Evidence Outline

Hearsay Exceptions

c) Problem 4-G – “I Was on Errand for Boss”

i) Facts: Fender bending between car and a truck that said “Farmright Produce Corp.” on the truck. Driver apologized after accident and said he was making a delivery for Farmright and got distracted trying to read his purchase order.
ii) Analysis: The purpose of statement: Prove driver was an agent and to Prove driver was negligent. The ultimate issue in this case is whether the driver is an agent
iii) Coincidence

(1) In order to decide whether this evidence is admissible, the judge is forced to consider the ultimate issue that must be determined by the jury.
(2) Company wants to avoid even the conditional admission of statement under FRE 104(b).
(3) The judge will probably very carefully admit the statement, w/o tipping hand to ultimate issue.

iv) How does judge determine, under FRE 104, whether to admit the statement by the driver?

(1) This is an example of “bootstrapping”
(2) Can the statement itself be used to determine its admissibility (circular reasoning), or is some corroboration required?
(3) The statement itself can be used, but not exclusively. Some other evidence must exist that further supports the relevance of the statement.

v) What’s the rule?

(1) Judge may look at the statement as “partial proof”
(2) There must be some other evidence that supports the statement
(3) The change is that the statement may provide partial proof – the old rule was that the statement could not be considered AT ALL.

vi) Conspiracy

(1) Two or more people working together to commit an illegal act
(2) Every member of the conspiracy is equally guilty
(3) It is agency principles that allow each member of the conspiracy to be held culpable for each other’s acts.
(4) What does the rule require to hold a conspirator responsible?

(a) Act must be committed during the course of the conspiracy (Time)

(b)
Act must be in furtherance of the conspiracy (Relatedness)
a) Much that is hearsay actually is admissible, courtesy of a number of exceptions.
b) Four main groups of exceptions:

i) Prior statements by testifying witness – FRE 801(d)(1)
ii) Admissions by a party opponent – FRE 801(d)(2)
iii) “Unrestricted” exceptions – FRE 803
iv) Declarant is unavailable as a witness – FRE 804 (b)

Hearsay Exceptions – Prior Statements by a Testifying Witness

1) Exceptions – Generally

1) Prior Statements by a Testifying Witness (Declarant)

2) Case Law

a) Case: State v. Smith (1982)

i) Case is about a prior inconsistent statement – FRE 801 (d)(1).
ii) Facts: Woman told police, under oath, that one man was her assailant, then a month later identified another man. Can her prior statement under oath constitute a statement in “another proceeding”?
iii) The analysis of this particular prior statement suggests that it qualifies as having been made in “another proceeding.”

(1) She was present at the trial to testify to the fact that she did make the statement
(2) She was fully “sworn in” and subject to the penalty of perjury
(3) She wrote the statement in her own words
(4) Jury could see her demeanor while testifying under cross-examination and determine which statement was the true statement.

iv) Rule: Court here decided that the prior inconsistent statement is admissible, even as substantive evidence.
v) NOTE: This is the minority rule. Generally, such statements may only be used as impeachment evidence.
vi) Basically about prior inconsistent statements

(1) Declarant must be present.
(2) Must be subject to cross-examination.
(3) Statement must have some “dignity.”

(a) Dignity makes the statement non-hearsay
(b) Non-hearsay is substantive evidence, so can be used in ways that impeachment evidence cannot
(c) The measure of “dignity” varies. Smith is the exception, but even it has limits.

vii) All about reliability … was this reliable?

b) Case: Tome v. United States

i) Facts: Tome was appealing conviction for sexually abusing his daughter. Six-year-old daughter’s testimony consisted of one or two word answers to leading questions, and was reluctant to testify to specifics. Prosecutor tried to get other statements made previously by the daughter as substantive evidence, under the prior inconsistent statements’ rule.
ii) Rule: SC read into the FRE the common law understanding of prior inconsistent statements.

(1) Figure out when the motive to lie arises.
(2) Prior statement must precede the motive to lie in order to get the statement in.

iii) Be careful in identifying what exactly the motive is to fabricate testimony and what the origin of that motive is.
iv) The temporal requirement (which is the common-law rule on inconsistent statements) is the key point to take from this case.

c) Case: State v. Motta

i) Facts: Cashier is robbed in a convenience store. He describes the robber to a police artist. Based on that sketch, the cashier also picks out robber (also technically hearsay) from a photo array, a lineup, and at a preliminary hearing.

(1) Note: The “description” alone is classic hearsay, and the sketch itself is probably also hearsay, as a representation of her statement – maybe even double-hearsay.
(2) Note: There is some irony here … the reality is that “fresh” ID statements are realistically much more reliable than pointing to the guy sitting at the defense table.

ii) Arguments for admissibility of identification testimony:

(1) Res Gestae
(a) Old common law rule
(b) If the information comes sufficiently close to the time of the incident, it is more reliable and therefore admissible.

(2) 2nd Cir. – Non-hearsay, as it is a “verbal description” of the suspect’s characteristics.

(a) Just confirm that it is a “fair and accurate representation” of that person.

(3) Illinois – The sketch is merely corroboration of her identification.
(4) FRE 801 (d)(1)(C) – specific exception for prior identification. “(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (C) one of identification of a person made after perceiving the person.”

iii) Note: This “hearsay within hearsay” is falls under FRE 805, which allows it when they conform with an exception to the hearsay rule (in other words, justify each link in the hearsay chain).

(p.206) [Prior Statements of Identification][Prior Consistent Statements] 3) Hypos

a) Problem 4-A – “I Got Amnesia”

i) Facts: Breen told the grand jury all about a robbery – who, how, etc. However, at trial Breen says “I can’t remember.” Barlow’s counsel objects to the admission of the grand jury transcripts, and the prosecutor claims he has “selective memory loss” and is faking.
ii) On cross, Breen does make some admissions

(1) He’s been a robber all his life
(2) He quit robbery when he entered the witness protection program and was paid $20,000.

iii) Inconsistency

(1) Evidentiary inconsistency is a sort of “big picture” inconsistency.
(2) We’re not talking about exact opposites, but rather a statement that doesn’t match up on material matters.

iv) Memory Loss

(1) Total memory loss is NOT inconsistent
(2) Selective memory loss suggests feigned memory loss that is lying and not memory loss.
(3) Selective memory loss is likely to be seen as inconsistent

(a) A careful Judge will probably hold a hearing to determine if memory loss is feigned.
(b) Court will consider medical/psychological opinions about the feigned memory loss.

v) Cross-Examination

(1) Only need to cross-examine the statement / prior-testimony – not the person (who is not capable of it).
(2) NO requirement that the content of the statement be capable of being cross-examined.

1) FRE 801 (d)(2) – Not only can other people’s comments be admitted as non-hearsay, but what the party said could be used against him, as well.

a) Ex: A man is in an accident, and comments “I ran the red light.” Then, at trial, he contends the light was green. That statement can be used against him for impeachment.
b) This apples to (a) his statements, as well as (b) something he has adopted as the truth, (c) statement by someone authorized by him, or
c) Concept is that admissions are a kind of conduct, amounting to behavior by a third party which provides circumstantial evidence of what they assert.

i) Not binding, but it does force the party to either try to explain or defend it or risk the jury using it against him.

a) Almost no limits to individual admissions, other than Constitutional Protections against self-incrimination, but statements are broadly admissible.

b) Problem 4-B – Fire in the Warehouse

i) Facts: Employee places welding torch on ground near paint shed, leaves to get a Coke. Moments later a fire starts. Customer with a truck in the garage wants to sue Employer for damages. The insurance adjuster heard the Employer say the fire started where the torch was left. If the insurance adjuster is permitted to testify, he will say just that.
ii) Can the Customer call the insurance adjuster to testify? Does his testimony get in?
iii) Rule: Yes, under FRE 801(d)(2)(A) – statement of a party opponent.
iv) Note: This seems a bit unfair – Carter has no firsthand knowledge of what happened. However, the commentary to the Rule calls for a broad interpretation. We just don’t believe in protecting people from their own words.

c) Case: Bruton v. United States (p. 219) (Note: old law) [Admission by a Party Opponent]

i) Facts: James arrested for armed postal robbery. James confessed to the crime, and also said that Bruton did it with him. The statement that Bruton was involved is hearsay, so the judge instructed the jury not to use the portion of James’ confession that implicated Bruton against Bruton (same case).
ii) Rule: Supreme Court disagreed with the admission of any part of the confession.
iii) Fails the balancing test under FRE 401, 402, 403.

(1) The evidence is so prejudicial so as to be impossible to deal with through a limiting instruction (jury could not disregard it).
(2) If you want to use the confession, you’ve got to have separate trials.
(3) Decision is a reasonable extension of Jackson v. Denno.

(a) Jackson said that you can’t leave the voluntariness of a confession up to a jury
(b) Similarly here, you can’t rely on a jury to pretend that they didn’t hear something they’ve already heard – because confessions have a uniquely devastating impact.

iv) New options for the prosecution

(1) Sever the case into two separate trials (BEST).
(2) Redact the non-declarant out of the confession (i.e. exclude the part about Bruton).
(3) Try them together, but impanel two juries.

(p.225) [Admissions in Multi-Party Situations](p.213) [Individual Admissions by a Party Opponent] 2) Individual Admissions

3) EXAM-TYPE Problem 4-D – His Master’s Car

a) Facts: Napton negligently runs over O’Brien while working for Ace. One month later, Napton is fired