unless the defendant has had an opportunity to XXN the author of the report.

(2) Police Interrogation– (a) testimonial–to establish, prove past events potentially relevant to a later criminal PAi) including those made to the police by a victim about the details of the incident after the incident

non-testimonial – interrogation is to enable the police to help in an ongoing emergency including: statements made about the identity of the perps during a 911 call

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Compulsory Process Clause of the Sixth Amendment gives the criminal defendant the right to have compulsory process for obtaining witnesses in his favor

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1. General Rule: The compulsory process clause gives the defendant the right to obtain and present all evidence helpful to his defense.

2. Rules that limit particular types of evidence do not violate this clause as long as they are not arbitrary or disproportionate in purpose.