Class 19

Rule 803—Exceptions 803: don’t care if declarant is available (unlike 804)—these are called the stronger exceptions b/c don’t need unavailability before they apply803(3) then existing mental, emotional, physical state have to be experiencing that state at time making statement about it (what gives it reliability)

(ex) present pain—you are experiencing as you say it; experience of past pain can’t come in under 803

This also includes statement of intent in the future (admissible b/c experience that intent at time making the statement)Statement Regarding Wills Exception under 803(3) can get in past statements regarding wills. If they regard the will of a declarant (reason: necessity—usually involves someone who’s dead, evidence showing what intent was)

Intent statement will come in under general provisions

803803(3) 803(3)1. Then existing statements (currently writing my will)

2. Will portion says + plus blackwards statement

Statements made for medical diagnosis or treatment can get in past or present but has to be made by a medical person (depression is included—depression of a result of her and daughter being threatened by son in law)

803(5)—Us v. Mornan (gave a statement to someone in a deposition like procedure and conveniently forgot what she had said in prior procedure) claimed to have a lapse of memory but prob didn’t. Prosecution tried to get in her prior recollection under 803(5) but couldn’t bc she was unable to verify that what she said in her deposition was true and correct. Ct hints if they ahd put the ct reporter on that might have been able to come in

Can also do a recollection reordered circumstantially—yes that is my signature at the bottom of the transcript. Based on the fact that I don’t say anything without it being true, I have a present belief in the truth for the accuracy of the statement. KEY: you have a present belief

803(6): Business RecordsAre admitted b/c they are trustworthy b/c made presumably in an accurate manner to support the business. They are also necessary. Multiproviders to the business and large pain to have each of those witnesses testify as to the accuracy of the records.

Players:1. Supplier of the info (often times a 3P)

*Needs to have personal knowledge of the information in the record 2. Entrant (works for business)

*Does not need to have personal knowledge of the information but entrant DOES have to work for the business3. Custodian or “other qualified witness” person who either testifies in court and lays the business record predicate or supplies the affidavit

*Someone who is familiar with the 803(6) business record predicate—someone who knows how records are kept/stored/disposed of

*Does not have to be the custodian that was employed by the business when the record was created!!

*Current knowledge of how the records themselves are kept by the business and lay the predicate

See page 329Ask: Was that record made by a person with knowledge of, or made from info transmitted by a person w/knowledge of, the acts and events appearing on it? On a predicate you can lead!

Keogh v. Commissioner of Internal Revenue p. 330Keogh worked in casino as a 21 dealer (gets tips) & they pull the tips (put all together)—have X amount of $ supposed to report for tax purposes (didn’t report all of it as shown by Whitlock’s diary)—under reporting income as discovered through W’s ledgerWhitlock (dealer/declarant) kept a diary/personal ledger IRS wants to use W’s ledger (HS—out of court statement that gov is offering to use it for the truth)

Objection: Whitlock is not a business—it’s a personal recordCt: If you keep your own personal financial records like you do in your check book (running tally of own personal expenditures and intake) 803(6) applies to personal financial records!

Rule: Personal records kept for business reasons may be able to qualify. A house keeper’s record kept neatly and accurately for purposes of balancing bank statements, keeping strict budgets and preparing income tax returns could qualify under the statute. The reliability usually found in records kept by business concerns may be established in personal business records if they are systematically checked and regulatory and continually maintained

Term “business” is broad under the rule

How to lay the predicate when W is not the custodian or other qualified witness? Ex wife testifies she is a qualified witness b/c she was a witness of what he did every night. So anyone who sees that being done can testify to the regulatory of it (she has personal knowledge).

W’s entries trustworthy? Under the Rule, even if can lay the predicate can object if the records are not trustworthy….

Rule/Rationale: A man has a direct financial interest in keeping accurate accounts in his personal business. The cases indicate that private records, if kept regularly and if incidental to some personal business pursuit, are competent evidence under…it made no difference whether the check account was used for any specific business…It is settled that the business need not be commercial. The diary contained his own personal financial records, there is no reason put forward for him to have lied to himself.

The ledger is trustworthy b/c he would have no motive to lie—he had a motive to make it accurate so he could underreport his income realistically.

What if he kept the ledger to take it to the bank to get a loan? Would it be trustworthy? Less likely b/c fluff your numbers so more likely to get a loan.

So there may be a question as to why the ledger was kept as to whether or not it is trustworthy. Is there a motive?

If it is made for purposes of litigation, probably not trustworthy!

Police ReportsNo. Police Reports are written up to remember (recollection refresher) & prob cause (statements out of court not HS if offered to show prob cause—not offered to show truth of matter, just offered to show a reasonable good faith belief)

1. Memorialize the case2. Supply prob cause3. Basis for a further investigation

Puts it in as potential leads to investigate purpose of police report POLICE REPORTS ARE NOT ADMISSIBLE AT ALL WHEN OFFERED BY THE GOV AGAINST THE DEFENDANT & CONFRONTATION CLAUSE

Confrontation Clause: 6th A, a criminal D has the constitutional right to confront the witnesses against him. Everything in a police report contains HS that the D can’t confront if the police report comes in. This is why the gov can’t simply introduce a police report into evidence as evidence as the D’s guilt.

Hospital RecordsCan be admitted but a lot of them contain physician diagnoses. It can be admissible, including Dr’s or nurses notations, if they observed (based on personal knowledge) UNLESS it’s a diagnoses or conclusion by a Dr. that is something that is prob not in contention much. If it’s a complicated diagnosis, Dr’s statements is recorded in a hospital record is not admissible. If it’s obvious, then not a lot of contention to just general diagnosis.

Computer RecordsComputer itself (if generates automatic reports itself) not HS. BUT if someone puts something into the computer then it can be HS. Have to establish an exception that applies under 803 or 804

803(7): Absence of Entry in Records Kept in Accordance with the Provisions of Paragraph 6Admit the business records of someone to show the lack of a business record that would ordinarily expect to be thereHYPO: mike is the current records custodian for bank hired 2 wks before trial, Sam failed to make payments on his loan. Bank sues Sam for $ owed on the loan

Money Bank = PSam = DefendantMike = Custodian

May I take the witness on voir dire test the witnesses’ qualification (only hired by bank 2 weeks before trial)

Last thing you’re going to do = got it in, now get Sam to read from the record because now the record is admissible and he can read from it, I want you to tell the jury what the ….

803(8): Public Records & Reports1. Activities of the office or agency2. Matters observed pursuant to duty imposed by law as to which matters there was a duty to report (EXCEPT: criminal cases matters observed by police and other law enforcement)3. Civil actions and proceedings and against the Gov in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of info or other circumstances indicate lack of trustworthiness.

Beech Aircraft v. Rainey p 337Plane Navy crash P alleged crash caused by loss of engine power; D alleged pilot errorJAG report commissioned by the supervisor of the pilots

Report concluded that it was pilot errorNavy people died and Navy commissioned the report—so why would they have a motive to say that their own pilots were negligent unless it were true (shows trustworthiness); if they were lying they would fudge it in favor of mechanic problems

Issue: 803(8)(c) Pilot Error = “opinion”

Factual Finding vs. OpinionPilot Error = mix b/w facts and opinion

Can factual findings include Facts + evaluation of those facts

Rule: It can. Factual findings can include evaluative facts (straight facts + reasonable conclusions from those facts)

Consequences: if you want to get this into evidence it is powerful stuff b/c it favors one side by concluding pilot error (favors the manufacturer of the airplane) Once this comes into evidence, the jury looks at it and concludes who is liable via causation of the crash. The report will be used to determine the causation (Navy investigated it and just adopt the reports position).

Does not mean that the procedures of how the report was conducted to show the trustworthiness of the Report

Factors: Trustworthiness1. Timeliness of the investigation/report (longer the wait the less likely; more timely the more trustworthy)2. Skill of the investigators (could be the investigators first plane crash and have no understand of aeronautics) 3. Was a Hearing held (if there was, more likely that someone is overseeing the investigation)4. Was the report prepared for litigation! (kiss of death for trustworthiness if it was)

What if the conclusions in the report are based upon multiple layers of HS? may affect trustworthiness but not necessarily. If it’s the type of HS that is normally relied on then typically ok.

Get something in under 803(8)(c) –can always attack the sufficiency of reasonableness of the investigation

Rule 804(a): Declarant Unavailable

Just b/c you’re unavailable DOESN’T MEAN OUT OF COURT HS is going to come in !!!!

Rule 8041. Unavailability (necessary but not sufficient requirement) &2. Have to find a HS exception as listed in 804

A. Privilege exempts from testifying (ex. attorney client)B. Declarant persists in refusing to testify concerning the subj matter of the Declarant’s statement

despite an order of the ct to do soC. Testifies to a lack of memory of the sub matter of the Declarant’s statementD. Death or then existing physical or mental illness or infirmity (testifying likely to render you

suicidal—ex. sexual assault cases)E. Absent from hearing & proponent of stmt has been unable to procure Declarant’s attendance by

process or other reasonable meansIf declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, unavailability…see page 344

UnavailabilityIf the testimony against which the evidence is offered Civil Case—party against which you’re offering (predecessor…)Criminal Case—party against which….

Former Test1. See if witness is unavailable (804(a))2. See where prior testimony was given—trail, hearing, deposition (under oath & subj to cross)3. See if it’s a civil or criminal case where the prior/former testimony is offered

Civil Case: opponent of the testimony or the opponent’s predecessor in interest must have had an opportunity to cross the declarant

Criminal Case: only the opponent (not predecessor in interest) who must have had opportunity to cross in the prior testimony

o U.S. v. DiNapoli: concrete conspiracy case. Two witnesses testified during the grand jury indictment & were questioned by the prosecutor. Now witnesses “unavailable” due to privilege (5th Amendment), and defense wants to offer the testimony. I: Did the prosecutor have a similar motive? Held: NO! The prosecutor did not have as strong of a motive to question during the grand jury indictment (probable cause standard) v. at trial (beyond a reasonable doubt). Additionally, what is at stake is different at grand jury (investigatory motive) and the trial (prosecutory level).

o Note : the prosecution does not always have a dissimilar motive during the grand jury presentation and at trial -- in an instance of a criminal defendant; there would likely be a similar motive.

Test for similar motive in criminal cases:

(1) questioner (who must be the same person) must be on the same side of the same issue at both proceedings

(2) whether the question had a substantially similar degree of interest in asserting the issue