Evidence – Carter – Fall 2010

Prosecution wants it in? Is it a party admission under FRE 801(d)(2)?

Defense wants it in (or possibly out)? Chambers v. Mississippi: due process, right to fair trial/fair opportunity to defend against State’s accusations: right to confront and cross witnesses, right to call witnesses on one’s own behalf

HEARSAY QUICK LIST:

  • FRE 801(b): Made by a declarant? Person, not animal/machine
  • FRE 801(c): Out of court?
  • FRE 801(a): Statement?
  • Oral/written assertion OR
  • Non-verbal conduct intended as assertion
  • Offered to prove the TRUTH OF THE MATTER ASSERTED?
  • FRE 801(d): NOT HEARSAY:
  • FRE 801(d)(1): Prior statement of witness:
  • Declarant testifies at trial AND
  • Statement is
  • FRE 801(d)(1)(A):Inconsistent: AND was given under oath at trial/hearing/other proceeding/depo
  • FRE 801(d)(1)(B): Consistent: AND offered to rebut charge of recent fabrication/improper influence or motive
  • FRE 801(d)(1)(C): Identification: made after perceiving person
  • FRE 801(d)(2): Admission by party-opponent: Statement offered against a party AND is:
  • FRE 801(d)(2)(A): Party’s own statement
  • FRE 801(d)(2)(B): Adoptive admission (including tacit admissions)
  • FRE 801(d)(2)(C):Speaking agent
  • FRE 801(d)(2)(D):Agent re: matter in SOE
  • FRE 801(d)(2)(E): Coconspirator: during and in furtherance of conspiracy
  • CL HS Exclusions: NOT HEARSAY:
  • Imperatives
  • Interrogatives
  • Impeachment by prior inconsistent statement
  • Verbal Act: words of independent legal significance to prove the act
  • Effect on the Hearer: Hearer’s reaction must be at issue
  • Verbal Object/Chattel:
  • Circumstantial Evidence of State of Mind
  • Circumstantial Evidence of Memory
  • Non-Complaint/Non-Reporting: Cain v. George: omission, not statement
  • FRE 803: HS Exceptions, Availability of Declarant Immaterial
  • FRE 803(1):Present sense impression
  • FRE 803(2): Excited utterance
  • FRE 803(3): Then existing mental, emotional, or physical condition:
  • Intent/plan/motive/design/mental feeling/pain/bodily health
  • No victim’s statements of fear because victim’s state of mind not at issue
  • But see Hillmon Doctrine: present intention admissible to prove subsequent conduct of declarant
  • But cf Majority Rule on Pheaster: present intention inadmissible to prove subsequent conduct of someone other than declarant
  • FRE 803(4): Statements for purpose of medical diagnosis or treatment: rxably pertinent to diagnosis or treatment
  • Backward looking statements ok
  • FRE 803(5): Past recollection recorded
  • FRE 803(6): Business records
  • FRE 803(7):Absence of entry in business records
  • FRE 803(8): Public records and reports
  • FRE 803(9):Records of vital statistics
  • FRE 803(10): Absence of public record or entry
  • FRE 803(11): Records of religious organizations
  • FRE 803(12): Marriage, baptismal, and similar certificates
  • FRE 803(13): Family records
  • FRE 803(14): Records of documents affecting an interest in property
  • FRE 803(15): Statements in documents affecting an interest in property
  • FRE 803(16): Statements in ancient documents
  • FRE 803(17): Market reports, commercial publications
  • FRE 803 (18): Learned treatises
  • FRE 803(19): Reputation concerning personal or family history
  • FRE 803(20): Reputation concerning boundaries or general history
  • FRE 803(21): Reputation as to character
  • FRE 803(22): Judgment of previous conviction
  • FRE 803(23): Judgment as to personal, family, or general history, or boundary
  • FRE 804: HS Exceptions, Declarant Unavailable. (UNAVAILABILITY PLUS x)
  • FRE 804(a): Definition of unavailability:
  • (1): Privilege
  • (2): Refuses to testify
  • (3): Declarant testifies to lack of memory of subject matter of statement
  • (4): Death/Physical or mental illness
  • (5): Unable to procure by process
  • NOT UNAVAILABLE if due to wrongdoing by proponent of statement for purpose of preventing testimony
  • Must be both unavailable for rule/statute and Constitution
  • Barber v. Page: Trial in OK, witness in federal prison in TX.
  • PLUS
  • FRE 804(b)(1): Former testimony: If party against whom testimony now offered had
  • Opportunity AND
  • Similar motive to develop testimony by direct/cross/redirect
  • FRE 804(b)(2): Dying declaration:
  • Homicide case (or civil action/proceeding)
  • Declarant believed death was imminent
  • Concerning cause or circumstances of impending death
  • FRE 804(b)(3): Statement against interest:
  • Must be supported by corroborating circumstances that clearly indicate its trustworthiness if offered in a criminal case and tends to expose declarant to criminal liability
  • FRE 803(b)(2): Statement of personal or family history
  • FRE 803(b)(3):Forfeiture by wrongdoing: statement offered against party who engaged in wrongdoing