Evidence Final Outline PDF

Evidence can be tangible or testimonial Tangible Evidence ○ Real Evidence (murder weapon) ○ Demonstrative evidence (charts/diagram) Testimonial Evidence ○ Refers to statements or assertions made by a witness under oath or affirmation typically...

Evidence can be tangible or testimonial Tangible Evidence ○ Real Evidence (murder weapon) ○ Demonstrative evidence (charts/diagram) Testimonial Evidence ○ Refers to statements or assertions made by a witness under oath or affirmation typically in a court of law or in legal proceedings (depositions, preliminary hearings, grand jury proceedings Evidence can also be direct or circumstantial ○ Direct: Evidence that directly proves the conclusion you are trying to establish. You don’t need any intervening inferences Ex: Confession, eye witness, video evidence ○ Circumstantial: Evidence that does not directly prove the result but when evaluating all surrounding circumstances, it will help prove the result Ex: running from police is circumstantial evidence of consciousness of guilt Relevance FRE Rules 401, 402, 403 govern relevance FRE 401: Test for relevant evidence, Evidence is relevant if: a) It has any tendency to make a fact more or less probable than it would be without the evidence; AND b) The fact is of consequence in determining the action ○ Facts of consequence include material facts, credibility of witness, elements of the crime/claim/defense, and/ or damages (within civil cases) FRE 402 (General admissibility of evidence) Relevant evidence is admissible unless any of the following provide otherwise: ○ US Constitution ○ Federal Statute ○ FRE rules; OR ○ Other rules provided by Supreme Court Irrelevant evidence is not admissible FRE 403 (Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons)  AKA: The balancing test- Probative value v. Prejudice The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: ○ unfair prejudice ○ confusing the issues ○ misleading the jury ○ undue delay ○ wasting time; or ○ needlessly presenting cumulative evidence (Policy Argument: We do not want an unreliable result.) Exceptions to admit evidence through relevance (Special rules under relevance) this is to prove relevance *Propensity as well* CHAMPIONS and DISVOW (both exceptions for admission) (disvow only allowed in criminal cases) Character- evidence of a persons character Habit Routine/habit way to get around rule of propensity After (susbequent precautions) Evidence of steps taken after injury Medical expenses Evidence of offer to pay medical expenses is not allowed to prove liability of their injury Plea (guilty plea) Typically not allowed to be admitted (even if it is a similar issue) (pleading guilty doesn’t mean you are, could be going for lesser sentence) Insurance Not allowed to show negligence or that a person acted wrongfully Allowed to show agency, ownership, or control (owner of mall has insurance for bloomingdales) Offers to settle (or compromise) Not allowed when proving the validity or the amount of the disputed claim No/Numerous prior similar happenings Allowed if enough similarities (substantial) and under similar circumstances Sex offenses Victim’s other sexual conduct Excpetions (criminal) ○ Is allowed if offered by D to show someone else committed the crime; ○ OR to show consent (we had sex 7 times befoer this) Exceptions Civil ○ Allowed if the proseuction/victim brings it up first ○ Needs to beat 403 balancing test (probative>prejudicial) Limiting Instructions If the court admits evidence against a party or for a purpose- but not against another party or for another purpose- the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. Motion in Limine Any party may make a motion in limine, which requests the court to make an evidentiary ruling before trial. Sometimes the rulings are preliminary and may be revisited by the judge at trial Authentification  A party must authenticate any tangible thing that he/she intends to offer into evidence FRE Rule 901- To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is ○ FRE Rule 901(b) are illustrations, not a list of exhaustive rules, authentication is flexible FRE Rule 901- Self- authenticated items will be admitted into evidence without any outside evidence of authenticity Character Evidence EXAM TIP: pay close attention to whether the case is civil or criminal FRE Rule 404(a) 1) Prohibited Uses a) Evidence of a person’s character or predisposition is not admissible to prove that on a particular occasion, the person acted in accordance with the character or trait. (in a Civil Case) 2) Exceptions are applicable for a Defendant or Victim in a Criminal Case a) Defendant can offer evidence of their own pertinent trait, and if the evidence is admitted, the prosecutor can offer evidence to rebut it. - 404(a) (2)(A) b) Defendant can offer evidence of a Victim’s pertinent trait. The prosecutor can then offer evidence to rebut it AND offer evidence that shows D has the same trait. - 404(a)(2)(B) i) ***D has to open the door BEFORE the prosecution can take action c) Special Rule for homicide cases, the prosecutor may offer evidence of the alleged victim’s trait for peacefulness to rebut evidence that the victim was the first aggressor. (assuming D is alleging self-defense/justification) FRE Rule 404(b): Crimes, Wrong Acts, or Other Acts  1) Prohibited Uses: Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion, the person acted in accordance with the character. 2) Permitted Uses: This evidence may be admissible for another purpose, such as proving knowledge, intent, plan, preparation opportunity, motive, identity, absence of mistake, or lack of accident. (KIPPOMIA) These Methods of Proving Character Below Come from FRE Rule 405: a) By Reputation or Opinion. A party may provide testimonial evidence to prove character on direct examination. The opposing counsel may cross- examine the character witness by inquiring into relevant specific instances of the person’s conduct. b) By Specific Instances of Conduct. When a person’s character is an essential part of a charge, claim, or defense the character or trait may be proved by relevant specific instances Breakdown FRE Rules applicable to Character Evidence: Defendant in a Criminal Case – 404(a)(2)(A) Issue (when character is an essential issue) – 405(b) Sex Crimes – 412-415 Victim in a Criminal Case – 404(a)(2)(B) Other Crimes & Bad Acts – 404(b) (KIPOMMIA) Witnesses – 607-609 Rule of Propensity- one may not prove that a person acted in a certain way because he has a natural tendency to do so Can’t say “oh he’s violent so he definitely started that fight” (natural tendency v. routine behavior is what distinguishes this from habit) Character Evidence normally not allowed but under DISVOW and KIPPOMIA it is (exceptions) DIVOW (only criminal cases) (404)(a) Defendant offers evidence himself (oh yeah I am a violent person) Issue- when character is an issue in a case Most likely a fraud case Most likely defamation case ○ Becuase their character is an issue/element in the case Sex Crimes D’s past sexual conduct ○ Only if it’s relevant (same crime), must have been charged Victim Defendant can use character evidence of victim to show thier character to show D isn’t liable (example: victim has been violent w someon in the past) Other crimes/wrongs/acts KIPPOMIA Witness- character evidence may be used to show the witnesses credibility or honesty KIPPOMIA Habit Habit is a regular practice of meeting a particular kind of situation with a certain type of conduct, or a reflex behavior in a specific set of circumstances FRE Rule 406: Habit; Routine Practice Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. (the more details, the more likely the behavior is a habit) Similar Happenings No specific rule under the FRE rules. Evidence that something happened many times or never happened is admissible if there are enough similarities. Similarities need to be substantial, needs to happen many times. C: Adams v. Toyota Facts- Man’s Toyota sped up when he applied the brakes. As a result, his car rear-ended another car, killing 3 people. Eventually, the family of the people who died sued Toyota due to the acceleration defect. Trial court allowed testimony from three witnesses to show similar happenings. Witnesses all claimed the same thing happened to their Toyota’s – all 1996 models, and all with over 100,000 miles. After losing the case, Toyota appealed on the basis that the trial court improperly allowed the evidence of similar happenings to come in. Holding- Incidents of similar happenings are admissible only if the incidents occurred under substantially similar circumstances to the incident in question. Herethe witnesses all testified that their Toyota cars accelerated when the brakes were applied, their cars all had over 100,000 miles, and were all 1996 models. Since these incidents were all substantially similar circumstances to the indecent in question, allowing the evidence of similar happenings was proper. C: Phillips v. Century LLC (Lack of Similar Happenings) Facts- P was wearing D’s headgear. While sparring, the headgear hit the bridge of P’s nose and ended up injuring him. P sued claiming that the headgear caused his injury. D testified that they sold over 100,000 units and that they never had a complaint. P objected Holding- The testimony that over 100,000 units were sold with no complaints was admissible to show the absence of similar happenings. Subsequent Remedial Measures FRE Rule 407 Steps taken after an accident, to make it less likely of reoccurrence, are not admissible. Why? Public policy. If this type of evidence were allowed, it would deter people from taking steps to make things safer. Exception: if the defendant claims that the remedial measure was not feasible, plaintiff can offer evidence to show that it actually was. C: Tuer v. Mcdonald Facts- π was to undergo surgery; was put on Heparin to stabilize; before operation, π was taken off Heparin; surgery was postponed; π died. After π’s death, hospital changed protocol as to taking patients off Heparin before surgery Issue- whether the subsequent happening of changing hospital procedure is admissible Holding- INADMISSIBLE. Anything done after an accident to try to make a similar accident less likely is not admissible. Reasoning- PUBLIC POLICY!!! This case is all about public policy to encourage ppl to change protocols to be safer. Guilty Pleas  FRE Rule 410 Typically not allowed to be admitted Offers to Pay Medical Expenses FRE Rule 409 Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury Hypo: P and D get in a car accident. At trial, P wants to testify that as P was being wheeled into an ambulance on a stretcher, D shouted “I’m so sorry, it’s all my fault! I’m going to pay for your medical bills, I promise!” Is P saying I’m going to pay for your medical bills, I promise!” admissible to prove liability? Answer: No. This is considered a promise to pay the medical expenses. The statement of “I’m going to pay all of your medical expenses is not admissible. Offers in Compromise FRE Rule 408 Offers to settle and actual settlements are not admissible to prove or disprove the validity or amount of a disputed claim. C: Davidson v. Prince Facts- π was injured by a cow that escaped from ∆’s truck. There is conflicting evidence as to how far π was from the cow… If he was close to the cow, it may be contributory negligence. The deposition said that he was 40 feet… but evidence shows he was 22 feet away. Letter from the π said 10 feet. The defendant offers the letter stating 10 feet to prove π’s contributory negligence. Issue- whether the letter from π constituted as a settlement offer, which would render 408 applicable and make the letter inadmissible? Holding- ADMISSIBLE. This letter was NOT a settlement offer… so FRE 408 does not apply. In order for the exclusionary rule to attach, the party seeking to have evidence of offers to compromise must show that the discussions in question were made in compromise negotiations. Insurance FRE Rule 411 Evidence that a person is or is not insured is: Prohibited to show negligence or that the person acted wrongfully. Permitted for another purpose, such as to show agency, ownership or control Sex Offenses FRE Rule 412: Rape Shield Law 412(a): Evidence of a victim or alleged victim’s sexual behavior or predisposition is not admissible in civil or criminal cases involving alleged misconduct to prove: The victim engaged in other sexual behavior or To prove victim’s sexual predisposition Example: Trial for sexual assault and D tries to offer evidence that victim is known to sleep with anyone who asks. This is NOT admissible to show victim did the same thing on this occasion. 412(b): Exceptions – Permissible Uses Criminal Cases: Specific instances of victim’s sexual behavior allowed if: Offered by defendant to show that someone OTHER than defendant was the source of semen, injury, or other physical evidence; or The specific instance(s) being offered are with the person accused of sexual misconduct to show consent OR if offered by the prosecutor. Civil Cases: Evidence of a victim’s sexual behavior or sexual predisposition is admissible only if: Victim places it in controversy OR Probative value substantially outweighs: danger of harm to any victim and  Unfair prejudice to any party FRE Rules 413 and 414: The Defendant in a Criminal Case 413: Evidence that a defendant committed any other sexual assault is admissible in a criminal case in which the defendant is accused of sexual assault 414: Evidence that a defendant committed any other child molestation is admissible in a criminal case in which the defendant is accused of sexual assault C: Olden v. Kentucky (1988) Facts: Olden and friend Harris were indicted for kidnapping, rape, and forced sodomy. Evidence of current cohabitation that could be damaging for relationship. Holding: A defendant charged with sexual assault is permitted, within reasonable limits that avoid undue prejudice to the complainant, to cross-examine the complainant about a motive to lie about the alleged assault. o Confrontation clause (the right to confront your accuser) must be allowed to show witness bias. o Speculation as to the effect of juror’s racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of Matthews’ testimony. FRE Rule 415: Similar Acts in Civil Cases In a civil case, in which there is a claim for relief based on sexual assault or child molestation, evidence that a party committed any other sexual assault or child molestation is admissible. C: Johnson v. Elk Lake School District (2002) Facts: Victim claims her guidance counselor sexually harassed and abused her while she was a high school student. Victim tried to introduce evidence of incident between Issue: whether the plaintiff Holding: INADMISSIBLE. Even if the incident between  In a sexual harassment case, evidence of past acts of sexual harassment by the defendant, although admissible, may still be excluded if its probative value is outweighed by its unfairly prejudicial effect.\ Best Evidence Original Documents FRE 1002 (Requirment of the Original) ○ An original writing, recording, or photograph (including film) is required in order to prove its content unless these rules or a federal statute provides otherwise. ○ Essentially, the rule expresses a preference for providing the trier-of-fact with a writing, photograph, or recording rather than just allowing testimony about the contents. FRE 1003 (Admissibility of duplicates) ○ A duplicate is admissible to the same extent as the original unless: A genuine question is raised to the originals authenticity; OR The circumstances make it unfair to admit the duplicate FRE 1004 (Admissibility of other content) ○ An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: All originals are lost or destroyed (must be in good faith, person offering in other evidence can’t destroy original just to admit it under this rule) an original cannot be obtained by any available judicial process. the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or  the writing, recording, or photograph is not closely related to a controlling issue. Ex: Beyonce lends Jay Z $500. Jay Z writes an IOU for the money and gives the IOU to Beyonce. After months without repayment, Beyonce sues Jay Z for the $500, If Beyonce says at trial, “Jaz Z owes me money, and I have an IOU to prove it,” but does not enter the IOU into evidence, Jay Z may successfully object on the ground of original documents, unless the receipt has been lost or is in Jay Z’s possession. ○ The principle is that if Beyonce wants to talk about the contents of the IOU, she must prove s contents by introducing the physical document. However, if Beyonce merely testifies as to the loan and never mentions the IOU, then Jay Z cannot prevent her testimony by raising an objection that the IOU is the “best evidence.” C: Meyers v. US Facts-Lamarre was prosecuted for perjury. William P. Rogers examined Lamarre before he gave his testimony before a United States Senate subcommittee. ○ Evidence- Rogers testimony about Lamarre’s testimony at the subcommittee hearing and the transcript Issue- Could the transcript prove what was said? Holding- The original evidence rule is not applicable because the prosecutor attempted to prove what was said not the writing. ○ Both the testimony and the transcript were sufficient to prove what was said. Statements alleged to be perjurious may be proved by any person who heard them as well as the transcript. Judicial Notice Lawyers use judicial notice to prove facts that are “not subject to reasonable dispute” but are nevertheless difficult or expensive to prove under the evidence rules. Scope: this rule governs judicial notice of adjudicative facts only, not a legislative facts. adjudicative facts are simply the facts of a particular case.  Example: whether there was a full moon on the night of an alleged rape. legislative facts arise out of lawmaking and policy assessment. (think statutory interpretation) Whether the rape shield law excludes prior rape allegations by the victim. FRE 201- Judicial notice is a legal doctrine wherevy the courts accept certain matters as true without the requirement of formal evidence to prove the fact (again only adjuticative facts) A court may judicially notice that is not subject to reasonable dispute because it: ○ 1) Generally known within the trial courts territorial JD ○ 2) Can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned Taking Notice A court may take notice: ○ On its own; OR ○ Must take judicial notice is a party requests it and the court is provided with the necessary information Examples: ○ A judge could take judicial notice that September 20, 2024, was a Friday ○ A judge could take judicial notice that the Jets beat the Titans on September 15, 2024 **IMPORT CRIMINAL CASE NOTE** In a criminal case, the judge cannot instruct a jury to accept a judicially noticed fact as conclusive C: Fielding v. State  Facts- D was charged with driving with a suspended license. One of the elements of the crime was driving on a highway. The judge instructed the jury to take judicial notice that the road was a highway as conclusive. D appealed. Holding- In a criminal case, the defendant has the right to have a jury decide every element of the crime, and therefore, the judge in such a case may not instruct the jury to take a judicially noticed fact as conclusive. Instead, the judge must instruct the jury that it may, but does not have to, accept a judicially noticed fact as conclusive Examination of a Witness FRE 611 (Mode and Order of Examining a Witness 611(a)- Court exercises control over mode and order of examining witnesses and presenting evidence for the following purposes: make the procedures effective for determining proof; avoid wasting time; Protect witnesses from embarrassment and harassment. Methods of Impeachment (CRIBCAPP) Method #1 Contradiction Impeaching a witness means discrediting that witness’s testimony by presenting flaws, whether they are flaws in the person or flaws in the content of the testimony. Contradiction is a common doctrine.  You can contradict a witness by asking the witness questions to show that what they just testified to is wrong or that they shouldn’t be trusted. You must ask the question in good faith (you have to have belief that what you are attempting to contradict them with is true). However, you are stuck with the witness’ answer if the contradiction is collateral. Meaning, you cannot bring in extrinsic evidence to dispute what the witness said. Reasoning: courts don’t want a trial inside of a trial on issues that are secondary or not important – it’s up to the jury to decide whether or not to believe the witness on these issues. Extrinsic Evidence: Evidence other than the witness’ statements. Examples: documents or other witnesses So, when is something collateral in terms of contradiction? If it goes to the witness’ credibility (what the witness is saying actually isn’t true) and it is not about the facts of the case. C: State v. Oswalt Facts- 2 armed men robbed a residence; Issue- whether the impeachment was extrinsic or intrinsic; (2) whether the officer’s testimony is admissible under rules of impeachment. Holding- NOT ADMISSIBLE. (1) the officer’s statement is a extrinsic evidence; (2) officer’s testimony was irrelevant and a collateral issue because he testified as to one month prior to July 14th. Professor Griffin’s Example: Allen testifies for P that as he was exiting McDonald’s after going through the drive-through and getting his order of an Egg McMuffin, he observed a red car go through the stop sign and hit a blue car. Collateral: whether McDonald’s was not serving Egg McMuffin’s that day (not about the case at hand). It is okay to ask: “Isn’t it true that McDonald’s wasn’t serving Egg McMuffin’s on the day of the incident?” Not Allowed: bringing in a McDonald’s employee to testify that McDonald’s wasn’t serving Egg McMuffins. (since this is collateral) Not Collateral: whether the red car went through the stop sign and hit another car (this is central to the case at hand).  So, extrinsic evidence is allowed, such as bringing in another witness to testify that the red car stopped at the stop sign. (ultimately discrediting Allen’s perception). Method #2 Bias (CRIBCAPP) A relationship between a party and a witness that may lead the witness to slant, unconsciously or otherwise, his or her testimony in favor of or against another party Bias can be used to show that the witness isn’t credible because they favor a particular side Evidence of a person’s bias is never collateral and therefore extrinsic evidence is allowed C: US v. Abel Facts- D and 2 associates robbed a bank. 2 associates pled guilty, D went to trial. All members of a secret prison organization that required its members to “lie, cheat, steal, and kill” to protect each other. The state called Ehle (one of the associates) to testify against D. Both D and Ehle had a prison “friend” Mills who was to testify about the gang membership. Issue: whether prejudicial testimony that implicates Holding: Even though it is not mentioned in the FRE, impeachment for bias exists and may be demonstrated by extrinsic evidence. The evidence showing Example: Wendy the witness testified that the light was red when D entered the intersection. On cross-examination, based on P’s good faith belief, P asks Wendy whether she harbors negative feelings against D. That question is proper impeachment. If Wendy denies having negative feelings about D, counsel for D may call a witness who observed a fight between Wendy and D. The extrinsic evidence of the fight offered by another witness is permissible to demonstrate bias. Character for Dishonesty Method #3 Reputation and Opinion (CRIBCAPP) FRE 608(a) ○ A party can impeach a witness by attacking their character for truthfulness through a character witness who testifies that in their opinion witness is untruthful or that the witness has a reputation for being untruthful. ○ After the witness’ character has been attacked, you can rehabilitate their testimony by bringing in evidence of their truthful character. Defendant cannot bring in evidence of reputation or opinion UNLESS In criminal case prosecution attacks witnesses character Murder case the Defense can bring up evidence of peaceful character unprompted Method #4 Specific Instances (Acts/Prior Bad Acts) (CRIBCAPP) FRE 608(b) ○ Specific instances of witness’ prior dishonest conduct relating to truthfulness or untruthfulness may be inquired into on cross examination. ○ No extrinsic evidence - you are stuck with the witness’ answer (except for criminal convictions under 609). ○ Must have a good faith basis to ask the question. C: Michaelson v. US  Facts- Michelson was on criminal trial and called witnesses to testify to his good reputation. When the prosecution crossed each of Michelson’s character witnesses, they asked the witnesses if they had ever heard that Michelson was previously arrested for stolen goods. The questions asked on cross-examination by the prosecution were admitted, Michelson was convicted, and Michelson appealed. Holding- The prosecution’s inquiry about Michelson’s prior arrest was properly admitted. If the witnesses had answered “yes” to the inquiry about the prior arrest, it properly weakened their testimony about Michelson’s good character. Additionally, the witnesses answering “no” was proper to show that the witnesses weren’t really qualified to testify about Michelson’s character, thus weakening their testimony. (**pay attention to the purpose of the testimony**) The testimonies were admitted to impeach, not to prove that it was true that Michelson was previously arrested. Method #5 Criminal Convictions (CRIBCAPP) FRE 609 ○ Convictions are not collateral and therefore extrinsic evidence is allowed to prove them. ○ Evidence of a criminal conviction punishable by death or imprisonment for more than one year (even if the crime does not involve dishonesty) must be admitted (subject to 403): Criminal convictions in civil cases and criminal cases when the defendant is the witness is not admissible – 609(a)(1)(A). You can ask a witness about Defendants past criminal convictions as long as D isn’t a witness  Even in criminal cases when defendant is the witness if probative effect outweighs prejudice, it can be allowed – 609(a)(1)(B). (need a lot of probative value) ○ Crimes that involve dishonesty (i.e., a crime which is dishonest on its face or dishonesty is required in order to prove elements of the crime) must be admitted, regardless of punishment – 609(a)(2) Whether you were convicted or not, whether it was less than a year or not Convictions over 10 years old ○ This applies if 10 years or more has passed since the conviction or witness’ release from confinement for the conviction has passed, whichever was later. ○ Under FRE 609(b), these convictions are admissible only if its probative value substantially outweighs potential prejudice AND proponent gives adverse party reasonable written notice of their intent to use the conviction. Since the probative value has to substantially outweigh prejudice, crimes older than 10 years old are usually admissible if they involve dishonesty. Inconsistent statements (prior inconsistent statements) FRE 613(a)- Intrinsic impeachment is admissible but stuck with the witness’s response. If the witness denies/justifies the statement you can then bring in extrinsic evidence if it is not a collateral issue. ○ Sworn statements- you can bring in to impeach and prove the truth of the matter asserted (most likely to prove the witness is a proven liar; already committed perjury) ○ Unsworn statements- can only be used to impeach the witness Acts (Prior Bad Acts) 608 Admissible only if the bad acts relate to truthfulness ○ You are stuck with witness answer and cannot bring in extrinsic evidence ○ Unless it is a prior criminal conviction and then see rule 608 Psychiatric Evidence of a witnesses psychiatric condition is admissible if it goes to the facts of the case or shows a witnesses defect in perception ○ Can always bring in extrinsic evidence Perception Admissible (ex: distance, eyesight, colors) Extrinsic evidence always admissible (ex: medical record from eye doctor) Important to remember: All impeachment measures (CRIBCAPP) are subject to exclusion under the 403 balancing test if their probative value is substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence  The Hearsay Rule What is Hearsay? Elements: (1) a statement (2) made out of court (3) offered for the truth of the matter asserted. “Statement” – something is a statement if it’s made by a person (not an animal or robot/machine) with the intent to assert something. Can be through words (verbal, written, etc.) or an action (shaking your head no, shrugging, etc.) Truth of the matter asserted (TOMA) – think “what is this being used for?” Used to prove that what the person said is true? hearsay. Used to prove something else? not hearsay. What is NOT Hearsay: KISS SMAC KISSED (Not hearsay because not offered for truth) K-Knowledge – offered to show the declarant had knowledge of something. E.g., “the car was red” at scene of accident = not offered for TOMA (that car is red), offered to show they were there/had knowledge the car was red. I-Independent Legal Significance – (1) word gives meaning to a legal event/gives clarity to legal conduct (2) made contemporaneously with the event. E.g., “I am giving you this book as a gift” said when they handed the person the book = not hearsay (contemporaneous) vs. “I gave you that book as a gift” = hearsay (not contemporaneous) S-State of Mind of Speaker E.g., Witness testifies that D is insane because D was going around saying “I am the pope” – not being offered to prove D is the pope, offered to show that D is insane due to their SOM of believing they are the pope. S-State of Mind of Hearer – used to show the person hearing the statement had a certain state of mind/belief – think fear, duress, trust, etc.  E.g., D killed V in self-defense out of fear because J told D that V once killed someone. Not offered to prove V had killed someone, offered to show D was fearful of V. SMAC (Not hearsay because not an assertion) S-Silence E.g., friend says "it’s cold in here" and you don’t say anything = not hearsay because your silence isn’t intended to be an assertion that you agree that it’s cold. M-Machines A-Animals Machines and Animals can’t make statements. E.g., a dog wagging its tail, or a phone ringing wouldn’t be hearsay. C-Conduct- non-verbal, non-assertive verbal acts E.g., putting up your umbrella when it rains isn’t a statement that it’s raining. You’re not putting up your umbrella to tell people it’s raining; you’re just covering your head from the rain. Offered for TOMA Example: Ari is at a basketball game with his son, Jonah. While waiting in the concession line, Eric taps Ari on his shoulder and says to Ari, “that guy over there is kidnapping your son” and points to Vince. Ari then runs at and tackles Vince, breaking Vince’s nose on the tackle. It turns out that Jonah was back at his seat with Ari’s wife the whole time. Vince later sues Ari for assault and battery relating to the incident. At trial, Ari wants to testify that Eric told Ari, “That guy over there is kidnapping your son” and Vince’s attorney objects as to hearsay. Is this hearsay? Analysis: Made out of court? ✅ Is it a statement? Yes (words by a human, meant to assert something). What is it being offered to prove? It’s being offered to show that Ari was fearful that Vince kidnapped Jonah (his state of mind) and that is the reason he did what he did. It’s NOT being offered to prove that Vince kidnapped Jonah. Non-Hearsay Cases Illustrations: 1. Estate v. Murdock- A case arising from an estate issue, the heirs of the estate was determined by whether the husband or wife died first. The investigator stated th2at he heard the husband state “I’m still alive.” The statement was brought in to prove the man was alive because words were uttered by him rather than the truth of the matter asserted. (that he was actually still alive) TOMA- 2. Subramaniam v. Public prosecutor: Out-of-court statements offered to prove the reasonable belief of a party or not hearsay. An out-of-court statement to prove duress is not hearsay. Effect on the listener 3. Vinyard v. Vinyard Funeral Home, Inc: An out-of-court statement is not hearsay if offered to prove notice and knowledge of an unsafe condition. Effect on the listener 4. U.S. v. Zenni: Under federal rules of evidence, non-verbal conduct is not hearsay if it is not intended as an assertion. Under federal rules of evidence, implied assertions or nonverbal conduct are excluded from the hearsay rule. Exceptions to Hearsay (ICES) Under FRE 801(d), certain out of court (“OOC”) statements are not hearsay when offered for the truth of the matter asserted. Categories addressed in the rule: 1. Prior statements by witnesses, 801 (d) (1); and 2. Prior statements by a party, offered by an opposing party, 801 (d)(2) ICES: Inconsistent (prior) sworn statements Consistent (prior) statements - 801(d)(1) Earlier Identification Statements by a party against a party – 801(d)(2) FRE 801(d)(1): A statement that meets the following conditions is not hearsay (“we use the term exemption”): **Note-> These statements are offered for the truth of the matter asserted and fit into the common law definition of hearsay. Declarant-Witness’s Prior Statement. Admissible ONLY IF: The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (B) is consistent with the declarant’s testimony and is offered: (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or (C) identifies a person as someone the declarant perceived earlier. Note: 801(d)(1) only requires that prior inconsistent statements were made under oath/sworn. So, prior consistent statements and earlier identification do not need to have been made under oath. Admissions (Statement by a party offered against that party) FRE 801(d)(2): A statement offered for the truth of the matter asserted is NOT hearsay if the statement is offered against the opposing party and (either): B. was made by the party in an individual or representative capacity (i.e., the opposing party themselves made the statement) C. Example: After getting into a car accident, at the scene of the accident D says to P “I’m so sorry, I was on my phone and should have been paying attention.” At trial, P can offer this statement for the TOMA against D. D. is one the party manifested that it adopted or believed to be true; Example: Jeff says to Shane, “I can’t believe you ran that red light and hit the blue car.” Shane says, “I know, that was a mistake.” Shane is adopting the statement that he ran the red light and hit the blue car as true, and it can be offered against Shane. It needs to be sufficiently clear that the adoption was made. State v. Carlson: D’s wife said that he was shooting up methamphetamine with his friends in the bedroom that the methamphetamine was found. In response, D hung his head and shook it. Originally, this was let in as an adoptive admission, but the Oregon Supreme Court reversed, holding that D’s reaction of hanging and shaking his head was not sufficiently clear that D was adopting the statement made by his wife. (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or Mahlandt v. Wild Candid Survival: Mahlandt sued Wild Candid Survival and Poos after a wolf owned by Wild Candid bit Mahlandt’s son. Poos, an employee of WCS who had custody of the wolf, made two statements that “the wolf bit a child.” The lower court excluded this statement as hearsay. Appellate court reversed, holding that Poos statements were admissible both against Poos himself AND against WCS, since Poos made the statements within the scope of his employee relationship with WCS.  (E) was made by the party’s co-conspirator during and in furtherance of the conspiracy. Bourjaily v. United States: Defendant and Lonardo arrested for attempting to buy cocaine to distribute it to others. During phone call with FBI informant, Lonardo said that he had a “friend” (defendant) who was interested in buying cocaine. Lonardo’s statement to the FBI informant was admissible against D at trial as an admission made by a co-conspirator. For a statement to be admitted as a co-conspirator statement, the judge must determine that (1) a conspiracy existed, (2) the statement was made by a co-conspirator of the party against whom the statement is offered, (3) the statement was made during the conspiracy (4) the statement was made in furtherance of the conspiracy. D. Reasoning behind 801(d)(2) is that if the party didn’t believe an admission was true, they wouldn’t have said it. So, it’s likely that what they said was true. Confrontation Clause - 6th Amendment - right to be confronted with witnesses against you. The Crawford Doctrine addresses how the 6th Amendment Confrontation Clause applies to hearsay evidence. Rule: Under the Confrontation Clause, a hearsay statement will not be admitted (even if a hearsay exception applies) when: 1. The statement is offered against the accused in a criminal case. 2. The declarant is unavailable. 3. The statement was testimonial in nature. 4. The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial. What does “testimonial” mean? A statement is testimonial if a declarant would reasonably believe that the statement could be used as evidence in a later trial. Emergency Exception → Statements made for the primary purpose of aiding the police during an ongoing emergency are not “testimonial.” Davis v. Washington: Two different cases/circumstances at issue, Davis and Hammon (Hammon v. Indiana). Court decided both.  Davis: McCottrey (declarant) called police as she was being physically abused by D, described what was happening to 911 operator. Not testimonial because she was in the middle of seeking help, it was ongoing – held not to be testimonial, no C.C. issue. Hammon: The domestic disturbance already took place. Police arrived at the home and were greeted by Hammon. Statements (written) to police weren’t for the purpose of stopping the harm (no emergency), but rather to investigate a crime – held to be testimonial, C.C. issue existed. Hearsay Exceptions (Part 1) FRE 803- The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness (i.e., these statements are hearsay, but they are admissible anyway, whether or not the declarant is available at trial): 1. Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. ** The statement does not need to be made during the influence of a startling event. Elements: 1. Event of any kind; 2. Statement made while perceiving the event or immediately after; 3. Statement describes or explains the event; 4. Personal knowledge of declarant. Case illustration: Deparvine v. State: D was on trial for murder of Karla and Richard (husband and wife) after the couple sold their pickup truck to D. Karla’s mother testifies that while Karla made the following statements to her mother on the phone: “I’m following the guy who bought the car” held to be admissible because Karla described what she was seeing as it was happening.  “He knows where to get the paperwork done tonight” / “He has cash” not admissible because the statement was not describing something as it was happening. Example: “Gee, the sun is in my eyes,” offered to show that the Declarant was temporarily blinded by the sun. The present sense impression exception is justified because the extremely short time span between perception and utterance allows little chance that the declarant forgot or had time to fabricate her statement. Additionally, in many cases, the person to whom the statement was addressed could check its accuracy. 1. Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Elements 1. Startling event or condition; 2. Statement made while declarant is still under stress/anxiety/excitement of event; 3. Utterance must relate to the startling event; 4. Personal knowledge of the declarant. Case illustration: United States v. Boyce: Boyce was on trial for unlawfully possessing a weapon as a felon after Portis called the police and said, “Boyce just hit me, and he had a gun!” Portis made the statement after she ran upstairs to her neighbor’s apartment. This was considered hearsay but was admissible anyway because Portis made the statement while still under the stress of the excitement/stress that it caused. Example(s): a. “My God! The baby is in the street!” exclaimed while watching a toddler enter a busy road, offered to show that the child wandered into the street. b. “My God! The baby was in terrible danger there in the street,” said while crying and hugging a child who had been rescued from a busy street twenty minutes earlier, offered to show that the child wandered into the street. The first statement is both a present sense impression and an excited utterance. The second statement is an excited utterance, if it can be established that the declarant was  still under the stress of the excitement caused by seeing a toddler in the road, but is too delayed from the time of the event to be considered a present sense impression. (3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will. Examples: a. “My tooth hurts.” This demonstrates a physical condition. b. “I don’t understand hearsay.” This demonstrates a state of mind. c. “I’m afraid of him.” This demonstrates the emotion of fear. d. “I’ll kill him if I ever lay eyes on him again.” This demonstrates intent. e. “I’m going to sleep for 24 hours after the bar exam.” This demonstrates plan. Case(s): Mutual Life Insurance Co. v. Hillmon: Hillmon sued Mutual to recover from her husband’s life insurance policy. A key issue was whether the body found at the creek was the body of Hillmon’s husband or someone else. Mutual introduced the statement of xanother man, Walters, to show that since someone accompanied Hillmon on the trip, the body found at the creek could have been someone other than Hillmon. Walter’s statement, made in a letter to his fiancé, said “I am planning on going on a trip with Hillmon to Crooked Creek.” Statement allowed to prove not only that he intended to go with Hillmon, but also to prove that he followed through with that intention. U.S. v. Pheaster: Angelo and Pheaster were charged with the kidnapping of 16-year-old Larry Adell. Adell’s friend testified that Adell said, “I am going to meet Angelo in a parking lot to pick up marijuana.” This statement was admissible to prove Angelo’s intent to meet with Adell. (4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.  U.S. v. Tome: Tome on trial for sexually abusing his young daughter, A.T. Several people testified at trial that A.T. said that her father touched her. These people included A.T.’s babysitter, a CPS worker, and doctors who treated A.T. Result: The testimony of each of the physicians was admissible because knowing the person who abused A.T. was necessary for treatment (like making sure she gets special therapy/treatment). However, the statements made to the babysitter and CPS worker were not admissible because they were not made for the purpose of seeking medical treatment. Baker v. State MD 1977 Facts Victim picked up three girls and dropped them off, when he got to the destination the D came up to the car yanked him out and proceeded to assault him along with the other three, leading to his death, and stole his wallet D charged with both murder and in the first degree and robbery Evidence- evidence of written report of the crime (report stating that the victim confronted the appellant and stated appellant was not one of the people that attacked and robbed him offered to jog witness police memory and the trial court denied it on the grounds that it was past recollection recorded On appeal D argues trial judge erroneously refused her the opp to refresh the present recollection of the witness Issue- whether the judge erred in refusing the evidence of the report because witness had not written it Rules Record of past recollection ○ 1)The record was made or adopted by the witness at a time when the witness did have a recollection of the event; AND ○ 2) Witness can presently vouch for the fact that when the record was made or adopted by him, he knew that it was accurate Present Record Revived ○ The only source of evidence is the testimony of the witness himself, the stimulus is not received in evidence ○ The memory aid need not be a writing it could be: A whiff of hickory smoke Carbonation of chocolate soda  ○ All that is required is that it may trigger the memory of the moment Holding- it is quite clear in this case the appropriate effort of the appellant to jog the memory of the police witness on a vital issue and was unduly restricted Disposition- reversed Adams v. NY Railroad 1961 Facts Action brought for the recovery of damages for personal injuries Defense- D theory was that the injury claimed by plaintiff had in fact never occurred, and that the injury stemmed from an inury at an that occured prior Evidence- Defense introduced evidence a memo made by an insurance employee of an interview with P ○ In memo P had mentioned an antecedent injury but made no claim to an injury of the sort claimed at trial ○ Past recollection recorded On direct examination witness testified he had no recollection of the conversation independent of the memo ○ He confirmed at the time it was made the account of the conversation was accurate Opposing counsel objected to allowing the memo as evidence since it was merely written down in pencil and was not an official company document The court sustained this objection Defense counsel once again asked whether, at the time it was made, it was accurate and witness confimred it was, but still had no recollection of the conversation P counsel objects again Sustained again Evidence not admitted US v. Vigneau 1999 Facts Charged with money laundering through drug distribution schemes  Evidence- On appeal Defense claims the district court erred in allowing gov’t to introduce evidence of Western Union “To send money” forms (over 70 offered), primarily in support of money laundering charges ○ Form includes senders: Name and address Amount fo transfer Intended recipient’s name an location ○ Defense claims that D’s name, address and phone number on these forms were inadmissible hearsay used to identify D as the sender Issue- Whether D’s name, address and phone number on these forms were inadmissible hearsay used to identify D as the sender Rule- Under Johnson v. Lutz, 253 N.Y. 124 (1930), the business records exception does not apply to statements within a business record that are made by an individual who is not a part of the business. Holding- In this case, whoever wrote Vigneau’s name on the Western Union form (even if it was in fact Vigneau) was not a part of Western Union’s business. And because the sender’s identity was not verified, the information is not trustworthy because it theoretically could have been anyone who wrote Vigneau’s name on the form. The Western Union form itself is admissible as a business record, but not in its entirety. The parts of the form with Vigneau’s unverified personal information should have been redacted Williams v. Alexander NY 1955 Facts P was struck by D’s automobile as he was crossing the street, the traffic light was in favor of P D claims that he came to a full stop, another car hit him, and propelled him into the P Evidence- D offered evidence of hospital record in which P stated to a physician at the hospital that “an automobile ran intro another automobile that was at a standstill, causing the car to run into him” ○ Evidence was admitted ○ On appeal P contends that thus was inadmissible hearsay Issue- Whether the statement was made in the regular course of business Rule- Section 374 of Civil Practice Act: Permitted is any writing or record made as a memo or record of any act, transaction, occurrence, or event if the trial judge shall find it was made in the regular course of any business Holding- It follows that any narration of the accident causing the injury- not relevant tot he diagnosis or treatment, is not admissible under section 374. Whether the D’s car was hit and propelled him into the P cannot possibly bear on diagnosis or aid in determining treatment Disposition- Judgment of Appellate Division Reversed Palmer v. Hoffman 1943 Facts Railroad Accident, charge brought under Mass law and a claim for negligence Evidence- statements made by the engineer of the train (deceased before trial) regarding his account of the accident that night ○ Declarant- Engineer of the train Evidence was not admitted at trial Verdict returned in favor of the respondent Issue- Whether the evidence was properly ruled as inadmissible and whether the record qualified as a record made in the “regular course of business” of the railroad company Holding- An accident report may affect the business in the sense that it affords information on which the management may act. It is not, however, typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others or to provide internal controls. - The fact that a company makes a business out of recording its employee’s versions of their accidents does not put those statements in the class of records made in the regular course of the business within the meaning of the Act Disposition- Affirmed Sana v. Hawaiin Cruises 1999 Facts Peter Sana was experiencing symptoms of sickness a few days before being admitted into the hospital  There he had symptoms of confused behavior, hysteria, and eventually fell into a coma He brought this action against the his employer Hawaiin Cruises on the ground that as a seaman is entitled to maintenance and cure D had an insurance agent (Rutherford) conduct interviews of employees regarding Sana’s health shortly after he was admitted to hospital Evidence- Statements made by D’s employees during interview with Rutherford and Rutherford’s recordings of these conversations ○ Declarant- rutherford and employees Issue Hearsay issues ○ 1) Unsworn OOC statement by Rutherford ○ 2) Which also contains unsworn OOC statements by employees ○ 3) Which recall unsworn OOC statements by Sana Exception must be found for each of these Holding Sana’s statements admissible under 803(3)- statement’s of the declarant’s then existing physical condition Employee’s statements admissible under 801(d)(2)(D)- not hearsay if offered against a party and is a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment ○ Were in the scope of their employment Controlling precedent that shipowner’s must investigate seaman’s claims for maintenance and cure Interviews conducted on company time Ruthereford’s recordings admissible as business record under 803(6) ○ Rutherford had a duty to prepare an accurate report for his employer, which presumably relied on that report to adjust Sansa’s claim ○ Hawaiin Cruise has an obligation to investigate claims for maintenance and cure ○ Employees had a duty to report accurately an information relevant to such claims Disposition- Refusal of evidence was abuse of discretion, new trial awarded Beech Aircraft Corp v. Rainey 1988 Facts Defense- Beech defended itself on the theory of pilot error Evidence- Beech sought to introduce into evidence an investigative report prepared by Lieutenant Commander William Morgan pursuant to an order from the training  squadron’s commanding officer. The report was broken down into sections labeled “finding of fact,” “opinions,” and “recommendations.” Specifically, Beech sought to introduce a statement in the “opinions” section which stated that “[t]he most probable cause of the accident was the pilots Beech also called one of the plaintiffs, John Rainey, as a witness and asked him about Evidence- two statements he made in a letter to Morgan six months after the crash ○ The first statement suggested that Rainey’s deceased wife had attempted to cancel the training flight due to factors including the student pilot’s fatigue ○ The second statement suggested that someone in the training airplane could have suddenly initiated a hard right turn when another airplane was unexpectedly close to the training airplane ○ In addition to those two statements, Rainey’s letter also described the results of Rainey’s own investigation and ultimately concluded that the most likely cause of the crash was that the engine lost power due to a fuel-control malfunction Rainey’s counsel tried to ask Rainey on cross-examination about the power-failure theory he discussed in his letter However, the trial court sustained Beech’s objection to that question and prevented Rainey’s counsel from asking Rainey anything further about the letter\ Issues on Appeal 1) Are conclusions and opinions made pursuant to a public agency’s investigation admissible? 2) If a party introduces part of a statement into evidence, may the opposing party present the remaining portions of the statement to ensure that the court has a complete understanding of the evidence? Rules 1) Conclusions and opinions made pursuant to a public agency’s investigation it was required to make are admissible as long as the conclusion or opinion is based on the factual findings from the investigation. The conclusion or opinion must also satisfy a trustworthiness requirement built into Rule 803(8) a) Furthermore, Rule 803(8)(C) does not actually state that factual findings are admissible, but rather that “reports... setting forth... factual findings” are admissible. Thus the Rule does not specifically distinguish between facts and opinions contained in those reports. 2) A party’s presentation of only a portion of a document or statement can create a prejudicial and distorted misimpression of the evidence. To avoid that prejudicial misunderstanding, the common-law rule of completeness and Federal Rule of Evidence 106 allow the opposing party to put the remainder of the statement into evidence. Holdings  1) On this reading of Rule 803(8)(C), it is clear that Morgan’s conclusions in his report are admissible. His conclusions were based on his investigation and the facts that he discovered. And based on those facts, he concluded that pilot error was probably the reason for the crash. a) Because the trial judge found that the conclusions were trustworthy, he properly admitted the statements. 2) The presentation of only part of the letter left the jury with the distorted impression that Rainey did not actually believe the power-failure theory or had only invented that theory later for litigation. The court abused its discretion by failing to let Rainey’s counsel correct the jury’s misunderstanding by asking Rainey about the remainder of the letter. Dispositions 1) Appellate court reversed 2) Appellate court affirmed US v. Robinson 2018 Facts Robinson was charged with attempted murder Evidence- Prosecution offered cellular data reports of Robinson’s cell site locations over a period of 14 months ○ Declarant- D? D objected to this on the grounds that it was prepared in anticipation of litigation Prosecution asserted that under precedent “ as long as the underlying records qualify as business records, then reproductions of those records made pursuant to law enforcement requests also qualify as business records Holding- here all the information in the spreadsheet was a replication of data in the original records and did not reflect conclusions reached about that underlying data State v. Williams 1872 Facts Deceased was shot after dark The shooting was done by someone outside of the house the deceased was in Evidence- Decesed said to witness “it was Ed williams, though I did not see him” ○ Declarant- Deceased Rule- Whenever the opinion of a witness is the direct result of observation through his senses, dying declaration evidence is admitted - Not admissible when if the opinion of the witness is the result of a course of reasoning from collateral facts, such as motive or presence of that person, it is inadmissible Holding- In this case the deceased excludes right as a source of his opinion. A court is not at liberty to conjecture, that he might have heard the D and identified him in that way, especially as there is no suggestion of that sort in the evidence Disposition- Inadmissible Garza v. Delta Tua Delta Frat 2006 Facts Deceased committed suicide and left a suicide note Deceased family brought a wrongful death action against frat alleging her suicide was promptoed by alleged rape committed by a fraternity memeber Evidence- Suivide note left by deceased ○ Declarant- Deceased Note was admitted at trial as a dying declaration Issue- Whether a suicide note can constitute a dying declaration Rule- Because a suicide note is a planned statement made in anticipation of a controlled act, it is not analogous to a dying declaration mad eunder the belief of impending death by a person with a total lack of controle over the timing and causation of death - This person has the ability to draft a statement to their liking - Might have motive to implicate something other than the truth - Must be declarant’s actual physical condition which must be evaluated ti be determined if it was possible for her to believe death was immenent Holding- Deceased had stated in her note that she had not told her parents about the events recounted in the note for fear they would blame her. Thus, accusations of others contained in the note are tainted with possible motives of self-exoneration. At the time the not was written the declarant was not dying. Disposiiton- Reversed (inadmissible) R v. Perry 1909 Facts In a quiet voice, but loud enough that she could hear it, the doctor said Agnes Summersby might die at any moment. Hours later, Agnes told her sister Gertrude, “Oh, Gert, I shall go, but keep this a secret,” and described how Perry (defendant) had performed an illegal abortion on her. Agnes died that evening, and Perry was charged with her murder. The trial court admitted what Agnes told Gertrude and convicted Perry, but noted that the case might be appropriate for a definitive appellate ruling on the admissibility of Agnes’s statements Issue- Whether deceased statement was made when her death was imminent Rule- English cases require the speaker to have “a settled expectation of immediate death.”the test should be whether the speaker has given up all hope and accepted death as imminent—not the amount of time that lapses. The reasoning is that a man who believes death is imminent would not go to meet his maker “with a lie on his lips.” Therefore, the proper test is whether the person has abandoned all hope and believes death will soon follow the statement Holding- Here, the trial judge did not doubt that Agnes had abandoned all hope of life when she told her sister about the abortion. The language of her statement, considered as a whole, shows she made it with a hopeless expectation of death. Therefore, it qualified as an admissible dying declaration Disposition- Perry’s appeal dismissed Declarations against Interest Traveler’s Fire Ins. v. Wright 1958 Facts J.B. Wright (J.B.) was charged with the crime of arson in the burning of his property. Subsequently, J.B., along with his partner, J.C. Wright, brought suit against Travelers Fire Insurance to recover under their fire insurance policy.  Evidence- Travelers sought to introduce into evidence the testimony of two witnesses who had testified against J.B. in the criminal trial, stating that J.B. had set up the burning of his property himself ○ Declarant- witnesses from criminal trial agianst JB The witnesses were not available to testify in the civil trial because they claimed the Fifth Amendment privilege against self-incrimination The trial court excluded the testimony and found in favor of J.B., and J.C Travelers appealed. Issue- Is prior testimony against a defendant in a criminal trial admissible against that party in a civil trial Rule (4 elements): - 1) Inability to obtain the testimony of the witness - 2) Must have been an opportunity to cross-examine the witness in the former trial - 3) Must be an identity, or substantial identity of issues; AND - 4) Parties Holding- he issue they testified to in the criminal trial and the issue sought to be established here is the same: that J.B. willfully burned the property. Therefore, J.B. had the same motive and opportunity to cross examine the witnesses that he and J.C. would have in this case. Thus, there is no harm admitting the former testimony because it was made under oath and subject to cross examination. Although J.C. claims that he did not have an opportunity to cross examine the witnesses because he was not a party to the criminal trial, this claim is immaterial. A partner, even an innocent one, may not recover on a fire insurance claim for partnership property when his partner intentionally burned the property - to prevail in the present case, J.C. needed to prove that J.B. did not willfully burn the property, which is the same thing that J.B. is trying to prove. - because the issues are the same, it cannot be said that J.C.’s cross examination in this case would be any different than that of J.B.’s cross in the criminal trial. Disposition- Reversed US v. Salerno SC of US 1992 Facts Anthony Salerno and six other men (defendants) were charged with violations of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act and other federal crimes based on their alleged involvement in mafia activity. At a grand-jury hearing, two owners of a concrete firm that was allegedly a part of the racketeering ring testified that  neither they nor their firm had participated in the ring. However, at trial, the owners of the firm invoked their Fifth Amendment privilege against self-incrimination and refused to testify. As a result, Salerno and the other defendants sought to introduce the owners’ testimony from the grand-jury proceeding under Rule 804(b)(1) of the Federal Rules of Evidence, arguing that the grand-jury testimony fell within the hearsay exception for an unavailable witness's prior testimony. The district court refused to admit the testimony, noting that Rule 804(b)(1) allows testimony to be admitted against a party only if that party had a "similar motive" to develop the testimony. Appellate court reversed on grounds that The court stated that the similar-motive requirement of the rule does not apply when the government obtains immunized testimony in a grand jury proceeding from a witness who refuses to testify at trial. US SC granted cert Issue- May a court admit a witness's former testimony under the former-testimony exception to the hearsay rule if the exception's similar-motive requirement is not satisfied Rule- A court may not admit a witness's former testimony under the former-testimony exception to the hearsay rule if the exception's similar-motive requirement is not satisfied Holding- A court may not create an exception to the Federal Rules of Evidence absent a legislative intent to do so. Nothing in the language of Rule 804(b)(1) suggests that any of the requirements disappear under certain circumstances or for certain litigants Disposition- Appellate court reversed Hypos page 352 quiz answers Hearsay 2