Relevant evidence




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FRE 801(d)(2)(D) – Admissions, employee/agent statement – Statement of a party-opponent is defined as “not hearsay” when: The statement is offered against a party and is a statement by (1) the party’s agent or servant (2) concerning a matter within the scope of the agency or employment, (3) made during the existence of the relationship

  • After employment ends, there are too many reasons to lie.

  • Problem 4D – Napton involved in accident while driving for Ace. After he’s no longer employed, says “I was speeding” and “the brakes failed.” Both statements admissible against Napton (under A), but not Ace (under D), as he’s no longer an employee.

    • Speeding statement comes in with limiting instruction.

      • If it was a criminal trial, maybe not (Bruton)

    • Brakes statement only has relevance to Ace’s liability and isn’t admissible as to Ace, so will be excluded.

  • Mahlandt (8th Cir. 1978): Mr. P was keeping wolf in back yard for his company. M is injured, either mauled by the wolf or hurt crawling under fence to get to wolf. P doesn’t see what happened. 2 statements at issue: #1 is a note from P to boss saying the wolf bit someone. #2 is minutes of board meeting discussing the incident. #1 is admissible against both P and the company under 801(d)(2)(A/D). Makes no difference that P had no actual knowledge. That goes to weight. He can argue that to the jury. #2 is only admissible against the company – the agency relationship only works in one direction.

    • #2 likely excluded – it’s cumulative evidence as to the company so not much probative value, and inadmissible against P.

  • Cedeck (8th Cir. 1977): Woman alleged sex discrimination. Says branch manager told her that he had been told she wouldn’t become a manager unless “she’s flatchested and wears pants.” Here, held inadmissible b/c its hearsay within hearsay. However, modern courts have moved towards admission. Admissible just to show it was said, not as to whether the branch manager actually was told this.

  • FRE 801(d)(2)(E) – Admissions, co-conspirator – Statement of a party-opponent is defined as “not hearsay” when: The statement is offered against a party and is a statement (1) by a coconspirator of a party (2) during the course of the conspiracy and (3) in furtherance of the conspiracy.

    • Bourjaily (USSC 1987): in drug conspiracy prosecution of B, prosecution wants to use his cohort L’s statements to informant G. This shows the power of a conspiracy charge: gets statement by L to G about involvement of B admissible for its truth against B (and L) under 801(d)(2)(E).

    • Conduct as well as co-conspirator statements made in furtherance of the conspiracy are admissible against all conspirators

    • Also available to civil litigants who wants to use D1’s statement against D2 in a civil (e.g. antitrust) conspiracy case

    • Problem 4H – A, B & C charged in drug conspiracy. 3 statements:

      • Conversation at the airport where all talk about purpose of the trip

        • Statement not in furtherance of the conspiracy, so not admissible – it’s just “idle chitchat”

      • A’s conversation with undercover D where he arranges a buyer.

        • Judge must find they’re all co-conspirators under 104(a) – Bourjaily. Can look to fact that they’re all on the plane.

        • Admissible – it’s by a conspirator, during the conspiracy, furthering the conspiracy

      • Following her arrest, you have C saying to the DEA agent that B went down to Colombia.

        • Not in course of the conspiracy. After arrest, all the incentives change, so we don’t trust the statement.


    • Bootstrapping issue: The contents of the statement shall be considered but are not alone sufficient to establish:

        • the declarant's authority under subdivision (C),

        • the agency or employment relationship and scope thereof under subdivision (D)

        • the (1) existence of the conspiracy and (2) the participation therein of the declarant and (3) the party against whom the statement is offered under subdivision (E).

      • Problem 4G – Truck driver says, “I’m sorry this happened. I was making an errand for Farmright, and got distracted.” Statement is a) an acceptance of responsibility and b) a statement that he was acting within his employment. It is being offered for its truth under 801(d)(2)(D). By rule, the statement alone can’t establish the employment relationship, though it can be considered. However, if jury hears it, it will likely ignore rule and find agency. Thus, we make the finding of agency (and therefore admissibility) a 104(a) question for the judge (both “applying a rule” and “inflammatory statement” rationales point this way)

        • Can lead to inconsistent results btwn judge and jury

      • Bourjaily (USSC 1987): in drug conspiracy prosecution of B, prosecution wants to use his cohort L’s statements to informant G. In making 104(a) ruling, USSC holds judge can consider the statement itself in determining the existence and participation in the conspiracy.

      • Prosecutor may argue that the 801(d)(2)(C-E) statement is being offered subject to later connection. If judge permits this, the prosecutor has to be right, or else he will have either forced a mistrial or created an appellate issue. Big problem for prosecutor if judge later finds the foundation was insufficient.


    FRE 803 Hearsay Exceptions – Unrestricted (Available when declarant is available)

    • Veracity is often the chief concern under 803

    • FRE 803(1) – Present sense impression – A statement (1) describing or explaining an event or condition (2) made while the declarant was perceiving the event or condition, or immediately thereafter.

      • It must be made while perceiving it. Like, “Damn, it’s hailing outside.” A statement of something you are perceiving with your senses.

      • Nuttall (3rd Cir. 1956) – wife could recount now-dead husband’s end of conversation with his boss where husband’s statements made it clear boss was making him come to work. Husband’s statements were a present impression based his perception of his boss’s statements.




    • FRE 803(2) – Excited Utterance – A statement (1) relating to a startling event or condition (2) made while the declarant was under the stress of excitement (3) caused by the event or condition.

      • US v. Iron Shell (8th Cir. 1980): all agree Iron Shell assaulted Lucy. Issue is intent to rape. What Lucy told officer 75 minutes later admissible under 803(2) – she could still be in an excited state. Responses to questioning won’t be an excited utterance, but here, a response to “tell me what happened” still qualified.

      • For adults, acceptable timeframe will be shorter

      • But see US v. Napier (9th Cir.) allowing statement under 803(2) made when victim saw picture of the kidnapper seven weeks after incident and announced, “He killed me, he killed me!” Seems (to me) that the startling event was seeing the face of her attacker again.

      • Problem 4I – Man comes home from work and tells wife he felt sharp pain when he lifted something at work. Goes to Doc, then dies. Wife wants to use statement to show he was injured at work. It’s an excited utterance.

        • Bootstrapping problem: if only evidence of the underlying event was the statement, judge should exclude under 104(a). But here, we have fact of coming home during the day, medical diagnosis of elevated blood pressure, statement of pain admissible under 803(3)

    • FRE 803(3) – Then existing mental, emotional, or physical condition. A statement (1) of [demonstrating] the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling [like belief], pain, and bodily health), (2) but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

      • Ex: If G says, “Jim is a spendthrift” then we can offer the statement to prove G’s belief, not to prove that Jim is a spendthrift. If G says, “I remember when I climbed Everest” we can use it to prove that G has a memory of climbing it, not to prove it is true that G climbed it.

      • Intent / mental state can be a material fact (mens rea element).

      • Mental state can also be used as circumstantial proof: statement by A “I hate Jones” could be circumstantial proof against Jones’s defense that expensive art in Jones’s apartment was a gift from A. Could be circumstantial proof of motive in case against A for assaulting Jones.

      • Only works on a then-existing state of mind. “I was in love with her last year” not admissible b/c it goes to prove a prior state of mind

        • However, fact that T says “I love Z” on Monday is circumstantial evidence that he loved her on Tuesday as well.

      • “My son is a drug addict” is the same as “I think my son is a drug addict”

      • In personal injury cases, statements about pain, both physical and emotional, may be admissible to prove pain and suffering.



      • Exclusionary Language: This exception cannot be used to prove the truth of the matter believed, including backward-looking statements contained in the statement

        • If I say, “I hate Judy because she cheated me” you can use it to prove that I hate Judy because I believe she cheated me, but you can’t use it to prove that Judy did cheat me.

          • Sometimes we can redact the inadmissible part.

        • Shephard v. US (USSC 1932) – wife’s statement “My husband poisoned me” could not be admitted as state of mind evidence – it is backwards-looking.

        • Judge will give limiting instructions to the jury where state of mind evidence shouldn’t be used for inadmissible purposes, or where the statement can’t be redacted.

        • The judge may also exclude the statement under 403, although the judge rarely will. Ex: in the extortion case, the prosecution must show victim’s fear, and victim’s statement is usually the only way they can establish that state of mind, so balance dictates admission.

      • Remember, state of mind only admissible where it’s relevant.

        • Problem 4J – In prosecution of N for extortion, prosecutor wants to use Q’s statement that “N threatened to kill me.” Admissible to show Q’s fear. N gets limiting instruction that it’s not admissible to show that N caused Q’s fear.

        • If charge was murder, statement would be inadmissible, as Q’s state of mind would be irrelevant to the murder charge.

      • Hillmon (1892) – Fact that Walters sent letters to fiancée saying he was going to CO w/ guy named Hillmon admissible to show W’s state of mind – his intent to go makes it more likely that he went. Problem is that statement also bears on the state of mind of someone else (Hillmon).

      • US v. Pheaster (9th Cir. 1979) – modern case dealing with the “someone else’s state of mind” problem. Statement by murder victim: “I’m going to the parking to get free weed from Angelo.” He goes outside and is never seen again. Court allows this based on need (declarant is dead). Courts split on this – it’s speaks to Angelo’s state of mind, which vic can’t do.

    • FRE 803(4) Statements for purposes of medical diagnosis or treatment – Statements made (1) for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof (2) insofar as reasonably pertinent to diagnosis or treatment.

      • Statements can be made by anyone, not just the person seeking treatment

      • Rationale is that people will tell truth about symptoms b/c the want correct medical treatment. However, this is tougher when doctor visit is in preparation for litigation – like an expert.

      • Blake v. State (Wyoming SC): Uses 803(4) to get in statements by child sexual abuse victim about who abused her. Rationale is that in treating child, the attacker is relevant to treating child in case it’s a family member. Trying to get around putting the victim on the stand.

        • Candidate for 807

      • Generally, fault doesn’t come in under 803(4)

    • FRE 803(5) Recorded recollection. A (1) memorandum or record (2) concerning a matter about which a witness once had knowledge (3) but now has insufficient recollection to enable the witness to testify fully and accurately, (4) shown to have been made or adopted by the witness (5) when the matter was fresh in the witness' memory and (6) to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

      • Hypo: Man posed as a mover, took a family’s antiques and disappeared. There were a lot of antiques, and the owner couldn’t remember them all, but the owner had made a list as they were being removed from the house. At trial, the owner couldn’t remember every item, but she had the list. She looked at it but still couldn’t remember. Court allowed the prosecutor to introduce the list for the truth of what it asserted because it was a very trustworthy list.

      • Protocol is first to try to revive the witness’s recollection – show the statement to the witness

    • FRE 803(6) – Business Records – A (1) memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, (2) made at or near the time (3) by, or from information transmitted by, a person with knowledge, (4) if kept in the course of a regularly conducted business activity, and (5) if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, (6) all as shown by the testimony of the custodian or other qualified witness . . . UNLESS the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

      • The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

      • All persons in the chain of creating the business record must be under a business duty to do what they did. If there is a statement in the record from someone who does not have a business duty, or if a person who does have a duty made a statement that’s in the record that was not pursuant to the business duty, you need a hearsay exception for it.

      • Adversary can insist that party lay proper foundation under this rule, but this will generally piss the judge off.

      • Think of the document as a witness repeating in court what the declarant said out of court. There will therefore often be internal hearsay that needs unpacking.

      • FRE 805: Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules



      • Petrocelli (1st Cir. 1982) – statement in medical chart that P’s nerve was severed in surgery not admissible for its truth under 803(6): source of the info was the plaintiff, not a medical exam, so not trustworthy. P could get it in under 803(4), but that would defeat the purpose for P – P wants statement for its truth, not to show that he complained about it.

      • Problem SG3 – statement in doctor’s record “Mike hit me but I started it” not admissible through 803(4) or (6). Not part of diagnosis for (4), and noting fault not in doc’s ordinary course of business for (6). No matter that if you could get the record in, the statement would be in as an admission.

      • Norcon case

    • FRE 803(8) – Public records and reports – Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth

      • (A) the activities of the office or agency, or

      • (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or

      • (C) (1) in civil actions and proceedings and against the Government in criminal cases, (2) factual findings resulting from an investigation made pursuant to authority granted by law,

        • Baker: Factual findings is interpreted broadly – covers opinions based on underlying factual findings

      • UNLESS the sources of information or other circumstances indicate lack of trustworthiness.

        • Look at the timeliness of the report, the skill of the investigating official, whether there was a hearing and how it was conducted, whether the author had an ax to grind or other motivational issues

      • In Baker, report was based largely on one person’s account. This is fine – it’s up to party opposing the report to point out the infirmities in the report (after judge makes determination that it is sufficiently trustworthy).

        • Any internal hearsay in a report still only comes in if there’s an exception for it. Here, witness’s statements come in as prior consistent statements by party-opponent 801(d)(1)(B)

      • Johnson v. Lutz (NY 1930): Reports containing quotation only admissible to show that statement was made, not for truth of the quotation.

      • US v. Oates (2nd Cir. 1977): if a public record can’t come in under 803(8), can’t admit it through another exception. No end runs.

        • Concerned prosecution’s attempt to get chemist who did not write a report to introduce it. Not admissible under (B) or (C).

        • USSC might say lab technician not law enforcement personnel

      • Exclusionary language of (B)&(C) necessary to avoid Conf. Cl. problems

      • Courts treat B’s “observed by police officers and other law enforcement personnel” and C’s “investigation made pursuant to authority granted by law” as the same.



      • US v. Orozco (9th Cir 1979): border agent writing down every car’s license plate not law enforcement for this. Rule is concerned about officers with bad incentives. Here, 99% of the time punching in the number has no law enforcement significance.

      • In determining if someone is “law enforcement” look to policy – actual job function/duties, bad incentives, need for confrontation

    • FRE 803(18) – Learned Treatises – To the extent (1) called to the attention of an expert witness upon cross-examination OR relied upon by the expert witness in direct examination, (2) statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, (3) established as a reliable authority by (a) the testimony or admission of the witness or (b) by other expert testimony or (c) by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.


    FRE 804 Hearsay Exceptions – Only Available When Declarant is Unavailable

    • FRE 804(a) – Defining “Unavailable” – Declarant is unavailable where the declarant:

      • (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

        • Can’t invoke 5th Amendment privilege against self-incrimination if government grants immunity

      • (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

      • (3) testifies to a lack of memory of the subject matter of the declarant's statement; or

        • DiCaro (7th Cir. 1985) illustrates a paradox created by 801(d)(1)(A) and 804(a)(3). A witness’s grand jury testimony may be admissible under 801(d)(1)(A), requiring the declarant to be “subject to cross-examination concerning [his prior] statement,” even where witness is “unavailable” under 804(a)(3) b/c of memory loss. Witness may remember making his statement well enough to be cross-examinable about it, satisfying 801(d)(1), even though he has forgotten the underlying events. The same person is “unavailable” under 804(a)(3) because he has forgotten the events.

      • (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

      • (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

      • You can’t get someone to be unavailable in order to use their prior statement: A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

      • Barber v. Page (USSC 1968): doesn’t matter if prior testimony was at a formal hearing with cross. If witness isn’t unavailable, can’t use 804.

    • FRE 804(b)(1) – Former Testimony – Testimony (1) given as a witness (2) at another hearing of the same or a different proceeding, OR in a deposition taken in compliance with law in the course of the same or another proceeding, if (3) the party against whom the testimony is now offered, OR, in a civil action or proceeding, a predecessor in interest, (4) had an opportunity and (5) similar motive to develop the testimony by direct, cross, or redirect examination.

      • Problem 4M – Real 1st Cir. case: gov’t let cooperating witness in drug case go home to Australia after deposition, she was not unavailable b/c gov’t did not use all reasonable means to secure her presence as required under 804(a)(5), so deposition inadmissible.

        • Note double hearsay problem – transcript is a public record 803(8) and statements are former testimony 804(b)(1).

      • Lloyd v. American Export Lines (3rd Cir. 1978): Fight between L and A. At prior Coast Guard hearing, A said L started it, and gov’t crossed him. A is unavailable, defendant wants to use prior statement against L. Court says ok b/c gov’t was predecessor in interest, as we are all represented by gov’t. This effectively reads out the requirement, and most courts would probably not rule this way, though judges read the phrase broadly. Even if excluded under 804, could still admit statement under 807’s catchall.

      • One passenger on a bus in an accident is not a predecessor in interest of another – each gets their day in court / shot at cross. Bus company can’t admit prior testimony of witness in second trial if witness unavailable.

        • Predecessor in interest is more than opportunity + same motive.

      • Opportunity for questioning didn’t have to be cross. Say in one suit D called X and he says things bad for D. P2 sues D and X is unavailable. P2 can offer X’s prior testimony. If bad things for D came out at initial cross, D had the opportunity to re-direct.
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