Evidence Class 10

1. Evidence Class 10 Rule 804 & 803(1)-(3)

2. REVIEW – Prior Consistent Statements • Generally, prior consistent statements are not admissible for their truth. However, if the witness is challenged on cross examination by an express or implied charge that the witness recently fabricated her testimony or that her testimony is due to an improper motive or influence, and the prior consistent statement was PRE- motive (and thus rebuts the charge) it is admissible for its truth

3. Prior ID • Prior ID is admissible for its truth if it was made by the declarant after perceiving the person identified

4. Requirement that declarant testify and be subject to cross • For prior inconsistent statements, prior consistent statements and prior i.d., the declarant must testify and be subject to cross on the prior statement.

5. Policy summary • Prior inconsistent statement is reliable b/c under oath at a formal proceeding • Prior consistent statement is reliable b/c it is pre-motive • Prior i.d. is reliable b/c i.d. close in time to event reliable

6. Admissions of a party opponent • Doesn’t need to “admit” anything – in reality any STATEMENT by a party opponent (whether against interest or not) is admissible AGAINST the opponent. Theory is that if your opponent said it she cannot complain she did not have a chance to cross examine herself.

7. Types of Admissions • An individual admission can be one spoken/written by your opponent • It may also be an adoptive admission (by her conduct, your opponent adopted the statement/writing made by someone else) • An admission by an authorized spokesperson also may be offered against one’s opponent

8. Agent/employee admissions • A statement made by a party’s agent or servant concerning a matter within the scope of agency or employment made during the existence of the agency or employment relationship is admissible against the employer/principal (policy is basic agency law – the idea is that the employee/employer are one and the same for purposes of statements relating to the employee declarant’s job responsibilities).

9. Co-conspirator admissions • Idea is that all conspirators are one and what one says is imputed to the other - for co-conspirator admission - statement must be made during the existence of the conspiracy and must be made in furtherance of the conspiracy

10. Exceptions • For all exceptions, try and remember the policy reasons as to why this kind of statement is thought to be reliable.

11. How to outline – USE BARPH • Relevance: • 1. General Rule – 401 (explain test – break rule into component parts) • 2. Limit on General Rule – 403 (explain – break rule into component parts) • 3. Special Relevancy Rules (keeping out relevant evid for policy reasons) • a. Subsequent remedial measures (policy: encourage repairs without fear of liability)

12. Outline cont’d • a1. Elements of subsequent remedial measure • A. List first element and explain to self (think about how it relates to the policy of the rule – E.G. FIRST ELEMENT: AFTER INJURY OR HARM ALLEGEDLY CAUSED BY AN EVENT – NOTE TO SELF – MUST BE “AFTER” INJURY B/C POLICY IS TO ENCOURAGE REPAIRS – THUS MUST I.D. THE EVENT AND SEE IF INJURY/HARM WAS AFTER THAT) • B. List second element and explain to self (etc) • b. Settlement offers (policy) etc.

13. Studying/outlining tips • KEY: IF YOU UNDERSTAND THE POLICY IT WILL HELP YOU REMEMBER THE RULES! • The only way you will know if you really understand the rules you have outlined is to APPLY them. Thus, after you complete your outline (or a relevant section of the outline), you should start practicing application of rules via Emanuel’s flashcards or other hypos

14. Rule 804 - unavailability • Before Rule 804 exceptions will apply, you must show the declarant is unavailable (e.g. won’t testify b/c of a privilege or refuses to testify despite a court order; can’t testify b/c of physical or mental infirmity; lacks memory of the event; or is beyond the process of the court). If you are claiming witness beyond subpoena power of court, must show that you tried reasonable means and that you tried to depose. Preference is for testimony under this rule – this is thought more reliable than statements v. interest or dying declarations .

15. 804 & Confrontation Clause • Note that you may have confrontation clause issues even if the evidence is admissible under R. 804 (more to come in a future class . . . )

16. “Do you swear to spin the truth, the whole truth . . .” (804(b)(1))

17. Requirements for 804(b)(1) – former testimony • Read the rule and write out the elements (all things you must prove to admit evidence under this rule) • Witness testimony at another hearing or depo • Party AGAINST whom it is offered or pred in interest • Had oppor and similar motive to develop the testimony • Compare with a colleague

18. policy • What’s the policy reason for allowing in former testimony – what makes it reliable? • Why is former testimony hearsay? • Why not just let it in without having to show witness is unavailable?

19. Testimony at a hearing or in a deposition • Self-explanatory – note that hearing encompasses another trial • Other prongs will be explored through hypos – those are usually the contested issues

20. Hypo #1 • Cars driven by Plato and Dee collide in an intersection. At trial, Plato calls Willa who testifies that she saw Dee run a red light and crash into Plato’s car. The jury finds for Plato. For reasons unrelated to Willa’s testimony, the verdict is overturned and a new trial ordered. At the second trial, rather than call Willa to testify, Plato introduces the transcript of Willa’s testimony from trial number one. Dee objects on hearsay grounds. What is the hearsay statement? • (A)How should the judge rule? (B) Would your ruling be different if Plato offered an affidavit from Willa attesting to the fact that Willa now lives in Australia and won’t come back for trial?

21. The only people in the room are the prosecutor, the witness, and the grand jury members. The prosecutor presents evidence to the grand jury (without the defendant or defense lawyers being present) After the prosecutor presents all her evidence, the grand jury decides whether there is sufficient evidence to believe there is probable cause that the defendant committed the crime charged. What happens in a grand jury room

22. #2 • Police seize several kilograms of cocaine from Donny’s rental beach house and arrest Donny and his sister Marie. Donny is charged with possession and Marie is charged with large scale distribution. During the grand jury hearing, Donny testifies that Marie paid half of Donny’s rent in exchange for Donny letting Marie use the apartment as a place to store her cocaine. At Marie’s trial, Donny pleads the 5th. The government seeks to admit Donny’s testimony from the grand jury hearing. May it do so? • What is the hearsay statement?

23. Cont’d • Assume that Donny’s testimony at the grand jury hearing was helpful to Marie rather than the gov’t; Marie wants to have it admitted under the former testimony rule - how should the court rule? • (preview ?: Why isn’t the statement admissible as a statement against interest?)

24. #3 • Several cars collide when a truck overturns on I-85. Misha suffers a bruised shoulder and $800 in property damage. Suki suffers brain damage. Misha and Suki file separate suits against ABC Corp, the owner/operator of the truck. The alleged negligence in each case is that the truck driver crossed the center line (the truck driver claims that he was cut off and faced a sudden emergency)

25. #3 cont’d • Misha’s case(property damage/bruised shoulder) moves more quickly than Suki’s (brain damage). Misha deposes the driver and two witnesses. Misha’s case settles. Both witnesses thereafter become unavailable pursuant to Rule 804(a). When Suki’s case comes to trial, defendant offers the deposition testimony of the two witnesses. Suki objects on hearsay grounds. What are the hearsay statements? • 1. Misha v. ABC • 2. Suki v. ABC • (unavail – yes; testimony at depo – yes; party against whom offered (Suki) or a pred in interest (misha) – was misha a pred in interest (analysis – if require privity – no b/c no legal relationship; if don’t require privity – look at whether Misha and Suki had the same or similar interests in the lawsuit – here – interest was in finding def negli; did Misha have oppor and similar motive to examine witnesses – yes – wanted to find negli; maybe no b/c may have wanted to do it on the cheap b’c of different values of cases) • Does the former testimony exception apply here? (Hint: identify the element that will be contested and argue both sides)

26. #3 cont’d • What if Suki offers the deposition testimony of the two witnesses and defendant objects on hearsay grounds? • What if at the depositions, the plaintiff took the depositions, but the defendants did not do any cross examination - they were present but didn’t cross b/c they were saving the “good stuff” for trial - does that make a difference in your analysis?

27. Dying declarations • Identify the elements required to show a statement is a dying declaration

28. What’s the policy reason underlying dying declarations

29. State v. Quintana - p.632 • What was the contested evid – make sure you can explain why the evidence is hearsay • What was the reason it was contested • What is the holding (good example of using the facts – make sure you can articulate the facts supporing this holding) • When trying to determine whether statement made under a sense of impending death - what are we looking for?

30. More on dying declarations • How can you impeach a dying declaration • For dying declaration, must show declarant had personal knowledge of facts in statement (can’t be speculation) • Dying declaration can also be used to exculpate

31. #4 • As Joan lay dying of gunshot wounds after robbery, she said “I know my time is almost up because I’ve been shot. Pete is the guy who shot and robbed me”. • A. Joan dies and the government wants to introduce Joan’s statement against Pete in his murder trial (to prove he is the killer). May it do so? First – i.d. whether it is hearsay; then analyze admissibility (using only R. 804 at this point) • B What if Pete is just on trial ONLY for robbery. May gov’t introduce Joan’s statement at his robbery trial (to prove he is the robber)?

32. #4 cont’d • Does Joan’s statement get in as a prior i.d. under 801(d)?) • What if Joan didn’t die but was unavailable and there was a civil case for battery - could the statement come in?

33. Final notes on dying declarations • Rationale for limitations - homicide case - necessity; civil cases - stakes only $; really think dying declarations aren’t all that reliable • “circumstances of death” include explanations of the predicament that led to death (e.g. I was shot b/c I knew too much about the bank robbing )

34. Statements against interest • Identify the differences between statement v. interest and party opponent admissions

35. Statements v. interest • Includes statements against monetary interest, property interest or statements that would tend to subject the declarant to civil or criminal liability. • What’s the policy reason underlying admissibility of these statements – why do we think they are reliable enough to allow these hearsay statements in?

36. CB p. 636 Ghelin v. Johnson • What was the contested evid? • Why are these statements hearsay? • Are they admissible as statements against interest? Why/why not?

37. Statements against penal interest • Statement is one that would tend to subject the declarant to criminal liability to such an extent that a reasonable person would not have made the statement unless it were true

38. Look at the context to see if against interest • X admits – “I was with a prostitute on December 21.” • X is being investigated for a murder that occurred on Dec. 21. Is X’s statement against his interest?

39. query • Wife is charged with possession of marijuana. She has a long record and if convicted will serve a 25 year sentence. The husband has no record and at most will serve 2 years. The couple has 3 young children. The husband says, “it was my pot, not hers.” Is that a statement against interest? Why/why not?

40. Interpreting statement v. interest • Some courts - very strict interpretation - not a statement v. interest unless it unequivocally subjects declarant to civil liability or implicates declarant in criminal activity; other courts have more liberal interpretation - only has to TEND to subject them to civil liability or TEND to implicate them in criminal activity

41. Williamson (not assigned) • Statements that are self-inculpatory but intertwined with non inculpatory statements • Contested evid: Harris gets caught w/cocaine in his car; cops want him to go through with the delivery so they can nail the big guy; Harris agrees and then backs out; during post-arrest interrogation, he states he was transporting cocaine for Williamson and that Williamson was traveling in front of him in another rental car. Williamson saw Harris got stopped and thus a controlled delivery would not work.

42. Williamson cont’d • At trial, Harris refuses to testify Gov’t seeks to get in Harris’ statement (“I was transporting cocaine for Williamson”) in Williamson’s trial (Harris is unavailable). • Make gov’t’s argument as to why Harris’ statements are against his interest • Make Williamson’s argu as to why his statement was not against H’s interest

43. REMEMBER – for statement v. interest, must look at the context! • If, in a narrative a statement inculpates self and another- should sever the statement and admit only the statement v. declarant’s interest • If statements intertwined (self-inculpatory and inculpating another so intertwined that not easily severable b/c lose meaning/context - then have to look at whether statement really v. interest or really for another motive (e.g. curry favor)

44. If exculpates another must show statement is trustworthy • If the statement against interest is one that exculpates another - need corroborating circumstances indicating the trustworthiness of the statement (see factors in G&W note 3 p. 279)

45. Hypo # 5 • Owner sues tenant to recover damages caused by a fire. Owner offers a statement by tenant’s employee (its security guard) to a bystander at the scene of the fire. The guard said, “!@#!, I bet that match I was lighting for my cigarette fell into that whiskey I dropped on the floor!” The guard has left the state and can’t be located. The statement is being offered to prove that the guard started the fire. Tenant objects on hearsay grounds (i.d. why hearsay). Owner argues it is not hearsay for three reasons. What are Owner’s reasons and how should the judge rule on each of Owner’s theories as to why the evidence is not hearsay.

46. #6 • Plaintiff was severely injured in a car wreck. She was a waitress. During her deposition, she testified, “I know that my income tax returns don’t show it, but I actually earned $45,000 a year. I just did not report all my tips.” Before trial, plaintiff dies. Her estate now is suing for wrongful death. To prove plaintiff’s lost income, they seek to introduce her deposition testimony as a statement against interest - may they do so? Is there any other way to get this testimony in to evidence?

47. #7 • Ben is arrested for robbing the local 7-11. While in prison awaiting trial, Ben is talking to Clem who says, “Too bad you got nailed. I know you didn’t do it, because I did. But I’m not about to take the rap.” Clem is released and disappears before Ben’s trial. May Ben introduce Clem’s statement?

48. Rule 804(6) • Rule 804(6) - if someone has procured the declarant’s unavailability by wrongdoing, they cannot object to the introduction of the hearsay statement. e.g. Witness A makes a statement that hurts the plaintiff’s case. Plaintiff pays for witness to take a world cruise during trial. Def wants to introduce witness’ statement; plaintiff claims can’t do it b/c it’s hearsay; plaintiff will lose that argument and the statement will come in

49. Rule 803 • With Rule 803 – declarant’s availability does NOT matter (can be available or unavailable) • With hearsay analysis – if hearsay, look first to Rule 801(d); then to 803 (b/c don’t have to do availability analysis); last resort – 804 or the “catchall exception” (we will study this exception next week)

50. Rule 803(3) • “A STATEMENT OF THE DECLARANT’S THEN EXISTING STATE OF MIND, EMOTION, SENSATION OR PHysICAL CONDITION (SUCH AS INTENT, PLAN, MOTIVE, DESIGN, MENTAL FEELING, PAIN, BODILY HEALTH) BUT NOT INCLUDING A STATEMENT OF MEMORY OR BELIEF TO PROVE THE FACT REMEMBERED OR BELIEVED UNLESS IT RELATES TO THE EXECUTION, REVOCATION, IDENTIFICATION OR TERMS OF THE DECLARANT’S WILL”