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46 Cards in this Set
- Front
- Back
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102
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Purpose and construction of FRE’s: fairness, lessen expenses/delay
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401
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Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
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402
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All relevant evidence is admissible... unless it isn’t--see Constitution and other FRE’s
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104(b)
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Conditional relevance - when the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
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104(b) standard
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Evidence for the underlying fact (that makes the conditional fact relevant) must be "sufficient to support a finding" by the jury by a preponderance of the evidence, a.k.a. whether a reasonable jury could find, by a preponderance of the (admissible) evidence, that the evidence is true. See Huddleston.
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403
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Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
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407
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Subsequent remedial measures
Not admissible for proving negligence, culpable conduct, a defect, or a need for warning. Admissible for all other purposes. It can be admitted to prove ownership, control, or feasibility of precautionary measures if any of those are controverted, or impeachment of witnesses. |
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407-411
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"Specialized" evidence rules
These are distinguished by their dual rationales: relevance and public policy Relevance rationale is a 403 judgment: as a matter of law, unfair prejudice and misleading qualities outweigh relevance. Policy: these rules look like privileges, which have no relevance or reliability-based rationales: they simply prioritize other values or purposes entirely (think: attorney/client priv., etc.) How are they interpreted? Most of these (all except 410) exclude for a few specific purposes but admit it for all others. 410 allows for a few specific purposes and excludes for all others. |
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408
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Offers to compromise not admissible to prove liability or validity/amount of a claim. This rule wants to encourage settlements.
Prohibits: 1) Offers to compromise 2) Conduct and statements made in compromise negotiations In order to: 1) Prove liability/invalidity/amount 2) Impeach through a prior inconsistent statement or contradiction You can use it for, among other reasons: 1) To show witness bias/prejudice. 2) Negating a contention of undue delay. Exception in subparagraph (2): You can use this kind of evidence when 2 conditions are met: 1) It's offered in a criminal case 2) Negotiations were related to a civil claim and D was talking to a government authority |
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409
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Offer to pay medical bills
Both broader and narrower than 408: broader in that it isn't limited to scenarios in which there's a claim initiated. Narrower in that it is only applicable to pay for medical or other similar expenses. It is only barred when trying to prove liability for the injury. Rationales: offering to pay medical bills may not be relevant to whether the offeror is liable for the injuries. It also may encourage people to offer to pay for medical expenses. The book points out, however, that protecting apologies or other statements that also often go along with offers to pay for medical expenses. The people covered by this are not usually the kind of people who are aware of the rule, so its incentivizing power is probably quite limited. A lot of states, then, bar any admissions of apology, sympathy, commiseration, etc. (often restricted to medical malpractice contexts), but do allow admission of statements of fault. |
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411
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Bars evidence of a liability insurance for one purpose: to show whether a person acted negligently or otherwise wrongfully. Evidence of insurance need not be excluded for other purposes, such as proof of agency, ownership, control, or bias/prejudice of a witness.
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410
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Last specialized rule. Can be compared with 408, somewhat similar: 408 covers civil suits, 410 is for criminal cases.
Inadmissible against a defendant: 1) Plea of guilty later withdrawn 2) A plea of nolo contendere 3) Any statement made in the course of FRCP 11 proceedings regarding either of the above 4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do no result in a plea of guilty or which result in a plea of guilty later withdrawn. Broader than 408 in that it bars such evidence for all purposes, except 2 cases: i) In any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it; or ii) In a crim proceeding for perjury or false statement if the plea-related statement was made by the defendant under oath, on the record, and in the presence of counsel. Other specialized rules exclude evidence only for certain specified purposes; 410 excludes it for all purposes unless there's a specific exception. This rule only bars this evidence being entered against the D. It does not technically bar the evidence being entered into the record by the D to defend himself--this is one way the situation in (i) can occur. (4) only applies in cases involving an attorney for the prosecuting authority--this does not include cops, so don't try to enter into a plea bargain with a policeman/-woman. |
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404(b)
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Rule 404 talks about excluding character evidence in general. You can't prove character traits in general to show guiltiness in a particular instance.
404(a) and (b) both start out saying the exact same thing in different words. This isn't to say that the evidence isn't relevant, just that we're not letting it in anyways. We may be able to prove you're a very dishonest person, but you can't use that to show that you lied in this alleged crime. There are 2 ways you could misuse this kind of evidence, both of which are why we disallow it: 1) Propensity reasoning: he did it before, so he probably did it this time too. 2) Even if he isn't guilty here, he "deserves" to be put away so we'll convict him. This rule is structured like most other specialized rules, saying you can use it for anything except for proving character. E.g., proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake/accident, etc. Just have to give notice to the other side that you're going to use it (if they ask for such notice). You can use character evidence for anything except propensity. |
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104(a) standard
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Requires convincing the judge by a preponderance of the evidence
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413-415
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Admissible propensity evidence: child abuse.
413 and 414 are for criminal cases, 415 for civil. Rule 413 - evidence similar crimes of assault in cases of sexual assault against an adult. Can be prior or post activities. 15 day notice requirement. Rule 414 - basically the same as 413 but for child molestation cases Rule 415 - civil claim based on acts that would also be a criminal offense. Basically the same as 413/14. |
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404(a)
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Admissible character evidence
Other exceptions to the "no character evidence" rule. These are either when it benefits the D or when its introduction can be controlled by the D. 404(a)(1) - in a criminal case, D can enter pertinent character evidence about themselves. Also lets prosecution bring in their own witnesses to rebut the D's character witnesses *after* the D has opened the issue. 404(a)(2) talks about allowing the D to enter evidence of the *victim's* character in some situations, and if the D chooses to do that the prosecution can enter the same kind of evidence against the D--this mostly comes up in self-defense cases in which the D can try to show that the victim had a reputation for violence. |
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405
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Methods of proving character
(a) By reputation or opinion. This is always allowed. Specific instances of conduct can be delved into on cross-examination. (b) Specific instances of conduct - allowed when character/trait is an essential element of a charge, claim, or defense; proof may also be made of specific instances of that person's conduct. These are very rare outside of parent custody cases and a few specific crimes. |
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406
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Habit; Routine Practice
Relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Contrast this with the 404(b) rule barring evidence of other acts used to prove the character of the person in order to show action in conformity therewith. You can't prove character, but you can prove habit (and thus support the inference that action likely occurred in conformance therewith). Examples of habit evidence: • Employer's manner of conducting interviews • "pattern or practice" of fraudulent tax planning • Passing out in chair drunk while holding cigarettes, burning upholstery • Keeping regular schedule • Always arranging for child care before going out at night • Doctor informing patients of medical risks • Deportation practices of INS • Disciplinary actions of employer • Obtaining consent from research subjects in studies • Insurers' practice of waiving policy requirements • Customary mailing practices • Bar's practice of serving intoxicated persons • Evidence of terms routinely included in contracts to prove it was included in a particular contract. Rejected as not habit evidence: • Prior assaults/violent behavior to prove D is assailant now [but pattern of violence against one person may be admissible under 404(b) as "pattern" evidence]. |
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608
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Evidence of character and conduct of witnesses
(a) You can impeach witness' character by reputation/opinion subject to: 1) Evidence may only refer to character for truthfulness or untruthfulness 2) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion/reputation evidence or otherwise. There are ways to impeach a witness' testimony without attacking their character. These are not subject to 608 limitations. You can • Contradict their testimony by conflicting evidence • Contradict their testimony by past inconsistent statement • Show evidence of bias (b) specific instances of conduct of a witness can not be proven by extrinsic evidence--you're stuck with the witness' answer. But you can ask them about such instances if, in the discretion of the court, they're probative of truthfulness or untruthfulness--on cross-examination only (1) concerning the witness' character for truthfulness, or (2) concerning the character for truthfulness of another witness as to which character the witness being cross-examined has testified. |
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609
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Witness impeachment by evidence of conviction of crime
(a) General rule Evidence against a witness other than the D, evidence of a conviction for the purposes of attacking character for truthfulness is admissible subject to 403 if the crime was punishable by death or imprisonment > 1 year Evidence of the same against the D is admissible if its probative value outweighs the prejudicial effect to the accused. Evidence that any witness (including D) has been convicted of a crime if proof of an act of dishonesty or false statement was necessary to the conviction (as long as that can be readily determined to be so--robbery doesn't count, and if you have to have a mini-trial to determine whether this is a dishonest crime then it doesn't count either--construe this narrowly, in other words). (b) Time limit Evidence of conviction not admissible if > 10 years have elapsed since conviction or release (whichever is later) unless the "conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." If you use such old cases you need to give written notice. (c) Straightforward: can't use prior convictions if D has been pardoned. Not very important to us. (d) Evidence of juvenile adjudications is generally not admissible. But it can be in criminal cases against someone other than the D if the court thinks that is necessary for a fair determination of the issue of guilt or innocence--very rare. (e) Convictions can be used even if there's a pending appeal. Also simple and straightforward. (a)(2) small crimes shall be admitted if they are crimina falsi (singular: crimen falsi) but not if they aren't. Robbery is not admissible because it's not about lying. |
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412
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Rape shield law
The following is not admissible except as provided in (b) and (c) 1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. 2) Evidence offered to prove any alleged victim's sexual predisposition. These are interpreted pretty broadly, making the rule keep a lot of stuff out. Includes, contraception, childbirth outside of marriage, correspondence, fantasies, etc. (b) exceptions: 1) In a crim case, following is admissible: a. Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence. b. Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution. c. Evidence that it would be unconstitutional not to admit must be admitted. 2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party (reverse 403 test). Evidence of victim's reputation is admissible only if placed in controversy by the victim. Galvin says we could have framed the rule like 404, only saying you can't use such evidence for the bad purposes and you can use it for anything else. But what it does is that it says you can't use it for anything except the good purposes, everything else is out. |
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601, 602, 603, 610
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Background stuff for witnesses
Witness competency - Rule 601: every person is competent to be a witness except as otherwise provided in these rules. (e.g., 605 and 606 say judges and jurors cannot be witnesses) However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. Rule 602: lack of personal knowledge - witness cannot testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. Rule 610: religious beliefs/opinions irrelevant to witness' credibility Rule 603: everyone has to take an oath/affirmation to testify truthfully Children who can't tell the difference between truth/falsity or remember stuff accurately can be disqualified from testifying, though some states say they are competent as a matter of law if it's a child abuse case. A little bit of disqualification as well for the mentally ill. |
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801
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Hearsay, what is
definition: a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Risks in all witness testimony: 1) Perception 2) Memory 3) Narration 4) Sincerity Basic checks on witness testimony that make us accept it generally: • Oath - should make witness take it more seriously • Assessment of demeanor - we can tell when people are lying! (actually, we can't, but oh well…) • Cross-examination and other impeachment - adversarial system gets at truth quite well. But with hearsay, we don't get any of those witness testimony checks! And the risks are doubled, because it's all filtered through two people! The purpose for which evidence is offered affects whether or not it is hearsay. If AB tells BC "Joey is after you!" is offered to prove that Joey really was after BC, it's hearsay; but if it's offered to show that BC had reason to fear Joey, it is admissible. A statement is: 1) written or oral assertion, or 2) nonverbal conduct of a person, if it is intended by the person as an assertion. Unpacking the hearsay definition: what is an assertion? A statement--verbal, written, or conduct--that intends to assert something. Umbrellas in the rain aren't an assertion that it's raining: people aren't trying to tell that to anyone, they're just acting on their belief that it's raining. Stopping at a red light isn't you trying to assert that the light is red. |
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801(d)(2)
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Not hearsay when the statement offered against a party and is
(A) The party's own statement, in either an individual or a representative capacity, or (B) A statement of which the party has manifested an adoption or belief in its truth. (C) a statement made by a person authorized by the party to make a statement concerning the subject (D) a statement made by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. Basically, if you authorize someone else to speak for you, you can be held liable for what they say. Also, if your employee says something about the employment while employed, that can be used against you. |
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613
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Prior statements by witness
All about past statements of witnesses used for purposes other than the truth of the statement (thus taking it out of the definition of hearsay). Confusion: past statements used sometimes for their truth, sometimes not. So a lot of people just think witnesses' prior statements should always get to come in--the witness is in court, remembers it, can be cross-examined about it, etc. Just let it in! But FRE say no, only for impeachment (and a few exceptions), basically admit that they're using experience, not logic, as basis for the rule. 613(a) - you can use prior witness statements and surprise the witness with it. (b) Extrinsic evidence of prior inconsistent statements is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate… Contradiction need not be in plain terms--just being inconsistent when taken as a whole (in what it says or omits to say) is enough. |
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801(d)(1)
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Substantive uses of hearsay
All that you need to admit something under 801(d)(2) is relevancy and offering them for something other than their substance (?). But now we want to offer some otherwise-hearsay for their truthfulness; that is, substantively. 801(d)(1) says that the following are not hearsay: a) Inconsistent statements under oath b) Consistent statements for rebuttal c) Identification statements Requirements: the declarant has to testify at the trial/hearing and is subject to cross-examination concerning the statement. For consistent statements, the rule is slightly different. The witness still has to testify and be subject to cross-examination concerning the statement, but the declarant's prior statement must be offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. |
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804
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Unavailability of witness, but we let hearsay in anyways
(a) defines what unavailability means. There are 5 definitions, most straightforward. 1) Exempted by ruling of the court on the ground of privilege concerning the subject matter of the declarant's statement. You can be unavailable even if you're in court! This is determined by a 104(a) standard. You'll still need to provide the witness for this 104(a) hearing, generally. 2) You are unavailable if you (the declarant) persist in refusing to testify concerning the subject matter of your statement despite an order of the court to do so. 3) Declarant, who is in court testifying, testifies that they have no memory of the subject matter of the declarant's statement. 4) You're dead or sick. Natch. 5) Absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (…) by process or other reasonable means. I.e., they can't be subpoenaed and they won't come to trial despite being asked. 804(a)(5) - back to that ellipsized parenthetical: "(or, in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony)" -- this says that trying to get a deposition is the best exception to hearsay, since it allows for cross-examination; so you have to try to get their testimony if possible. A declarant is not unavailable, btw, if the exemption, refusal, claim of lack of memory, inability or absence is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying. You can't make yourself unavailable so that your previous (preferred) statements will be the only evidence. (b) hearsay exceptions - following are not excluded by hearsay rule if the declarant is unavailable as a witness: Former testimony - testimony given as a witness at another hearing of the same or a different proceeding etc., if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. So to note: this had to be testimony and therefore under oath; there also has to have been an opportunity for cross-examination (note that this is different from 801(d)(1) where cross-exam not needed--distinction is because 801(d)(1) is for people who are available as witnesses so they can be cross-examined now, so we always want some kind of cross-examination). 804(b)(3) NB: pg. 293 in the supplement is where you get the current version of the rule now. Statement against interest is admissible if witness is unavailable and: a) A reasonable person in declarant's position would have made it only if the person believed it to be true because it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and b) It is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. 804(b)(6) - Forfeiture exception. A statement offered against a party that (1) has engaged or acquiesced in wrongdoing that (2) was intended to, and (3) did, procure the unavailability of the declarant as a witness. |
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806
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Credibility of hearsay declarant
When a hearsay statement that gets in under 801(d)(2)(C), (D), or (E) has been admitted in evidence, the credibility of the declarant may be attacked by any evidence which would be admissible for those purposes if declarant had testified as a witness. Rule 613 doesn't apply. |
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803
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Admissible hearsay, availability of witness immaterial
These are just general exceptions to hearsay ban, regardless of whether or not the declarant is available to testify. |
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803(1)
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Present sense impression - statement must be made during perception or immediately thereafter.
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803(2)
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Excited utterance - must be made while "under the stress of excitement caused by the event or condition"
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803(3)
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Then existing mental, emotional, or physical condition.
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed… This exception is fun because of the Hillmon case. |
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803(4)
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Statements made for purposes of medical diagnosis or treatment and (1) describing medical history, or (2) past or present symptoms, pain, or sensations, or (3) the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment are admissible.
This allows in some past statements, thus allowing for memory problems, but the statements are assumed to be sincere since they're for treatment. Perception is also assumed to be pretty good. Can be pretty broad as long as it's for the proper purpose and physicians find it useful. Sincerity and perception risks are thought to be pretty small--memory risks might also be minimal if you're recounting present symptoms/pains, but they can be large if you're recounting past symptoms. Accusations or statements of fault are not admissible under 803(4), though there may be a recent trend to interpret treatment as taking someone out of an abusive situation and thus make such statements admissible… Brown is skeptical that this is really happening, though. |
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803(5)
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A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
So you can't enter the actual record into evidence, you can just read it to the jury or into the record. They want it to be as close as possible to live testimony, not affect the jury by its written nature. 4 elements required: A memo or record concerning a matter about which 1) A witness once had knowledge 2) Now has insufficient recollection to enable full testimony 3) Shown to have been made or adopted by the witness when the matter was fresh in the witness' memory; and 4) Shown to reflect that knowledge correctly [witness has to vouch for it] |
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803(6)
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Records of regularly conducted activity.
A memo, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, 1) made at or near the time by , or from information transmitted by, 2) a person with knowledge, if 3) kept in the course of a regularly conducted business activity, and if it was 4) the regular practice of that business activity to make the memorandum, report, record or data compilation… Recency requirement helps make sure it is accurate. You also need someone who can testify that the process conforms to the requirements, or by certification that complies with Rule 902(11), Rule 902(12), or other statute. 803(6) also has an "unless" clause though: if circumstances indicate untrustworthiness, then you can't get the record in. Note that the witness who lays the foundation doesn't need to have knowledge of the actual record at issue, just with the general procedure. |
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803(8)
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Public records exception--similar to 803(6), though crafted a bit more complexly.
Records etc. 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 gov't in 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. The police report exception is to preserve the constitutional right to confront one's accusers. The idea is that, police reports aside, the stuff allowed in under (B) is that the report is likely to be reliable because it's created pursuant to a duty. The Beech Aircraft case gets at (C). |
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807
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Residual exception
Basically anything that isn't "covered" by another hearsay exception can still be excepted if A) the statement is offered as evidence of a material fact, B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence… |
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801(d)(1)
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Exceptions to hearsay:
a) Inconsistent statements under oath b) Consistent statements for rebuttal c) Identification statements For inconsistent statements, the declarant has to testify at the trial/hearing and is subject to cross-examination concerning the statement. For consistent statements, the rule is slightly different. The witness still has to testify and be subject to cross-examination concerning the statement, but the declarant's prior statement must be offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. Statements of identification are OK under the same circumstances if they're made after perceiving the person. The rationale for the rule is that the prior ID was closer in time to the event and it also avoids the suggestibility of a courtroom scenario. Note that the witness doesn't even need to ID the D at trial (cf Owen) as long as the witness is available for cross-examination about the prior identification. |
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804
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Unavailable witness hearsay
(a) defines what unavailability means. There are 5 definitions, most straightforward. 1) Exempted by ruling of the court on the ground of privilege concerning the subject matter of the declarant's statement. You can be unavailable even if you're in court! This is determined by a 104(a) standard. You'll still need to provide the witness for this 104(a) hearing, generally. 2) You are unavailable if you (the declarant) persist in refusing to testify concerning the subject matter of your statement despite an order of the court to do so. 3) Declarant, who is in court testifying, testifies that they have no memory of the subject matter of the declarant's statement. 4) You're dead or sick. Natch. 5) Absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (…) by process or other reasonable means. I.e., they can't be subpoenaed and they won't come to trial despite being asked. A declarant is not unavailable, btw, if the exemption, refusal, claim of lack of memory, inability or absence is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying. You can't make yourself unavailable so that your previous (preferred) statements will be the only evidence. (b) hearsay exceptions - following are not excluded by hearsay rule if the declarant is unavailable as a witness: 1) Former testimony - testimony given as a witness at another hearing of the same or a different proceeding etc., if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. So to note: this had to be testimony and therefore under oath; there also has to have been an opportunity for cross-examination (note that this is different from 801(d)(1) where cross-exam not needed--distinction is because 801(d)(1) is for people who are available as witnesses so they can be cross-examined now, so we always want some kind of cross-examination). Statement against interest is admissible if witness is unavailable and: a) A reasonable person in declarant's position would have made it only if the person believed it to be true because it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and b) It is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. So 804(b) is talking about unavailability exceptions to hearsay: (1) is best indicia of reliability: it was under oath. (2) has some theory behind it (statement under belief of impending death), and (3) makes some sense. 804(b)(6) - Forfeiture exception. A statement offered against a party that (1) has engaged or acquiesced in wrongdoing that (2) was intended to, and (3) did, procure the unavailability of the declarant as a witness. |
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803
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Hearsay exceptions - availability of witnesses immaterial
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803(1)
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Present sense impression - A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
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803(2)
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Excited utterance - statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
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803(3)
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Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless ... [unimportant]
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803(4)
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Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
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803(5)
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Recorded recollection - A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself by received as an exhibit unless offered by an adverse party.
Cf Rule 612 |
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803(6)
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Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business activity, and if it was the regular practice of that business activity to make the memo etc... [also must comply with Rule 902(11) or (12), also] unless the circumstances indicate lack of trustworthiness.
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