Tuesday, November 21, 2017

Question about admissibility of deposition testimony

Professor,

During depositions you can ask both direct and leading questions with some flexibility, but as I understand it the form of your question may result in some answers being inadmissible at trial.

How does your method of questioning and relationship with that witness (your own witness v. adverse) affect the admissibility of the deposition testimony? See FRCP 30(c)(1) ("[E]xamination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence.")

For instance, say I take the deposition of an adverse witness. Because I am taking the deposition, I begin with some open-ended background questions. I then cross-examine the witness to lock her testimony in based on her earlier statements or other facts of which I am aware. Counsel defending the deposition objects to the form of my questions, on the grounds they are leading. Witness answers, but objections preserved on the record.

Witness becomes unavailable for trial under FRE 804(a)(2)-(4). We have her testimony from the deposition, which I seek to admit. Because I am the proponent of the evidence, but during the deposition I cross-examined her, can a party object to my leading questions to prevent admissibility of her answers to my leading questions, even though the deposition transcript itself is generally admissible under FRE 804(b)(1)?

It is my understanding that, notwithstanding the objections as to form made during the deposition, the answers would be admissible because the leading questions were asked of an adverse witness under FRE 611(c)(2). It does not matter that I am the one offering the transcript as evidence.

I suppose a better question is this: in what circumstances would the form of questioning during the deposition affect the admissibility of the question & answers at trial, assuming objections were preserved during the deposition? And does it matter if I am using the deposition for truth of the matter asserted as opposed to some other purpose, such as impeachment by prior inconsistent statement?






Monday, November 20, 2017

Residual Hearsay

At the court this summer, we had an interlocutory appeal (I apologize, I can't remember the name of the case to cite) with these facts:

A 10 year old had given statements pre-trial regarding her dad's sexual abuse. A couple years later, during trial, she refused to testify to the details of the abuse, and if called to testify, she said she would deny it all.

Prosecution requested a ruling that the girl's pre-trial statements be admitted instead of, or in addition to, her testimony. The fear was she was recanting because of improper influence. The statements were not admissible under any other hearsay exceptions.

The court found that her pre-trial statements were admissible under Residual Exception 807(3) "more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts." The point for which it was offered: proving her dad's sexual abuse, and it was more probative than other obtainable evidence: the girl's testimony.

For Monday

Monday audio.

We continue with Declarant Unavailable. What is the difference between a witness unavailable under 804(a)(1) and (2)? What is the connection and difference between 804(b)(3) and 801(d)(2)? Then read the next two sections, on Layered Hearsay and Residual Exception.

My hope is to get through this on Monday, then spend Wednesday on a truncated overview of the Confrontation Clause.

Wednesday, November 15, 2017

For Monday

Wednesday audio.

We continue with Documentary Exceptions and Other Documents, starting where we left off with FRE 803(8)--reading the three parts to understand what sorts of statements each reaches and the rules for who may and may not introduce each type of statement.

Then move to Declarant Unavailable and the 804 exceptions. Parse 804(a)(5) to understand when a declarant in unavailable under that rule.

It goes without saying . . .

that when you write something this poorly, no matter the legal merits or your political point of view, you disserve your client and lose all credibility with opposing counsel and the court.

Monday, November 13, 2017

For Wednesday

Monday audio.

We continue with Question # 191 and the second line of hearsay, from the neighbor to the paramedic. Could that piece come in (as Brooke's statements did) under 803(1) or (2)? Why or why not? What else might work for the prosecution?

Then move to the next two sections--Documentary Exceptions and Other Exceptions. For Documentary, focus on FRE 803(5), (6), (7), and (8). Work through the exceptions and exceptions-to-exceptions in (8)(B) and (C); try to be precise in identifying what is and is not allowed? What is the difference between using 803(6) and 803(5) to allow some evidence? What is the argument that 803(7) is unnecessary?

Saturday, November 11, 2017

New Washington Evidence Rule on immigration status

The Supreme Court of Washington has approved new Evidence Rule 413, regulating use of evidence of immigration status. The Rule bars evidence of a party's or witness's immigration status in criminal cases unless status is an essential fact to prove an element of a claim or defense or to impeach by bias or prejudice. It bars evidence of status in civil cases unless status is an element, although with an exception allowing use in post-trial motions where a plaintiff subject to an order of removal received certain remedies in employment cases.

The controversy under the Federal Rules with respect to evidence of immigration status relates to its use under 608(b) as a specific instance of untruthful conduct. Some lower courts have held that entering the country unlawfully or lying about status is probative of truthfulness or untruthfulness.

Wednesday, November 8, 2017

For Monday

Wednesday audio.

We pick up with Question # 178 and the exceptions or exclusions you could use. Please note that all of these questions on Spontaneous Statements require you to consider everything covered previously in the hearsay portion--so consider admissibility because not within the basic definition, because of an 801(d) exclusion, and because of an 803 exception.

Then move to Documentary Exceptions, focusing on 803(5)-(8).

Monday, November 6, 2017

For Wednesday

Monday audio.

We continue with Hearsay Exclusions. We left on Question # 159 and the defense response to the argument that Jesse's statement can come in under 801(d)(2)(A). What other arguments can the plaintiff make for admissibility?

Then move to Exceptions: Spontaneous Statements (covering FRE 803(1)-(4)). What are the rationales for each exception--what gives each "sufficient guarantees of trustworthiness"? What are the elements of each exception.  Pay close attention to the scope and limits of the state of mind exception in 803(3), as well as the exception for statements of memory or belief. What is the difference between a statement not offered for the truth but showing state of mind and a statement of state of mind under 803(3)?