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What is the approach for analyzing TOMA vs. Non-TOMA and the checklist for identifying the 6 Non-TOMA Purposes?
APPROACH FOR ANALYZING TOMA vs. TOMA vs. non-TOMA
Before I sweat the TOMA issue, I look to see if any 801(d) exclusions apply. They’re easier to recognize and easier to sell to the judge (particularly A.P.O.s).
Then I go through a checklist for the six non-TOMA purposes.
Before you scan the list, make sure you have clearly identified the evidence and the purpose for which it is offered. In a written hypo, I put brackets around the evidence and I underline the purpose for which it is offered.
checklist:
First, I look for the two non-TOMA purposes that are easy to recognize: impeachment (is the statement inconsistent with a prior statement?) and verbal marker (are the words essentially just a label?)
If neither of these are applicable, I look to see if the statement is offered to give us insight into the declarants state of mind or another person’sstate of mind. If it’s the latter, I consider whether the statement may be offered for the non-TOMA purpose of showing its effect on the listener or hearer.
If the statement is offered to give us insight into the declarant’sstate of mind, then I ask whether the statement proves state of mind directly or indirectly. (It’s probably admissible either way!) If the statement proves state of mind directly, it comes in under FRE 803(3), which we’ll discuss later. If the statement provides only indirect proof of state of mind, then it can be offered as circumstantial proof of state of mind, which is a non-TOMA purpose. Examples: the statement “I can’t think clearly today”is direct proof of state of mind, and the statement “2+2=5”is circumstantial proof.
The next non-TOMA purpose I consider is proof of unique knowledge. This purpose will apply if we only care about howthe declarant acquired the knowledge –not what the knowledge tells us about the declarant’s own state of mind. Usually we’re talking about knowledge that is so unique it could only have been acquired under certain circumstances (e.g., the little girl in the kidnapper’s apartment).
Finally, we need to think about verbal acts. THESE ARE ALMOST ALWAYS A.P.O.S! It’s easier to admit them as A.P.O.s than as verbal acts. If no provision of FRE 801(d)(2) is applicable, consider the four most common categories of verbal acts (see prior handouts).
What are the rules for 803(1): Present sense impression?
This exception allows the admission of a “statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.”
Three elements:
1) immediacy (i.e., within seconds),
2) perception, and
3) description
What are the rules for FRE 803(2): Excited utterance?
This exception allows the admission of a “statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”
Three elements:
1) exciting stimulus,
2) excitement at time of utterance, and
3) relation of statement to exciting stimulus
What are the rules for 803(3): Statement concerning state of mind or bodily condition?
This exception allows the admission of a “statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.”
Note the three separate sections of this rule! The first is a rule of admission for statements concerning state of mind and bodily condition; the second is a rule of exclusion concerning statements or memory or belief; and the third is a rule of inclusion for statements of memory or belief in wills cases.
Remember that the statement must relate to then-existingstate of mind or bodily condition, except in wills cases.
Compare 801(c) and 803(3):
Remember that under FRE 801(c), statements that offer circumstantial evidence of state of mind can be admitted as non-hearsay (e.g., “2+2=5”can be offered as circumstantial proof that the declarant was not thinking clearly at the time of the statement).
Under FRE 803(3), statements that provide direct evidence of state of mind can be admitted even though they are hearsay (e.g., “I’m not thinking clearly today”).
Thus the dichotomy between circumstantial and direct proof of state of mind is a “distinction without a difference,”according to some commentators
What are the rules for 803(4): Statements in aid of medical diagnosis or treatment?
803(4): Statements in aid of medical diagnosis or treatment
This exception allows the admission of “statement that:
(A) is made for —and is reasonably pertinent to —medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.”
Several elements:
1) statement must relate to condition or symptoms;
2) statement must be made for medical purpose;
3) statement must be pertinent to treatment or diagnosis;
4) statement must be made in a conversation involving medical personnel;
5) statement must be made by person who has some relationship to “doctor’s team”or “patient’s team”(e.g., the patient’s spouse, a good Samartian who observed the accident and brought the patient to the hospital, etc.)
What are the rules for 803(5) Past Recollection Recorded?
This exception allows the admission of a “A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party .”
Five requirements under FRE 803(5)
- Witness must presently have insufficient memory.The examining attorney must show that the witness cannot remember the matter at issue. Practically, this requirement generally means that the proponent must have tried to refresh the witness’recollection, and this attempt has failed.
- Prior statement must correctly reflect witness’s memory.The witness must now affirm in court that the prior statement was accurate, or that the witness believed the statement was accurate at the time she made it, or that the witness is confident that she wouldn’t have signed the statement unless she recognized that it was accurate, etc.
- Prior statement must have been made or adopted by witness. The witness must have made the prior statement herself, or, if the statement was made by someone else, the witness must have manifested her adoption of the statement, either by signing it or somehow endorsing it.
- Prior statement must have been made while memory was fresh. There are no hard-and-fast time limits, and a longer interval will be permitted if the event was very significant in the life of the witness.
- Prior statement can only be read to jury, except by adverse party. The most that a proponent may do with such a prior statement is to arrange for it to be read to the jury. The adverse party, however, may actually offer the written statement itself.
What are the rules for 803(6) - Business Record?
This exception allows the admission of a “record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by —or from information transmitted by —someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.”
**The term “business” is defined as “business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”
The business record exception breaks down into six requirements:
- Information must be from source with knowledge acting under business duty. The source of what is recorded must have knowledge of these matters. The source may either be the person who made the record, or the person who transmitted information to the maker of the record. The source must generally be acting within the scope of her employment.
- Record must have been made at or near the time of the event. There is no formula for assessing temporal proximity, but a record will be inadmissible under FRE 803(6) if it was made too long after the event in question. A period of a few days may not be a problem, but a period of several months may raise the judge’s eyebrows.
- The making of the record must have been a regular practice of the business activity. The term “business”reaches not only for-profit companies, but also the professions (e.g., law and medicine), government agencies, charitable institutions, and even some organized criminal enterprises. Basically, the proponent will need to show an ongoing enterprise that follows a routine. The proponent will also need to show that the employee who made the record was acting within the scope of his employment, and that the making of the record was a routine matter (e.g., such records were made on a repetitive basis).
- The record must have been kept in the ordinary course of business. The proponent must show that the record was maintained or preserved as part of the standard operating procedure of the business in question.
- Proponent must lay foundation. Either the custodian of the record, or someone else with knowledge of the business procedures at issue, must be called to show that the foregoing requirements have been met. The witness laying the foundation need not have first-hand knowledge of the preparation of the particular record that the proponent is offering.
- Court must consider trustworthiness of record.Even if the other requirements are met, the record can be excluded if it is not trustworthy. For example, a record may be excluded if it was prepared in anticipation of litigation, if the record contains mistakes or contradictions, or if the method of preparation has serious shortcomings.
What are the rules for 803(7) - Absence of Business Records?
This exception allows the admission of “[e]vidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.”
In order to prove that this exception applies, the proponent must meet all the threshold requirements under FRE 803(6), and then show that no record was made under circumstances in which one would expect a record to have been made if the event in question had occurred.
What are the rules for 803(8) - Public Record?
This exception applies to a “record or statement of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.”
The three clauses in 803(8) discussed below:
- FRE 803(8)(A)(i): Reports regarding agency’s own activities
***This exception applies to a “record or statement of a public office if: (A) it sets out: (i) the office’s activities…”
Consider also that FRE 803(6) often applies to government agencies as if they were “businesses.”
Remember that reports can be excluded under FRE 803(8)(A)(i) if they are “untrustworthy.” - FRE 803(8)(A)(ii): Reports of matters observed pursuant to duty
This exception applies to a “record or statement of a public office if: (A) it sets out . . . (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel . . .”
Generally, someone from inside the agency or office must be the source of information. This clause does not extend to information provided by private citizens.
Note the special restriction on using police reports in criminal cases. The Oatescourt held that FRE 803(8)(B) states a transcendent principle of exclusion, even if FRE 803(6) might appear to apply to such reports.
Reports can be excluded under FRE 803(8)(A)(ii) if they are “untrustworthy.” - FRE 803(8)(A)(iii): Reports setting forth investigative findings
This exception applies to a “record or statement of a public office if: (A) it sets out . . . (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation . . .”
Remember that this clause is only available in a civil case, or in a criminal case when the records are used against the government. Under Oates, this limitation trumps alternative theories such as FRE 803(6).
Under Clause (iii), the factual findings may be admissible even if they are based on information from sources outside the agency. However, only the official findings of the agency –not the findings or conclusions of some private party –are admissible under this clause.
Reports may be excluded under FRE 803(8)(A)(iii) if they are “untrustworthy.”
What are the rules for 803(18) - Learned Treatise?
This rule allows admission of a statement “contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit.”
Requirement #1: The treatise must be linked to the testimony of the expert. The treatise must either be called to the expert’s attention in cross, or must be relied upon by the expert in his direct testimony. You can’t just offer up a treatise out of the blue. Remember that the purpose of the treatise is to shed light on the testimony of the expert; the treatise is not admitted for its own sake.
Requirement #2: The treatise must be authoritative. The mere fact that a treatise has been published is not dispositive. Further evidence is necessary (e.g., expert testimony) to demonstrate that the treatise is reliable. It is not necessary, however, that the expert who testifies as to the authority of the treatise must necessarily be in agreement with all of the positions taken in the treatise.
When is a declarant “unavailable”for purposes of FRE 804(a)?
1 - Declarant invokes privilege.A declarant is unavailable if he “is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies”(FRE 804(a)(1)).
2 - Declarant refuses to testify.A declarant is unavailable if she “refuses to testify about the subject matter despite a court order to do so”(FRE 804 (a)(2)). The declarant must have been called to the stand and must have actually defied the court’s instructions to testify.
3 - Declarant lacks memory. A declarant is unavailable if he “testifies to not remembering the subject matter”(FRE 804(a)(3)). Note that a declarant can be unavailable concerning a portionof the statement at issue, even if the declarant remembers making the entire statement, and even if the declarant recalls other portions of the statement.
4 - Declarant is dead or has medical problem.A declarant is unavailable if she “cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness”(FRE 804(a)(4)). Note that the court will usually consider rescheduling the trial to accommodate a witness who is temporarily ill.
5 - Declarant is unavoidably absent. A declarant is unavailable if he “is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or (B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3) or (4)”(FRE 804(a)(5)). We’ll discuss this provision more in the next slide.
When is a witness “unavoidably absent”for purposes of FRE 804(a)(5)?
This language would apply where, despite diligent efforts by the proponent, the declarant cannot be found, the declarant cannot be served with a subpoena, or the declarant is beyond the reach of the court’s subpoena power.
In state court, subpoena power is ordinarily coextensive with state boundaries. In federal civil cases, subpoena power is coextensive with district boundaries (which are the same as state boundaries in the District of Oregon).
In federal criminal cases, subpoena power is nationwide. Some courts require that the proponent not only attempt to subpoena the declarant, but also separately attempt to invite the declarant and pay his travel expenses. Further, prosecutors may be obligated to bring in out-of-state declarants who are presently incarcerated, because the Constitution protects the defendant’s right to confront witnesses (seeBarbercase).
Note that the parenthetical language in F.R.E. 804(a)(5) requires that, unless the proponent is offering prior testimony under F.R.E. 804(b)(1), the proponent must show not only that he is unable to secure the attendance of the declarant at the present hearing or trial, but also that he is not able to secure the attendance of the declarant at a deposition. For short-hand reference, we’ll call this “super-unavailability”(boy, the spellchecker didn’t like that one!)
