VIII. OTHERS
A. JUDICIAL NOTICE (ART. II)
1. Definition
Judicial notice is a process by which an adjudicative fact can established without formal evidentiary proof. Judicial notice is thus a substitute for evidence.
The FRE deal only with notice of adjudicative facts, not legislative facts or law.
In a jury trial, the judge must inform the jury by instructions of the fact to be noticed in order for notice to be effective.
2. Judicial notice of adjudicative facts (FRE 201)
a. Adjudicative facts v. Legislative facts
Adjudicative facts are facts that relate to the parties in a particular case - those that are necessary to prove or are used to prove . The term “adjudicative fact” is used in contradiction to the term “legislative fact.”
Legislative facts are facts which the judge considers as part of law-making function. For example, the Supreme Court relied on non-evidentiary studies by psychologist Kenneth B. Clark showing the psychological impact of segregation in Brown v. Board of Education, 347 U.S. 483 (1954).
b. Facts appropriate for judicial notice
i) Facts generally known in the community
The fact that the judge himself knows a fact to be so does not entitle him to take judicial notice of it if it is not truly common knowledge.
ii) Facts capable of immediate verification by sources of indisputable accuracy
Historical, geographic, physical, statistical, and scientific facts have all been noticed as verifiably certain. Facts recorded in the court’s own records are also frequently taken judicial notice.
c. Procedure
i) Party’s request
The judge must take judicial notice of any fact that meets the requirements, if requested by a party and supplied with the required info.
ii) Discretionary notice
The judge may take judicial notice on his own, without a request from a party.
d. Effect of judicial notice
i) Civil cases
In civil cases, judicial notice is conclusive. The jury must treat the fact as being so.
ii) Criminal cases
In criminal cases, it may be accepted as conclusive. It is due to a danger to violate a defendant’s constitutional right to a jury trial.
3. Judicial notice of law
Judicial notice of law means the determination of the law applicable to the case.
It is covered in the rules of procedure. See the Federal Rules of Civil Procedure (Rule 44.1); the Federal Rules of Criminal Procedure (Rule 22.1).
Friday, November 30, 2012
Friday, October 26, 2012
Intro to the Federal Rules of Evidence - 73
F. RESIDUAL EXCEPTION (FRE 807)
1. Intro
The FRE provide a general catch-all exception for hearsay statements not covered by specific exceptions.
2. Requirements
a. Circumstantial guarantees of trustworthiness
In determining whether the statement has “equivalent circumstantial guarantees of trustworthiness”, the court is likely to consider these factors: (1) under oath; (2) how much time lapsed; (3) declarant’s motive for telling truth; (4) first-hand knowledge; (5) written v. oral statement; (6) subsequently recanted statement.
b. Evidence of material fact
The statement must be offered as evidence of a material fact.
c. More probative
The statement must be more probative on the point for which it is offered than any other evidence which is available through reasonable efforts.
d. Interests of justice
Use of the evidence must be consistent with the general purposes of the FRE and the interests of justice.
e. Notice to adversary
The proponent must give notice in advance of trial to the adverse party as to the nature of the statement (including the name and address of the declarant) so that the adversary has an opportunity to prepare to meet it.
1. Intro
The FRE provide a general catch-all exception for hearsay statements not covered by specific exceptions.
2. Requirements
a. Circumstantial guarantees of trustworthiness
In determining whether the statement has “equivalent circumstantial guarantees of trustworthiness”, the court is likely to consider these factors: (1) under oath; (2) how much time lapsed; (3) declarant’s motive for telling truth; (4) first-hand knowledge; (5) written v. oral statement; (6) subsequently recanted statement.
b. Evidence of material fact
The statement must be offered as evidence of a material fact.
c. More probative
The statement must be more probative on the point for which it is offered than any other evidence which is available through reasonable efforts.
d. Interests of justice
Use of the evidence must be consistent with the general purposes of the FRE and the interests of justice.
e. Notice to adversary
The proponent must give notice in advance of trial to the adverse party as to the nature of the statement (including the name and address of the declarant) so that the adversary has an opportunity to prepare to meet it.
Intro to the Federal Rules of Evidence - 72
6. Forfeiture by Wrongdoing (FRE 804(b)(6))
a. Purpose
To remove the incentive of witness-tampering: D’s attempt to intimidate, bribe, or even murder the witness.
b. No reliability requirement
This exception does not require that the out-of-court declaration be reliable in order to be admitted. This makes the exception much easier to use than the residual exception of FRE 807 which requires circumstantial guarantees of trustworthiness.
c. Common scenarios
The out-of-court statements to which FRE 804(b)(6) is often applied include: (1) statements made by W while under police interrogation; (2) statements made by W in a grand jury proceedings or preliminary hearing; (3) statements made by W in W’s own criminal trial, or in a criminal trial of some third person.
a. Purpose
To remove the incentive of witness-tampering: D’s attempt to intimidate, bribe, or even murder the witness.
b. No reliability requirement
This exception does not require that the out-of-court declaration be reliable in order to be admitted. This makes the exception much easier to use than the residual exception of FRE 807 which requires circumstantial guarantees of trustworthiness.
c. Common scenarios
The out-of-court statements to which FRE 804(b)(6) is often applied include: (1) statements made by W while under police interrogation; (2) statements made by W in a grand jury proceedings or preliminary hearing; (3) statements made by W in W’s own criminal trial, or in a criminal trial of some third person.
Intro to the Federal Rules of Evidence - 71
5. Statement of Personal or Family History (FRE 804(b)(4))
a. Rationale
Hearsay statements concerning family history are often necessary to prove the facts of people’s everyday lives. For example, most people rely on the hearsay statements for the knowledge of where they were born, who their relatives are, etc.
b. Requirements
i) Person or relative
The now unavailable declarant must be a member of the family in question or otherwise so intimately associated with the family that they are likely to have accurate information concerning the matters declared (e.g., a family doctor).
ii) Personal knowledge
The declarant’s statements may be based either on her own personal knowledge of the facts involved or on her knowledge of family reputation.
c. Other ways to prove pedigree
Personal and family history may be proven by use of other exceptions to the hearsay rule. For example, it may be proven by: vital statistics (FRE 803(9); records of religious organizations (FRE 803(11)); marriage certificates and other certificates (FRE 803(12)); family records (FRE 803(13)); statements in property documents (FRE 803(15)); reputation (803 (19)); and judgments (FRE 803 (23)). For these exceptions, the declarant’s availability is immaterial.
a. Rationale
Hearsay statements concerning family history are often necessary to prove the facts of people’s everyday lives. For example, most people rely on the hearsay statements for the knowledge of where they were born, who their relatives are, etc.
b. Requirements
i) Person or relative
The now unavailable declarant must be a member of the family in question or otherwise so intimately associated with the family that they are likely to have accurate information concerning the matters declared (e.g., a family doctor).
ii) Personal knowledge
The declarant’s statements may be based either on her own personal knowledge of the facts involved or on her knowledge of family reputation.
c. Other ways to prove pedigree
Personal and family history may be proven by use of other exceptions to the hearsay rule. For example, it may be proven by: vital statistics (FRE 803(9); records of religious organizations (FRE 803(11)); marriage certificates and other certificates (FRE 803(12)); family records (FRE 803(13)); statements in property documents (FRE 803(15)); reputation (803 (19)); and judgments (FRE 803 (23)). For these exceptions, the declarant’s availability is immaterial.
Friday, August 31, 2012
Intro to the Federal Rules of Evidence - 70
4. Statement against interest (FRE 804(b)(3))
a. Justification
It is based on a common sense notion that reasonable person tend not to make statements against his own interest unless they believe them to be true.
b. Requirements
i) Meaning of “against interest”
1) When made
The declaration must have been against the declarant’s interest at the time it was made.
2) Pecuniary interest or property interest
Property rights, debts, and tort liability are included.
3) Penal interest
a) Third party’s self- inculpating statement
Independent corroborating evidence is required for the trustworthiness of the statement.
Here are some of factors to be considered to decide what constitutes adequate corroboration: whether the declarant had an apparent motive to lie; the general character of the declarant; whether more than one person heard the statement; whether the declaration was made spontaneously; the timing of the declaration and the relationship between the declarant and the witness; whether there is other evidence linking the declarant to the crime.
b) Statement inculpating the accused
The prosecution may introduce an out-of-court declaration, made against the declarant’s penal interest, that has the effect of inculpating the accused.
c) Co-defendant’s confession may not be admissible
The confession of a co-defendant implicating himself and the accused may not be admissible because of confrontation problems.
c. Inadmissibility of collateral statements
Statements may consist of declaration- against- interest parts and collateral parts (neutral or self-serving).
Under the principle of single mark, self-inculpatory parts and collateral parts are separated. And self-inculpatory statements are admissible, while collateral statements are not admissible under 804(b)(3).
It is because the fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement’s reliability. See Williamson v. United States, 512 U.S. 594 (1994).
a. Justification
It is based on a common sense notion that reasonable person tend not to make statements against his own interest unless they believe them to be true.
b. Requirements
i) Meaning of “against interest”
1) When made
The declaration must have been against the declarant’s interest at the time it was made.
2) Pecuniary interest or property interest
Property rights, debts, and tort liability are included.
3) Penal interest
a) Third party’s self- inculpating statement
Independent corroborating evidence is required for the trustworthiness of the statement.
Here are some of factors to be considered to decide what constitutes adequate corroboration: whether the declarant had an apparent motive to lie; the general character of the declarant; whether more than one person heard the statement; whether the declaration was made spontaneously; the timing of the declaration and the relationship between the declarant and the witness; whether there is other evidence linking the declarant to the crime.
b) Statement inculpating the accused
The prosecution may introduce an out-of-court declaration, made against the declarant’s penal interest, that has the effect of inculpating the accused.
c) Co-defendant’s confession may not be admissible
The confession of a co-defendant implicating himself and the accused may not be admissible because of confrontation problems.
c. Inadmissibility of collateral statements
Statements may consist of declaration- against- interest parts and collateral parts (neutral or self-serving).
Under the principle of single mark, self-inculpatory parts and collateral parts are separated. And self-inculpatory statements are admissible, while collateral statements are not admissible under 804(b)(3).
It is because the fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement’s reliability. See Williamson v. United States, 512 U.S. 594 (1994).
Intro to the Federal Rules of Evidence - 69
3. Statement under belief of impending death (FRE 804(b)(2))
a. Justification
The basis of its trustworthiness is more religious and psychological than it is legal: people would not want to die with a lie upon their lips.
b. Requirements
i) Awareness of imminent death
It is not enough that he knows that he is seriously ill/wounded, or that he will probably die.
1) Actual death not required
It will suffice if the declarant is unavailable for some reason other than death (e.g., disability or forgetfulness).
ii) Homicide cases or civil actions
Dying declarations can be used in civil cases. But regarding criminal cases, they can be used only in homicide cases.
iii) Must relate to circumstances of killing
The statement must be one concerning the cause or circumstances of what the declarant believed to be his impending death.
c. Miscellaneous
i) Usable on accused’s behalf
Dying declarations may be admitted on behalf of the defendant, even though most of the time they are admitted against him.
ii) Personal knowledge
As with other out-of-court declarations, the dying declaration will be admissible only if it appears to come from the declarant’s first-hand knowledge.
a. Justification
The basis of its trustworthiness is more religious and psychological than it is legal: people would not want to die with a lie upon their lips.
b. Requirements
i) Awareness of imminent death
It is not enough that he knows that he is seriously ill/wounded, or that he will probably die.
1) Actual death not required
It will suffice if the declarant is unavailable for some reason other than death (e.g., disability or forgetfulness).
ii) Homicide cases or civil actions
Dying declarations can be used in civil cases. But regarding criminal cases, they can be used only in homicide cases.
iii) Must relate to circumstances of killing
The statement must be one concerning the cause or circumstances of what the declarant believed to be his impending death.
c. Miscellaneous
i) Usable on accused’s behalf
Dying declarations may be admitted on behalf of the defendant, even though most of the time they are admitted against him.
ii) Personal knowledge
As with other out-of-court declarations, the dying declaration will be admissible only if it appears to come from the declarant’s first-hand knowledge.
Friday, July 27, 2012
Intro to the Federal Rules of Evidence - 68
2. Former Testimony (FRE 804(b)(1))
a. Justification
Former testimony has a high degree of trustworthiness, since it was given during formal proceedings and under oath by a witness subject to cross-examination.
b. Requirements
i) The unavailability of the declarant
ii) Testimony made at a hearing or in a deposition during the same or different proceeding
It is interpreted that a “hearing” includes any setting in which sworn testimony by a witness is taken, and a “proceeding” includes any official inquiry conducted in a manner authorized by law whether judicial, administrative, legislative, investigative, or inquisitorial.
This exception covers a prior trial (civil or criminal), a preliminary hearing/ a suppressing hearing in a criminal case. But it does not cover affidavits and statements made to police or other law enforcement officials during investigations.
1) Under oath
Though not specifically stated in FRE 804(b)(1) itself, the term “testimony” implies it.
2) Opportunity for cross-examination
The party against whom the evidence is now offered must have had a reasonable opportunity to cross-examine the declarant at the time of the former testimony.
Thus, the grand jury testimony of an unavailable declarant is not admissible as former testimony against the accused at trial, because grand jury proceedings do not provide the opportunity for cross-examination.
But an actual examination is not required.
iii) Similar motive
It is because if the adverse party had no incentive to cross-examine- for instance, because the issues were different, or the stakes were very different.
Three factors are considered to determine the issue of similar motive: (1) similarity of issues (; (2) similarity of stakes ($200 v. $300,000); and (3) same parties.
iv) Identity of parties
1) Applies only to opponent
The proponent of the former testimony need not have been a party to the earlier proceeding. Only the opponent must have been present.
2) Criminal Cases
The party against whom the former testimony is offered must have been present in the earlier proceeding, without respect to whether that party is the defendant or the prosecutor. (Regarding the defendant, it is related to his Confrontation Clause rights.)
Thus a former testimony may not be offered against a criminal defendant who was not present, even if another person – e.g., a co-defendant- was present at the prior proceeding and had a highly similar motive to cross-examine.
3) Civil Cases
Even if the opponent was not present, the former testimony can be used as long as the present opponent’s “predecessor in interest” must have had an opportunity and similar motive to cross-examine in the earlier proceeding.
A “predecessor in interest” means a person with a like motive to develop the same testimony about the same material facts. Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3rd. Cir. 1978). That is, it is very broadly interpreted.
A person in privity with a party to the former action includes a person of grantor-grantee, testator-executor, life tenant-remainderman, joint tenants.
a. Justification
Former testimony has a high degree of trustworthiness, since it was given during formal proceedings and under oath by a witness subject to cross-examination.
b. Requirements
i) The unavailability of the declarant
ii) Testimony made at a hearing or in a deposition during the same or different proceeding
It is interpreted that a “hearing” includes any setting in which sworn testimony by a witness is taken, and a “proceeding” includes any official inquiry conducted in a manner authorized by law whether judicial, administrative, legislative, investigative, or inquisitorial.
This exception covers a prior trial (civil or criminal), a preliminary hearing/ a suppressing hearing in a criminal case. But it does not cover affidavits and statements made to police or other law enforcement officials during investigations.
1) Under oath
Though not specifically stated in FRE 804(b)(1) itself, the term “testimony” implies it.
2) Opportunity for cross-examination
The party against whom the evidence is now offered must have had a reasonable opportunity to cross-examine the declarant at the time of the former testimony.
Thus, the grand jury testimony of an unavailable declarant is not admissible as former testimony against the accused at trial, because grand jury proceedings do not provide the opportunity for cross-examination.
But an actual examination is not required.
iii) Similar motive
It is because if the adverse party had no incentive to cross-examine- for instance, because the issues were different, or the stakes were very different.
Three factors are considered to determine the issue of similar motive: (1) similarity of issues (; (2) similarity of stakes ($200 v. $300,000); and (3) same parties.
iv) Identity of parties
1) Applies only to opponent
The proponent of the former testimony need not have been a party to the earlier proceeding. Only the opponent must have been present.
2) Criminal Cases
The party against whom the former testimony is offered must have been present in the earlier proceeding, without respect to whether that party is the defendant or the prosecutor. (Regarding the defendant, it is related to his Confrontation Clause rights.)
Thus a former testimony may not be offered against a criminal defendant who was not present, even if another person – e.g., a co-defendant- was present at the prior proceeding and had a highly similar motive to cross-examine.
3) Civil Cases
Even if the opponent was not present, the former testimony can be used as long as the present opponent’s “predecessor in interest” must have had an opportunity and similar motive to cross-examine in the earlier proceeding.
A “predecessor in interest” means a person with a like motive to develop the same testimony about the same material facts. Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3rd. Cir. 1978). That is, it is very broadly interpreted.
A person in privity with a party to the former action includes a person of grantor-grantee, testator-executor, life tenant-remainderman, joint tenants.
Intro to the Federal Rules of Evidence - 67
E. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE (FRE 804)
1. Intro
a. Definition of unavailability
FRE 804(b) lists 5 categories: (1) privilege; (2) refusal; (3) lack of memory; (4) inability; (5) absence. But if one of these is due to the proponent’s fault, unavailability is not established.
Regarding “absence,” it is not enough to show that the declarant is beyond the reach of process.
The person offering the out-of-court declaration must show that it was also not possible to procure the witness’s attendance by other means (e.g., persuasion).
For the exceptions given in FRE 804(b)(2), (3), and (4), the person offering the out-of-court declaration in a federal trial must also show that attempts to take the declarant’s deposition were unsuccessful.
b. Constitutional problems
A witness will be deemed sufficiently unavailable not to violate a criminal defendant’s Confrontation Clause rights if the state shows (1) the witness is beyond that state’s own process; and (2) either the state made a good-faith effort to procure the witness’ presence by means other than process, or such efforts would have been very unlikely to succeed.
1. Intro
a. Definition of unavailability
FRE 804(b) lists 5 categories: (1) privilege; (2) refusal; (3) lack of memory; (4) inability; (5) absence. But if one of these is due to the proponent’s fault, unavailability is not established.
Regarding “absence,” it is not enough to show that the declarant is beyond the reach of process.
The person offering the out-of-court declaration must show that it was also not possible to procure the witness’s attendance by other means (e.g., persuasion).
For the exceptions given in FRE 804(b)(2), (3), and (4), the person offering the out-of-court declaration in a federal trial must also show that attempts to take the declarant’s deposition were unsuccessful.
b. Constitutional problems
A witness will be deemed sufficiently unavailable not to violate a criminal defendant’s Confrontation Clause rights if the state shows (1) the witness is beyond that state’s own process; and (2) either the state made a good-faith effort to procure the witness’ presence by means other than process, or such efforts would have been very unlikely to succeed.
Intro to the Federal Rules of Evidence - 66
i. Judgment of Previous Conviction (FRE 803(22))
i) Intro
A certified copy of a judgment is always admissible proof that such judgment has been entered.
The problem is to what extent the facts adjudicated in the former proceeding can be introduced to prove facts in the present case.
ii) Justification
The high degree of reliability of a criminal judgment.
iii) Requirements
1) Criminal judgments
This exception applies only to prior criminal convictions. A prior judgment in a civil case is not included.
2) Inapplicability of this exception to prior acquittal
This exception does not apply to records of prior acquittals. The reason is that a criminal acquittal may establish only that the state did not prove the defendant guilty beyond a reasonable doubt, whereas the evidentiary standard is lower in civil cases.
3) Any fact essential to sustain the judgment
a) Use in subsequent civil case
It is permitted to use the prior criminal conviction of the defendant or of a third person to prove some fact that is relevant to the civil case.
b) Conviction of third person not usable in criminal case
“… but not including … for purposes other than impeachment, judgments against persons other than the accused….”
Where the current proceeding is a criminal trial, it would probably be unconstitutional for the government to use a third person’s conviction as part of its case in chief. Against a third person, however, the government may use prior convictions only for impeachment.
c) Minor crimes
“… a person guilty of a crime punishable by death or imprisonment in excess of one year…”
Misdemeanor convictions are not covered based on the theory that, when faced with a minor conviction, the defendant may have found it more sensible to pay a fine rather than litigate the charges, even though he was in fact innocent.
iv) Prior civil judgments
1) Inadmissible in criminal proceeding
A civil judgment is clearly inadmissible in a subsequent criminal proceeding because of the differing standards of proof.
2) Generally inadmissible in civil proceeding
Inadmissibility is a general rule. But there are exceptions such as FRE 803 (23).
i) Intro
A certified copy of a judgment is always admissible proof that such judgment has been entered.
The problem is to what extent the facts adjudicated in the former proceeding can be introduced to prove facts in the present case.
ii) Justification
The high degree of reliability of a criminal judgment.
iii) Requirements
1) Criminal judgments
This exception applies only to prior criminal convictions. A prior judgment in a civil case is not included.
2) Inapplicability of this exception to prior acquittal
This exception does not apply to records of prior acquittals. The reason is that a criminal acquittal may establish only that the state did not prove the defendant guilty beyond a reasonable doubt, whereas the evidentiary standard is lower in civil cases.
3) Any fact essential to sustain the judgment
a) Use in subsequent civil case
It is permitted to use the prior criminal conviction of the defendant or of a third person to prove some fact that is relevant to the civil case.
b) Conviction of third person not usable in criminal case
“… but not including … for purposes other than impeachment, judgments against persons other than the accused….”
Where the current proceeding is a criminal trial, it would probably be unconstitutional for the government to use a third person’s conviction as part of its case in chief. Against a third person, however, the government may use prior convictions only for impeachment.
c) Minor crimes
“… a person guilty of a crime punishable by death or imprisonment in excess of one year…”
Misdemeanor convictions are not covered based on the theory that, when faced with a minor conviction, the defendant may have found it more sensible to pay a fine rather than litigate the charges, even though he was in fact innocent.
iv) Prior civil judgments
1) Inadmissible in criminal proceeding
A civil judgment is clearly inadmissible in a subsequent criminal proceeding because of the differing standards of proof.
2) Generally inadmissible in civil proceeding
Inadmissibility is a general rule. But there are exceptions such as FRE 803 (23).
Wednesday, June 20, 2012
Intro to the Federal Rules of Evidence - 65
f. Reputation
Reputation testimony concerning a person’s character is admissible hearsay (FRE 803(21)).
Reputation evidence concerning someone’s personal or family history is admissible hearsay (FRE 803(19)).
Reputation evidence concerning land boundaries or the community’s general history is admissible hearsay (FRE 803(20)).
g. Records of vital statistics (FRE 803(9))
Records of births, deaths, and marriages are admissible if the report was made to a public office pursuant to requirements of law.
h. Family records (FRE 803(13))
Statements of fact concerning personal or family history contained in family Bibles, genealogies, jewelry engravings, engravings on urns, crypts, or tombstones, or the like are admissible hearsay.
Reputation testimony concerning a person’s character is admissible hearsay (FRE 803(21)).
Reputation evidence concerning someone’s personal or family history is admissible hearsay (FRE 803(19)).
Reputation evidence concerning land boundaries or the community’s general history is admissible hearsay (FRE 803(20)).
g. Records of vital statistics (FRE 803(9))
Records of births, deaths, and marriages are admissible if the report was made to a public office pursuant to requirements of law.
h. Family records (FRE 803(13))
Statements of fact concerning personal or family history contained in family Bibles, genealogies, jewelry engravings, engravings on urns, crypts, or tombstones, or the like are admissible hearsay.
Intro to the Federal Rules of Evidence - 64
10. Others
a. Learned Treaties (FRE 803(18))
i) Justification
It is trustworthy because “the treatise is written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake” (ACN).
ii) Expert must be on the stand
When the treaties are read into evidence, an expert must be on the stand. Because a treatise written for professionals might be misunderstood or misused by a lay jury, the expert’s presence is needed to interpret it before the lay jury relies on it.
iii) Not admitted as exhibit
Even if all of the requirements are met, the treatise may not be admitted as an exhibit. It is designed to prevent the jury from misunderstanding and misusing a work written for professionals.
iv) Reliability
The proponent of a treatise bears the burden of showing that it is indeed generally reliable: (1) by the witness himself; (2) by another expert; (3) by judicial notice.
b. Market reports, commercial publications (FRE 803(17))
The impartiality and reliability of such publications are recognized.
The proponent of such a document bears the burden of showing that it is indeed generally reliable.
c. Ancient documents (FRE 803(16))
i) Justification
This exception can be justified on several grounds: (1) since a document is required, there is at least the somewhat greater assurance of reliability that comes from a written, rather than oral, out-of-court declaration; and (2) the requirement of 20-years-of-age makes it very likely that the writing predates the present controversy, thus moving a motive for the writer to have lied.
ii) First-hand knowledge required
Though it is not explicitly required, it is interpreted to be required since the requirement of first-hand knowledge is interpreted to be applicable to all of the FRE 803(3) exceptions.
d. Statements in documents affecting an interest in property (FRE 803(15))
This exception is applicable to wills, deeds, contracts to sell real estate, and to contracts and bills of sale affecting personal property.
a. Learned Treaties (FRE 803(18))
i) Justification
It is trustworthy because “the treatise is written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake” (ACN).
ii) Expert must be on the stand
When the treaties are read into evidence, an expert must be on the stand. Because a treatise written for professionals might be misunderstood or misused by a lay jury, the expert’s presence is needed to interpret it before the lay jury relies on it.
iii) Not admitted as exhibit
Even if all of the requirements are met, the treatise may not be admitted as an exhibit. It is designed to prevent the jury from misunderstanding and misusing a work written for professionals.
iv) Reliability
The proponent of a treatise bears the burden of showing that it is indeed generally reliable: (1) by the witness himself; (2) by another expert; (3) by judicial notice.
b. Market reports, commercial publications (FRE 803(17))
The impartiality and reliability of such publications are recognized.
The proponent of such a document bears the burden of showing that it is indeed generally reliable.
c. Ancient documents (FRE 803(16))
i) Justification
This exception can be justified on several grounds: (1) since a document is required, there is at least the somewhat greater assurance of reliability that comes from a written, rather than oral, out-of-court declaration; and (2) the requirement of 20-years-of-age makes it very likely that the writing predates the present controversy, thus moving a motive for the writer to have lied.
ii) First-hand knowledge required
Though it is not explicitly required, it is interpreted to be required since the requirement of first-hand knowledge is interpreted to be applicable to all of the FRE 803(3) exceptions.
d. Statements in documents affecting an interest in property (FRE 803(15))
This exception is applicable to wills, deeds, contracts to sell real estate, and to contracts and bills of sale affecting personal property.
Intro to the Federal Rules of Evidence - 63
8. Public Records and Reports (FRE 803(8))
a. Justification
i) The assumption of reliability : public officers perform their duties properly.
ii) Necessity: officials are unlikely to remember what they record.
b. 803(8)(A) : activities
An agency’s records of its own activities can be used to show that those activities occurred.
c. 803(8)(B) : matters observed under duty
i) Observed on duty & a duty to report
The written records of observations made by public officials are admissible if: (1) the observations were made in the line of duty; and (2) the official had a duty to report those observations.
ii) Criminal case exception
“[E]xcluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”
1) Accused’s use of subsection (B)
It is clear that such police reports cannot be used against the criminal defendant. But it is not so clear whether they may be used by the criminal defendant.
2) Other law enforcement personnel
It is not clear what other types of individuals are included in this phrase “other law enforcement personnel.”
For example, a court found that Customs Service chemist who identifies a substance as being heroin was law enforcement personnel, while a medical examiner was not law enforcement personnel. See U.S. v. Oates, 560 F.2d 45 (2nd Cir. 1977)
d. 803(8)(C): investigative reports
i) Factual findings
The phrase “factual findings” is liberally interpreted. Thus, as long as they are based on factual investigations and satisfy the trustworthiness requirements, opinions, evaluations, or conclusions may be admitted. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).
But legal conclusions are not admissible: in a tort case, a report concluding that the defendant was negligent is not admissible, while a report that he drove faster than speed limit based on facts such as skid marks may be admitted.
ii) No use against criminal defendant
Investigative reports may be used “against the Government” by an accused, but not against the accused by the government. The purpose of this restriction is to prevent the prosecution from basing its case upon police reports and other inculpatory documents. Law enforcement officials must give personal testimony at trial, rather than hiding behind the written report.
e. Lack-of-trustworthiness limitation
The last clause (“… unless the sources of information or other circumstances indicate lack of trustworthiness) creates a grammatical ambiguity. But it is interpreted that, on policy grounds, the provision applies to all of the three subsections.
The following factors are to be considered: (1) 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 (ACN).
f. Non-informant reporter
i) Report by one government agent to another
If the report quotes the first agent’s statement, the quoted statements may come in as evidence of the truth of the matters they assert.
ii) Statements by those without duty to talk
Unless these statements themselves fall under some other hearsay exception, they will not be admissible even though the report as a whole may fall within 803(8). In that event, the report will be entered, but with the quoted statements excised.
a. Justification
i) The assumption of reliability : public officers perform their duties properly.
ii) Necessity: officials are unlikely to remember what they record.
b. 803(8)(A) : activities
An agency’s records of its own activities can be used to show that those activities occurred.
c. 803(8)(B) : matters observed under duty
i) Observed on duty & a duty to report
The written records of observations made by public officials are admissible if: (1) the observations were made in the line of duty; and (2) the official had a duty to report those observations.
ii) Criminal case exception
“[E]xcluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”
1) Accused’s use of subsection (B)
It is clear that such police reports cannot be used against the criminal defendant. But it is not so clear whether they may be used by the criminal defendant.
2) Other law enforcement personnel
It is not clear what other types of individuals are included in this phrase “other law enforcement personnel.”
For example, a court found that Customs Service chemist who identifies a substance as being heroin was law enforcement personnel, while a medical examiner was not law enforcement personnel. See U.S. v. Oates, 560 F.2d 45 (2nd Cir. 1977)
d. 803(8)(C): investigative reports
i) Factual findings
The phrase “factual findings” is liberally interpreted. Thus, as long as they are based on factual investigations and satisfy the trustworthiness requirements, opinions, evaluations, or conclusions may be admitted. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).
But legal conclusions are not admissible: in a tort case, a report concluding that the defendant was negligent is not admissible, while a report that he drove faster than speed limit based on facts such as skid marks may be admitted.
ii) No use against criminal defendant
Investigative reports may be used “against the Government” by an accused, but not against the accused by the government. The purpose of this restriction is to prevent the prosecution from basing its case upon police reports and other inculpatory documents. Law enforcement officials must give personal testimony at trial, rather than hiding behind the written report.
e. Lack-of-trustworthiness limitation
The last clause (“… unless the sources of information or other circumstances indicate lack of trustworthiness) creates a grammatical ambiguity. But it is interpreted that, on policy grounds, the provision applies to all of the three subsections.
The following factors are to be considered: (1) 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 (ACN).
f. Non-informant reporter
i) Report by one government agent to another
If the report quotes the first agent’s statement, the quoted statements may come in as evidence of the truth of the matters they assert.
ii) Statements by those without duty to talk
Unless these statements themselves fall under some other hearsay exception, they will not be admissible even though the report as a whole may fall within 803(8). In that event, the report will be entered, but with the quoted statements excised.
Monday, April 30, 2012
Intro to the Federal Rules of Evidence - 62
7. Business Records (FRE 803(6))
a. Justification
Special reliability is provided by the regularity with which business records are kept, their use and importance in the business, and the incentive of the employees to keep accurate records:
a duty to make an accurate record as part of a continuing job.
b. Definition of business
The FRE provides it in a broad way, which includes “business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”
c. Requirements
i) Entries made in regular course of business
“[K]ept in the course of a regularly conducted business activity, and … it was the regular practice of that business activity to make the [record]”
1) Business activity
The record must have been maintained in conjunction with a business activity.
2) Records prepared for litigation – court’s discretion
This exception rule does not apply if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Thus any records will be excluded if it is found to be unduly self-serving or otherwise untrustworthy.
For example, where the record in an accident report prepared in anticipation of litigation, the trial judge has discretion under the rule to exclude the record. See Palmer v. Hoffman, 318 U.S. 109 (1943).
3) Entrant under duty to record
The entrant must have some duty to make the entry as part of her employment (i.e., records kept as a hobby do not qualify). This duty may be either public (statutory, etc.) or private (contractual, including duties imposed by an employer).
ii) Personal knowledge
The record must be “made… by, or from information transmitted by, a person with knowledge….”
An original source need not be the person who is actually making the entry.
1) Informant must be under business duty to convey information
When the informant with personal knowledge is an outsider, having little or no connection with the business whose records are being offered in evidence, this exception does not apply. But the document may be admitted under any of other exceptions, such as party-admission, or public records exception.
iii) Entry made near time of event
“… made at or near the time….”
The entry must have been made at or near the time of the transaction while the entrant’s
knowledge of the facts was still fresh.
iv) Trustworthiness
The sources of information and other circumstances must be such as to indicate its trustworthiness.
d. Authentication
i) Foundation witness’s testimony
“[A]ll as shown by the testimony of the custodians or other qualified witness”
It is not necessary to call as a witness each person who participated in the making of the record. All that is required is that there be a witness who know enough about a particular record-keeping process to be able to testify that: (1) it was the business’ regular practice to make such a record; (2) the particular record in question was made in the regular course of business on the personal knowledge of the recorder or someone reporting to him; (3) the person with the first-hand knowledge was acting in the regular course of the business; and (4) the entries were made at or near the time of the transaction.
ii) Certification
“[B]y certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification,”
A foundation witness is not necessary to authenticate the record (i.e., the record will be self-authenticating) if the custodian or other qualified person certifies in writing that the record meets the requirements of the business records exception.
Normally, the original or first permanent record of the transaction must be introduced, but where the records to be introduced are voluminous, summaries or compilations may be admitted.
a. Justification
Special reliability is provided by the regularity with which business records are kept, their use and importance in the business, and the incentive of the employees to keep accurate records:
a duty to make an accurate record as part of a continuing job.
b. Definition of business
The FRE provides it in a broad way, which includes “business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”
c. Requirements
i) Entries made in regular course of business
“[K]ept in the course of a regularly conducted business activity, and … it was the regular practice of that business activity to make the [record]”
1) Business activity
The record must have been maintained in conjunction with a business activity.
2) Records prepared for litigation – court’s discretion
This exception rule does not apply if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Thus any records will be excluded if it is found to be unduly self-serving or otherwise untrustworthy.
For example, where the record in an accident report prepared in anticipation of litigation, the trial judge has discretion under the rule to exclude the record. See Palmer v. Hoffman, 318 U.S. 109 (1943).
3) Entrant under duty to record
The entrant must have some duty to make the entry as part of her employment (i.e., records kept as a hobby do not qualify). This duty may be either public (statutory, etc.) or private (contractual, including duties imposed by an employer).
ii) Personal knowledge
The record must be “made… by, or from information transmitted by, a person with knowledge….”
An original source need not be the person who is actually making the entry.
1) Informant must be under business duty to convey information
When the informant with personal knowledge is an outsider, having little or no connection with the business whose records are being offered in evidence, this exception does not apply. But the document may be admitted under any of other exceptions, such as party-admission, or public records exception.
iii) Entry made near time of event
“… made at or near the time….”
The entry must have been made at or near the time of the transaction while the entrant’s
knowledge of the facts was still fresh.
iv) Trustworthiness
The sources of information and other circumstances must be such as to indicate its trustworthiness.
d. Authentication
i) Foundation witness’s testimony
“[A]ll as shown by the testimony of the custodians or other qualified witness”
It is not necessary to call as a witness each person who participated in the making of the record. All that is required is that there be a witness who know enough about a particular record-keeping process to be able to testify that: (1) it was the business’ regular practice to make such a record; (2) the particular record in question was made in the regular course of business on the personal knowledge of the recorder or someone reporting to him; (3) the person with the first-hand knowledge was acting in the regular course of the business; and (4) the entries were made at or near the time of the transaction.
ii) Certification
“[B]y certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification,”
A foundation witness is not necessary to authenticate the record (i.e., the record will be self-authenticating) if the custodian or other qualified person certifies in writing that the record meets the requirements of the business records exception.
Normally, the original or first permanent record of the transaction must be introduced, but where the records to be introduced are voluminous, summaries or compilations may be admitted.
Intro to the Federal Rules of Evidence - 61
6. Recorded Recollection (FRE 803(5))
a. Typical applications
1) an employee’s writing on inventory
2) an insurance company accident investigator’s accident report
3) a police officer’s investigation report
4) an admitting nurse’s notes about a patient’s symptoms and the patient’s comments
regarding pain.
b. Rationale
A writing made by an observer when the facts were still fresh in her mind is probably more reliable than her testimony on the stand, despite the fact that x-x is curtailed.
c. Requirements
i) First-hand knowledge
The memo must relate to something of which the witness once had first-hand knowledge.
ii) Impaired recollection
“… insufficient recollection to enable the witness to testify fully and accurately…”
If the witness’ memory at the time of trial is perfectly clear about the events, the earlier record may not be introduced. The witness must suffer some impairment of his memory of the events, but this impairment need not be total.
iii) Made or adopted by W
The writing must have been made by the witness or made under his direction or adopted by the witness.
iii) Timely made – when fresh in memory
“… when the matter was fresh in the witness’ memory….”
A record made several days after the events in question might be held to satisfy this requirement if there was evidence that the person doing the recording would still have had a clear memory of it.
iv) Accuracy when written
“… to reflect [the witness’] knowledge correctly….”
This phrase means that the witness must testify either that he remembers making an accurate recording of the event in question although he no longer remembers the facts recorded, that he is confident he would not have written or adopted some description of the facts unless that description truly described his observations at the time.
v) Miscellaneous
1) Inadmissible as exhibit
The record is allowed only to be read out loud to the jury, unless offered by an adverse party
2) Recorded recollection v. present collection refreshed (FRE 612)
The use of the present recollection refreshed technique is not an exception to the hearsay rule at all – since the only thing that goes into evidence is the witness’ present testimony, and not the document, there is simply no out-of-court declaration.
Where an attempt at refreshing recollection has proven to be unsuccessful, the 803(5) exception – whereby W reads actual parts of the document into evidence- may be available.
a. Typical applications
1) an employee’s writing on inventory
2) an insurance company accident investigator’s accident report
3) a police officer’s investigation report
4) an admitting nurse’s notes about a patient’s symptoms and the patient’s comments
regarding pain.
b. Rationale
A writing made by an observer when the facts were still fresh in her mind is probably more reliable than her testimony on the stand, despite the fact that x-x is curtailed.
c. Requirements
i) First-hand knowledge
The memo must relate to something of which the witness once had first-hand knowledge.
ii) Impaired recollection
“… insufficient recollection to enable the witness to testify fully and accurately…”
If the witness’ memory at the time of trial is perfectly clear about the events, the earlier record may not be introduced. The witness must suffer some impairment of his memory of the events, but this impairment need not be total.
iii) Made or adopted by W
The writing must have been made by the witness or made under his direction or adopted by the witness.
iii) Timely made – when fresh in memory
“… when the matter was fresh in the witness’ memory….”
A record made several days after the events in question might be held to satisfy this requirement if there was evidence that the person doing the recording would still have had a clear memory of it.
iv) Accuracy when written
“… to reflect [the witness’] knowledge correctly….”
This phrase means that the witness must testify either that he remembers making an accurate recording of the event in question although he no longer remembers the facts recorded, that he is confident he would not have written or adopted some description of the facts unless that description truly described his observations at the time.
v) Miscellaneous
1) Inadmissible as exhibit
The record is allowed only to be read out loud to the jury, unless offered by an adverse party
2) Recorded recollection v. present collection refreshed (FRE 612)
The use of the present recollection refreshed technique is not an exception to the hearsay rule at all – since the only thing that goes into evidence is the witness’ present testimony, and not the document, there is simply no out-of-court declaration.
Where an attempt at refreshing recollection has proven to be unsuccessful, the 803(5) exception – whereby W reads actual parts of the document into evidence- may be available.
Intro to the Federal Rules of Evidence - 60
5. Statements for purposes of medical diagnosis or treatment (FRE 803(4))
a. Justification
A patient tends to tell a truth.
Courts have been more willing to accept such statements into evidence than in the case of statements made to non-doctors.
b. Present or past symptoms
Statements need not be in connection with a present bodily condition. Statements about past pain, past symptoms, or even past events that have given rise to pain or symptoms, are all admissible, if made to a physician in connection with treatment.
c. Causes / external sources of the pain, symptoms or other condition
“[S]tatements made for purposes of medical diagnosis or treatment and describing … the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
Even statements that relate to the cause of the pain, symptoms, or other condition will be admitted, if they seem reasonably related to treatment.
But statements about fault will ordinarily not qualify. For instance, a patient’s statement that he was struck by a car would qualify but not his statement that the car was driven through a red light (ACN). Similarly, a patient’s statement that he was shot would be admissible, but a statement that he was shot by a white man would not be.
d. Statements by third persons
The statement may be one made by a third person, so long as the statement is made for the purpose of getting treatment or diagnosis for the patient.
“He was hit from the rear by a speeding vehicle.”
“I was just passing by when I saw him get hit by a speeding bicycle.”
e. Statements to third persons
Statements to hospital attendants, ambulance drivers, or even members of the family might be included (ACN).
f. Physician who does not treat but testifies
The exception rule applies to statements made to a physician whose examination is made solely in order to enable him to testify at trial (ACN). The rationale is that the evidence will come before the jury anyway, as the basis of his opinion.
a. Justification
A patient tends to tell a truth.
Courts have been more willing to accept such statements into evidence than in the case of statements made to non-doctors.
b. Present or past symptoms
Statements need not be in connection with a present bodily condition. Statements about past pain, past symptoms, or even past events that have given rise to pain or symptoms, are all admissible, if made to a physician in connection with treatment.
c. Causes / external sources of the pain, symptoms or other condition
“[S]tatements made for purposes of medical diagnosis or treatment and describing … the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
Even statements that relate to the cause of the pain, symptoms, or other condition will be admitted, if they seem reasonably related to treatment.
But statements about fault will ordinarily not qualify. For instance, a patient’s statement that he was struck by a car would qualify but not his statement that the car was driven through a red light (ACN). Similarly, a patient’s statement that he was shot would be admissible, but a statement that he was shot by a white man would not be.
d. Statements by third persons
The statement may be one made by a third person, so long as the statement is made for the purpose of getting treatment or diagnosis for the patient.
“He was hit from the rear by a speeding vehicle.”
“I was just passing by when I saw him get hit by a speeding bicycle.”
e. Statements to third persons
Statements to hospital attendants, ambulance drivers, or even members of the family might be included (ACN).
f. Physician who does not treat but testifies
The exception rule applies to statements made to a physician whose examination is made solely in order to enable him to testify at trial (ACN). The rationale is that the evidence will come before the jury anyway, as the basis of his opinion.
Friday, March 23, 2012
Intro to the Federal Rules of Evidence - 59
4. Then existing mental, emotional, or physical condition (FRE 803(3))
a. Statements of physical condition
“ … physical condition (such as … pain and bodily health)….”
i) Requirements
1) Then
“I have a terrible headache”: Admissible
“I had a terrible headache yesterday”: Inadmissible.
2) Spontaneity
It is interpreted that the exception requires spontaneity of a statement to prevent the manufacture of evidence. The mere fact that the statement refers to the declarant’s present condition will generally be sufficient to meet the requirement of spontaneity unless there are particular reasons to suspect that the evidence is manufactured.
3) To layperson
When a statement is made to a doctor, FRE 803(4) may be applied.
4) Statement about pain
The statement must be ones about pain. A statement by the declarant to a non-doctor that reports identifying the precise medical condition will probably be excluded on grounds that it is an uninformed opinion or made without firsthand knowledge: e.g. “my leg must be broken.”
b. Declarant’s then mental state
i) Justification
Such statements are considered more trustworthy because they are probably spontaneous and because the declarant usually has no motive for insincerity and no loss of memory.
ii) When a state of mind is directly in issue
Declarations of existing state of mind are admissible when the declarant’s state of mind is directly in issue and material to the controversy.
When a statement is merely circumstantial evidence of the declarant’s state of mind, rather than a direct assertion of the declarant’s state of mind offered to prove the matter asserted (that state of mind), the statement is not hearsay. Such a distinction, however, has no significance: in either case, statements are admissible.
1) Present state
The rule applies only to statements about the declarant’s then existing mental state.
“I hate my husband, Norman.” - admissible
“Yesterday after I had a big fight with Norman, my hatred of him grew to new heights” - inadmissible.
iii) Proof of Subsequent act
“… then existing state of mind… (such as intent, plan, motive, ….)”
This exception applies when such an out-of-court statement to prove that a subsequent act took place, where the act is at issue.
In general, out-of-court statements which tend to prove a plan, design, or intention of the declarant is admissible to prove that the plan, design, or intention of the declarant was carried out by the declarant.
iv) No proof of prior acts
“[B]ut not including a statement of memory or belief to prove the fact remembered or believed….”
The state of mind exception does not apply to statements of memory or belief about past actions or events, whether the past action was by the declarant (“I believe that I went to the store yesterday”) or by another (“I believe that Dr. Shepard has poisoned me.”)
1) Execution of will
“… unless it relates to the execution, revocation, identification, or terms of declarant’s will.”
The ban on memory and belief statement is no applied to a person’s statements relating to his own will.
This special exception exists simply because there is often a great need for it – no one else can know the decedent’s wishes as well as the decedent, and he is of course not available.
a. Statements of physical condition
“ … physical condition (such as … pain and bodily health)….”
i) Requirements
1) Then
“I have a terrible headache”: Admissible
“I had a terrible headache yesterday”: Inadmissible.
2) Spontaneity
It is interpreted that the exception requires spontaneity of a statement to prevent the manufacture of evidence. The mere fact that the statement refers to the declarant’s present condition will generally be sufficient to meet the requirement of spontaneity unless there are particular reasons to suspect that the evidence is manufactured.
3) To layperson
When a statement is made to a doctor, FRE 803(4) may be applied.
4) Statement about pain
The statement must be ones about pain. A statement by the declarant to a non-doctor that reports identifying the precise medical condition will probably be excluded on grounds that it is an uninformed opinion or made without firsthand knowledge: e.g. “my leg must be broken.”
b. Declarant’s then mental state
i) Justification
Such statements are considered more trustworthy because they are probably spontaneous and because the declarant usually has no motive for insincerity and no loss of memory.
ii) When a state of mind is directly in issue
Declarations of existing state of mind are admissible when the declarant’s state of mind is directly in issue and material to the controversy.
When a statement is merely circumstantial evidence of the declarant’s state of mind, rather than a direct assertion of the declarant’s state of mind offered to prove the matter asserted (that state of mind), the statement is not hearsay. Such a distinction, however, has no significance: in either case, statements are admissible.
1) Present state
The rule applies only to statements about the declarant’s then existing mental state.
“I hate my husband, Norman.” - admissible
“Yesterday after I had a big fight with Norman, my hatred of him grew to new heights” - inadmissible.
iii) Proof of Subsequent act
“… then existing state of mind… (such as intent, plan, motive, ….)”
This exception applies when such an out-of-court statement to prove that a subsequent act took place, where the act is at issue.
In general, out-of-court statements which tend to prove a plan, design, or intention of the declarant is admissible to prove that the plan, design, or intention of the declarant was carried out by the declarant.
iv) No proof of prior acts
“[B]ut not including a statement of memory or belief to prove the fact remembered or believed….”
The state of mind exception does not apply to statements of memory or belief about past actions or events, whether the past action was by the declarant (“I believe that I went to the store yesterday”) or by another (“I believe that Dr. Shepard has poisoned me.”)
1) Execution of will
“… unless it relates to the execution, revocation, identification, or terms of declarant’s will.”
The ban on memory and belief statement is no applied to a person’s statements relating to his own will.
This special exception exists simply because there is often a great need for it – no one else can know the decedent’s wishes as well as the decedent, and he is of course not available.
Intro to the Federal Rules of Evidence - 58
3. Excited Utterances (FRE 803(2))
a. Definition
They are statements made under the influence of a startling event.
b. Justification
Where an event is so startling that the declarant’s reflective capacity is eliminated, the declaration is unlikely to be motivated by self-interest or otherwise insincere.
c. Requirements
i) Sufficiently startling event or condition
The basic issue is whether the event is sufficiently starling that the court believes that a normal person would probably have spoken before thinking. Physical violence is not required. Even seeing a photograph in a newspaper may suffice.
ii) Under the influence of the startling event
In making this determination, courts look to all of the surrounding circumstances (e.g., shock, memory loss, self serving nature, a response to a detailed question, the declarant’s actions). But the most important fact is the amount of time that passed between the event and the declaration.
iii) No need to directly explain or refer to the startling event.
Unlike the exception of present sense impression, this exception does not require a statement to directly explain or refer to the startling event. It is sufficient that the excited utterance is one relating to a startling event or condition.
a. Definition
They are statements made under the influence of a startling event.
b. Justification
Where an event is so startling that the declarant’s reflective capacity is eliminated, the declaration is unlikely to be motivated by self-interest or otherwise insincere.
c. Requirements
i) Sufficiently startling event or condition
The basic issue is whether the event is sufficiently starling that the court believes that a normal person would probably have spoken before thinking. Physical violence is not required. Even seeing a photograph in a newspaper may suffice.
ii) Under the influence of the startling event
In making this determination, courts look to all of the surrounding circumstances (e.g., shock, memory loss, self serving nature, a response to a detailed question, the declarant’s actions). But the most important fact is the amount of time that passed between the event and the declaration.
iii) No need to directly explain or refer to the startling event.
Unlike the exception of present sense impression, this exception does not require a statement to directly explain or refer to the startling event. It is sufficient that the excited utterance is one relating to a startling event or condition.
Intro to the Federal Rules of Evidence - 57
D. HEARSAY EXCEPTIONS: AVAILABILITY IMMATERIAL (FRE 803)
1. In General
a. Justification
Under appropriate circumstances, a hearsay statement may possess circumstantial guarantee of trustworthiness sufficient to justify non-production of the declarant in person at the trial even though he may be available. And the difficulty of proving unavailability or subpoenaing witnesses is likely to outweigh the incremental benefits of courtroom testimony.
b. The firsthand knowledge & non-expert opinion rules
In general, D’s firsthand knowledge is required. But non-expert opinion rules apply to at-trial statements, not out-of-court statements.
2. Present Sense Impressions (FRE 803(1))
a. Definition
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
b. Justification
A high degree of reliability: spontaneous – no danger of fabrication; speedy – no danger of any defect from memory; unexcited declarant – reliable.
c. Requirements
i) Subject matter: describing/ explaining an event or condition
Whereas the excited utterance need not describe the exciting event (it must merely take place under the influence of that event), the present sense impression must describe or explain the event that the declarant has perceived.
ii) Time: immediacy
In contrast to the excited utterance exception, for the present sense expression exception, no material time may pass between the event being perceived and the declarant’s statement about it.
iii) Personal knowledge: “perceiving”
The declarant must have perceived the event, rather than have learned about it from some other means (e.g., reading the newspaper).
1. In General
a. Justification
Under appropriate circumstances, a hearsay statement may possess circumstantial guarantee of trustworthiness sufficient to justify non-production of the declarant in person at the trial even though he may be available. And the difficulty of proving unavailability or subpoenaing witnesses is likely to outweigh the incremental benefits of courtroom testimony.
b. The firsthand knowledge & non-expert opinion rules
In general, D’s firsthand knowledge is required. But non-expert opinion rules apply to at-trial statements, not out-of-court statements.
2. Present Sense Impressions (FRE 803(1))
a. Definition
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
b. Justification
A high degree of reliability: spontaneous – no danger of fabrication; speedy – no danger of any defect from memory; unexcited declarant – reliable.
c. Requirements
i) Subject matter: describing/ explaining an event or condition
Whereas the excited utterance need not describe the exciting event (it must merely take place under the influence of that event), the present sense impression must describe or explain the event that the declarant has perceived.
ii) Time: immediacy
In contrast to the excited utterance exception, for the present sense expression exception, no material time may pass between the event being perceived and the declarant’s statement about it.
iii) Personal knowledge: “perceiving”
The declarant must have perceived the event, rather than have learned about it from some other means (e.g., reading the newspaper).
Wednesday, February 29, 2012
Intro to the Federal Rules of Evidence - 56
e. Agent Admissions (D)
i) Definition
Statements by an agent may be used against his party- employer – vicarious admissions by agents i) within scope of agency or employment ii) during time of employment.
ii) Rationale
The rule is justified on the grounds of reliability. An agent is typically well-informed about the business act on which he is commenting since they occur w/in his work. Also, while the employment continues the employee is not likely to make the statements unless they are true.
iii) Proof of an agency relationship (d)(2)
An agent’s own statements to the existence of an agency relationship “shall be considered,” and some otherwise admissible evidence must be presented: e.g., employment records, demeanor during meetings, etc.
f. Coconspirator Admissions (E)
i) Definition
Statements made by one co-conspirator to a third party are admissible against other co-conspirators.
ii) Elements
1) By a co-conspirator
2) During the course of the conspiracy
Statements must be made at a time when the declarant was participating in the conspiracy.
Statements made after the conspiracy has ended are admissible only against the declarant, not against the other members of the conspiracy.
3) In furtherance of the conspiracy
A statement should be admitted against a co-conspirator only if it was made for the purpose of advancing the conspiracy’s objectives, such as inducing, assisting.
Statements by one co-conspirator against another may be admitted even if no conspiracy crime is charged.
iii) Proof of the existence of conspiracy
Existence of the conspiracy, and satisfaction of the other factual requirements, is to be decided by the judge by a preponderance of the evidence (104(a)). Bourjaily v. United States, 483 U.S. 171 (1987).
The statement offered for its truth shall be used, but other evidence also is needed to prevent bootstrapping.
iv) Testimonial admissions
Testimonial admissions of a conspirator are admissible against a co-conspirator only if there was an opportunity to cross-examination the hearsay declarant.
vi) No need to charge conspiracy
Statements by one co-conspirator against another may be admitted under the exception even if no conspiracy crime is formally charged.
i) Definition
Statements by an agent may be used against his party- employer – vicarious admissions by agents i) within scope of agency or employment ii) during time of employment.
ii) Rationale
The rule is justified on the grounds of reliability. An agent is typically well-informed about the business act on which he is commenting since they occur w/in his work. Also, while the employment continues the employee is not likely to make the statements unless they are true.
iii) Proof of an agency relationship (d)(2)
An agent’s own statements to the existence of an agency relationship “shall be considered,” and some otherwise admissible evidence must be presented: e.g., employment records, demeanor during meetings, etc.
f. Coconspirator Admissions (E)
i) Definition
Statements made by one co-conspirator to a third party are admissible against other co-conspirators.
ii) Elements
1) By a co-conspirator
2) During the course of the conspiracy
Statements must be made at a time when the declarant was participating in the conspiracy.
Statements made after the conspiracy has ended are admissible only against the declarant, not against the other members of the conspiracy.
3) In furtherance of the conspiracy
A statement should be admitted against a co-conspirator only if it was made for the purpose of advancing the conspiracy’s objectives, such as inducing, assisting.
Statements by one co-conspirator against another may be admitted even if no conspiracy crime is charged.
iii) Proof of the existence of conspiracy
Existence of the conspiracy, and satisfaction of the other factual requirements, is to be decided by the judge by a preponderance of the evidence (104(a)). Bourjaily v. United States, 483 U.S. 171 (1987).
The statement offered for its truth shall be used, but other evidence also is needed to prevent bootstrapping.
iv) Testimonial admissions
Testimonial admissions of a conspirator are admissible against a co-conspirator only if there was an opportunity to cross-examination the hearsay declarant.
vi) No need to charge conspiracy
Statements by one co-conspirator against another may be admitted under the exception even if no conspiracy crime is formally charged.
Intro to the Federal Rules of Evidence - 55
b. Personal Admissions (A)
i) Definition
Any statement made by a party at any time if i) relevant and ii) offered by the opposing party.
ii) Examples
1) Pleas of guilty in later civil or criminal cases
2) Statements made in pleadings
3) Statements to friends
4) Conduct: D’s flight after a crime as an admission of guilt
c. Adoptive Admissions (B)
i) Definition
A party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive admission.
ii) Types
1) Explicit adoption
E.g., “What B has just said is true,” “Yes, that’s right.”
2) Adoption by silence
When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior (ACN).
a) Requirements
For silence to be an admission the following requirements must be met: 1. the party must have heard and understood the statement; 2. the statement was false and of such a nature that a reasonable person would deny it; and 3. the party was able to respond to the statement, but did not.
b) Silence to police accusation
Failure to reply to an accusation or statement made by the police in a criminal case can almost never be used as an implied admission of a criminal act.
d. Explicitly Authorized Admissions (C)
i) Definition
Statements by an agent with speaking authority (e.g., attorneys, partners, corporate officers, presidents) can be used against his party-principal.
ii) Rationale
Some degree of reliability. Trustworthy spokesperson.
iii) Scope
Authorized admissions include statements by the agent to the principal as well as those to third persons.
A party’s ordinary books and records, prepared by employees for the company’s internal use alone, may be admissible as admissions (ACN).
iv) Proof of authority (2nd sentence of 801(d)(2))
i) Definition
Any statement made by a party at any time if i) relevant and ii) offered by the opposing party.
ii) Examples
1) Pleas of guilty in later civil or criminal cases
2) Statements made in pleadings
3) Statements to friends
4) Conduct: D’s flight after a crime as an admission of guilt
c. Adoptive Admissions (B)
i) Definition
A party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive admission.
ii) Types
1) Explicit adoption
E.g., “What B has just said is true,” “Yes, that’s right.”
2) Adoption by silence
When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior (ACN).
a) Requirements
For silence to be an admission the following requirements must be met: 1. the party must have heard and understood the statement; 2. the statement was false and of such a nature that a reasonable person would deny it; and 3. the party was able to respond to the statement, but did not.
b) Silence to police accusation
Failure to reply to an accusation or statement made by the police in a criminal case can almost never be used as an implied admission of a criminal act.
d. Explicitly Authorized Admissions (C)
i) Definition
Statements by an agent with speaking authority (e.g., attorneys, partners, corporate officers, presidents) can be used against his party-principal.
ii) Rationale
Some degree of reliability. Trustworthy spokesperson.
iii) Scope
Authorized admissions include statements by the agent to the principal as well as those to third persons.
A party’s ordinary books and records, prepared by employees for the company’s internal use alone, may be admissible as admissions (ACN).
iv) Proof of authority (2nd sentence of 801(d)(2))
Intro to the Federal Rules of Evidence - 54
2. Party-Opponent Admissions (FRE 801(d)(2))
a. In General
i) Rationale
The notion that people should take responsibility for their own words and act.
Under an adversary system, a party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath.
ii) Evidentiary v. judicial admissions
Judicial admissions, such as admissions in pleadings or in stipulations, are binding; 801(d)(2) out-of-court admissions are evidentiary which can be rebutted at trial.
iii) Inapplicability of the firsthand knowledge & opinion rules
Either one does not apply to admissions of a party-opponent. An admission is admissible even though it contains an opinion or a conclusion of law, and even though it is not based on the declarant’s first-hand knowledge.
Example: After an auto accident, D tells a police officer, “The accident was my fault.” Even though a witness’s in-court expression of an opinion is normally not admissible, this out-of-court expression will be admissible against D. Of course, D is always free to take the stand to explain why his opinion is mistaken, taken out of context, etc. the same rule of admissibility would apply where D expressed a conclusion of law (e.g., “P will probably be able to sue my rear end off.”
iv) Declarations against interest v. admissions
Unlike a declaration against interest, an admission need not be against the declarant’s interest at the time it is made. Even a statement that seems neutral or self-serving at the time it is made may be introduced against the party who made it.
Example: D is charged with murdering his wife by stabbing her. At the beginning of their investigation, police believed that the stabbing took place at 7:00 p.m. D tells them, “I left the house at 6:45. It later turns out that the murder probably took place at 6:30. The prosecution may introduce D’s statement against him, since it is an admission. This is so even though the statement is not a “declaration against interest,” since at the time he made it, D believed the statement was exculpatory.
a. In General
i) Rationale
The notion that people should take responsibility for their own words and act.
Under an adversary system, a party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath.
ii) Evidentiary v. judicial admissions
Judicial admissions, such as admissions in pleadings or in stipulations, are binding; 801(d)(2) out-of-court admissions are evidentiary which can be rebutted at trial.
iii) Inapplicability of the firsthand knowledge & opinion rules
Either one does not apply to admissions of a party-opponent. An admission is admissible even though it contains an opinion or a conclusion of law, and even though it is not based on the declarant’s first-hand knowledge.
Example: After an auto accident, D tells a police officer, “The accident was my fault.” Even though a witness’s in-court expression of an opinion is normally not admissible, this out-of-court expression will be admissible against D. Of course, D is always free to take the stand to explain why his opinion is mistaken, taken out of context, etc. the same rule of admissibility would apply where D expressed a conclusion of law (e.g., “P will probably be able to sue my rear end off.”
iv) Declarations against interest v. admissions
Unlike a declaration against interest, an admission need not be against the declarant’s interest at the time it is made. Even a statement that seems neutral or self-serving at the time it is made may be introduced against the party who made it.
Example: D is charged with murdering his wife by stabbing her. At the beginning of their investigation, police believed that the stabbing took place at 7:00 p.m. D tells them, “I left the house at 6:45. It later turns out that the murder probably took place at 6:30. The prosecution may introduce D’s statement against him, since it is an admission. This is so even though the statement is not a “declaration against interest,” since at the time he made it, D believed the statement was exculpatory.
Intro to the Federal Rules of Evidence - 53
C. NON-HEARSAY
1. Prior statement by witness (FRE 801(d)(1))
a. Rationale
Since the witness is now subject to cross-examination, there is no danger of lack of cross-examination.
b. Inconsistent statement (A)
i) Requirements
1) The declarant must testify, subject to cross-examination, at the current trial.
An inconsistent grand jury testimony is admissible against the accused, though the accused had neither a chance to X-X nor a right to be present. Since in the current trial, W is subject to X-X, there is no Confrontation Clause issue. In contrast, a grand jury testimony other than by W is not admissible under the Confrontation Clause.
2) The prior statement must be inconsistent with the W’s trial testimony.
3) The prior statement must have been given under oath
Though required to be under oath, there is no requirement of cross-examination. Thus, a prior inconsistent statement may be admitted when there was no cross-examination, or even any opportunity for cross-examination.
4) The prior statement must have been made at a trial, hearing, or other proceeding, or in a
deposition.
A hearing is interpreted to include any setting in which sworn testimony by a witness is taken. And a proceeding is interpreted to include any official inquiry conducted in a manner authorized by law whether judicial, administrative, legislative, investigative, or inquisitorial.
ii) Substantive evidence & impeachment evidence
The prior inconsistent statement may be admissible not only as substantive proof but also for impeachment purposes.
c. Consistent statement made before alleged fabrication (B)
i) Requirements
1) To rebut the allegation of improper motive to tell a lie.
2) Statement made before the alleged fabrication
A prior consistent statement made after the motive to lie arose is not admissible. Tome v. United States, 513 U.S. 150 (1995)
ii) No oath requirement
iii) Substantive evidence & rehabilitation evidence
Such a prior consistent statement may be admissible not only substantive evidence but also evidence as to the witness’ credibility.
d. Identification (C)
i) No oath or proceeding required
Prior identifications are easier to get into evidence than are prior inconsistent or consistent statements.
ii) Identification made after perceiving
Photo identifications are within the scope of this rule.
iii) Current ability to cross-examine
So long as an opponent has the ability to ask questions to the declarant about his prior identification, the prior identification qualifies as non-hearsay under FRE 801(d)(1)(C) even though the declarant admits to having a total lack of memory about the event that gave rise to the identification. See U.S. v. Owens, 484 U.S. 554 (1988).
iv) Substantive evidence & rehabilitation evidence
Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct.
1. Prior statement by witness (FRE 801(d)(1))
a. Rationale
Since the witness is now subject to cross-examination, there is no danger of lack of cross-examination.
b. Inconsistent statement (A)
i) Requirements
1) The declarant must testify, subject to cross-examination, at the current trial.
An inconsistent grand jury testimony is admissible against the accused, though the accused had neither a chance to X-X nor a right to be present. Since in the current trial, W is subject to X-X, there is no Confrontation Clause issue. In contrast, a grand jury testimony other than by W is not admissible under the Confrontation Clause.
2) The prior statement must be inconsistent with the W’s trial testimony.
3) The prior statement must have been given under oath
Though required to be under oath, there is no requirement of cross-examination. Thus, a prior inconsistent statement may be admitted when there was no cross-examination, or even any opportunity for cross-examination.
4) The prior statement must have been made at a trial, hearing, or other proceeding, or in a
deposition.
A hearing is interpreted to include any setting in which sworn testimony by a witness is taken. And a proceeding is interpreted to include any official inquiry conducted in a manner authorized by law whether judicial, administrative, legislative, investigative, or inquisitorial.
ii) Substantive evidence & impeachment evidence
The prior inconsistent statement may be admissible not only as substantive proof but also for impeachment purposes.
c. Consistent statement made before alleged fabrication (B)
i) Requirements
1) To rebut the allegation of improper motive to tell a lie.
2) Statement made before the alleged fabrication
A prior consistent statement made after the motive to lie arose is not admissible. Tome v. United States, 513 U.S. 150 (1995)
ii) No oath requirement
iii) Substantive evidence & rehabilitation evidence
Such a prior consistent statement may be admissible not only substantive evidence but also evidence as to the witness’ credibility.
d. Identification (C)
i) No oath or proceeding required
Prior identifications are easier to get into evidence than are prior inconsistent or consistent statements.
ii) Identification made after perceiving
Photo identifications are within the scope of this rule.
iii) Current ability to cross-examine
So long as an opponent has the ability to ask questions to the declarant about his prior identification, the prior identification qualifies as non-hearsay under FRE 801(d)(1)(C) even though the declarant admits to having a total lack of memory about the event that gave rise to the identification. See U.S. v. Owens, 484 U.S. 554 (1988).
iv) Substantive evidence & rehabilitation evidence
Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct.
Tuesday, January 17, 2012
Intro to the Federal Rules of Evidence - 52
3. The truth of the matter asserted
a. Relevancy issue
If the statement is offered for any purpose other than for its truth, it is not hearsay. Thus, the hearsay character of the statement cannot be examined until we know why the proponent is offering the evidence – i.e., its relevancy.
Deciding that a string of words is a statement does not mean it is hearsay. That depends on whether it is offered to prove what it asserts, which in turn depends on the proponent’s purpose, the speaker’s intent, and often on the broader factual context in which the statement was made.
b. Inapplicability of the rule
i) Verbal acts
A statement may be, by itself, an operative fact which gives rise to legal consequences under substantive law, e.g., words of a contract, defamation, threats, and the like. Such a statement, which is usually called a “verbal act,” is relevant, regardless of the truth of the word spoken. The fact that such words were said matters, not that they are true.
ii) Effect on hearer or reader
A statement that is offered to show its effect on the person who heard the statement is not hearsay, e.g., where the statement is offered to show only knowledge, good faith, reasonableness, emotional effect, etc.
iii) Declarant’s state of mind
A statement that is offered, as circumstantial evidence, to show the state of the mind of the declarant is not hearsay. For example, to show the intent of a party to contract negotiations; to show the state of mind of a criminal defendant; to show a witness’s bias.
a. Relevancy issue
If the statement is offered for any purpose other than for its truth, it is not hearsay. Thus, the hearsay character of the statement cannot be examined until we know why the proponent is offering the evidence – i.e., its relevancy.
Deciding that a string of words is a statement does not mean it is hearsay. That depends on whether it is offered to prove what it asserts, which in turn depends on the proponent’s purpose, the speaker’s intent, and often on the broader factual context in which the statement was made.
b. Inapplicability of the rule
i) Verbal acts
A statement may be, by itself, an operative fact which gives rise to legal consequences under substantive law, e.g., words of a contract, defamation, threats, and the like. Such a statement, which is usually called a “verbal act,” is relevant, regardless of the truth of the word spoken. The fact that such words were said matters, not that they are true.
ii) Effect on hearer or reader
A statement that is offered to show its effect on the person who heard the statement is not hearsay, e.g., where the statement is offered to show only knowledge, good faith, reasonableness, emotional effect, etc.
iii) Declarant’s state of mind
A statement that is offered, as circumstantial evidence, to show the state of the mind of the declarant is not hearsay. For example, to show the intent of a party to contract negotiations; to show the state of mind of a criminal defendant; to show a witness’s bias.
Intro to the Federal Rules of Evidence - 51
2. Out-of-court
“[O]ther than one made by the declarant while testifying at the trial or hearing.”
The following statements will be deemed “out of court”
a. Statements by non-witness
A witness’s delivery of a third person’s statement constitutes hearsay.
b. Prior statements by witness
An out-of-court statement does not lose its hearsay character simply because the declarant later becomes a witness at trial and testifies about the statement.
A witness’ prior statement made in a deposition or in an earlier trial, or even when spoken in the judge’s chambers during the present trial, are all out of court, and so will constitute hearsay, unless FRE 801(d)(1) exception is applied.
EXAMPLE:
Plaintiff: Ms. Jones, what did you say to your son after you looked up?
Witness: I told him that I saw the green car go through the stop sign.
Defense: Objection, your honor. Hearsay.
Court: Objection sustained.
“[O]ther than one made by the declarant while testifying at the trial or hearing.”
The following statements will be deemed “out of court”
a. Statements by non-witness
A witness’s delivery of a third person’s statement constitutes hearsay.
b. Prior statements by witness
An out-of-court statement does not lose its hearsay character simply because the declarant later becomes a witness at trial and testifies about the statement.
A witness’ prior statement made in a deposition or in an earlier trial, or even when spoken in the judge’s chambers during the present trial, are all out of court, and so will constitute hearsay, unless FRE 801(d)(1) exception is applied.
EXAMPLE:
Plaintiff: Ms. Jones, what did you say to your son after you looked up?
Witness: I told him that I saw the green car go through the stop sign.
Defense: Objection, your honor. Hearsay.
Court: Objection sustained.
Intro to the Federal Rules of Evidence - 50
1. Statement
a. Oral or written assertion
The term of assertion means a “forceful or positive declaration.” U.S. v. Zenni, 492 F.Supp. 464 (E.D.Ky. 1980).
It is scarcely doubted that an assertion made in words is intended by the declarant to be an assertion. Hence, verbal assertions readily fall into the category of statement (ACN).
An oral assertion is made when a witness testifies that somebody said “…”. Any written document that is offered in evidence constitutes a statement for hearsay purposes.
EXAMPLE
Q: What did the crossing guard say to you immediately after the accident?
OPPOSING PARTY: Hearsay, Your honor.
JUDGE: Sustained.
Q: May I make an offer of proof?
JUDGE: Certainly. Proceed.
Q: If the witness were allowed to testify, he would state that the crossing guard made the following statement to him: “I saw the fire truck and heard the siren. All of the traffic stopped except for the red care in the left lane, which just ran right into the back of the blue car without even slowing down.”
JUDGE: Very well. The ruling stands. Ask another question.
EXAMPLE
Q: What was the content of the radio bulletin from the dispatcher?
OPPOSING PARTY: Objection, hearsay.
JUDGE: Sustained.
b. Non-verbal conduct intended as an assertion
Assertive conduct is treated as if it were a statement, so that it can be hearsay.
Any conduct might have assertive intent, so it might be a statement in which case it would be hearsay if offered to whatever the actor sought to express. In this setting, the burden is on the objecting party to prove that the actor had the requisite intent.
i) Nonassertive conduct
Nonassertive conduct is not conduct the declarant did not intend as an assertion but which is being offered as an assertion. Evidence of nonassertive conduct is not hearsay.
The rationale is that the likelihood of fabrication is less with nonassertive conduct than with assertive or verbal conduct.
c. By person
The hearsay rule does not apply to devices or animals.
a. Oral or written assertion
The term of assertion means a “forceful or positive declaration.” U.S. v. Zenni, 492 F.Supp. 464 (E.D.Ky. 1980).
It is scarcely doubted that an assertion made in words is intended by the declarant to be an assertion. Hence, verbal assertions readily fall into the category of statement (ACN).
An oral assertion is made when a witness testifies that somebody said “…”. Any written document that is offered in evidence constitutes a statement for hearsay purposes.
EXAMPLE
Q: What did the crossing guard say to you immediately after the accident?
OPPOSING PARTY: Hearsay, Your honor.
JUDGE: Sustained.
Q: May I make an offer of proof?
JUDGE: Certainly. Proceed.
Q: If the witness were allowed to testify, he would state that the crossing guard made the following statement to him: “I saw the fire truck and heard the siren. All of the traffic stopped except for the red care in the left lane, which just ran right into the back of the blue car without even slowing down.”
JUDGE: Very well. The ruling stands. Ask another question.
EXAMPLE
Q: What was the content of the radio bulletin from the dispatcher?
OPPOSING PARTY: Objection, hearsay.
JUDGE: Sustained.
b. Non-verbal conduct intended as an assertion
Assertive conduct is treated as if it were a statement, so that it can be hearsay.
Any conduct might have assertive intent, so it might be a statement in which case it would be hearsay if offered to whatever the actor sought to express. In this setting, the burden is on the objecting party to prove that the actor had the requisite intent.
i) Nonassertive conduct
Nonassertive conduct is not conduct the declarant did not intend as an assertion but which is being offered as an assertion. Evidence of nonassertive conduct is not hearsay.
The rationale is that the likelihood of fabrication is less with nonassertive conduct than with assertive or verbal conduct.
c. By person
The hearsay rule does not apply to devices or animals.
Intro to the Federal Rules of Evidence - 49
B. DEFINITION
“Hearsay” is 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. (FRE 801(c)).
Hearsay is generally secondhand information that is heard from another. Whenever a witness begins to respond on the stand by saying, “I was told …,” “I heard it said …,” “Joan told me that …,” or “She said …,” a red flag should go up to warn a potential hearsay issue. (Laws of Evidence, p.296)
EXAMPLE
Plaintiff: What were you told when you opened the door?
Defense: Objection, hearsay.
Court: Sustained.
Plaintiff: I’ll rephrase. What did you hear when you opened the door?
Witness: I heard Joe tell Mary that …
Defense: Objection, move to strike. Hearsay.
“Hearsay” is 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. (FRE 801(c)).
Hearsay is generally secondhand information that is heard from another. Whenever a witness begins to respond on the stand by saying, “I was told …,” “I heard it said …,” “Joan told me that …,” or “She said …,” a red flag should go up to warn a potential hearsay issue. (Laws of Evidence, p.296)
EXAMPLE
Plaintiff: What were you told when you opened the door?
Defense: Objection, hearsay.
Court: Sustained.
Plaintiff: I’ll rephrase. What did you hear when you opened the door?
Witness: I heard Joe tell Mary that …
Defense: Objection, move to strike. Hearsay.
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