E&E Hearsay Exceptions Flashcards
Carl Cashman was injured by a hit-and-run driver. While he was being treated in a hospital emergency room, he saw Edward Evers walk in. He started to tremble, and he shouted, “That’s the guy who nearly killed me!” Can a nurse who heard Cashman’s statement quote it at a trial in which Evers is accused of having driven into Cashman?
Yes. Cashman’s statement is an excited utterance. It is hearsay since it is being introduced to show that Evers is the one who drove a vehicle into him, but the exception covers it. The statement relates to a startling event or condition—either the injury that had happened shortly before the statement or the shock produced by the sight of Evers. The statement explains either of those two possible stimuli.
A shopping center owner sought damages from a department store corporation, claiming that the store had failed to honor its obligation to operate a store at the center for five years. In defense, the store sought to show that the center had failed in its obligation to manage the shopping center under terms of an agreement describing it as a “first class facility” to be operated with “adequate security provisions.” May the store introduce the agreement? May the store introduce a survey of shoppers at the center showing that many stated that they felt nervous and unsafe at the center?
The agreement does not involve any hearsay problems. It is a legal document, which will be given meaning by the legal system, applying doctrines, precedents, and principles of interpretation that do not necessarily depend on the literal meaning of the words in the document. The survey is a method of introducing out-of-court statements by shoppers about how they felt at the time they were interviewed by the survey interviewers. Therefore, since the statements are being introduced to show what the speakers felt and since those statements do describe what the speakers were feeling, the definition of hearsay is satisfied. An exception allows the survey to be admitted: The words are descriptions of the declarants’ then-existing mental condition or state of mind.
Chris Lender is accused of attacking George Borrower. To show that Lender had a motive, the prosecution seeks to show that Borrower had borrowed money from Lender and had refused to repay it.
a. The prosecution seeks to have a friend of Borrower’s sister testify that two days before the assault, Borrower’s sister said to the friend, “Borrower owes Lender a lot of money, but he just keeps stringing her along about it.” Is the testimony admissible? b. The prosecution seeks to have a friend of Lender’s testify that before the assault, Lender said to the friend, “Borrower owes me a lot of money, and he just keeps stringing me along.” Is the testimony admissible?
a. The out-of-court words are relevant only if the information they contain is true. That is, they would shed light on Lender’s possible motive only if the proposition they assert—Borrower owed Lender money—is true. Therefore, they are hearsay. No exception applies to allow their admission. It is important to recall that evidence can be relevant and inadmissible, as in this example, where the evidence is relevant but is kept out by the hearsay rule.
The mental state exception does not cover the mental state of memory if the declarant’s memory would be relevant only to show that the event happened. Here, the recollection by Borrower’s sister that Borrower owed Lender money is relevant not because she possessed that memory but only because what she remembered was true. The admissions rationale would not support admission of the statement by Borrower’s sister since she is not a party to the suit.
b. Lender’s out-of-court statement is outside the definition of hearsay since it is an admission. It could also be analyzed under the state of mind exception. Whether or not it was true that Borrower owed Lender money, Lender’s statement that she believed Borrower owed her money shows a mental state consistent with a motive to attack Borrower. Even if her memory about a debt owed to her by Borrower was false, the fact that she possessed that memory is relevant to her having had a motive to harm Borrower. Statements of belief are outside the scope of the mental state exception if their relevance depends on their use to prove that the fact believed is true. That situation is illustrated in part a of this problem. Statements of belief are covered by the mental state exception if a speaker’s possessing that belief is relevant independent of whether the belief is accurate. Part b of this problem illustrates this latter situation.
Harry Holmby was injured while using a product manufactured by the defendant. In his products liability suit, one issue concerned the seriousness and duration of Holmby’s pain from the injury. A few years after the accident, Holmby was treated by Doctor Ina Iliff. May Dr. Iliff testify that Holmby told her he had been suffering from severe back pains since the incident with the product?
Holmby’s out-of-court words to Dr. Iliff are hearsay since they are sought to be introduced to show that since the time of the product-related injury, he has had severe pain. The statement is admissible, however, under the exception for statements for the purpose of medical diagnosis or treatment.
In a medical malpractice suit, the plaintiff introduces testimony by a doctor who has never treated him but who has examined him as part of preparation for the trial. In her testimony, she states that in her opinion the defendant doctor failed to conform to typical standards of treatment. She states that her opinion is based on what the plaintiff has told her about his symptoms before and after the defendant doctor treated him. Is her testimony based on inadmissible hearsay?
The testimony includes hearsay, but it is admissible because the out-of-court words were spoken by the declarant to the doctor for the purpose of medical diagnosis. An expert physician’s evaluation of a person is considered to be a diagnosis even if no treatment is expected. This points out the pro-admissibility orientation of the Federal Rules. A person has strong incentives to tell the truth to a doctor who will be performing or prescribing treatment to improve the chances that the treatment will be effective. On the other hand, if a person is speaking to a doctor who will only be giving an opinion in connection with a lawsuit, the incentive is only to say things that will help shape the doctor’s opinion in a way that is legally favorable. The Federal Rules do not distinguish, as common law jurisdictions sometimes do, between treating and testifying physicians. Statements to both types of doctors are admissible. It is likely that opposing counsel will be able to alert jurors to the risk of untruthfulness inherent in the situation where a litigant talks to a doctor for the purpose of preparing testimony.
A child who could not swim was rescued from a deep swimming pool. The person who pulled him out rode with him in an ambulance and told the receptionist at a hospital emergency room, “This kid just jumped into a pool and he couldn’t swim.” The child’s parents seek damages from the operator of the pool, claiming that their child slipped on a slick walkway near the pool and that this slip made him fall into the water. They contend that more frequent mopping would have prevented the walkway from being so slick. Can the emergency room receptionist testify about what the rescuer said had happened?
The rescuer’s out-of-court words are sought to be introduced to prove that their content is true—that the child jumped, rather than fell, into the pool. Used for this reason, they are hearsay. The exceptions for excited utterances and present sense impressions might or might not apply, depending on how soon after the incident the rescuer spoke to the receptionist and on how excited the rescuer was when speaking.
If the excited utterance and present sense impression exceptions did not cover the statement, would the exception for statements for medical diagnosis or treatment apply? Statements under that exception do not have to be made to doctors. Any person involved in the providing of health care can be the person to whom the statement is addressed. The receptionist at an emergency room is closely enough connected to the delivery of health services for such statements to be defined as connected with obtaining medical services. It is difficult, however, to extend the reach of this exception to cover the actual out-of-court words that are important to the swimming pool operator’s defense. The “jumped into a pool” part of the statement is not easily characterized as intended to facilitate treatment or diagnosis. Certainly a statement that the child had been underwater is fully within the coverage of the exception. But the fact that he got into the water by jumping is hardly something a physician would need to know to treat drowning. Details about causation of a person’s health problem are covered by the exception only if they are reasonably pertinent to the medical worker’s task.
Louise Levin sought damages for a nuisance inflicted against her property by a neighbor, Marvin Miller. Levin claimed that Miller had a furnace that emitted vast quantities of thick dark smoke and that the smoke drifted into Levin’s house. Levin kept a diary, recording her daily observations of the smoke for a two-year period. The diary states hours and weather conditions on each day that the smoke was noticeable at Levin’s house. How might Levin’s lawyer make use of that diary at trial?
The information in the diary would be relevant on the issue of the extent of the nuisance. It is hearsay since the written statements are relevant at trial only if what they assert is true. Assuming that Levin does not have the ability to remember the details it contains for many days of a two-year period, Levin’s lawyer would attempt to use the hearsay exception for recorded recollection. The exception would apply if testimony by Levin showed that she made entries in the diary at the time she observed the smoke and weather or soon after those times, and that she did not have a good memory of those details at the time of the trial. The diary entries could be read to the jury, but the diary itself would not be admissible as an exhibit unless Miller (the neighbor) offered it.
The present sense impression exception might also apply. Its usual rationale for reliability, that the declarant’s statements were subject to a contemporaneous check on accuracy, does not exist in this case. Some courts would refuse to apply the exception for that reason.
The diary cannot be a business record, because it was not made in the course of a regularly conducted enterprise. Allowing a personal diary to be admitted under the business records exception would ignore the policy behind the doctrine, that a business’s own needs for accuracy and its employees’ own needs for job security provide fairly strong guarantees that truth, not fiction, will be found in the records of the organization.
A Buick driven by Mrs. Prince crashed at an intersection into a BMW driven by Mrs. King. In Mrs. King’s civil suit, to establish that traffic signals at an intersection were probably working properly at the time of the accident, a witness testifies that she is an office manager at the city’s traffic signals department and that she has with her a document that was in the department’s regular files. The document was written by Zane Foreman, foreman of one of the department’s maintenance crews. It states the following information: On the day of the accident Foreman and William Worker, another traffic signals department employee, went to the intersection to check the lights; while Foreman talked to police officers who were on the scene, Worker examined all the light bulbs and timing devices and found that they were all in good condition. Is the document admissible?
The document has two levels of hearsay. It is Foreman’s written out-of-court statement containing a report of Worker’s spoken out-of-court statements about the bulbs and timing devices. Unless Worker’s information is true, the document has no relevance to the trial. Further, to establish relevance Foreman’s statement must also be true (his statement is that Worker said certain things). The public records exception will cover the document. Worker obtained the information in the document as part of the usual operations of the department for which he works. It can also be said that Foreman wrote his report as part of the department’s typical work. There was testimony in court that the document was found in a place where it was supposed to be kept, supporting a finding of reliability. When people are in the workplace, the fact that they want to avoid being fired and want their organizations to work well serves as some guarantee of reliability. Worker’s spoken words to Foreman and Foreman’s written statement about Worker’s spoken words are all admissible under the public records exception, assuming that they related to topics that workers from the traffic signals department were supposed to observe and report.
Assume that the document from Example 9 also contained this sentence: “Worker said that while he was checking the timing units, the driver of the crashed Buick, Mrs. Prince, came up to him and said that driving is so hard to do nowadays that she knew she really shouldn’t do it anymore.” Could that information be used at trial against Mrs. Prince to show that she had driven carelessly?
This sentence adds a third level of hearsay to the problem. The document written out of court quotes Worker’s statement that quotes Prince’s statement. If employees of the traffic signals department are supposed to observe and record information about traffic accidents, then Worker’s repeating of Prince’s statement and Foreman’s written statement recording what Worker said he had heard Prince say are covered by the public records exception. This treats Foreman’s record of what Worker said he heard the same way Example 9 treated Foreman’s record of what Worker said he saw.
Note, though, that the proponent of the document wants the jury to have more than a basis to believe that Worker said what Prince said. The proponent wants Prince’s words to be available to the jury as proof of what they assert. That use would be hearsay, so the portion of the report that sets out Prince’s words will be admissible for the truth of what Prince’s words assert only if it has its own protection from the hearsay exclusion rule. In this case, Prince’s statement will be treated as an admission. It is something she said, offered against her at a trial. Therefore, all three out-of-court statements are admissible.
Assume that the document from Example 9 also contained this sentence: “Worker said that someone came up to him and said that last week she had seen the traffic lights all go off for about five minutes and that it nearly caused a crash.” Could that information be used at trial to support a party’s contention that the traffic signals had malfunctioned?
The first two levels of hearsay are taken care of by the public records exception. Because the information reported by the stranger is important to the operations of the traffic signal department, Foreman and Worker were probably acting within their duties of employment by listening to it and recording it. The stranger’s words fit the definition of hearsay because they are introduced to show that the lights worked badly on a particular occasion (rather than just to show that the stranger said the words, which would avoid the hearsay problem but deprive them of relevance). No exception covers the words. They are not, for example, an excited utterance or a present sense impression. And while the public records exception allows proof of the fact that they were said, it does not allow the words to be introduced to prove the truth of what they assert.
Richard Rover was injured in an automobile accident. He seeks damages from the manufacturer of the car, claiming that it had design flaws that intensified his injuries. As a defense, the manufacturer asserts that Rover was speeding at the time of the injury. Rover’s hospital record contains the following note made at the time of his admission to the hospital: “Patient says car crash, hit telephone pole at 90 m.p.h.” What problems are there with admitting this document to prove that Rover (the patient) was speeding when he was injured?
There are two out-of-court statements: the hospital worker’s written statement and Rover’s words about speeding. Rover’s words would be an admission if there was acceptable proof that he ever said them. The offered proof that Rover said those words is the hospital document. Is its written assertion that Rover said the words about speeding admissible to show that Rover said the words? The document is hearsay since its relevance depends on the truth of its statement that Rover said he had been speeding. The business records exception should not defeat the hearsay exclusion on these facts unless hospitals treat car crash victims differently depending on whether they were speeding, driving within the speed limit, or parked in a car that another vehicle crashed into. This shows that the mention of speeding in the hospital record was not necessary for the conduct of the hospital’s business. Because it was not important to the hospital, there is an increased chance that it might not have been recorded carefully. If the business records rule were used as a means for introducing written material containing information that was not useful for the businesses that made the records, that would contradict the general rationale for the exception: the idea that business documents are usually accurate because the workers have an incentive to be careful about what they record.
The Libertyville City Library seeks damages in a contract action from the supplier of a checkout and book inventory system. The Library states that the defendant’s system was marketed as being capable of cutting down thefts and other losses from the Library’s collection. The Library asserts that the number of books unaccounted for during typical months in which it has used the new system has exceeded the number for comparable months in years prior to purchase of the system. May the Library introduce its own records of books checked out, books found on shelves, and other inventory measures to show that losses have been worse since installation of the defendant’s system?
Yes. These records are the public agency equivalent of business records in the private context. They are hearsay if introduced to show that what they state about the presence or absence of books is true. However, they are admissible because of the exception, under the Federal Rules, for records setting forth the activities of a public agency.
To prove that the defendant sold drugs, can the prosecution introduce a videotape that shows the defendant saying, “I’ve got the stuff. Give me the money,” and shows her exchanging drugs for money?
There is only one level of hearsay in this problem: the out-of-court statement by the defendant about having “stuff.” It would be admissible under the Federal Rules, defined as a non-hearsay admission. The videotape is not an out-of-court statement because it is made by a machine not a person.
In another trial, to prove that the defendant sold drugs, can the prosecution introduce a police officer’s notebook with a description in the officer’s handwriting stating that he observed the defendant exchanging drugs for money?
The notebook is hearsay since it is relevant only to prove that what it asserts—that the defendant sold drugs—is true. To be admitted, its statements must fit within an exception to the hearsay exclusion. They are not admissions since they are not sought to be introduced against the person who made them. They cannot be admitted under the exception for public records and reports because that provision of the Federal Rules cannot be used to admit records of police observations against a criminal defendant. While some courts have been willing to use the standard business records exception to admit some types of documents created by law enforcement personnel in criminal cases, those cases have usually involved documents created in a less adversarial situation than the situation in this example. The past recollection recorded exception might apply if the police officer who wrote the notes testifies at the trial and cannot remember the events described in the notebook.
An issue in a products liability suit is whether a car manufacturer used adequately strong material for the straps of a seatbelt. A federal agency has conducted research on materials that can be used for those straps and has issued a report. The report describes many different tests on various materials and shows that materials usually did well on some tests and less well on others. It also states that certain materials, on the basis of all the test results, will be able to withstand typical crash impacts. Should this report be admissible to show that what it concludes about the material used by the manufacturer is true?
The report is hearsay. Its admissibility depends on how narrowly part of the Federal Rules provision for public records and reports should be read. Rule 803(8)(A)(iii) covers only “factual findings” from investigations. The findings in the report described in this problem are factual, but they are based on interpretations of how performance on various tests can be evaluated in reaching a single conclusion on suitability of materials for typical crashes. The Supreme Court has decided that material of this type is covered by the Federal Rules exception for public records, Rule 803(8).5 The decision recognizes that defining a difference between fact and opinion is often impossible. It also may reflect the Federal Rules’ general preference for a wide scope for expert testimony and opinion.
