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Analyzing Statements for Evidence (New)
Transcript of Analyzing Statements for Evidence (New)
Does it qualify as a hearsay exemption or exception?
Is there a Confrontation Clause issue?
Is this statement relevant?
FRE 401. Relevance.
Relevant evidence is “evidence having ANY tendency to make the existence of a fact of consequence . . . more probable or less probable than it would be without the evidence.”
CEC 210. Relevance.
Relevant evidence is "evidence having ANY tendency to make the existence of a DISPUTED fact of consequence... more or less probable...
What is the evidence?
How does it help make the asserted fact
more or less probable?
How is this evidence meaningful to my argument?
Is this item of evidence too common place or coincidental to make my assertion more (or less) probable?
What is your proposition?
What is the proponent's theory about the case?
How does this piece of evidence relate to that theory?
What is this evidence being offered to prove?
Three Step Analysis for Relevance
THREE TYPES OF EVIDENCE:
1. Testimonial – witness testimony
2. Tangible – the real items from the crime/case (ex. The murder weapon)
3. Demonstrative – items that help explain the case but are not from it (ex. A map, slideshow, crash dummy)
Evidence that proves a fact without a need for an inference.
Example: Testimony from someone who saw the murder.
The question becomes, do you believe the witness?
Evidence that proves a fact through one or more inferences.
Example: A witness who heard the couple fighting earlier that day but was not a witness to the murder.
The question becomes, do you think this is significant enough to the case at hand to make an inference from it?)
Relevance is not an inherent characteristic of any item of evidence; it exists as a relation between the item and a proposition sought to be proved.
Should the statement be excluded for any other reason?
FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
confusing the issues
misleading the jury
needlessly presenting cumulative evidence
Remember: It is okay for evidence to be slighly prejudicial. Most evidence is somewhat prejudicial and that's why it is being used.
Remember: SUBSTANTIALLY prejudicial evidence will be excluded.
What is prejudicial evidence?
The evidence must have a great capacity to LURE the fact finder into declaring guilt on a ground different from proof specific to the offense charged.
Isn't all evidence prejudicial?
(a) STATEMENT. A person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) DECLARANT. The person who made the statement.
(c) HEARSAY. A statement that (1) is made out of court, and (2) is offered into evidence to prove the truth of the matter asserted in the statement.
What if the statement is NOT being offered to prove the truth of the matter asserted?
If the statement doesn't need to be true to be relevant, the statement is an exclusion (NOTMA). There are six types:
Declarant's State of Mind / Implied Assertions ("I am the Pope")
General logic (He spoke, therefore, he's not dead)
Traces / Knowledge (child molestation)
Auditor's State of Mind / Notice (incorrect sponge count)
Legally Operative Language ("You've got a deal!" "I do.")
Is the statement hearsay?
FRE 801. Hearsay. Definitions.
FRE 803. Exceptions Regardless of Declarant's Availability.
The following are not excluded by the rule against hearsay:
FRE 803(1). Present Sense Impression.
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
FRE 803(2). Excited Utterance.
A statement relating to a startling event or condition, made while the declarant was under the stress or excitement that it caused.
FRE 803(4). Statement Made for Medical Diagnosis or Treatment.
A 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.
FRE 803(3). Then-Existing Mental, Emotional, or Physical Condition.
A statement of the declarant's then-existing state of mind (such as motive, intent or plan) 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...
Lira v. Albert Einstein Medical Center (1989).
Holding the lower court erroneously admitted testimony of Dr. Silberman's out of court statement against the defendant by allowing the plaintiff to characterize it as a present sense impression, but professional opinions do not qualify as such.
State v. Jones (1987).
Holding that the trial court probably should not have admitted the testimony of a state trooper who overheard two truckers talking over citizens' band radio about the incident they had just witnessed because even though it qualified as a present sense impression on the grounds of contemporaneous and personal knowledge, it should have been corroborated with additional evidence.
Adkins v. Brett (1920) -
Holding that plaintiff's testimony regarding statements his wife made to him about her affair with the defendant because even though they are admissible hearsay under the then-existing state of mind exception, they reveal prejudicial and disputed facts, and the jury was not given proper instructions that would protect the defendant from unfair prejudice.
Mutual Life Insurance v. Hillmon (1892). "The Hillmon Doctrine" -
Holding that two letters from Walters are competent statements of his then-existing state of mind and intent to travel to Colorado, which is a material fact bearing upon the question of which man died.
Shepard v. United States -
Holding a statement offered by the gov't and made by the victim that her husband Dr. Shephard poisoned her was not admissible since it was not used to rebut D's claim that she was suicidal (as it could have) but to show proof of murder.
United States v. Pheaster -
Holding that the victim's statements of his intention to meet the defendant in the parking lot of Sambo's North can only be used to infer that the victim acted on his intention, but not to infer that D met him there.
Zippo v. Rogers -
Holding that survey data regarding customers responses to whether a lighter was a Zippo or Rogers is admissible to show the then-existing mental state of customers and is the most appropriate and scientific way to do so.
United States v. Tome (1995).
Holding that statements declarant (child victim) made to her three doctors qualify as admissible hearsay because these statements were pertinent to her diagnosis and treatment for sexual assault, but that declarant's statements to her mother, babysitter and caseworker are inadmissible under 803(4) because these parties were not diagnosing or treating her at the time the statements were made.
FRE 804. Exceptions - When a Declarant is Unavailable.
804(b). The Exceptions.
The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
FRE 804(b)(1). Former Testimony.
(A) was given as a witness at trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party, who had -- or, in a civil action, whose predecessor in intent had -- an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
FRE 804(b)(2). Statement Under the Belief of Imminent Death.
In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.
Statement Against Interest.
A statement that:
(A) A reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
FRE 804(b)(6). Forfeiture by Wrongdoing.
A statement offered against a party that wrongfully caused -- or acquiesced in wrongfully causing -- the declarant's unavailability as a witness, and did so intending that result.
FRE 804(a). Definition of Unavailability.
Witness is exempted by privilege
Persistent refusal to testify*
Lack of memory*
Death, or then-existing physical/mental illness
Absent and unable to procure by reasonable means, UNLESS absent by wrongdoing (see FRE 804(b)(6) Forfeiture.)
*California does not recognize these reasons.
Truck Insurance v. Michling (1963).
Holding testimony from the deceased's wife regarding an excited utterance made by the deceased on the day of the accident cannot be admitted because there is no independent evidence that an accident occurred, and thus the statement would be used to "bootstrap" the whole case.
An Opposing Party's Statement.
The statement is offered against an opposing party and:
was made by the party in an individual or representative capacity;
is one that the party manifested that it adopted or believed to be true;
was made by a person whom the party authorized to make a statement on the subject;
was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or
was made by the party's co-conspirator during and in furtherance of the conspiracy.
FRE 801(d)(2). Admissions.
The statement must have been made under oath while cross-examination was occurring.
In Grand Jury testimony, there is no cross-examination, so those statements can’t come in.
Depositions and trial testimony do have cross-examinations, so they can come in.
After an analysis of an out of court statement where it is determined that the statement -- offered against the defendant -- is
Hearsay = inadmissible, BUT
Fits an exemption or exception = admissible,
ASK (Crawford Analysis):
Is the statement testimonial or not?
If not testimonial, then admissible.
If testimonial, gov't must show
1. Declarant is unavailable, and
2. Accused had a chance to confront/cross-examine the witness.
If neither element is satisfied, then the statement is inadmissible, unless it is an exception: DYING DECLARATION 804(b)(2) or FORFEITURE BY WRONGDOING 804(b)(6).
Does the Confrontation Clause apply?
Under the 6th Amendment, the Confrontation Clause gives a criminal defendant the right to confront the witness testifying against him or her.
The clause only applies to criminal cases, not civil cases.
What is Testimonial?
It is unclear, but the following are examples of evidence that has been ruled testimonial.
Prior Testimony (preliminary hearings, Grand Jury, former trial), AND
"Similar pre-trial statements that the declarant (or an objective witness) would reasonably expect to be used prosecutorially or in a later trial." Crawford, p. 409.
Davis v. Washington
Statements that are made in the course of a police interrogation under circumstances objectively indicating that the primary purpose is to enable assistance to meet an ongoing emergency are not testimonial.
Hammon v. Indiana
Statements made when circumstance indicate objectively that there is no such ongoing emergency, and that the primary purpose is to establish or prove past events potentially relevant to a criminal prosecution are testimonial.
Michigan v. Bryant
Determining the primary purpose of the statement is highly context dependent and requires a combined inquiry of both the declarant and interrogator's understanding of the situation.
Determining the Existence of an
Was this an issue involving PUBLIC SAFETY or THREATS TO POLICE (As compared to domestic violence cases where threat is only to victim.)
What type of WEAPON was involved? (This impacts scope and duration of emergency.)
What is the MEDICAL CONDITION of victim-declarant?
How INFORMAL was the statement or the circumstance in which the statement was made?
FRE 601. Competency. Every person is competent to be a witness unless these rules provide otherwise.
This rule only triggers at the moment of trial and the competency of the witness at that moment.
(ex. Drunk during time of incident = OK in trial; drunk during trial = NOT OK)
It will always be the judge’s discretion when determining the competency of the witness.
CEC 1220. (Same Rule)
CEC 1221. (Same Rule)
CEC 1222. (Same Rule)
There is no comparable CEC rule on this topic!
CEC 1223. (Same Rule)
CEC 1250. (Same Rule)
No comparable CEC, BUT CEC 1251 allows statements on PAST mental/physical condition made to ANYONE, but declarant must be unavailable.
CEC 1240. (Same Rule).
CEC 1242. (Same Rule EXCEPT declarant must die.)
CEC 1230. Same rule EXCEPT also includes "or creates a risk that makes him an object of hatred, ridicule or social disgrace..."
The Judgment of King Solomon -
When one mother stated that King Solomon should kill the baby boy if she could not be the mother to him, did he make the correct inference that she was not his mother? Possibly no.
Knapp v. State -
Should a physician's testimony that an old man died of senility and alcoholism rather than from a beating by the marshal of Hagerstown be admitted as a rebuttal to Knapp's testimony that he killed the marshal out of fear and self-defense after hearing a rumor that the old man was beaten? Yes.
Union Paint & Varnish v. Dean -
Should evidence of the damage that the first drum of paint did to Dean's roof be admissible because it's relevant to his reason for wanting to return the second drum? Yes.
Sherrod v. Berry -
Should evidence that Sherrod did not have a gun be admissible against the testimony that Officer Berry shot him because he saw Sherrod make a motion to obtain a gun? No.
Estate of Murdock (NOTMA - General Logic) -
Holding that the Deputy Sheriff's testimony that the deceased spoke words to him before he died did not violate the hearsay rule since the issue is whether the deceased was alive when the Deputy found him.
Subramaniam v. Public Prosecutor (NOTMA - SOM Aud) -
Holding D's testimony of what the terrorists told him should not be barred as hearsay because it was offered to show D's state of mind and why he carried ammunition on his person.
Vinyard v. Vinyard Funeral Home (NOTMA - Notice) -
Holding the trial court properly admitted evidence that people complained to the D's officers about the parking lot being slippery when wet because it was not offered for its truth but to show awareness of the issue.
Johnson v. Misericordia Hospital (NOTMA - Notice) -
Holding documents from other hospitals' dealings with Dr. Salinsky & his professional missteps are admissible even though they contain opinions of other medical professionals who were not called to testify, because they are relevant to showing other (bad) opinions about the doctor did exist whether they are true or false.
More Related Cases
Ries Biologicals v. Bank of Santa Fe (NOTMA - Legally Operative Language) -
Holding P can introduce into evidence statements made by D out of court since they are not being offered for their truth, but for the fact that the statements, which were about a business deal, were made at all.
Fun-Damental v. Gemmy Industries (NOTMA - SOM Declarant) -
Holding testimony from P's national sales rep regarding the confusion that some retail customers experience when seeing Gemmy's copycat product at stores is admissible since it is not offered for the truth of the fact asserted which is that Gemmy stole P's idea.
US v. Hernandez (Hearsay) -
Holding that evidence introduced by the gov't via a DEA agent who testified that she heard D was a drug trafficker should have been barred since it was indeed offered for the truth of the matter asserted.
US v. Zenni (NOTMA - SOM Dec) -
Holding statements made by phone callers to D's premises to place racing bets are implied assertions but not hearsay because they are not offered for the truth of the matter asserted in each statement but to show what the declarants believed the premises to be when they called (a bookie's office).
Even More Related Cases
Commonwealth v. Knapp (NOTMA - SOM Dec) -
Holding evidence of third party's suicide may be admitted as probatively suggesting the guilt of the defendant (who aided and abetted third party in a murder) because the suicide is not offered for the truth of the allegation of complicity, but to show the third party's guilt state of mind.
Nathan Rothschild @ London Stock Exchange & the Canadian Prime Minister Eating Beef (NOTMA - SOM Aud) -
These parties did not perform their actions for the truth of the matter asserted, but to send a message that would impact the auditors'/viewers' states of mind.
Webster Groves v. Quick -
Holding that testimony of a speedometer's reading by the ticketing officer should not be considered hearsay.
Reed v. McCord -
Holding the statements of the defendant regarding the circumstances and cause of the accident to the plaintiff's intestate, made while the defendant was a witness before the coroner, were competent and properly received because they were admissions being used against the party who made them.
US v. Hoosier -
Holding witness testimony concerning statements made by D's girlfriend in D's presence about a bank robbery that D did were admissible under 801(d)(2)(B) because D had the opportunity to deny involvement and didn't, so his silence was a manifestation of his adoption of her belief.
State v. Carlson -
Holding D's reaction to his wife's accusation by hanging his head and shaking it left to right is so ambiguous that it cannot be reasonably deemed sufficient under 801(d)(2)(B) to establish any particular interpretation, and therefore should not be admitted.
Mahlandt v. Wild Canid -
Holding the trial judge was wrong to bar D's written and verbal statements to his boss because he did have personal knowledge of the incident, and the statements were being used against him and his organization's board under 801(d)(2)(B) and 801(d)(2)(D).
Mahlandt v. Wild Canid -
Holding the trial judge was wrong to bar the board's meeting notes from evidence since those notes were made by people who had been authorized to speak on behalf of Wild Canid and therefore qualify under 801(d)(2)(C).
Big Mack Trucking v. Dickerson -
Holding an agent must have express or implied authority to speak on a party's behalf and Mr. Leday (employee) did not, so his statement cannot be used against the trucking company who is being sued.
Sabel v. Mead Johnson -
Holding a tape recording of a meeting convened by D and attended by inside and outside medical experts discussing the side effects of the drug P is suing about is only partially admissible under 801(d)(2)(D) because D did not have control over the outside experts or the meeting and only some parties at the meeting had the authority to speak for D.
US v. DiDomenico -
Holding that out-of-court statements made by co-conspirators of D can be admitted under 801(d)(2)(E) because the conspirators are all acting as agents of an illegal enterprise and should be held to the same standards as agents of legal enterprises under 801(d)(2)(D).
US v. Goldberg -
Holding statements by two co-conspirators to a federal fraud and tax offense are admissible against a third member of the conspiracy even if made before the third guy joined because conspirators take the conspiracy as they find it.
US v. Doerr -
Holding statements made by co-conspirators can only be used as admissions against other co-conspirators when those statements were made during and IN FURTHERANCE of the conspiracy and are not idle chatter.
Bourjaily v. US -
Holding the court DOES NOT have to first determine by independent evidence that a conspiracy existed (and that declarant is a member) before admitting an OOC statement under 801(d)(2)(E) because FRE 104 allows the court to determine admissibility of any and all evidence except that which falls under rules of privilege.
CEC 1290-1291. FM can be offered against same party or successor in interest, but no privity (legal relationship) is required between different parties and there need not be similar motive.
CEC 1292. FM can be offered against a party not in the original trial if similar motive present.
Travelers Fire Insurance v. Wright -
Holding testimony made by witnesses in the criminal trial of one Wright brother can be entered into evidence against the other during the civil case against them since each brother has a similar motive to get away with the crime.
US v. Salerno -
Holding testimony by gov't witnesses given during a Grand Jury hearing cannot be used by the defendants during the trial because the gov't did not have similar motive in developing it.
R. v. Perry -
Holding the dying declaration of the deceased should not have been barred even though she said it after possibly hearing the doctor say she might die at any moment because it was made under circumstances and with an expression that demonstrated a hopeless expectation of death.
State v. Williams -
Holding a witness should not be able to testify to what the dying victim said about who he thought shot him be admitted into evidence because the statement was nothing more than the V's opinion.
Garza v. Delta Tau Delta -
Holding the trial court did not err by admitting into evidence Courtney’s suicide note pursuant to the dying declaration exception to the hearsay rule because it demonstrates her hopelessness and gives insight into the cause and circumstances of her death.
Giles v. California -
Holding inculpatory statements by murder victims such as the one the gov't is trying to enter in this case are inadmissible because they do not fall under an exception to the Confrontation Clause.
Old Chief v. US -
Holding the name or nature of Old Chief's prior offense should be excluded from evidence because it raises the risk of a verdict tainted by improper considerations.
Ballou v. Henri Studios -
Holding the district court erred when it excluded evidence of P's blood-alcohol level in favor of a witness's testimony that Ballou was not drunk at the time of the incident because the jury and not the judge is supposed to decide credibility issues.
Holmes v. South Carolina -
Holding the State Supreme Court should have allowed D to present a defense with valid and reelvant evidence implicating someone else of the crime because you have a Constitutional right to a meaningful opportunity to present a complete defense.
People v. Adamson -
Holding the state of California did not err in allowing evidence of Adamson's stocking caps as a sign of sexual perversion, which led to his conviction, even if they were heavily prejudicial because there were lots of other strong pieces of evidence in the case.
US v. Brown -
Holding an IRS agent's testimony to Brown's fraudulent (inflated) returns were highly prejudicial and based on hearsay since she was recalling conversations she had with taxpayers who were not in court.
Wilson v. Clancy -
Holding P cannot enter into evidence a witness's testimony on D's silence on a matter relating to the case because even though silence is not hearsay, it is unfairly prejudicial.
US v. Jaramillo-Suarez -
Holding the trial court adequately guarded against the risk of unfair prejudice by instructing the jury that the "Pay/Owe Sheet" was "being admitted for the limited purpose of showing the character and use of the premises..."