Tuesday audio. We have about 45 minutes to make-up on Monday, but I also want people to be able to attend Karaoke at 12:30 on Monday. So here is what we will do: We will start at 1:30, go into our regular class at 2, then stay a few minutes after 3:15, if necessary. Those of you in Prof. Roman's 3:30 Ad Law class can leave at 3:15; you won't miss anything too essential.
The final will post at 12:30 on Tuesday, November 25 and will be due by 4:30 p.m. on Wednesday, December 10, outside my office. You may turn it in sooner than that. The idea is that you can work on it throughout the 2+-week period.
A quick clarification on the Mass schedule. Several people asked about FRE 406 for this. But that addresses a different issue. FRE 406 allows evidence of the Church's regular practice ("we hold mass at 10:30 every Sunday") to show that it held mass at that time on Sunday, July 17. So if plaintiff asked Taylor on the stand "what time did you hold Mass during the summer," 406 would allow his testimony to establish that mass occurred at the time on July 17. FRE 406 allows plaintiff to prove the same fact via the same inference through the schedule. But doing so via the schedule raises a distinct hearsay problem, which is what we were dealing with. In other words, 406 controls what can be proven and through what inference; the hearsay rules control whether the particular piece of evidence (an out-of-court statement) can be used to prove the fact through that inference.
Review Declarant Unavailable, then prep Residual Exception (FRE 807) and Layered Hearsay. For Layered, let me get this idea out front, as several people have raised it outside class:
FRE 805 requires that every layer (each statement by each declarant) must be admissible under the hearsay rules. Several people have been confused by what happens if some layer is not admissible; the answer is it depends on which layer fails--the one farthest from the witness or closest to the witness.
If the problem is the outer layer, the inner layer may be ok, at least to the extent the declarant goes beyond repeating the outer declarant. Consider # 227. Kerry's statement ("I remember leaving it in the library") was not admissible, therefore Kelly's statement repeating that is not admissible. But the other portion of Kelly's statement ("the pendant turned up") is admissible, so Jesse can testify to that Kelly having said that.
If you lose the inner layer, the outer layer is also lost because the witness did not hear the outer layer and cannot testify to what the outer declarant said. That may eliminate part of the outer statement. Consider # 192. Brooke's whole statement ("Joe shot Leslie with a revolver") was admissible under 803(1) and (2) and 801(d)(1)(C); but the neighbor could not repeat the "Joe shot" part because it was not admissible under 803(4) (the only basis for admitting the neighbor statement repeating Brooke's statement). So the paramedic can testify only to the admissible portions of the neighbor's statement (those pertinent to medical diagnosis) repeating Brooke's statement--Leslie was shot with a revolver.
Or it may knock out the whole thing. Consider Ross's testimony about his conversation with Zanoni, if offered to show truth (that Jesse stole, so Ross did not make false statements). Zanoni telling the entire story to Ross is TMA with no exception, so it cannot come in. And since Ross did not hear what Jesse said, neither can Jesse' portion.
Alternatively, the inner declarant (if possible) can testify to what the outer declarant said (e.g., Zanoni can describe his encounter w/ Jesse; the neighbor can testify to Brooke's entire statement). You eliminated a layer of hearsay.
