statement offered against a party & is (A) party's own statement, either individual or representative capacity
- Confession of a crim D is admissible, but not if it is involuntary. Guilty plea is admissible as an admission, but still requires 403 balancing. Guilty plea to minor offense/ no contest plea not admissible
Rationale: most statements offered against an opponent were against opponent’s interest when she made them and the inability to cross examine declarant doesn’t exist when she is the declarant
Court TV Clip - Babysitter’s trial for shaking infant to death; Officer testified, he questioned her right after the act and she described the baby as fussy and said there bad days when she couldn’t get the baby to stop crying. D’s own statement admissible to show possible motive.
7.11 – Injured P claims she couldn’t work up to her full potential; Evidence that she billed clients for lots of hours after the accident. These are her own statements so admissible against her claim. BUT they would be hearsay if offered in her favor; not allowed to bolster own case
7.12 – OJ Simpson said, “take my blood test and we will see” - verbal act showing confidence in his innocence, thus this was an assertion which would tend to make this hearsay
801(d)(2)(B): Adoptive Admissions
statement offered against a party & is (B) a statement of which the party has manifested an adoption or belief in its truth
EX: Someone told B, “You didn’t stop for the light,” B said “I’m sorry, I didn’t,” B’s answer (w question) would be adoptive admission.
*Often in police interrogations yes responses and head nods are treated as adoptive admissions of question
4-Part Test for when silence be deemed an adoptive admission: D (1) heard and understood statement; & was (2) at liberty to respond/capable of denying it; under (3) circumstances that would naturally call for a response; but (4) did not respond/communicate denial
Clip - insurance fraud – insurer implies D burned the insured item; he responds, “I’m a poor man.” An employee who witnessed the conversation gives the testimony. Prosecution: When he made this accusation to D was it denied? W: No, he claimed he was a poor person. P: What tone of voice did he have? W: Guilty. P: his own statement being offered against him to show his admission. **The last question is objectionable though
7.13 – Undercover drug deal when asked for “a 50”; D reached for his bag, which contained 13 grams of 89% pure crack. No question D was at liberty to respond and failed to, but what about Q1 of the test – did he hear and understand the comment? Or Q3 – did the circumstances necessarily call for a response
Witnessed her father rape and kill her friend Susan. Prosecution argues D had the opportunity to defend himself when she visited him in jail and instead he only pointed to a jail notice sign: “Station may be monitored.” He does not deny a false accusation of murder. He was convicted, but on appeal the Court found that because he was exercising his right to silence so it cannot be used against him.
801(d)(2)(C) & (D): Statements of Agents – usually requires independent evidence
statement offered against a party & is (C) a statement by a person authorized by the party to make a statement concerning the subject [admissible against corp, but not against individual D unless authorized or directed to make the statement]or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship [statements made by agents within the scope of employment is admissible; no requirement that declarant have personal knowledge of facts underlying his statement]
Pet Wolf - Kid hurt where D’s employee kept a wolf, but no one actually saw how. (1) Note left on door “Sophie bit a child; I need to talk to you” = admissible against employee & center & 403 does not warrant their exclusion and (2) Board mtg minutes discussing Sophie biting the child = admissible against center (minutes served a representative capacity), but not employee bc he was not at the meeting.
7.15 – slip and fall on icy walkway –someone calls management to complain and then the guy shows up to fix it, “those guys on the day shift were supposed to shovel and salt, but they left early.” He showed up shortly after call, carrying a shovel and bucket & his statement shows knowledge – likely sufficient to show he’s an agent/employee speaking in connection with his employment.
statement offered against a party & is (E) made by a coconspirator during the course and in furtherance of the conspiracy
Brother’s Keeper – Double hearsay - hearsay within hearsay is not excluded if each part of the combined statements conforms with a hearsay exception. Delbert’s statement to brother – admission. Brother’s statement to trooper – statement of co-conspiratorso long as: (1) the statement was made when the conspiracy was still active and (2) that it was in furtherance of the conspiracy. If there ever was a conspiracy, there’s no way it was still active when the brother talked to the Trooper. Could possibly argue that a cover up is part of a conspiracy. BUT it could hardly be said that this instance was in furtherance of the conspiracy.
Bourjaily (1987) – Courts preliminary finding under 801(d)(2)(E) can consider the out-of-court statements that are subject of the admissibility inquiry. Gov entered statements made by accomplice implicating D in cocaine conspiracy. CL required independent proof (not allowed to consider the statements), but Court ruled 104 abolished that requirement. Proving conspiracy: (1) Judge applies 104(a) to determine if person can be a witness (by a preponderance of the evidence to make sure there was in-fact a conspiracy); (2) then Judge applies 104(b) to determine if conditional relevance is met (Huddleston standard); (3) then jury must apply beyond a reasonable doubt standard to determine if the conspiracy was committed. Rulebook p. 225 amendment – added “not only sufficient” language
7.16 – Another case of double hearsay – Y to N arguably an admission, but how do we know what Y really said since it was translated?Court could possibly use the statement itself to show the conspiracy was ongoing and the statement was in furtherance of the conspiracy (Bourjaily). N confessed to an undercover agent that heroin was coming into the country from Lebanon and tells them his cousin, Y, is coming in from Lebanon to meet him with a drug briefcase. Undercover agent tries to communicate with Y, but N is the translator because Y doesn’t speak English. Through translation Y says “It’s so strong when I was packing it my nose started bleeding.” During arrest, gunfire ensues and N is killed. 2nd circuit affirmed ruling the translation was admissible.
Availability of Declarant Immaterial: 803 - sometimes circumstantial guarantees of trustworthiness are sufficient to justify non-production of the declarant (even though he may be available)
Present Sense Impressions & Excited Utterances
(1): statement describing/explaining event/condition made while declarant was perceiving it or immediately thereafter. *Rationale: memory problems are slight
(2): statement relating to a startling event or condition made while declarant was under the stress of excitement.
*Rationale: Any motive to lie will be overcome by the shock of the starling event, and memory is also not a problem because the statement must be made close in time to the event
*Rationale– these circumstances temporarily still capacity for reflection and produces utterances free of conscious fabrication. *Duration of excitement is flexible - statement must occur while the event/condition is going on or immediately after it occurred
The Graduate Clip – D thinks he’s invited, but she calls the police and claims he’s a burglar. Possibly admissible under 803(1) present sense impression, but it’s definitely not an excited utterance 803(2) bc she is not excited. Not like grandma: “my goodness he’s flying”
7.29 Dog Mauling Judge OKs Testimony - Neighbor says, “That dog just bit me, You need to control your dog.” When husband came home, neighbor said, “As I was walking by, the dog lunged at me.” Judge ruled statements were admissible as excited utterances, but even if he rushed right home there would be a temporal disparity bw event and statement (kind of like a cooling off period; the excitement of the moment is over). Arguably she could still be in the heat of the moment, but this seems to be stretching it.
Statements of Then-Existing Condition: 803(3)
then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, & bodily health), but not including a statement of memory or belief to prove fact remembered/believed unless it relates to execution, revocation, identification, or terms of declarant's will Allows statement of fact to show person believed fact to be true, but prohibits feeling statements to prove remembered fact is true - “I saw Bill yesterday” admissible to show declarant believed he saw Bill when he made the statement, but inadmissible to prove he actually saw Bill. Allows proof as to whether a person had a plan and/or carried it out - “I went to the movies yesterday” is excludable hearsay if offered to prove declarant did go to the movies, BUT, “I plan to go to the movies tomorrow” is admissible to whether declarant went to the movies
Court TV Clip – D attempts to get victim’s friend to say victim said if she was pregnant she would have to disappear. It goes to her present attempt get of town. That’s why no body has been found. D didn’t murder his wife, she left, that explains these circumstances.
Mutual Life Insurance Co v. Hillmon (1892) – before federal rules; similar CL exception. Supreme Court said letters should have been admitted to show P’s then-present intention to show declarant had a plan and lend probability to the conclusion that he carried it out.
Shepard – 803(3) cannot be used to show belief. D, accused of murdering his wife, offered evidence that she was suicidal; Gov. rebutted by showing her statement of belief that D was killing her → Backward looking statement (not one of intention); could confuse the jury
Statements for Medical Diagnosis: 803(4)
Statements made for purposes of medical diagnosis/treatment describing 1) med. history or 2) symptoms, pain, or sensations, or 3) inception or general character of cause or source thereof insofar as reasonably pertinent to diagnosis/treatment
Rationale: no sincerity concern; patient tells the truth to get good medical treatment; *Statement of present bodily condition can be made to a layperson under 803(3). *To admit the WHO, prove it’s necessary info for dr. to reasonably treat patient, who is seldom related to diagnosis
Iron Shell (1980) - Dr Q&A w 9-year-old was admissible under 803(4) 2-part test: (1) when Dr’s motive is consistent with the rule’s purpose & (2) it’s reasonable for the physician to rely on info in diagnosis or treatment. Rationale: patient’s strong motive to tell the truth
7.35 Child’s statement to Dr about broken arm that “Daddy twisted it” was not admissible bc the “who” was not reasonably pertinent to diagnosis or treatment. Dissent: child abuse medical diagnosis is defined by who inflicted the injuries, children’s IDs are inherently reliable, & public policy is to protect children against abuse. But, see: Robinson – Supreme Court applied two-part test and found statements describing abuse were admissible bc (1) child made it during the course of treatment & nothing indicated intent was other than to obtain treatment & (2) dr’s testimony demonstrated cause of injuries and ID of abuser were critical to effective diagnosis and treatment.
8th and 1st circuits have held that if child abuser identified is a member of child’s home, child’s statements should not fall under the general rule and such statements are valid for proper treatment and diagnosis AND statements by young children to doctors are usually reasonably pertinent to treatment of the child. Note **Rules requiring doctors, teachers, and sometimes even lawyers – a duty to report potential child abuse cases
Refreshing Memory and Recorded Recollections 803(5)
A memo or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party
Rationale: past-recorded recollections cannot be self-proving. if they were, it could lead to abuses of the statement where witnesses may/may not have accurately recorded facts/details in the first place.
Rule 612: if a witness uses a writing to refresh memory for the purpose of testifying, either
(1) while testifying, or (2) before testifying, if the court determines it is necessary in the interests of justice
Elements: proponent of record must show the witness (1) had firsthand knowledge; (2) does not have adequate recollection to testify fully and accurately; (3) made record; & (4) can verify the accuracy of statement
The item used to refresh the witness’s memory is not offered as evidence – does not need to comply w/ the best evidence rule, does not need to he authenticated, and doesn’t have to comply with the hearsay rule. Present recollection refreshed is a testimonial process that has no connection w/ the hearsay doctrine, The doc that refreshes the witness’s memory is not allowed to be read to the jury or introduced as an exhibit. However, if it does satisfy the requirements of a hearsay exception it may be admitted.
Johnson (1998) – Witness gave a written statement to police naming D as murderer, but at trial he claimed he didn’t remember and wouldn’t testify the statement was correct when he wrote it. It was read into evidence under the past recorded recollection exception. BUT because the witness did not affirm the statement or anything in it and past-recorded recollections cannot be self-proven, it was inadmissible hearsay. *Note: If prosecution has a shaky witness, they should put him before grand jury then it would be under another exception.
Business Records: 803(6)
A memo, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make [that record] as shown by qualified expert or certification. **"business" includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
Rationale: Likely to be more accurate since they’re made for the purpose of running an enterprise rather than for some purpose in litigation
Business records elements: (1) Entry made at or near time of the occurrence of what it describes; (2) by or from info transmitted by a person with personal knowledge; (3) Kept in a normal course of regularly conducted business activity; (4) Must be the regular practice of that business activity to make the record
- Doc must be authenticated by either (1) witness testimony describing the record’s circumstances or (2) written certification by a person w/ knowledge certifying document meets the 4 requirements (the person just must know generally how the records were kept).
Palmer v. Hoffman (1943)- 803(6) allows business records to be admitted if made in the course of regular business, but the court would not allow RR accident report into evidence because the purpose of the engineer report was for litigation purposes, not for the regular management of the business.Note: Motive and opportunity to falsify are the primary factors in using this case to exclude records.
Virgneau (2000) – (before business records exception) records admissibility does not apply to statements contained within a business record that are made by one who is anoutsider to the business where the statements are offered for their truth). D convicted of $$ laundering. Gov. introduced banks money forms that D allegedly filled out. Since the forms were not redacted, they should NOT have been admitted for their truth. *If independent evidence that D was writer, they could’ve constituted a party-opponent admission.
Public Records & Reports: 803(8) & 803(10)
Records, reports, statements, or data compilations, in any form, setting forth (A) office/agencies activities or (B) matters observed pursuant to legal duty, excluding, however, in criminal cases matters observed by law enforcement officers/personnel, or (C) in civil cases and against gov. 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
to prove absence of a record, report, statement, or data compilation or nonoccurrence or nonexistence of a matter of which a record was regularly made & preserved. evidence in the form of a certification in accordance with 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
A Few Good Men - “flip to the page of the book that discusses code reds.” The absence of it in the training manual used to show the officer did whatever he did on his own. Non-verbal conduct is sometimes an assertion – i.e. absence of complaints is not an assertion and not hearsay bc it’s not obvious that lack of complaints really asserts that the product is okay.
Beech Aircraft - Navy plane crash and pilot families sue for products liability. Navy JAG report contains both facts and opinions
- House Judiciary Committee said that “factual findings” should be strictly construed and evaluations/opinions shall not be admissible, but Supreme Court found “provision for escape” in Rule’s final version: evaluative reports are admissible unless info sources or other circumstances indicate lack of trustworthiness. Thus reports otherwise admissible under 803(8)(C) are not inadmissible merely because they state a conclusion or opinion as long as conclusion is based on a factual investigation and satisfies Rules’ trustworthiness requirement.
Fn 11 – advisory committee proposed list of factors: (1) timeliness of investigation, (2) investigator’s skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared w a view to litigation (i.e. Hoffman)
Police Reports and Business Records p. 547 -552 - Rule 803(8) does not extend to the reports of police or evaluative reports if offered against the D in criminal cases. Police reports are also commonly excluded under 803(6) [Business Records Exception] b/c they are not objective. They do not have an independent purpose & are thus less trustworthy
Oates – report offered by gov chemist; gov chemist considered “other law enforcement personnel.” Advisory Committee: “In one respect the rule with respect to evaluative reports under 803(8)(C) is very specific: they are admissible only in civil cases and against the government in criminal cases in view of the almost certain collision with confrontation rights which would result from their use against an accused in a criminal case.” We should be wary of police reports involving criminal investigations to come in under 803(8)(B) and 803(8)(C). See pg 547. *803(8)(C) amended bc of D’s right to confrontation
Hayes - IRS tax examiner who testified at trial. Testimony offered into evidence as a business records exception. 803(8) only intended to apply to observations made by law enforcement officials at the scene of a crime or in investigating a crime, and not to reports of routine matters made in nonadversarial settings.
Weiland - You can’t use 803(6) as a backdoor to get in a report that’s not admissible under 803(8). Yet the court said that some of the information (fingerprint card and prison photo) were admissible. This is information about the defendant’s prior convictions. The court said this was done as a matter of routine. So it could come in. It was not done in an adversarial setting. The Court kind of ran in between Oates and Hayes
804(a) when declarant is unavailable
804(a): Unavailability defined. A declarant is unavailable if he: (1) Has a privilege permitting him to refuse to testify; (2) Refuses to testify about the subject matter of the statement;(3) Cannot remember the subject matter; (4) death or illness; or (5) Is absent & proponent has been unable to procure his attendance by process or other reasonable means
But, § 804(a) treats a declarant as notunavailableif it’s shown that proponent is responsible for creating the conditionthat would otherwise meet one of 804’s definitions of unavailability
804(b)(1): Past Testimony
Testimony given as a witness at another hearing or deposition (on compliance with law), if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had (1) an opportunity & (2) similar motive to develop testimony by direct, cross, or redirect
7.23 It was a civil suit and now there are criminal charges – D had the same opportunity, but not the same motive bc crim charges are much more serious (other things to consider – would insurance have covered him for civil liability, was plaintiff’s liability theory similar to criminal charges?
Similar Motive - whether the party resisting offered testimony had, at a prior proceeding, an interest of substantially similar intensity to prove/disprove the same side of a substantially similar issue.