Evidence Phase Ii

Front 1

“My bookkeeper tells me me we run out of inventory every time a new Seymour movie comes out.”

Back 1

Multiple Hearsay

Front 2

Prosecution of D for murder. D claims she did not commit the crime, and calls W to testify that a long time friend of D told her that D was as gentle as a lamb. The prosecution objects

Back 2

Hearsay

Front 3

Problem 4.9
• On June 30, 1915, George Joseph Smith was convicted in London of murdering Bessie Mundy. Three years earlier Mundy had married Smith (who unbeknownst to her was already married), had executed a will leaving him all her property, and then had drowned in her bath. Smith claimed the drowning had been accidental, but at trial the prosecution proved that, following Mundy’s death, two other women had died in their baths after going through marriage ceremonies with Smith and making out wills in his favor. The introduction of this evidence was the principal issue on appeal
– Would the evidence of the other deaths be admissible under the Federal Rules of Evidence? What if without that evidence there was no prima facie case—i.e., what if the proof regarding Mundy's death, standing alone, would not allow a rational jury to find Smith guilty of murder?

Back 3

Under Huddleston, the evidence of the other deaths would be admissible as long as all of the prosecution evidence, considered together, sufficed to allow a reasonable jury to conclude that the earlier deaths were homicides.
• In theory, the evidence might be admissible even if the proof regarding Mundy’s death, standing alone, would not allow a rational jury to find Smith guilty of murder. It might be precisely the combination of the deaths that would allow a rational jury to reject the possibility that they were all accidental.
• In stressing that “[t]he sum of an evidentiary presentation may well be greater than its constituent parts,” the Supreme Court in Huddleston essentially agreed with Justice Darling’s position in Rex v. Smith

Front 4

• In a murder prosecution the state offers into evidence the report of the police forensic specialist who retrieved and then tested two blood samples she found at the murder scene and a blood sample she took from Defendant after his arrest. The report describes the genetic characteristics of each sample and concludes that one crime scene sample is a match for Defendant’s blood sample.
The prosecution offers into evidence just that portion of the report in which the forensic specialist stated that she found the crime scene blood samples under the victim’s fingernails. The defense objects on the ground of hearsay. Is the evidence admissible under the public records exception to the hearsay rule?

Back 4

No. Under Rule 803(8)(A)(ii), this is a report of the observations of law enforcement personnel offered into evidence against the accused.

Front 5

In a statutory rape prosecution of Devon, the prosecutor seeks to call Warrington, who will testify that he was present when Devon met the victim, and that the victim told Devon that she was underage. Is this evidence hearsay? Would its introduction violate the Confrontation Clause?

Back 5

• The evidence here might be hearsay, depending on what it is being used to prove.
– If the statement is offered to prove that Devon was on notice that the victim was underage, it isn’t hearsay: it’s circumstantial evidence of the listener’s state of mind.
– If it is offered to prove that the victim was in fact underage, then it is hearsay.
• The Confrontation Clause does not apply: the statement is not “testimonial.”
– On the spectrum described by the Court in Crawford, this seems close to a casual remark among acquaintances.
– There is no evidence Warrington was an agent of the state investigating a crime

Front 6

• The Sea Breeze Grill sues the C Breeze Bar-N-Grill for infringing its trade name. To prove that the names are likely to be confused, the plaintiff seeks to introduce daily logs it had its employees keep over a three-month period, describing telephone calls and comments from customers indicating confusion about the two names. Are the logs admissible?

Back 6

• There are two layers of out-of-court statements here: layer (1) consists of the statements by telephone callers and customers, and indicates confusion between the two names; layer (2) is the logs prepared by employees of Sea Breeze Grill, describing the first layer of statements.
• Layer (1) is either not hearsay
• because it is simply circumstantial evidence of the declarants’ confusion
• or is admissible under the state of mind exception (
• if, for example, a declarant said, “I’m confusing the Sea Breeze Grill and the C Breeze Bar-N-Grill.”)
• Layer (2) are hearsay introduced to that callers and customers made the statements described in the logs.
• The logs do not qualify as business records under F.R.E. 803(6), because it does not seem to have been a “regular practice” of the Sea Breeze Grill to keep records of statements evincing confusion between the restaurants and its competitors.

Front 7

FRONT
• 3.34
• An eyewitness to a hit-and-run accident calls his wife fifteen minutes later, tells her the license plate number of the car he saw leave the scence, and asks her to write it down. She does so. Under what circumstances will her note be admissible in a later prosecution of the driver? Under what circumstances may it be used to refresh the recollection of the husband or the wife?

Back 7

BACK
• Admissible for impeachment purposes as non-hearsay, if license-plate number on note contradicts that which is stated in court by husband
• By husband: under FRE 803(5) if he testifies he can no longer remember number, and wife testifies that she does accurately recorded what he told her. Read into evidence
• By wife: hearsay within hearsay problem. Under FRE 803(5) if wife testifies she can no longer remember number, then admissible so long as some other exception permits admissibility of husband’s statement
• Excited utterance under FRE 803(2) if husband still excited
• Present sense impression under FRE 803(1) if 15 minutes not too long a lapse (stretching things)

Front 8

FRONT
Pauline sues Devon for damages caused when their cars collide. Devon’s wife, Wilma, was a passenger in Devon’s car at the time of accident. Pauline seeks to testify that, immediately following the accident, Wilma told her in a state of great agitation that Devon had “been sleeping terribly all week long.” Does the hearsay rule prohibit this testimony

Back 8

BACK
• FRE 803(1) Present Sense Impression
• Contemporaneous with event or condition? No; remember, statement about sleeping
• FRE 803(2) Excited Utterance
• Was there an external stimulus? Yes: car accident
• Did the speaker demonstrate an excited reaction? Yes, “in a state of great agitation”
• Did the statement “relate to” the stimulus? Yes (remember, broad provision); provides an explanation for event
• Personal knowledge? Not clear. Wilma is Devon’s wife, so may have perceived event on which statement based
• This statement seems to fall squarely within F.R.E. 803(2), the federal exception for “excited utterances.”
– It was made while Wilma “was under the stress of excitement caused by the event.” So the hearsay rule would not bar this testimony in federal court.
– It relates to the startling event—namely the accident—because it provides an explanation for the event.
• The only possible hitch is personal knowledge.
– Some judges might simply assume, absent some indication to the contrary, that Wilma was speaking from personal knowledge when she described her husband’s recent insomnia.
– But other judges might require some affirmative demonstration of that fact, either through testimony by Wilma or otherwise.

Front 9

FRONT
• A delivery company fires a driver after his truck collides with a motorcycle. The driver then telephones the motorcyclist and admits that he was speeding. The motorcyclist sues the driver and the delivery company for negligence, proceeding against the delivery company on a theory of respondeat superior. Is the driver’s statement admissible against the driver? Against the company?

Back 9

BACK
• The driver’s statement is a direct admission admissible against the driver.
• The driver’s statement is not admissible against the company in federal court.
• The driver was no longer employed by the company at the time that the statement was made. So F.R.E. 801(d)(2)(D) is, by its terms, inapplicable.

Front 10

FRONT
• The owners of all rights to the animated character “Seymour the Super Spaniel” bring a trademark infringement suit against the manufacturer of a “plush toy” that looks similar to Seymour. To prove that children are likely to confuse the defendant’s toy with Seymour, the plaintiffs seek to prove that the defendant has made the following statements to wholesale purchasers: (a) “Kids can’t tell this thing apart from Seymour.” (b) I showed the dog to my six-year-old niece and she said, ‘Oh, it’s Seymour!’”

Back 10

BACK
• The defendant’s own statement that “[k]ids can’t tell this thing apart from Seymour” is admissible against the defendant as a direct admission under F.R.E. 801(d)(2)(A)
• The defendant’s own statement that “I showed the dog to my six-year-old niece, and she said, ‘Oh, it’s Seymour!’” is admissible against the defendant. This second statement involves two layers of potential hearsay: the statement by the defendant and the statement by the niece.
• The statement by the defendant qualifies as a direct admission under F.R.E. 801(d)(2)(A)
• The statement by the niece is not hearsay because it is not being introduced to prove the truth of what it asserts. The niece’s statement is not being used to show that the toy really was Seymour, but rather that it could easily be confused with Seymour.

Front 11

FRONT
A newspaper reports that the “old time marinade” advertised by a fast food chain is mayonnaise and food coloring. The chain sues for libel. The newspaper seeks to have its reporter testify that she was told the ingredients by the chain’s Vice President for Menus and Recipes. Is the testimony admissible to prove lack of malice? To prove the actual ingredients?

Back 11

BACK
• When used to prove lack of malice, the statement is admissible because not hearsay.
– Offered to prove that the newspaper was proceeding in good faith (effect on the listener), not the truth of the matter asserted
• When used to prove the actual ingredients, the statement does satisfy the classic definition of hearsay.
• In federal court, qualifies as an admission attributable to the fast food chain
– The Vice President is an employee of the chain, and he or she is speaking about something within the scope of his or her employment.

Front 12

FRONT
• Paloma sues her surgeon, Sagar, for medical malpractice. To prove that proper procedures were followed, Sagar seeks to introduce a hospital chart with notations describing Paloma's operation. The notations were made by a medical assistant who was not present during the surgery. He made the entries pursuant to standard hospital procedure, but he cannot remember which of the doctors and nurses who participated in the operation gave him the information that he entered on the chart. Are the medical assistant's entries inadmissible hearsay?

Back 12

BACK
• There are two levels of hearsay here: the medical assistant’s written statement, and the oral statements from personnel who participated in the surgery
• Under F.R.E. 803(6), the chart is admissible as a business record
• It does not matter that the medical assistant does not recall which of the operating physicians gave him the information, as long as he knows that the information came from someone who (a) had knowledge of the events in question and (b) was himself or herself speaking pursuant to a “business duty” to the hospital
• Both of these conditions would be satisfied if the information came from any of the physicians or nurses who participated in the operation
• Because the medical assistant as well as the operating physicians and nurses were acting pursuant to responsibilities to the hospital, the business records exception covers both levels of hearsay