Tuesday audio. Double session on Tuesday; make-up at 12:30 in RDB 2006.
Final point on Rulings on Evidence. One final issue with motions in limine is whether, having lost on the motion pre-trial, the party must renew the objection or offer of proof at trial. FRE 103(b) tells us the party does not when the court rules "definitively" on the record. A "definitive" ruling contrasts with a "conditional" ruling. The ACN tells us the burden is on the party to clarify the nature of the ruling to know what to do at trial. Courts often rule conditionally on MILs, stating an initial view but leaving open the possibility of a different ruling depending on how trial goes. Strategic answer: Repeat objections and offers to be safe.
We begin Hearsay, which will cover the final weeks of the semester. Prep Introduction to Hearsay, including The Hearsay Problem in the ACN. Review the hearsay rules as a whole to see, generally, how they fit together.
• Why do we generally not like hearsay evidence? How does it relate to our prior discussion of how we evaluate testimony and how we subject it to adversary testing?
• What are the four approaches to hearsay the Advisory Committee identified and what are the problems and benefits of each?
• What are the elements in the definition of hearsay and what does each element entail?
• What is the difference between a speaker's assertion and a listener's inference and how does that affect whether something falls within the definition of hearsay?
• What does it mean to be "offered in evidence to prove the truth of the matter asserted?" Given the preference for adversary testing the reasons for limiting hearsay, why does drawing the line by whether the statement is offered TMA make sense?
• Consider: Joe wants to establish that he was in his room, talking on the phone with Chris, at 10 p.m. Two versions; consider whether either or both is offered TMA:
• Chris testifies that Joe said "I'm sitting in my room in the boardinghouse."
• Chris testifies that Joe said "I'm sitting here in the dark; the power went out." There was a blackout affecting the street on which the boardinghouse sits.
• When is a statement not offered TMA, as indicated in the reading? Consider whether the following are TMA: A couple is injured in a car accident; both die. For purposes of probate, the court must determine who died first.
• To show that wife was alive right after the crash, a witness testifies that he heard the wife say "I'm alive."
• To show that wife was alive right after the crash, a witness testifies that he heard the wife say "My husband is dead."
• To show that husband died first, a witness testifies that he heard the wife say "My husband is dead."
Given the double session, I expect to get through Introduction, Exclusions, and the beginning of Spontaneous Statements next week.
