Federal Rules of Evidence – Hearsay Exceptions


Federal Rules of Evidence Law School Supplements

Federal Rules of Evidence Law School Supplements

 

Hearsay Exceptions:

 

Conspiracy As Non-Hearsay:

  • Coconspirator statements are admissible under 801(d)(2)(E) if:
    • 1) Declarant and defendant conspired
    • 2) Declarant’s statement furthered the conspiracy
    • 3) Declarant’s statement was made during the course of the conspiratorial venture
    • Note: Applies in both criminal and civil cases

Hearsay Exceptions and Purposes:

  • General Notes:
    • Rules recognize numerous exceptions based on certain situations/statements made for truth of matter asserted that are trustworthy enough to let them in
  • Hearsay Exception Categories:
    • 1) Rule 803: Hearsay Exceptions: Availability of Declarant Immaterial
      • Contains 23 exceptions
    • 2) Rule 804: Hearsay Exceptions: Declarant Unavailable
    • 3) Rule 807: Residual Exception
    • Other Notes:
      • The exceptions are phrased in terms of nonapplication of the hearsay rule, rather than in positive terms of admissibility, in order to repel any implication that other possible grounds for exclusion are eliminated from consideration”
      • We are also still NOT excused from personal knowledge requirement (i.e. they heard the statement made)
    • Rule 805: Hearsay within Hearsay:
      • Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules”
      • If you have hearsay within hearsay, each piece has to be analyzed to be nonhearsay or fit within an exception
    • Judge determines whether something fits into hearsay exception
  • Present Sense Impressions/Excited Utterances:
    • Less risk that the declarant is going to fabricate the statement when it’s made while perceiving the events
    • Might have additional reliability than most hearsay statements

Rule 803: Hearsay Exceptions Availability of Declarant Immatieral:

  • (1) 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.
    • ACN: The underlying theory of Exception (1) is that substantial contemporaneity of even and statement negate the likelihood of deliberate or conscious misrepresentation
  • (2) Excited Utterance:
    • Less time to make something up reaction
    • The theory of exception (2) is simply that circumstances may provide a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.”
    • Time can be stretched more in this exception compared to present sense impression
    • United States v. Arnold:
      • Daughter to Girlfriend of D makes statements out of court that prosecution wants to use for truth of matter asserted
      • Daughter called 911 saying “he’s got a gun, he’s going to kill me”
        • She doesn’t testify statements were made out of court
      • D (mother’s boyfriend) is charged with felon-in-possession-of-a-firearm
      • Statements were close enough in time, declarant was in distress
      • NOTE: even if you only have statement itself it is sufficient to assist you in proving startling event this is different from conspiracy where you need more than conspiracy hearsay statements to prove conspiracy
    • Other Notes:
      • Participation: No where in 803(2) does it mandate that you have to be participant you can be bystander
        • Participation: by the declarant is not required: a non-participant may be moved to describe what he perceives, and one may be startled by an event in which he is not an actor
      • Time: Longest it has stretched is 14 hours
        • But post-tramatic stress where events are felt years later has not been admissible
    • Problem 4-I:
      • Example where statement alone is sufficient to prove excited utterance
  • 803(1) v. 803(2):
    • Present Sense Impression:
      • 1) Any event or condition
      • 2) Statement must describe or explain event
      • 3) Made while perceiving or immediately thereafter.
    • Excited Utterance:
      • 1) Startling event or condition
      • 2) Statement need only to relate to a startling event
      • 3) Made while delcarant under stress excitement caused by event
  • 803(3) 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 ofr belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
    • We are NOT talking about others state of mind very important restriction is that the statement has to express emotion at that moment
      • Yesterday I had shooting pain down my arm” DOES NOT fit within this exception
      • I have a shooting pain down my arm” DOES NOT fit within this exception
      • I’m going to Mexico this weekend” fits under 803(3)
    • Ask yourself:
      • 1) Is the evidence being used to prove current, future or past condition?
        • Present sense impression allowed past not allowed
      • 2) Is it the future behavior of declarant or someone else at issue?
        • Can use statement about yourself and other to show only as it relates to you
    • Mutual Life Insurance v. Hillmon:
      • Tells us that you can somehow prove that this person also went under this present recollection or current mental state
      • We aren’t just trying to prove what delcarant did here you’re trying to show that other parties mentioned also did this event
      • U.S. Supreme Court in Hillmon held that such a future statement of intent, if offered that the delcarant actually did go to Chicago, falls within the then existing state of mind exception.
      • ACN make clear that the Hillmon rule allowing evidence of intention as tending to prove the doing of the act intended is, of course, left undisturbed under 803(3).
    • United States v. Pheaster:
      • Rules weren’t in effect at time of this case
      • Presents question: are we allowed to use then-existing state of mind exception that others acted in conformity to statement
      • The Committee intends that the Rule 803(3) be construed to limit the doctrine of Mutual Life Insurance Co. v. Hillmon so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person.
  • Handout:
    • A. Is the testimony in the above paragraphs 1-5 Hearsay?
      • 1) Yes, hearsay but there is no evidence that prosecution is trying to rebut same
      • 2) Not hearsay because she’s just testifying from personal knowledge
      • 3) Carve out under 801(d)(1)(C)
      • 4) Present sense impression exception
      • 5) Depends if used to show that declarant did this OK, if used to show that someone else did this NOT OK
  • 803(3) Will Exception to Exception:
    • Ad hoc judgments which finds ample reinforcement resting on practical grounds of necessity
    • For problem, do you need to take advantage of will’s exception to get the information in or can you just fit within existing state of mind

 

Rule 803: Hearsay Exceptions: Availability of Declarant Immaterial

  • Daniel’s Will:
    • 1) Fits under 803(3) without will exception because it’s not a backward looking statement forward looking statement that he’s going to give him something
    • 2) Fits under 803(3) without will exception because it’s intent
    • 3) Might have to use will exception because it might be looking backward
  • If you have backward looking statement you can’t get it in under 803(3) unless it deals with will
    • I believe that I had shooting pain down my back three months ago” NOT ALLOWED

 

Hearsay Exceptions II:

 

3. Statements to Physicians

  • General Notes:
    • When person seeks treatment from physician, health hangs in balance so there’s good reason to believe he/she will be careful in describing symptoms to doc statement doesn’t have to be made just to doctors
      • “Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.”
    • Therefore Rule 803(4) recognizes exception for such statements
    • 803(4) 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…
      • NOTE: Statements as to fault would not ordinarily qualify under this Rule
        • Medical diagnosis or treatment because they’re trying to get to experts as well
        • Exception also reaches statements by caretakers
  • Blake v. State (Supreme Court of Wyoming, 1997):
    • Facts:
      • D was convicted of 2 counts of sexual assault of stepdaughter
      • After report of sexual abuse, victim was transported to hospital and examined by Dr. to whom she told that she was forcibly subjected to sexual intercourse by stepfather numerous times
      • Victim doesn’t testify at trial but doctor does D objects but court allows under 803(4)
    • Legal Issue:
      • Was the doctor’s testimony excludible as hearsay or accepted under 803(4)? Admissible under exception.
    • Holding/Rationale:
      • General Rule:
        • In situations involving physical or sexual abuse, statements made by child victim to medical professional may be admitted
        • Statements of ID are also admitted in child abuse cases b/c of special character of diagnosis and treatment in sexual abuse cases
        • BUT there MUST be proper foundation
      • Foundation Rule—Renville Test:
        • Two-part test:
          • 1) Delcarant’s motive in making the statement is consistent w/ purposes of promoting treatment or diagnosis, and
          • 2) The content of the statement is reasonable relied on by a physician in treatment or diagnosis
        • Application:
          • 1) Victim made statements to aid in doctor’s assessment/examination had correct motive
          • 2) Statements were used to help doctor determine which tests (rape kit) should be done
      • Note Re Age:
        • Age of child go toward weight of hearsay statements rather than their admissibility
    • Class Notes:
      • Doctor wants to show that she needs to know who the perpetrator was to perform further exams
    • Notes:
      • Majority’s View: Is that statements to doc ID-ing assailant are not “pertinent to medical treatment” despite the fact that they may relate to psychological treatment

4. Past Recollection Recorded

  • General Notes:
    • Sometimes witness who can’t remember critical points has written down what he knew and what he wrote may be admissible as substitute for testimony or used to refresh memory initially
    • To get writing admitted as evidence (not just to refresh memory), he must demonstrate:
      • 1) the witness lacks present recollection of the matter
      • 2) the statement accurately reflects knowledge he once had
      • 3) he made or adopted the statement, and
      • 4) he did so while the matter was fresh in his mind
    • Requirement that witness lacks sufficient recollection to enable him to testify fully is meant to protect against attorneys helping draft statements and having witnesses testify only from that
  • Requirements for Recorded Recollection Hearsay Exception Under 803(5):
    • 1) Existence of a memo or record
    • 2) Must concern a matter about which the witness once had knowledge
    • 3) Must correctly reflect such knowledge of the witness
    • 4) The witness must have made or adopted the memo or record
    • 5) Must have made or adopted while the matter was fresh in the witness’ memory
    • 6)
    • “If admitted, the memo or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party”
      • Since taking the place of testimony it would be unfair to send it back to jury because it would give it more weight
  • Ohio v. Scott (Ohio Supreme Court, 1972):
    • Facts:
      • Scott (D) was convicted of shooting w/ intent to kill and shooting 2 cops Victim Lee was blinded by shotgun blast in face
      • Tackett was friend of D and had conversation w/ him just prior to arrest she gave handwritten statement to police RE conversation
        • At trial Tackett has trouble remembering exactly what he said so they use statement to police D argues it’s hearsay
    • Legal Issue:
      • Can past recollection recorded rule of evidence be used in criminal trial and, if used, does it violate D’s 6th amendment right of confrontation?
    • Holding/Rationale:
      • Generally:
        • In present recollection refreshed witness looks at memo to refresh memory of events, but the proceeds to testify upon basis of present independent knowledge
        • In past recollection recorded witness’ present recollection is still absent or incomplete, but his present testimony is to effect that his recollection was complete at time memo was written and that such recollection was accurately recorded
      • Past Recollection Recorded Requirements:
        • Statement of Tackett meets requirements because 1) the statement consisted of facts of which the witness had firsthand knowledge, 2) the written statement was the original memo made near the time of the event while witness had clear and accurate memory of it, 3) the witness lacked a present recollection of words used by D, 4) witness stated that memo was accurate
    • Class Notes:
      • They wanted the statement over the testimony
      • Judge will resolve this question over 104(a)

 

5. Business Records:

  • General Notes:
    • FRE 803(6)
    • “The element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.”
    • Four elements of exception:
      • 1) Regular business; regularly kept record
        • exception embraces only records of a business institution, occupation or calling AND only those records it regularly generates
      • 2) Personal knowledge of source:
        • Source of information must be someone w/ personal knowledge, but person need not be one who made entry
        • Multiple hearsay could be allowed
      • 3) Contemporaneity:
        • Information must be recorded (or at least gathered) at time of act/event, or when condition was observed requirement not interpreted literally (i.e. close to time is ok)
      • 4) Foundation testimony:
        • This hearsay exception expressly requires either testimony by the custodian of records or other qualified witness or a certification by such a person (affidavit)
    • Rule
      • 1. Regular
        • reaches only records kept in the course of a regularly conducted business activity
      • 2. Regular
        • Regular practice of that business to make the record
      • 3. At
        • Record made at or near the time of the events recorded therein
      • 4. Personal Knowledge
        • Made by a person w/ personal knowledge or made from info transmited by person w/ personal knowledge
        • Original source of information must have personal knowledge HOWEVER other persons in chain of transmission or person who creates record need not have personal knowledge
        • This contemplates and allows multiple hearsay
  • Example Problem:
    • 1) Archie created record and it would be hearsay but since business record it’s admissible
      • Ben doesn’t have personal knowledge but nonetheless he’s in chain and this would also fit into 803(6)
      • Although not clear from words of 803(6) the source of the information and each other person participating in making business record, MUST be acting in routine of business
        • Therefore if source of info is coming from someone outside of business you won’t be able to get entire document in under business records exception
  • Important
  • Petrocelli v. Gallison (United States Court of Appeals for the First Circuit, 1982):
    • Facts:
      • Petrocelli (P) sues Doctor Gallison (D) alleging malpractice w/ hernia operation P had to undergo 2 additional operations
      • Jury verdict for D and P appeals urging error in exclusion of sentence in D’s postop report and surgical note by other physician
        • D’s note = “During the court of [surgery] …nerve was severed”
        • Other physicians note = “Hernia well healed but very worried about pain from transected nerve”
    • Legal Issue:
      • Did court abuse its discretion in excluding parts of hospital record which indicated nerve was earlier severed? NO
    • Holding/Rationale:
      • Source:
        • Unclear whether statements were merely reflecting patient concern or whether they represented the concerns of hospital/doctors
        • Without personal knowledge of source statement = hearsay
      • Admissible By Other Means:
        • Assuming they were patient’s statements although not admissible as record, they were admissible under 803(4) statements for purposes of medical diagnosis or treatment
        • HOWEVER court does not think this was reversible error
        • P might also have deliberately not claimed evidence under 803(4) purposefully
    • Class Notes:
      • What if you fail under 803(6) can you slip it under 803(5) here there’s no inherent conflict so you can
      • “Failure of record to mention a matter which would ordinarily … (see 803(7))
  • Norcon, Inc. v. Kotowski (Supreme Court of Alaska, 1999):
    • Facts:
      • Exxon Valdez oil spill Exxon retains Veco to perform cleanup Veo subcontracts for some work w/ Norcon who employs Kotowski
      • Supervisor sexually harasses her invites her to room she goes, they drink, he tells her to come back later after consulting w/ supervisor (b/c there is no-alcohol policy) she gets tape recorder and goes in exchange for amnesty
      • Ultimately both are fired K sues
        • At trial K tries to get in memo written by security at work Re sexual harassment D objects and P says it falls within business record exception
        • D claims memo contains double and triple hearsay of informants who provided info contained in memo which was then reiterated in memo
    • Legal Issue:
      • Was the memo admissible? YES/NO
    • Holding/Rationale:
      • Double Hearsay:
        • “Sources of info present no substantial problem w/ ordinary business records. All participants, including observer/participant furnishing info to be recorded, are acting routinely, under duty of accuracy, w/ employer reliance on result, or in short “in the regular course of business.” If, HOWEVER, the supplier of information does not act in regular course, an essential link is broken, assurance of accuracy does not extend to info itself, and fact that it may be recorded w/ scrupulous accuracy is of no avail.”
        • Application since info came from outside employees of security it’s hearsay
      • Admissible by Other Means:
        • Although not admissible under 803(6) it can be regarded as nonhearsay as an admission by a party opponent under 801(d)(2)

 

6. Public Records:

  • General Notes:
    • Exception for public records rests mainly on the great responsibility that attends the discharge of government functions in a democracy
      • Assumed that public servants go about their tasks w/ care, without bias or corruption and that scrutiny and exposure surrounding government functions add assurance that public records are trustworthy
    • “Justification for the exception for public records and report is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record.”
    • 803(8)(B):
      • Use restriction is so that you have to testify at court and be cross-examined
      • Matters observed building inspector making findings for code violations (this would fit within 803(8)(B))
    • 803(8)(C):
      • Now public official isn’t just observing things but now they are making findings based on things they observe
      • Factual findings can be based upon statements by outside witnesses
        • This makes it different from 803(6) because findings can be based on outsiders
        • 3rd party statements are still not directly quoteable they must be factual findings
        • Use restriction can’t use against criminal defendant in criminal case
  • Baker v. Elcona Homes Corp. (1979):
    • Facts:
      • Valiant car traveling south and Ford truck traveling westbound collided estates of 4 passengers of Valiant sue driver of Ford and company he was employed by (since driving was part of employment)
      • D claimed he was blinded by sun judgment in favor of D and P appeals
      • P objects to introduction of police accident report into evidence
    • Legal Issue:
      • Was the report admissible under 803? Yes, under 803(8)
    • Holding/Rationale:
      • Factual Findings:
        • 803(8)(C) asks whether report provided factual findings
        • Court thinks that whether light was red or green for one driver at time of accident is a factually finding within meaning of rule
      • Trustworthiness:
        • P could have made showing of untrustworthiness of report based on 4 factors:
          • 1) the timeliness of investigation
          • 2) the special skill or experience of the official
          • 3) whether a hearing was held on the level at which conducted
          • 4) possible motivational problems
        • P did not assert this and would have failed on this assertion
      • Class Notes:
        • The factual findings were admissible under 803(8), but the quoted statements from driver in report would still not be admissible
  • United States v. Oates (1977):
    • Facts:
      • Appeal from judgment convicting D of possession of heroin w/ intent to distribute and of conspiracy to commit that offense
      • At trial government introduced report of official who tested the substance
    • Legal Issue:
      • Was the report admissible under 803(8)? NO, hearsay
    • Holding/Rationale:
      • 803(8)(C):
        • Indisputable that chemist’s report was report of factual findings resulting from investigation made pursuant to authority granted by law
      • 803(8)(B):
        • Report might fail to be public record under B b/c they are records of matters observed by police officers/other law enforcement personnel
        • Court considers chemist “other law enforcement personnel” and therefore says report must stay out
    • Class Notes:
      • It would be inappropriate to take public record and ignore use restrictions in 803(8) and qualify it as regular record under 803(6)
      • What happens if they really can’t remember can you fall back upon past recollection recorded professor believes the answer is yes
      • Some courts suggest that excluding all factual findings by law enforcement personal is too extreme
  • Trustworthiness:
    • Even if requirements of 803(8) are met, the report can be kept out if found to be untrustworthiness
    • Factors which may be of assistance in passing upon the admissibility of evaluative reports:
      • 1) the timeliness of the investigation
      • 2) the special skill or experience of the official
      • 3) whether a hearing was held and the level at which conducted
      • 4) possible motivation problems
    • CA RULE = 1280: no use restrictions
      • 1) made by someone within course and scope of public employment
      • 2) made
      • Different than federal rule

 

7. Learned Treatise:

  • Rule 803(18) permits full use of a treatise where:
    • 1) it is shown to be reliable authority, and
    • 2) either the expert relies on it in direct examination or it is called to his attention on cross examination
    • Example = grey’s medical book
  • Rule 803(18) Learned Treatise: To the extent called to the attention of an expert witness upon cross examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
    • On cross can’t cut it off by having expert say they don’t rely on it
    • “The rule does not require that witness rely upon or recognize the treatise as authoritative, thus avoiding the possibility that witness can do away with treatise.”
  • Baker v. State (1977):
    • Facts:
      • D was convicted of murder and robbery
      • She appeals TC’s refusal to allow her to refresh her present recollection of a police witness by showing him a report written by a fellow officer
      • 3 women get in guys car get to destination where guy is get out, take his money and beat him officer B shows up to crime scene and takes victim to place where suspect is held by officer H
        • As part of cross D sought to elicit from officer, the fact that victim confronted D and said he wasn’t one of the people who attacked/robbed him
        • D sought to use someone else’s police report to refresh recollection was but not allowed
    • Legal Issue:
      • What latitude should a judge permit counsel when a witness takes the stand and says, “I don’t’ remember.”
    • Holding/Rationale:
      • TC erred in refusing to allow D to refresh officer’s recollection by giving him another officer’s report
      • This present recollection refreshed is DIFFERENT from standard for past recollection recorded

 

Rule 803(21) Reputation as to Character

  • Reputation of a person’s character among associates or in the community.

Rule 803(22) Judgment of Previous Conviction

  • Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a peron guilty of a crime punishable by death of imprisonment in excess of one year, to prove any fat
  • Last part addresses 1899 curby case that held that robbery conviction of person other than accused couldn’t be used to prove that property was stolen
  • What about statements in docs that are old docs
    • 803(16) Statements in ancient documents.
      • Statements in a document in existence twenty years or more the authenticity of which is established.
      • CA Rule: CA requires writing is more than 30 years old and statements here have actually been acted on by relevant persons dealing with this
  • 803(17) Market reports, commercial publications.
    • Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon the public or by persons in particular occupations
  • 803(9) Records of Vital Statistics:
    • Records or data compulations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law

 

Exceptions in FRE 804—Declarant Unavailable:

 

General Notes:

  • FRE 804 recognizes 5 hearsay exceptions that may be invoked only if declarant is unavailable as a witness BUT unavailability of declarant doesn’t automatically put out-of-court statement into exception
  • Unavailability requirement satisfied if testimony is unobtainable
  • Even if someone is in court, he is unavailable for purposes of the Rule if he cannot remember, refuses to testify, or properly invokes a privilege.

 

Class Notes:

  • Policy decision made to admit evidence that is otherwise hearsay but only if declarant is not available this is not true for 803
  • 804 just because out of court declarant is unavailable doesn’t mean it fits hearsay exception
    • must fit into 1 804 exception
  • Claim of Privilege:
    • Under FRE 804(a)(1) a declarant is unavailable if exempted from testifying by court order on ground of privilege.
      • In criminal cases, often witnesses invoke 5th Amendment privilege against self-incrimination
  • Refusal to Testify:
    • FRE 804(a)(2) contemplates actual refusal: On the stand, declarant declines to answer and does not cooperate when ordered to answer.
    • Where a refusal to testify rests on wrongful conduct by the other side that seeks purposefully to prevent testimony, the proponent may be able to invoke the forfeiture exception in FRE 804(b)(6)
  • Lack of Memory:
    • Declarant who testifies that he doesn’t remember subject matter of his statement is unavailable under FRE 804(a)(3)
    • A person may remember making his statements well enough to be cross-examinable, thus satisfying FRE 801(d)(1), even though he has forgotten underlying events, thus being, unavailable under FRE 804(a)(3) because of this fact
    • Available at trial but “unavailable” for 804 purposes
    • Can testify that you remember making statement at 801(d)(1) and be ONLY subject to cross concerning statement but not remember subject matter of statement under 804(a)(3)
  • Death, Illness, Infirmity:
    • Under FRE 804(a)(4), determining unavailability due to death hasn’t posed problems, but problem where serious illness has uncertain prognosis and long term health problems
    • Sometimes emotional fear (in child abuse cases especially) that person may be unavailable to testify statutes to protect these individuals now
  • Unavailable Witness:
    • Declarant is unavailable under FRE 804(a)(5) if her presence cannot be had at trial by subpoena or other reasonable means (unable to procure)
    • “(5) is absent from the hearing and the proponent of a statement has been unable to procure the delcarant’s attendance (on the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.”7uhn
    • However there is pressure on parties to commit diligent search and get deposition testimony
  • Barber v. Page (US Supreme Court, 1968):
    • Facts:
      • Barber and Woods are tried for armed robbery at prelim hearing W waives right against self-incrimination and incriminates B (but isn’t crossed by B’s attorney)
      • At trial, prosecution seeks to introduce transcript B objects and eventually appeals
    • Legal Issue:
      • Was Woods unavailable under FRE such that state could introduce hearsay evidence? NO
    • Holding/Rationale:
      • Attempt:
        • State made no attempt to obtain Woods at trial (he was in prison)
        • But mere absence of witness from jurisdiction is NOT sufficient grounds for dispensing w/ confrontation at trialkjj
        • Argument that D waived right to confront Woods at trial because he didn’t do so at prelim hearing is untenable

 

The Former Testimony Exception

  • 804(b)(1) Former Testimony allows counsel to use previous testimony SO LONG AS there was sufficient opportunity for cross examination
  • In Civil Cases available if party against whom it is offered or his predecessor in interest had a chance to cross examine the declarant in the prior proceedings
  • In Criminal Cases the requirement is stricter, since it won’t do that predecessor in interest had chance to cross-examine before
  • Lloyd v. American Export Lines, Inc. (United States Court of Appeals for 3rd Circuit, 1978):
    • Facts:
      • Lloyd (electrician on SS Export) was involved in altercation w/ Alvarez (engineer)
      • L sues for negligence, American Export impleads Alvarez who counterclaims alleging negligence against AE
      • L doesn’t show up at trial and American Export attempts to use former testimony (transcript from testimony taken during proceeding to determine whether L’s merchant docs should be revoked for misconduct) where he claims Alvarez was attacker
      • L and A both testify at Coast Guard hearing (A didn’t have right to cross examine L at Coast Guard hearing L disappears
      • AE wants to use L’s testimony at Coast Guard hearing
    • Legal Issue:
      • Was the transcript admissible under FRE 804(b)(1)?
    • Holding/Rationale:
      • FRE 804:
        • For hearsay exception to apply it is required that D be unavailable—that he be absent from hearing and proponent of statement be unable to procure his attendance by reasonable means
        • Before trial numerous attempts were made to depose L, but he failed to appear L’s counsel even admitting extensive efforts had been made but they failed therefore he was UNAVAILABLE
      • Opportunity for Cross:
        • Predecessor in Interest according to House:
          • “Rule 804(b)(1) …allowed prior testimony of an unavailable witness to be admissible if the party against whom it is offered or a person with motive and interest similar to his had an opportunity to examine the witness
          • Court thinks there was sufficient interest shared by Coast Guard in hearing and Alvarez in subsequent CIVIL TRIAL to satisfy 804(b)(1) b/c basic interest of both was determining culpability of L
  • Former Testimony Exception—Rule 804(b)(1):
    • Three Requirements:
      • 1) Declarant must be unavailable at trial
      • 2) Former testimony must be from a trial, preliminary hearing, deposition, administrative hearing, etc.
      • 3) Party against whom former testimony is offered (or in civil case-predecessor in interest) had the opportunity and similar motive to cross-examine the declarant

3. Dying Declarations:

  • General Notes:
    • Where a person understands that his death is imminent and speaks of his circumstance, the hearsay doctrine has long recognized an exception for his words (idea is that dying person has no incentive to lie)
    • This is often applied in criminal cases where victim makes dying declaration identifying his assailant
    • Question whether statement qualifies as dying declaration is one of law that is not within province of jury
      • How do they determine they had belief that they were going to die when they didn’t die, because notes suggest they look at nature of wounds

 

Hearsay Exceptions IV: FRE 807, p.314-357, 363-373, 379-389

 

4. Declarations Against Interest

a. Introduction and General Considerations

  • Class Notes:
    • 804(b)(2)
      • Declarant doesn’t need to die but must have belief of impending death
      • Must be in a prosecution for homicide or in a civil action or proceeding
      • Statement DOES NOT fit exception where declarant could not have personal knowledge of assertion made (guesses, or mere speculations)
      • If speaker dies, but doesn’t believe they’re going to die, then that doesn’t fit within this exception
    • CA law:
      • Rule 1242:
        • Doesn’t restrict to prosecution for homicide or in a civil action or proceeding
  • General Notes:
    • Declarations against interest are thought to be trustworthy on ground that a person is unlikely to state facts (or make statements) harming his own interest unless they are true
    • Civil Cases traditionally the exception embraced statements against financial proprietary interest and was invoked in civil cases
      • Context is important and look at possible conflicting interests
      • One Way Interest: Tax return example
        • Conclusion = where interest of declarant was to aim high, her statement should be admissible to show a max
      • Circumstantially adverse facts
        • A statement may fit the exceptions without directly speaking of debts or property therefore a statement admitting fault in context that might give rise to liability or loss to declarant may satisfy the exception
      • Declarant’s Understanding
        • Exception only helps to pick out reliable statements if declarant understood his own interests and how the fact or statement could affect them
        • Therefore courts exclude statements uttered by persons who lack the necessary information
      • Effect of Later Events:
        • Some courts insist that against-interest requirement is not satisfied where statement becomes damaging in light of later unexpected events
    • Criminal Cases
      • The argument against admitting confessions is that it invites Ds to offer perjured testimony describing 3rd party confessions (from ppl who’ve died) that were never made, which are hard for prosecutors to investigate (let alone disprove) because necessarily the declarant is unavailable
    • Statements Against Social Interest:
      • As originally proposed, FRE 804(b)(3) embraced statements tending to make the declarant “an object of hatred, ridicule, or disgrace” BUT congress balked, and courts either reject them outright or find that particular statements do not have this tendency
  • Class Notes:
    • 804(b)(3) is set to be amended as follows:
      • Statement against Interest: A statement that:
        • A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the delcarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the delcarant’s claim against someone else or to expose the declarant to civil or criminal, liability; and
        • B) is supported by corroborating circumstances that cearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability
    • Comparison to Old Rule:
      • Someone in prison that had nothing to lose would say they committed the crime
      • Amendment requires govt corroborating circumstances as condition as admission current rule only required govt to make such a showing
    • Notes:
      • If 3rd party is offering this, then we don’t get to this rule because its party admission under 801
      • 804(b)(3) doesn’t include social interest (disgrace, ridicule, etc)
    • Admission by Party Opponent v. Statement Against Interest:
      • Admission by Party Opponent:
        • 1) Statement only by a party-opponent
        • 2) No unavailability requirement
        • 3) No against interest requirement
        • 4) Party need not have personal knowledge
      • Statement Against Interest:
        • 1) Statement by a witness
        • 2) Witness must be unavailable
        • 3) Must be against declarant’s interest
        • 4) Must be within the declarant’s personal knowledge
  • Williamson v. United States (United States Supreme Court, 1994):
    • Facts:
      • H is pulled over and police discover cocaine he says he was getting it from Cuban and delivering it to Williamson W was actually in driving in front in another car
        • H later admits that he lied about Cuban and tells police W saw search driving by and says he lied b/c afraid of W
        • H won’t let police record statement or sign anything
      • H refuses to testify and govt offers what H told police against W W is convicted of possessing cocaine w/ intent to distribute
      • W appeals claiming against-interest exception did not apply and that rights under Confrontation Clause were violated
    • Legal Issue:
      • Was the against-interest exception applicable here? NOT necessarily remand
      • Were D’s rights under Confrontation Clause violated? No need to address until determination about inculpatory-ness of statements
    • Holding/Rationale:
      • Against Interest Exception 804(b)(3):
        • Founded on commonsense notion that reasonable people tend not to make self-inculpatory statements unless they believe them to be true
        • HOWEVER this notion does not extend to broader definition of statement fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory parts
        • THEREFORE court doesn’t agree that collateral statements are NOT admissible
      • Determining Whether Statement is Inculpatory:
        • Look at whether statement was sufficiently against the delcarant’s penal interest “that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true,” and this question can only be answered in light of all surrounding circumstances
      • Application:
        • Court didn’t look at each of H’s statements some were self-inculpatory and some were not remand for court to conduct this
    • Class Notes:
      • Against interest exception reaches only statements that are themselves against interest

 

d. Corroboration Requirement; Other Details:

  • Exonerating the Accused:
    • For statements tending to expose the declarant to criminal liability and offered to exonerate the accused, FRE 804(b)(3) requires corroboration
    • “Corroborating circumstances” reaches other kinds of circumstantial evidence that supports either the trustworthiness of the particular statement, such as indications that the statement was against interest in some very clear or to an unusual or devastating degree, or that the speaker repeated the statement on other occasions, or that the speaker could not have been motivated to falsify for the benefit of the accused

5. Statements of Personal or Family History:

  • Statements describing “family pedigree” and “family history” are admissible under FRE 804(b)(4) when the declarant is unavailable
  • Exception rests on the assumption that the speaker has adequate information, and in practice many statements are made before controversy arises
  • Courts applying exception sometimes exclude self-serving statements, and those motivated by greed, ill will, or other forces suggesting untruthfulness

6. Statements Admissible Because of Forfeiture by Misconduct:

  • FRE 804(b)(6) paves the way to admit statements against a party who “engaged or acquiesced in wrongdoing that was intended to, and did” make the speaker unavailable as a witness
  • Purpose = to deal with witness intimidation in criminal cases
  • People v. Moreno (Supreme Court of Colorado, 2007):
    • Facts:
      • People seek review of judgment of AC reversing D’s convictions of sexual assault on a child
      • DC court admitted videotaped interview w/ 1 of the child victims, in lieu of live testimony b/c testifying would traumatize her
    • Legal Issue:
      • Were the victim’s statements out of court admissible on the forfeiture doctrine? NO
    • Holding/Rationale:
      • The supreme court has never found a D to have forfeited his right to confront simply by committing a criminal act that results in a witness’s unavailability
      • TC made no finding that wrongdoing by D was intended, even in part, to subvert the criminal process by preventing or dissuading the victim from testifying at trial
  • Notes:
    • Casual link necessary between a D’s actions and a witness’s unavailability may be established where:
      • 1) D puts forward to a witness the idea to avoid testifying, either by threats, coercion, persuasion, or pressure
      • 2) D physically prevents a witness from testifying, or
      • 3) D actively facilitates the carrying out of the witness’s independent intent not to testify

 

E. The Catchall Exception:

1. Origin of the Catchall:

  • General Notes:
    • 807 authorizes courts to admit hearsay that does not fit any other exceptions if it is nevertheless and necessary
      • Only if there are a many indications that it is admissible
      • MUST BE TRUSTWORTHY!!!
    • (a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
      • (1) the statement has equivalent circumstantial guarantees of trustworthiness;
      • (2) it is offered as evidence of a material fact;
      • (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
      • (4) admitting it will best serve the purposes of these rules and the interests of justice.
    • (b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.
  • Example = Dallas County v. Commercial Union Assurance Co.
    • Dallas sued insurance carrier after clock tower above courthouse collapsed ins co claimed it was caused by charred timbers from earlier fire
    • TC admitted an old newspaper clipping to prove the earlier fire even though it was technically hearsay
  • Class Notes:
    • ACN say this is supposed to be used rarely
    • 5 things must be present to allow exception under 807:
      • 1) equivalent circumstantial guarantees of trustworthiness
        • most significant requirement of them all
        • declarant’s partiality, time to fabricate
      • 2) evidence of material fact
      • 3) necessity (probative)
      • 4) best serve interest of justice
      • 5) notice to opponent
    • Example:
      • D charged w/ sexual assault on 5 year old daughter

2. The Catchall and Proof of Exonerating Facts:

  • State v. Weaver (Supreme Court of Iowa, 1996):
    • Facts:
      • Weaver (babysitter) was charged w/ murder after child died in her care after guilty verdict Weaver moves for new trial on basis of affidavits saying that child’s mother said that child hit her head on coffee table before placed in W’s care
    • Legal Issue:
      • Were the affidavits admissible under the catchall provision? YES
    • Holding/Rationale:
      • Factors to Consider in Admissibility Determination:
        • Declarant’s propensity to tell the truth, whether the alleged statements were made under oath, assurance of declarant’s personal knowledge, the time lapse between the alleged event and the statement by mother concerning event, the motivations of mother to make alleged statements
      • Conclusion:
        • After reviewing factors court is convinced that affidavits and testimony are sufficiently trustworthy to constitute admissible hearsay

3. The Emergency Doctrine

  • Confrontation Clause:
    • History:
      • 6th Amendment “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been previously ascertained by law and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
      • Case law used to mandate higher standard of unavailability in criminal cases
        • You had to show sufficient indicia of reliability for admissibility Crawford makes clear justice hated this rule from Robert
        • Reliability was wishy-washy and it was hard to determine whether it was satisfied
        • Crawford has made job much easier
  • Crawford:
    • Facts:
      • D (Crawford) assaulted victim b/c allegedly victim had raped D’s wife
      • Wife and D gave separate statements no problem to get D’s statements but wife’s statements
    • Legal Issue:
      • Has criminally accused had right of confrontation?
    • Holding/Rationale:
      • Dramatic shift from reliability determination to determining whether statements were testimonial
        • Looks at 6th amendment and says that “Witnesses against him” can be read to mean witnesses actually called at time of trial then court focuses on what is testimonial and what is not
        • If something is testimonial it implicates the 6th amendment
        • If non-testimonial the 6th amendment is not implicated AFTER Davis
    • Confrontation:
      • Criminally accused has right to be in court can lose that right by misbehaving
      • Right to have prosecution witnesses present at trial and have right to cross examine them and there’s right to have them in sight of each other
  • Davis v. Washington:
    • Facts:
      • Davis:
        • Fight; Wife called the cops
        • They’re trying to get the statements she made to the 911 operator
        • Prosecution has burden of proof and burden of going forward on each thing
      • Hammond:
        • Statements were made during interrogation W and H were separated
        • Different facts here
    • Legal Issue:
      • Did 911 call constitute an interrogation so as to create testimonial statements? NO evidence admissible (IF it was testimonial it would have been allowed in, but since it was non-testimonial it is admissible)
      • !!! 911 calls CAN sometimes be testimonial
    • Holding/Rationale:
      • Rule from Crawford RE Testimonial Statements:
        • Crawford barred admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and D had prior opportunity for cross examination
      • Testimonial v. Nontestimonial Statements:
        • Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency
        • They are nontestimonial when the circumstances objectively indicate that there is no such ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution
      • Application:
        • Since W was actually undergoing/describing events as they occurred to help w/ investigation this was not testimonial evidence (there was emergency in progress)
        • Wife was seeking aid, not telling a story about the past
    • Class Notes:
      • Court is just further defining what testimonial is and what testimonial is not
      • Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
      • Even if police are asking questions, if it’s somehow not interrogation and aimed at meeting ongoing need in emergency then it will be NON-TESTIMONIAL
      • A convo that begins as an interrogation could transform into a testimony
    • 2009 Supreme Court Case
      • P wanted to show that a certain powder was cocaine. Usually you go through the chain of custody of the coke then bring in the person who tested it. Here they just want to submit the lab report, and admit it to evidence…isn’t this a business record? Well it was also made in preparation for trial so maybe not
  • OTHER NOTES:
    • Grand jury testimony = testimonial
      • If they testify, then are unavailable not admission
    • Statements made by alleged victim in child molestation case
      • Alleged victim made statements to police officers and statements will come in BECAUSE she is there testifying
      • If she weren’t testifying then UNDER CRAWFORD
  • Recap of Crawford :
    • 1) Statements that are not hearsay
      • Analysis of these statements don’t change after Crawford
      • Admissions of constitutionally accused don’t violate confrontation clause
    • 2) Prior statements of testifying witnesses
      • No confrontation problem because we’re assuming they were subject to cross examination
      • THEREFORE no problem with 801(d)(1) (A), (B), or (C)
    • 3) Admission by 3rd party:
      • if you’re in conspiracy and made statements in furthance of conspiracy to undercover cop this might not implicate 6th amendment
    • 4) 803 Exceptions:
      • Excited utterance during interrogation by police at scene of crime
      • And lots more
    • 5) 804(b)(2)
      • probably admitted
    • 6) 804(b)(6) forfeiture:
      • court states in Crawford that nothing was intended to change rule that if D creates unavailability he can’t then rely on this
    • Guiles v CA:
      • Must be intent to make person
      • She kills her ex BF’s usually
      • BF killed her back first
      • Claims self defense
      • She made some statements out of court about the incident
      • But now she’s dead; unavailable
      • BUT the D caused her unavailability because the D killed her
      • BUT he didn’t kill her to keep statements out of court; he just plain old killed her.
      • Statutory Scheme (DIFFERENCE BETWEEN – CALI /FED Rules
        • Section 1370 of CA.Evidence.Code
          • (a) Evidence of a statement by a declarant is not made
          • inadmissible by the hearsay rule if all of the following conditions
          • are met:
            • (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
              • (Prostitute Pimp situation; Prostitute was threatened then “forgets” or disappears)
            • (2) The declarant is unavailable as a witness pursuant to Section 240.
            • (3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.
            • (4) The statement was made under circumstances that would indicate its trustworthiness.
            • (5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official.
  • 2009 Diaz v. Massachusettes:
    • Mass court admitted forensic evidence reported in affidavit report
    • That was found to be testimonial
  • Hearsay Review:
    • 1) Hearsay v. Nonhearsay
      • Is it a statement
      • Is it made out of court
      • Is it offered for the truth of the matter asserted
    • 2) Hearsay Exceptions
    • 3) Confrontation Problems (Crawford)
      • Is it a criminal case?
      • Is prosecution trying to use hearsay evidence against criminally accused?
      • Is it testimonial
        • If testimonial, you have to satisfy confrontation or you lose it
        • (Definition comes from Davis one given or taken in significant part for purposes of preserving it for future proceedings, where the motivations of the declarant are the specific reason for getting the testimony)

 

http://en.wikipedia.org/wiki/Crawford_v._Washington

 

 

Statement of conspiracy made to a government Informant is:

Testimonial – the declarant’s intention is to further the conspiracy

Not-testimonial – not intended as a testimony, didnt know they were talking to an informant

  • hinges on whether you look at the intent of the declarant or the informant (posing as a co conspirator)
  • What if it is a 3 year old child who was allegedly molested Undercover Agent – “tell me what Uncle Fredrick did to you”
    • Asking leading questions, but the 3 year old has no idea what or who these people are, the child is the declarant and obviously not aware that they are making a testimony. ← this is the argument that the analysis should hinge on the focus of the interrogator.

 

THINK ABOUT CRAWFORD A LOT and how Testimonial/non-testimonial os so important

 

 

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