Public Records (FRE 803(8)) Record if it sets out – Office Activities (narrow ministerial things like time cards) Matter observed under duty to report (narrow report of rainfall statistics) In criminal case no statements of law enforcement (also applies to BR) – Factual findings of a legally authorized investigation Only in civil case, or against government in criminal case (applies to BR) Factually based in report are not excluded conclusions/opinions No indication of lack of trustworthiness Hearsay Exceptions Declarant Unavailable – Witness is Unavailable (804(a)) Exempted by privilege cannot exempt himself by asserting 5th Am. (Bollin) Δ Refuses to testify despite court order Testifies to lack of memory Is unable because of death, physical, or mental illness Is absent and the proponent of the statement cannot procure attendance by process or other means Must make efforts beyond bare assertion that witness is beyond subpoena power (call, pay, attempt to locate, etc.) (Raymark) NOTE: For dying declaration, statement against interest, or statement of personal/family history, if testimony received, then D is not could have been D’s unavailable Prior Testimony (FRE 804(b)(1)) Prior proceeding must have oath/cross If this proceeding is criminal Same person as this case must have cross – examined witness and have same motive/opportunity to question Open question whether prosecutor has same motive/opportunity to question during grand jury testimony as at trial (Salerno) If this proceeding is civil Must have same party or predecessor in interest with – same motive/opportunity to cross Can be different but need similarity of issues and motivation to question Π/Δ, (Johns-Manville) Dying Declaration (FRE 804(b)(2)) D has settled, hopeless expectation of death Requires PK Only admissible in homicide and civil cases Only admissible if about the cause/circumstances of death declarant’s Irrelevant if D dies as long as elements are met Exception to Confrontation Statement Against Interest (FRE 804(b)(3)) Can come from declarant any Statement must be So contrary to proprietary/pecuniary interest D’s So great a tendency to invalidate claim against someone D’s
Public Records (FRE 803(8)) – Record if it sets out Office Activities (narrow ministerial things like time cards) Matter observed under duty to report (narrow report of rainfall statistics) In criminal case – no statements of law enforcement (also applies to BR) Factual findings of a legally authorized investigation Only in civil case, or against government in criminal case (applies to BR) Factually based conclusions/opinions in report are not excluded No indication of lack of trustworthiness Hearsay Exceptions – Declarant Unavailable Witness is Unavailable (804(a)) Exempted by privilege Δ cannot exempt himself by asserting 5th Am. (Bollin) Refuses to testify despite court order Testifies to lack of memory Is unable because of death, physical, or mental illness Is absent and the proponent of the statement cannot procure attendance by process or other means Must make efforts beyond bare assertion that witness is beyond subpoena power (call, pay, attempt to locate, etc.) (Raymark) NOTE: For dying declaration, statement against interest, or statement of personal/family history, if D’s testimony could have been received, then D is not unavailable Prior Testimony (FRE 804(b)(1)) Prior proceeding must have oath/cross If this proceeding is criminal – Same person as this case must have cross examined witness and have same motive/opportunity to question Open question whether prosecutor has same motive/opportunity to question during grand jury testimony as at trial (Salerno) If this proceeding is civil – Must have same party or predecessor in interest with same motive/opportunity to cross Can be different Π/Δ, but need similarity of issues and motivation to question (Johns-Manville) Dying Declaration (FRE 804(b)(2)) D has settled, hopeless expectation of death Requires PK Only admissible in homicide and civil cases Only admissible if about the cause/circumstances of declarant’s death Irrelevant if D dies as long as elements are met Exception to Confrontation Statement Against Interest (FRE 804(b)(3)) Can come from any declarant Statement must be So contrary to D’s proprietary/pecuniary interest So great a tendency to invalidate D’s claim against someone
Evidence%20Murphy%20Fall%202013.docx