For Monday (Final Class)

Tuesday audio. Final class on Monday. Q&A session at 12:30 Monday; Room TBD. Exam will be posted at 12:30 on Tuesday.

Prep Layered Hearsay and Residual Exception, in addition to reviewing the Unavailability problems.

Two quick words of clarification:

On Question # 179, involving the Mass Schedule: We skipped it for time considerations, but it is worth spending some time with it. Importantly, start with what, exactly, plaintiff wants to prove with the schedule and how that affects any hearsay analysis. Also, don't be too quick to use 803(6); think about when the schedule was made and what the event or condition is--does that fit (6)? If not, what else do you have?

On the idea of "business or legal duty to report:" Reports under 803(6) get their sufficient guarantees of trustworthiness from the organization's need for accurate reports about their activities. Implicit in that is that the person who provides the information for the report is part of that organization and thus shares the same desire/obligation to provide accurate reports about their activities. That is what we mean by business duty to make the report. Where the person has such an obligation because she is part of the organization, her statements become part of the report and adopt the sufficient guarantees. For example, Windsor has a business duty as an ABC employee to conduct interviews for potential clients and accurately report the results; his report of his interview with Ross has sufficient guarantees of trustworthiness.

    But where the person providing the information for the report does not have that business or legal duty (such as because they are not part of the organization), we lose that guarantee of trustworthiness for the info in the report. Therefore, we do not absorb the information-provider into the report; she remains a separate declarant needing to otherwise satisfy hearsay rules. Thus, Jesse has no business duty as to the loan application, so her statements remain outside the report and needing an independent basis for admissibility. If Ross offers the report, that comes from FRE 801(d)(2)(A).

    But what if Jesse wants to prove the information about her assets?

For Tuesday

Monday audio--Part I, Part II. To be clear:

 On Kelly's text in # 227: The portion of the text repeating what Kerry said is not admissible because it does not satisfy 803(1), (2), or (3), for the reasons we discussed in class. Plaintiff can offer the portion of the text in which Kelly described finding the pendant.

We continue with Documentary Exceptions, particularly the Coroner's Report, Jesse's loan application, and the Mass schedule; you should be bringing the full range of arguments to bear, not only focusing on 803. Review the rest of the 803 exceptions; we will hit some of the highlights.

Then move to Exceptions: Declarant Unavailable. What is the connection between 804(a) and (b), particularly with 804(a)(5)? What gives the 804(b) exceptions sufficient guarantees of trustworthiness? This discussion will carry into the final class next Monday.

For Monday (Double Session)

Tuesday audio. Double session next Monday, as advance make-up for the Tuesday before Thanksgiving.

We continue with Spontaneous Statements, then prep all of Documentary Exceptions. What is the difference among FRE 803(5), (6), and (8)? Break down the pieces of the documents to determine what is admissible and why.

 

Prelim Exam Results and Comments

Median: 57

Mean: 56.25

High: 99

Recall the sample answers.

After the jump, some common problems:

For Tuesday

Tuesday audio. No class Monday. Judicial Lecture at 12:30 next Tuesday (Nov. 12); class participation awarded for attending.

Move to Spontaneous Statements; prep all of it. What are the elements of each of 803(1)-(4) and what gives the statements in these exceptions sufficient guarantees of trustworthiness? What is the difference between a statement offered not for the truth to show state of mind and a statement of state of mind under 803(3)? Consider:

    • Read the Advisory Committee Notes on FRE 803(3) and the discussion of Hillmon. What inferences can be drawn from the following:

            W --- Dec ("Tomorrow, I'm taking my kids to the zoo along with Jim and his kids").

What pieces of this come in under FRE 803(3)? What about the following:

          W --- Dec ("Tomorrow, Jim is taking his kids to the zoo.")

    • Why does 803(3) not allow statements of memory or belief?

For Next Class

Monday audio--Original Recipe, Extra Crispy.

Prep Exclusions (FRE 801(d)). What is the difference between an exclusion and an exception? What are the possible ways to handle out-of-court statements where the declarant testifies? How does 801(d) draw that line?

Move to Spontaneous Statements, covering FRE 803(1)-(4); read the rules and Committee notes and the C&S reading but leave the problems for next week. What are the elements of each of 803(1)-(4) and what gives the statements in these exceptions sufficient guarantees of trustworthiness? What is the difference between a statement offered not for the truth to show state of mind and a statement of state of mind under 803(3)?

 

For Monday (Double Session)

Tuesday audio. My apologies for not noticing your outfit choices today.

We will spend all of class working through Introduction to Hearsay; prep the full section.

    • What do each of the elements of the hearsay definition mean?

    • What is the difference between a speaker's assertion and a listener's inference? 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 as the reason 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."

Prelim Exam Sample Answers

After the jump. Note that this is one approach. I grade on analysis not conclusions. So, for example, there may be other permissible 404(b)(2) uses in Question # 3.

For Tuesday

Monday audio.

We continue with Rulings on Evidence. Prep the remaining problems and be ready to work through them, piecing together all the pieces of FRE 103. What is the point of motions in limine?

We should move to the beginning of Hearsay. For tomorrow, prep all the assigned Provisions and the Introductory Note and C&S pp. 25-29 and §§ 5.01-5.03.

    • What is adversary testing of evidence (review notes on witnesses) and what is the problem with hearsay in terms of that?

    • What are the four approaches to hearsay the Committee describes and what are the benefits and drawbacks to each? What approach did the Committee adopt?

    • Note the basic overall structure of the hearsay rules and how the 800 rules fit together.

    • What is hearsay? What is a statement?