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Federal Rules of Evidence (Article VIII: Hearsay (Four Categories of…

- - - - Courts of appeals
      - Court of Federal Claims (civil suits against fed gov't)
      - Bankruptcy & magistrate judges
      - District courts of Guam, Virgin Islands, Northern Mariana Islands (U.S. territories)
      - District courts
    - - U.S. Supreme Court (most trials don't require evidentiary proof)
      - Administrative agencies (less formal hearings, although agencies may choose to adopt Federal Rules)
      - State courts (although more than 40 states have adopted codes very similar to Federal Rules)
  - - - Civil cases/proceedings incl. bankruptcy, admiralty, maritime cases
      - Criminal cases/proceedings
      - Contempt proceedings (except those in which court may act summarily)
    - - Grand jury proceedings
      - Miscellaneous (incl. but not limited to)
        
        Preliminary examination in criminal case
        
        Sentencing
        
        Issuing arrest warrant/criminal summons/search warrant
        
        Granting/revoking probation or supervised release
        
        Extradition/rendition
        
        Considering whether to release on bail or otherwise
      - Court's determination on preliminary question of fact governing admissibility (Rule 104(a))
- - - - All out of court statements are hearsay when offered to prove truth of matter asserted
      - When offered for other purposes, not hearsay (Merritt p. 457); judge gives limiting instruction and subject to Rule 403 (Merritt p. 463)
  - - - Total of 23 exceptions under this rule
        
        Admissible for truth of matter asserted
        
        Absence of Business Records or Public Records = absence of a record may be as important as presence of one, esp. if org/agy regularly keeps records of that kind (Merritt p. 609)
        
        Rule 803(10) Absence of a Public Record = testimony or a certification under Rule 902 that a diligent search failed to disclose a public record/statement if (A) admitted to prove record/statement does not exist; or a matter did not occur/exist if public office regularly kept record/statement for a matter of that kind; and (B) in a criminal case, prosecutor who intends to offer cert provides notice to defendant (in accordance with 6th Amendment) (Merritt p. 611)
        
        Rule 803(7) Absence of a Record of a Regularly Conducted Activity = if (A) evidence is admitted to prove matter did not occur/exist; (B) a record was regularly kept for a matter of that kind; and (C) opponent does not show the possible source of the info or other circumstances indicate lack of trustworthiness (Merritt p. 611)
        
        Rule 803(8) Public Records = records of any public office/agency in 1 of 3 categories: (1) records of agency's activities; (2) records of observations agency had legal duty to report; or (3) reports of legally authorized investigation (Merritt p. 607)
        
        More reliable b/c public officials are neutral gatherers of info with no incentives to falsify records, and accountable to public. (Merritt p. 595)
        
        Rule 803(6) Records of Regularly Conducted Activity (Business Records) = records kept by an organization if (1) recorded by someone with personal knowledge or transmitted to recordkeeper by someone with personal knowledge, and both were members of the org; (2) kept in the course of a regularly conducted activity; and (3) it is the org's regular practice to keep the record (Merritt p. 593)
        
        6 elements (Merritt p. 581-582)
        
        Record was made in course of regularly conducted business activity and org has regular practice of keeping such records (accuracy and reliability)
        
        Must be introduced into evidence by qualified witness (i.e. custodian of the org). May be orally or via a written certificate.
        
        Recorded by someone with personal knowledge (Rule 602) themselves, or who receive the info from someone in the org that has personal knowledge
        
        Not admissible if source of info, method, or circumstance of preparation lack trustworthiness (i.e. prepared in anticipation of litigation) (Merritt p. 587)
        
        Business = any business, org, occupation, or calling, whether or not for profit
        
        Record as defined by Rule 101(b)(4)
        
        Records essential to a business's operation/mission so strong, incentives for accuracy/honesty. (Merritt p. 579)
      - More reliable than other out of court statements b/c little time for reflection & less opportunity to lie/falsify. (Merritt p. 512) May be written as well as oral, esp. in context of social media/texting. (Merritt p. 521)
        
        803(1) Present Sense Impression = statement describing or explaining event/condition, made while or immediately after declarant perceived it. Ex: Sportscasters stating athletes' movements as they occur. (Merritt p. 511)
        
        803(2) Excited Utterance = statement relating to startling event/condition, made while declarant under stress of excitement it caused. Ex: "Touchdown!" "Watch out for the car!" "Ouch!" (Merritt p. 511)
      - 803(4) Statement Made for Medical Diagnosis or Treatment = statement (A) made for and reasonably pertinent to medical diagnosis/treatment; and (B) describes medical history; past/present medical symptoms/sensations; their inception; or their general cause. Ex: "The pain runs from my neck down my left arm to the wrist" (Merritt p. 546)
        
        Assumes people are more likely to report history/causes of physical symptoms when seeking medical care. (Merritt p. 545) Allows for introduction of medical records for efficiency reasons - reduces need to call medical professionals to testify. (Merritt p. 546)
        
        Includes statements by family members on behalf of patient, or made by patient to family members/other nonprofessionals relating to obtaining care. May include psychological conditions. Statements that assign fault or blame excluded. (Merritt p. 557)
      - Rule 803(5) Recorded Recollection = record that (A) is on a matter witness once knew but now cannot recall well enough to testify fully/accurately; (B) was made or adopted by witness when the matter was fresh in witness's memory; and (C) accurately reflects witness's knowledge. If admitted, may be read into evidence but received as an exhibit only if offered by adverse party.
        
        Recorded recollection more reliable b/c was made when declarant's memory was fresh. Only applicable when declarant available to testify as witness and be subject to cross-examination. (Merritt p. 560-561)
        
        6 requirements for admissibility (Merritt p. 561-562)
        
        Declarant/witness must testify once knew the info in the record and made/adopted the record when had that knowledge
        
        Witness must have made/adopted record at time knowledge was fresh
        
        Witness testifying in court must be declarant or person who saw the record and agreed it was true
        
        Witness must testify that at time made/adopted record, knew if accurately reflected witness's knowledge
        
        Statement appears in a record as defined under Rule 101(b)(4)
        
        Witness must no longer recall the info in the record enough to testify fully/accurately
        
        compare to Rule 612 Writing Used to Refresh a Witness's Memory permits witnesses to refresh memory from notes or other docs, and then testify from refreshed memory BUT low probative value b/c likely testifying from new short-term memory, not original memory. (Merritt p. 560)
        
        Click here for comparison of Rules 612 and 803(5) (Merritt p. 568)
      - 803(3) Then-Existing Mental, Emotional, or Physical Condition = state of mind (i.e. motive, intent, plan) or emotional, sensory, or physical condition (i.e. mental feeling, pain, bodily health). Ex: "I'm hungry," "I'm so nervous I'm dripping sweat," "I plan to fly to Denver tomorrow." (Merritt p. 525)
        
        But NOT incl. a statement of memory or belief to prove the fact remembered or believed UNLESS it relates to the validity or term of declarant's will. Ex: "I remember how hot I felt yesterday" admissible to show declarant remembered the feeling at the time statement made, but not to prove that declarant felt that way. (Merritt p. 528)
        
        More reliable than other hearsay b/c reduced risk of memory/perception issues. (Merritt p. 526) Statements reflect declarant's own internal feelings in the moment. Internal states admissible; external events/conditions inadmissible. (Merritt p. 529)
      - 803(17) Market Reports and Similar Commercial Publications = market quotations, lists, directories, compilations generally relied on by public or by persons in particular occupations (Merritt p. 615)
        
        Rule 803(16) Statements in Ancient Documents = statement in a doc prepared before Jan. 1, 1998 and whose authenticity is established (Merritt p. 613)
        
        Rule 803(18) Statements in Learned Treatises, Periodicals, or Pamphlets = if (A) called to attention of an expert witness on cross-examination or relied on by expert on direct examination; (B) publication established as reliable authority by expert's admission/testimony, another expert's testimony, or judicial notice. If admitted may be read into evidence but not received as exhibit. (Merritt p. 617)
    - - 804(b)(1) Former Testimony = almost as reliable as firsthand testimony b/c occurred under oath in formal courtroom setting (Merritt p. 631)
        
        (B) is now offered against a party who had - or in a civil case, whose predecessor in interest had - opportunity and similar motive to develop it by direct, cross-, or redirect examination
        
        Declarant must be unavailable. Applies to any content of a statement. Must have been given as a witness, which implies under penalty of perjury, and made during trial/hearing/deposition at which the current opponent (or in a civil case predecessor in interest) had opportunity and similar motive to develop the testimony.
        
        (A) testimony give as a witness at trial/hearing/lawful deposition, whether during the current proceeding or a different one; AND
      - compared to 801(d)(1)(A) Prior Inconsistent Statements by Witness (Merritt p. 639-640)
        
        Declarant must testify at current trial/hearing and must be subject to cross-examination. Applies to content of statement inconsistent with current testimony. Must have been given under penalty of perjury and made at any prior trial/hearing/proceeding/deposition.
      - 804(a) Criteria for Being Unavailable (Merritt p. 624) *does not apply if statement's proponent procured or wrongfully caused declarant's unavailability in order to prevent from attending/testifying
        
        (3) lack of memory
        
        (4) death or then-existing physical/mental illness
        
        (2) refusal to testify (judge may hold in contempt)
        
        (5) absence
        
        (A) cannot procure declarant's attendance, in accordance with Rule 804(b)(1) or (6)
        
        (B) cannot procure declarant's attendance or testimony in accordance with 804(b)(2), (3) or (4)
        
        (1) exempted from testifying b/c court rules that a privilege applies
      - 804(b)(3) Statement Against Interest = assumes reasonable people don't make self-inculpatory statements unless believe them to be true (Merritt p. 649-651)
        
        (A) Reasonable person in declarant's position would have made the statement only if they believed it to be true b/c against declarant's interest in 1 of 3 ways:
        
        invalidates claim against someone else
        
        exposes to civil or criminal liability
        
        contrary to proprietary or pecuniary interests
        
        (B) Admissible in criminal case only when corroborating circumstances clearly indicate statement's trustworthiness. Judge considers 3 factors under 104(a): (Merritt p. 656)
        
        Declarant's motive in making statement and whether had a reason to lie
        
        Whether declarant repeated statement and did so consistently
        
        Whether declarant pled guilty before making statement or was still exposed to prosecution
        
        Party/parties to whom statement made
        
        Declarant's relationship to accused
        
        Nature and strength of independent evidence relevant to conduct in question
      - 804(b)(2) Dying Declarations = assumes dying people speak honestly; no incentive to lie (Merritt p. 643)
        
        In a prosecution for a homicide or in a civil case
        
        Declarant must believe that death is imminent (admissible even if declarant does not die but is still unavailable at trial)
        
        Made about cause or circumstances of declarant's death
        
        (Merritt p. 647) Judge applies 104(a), considering factors such as:
        
        Nature and extent of wounds or illness
        
        Length of time between statements and declarant's death
        
        Statements made by medical personnel and other to declarant
        
        Opinion of medical personnel who treated declarant about declarant's health
        
        Statements made by delcarant
      - 804(b)(6) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability = parties more likely to silence truthful witnesses; prevent wrongdoers from benefitting from their misconduct (Merritt p. 659-660)
        
        not necessarily by criminal act, but coercion, undue influence, pressure to silence testimony/impede truth-finding (Merritt p. 661)
        
        wrongfully caused - or acquiesced in wrongfully causing - the declarant's unavailability as a witness, and did so intending that result
    - - (1) A Declarant-Witness's Prior Statement
        
        (A) Inconsistent testimony (Merritt p. 457)
        
        (B) Consistent testimony
        
        (i) Rebuttal (Merritt p. 493; 503)
        
        (ii) Rehabilitation
        
        (C) Pretrial identification of a person
      - (2) An Opposing Party's Statement
        
        (A) Made by party in individual or representative capacity (Merritt p. 668)
        
        (B) Party manifested that it adopted or believed to be true
        
        (C) Made by person whom party authorized
        
        (D) Made by party's agent or employee on a matter w/in scope of relationship
        
        (E) Made by party's coconspirator. 1) Statement by coconspirator; 2) In furtherance of the conspiracy; and 3) During the conspiracy (Merritt p. 697) May be used against the coconspirator, but not enough alone to establish a conspiracy...need other evidence to support and the judge makes the determination (Merritt p. 709)
        
        Same side of litigation may generally use a co-plaintiff or co-defendant party's statement against that person (Merritt p. 683) but may not use against any other party other than the party who made the statement in a civil case (Merritt p. 684); and may not used a co-defendant's statement against the co-defendant in a criminal case where it would violate the party's 6th Amendment rights (Merritt p. 685)
    - - Gives judges flexibility to admit some hearsay outside standard exceptions (Merritt p. 711)
      - (a) Hearsay may be admissible under some circumstances even if not covered by exception in Rule 803 or 804
        
        (2) offered as evidence of material fact (duplicates Rule 402 relevance requirement)
        
        (3) more probative on point for which offered than any other evidence proponent can obtain through reasonable efforts
        
        (1) equivalent circumstantial guarantees of trustworthiness (to Rule 803 and 804 exceptions) based on numerous factors (Merritt p. 716-717)
        
        Declarant's firsthand knowledge of facts
        
        Whether statement was recanted
        
        Whether statement made under oath
        
        Whether other evidence corroborates statement and is subject to cross-examination
        
        Whether other evidence undermines or contradicts
        
        Whether declarant had incentive to lie
        
        (4) will best serve purposes of these rules and interests of justice (reiterates Rule 102)
      - (b) Proponent must give adverse party reasonable notice of intent to offer statement and particulars, incl. declarant's name and address so has opportunity to meet it
  - - - Lack of declarant's personal knowledge (Rule 602) or capacity to testify truthfully (Rule 603)
      - Reputation/opinion evidence of declarant's untruthfulness, given by character witness (Rule 608(a))
      - Statements inconsistent with hearsay statements (Rule 613)
      - Any criminal convictions allowed by Rule 609
      - Bias, prejudice, or interest in case
      - Applies only to out-of-court statements offered for truth of matter asserted (Merritt p. 724)
        
        Allows any party to impeach a hearsay declarant (mirrors Rule 607)
        
        If declarant's statement admitted under hearsay exception, opposing party may call declarant as witness and cross-examine using leading questions (overrides Rule 611)
      - Helps parties hurt by admission of hearsay (Merritt p. 728)
- - - - (Merritt p. 309; Also, click here for example chain of inferences p. 310) Rule 608 A Witness's Character for Truthfulness or Untruthfulness May introduce evidence of reputation for untruthfulness (See also, Merritt p. 282)
      - (Merritt p. 309; Also, click here for example chain of inferences p. 311) Rule 609 Impeachment by Evidence of a Criminal Conviction May use witness's conviction of crimes of dishonesty to prove untruthful character (propensity for untruthfulness)
      - Rule 607 Who May Impeach a Witness Any party, incl. the party that called the witness, may attack the witness's credibility (Merritt p. 224)
  - - - No, judge gives limiting instructions (Merritt p. 382)
      - Yes = inadmissible
    - - Permissible, non-propensity evidence; specific repeated responses to a particular situation or stimulus (Merritt p. 385-386)
      - Any other relevant purpose that avoids propensity inference (Merritt p. 374)
      - Lack of accident (Merritt p. 374)
      - Absence of mistake (Merritt p. 374)
      - Preparation (Merritt p. 374)
      - Intent (Merritt p. 371)
      - Knowledge (Merritt p. 370)
      - Opportunity (Merritt p. 369)
      - Identity (Merritt p. 367)
      - Plan (Merritt p. 366)
      - Motive (Merritt p. 365)
- - - - Yes, may testify
        
        Rule 601 Competency to Testify in General Every person, except where rules provide otherwise (up to opposing counsel to expose weaknesses in credibility or testimony (Merritt p. 166)
        
        Lawyer not barred by Rules from testifying, but ethical rules discourage
      - No, may not testify
        
        Rule 605 Judge's Competency as a Witness Judge presiding over case (Merritt p. 170)
        
        Rule 606 Juror's Competency as a Witness Jurors (if a juror is called to testify, court must give a party an opportunity to object outside the jury's presence) (Merritt p. 172)
    - - Rule 602 Need for Personal Knowledge (Merritt p. 173-178)
        
        Cannot speculate about matters beyond personal knowledge
        
        Evidence to prove may consist of witness's own testimony
        
        Matters witness has seen, heard, or otherwise sensed themselves
      - Rule 603 Oath or Affirmation to Testify Truthfully (Merritt p. 178)
        
        Must be in form designed to impress duty on witness's conscience
        
        Oath uses word "swear" and references "God"
        
        Affirmation omits religious references and uses word "affirm"
        
        Witness can choose; no legal distinction
        
        Establishes minimum understanding of competency
        
        Rule 604 Interpreter must be qualified and must give an oath or affirmation to make a true translation (Merritt p. 180)
    - - Rule 606(a) Juror's Competency as a Witness - May not testify in a case in which the juror serves
      - Rule 606(b) During an Inquiry into the Validity of a Verdict or Indictment - May testify
        
        What may the juror testify regarding?
        
        606(b)(1) Prohibited Testimony or Other Evidence - May not testify about:
        
        Any statements made or incident that occurred during jury's deliberations
        
        Effect of anything on that juror's or another juror's vote
        
        Any juror's mental process concerning indictment
        
        606(b)(2) Exceptions - May testify about
        
        Extraneous prejudicial info improperly brought to jury's attention
        
        Outside influence improperly brought to bear on any juror (attempts to bribe, coerce, influence, i.e. jury tampering)
        
        Mistake made in entering the verdict on the form (clerical error)
        
        In a criminal trial, if a juror's statement indicates racial stereotyping/animus, 6th A. guarantee of fair and impartial jury will override 606(b). Must show overt racial bias and significant motivating factor to convict.