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Question 1

What is the law enforcement exception for criminal defendants involved in the public records exception for hearsay?

Answer 1

In criminal cases the possible avenue for documents that set out a matter observed while under a legal duty to report does not include matters that are observed by law-enforcement. The reasoning is that you don’t want a criminal trial by police report. Police write reports about incidents and arrests, and if admissible, then the prosecutors will just admit these into evidence and use the facts in them to convict defendants. No officer would have to go to court to testify or be cross examined.

This means the actual report is not admissible, but it can be used to impeach police testimony or to refresh recollection. It cannot be used against criminal defendants

Question 2

What is the difference between California and the FRE in relation to the law enforcement exception for criminal defendants for public records?

Answer 2

California technically allows law-enforcement reports to be used against criminal defendants, but the commerce clause applies and often bars this

Question 3

Are DNA lab reports considered to be public records under the hearsay exception?

Answer 3

Be careful, because not all DNA labs are owned by the state. Sometimes the government sends these to private labs. So it is not always a public records exception.

Essay: “Assuming the public examiner is a government employee…“

Question 4

What is involved in the element to public records for a hearsay exception that states “the document must set out factual findings from a legally authorized investigation“?

Answer 4

This is only for civil cases or cases against the government in criminal cases. It requires that the person making the findings must have official authority to investigate/make the findings

Question 5

If a government safety board determines the cause of an accident by collecting statements and information from others, and their findings are based on those statements, are those findings admissible as public records?

Answer 5

Yes because they were made by someone that had official authority to investigate or make the findings

Question 6

What do you have to be careful about when it comes to reports that set out factual findings from a legally authorized investigation as a possible avenue to use the hearsay exception of public records?

Answer 6

The report itself cannot have actual out of court statements by third parties that are being offered for their truth unless a different exception applies

Question 7

What is the caveat for criminal defendants that is involved in the public records avenue where you use a public record to set out factual findings from a legally authorized investigation?

Answer 7

This cannot be used against criminal defendants because their liberty is at stake, so they need to be tried based on the testimony of government witnesses, not reports that those people wrote.

Distinction: if the government was already acting in an adversarial position when the report or findings were made, the report cannot be used. But if the government wasn’t acting in an adversarial position when the report or findings were made, then the findings can be used against a criminal defendant.

IE: if the EPA was doing routine water testing for Public Safety and they stumbled upon a corporation dumping toxic waste, then the corporation gets prosecuted, this report is allowed

Question 8

How do you authenticate a document that sets out factual findings from legally authorized investigation under the public records hearsay exception?

Answer 8

You don’t need testimony, or a custodian, or a qualified witness, but you still need sufficient evidence of authentication

Question 9

What is involved in the element of the public records hearsay exception that requires trustworthiness?

Answer 9

Once foundation is met, the opponent has the burden of showing the source of the information or other circumstances indicate a lack of trustworthiness

Question 10

Most documents that are public records also fall into what category?

Answer 10

Business records. But it is not true that many documents that are business records are also public records

Question 11

Where could you get extra points on an essay for the trustworthiness element of the public records exception to hearsay?

Answer 11

For public records, police reports are not admissible against a criminal defendant, but a police department is an organization, and its officers have a duty to accurately record and report information in their incident reports, and the business records exception has no policy against police reports being used. So a smart argument is to offer a police report in a criminal case and say it is admissible under business records. Sometimes this is allowed, but usually prosecutors don’t allow it. It is just good for extra points

Question 12

What is involved in the commercial lists exception to hearsay?

Answer 12

This is a hearsay exception for market reports, quotations, lists, directories, or other compilations that are generally relied on by the public or by people in particular occupations or industries.

Question 13

To prove someone’s name is listed by a certain phone number, is it proper to offer the phonebook into evidence to show this under the commercial lists exception to hearsay?

Answer 13

Yes

Question 14

What are some examples of things that would count as commercial lists to be an exception to hearsay?

Answer 14

Business-to-business directory of California general contractors, directories, tabulations, stock price published in the Wall Street Journal

Question 15

What is involved in the former testimony exception to hearsay?

Answer 15

This is a hearsay exception that applies when a declarant is currently unavailable, so cannot give in-person testimony, but previously testified under oath and was subject to cross-examination as a witness at a trial/hearing/lawful deposition, so could then be offered against a party that had (or a predecessor in interest if it is a civil case) opportunity or similar motive to develop it by direct, cross, or redirect examination

Question 16

What are the elements involved in former testimony as an exception to hearsay?

Answer 16

– Unavailability of declarant
– prior statement
– cross and similar motive

Question 17

What are the only three exceptions to hearsay that involve 804 and require that the declarant be unavailable?

Answer 17

Former testimony, dying declarations, and statements against interest

Question 18

What is involved in the element of former testimony that requires a prior statement be made?

Answer 18

There must be a prior statement that was made under oath at an earlier trial, hearing, or deposition. This can be in the current case or another case, but it cannot be anything outside of these. So a sworn statement to a police officer does not count since that doesn’t give an opportunity to cross examine

Question 19

What is involved in the element of former testimony that requires cross and a similar motive?

Answer 19

This looks at who the prior testimony was used against and asks if there was an adequate opportunity and a similar motive to cross examine that declarant about the matter. The person doesn’t have to actually have been cross examined, he just needs to have had the opportunity to be cross-examined

Question 20

What’s the difference between how the element of former testimony for cross examination and similar motive is treated in a civil case and a criminal case?

Answer 20

– Civil case: a successor in interest is fine. So it can be used against someone that wasn’t a party to the prior proceeding if the testimony taken was by a related party that had the opportunity and similar motive to cross-examine. The idea is that it’s OK in a civil but not a criminal case because civil only involves money, but criminal involves the sixth amendment right to confront your accuser
- criminal cases: if it involves the same defendant in both proceedings, then he had a prior opportunity to cross.

Question 21

If a defendant was prosecuted for a Ponzi scheme, and a trial, a witness testifies that the defendant told her his customers didn’t know he was using their money to buy things for himself. This results in a hung jury and then the witness dies. At re-trial of the defendant the prosecution wants to offer the witness’ testimony from the first trial. Would this be OK under former testimony as an exception to hearsay?

Answer 21

Yes because the witness is unavailable, the testimony was offered against a party in the current proceeding because it was the same guy in the prior proceeding, they had an identical motive to cross examine, and a prior opportunity to cross examine

Question 22

In a civil case under the former testimony exception, the testimony can be used against someone that was a party previously, or even someone aligned with the current party, but for criminal cases, what is the difference?

Answer 22

The one it is being used against must have been a party in the prior case and had the opportunity to cross examine

Question 23

If a plaintiff sues a defendant for a car accident, and at the deposition a witness testified that the defendant had the red light. The defendant then gets prosecuted criminally. At trial, the witness is in a coma, so the prosecution offers his deposition testimony from the prior suit. Defendant was the party in the previous suit, so would this former testimony be allowed under the former testimony exception to hearsay?

Answer 23

Yes

Question 24

What are the things that you can use former testimony for as a hearsay exception?

Answer 24

Any fact necessarily underlying the conviction

Question 25

The defendant is prosecuted for fraud, at the criminal trial, the witness testified that the defendant said he was defrauding people. Then the witness dies, then there’s a retrial. Plaintiff is one of the defendant’s customer investors and he sues the defendant civilly for fraud and wants to use the witness’ testimony in the earlier criminal trial. Would this be OK under the former testimony exception to hearsay?

Answer 25

Yes because in both cases the defendant had the motive to undercut the testimony to show he did not commit fraud