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.
Monday, April 30, 2012
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.
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