General Evidence Thread Forum

[northwood]

Hypo:

Old man gets injured in household appliance accident. Wound gets infected. Gets worse. His attorney and daughter (who was there) collaborate to write out an affidavit describing the incident in detail. The old man reads the affidavit to a video camera, attests to its truthfulness, and signs the affidavit. Later he dies.

1. Estate, suing the company that made the product on defective product tort stuff, wants to introduce the video.

2. They also want to introduce the signed affidavit.

Already worked through this one, curious if y'all get the same stuff.

ITT: We Practice Evidence.

Just a quick glance - haven't gone over my evidence thoroughly yet.

Dying declaration is the most obvious way to try to get it in. He'll certainly qualify as unavailable to testify. I don't think he'll qualify, though, as a dying declarant. The statement must be made under belief of imminent death, which is kind of borderline here. You can make an argument either way here.

Could you get it in via recorded reflection? The transcript wouldn't not be admitted as evidence, but the jury could watch the video?

possibly with a limiting instruction?

I dunno.. this is just my guess. I appreciate this thread, as I have an Evidence Final in a week, and I haven't started studying for it yet ( still have a paper and 2 other finals to power through before this one), and I wanted to tag this thread without the "tag" post/ and check for basic understanding.

[Ded Precedent]

Declarant Unavailable 804(a)(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; +

Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

^Really depends on whether declarant thought his death was imminent.

Right?

[First Offense]

Declarant Unavailable 804(a)(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; +

Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

^Really depends on whether declarant thought his death was imminent.

Right?

I know the prof - he loves "gray areas". Argue both and you'll get the points. He gives zero shits about your conclusion, just spot that there's a fork and argue why either is possible and that a judge could rule either way.

[northwood]

Declarant Unavailable 804(a)(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; +

Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

^Really depends on whether declarant thought his death was imminent.

Right?

yes. but i also believe that the defendant has to then actually die within a reasonable timeframe from making this statement.

[kay2016]

Declarant Unavailable 804(a)(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; +

Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

^Really depends on whether declarant thought his death was imminent.

Right?

yes. but i also believe that the defendant has to then actually die within a reasonable timeframe from making this statement.

I don't think they actually have to die... If they're convinced they're going to die, have no hope etc and say something, but then go into a coma instead of dying.. It still comes in

[hous]

I have another hypo.

Background: We all know about limited admissibility and how if a statement is used for some other purpose than to prove the fact of the matter asserted it can be introduced into evidence. The classic example is a witness overhears a mechanic tell the defendant, "your brake's are bad." This statement is not admissible to prove the defendants brakes were bad BUT it is admissible to show he was on notice that his brakes needed to be replaced. Correct?

What if the mechanics statement was, "I'm putting you on notice that your brakes must be replaced now." would it still be admissible to prove notice? I suspect it doesn't matter.

What if after the defendant left the garage, another witness only overheard the mechanic say to another, "I told defendant that he had to replace his brakes but he didn't listen."

[A. Nony Mouse]

Guy goes to mechanic to get brakes replaced. Guy gets in an accident and sues mechanic for faulty work. Guy calls mechanics assistant to testify. Mechanics assistant will testify that on the day of replacement he heard the mechanic say, "I really messed that one up, I forgot to replace the brake pads."

Is this an admission? Is it admissible?

Seems like it is, but I was out that week and am just looking at a friends notes. He didn't specifically answer but he went on about prior inconsistent statements and why Guy doesn't have to lay a foundation to present prior inconsistent statements. Kind of confused.

His notes say, "its not an PIS, it is admissible."

Any help?

But if it's an excited utterance, present sense pression or present state of mind, wouldn't that trump the prior inconsistent statement card? 0L asking here.

I'm actually pretty sure you're right (it's not even clear that there's a more recent statement with which the "I messed up" statement conflicts, though I guess you could assume the mechanic's going to testify he did everything flawlessly). But also keep in mind that 0Ls are not supposed to post in this forum, and 0Ls should not post in response to questions about class material.

[Ded Precedent]

I have another hypo.

Background: We all know about limited admissibility and how if a statement is used for some other purpose than to prove the fact of the matter asserted it can be introduced into evidence. The classic example is a witness overhears a mechanic tell the defendant, "your brake's are bad." This statement is not admissible to prove the defendants brakes were bad BUT it is admissible to show he was on notice that his brakes needed to be replaced. Correct?

What if the mechanics statement was, "I'm putting you on notice that your brakes must be replaced now." would it still be admissible to prove notice? I suspect it doesn't matter.

What if after the defendant left the garage, another witness only overheard the mechanic say to another, "I told defendant that he had to replace his brakes but he didn't listen."

I would say both of those statements would be admissible to show the D was on notice.

[hous]

I have another hypo.

Background: We all know about limited admissibility and how if a statement is used for some other purpose than to prove the fact of the matter asserted it can be introduced into evidence. The classic example is a witness overhears a mechanic tell the defendant, "your brake's are bad." This statement is not admissible to prove the defendants brakes were bad BUT it is admissible to show he was on notice that his brakes needed to be replaced. Correct?

What if the mechanics statement was, "I'm putting you on notice that your brakes must be replaced now." would it still be admissible to prove notice? I suspect it doesn't matter.

What if after the defendant left the garage, another witness only overheard the mechanic say to another, "I told defendant that he had to replace his brakes but he didn't listen."

I would say both of those statements would be admissible to show the D was on notice.

What about the third? It seems unreliable to me. Is that hearsay within hearsay? What would we do with such a statement since we aren't applying the hearsay within hearsay standard (since we aren't trying to get it in through an exception)?

[nygrrrl]

Declarant Unavailable 804(a)(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; +

Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

^Really depends on whether declarant thought his death was imminent.

Right?

yes. but i also believe that the defendant has to then actually die within a reasonable timeframe from making this statement.

Ya, I don't think you get dying declaration: the person has to believe that death is imminent.
But you DO get 804(a)(4) (he's dead) so you have the first prong but not the second (any of the exceptions under 804(b)). Let's see... What about 803(3)? State of Mind? Could you make an argument using an exception that doesn't depend on the W's availability? Under State of Mind you can use a statement to show the W's then-existing physical condition... so you could use it to show how sick he was, but not to prove up his testimony about the accident? (N.B. I just finished my last take home and started studying for this one, this morning. Meaning, I might as well be a crow, picking shiny things out of the air.)

[transferror]

Hypo:

Old man gets injured in household appliance accident. Wound gets infected. Gets worse. His attorney and daughter (who was there) collaborate to write out an affidavit describing the incident in detail. The old man reads the affidavit to a video camera, attests to its truthfulness, and signs the affidavit. Later he dies.

1. Estate, suing the company that made the product on defective product tort stuff, wants to introduce the video.

2. They also want to introduce the signed affidavit.

Already worked through this one, curious if y'all get the same stuff.

ITT: We Practice Evidence.

Aside from the impending death stuff, you could try the residual exception since the only reason it can't fall under the "former testimony" exception under 804 is the fact that it was affidavit instead of deposition (with opp. counsel present), but it was still made under oath (presumably reliable) and there isn't a better way to hear his story of the events.

[First Offense]

Hypo:

Old man gets injured in household appliance accident. Wound gets infected. Gets worse. His attorney and daughter (who was there) collaborate to write out an affidavit describing the incident in detail. The old man reads the affidavit to a video camera, attests to its truthfulness, and signs the affidavit. Later he dies.

1. Estate, suing the company that made the product on defective product tort stuff, wants to introduce the video.

2. They also want to introduce the signed affidavit.

Already worked through this one, curious if y'all get the same stuff.

ITT: We Practice Evidence.

Aside from the impending death stuff, you could try the residual exception since the only reason it can't fall under the "former testimony" exception under 804 is the fact that it was affidavit instead of deposition (with opp. counsel present), but it was still made under oath (presumably reliable) and there isn't a better way to hear his story of the events.

Yeah - was thinking residual exception may work - my notes say it's often used as a "near miss" - this may qualify.

[hous]

OK. So I made this a general evidence thread.

This question deals with impeaching witnesses. Do prior convictions have to go the trustworthiness of the witness to be admissible to impeach their credibility?

Hypo: Peter sues Debbie for negligence. Peter alleges Debbie ran a red light and struck his car as he was going through an intersection. Debbie calls Walter to testify. Walter testifies that he perceived that Debbie had a green light when she struck Peters car. On cross-examination, Peter wants to impeach the credibility of Walter by introducing a conviction he had for felony assault 7 years earlier. Debbie's counsel objects.

What result?

[northwood]

OK. So I made this a general evidence thread.

This question deals with impeaching witnesses. Do prior convictions have to go the trustworthiness of the witness to be admissible to impeach their credibility?

Hypo: Peter sues Debbie for negligence. Peter alleges Debbie ran a red light and struck his car as he was going through an intersection. Debbie calls Walter to testify. Walter testifies that he perceived that Debbie had a green light when she struck Peters car. On cross-examination, Peter wants to impeach the credibility of Walter by introducing a conviction he had for felony assault 7 years earlier. Debbie's counsel objects.

What result?

I dont think you can use past acts to prove character. 404(b). but under 609- (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. However, as a felony assault, it may be more difficult to meet this test, a assault typically does not involve dishoesty or false statements.. But if the witness was convicted of something that inolved dishonesty or false statements then it would be admitted under rule 609.

[hous]

My understanding of 609 is that ANY felony conviction is admissible to impeach the credibility of the witness BUT it is subject to either 403 (as in this hypo - in my opinion) or the internal balancing test of 609 (if the defendant is the witness).

I think the crime (or act) only requires an element of dishonesty when its not felony.

So I think the court would do a 403 balancing to see if the probative value of the conviction outweighs the unfair prejudice.

Question, does relevancy play a part in this?

[northwood]

i dont know... All i do know is that i know pretty much nothing about evidence ( and am screwed for this final)

[A. Nony Mouse]

My understanding of 609 is that ANY felony conviction is admissible to impeach the credibility of the witness BUT it is subject to either 403 (as in this hypo - in my opinion) or the internal balancing test of 609 (if the defendant is the witness).

I think the crime (or act) only requires an element of dishonesty when its not felony.

So I think the court would do a 403 balancing to see if the probative value of the conviction outweighs the unfair prejudice.

Question, does relevancy play a part in this?

Relevancy always plays a part. The first question for admission of any evidence is whether a piece of evidence is relevant. In this case (and I'm pretty sure you're right above), witness credibility is always relevant, so on those grounds, a felony conviction is always going to come in. Unfair prejudice is a bigger deal - say, for instance, your witness is the guy who happened to be standing on the street corner and saw the defendant run the red light and hit plaintiff. You find out the witness has been convicted of child porn. It's relevant in that it goes to credibility, but jurors are likely to be so turned off by a child porn conviction, they won't believe ANYTHING the guy says. In that case, it's likely that the witness would get asked about his felony conviction, but the nature of the offense would be excluded, because the unfair prejudice of what people think of child porn possessors would outweigh the probative value of what a felony conviction shows about credibility. Sometimes it seems like it's about relevance (e.g. child porn isn't relevant to observing a car accident), but if it's about impeaching a witness, it's not - it's unfair prejudice.

(Counter example: defendant is charged with starting a bar fight, government wants to put on witness who says defendant did it, witness has 7 previous convictions for assault stemming from bar rights, defense wants the convictions to come in. For the purpose of impeaching the witness, the convictions are relevant and the issue is unfair prejudice. But the defense might also want the convictions to come in to say that the guilty party was actually the witness, not the defendant. That's for a substantive purpose and leads to a different analysis under 404, going to whether those bad acts can come in as evidence of motive, intent, knowledge, etc.)

(I think.)

[hous]

Is this hearsay within hearsay?

"Oh my gosh, Daryl ran a red light and hit that car. Everyone has been telling him to stop drinking and driving."

Is the second part hearsay within hearsay?

[First Offense]

Is this hearsay within hearsay?

"Oh my gosh, Daryl ran a red light and hit that car. Everyone has been telling him to stop drinking and driving."

Is the second part hearsay within hearsay?

Im not even sure it's hearsay. Is it for the truth of the matter or is it to show habit/character?

[transferror]

Is this hearsay within hearsay?

"Oh my gosh, Daryl ran a red light and hit that car. Everyone has been telling him to stop drinking and driving."

Is the second part hearsay within hearsay?

Yep, but a weird example of h w/in h.

[2807]

Is this hearsay within hearsay?

"Oh my gosh, Daryl ran a red light and hit that car. Everyone has been telling him to stop drinking and driving."

Is the second part hearsay within hearsay?

Im not even sure it's hearsay. Is it for the truth of the matter or is it to show habit/character?

Here is a clearer example of the issue:

"Oh my gosh, Daryl ran a red light and hit that car. Bob said he has been telling him to stop drinking and driving."

The use of "everyone" is a little challenging. But the argument would likely be the same for the parties for/against admission of the statement

By "everyone" you may be into character/reputation evidence

[victortsoi]

can someone give me the down low on prior inconsistent statements under the FRE?

[hous]

can someone give me the down low on prior inconsistent statements under the FRE?

My understanding:

If witness testifies to something that is inconsistent with a statement they made at an earlier date then you can impeach their credibility with it. You do this by crossing them and asking them if they made the statement. If you have a copy you must present it to the witness. If they still deny it you will have to move on, it's not admissible into evidence unless the statement was made under oath.

[victortsoi]

Thanks. And, on prior bad acts....Lets say someone has been accused of starting fires before, and is now on trial for starting a fire. Under 405, you can't bring in EITHER a conviction or accusation of fire starting to prove conformity with the instant case. But if the D was convicted, can you ask him about it during cross examination under 609?

[transferror]

Thanks. And, on prior bad acts....Lets say someone has been accused of starting fires before, and is now on trial for starting a fire. Under 405, you can't bring in EITHER a conviction or accusation of fire starting to prove conformity with the instant case. But if the D was convicted, can you ask him about it during cross examination under 609?

405? That's proving character by reputation or opinion (I believe). Generally 404(a) applies to victims, 404(b) applies to defendants, and 607, 608 and 609 apply to other witnesses. If the defendant is on trial for starting a fire, a prior conviction or accusation of fire starting is not admissible unless it is offered for something under than action and conformity (the exceptions in 404). I don't think you can cross a defendant based on 609, since 404(b) applies to defendants and 609 only applies to other witnesses.