General Evidence Thread Forum

[hous]

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?

[Ded Precedent]

I wouldn't look to prior inconsistent statement as a means to get it into court. If the declarant (mechanic) is unavailable you could try to get it in under 804(3) Statement Against Interest.

A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability;

[North]

I'm still shaky on evidence and was just asking for advice myself yesterday, but:

I think the Prior Inconsistent Statement exclusion on ly comes up when you're crossing the person who made the statement -- if the defendant mechanic, on direct, had stated that "he didn't mess that one up and is pretty sure he remembered to put on the brake pads," then the crossing attorney could introduce the hearsay evidence from the other mechanic.

But the problem doesn't make it seem like the defendant mechanic is the one testifying, it's the other mechanic. So, because it's indeed hearsay, the exclusion for Admissions by Party Opponent is the best way to get it in . The hearsay statement was made by the opposing party (the defendant mechanic) in an individual capacity. Under 104(a) review, I think it'd come in easily.

ETA:

If the declarant (mechanic) is unavailable you could try to get it in under 804(3) Statement Against Interest.

Yeah that's good too, I assumed he was available.

ETA2: Forgot that exclusions mean it's not hearsay.

[3|ink]

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?

Unless there are more facts to this pattern, I think your friend was writing about something else. I think prior inconsistent statements come up in two contexts:
1. Impeachment - But this could only be impeachment if the mechanic is now testifying that he didn't screw up the job.
2. Hearsay - But this only works when the prior inconsistent statement was on the record in another proceeding.

This looks like straight-up party admission to me. Which means it isn't hearsay (as opposed to hearsay w/ exemption).

[hous]

Yeah that's what I was thinking.

Plus why would you ever introduce testimony as a PIS when you can get it in as an admission. If its a PIS its only supposed to be used to attack credibility, not as substantive evidence. For instance, if the PIS was your only grounds you would auto-lose if the mechanic-defendant filed a Motion for Directed Verdict since you have no evidence supporting your case.

[hous]

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?

Unless there are more facts to this pattern, I think your friend was writing about something else. I think prior inconsistent statements come up in two contexts:
1. Impeachment - But this could only be impeachment if the mechanic is now testifying that he didn't screw up the job.
2. Hearsay - But this only works when the prior inconsistent statement was on the record in another proceeding.

This looks like straight-up party admission to me. Which means it isn't hearsay (as opposed to hearsay w/ exemption).

That is a good observation.

[transferror]

The statement is, by definition, not hearsay under 801(d)2. A living defendant will almost never qualify under 804(a) as being unavailable, and it doesn't really matter anyway since (I'm pretty sure) 801 would still apply even if the defendant was unavailable.

[hous]

New hypo: Bread truck collides with Pedestrian. Bread truck driver gets out of truck and states he ran a red light. Pedestrian sues bread company and not the driver. Bread company claims this is hearsay, what result?

I think the statement was within the scope of his duties (driving a truck), but I don't know how broad this standard is.

[Ded Precedent]

I'll think about the hypo but where are you getting these? I could use some practice myself to brush up for my summer job. Are these from an E & E or what.

[transferror]

New hypo: Bread truck collides with Pedestrian. Bread truck driver gets out of truck and states he ran a red light. Pedestrian sues bread company and not the driver. Bread company claims this is hearsay, what result?

801(d)2d - statement made by an agent. Driver was acting within the scope of employment when the event and statement occurred.
803(2) - excited utterance, even though you probably wouldn't be able to lay foundation on the driver's state of mind prior to collision, it should be easy to establish that a startling event occurred and the statement was made under stress of the event (especially since the statement was about the event).

Either should work.

[hous]

I'll think about the hypo but where are you getting these? I could use some practice myself to brush up for my summer job. Are these from an E & E or what.

Professor taught us everything through hypos.

[hous]

I have another hypo:

Truck collides with car. Pedestrian witnesses accident and screams, "wow that truck just ran a red light and struck that car." Driver of car was injured.

Can a different witness testify that the declarant-pedestrian made the statement?

[3|ink]

I have another hypo:

Truck collides with car. Pedestrian witnesses accident and screams, "wow that truck just ran a red light and struck that car." Driver of car was injured.

Can a different witness testify that the declarant-pedestrian made the statement?

Yep. Whole point of excited utterance. Deemed reliable.

[hous]

I have another hypo:

Truck collides with car. Pedestrian witnesses accident and screams, "wow that truck just ran a red light and struck that car." Driver of car was injured.

Can a different witness testify that the declarant-pedestrian made the statement?

Yep. Whole point of excited utterance. Deemed reliable.

So it doesn't matter who testifies that it was said in this situation (presuming whomever testifies actually heard it)? Does it ever (without considering privileges and 804 unavailability exceptions)?

[3|ink]

I have another hypo:

Truck collides with car. Pedestrian witnesses accident and screams, "wow that truck just ran a red light and struck that car." Driver of car was injured.

Can a different witness testify that the declarant-pedestrian made the statement?

Yep. Whole point of excited utterance. Deemed reliable.

So it doesn't matter who testifies that it was said in this situation (presuming whomever testifies actually heard it)? Does it ever (without considering privileges and 804 unavailability exceptions)?

No.

First there are the hearsay exemptions. Party admissions, et al.

Second there are the hearsay exceptions for which the declarant must be unavailable.

Lastly, there are the hearsay exceptions that apply regardless of the declarant's availability.

Excited utterances fall into the third class. Therefore, it doesn't matter that the declarant is available to testify.

[hous]

I have another hypo:

Truck collides with car. Pedestrian witnesses accident and screams, "wow that truck just ran a red light and struck that car." Driver of car was injured.

Can a different witness testify that the declarant-pedestrian made the statement?

Yep. Whole point of excited utterance. Deemed reliable.

So it doesn't matter who testifies that it was said in this situation (presuming whomever testifies actually heard it)? Does it ever (without considering privileges and 804 unavailability exceptions)?

No.

First there are the hearsay exemptions. Party admissions, et al.

Second there are the hearsay exceptions for which the declarant must be unavailable.

Lastly, there are the hearsay exceptions that apply regardless of the declarant's availability.

Excited utterances fall into the third class. Therefore, it doesn't matter that the declarant is available to testify.

Perfect, thank you!

[hous]

Where does the limited exception to 803(4), that states statements of fault are admissible for victims of child abuse under the medical diagnosis exception, come from?

[A. Nony Mouse]

Where does the limited exception to 803(4), that states statements of fault are admissible for victims of child abuse under the medical diagnosis exception, come from?

Policy, I think - because making sexually abused children testify in court can be pretty horrible for everyone concerned and we don't want to re-victimize the child, but we really really want to stop child abuse.

[North]

Where does the limited exception to 803(4), that states statements of fault are admissible for victims of child abuse under the medical diagnosis exception, come from?

Policy, I think - because making sexually abused children testify in court can be pretty horrible for everyone concerned and we don't want to re-victimize the child, but we really really want to stop child abuse.

In addition to this, my prof said that the identity of the abuser is reasonably pertinent to the doctor's course of treatment, because removing the child from the abusive situation is part of the treatment for abuse.

[hous]

Where does the limited exception to 803(4), that states statements of fault are admissible for victims of child abuse under the medical diagnosis exception, come from?

Policy, I think - because making sexually abused children testify in court can be pretty horrible for everyone concerned and we don't want to re-victimize the child, but we really really want to stop child abuse.

In addition to this, my prof said that the identity of the abuser is reasonably pertinent to the doctor's course of treatment, because removing the child from the abusive situation is part of the treatment for abuse.

Thanks guys!

[nygrrrl]

Where does the limited exception to 803(4), that states statements of fault are admissible for victims of child abuse under the medical diagnosis exception, come from?

Policy, I think - because making sexually abused children testify in court can be pretty horrible for everyone concerned and we don't want to re-victimize the child, but we really really want to stop child abuse.

In addition to this, my prof said that the identity of the abuser is reasonably pertinent to the doctor's course of treatment, because removing the child from the abusive situation is part of the treatment for abuse.

My prof said similar things.

Also, hous thanks for this thread and keep these coming! Just thinking about as many hypos as possible is helpful to me, right now.

[Ded Precedent]

Yeah post more this is good practice.

[PDaddy]

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 impression or present state of mind, wouldn't that trump the prior inconsistent statement card? 0L asking here.

[North]

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.

[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.

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.