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).
Friday, July 27, 2012
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.
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