Evidence Cases

Knapp v. State, Supreme Court of Indiana, 1907, 168 Ind. 153, 79 N.E. 1076

Defendant was convicted of first-degree murder. At the trial, the defendant attempted to show self defense by indicating his fear of the deceased, saying that he had heard that the deceased, a marshall, had clubbed and injured an old man while arresting him, and that the man had died later. The prosecution showed evidence that the old man had died from senility and alcoholism, not from violence. The defendant urged that it was error to include this testimony, because the issue was whether the defendant had heard the marshall killed the man, not whether it was true. Held The evidence was properly admitted. Evidence that a supposed rumor is not true makes it less probable the defendant heard the rumor, because in human nature there is an "impulse to speak the truth." [But this assumes that people besides officials knew about the coronor's report. It would only be relevant to submit that the condition of the old man had been made public; otherwise, the "truth" about the old man's death is not relevant to the rumor unless the "truth" is known to those who could spread rumors.]

Sherrod v. Berry, 856 F.2d 802 (7th Cir.1988) (en banc)

Sherrod was killed by a police officer, and his survivors sued the police. An officer testified that he believed Sherrod had been reaching for a gun, the plaintiff introduced evidence that Sherrod was not armed, and the trial court allowed the evidence. Held The evidence should not have been admitted. Whether Sherrod actually had a gun is not probative to what the officer believed under the circumstances.

Old Chief v. United States, Supreme Court of the United States, 1997, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574

Old Chief was arrested after a fracas in which at least one shot was fired, and was charged with assault with a dangerous weapon, using a firearm with a crime of violence, and, under 18 U.S.C. § 922(g)(l), of possessing a firearm having been convicted of a prior felony. Old Chief tried to stipulate that he had been convicted of a prior felony, but the government wanted to present evidence of the prior felony, which was assault causing serious bodily injury. Does the government have to accept Old Chief's stipulation? Held (Souter) No, stipulations don't have to be accepted by the other side. Is the evidence of the prior felony assault relevant under FRE 403? Held Yes, evidence of the prior conviction goes to show that Old Chief had a prior felony. Should the evidence have been admitted? Held No, the probative value of the evidence is outweighed by its prejudicial effect (FRE 403) on the jury of prior actions that go to character (Rule 404). Prejudice means effecting a decision on some basis other than the material facts. (Defendant character isn't excluded because it is irrelevant—it is excluded because the jury might give it too much weight.) (Evidence shouldn't simply be weighed on its probative vs. prejudicial value, but should also take into consideration the presence or absence of alternative evidence probative to the same issue.) Doesn't the prosecution have a right to bring the case the way they want to? Held Normally yes, because telling a story makes it more interesting to the jury and gives them what they expect as evidence, but here no, because telling a story doesn't give any probative value to this status issue and introduces prejudice.

Ballou v. Henri Studios, Inc., United States Court of Appeals, Fifth Circuit, 1981, 656 F.2d 1147

Plaintiffs sued Henri Studios for the death of Ballou claiming negligence of Henri's truck driver, John Woelfel. The defendant attempted to introduce lab reports that Ballou was intoxicated at the time, but the court did not admit the evidence because, based upon the testimony of another party who had seen Ballou shortly before the accidenct, the court did not find the evidence credible and found that it would be prejudicial to the jury. Should the court have weighed the credibility of the evidence to that of the witness? Held No, that's the jury's job. Should the court have weighed the credibility of the evidence against any prejudical effect? Held No, the court should not discount the credibility of evidence based upon any prejudice that it might bring, but under FRE 403 should weigh the effect of the prejudice against the probative value of the evidence should it be believed. The court should not use credibility of the evidence as a factor. Was the evidence unduly prejudicial? Held Not according to FRE 403, which means prejudice that causes a decision on some other basis than the material issue. Most evidence is prejudicial. Here, the evidence is prejudicial to the jury believing the plaintiff was intoxicated, but the contributory negligence of the plaintiff is precisely the issue in question.

Sirico v. Cotto, Civil Court of the City of New York, 1971, 67 Mise.2d 636, 324 N.Y.S.2d 483

Plaintiff attempted to introduce into evidence the testimony of a radiologist concerning his analysis of an X-ray. The X-rays themselves were not produced, and their absence was not explained. Held The evidence must be excluded under the best evidence rule, because the originals were not produced, and no reason was given for their absence.

Herzig v. Swift & Co., United States Court of Appeals, Second Circuit, 1945, 146 F.2d 444

Trial court rejected oral testimony as to a partnership earnings because, under the best evidence rule, the books themselves weren't submitted. Held The trial court erred. The writings themselves were not the evidence to be proved, but the earnings, which were later merely recorded in the books.

First State Bank of Denton v. Maryland Casualty Co., United States Court of Appeals, Fifth Circuit, 1990, 918 F.2d 38

The Mills' house burned down, but the insurance company claimed it was purposefully set. The Mills died, so the Bank sued the insurance company as executor. The Mills had bought a new house and no one was living in the first residence at the time of the fire, but witnesses saw a light in the house and a pickup leaving. The insurance company attempted to introduce evidence that Mr. Mills was not at his second residence at the time: a police officer called the second house at 1:00am, and someone answered, "Mills' residence" and said that Mr. Mills was not at home. Was the evidence properly authenticated under FRE 901? Held Yes, there are several ways of authentication. FRE 901(b)(6) refers to telephone calls, and is not exhaustive. We can assume that the telephone company reaches the right number most of the time, and because the answering party identified the residence and said that Mr. Mills was not at home this can be taken as authentication, even if Mr. Mills himself did not answer.

Hill v. Skinner, Court of Appeals of Ohio, 1947, 81 Ohio App. 375, 79 N.E.2d 787

The owners of a dog called "Chang" were held liable for the dog's biting a four-year-old child. The only direct testimony as to the injury coming from the dog was the child's testimony. Is a child of mental immaturity competant to testify? Held This is up to the discretion of the trial judge. Here the judge did not abuse this discretion. The child was shown to be able to recall facts and had a moral sense of a duty to God to tell the truth.

Commonwealth v. Holden, Supreme Court of Pennsylvania, 1957, 390 Pa. 221, 134 A.2d 868

Defendant Holden had been accused of murder. He had been with a friend, Jones, before the murder, and while this friend was being questioneed in his presence Holden blinked one of his eyes. Jones testified that he didn't know if it was a wink or if something was in his eye, but he thought Holden by the "wink" had been trying to get Jones to create an alibi to cover up for some action. Should the testimony have been allowed? Dissent Musmanno: No, that's just like asking Jones what Holden was thinking when he blinked—it's a call for opinion and pure speculation.

Government of the Virgin Islands v. Knight, United States Court of Appeals, Third Circuit, 1993, 989 F.2d 619

Defendant Henry Knight repeatedly beat Andreas Miller over the head with a gun. The gun accidentally discharged and killed Miller, and Knight was charged with second degree murder and two firearm violations. The trial court excluded an eyewitness testimony opinion that the firing of the gun was accidental, as well as a police officer testimony of the same opinion. Was the exclusion of the police officer testimony correct? Held Yes. FRE 701 requires a non-expert witness testimony to be (a) rationally based upon the perception of the witness, and (b) helpful to determine a disputed fact. Here the police officer did not observe the beating. Was the eyewitness opinion testimony properly excluded? Held No, following FRE 701 the eyewitness testimony was a direct perception and it speaks to a disputed fact: whether the killing was accidental. The lay witness opinion rule has become more lenient, allowing the witness to speak not only to facts but the opinion the witness formed from them, because that's more natural for the witness, allowing the witness better to communicate, thereby aiding the jury. Held Was the exclusion of the testimony harmful? Held No. The witness was allowed to speak to the facts upon which the witness based the opinion, allowing the jury to infer that the shooting was accidental. Furthermore, the government barely attempted to prove the killing was not accidental, at times practically conceding that it was.

Tuer v. McDonald, Court of Appeals of Maryland, 1997, 701 A2d 1101

Mr. Tuer had suffered from angina pectoris for about 16 years, and was scheduled to have a coronary artery bypass graft (CABG). He had been put on Heparin to relieve the angina, but was taken off the medication the morning before surgery to allow his blood to coagulate—there was a 5%-10% chance of puncturing the internal jugular vein during surgery, and an anticoagulant could cause complications. The surgery was delayed, Dr. McDonald didn't restart Heparin, and Mr. Tuer went into cardiac arrest and died. The hospital later changed their protocol so that Heparin is now discontinued only when the patient is taken into the operating room. Dr. McDonald testified that he believed it unsafe to restart Heparin. Can evidence of subsequent remedial measures by the hospital be introduced? Held Not under Maryland's Rule 5-407, which mirrors FRE 407. Subsequent remedial measures cannot be introduced to show culpability because (a) such measures are also consistent with accident or contributory negligence, and (b) from a social policy standpoint this would discourage remedial measures, which are good things. As an exception of FRE 407, should the remedial measures be introduced to show feasibility? Held No, Dr. McDonald didn't testify that restarting Heparin would have been unsafe in an absolute sense or that one could not restart Heparin—only that, weighing the alternatives known to them, restarting Heparin would have introduced more risks than not. (Different courts use broader or narrower definitions of feasibility.) As an exception to FRE 407, should the remedial measures be introduced to impeach Dr. McDonald's testimony? Held No, Dr. McDonald's testimony in context didn't mean say that restarting Heparin was itself medically unsafe, but that under the circumstances he then thought that the risks introduced relating to the surgery were greater than not continuing Heparin. That Dr. McDonald now perceives the risks differently, perhaps even because of Mr. Tuer's death, does not contradict that he then thought restaring Heparin would have been too risky.

Davidson v. Prince, Court of Appeals of Utah, 1991, 813 P.2d 1225

An employee of appellee Folkens Brothers Trucking was driving a truck containing animals when, through the negligence of the employee, the truck overturned, releasing the animals. Appellant Grant Davidson was near a steer—he testified at trial that the distance was 40 feet, and evidence showed that it was perhaps 22 feet—when the animal attacked and gorged him. The court allowed the appellee to introduce a letter from the appellant to the appellee in which the appellant claimed the distance was 10 feet. The jury agreed with appellee that the appellant was partly responsible because, at that distance, the appellant had cornered the steer; the court therefore reduced the damages to appellant. Should the letter have been excluded from evidence because, under Utah Rule of Evidence 408, which mirrors FRE 408, the letter was part of a settlement negotiation? Held No. Rule 408 excludes evidence showing liability from settlement negotiations in which there is an admission of some issue in dispute, but appellant's letter was not attempting a compromise. It was simply clarifying the facts, demanded the entire amount, and overall did not indicate that any compromise was possible.

Ando v. Woodberry, Court of Appeals of New York, 1960, 8 N.Y.2d 165, 203 N.Y.S.2d 74, 168 N.E.2d 520

Defendant Edward Nichols was driving a car that, in making a left turn, struck and injured Police Officer Robert Andon, who was riding a motorcycle. Defendant pled guilty for failure to make a proper turn and for failing to signal before turning, but in the negligence trial Nichols claimed that he did signal and that he was not negligent. Should Nichols' guilty plea at traffic court be allowed into evidence? Held Yes. As a general rule, all facts with rational probative value are admissible unless some specific rule forbids it. Does this contradict the hearsay rule? Held No, this was an admission, and prior admissions are allowed as evidence. Should the evidence be exluded because a vehicle law excludes evidence of a traffic crime from impairing the credibility of a witness? Held No, the statute doesn't say that admissions can't be allowed, only that traffic violations aren't crimes that would impair the credibility of a witness. Does public policy forbid the introduction of the guilty plea because many people enter guilty pleas for traffic violations because of the time an expense they would encounter if doing otherwise? Held No. If Nichols says that he admitted guilt but really didn't mean it, that excuse can also be presented for the jury to weight—his admission shouldn't be exluded altogether. Dissent In federal courts one can make a plea of nolo contendere, accepting the charge but not admitting guilt, in order to save time and money. As this pleading is not available in this state for traffic violations, most people plead guilty for the same reason. Thge first step in enforcement of a damage claim in an automobile accident case shouldn't be taken in a traffic court.

Simon v. Kennebunkport, Supreme Judicial Court of Maine, 1980, 417 A.2d 982

Elderly appellant slipped and fell on a sidewalk, and so sued the Town of Kennebunkport on grounds that the sidewalk had a defect in design or construction. She tried to introduce testimony that two business operators in front of the sidewalk had seen, in the two years prior, around 100 people fall on the same sidewalk. The trial court upheld an objection to these prior similar happenings. Should evidence of prior similar happenings be allowed in a negligence trial? Held Yes. Although at one time all such evidence was excluded, this rule has given way to a rule of discretion. FRE 401 and 403 say that all probative evidence is allowed unless it is unfairly prejudicial. In a negligence case, whether something happened repeatedly with no remedial steps is part of the issue, and so the evidence is relevant. Was the defense unfairly surprised? Held No, they were well aware of the existence of the evidence. Would the evidence have tended to excite or confuse the jury? Held No, the evidence was to be presented through personal observations of two witnesses.

Halloran v. Virginia Chemicals Inc., Court of Appeals of New York, 1977, 41 N.Y.2d 386, 393 N.Y.S.2d 341, 361 N.E.2d 991

Plaintiff mechanic was recharging an automobile air conditioner. He placed a can of Freon in to a can of water which he claims a thermometer indicated to be 90 to 100 degrees. The can exploded, and a jury found the chemical company liable. The chemical company wanted to produce testimony that the plaintiff had on numerous occasions used an immersion coil to heat the can of Freon, which would explain the explosion as the label says not to heat the can above 130 degrees. Should testimony of past practice have been admitted? Held Yes. Past deliberate and repetitive practice by a party may be introduced in order to allow inference of its persistence and hence inference on how the party acted on a particular occasion. If the mechanic regularly used an immersion coil, such evidence would make it more likely that the mechanic followed a routine and that, following that routine, he used an immersion coil on this occasion.

Cleghorn v. New York Central & H. River Ry. Co., Court of Appeals of New York, 1874, 56 N.Y. 44

A switchman, careless and drunk, and did not close a switch and motioned a passenger train that the track was all right, causing an accident. Was it proper to allow evidence of the switchman's intemperate habits in the past? Held Yes, not to show that the switchman was negligent here (that was proven), but to show that his habits were known to the company making them liable as well.

Michelson v. United States, Supreme Court of the United States, 1948, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168

Defendant Michelson bribed a tax official, but claimed he only did so because the official threatened and solicited him to the point of entrapment. To prove his good character, Michelson brought witnesses to testify that he had a good reputation. The prosecution asked when cross-examining these witnesses if they had heard that Michelson had been arrested 27 years earlier for receiving stolen goods. The judge asked the prosecution if they had proof that this had happened, and after an answer in the affirmative instructed the jury that the question was soley to establish the character of Michelson, and no proof was being offered that he actually received stolen goods. Should the cross-examination question as to the witness' hearing of Michelson's arrest for receiving stolen goods been allowed? Held Jackson: Yes. Usually character evidence is not allowed, not because it is not relevant, but because it runs too high a risk of prejudice. However, the defendant has the right to bring witnesses that testify to the defendant's reputation, but these witnesses, who must have reason to know of defendant's reputation in a community, must not give actual knowledge of any events, but only testify as to what they have heard about the defendant's character. Once the defendant opens the door by bringing such witnesses, the prosecution may cross-examine them to ascertain how they got the knowledge and if they have heard other things about the defendant's reputation. Here the judge showed discretion by ensuring there was some basis for the charge and instructing the jury on the relevance of the testimony. Weren't such instructions confusing to the jury? Held Yes, but not more confusing than other instructions on exlusionary rules, and the defendant ran this risk when bringing up character. Should the cross-examination questions be limited to crimes similar to the one with which the defendant is charged, as is the rule in Illinois? Held No, the general issue of character is at stake. Isn't the rules regarding reputation one big garbled mess of strange requirements and exceptions? Held Yes, but we can't make things better by changing a little piece here and there. Should the court adopt the ALI Model Code of Evidence as a well-thought-out replacement? Held No, as that would create a disparity between federal and state jurisdictions. Concur Frankfurter: I don't like the rules either, but we must allow discretion in federal trial courts. We have to trust that these are wise judges to be trusted. If they weren't even stringent rules would not help.

United States v. Carrillo, United States Court of Appeals, Fifth Circuit, 1993, 981 F.2d 772

Detective Leo Alonzo over four years had participated in between 300 and 500 undercover drug buys. One day he approached "Tito", later identified as defendant Augustin Mora Carrillo, and within about 30 seconds bought $20 worth of cocaine and heroin Tito had in his mouth and then left. At trial defendant claimed he had been two blocks away at the time. The prosecution introduced evidence of two prior acts of selling heroin. Should the trial court have allowed evidence of previous similar crimes? Held No. FRE 404(b) doesn't allow evidence of extrinsic acts to show guilt in the instant case. Should the evidence be allowed to establish the identity of the defendant through modus operandi? Held No, to use the identity exception the extrinsic act must not merely be similar, but it must bear "such a high degree of similarity as to mark it as the handiwork of the accused" and be "sufficiently unique from the common practice." Here hiding drugs in balloons in the mouth so that a seller could swallow them if a police officer approached is common practice. Should the evidence be admitted to show probability that defendant was in the area? Held No, defendant admits to being in the area at the time.

United States v. Beasley, United States Court of Appeals, Seventh Circuit, 1987, 809 F.2d 1273

Mease, Inc. hired defendant Marvin Leo Beasley, with a Ph.D. in chemistry, as a consultant. When getting a physical, Beasely told the doctor he needed drugs to do experiements on vegetables, so the doctor wrote many prescriptions to him and to "F.E. Brooks and Marilyn Pierce," whom he said were his assistants. The prosecution claims Beasely sold the drugs on the black market. Apparently to counteract the weight of Beasley's Ph.D., the prosecution tried to introduce evidence of Brooks and Beasley's "shopping for doctors" to get prescriptions of drugs to distribute. The prosecution also pointed out that Brooks' daughter, Marilyn Pierce, couldn't testify because she was in a mental hospital, apparently because of the effects of drugs like the ones for which Beasley obtained presciptions. Should the trial judge have admitted the evidence of previous drug distributions to show a pattern? Held No, pattern is not one of the exceptions to FRE 404(b), and especially because mere patterns of crimes is exactly the kind of character evidence the rule is meant to exclude. Can the evidence of previous drug distributions be admitted to show identity? Held No, because they are not sufficiently similar to the instant charge, even though they may be similar to each other. Going to a doctor to get a prescription for an illness for another drug is not like claiming that this drug is for experiments on vegetables. Can evidence of previous drug distributions be admitted to show intent? Held No, because even though the instances may have been relevant to show intent, they had a potential for unfair prejudice because drug sales, because "[t]he sale of drugs brings emotions into play, especially when the evidence reveals that the drugs may have ruined Marilyn Pierce's life."

Tucker v. State, Supreme Court of Nevada, 1966, 82 Nev. 127, 412 P.2d 970

In 1957 Tucker called the police. When the police arrived they found Earl Kaylor dead on the floor from bullet wounds. Tucker, who had apparently been drinking, claimed to have been asleep and came downstairs to find Kaylor dead. In 1963, Tucker called police, and when they found Omar Evans dead on the couch from bullet wounds, Tucker, who apparently had been drinking, told the same story. Tucker was convicted for the murder of Omar Evans after the state introduced evidence of the death of Kaylor, even though no one had ever been charged with that killing. Should evidence of past actions of the defendant be allowed into evidence if they have not been proved? Held No. Evidence of previous offenses may not be introduced unless they fall into an exception: relevant to prove motive, identity, the absence of mistake or accident, or a common scheme or plan. Here, the previous offense wasn't proven, and no evidence was introduced to show Tucker did the previous killing. (As for previous proven offenses, the defendant has not been advised that he must be prepared to meet extraneous charges, and the jury might convict now as a punishment for the past act.)

Huddleston v. United States, Supreme Court of the United States, 1988, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771

Petitioner Guy Rufus Huddleston was on trial for selling some of 32,000 blank Memorex video cassettes that had been stolen in a truck and delivered to petitioner by Leroy Wesby. The prosecution brought in evidence that earlier that year Huddleston sold 38 stolen televisions, delivered by Wesby. The prosecution also introduced evidence that petitioner that year tried to sell 70 stolen Amana appliances, against delivered by Wesby. Before bringing in evidence of extrinsic acts to prove motive, opportunity, or knowledge under FRE 404(b), must the trial court decide by a preponderance of the evidence that the events in question actually took place—here, that the previous items were in fact stolen? Held No, the text of FRE 404(b) doesn't say that. The information should be allowed as long as a jury could decide by the preponderance of evidence that the facts are true. Taking FRE 404(b) along with FRE 401 and and FRE 402, evidence of extrinsic acts should be allowed for the character evidence exceptions if (1) the evidence is offered for the proper purpose, (2) the information is relevant according to FRE 402 as enforced through FRE 104(b), (3) the trial court determines that the probabitive value of the evidence is not substantially outweighed by the potential for prejudice, and (4) the trial court advises the jury according to FRE 105 that the evidence should only be considered for the proper purpose.

State v. Oswalt, Supreme Court of Washington, 1963, 62 Wn.2d 118, 381 P.2d 617

Defendant Oswalt was accused of being one of two robbers who on July 14, 1961 in Seattle, Washington forced Frank L. Goodell to go to a store, open a safe, and take out money. The defense called a restaurant owner who testified that Oswalt had been at a restaurant in Portland on that day and had been coming into the restaurant every day. The prosecution called a policeman who testified that he had talked to the defendant in Seattle on July 12, 1961. Should the policeman's testimony impleaching the restaurant owner been allowed? Held No, a witness cannot be impeached on issues collateral to the principal issues being tried. This is (1) to avoid undue confusion of issues, and (2) to prevent unfair advantage over a witness unprepared to answer unrelated questions. Here the alibi was that Oswalt was in Portland on July 14, and establishing that he was in Seattle two days earlier does not impeach the witness as to July 14, but only on the collateral implication that he was there two days earlier. Was the error prejudicial? Held Yes, the introduced testimony attacked the witness who spoke to the defendant's alibi, and as the defendant was convicted, wrongly attacking defendant's alibi was prejudicial.

United States v. Owens, United States Court of Military Appeals, 1985, 21 M.J. 117

Owens was on trial for shooting his wife to death as she was driving away from her home. Owens claims he was cleaning the gun and it went off—"a tragic accident." To impeach his veracity, the prosecution asked whether he purposefully omitted from his application for Warrant Officer his conviction for marijuana charges, his arrest for assault and battery to his second wife, and his conviction for his carrying a pistol in his automobile without a permit. Should these cross-examinations of prior bad acts been allowed? Held Yes, they were meant to show that defendant had lied under oath before, and the bad acts were intrinsicly part of the actions of lying under oath being demonstrated. Were the statements unduely prejudicial? Held Most of them were not, but the prosecution should have said "assault and battery to an individual," rather than "to your second wife," because that fact was not central to the issue and could cause undue prejudice. Did this error prejudice the defendant? Held No. The defendant is entitled to a fair trial, not an error-free fair trail.

United States v. Drake, United States Court of Appeals, Tenth Circuit, 1991, 932 F.2d 861

Renee Roger Drake was on trial for fraud by concealing the existence of third-party interest in collateral when seeking financing. On cross-examination he stated he had a degree in psychology, so the prosecution cross-examined him on the issue, finding that he only had enough hours to have a major in the degree, but did not actually graduate. The prosecution then questioned Drake about his grades and his transferred classes when changing schools, asking essentially, "if the records were to show that you had flunked the classes and had been dismissed because of falsification of facts during a disciplinary investigation, is it your testimony that they would be incorrect?" Was cross-examination on Drake's degree appropriate? Held Yes. By testifying about his degree, Drake opened himself up to cross-examination on the subject. Does the cross-examination as to the records violate FRE 608(b) by introducing extrinsic evidence of character? Held No, the cross examination by itself did not introduce any extrinsic evidence. Was the cross-examination as to the records inappropriate? Held Yes, because they assumed facts not in evidence, implying the records actually supported the facts asserted by the prosecutor. Did this abuse affect Drake's rights? Held No; by this time, Drake had already been impeached, and the defense had failed to object to several of these types of questions; the damage had already been done.

United States v. Sanders, United States Court of Appeals, Fourth Circuit, 1992, 964 F.2d 295

Carlos Sander and Ricky Alston were charged with assault with intent to commit murder and possession of a knife while inmates at Lorton Reformatory. The court allowed the government to cross-examine Sanders about his prior assault and contraband convictions. The jury acquitted Alston on assault, convicted Sanders on possession, and could not reach a verdict on assault for Sanders. At the second trial, the government again allowed cross-examination regarding Sander's prior assault and contraband convictions, and after deliberating into the next day the jury convicted Sanders for the lesser included offense of assault with a dangerous weapon with intent to do bodily harm. Should evidence of a recent prior assault and contraband convictions be allowed under FRE 609(a) for attacking the credibility of a witness accused of assault? Held No. Although the crime is one punishable by imprisonment in excess of one year as required by FRE 609(a)(1), the previous conviction's prejudicial effect outweighed its probative value because it was a similar crime to the one charged and the crime iself was one that could inflame the jury. (If the other crime would have been more distant in time its probative value would have been even less.) Were the previous convictions admissible under Rule 404(b) to show Sanders' intent to commit the crime of assault? Held No, Sanders' previous assault on another person had nothing at all to do with his motivation—intent—for the assault charged. Sanders admitted he stabbed the inmate. Was the admission of evidence of the previous assault charge harmless error? Held No. The verdict must have been a close call because the first jury couldn't decide and the second jury deliberated a long time, so the inappropriate evidence might have swayed them. Was the admission of the evidence harmless as to the conviction charge? Held Yes, the decision wasn't as close there, and Sanders didn't deny possession, he only denied ownership, so the jury probably wasn't swayed by the inappropriate evidence. Dissent Because intent was an issue in this case, Sander's intent in a previous stabbing should be introduced to help determine his intent here.

United States v. Lindstrom, United States Court of Appeals, Eleventh Circuit, 1983, 698 F.2d 1154

Dennis Slater and Joanne Lindstrom were part owner of Bay Therapy. The government accused the defendants of mail fraud and conspiracy to commit mail fraud by altering records to bill patients for treatments they did not need and sometimes did not receive. The trial court did not allow the defense to introduce evidence that the government's key witness, who had overseen operations at Bay Therapy, had a history of mental problems and, besides being hospitalized for mental problems, had attempted to pay someone $3000 to shoot the wife of her lover, had attempted to shoot a shotgun through the window of her lover's house, and that she had attempted suicide in order to manipulate and punish her boyfried. Did denial of the defendants to cross-examine the witness relating to a history of mental problems violate the defendants' sixth amendment right to confrontation and cross-examination of their accusors? Held Yes. The cross-examination might have shown a history of vindictive and manipulative actions resulting from menal problems and thereby impeached the witness. (This right goes beyond FRE 608, which only relates to impeachment by showing moral proclivity for truth-telling, because one may always attack a witness' capacity to observe, remember, or narrate through, as here, mental capacity or condition.)

Coles v. Harsch, Supreme Court of Oregon, 1929, 129 Or. 11, 276 P. 248

Plaintiff Mr. Coles sued defendant for $50,000 alienating the affections of his wife by "improper attentions," mainly by wrestling around with her. Defendant brought in witness Mr. James A. Thompson who testified that defendant acted this way to all his female friends. Plaintiff testified that Thompson had once told him that he had seen defendant at a picnic on the banks of the Pudding River with Mrs. Coles acting "disgraceful," even though Thompson had already said he didn't remember any conversation regarding the Pudding River incident. (Should Mr. Cole have been allowed to testify about Thompson's previous statement in order to substantiate his claim? Held No, it violates the hearsay rule.) Should the plaintiff's testimony have been allowed in order to impeach the defense witness' testimony? Held Not without proper foundation, and there was no proper foundation here. Just because people don't remember something doesn't mean they are dishonest—their memory just may need refreshing. As Section 864, Or.L. states, before a witness may be impeached regarding previous testimony by inconsistent statements made at other times, the statements must be related to the witness along with the circumstances of times, places, and persons present (and, if there was a writing, it must be shown to the witness before any questions), none of which was done here.

United States v. Abel, Supreme Court of the United States, 1984, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450

John Abel and two others were accused of robbing a savings and loan. The two others pled guilty and one of them, Kurt Ehle, agreed to testify against Abel and identify him as a participant in the robbery. Defendant brought in witness Robert Mills, who testified that Ehle had told Mills that Ehle intended to falsely implicate Abel in order to get favorable treatment by the government. In response, in order to discredit Mills, Ehle testified that Ehle, Mills, and Abel were all part of a secret prison organization the members of which pledged to deny its existence and "lie, cheat, steal [and] kill" to protect each other. Should group membership have been allowed to show the bias of a witness, even though the common law doesn't allow mere group membership to convict in the absence of evidence of actually holding the tenants of the group? Held Renquist: Yes. Membership in the group wasn't presented to convict, and the most it could do was to impeach by giving weight that a witness might be lying. FRE 401 and 402 allow admission of any relevant evidence, and membership in a gang sworn to perjure to help each other is relevant to show bias. Proof of bias is almost always relevant, as it bears on the accuracy of a witness testimony. Did the trial court err in allowing detailed descriptions of the tenants of the group such as stealing, and killing, as this might prejudice the jury? Held No. The specific attributes of the group not only lent weight to the fact of bias but also to the source and strength of the bias. The court had already limited the testimony by preventing questioning on the group's alleged name, the "Aryan Brotherhood," and had sustained defense objections to questioning on certain punishment within the group. The allowed questioning might have been prejudicial, but not unduly prejudicial.

State v. English, Supreme Court of North Carolina, 1931, 201 N.C. 295, 159 S.E. 318

Stephen English was convicted of second-degree murder of his wife. The court excluded testimony of David Locke who, arrested the day after the murder, voluntarily confessed to the killing, describing the house and the condition of the body with accuracy. Should the evidence of the third-party confession have been permitted? Held No. Even though this may seem wrong to a layperson, and even though Justice Holmes would want to include hearsay evidence against the third party's interest such as this, the law must follow general principles and exclude hearsay.

Estate of Murdock, 32 Muc. 352 (1983)

In this made-up case, Arthur G. Murdock made a will that left everything to his wife Sarah Hayes Murdock unless she died first, in which case everything would go to his children by his first marriage. Similarly, his wife made a will that left everything to her husband or, if he died first, to her children by her first marriage. They both died in a plane crash, and the court had to determine who died first. A deputy testified that, upon visiting the crash, he saw that Sarah was dead but that he heard Arthur whisper, "I'm alive." Should such testimony be excluded as hearsay? Held No, because the testimony does not depend on the credibility of Mr. Murdock—the action itself is what is important, as dead people do not talk. Mr. Murdock could just as well said, "I am dead," and the statement would have been just as credible.

Subramaniam v. Public Prosecutor, Judicial Committee of the Privy Council, 1956, 100 Solicitor's Journal 566

Subramaniam, a rubber tapper, was found wounded with 20 rounds of illegal live ammunition and sentenced to death. On appeal Subramaniam claimed duress in that he had been captured by terrorists and was trying to surrender. Should conversations of terrorists with Subramaniam be excluded on hearsay grounds? Held No, the testimony is not to prove that what the terrorists said is true, but merely to show that the terrorists created duress by their statements.

Vinyard v. Vinyard Funeral Home, Inc., St. Louis Court of Appeals, Missouri, 1968, 435 S.W.2d 392

Plaintiff Vinyard slipped and fell at the parking lot of Vinyard Funeral Home and sued the funeral home after stepping onto a smoothly paved surface of a ramp. The plaintiff, in order to show that officers knew about slick surface, asked the vice-president of defendant of other people had told him that the pavement was slick, and the vice-president answered in the affirmative. Should out-of-court testimony of others regarding the slickness of the pavement be allowed? Held Yes, because they are not offered to prove the slickness of the pavement (as was shown using in-court witnesses), but to show that defendant knew about the slickness.

Johnson v. Misericordia Community Hospital, Court of Appeals of Wisconsin, 1980, 97 Wis.2d 521, 294 N.W.2d 501

Dr. Salinsky performed surgery on plaintiff Johnson's hip, and plaintiff sued Misericordia Community Hospital for negligence in hiring Dr. Salinsky. Plaintiff offered as evidence out-of-court testimony of people on the hospital's credentials committee regarding restrictions on Dr. Salinsky's practice at other hospitals and other hospitals refusing to allow Dr. Salinsky on staff. Plaintiff also offered testimony of Dr. Nesemann that between 1967 and 1975 he had heard other physicians state that Dr. Salinsky was incompetent as an orthopedic surgeon. Was the testimony inadmissible because of hearsay? Held No, the testimony was not offered to show that Dr. Salinsky was incompetent, but to show the availability to the hospital of knowledge about Dr. Salinsky's incompetence.

Ries Biologicals, Inc. v. Bank of Santa Fe, United States Court of Appeals, Tenth Circuit, 1986, 780 F.2d 888

Plaintiff Ries was selling equipment to Dialysis Management Systems, Inc. (DMS) but stopped selling on credit when DMS began experiencing financial difficulties. Ries resumed selling to DMS on credit when defendant Bank of Santa Fe's vice president gave an oral agreement to Ries to guarantee payment of DMS. Should out-of-court testimony of the bank's vice president be allowed? Held Yes, as the statement was not being introduced to show whether it was true or false (the hearsay rule), but merely to show that it was made and that Ries relied on it.

Fun-Damental Too, Ltd. v. Gemmy Industries Corp., United States Court of Appeals, Second Circuit, 1997, 11lF.3d 993

Plaintiff Fun-Damental developed and sold a $20 money bank in the shape of a toilet that, when its handle was pressed, would make a flushing sound. Kay-Bee, a toy store, expressed interest in buying this Toilet Bank but found the price too high. Kay Bee contacted Gemmy Industries and sent one of Fun-Damental's Toilet Banks to Gemmy's factory in China. Gemmy manufactured a near-identical version of the Toilet Bank called the Currency Can, and Kay Bee sold the product in its stores for $10. Fun-Damental introduced evidence that customers were confused and thought that Kay-Bee was selling the Fun-Damental product for a lower price. Should out-of-court testimony of customers be permitted? Held Yes, because the truthfulness of the customers' perceptions was not at issue, but instead the customers' perceptions themselves. (This is sometimes referred to as the state-of-mind exception to the hearsay rule.)

United States v. Hernandez, United States Court of Appeals, Fifth Circuit, 1985, 750 F.2d 1256

Hernandez was convicted of possessing and distributing cocaine. An informant, Gholson, testified that he (after agent Ana Saulnier, posing as Gholson's wife, left) and Hernandez went into a tire shop and Hernandez sold him cocaine. Hernandez testified that they instead discussed leasing a room in the tire shop to make pornographic films, and never went into the room. Gholson was characterized as an unreliable informant, and the testimony was at times little more than a "swearing match" between Hernandez and Gholson. The prosecution sought to introduce testimony from Salnier that Hernandez had been brought to the attention of the DEA because they had been informed by the U.S. Customs that Hernandez was a drug smuggler. Is such testimony admissible as the state-of-mind exception to the hearsay rule, as it concerns the state of mind of the DEA agent in beginning to investigate Hernandez, not the truthfulness of whether Hernandez was actually a drug smuggler? Held No, the reason for beginning the investigation of Hernandez is not relevant. The evidence was instead used at trial to prove that it was true that Hernandez was a drug smuggler, and this use of hearsay evidence is not allowed under FRE 802.

United States v. Zenni, United States District Court, Eastern District of Kentucky, 1980, 492 F.Supp. 464

Officers had a warrant to search the premises of Ruby Humphrey, suspected of illegal bookmaking, and while there they answered the phone several times to hear people calling to try to place bets. The defense objected to testimony of the calls, saying the conversations were hearsay. The prosecution said that the calls implied that the callers thought the house to be a place to make illegal bets, and was probative to whether the house actually was such a place. Are out-of-court statements, offered to prove an implied assertion, considered hearsay and thereby excluded? Held Not under the Federal Rules. In the common law there was a big debate about this, and one famous rule stated that an out-of-court implied assertion was barred if the hearsay rule would exclude an express version of that same assertion. The Federal Rules take the view that a person does not lie to himself or herself, so FRE 801's definition of hearsay requires that the out-of-court declarant intend a statement or action to be an assertion before it is excluded by the hearsay rule. Here the callers apparently did not intend to place bets in order to make an assertion that the house was a place of betting, so their assumption that it was a house of betting was an implied assertion not excluded by the hearsay rule in FRE 801.

Silver v. New York Central Railroad, Supreme Judicial Court of Massachusetts, Suffolk, 1952, 329 Mass. 14, 105 N.E.2d 923

Plaintiff Frances Silver was a passenger in a railroad car that during a trip was detached and sat for almost four hours at the yard in Cleveland. Frances, who had a circulatory ailment known as Raynaud's disease, sued the defendant railroad for the ill effects she received from the car being too cold. The porter testified about the condition of the car, but was not allowed to testify that 11 other passengers in the card did not complain about the car being too cold. Does the hearsay rule exclude testimony of the absence of an out-of-court assertion to prove the negative of the thing that was not asserted? Held No. This is an area in which the trial judge has discretion, and if it can be shown that the other passengers were awake, were under the same conditions as Frances, and had access to the porter, the lack of complaints as to the car's conditions could be introduced to show that the car was not too cold.

United States v. Brown, United States Court of Appeals, Fifth Circuit, 1977, 548 F.2d 1194

Defendant Amos P. Brown, Sr., a part-time income tax preparer, was convicted of falsifying tax returns. The government had introduced testimony of IRS agent Adrienne Peacock, who testified that between 90% and 95% of about 160 returns Amos prepared contained overstated deductions. Should Adrienne's testimony have been allowed? Held No; the testimony is hearsay. To determine that the deductions were overstated, Adrienne would have had to talked to the individual taxpayers and compared what they said they gave Amos with what was on the forms. The testimony of the taxpayers is hearsay, as they cannot come to court to be cross-examined about what figures they claim to have given Amos. Dissent But Adrienne did not cite the testimony of anyone else—she only indicated personal knowledge she had come to obtain through her audit, and that's not hearsay, even if it rests on hearsay.

Soles v. State, Supreme Court of Florida, 1929, 97 Fla. 61, 119 So. 791

Arthur Robinson and Jesse Jackson were out with a young boy, Clifford Long, looking for whisky for Arthur (or pretending to do so) when they heard a shot fired. They got in the car and drove away, when another shot was fired and hit Clifford in the back of the head. The boy's father and sister both testified that about 15 minutes later—an hour before his death—the boy told his father, "Oh, Daddy! Carl Soles shot me with a 22 rifle. I have got to die." The judge allowed this hearsay as a dying declaration, but the defense wanted to add a jury instruction to the effect that, if the jury determined that the boy didn't know his death was imminent, they should disregard the dying declaration. Should such a limiting jury instruction be given? Held No. The court determines the admissibility of the evidence, and the jury determines its credibility. It is for the judge to decide whether the dying declaration exception to hearsay applies—here, whether the boy had knowledge of imminent death. Once the evidence is admitted, the jury may determine whether they believe the evidence, even if they decide, contrary to what the judge determined, that the boy had no knowledge of impending death.

Truck Insurance Exchange v. Michling, Supreme Court of Texas, 1963, 364 S.W.2d 172

Hugo Michling staggered out of his car, pale with his eyes batting, and told his wife that during the day the bulldozer he was driving slipped off the hill and he hit his head on an iron bar across the seat. He died at the hospital about a month later from a cerebral hemorrhage. Should Hugo's wife's testimony of Hugo's statement be admitted into evidence despite the rule against hearsay becaue of the "excited utterance" exception? Held No. As Wigmore explains, the exception requires (1) an occurrence startling enough to produce excitement, (2) a small time between the occurrence and the statement that leave inadequate time to contemplate misrepresentation, and (3) an utterance related to the occurance. Here there is no evidence of the occurrence other than the statement itself—there were no witnesses, and a brain hemorrhage can be caused by things other than a blow to the head. The statement cannot be used to prove an occurrence on which the statement itself relies to fall under the the exception and be introduced, as this would be circular reasoning.

Booth v. State, Maryland Court of Appeals, 1986, 306 Md. 313, 508 A.2d 976

John E. Booth was convicted of the murder and robbery of James Edward ("Pie") Ross. At trial, Regina Harrison testified that she telephoned Ross between 5:00pm and 6:00pm on the day of the murder and he said he was getting ready for dinner. Regina heard his door open and, when she asked him, he said that his company, Brenda, was talking to some guy behind the door. Other evidence pointed to Ross as the person behind the door. Should Regina have been allowed to testify about Ross' out-of-court assertion? Held Yes, the presence sense impression exception to the hearsay rule allows testimony of a statement describing a present sense contemporaneous or nearly so with the event it describes. The theory, like that of excited utterances, is that the contemporaneity of the event leaves little time for reflection and fabrication. A majority of states and the Federal Rules of Evidence 803(1) allow the present sense impression exception. Can the statements be conclusions? Held Yes, the statements themselves may be conclusions because insufficient time has elapsed to allow contemplation, but present in-court conclusions about the statements or circumstances are not allowed for the same reasons. Must the present sense impression be corroborated with an independent and equally percipient witness? Held No, this court doesn't require such a corroboration to introduce the evidence under this exception, although such a corroboration or other extrinsic evidence may be necessary to lend weight to the testimony and convince the jury. Sometimes extrinsic evidence is required to show that the statement was in fact contemporaneous or that the speaker was percipient, however.

Lira v. Albert Einstein Medical Center, Superior Court of Pennsylvania, 1989, 384 Pa.Super. 503, 559 A.2d 550

Plaintiffs Jose and Bonnie Lira sued the defendant Medical Center for injuring Bonnie when a nasogastric tube was inserted into her throat. Jose testified that, when he took Bonnie to Dr. Silberman, an ear, nose, and throat specialist, the doctor exclaimed, "Who's the butcher who [did] this?" Dr. Silberman did not testify. A new trial was awarded because the hearsay statement was allowed. Did the statement fall under the excited utterance exception to hearsay? Held No, the declarant was a doctor and looks at people's throats all the time. It cannot be said that Dr. Silberman was shocked and overcome by emotion by seeing someone's throat. Did the statement fall under the present sense impression exception to hearsay? Held No, for such an exception the event must be startling and cause the declarant to say something without time for reflection. There was no evidence that Dr. Silberman's reaction was "instinctive rather than deliberative"— it was instead "an expression of opinion based on medical training and experience." When experts give opinions, they must be present to be cross-examined.

Reed v. McCord, Court of Appeals of New York, 1899, 160 N.Y. 330, 54 N.E. 737

The plaintiff's estate sued the defendant for negligence for injuries caused to the plaintiff. A stenographer for the board of coroners testifed that the defendant, while before the coroner, testified that the machine that caused the plaintiff's death did not have a latch properly fastened. The defendant objects to introduction of the evidence because the defendant was not present at the time of the accident, and could only have heard from others about the sitution. Held The information is admissible. In a civil action, any material admission by the defendant is admissible on the theory that one would not have an incentive to fabricate information against onesself. Here the defendant did not say that he had heard how the accident happened—that would have been hearsay—but he admitted how the accident happened, and that's admissible.

United States v. Hoosier, United States Court of Appeals, Sixth Circuit, 1976, 542 F.2d 687

Defendant told his friend Robert Rogers that he was going to rob a bank. Three weeks after a bank was robbed, Rogers saw defendant and his girlfriend, and noted defendant's money and diamond rings. The girlfriend exclaimed, "That ain't nothing, you should have seen the money we had in the hotel room," and spoke of "sacks of money." Should the girlfriend's testimony be excluded as hearsay? Held No. FRE 801(d)(2)(B) allows evidence to be intorduced of one adopting or acquiescing in the statement of another. One must evaluate silence on the basis of human nature. Here, based upon the circumstances, especially having told Rogers before that he would rob a bank, it is likely defendant would have denied the girlfriend's statement if it wasn't true. Should silence as admission be allowed even though this is a criminal case, and the FRE 801 notes that one may be advised to keep silent? Held Yes. Here there are no due process problems because, in the presence of only the friend and girlfriend, it is unlikely the defendant's silence was due to advice of counsel.

State v. Carlson, Supreme Court of Oregon, En Bane, 1991, 311 Or. 201, 808 P.2d 1002

Defendant was charged with illegal possession of a controlled substance, methamphetamine, and for endangering the welfare of a minor. Police had already searched defendant's home with the permission of his wife, Lisa, and had found traces methamphetamine in the bedroom, when police and Lisa stopped defendant in the parking lot. When defendant claimed that marks on his arm were from working on a car, Lisa retorted, "You liar, you got them from shooting up in the bedroom with all your stupid friends." In response, defendant "hung his head and shook his head back and forth." The prosecution tried to enter into evidence this conduct as an adoptive admission under OEC 801(4)(b)(B). The defense claims that the conduct was not an admission but a rejection of the wife's accusation because "he did not see any benefit in arguing with an irrational, mentally ill and angry woman," as the court put it. Is the intent of the defendant to adopt or reject a statement by actions a preliminary question of fact for the judge to decide, or a question of preliminary relevancy for the jury to decide? Held Whether a person's actions are intended as an adoptive admission is a preliminary question of fact on the competancy of which the judge must rule as a prerequisite to its being introduced. Allowing the jury to decide on its relevancy would defeat the purpose of the hearsay rule, as the jury would need to somehow forget about the information if they decided that the intent for an adoptive admission was not present.

Mahlandt v. Wild Canid Survival & Research Center, Inc., United States Court of Appeals, Eighth Circuit, 1978, 588 F.2d 626

Defendant Mr. Poos worked for defendant Wild Canid Survival & Research Center, and kept a friendly wolf, Sophie, at his house. Three-year-old Daniel walked by, climbed under the fence, and upon his screams was seen with the wolf on top of him. His cuts could have been wolf bites or scrapes from the fence. Shortly after, Mr. Poos left a note for Mr. Sexton, president of the Center, saying that "Sophie bit a child…." Later Mr. Poos met Mr. Sexton and told him the same thing. The Center had a directors' meeting without Mr. Poos and discussed "the legal aspects of the incident of Sophie biting the child." Does FRE 801(d)(2)(D) imply that a declarant have personal knowledge of the event, excluding Mr. Poos' statements of admission? Held No, it merely requires evidence that the declarant, in this case Mr. Poos, had formed an opinion. Here Mr. Poos didn't say that he had heard that Sophie bit a child, but that she actually had bit a child. Is Mr. Poos' statements introducable against the Center? Held Yes, they were made while Mr. Poos was an agent of the Center, within the scope of his agency. Are the statements by the Center's officers admissible against the Center? Held Yes, they were official representatives of the Center acting in their capacity as representatives. Are the testimonies of the Center's officers admissible against Mr. Poos? Held No, Mr. Poos did not attend the meeting and there is no relationship to justify admitting the evidence of the directors' meeting against Mr. Poos if he wasn't there.

United States v. Doerr, United States Court of Appeals, Seventh Circuit, 1989, 886 F.2d 944

Worldwide Enterprises, Incorporated owned a nude dance club and a massage parlor, and appellants were charged with an unlawful prostitution conspiracy using the facilities of interstate commerce. Robert Myer, a frequent customer of one of the clubs, testified that in a conversation with Mr. Pixley, who worked at the club, Mr. Pixley had said that the previous installation of a red curtain in the back was asking for problems with the police. John Patrick Doerr, who worked at the club as manager and doorman, testified how his half-brother Dale had laughed at him, saying that he couldn't believe John didn't know what was going on at the club. Was Robert Meyers' testimony of Mr. Pixley's out of court statement introducable against Meyers under the FRE 801(d)(2)(E) hearsay exception as a statement in furtherance of a conspiracy? Held No. The "in furtherance of the conspiracy" requirement of this rule requires more than narrative declarations and "idle chatter". Mr. Pixley's comments were nothing more than a narrative discusion of a past event. Were Dale's out-of-court statements to John introducable against John as an exception to hearsay in furtherance of a conspiracy? Held No. Dale's mocking his half-brother's ignorance of the club's illegal activities "cannot be characterized as part of the normal information flow between coconspirators and in no way furthered the ends of the conspiracy."

Travelers Fire Insurance Co. v. Wright, Supreme Court of Oklahoma, 1958, 322 P.2d 417, 70 A.L.R.2d 1170

Plaintiffs J.B. and J.C. Wright sued their insurance company to recover from a fire. The defendant insurance company claims J.B. set the fire and called witnesses Wm. Holland Eppler and Albert Brown, who invoked their constitutional privilege against self-incrimination. Each witness had testified against J.B. at a previous criminal trial involving the fire. Should the testimonies of witnesses from a criminal trial be introduced into evidence if they are not available at a civil trial? Held Yes. To prevent injustice, testimony from a former trial may be introduced in a subsequent proceeding if (1) the testimony of the witness is unavailable, (2) there was an opportunity to cross-examine at the former trial, (3) there is a substantial identity of issue, and (4) the parties are the same. Here the testimony is unavailable because the witnesses are invoking their Fifth Amendment privilege, J.B. was allowed to cross-examine, the issue is the same, and J.B. and the insurance company are the same parties. Aren't there different issues, because a criminal trial is to resolve guilt, and a civil trial is to resolve property? Held No. "Guilt" and "property" may be the ultimate issues, but the issue involving the testimony is whether J.B. set the fire. Is the party requirement met, even though J.C. was not present at the criminal trial? Held Yes. J.B. had the same incentive to cross-examine the witnesses as J.C. would have, and J.B. had the same interests as J.C. to rigorously cross-examine them. The insurance policy doesn't allow payment if either party committed arson, so the issue had appropriate cross-examination even though J.C. wasn't present at the criminal trial. That the state and not the insurance company were J.B.'s adversary during the criminal trial is irrelevant, as J.B. would have had an equal opportunity to cross-examine in both cases.

G.M. McKelvey Co. v. General Casualty Co. of America, Supreme Court of Ohio, 1957, 166 Ohio St. 401, 2 O.0.2d 345, 142 N.E.2d 854

Plaintiff employer sued defendant insurance company to collect on a policy against defalcations by employees. No employees could be found within the jurisdiction, but plaintiff sought to introduce written and signed confessions of embezzlement by the employees. Should such written confeesions be introduced, despite the hearsay rule because they are declarations against one's interests? Held Yes. An out-of-court declaration against one's interest of one not a party or in privity to a party is allowed if (1) the declarant is dead or unavailable, (2) the declarant had a peculiar means of knowing the stated facts, (3) the declaration was against the declarant's pecuniary or proprietary interest, and (4) the declarant had no motive to falsify the information. Here the declarant couldn't be found within the jurisdiction; an embezzler knows whether he/she embezzled; it's not in an embezzler's interests to confess; and there's no evidence that the declarants had a motive to falsify the information.

United States v. Barrett, United States Court of Appeals, First Circuit, 1976, 539 F.2d 244

Barrett, whose nickname was "Bucky", was accused of stealing a stamp collection. Ben Tilley was allegedly a co-conspirator of Bucky, but he died before the trial. "Buzzy" Adams testified at trial for the government in exchange for immunity. Defense witness James Melvin attempted to testify that at a card game, Tilley told him that Buzzy, and not Bucky, took part in the theft. The prosecution claims that the statement doesn't meet the hearsay exception of statement against interest because, although the entire statement might have implicated Tilley, the part about whether it was Buzzy or Bucky didn't incriminate Tilley. Held The implication by his knowledge that Tilley was involved was sufficiently against his interest and was sufficiently integrated into the party about Buzzy or Bucky as to meet the "against the interest" requirement of the hearsay exception. Should the hearsay be introduced as an exception of a statement against interest, even though the statement was incriminatory of the declarant? Held Maybe. The Federal Rules are suspicious of hearsay against one's penal interest that shift the blame from the defendant to the out-of-court declarant. As such, FRE Rule 804(b)(3) requires statements tending to expose the declarant to criminal liability and exculpate the accused to have corroborating circumstances that clearly indicate the trustworthiness of the statement. The trial judge should have realized that the statement was against the interest of the declarant, and then should have went on to determine whether there were sufficient corroborating circumstances—beyond minimal corroboration—as to clearly indicate that Tilley's statement was trustworthy.

Adkins v. Brett, Supreme Court of California, 1920, 184 Cal. 252,193 P. 251

The defendant was accused of alienating the affections of the wife of the plaintiff. Previous conversations between plaintiff and his wife were introduced in which the wife stated that she had went automobile riding with the defendant, dined with him, and received flowers from him. She indicated that the plaintiff was distasteful to her and that she would continue to accept the defendant's attentions. Are the wife's statements admissible under the hearsay rule? Held Yes; it is well established that an exception to the hearsay rule is that relevant statements showing the feelings of the declarant's feelings are admissible. Here the statements indicate the wife's feelings towards her husband. As the statements are also offered as proofs of the actions to which they refer, such as automobile-riding, should they be excluded? Held No. If a statement is competent as to one purpose, the fact that it may not meet the evidentiary standard for another purpose will not preclude it from being offered. Were adequate instructions given to the jury? Held No. If there is risk to the defendant that the jury will not distinguish between the uses of the evidence without instruction, the defendant deserves that adequate instructions be given to the jury (or, if alternate, less-prejudicial evidence is available, the inadmissibility of the evidence at the discretion of the judge). Here the defendant was not properly protected by such an instruction.

Mutual Life Insurance Co. of New York v. Hillmon, Supreme Court of the United States, 1892, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706

Sallie Hillman sued two insurance companies to claim the life insurance policy of her husband, John Hillmon, whose body was supposedly found at Crooked Creek. Defendants claimed that the body was really that of Walters, and offered as evidence two letters by Walters, one to his sister and one to his fiance, stating his intention to go with Hillman to Colorado, where Crooked Creek is located. Does the hearsay rule prevent the introduction of the two letters by Walters? Held No, the state of mind exception to the hearsay rule allows the admission. Walter's intention to visit the area is relevant, as it lends weight to his actually visiting there. The letters convey that intent.

Shepard v. United States, Supreme Court of the United States, 1933, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196

Charles Shepard, a major in the medical corps of the US Army, was accused of poisoning his wife with bichloride of mercury while at Fort Riley, Kansas. The government attempted to introduce testimony by the nurse, who related that the wife asked for a test for the presence of poison in the whiskey she had drank, and then added that "Dr. Shepard has poisoned me." Although the statement is inadmissible under the hearsay rule as proof that Dr. Shepard murdered his wife, is it admissible under the state of mind exception to rebut the defendant's suggestion that the wife was suicidal? Held No. First, the government at the trial offered the evidence only as proof of the matter asserted, and only on appeal attempted to suggest a state of mind exception to hearsay; changing the reason for admission at such a late point catches the defendant off guard and makes the trial unfair. Secondly, the accusation itself would "drown [out]" in the minds of the jury the shaky purpose of rebuttal of suicidal tendencies, and this would be too prejudicial. Rather than indicating a present intention as in Hillmon, the conversation reflects the memory of a past action and, as this is farther than the courts want to stretch the state of mind exception, is completely hearsay.

Zippo Manufacturing Co. v. Rogers Imports, Inc., United States District Court, Southern District of New York, 1963, 216 F.Supp. 670

Zippo had been selling cigarette lighters with a distinctive shape for years, producing more units than any other domestic lighter manufacturer. Its "slim-lighter" model makes up 25% of its sales. Defendant Rogers produced a similar lighter, and Zippo began receiving Rogers lighters for repair from customers believing them to be Zippo lighters. Zippo sued Rogers for patent infringement and unfair competition, the latter of which required proof that a copied feature of a lighter—here, it's shape—had acquired a "secondary meaning" identifying the manufacturer in the public's mind. The plaintiff attempted to introduce surveys it had a third party conduct that attempted to represent the 115,000,000 smoking population of the United States, asking participants if they recognized the Zippo and Rogers lighters, although they weren't named. Does introduction of the surveys constitute hearsay? Held No, it is well established that properly conducted surveys may introduced, although the authorities disagree as to why. (1) Some argue that the statement is not introduced to prove the thing asserted—that the lighters are or are not Zippo lighters—but others argue that the inference is being proved, and this depends on the sincerety of the declarant. (2) Regardless of whether the surveys meet the classic definition of hearsay, they are admissible because of the state of mind exception to hearsay, as they represent the belief of the declarants. (3) Even if the surveys did not fall within the state of mind exception, some have allowed surveys because of their necessity at trial and their trustworthiness. Under this explanation, there's no other practical way to find the opinions of 115,000,000 and approach the accuracy of the survey. If conducted properly, the survey does not fall prey to the usual deficiencies of hearsay because declarants have no incentive to falsify their answers; faulty memory is not an issue because the declarants answer immediately after seeing the lighters, and danger of faulty narration is low because simple answers are called for.

Baker v. State, Court of Special Appeals of Maryland, 1977, 35 MdApp. 593, 371 A.2d 699

Teretha McNeil Baker was accused of first-degree murder and robbery of Gaither Martin. Before Gaither died, he told Officer Bolton that he picked up three women, that another man came and pulled him out of the car, and that the three women got out and started beating him. Officer Hucke called Officer Bolton to say that he had picked up a suspect, so before going to the hospital Officer Bolton took Gaither to see the defendant suspect. The defendant claims that the victim claimed the defendant was not one of those who attacked and robbed him, but on the stand Officer Bolton did not remember if he took the victim to see the defendant. The defendant asked Officer Bolton to read a report filed by Officer Hucke and another officer to see if it would refresh Officer Bolton's memory. Is the witness allowed to read a report made by another person to try to refresh his memory? Held Yes, the Present Recollection Revived/Refreshed rule not as strict as the Past Recollection Recorded rule. The latter actually introduces the recording into evidence, and requires that (1) the record was made by the witness when he/she had a recollection of the event, and (2) the witness can presently vouch that when the document was recorded the witness knew that it was accurate. Present Recollection Revived, however, does not introduce the object into evidence, and doesn't even require a writing—the object can even be a song. If a writing, it doesn't have to be by the witness, but could be by Hemmingway, for that matter. Anything that may "trigger the Proustian moment" is permissible, if it refreshes the memory and allows the witness to then testify from memory. (The other side is allowed to cross examine the witness to see if his/her memory is really refreshed.)

Adams v. The New York Central Railroad Co., Court of Common Pleas, Cuyahoga County, Cleveland, Ohio, 1961, Docket No. 724,072

[The trial court, seemingly erroneously, rejected the defendant's request that a witness read a Past Recollection Recorded because the witness' memory was not refreshed by the recordation.]

Johnson v. Lutz, Court of Appeals of New York, 1930, 253 N.Y. 124, 170 N.E. 517

In a wrongful death action concerning a collision of a motorcycle with a truck, the defendant tried to introduce a police report of the event under 374-a of the Civil Practice Act. Should the police report, detailing statements by those present at the accident, be introduced as a business record? Held No. The business record rule, which allows admission of records regularly made in the course of a business, was enacted into legislation to ease the formal requirements of entry of records the business world relies on. It was not made to allow the introduction of hearsay. Here, the officer's entry was not made in the regular course of his business, and the police officer was not present at the time of the accident. The officer only recorded hearsay statements of those present when the accident occurred, and does not state whether those people saw the accident or how they knew the information.

Williams v. Alexander, Court of Appeals of New York, 1955, 309 N.Y. 283, 129 N.E.2d 417

Defendant Alexander's car struck plaintiff Dessi Williams as she crossed an intersection with the light. The plaintiff claims the car ignored the light; the defendant contends that he brought his car to a complete stop and another car struck him from behind, propelling him into defendant. Defendant seeks to introduce a record written by the doctor who examined the plaintiff at the hospital that indicates the defendant, upon arriving at the hospital, told the doctor that a car hit another car, which hit her. Should the doctor's written report of the plaintiff's description of the accident be admitted under the business records exception to the hearsay rule? Held No. The business records exception was created by the legislature to harmonize the standard used by the courts with those in the business world, allowing introduction of records produced in the regular course of business. In essence, the court can trust the documents if those at the business trust the documents. The business of a hospital is to diagnose and treat patients. Assignment of fault of the automobile driver has no bearing on diagnosis and treatment, and so the recordation was not made in the regular course of business for the hospital. Dissent This shouldn't be about the business record exception—the plaintiff, by introducing the records, accepted their validity, and the statement should be admitted as an extra-judicial statement against interest. Even if the business records exception did apply, the records overall meet the criteria; they have already been introduced—by the plaintiff, in fact—, and the plaintiff's description of the accident should be allowed as part of the overall records.

Palmer v. Hoffman, Supreme Court of the United States, 1943, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645

A suit involved an accident at a railroad crossing, and the defendant tried to introduce a statement by the train engineer, who had died before the trial, that the engineer had made in an interview with a freight office of petitioners. Should the engineer's statement be introduced as a business records exception to the hearsay rule? Held No. Althouh the railroad made it an action of "regular course" to record statements of accidents, this function was only ancillary to the business of running a railroad. The business records exception allows statements because they are regularly recorded information on which those in the business rely. These statements were recorded, not for running a railroad, but for use in court. If they were considered records of the regular course of business, every company would make it a regular course to record their version of events to be used in court. "Regular course of business" refers to recordations concerning the inherent nature of the business and systematically employed for the conduct of a business as a business.

Lewis v. Baker, United States Court of Appeals, Second Circuit, 1975, 526 F.2d 470

Plaintiff Clifford J. Lewis was a freight brakeman in the Penn Central freight yard in Morrisville, Pennsylvania. Plaintiff testified that he climbed onto a boxcar, tested the break, and started moving the car, after which the brakes failed and he jumped from the car, injuring his knee. There were no witnesses. The defendant claims that inspections before and after the accident reveal the brakes to be in good working order, and asserts that the plaintiff forgot to set the brake, panicked, and jumped off the car. The defendant introduced into evidence a "personal injury report" and an "inspection report", both required by the ICC, prepared by Cambell and Zuchero, the former of whom was now out of the court's jurisdiction and the latter of whom was dead. Should the inspection reports be introduced under the business reports excpetion to hearsay? Held Yes. These reports were required by the government and had a purpose of preventing future accidents, and were thus made as part of the regular course of the railroad business. Unlike Palmer v. Hoffman, these records were not created primarily to further the business, not with an eye towards defending a litigation, and the person involved in the accident did not participate.

Yates v. Bair Transport, Inc., United States District Court, Southern District of New York, 1965, 249 F.Supp. 681

The plaintiff was injured during the course of employment and offered into evidence reports of doctors from plaintiff's insurance company as well as those of doctors from the Workmen's Compensation Board, rather than calling the physicians themselves. The Workmen's Compensation Law requires such reports. May the reports be introduced into evidence as regular business reports? Held No. These reports were created (a) by plaintiff's physicians (b) with an eye towards litigation, which leaves nothing to give them an air of trustworthiness. (The reports might be allowed if they had been prepared by defendant's doctors and the defendant wanted to introduce them, and they might be allowed if the plaintiff's doctors had prepared them in a self-serving way in compliance with legislation, yet not in anticipation of litigation.)

City and County of San Francisco v. Superior Court, Supreme Court of California, 1951, 37 Cal.2d 227, 231 P.2d 26, 25 A.L.R.2d 1418

James Hession sued the City and County of San Francisco and the Western Pacific Railroad Company, saying that he had suffered injury to the head. Dr. Joseph Catton examined him and gave the results to Hession's attorney. City and County asked Dr. Catton about what he had discovered, but Dr. Catton refused to answer. Does the attorney-client privilege prevent the court from compelling Dr. Catton to testify? Held Yes. The attorney-client privilege prevents an attorney, without the permission of the client, from being examined as to any communication between the attorney and client if the client intended the communication to be secret. The privilege applies to the attorney's secretaries and clerks, as well as to any agents of the attorney or client. Here the physician was acting as an agent to assist the client in communicating the client's condition to the attorney.

Clark v. State, Court of Criminal Appeals, Texas, 1953, 159 Tex.Cr.R. 187, 261 S.W.2d 339, Cert, denied 346 U.S. 855, 905, 74 S.Ct. 69(3), 217(2), 98 L.Ed. 369, 404

The day of his divorce settlement, defendant Clark killed his ex-wife and then called his attorney, saying the he had "went to the extremes" and "killed her". The attorney told him to get rid of the weapon. Telephone operator Marjorie Bartz eavesdropped on the conversation. Does the attorney-client privilege protect an eavesdropping telephone operator? Held No. The privilege protects the attorney and client in confidential communication for public policy reasons but, as Wigmore says, "not a whit more"—it should be strictly contstrued, as it is a derogation from the duty of testimony in the first place. The means of preserving secrecy is entirely within the client's hands. Review The attorney's advice to get rid of the weapon was moreover not legal advice, but advice on how to evade arrest. This makes the attorney an accessory to a crime, which means the communication was not in the legitimate course of preparing a legal defense, so the communication is not protected by the attorney-client privilege.

Trammel v. United States, Supreme Court of the United States, 1980, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186

Otis Trammel and his wife Elizabeth, along with Edwin Lee Roberts and Joseph Freeman, smuggled heroin from Thailand and the Phillippines to California. Elizabeth was caught at customs in Hawaii, and agreed to testify against her husband in exchange for leniency. Can Otis use the privilege against adverse spousal testimony to prevent the testimony of his wife regarding his actions, as upheld in Hawkins v. United States? Held No, as FRE 501 allows the privilege to be re-examined, the privilege is hereby abandoned and Hawkins is overruled. The privilege against adverse spousal testimony, which, as Hawkins explains, "bars the testimony of one spouse against the other unless both consent," was originally created under medieval notions that a wife did not have a separate legal existence from her husband; modern society rejects that notion. The other reason for the privilege was to promote harmony within a marriage, but if one spouse is willing to testify against the other, the harmony is probably gone already. The testifying spouse now has sole discretion over whether to testify against the other spouse as to his/her actions. (Abandoning the privilege against adverse spousal testimony, which had prevented testimony of acts and communications in the presence of third parties, leaves intact the independent rule protecting confidential marital communications.)

Varcoe v. Lee, Supreme Court of California, 1919, 180 Cal. 338, 181 P. 223

The plaintiff father's daughter was killed when the defendant ran over her in an autmobile near 21st and Mission in San Francisco while going over 15 miles per hour. Motor Vehicle Act § 22(b) (St. 1913, p. 639) set the speed limit in a business district, defined as territory contiguous to a public highway and mainly built up with structures devoted to business, at 15 miles per hour. The judge instructed the jury that 21st and Mission is a business district. Should whether the location constitutes a business section have been submitted to the jury? Held No, the judge was allowed to take judicial notice of the fact. A court may take judicial notice of a fact when (1) the fact is one of common knowledge (2) within the jurisdiction of the court, and (3) the matter must be practically beyond dispute. If there is any question, it must be submitted to the jury. In this case, the section on Mission between 20th and 22nd is without a business district and has been for years; and this is common and general knowledge in San Francisco.

State v. Lawrence, Supreme Court of Utah, 1951, 120 Utah 323, 234 P.2d 600

The defendant was charged with grand larceny of a car. In Utah grand larceny requires, among other things, that the stolen item be worth more than $50. The automobile was described, but no evidence was taken as to the value of the car. Is the judge allowed to instruct the jury that the value of the car is over $50, and that if the defendant is guilty at all, he is guilty of grand larceny? Held Crockett: No. Whether the car is worth more than $50 is an element of the crime. Without any evidence introduced as to its value the judge may not instruct the jury on the matter, as this would in a way depriving the defendant of the right to a jury. (The judge might take judicial notice that the car was worth more than $50, but this only removes the need to submit evidence on that point—the jury may still decide differently.) Dissent Wolfe: A judge may take judicial notice in a criminal trial just as well as in a civil trial, and there are no statutes or precedent that says the judge may not take notice of an element of the crime. Here it is common knowledge that a 1947 two-door Ford sedan was in 1950 worth substantially more than $50, and the judge took judicial note of it, communicating it to the jury. The jury still could determine the ultimate guilt or innocence of the defendant—whether or not the defendant actually stole the car.

State v. Odom, Supreme Court of New Jersey, 1989, 116 N.J. 65, 560 A.2d 1198

Police executed a search warrant in the attic apartment of Ernest Odom and C.W, a minor, and found 18 vials of cocaine in a pillowcase on the bed. Odom was charged with possession of a controlled substance with intent to distribute. Detective Tierney, who had testified over 1,000 times as an expert, testified that a hypothetical sitution, in which the vials of cocaine were found without paraphernalia, indicated that the person in question intended to distribute the drugs. Was the expert testimony proper? Held Yes. Expert testimony is proper not only if a subject matter is unknown but also if the expert has some peculiar knowledge not common to the world which can assist the jury. Here Detective Tierney's experience in many other drug busts allowed him to better know the conditions common for one intending to distribute. Did the expert testimony on intent, an element of the crime, encroach on the jury's ultimate responsibility on determining guilt? Held No. The expert testimony did not directly state that the defendant was guilty; it only referred to a hypothetical fact situation that happened to encompass an element of the crime in a general setting expressed in ordinary language. There was no undue recitiation of the language of the statutory offense.

Daubert v. Merrell Dow Pharmaceuticals, Inc., Supreme Court of the United States, 1993, 509 U.S. 579

Jason Daubert and Eric Schuller, minor children with major birth defects, sued the defendant claiming that their birth defects were caused by their mothers' ingestion of Bendectin, a prescription anti-nausea drug marketed by respondent. Defendants asked for summary judgment, as their experts claimed that all the literature, research, and tests of Bendectin showed no evidence of harm to a fetus. Plaintiffs brought their own experts, who claimed that they had re-assessed published test results and performed new, unpublished in vitro and in vivo experiments that had indicated a link between the drug and birth defects. Should the defendant's request for summary judgment be granted because the new, unpublished experiments do not have "general acceptance" in the scientific community, not having been subjected to peer review? Held Blackmun: No. The "general acceptance" test from Frye v. United States, 54 App.D.C. 46 (1923) has been replaced by FRE 702, which allows testimony by an expert about (1) any scientific knowledge that (2) will assist the trier of fact. To determine if testimony meets this criteria, the judge must look at whether the theory or technique can be tested, whether it has been subject to peer review, its error rate, and whether it has "general acceptance." Under the FRE lack of "general acceptance" is not dispositive. FRE 702 provides a flexible rule that focuses on scientific validity of principles and methodology, not the conclusions they generate.

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Copyright © 2003 Garret Wilson