Evidence Outline

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I. General Provisions

Rule 101. Scope: FRE govern proceedings in federal courts and before federal magistrates.

Rule 102. Purpose and Construction: FRE shall be construed to secure fairness and elimination of unjustifiable expense and delay.

This rule introduces more flexibility into other rules of evid.

Rule 103. Rulings on Evidence:

(a) verdict below reversed only if appellate court believes the error in admitting or excluding evidence may have made a difference to the outcome--if it affects a party's substantial right

techniques for establishing error:

(1) objection: if one does not want the evidence offered to be admitted one must make a timely objection or motion to strike stating specific ground of objection.

(2) offer of proof: if one wants evidence admitted one must make known to the court the substance of the evidence.

(b) record and offer of ruling to effect what truly happened in the trial court.

(c) where practicable, the offer of proof shall be made outside the hearing of the jury--encourages advance rulings on prejudicial material out of the reach of the jury.

(d) plain error: an error noticeable at trial, regardless of whether it was brought to the attention of the court by objection or offer of proof will still be excluded.

Courts more willing to find plain error in criminal cases because life and liberty are involved.

Rule 104. Preliminary Questions:

(a) preliminary questions (concernining qualification of a witness, the existence of a privilege, or the admissability of evidence) shall be determined by the court who, in making its determination, is not bound by the FRE. The applicability of a particular rule of evidence often depends upon the existence of a condition.

(b) where relevence depends upon the condition of a particular fact, (conditional relevency) the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(c) preliminary hearings may be conducted outside the hearing of the jury.

(d) the accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues of the case.

(e) no limitation on admitting relevent or credible evid.

Rule 105. Limited Admissabilty: evidence can be, when necessary, limited or restricted for a particular purpose and the jury should be instructed accordingly.

Rule 106. Remainder of or Related Writings or Recorded Statements: another writing may have to be admitted out of fairness to supplement a writing already admitted. The purpose of this rule is to make admissable something which ought not to be excluded.

II. Relevancy and its Limits

A. Logical Relevance

Rule 401: definition: relevant means whether an item of evidence possesses sufficient probative value to justify receiving it as evidence ("having any tendency to make the existnce of any fact that is of consequence to the determination of the action mor probable or less probable") -- has to meet both the material and the relevency test. Does the item of evidence serve to prove the matter sought to be proved? Can the jury view the evidence and then draw valid and certain conclusions b.r.d.?

materiality: something that directly relates to the key issue in the case; an issue of consequence that can be argued.

relevance: the steps of logic.

3 part test in relevence:

--what am I trying to prove?

--is what I am trying to prove related to a substantial issue in the case i.e. is it material?

--as a logical matter, does the evidence support the proposition that I am trying to make i.e. is it relevant? --you do not have to prove the whole case with the piece of evidence, just one minor proposition.

trial court discretion as to what is relevant

Rule 402. Relevant evidence generally admissable; irrelevant evidence inadmissable:

Unless told otherwise, all relevant evidence comes in.

The exclusion of relevant evidence occurs in a variety of situations: the rules of civ. pro., the rule of crim. pro., the rules of bktcy, acts of congress, by const. considerations.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time:

Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by undue delay, waste of time, or needless presentation of cumulative evidence.

State v. Chapple: D claimed admission of photographs of the murder victim won't help to prove a material fact. The fact that there was a murder is not in dispute--only the fact that the D was or was not the murderer. The effect the photos may have on the jury (may have inflamed the minds of the jury or impaired their objectivity) substantially outweighed their probative value.

To mitigate prejudice, tell the judge ahead of time that you don't want the jury to know a particular detaial or fact i.e. the jury may pick out a witness but they don't have to know its from a mug shot.

C. Pragmatic Relevance

People v. Collins: Prosecutor, having a difficulty in establishing identity of perpetrators of crime brought in an instructor of math to bolster I.D. and proceeded ot assume probability factors.

problems w/admissability of products rule:

--authentication -- no basis for the numbers

--traits were not independant -- the product rule depends upon the fact that each product is independant

--the product rule doesn't tell us its this couple that committed the crime, only that a random couple w/these characteristics committed the crime -- the description may fit more than one couple

--illogic in working backwards

W/statistical data (cold hard numbers) the jury has a tendency to be overwhelmed and distracted causing them to rely on logically irrelevant expert demonstration.

D. Character evidence

When faced w/character evid. ask:

--what is the evid. being used for? (to prove character or an element of the crime)

--how can I prove it?

--is it civil or criminal? (if civil and used to prove propensity --> can't admit it.

1. Prior Crimes & Similar Occurances

Rule 404. Character Evidence Not Admissable to Prove Conduct w/exceptions: (the balancing test has already been done)

Suggestion in advisory committee note that character evid. is of slight probative value and may be unfairly prejudicial. It also tends to distract from the main question of what actually happened.

(a) generally can't admit character evidence to prove propensity in criminal cases except (never in civilcase b/c the char. evid. has little probative value and the stakes aren't as high as in a criminal case where we want to give D every possible break since his liberty is on the verge of being taken away):

(1) evidence of a pertinent trait of character offered by the accused and then by prosecution to rebut the same.

(2) evidence of a pertinent trait of character of the victim offered by the accused and then by the prosecution to rebut the same OR evidence of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that victim was first aggressor.

--basically under (1) and (2), the prosecution can only admit character evid. if D himself initiates it

(3) evidence of character of witness (to impeach).

--If character evidence cannot be brought in under 404(a)m it may be able to brought in under 404(b), a very powerful rule where prosecution does not have to wait until rebuttal as in 404(a) to bring in evid. of past acts.

(b) evid. of other crimes, wrongs, or acts is not admissable to prove propensity ONLY admissable for other purposes SUCH AS proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

ex: if D claims entrapment (D was seduced, solicitated or coerced, prosec. may bring in evid. that the act happened before thereby proving intent.

proposed amendment: don't let in evid. of past acts unless the probative value substantially outweighs the danger of unfair prejudice (reversal of 403).

403 can balance out 404(b) -- it may be unfairly prejucdicial to bring in evid. of past acts.

past acts only have to be proved by clear and convincing evidence (higher standard than 403).

2. Methods of Proving Character:

Rule 405:

(a) If character evid. is admissable, proof may be made as to reputation or in the form of an opinion. On cross-exam, inquiry is allowable into relevant specific instances of conduct (gives the prosecution the chance to do what he wouldn't be able to do in his case-in-chief, opportunity to impeach a witness or test credibility of witnesswhich makes you think twice about who you will put on the stand).

(b) In cases in which character or a trait is an essential element of a charge, claim, or defense (talking a/b a narrow type of case i.e. status, chastity, competency, honesty) proof may be made of specific instances of that person's conduct.

specific instances of conduct: most convincing and yet most prejudicial and may consume the most time b/c people will begin to rebut back and forth.

E. Habit and Custom

Rule 406. Habit: Evididence of habit is relevant to prove that conduct on a particular occasion was in conformity w/that habit.

Habit is highly persuasive as proof of one's conduct on a particular occasion (low danger of unfair prej. -- the things we do regularly are boring (usually used for business purposes)).

character: description of one's disposition

habit: describes one's general response to a repeated specific situation

to achieve status of habit: instances must be multiplied, consistency of behavior maintained, repetitive, automatic, mechanistic, in other words, anything that takes thought is not habit.

F. Subsequent Remedial Measures

Rule 407: Measures taken (don't have to be remedial) after an event (does not have to be an accident), which would have made the event less likely to occur, will not be admissable as evidence to prove negligence or culpable conduct.

Evidence will not be excluded when offered for another purpose SUCH AS proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. If not controverted there might be low probative value in bringing the evidence in under one of the exceptions.

purpose: to encourage or at least not to discourage people from taking steps to further safety -- if someone is repairing, that is exactly what we want them to do, we should reward this type of conduct not bring it into court.

theory: just b/c the world gets wiser does not mean that it was foolish before.

may lead to unfair prej. or confusion by jury: jury may not understand that someone may have taken measures not b/c they were neg. before but b/c they are being cautious.

in strict liability cases: in whether or not it makes sense for 407 to apply in SL cases depends upon a law and eco. analysis.

-- on the one hand, NO, b/c theres no fault at issue and no incentive to repair since cost of repair may be more than paying for the accident

-- on the other hand, YES, b/c D may have to pay X times for the same injury which would have been more than fixing the product to begin with

-- depends on the individual facts of each case i.e. the likelihood of more lawsuits vs. the likelihood of this one.

Flaminio v. Honda: F found 70% neg. American Honda found 30% neg. F hopes that if Japan Honda is found partly neg. his neg. will go down and he'll be able to recover.

Evid. of subsequent remedial measures cannot be introduced for purposes of feasibility b/c it wasn't controverted. Evid. can't be introduced for purposes of impeachment b/c you have to have something specific for impeachment not just the broad assertion that the motorcycle wasn't dangerous or else the rule will be exploded.

407 applies in diversity cases: the purpose of 407 is substantive policy not trial management as in FRCP. The procedural part is it prevents juries from drawing incorrect inferences from evidence of remedial measures. This is enough to establish the rule constitutional in diversity cases. The rule doesn't violate the Rules Enabling Act b/c the FRE were enacted by Congress they are statutes not Rules promulgated by the Supreme Court.

G. Settlement

Rule 408. Compromise and Offers to Compromise: evidence of furnishing or offering or promising to compromise a claim (civil cases) which was disputed as

to validity or amount is not admissible to prove liability for or invalidity of the claim.

Evid. of conduct or statements made in compromise negotiations is not admissible (all statements made i.e. the entire conversation).

Evid. which would have been discoverable anyway will not be excluded merely b/c it is presented in the course of compromise.

Evid. offered for another purpose will not be excluded.

purpose: to encourage compromises -- statements made during the course of negotiations may be motivated by a desire for peace rather than a concession of weakness or opinion.

exception: admissions will be not be excluded.

who determines what is a compromise: the judge during the course of preliminary questions (104).

Rule 409. Payment of Medical and Similar Expenses: evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury (protection less extensive than 408).

purpose: want to encourage assistance -- generally such admissions are made form a humane impulse not from admission of liability.

Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements: pleas of guilty which were later withdrawn, pleas of nolo contendere, statements made in the course of any proceedings under Rule 11 of crim. pro., or statements made in the course of plea discussions are inadmissible against the D.

Such statements are admissible if another statement which is admissible has been made and this one ought out of fairness to be considered contemporaneously with it.

purpose: to encourage pleas and compromises which lead to effective law administration.

H. Insurance

Rule 411. Liability Insurance: evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted in a neg. or wrongful manner. This evidence reveal little a/b the likelihood that a

person will act carelessly (evid. of ins. can't prove fault and evid. of lack of ins. can't prove lack of fault).A jury, on the other hand, may be prej. by this info.

Evid. as to whether a person has liability insurance is only admissible for another prupose SUCH AS proof of agency, ownership, control, or bias or prej. of a witness.

purpose: concern over what the jury may overvalue.

I. Rape Shield Laws

Rule 412. Sex Offense Cases; Relevence of a Victim's Past Behavior:

(a) evidence of reputation or opinion of past sexual acts of a victim is not admissible (the fact that a person has had a lot of sex does not mean she was consenting to be raped)

(b) Evidence of past sexual acts not admissible unless:

-- constitutionally required

-- source of semen is disputed

-- consent is disputed and the evid. is of past acts w/the accused

(c) (1) accused must give prior notice of his intent to use evid. and submit an offer of proof

(2) the court will conduct a hearing in chambers to determine the admissibility of the evid. and will determine whether a condition of fact must be fulfilled

(3) the judge must balance the evid. even if it falls w/i the exceptions

purpose: to get rape victims to come forward, to protect a victims right to privacy, and to try and defeat an underlying sexism or characterization of women.

-- it may be very prejudicial for a jury to know a woman has had sex w/people she doesnot know or has had sex a lot.

III. Hearsay

A. Definition: an out of court (this court) statement by the declarant (only sometimes the witness) used to prove the truth of the matter asserted (whether something is hearsay depends on what it is being used for)

OR: an out of court statement by the declarant where the trier of fact is asked to believe that the statement is actually true.

--when you are testifying as to something that happened out of court, its an out of court statement even if the declarant is sitting in the witness box.

--if what you are trying to prove is the same as what is being asserted --> HEARSAY

--if what you ar trying to prove is different than what is being asserted --> NOT HEARSAY

1. the statement: (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended to be an assertion.

--declarative statements as opposed to exclamatory, imperative, or interrogatory statements

2. the declarant: the person who makes the statement.

B. Purpose of the Hearsay Rule

1. Historical: the right to confront your accusor began with Sir Walter Raleigh

--meaningless cross-exam if the declarant isn't in court to be cross-examined.

--can't witness the declarant's demeanor which may be used to tell whether someone is telling the truth.

2. Chance of ambiguity: declarant may not have meant the statement himself but the witness heard him wrong.

3. Chance of insincerity: declarant may not have believed the statement himself but he lied.

4. Chance of inaccurate perception: declarant may have meant the statement but he may have misperceived the event.

5. Chance of an erroneous memory: declarant may have believed the statement but may have an incorrect memory.

6. Underlying reasons:

a. no oath (heightens doubts a/b reliability of statement)

b. no chance for cross-examination (cross-examination is part of our legal culture -- great moments in the courtroom would lost w/o the power of cross-exam)

c. can't observe declarant's demeanor

d. extnded narrative

C. Assertive, Non-Assertive Conduct

Wright v. Doe D. Tatham

facts: a will was contested--the heirs of the will offered as evid. of mental competence of the deceased at the time he wrote the will, letters written to him

by acquaintences. The letters were business letters and other friendship correspondence, the type that would not be written to an insane person -- BUT NO DIRECT ASSETION OF SANITY.

issue: whether the letters which did not directly assert that the deceased was sane will be admitted or excluded as hearsay.

holding (Baron Parks): there is no distinction b/w words and non-assertive acitons. The letters can be implied as the TMA and thus are hearsay and are excluded as evid.

current majority view (FRE): tends to draw the distinction --assertion must be intended

--we tend to trust sincerity in non-verbal conduct more so than verbal and thus non-verbal may not be hearsay where verbal would

--the assertions in the letter would not be seen as "intended" and thus would not be considered hearsay and hence would have been admitted

--> note: can silence be an implied assertion?

D. Indirect Hearsay: not saying what someone said but saying what you did based upon their statement

--still hearsay b/c the witness is still trying to assert what the declarant said even though he is not directly saying it

--trying to manipulate the hearsay rule

--look at the causal connection is to determine whether its really hearsay

E. Not for the TMA -- not hearsay

1. Impeachment: can tell jury not to take the statement as the TMA but only to show that the witness has no credibility.

2. Verbal Acts: a statement itself may be an operative fact which gives rise to legal consequences (giving or accepting an offer, suing for slander). It would be impossible to perform the legal act w/o the words of significance. Likewise, it would be impossible to introduce the legal act as evidence w/o the words of significance. (compare problem 17 (a) & (b))--when words have ind. legal significance they are outside of the hearsay rule (prob. # 28).

3. Verbal Parts of Acts: situations in which a physical act is ambiguous, but words that accompany it resolve the ambiguity.

i.e. in handing over money to someone you say, "this is to repay you for the money you lent me."

4. Effect on the Listener: where an out of ct. statement is offered to show that the listener was put on notice, had certain knowledge, had a certain emotion, or behaved unreasonably.

i.e. used to show someone may have been acting in self-defense, under duress, w/o knowledge that he was harboring stolen goods (prob. # 25, that he was reasonable in his belief (prob. # 26).

5. State of Mind: a statement not offered to show its accuracy, but only to show the state of mind of the declarant i.e his knowledge, his sanity, his fear.

IV. Hearsay Exceptions

basically two ecuses for admitting hearsay:

--its dependable and trustworthy

--its necessary

FRE 801(d): statements which are not hearsay

A. Declarant Testifying

(1) The declarant testifies at the trial or hearing and is subject to cross-exam concerning the statement, and the statement is--

(A) inconsistent w/the declarant's testimony and was given under oath subject to the penalty of perjury at a trial or other proceeding (the House wanted the witness to be subject to to cross-exam at the time the statement was made which would then not allow grand jury testimony to come in).

--the statement now can be used as substantive evid. to prove the TMA, not just for impeachment purposes.

U.S. v. Dicaro

facts: a witness who had implicated the D in the crime when he testified in front of a grand jury subsequently claimed amnesia when he got to trial.

issue: whether the admission of the grand jury testimony violated the FRE and the Confrontation Clause when used as evid. when the witness could not remember his previous testimony.

--> note: is "not remembering" inconsistent with an earlier statement? We are very suspicious of witnesses who claim a memory loss.

holding: so long as the declarant is subject to cross-exam concerning his inconsistent statement, it will be admissable. The jury should be allowed to recognize the inconsistency in the statements and determine itself whidh statement reflects the truth or whether neither can be believable (someone who takes the 5th or someone who suffers total amnesia cannot be effectively crossexamined).

(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge that the witness was improperly influenced or that the statement was recently fabricated. Unlike the inconsistent statement, the consistent statement does not have to be made under oath or in a proceeding.

(C) identification of a person after perceiving him. If a person who gave a previous eyewitness ID is presently a witness at trial, the statement of ID will not be hearsay.

U.S. v. Owens

facts: a witness identified an attacker but later although he could remember IDing him, he could not remember the basis for the ID.

issue: whether a prior out of ct. ID is admissable

holding (Scalia): out of ct. IDs are generally preferable to in ct.room IDs b/c by the date of the trial, the witness's memory could fade. In addition, Congress knew a/b the possibility of a witness losing his memory and yet did nothting a/b it. When they wanted to draw a distinction they did (804(a)(3)--a non available witness). Further, the witness was, by definition subject to cross-examamination.

B. Admissions by a Party-Opponent (most frequently used exception to the hearsay rule)

--As a general rule a party's past words or acts may be offered as evid. against him.

--tend to be against one's own self interest.

--Reflects the values of the adversary system.

--you shouldn't say anything if you don't want it to go on record.

--Distinguishable from judicial admissions b/c you don't need personal knowledge to make the statement and have it not be hearsay (still need first hand knowledge to hear the admission)--as long as its relevant, what ever you said or did can be put into evid. by the opposing party.

801(d)(2) Admissions by party-opponent: the statement is offered against a party and is--

(A) the party's own statement in either ind. or rep. capacity.

(B) adoptive admissions: a statement of which a party has manifested an adoption or belief in its truth i.e stating that what another said is correct, or an implied adoption such as silence if taking into account all the circ. one's conduct or silence justifies the conclusion that one knowingly agreed.

(C) representative admissions: where one is authorized by a party to make a statement concerning a subject i.e an agent, lawyer, a company's books or records.

(D) by an agent concerning a matter w/i the scope of the agency, made during the existence of the relationship.

If there is a preliminary question as to whether someone is an agent, the judge may make that determination 104(a) and is not bound by the rules of evid. i.e. can find someone to be an agent b/c he said he is (not hearsay).

(E) by a co-conspirator during the course of and in furtherance of their conspiracy: justified on the theory that co-conspirators are partners in crime -- who will know better than your coherts what your plans are? and, w/o this exception, convictions will be hard to get.

does not require that there be a charge of conspiracy but can only be used to prove accomplice liabilty not the substantive crime

Bourjaily v. U.S.

facts: a co-consp. made a statement implicating the D.

issue: whether the court must establish by ind. evid. (not by the admission of the co-consp.) that a consp. existed and by what quantum of proof before it allows as admissable non-hearsay evidence the statement by the co-consp.

holding: the out of court statement may be used to make a prelim. determination (judge not bound by the rules of evid.) and the judge only has to find that a consp. exists by a perponderance of the evidence. The judge may consider the alleged statement as one of the factors in detemining whether the conspiracy existed (if the statement was the only evid. of a consp. there may be a different story). Since the statement was made during and in furtherance of the consp., it was properly admitted .

C. Unrestricted Exceptions

1. FRE 803: Availability Immaterial (but personal knowledge is required and thus the distinguishment b/w 803 and 801(d)(2)).

(1) Present Sense Impression: A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

-- statement msut be made contemporaneously w/event.

-- requirement of spontaneity prevents a self-serving attempt to manufacture evidence.

-- opinions allowed so long as it is an attempt to explain something that declarant is perceiving.

State v. Jones

facts: In a sexual assault case, the defendant, policeman denied that he was being chased by the plaintiff. Over a CB transmission, a state trooper heard two truckers talking a/b a car being chased by a state trooper and this evidence was admitted during trial.

issue: Whether the hearsay statements of two unknown individuals heard over a radio channel could be used as evid. in a charge against a police officer alleged to have sexually assaulted a motorist.

holding: The fact that the statements were made spontaneously w/no time for reflecitive thought outweighs the concern for fabrication, memory loss and misperception.

(2) Excited Utterances: statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

-- preliminary question whether someone was still under the stress or influence of the event--time factor varies and depends on the character of the transaction.

-- sincerity is question when the utterance isn't made immediately and boldly.

-- rationale: the event is so startling that the declarant's reflective capacity is eliminated.

-- declarant can be an unknown bystander and doesn't even have to be mentally competent.

-- broder than present sense impression rule b/c the statement here need only relate to the event.

-- criticism: excitement may in fact impair accuracy.

(3) Then existing mental, emotional, or physical condition: a statement of the declarant's then existing state of mind BUT NOT INCLUDING a statement of memory or belief to prove the fact remembered or believed UNLESS it relates to a will.

-- circumstantial SOM not used to prove TMA is not hearsay.

-- declarations that are direct evid. of SOM, indicative to one's then mental state, when SOM is in issue can be used to prove the present SOM or future conduct.

examples of proving present SOM: SOM at issue in criminal cases where declarant is defendant (intent to rob, kill). Statement of emotional suffering at issue in a suit for intentional infliction of emotional distress. Validity of a document asserted may depend on author's SOM.

examples of proving future conduct: a statement may be used to prove that a subsequent act took place, where the act is at issue.

Mutual Life v. Hillmon

facts: P, suing to recover on policies on the life of her husband, claimed that a body found was that of her husband. Ds claiming the body was someone else, tried to introduce letters written by the someone else in which he said that he planned to accompany P's husband on a trip.

holding: The letters, being the best available proof of his intention to go, should have been admitted. Intention made it more probable that he did go and that he went w/the 3rd party.

-- Most courts follow the Hillmon doctrine allow the statement of an intention to engage in an act w/another person to support the inference that the act was done and that the 3rd person also did the act.

-- criticism (by the House): the Rule should be limited to the declarant and not the 3rd party.

U.S. v. Pheaster: deceased declarations to his friends a/b his plans to meet a drug dealer were admitted as evid. b/c the Court followed the Advisory Committee's explicit allowance of the use of such testimony rather than the House Committee's explicit rejection of it.

-- Courts have been unwilling to allow statements of mental condition as circumstantial evidence that a prior event caused the mental state.

rationale: allowing such evid. would virtually abolish the hearsay rule.

Shepard v. U.S.

facts: Mrs. S. said, "Dr. S. has poisoned me" just before she died.

issue: Whether the statement could be used as evid. to prove that Dr. S. was the murderer.

holding: The statement was not a dying declaration b/c there was no consciousness by the declarant of her impending death or her abandonment of hope, as required for that exception. The statement was being used, not to prove her SOM but to prove an act by someone else. Declarations of intentions can be sharply distinguished from declarations of memory or belief of past acts which are inadmissable.

(4) Statements for purposes of medicla diagnosis or treatment: describing medical history, or past or present symptoms, or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

-- statement need not be made to a doctor, as long as its a statement made in connection w/procuring treatment and not for a self-serving interest, it will be admitted.

rationale: statements a/b a bodily condition, made to a physicaian, in connection w/treatment, carry a guarantee of reliability.

-- statements a/b cause will only be admitted if they seem reasonably related to treatment but statements a/b fault or identity will ordinarily not qualify.

statments made by physicians who don't treat but testify: FRE makes no distiction b/w physicians consulted for treatment and physicians consulted for testimony (the Advisory Committedd makes it clear that the Rule includes statements made to physicians made solely in order to enable hism to testify b/c the statement would come in anyway w/a limiting instruction to to the jury).

(5) Recorded Recollections: A rcorded recollection can be admitted as evidence so long as:

-- the memorandum relates to something of which the witness once had first-hand knowledge.

-- the record was made while fresh in the witness' memory.

-- witness now suffers an impairment of his memory of the events recorded.

-- the record must be shown to reflect the witness' memory accurately (does not require that the witness at trial be the person who made the record, only that the witness approved or adopted the record, after it was made, as being an accurate reflection of his knowledge).

(6) Records of regularly conducted activity: a memorandum made by a person w/knowledge, if kept in the courts of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum.

rationale: we assume trustworthiness in a record that the business itself is relying on.

history: Shopkeepers Rule: the complexities of modern business transacitons required that a business (merchant) could submit his books of account into evid. Gradually other statutes were passed to allow the same.

-- entries must be made in the routine of business.

-- record must be made by a person w/personal knowledge of the matter recorded.

-- entries must be made at or near the time of the matter recorded.

-- person who supplies the info. must have 1st hand knowledge and must do his reporting while working in the business (although the BUSINESS DUTY RULE has, unintentionally been eliminated by Congress when it revised the rule, the Advisory Committee anticipateds the continuation of this rule).

-- definition of business is broad.

Johnson v. Lutz

facts: an accident report prepared by a policeman based on info. supplied to him by people present at the scene of the crime was disputed as to whether it should be admissable.

holding: the rule was not intended to permt the receipt in evid. of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto.

rationale: there are no safeguards in the case of info. supplied by a third person who does not work for the business that is keeping the record.

Petrocelli v. Gallison

facts: A medical report contained a statement that a nerve was severed. P wanted to admit that statement as evid. in a malpractice report.

holding: The court found it was difficult to determine whether the doctors themselves found the nerve severed or if they recorded what the patient reported. It was not definitive that the record reflected the doctors opinion. Even if it does, under 403 it is too prej. against the D. The jury may think that just b/c its a doctors report it must be true.

Ps may have had a better argument under 803(4) but they sought admission exclusively and strategically under 803(6). You cannot decide a case on the basis of a theory that was never presented.

--> Under 103, if you don't make an exception, you lose it. You must make an offer of proof of what evid. you think should be brought in or else you lose it (unless there is plain error and the evid. would have come in anyway b/c the argument was right). The procedural error here is not plain error. The judge suspects in their motives that they strategically planned to use 803(6) so the evid. would have gotten in as a statement that a doctor made as opposed to getting it in under 803(4) where the jury would know the Ps themselves made the statement.

(8) Public records and reports: records setting forth (A) the activities of the office or agency, (B) matters observed pursuant to duty as to which there was a duty to report EXCLUDING in criminal cases matters observed by police, or (C) in civil actions and proceedings and against the Govt in a criminal case, findings of fact from an investigation (investigative reports cannot be used against a criminal D).

rationale: (A) we tend to trust our public records.

(B) police have a vested interest in prosecuting and the D has a 6th right to c.e. A police report, although made under duty of law, may not have been investigated properly and is nto as reliable as an observation by a public official.

(C) same rationale as B..

difference in language b/w (B) & (C): Subsection B by its literal language, doesn't allow the matters observed to be used by either the prosecution or the D. Subsection C allows the investigative report to be used against the Govt in criminal cases. Did Congress intend for this distinction since they didn't include the language in (B)? Or, is (B) drafted differently only b/c the language was hastily

added by the House, which was afraid that otherwise criminal Ds might be tried on the basis of police reports? (after all, the rule was drafted w/the criminal D in mind, so shouldn't he be able to bring in the report if he wants?)

-- matters observed under 803(8) will noly come in as findings of fact, not as a conclusion. And if 803(6) did not work, you can't go to 803(8) as a last resort--the policy reason is so clearly articulated in 803(8) that you cannot get around it.

Beech Aircraft v. Rainey: makes the distiction b/w findings of fact 803(8) and opinions or matters observed 803(6). So long as the investigative report is based on factual statements, the conslusions or opinions stated in it are admissable.

--a conclusion can come in based on evid. that would never otherwise come in.

rationale: the public officials have an individual sacred obligation to the govt which seems more important than not letting in the hearsay.

2. FRE 804: Declarant Unavailability

(a). definition of unavailability:

(1) exepted by privilege (p/p/p, att/client, right against self incrimination).

(2) refusal to testify.

(3) lack of memory of the event although can remember the statement made.

(4) dead or existing physical/mental infirmity.

(5) unable to procure declarant's attendance (must have made a reasonable attemtp to get the declarant in court). Court is most suspicious of this exception.

(b). exceptions when declarant is defined unavailable

(1) Former testimony: testimony given at another proceeding, if the party against whom the testimony is now offered, a predecessor in interest, had an opportunity and similar motive to c.e.

Lloyd v. American Export Lines Inc.

facts: The C.G had an administrative hearing in Japan and Lloyd was not found intoxicated nor was he found to be the agressor and thus not dangerous. In the next suit, Alverez v. the C.G, the C.G wanted to bring in evid. ofthe previous hearing and evid. of what L said while he was being c.e. by a C.G. prosecutor.

issue: Whether Lloyd's testimony can come in as a finding of fact by a public agency.

holding: 804(B)(1) allows prior testimony of an unavailable witness to be admissable when a party's predecessor in interest had an opportunity and similar motive to examinie the witness. Here, the court found the societal interest and th eprivate interest to be the same (basic interest of both was determining culpability and exacting a penalty).

--> The rule w/o the predecessor in interest language was less restrictive and would have allowed for this decision. Anyone w/a similar motive and interest in c.e could bring in the former testimony.

concurrence: the admission should have come in under 804(b)(5).

California v. Green

facts: declarant testified to police upon arrest and then again at a preliminary hearing. At trial, he remembered testifying but didn't rmember the actula event he testified a/b.

-- the problem was, the declarant was not abel to be subject to c.e. at the time he made the statement.

holding: the former statement was admissable and didn't violate the C.C b/c the declarant was present at the trial and had previously been c.e.

(2) Dying declarations: statement made by one who believes he is about to die.

rationale: necessity--no one else can testify once you are dead.

concept of hell--you don't want to go to death w/lies on your chest. You want to make peace. Someone on their death bed probably won't lie and take the chance of going to hell (really doesn't make as much sense today).

requirements: declarant must be aware of the imminence of death and the statement must relate to the cause or circumstances of the killing.

(3) Statement against interest: a statement so far contrary to the declarants pecuniary or proprietary interest, that a reasonable person in teh declarant's position would not have made the statement unless believing it to be true.

distinguished from 801(d)(2): have to be unavailable and have to have a personal knowledge at the time it was made that it was against your interest (that is the guarantee of reliability--persons

don't make statements against themselves unless they know they are true).

--> a present sense impression rule for unavailable witnesses used ot be part of th FRE (deleted). It didn't need to be said while the event was occuring.

803(24) and 804(b)(5): are the same except that one doesn't require availability and another must have an unavailable declarant.

Allows in statements if they have equivilant circumstantial guarantees of trustworthiness (does this mean that all the other exceptions are equally trustworthy?).

(A) statements must be offered as evid. of a material fact (401).

(B) statement is more probative than any other evid. that can be given and was procured through reasonable efforts (new way of thinking a/b hearsay--how bad do you need it?)

(C) general purpose of the rules and the interest of justice will b ebest served -- there is a procecural limitation: you must give notice w/i a reasonable time so the adversary can prepare a defense.

-- to decide what fits under the catch all exceptions, you must first determine what the hearsay rule was designed for and whether its ok to be losing vital testimony b/c of the rule.

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