Hearsay

Question 2

Flora Welch claims that her husband was killed in the blast while touring the AB site. A number of bodies were found at the site which could not be identified because of burns and the action of chemicals on the bodies. Welch sues AB. To prove that her husband was one of the unidentified bodies, Welch offers proof that her husband was on a business trip to St. Louis at the time of the explosion, that he never returned from the trip, and she offers an e-mail she received the night before the blast from her husband which read, “I am looking forward to the tour of AB tomorrow. I hope they still have free beer.” After the judge overrules AB’s relevancy objection, AB objects that the e-mail is hearsay. How should the judge rule?

Answer 2

Not hearsay because Statement being offered to prove that husband was at AB; not to prove content of the statement; jury can infer; not proving what husband says. NOT PROVING Truth of the Matter (TOMA)

Question 3

Flora Welch also offers an IM received from her husband’s Blackberry approximately 5 minutes before the blast which states, “Alright AB, free Michelob! What a great country!” AB objects that the IM is hearsay. How should the judge rule?

Answer 3

Not hearsay - Does not say I am at AB; facts don’t have to be proven to jury; jury is inferring something. NOT hearsay because not for TOMA—Indicates he was at AB, content of statement is irrelevant

Question 4

: Shortly after the explosion, defendants Gerald Garnosio and Clyde Barker are involved in an automobile accident about a half mile from the AB site. The car in which they are driving is damaged to the point of not being drivable and is towed to an impound lot where the contents are inventoried. Found in the car is a letter addressed to Lucas Smith written by George Ginaris. The government wishes to introduce this letter into evidence. After the judge rules that the letter is relevant, the defendants object that it is hearsay. How should the judge rule?

Answer 4

Depends on what trying to prove; if used to prove the two are in contact, would allow it but blank out whole content of letter; if content is what you’re proving, then it is hearsay but there are ways to get it in

Question 5

: In the criminal case, the government offers the testimony of Albert Spear that a week before the AB blast, he sold defendant Gerald Garnosio 10 pounds of potassium permanganate, and told Garnosio that it was pure and would help to make C-4 explosive. The defendants object that the statement is hearsay. How should the judge rule and why? If the government offers the statement to prove that the substance found in the Motel 6 room was potassium permanganate will the ruling of the court be any different?

Answer 5

Admissible for some other purpose than content: notice situation that can be explosive, Chosen to make fact in the case an issue with statement, it is hearsay

Question 6

William Hunt is a chemist employed by AB in St. Louis. He is called in the civil case by the plaintiffs wish to have him testify that about 5 years ago he became aware that the ammonia and chlorine bleach tanks were in close proximity and this caused him concern because of the potential for a chlorine gas cloud. He states that he went to his supervisor to discuss his fears and was told not to worry as the supervisor said he had already informed management of the issue. AB objects that the statement of the supervisor is hearsay. How should the judge rule and why?

Answer 6

Admissible to prove notice – not proving TOMA - To the extent that we want to prove Hunt didn’t have to do anything, supervisor’s statement is not hearsay- If offered to show negligence of AB – now this is an assertion and possibly hearsay

Question 7

William Hunt can further testify that shortly after this conversation with his supervisor, he met the CEO of AB at a function and told him, “You must see that the chlorine bleach tank is moved well away from the ammonia tank or, in an accident, a chlorine gas cloud could cover the surrounding neighborhood, killing hundreds.” AB objects that the statement is hearsay. How should the judge rule and why?

Answer 7

Could argue put CEO on notice about potential gas cloud; not proving what will happen when mix chemicals which would be hearsay, prove that in another way to get around it

Question 8

Plaintiffs in the civil case wish to introduce a warning sign the Illinois Central Railroad required to be attached to all ammonia tank cars stating, “CAUTION – Pressurized Ammonia. Ammonia gas can cause death if inhaled and must not be allowed to mix with any other chemical.” AB objects that the sign is hearsay. How should the judge rule and why?

Answer 8

Written assertion; get this in as non-hearsay with notice argument. If trying to prove content of the sign, would be hearsay

Question 9

Tran Nguyen, who witnessed a person running from the AB site right after the blast, can identify defendant George Ginaris as the person he saw running. Ginaris objects that this amounts to a statement, “I am running because I am guilty” and should not be allowed as it is an out of court assertion. How should the judge rule and why? Would your answer change if a witness yelled at Ginaris, “If you did this, you had better run!”

Answer 9

Statement about first hand behavior, not making an assertion. Witness statement can go either way; judge’s discretion

Question 10

The government wishes to introduce testimony on an ATF agent who interviewed defendant George Ginaris about his involvement in the blast. The agent can state that when he asked Ginaris if he had any knowledge of who was involved in the blast, Ginaris smiled at him and nodded. Ginaris objects that this was assertive conduct and is therefore hearsay. How should the judge rule and why?

Answer 10

Not hearsay; adoptive admission

Question 11

Defendant Gerald Garnosio wishes to introduce sworn affidavits from his parish priest, a local rabbi and a state senator, all of which state that he was running a fundraising bingo game 15 miles away from the AB site at the time of the blast. The government objects that these are inadmissible hearsay. Garnosio responds that they are sworn in the same manner as court testimony and the character of the witnesses is beyond reproach. How should the judge rule and why?

Answer 11

Out of court statement; it is hearsay; still need the right to cross examine; sworn affidavit does not allow cross examination. If they testified as to witnessing him that is fine

Question 12

Defendant Gerald Garnosio offers the deposition of the state senator, taken at Garnosio’s request in the civil case, which states that that Garnosio was running a fundraising bingo game 15 miles away from the AB site at the time of the blast. Is the deposition an out of court statement?

Answer 12

Not cross examined by counsel in the correct case; it is hearsay

Question 13

In the civil case, defendant Gerald Garnosio offers the prior criminal trial transcript of the testimony of state senator which states that that Garnosio was running a fundraising bingo game 15 miles away from the AB site at the time of the blast. Is the transcript an out of court statement?

Answer 13

Out of court statement; no opportunity to cross examine. Would only be admissible in a later proceeding against the prosecution

Question 14

Defendant Gerald Garnosio calls the state senator as a witness in the criminal trial. The senator testifies that Garnosio was running a fundraising bingo game 15 miles away from the AB site at the time of the blast. On cross examination, the prosecutor asks the senator if he was sitting in the courtroom during recess, to which the senator answers “yes.” The prosecutor then asks the senator if during the recess he told Garnosio not to worry, that he would tell the bingo story even though it was a lie. Before he can answer, Garnosio’s attorney objects that the statement is inadmissible because it was made out of court. The prosecutor responds that it was made in the courtroom during recess. How should the judge rule and why?

Answer 14

Out of court because not on the record; fact that in the room is irrelevant

Question 15

During the testimony of the state senator, he is asked by Garnosio’s lawyer how far away the bingo game was from the blast site. The senator responds, “I told ATF agent Jones, when he first interviewed me that it was 15 miles away.” The prosecution objects that this is an out of court statement? How should the judge rule and why?

Answer 15

Out of court statement; just answer the question; the work around; tell us what you observed and not what you told someone else

Question 17

a. Lucas Smith, a member of Whale Watch, is overheard to say, “Clyde Barker, it has been too long, come in.” -

Answer 17

Not hearsay; jury being ask to draw inference

Question 18

b. Lucas Smith is overheard to say, “Clyde Barker, where did you get the money for a Corvette?” -

Answer 18

Not hearsay; jury being asked to draw inference; not being asked to assert the truth of the matter

Question 19

c. Lucas Smith is overheard to say to himself, “What is Clyde Barker doing here?”

Answer 19

• Goes to the truth of the matter but could argue it is admissible

Question 20

d. A conversation is overheard between Lucas Smith and another person who is not identified, except that as he enters, he whistles the “Darth Vader” theme song from Star Wars. The government has testimony that Clyde Barker always whistles the “Darth Vader” theme song from Star Wars to identify himself to friends. -

Answer 20

Could go either way; probably found to be hearsay because it is conduct intended as an assertion

Question 21

e. The government used a search warrant to search the home of defendant Clyde Barker after the blast. They found a desk calendar with an entry on April 3, 2008, “Fly to WW to meet LS.” -

Answer 21

Hearsay because asserting he was there and this is evidence of it

Question 22

William Hunt, the AB chemist, has never been a public speaker and is terrified to testify in court. The only way he can do so is to refer to the notes he wrote for himself at the time of the events, and then paraphrase what he wrote. AB objects that this is hearsay. How should the judge rule and why?

Answer 22

Hearsay because it is not their memory even if still can cross examine, Statement of a party opponent is admissible whether its verbal or conduct (it’s coming in)

Question 23

Kelly Black, who cleaned the Motel 6 room rented by defendant George Ginaris, had her boyfriend re-enact conduct she claims to have seen Ginaris engage in while in the motel room. She videotapes this re-enactment and gives it to the prosecution to show how Ginaris tried to hide items that were in the bathroom as she entered the room to clean. The prosecution offers the video tape in the criminal case and the defendant’s object that it is a hearsay statement. How should the judge rule and why?

Answer 23

Hearsay because trying to avoid testifying; cannot substitute for testifying; juries can see the truth when the witness testify but prob not given the studies

Question 24

On cross examination, William Hunt is asked if it is not true that he made up the story about going to AB with concerns about the placement of the ammonia and bleach tanks only after AB denied him a promotion. Hunt denies this. The plaintiffs then produce a memorandum written by Hunt to the CEO of AB, memorializing their conversation to which Hunt testified. The memorandum is dated two days after the conversation. To introduce the memorandum, the plaintiffs have the secretary of the CEO produce the memorandum and read its contents. AB objects that this is improper hearsay? How should the judge rule and why?

Answer 24

When does memo occur compared to his denial of a promotion; have to know when he was denied a promotion (Memo must predate the denial)

Question 25

On cross examination, Kelly Black is asked if she has told the jury that defendant Ginaris was in room 6. She says yes. She is then asked if that is what she told an ATF agent when interviewed a month after the blast. She is shown the ATF agent’s report which says that Black said Ginaris was in room 10. She is then asked whether the prosecutor showed her this report and if she has changed her story to match up with the government’s case. She denies any fabrication and says that either she misspoke or the agent wrote down the wrong number. On re-direct, the prosecutor shows Black a statement she made to the St. Louis Metropolitan Police two days after the AB blast in which she said Ginaris was in room 6. The prosecutor asks her to read the complete report of interview to the jury. The defendants object that this is hearsay. How should the judge rule and why?

Answer 25

Limit the report to the alleged inconsistency; cannot use it to get in the entire statement

Question 27

a. AB presents a deposition of Hunt, taken in the civil case, and offers it in evidence to contradict Hunt.

Answer 27

Allow because prior inconsistent statement under oath

Question 28

b. AB presents a statement Hunt made to an AB investigator, taken in preparation for trial, and offers it in evidence to contradict Hunt.

Answer 28

Not allow because not under oath

Question 29

During Spears’s testimony, he states that he cannot remember certain facts and changes where he met with Garnosio, apparently leaving one number off the address he has previously stated. In cross examination the defendants wish to have introduced into evidence a prior deposition of Spear on the subject to show that his testimony has changed. The government objects that these are not real inconsistencies, so this is hearsay. How should the judge rule and why?

Answer 29

Still admissible because inconsistencies; goes to credibility; so insignificant that might confuse jury (a very minor inconsistency is enough)

Question 30

During interrogation, defendant Gerald Garnosio made statements which the government wishes to introduce against him in trial. Having lost the suppression motion Garnosio now objects that the statement is hearsay. How should the judge rule and why?

Answer 30

Party opponent, needs to be voluntary and properly mirandized

Question 31

Assume that the judge indicates that he will allow the statement in evidence. The other defendant’s then object that the statement is hearsay as to them. How should the judge rule and why?

Answer 31

NA

Question 32

In the civil case, when this statement is presented, Garnosio objects that he was not given his Miranda rights before he made the statement. He then objects that the statement, although given voluntarily, should not be allowed. How should the judge rule and why?

Answer 32

Still admissible because you only need to waive your Miranda rights for a criminal case. We’re not concerned with in what case the statement was used before, but why it is being used now.

Question 33

Would the ruling be any different in the criminal case?

Answer 33

No

Question 34

Albert Spear, who sold defendant Gerald Garnosio 10 pounds of potassium permanganate, testifies that this occurred a week before the blast at AB, and that Garnosio had called Spear two days before the sale requesting that Spear obtain 10 pounds of potassium permanganate. Spear will further state that when he asked Garnosio why he needed such a large amount, Garnosio said that he and some friends had a big message to deliver soon. Garnosio objects that this is hearsay because it is not an admission. How should the judge rule? The other defendants object that regardless of how the judge rules on Garnosio’s objection, these statements are hearsay as to them because no conspiracy has been charged. How should the judge rule and why?

Answer 34

Doesn’t have to be an admission to fall under the party admission rule

Question 35

Barbara Notstadd, the former girlfriend of defendant Clyde Barker is called to testify about a meeting between the three defendants she observed about six weeks before the AB blast. She states that aside from the three defendants and her two other women were present, each of whom had a relationship with one of the defendants. During this meeting, Notstadd recounts that Ginaris said that Barker would make bombs that Garnosio would plant at the AB site. She testifies that while Garnosio said “I’m the man for the job” that Barker said nothing. Barker objects that Ginaris’s statement is hearsay as to Barker. How should the judge rule and why?

Answer 35

Reasonable person would have responded—adoptive admission (admissible), Defense reason for not responding, Standard is 104(a) preponderance sonable person would have responded—adoptive admission (admissible)

Question 36

In the civil case, plaintiffs wish to introduce the 2007 contract between the Illinois Central Railroad and AB dealing with the delivery of ammonia, which contains language about AB’s agreement to improve emergency systems to limit damage from an ammonia leak. AB objects that the contract is hearsay and the plaintiffs respond that it is a verbal act. How should the judge rule and why?

Answer 36

Not verbal act because one party of the contract (Plaintiffs are not a party to the K) , It is a statement of a party opponent (AB)

Question 37

When the three defendants were called before the grand jury to give handwriting samples, Ginaris and Garnosio personally refused, but Barker had his attorney indicate that he was refusing. When the government attempts to introduce the refusals in the criminal case, Barker objects that what his attorney said is hearsay. How should the judge rule and why?

Answer 37

Attorney is an agent of Barker, so not hearsay

Question 38

ATF agent testifies that Ginaris “nodded”

Answer 38

it is an assertion by opposing party