HEARSAY RECAP

HEARSAY ANALYSIS 1. Determine whether the evidence fits within the definition of 801(c). In other words, determine whether the following exist: o Statement (oral, written or assertive conduct) o Made out of court o Offered for the truth of the matter asserted 2. If the evidence falls outside of the definition of hearsay under 801(c), then such evidence may be used for nonhearsay purposes, subject to other exclusions. For example: o If not offered for the truth of the matter asserted, then evidence is not hearsay. o If not an assertion, then evidence is not hearsay, even if offered to prove the truth of the matter implied by non-assertive behavior. 3. If the evidence falls within the definition of hearsay under 801(c), then the evidence is hearsay unless specifically defined as non-hearsay under 801(d). 4. Determine whether the evidence fits within the definition of 801(d). in other words, whether the evidence is: o Inconsistent statement meeting the requirements of 801(d)(1)(A). o Consistent statement meeting the requirements of 801(d)(1)(B) o Identification meeting the requirements of 801(d)(1)(C) o Admission of a party-opponent meeting the requirements of 801(d)(2) 5. If the evidence falls within the definition of non-hearsay under 801(d), then the evidence may be used for substantive purposes (i.e. for the truth of the matter asserted), in addition to the nonhearsay purposes. 6. If the evidence IS hearsay, after all that, THEN check exceptions

DEFINITION OF HEARSAY
A. DEFINITIONS
Federal Definition: FRE 801(a) and (c) hearsay is an out of court (verbal or nonverbal) assertion offered to prove the truth of the matter asserted. Doesnt classify as hearsay those statements made out of court as long as declarant is in court.

Narrower Definition: assertion y an out of court declarant to prove the truth of the matter asserted.

B. THE RATIONALE FOR THE RULE AGAINST HEARSAY/SAFEGUARDS

POLICY JUSTIFICATIONS: cross-exam; oath, demeanor, & constitutional underpinnings Safeguard: Impeachment o Hearsay declarants normally not subj. to cross-exam but FRE 806 allows hearsay declarant to be impeached by any of the methods that would be available. o Ex: if V dead but his statement D did it gets in as dying declaration can be impeached by showing evidence that proves V was too far to see who did it. Note a overlap of lack of personal knowledge (602) and hearsay objections (802)

D. DEFINITION OF A HEARSAY STATEMENT

VERBAL EXPRESSIONS AS HEARSAY Assertive Intent o ACN - Nothing is an assertions unless untended to be one (intent of declarant crucial)

Almost always an attempt to communicate that what is being asserted, intentionally.

Form of Expression hearsay reaches statements athat have many diff grammatical forms o Declarative Sentences o o o John said he was at the scene of the crime (to show hes alive, i.e., wld not be hearsay) Requests or commands John, Dont shoot me! Declarative sentence but also points to the fact that John was about to shoot him. Questions: You arent going to shoot me are you, John Usually questions arent assertions but here you can see the intention is the same. Nonassertive verbal expressions: not intended by declarant to make factual assertions not hearsay, gen.

Social courtesies, singing a song, acting a play, reciting poetry, etc. NON-VERBAL ASSERTIONS When an actor intends conduct to be a communication or as a substitution for words. EXAMPLES: o Nodding our head, point to identify a person, shake our heads, flare signals (can be hearsay) Non-Assertive AND Non-Verbal EXAMPLES: o Devitt wears a raincoat (to show its raining NO!), people use umbrellasNOT assertive conduct. o o Woman screams and starts to cry at sight of Dher scream is NOT assertive Silence may not be hearsay, if not intended as an assertive conduct (i.e. speak if you diasgee..) Cain v. George: court allowed in testimony by hotel owners concerning the number of guests who had occupied the room where the boy died and who had made no complaints.

o o o

Silence wasnt dependent on veracity/credibility of wld be declarants Dog barks at D out of ct; in court, cop testifies as to training and pedigree of dog and E of trailing and barking at the D. NOT hearsay, because rule says PERSONbut some states treat it as hearsay. For simple mechanical stuff, no one worries about it Consider: a paramedic pulling sheet over V. assertive if intended to communicate that V was dead but if not intention to communicate as such, then nonassertive nonassertive is never hearsay!

Whether conduct is assertive or not, depends entirely on the intent of an actor

ACN: When E of conduct is offered on the theory that it was not a statement and hence not hearsay, as preliminary determination will be reqd to deternine whether an assertion is intended. o

BURDEN on party claiming intention existed. (doubtful cases will be resolved in favor admissibility

US v. Singer letter mailed with 2 people addressed. when E of conduct tends to demonstrate behavior based on a belief, the untrustworthiness implications of hearsay aren not brought in to play. In court, bystander says the light was red at the time of the accident. Out of court, the bystander said the same. NOT hearsaythe statement is being said IN COURT, and bystander can be crossed. In court, the bystander says, I said the light was red at the time of the accident. This IS hearsaythe risks arent as strong, but are present (witness could have forgotten, etc.) In court, witness authenticates signature on Father Toms affidavit. Out of court, Father Tom signed an affidavit that the light was red at the time of the accident. HEARSAYwe want Father Tom on the stand. Barb, a lay witness, testifies that D did not come to a complete stop at the stop signBarb was not present, but in her opinion, D could not have stopped given the circumstances. Proper objection? o Object to lack of personal knowledge. If Barb says she knows D didnt stop because Sam told her, then she DOES have personal knowledge, so the objection would be hearsa

MADE OUT OF COURT

US v Check by stating what you said in a conversation you disclose clearlt what other statement was o Testifying W quoting wht he said to unavail person suggesting his responses that incriminated the D In court, witness testifies that his brother Frank told him that his puppets talk to him. Out of court, Frank said wow, my puppets really do talk to me. IF offered to prove that Franks puppets talk to himHEARSAY. IF offered to prove that Frank is crazyNOT HEARSAY.

E. OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED

Shortly after Freds murder, Sam tells Anne that he saw the D standing over Fred with a knife. HEARSAY if Anne testifies to what Sam told heroffered to prove that D did it.

Wright v. Doe Tatham o Letters offered by D to prove that the testator of a will was competent. Court keeps them out as hearsay. o Letters are mere hearsaymakes no difference that the statements were acted upon on the faith of their being true. Hearsay statements offered to estb a fact based on opinion of declarant are inadmissible.

US v PAcelli testimony regarding statements that imply facts presented to prove their own truth is HEARSAY

NON-HEARSAY STATEMENTS NOT OFFERED TO PROVE TRUTH OF THE MATTER ASSERTED ask for limiting instructions. Impeachment If something is SOLELY for impeachment purposes, not hearsay. MIGHT need to use statements substantively, when you have to prove certain elements, in which case wouldnt be used for impeachment, and would be subject to hearsay rules.

Ask yourself if it matters if the statement is trueif it does NOT matter, then not being offered to prove the truth of the matter asserted, and NOT hearsay Effect on the listener or reader Out of court statement: Look out! Theres a fire in here! o cant use it to prove that there was a firethat would be hearsay. o CAN use it to prove that the people were reasonable in running out of the theater Alfred smelled gas, and although he hadnt called the gas company yet, guy shows up on his door and says hes from the gas co, and asks Alfred to show him where the pipeline is. Gas guy lights a cigarette, theres an explosion, and Alfred sues gas co. Seeks to introduce gas guys testimony that hes with the gas company, to prove that the guy worked for the gas company, and to prove that Alfreds actions were reasonable. o o To prove the guy worked for the gas company: HEARSAY to prove that Alfred acted reasonably: NOT HEARSAY

Legally Operative Language: Verbal acts which have independent legal significance D on trial for solicitation, offer testimony that D said to undercover cop you can have it anyway you like it. o words may have independent legal significancemay rise to the level of solicitation. o even if the words dont rise to level of solicitation, doesnt matterprosecution not using statement to prove that cop could have it anyway he like; using it to prove solicitation

statement in defamation action

o o o Sam said I was dishonest and a drug addict I offer to sell to you my computer for $100 ok, deal if go to prove an element of the offense not hearsay Bank Robber give me all your money or someone will get hurt Both demand and a threat = act of force = element of robbery

statements in a contract action

Verbal objects or markers testifying as to the license plate number of the vehicle involved in hit and run any distinctive feature about a product can serve as an identifier. Coke o also found to be self-authenticating as under 902(7) SOMETIMES< the act of putting letters, words, or something else on a person or object MAY be intended as an assertion and thus is hearsay o

Ex - Michael R. Devitt on Devitts suitcase. Someone uses the label to testify that the suitcase belongs to Devitt. THAT is
hearsay.

Problem 3-G Eagles Rest Bar & Grill

Circumstantial evidence of state of mind (Or come in as under Hearsay EXCEPTION: State of Mind) Anas Will o entry in Anas will that her husband was a bum o NOT hearsaynot offered to prove hubby is a bum. Offered to prove Anas state of mind.

Circumstantial evidence of memory, knowledge or belief

Must have three things before you can use this: o independent evidence of unique or unusual facts o o The statement by the out of court declarant describes this same event and its very similar circumstances suggest that the declarant would not know the facts unless he or she actually had the experience reflected in the statement.

A Papier Mache Man o After being sexually assaulted, a girl makes statements about what the room looked like. o statements were admitted under above standard.

F. NOT OTHERWISE EXCLUDED UNDER 801(d)

GENERALLY 1. 2. 801(d) defines certain things as NOT hearsay. Declarant MUST testify and be subject to cross concerning the statement o Rule does NOT say concerning the SUBJECT MATTER of the statementjust the statement itself Plus whatever requirements in each of the three exceptions

Requirements

PRIOR INCONSISTENT STATEMENTS 801(D)(1)(A) Witness must be cross-examinable concerning the prior statement Statement must be inconsistent with declarants testimony I Got Amnesia p. 163 o Start witness claims he cant remember the event in question, or giving any testimony to the grand jury, but that he can only remember going into the witness protection program. o o majority view is that lack of memory is inconsistent with a prior statement demonstrating memory. the witness is still cross-examinable concerning the STATEMENT itself, even if not cross-examinable concerning the subject matter of the statement. California approach: says lack of memory is inconsistent w/ prior positive statement only if lack of memory is feigned Prior testimony must have been given under oath subject to penalty of perjury at trial, hearing/other proceeding, or in a deposition Dont need to have had a chance to cross when the prior statement was made. Other proceeding? Testimony before a grand jury counts o tape recorded statement made under oath and taken in an immigration investigation. US v. Castro-Anyon o State v. Smith Victim goes to detective and gave a voluntary sworn statement that D assaulted her. Victim and detective signed each page. She then signed her statement under oath. Washington Supreme Court said this counted as an other proceeding. This would not fly in most federal courts.

PRIOR CONSISTENT STATEMENTS 801(D)(1)(B) Witness must be cross-examinable concerning the prior statement The statement must be consistent with his present testimony The statement MUST BE OFFERED TO REBUT a charge of recent fabrication or improper influence or motive. o The rule reaches to situations where charges of influence or motive are merely implied. o such as implying bias through witness relationship to D statement must be offered to rebut? A prior consistency tends to rebut an attack only if uttered before the supposed influence or motive came into play. Tome v. United States

Examples of Prior Consistent Statements Allowed Under the Common Law Ws credibility is attacked by prior inconsistent statement. W denies making statement. Prior consistent statement may be used to support denial of making such prior inconsistent statement (i.e., rehabilitate Ws credibility).

Ws memory is attacked. May use of a prior consistent statement showing Ws memory is the same at trial. Ws credibility is attacked by claims of recent fabrication or improper influence or motive. Prior consistent statement used to rebut this charge or recent fabrication or improper motive or influence.

Note: only allowed if the statement was made before the alleged fabrication, influence or motive came into existence. Better view of use of prior consistent statements since Tome Prior consistent statements not offered for the truth of the matter asserted are still allowed. However, if you use prior consistent statement to rebut claims of fabrication or improper influence or motive, then such statement must predate alleged fabrication, influence or motive. If satisfied, then such statement may be used substantively and to rehabilitate. IDENTIFICATION 801(D)(1)(C) Identifier has to testify at trial Subject to cross Must have perceived the person State v. Motta o A sketch produced by sketch artist an count as a prior identification. o Prior identification allows the admission of pretrial identifications as substantive proof of identity, not just as corroborative evidence. ADMISSION BY PARTY OPPONENT 801(D)(2)(A-E) Generally Decided to make these NOT hearsay on the belief that it is unlikely that they would be untrue Admissions can be admissible even without personal knowledge o Ex) boss tells insurer that the fire started when an employee set down the welding torch. Boss doesnt have personal knowledge that the admission is true. Doesnt matter if the admission is just an opinion. No AGAINST INTEREST requirement

Individual Admissions Admissions made while drunk still count. Some courts admit statements by severely injured and hospitalized people Courts dont tend to admit admissions made while asleep. Criminal trial o involuntary confessions are barred under 5th amendment, but only where an agent of the state plays some active role. confessions to police by severely injured or incapacitated Ds have been excluded. Absent a nolo contendre plea, guilty pleas are admissible as admissions in a civil case. Auto accidents o Where people routinely pay the fine, that can be used against you civillybut some states have passed laws disallowing these pleas in order to prevent people from litigating every ticket. Bruton v. United States o Bruton and Evans on trial for robbery. A witness testified that Evans made an oral confession indicating that he and Bruton had committed the robbery. In the joint trial, Evans does not testify, and prosecution admits the admission. Court gives a limiting instruction to the jury, that the confession is to be considered ONLY as against Evans. Both were convicted. USSC said confession should not have been admitted. o USSC says that in a criminal case, there is an unacceptable risk that the jury would not follow the instructions and would consider the confession against both defendants. The Confrontation Clause requires that Bruton be able to cross Evans on the statement. SO, IF EVANS TOOK THE STAND, THIS RULE WOULD NOT APPLY.

Example o Criminal prosecution for armed robbery against X and Y. X signs a written confession saying: Y and I committed the robbery. Can prosecution admit the statement if: o X does not testify? NOconfrontation clause problem. X testifies? YESno confrontation clause problem. Prosecution could also redact the statement, and admit statement that says only I committed the robbery.

Adoptive Admissions Admissions can be a statement spoken or written by another, which X manifests his adoption or belief in its truth. United States v. Hoosier o D told Rogers he was going to rob a bank. A few weeks later, Rogers ran into D and his girlfriend. Girlfriend said you should have seen the money they had last week, and spoke of bags of money. Statement admittedD would have denied the statement if it had been untrue. o Devitt thinks this is a pretty close callthere are situations in which you wouldnt have denied it: you knew she was kidding, you didnt respect her, you were afraid of her, you didnt think the statement justified a response, etc. Doyle v. Ohio o Agents witness drug deal. D claims agents werent able to see what happened, and that D was BUYING drugs, not selling them. State tries to use the fact that D never told that story to the cops to impeach D. USSC says not ok. o you cant use post-Miranda silence for impeachment OR substantively. Admissions by Speaking Agents pleadings from prior lawsuits, as well as pleadings superceded by amendment in the pending suit, are generally admissible against he party who filed them. Same goes for answers to rogs. o BUT, if you plead in the alternative, CANNOT use that against the party. If you expert testifies at trial in a way that goes against your theory of the case, doesnt constitute an admission by adoption on your partexperts are supposed to testify impartially. Employee either needs to have speaking authority, or the statement needs to be within the course and scope of employment. Manlandt v. Wild Canid Survival o Child dies, parents sue the man that was keeping the wolf in his yard and Wild Canid, the mans employer. o statement made by the man admissible: they were made when he was an agent or servant of WC and they concerned a matter within his agency, or employment (his custody of the wolf), and were made during the existence of that relationship. o the man didnt have personal knowledge of what happeneddidnt matter, dont have to have personal knowledge to make an admission. Indep contractors probably not agents or servantsbut statements might get in if party adopts contractors statements. Co-Conspirator Statements applies in both civil and criminal cases

Admissions by employees and agents

Coconspirator statements are admissible IF:

1. declarant and defendant conspired o o o o 2. conspiracy does NOT have to be charged or proven conspiracy has to be established by a preponderance of the evidence. Bourjaily v. United States Court in Bourjaily v. United States leaves open question whether the hearsay statement alone would be sufficient evidence to establish the conspiracythe FRE says that the statement alone is NOT sufficient. Doesnt matter if charged with conspiracy and found not guiltycourt could still find that the conspiracy took place, since the standard is different (reasonable doubt v. preponderance of the evidence). declarants statement furthered the conspiracy o o Problem 4-H. Drugs Across the Border. P. 225 Testimony by Connie describing what Bud told her in the bar (Arlen fronted us the buy money) Declarant (Bud) conspired with D (Bud and Carol) During coursesure, they havent gotten the drugs yet

Furtherance: NO. This statement is not made in furtherance of the conspiracyjust describing the conspiracy does not constitute in furtherance Statement made during conspiracy, AND in furtherance. Statement was made to encourage Don to buy the drugs.

Testimony by Don describing what Arlen said (Buds gone south to make the buy)

o 3.

Testimony by the DEA agent describing what Carol told him (Bud made the buy)

Not in furtherance declarants statement was made during the course of the conspiratorial venture

PERFORMATIVE CONDUCT analysis may fall under statement, or truth of the matter asserted, or both. United States v. Singer Letter sent to two Ds at the same address containing notice to terminate their tenancy. D objected that it was hearsay court disagrees o o o o If the letter was submitted to assert that the Ds lived together, then Hearsay. BUT, admissible nonhearsay because its purpose is to imply from Ls behavior (mailing the letter) that D lived there. Mailing the notice is an actionthe act of evicting D Some nonverbal conduct may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief in the existence of the condition may be inferred. After cops bust illegal bookmaking or drug operations, often take incoming phone callsmost courts say that when the agent who takes the call testifies to the substance of what they hear, thats not hearsay. call to a bookiethe mere fact of saying the words has a performative aspect Liescould argue that a lie is not hearsay because not offered to prove the truth of the matter asserted. Could also say not hearsay because the lie is conduct. Photo or video o Not hearsay, just preserves what you saw. o COULD be intended to assert something, and thus be hearsay, if video is staged. Courts often favor the performative aspect, in order to say something is not hearsay and let it in.

G. HARD CASES THE BORDERLAND OF HEARSAY

Classification Matters If nonassertive conduct hearsay only if intended by the actor as an assertion and burden is on objecting party Lying as Hearsay Ed prosecuted for bank robbery his Wife said hes been out of state (lie) Could be not offered for truth of matter asserted but dangers exst Nonassertive conduct and could be seen as a 2 step inference to show that wife assumed hub to be guilty. o FRE excludes this tho so would be ok under FRE Other objections available too irrelevance, lack of PK, improper opinion E.

HEARSAY EXCEPTIONS
C. 803 - UNRESTRICTED EXCEPTIONS AVAILABILITY OF DECLARANT IMMATERIAL JUDGE to perform a 104(a) analysis to determine whether an exception or not. FRE 805 Double Hearsay Each part of the combined statements must conform with an exception

PRESENT SENSE IMPRESSIONa statement describing or explaining an event or condition made while declarant was perceiving the event or condition, or immediately thereafter. rely on notions of spontaneity and immediacy

Requirements:

(1) Perceiving - can describe any event or condtion participation by the declarant is not required o proof of declarants perception BY his statement often ok, especially when declarant is identified. o What person hearfd and whats described on the phone is also ok (2) Descriptive - subject mater of the statement is limited to description or explanation of the event or condition. o exception is useful when it comes to observations of vehicles o Houston v Davis (landmark) woman comments to man (as they are riding in car): that ppl in passing car must be drunk and wld find them wrecked on the street the speed theyre at. Admitted to prove manner of driving

(3) Immediacy - made while perceiving or immediately thereafter.

Nuttall v. Reading Co. Wife overheard husband talking to his boss saying that he cant come in, and then responding that he guess hell have to come in then. Although wife had no personal knowledge of the statements made by the boss, she did hear her husband characterize the statements as they were being made to him Examples Dying from poisoned injection, victim wrote a note purporting to identify the person who poisoned him, two hours after suffering a cardiac arrestnot present sense impression Cops stop D to search for drugs and escort her 100 feet or so, then ask a person with bags whether he has any luggage belonging to D and he replies thats the bag she gave meyes; statement was contemporaneous because interval between picking up bags and speaking was extremely short Moments after accident, W arrives and hears driver say - passenger grabbed the wheelyes present sense impression Booth v State booth for murder. State presents E that R talked to another on the phone on day of murder and was told Brenda is talking to some guy at the door (other E showed booth was at house of brendas friend. Admitted.

EXCITED UTTERANCE a statement (2) relating to a (1) startling event or condition (3) made while the declarant was under the stress of excitement caused by the event or condition. Usually in: (1) accident (2) violent crime and (3) child abuse cases Requirements

Exciting Event assuring personal knowledge and full perception 2. Speaker Excited stress of excitement reduces concern over candor. Think: Person under circumstances be excited?
1. o 3. o can last minutes and hours unlike present sense impression Murphy v. Ball post-accident statement by a driver saying he had to call on a customer and was in a bit of a hurry to get home. admitted since explaining accident satisfied the relational requirement.

Must relate to the Exciting Event (looser than present sense impression in that it need only relate to not describe)

Time element: exception lasts as long as the duration of the state of excitement
Long lapse of time ok if the lapse was due to the declarant drifting in and out of consciousnessbut statement should come shortly after being conscious or lucid. Excitement may be rekindled long after the event

participation of the declarant is not required.

Statement can be made by a bystander. Increasing number of courts allow proof if the startling event to be proved by the statement itself Subject matter need only relate to the startling event or condition United States v. Iron Shell D accused of sexual assault. Victim spoke with cops. Problems with victims discussion with cops: o Lapse of time about 45-75 minutes after assault o o
th

Statements were in response to an inquiry but the only question asked was what happened. Lucy was not crying when giving the statements. Could this be Present Sense Impressions?! More than likely no because immediacy

US v. Arnold (6 cir 07)

Shortly after a man threatened a woman with a handgun, she told the polic what happened didnt testify but statement admitted. out of ct statement prompted By startling event can qualify as excited utterances even if the E failsto show precisely how much time elapsed btwn event and statement Lapse of time If statements were in response to an inquiry Age of declarant o Devitt doesnt think young age would necessarily mean that the declarant would be more excitedwould seem that someone older who understands what happened to them would be more likely to be excited. Physical or mental condition of the declarant Characteristics of the event Subject matter of the statements

Factors to consider when determining whether offered testimony was excited utterance

PRESENT SENSE VS. EXCITED UTTERANCE Present Sense o Any event or condition o o Statement must describe or explain the event Made while perceiving or immediately thereafter

Excited utterance o Starling event or condition o o Statement need only relate to the startling event Made while declarant under the stress of excitement caused by the event.

THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITIONa statement of the declarants then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarants will.

Direct evidence of state of mind is hearsay, but is excepted under 803(3). Circumstantial evidence of state of mind is
NOT hearsay under 801(c).

PAST feelings are NOT covered EXCEPT in will situation. Two questions to ask: Is it used to prove past, present, or future conduct? o Only ok if going to prove FUTURE conduct, UNLESS will situation Is it the future behavior of the declarant or someone else at issue o MUST go to prove conduct of the declarant. Declarants then existing physical condition o o o 2. o o 3. 4. My head aches not 3 days ago my head ached. His hand hurt to show that he didnt play violin later inferences. Using personal injury cases doesnt need to be right after injury just a current state of mind. My arm broke in the crash, and I cant move it. Not to prove that he was in a crash but that at that moment he couldnt move his arm. Doesnt usually apply to statement of fear by V in homicide (esp when describes anothers conduct, unless Vs state of mind is itself an issue. His later conduct o Did she embark on a journey, her intent to go ro not go bears on this ques. Facts about his will.

Four Distinct Uses 1.

His then existing mental or emotional condition

Mutual Life v. Hillmon A statement of future intent, if offered to prove that the declarant actually acted on that intent, falls within the then existing state of mind exception. But CANNOT use the future intent to prove behavior of someone OTHER THAN the declarantthe RULE is LIMITING Hilmon but admitted to show that Walter intended to do so and that he might have that his body is the one found. Referring to Ike: Hes my son, and Im going to take care of him. o Do we need the will exception to get to this statement? o Refers to future conduct of declarantso wouldnt need to get to will exception. So, admissible under 803(3)

Daniels Will

Im going to do my will this weekend. At my age, its a good idea not to let these things drift. o Same answer as above. Refers to future conduct of declarantadmissible In January 1986 Daniel talked again with Jim. Well, he said, Im taking care of my son Ike. Franks earning enough, and Ive given him plenty. Ike should remember me fondly, even though we dont always get along. o

This is PAST conductso you have to use the wills exception.

Well, I just did my will. I finally gave in. Since Christmas, Helen has been after me like you wouldnt believe. Theres been no peace in the house, so I had to do it. I had to give in and take care of her and Ike. What the hell, so she won. She gets the house, and the stock too, which she doesnt deserve, she and that boy of hers. o

Same as abovealso need the wills exception to get it in.

STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENTmust be reasonably pertinent to diagnosis/treatment.

Requirements 1. Condition or symptom - reaches history and cause of issue. Statements relating to cause or external source 2. Medical purpose must be made for the purpose of obtaining treatment or diagnosis. 3. Pertinent statement must be pertinent to the treatment or diagnosis sought ( so no statements pointing blame) 4. By, to whom
statements of fault would not ordinarily qualify under this rule commonwealth v smith ID of perpetrator is not pertinent to med treatment! statements need not be made to physician to qualifystatements to hospital attendants, ambulance drivers, or even members of the family may be included; statements to care takers who bring people in for treatment; statements between physicians discussing giving care to their patients. medical diagnosis or treatment? To allow situations in litigation Blake v. State Statements attributing fault NORMALLY excluded EXCEPT in child sexual assault cases How to test/justify admission of identity/fault statements: o Consistent with purposes of treatment o Content of statement reasonably relied upon by a physician in treatment or diagnosis.

RECORDED RECOLLECTION Requirements a. b. c. d. e. f. Existences of a memo or record Must concern a matter about which the witness once had knowledge Must correctly reflect such knowledge of the witness The witness must have made or adopted the memo or record Must have made or adopted while the matter was fresh in the witness memory. Insufficient recollection to enable witness to testify fully and accurately.

If admitted, the record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. We dont want to give E MORE weight by giving it to the jury, we want to give it the SAME weight as testimony. Ohio v. Scott

Criminal trial. Witness gave written statement to belief. At trial, witness couldnt really remember exactly what happened. Prosecution doesnt really try to refresh recollection Wants to get in the statement. If he refreshes her recollection and she remembers, cant get the statement in. o Court lets the statement in.

RECORDS OF REGULARLY CONDUCTED ACTIVITYBusiness Records Exception The Test/Requirements. Is it: a. b. c. d. REGULAR: reaches only records kept in the course of a regularly conducted business activity REGULAR: regular practice of that business to make the record. AT: record made at or near the time of the events recorded therein. PERSONAL KNOLWEDGE: made by a person with PK or made from info transmitted by a person w/ PK / things of a personal nature excluded the source of the information and each other person participating in making the business record must be acting in the routine of the business. Indications of untrustworthiness can throw it outside the realm of business exception

Even illegal enterprises can have business recordsjust need an organized system with some basis of regular routine.

Indications of untrustworthiness

Is litigation anticipated?
o o Courts are likely to say that diagnosis made by doctor when doctor sought for litigation is not trustworthy Most modern cts reject accident reportsesp when prepared by business or enterprise that is in trouble.

Whats the motive for creation of the record?

Petrocelli v. Gallison p. 273 Petrocelli goes in for operation, Dr. Gallison performs operation. Operation doesnt make Petrocelli feel betterhe goes to another doctor. Theres some question as to whether there was a nerve severed or not. Wife says Gallison told her he cut the nerve. o Admissiblenot hearsay because excluded under 801(d)admission by party opponent Petrocelli tries to use report of Schwartz (doctor Petrocelli sees after Gallison) that says nerve was severed o Schwartz isnt called. Why not? Bc Schwartz might say that the statement was just told to him by Petros. o

Record admissible under 803(6)

Meets regular regular at requirements. BUT, fear that personal knowledge isnt satisfiedcourt thinks statement came from Petrocelliand Petro wasnt acting in course of business when speaking to Swartz. Thus business chain is brokencannot admit solely under 803(6).

What could Petros have done? o Use 803(6) to get the record in. To get the statement that came from Petro in, use 803(4)statements made to doctor for purposes of treatment or diagnosis. Petro told Swartz nerve was cut for purposes of treatment. o o SOshould have used both 803(4) and 803(6). EVEN IF STATEMENT WAS MADE BY WIFE, STATEMENT MIGHT GET IN (sometimes family members drag in their family, and their statements are thus admissible).

Changing Petro facts: o Petro tells Swartz he had surgery and hasnt felt pain, and Swartz writes that down. Now Petro sues Gallison. How can Gallison get the record in? 803(6) to get in the record, 801(d) to get in the party opponent admission. Do NOT need personal knowledge for admission by party opponent.

Norcon v Kotowski D appealed from a jury verdict in favor of P in sex harassment suit on the basis that lower ct improperly admitted a 3 pg, handwritten memo under the official bus-records exception to hearsay rule. o Allowed.

ABSENCE OF ENTRY IN RECORDS KEPT IN ACCORDANCE WITH THE PROVISION OF PARAGRAPH VI. PUBLIC RECORDS AND REPORTS Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth

(A) the activities of the office or agency, or o treasury records, land office records, pension office records, etc. (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or o cant get around the use restrictions in criminal cases by relying on 803(6) business records exception. (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. o o Cops investigative findings CAN be based upon statements by outside witnesses, BUT, cannot be used against criminal Ds, unless the criminal D is the government. Factors that indicate lack of untrustworthiness Timeliness; special skill; whether there was a hearing held ;special motivational questions

Baker v. Elcona Homes Cops reports can be based on hearsay statements by indivs, but hearsay statements in report CANNOT be admitted.

RECORDS OF VITAL STATISTICS ABSENCE OF PUBLIC RECORD OR ENTRYMUST HAVE DILIGENT SEARCH RECORDS OF RELIGIOUS ORGANIZATIONS MARRIAGE, BAPTISMAL, AND SIMILAR CERTIFICATES FAMILY RECORDS RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY STATEMENTS IN ANCIENT DOCUMENTS. MARKET REPORTS, COMMERCIAL PUBLICATIONS LEARNED TREATISES Must be: authoritative and brought to experts attention. foundational requirements o on direct: establish that the doctor relied on the treatise o

on cross: call it to the attention of the expert

examples: technical books, safety codes, professional treatises.

REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY REPUTATION AS TO CHARACTER reputation of a persons character among associates or in the community

JUDGMENT OF PREVIOUS CONVICTION JUDGMENT AS TO PERSONAL, FAMILY, OR GENERAL HISTORY, OR BOUNDARIES DEVITTS EVIDENCE PROBLEMJOES MURDER TRIAL Evidence by Joes former girlfriend that Joe has a reputation in the local community as being a very violent person Hearsay? Yes. its a statement, made by the community, made out of court, offered to prove the truth of the matter asserted (Joe is violent) BUT, you can get it out under another rule, too o Character evidence under 404(a)cannot offer reputation of accused unless in rebuttal to character evidence offered by accusedbut this evidence is offered during prosecutions case in chief

Testimony from Sally, a witness, indicating that she saw two men talking in the alley at around 10:30 p.m. on June 1, 1999. On cross, Sally admits she simply cannot say whether the D Joe was one of the people she saw in the alley that evening.
NOT hearsaySally is testifying as to personal knowledge of what happened.

Testimony from Officer Smith that on June 3, 1999 Sally, after carefully looking at ten men in a police lineup pointed to Joe and said I think that man was one of the people I saw in the alley that night. Hearsay?

Statement? Yes Made out of court? Yes Offered to prove the truth of the matter asserted? Yes Otherwise excluded by 801(d)? o YES801(d)(1)(C): the declarant testifies at the trial or hearing and is subject to cross concerning the statement, and the statement isone of identification of a person made after perceiving the person. o So, Sally must have testified (she did) and be subject to cross. Then cop can testify wt happened at lineup.

SONOT HEARSAY because defined out by 801(d)

Testimony from Lt. Johnson that he was speaking to Sam on the phone at around 10:00 p.m. on June 1, 1999, and that Sam said I have to goa slime just walked and he looks unhappy. Hearsay?
Statement? Yes Made out of court? Yes Offered to prove the truth of the matter asserted? Yes Otherwise excluded by 801(d)? No Exception to hearsay? YESpresent sense impression

Testimony from Terry that on May 31, 1999, while having breakfast with Ty (a former business acquaintance), Ty said My buddy Joe and I have to pay a visit to this guy tomorrow? Hearsay?
Exception? Hillmon and 803(3) 803(3): Then existing mental, emotional, or physical condition o past, present, or future conduct? Future. o Offered to prove what WHO did? Not the declarant. Can a statement be offered to prove action and conformity by the declarants statement by someone else? NODevitt thinks its the better view that you cant.

ACN to 803(3) The exclusion of statements of memory or belief to prove the fact remembered or believed is necessary to
avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement to serve as basis for inference of happening of event which produced the state of mind.

D. 804 EXCEPTIONS: DECLARANT UNAVAILABLE

DEFINITION OF UNAVAILABILITY unavailability includes situations in which the declarant: 1. is exempted by ruling of the court on ground of privilege frm testifying concerning subj matter of the declarants statement; or o o o 2. 3. o o o rule contemplates declarant actually taking the stand and declaring privilege blanket assertion of privilege is not enough rule is somewhat relaxed in criminal casesunavailable because of right not to self-incriminate also contemplates declarant taking the stand declarant takes the stand the same witness can be subject to cross under 801(d)(1) and still be unavailable under 804. declarant might not be able to testify as to the actual subject matter of the statement he made, BUT he might remember enough about making the statement that he can still be subject to cross about the statement (thus satisfying 801(d)(1)). 4. 5. is unable to be present or testify at hearing because of death or then existing physical or mental illness or infirmity; or o being pregnant could fit here is absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance (or, in the case of (b)(2), (3), or (4), the declarants attendance or testimony) by process or other reasonable means

persists in refusing to testify concerning subj matter of declarants statement despite an order of the court to do so; or testifies as to the lack of memory of the subject matter of the declarants statement; or

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or in the case of (b)(2) designed primarily to require that an attempt be made to depose a witness, as well as seek his attendance, as a precondition of the witness being deemed unavailable. Attempt to depose declarant is NOT required when using declarants former testimony under (b)(1)

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, liability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

Cant kill the witness

FORMER TESTIMONY Three Requirements 1. 2. 3. Declarant must be unavailable at trial

Former testimony must be from a trial, preliminary hearing, deposition, administrative hearing, etc.
1. The language does not require a judicial proceedingcan also be an administrative proceeding Party against whom former testimony is offered (or in a civil casepredecessor in interest) had the opportunity and similar motive

to cross-examine the declarant.

It does NOT encompass grand jury testimony when offered against the criminal Dbecause a criminal D does not have an opportunity to cross a witness during a grand jury testimony. This exception requires a prior chance to cross the declarant; the exception for prior inconsistent statements in 801(d)(1)(A) requires a present chance to cross the declarant concerning his previous statement. Lloyd v. American Export Lines o Lloyd sues AML. AML sues Alvarez. Alvarez sues AML. o Coast guard hearing against Lloyd, triggered by those lawsuits. Alvarez and Lloyd testify at the hearing. Lloyd disappears after the proceedingso the first lawsuit is gone. Alvarez does not dismiss his claim, though, so the other two lawsuits continue. AML wants to use Lloyds testimony during Coast Guard proceeding in their case against Alvarez. BUTAlvarez didnt have an opportunity to cross Lloyd at the coast guard hearing.

Court says that Coast Guards motive was aligned with the same interests as Alvarez, and therefore had the
opportunity and ability to do exactly what Alvarez would have done.

Why no depo requirement here? Former testimony is former testimonyno need to get another testimony through depo STATEMENT UNDER BELIEF OF IMPENDING DEATHin a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarants death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. dont actually have to diebut DO have to be unavailable at trial.

STATEMENT AGAINST INTEREST such that a reasonable person in the declarants position would not have made the statement unless believing it to be true. a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. if the statement is that of a party, offered by his opponent, it comes in as an admission under 801(d)(2), and there is no occasion to inquire whether it is against interest, since that is not a condition precedent to admissibility of admissions by opponents. Williamson v. US o Df contended that ct erred in allowing the testimony of DEA agent in court who related arguably self-inculpatory statements made out of court to him by harris, on eof Dfs employees, regarding possession in transport of cocaine. Not just implicating himself but Df too not allowed. STATEMENT OF PERSONAL OR FAMILY HISTORY FORFEITURE BY WRONGDOINGa statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

E. CATCHALL/RESIDUAL EXCEPTIONS
Other stuff thats just as reliable can come in according to the common law of the courts Requirements Circumstantial guarantees of trustworthiness Offered to prove a material fact Statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts The purposes of the hearsay rules will be best served by admission

Notice requirement Factors to consider Not a lot of suggestivenessso not in response to interrogation Statement made shortly in time after incident

Credibility of witness Courts use this to admit child victim statements Example case: Guy dies, family sues cigarette company? Cigarette company files MSJ, claiming no proof that dead guy smoked their cigarettes. One statement by the dead guy that said I used to smoke Kools (cigarettes made by D). Cigarette company says that statement is inadmissible hearsay evidence. Not admission by party opponentbecause the statement was made by P 807? No indicia of trustworthinessits a self-serving statement What the attorney SHOULD HAVE DONE was file a lawsuit, before client died, and then noticed a deposition. Once the guy died, the depo would have been admissible as prior testimony (since declarant now dead and thus unavailable)

CONFRONTATION & COMPULSORY PROCESS A. CONFRONTATIONS CLAUSE: IMPORTANT RIGHTS TO CRIMINAL DEFENDANTS
What does confrontation mean? Criminal accused has the right to be at trial Criminal accused has the right to look at, see, confront the witnesses The right CAN be constitutionally modified (use of tvs, screens, etc.) Criminal accused has the right to cross examine Case law requires a higher standard of unavailability for a criminal trial than would be required for civil trial

Strict unavailability requirement imposed Barber v. Page Court decides that the confrontation clause obligates the prosecution to TRY to get the witness to appear in court Cross examination is a trial right Ohio v. Roberts 1980 USSC says that generally before prosecutor can lose hearsay statement, must show two things: o Declarant is unavailable OR prosecution has to get the declarant to testify o Satisfy the notion of indicia of reliability Statements firmly rooted in hearsay exceptions OR

Particularized guarantees of trustworthiness Crawford v. Washington USSC 2004 Facts: D stabbed man, whom he believed had tried to rape his wife. Question was whether or not the dead guy reached for something before or after being stabbedD said before, wife said might have been after. Prosecution uses wifes testimony. OK? Prior to Crawford? Prove unavailability AND Satisfy notion of indicia of reliability

What does Court say now?

o Testimonial statements: must be available and subject to cross; OR unavailability and a prior opportunity for cross-examination. This is a MAJOR departure from Roberts

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If cant meet this, Constitution BARS use of the statement altogether This has DONE AWAY WITH the search for reliability the test is NO LONGER to look for indicia of reliability (the firmly rooted or particularized guarantees of trustworthiness)

Nontestimonial statements Examples given by court Testimony at former trial Testimony at grand jury

Testimonial statements?

o o o

Testimony during police interrogations 911 recorded call? Courts have gone both ways Yes: questions asked similar to interrogation, and history says they are testimonial No: Not initiated in anticipation of litigation, different than the other examples

Whats not testimonial? Conversations among friends

What still comes in? see fn 6 Co conspirator statements and Dying declaration ok Questions left open after Crawford Does Roberts still apply to non-testimonial? Whats the prior opportunity of cross really mean? Recent cases Co conspirator statements outside Crawford decision Sexual abuse victims statements to forensic investigator were INADMISSIBLE Signed statemetn given to prosecutor under oath inadmissible under Crawfordno opportunity to cross Cop couldnt introduce statements by confidential informerTESTIMONIAL, so NOT admissible Entries in murder victims diary NOT testimonial