A Reconsideration of the Hearsay Rule and Admissions (Continued)

Total Page:16

File Type:pdf, Size:1020Kb

A Reconsideration of the Hearsay Rule and Admissions (Continued) APril, 1937 A RECONSIDERATION OF THE HEARSAY RULE AND ADMISSIONS* JOHN S. STRAHORN, JR.t Dying declarations The dying declarations of the victim, if made in fear of death and con- cerning the circumstances of the assault, may be offered in a criminal homi- cide case. They may be used either for or against the defendant, for nar- rative purposes, and to prove the truth of their content. The same "neces- sity" underlies this and the following hearsay rule exception, i. e., the un- availability of the declarant himself as a witness and an extraordinary need for having the advantage of his testimonial knowledge lest injustice be done. It is for this exception that the "circumstantial guarantee" can most easily be rationalized in terms of a positive stimulus to trustworthiness equivalent to the conditioning devices, although, to be sure, a complete justification for the exception can also be worked out on the basis of intrinsic superiority. The expectation of death, the imminence of divine judgment on one's con- duct, the gravity of the situation, all do create a situation working a posi- tive stimulus to trustworthiness were it ever desirable to look for one in the hearsay exception situations. But the dying declaration also has a peculiar intrinsic superiority as testimony in its own right. It is highly probable that the victim did perceive that which he narrates. The typical conduct of the assailant thus narrated is of such simple outline that mistakes in perception of the normal sort are less than usually likely. Recollection will usually be but for a brief interval, never more than one year and one day.3 3 Despite the lapse of time, the vividness of the experience will make it one not likely to be easily forgotten. Narration is capable of being made in simple and unmistakeable terms, in view of the type of event to be narrated. Motive to falsify is seen to be absent by the factors mentioned above as furnishing the alternative positive stimulus to trustworthiness. Further, the dying declaration is intrinsically superior with reference to the danger of error in its being reproduced in the courtroom. The statements and conduct of a dying man are likely to be * The first installment of this article, containing footnotes I to 32, appeared in the March issue of the REviEw. (1937) 85 U. oF PA. L. REv. 484. t A. B., 1922, St. John's College; LL. B., 1925, Washington and Lee University; S. J. D., 1926, Harvard University; J. S.D., 1931, Yale University; Professor of Law, University of Maryland School of Law; author of The Effect of Impossibility on Criminal Attempts (193o) 78 U. OF PA. L. REv. 962; Criminology and the Law of Guilt (1936) 84 U. oF PA. L. REv. 491, 6oo, and other articles in legal periodicals. 33. Because of the rule of criminal law that a conviction of criminal homicide may be had only if the victim dies within one year and one day of the infliction of the fatal wound. (564) THE HEARSAY RULE AND ADMISSIONS well attended to and thus well perceived. The vivid nature of their utter- ance makes for intent to remember and probable memorandum to aid recol- lection. Narration is hardly a problem inasmuch as, again, it is a matter of the quotation of small groups of words, with no range of choice for the wit- ness in describing his experience. It seems to the writer that the rule restricting the use of dying declara- tions to criminal homicide cases concerning the death of the victim, with one exception, tends to prove that the true rationale of the exception is its intrin- sic superiority and not a matter of its having a positive stimulus to trust- worthiness. Were the superiority of the dying declaration due to the posi- tive effect of fear of death as a stimulus to trustworthiness it would be appropriate to use dying declarations, actually made in such fear, in any case, civil or criminal, and about any subject matter. There would be present a "necessity" found in the death of the narrator and a circumstantial guarantee found in his fear of death when he spoke. But the rule limits them to criminal homicide cases brought because of the death. This rule recognizes that the superiority of the dying declaration exists only where it is as to a certain type of fact, viz., a fatal assault on the victim, which is something peculiarly likely to be well perceived, briefly and accurately re- membered, and simply narrated, without motive to falsify. The law does not recognize any greater trustworthiness of dying declarations as to the nor- mal run of facts for which there is likely to be the normal chance of erro- neous perception, long time or casual recollection, and language trouble in the narration. Thus it must be argued that the important factor in the dying declaration, as the law works it out, is not the positive stimulus of the fear of death,3 4 but rather the intrinsic superiority of the specific type of dying declaration which the rule permits. To be sure, the law even rejects the use of dying declarations in one class of cases, civil suits for wrongful death, where there is present the same intrinsic superiority. But is not this to be explained by the historical acci- dent of the fact that at the time the rule was crystallizing, before the enact- ment of Lord Campbell's Act, 5 there were no civil suits for wrongful death? Did not the framers of the rule merely visualize what was then the only possible situation in which the intrinsic superiority of the dying declaration could be availed of? On such a basis the writer is prone to feel that a much cited minority case,36 departing from the strict common law limitation and admitting dying declarations in all cases, civil or criminal, wrongful death or otherwise, is 34. Although, to be sure, the rule as it is worded requires that the declarant actually fear death at the time he speaks. 35. 9 & io VIcr. c. 93 (1846). 36. Thurston v. Fritz, 9r Kans. 468, 138 Pac. 625 (1914). UNIVERSITY OF PENNSYLVANIA LAW REVIEW wrong and should not be followed. He feels that immediate reform of the dying declaration rule should be limited to extending it to civil actions for wrongful death, but that, short of adopting the broad departure of the Mas- sachusetts Hearsay Statute 37 for all statements by deceased persons, there is no justification for permitting dying declarations as to all and sundry facts. To do this would depart from the true spirit of the common law rule for dying declarations, which is to admit only those which happen to possess an unusual intrinsic superiority following from the nature of the typical facts included therein. The common law rule itself recognizes this principle of intrinsic supe- riority in its own limitation of dying declarations to the "res gestae" of the killing. Thus the rule is to restrict their content to the very circumstances of the killing, likely to be well perceived, remembered, and narrated, and not to permit them, even in criminal homicide cases, to narrate other rele- vant facts antedating the assault. For these latter facts there is normal likelihood of defective perception, loss of memory, and inept choice of words in the narration. Declarationsagainst interest Statements made by a person now unavailable as a witness which are damaging to his own pecuniary or proprietary interests may be offered as narration to prove the truth of their content. The necessity is obvious from the statement of the rule and is the same as for dying declarations. No pos- sible positive stimulus to trustworthiness can be discerned to supply the cir- cumstantial guarantee, which must, therefore, be rationalized in terms of the intrinsic superiority of the type of utterance which is permitted by the ex- ception. This intrinsic superiority would also seem obvious. There is hardly a happier situation for accurate perception of the subject of a narration than that held by the speaker concerning his own money or property affairs. While time may have elapsed between the fact and the narration about it, yet the same consideration as for perception suggests that one will vividly remember any of his own money or property affairs about which he essays currently to speak. The nature of the two topics is such as to indicate little possibility of inept phraseology leading to inaccurate acquisition of meaning by the fact finder. Money has either been paid or it has not, property has either been sold or it has not. For such topics there is little chance of that awkward choice of wording which causes untrustworthiness at the narra- tion stage. The rule that the statement must be against the speaker's interest restricts the exception to situations where the usual motive to falsify is likely 37. 2 MASS. GEN. LAWS 0932) C. 233, §§ 65, 65A. THE HEARSAY RULE AND ADMISSIONS to be totally absent. One does not consciously make false unfavorable state- ments. The limitation of declarations against interest to money and property affairs and the rejection of declarations against penal interest, i. e., those admitting guilt of a crime, is usually considered irrational and unjust. It is, no doubt, a historical accident.38 Certainly one's having committed a crime is a matter as likely to have been well perceived, accurately remembered, and simply narrated as the details of one's money or property affairs. But per- haps there is more motive to falsify, particularly in the so-called "deathbed confessions" whereby one, actually innocent, may be able to do a good turn for a guilty friend by making a false exculpatory statement.
Recommended publications
  • Conditional Relevance and the Admissibility of Party Admissions Gerald F
    Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 1-1-2007 Conditional Relevance and the Admissibility of Party Admissions Gerald F. Uelmen Santa Clara University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Recommended Citation 36 Sw. U. L. Rev. 657 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. CONDITIONAL RELEVANCE AND THE ADMISSIBILITY OF PARTY ADMISSIONS Gerald F. Uelmen* I. INTRODUCTION ..................................................... 657 II. THE ALLOCATION OF RESPONSIBILITY FOR FINDING PRELIMINARY FACTS UNDER THE CALIFORNIA EVIDENCE C O D E ....................................................................................... 6 5 8 III. THE ALLOCATION OF RESPONSIBILITY FOR FINDING PRELIMINARY FACTS IN FEDERAL COURTS PRIOR TO B O URJA ILY .............................................................................. 66 1 IV. THE BOURJAILY DECISION AND ITS AFTERMATH ................... 664 V. POST-BOURJAILY CONFUSION IN THE FEDERAL COURT ........ 669 VI. WHAT DIFFERENCE DOES IT MAKE? ................. .. .. .. .. 672 I. INTRODUCTION Among the most significant differences between the Federal Rules of Evidence and the California Evidence Code is the allocation between
    [Show full text]
  • The Judicial Admissions Exception to the Statute of Frauds: a Curiously Gradual Adoption
    Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 12-2020 The Judicial Admissions Exception to the Statute of Frauds: A Curiously Gradual Adoption Wayne Barnes Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Contracts Commons THE JUDICIAL ADMISSIONS EXCEPTION TO THE STATUTE OF FRAUDS: A CURIOUSLY GRADUAL ADOPTION Wayne R. Barnes* The statute of frauds requires certain categories of contracts to be evidenced by a signed writing. The original purpose of the statute of frauds, indeed its titularpurpose, is the prevention of the fraudulent assertion of a non-existent oral contract. Although a signed writing is the formal way in which to satisfy the statute of frauds, courts have long recognized various exceptions to the writing requirement which will be held to satisfy the statute absent a writing. The effect of such exceptions is that they constitute an alternative form of evidence for the presence of a contract. One such exception is the judicial admission of a contract - where the defendant admits in his pleadings, testimony, or otherwise in court under oath that a contract (and its terms) exists. Such judicial admission of the existence of a contract seemingly completely vindicates the primary and originalpurpose of the statute of frauds. A defendant that judicially admits that he or she entered into a contract, has no concern that such contract is fraudulently being asserted against him. It is, therefore, "astonishing"(to use Professor Robert Stevens's phrase) that the judicial admissions exception completely fell out of favor in England, and then the United States in the eighteenth and nineteenth centuries, and instead the dominant majority rule became the elimination of the exception.
    [Show full text]
  • UNITED STATES DISTRICT COURT for the DISTRICT of COLUMBIA ______AMERICAN SOCIETY for the PREVENTION ) of CRUELTY to ANIMALS, Et Al., ) ) Plaintiffs, ) ) V
    Case 1:03-cv-02006-EGS Document 430 Filed 02/22/2009 Page 1 of 5 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________________ AMERICAN SOCIETY FOR THE PREVENTION ) OF CRUELTY TO ANIMALS, et al., ) ) Plaintiffs, ) ) v. ) Civ. No. 03-2006 (EGS/JMF) ) FELD ENTERTAINMENT, INC., ) ) Defendant. ) ________________________________________________) PLAINTIFFS’ MEMORANDUM REGARDING 2/19/2009 EVIDENTIARY MATTERS Delcianna J. Winders (D.C. Bar. No. 488056) Tanya M. Sanerib (D.C. Bar No. 473506) Katherine A. Meyer (D.C. Bar No. 244301) Meyer Glitzenstein & Crystal 1601 Connecticut Avenue Suite 700 Washington, D.C. 20009 (202) 588-5206 Dated: February 23, 2009 Counsel for Plaintiffs Case 1:03-cv-02006-EGS Document 430 Filed 02/22/2009 Page 2 of 5 PLAINTIFFS’ MEMORANDUM REGARDING 2/19/2009 EVIDENTIARY MATTERS At trial on February 19, 2009, the Court permitted plaintiffs to file a memorandum of authorities in support of the admissibility of two exhibits. For the reasons explained below, both of these exhibits fall squarely within exceptions to the hearsay rule and are therefore admissible. 1. Plaintiffs’ WC Exhibit 9 Is Not Hearsay Because It Is A Party Admission. Plaintiffs’ Will Call Exhibit 9 is a letter produced by defendant and authored by defendant’s “Animal Behaviorist” / “Veterinary Technician”1 regarding an incident she witnessed in which one of defendant’s animal handlers “hook[ed] Lutzi” – one of the elephants at issue in this case – “under the trunk three times and behind the leg once” and then “observed blood in small pools and dripped along the length of the rubber all the way inside the barn.” Pls.’ WC Ex.
    [Show full text]
  • 8.05. Admission by Adopted Statement Or Silence
    8.05. Admission by Adopted Statement (rev. 12-20191) (1) An out-of-court statement made by a person which is inconsistent with a party’s position in the proceeding is admissible against that party, if the party heard and understood the statement and assented to the statement by word or conduct. (2) Except as provided in subdivision three, an out-of-court statement made by a person that is inconsistent with a party’s position in the proceeding is admissible against that party if the party heard and understood the statement and provided an equivocal or evasive response or remained silent when he or she would reasonably have been expected to deny the statement and had an opportunity to do so. (3) In a criminal proceeding when, before or after a defendant’s arrest, the defendant is silent following a statement made to the defendant by a person the defendant knows to be a member of law enforcement, during the performance of his or her duties, the defendant’s silence is not admissible as an admission or to impeach the defendant’s testimony, except as provided in paragraphs (a) and (b). (a) The silence of a defendant, who at the time was a law enforcement officer, in the face of an accusation of criminal conduct by a fellow officer is admissible if the defendant was under a duty to inform his or her superiors of his or her activities. (b) A defendant who, prior to trial, makes a voluntary statement relating to the criminal transaction at issue and then provides testimony at a criminal proceeding with respect to that transaction may be impeached by the defendant’s omission of critical details from the 1 defendant’s pretrial statement that would have been natural to include in that statement.
    [Show full text]
  • Criminal Law Evidence Matrix
    HOME THE CRIMINAL LAW EVIDENCE MATRIX A SYSTEMATIC GUIDE FOR Hon. Elia V. Pirozzi Complete with Hearsay/Crawford, Character EVIDENTIARY ANALYSIS Evidence Flowcharts and Trial Objection Flowlist RELEVANCE EC §210/FRE 401: Evidence a) relevant to witness credibility or b) having a tendency to prove or disprove a disputed fact of consequence to the action SECTION 1 FOUNDATION Testimony Writings Real Evidence Recordings Lay Opinion Expert Opinion Depositions/Conditional Judicial Notice Motions In Limine Trombetta Motions SECTION 2 Examinations HEARSAY Out of court statement offered to prove the truth of the matter stated. EC §1200; FRE 801(c) Non-Hearsay Analysis: If the statement is not hearsay, is it relevant and material to an issue in the case? SECTION 3 EXCEPTIONS TO THE HEARSAY RULE Statement of Mental/ Admissions Declaration Against Interest Prior Inconsistent Physical State Statement Prior Consistent Past Recollection Recorded Former Testimony Spontaneous Statement Declaration Contemporaneous Dying Declaration Business Records Official Records Declaration Multiple Hearsay Other Considerations for Hearsay/Crawford Flowchart Admissibility EXCLUSIONS AND LIMITATIONS Admissibility of Character/Trait Evidence Other Exceptions to Inadmissibility of Character/ Trait Than for Predisposition Evidence to Prove Conduct SECTION 4 Statutory Impeachment Privileges Character Evidence Flowchart EC §352 DISCRETIONARY EXCLUSION Probative value is substantially outweighed by the probability that its admission will a) necessitate undue consumption of time or b) create substantial danger of undue prejudice, confusing the issues or misleading the jury. SECTION 5 Trial Objection Flowlist QUICK RELEVANCE I FOUNDATION I HEARSAY I EXCLUSIONS & LIMITATIONS I EC §352 LINKS HEARSAY/CRAWFORD FLOWCHART • CHARACTER EVIDENCE FLOWCHART • TRIAL OBJECTION FLOWLIST ©2018 Hon.
    [Show full text]
  • How to Administer the "Big Hurt" in a Criminal Case: the Life and Times of Federal Rule of Evidence 806
    Catholic University Law Review Volume 44 Issue 4 Summer 1995 Article 5 1995 How to Administer the "Big Hurt" in a Criminal Case: The Life and Times of Federal Rule of Evidence 806 Fred Warren Bennett Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Fred W. Bennett, How to Administer the "Big Hurt" in a Criminal Case: The Life and Times of Federal Rule of Evidence 806, 44 Cath. U. L. Rev. 1135 (1995). Available at: https://scholarship.law.edu/lawreview/vol44/iss4/5 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. HOW TO ADMINISTER THE "BIG HURT" IN A CRIMINAL CASE: THE LIFE AND TIMES OF FEDERAL RULE OF EVIDENCE 806 Fred Warren Bennett* I. INTRODUCTION "How can you impeach somebody that hasn't testified?," the defense attorney wondered in a federal drug trial.' As this question suggests and this article will demonstrate, the admission of hearsay testimony into evi- dence from the mouth of an out-of-court declarant poses a significant problem for the party against whom it is admitted: how to impeach the out-of-court declarant who is not present to testify. Cross-examination provides opposing counsel with the best way to test a witness' credibility and truthfulness.' In fact, an essential purpose of the Confrontation Clause is to allow the opportunity for cross-examina- tion.3 Trial courts permit cross-examination not only to impeach the gen- eral credibility of a witness, but also to "expose possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand."' By exploring the partiality of a witness, opposing counsel can discredit the witness and reduce the weight of his testimony.
    [Show full text]
  • United States District Court District of New Jersey : Pfizer Inc., Pharmacia Corp., : Pharma
    Case 2:04-cv-00754-GEB-MCA Document 88 Filed 10/26/06 Page 1 of 13 PageID: <pageID> UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ___________________________________ : PFIZER INC., PHARMACIA CORP., : PHARMACIA & UPJOHN INC., : CIV. ACTION NO. 04-754 (JCL) PHARMACIA& UPJOHN COMPANY, : G.D. SEARLE & CO, G.D. SEARLE LLC, : SEARLE LLC (DELAWARE) and : OPINION SEARLE LLC (NEVADA) : : Plaintiffs, : Pfizer’s Motion In Limine No. 3 v. : : TEVA PHARMACEUTICALS USA, INC. : : Defendant. : ___________________________________ : LIFLAND, District Judge This case arises out of Teva Pharmaceuticals U.S.A., Inc.’s (“Teva” or “Defendant”) alleged infringement of U.S. Patent Nos. 5,466,823; 5,563,165; and 5,760,068 (the “patents-in-suit”), which are held by Pfizer, Inc., Pharmacia Corp., Pharmacia & Upjohn Inc., Pharmacia & Upjohn Company, G.D. Searle & Co., G.D. Searle LLC, Searle LLC (Delaware), and Searle LLC (Nevada) (collectively “Pfizer” or “Plaintiffs”). The patents-in-suit are directed toward celecoxib, the active ingredient in Celebrex, and a broad genus of compounds that includes 1 Case 2:04-cv-00754-GEB-MCA Document 88 Filed 10/26/06 Page 2 of 13 PageID: <pageID> celecoxib, pharmaceutical compositions including such compounds, and methods of using such compounds. Before the Court is Pfizer’s motion in limine No. 3 to preclude Teva from relying on or introducing into evidence documents from unrelated litigations and foreign prosecution histories. The documents in question are: (A) a British judgment from an infringement action brought by Searle against non-party Merck (DTX 5211); (B) briefs (DTX 336, 587) and (C) expert affidavits (DTX 580) submitted by Searle to the European Patent Office when Merck opposed Searle’s European Patent 0697157 (the “Searle ’157 Patent”); (D) an order of dismissal from an unrelated U.S.
    [Show full text]
  • Don't Crash Your Expert! How Judicial Admissions Can
    By Debbie Berman and Michael Cebula How Judicial Admissions Can Limit or Preclude Expert Witness Testimony DonDon’t’t CrCrashash YourYour ExpertExpert 26 JANUARY 2014 Caution! Potential crash ahead! unfortunately, those warnings are not very visible in the case law concerning judicial admissions and expert testimony, perhaps because the relevant Illinois authority is sparse. As a result, many attorneys may not realize how significantly a party’s judicial admissions can affect the testimony of its expert witnesses, including precluding expert witness testimony in its entirety. udicial admissions sometimes arE describeD AS by his judicial admission” regarding the position of his hands “the highest and best type of evidence,” but they are even more at the time of the accident. The First District accepted without Jpowerful than that. Burns v. Michelotti, 237 Ill. App. 3d 923, comment the premise that the plaintiff’s expert witness was bound 932, 604 N.E.2d 1144, 1151 (2d Dist. 1992). Judicial admissions by the plaintiff’s judicial admission regarding the position of his “withdraw a fact from issue” and thus, unlike evidentiary admis- hands at the time of the accident and confined itself to deciding sions, may not be contradicted by the party or its witnesses. Knau- whether the change to the expert’s testimony violated the rule that erhaze v. Nelson, 361 Ill. App. 3d 538, 557-58, 836 N.E.2d 640, an expert may not offer trial testimony inconsistent with his or 658 (1st Dist. 2005); Van’s Material Co. v. Dep’t of Revenue, 131 Ill. her deposition testimony. 2d 196, 212-13, 545 N.E.2d 695, 703 (1989).
    [Show full text]
  • Barexamdoctor.Com Unlimited Essays and Pts Online!
    FULL OUTLINE Bar Exam Doctor www.BarExamDoctor.com EVIDENCE I. RELEVANCE a. Definition i. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. ii. CA: the fact of consequence must also be in dispute. iii. CA: In a criminal case, mention the Truth in Evidence amendment to CA Constitution (Prop 8). It makes all relevant evidence admissible in a criminal case, even if it is objectionable under the CEC. 1. Exceptions to Prop 8: a. Exclusionary rules under US Constitution such as the CC b. Hearsay law c. Privilege law d. Limits on character evidence about the victim in a rape case e. The rule prohibiting prosecution from offering evidence of D’s character before D opens the door ESSAYS f. The secondary evidence rule g. CEC 352 (ct’s power to exclude if unfair prejudice substantially outweighs probative value) iv. Three-step approach to applying CA law on essay: 1. Raise all objections under CEC; 2. For each objection, mention if Prop 8 overrulesONLINE! the objection; 3. If evidence seems admissible under Prop 8, balance under CEC 352. b. Discretion to exclude relevant evidence i. Ct has discretion to exclude if probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. PTS c. Exclusion of relevant evidence for policy reasons i. Liability insurance 1. Inadmissible to prove culpable conduct like negligence or D’s ability to pay a judgment.
    [Show full text]
  • Evidentiary Issues in Probate and Fiduciary Litigation
    EVIDENTIARY ISSUES IN PROBATE AND FIDUCIARY LITIGATION Mary C. Burdette Calloway, Norris & Burdette 3811 Turtle Creek Boulevard, Suite 400 Dallas, Texas 75219 214-521-1520 Tarrant County Probate Bar Association Probate Litigation Seminar Fort Worth, Texas October 3, 2003 Table of Contents I. INTRODUCTION. -1- II. DEFINITIONS.. -1- III. APPLICATION OF TEXAS RULES OF EVIDENCE... -1- A. PC §§ 22, 649.. -1- B. Exception for Testimony of Witness to Will by Deposition on Written Questions. -1- IV. AUTHENTICATION.. -2- A. TRE 901.. -2- B. Methods of Authentication.. -2- C. Relationship to Relevancy.. -3- D. Self-Authenticated Documents.. -3- 1. TRE 902.. -3- 2. TRCP 193.7.. -3- 3. Business Records Accompanied by Affidavit... -3- E. Authentication Does Not Mean Admissibility.. -4- F. Admission as Authentication.. -4- G. PC § 59.. -4- H. Altered Document... -4- V. RELEVANCE.. -5- A. General Rules.. -5- B. Exclusion on Special Grounds.. -5- C. Photographs and Videotapes... -5- D. Controlling Issue... -5- E. Settlement Negotiations.. -5- F. Net Worth.. -6- VI. PERSONAL KNOWLEDGE... -6- A. TRE 602.. -6- B. Objections.. -6- C. Take Witness on Voir Dire.. -6- D. Exceptions to Personal Knowledge Requirement... -7- E. Statements in Medical or Other Business Records. -7- VII. BEST EVIDENCE RULE.. -7- A. TRE 1002.. -7- B. Exceptions... -7- VIII. HEARSAY... -8- A. Definitions... -8- B. Hearsay Rule.. -8- C. Exceptions to Hearsay Rule.. -8- D. Indirect Hearsay.. -10- E. Hearsay Within Hearsay. -10- F. Medical Records. -10- G. Doctor’s Letter Concerning Opinion Regarding Proposed Ward.. -12- IX. THE “DEAD MAN’S STATUTE”.. -12- A. TRE 601(b).. -12- B.
    [Show full text]
  • 8.03 ADMISSION by a PARTY 8.05 ADMISSION by ADOPTED STATEMENT 8.07 ANCIENT DOCUMENTS 8.09 COCONSPIRATOR STATEMENT 8.11 DECLARATION V
    8.00 DEFINITION OF HEARSAY 8.01 ADMISSIBILITY OF HEARSAY 8.02 ADMISSIBILITY LIMITED BY CONFRONTATION CLAUSE (CRAWFORD) 8.03 ADMISSION BY A PARTY 8.05 ADMISSION BY ADOPTED STATEMENT 8.07 ANCIENT DOCUMENTS 8.09 COCONSPIRATOR STATEMENT 8.11 DECLARATION v. INTEREST 8.13 DECLARATION OF FUTURE INTENT 8.15 DYING DECLARATION 8.17 EXCITED UTTERANCE (rev. May 2018) 8.19 FORFEITURE BY WRONGDOING 8.21 HEARSAY IN HEARSAY 8.23 IMPEACHMENT OF HEARSAY DECLARANT 8.25 PAST RECOLLECTION RECORDED 8.27 PEDIGREE 8.29 PRESENT SENSE IMPRESSION 8.31 PRIOR CONSISTENT STATEMENT 8.33 PRIOR INCONSISTENT STATEMENT 8.35 PRIOR JUDGMENT OF CONVICTION 8.37 PROMPT OUTCRY 8.39 REPUTATION EVIDENCE 8.41 STATE OF MIND 8.43 STATEMENT FOR DIAGNOSIS or TREATMENT ARTICLE 8. HEARSAY 8.00. Definition of Hearsay (1) Hearsay is an out of court statement of a declarant offered in evidence to prove the truth of the matter asserted in the statement. (2) The declarant of the statement is a person who is not a witness at the proceeding, or if the declarant is a witness, the witness uttered the statement when the witness was not testifying in the proceeding. (3) A statement of the declarant may be written or oral, or non-verbal, provided the verbal or non-verbal conduct is intended as an assertion. Note This section sets forth the definition of hearsay which is generally applied by the courts. (See People v Nieves, 67 NY2d 125, 131 [1986] [the statements in issue “constituted hearsay evidence, as they were made out of court and were sought to be introduced for the truth of what she asserted.
    [Show full text]
  • In the United States District Court for the District of Maryland
    Case 1:06-cv-02773-CCB Document 380 Filed 03/29/13 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND THE COALITION FOR EQUITY AND : EXCELLENCE IN MARYLAND HUGHER : EDUCATION, INC., et al. : : v. : Civil Action No. CCB-06-2773 : : MARYLAND HIGHER EDUCATION : COMMISSION, et al. : MEMORANDUM Plaintiff The Coalition for Equity and Excellence in Maryland Higher Education, Inc. (“the Coalition”) sued the Maryland Higher Education Commission and the State of Maryland (collectively “the State”) in 2006 alleging violations of Title VI of the Civil Rights Act of 1964. The court held a six-week bench trial in 2012, and the court’s findings of fact and conclusions of law are forthcoming. Now pending are two evidentiary motions. The Coalition has filed a motion to admit five additional exhibits not offered during trial (ECF No. 359). The State has filed a motion asking the court to disregard evidence attached to the Coalitions’ response to the State’s proposed findings of fact and conclusions of law. (ECF No. 369). For the reasons set forth below, the Coalition’s motion will be granted in part and denied in part and the State’s will be denied. I. Motion to Admit Five Additional Trial Exhibits The Coalition seeks to admit five documents that were not introduced at trial. Each is addressed below: 1. PTX 341 & PTX 473 are reports prepared by Morgan State University. The court is satisfied that the reports are authentic documents prepared by a state institution, and, accordingly, they are admissible as party admissions.
    [Show full text]