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.
Wednesday, June 20, 2012
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.
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