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Statement Against Interest

What is the "statement against interest" hearsay exception, and when can it be used?


Definition: It is an:

(1) out-of-court statement made by

(2) a party-opponent

(3) who is now unavailable as a witness

(4) where the statement, when made, was against that party's pecuniary (financial), proprietary (ownership), or penal interest. 

(FRE 804(b)(3))

To be admissible, the party must have personal knowledge of the facts, must have known that the statement was against his/her own interest, and must have had no motive to misrepresent when he/she made the statement. Note a co-consipirator is subject to this rule.


Expert Witness

Which of the following may a jury rely upon as substantive evidence--for the truth of the matter asserted--when testified to by an expert witness


  1. The expert's statements relating facts that he personally observed.
  2. The expert's statements relating facts he was told by witnesses when such witness statements are reasonably relied upon by expert's in the field.
  3. The expert's statements that are read from a text for which the expert has testified is authoritative.

Answer: 1 and 3

2 is not permitted to be relied upon by a jury because the statements from the witnesses are inadmissible hearsay.

That is, although an expert may rely upon inadmissible hearsay for his opinion when the hearsay statements are reasonably relied upon by experts in the field, a jury may not rely upon or even hear inadmissible hearsay, unless the hearsay statements fall under either an exception or exemption to the hearsay rule.

FRE 703 provides that where an expert bases his opinion on facts made known to him outside the courtroom, the facts need not be of a type admissible in evidence, as long as, the facts are of a king reasonably relied upon by experts in the particular field. 

However, an expert will be permitted to disclose inadmissible hearsay statements, for which his opinion relies, if the court determines that their probative value in assisting the jury to evaluate the expert's opinion, substantially outweighs their prejudicial effect. And, the jury would only be permitted to consider the hearsay statements as a bases for the expert's opinion, but could not consider the inadmissible hearsay statements as substantive evidence--for the truth of the matter asserted--unless the hearsay statements were were admissible under an exception or exemption to the hearsay rule.


Defamation: Character In Issue

Paul sued Dexter for defamation asserting that Dexter defamed him by calling him "a thief" in front of a number of business associates. Dexter pleads truth as an affirmative defense to the defamation charge, and calls Witness to the stand who will testify that she works with Paul and one night she saw Paul take $20 from an employee's cash register and secret it into his pocket. However, Paul never takes the witness stand. 

Will the court admit Witness' testimony, even though Paul never took the witness stand? 


Answer: Yes.


The court will permit Witness' testimony and allow a jury to consider it as substantive evidence even though Paul never took the stand because Paul's character is in issue as this is a defamation case. When a party's character trait is in issue the party's character may be proven by all three methods of proof: (1) opinion, (2) reputation, and (3) specific instances of conduct. 


The fact that Paul never took the witness stand is irrelevant because Paul's character for truthfulness is not being impeached. Rather, Paul's character for being a thief is in issue; thus, evidence showing that Paul is in fact a thief is admissible as substantive evidence. 


Demonstrative Evidence: Authentication


In a trial for bank robbery, a teller has identified the D as the robber. Defense counsel offers into evidence a still frame from a video taken by a bank security camera to show that a column obstructed the teller's view of the D.


 Which of the following is necessary to admit such evidence?


  1. The testimony by the camera operator that the still frame was developed from film that was taken from the camera.
  2. The testimony by the bank employee that the photo accurately portrays the scene of the crime.

Answer: 2

The testimony by the bank employee that the photo accurately portrays the scene of the crime is only required because the photo is only being used as "demonstrative evidence," and demonstrative evidence only needs to be authenticated to be admissible. Evidence is "authenticated" if there is testimony asserting that the evidence is what the proponent claims it to be. 


Number 1 is not necessary because the photo is not being used as original evidence that played an actual role in the robbery itself; for example, a gun used by the robber, which would require a "chain of custody" type of authentication to be admissible.


Attorney-Client Privilege


Paul is injured by Dudley in a car accident. Paul sued Dudley for his injuries. In preparation for trial, Anson--Paul's attorney--hires Dr. Wand to perform a medical exam of Paul. Dudley's attorney, Derek, seeks to call Dr. Wand to the stand to testify about confidential statements Paul made to Dr. Wand about his injuries of which Dr. Wand then communicates to Anson.


Are the statements made to Dr. Wand, which were ultimately communicated to Anson by Wand, protected by the attorney-client privilege or physician-patient privilege? 


Answer: Attorney-client privilege.


The attorney-client privilege applies to protect Paul's statements because Dr. Wand's medical exam of Paul was done for the purpose of promoting Paul's lawsuit against Derek and Dr. Wand's communication to Anson of what Paul stated to him is necessary to help his client, Paul, convey his medical condition to his attorney.


Prior Inconsistent Statement


P, (driver of a blue car) sued D (driver of a black car) alleging that D ran a red light and slammed into P's car in an intersection. W1 witnessed the collision and exclaimed, "oh my goodness, that black car just ran a red light!" then fainted. W2, who did not see the collision, overheard W1's statement. 


W1 was rushed to the hospital and awoke while Nurse was tending to him. As W1 awoke he said to Nurse, "wow, I can't believe that blue car ran a red light!" 


At trial, P called W2 who testified that he heard W1 say the black car ran the red light. D now seeks to call Nurse and have her testify that while at the hospital, W1 made the inconsistent statement that the blue car ran the right, instead of the black car.


May Nurse testify to what W1 told her at the hospital?


Answer: Yes.


Nurse's testimony is admissible, but only to impeach W1's statement as testified to by W2. Note that W2's testimony of what he heard W1 exclaim is admissible as an "excited utterance" or "present sense impression" because it was made immediately after the crash. 


Nurse may testify to what W1 told her at the hospital because the credibility of a hearsay declarant (W1) may be attacked by evidence that would be admissible if the declarant (W1) had testified as a witness. (FRE 806) Thus, W2's testimony of what W1 exclaimed can be impeached with Nurse's testimony of what W1 told her while at the hospital even though W1 never took the witness stand.


Authenticity: "Recognition Testimony"


Can real evidence be authenticated by use of circumstantial evidence that the evidence is what its proponent claims it to be?


For example, assume D is seen by police carrying a brown paperbag and run  into a dark alley only to emerge empty handed.


If police immediately thereafter go to the alley and find a gun inside a brown paperbag, can the police testify in court that the gun found is the same gun that was carried by the D even though the police never saw D with the gun?


Answer: Yes.


The police may authenticate the gun through "recognition testimony" by testifying that the gun is the same gun possessed by D because the police found the gun in a brown paper bag, in the alley, shortly after having seen D run into the alley holding a brown paper bag, only to emerge from the alley without the bag in D's possession. The fact that the gun was found in the alley is circumstantial evidence that the gun was carried by D does not merit the court excluding the gun from evidence.


Hearsay Exception: "then existing state of mind"


Jack and Jill set a date to marry. However, prior to the marriage Jill had an affair with Homewrecker and fell in love with him. A week before the marriage Jill was found dead by police and Jack was charged with Jill's murder.


At trial, the prosecution seeks to call Homewrecker to the stand to testify that he went to Jill's apartment the night before she was found dead and Jill said to him, "you need to leave because I am going to Jack's house to tell him the marriage is off." 


Will Homewrecker be permitted to testify about what Jill told him the night before she was found dead?


Answer: Yes.


Hearsay” is a statement that the declarant does not make while testifying at the current trial or hearing that a party offers in evidence to prove the truth of the matter asserted in the statement. (FRE 801)

Hearsay to which no exception or exemption applies, is inadmissible. However, here the "then existing state of mind" exception applies to Jill's statement, thereby, making it admissible.

FRE 803 provides that a hearsay statement is admissible as an exception to the hearsay rule if the statement is of the declarant’s: 

(1) Then-existing state of mind (such as motive, intent, or plan), or (2) Emotions or senses, or

(3) Physical condition (such as mental feeling, pain, or bodily health).

However, this does not include 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.


Hearsay Exception: "Business Record"


Pat hired LawFirm to litigate her claim. During Pat's represenation,  she told LawFirm's lawyer, Luke, to "look into Mr. D, I think he knows more than he is telling us." Luke told his paralegal about his conversation with Pat and the paralegal wrote, "Pat wants us to check this guy out" next to Mr. D's name on the firm's witness list. However, Luke never did and opposing counsel moved for a directed verdict at trial, which the court granted. 


Pat then hired GoGetEm LawFirm to sue Luke for malpractice and seeks to introduce the witness list into evidence.


Should the court admit the witness list?


Answer: Yes.


Although the witness list is hearsay, Pat can introduce the witness list as the LawFirm's "business record," an exception to the hearsay rule.


A writing, record, or act qualifies as a "business record" if it is made in the regular course of doing business and customary to do in conducting one's business. That is, the writing, record, or act was made or performed as one of the actor's duties within the business.


Making a list of proposed witnesses would be part of the regular course of business for a law firm, and it would be part of the duties of a paralegal responsible for updating case files, to enter handwritten notations regarding Mr. D at the direction of Luke a lawyer in LawFirm. 


Hearsay within Hearsay


Alex ran down the street and saw his neighbor, John. Upon seeing John, Alex, who was holding a gun, said, "I finally shot the fool." John immediately went home and told his Mom, you won't believe this, but I saw Alex holding a gun and Alex said to me, "I finally shot the fool", then Alex ran down the street.


The next day, Alex' husband was found dead, and Alex was charged with murder. The prosecution seeks to put John's Mom on the stand to testify to what John told her.


Will John's Mom's testimony be admissible?


Answer: Yes.


This is a problem of hearsay within hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.


A hearsay statement to which no exception or exemption applies must be excluded upon an appropriate objection. Hearsay within hearsay is admsisible only if each layer of hearsay falls within a hearsay exception.


So, for John's Mom's testimony to be admissible, both the statement by Alex to John, AND, John to his Mom, must fall under a hearsay exception. 


Alex' statement to John is admissible as non-hearsay because it is an "admission of a party opponent," and John's statement to his Mom is admissible as an "excited utterance" because: (1) it was made soon after the startling event, and (2) the statement was made while under the stress of the excitement.


To qualify as a "startling event" the event must have produced a nervous excitement in the recipient such that declarant does not have time to reflect on the event prior to making the statement. This is met here. 


Who Decides if A Record is a "Business Record"?


P sued D. In preparation for tria, P creates a "survey" from a voluminous amount of records. At trial, P seeks to introduce the "survey" into evidence claiming it is a "business record." However, D objects arguing that the survey is not a business record, but rather, a self-serving document created by P. 


(1) Should the judge admit the survey and leave it up to the jury to decide if it is a business record, or should the judge decide?


(2) If the judge is to decide, then can the jury hear arguments for and against whether the survey is a business record falling under the hearsay exception to evidence?


Answer: (1) The judge should decide. (2) It is up to the judge whether to permit or excuse the jury during the parties' oral arguments for and against the survey being a business record.


All preliminary fact questions involving the standards of trustworthiness of alleged exceptions to the hearsay rule are to be determined by the court. Thus, the court, not the jury, must decide whether a purported business record was made in the regular course of business.


During the hearing at which the judge makes the preliminary fact determination, both parties must be given an opportunity to present evidence with regard to the fact to be determined. 


"Past Recollection Recorded"


What are the elements for "past recollection recorded?"


To establish a foundation for "past recollection recorded" and permit a witness to read from a writing, the following must be met: 

  1. The witness had personal knowledge of the facts in the writing; 
  2. The writing was made by the witness or under her direction, or adopted by the witness; 
  3. The writing was timely made when the matter was fresh in the mind of the witness; 
  4. The writing is accurate; that is, the witness must vouch for its accuracy; and 
  5. The witness has insufficient recollection to testify fully and accurately.
  1. That the writing may be read into the record but not admitted into evidence, unless the opposing party seeks to admit the writing into evidence as an exhibit. 
  2. Don't confuse this exception with "excited utterance." The writing does not have to be made while under the stress of an event.




 Presumptions: State Law v.Procedural Law


D, a resident of State CA, hit P, a resident of State NV while driving in NV. Suit is brought in federal court in NV based on diversity of citizenship. Under NV state law, "a vehicle that collides into the rear of another vehicle is presumed negligent, regardless of the surrounding circumstances."


Should the federal court apply NV's state law or federal law to the substantive law (presumption) and/or NV's state procedural law? 


Answer: Apply NV state law to both the substantive law (presumption) and procedural law.


In a CIVIL CASE, the effect of a presumption regarding a fact that is an element of a claim to which state law supplies the rule of decision, is determined by state law. (FRE 302)


Thus, here, under the FRE, NV's law will apply to the substantive law because the presumption of negligence goes directly to whether D breached a duty to P--an element of a claim of negligence.


State Substantive Law and Federal Procedural Law:Under the Erie Doctrine, in a case based on diversity of citizenship, the federal court must apply: 

  1. State substantive law in the state where the federal court is located, and 
  2. Federal law to the procedural issues. This is to prevent litigants from bypassing a state's law where the c/o/a occurred and to show respect for the state's legal system. 


State Procedural Law: However, state procedural law will apply, if and only if, in applying a state's procedural law, an important difference in the outcome of the litigation will result. 


Presumption: With respect to presumptions, the Federal Rule, which follows the Erie doctrine, provides that application of state law is appropriate only when the presumption operates on a substantive element of a claim or defense. In this case, the presumption at issue is that by presuming negligence on the part of a driver who rearends another driver, the presumption of negligence directly impacts the prima facie case element of duty breach of duty. Matters involving elements of a prima facie case are substantive in nature, thus, state law applies to such matters. 


Hearsay Exception: "Effect" on the Listener


D is on trial for murdering his partner, C. D's secretary overheard C tell D over the phone, "I heard talk in Al's Bar last night that your partner is going to spill the beans."


Can D's secretary testify to what she heard C tell D over the phone?


Answer: Yes.


D's secretary may testify as to what she heard C tell D over the phone because the statement by C is being offered for its effect on the hearer (D) that D had a motive to kill his partner. The secretary's statement is not being offered substantively; that is, for the truth of the matter asserted because it does not matter whether D's partner was really going to talk to the police; however, it is relevant to the effect the statements had on D and is relevant to the claim D had a motive to kill his partner.  


Thus, even though the secretary's testimony would be inadmissible to show that D's partner was really going to talk to the police, it is admissible to show its effect on D, the listener.


Hearsay Exception: "Summary"


R&R employed persons who were members of SEIU. After SEIU went public with information that R&R was engaged in illegal behavior, R&R employees who were also members of SEIU were soon dismissed from employment with R&R. 


SEIU represented the dismissed employees. In preparation for trial, SEIU's Secretary created a chart showing the reasons why the employees were dismissed against those who were not SEIU members. 


SEIU puts Secretary on the stand who testifies extensively about the chart. SEIU then moved to admit the chart.


Should the court admit the chart?


Answer: Yes.


The court should admit the chart because under FRE 1006 a "summary" of the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying.


Here, the underlying employment documents were available to R&R as they are R&R documents; thus, the chart is admissible as a summary of otherwise voluminous admissible employment records.


Prior Inconsistent Statement


P sued D. At trial, D said, "I did not do the crime, E did it." Suit against D is dismissed and E is sued. At E's trial, D is called to testify as to what he testified during his own trial. However, D testifies by stating, "E did not do it I did, Hah!" J, a juror at D's trial is called to testify as to what D said at his trial. 


Is J's testimony admissible?


Answer: Yes.


J may testify as to what J heard D testify at his trial and J's testimony may be used to both impeach D at E's trial and also for the truth of the matter asserted because:

  1. D's prior testimony at his own trial was made under oath; and
  2. D was given an opportunity to explain or deny his statement.

Extrinsic proof (J's testimony) of a prior inconsistent statement is admissible to impeach D's testimony at E's trial. 


Collateral Matter


D was arrested for battery. D's defense was "self-defense." At trial, D testified that he acted in self-defense and that he told the arresting officer he acted in self-defense. The prosecution later calls the officer to stand to testify the D never told him he acted in self-defense.


Is the officer's testimony admissible?


Answer: No.


The issue as to whether D told the officer he acted in self-defense is a collateral matter. A witness cannot be impeached on a collateral matter during direct examination, only during cross-examination. 


Whether D told the officer that he acted in self-defense is a collateral matter because the statement is only an assertion of his innocence and is not directly relevant to whether his self-defense claim is proper.


Hearsay Exception: "Vicarious Admission


Roberto, a manager of Wal-Mart, and Wal-Mart was sued by Shopper because a security guard for Wal-Mart had stopped Shopper and held her for questioning under the suspicion that she was shoplifting. 


The police were called to the scene and Roberto stated to the police, "I was not here when Shopper was detained by the security guard, but the guard told me he stopped her because looked suspicious."


At trial, Shopper seeks to introduce Roberto's statement to the police by using the police report.


Will Roberto's statement be admissible?


Answer: Yes


Roberto's statement to the police is admissible as a vicarious admission of a party opponent because: 

  1. The statement was made by Roberto when he was an employee of Wal-Mart; and
  2. The statement was made during the employment relationship.

Note that the police report would be admissible under the "busines record" exception to the hearsay rule. However, Roberto's statement in the police report is not admissible under the business record exception because Roberto did not have a business duty to report the statement to the police. 


Former Testimony Used in Subsequent Trial

Boyfriend is charged with murder of Girlfriend in a criminal trial. At hearing, Witness testified that at the time of the murder someone who looked like Boyfriend was at a bar in Las Vegas. Boyfriend is acquitted of the murder charge. 

In a subsequent proceeding, the survivors of Girlfriend's estate sues Boyfriend for wrongful death. Boyfriend seeks to admit Witness' testimony against Girlfriend's estate. Witness is now incarcerated.

Will Witness' testimony be admissible?


Answer: No.


Under the federal rules, the testimony of a witness that was given at another hearing is admissible if:

  1. There is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing of the declarant was meaningful; and
  2. The declarant is now unavailable. (FRE 804)

The party against whom the testimony is offered must have been a party or in privity in the former action. Examples of parties in privity are: grantor-grantee, testator-executor, life-tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a party in privity with her) had an adequate opportunity and motive to cross-examine the witness.


  Privilege Against Self Incrimination


Can a witness plea the 5th Amendment privilege against self-incrimination in either a civil or criminal case?


Answer: Yes.


A witness may assert the privilege against self-incrimination in any proceeding, civil or criminal, in which testimony that could incriminate the person (i.e., expose her to criminal liability) is sought.

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