Hearsay Question

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Giddy-Up
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Re: Hearsay Question

Postby Giddy-Up » Wed Jul 20, 2011 9:38 pm

If the person testifying is basing his testimony on first hand knowledge, then the best evidence rule is not applicable

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A'nold
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Re: Hearsay Question

Postby A'nold » Wed Jul 20, 2011 9:46 pm

Giddy-Up wrote:If the person testifying is basing his testimony on first hand knowledge, then the best evidence rule is not applicable

Why not? Say there is an issue about the person being a drug abuser. The date would show that the user got the prescription on that date and had taken a certain amount of drugs by the time the officer found the pill bottle in the drawer. Then, the accused drug user throws the bottle away. Wouldn't the officer's recollection fall under an exception to the best evidence rule?

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Tanicius
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Re: Hearsay Question

Postby Tanicius » Wed Jul 20, 2011 9:47 pm

A'nold wrote:
Giddy-Up wrote:If the person testifying is basing his testimony on first hand knowledge, then the best evidence rule is not applicable

Why not? Say there is an issue about the person being a drug abuser. The date would show that the user got the prescription on that date and had taken a certain amount of drugs by the time the officer found the pill bottle in the drawer. Then, the accused drug user throws the bottle away. Wouldn't the officer's recollection fall under an exception to the best evidence rule?


Best evidence only concerns authentication, not hearsay itself.

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A'nold
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Re: Hearsay Question

Postby A'nold » Wed Jul 20, 2011 9:50 pm

Tanicius wrote:
A'nold wrote:
Giddy-Up wrote:If the person testifying is basing his testimony on first hand knowledge, then the best evidence rule is not applicable

Why not? Say there is an issue about the person being a drug abuser. The date would show that the user got the prescription on that date and had taken a certain amount of drugs by the time the officer found the pill bottle in the drawer. Then, the accused drug user throws the bottle away. Wouldn't the officer's recollection fall under an exception to the best evidence rule?


Best evidence only concerns authentication, not hearsay itself.

So the state would be screwed is what you are saying? Any other kinds of relevant exceptions to this form of hearsay?

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zanda
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Re: Hearsay Question

Postby zanda » Wed Jul 20, 2011 9:55 pm

A'nold wrote:
Tanicius wrote:
A'nold wrote:
Giddy-Up wrote:If the person testifying is basing his testimony on first hand knowledge, then the best evidence rule is not applicable

Why not? Say there is an issue about the person being a drug abuser. The date would show that the user got the prescription on that date and had taken a certain amount of drugs by the time the officer found the pill bottle in the drawer. Then, the accused drug user throws the bottle away. Wouldn't the officer's recollection fall under an exception to the best evidence rule?


Best evidence only concerns authentication, not hearsay itself.

So the state would be screwed is what you are saying? Any other kinds of relevant exceptions to this form of hearsay?

807 residual exception? I think medicine labels are pretty reliable, and there doesn't seem to be a better way to get the evidence.

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A'nold
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Re: Hearsay Question

Postby A'nold » Wed Jul 20, 2011 10:01 pm

A'nold wrote:
Tanicius wrote:
A'nold wrote:
Giddy-Up wrote:Why not? Say there is an issue about the person being a drug abuser. The date would show that the user got the prescription on that date and had taken a certain amount of drugs by the time the officer found the pill bottle in the drawer. Then, the accused drug user throws the bottle away. Wouldn't the officer's recollection fall under an exception to the best evidence rule?


Best evidence only concerns authentication, not hearsay itself.

So the state would be screwed is what you are saying? Any other kinds of relevant exceptions to this form of hearsay?

807 residual exception? I think medicine labels are pretty reliable, and there doesn't seem to be a better way to get the evidence.

Thanks. I guess it's time to look over the rules again.

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Tanicius
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Re: Hearsay Question

Postby Tanicius » Wed Jul 20, 2011 10:12 pm

zanda wrote:
A'nold wrote:
Tanicius wrote:Best evidence only concerns authentication, not hearsay itself.

So the state would be screwed is what you are saying? Any other kinds of relevant exceptions to this form of hearsay?

807 residual exception? I think medicine labels are pretty reliable, and there doesn't seem to be a better way to get the evidence.



Wow, that's an awesome rule. Never came across it before because college mock trial omits it from the FRE. Reading its requirements I think a medicine label would suffice. It certainly seems like the best chance you have, A'nold.

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A'nold
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Re: Hearsay Question

Postby A'nold » Wed Jul 20, 2011 10:22 pm

Tanicius wrote:
zanda wrote:
A'nold wrote:
Tanicius wrote:Best evidence only concerns authentication, not hearsay itself.

So the state would be screwed is what you are saying? Any other kinds of relevant exceptions to this form of hearsay?

807 residual exception? I think medicine labels are pretty reliable, and there doesn't seem to be a better way to get the evidence.



Wow, that's an awesome rule. Never came across it before because college mock trial omits it from the FRE. Reading its requirements I think a medicine label would suffice. It certainly seems like the best chance you have, A'nold.

Haha, the state doesn't seem to have this rule.

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Tanicius
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Re: Hearsay Question

Postby Tanicius » Wed Jul 20, 2011 10:23 pm

A'nold wrote:
Tanicius wrote:Wow, that's an awesome rule. Never came across it before because college mock trial omits it from the FRE. Reading its requirements I think a medicine label would suffice. It certainly seems like the best chance you have, A'nold.

Haha, the state doesn't seem to have this rule.



Argue 801 then and say it's a reliable enough piece of evidence. By the way, 803 is an illustrative set of exceptions, not a conclusive list.

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A'nold
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Re: Hearsay Question

Postby A'nold » Wed Jul 20, 2011 10:44 pm

Tanicius wrote:
A'nold wrote:
Tanicius wrote:Wow, that's an awesome rule. Never came across it before because college mock trial omits it from the FRE. Reading its requirements I think a medicine label would suffice. It certainly seems like the best chance you have, A'nold.

Haha, the state doesn't seem to have this rule.



Argue 801 then and say it's a reliable enough piece of evidence. By the way, 803 is an illustrative set of exceptions, not a conclusive list.

Yep, looks like the argument is an exception not specifically listed. Case law?

Thanks for all the comments guys.

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zanda
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Re: Hearsay Question

Postby zanda » Wed Jul 20, 2011 10:45 pm

yeah, I remember my evidence professor saying a lot of the states don't have a residual exception because they fear it would be the end of the hearsay rule.

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A'nold
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Re: Hearsay Question

Postby A'nold » Wed Jul 20, 2011 10:48 pm

zanda wrote:yeah, I remember my evidence professor saying a lot of the states don't have a residual exception because they fear it would be the end of the hearsay rule.

Interesting.

NotMyRealName09
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Re: Hearsay Question

Postby NotMyRealName09 » Thu Jul 21, 2011 12:40 am

Hehe, this is awesome, hearsay is confusing, but I think you are all over thinking.

Let's say the date the pills were prescribed was X, and the pharmacist wrote X on the bottle. X. If the officer is asked, "what date where the pills prescribed," if he testified that the date the pills were prescibed was X, that is hearsay - he doesn't know that from personal knowledge, he would be testifying as to what someone else wrote. Objection - hearsay - sustained.

Then you rephrase, "what date did you see on the bottle," he could testify that he saw X. He isn't testifying as to the date the pills were prescribed, but merely what he saw.

It's all about how you ask the question, but I stand by my original answer. Overruled.

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Tanicius
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Re: Hearsay Question

Postby Tanicius » Thu Jul 21, 2011 12:52 am

NotMyRealName09 wrote:Hehe, this is awesome, hearsay is confusing, but I think you are all over thinking.

Let's say the date the pills were prescribed was X, and the pharmacist wrote X on the bottle. X. If the officer is asked, "what date where the pills prescribed," if he testified that the date the pills were prescibed was X, that is hearsay - he doesn't know that from personal knowledge, he would be testifying as to what someone else wrote. Objection - hearsay - sustained.

Then you rephrase, "what date did you see on the bottle," he could testify that he saw X. He isn't testifying as to the date the pills were prescribed, but merely what he saw.

It's all about how you ask the question, but I stand by my original answer. Overruled.



That might work with some judges and it might not. It's still hearsay. To go back to the audio version of hearsay, you can't just skip over it by doing this:

"So what date did you hear uttered from the person's mouth?"

"January 15."


That's still hearsay. There is an assertion inherent in the fact being relayed by someone other than the person with knowledge. It would be one thing if the thing you saw wasn't an assertion. Obviously I cop can testify to the color of a house he entered, because that isn't an assertion that was made by someone else.

redsox4lyfe
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Re: Hearsay Question

Postby redsox4lyfe » Thu Jul 21, 2011 9:06 am

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Last edited by redsox4lyfe on Sat Jul 07, 2012 12:20 am, edited 1 time in total.

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Tanicius
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Re: Hearsay Question

Postby Tanicius » Thu Jul 21, 2011 9:51 am

redsox4lyfe wrote:
Tanicius wrote:That might work with some judges and it might not. It's still hearsay. To go back to the audio version of hearsay, you can't just skip over it by doing this:

"So what date did you hear uttered from the person's mouth?"

"January 15."


It is not hearsay unless it is being offered to prove the truth of what was uttered. I don't think people are saying you can get around hearsay by asking the types of questions you keep listing to try to prove the truth of the matter asserted. But if all you want to prove is that the date on the bottle is X (for some relevant reason) or that "January 15" was in fact said (for some relevant reason), both are admissible, and neither is hearsay.


What exactly are you offering the claim "January 15" for if not for the truth of the matter asserted? Are you alleging that the date is "true" and should be weighed as evidence that the defendant owned a bottle of pills that were age X? Then it is hearsay.

redsox4lyfe
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Re: Hearsay Question

Postby redsox4lyfe » Thu Jul 21, 2011 10:46 am

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Last edited by redsox4lyfe on Sat Jul 07, 2012 12:20 am, edited 1 time in total.

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Tanicius
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Re: Hearsay Question

Postby Tanicius » Thu Jul 21, 2011 12:53 pm

redsox4lyfe wrote:
Tanicius wrote:What exactly are you offering the claim "January 15" for if not for the truth of the matter asserted? Are you alleging that the date is "true" and should be weighed as evidence that the defendant owned a bottle of pills that were age X? Then it is hearsay.


No. For a different reason, like effect on the listener, or if the date on the bottle was at issue for some reason. If you asked the person what day it was, and they said "January 15" when it was in fact March 15, that could be relevant for reasons other than the truth of the person's statement. And would not be hearsay if offered for a separate, relevant reason.


That is not the situation for A'nold's case.

redsox4lyfe
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Re: Hearsay Question

Postby redsox4lyfe » Thu Jul 21, 2011 12:56 pm

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Last edited by redsox4lyfe on Sat Jul 07, 2012 12:21 am, edited 1 time in total.

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leobowski
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Re: Hearsay Question

Postby leobowski » Fri Jul 22, 2011 1:58 am

Defense objects as hearsay. It's hearsay. Only relevant to show someone was not the ultimate user of a valid prescription if the date is accurate. The date is offered to show the defendant didn't have the valid prescription. So its relevance depends on itrs truth and there is no independent legal effect. Hearsay.

State claims 803(6) business record exception. This is made by a pharmacy as a usual course of business right at the time of the transaction, and probably made by a pharmacist or pharm tech. Not made by an outsider. 803 hearsay exception, objection overruled.

Defense object under best evidence rule. State claims GF destruction of evidence, 1004 exception. Cop lies on the stand or makes something up. Objection overruled. Done.

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Tanicius
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Re: Hearsay Question

Postby Tanicius » Fri Jul 22, 2011 9:02 am

leobowski wrote:Defense objects as hearsay. It's hearsay. Only relevant to show someone was not the ultimate user of a valid prescription if the date is accurate. The date is offered to show the defendant didn't have the valid prescription. So its relevance depends on itrs truth and there is no independent legal effect. Hearsay.

State claims 803(6) business record exception. This is made by a pharmacy as a usual course of business right at the time of the transaction, and probably made by a pharmacist or pharm tech. Not made by an outsider. 803 hearsay exception, objection overruled.

Defense object under best evidence rule. State claims GF destruction of evidence, 1004 exception. Cop lies on the stand or makes something up. Objection overruled. Done.


:shock:

The foundation for 803.6 isn't gonna be there. I also would not advise a cop to make anything up, or worst of all, commit perjury in order to get a guilty verdict for the sake of a guilty verdict.

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leobowski
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Re: Hearsay Question

Postby leobowski » Fri Jul 22, 2011 1:24 pm

Tanicius wrote:
leobowski wrote:Defense objects as hearsay. It's hearsay. Only relevant to show someone was not the ultimate user of a valid prescription if the date is accurate. The date is offered to show the defendant didn't have the valid prescription. So its relevance depends on itrs truth and there is no independent legal effect. Hearsay.

State claims 803(6) business record exception. This is made by a pharmacy as a usual course of business right at the time of the transaction, and probably made by a pharmacist or pharm tech. Not made by an outsider. 803 hearsay exception, objection overruled.

Defense object under best evidence rule. State claims GF destruction of evidence, 1004 exception. Cop lies on the stand or makes something up. Objection overruled. Done.


:shock:

The foundation for 803.6 isn't gonna be there. I also would not advise a cop to make anything up, or worst of all, commit perjury in order to get a guilty verdict for the sake of a guilty verdict.



You could call the pharmacist, pharm tech, or pharmacy owner to lay the foundation. And cops lie on the stand all the time, especially when they sit with the prosecutor instead of being sequestered. I certainly wouldn't suborn perjury, but it happens.

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Tanicius
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Re: Hearsay Question

Postby Tanicius » Fri Jul 22, 2011 3:39 pm

leobowski wrote:
Tanicius wrote:
leobowski wrote:Defense objects as hearsay. It's hearsay. Only relevant to show someone was not the ultimate user of a valid prescription if the date is accurate. The date is offered to show the defendant didn't have the valid prescription. So its relevance depends on itrs truth and there is no independent legal effect. Hearsay.

State claims 803(6) business record exception. This is made by a pharmacy as a usual course of business right at the time of the transaction, and probably made by a pharmacist or pharm tech. Not made by an outsider. 803 hearsay exception, objection overruled.

Defense object under best evidence rule. State claims GF destruction of evidence, 1004 exception. Cop lies on the stand or makes something up. Objection overruled. Done.


:shock:

The foundation for 803.6 isn't gonna be there. I also would not advise a cop to make anything up, or worst of all, commit perjury in order to get a guilty verdict for the sake of a guilty verdict.



You could call the pharmacist, pharm tech, or pharmacy owner to lay the foundation. And cops lie on the stand all the time, especially when they sit with the prosecutor instead of being sequestered. I certainly wouldn't suborn perjury, but it happens.


It's hard to call the pharmacist to talk about a pill bottle that no one has anymore. What would you tell the pharmacist? "So a bottle of a specific type of medication that was supposedly manufactured on Date X... Think you know about it?"

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leobowski
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Re: Hearsay Question

Postby leobowski » Fri Jul 22, 2011 4:02 pm

Tanicius wrote:
leobowski wrote:
Tanicius wrote:
leobowski wrote:Defense objects as hearsay. It's hearsay. Only relevant to show someone was not the ultimate user of a valid prescription if the date is accurate. The date is offered to show the defendant didn't have the valid prescription. So its relevance depends on itrs truth and there is no independent legal effect. Hearsay.

State claims 803(6) business record exception. This is made by a pharmacy as a usual course of business right at the time of the transaction, and probably made by a pharmacist or pharm tech. Not made by an outsider. 803 hearsay exception, objection overruled.

Defense object under best evidence rule. State claims GF destruction of evidence, 1004 exception. Cop lies on the stand or makes something up. Objection overruled. Done.


:shock:

The foundation for 803.6 isn't gonna be there. I also would not advise a cop to make anything up, or worst of all, commit perjury in order to get a guilty verdict for the sake of a guilty verdict.



You could call the pharmacist, pharm tech, or pharmacy owner to lay the foundation. And cops lie on the stand all the time, especially when they sit with the prosecutor instead of being sequestered. I certainly wouldn't suborn perjury, but it happens.


It's hard to call the pharmacist to talk about a pill bottle that no one has anymore. What would you tell the pharmacist? "So a bottle of a specific type of medication that was supposedly manufactured on Date X... Think you know about it?"



If they can testify generally about the dating procedure, that would probably survive any personal knowledge objections. State lab crime lab techs do this all the time when they talk about testing procedures in DUI and drug cases. They don't remember exactly what they did that specific time, but testifying generally about protocol that is followed every time is adequate.

The loss of the actual bottle does raises some significant chain of custody issues as to authentication though. I hadn't thought about that before.

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Tanicius
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Re: Hearsay Question

Postby Tanicius » Fri Jul 22, 2011 4:46 pm

leobowski wrote:
Tanicius wrote:It's hard to call the pharmacist to talk about a pill bottle that no one has anymore. What would you tell the pharmacist? "So a bottle of a specific type of medication that was supposedly manufactured on Date X... Think you know about it?"



If they can testify generally about the dating procedure, that would probably survive any personal knowledge objections. State lab crime lab techs do this all the time when they talk about testing procedures in DUI and drug cases. They don't remember exactly what they did that specific time, but testifying generally about protocol that is followed every time is adequate.

The loss of the actual bottle does raises some significant chain of custody issues as to authentication though. I hadn't thought about that before.



The accuracy of the information contained on the bottle is a necessary requirement for foundation of 803.6. The custodian has to be in possession of the record and be able to verify the record's legitimacy until they testify about it.




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