Tag Archives: Professor Frederick Moss

Hearsay, Part Four: Some 804 Exceptions

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NITA’s blog theme this September is Hearsay? Say What? Recognize It; Use the Rule at Trial.

At NITA programs, we train you to the daily thrill of advocating at trial. We ask you to perform constantly, using the rules of evidence. What about the evidence rules themselves? This month, we discuss one set of evidence rules that cannot be covered in the span of our intense performance programs: the substantive rules on hearsay. Each week, we describe the rule’s bounds and (in true NITA fashion) talk about your advocacy punch for that piece of evidence.

Hearsay, Part Four: Some 804 Exceptions

written by guest blogger and NITA Program Director Professor Frederick Moss 

Last time, I wrote about a few Rule 803 exceptions to the hearsay ban. Today, I address the Rule 804 exceptions.

The distinction between the 803 and 804 exceptions is simple: 804 exceptions do not apply unless the hearsay proponent shows that the declarant is unavailable to testify at trial. The drafters of FRE 804 felt (consistent with the common law) that these forms of hearsay should not be admitted unless there was a greater need for them because the declarant could not be examined about the statements at trial. (Whether this makes any sense is beyond the scope of my topic. Hint: I doubt it.)

The key to admissibility, therefore, is not only that the declaration meets the requirements of the specific exception but also showing that the declarant is “unavailable” as prescribed by Rule 804(a). All the circumstances that qualify as “unavailable” seem straightforward, but there is a hidden trap for the unwary here.

Assume one of your witnesses is scheduled for a serious operation and will be hospitalized during the trial. This appears to meet the definition of unavailability under 804(a)(4)—existing physical illness or infirmity—but not so fast. Rule 804(a)(5) says that when a declarant is deemed unavailable under 804(a)(2), (3), or (4), the proponent must also show that the proponent was unable by reasonable means to procure the declarant’s testimony.

Therefore, if a party knows a witness will be unavailable to testify at trial, the party must either preserve the witness’s testimony or show that it was unable to do so by any reasonable means before it can offer any of the witness’s hearsay statements via an 804 exception. Note that this requirement applies in criminal as well as civil trials.

As for the exceptions themselves, the most used is 804(b)(1): Former Testimony. This is how the deposition of the to-be-unavailable witness gets admitted under the federal rules. The tricky part of this exception is the “predecessor in interest” language. Courts differ over whom this covers. The conservative view is that the party who had the opportunity to examine the witness at the earlier proceeding is a predecessor in interest with the party against whom the testimony is now offered only if the two parties are in legal “privity” with each other. An example would be where the party facing the live testimony at the earlier proceeding was a business that was bought by the party now facing the former witness à la transcript. The former testimony is admissible in this situation. The party who bought the business is now stuck with the examination of the witness by its predecessor. The more liberal view—not supported by the language of the rule—is that the predecessor needs only to have had the same motive as successor to challenge the testimony at the earlier proceeding. Legal privity is not required.

Dying declarations are admitted per FRE 804(b)(2). These are rare, but be careful. Many state rules differ from the FRE. Some require the declarant to have died. The FRE does not. Some states restrict this exception to murder cases or to criminal trials. The FRE allows this exception only in murder and civil cases. In the murder case, necessity rules. In civil cases, who cares? It’s only money. Go figure.

Statements by witnesses that are against pecuniary and proprietary interest come in under 804(b)(3). Some states include statements against social interests—that is, statements that would tend to make the declarant the object of “hatred, ridicule, or disgrace,” to quote the Texas exception. The FRE does not. Examples of statements against “social” interests would be that the declarant had a venereal disease, was a convicted felon, or was a Republican while visiting an Irish bar in Boston.

FRE 804(b)(6) permits hearsay from an unavailable declarant to be admitted if the adverse party either caused or acquiesced in wrongdoing that cause the declarant to be unavailable. So, if you persuade your opponent’s prime witness to go on vacation during the trial, the witness’s hearsay statements of any kind can be admitted at trial. Some states do not have this Rule, but admit hearsay under the “forfeiture by wrongdoing” theory by court opinion.

Finally, the FRE has a “catch all” hearsay exception, Rule 807 (f.k.a. 803(24) and 804(b)(5)). Many states did not adopt this exception. Where it exists, proponents of hearsay that meet no exception or exemption can try to get it in by arguing that the circumstances in which the statement was made, by whom and to whom, and the purpose for which it was made, show it is as reliable as the recognized exceptions, that it is really, really important, and that “Justice,” fairness, and all that is good in this world demand that it be admitted. So, when all else fails, go for it under Rule 807. And, may Justice prevail.

Hearsay, Part Three: Some 803 Exceptions

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NITA’s blog theme this September is Hearsay? Say What? Recognize It; Use the Rule at Trial

At NITA programs, we train you to the daily thrill of advocating at trial. We ask you to perform constantly, using the rules of evidence. What about the evidence rules themselves? This month, we discuss one set of evidence rules that cannot be covered in the span of our intense performance programs: the substantive rules on hearsay. Each week, we describe the rule’s bounds and (in true NITA fashion) talk about your advocacy punch for that piece of evidence.

Hearsay Part Three: Some 803 Exceptions

written by guest blogger and NITA Program Director Professor Frederick Moss 

Last time, I discussed the hearsay exemptions, the first way in which out-of-court assertions can be admitted for their truth, as tending to prove or disprove some material fact. Like exemptions, assertions admissible via the Rule 803 (and 804) exceptions meet the definition of hearsay but are admitted for their truth nevertheless. The reason for this pass is that the assertions were supposedly made under circumstances that make them more reliable than “rank” hearsay.

The exceptions are divided into two rules: Rule 803 exceptions work regardless of whether the out-of-court declarant testifies. Rule 804 exceptions apply only if the declarant is “unavailable” to testify.

The Federal Rules of Evidence (FRE) have twenty-three 803 exceptions. I can’t discuss all twenty-three, so I will cover a few of the most frequently used exceptions.

Probably the most used exception is the “Business Records” exception. Civil litigation is document heavy. Rule 803(6) allows the introduction of records of a business, institution, association, profession, occupation, or other “regularly conducted” “calling of every kind” without having to call the maker of the record. If businesses depend upon the records for the success of the businesses (not for litigation purposes), then the courts trust their reliability, at least to the extent of not banning them as hearsay. Hence, a records custodian or other person from the business who knows how records of the kind offered are made and kept, and who can answer the five or six predicate questions embedded in Rule 803(6), can get the records admitted. Recently, states and the FRE have made it even easier, dispensing with the need to call any witness by allowing the proponent to submit an affidavit by a business employee affirming the predicate questions. See FRE 902(11) and (12). The only catch is that the offering party must notify all opposing parties before trial in writing and make the affidavit and the records available for inspection.

The second catch is that statements in the report by others not associated with the business (outsiders) may be inadmissible hearsay rendering the report inadmissible. See FRE 805 (Hearsay Within Hearsay). These outsiders are not covered by the exception because they do not have a business duty to report accurately to the report writer. When this is the case, another hearsay exception or exemption must be found for the outsider’s assertion or else the report is not admissible for the truth of the outsider’s assertion.

Rule 803(8) provides the exception for documents produced by government agencies. This rule is tricky because it incorporates Confrontation Clause protections for criminal defendants. However, it allows the statements of outsiders to be admitted in civil cases when they are part of an investigation by the public agency.

The next most used exception is probably Rule 803(2), the Excited Utterance. It is an assertion about a “startling event or condition” while under the stress of excitement caused by the event or condition. Assuming we have a “startling event,” admissibility is dependent on showing that the declarant was still startled when he or she made the statement. While the time between the event and the assertion is a factor in determining whether the declarant spoke while under stress, courts have found that declarants can remain stressed for rather long periods of time.  It is all about how the declarant looked, acted, and sounded when the statement was made.

Statements by which the declarant is recounting what the declarant is seeing, hearing, feeling, smelling, or tasting at that moment—“or immediately thereafter”—are admissible as present sense impressions per 803(1). The passage of time enough for reflection before speaking defeats this exception.

Finally, there is Rule 803(3), the “Then Existing Mental, Emotional, or Physical Condition” exception. This exception assumes increased reliability inheres when the declarant is speaking about a “then existing” condition, such as an emotion, physical feeling, or intention. This exception is often misunderstood. Many think it applies when the assertion is relevant to prove the state of mind of the person who heard the assertion. Wrong. This exception applies only when offered to prove the declarant’s expressly asserted condition. If offered as circumstantial evidence that, say, the hearer possessed certain information at a particular time, the statement is not hearsay; it is not offered for its truth.

Excluded from this exception are statements of memory to prove the fact remembered. After all, unless we are describing a current feeling or intent, most of what we talk about are memories of past events. If memories were excepted from the hearsay ban, the exception would swallow the rule.

Next time, I’ll write about some Rule 804 exceptions, especially the requirement that the declarant be “unavailable”—a multi-faceted concept.

Hearsay, Part Two: Hearsay Exemptions

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NITA’s blog theme this September is: Hearsay? Say What? Recognize It; Use the Rule at Trial

At NITA programs we train you to the daily thrill of advocating at trial. We ask you to perform constantly, using the rules of evidence. What about the evidence rules themselves?
This month, we discuss one set of evidence rules that cannot be covered in the span of our intense performance programs: the substantive rules on hearsay. Each week, we describe the rule’s bounds, and (in true NITA fashion) talk about your advocacy punch for that piece of evidence.

Hearsay, Part Two: Hearsay Exemptions

written by guest blogger and NITA Program Director Professor Frederick Moss 

Last time, I discussed “What is Hearsay?,” emphasizing that whether an out-of-court factual assertion is hearsay depends what it is offered to prove. If offered for its truth—that is, if the relevance of the assertion requires the fact-finder to assume the asserted fact is true—then it is hearsay. But if offered only to prove the assertion was made (by and/or to whom, and when) as circumstantially relevant to prove a material proposition regardless of the truth of the asserted fact, it is not hearsay.

However, that an assertion meets the definition of hearsay does not determine its admissibility. Hearsay may be admissible via an “exemption” or “exception.” In short, exemptions and exceptions allow out-of-court assertions to be offered for their truth.

What are “exemptions”? They did not exist at common law; there were only exceptions. Some exceptions are now exemptions. Why? Don’t ask; just accept. The reason you don’t need to know why there are exemptions versus exceptions is that both deliver the same result: the assertion gets in for its truth. Go figure. (If you must know, read the drafters’ comments to Federal Rule of Evidence 801(d).)

Let’s look at exemptions using FRE 801(d).  It begins, “A statement is not hearsay if—.”  It should be read to say, “A statement that meets the definition is nevertheless not barred by the hearsay ban if—.”  Abracadabra! The following hearsay is not hearsay—by fiat.

This section is divided into two sub-parts: out-of-court statements by trial witnesses and statements by opposing parties or their agents. Yes, Virginia, the fact the out-of-court declarant is sitting on the stand subject to cross-examination doesn’t exempt the witness’s prior statements from the hearsay ban. This is a common misconception. Intuitively, one would think that if declarants can be cross-examined about their pretrial statements, there is no need to exclude their statements. Wrong. The definition of hearsay nowhere defines it as “out-of-court assertions by non-witnesses.” The fact that Rule 801(d)(1) exempts only three types of witness statements proves the general ban. Other than those listed in Rule 801(d)(1), assertions by witnesses that meet the definition of hearsay are banned—unless they fall within an exception or other exemption.

The first witness statements deemed non-hearsay are prior statements inconsistent with the witness’s trial testimony. Note, if (what I call) the PIS is offered merely to impeach the witness—that is, not for its truth but only to show lack of consistency—it is not hearsay and is admissible for this limited purpose. However, not all PISs are admissible for their truth as well. Not only must the declarant/witness be subject to cross regarding the PIS, but the PIS must have been made while the declarant/witness was testifying under oath at a proceeding (including a deposition in any case).

The second category of prior witness statements deemed non-hearsay are those that are consistent with the witness’s trial testimony (PCSs). However, while the PCS does not have to have been made under oath at a proceeding, it is admissible for its truth only under two circumstances—the second having been added to the FRE only this year. First, the PCS must be offered to rebut an express or implied claim that the witness’s trial testimony was recently fabricated or improperly influenced, such as by bias, a bribe, or threat. As of this year, the PCS is admissible for its truth when it will also rehabilitate the witness’s credibility after being attacked on some other ground, such as faulty memory.

Finally, Rule 801(d)(2) includes the biggest hole in the hearsay ban: statements by opponents. This exemption is simplicity itself. Anything said or written by your trial opponent is not hearsay, even though offered for its truth. Period. End of the analysis. The statement does not have to have been “against interest” when made. I repeat: if your opponent said, wrote, or adopted it, it is not hearsay. The same is true for your opponent’s agents, if the agent was the opponent’s spokesperson (which includes lawyers representing opponents [!]), an employee speaking (to anyone [!]) about a matter within the scope of her employment, or a co-conspirator. The only catch with regard to statements by agents is that the statements alone are not sufficient to establish the agency or conspiracy, another recent amendment to FRE 801(d).

Next time, some of the most utilized exceptions under Rule 803.