HEARSAY EXCEPTIONS
From Cyberlaw
(note: links have been added to problems, but correspondence with the book edition not verified)
Here's a hot hearsay video hot off the net. <http://media.putfile.com/hearsay>
Stolen BMW (p. 453)
Forgetful Witness (p. 453)
He who Laughs Last... (p. 428)
If you're gonna get hit... (pp. 428-429)
Silence as Statement (p. 429)
Omar the Disappearing Cat (p. 432)
Shepard v. United States (I ), 290 U.S. 96 (1933)(p. 471)
Stage Fright (p. 474)
Stagger P (p. 475)
Snowmobile Crash (p. 475)
Strong Feelings and Future Plans (p. 476)
Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892)(pp. 476-480)
Shepard v. United States (II), 290 U.S. 96 (1933)(pp. 481-483)
Negligent Entrustment (pp. 484-485)
Window Washers
Accident Reports (p. 487)
Palmer v. Hoffman , 318 U.S. 109 (1943)(pp. 487-490)
Hospital Reports (p. 490)
Computer Records (p. 490)
Giving Them the Business (p. 491)
Police Reports (p. 495)
Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930)(pp. 495-497)
- NSA seminar -- moderated interrogation that could take place in this room. Connection with Cyberlaw.
- tomorrow, Wendy Murphy will be coming back. We will look at the many rules that cover cross examination. The constraints on examining the prosecuting W in a rape case
- Friday night poker - expert
- Saturday: Could take Ropes Grey(the Hark is better) and set it up with the Patriots Game on a big screen, and also setting it up for a showing of Hurricane
- Tuesday: Hurricane Carter will be webcasting from the office in Jamaica
- Thursday morning: Rubin, Kevin and Courtney Kezembe event on the Alcock transcript
- on Friday, Rubin and Kevin are going to a neighborhood program in Toronto to work with a Jamaican diaspora program. Kingston media will be in tow.
Contents |
Rodney King
Notes from yesterday
Powell
- "blank stare," "slow stiff movements," "sweat glistening"
- "I was scared that this guy was under PCP"
- Powell remembers in excruciating detail what movements they made. Almost as if he was coached.
- was thrown off of King after trying to handcuff him
- he had great strength in his arms
- was there ever a time when... [attorney asks about specific actions]
- "I had no time to react... it was almost a head on collision"
- "a checked swing when he collided into me"
- "he charged me once, and I didn't want him to do it again"
- mental state: "I was in fear for my life... and I was doing everything I could to keep him down on the ground"
- Powell denies talking about hardball in the hospital
Powell Cross Examination
- you think before you type, correct?
- "sounds almost as exciting as our last call; it was right out of Gorillas in the Midst"
- This call that involved African Americans, was it in the jungle? Was it in the zoo? Was there any wildlife around, other than these African Americans?
- "You used inappropriate conduct in that indicdent with RK, didn't you."
- "Why did you tell [ ], I haven't beaten anyone this bad in a long time"
- "That's professional jargon"
- "He wasn't an animal was he?" "No, just acting like one"
- Powell gets in a statement that he was like an animal because he was an "uncontrolled threat"
- "You wanted him to get up... you wanted to hit him on the head wiht the baton"
Discussion
- Think about the way a piece of evidence takes its meaning from a context that's created around it
- The prosecution has structured a context, making it clear to the jury that the film doesn't capture the whole event
- backstory: high speed chase. first engagement with Powell, being directed by Koon, where first Powell gets thrown off
- taser: 50,000 volts
- the framework: procedures and regulations of the LAPD, training and program
- when the suspect is on the ground, they lighten up on the beating, and when they see him getting up, they hit him again.
- you can hear them say, "Get down, get down"
- If you're invested in seeing something one way, and then see it in another, it shakes the ground under you
- Nesson plays video again showinng the charge at the police. King keeps trying to get up.
- The defense's closing argument: they recognize how violent this is. They ask for the all white jury to see this from the POV of the policeman
- note that the jury was drawn from a venire populated by ex-cops
- Political pressure produces a federal prosecution
- mixed race jury, and RK is called to the stand. Koon and Powell are convicted.
- Terry White doesn't do a great job as a prosecutor. Understand though that he works with police officers all the time. He is deeply conflicted when he prosecutes this case.
- It seems that when he gets up to cross examine this expert, he thought Duke was going to say that he was shocked. And when Duke said he wasn't, he didn't have any place to go.
- This wordplay style of Cross Examination does not give gravitas to the case. Rhetorical questions detract from credibility.
- The meta proposition: at base, what the law is about is dispute resoution. The key to dispute resolution is being able to see the other side in terms of point of view (POV). If you can see the other side, then you can prepare to meet it. Before you even get to trial, if you can see it from the other's POV, can speak to the other in a way that the other will listen to (Archibald Cox, Eminem)
Rule 801
Rule 801(d) Statements which are not hearsay.
A statement is not hearsay if--
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person;
- Before this rule, prior inconsistent statements of a W were admissible for a non-hearsay purpose; according to the old law, if they were offered for the truth, they were hearsay, but their inconsistency could be used for the purpose of proving that W told different stories at different times and therefore lacked credibility. The jury was instructed that it was a matter of credibility and not truth, but understood nothing.
- One principle influencing the draftsmanship of the rules was making court "more real." Get rid of silly instructions.
- Why not admit prior inconsistent statements for their truth?
- Congress rebelled when this version came before it. You would only want inconsistent statements admitted if they were reliable. Hence, the oath requirement.
- So now we have two categories of prior inconsistent statements:
- (1) those made under oath come in for their truth
- (2) those not made under oath, but which come in under the credibility theory
- Is this a prosecution or defense oriented rule? Trial, hearing, deposition, "other proceeding" (grand jury)
- This allows the prosecution to refer to grand jury statements for their truth. So when the chief witness at trial says, "I forget," P gets to read the transcript. Preivously, P had no affirmative evidence that D did it, and would lose on directed verdict (since the prior statmeents were not evidence). Now, the evidence introduced for truth is sufficient to convict.
Rule 801(d)(2) Admission by party-opponent
- The word "admission" is totally misleading. Instead, say, "statement"
(A) the party's own stateemnt, in either an individual or representative capacity
(B) a statement of which the party has manifested an adoption or belief in its truth, or
- If D had said, "yes," he would have shown adoption of that other statement.
- If he was silent when he was expected to deny, had denial had been true, it fits under here.
(C) a statement by a person authorized by the party to make a statement concerning the subject, or
- Who are they talking about here? Lawyers. (That's us!) The mouthpiece exception. Anthing we (as lawyers) say can be used against our clients.
(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or
- This is a plaintiff's rule
- In the olden days, when the Bakery truck went through a red light and smashed the Ford, and the driver apologized and admitted fault, P would sue the driver and the Bakery. The statement was only admissible against the driver. The Baker could say he didn't hire the guy to make statements. If the driver took the stand, no hearsay problem. But, now he wants to keep his job, so no testimony.
- So we get this rule to make the statement admissible.
(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
- The law of conspiracy is a subset of criminal law where the hearsay rule becomes mangled.
Rule 803
- there’s a whole bunch of hearsay that we’re going to treat as good enough, even though the live testimony is available.
- note that in the history of confrontation jurisprudence, there were two times when SCOTUS wiped out 803, and then said oops.
- the first 6 exceptions are the important ones. We need to know them.
Present sense: if someone is observing and talking at the same time, you don’t have a memory problem. Also the speaker doesn’t have a lot of chance to fabricate.
- While it’s true that it takes only a moment to fabricate, what we’re worried about is something that’s fabricated to affect the outcome of litigation.
- The key thing about present sense impressions is that they are statements made at the time of the litigated event. There is an underlying good sense.
Excited Utterance
- Same sort of thing. When you’re excited, you supposedly don’t have the capacity for mendaciousenss.
- really, when you have an event, the jury wants to hear everything proximate to it.
State of Mind Exception
- Your evidence is that you overheard W say, I am the Pope. Your case is that the person isn’t the Pope and should be committed.
- not admitted for its truth
- What if the guy said, I believe I’m the Pope? Aha, still admissible under state of mind exception.
- When you’re following the route of testimonial capacity, state of mind doesn’t require memory or perception. You’re not proving a preceding event, but rather stopping at SOM
Always ask: What is this statement being offered to prove?
Statements made for purposes of Medical Diagnosis
- Statements made to your doctor are pretty reliable
- But what is this diagnosis business? When you are preparing for trial and looking for an expert witness.
- In the olden days, when you called the expert, you typically started by establishing not only expertise, but also the basis on which the expert made the opinion. One of the bases the doctor could testify to were things said by the patient. That was admitted, with a silly instruction (basis, not for truth).
- The rules said, forget that. Let it come in for it's truth.
Recorded Recollections and Business Records
- These are forms of the same rule. The witness speaks in the ideal about their present memory about their recollections. Sometimes, W forgets. It's always open to an attorney to refresh a recollection. In the classic common law, you may show a witness anything in order to refresh. This doesn't go into evidence, so you may not describe what you show them.
- Compare to recorded recollections. You may have a document that W prepared, but no longer remembers. W may testify that the document represents what is true.
- The rule doesn't want to privilege the past recollection recorded over the present recollection.
- Business records are recorded recollections
- Business records are probably the most important rule. Without it, we wouldn't have commercial litigation.
- Note the exception for admissibility when there is reason to suspect the records
- Watch out for Hospital Reports
