Evidence

20 April

• Finishing up Walstad. Wisconsin's superficially different standard for the admission of expert testimony. It sets out a relevance standard, and nothing but a relevance standard. It's a little bit of a strange case, because most of it is not about expert opinion, so it's surprising that it is so important. The federal standard (from Daubert and Kumho Tire) is relevance + reliability. In WI, the court seems to indicate that we want to admit all relevant testimony: experts, after all, may conflict. But can reliability ever be taken out of the picture?

  Consider the sniffing-dog problem posed at the end of the last class. Usually you get the owner/trainer testifying, and most often these are not law enforcement people (or at least they are doing this on the side): LEAs rent the dogs' services. So they'll talk about the dog's training regimen, how the dog is rewarded, and so on. They anthropomorphize like crazy, and are not forthcoming about error rates.

  Note that in Zapata the dog alerted in houses that the defendant had lived in (4) over the previous 30 years, and a rental car and a storage unit: did this support the conclusion that he had stored his wife's body and moved it? The handler testifies that in her opinion, human remains were at some point located in each of these 6 locations. Trivia: the term "cadaver dog" is a misnomer-- the dogs sniff only human remains: could be hair, teeth, fluid, etc., and not necessarily a dead person (e.g., blood from your bloody nose, etc.). So the dog is not a dead body detector: it's a decomposing human material detector. Anyway, is that testimony admissible under Walstad?

  Well, clearly, having a dead body in his basement would be a material fact. And this makes it more likely (assuming the dog really alerted, and alerts have some worthwhile meaning), so it's relevant. But if the dog is not accurate, how is this relevant? In order to make a material fact somewhat more likely, in other words, there has to be some measure of reliability. Also, note that there are two actors involved here: the dog alerting, and the handler interpreting what is an alert-- so do we have a truly blind test? Was the handler told that law enforcement expected to find remains here?

  Would testimony via Ouija board be admissible under Walstad? Relevance just has to turn on some notion of reliability. Evidence has to assist the jury. So it's different from the Daubert explicit formulation, but it's not as though WI escapes reliability entirely.

  Patrick Fiedler was the judge in Zapata, and he excluded the testimony of the dog handlers, because they had such a high apparent error rate. This is a very close call, though, and not all judges might rule the same way.

• 150 questions on the exam. You can have up to five explanations. There will be an electronic answer sheet. Memorizing rule numbers will not be important.

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• What is hearsay?
  • A Statement: oral or written assertion, or nonverbal conduct intended as an assertion (pointing, shaking head, nodding, etc.). Note: non-assertions are not hearsay. Utterances like "zowie" or questions, etc., are not assertions (well, rhetorical questions might be assertive).
  • Made outside of court: or not under oath (actually, more specific: here and now in this jury's presence, so statements on deposition or in other trials are "out of court" for this qualification). Out of the presence of the current factfinder. Although technically depositions for this trial get re-defined as non-hearsay in 801(d)(1)(a), and can therefor be offered for their truth. That's kind of common-sense.
  • Offered to prove the truth of the matter asserted: the matter asserted in the statement. If it's not offered to prove the truth of the matter asserted, it's not hearsay, but it still has to be relevant. So, for impeachment, for example (rule 613: prior inconsistent statement). Prior inconsistent statements aren't offered for their truth, but rather to undermine the credibility of a present statement. That's slicing the salami pretty thin...
• Generally, hearsay is inadmissible: 802. But then we have exceptions: 803, 804, and 807. So it's not admissible, except when it is. This happens ALL THE TIME: if you can't find an exception to the hearsay rule, you are not trying. In reality, the exclusion of hearsay is the exception, and admission is the rule.
• Common themes for exceptions
  • Rule 803: doesn't matter if the declarant is unavailable; the circumstances make it doubtful that the statement is unreliable. These are the "reliability" exceptions, and there are 23 of them.
  • Rule 804: declarant is unavailable (if the declarant is available, these exceptions are not); they're less reliable than we'd want, but it's just too important to exclude. These are the "necessity" exceptions, and there are 5 of them.
  • Rule 807: the residual exception. See Stevens for an exploration of the scope. This used to be part of 804 and 803, but then they got re-grouped just for the sake of consistency. "The elastic waistband of the hearsay pants."
• The most important and most fearsome exception is 803(6): business records

22 April

• Going through all the exceptions one by one is tedious: read Lillu. Instead, we're going to cover a few of them, talk about Zapata, hit some highlights, and then talk about a couple of issues: 805, and confrontation issues.
• Remeber: 6A is for criminal cases only.
• So, starting with 803, the dominant theme here is reliability.
  • 803(3): statement of existing mental, emotional, or physical condition. Spontaneous self-reporting is supposed to make this reliable. There's some chance of fabrication, but evidence isn't required to be certain. Same thing with excited utterance: no time to calculate the lie.
  • 803(5): past recollection recorded. Again, the recordation was made when the impression was fresh, so there'd be less probability that it's fabricated. Two SCOTUS cases from the 1940s (cited in Lilly) point out that a memorandum made in contemplation of litigation isn't either a business record or a past recollection recorded. If you're contemplating litigation, you're likely to skew things in your favor. (Hickman v. Taylor). A past recollection recorded is unlike any other hearsay exception in that the writing does not itself come into evidence. This is something that many lawyers and judges don't understand: if you've tried to refresh recollection under 612, and that fails, you can resort to the past recorded recollection as a surrogate for live testimony. You just read it in (at least the relevant part). It's a 3rd-string replacement for live testimony from a present recollection. Why? we don't want to give it more weight than live testimony: exhibits can actually get taken into the jury room.
  • 803(6),(8): business and public records. This is the most significant hearsay exception these days (just in terms of frequency of invocation). You can think if public records as a subset of business records. The term "business" is so broadly defined that it includes pretty much any public agency (and this breadth is partly responsible for why this exception gets used so often). They're kept separate partly for historical reasons ("the shopbook rule"), and also because there are a couple of restrictions on how public records can be used.

    What do we need, in order to qualify for the exception:

    1. Need to show it's a record
    2. Regular practice to make such a record
    3. Made more or less contemporaneously
    4. Sourced from a person with knowledge (who has a business duty to speak accurately: this is a caselaw addendum). Note here the hotel registration issue in US v. Zapata: the registration form is filled out by the guest, who might have plenty of reasons to lie; still someone at the front desk did have a business duty to verify (the hotel wants to be sure it'll get paid, after all).
    5. Kept (preserved) in the regular course of the business (i.e., it is something that is relied upon)
    6. Qualified witness establishes the above (you hear the phrase "records custodian" here): yes, I recognize this kind of record, it's routine for us to do this, here's how we make it, here's how we keep it, etc.
    7. And no circumstances suggest untrustworthiness.

  • 803(7): exception for the absence of a record. And 803(10) for absence of public records. That one gets used all the time in federal criminal prosecutions: prosecutions for illegal re-entry pretty much unanimously rest on the absence of a public record (i.e., the person is undocumented) to prove an element of the offense. We prove a person's deportation by a prior record, and then we prove the absence of permission to return (the government offers a "certificate of no record" that a search has been conducted, and there's no finding of permission for the person to return).
• Returning, then to public records: 803(8)(B) & (C) have extra meat: in a criminal case, the government can't offer a law enforcement report against the defendant (that's (B)), but the defendant can offer it against the government (C). This is a practical recognition that law enforcement is a competitive business, and we don't want the government trying to prove cases by records that officers have sat and thought about out of court. We want to subject them to cross-examination. On the flip side, since the officer has the duty to be accurate, reports helpful to the defense are admissible (sort of like a statement of a party opponent). In a civil case, either side can use the report: it's presumed that law enforcement has no vested interest in the outcome of the matter.
• The reliability rationale starts to break down in the higher-numbered 803 exceptions, and it starts to look more like necessity. 803(16): ancient documents. Reputation concerning boundaries: 803(20), e.g. We'd prefer to have a survey, but if we don't have one, we have to just go with what's available (it starts at those trees, and goes to the creek). You'd probably never have to worry about this in trial your whole career. The ancient document thing does come up: generally it's a newspaper article more than 20 years old offered to prove the facts in the article. Newspapers weren't any more reliable back then. Note that within our lifetimes, e-mails and blog entries may even turn up as ancient documents. Anyway, a fair percentage of stuff in ancient documents is incorrect, unsurprisingly, but often there's nothing more reliable available.
• Rule 804, and exceptions of necessity. These are kind of fun exceptions. There aren't that many, so their easier to keep track of, and you have to prove unavailability of the witness if you want to use them. Note that there's a list of ways a witness can be unavailable (death, invocation of 5A, persistent refusal, exempt from testifying due to privilege, illness/incapacitation, lack of memory, can't be located, etc.).

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  Lilly makes a great point: we're not really talking about the unavailability of the witness-- the issue is really the unavailability of the witness's testimony. Hearsay, when it comes in, is basically a substitute for live testimony.
  • 804(b)(1): the most common exception-- former testimony. Present testimony would be better, but if we can't have that, we'll take this. A WI example: a state witness testifies at a preliminary hearing, but becomes unavailable by trial time. That testimony can't be offered in WI: at a preliminary hearing, by statute, the right of cross-examination is limited to plausibility (i.e., no challenges to credibility, bias, no impeachment by prior inconsistent statement). So it's inadmissible, assuming that the defendant isn't the reason that the witness is unavailable.
  • 804(b)(3): WI is one of only two jurisdictions that recognize statements against the social interests of the declarant as admissible (ordinarily it's just against penal or pecuniary interest). The assumption here is that you probably wouldn't say things against your own interest unless they're true. This is State v. Stevens: the 11-year-old girl had told her playmate that her father set fire to a building. The 11-year-old is dead by the time of the arson trial, and the prosecution wants to admit the playmate's hearsay. The trial judge admits the testimony, on the theory that the social interest within the family is strong enough that this was a statement against her interests. Ct. App. says no: families are too small a unit and too unpredictable to qualify for this. So the "social interest" has to be in some broader community.
  • 804(b)(2): dying declaration. This is rooted, perhaps, in Catholicism-- we don't expect someone would commit a mortal sin (lying) just before they die. It's a very old exception: used to be lots of people might know they're doomed (by sepsis or whatnot), but still have a fair amount of time when they're lucid. But modern weapons and medicine have made it a little less important: either you die outright, or you're saved. It still arises, though, and it's limited to homicide on the criminal side.
• See (in the syllabus) the materials related to judge Becker. His opinions on business records are incredible research tools. They're not necessarily still good law, but they really point you at a lot of the key materials. They're not fun reading, necessarily, but they are encyclopaedic.
• Scenario: passerby walking through the park, sees diane lying on the ground bleeding, calls 911, paramedics arrive and begin to treat diane, peter is still standing there, and the paramedics ask her what happened (this is standard): "what did those three skinheads have against me? why did they have to stab me? I gave them my wallet." she dies of her wound. The police examine her purse and find that her billfold is missing. The contents are found spilled around nearby. Three white men with shaved heads are apprehended a mile away and put on trial for armed robbery and homicide.

  How do we get this in? Remember that Diane is a declarant.

  • 803(6): paramedic's report. If the paramedic is not available at trial, me have multiple layers of hearsay (805), if both layers have an exception.
  • 804(b)(2): dying declaration. How do we show that she's aware of her impending death? It actually might depend on how much time went by before she died, and it might be very hard to establish that she thought she was dying.
  • 803(1): maybe this is a present sense impression, but that seems a little hazy
  • 803(2): excited utterance
  • 803(4): for treatment; now technically some of these comments might not be directly related to treatment, but she is talking to caregivers-- she has a broad incentive to be truthful with them. But both sides have an argument here
  • 803(3): "why did they have to stab me?" is an expression of an emotional condition-- bewilderment, etc. It's unlikely to be calculated.
  • 807: the residual exception. Whether or not she actually believes she's dying, she's bleeding, she'd dependent on others for help, she says things that the police are able to corroborate without much effort. Never forget the residual exception: it covers new and unconsidered typesof hearsay, but supposedly not near-miss cases. Lilly hates the near-miss rule (i.e., you can't use the residual exception for near misses): it should just be about reliability. WI courts go back and forth about the near-miss rule.
• Res gestae exception: an old term encompassing excited utterance, present sense exception, etc.