Hearsay Exception

B-Business Records

A-Admission by Party Opponent

D-Dying Declaration

S-Spontaneous Statement (excited utterance and present sense impression)

P-Public Records

L-Learned Treatises

I-Statements Against Interest

T-Former Testimony

S-Statements about mental/physical condition

P-Personal Reflection Recorded

E-Equivalent (the residual catchall exception)

P-Previous consistent Statements

P-Previous inconsistent statements

I-Identification

F-Forfeiture

BICCC

B-Bias

I-prior Inconsistent statements

C-Contradiction

C-Capacity

C-bad Character of (un)truthfulness

1) Make the interrogation and presentation effective for the ascertainment of truth

2) Avoid unnecessary consumption of time

3) Protect witnesses from harassment or undue embarrassment

No. It must only rebut the specific motive alleged at trial.

Prior identification made by testifying witness is admissible as substantive evidence.

This rule recognizes that in court IDs are more show than substance, and prior ID are often more reliable.

Prior ID needn't be in person ID. A picture lineup suffices.

The rule is not restricted to formalistic ID proceedings (lineup, pic lineup, show up, prior hearing are all ok)

The witness needn't make an in court ID for prior ID to be admissible.

Witness only needs to be subject to cross about prior ID.

Prior ID needn't be under oath.

FRE 801(d): A statement is not hearsay if: (2) Admission by Party-Opponent.  The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity.

Unreliability is NOT a grounds for exclusion.

A party admission is admissible even if it is not a statement against interest. 

1) individual admissions

2) adoptive admissions

3) authorized admissions

4) agent admissions

5) co-conspirator admissions

Opponent Party Admissions are allowed on an estoppel or reliance theory.

No need for prior cross, b/c a party needn't cross himself!

1. Statements made prior to arrest are admissible. Statements made after arrest must satisfy Miranda to be admissible. 

2. State is considered the party-opponent. Victim's statements are not considered to be admissions by party-opponent. 

Hypo--The police telephone X and tell him his kid was in a wreck. X replies, "I'm sure it was my kid's fault." Is that statement admissible against X?

Yes.

The first hand knowledge rule or the opinion rule does not apply to the admissions by party opponent exemption.

Not hearsay if the statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth. 

1) Adoption by use--mere possession of a document is not adoption, but use of that document most certaintly is. Generally, a party's use of a document will frequently amount to an apporval of its statements as correct. (eg: a party's reprinting of a newspaper article amount to the party making those statments itself)

2) Adoption by silence--if a party fails to deny or correct a statement under circumstances in which it would be natural to deny or correct the truth of the statement, that shit could be adopted. However, it is insufficient if a statement was merely mentioned in the presence of the party. Silence is not equivalent to assent.

3) Correspondence--The failure ot answer or correct statements in correspondence may be considered an admission. However, this cannot be used as a tool to manufacture evidence (a cannot send shit he wants admitted to b hoping to get them admitted against b)

Pre-arrest silence not induced by government action is admissible against the accused. 

TRE: Silence post-arrest is NEVER admissible regardless of Miranda warnings. 

FRE: Post-arrest silence of an accused may be used if the accused has not received Miranda warnings if otherwise admissible and relevant. 

Authorized Party Admissions (801(d)(2)(C))

Generally

Statements made by a person authorized to speak for that party are admissible as substantive evidence if offered against that party.

This rule governs statements made by agents who have speaking authority (attorneys, partners, coprorate reps).

This rule applies to statements made in house, as well as statements made to thir parties.

Is a truck driver's statement about an accident in which he was involved admissible against the truck driving company in a negligence suit relating to that wreck?

What about a truck driver's statements about an SEC investigation against the company for which he worked?

Yes. The driver is a driver. Driving is within his scope (also, porn, meth, and lot lizards are likely in his scope)

No. Finances and shit aren't within the driver's purview.

Not hearsay if statement is offered against a party and the statement is by the party's agent or servant concerning a matter within the scope of employment, made during the existence of the relationship. 

However, this is not alone sufficient, and the scope of the agency/employment relationship must be separately established. 

Requirements: (1) Existence of a relationship (fact question under 104)

(2) statement during existence of relationship

(3) statement made concerning a matter within the scope of the relationship

Maybe--either under an authorized admission, as a lawyer usually has speaking authority, or as an agent admission.

No. At least it shouldn't be. In Raymark, the 3d circuit said experts are supposed to be impartial and are not an agent. However, the 5th circuit held just the opposite in Collins. Fucking 5th circuit. We are an embarassment.

Personal knowledge requirement for agent/servant admissions by party-opponent?

CoConspirator Admission (801(d)(2)(E))

Generally

a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Under the Texas rules, police officer statements or paid informants are admissible as party-admissions against the state. 

Under the Federal rules it's unclear. 

1) Conspiracy must have existed

2) Party against whom the statement is offered must've been a member of the conspricacy at some point

3)Declarant was a member of the conspiracy at the time of the statement

4) Statement must have been made during the course of the conspiracy, not before or after

5) Statement must have been made in furtherance of the conspiracy

Each is based on some circumstantial guarantee of trustworthiness.

Factual determination on the court based on a preponderance of the evidence standard. Court may consider anything unless it is privileged. HOWEVER, if the only evidence is the statement itself, the statement is not admissible. 

Testimony of non-conspirators as corroboration is sufficient to meet this standard. 

Lack of time to fabricate

Statement describing or explaining an event or condition made WHILE the declarant was perceiving the event or condition, or IMMEDIATELY thereafter. 

Only a slight lapse in time is permitted. 

The timing of the statement and the event may be inferred circumstantially. 

MUST be a description or explanation, and may not be an opinion. 

Yes. In many cases, first hand knowledge is expressly mentioned. In the remainder, it is implied.

1) A statement describing an event or condition

2) about which the declarant had first hand knowledge

3) made at the time the declarant was perceiving the event or immeadiately thereafter

Exception to Hearsay- Excited Utterance (badSplitspeppif)

Statement related to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. 

May contain opinions (contrast with present sense impression, where only descriptions are allowed.)

Lapse of time is only significant inasmuch as the declarant is no longer under stress. Factors include: age, type of event, mental state, subject matter of statement, and incentives to lie. 

1) a startling event

2) a statement relating to that event

3) made by a declarant with firsthand knowledge

4) made while the declarant was under the stress of the excitement caused by the event.

No. The exciting event that triggers the utterance can be something other than what the utterance describes. (e.g. viewing a photo of an attacker or seeing a news report about an assault, yet the declarant's admissible statement may be about the actions of the attacker portrayed in the photo)

No. Proof of the startling event and that Declarant perceived it may consist of extrinsic evidence of the event (such as condition and appearance of the declarant), but such extrinsic evidence is not necessary. The utterance itself may establish the existence of a startling event and that declarant perceived it.

Excited utterance contemplates that declarant does not have the capacity to fabricate, while declarant does not have time to fabricate in present sense impressions

Exception to Hearsay- Statement of Then Existing Mental, Physical, or Emotional Condition (badsplitSpeppif)

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed. 

Physical condition statements are admissible regardless of who they were told to, but are limited to current feelings (contemporaneous with the feeling: eg "I feel sick now," not "my back hurt") and cannot attribute cause. 

State of mind statements are either admissible because they aren't hearsay since they don't go to the truth of the matter asserted (ex. "I am going to the store" used to prove mindset of leaving house) OR they may be used to prove circumstantially that the matter occurred (ex. "I am going to the store" used to prove declarant went to store) OR an element (ex. "I hate black people" to prove an element of a hate crime). 

1) Statements of present bodily conditions

2) statements of present state of mind or emotion, offered to prove a state of mind or emotion of the declarant that is in issue

3) statements of present state of mind, usually intent, plan, or design--offered to prove subsequent conduct of the declarant in accordance with the state of mind

4) state of mind statements of a testator, offered in certain will cases.

1) statements of present state of mind offered to prove that state of mind

• Declarant's state of mind: usually offered against a defendant relating to mens rea. This will come in under party admission anyway.
• Victim: these have been admitted, however this is not favored, as V's state of mind is never at issue

2) statements of present state of mind offered to prove future conduct (Hillmon Doctrine)

• "I will revoke my will"=admissible to prove D subsequently revoked will.
• Generally not admissible to prove future conduct of 3rd party

3) statements reflecting belief about past events (Shepard Doctrine)

• statements that look backwards raise all hearsay dangers: perception,memory, narration, sincerity; and therefore, are generally not admissible.
• Except for will cases!

Statements to a treating or consulting physician made for purposes of medical diagnosis or treatment are admissible.

This includes: descriptions of medical history, past or present symptoms, pain, sensations, and the ailment's perceived cause or inception, or the ailment's external source (if pertinent to treatment or diagnosis)

Rationale: Statements made for the purpose of medical treatment are hyper-reliable (HAH!). Obviously, the drafters have never seen a dope fiend searching for Codeine. Also, Docs provide the cross examination function.

Yes. Due to the rule's mention of statements for the purpose of diagnosis, statements made to consulting experts are admissible. This is not due to any circumstantial guarantee of trustworthiness, but to the fact that this testimony will come in anyway, under the expert basis exception.

Very broad. If the diagnosis is based on the situation, details of the situation are admissible. 

Statements made to non-treating physicians, nurses, social workers, etc. are admissible. 

Statements can be made by others who attend the patient. 

Limitations: Statements cannot assign fault if fault isn't part of the diagnosis. Doctor's statements to patients are not admissble. 

No. Although statemetns relating to the cause of the injury are admissible, statements relating to fault of cause are not.

eg: A patient's statement that he was struck by an auto would qualify, but not his statement that the car was driven through a red light.

The witness

1) made or adopted a record

2) based on firsthand knowledge

3) when the matter recorded was fresh in the witness's memory

4) and the record correctly reflected the witness's knowledge.

5) Also, the witness must have insufficient recollection to testify fully and accurately about the matter recorded.

A memorandum 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 record may be read into evidence but MAY NOT itself be received as an exhibit unless offered by the adverse party. 

No. The only requirement is that the recollection is fresh in the witness's memory when the recollection is recorded.

No. If a witness makes a recollection to a third party, who then records the recollection, and the witness verifies that information (adopts it), that writing can be admissible under the exception.

Also, the record needn't always be verified to be admissible. If unverified, the recorder must testify that the record is an accurate description of what the observer observed. In these cases, there will be two witnesses.

No! they only can be read into evidence.

803(6)-(7)

Rationale

Most businesses canot operate without accurate records. Therefore, such records are likely reliable.

(1) Regularly conducted business activity

(2) Regular practice (routine) to make the record

(3) At or near the time of what is described

(4) Made by a person with knowledge (insider)

(5) Shown by testimony of custodian or other qualified witness. 

No. The testifying witness need only have knowledge of the document, and that the document satisfies the other requirements. For the most part, this witness will be an employee, member of the business (or somehow related to it) for which the record was kept.

The testifying witness does not even have to have personal knowledge of what is in the document. They only need to have knowledge that the document satisfies the other requirements.

A record that satisfies the requirements of 803(6) can still be excluded if if the source of the information or the method or circumstances of preparation indicate lack of trustworthiness.

A common example of a violator of this clause are records created in anticipation of litigation, such as accident reports. Other indicia of unreliabiltiy can violate this clause, but note that a few inaccuracies on a record is not per se evidence of lack of trustworthiness.

Burden of untrustworthiness: once the proponent establishes the BR foundation, the burden shifts to the opponent to prove its untrustworthiness.

The custodian of the record or an other qualified person. The foundational witness need not have firsthand knowledge of the particular entry.

No. These just refer to governmental records.

1) Those setting forth the activities of the office or agency

• implicit firsthand knowledge requirement

2) Those recording matters observed pursuant to a legal duty

• army guy's letter to DA, when writing the letter was part of regs
• weather bureau record of rainfall
• map prepared by gov engineer, which was prepared upon info provided by men working under him
• chain of custody receipt

3) investigative reports

• The report must include: 1) contain factual findings, (2)and be based upon an investigation made pursuant to legal authority. The investigation also must be (1) timely, (2) the investigator must have some type of special skill/experience relating to the investigation, (3) and the motivation of the investigator must be nonadversarial/biased.

Exceptions: If the document is one of the three types above, it may still be inadmissible if

1) there is indicia of untrustworthiness

2) it falls within a certain class of police records in a criminal case (popo reports are adversarial in nature, and therefore untrustworthy)

Exception to Hearsay- Public Record(badsPlitspeppif)- Generally?

A public record is not hearsay if it is a record which sets out (1) office's activities, (2) a matter observed under a duty to report (EXCEPTING LAW ENFORCEMENT PERSONNEL IN A CRIMINAL CASE), (3) factual findings from a legally authorized investigation in a civil case, or against the government in a criminal case. 

Backstop of untrustworthiness. 

Vital statistics are not hearsay if reported in accordance with a legal duty (birth, death, marriage). 

Absence of a record (after a diligent search fails to disclose a record or statement) may be used to prove that the record doesn't exist or that the matter didn't occur IF an office regularly keeps those kinds of records. 

Only if the record is ministerial in nature (cleaning a breathalyzer, for example). 

In Texas, coroner's report was found to not fall under the exception because they were not a part of the government so it wasn't a government record. 

Ancient Documents Exception

803(16)

Statements in a document in existence 20 years or more is admissible, if its authentication has been established under 901(b)(8).

Prove it up!

Learned Treatises

803(18)

Learned Treatises are admissible as substantive evidence when an expert is on the stand, and may only be read to jury, not received as an exhibit.

Learned treatises are those written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, with the reputation of the writer at stake.

Exceptions: 1) The

A conviction of a felony is admissible to prove the underlying elements of the felony in a related civil case. Anything less than a felony is not. 

An acquittal of a felony is inadmissible hearsay. 

Guilty plea is admissible as a party admission. A no lo plea is inadmissible. 

Hearsay exceptions that require unavailability

DIFF

D-Dying Declaration

I-Statements against Interest

F-Former Testimony

F-Forfeiture

5 conditions of unavailbility

This list is illustrative, not exclusive

1) Claim of privilege--a witness who claims the 5th, but not a party witness who claims the 5th

2) Refusal to testify--If the court determines a privilege invalid, but the witness still refuses to testify, they are deemed unavailable under this rule.

3) Lack of memory--If the declarant testifies that they don't remember, the declarant is unavailable. However, this cannot be used as a pretext to get in otherwise inadmissible hearsay. If the judge suspects declarant is lying about lack of memory, she can throw the BS flag.

4) Death or illness--if declarant is dead, infrim, or mentally incompetent, they may be unavailable. A continuance may solve temporary unavailabilty, or court can let in hearsay exceptions to satisfy.

5) Unable to procure testimony--if party can't procure witness's attendance or testimony (deposition), they may be unavailable. If it is only the attendance that is missing, and declarant has depo testimony, they aren't unavailable. Also must show that testimony could not have been obtained by reasonable means (ie, paying witness's travel fees). 

1) Admission by party opponent

2) Prior Inconsistent Statement

Hearings, Depositions, previous trials, preliminary hearings, administrative hearings, motions to suppress

Not admissible: Grand Jury when sought to be admitted by prosecution. However, some courts have ruled that grand jury testimony, when offered against the pros is admissible.

The telling factor for admissibility is if the opposition had a similar motivation to crossexamine the declarant.

Must be playing for "same stakes", doesn't have to be an identical position.

Must have had an opportunity to ask the questions, but strategically forgoing certain questions does not make testimony inadmissible.

No. Only an opportunity to examine is necessary for former testimony to be admissible (direct or redirect will often suffice).

FRE requires unavailability in order to read in testimony.

TRE allows for testimony taken in preparation for the present trial to be read into evidence regardless of availability. 

Only the party against whom the shit is offered (or a predecessor in interest in a civil case) needs to have the opportunity to examine the witness in the former proceeding for that statement to be admissible.

Yes. D had an opportunity to, and likely did, cross X when the former testimony was made, therefore it is admissible against him.

On the other hand, if X's testimony was offered against B, it would not be admissible, unless A was considered a predecessor in interest of A (which he would be).

A party having like motive to develop the testimony about the same material facts is a predecessor in interest to the present party

No. It used to in the CL, but now only requires being similiarly situtated.

1) The type of proceeding the testimony was given in

2) trial strategy

3) the potential penalties or financial stakes

4) the number of issues and parties

FRE: Criminal Cases=Homicides

        Civil Cases=Bring em all in

TRE: Criminal Cases=All of them

        Civil Cases=All of them

Only statments concerning the cause or circumstances of what the declarant believed to be her impending death.

Statements beyond the cause or circumstances show declarant may not be operating under emotions related to impending death.

1) statements by the declarant: "Am I going to die"--may prove; "Get the doctor!"--may disprove

2) type of injury suffered

It shifts the analysis of the opinion to analysis under 701-703 and 403.

Factors affecting admissibility to be considered:

• Witness discussed facts underlying conclusion, showcasing opinion's nonconclusory nature
• The opinion is conveyed through specific facts
• Has the opposing party introduced/will introduced facts/opinions in the same vein
• Thoroughness of cross
• the legal terms used corresponds to its lay counterpart (if legal terms that differ from lay counterpart are used as basis for opinion, conclusion will be excluded)
• Extent to which testimony appears to instruct jury on the law (legal conclusion is inadmissible)
• whether the judge cautioned the jury that they aren't bound by witness's conclusion

Admissible

• IRS agent--funds were not income
• check expert--check kiting had occurred
• Product expert--product was unreasonably dangerous

Inadmissible

• Expert--plaintiff's actions were not justified nor warranted under the circumstances
• Expert--boss discriminated on employee due to national origin
• expert--cop was negligent
• SEC investigator--D committed fraud
• expert--D was guilty

Wellborn says this is inconsistent

Legal Conclusions are Objectionable

No.

No. 704(b) (the John Hinckley Rule) is applicable only to experts in criminal cases. 704(b) bars experts from opining that the D either had or did not have a requisite mental state or condition that constitutes an element of the crime charged or a defense to the crime charged.

Yes. Experts can testify to mental illness, or lack thereof, and the effects and indicia of such diseases.

No. It applies to any mental state testimony.

eg: why a felon would possess a gun; that fraudster had intent to defraud SEC; that D had knowledge that vehicle contained guns; that D had ability to confrom specific intent

Likely not. Most courts hold this rule to flow to any expert testifying to mental state.

When an item's relevancy is contingent upon its identification and its authenticity (genuineness), 901 must be satisfied before it can be admitted.

The judge need only to decide whether a reasonable juror could believe the document is what the proponent claims it to be. If this is satisfied, the evidence goes to the jury for them to decide its ultimate authenticity.

A contested evidentiary matter where the evidence's relevancy is conditional on ID, it goes to the jury for them to figure out.

tangible things other than writings that played a part in the events in the real world.

1) Single Witness

• A witness can testify to the item's identification (this is or appears to be the one) and that its condition is the same / it has not been immaterially altered between the event and now.
• When can you use?: If a person who had knowledge at the time of the event can plausibly testify to identification and condition, then you can use single witness.

2) Chain of custody

• the "chain" begins at seizure and ends in court, and "custody" means there is always only one custodian who is responsible for the item; each custodian can be called in order to testify that this is the same item
• When do you have to use COC?: When the object, according to its natures and features, does not lend itself to single witness ID, then you have to show chain of custody.

Statements against interest are based on (1) Necessity and a (2) circumstantial guarantee of trustworthiness that eliminates the risk of insincerity

A statement which was, at the time of its making, so far contrary to the declarant's interests or so far tended to subject the declarant to criminal or civil liability, that a reasonable person in the declarant's position would not have made that statement unless believing it to be true.

A statement which would tend to expose the declarant to criminal liability that is offered to exculpate the accused is not admissible unless there exists corroborating circumstances.

In Texas, unavailability is not required.  

Yes.

Under 804(b)(3), declarations are admissible under this rule if against pecuniary or proprietary interest, if they could incur civil liability, and penal interests.

The Supreme Court found that statements against social interests should be considered, but this has not been consistently applied by the states.

Unavailability is not a requirement under the Texas rules while it is in Federal.

Texas allows statements which "tend to make the declarant an object of hatred/ridicule". 

The statement must be against the interest of the party at the time the statement was made. If the statement subsequently turns to a statement in their favor, it was still against their interest when the statement was made, and should be admitted.

Reasonable person standard

Explicitly for statements offered by the Defendant which exculpate the Defendant.

Also, caselaw suggests that inculpatory statements offered by prosecution also needs corroboration.

Corroboration of the information in the statement itself is not necessary, but only that there be corroboration indicating the trustworthiness of the statement itself.

Corroboration Factors

1) wheter the Declarant had already pled guilty or was still exposed to criminal liability when making the statement

2) the declarant's motive in making the statement and whether there was a reason for the declarant to be untruthful

3) whether the declarant repeated the statement consistently

4) the party to whom the statement was made

5) declarant's relationship to the accused

6) the strength of corroborating evidence

Yes. TX courts rejected the majority in Williamson, and instead adopt Justice Kennedy's approach--blame sharing statements are admissible w/ statements directly against interest.

No. Blame sharing statments are deemed collateral in Williamson, and thereby excluded.

The rule applies when the party against whom the statement is offered has knowingly engaged or acquiesced in wrongdoing that procured the declarant's unavailability.

Tacit acceptance to wrongdoing sufficies for rule to attach.

Collusion w/ witness to make declarant unavailable also applies.

There is no subject matter limitation

Exception to Hearsay- Forfeiture by Wrongdoing (badsplitspeppiF)- Generally?

Statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. 

For circumstnaces when Object is distinctive, and:

1) A person who had knowledge of the object at the time of the event can plausibly testify to its existence/condition at that time, and that

2) the witness can also testify to its immaterial change at the time of testimony

No. Breaks in the chain go to weight of the evidence, not admissibility.

Self Authenticating Evidence 902

Generally

A certain type of evidence speaks for itself, and needs no authentication--

• Notarized things. certified public documents, deeds or probated wills, certified business records, etc
• In these cases, to invalidate, opponent has burden to rebut. If a jury could believe it is authentic, it goes to the jury--they can sort it out.

Can a lay witness offer authentication evidence to (in)validate handwriting evidence?

If so, what is their burden?

Sometimes. Unless the lay witness has gained his familiarity with the author's handwriting for purposes of litigation, the lay witness can authenticate.

Testimony after becoming familiarized for purposes of litigation is reserved for experts.

The burden here is pretty low. Presumably, the lay witness could have seen the handwriting once to authenticate. Testimony will go to the jury, and the jury will sort out what weight to give the testimony

Handwriting on an IRS return, forms from someone's first day of work, etc.

Yes. Jurors can use an examplar of the putative author's handwriting to authenticate.

Exemplars are prima facie authentic.

Circumstances and contents of a writing indicating authenticity.

Such indicia can include: writing was found where only Author had access, document had reference to personal details of author (like frequent reference to his dog), the signature on a reply letter (the reply letter doctrine), that email came from Authors email address, author used author's nickname only known to friends

Yes--Voice authentication only requires minimal famililarity learned at any time. Rationale: this is not intruding on the purview or experts.

ex: in a case where one police officer became familiar with voice during the a 2-week wiretap leading up to arrest, and a police officer had known D since they were 3, both are admissible to authenticate.

If X calls Y, and Y answers and says, "This is Y," this is self-authenticating.

Only an answerer of a phone call's self identification can be self authenticating.

A caller's self-identification and not be self-authenticating.

Photo/video evidence can be authenticated by testimony.

Pictorial Testimony (When witness has independent knowledge of the scene portrayed in the photo)

Ex:

Q-"Do you see this picture" A-"Yes"

Q-"Do you recognize the contents of the picture" A-"Yes"

Q-"What is this a picture of" A-"[witness describes the scene]"

Q-"Is this a fair and accurate representation of the [actual scene or event]?" A-"Yes."--Authenticated.

No. Anyone familiar with the scene in question can authenticate.

where the photographic "speaks for itself" and is substantive evidence of what it portrays independent of a sponsoring witness (e.g. surveillance video that recorded an event nobody saw). The foundation is laid with process: tell us how this photographic evidence was created so that we can know circumstantially that it is what it purports to be.

A statement that has circumstantial guarantees of trustworthiness is admissible if the court determines:

(1) offered as evidence of a material fact, (2) statement is more probative than any other available evidence, (3) the purposes of the rules and interests of justice will best be served by admission of the statement into evidence. 

There is a notice requirement, but it's not strictly enforced. 

(1) statement made under oath

(2) statement concerned matters within declarant's personal knowledge

(3) whether declarant later recanted

(4) whether evidence exists which undermines declarant's credibility or undermines the contents of the statement

(5) CHILD SPECIFIC- spontaneity; repetition; use of advanced terminology; lack of motive to fabricate

Statement by statement approach taken to determine if a narrative is hearsay. 

807 recognizes the fact that there are certain instances of reliable hearsay that fall within a gap in the hearsay exceptions.

To prevent against this, 807 gives trial judges ad hoc power to admit trustworthy hearsay.

1)The statement must be offeres as evidence of a material fact.

2) The statement must be more probative on the point for which the evidence is offered than any other evidence which the proponent can procure through reasonable efforts

3) the general interests of the FRE and the interests of justice must be served by admission.

It would seem so, however the case law suggests otherwise.

• the spontaneity of the statement
• the consistency of the statement
• lack of motive to fabricate
• lack of time to fabricate
• reason the declarant can't testify
• voluntariness of the statement
• personal knowledge of the declarant about which he spoke
• person to whom the statement was made
• Whether statement was testimonial
• whether other evidence suggests declarant is unreliable
• independent of corroboration

No. If the declarant is available for cross in ther present statement about his former testimonial statements, the confrontation clause is not violated under Crawford.

Cross examination.

If prior testimonial evidence was subject to cross, but the declarant is unavailble as a witness--it satisfies the CC

If prior testimonial evidence was not subject to cross, but the declarant is available as a present witness to cross--satisfies the CC

• ex parte in court testimony or its functional equivalent--affidavits, custodial examinations, prior testimony, pretrial statements
• extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions
• statements that were made under circumstances which would lead an abjective witness reasonably to believe that the statement would be available for use at a later trial
• Circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions (the Primary Purpose Test controls)
• Forensic lab reports (cocaine tests) are testimonial

• formal ex parte statements: affidavits; testimony at preliminary hearings, former trials, and grand juries; statements to the police testimonial in nature
• statements to police--look to the primary purpose test to see if violative (interrogation and structured questioning)

• CoConspirator Exceptions: b/c coconspirator must make statements in furtherance of a conspiracy (likely not knowingly to a cop), they are not testimonial.
• Excited Utterances: Look to the primary purpose test
• Medical diagnosis: If made to a physician for treatment--not testimonial. If made by child to social worker about abuse, then it is testimonial.
• Business/Official Records: Business records are almost always Non testimonial, so CC doesn't effect. The same is mostly true for official records, except for when the official records have the purpose of incriminating an accused (ie a CSI lab)
• Former Testimony--as lon as there was a prior opportunity to cross, it can come in.
• Dying Declarations--This is unclear.
• Declaration Against Penal interest--if not made to police--not testimonial. If they are made to authorities--they are testimonial.
• Residual Exception--Can't get inadmissible testimonial grand jury evidence in through this exception.

The Best Evidence Rule

Article X

Generally

The BER is a narrow technical rule governing writings & their equivalents: A writing must be produced in the courtroom in specie (a mere verbal description thereof is not sufficient) when the party is seeking to prove the content or terms of the writing. The mere existence of a writing & discussions about it does not trigger the BER.

Best Evidence Rule

FRE Article X

Ordinarily, the original of a writing is required in order to prove its contents.

Letters, words, numbers, or their equivalent set down in any form.

Sometimes, an inscribed chattel falls under the BER, but other times it is not.

If writing cooccurs on chattel (eg a shirt with an inscription), the judge has discretion whether to require the original item.

Factors: "

• need for precise information as to the exact inscription,
• the ease or difficulty of production, and
• the simplicity or complexity of the inscription"

If it is a packaging with warnings written on it, the in specie production of the warning will likely be required--even a duplicate of such writing will likely suffice.

An original of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it.

For E-information, original means any printout, or other readable output, if it is accurate.

An original photo is the negative or a print from the negative.

Counterpart produced by mechanical/photo/chemical/electronic/equivalent that accurately reproduces the original.

Can there be more than one original under the BER?

Yes. See instances where all parties to a contract receive the contract; credit card packet (w/ carbon copies)

Can some writings be originals for some things but duplicates for others?

A banks record of transactions is an original to prove banks records, but this to prove an individual check transaction is not.

Photocopies of changes of charge receipts--originals because D offered them for reimbusement (the subject of the dispute)

Are duplicates generally admissible under the BER?

Ordinarily, yes.

A mechanical reproduction is a duplicate

A manually created duplicate is NOT.

How to get admissile foundation of duplicate--question a person with knoweldge of the contents of the original that the offered writing is an accurate reproduction of. Ask: is this a duplicate of the original in question? is it an accurate reproduction? and how can you verify its authenticity (how was it duplicated?)

When a genuine question/dispute is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

If the case presents a jury question whether the original document is a forgery, the jury should receive the original.

In these cases, the party should, produce the original, unless the proponent can prove, for example, it has been lost, destroyed, or is impossible/impractical to reproduce.

Duplicates found to be inadmissible, when the duplicate is incomplete, illegible, when the proponent offers no excuse for why original isn't produced, etc.

Potentially, but this rarely happens. It is only violative if the pictures/movies are offered for their content, and then not used (only described).

EX: The gov trying to prove obscenity in a movie, rather than showing the movie, has someone reading the movie or describing it.

Yes, but only photos, inscribed chattels, and and videos. For real evidence, the BER does not exist.

For the nonwritings, the BER sometimes holds,

For writings, it is ABSOLUTE.

It has two functions (at least). A shirt with a writing on it is an inscribed chattel. A book, is not (its only purpose is to be read!)

When the writing is itself the thing to be proved

when a party seeks to prove a matter by using a writing as substantive evidence

Yes. The testimony is not being used to prove the content of the tapes, it is being used to prove the content of the conversations on the tape.

Yes. Not proving content of birth certificate.

Yes, unless he did not attend the meeting, and only read the minutes.

Yes. It is offered to prove the content.

Objections and motions to strike

offers of proof

Objection must be (1) timely and (2) specific

The ruling to admit/exclude must 

(1) affect a substantial right

(2) be made in a timely fashion

(3) state the specific ground (unless it's obvious from context) 

If the ruling excludes the evidence, the party must make an offer of proof. 

When the specific nature of the objection is apparent from context/record.

Plain Error Doctrine!

The objection should be immediate.

When several witnesses are needed to lay a proper foundation.

Gives the appellate court the necessary information to determine whether the trial court's decision was erroneous.

1) If the excluded evidence is apparent from the context within which questions were asked

2) More leeway is given to a cross examiner

3) Subject to plain error doctrine

A pretrial request for a preliminary action on an objection or offer of proof.

This is not expressly mentioned in the FRE, but is common practice.

However, the Rule 103 implicitly recognizes MIL by prescribing a definitive ruling "at or before trial"

They can be postponed, tentatively ruled on.

If a definitive ruling has been made on a MIL, and a party violates that MIL, must a party reobject?

Or if a definitive ruling on a MIL is against a party, does that party's motion preserve the error for appeal?

FRE: No. Error is preserved at pretrial motion.

TRE: Yes. Must reobject to preserve.

The objection is overruled

An objection can be conditionally overruled on the proponent's representation that its relevancy will be established by later evidence. If the proponent rests without "connecting up," the opponent has the burden to renew the objection by a motion to strike.

The proper time for objection is when the item is formally offered; after it has been admitted is too late.

Counsel is required to object BEFORE the answer. 

If the grounds for objection does not occur until after the answer, you may object after the fact. 

Generally, an objection doesn't last more than one witness. If two witnesses address the same thing, you have to object both times.

If you object to harmful error once, but later fail to object to testimony addressing the same subject, admission of the earlier evidence becomes harmless.

Only objections need to be made at depo are objection to form

Must demonstrate the grounds for overruling.

Reasonable specificity is sufficient. "Hearsay" or "improper character" is enough. 

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected

Add to the record any further statements about an objection, offer of proof, or ruling as to make the trial court record more clear for the appellate.

Then the objection is NOT preserved as to the other grounds. A statement that is wrongly excluded  is allowed, and conversely, a statement that is wrongly allowed is excluded. 

Ex. Q: "Did A sell you X for Y$?"

Objection, Hearsay!

A: Sustained

Wrongly sustained because formation of a contract is a verbal act, but it is a leading question. Still should not have been sustained, so judge's ruling will be reversed. 

Discussions involving the admissibility of evidecne should be held outside the hearing of the jury whenever practicable

Informal: Attorney states & summarizes the evidence.

Formal: Q&A, evidence received in the words of the witness. This is the more reliable method

No. this would be an overly broad objection. It must be SPECIFIC!

Evidentiary application review standard is:

Evidentiary rule interpretation review standard:

Abuse of Discretion

De Novo

No, except in regard to privelege.

TC decides questions concerning the qualifications of a witness, the competency of a lay witness, and the qualifications of experts, the existence of priveleges, hearsay matters--Unless 104(b) applies.