Hearsay Exceptions

Question 1

Rule 803

Answer 1

• covers exceptions to hearsay regardless of whether the declarant is available as a witness
• “The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness”

Question 2

Rule 803(1)

Answer 2

Present Sense Impression

• a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it

Two aspects:
- substantive component - needs to describe event or condition
- temporal component - needs to be made while or immediately after the defendant perceived it

Question 3

Rule 803(2)

Answer 3

Excited Utterance

• a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused
• presumed to run longer than present sense impression + also broader in scope (just needs to be relating to the event, vs. present sense impression needs to describe it)
• declarant doesn’t need to be participant in the excitement, could be a bystander

Question 4

803 and Personal Knowledge

Answer 4

• declarant must have personal knowledge for 803(1) and (2)
• depending on the wording though, the statement itself may be enough to establish personal knowledge (ex: “I just saw x”)

Question 5

Turner

Answer 5

• case where declarant said who gave him drugs into a tape recording - 2 minutes and 25 seconds after arrest and 14 minutes and 25 seconds after the samples were given to Turner
• judge concludes satisfied both 803(1) and (2) - even though there’s a time lag, declarant said it into the tape recorder at the first opportunity without breaking cover

Question 6

People v. Cummings

Answer 6

• “It was Tronic, man” - statement by unknown declarant (think caught in background on a 911 tape)
• court held it was error to admit this statement - not knowing the declarant is NOT a problem, as long as you can prove the declarant had personal knowledge - here, the declarant’s statement didn’t indicate whether or not he had personal knowledge, so shouldn’t have been admitted into evidence

Question 7

Rule 803(3)

Answer 7

Then-Existing State of Mind

• a statement of the declarant’s then-existing state of mind (motive, intent, plan, etc.) or emotional, sensory, or physical condition (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
• comes in for the truth as to present state of mind (though Hillmon future only circumstantial)

Question 8

Hillmon Doctrine

Answer 8

• state of mind statement, pointing forward in time -> allowed

Question 9

Shepard v. United States

Answer 9

• state of mind statement, pointing backwards in time -> NOT allowed

Question 10

Hillmon - Case

Answer 10

• Mrs. Hillmon sued insurance company saying husband was dead -> they said she and her husband were faking it - brought in letter from Walters saying he expected to leave Wichita with Hillmon -> argued body found was Walters
• SCOTUS said the letters were admissible as CIRCUMSTANTIAL evidence that he intended to travel with Hillmon -> jury can then use to evaluate if it is probable that he did in fact go, but can’t come in as substantive evidence
• note strangeness: letter saying he did go with Hillmon would be hearsay, but letter saying he intended to go would not be hearsay

Question 11

Shepard - Case

Answer 11

• wife’s nurse was allowed to testify that wife had said “Dr Shepard has poisoned me”
• gov tried to argue admissible as evidence of her state of mind (vs defendant had argued she was suicidal) - doesn’t work because didn’t raise at trial, plus not really a rebuttal to suicidal nature
• rejected similarity to Hillmon - can’t use this to point backwards in time to say a past act occurred, can only point forward as circumstantial evidence that the act intended at the time of the statement did in fact occur
• has been incorporated into language of 803(3)

Question 12

Hillmon and Conduct of Others

Answer 12

• dicta in Hillmon suggests you could apply one person’s statement to suggest that another wound up doing whatever the expected act was with them
• some ambiguity though - Advisory Committee said 803(3) was designed to leave Hillmon intact, vs. House without changing the rule said not supposed to be applied to future conduct of others
• there is a circuit split on this, and the issue can be fairly debated in either direction -> what applies depends on your circuit

Question 13

Circumstantial vs. Direct Evidence

Answer 13

• circumstantial means you’re asking the jury to fill in some sort of logical detail, vs. for direct evidence you don’t have to
• for circumstantial, the other side can challenge your inferences, vs. for direct evidence, they need to attack the actual statement

Question 14

3 Ways Courts Have Interpreted the Hillmon Dicta

Answer 14

1- follow Hillmon dicta - it comes in and can be used circumstantially for the actions of others
2- admissible for non-declarant only if there’s other evidence that corroborates the action of the non-declarant
3 - you don’t admit the statement at all to show the conduct of the non-declarant (and if they’re both co-defendants, it gets excluded entirely on the grounds that it’s not admissible against the co-defendant)
- note that in order for the dicta to work in any of these, it needs to be a joint action - the declarant can’t say believes so-and-so going to do x solo

Question 15

Rule 803(4)

Answer 15

Statement for Medical Diagnosis or Treatment

A statement that is made:
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

• the statement does not need to have been made to a doctor - could be made to an ambulance driver, nurse, family member, etc.
• statement also doesn’t need to be made by patient

Question 16

Medical Diagnosis and Fault

Answer 16

• shouldn’t ordinarily allow in statements of fault according to the Advisory Committee but often allowed in in practice because of the language of “general cause” in the rule

Question 17

Medical Diagnosis - Determination of “Reasonably Pertinent”

Answer 17

• trial judge supposed to apply objective test under 104(a) looking at all the circumstances (both perspective of the declarant and that of the asker)

Question 18

Ward

Answer 18

• domestic violence case
• nurse had asked who injured victim - part of medical treatment because determining if the threat still exists (necessary for treatment from the perspective of the forensic nurse)
• also no Confrontation Clause issue - primary purpose test under Ohio v. Clark -> primary purpose was medical treatment, not gathering evidence

Question 19

Rule 803(5)

Answer 19

Recorded Recollection

A record that:
A) is on a matter the witness once knew 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

Question 20

What happens with the recorded recollection at trial?

Answer 20

• you read the recollection out loud + that serves as a substitute for trial testimony - jury gets copies of exhibits but not live testimony
• note that in order for you to invoke this, the witness must be live on the stand at this trial, they must admit on the stand they can’t remember their recollection

Question 21

Rule 612

Answer 21

Present Recollection Refreshed

• witness has momentarily forgotten, and you show them something to refresh their memory
• can use anything to refresh memory, but must show to opposing party first and they get to decide whether the memory refresher gets entered into evidence

Question 22

Rule 612 vs. Rule 803(5)

Answer 22

• for Rule 803(5), witness cannot now recall “well enough to testify fully and accurately”, vs. Rule 612 witness has momentarily forgotten something
• for Rule 803(5), the past recollection recorded gets read into evidence in front of the jury, vs for 612 you show the witness something to read silently
• for rule 803(5), the past recollection recorded as read out loud at trial becomes the evidence, versus for 612 the witness’s testimony after their recollection is refreshed becomes the evidence, and whatever was used to refresh isn’t admitted or show to jury unless opposing party wants it admitted
• Rule 803(5) has restrictions on what can be a past recollection recorded, vs. Rule 612 anything can be used to refresh recollection

Question 23

Rule 803(6)

Answer 23

Business records

1- record of a business activity
2- regularly maintained (making a record = a regular practice of the business)
3- made promptly (at or near time)
4- based on knowledge
5- supported by in-court testimony or affidavit/certification
6- appears trustworthy (presumed to appear trustworthy unless your opponent proves otherwise)

Question 24

Business Records - Rationale

Answer 24

• businesses have financial incentive to keep accurate records -> makes them reliable
• regularity of record-keeping itself makes the records reliable
• practical element - how else do you prove what businesses do?
• modern stretch - diary of casino owner who keeps record of tips

Question 25

Foster-Gibson

Answer 25

• business was a cocaine ring, and one participant wrote down amounts sold and money with some regularity (although sometimes forgot, sometimes out of order) -> still counted as a business record

Question 26

Business Records - Who to Call

Answer 26

• witness who’s a custodian or other qualified witness
• any witness familiar with how the records were kept
• no need to testify as long as signed certificate under oath saying business records

Question 27

Why the trustworthiness element for business records?

Answer 27

• drafters couldn’t figure out what to do with cases like Palmer v. Hoffman (employee wrote up accident for train crash, technically meets business record requirements but so self-serving that SCOTUS says can’t be trustworthy + should be excluded)
• self-serving would’ve been difficult to deal with in rule though (because technically everything is self-serving), so there’s the trustworthiness factor
• note that this is not a question of if the docs were produced for purposes of litigation (since lots of businesses keep records for this reason)

Question 28

Business Duty Doctrine

Answer 28

• frequently multiple layers of hearsay in business records -> business duty doctrine means that as long as all involved in the chain are employees of the same business, it can come in as a business record
• outsiders may pop in and out of the chain though - whenever there’s an outsider, need to solve that particular piece of the chain with a different hearsay exception

Question 29

Rule 803(7)

Answer 29

Absence of a Business Record

• if business routinely makes a record, absence of record is relevant (can make more likely that an event that’d normally documented wasn’t documented)
• other side can attack trustworthiness

Question 30

Rule 803(8)

Answer 30

Public Records

(a)(i) activities of a government office
(a)(ii) matter observed while under a legal duty to report
(a)(iii) factual findings from a legally authorized investigation [evaluative reports]

Note criminal case exceptions for (ii) and (iii) - can’t include matters observed by law enforcement for (ii), + Conf Cl issue for (iii) (no civil exceptions though)

Question 31

Melendez-Diaz v. Mass.

Answer 31

• SCOTUS
• in criminal cases, for lab reports (drugs, BAC levels, etc.), used to think not hearsay because lab techs not law enforcement (can come in under public records a(ii)), or business record of lab
• after Crawford though, SCOTUS held that the records were testimonial -> lab tech needs to be available for testimony at trial to avoid Confrontation Clause issue

Question 32

Bullcoming v. NM

Answer 32

• the trial witness was not the person who did the analysis, not the one who handled the sample, and wasn’t familiar with the tests
• majority held that this did not satisfy the Confrontation Clause - you need someone who is actually familiar with the analysis and the tests

Question 33

Bullcoming - Sotomayor Concurrence

Answer 33

Suggested ways NM could get around the ruling:

• alternative purpose of the tests, such as medical treatment
• concept of witness with some personal knowledge (ex: supervisor)
• give results to expert witness and have them testify (material relied on by experts doesn’t need to be admissible)
• just submit the raw data - don’t need analyst reading the data, could argue w/o Confrontation Clause

Question 34

Lab Results and 803(6)

Answer 34

• q of whether could come in as business records
• prosecution prefers not to use because it requires a witness
• defendant should argue lack of admissibility under public records rule shows not trustworthy