Evidence: Cases and Materials
- Waltz, Park
- 10th Edition
- ISBN: 1587789086
| Page | Case Name | Citation | Court | Audio |
|---|---|---|---|---|
| 79 | Knapp v. State | 168 Ind. 153, 79 N.E. 1076 | Supreme Court of Indiana, 1907 |  Download |
| 81 | Old Chief v. United States | 519 U.S. 172 | Supreme Court of the United States, 1997 | Download |
| 91 | Ballou v. Henri Studios, Inc. | 656 F.2d 1147 | United States Court of Appeals, Fifth Circuit, 1981 | Download |
| 98 | State v. English | 201 N.C. 295, 159 S.E. 318 | Supreme Court of North Carolina, 1931 | Download |
| 106 | Subramaniam v. Public Prosecutor | 100 Solic.Jour. 566 | Judicial Committee of the Privy Council, 1956 | Download |
| 107 | Vinyard v. Vinyard Funeral Home, Inc. | 435 S.W.2d 392 | St. Louis Court of Appeals, Missouri, 1968 | Download |
| 108 | Johnson v. Misericordia Community Hospital | 97 Wis.2d 521, 294 N.W.2d 501 | Court of Appeals of Wisconsin, 1980 | Download |
| 109 | Ries Biologicals, Inc. v. Bank of Santa Fe | 780 F.2d 888 | United States Court of Appeals, Tenth Circuit, 1986 | Download |
| 110 | Fun-Damental Too, Ltd. v. Gemmy Industries Corp. | 111 F.3d 993 | United States Court of Appeals, Second Circuit, 1997 | Download |
| 112 | United States v. Hernandez | 750 F.2d 1256 | United States Court of Appeals, Fifth Circuit, 1985 | Download |
| 114 | United States v. Zenni | 492 F.Supp. 464 | United States District Court, Eastern District of Kentucky, 1980 | Download |
| 119 | Commonwealth v. Knapp | 27 Mass. 477 | Supreme Judicial Court of Massachusetts, 1830 | Download |
| 123 | Silver v. New York Central Railroad | 329 Mass. 14, 105 N.E.2d 923 | Supreme Judicial Court of Massachusetts, Suffolk, 1952 | Download |
| 125 | United States v. Jaramillo-Suarez | 950 F.2d 1378 | United States Court of Appeals, Ninth Circuit, 1991 | Download |
| 127 | United States v. Rhodes | Trial by General Court Martial | Fort McNair, District of Columbia, 1958 | Download |
| 129 | United States v. Brown | 548 F.2d 1194 | United States Court of Appeals, Fifth Circuit, 1977 | Download |
| 131 | City of Webster Groves v. Quick | 323 S.W.2d 386 | St. Louis Court of Appeals, Missouri, 1959 | Download |
| 139 | Soles v. State | 97 Fla. 61, 119 So. 791 | Supreme Court of Florida, 1929 | Download |
| 149 | Truck Insurance Exchange v. Michling | 364 S.W.2d 172 | Supreme Court of Texas, 1963 | Download |
| 152 | Lira v. Albert Einstein Medical Center | 384 Pa.Super. 503, 559 A.2d 550 | Superior Court of Pennsylvania, 1989 | Download |
| 154 | State v. Jones | 311 Md. 23, 532 A.2d 169 | Court of Appeals of Maryland, 1987 | Download |
| 160 | Reed v. McCord | 160 N.Y. 330, 54 N.E. 737 | Court of Appeals of New York, 1899 | Download |
| 161 | United States v. Hoosier | 542 F.2d 687 | United States Court of Appeals, Sixth Circuit, 1976 | Download |
| 164 | State v. Carlson | 311 Or. 201, 808 P.2d 1002 | Supreme Court of Oregon, En Banc, 1991 | Download |
| 168 | Mahlandt v. Wild Canid Survival & Research Center, Inc. | 588 F.2d 626 | United States Court of Appeals, Eighth Circuit, 1978 | Download |
| 172 | Big Mack Trucking Co., Inc. v. Dickerson | 497 S.W.2d 283 | Supreme Court of Texas, 1973 | Download |
| 176 | Sabel v. Mead Johnson & Co. | 737 F.Supp. 135 | United States District Court for the District of Massachusetts, 1990 | Download |
| 178 | United States v. DiDomenico | 78 F.3d 294 | United States Court of Appeals for the Seventh Circuit, 1996 | Download |
| 179 | United States v. Goldberg | 105 F.3d 770 | United States Court of Appeals for the First Circuit, 1997 | Download |
| 180 | United States v. Doerr | 886 F.2d 944 | United States Court of Appeals, Seventh Circuit, 1989 | Download |
| 183 | Bourjaily v. United States | 483 U.S. 171 | Supreme Court of the United States, 1987 | Download |
| 188 | Travelers Fire Insurance Co. v. Wright | 322 P.2d 417 | Supreme Court of Oklahoma, 1958 | Download |
| 194 | United States v. Salerno | 505 U.S. 317 | Supreme Court of the United States, 1992 | Download |
| 200 | G.M. McKelvey Co. v. General Casualty Co. of America | 166 Ohio St. 401, 2 O.O.2d 345, 142 N.E.2d 854 | Supreme Court of Ohio, 1957 | Download |
| 201 | United States v. Barrett | 539 F.2d 244 | United States Court of Appeals, First Circuit, 1976 | Download |
| 206 | Williamson v. United States | 512 U.S. 594 | Supreme Court of the United States, 1994 | Download |
| 210 | Adkins v. Brett | 184 Cal. 252, 193 P. 251 | Supreme Court of California, 1920 | Download |
| 215 | Mutual Life Insurance Co. of New York v. Hillmon | 145 U.S. 285 | Supreme Court of the United States, 1892 | Download |
| 218 | Shepard v. United States | 290 U.S. 96 | Supreme Court of the United States, 1933 | Download |
| 222 | United States v. Pheaster | 544 F.2d 353 | United States Court of Appeals, Ninth Circuit, 1976 | Download |
| 239 | United States v. Owens | 484 U.S. 554 | Supreme Court of the United States, 1988 | Download |
| 257 | United States v. Vigneau | 187 F.3d 70 | United States Court of Appeals for the First Circuit, 1999 | Download |
| 261 | United States v. Duncan | 919 F.2d 981 | United States Court of Appeals, Fifth Circuit, 1990 | Download |
| 263 | Williams v. Alexander | 309 N.Y. 283, 129 N.E.2d 417 | Court of Appeals of New York, 1955 | Download |
| 267 | Hahnemann University Hospital v. Dudnick | 678 A.2d 266 | Superior Court of New Jersey, Appellate Division, 1996 | Download |
| 270 | Palmer v. Hoffman | 318 U.S. 109 | Supreme Court of the United States, 1943 | Download |
| 272 | Lewis v. Baker | 526 F.2d 470 | United States Court of Appeals, Second Circuit, 1975 | Download |
| 277 | Beech Aircraft Corp. v. Rainey | 488 U.S. 153 | Supreme Court of the United States, 1988 | Download |
| 282 | United States v. Oates | 560 F.2d 45 | United States Court of Appeals, Second Circuit, 1977 | |
| 290 | United States v. Grady | 544 F.2d 598 | United States Court of Appeals, Second Circuit, 1976 | Download |
| 292 | Stroud v. Cook | 931 F.Supp. 733 | District of Nevada, 1996 | Download |
| 305 | Turbyfill v. International Harvester Co. | 486 F.Supp. 232 | United States District Court, Eastern District of Michigan, 1980 | Download |
| 307 | United States v. Dent | 984 F.2d 1453 | United States Court of Appeals, Seventh Circuit, 1993 | Download |
| 315 | Ohio v. Roberts | 448 U.S. 56 | Supreme Court of the United States, 1980. | Download |
| 323 | Crawford v. Washington | 541 U.S. 36 | Supreme Court of the United States, 2004 | Download |
| 339 | United States v. Cromer | 389 F.3d 662 | United States Court of Appeals for the Sixth Circuit, 2004. | Download |
| 348 | Key v. State | 173 S.W.3d 72 | Court of Appeals of Texas, Twelfth District, Tyler, 2005. | Download |
| 352 | Chambers v. Mississippi | 410 U.S. 284 | Supreme Court of the United States, 1973. | Download |
| 355 | Green v. Georgia | 442 U.S 95 | Supreme Court of the United States, 1979 | Download |
| 359 | State v. Meeks | 88 P.3d 789 | Supreme Court of Kansas, 2004. | Download |
| 368 | People v. Collins | 68 Cal.2d 319 | Supreme Court of California, 1968. | Download |
| 378 | People v. Mountain | 66 N.Y.2d 197 | Court of Appeals of New York, 1985 | Download |
| 379 | Kammer v. Young | 73 Md.App. 565 | Court of Special Appeals of Maryland, 1987 | Download |
| 384 | Cleghorn v. New York Central & Hudson River Railroad Co. | 56 N.Y. 44 | Court of Appeals of New York, 1874 | Download |
| 387 | Michelson v. United States | 335 U.S. 469 | Supreme Court of the United States, 1948 | Download |
| 406 | United States v. Carrillo | 981 F.2d 772 | United States Court of Appeals, Fifth Circuit, 1993. | Download |
| 411 | United States v. Beasley | 809 F.2d 1273 | United States Court of Appeals, Seventh Circuit, 1987 | Download |
| 418 | United States v. Cunningham | 103 F.3d 553 | United States Court of Appeals, Seventh Circuit, 1996. | Download |
| 421 | Tucker v. State | 82 Nev. 127 | Supreme Court of Nevada, 1966 | Download |
| 422 | Huddleston v. United States | 485 U.S. 681 | Supreme Court of the United States, 1988 | Download |
| 467 | Tuer v. McDonald | 701 A.2d 1101 | Court of Appeals of Maryland, 1997 | Download |
| 494 | United States v. Hogan | 763 F.2d 697 | United States Court of Appeals, Fifth Circuit, 1985 | |
| 506 | United States v. Owens | 21 M.J. 117 | United States Court of Military Appeals, 1985 | Download |
| 516 | United States v. Drake | 932 F.2d 861 | United States Court of Appeals, Tenth Circuit, 1991 | Download |
| 519 | United States v. Saada | 212 F.3d 210 | United States Court of Appeals for the Third Circuit, 2000 | Download |
| 524 | United States v. Sanders | 964 F.2d 295 | United States Court of Appeals, Fourth Circuit, 1992 | Download |
| 686 | Sirico v. Cotto | 67 Misc.2d 636, 324 N.Y.S.2d 483 | Civil Court of the City of New York, 1971 | Download |
| 689 | Herzig v. Swift & Co. | 146 F.2d 444 | United States Court of Appeals, Second Circuit, 1945 | Download |
| 690 | Meyers v. United States | 84 U.S.app.D.C. 101, 171 F.2d 800 | United States Court of Appeals, District of Columbia, 1948 | Download |
| 692 | People v. Enskat | 20 Cal.App.3d Supp. 1, 98 Cal.Rptr. 646 | Appellate Department, Superior Court, Los Angeles County, California, 1971 | Download |
| 695 | United States v. Dockins | 986 F.2d 888 | United States Court of Appeals, Fifth Circuit, 1993 | Download |
| 697 | First State Bank of Denton v. Maryland Casualty Co. | 918 F.2d 38 | United States Court of Appeals, Fifth Circuit, 1990 | Download |
| 700 | Hill v. Skinner | 81 Ohio App. 375, 79 N.E.2d 787 | Court of Appeals of Ohio, 1947 | Download |
| 709 | State ex rel. Collins v. Superior Court | 132 Ariz. 180, 644 P.2d 1266 | Supreme Court of Arizona, 1982 | Download |
| 719 | Rock v. Arkansas | 483 U.S. 44 | Supreme Court of the United States, 1987 | Download |
| 728 | Tanner v. United States | 483 U.S. 107 | Supreme Court of the United States, 1987 | Download |
| 762 | Smith v. Rapid Transit, Inc. | 317 Mass. 469, 58 N.E.2d 754 | Supreme Judicial Court of Massachusetts, 1945 | Download |
| 764 | Dyer v. MacDougall | 201 F.2d 265 | United States Court of Appeals, Second Circuit, 1952 | Download |
| 781 | Atkinson v. Hall | 556 A.2d 651 | Supreme Court of Maine, 1989 | Download |
| Case Information | Fact Summary | Rule of Law |
|---|---|---|
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Knapp v. State Supreme Court of Indiana, 1907 168 Ind. 153, 79 N.E. 1076 Pg. 79 |
"Appellant, as a witness in his own behalf, offered testimony tending to show a killing in self-defense. He afterwards testified, presumably for the purpose of showing that he had reason to fear the deceased, that before the killing he had heard that the deceased, who was the marshal of Hagerstown, had clubbed and seriously injured an old man in arresting him, and that he died a short time afterwards. ..." | "As said in 1 Wharton, Evidence (3d ed.), Sec. 20: 'Relevancy is that which conduces to the proof of a pertinent hypothesis.'" |
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Old Chief v. United States Supreme Court of the United States, 1997 519 U.S. 172 Pg. 81 |
Old Chief was arrested for assault with a dangerous weapon and violation of a statute which made it unlawful for any felon to possess a firearm. | Relevant evidence may be excluded when it has a prejudicial effect and there is alternative evidence on point. |
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Ballou v. Henri Studios, Inc. United States Court of Appeals, Fifth Circuit, 1981 656 F.2d 1147 Pg. 91 |
Plaintiff was killed in a vehicular accident with an employee of defendant. Defendant challenged the court's exclusion of evidence that might have established that plaintiff was intoxicated and therefore contributorily negligent. | Under Fed. R. Evid. 403, the Court seeks to balance the prejudicial effect of evidence with its probative value. In weighing the probative value of evidence, the court should give it the weight it would have if the jury believes the evidence. However, it is the jury's role to decide whether the evidence is believable. |
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State v. English Supreme Court of North Carolina, 1931 201 N.C. 295, 159 S.E. 318 Pg. 98 |
Defendant appeals from a conviction of murdering his wife. The day after the murder the defendant testified that David Locke confessed to three police officers that he had committed the murders. Locke accurately described the crime scene and the defendant's wife's body. The authorities released Locke and prosecuted English. Subsequently, Locke disappeared and the trial judge excluded evidence about Locke's confession. | Fed. Rule Evid. Rule 801 (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. |
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Subramaniam v. Public Prosecutor Judicial Committee of the Privy Council, 1956 100 Solic.Jour. 566 Pg. 106 |
Appellant was convicted of possessing live ammunition for which he was sentenced to death. His defense was that he was acting under duress because he had been captured by terrorists. The trial judge excluded evidence of the appellant's conversations with the terrorists and ruled that it was not admissible unless the terrorists were called. | "Evidence of a statement made to a witness by a person who was not himself called as a witness might or might not be hearsay. It was hearsay and inadmissible when the object of the evidence was to establish the truth of what was contained in the statement. It was not hearsay and was admissible when it was proposed to establish by the evidence, not the truth of the statement, but the fact that it was made." IN THIS CASE, the statement is not made to assert the truth that the out-of-court declarants were actually terrorists, but that appellant actually believed that the out-of-court declarants were terrorists. |
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Vinyard v. Vinyard Funeral Home, Inc. St. Louis Court of Appeals, Missouri, 1968 435 S.W.2d 392 Pg. 107 |
Plaintiff slipped and fell in the parking lot of defendant's funeral home. The defendant contended that evidence that the parking lot was slippery when wet was hearsay and should not have been admitted. | "'Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact.'" |
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Johnson v. Misericordia Community Hospital Court of Appeals of Wisconsin, 1980 97 Wis.2d 521, 294 N.W.2d 501 Pg. 108 |
Plaintiff was operated upon by an incompetent surgeon, who had a shady past. During surgery, the surgeon severed the plaintiff's femeral artery and nerve, resulting in permanent paralysis. There was ample evidence that the hospital - upon exercising reasonable due diligence - could have easily found out about the surgeon's past. | Evidence used to establish the existence of something is not hearsay and thus not excludable under the hearsay rule. |
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Ries Biologicals, Inc. v. Bank of Santa Fe United States Court of Appeals, Tenth Circuit, 1986 780 F.2d 888 Pg. 109 |
Bank of Santa Fe, defendant, appeals a judgment for plaintiff, Ries Biologicals, on the grounds that the Court erroneously admitted evidence that the defendant orally approved shipments by the defendant. The defendant contends that the evidence was hearsay. | If the relevance of statements depends upon the testimony of the testifying witness and not the out-of-court declarant, then the testimony is admissible. |
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Fun-Damental Too, Ltd. v. Gemmy Industries Corp. United States Court of Appeals, Second Circuit, 1997 111 F.3d 993 Pg. 110 |
Plaintiff alleged that defendant copied its' novelty product, the "flushing" Toilet Bank, with a virtually identical product, the Currency Can. The issue is whether testimony supplied by the plaintiff's national sales manager to demonstrate that customers confused the two products is hearsay. | "Federal Rule of Evidence 803(3) allows statements, otherwise excluded as hearsay, to be received to show the declarant's then-existing state of mind." |
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United States v. Hernandez United States Court of Appeals, Fifth Circuit, 1985 750 F.2d 1256 Pg. 112 |
A DEA agent, when asked how the defendant came to the attention of the DEA, testified, "We received a referral by the U.S. Customs as Hernandez [defendant] being a drug smuggler." | "The government thus relied on the evidence not as proof of Saulnier's [the testifying agent's] state of mind at the inception of the investigation, but as evidence of Hernandez's guilt. This type of evidence is inadmissible under Fed.R.Evid. 802..." |
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United States v. Zenni United States District Court, Eastern District of Kentucky, 1980 492 F.Supp. 464 Pg. 114 |
While searching the premises of the defendant, government agents answered his telephone. The callers instructed the agents to place bets on sporting events. The government wanted to introduce evidence showing the callers believed the premises were used in betting operations, and the defendant objected on grounds of hearsay. | If an utterance is not assertive, meaning that it is not offered as proof of the truth of a matter, then it is admissible as evidence and not hearsay. IN THIS CASE, the court admitted the evidence, because the calls did not go to the truth of the matter asserted. |
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Commonwealth v. Knapp Supreme Judicial Court of Massachusetts, 1830 27 Mass. 477 Pg. 119 |
J. Francis Knapp was convicted of aiding and abetting the murder of Joseph White. The prosecution claimed that Crowninshield was the principal that actually committed the murder, but he had committed suicide prior to the trial. The prosecution needed to show the guilt of Crowninshield to successfully prosecute Knapp. Daniel Webster argued the probative value of Crowninshield's suicide. | Suicide can be viewed as a confession of a crime. |
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Silver v. New York Central Railroad Supreme Judicial Court of Massachusetts, Suffolk, 1952 329 Mass. 14, 105 N.E.2d 923 Pg. 123 |
Plaintiff suffered from a circulatory condition known as Raynaud's disease. She was traveling by train from Boston to Cincinnati. The train stopped in Cleveland and sat in the cold for four hours. The plaintiff suffered ill effects. The porter testified as to the conditions on the train, but was not allowed to mention that the other passengers did not complain. | If the circumstances of the plaintiff and other customers are substantially the same and they had an opportunity to complain and did not, that they did not complain is admissible as evidence, so long as it is not too remote. |
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United States v. Jaramillo-Suarez United States Court of Appeals, Ninth Circuit, 1991 950 F.2d 1378 Pg. 125 |
Federal agents found a "Pay/Owe" sheet in defendant's apartment. A "Pay/Owe" sheet is used to record narcotics related transactions. | "[D]rug-related documents may properly be admitted to prove the character and use of the place where found. . ." However, the jury must be given limiting instructions that the admission is not to establish the truth of the document's contents. |
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United States v. Rhodes Fort McNair, District of Columbia, 1958 Trial by General Court Martial Pg. 127 |
The defendant Rhodes, a Master Sergeant in the United States Army, was tried for having conspired to violate espionage laws. A memorandum containing biographical information about Rhodes found at the home of one defendant's co-conspirators was admitted into evidence. Rhodes' counsel objected on the grounds that the memorandum was hearsay. | The memorandum was admitted under the conspiracy exception to the hearsay rule. Statements made in furtherance of a conspiracy are not inadmissible due to the hearsay rule. |
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United States v. Brown United States Court of Appeals, Fifth Circuit, 1977 548 F.2d 1194 Pg. 129 |
Defendant was convicted of helping others prepare fraudulent and false IRS tax returns. An IRS agent testified that between 90% - 95% of about 160 returns prepared by defendant contained overstated deductions. The Court concluded that the agent must have received this information from the out-of-court statement of the taxpayers and that the testimony was hearsay. | Testimony based on out-of-court statements is inadmissible as hearsay. In this case, there was no way to know that the returns were overstated without the taxpayers saying to the agent that their deductions were overstated. Thus, the out-of-court statements go directly to the truth of the matter asserted and are hearsay. |
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City of Webster Groves v. Quick St. Louis Court of Appeals, Missouri, 1959 323 S.W.2d 386 Pg. 131 |
Defendant was caught speeding and contends that allowing a police officer to testify as to the reading of an electric timer is hearsay and inadmissible. | "The hearsay rule cannot be applied to what the witness, on the stand and subject to cross-examination, observed, either through his own senses or through the use of scientific instruments." |
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Soles v. State Supreme Court of Florida, 1929 97 Fla. 61, 119 So. 791 Pg. 139 |
Clifford Long, Jesse Jackson, and Arthur Robinson were driving in a car looking for whiskey for Robinson. They were frightened by a rifle shot. Long received a wound to the back of the head. About an hour before he died he said to his father, "Oh Daddy! Carl Soles shot me with a 22 rifle. I have got to die." A 14 year old girl testified to a similar account. | (1) A declaration given on one's deathbed is an exception to the hearsay rule. However, the dying declarant needs to be conscious that he or she is dying. (2) A judge may make the determination as to whether the dying declarant had an impending sense of death and then refuse to instruct the jury that they are to disregard if they do not see such a consciousness of impending death. IN THIS CASE THEN, the judge was not wrong in refusing to instruct the jury that they were to disregard the declaration if they found that the declaration was made without consciousness of impending death. |
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Truck Insurance Exchange v. Michling Supreme Court of Texas, 1963 364 S.W.2d 172 Pg. 149 |
Man bumped his head on his bulldozer at work. He went home and told his wife of the injury and how much his head hurt. He later died of the injury and his wife brought suit to recover death benefits provided by Workmen's Compensation. | "A hearsay statement, as res gestea, is admitted as an exception to the hearsay rule because it is made under circumstances which raise a reasonable presumption that it is a spontaneous utterance of thought created by or springing out of the occurrence itself and, so to speak, becomes part of the occurrence." The requirements of "Res Gestea" include (1) an occurrence startling enough to produce the nervous excitement; (2) the utterance must have been before there has been time to contrive and misrepresent; and (3) the utterance must relate to the circumstances of the event preceding it. IN THIS CASE, there was no independent evidence of the event, and therefore the statement was inadmissible as hearsay. Thus, an additional requirement is that there must be independent evidence of the event. NOTE: The last requirement (independent evidence of the event) is jurisdictional. |
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Lira v. Albert Einstein Medical Center Superior Court of Pennsylvania, 1989 384 Pa.Super. 503, 559 A.2d 550 Pg. 152 |
"In this medical malpractice action, the trial court awarded a new trial on motion of the defendant-health care providers because of an erroneous evidentiary ruling which permitted a witness to testify that when the plaintiff-patient was examined by a non-testifying physician, the physician asked, 'Who's the butcher who [did] this?'" | A doctor's extrajudicial statement offered to prove the truth of the matter asserted is inadmissible as hearsay, even if the statement is a medical opinion. |
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State v. Jones Court of Appeals of Maryland, 1987 311 Md. 23, 532 A.2d 169 Pg. 154 |
A woman was pulled over by a Maryland State Trooper for operating a vehicle without a tail light. The trooper allegedly instructed the female operator to get out of the vehicle and step into his car where he sexually assaulted her. The trooper sped off. The woman and her male passenger gave chase to try to identify the trooper's tag number. According to the victim, the trooper outran them. The trooper claimed that he pulled out after them, slowly into traffic and that the pursuit never occurred. Another police officer heard two truckers on CB radios talking about a little car chasing a trooper. | The present sense impression exception to hearsay requires (1) that the statement be "essentially contemporaneous with the event it describes . . ."; (2) that the party offering the statement must show that the declarant spoke from personal knowledge; and (3) corroboration relating to proof of first-hand knowledge or spontaneity. |
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Reed v. McCord Court of Appeals of New York, 1899 160 N.Y. 330, 54 N.E. 737 Pg. 160 |
"This action was to recover damages for personal injuries to the plaintiff's intestate which occasioned his death and was based upon the alleged negligence of the defendant." | If an admission is against a party's own interest and is evidence in favor of his adversary of a fact material to the issue, it is an exception to the hearsay rule and admissible. |
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United States v. Hoosier United States Court of Appeals, Sixth Circuit, 1976 542 F.2d 687 Pg. 161 |
Hoosier was conviceted of armed robery of a federally insured bank. At the trial, a witness - Robert E. Rogers - testified that Hoosier told him he was going to rob the bank and that three weeks after the robbery, he "saw defendant with money and what he thought were diamond rings." When he commented, Hoosier's girlfriend said, "That ain't nothing, you should have seen the money we had in the hotel room. . ." The appellant's contention is that the testimony was inadmissible hearsay. | Federal Rule of Evidence 801(d)(2)(B) reads: "A statement is not hearsay if -- (2) Admission by party-opponent. The statement is offered against a party and is . . . (B) a statement of which he has manifested his adoption or belief in its truth . . ." |
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State v. Carlson Supreme Court of Oregon, En Banc, 1991 311 Or. 201, 808 P.2d 1002 Pg. 164 |
Officer Lewis was dispatched to an apartment in response to a domestic dispute between defendant and his wife, Lisa. Lewis asked if there were any methamphetamine in the apartment. Lisa told Lewis to go in and check around. Another police officer met defendant in the parking lot and noticed tracks on his arms. Without advising defendant of his constitutional rights, the police officer asked defendant about the track marks, to which the defendant replied, "Yeah, I got a few tracks." And then claimed that the tracks were the result of injuries received while working on a car. The defendant's wife then started yelling that defendant got the marks from shooting up in the bedroom. The defendant sat in silence and just shook his head while his wife was yelling. The trial judge admitted the Lisa's accusation and defendant's response. | As a precondition to the admissibility of evidence, which would otherwise be hearsay, the intent to adopt, agree with, or approve of the contents of another's statement is a question of fact for the judge. |
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Mahlandt v. Wild Canid Survival & Research Center, Inc. United States Court of Appeals, Eighth Circuit, 1978 588 F.2d 626 Pg. 168 |
Plaintiff was bitten by a wolf (named Sophie) maintained at the home of Kenneth Poos, the Director of Education of Wild Canid Survival and Research Center, Inc. Poos left a note on the door of the President of the company, which stated, ". . . Sophie bit a child that came in our back yard. . . ." | Federal Rule of Evidence 801(d)(2)(D) "Statements which are not hearsay. . . . A statement is not hearsay if-- . . . (2)Admission by party-opponent. The statement is offered against a party and is . . . (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. . . ." In addition, there is no implied requirement that the declarant have personal knowledge of the facts underlying his statement. |
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Big Mack Trucking Co., Inc. v. Dickerson Supreme Court of Texas, 1973 497 S.W.2d 283 Pg. 172 |
The plaintiff was crushed while standing between two trucks. The defendant's big mack truck rolled forward, crushing the plaintiff. The defendant's employee , the operator of the vehicle, did not testify and the plaintiff based its case on defective brakes. The only evidence was witness testimony that the defedant's employee had mentioned that the brakes were defective. | "An agent's hearsay statements should be received against the principal as vicarious admissions only when the trial judge finds, as a preliminary fact, that the statements were authorized." |
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Sabel v. Mead Johnson & Co. United States District Court for the District of Massachusetts, 1990 737 F.Supp. 135 Pg. 176 |
Plaintiff - a user of antidepressant medication - brought suit against the drug's manufacturer claiming that the drug was responsible for causing priapism, which is a disease that causes a continuous, painful, non-sexual penile erection. The plaintiff sought to admit evidence of a taped meeting brought about by the manufacturer and attended by medical experts. | Statements made by individuals who are not agents of a party are not admissible under Fed. R. Evid. 801(d)(2) as an admission against a party and an exception to the hearsay rule. |
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United States v. DiDomenico United States Court of Appeals for the Seventh Circuit, 1996 78 F.3d 294 Pg. 178 |
DiDomenico was convicted in a criminal conspiracy. Prior to the trial, someone bugged the jail and recorded a conversation between one of the co-conspirators and his attorney. The trial judge allowed the evidence and DiDomenico appealed, alleging that the statements were not in furtherance of a conspiracy, but an effort to cover up an earlier, completed conspiracy. | Federal Rule of Evidence 801(d)(2)(E): "(d) Statements which are not hearsay. A statement is not hearsay if-- . . . (2)Admission by party-opponent. The statement is offered against a party and is . . . (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." In this case, the evidence was not inadmissible because, as defendant contended, the statements referred to a completed conspiracy, but were in furtherance of a conspirancy and therefore admissible. |
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United States v. Goldberg United States Court of Appeals for the First Circuit, 1997 105 F.3d 770 Pg. 179 |
Goldberg was part of a conspiracy to defraud the IRS. He was convicted of the conspiracy and appealed on the grounds that statements that were allowed as conspiracy exceptions to the hearsay rule were inadmissable because they happened before he joined the conspiracy. | Under the Baines test of admissibility of hearsay under the conspiracy exception, "a late-joining conspirator takes the conspiracy as he finds it: 'a conspiracy is like a train,' and 'when a party steps aboard, he is part of the crew, and assumes conspirator's responsibility for the existing freight. . . .'" In this case then, the hearsay is admissible under Fed. R. Evid. 801(d)(2)(E). |
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United States v. Doerr United States Court of Appeals, Seventh Circuit, 1989 886 F.2d 944 Pg. 180 |
Defendants were conspirators in a prostitution operation that took place under the guise of a strip-club / massage parlor. The defendant appealed on the issue of whether statements by a customer and the defendant's half brother were admissible exceptions to the hearsay rule under Federal of Evidence 801(d)(2)(E). | "Narrative declarations, mere 'idle chatter,' and superfluous casual conversations are not statements 'in furtherance' of a conspiracy." In this case, the Court held that the statements were not made in furtherance of the conspiracy and therefore were not admissible as exceptions to the hearsay rule under Federal Rule of Evidence 801(d)(2)(E). |
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Bourjaily v. United States Supreme Court of the United States, 1987 483 U.S. 171 Pg. 183 |
Petitioner was charged with possession of cocaine with the intent to distribute. The government introduced statements of a co-conspirator. The petitioner contended that the admission of the evidence was a violation of his Constitutional right to confront the witness. | Federal Rule of Evidence 801(d)(2)(E) (a statement is not hearsay if the statement is offered against a party and is a statement by a co-conspirator of a party made during the course of and in furtherance of the conspiracy) does not violate the Confrontation Clause of the Constitution. |
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Travelers Fire Insurance Co. v. Wright Supreme Court of Oklahoma, 1958 322 P.2d 417 Pg. 188 |
J.B. Wright and J.C. Wright brought an action to recover on two fire insurance policies. The defendant insurance companies alleged that the fire that destroyed the plaintiff's property was caused intentionally caused by J.B. Wright, with the intent of cheating and defrauding defendants. To establish this, the defendants sought to admit the testimony of two witnesses who had previously testified in J.B. Wright's criminal trial for arson. The two witnesses were unavailable, refusing to testify on Fifth Amendment claims. In response, the defendant sought to have the testimony from J.B. Wright's criminal trial admitted. | "It is quite often stated that before testimony can be taken from a former trial or proceeding and introduced in a subsequent trial there must be (1) an inability to obtain the testimony of the witness; (2) there must have been an opportunity to cross-examine the witness in the former trial; (3) there must be an identity, or substantial, identity of issues, and (4) parties. These requirements are recognized in the Concordia case." In this case, although J.C. Wright was not involved in the criminal trial, the Court held that J.B. Wright had the same MOTIVE and INTEREST in cross-examining the witnesses, and thus, the requirement of identity of parties was satisfied. |
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United States v. Salerno Supreme Court of the United States, 1992 505 U.S. 317 Pg. 194 |
The defendant was convicted for his involvement in organized crime. During the grand jury investigation two witnesses offered exculpatory testimony. Nevertheless, the defendant was indicted. The defendant sought to have the grand jury testimony admitted in his trial, as the witnesses invoked the Fifth Amendment privilege against self-incrimination and were thus not available to offer the same exculpatory testimony during the trial. | Federal Rule of Evidence 804(b)(1) permits the admission of former testimony if the party against whom the testimony is offered had an opportunity to cross-examine. "Rule 804. Hearsay Exceptions; Declarant Unavailable . . . (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. . . ." |
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G.M. McKelvey Co. v. General Casualty Co. of America Supreme Court of Ohio, 1957 166 Ohio St. 401, 2 O.O.2d 345, 142 N.E.2d 854 Pg. 200 |
The plaintiff's employees signed written confessions that they misappropriated funds. The plaintiff sought to recover insurance proceeds that covered such a loss and attempted to use the written confessions as evidence. | ". . . [A] declaration against interest by one not a party or in privity with a party to an action is admissible in evidence, where (1) the person making such declaration is either dead or unavailable as a witness due to sickness, insanity or absence from the jurisdiction, (2) the declarant had peculiar means of knowing the facts which he stated, (3) the declaration was against his pecuniary or proprietary interest and (4) he had no probable motive to falsity the facts stated. . . ." In this case, the employees' statements were admissible because they were (1) unavailable; (2) they were the only ones capable of knowing the facts stated; (3) the statements were against their interests; and (4) there was no probable motive for them to falsify the stated facts. |
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United States v. Barrett United States Court of Appeals, First Circuit, 1976 539 F.2d 244 Pg. 201 |
The defendant's co-conspirator in a stamp theft operation stated in an alleged conversation that the defendant was not involved in the crime. After the co-conspirator died, thus making him an unavailable witness, defendant contended that the co-conspirator's statements were admissible as an exception to the hearsay rule under the theory that they were against self-interest. | In criminal cases, where testimony is offered tending to exculpate the accused and inculpate the out-of-court declarant, there must be independent corroboration of the testimony's trustworthiness. |
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Williamson v. United States Supreme Court of the United States, 1994 512 U.S. 594 Pg. 206 |
Williamson's employee, Harris, was stopped by the police with 19 kilograms of cocaine in his car. A DEA agent interviewed Harris after his arrest. Harris told the agent that he was transporting the cocaine for Williamson. Harris freely implicated himself, but did not want his story to be recorded and refused to sign a written version of the statement. Harris refused to testify at trial and the judge admitted Harris's statements pursuant to Federal Rule of Evidence 804(b)(3), as a self-inculpatory statement and exception to the hearsay rule. | Federal Rule of Evidence 804(b)(3) "does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory." |
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Adkins v. Brett Supreme Court of California, 1920 184 Cal. 252, 193 P. 251 Pg. 210 |
The plaintiff sues the defendant for the tort of alienation of affections. Alienation of affection is a tort brought against a third party responsible for the failure of the marriage (NOTE: This happened in 1919. And while the tort has been abolished in most jurisdictions, it is still recognized in Hawaii, Illinois, North Carolina, Mississippi, New Mexico, South Dakota, and Utah (http://en.wikipedia.org/wiki/Alienation_of_affections)). The testimony at issue was whether the wife's statements about her preferences and feelings for the defendant were admissible as "state of mind" exceptions to the hearsay rule. | Statements that manifest the witnesses state of mind at the time of the statements are admissible as exceptions to the hearsay rule. Federal Rule of Evidence 803(3). . . "The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. . . ." |
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Mutual Life Insurance Co. of New York v. Hillmon Supreme Court of the United States, 1892 145 U.S. 285 Pg. 215 |
Mrs. Hillmon sought to collect on life insurance policies for the death of her husband. The insurance companies refused to pay alleging that it could not adequately be established that Mrs. Hillmon's husband had died, as the remains of her husband (found at Crooked Creek) could have been mistaken for those of one Walters. The defendants offered letters showing that Walters had intended to go to Crooked Creek at the time the body was discovered. | ". . . When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to warrant the admission of declarations of the intention. But whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party." In this case, the letters could be used to show that Walters INTENDED to go to Crooked Creek and not that he actually did go there. His intention was material because it allowed for the inference to be drawn that it was more likely than not that he did go to Crooked Creek. |
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Shepard v. United States Supreme Court of the United States, 1933 290 U.S. 96 Pg. 218 |
The petitioner, Charles Shepard - a major in the medical corps of the United States Army - was convicted for murdering his wife by poisoning her with bichloride of mercury. It was alleged that his motive was that he was in love with another woman. The testimony at issue was when his wife, under the care of a nurse, exclaimed in the presence of her nurse, "Dr. Shepard has poisoned me." The government sought to have the evidence admitted under two possible exceptions to the hearsay rule: (1) that it was a dying declaration; and (2) that the evidence showed a state of mind. The Court rejected the dying declaration proposition, as she did not have an impending sense of death, but considered the state of mind theory, as the defendant had offered evidence of his wife's weariness towards life through declarations from friends and thus drawing the inference that his wife had committed suicide. | Testimony that faces backward and not forward is not admissible as a state of mind exception to the hearsay rule. In this case, the testimony was regarding a previous act and not admissible as a state of mind exception. |
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United States v. Pheaster United States Court of Appeals, Ninth Circuit, 1976 544 F.2d 353 Pg. 222 |
Pheaster was implicated in the kidnapping of Larry Adell, the 16-year-old son of Palm Springs multi-millionaire Robert Adell. Larry's friend testified at trial that Larry said he was going to meet Angelo, another defendant involved in the kidnapping. The trial court admitted the statements under the Hillmon doctrine. The Hillmon doctrine is a variant of the "state of mind" exception to the hearsay rule. The "state of mind exception" allows hearsay evidence if the state of mind of the declarant is an issue in the case. Under the Hillmon doctrine, "the state of mind of the declarant is used inferentially to prove other matters which are in issue," that "when the performance of a particular act by an individual is an issue in a care, his intention (state of mind) to perform that act may be shown. From that intention, the trier of face may draw the inference that the person carried out his intention and performed the act." The issue in this case related to the scope of the Hillmon doctrine - whether hearsay evidence is still admissible under Hillmon when it relates to an action that requires the action of one or more others to be fulfilled. | The Hillmon doctrine permits hearsay evidence when it relates to an action that requires the action of one or more others to be fulfilled. |
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United States v. Owens Supreme Court of the United States, 1988 484 U.S. 554 Pg. 239 |
John Foster, a correctional counselor at the federal prison in Lompoc, California, was attacked and brutally beaten with a metal pipe. As a result of his injuries, his memory was severely impaired. An FBI agent twice interviewed Foster while Foster was in the hospital. Foster was unable to remember his attacker's name during the first interview, but identified Owens as the attacker in the second interview. He later lost his recollection of the attack, but remembered identifying Owens as the attacker in the hospital. Owens was sentenced to 20 years' improsonment. The Ninth Circuit reversed the judgment of the District Court based on the Confrontation Clause and Rule 802 of the Federal Rules of Evidence. | Federal Rule of Evidence 801(d) "Statements which are not hearsay. A statement is not hearsay if-- (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (C) one of identification of a person made after perceiving the person. . ." In this case, the Court held that Federal Rule of Evidence 801(d)(1)(C) provided an exception. Although the witness could not remember the attack, the Court held that the witness was subject to cross-examination. The Court further ruled that the statement didn't violate the Confrontation Clause, as it is "sufficient that the defendant has the opportunity to bring out such matters as the witness's bias . . . and even the very fact that he has a bad memory." |
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United States v. Vigneau United States Court of Appeals for the First Circuit, 1999 187 F.3d 70 Pg. 257 |
Defendants are two brothers, Patrick and Mark Vigneau, who were convicted on their participation in a drug distribution scheme. On appeal they claim that the trial court erred in allowing the government to introduce Western Union "To Send Money" forms, in support of the money laundering charges. "These forms, as a Western Union custodian testified, are handed by the sender of money to a Western Union agent after the sender completes the left side of the form by writing (1) the sender's name, address and telephone number; (2) the amount of the transfer; and (3) the intended recipient's name and location." | Business records will only be eligible for the hearsay exception if there are safeguards of regularity or business checks that would automatically assure the truth of statements therein. Those records contributed to by strangers to the business do not meet this requirement. |
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United States v. Duncan United States Court of Appeals, Fifth Circuit, 1990 919 F.2d 981 Pg. 261 |
Defendants, Samuel Duncan and Grace Duncan, husband and wife, were ringleaders of a scheme to defraud insurance companies. Over several years, the defendants purchased numerous hospitalization policies. Each policy provided that the insured would receive a predetermined sum of money for each day spent in the hospital, regardless of other coverage. Each defendant, there are seven, was hospitalized several times and collected over $300,000 in insurance proceeds. The defendants were indicted on mail fraud and conspiracy. | Insurance companies compile their records from the business records of hospitals, so medical records of insurance companies are themselves business records. |
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Williams v. Alexander Court of Appeals of New York, 1955 309 N.Y. 283, 129 N.E.2d 417 Pg. 263 |
Plaintiff, Dessi Williams was struck by defendant's automobile as he was crossing a street in Brooklyn. His leg was broken and he was taken to the Kings County Hospital. At trial plaintiff claimed that defendant ran a red light and hit him, and defendant claims that he came to a stop and was hit by the car behind him, thus pushing him into the intersection and into the plaintiff. Also, at trial plaintiff introduced the hospital record to show his injuries and treatment. Defendant, in response, sought to introduce the remainder of the hospital record in which plaintiff told the doctor that he was hit when a car collided with him after being hit from behind by another car. Plaintiff denied making any such statement, argued this evidence was inadmissible hearsay and the doctor who recorded it was not called as a witness. | "[E]ntries in a hospital record may not qualify for admission in evidence unless made in the regular course of the 'business' of the hospital, and for the purpose of assisting it in carrying on that 'business.' The business of a hospital, it is self-evident, is to diagnose and treat its patients' ailments. Consequently, the only memoranda that may be regarded as within the section's compass are those reflecting acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise 'helpful to an understanding of the medical or surgical aspects of . . . [the particular patient's] hospitalization.' . . ." |
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Hahnemann University Hospital v. Dudnick Superior Court of New Jersey, Appellate Division, 1996 678 A.2d 266 Pg. 267 |
This action is for collection of an outstanding balance due on a hospital bill. The issue on appeal is whether the trial court was correct in admitting into evidence computer printouts. | "Expert testimony as to the reliability of the programs the computer uses or other technical aspects of its operation is unnecessary to find computer-generated records circumstantially reliable. A witness is competent to lay the foundation for systematically prepared computer records if the witness (1) can demonstrate that the computer record is what the proponent claims and (2) is sufficiently familiar with the record system used and (3) can establish that it was the regular practice of that business to make the record. . . . If a party offers a computer printout into evidence after satisfying the foregoing requirements, the record is admissible 'unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.' . . ." |
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Palmer v. Hoffman Supreme Court of the United States, 1943 318 U.S. 109 Pg. 270 |
This case arises out of a grade crossing accident which occurred in Massachusetts, on the night of December 25, 1940. Two days after the accident, the engineer of the train who died before the trial, made a statement at a freight office which was then offered into evidence by petitioner. It was offered to that the statement was signed in the regular course of business, it being the regular course of such business to make such a statement. Respondents objected to the introduction and the objection was sustained. | "'[R]egular course' of business must find its meaning in the inherent nature of the business in question and in the methods systematically employed for the conduct of the business as a business." Records that are prepared in preparation for litigation are not business records. |
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Lewis v. Baker United States Court of Appeals, Second Circuit, 1975 526 F.2d 470 Pg. 272 |
Plaintiff, Clifford J. Lewis, Jr., brought this action against Penn Central Railroad for injuries he sustained while employed. At trial, the jury returned a verdict in favor of the defendants and plaintiff appeals and seeks a new trial, claiming that the accident reports of the incident were improperly admitted into evidence. | Where the law requires the regular making of reports, those reports are considered made in the regular course of business, and are thus admissible under the Federal Business Records Act. |
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Beech Aircraft Corp. v. Rainey Supreme Court of the United States, 1988 488 U.S. 153 Pg. 277 |
Respondents were married to a Navy flight instructor and her student, and brought this product liability action against petitioners, Beech Aircraft Corp., when their spouses were killed during training exercises. The plane they were riding in lost altitude and crashed after they used evasive maneuvers to avoid hitting another plane. The issue at trial was whether the accident was caused by plane malfunction or pilot error. The defense introduced an investigative report, also known as a JAG report, in which the officer who prepared the report stated that the most probable cause of the accident was the pilot's failure to maintain proper interval." Respondents contend that this report is hearsay and should not have been admitted into evidence. | "[N]either the language of . . Rule [803] nor the intent of its framers calls for a distinction between 'fact' and 'opinion' . . . Thus, the traditional requirement that lay witnesses give statements of fact rather than opinion may be considered, '[l]ike the hearsay and original documents rules . . . a best evidence' rule.'" |
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United States v. Oates United States Court of Appeals, Second Circuit, 1977 560 F.2d 45 Pg. 282 |
Defendant was charged with possession of heroin with the intent to distribute and of conspiracy to commit the possession. At trial, the court admitted into evidence two documentary exhibits which were the official reports of the U.S. Customs chemist who analyzed the powder substance. Defendant/Appellant argues that the court committed error in admitting these reports because they were hearsay. | "[T]he clear intention of Congress to make evaluative and law enforcement reports absolutely inadmissible against defendants in criminal cases. Just as importantly, it must have been the unquestionable belief of Congress that the language of FRE 803(8)(B) and (C) accomplished that very result." |
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United States v. Grady United States Court of Appeals, Second Circuit, 1976 544 F.2d 598 Pg. 290 |
Appellants Grady and Jankowski sought review of a U.S. District Court judgment convicting them of false statements on a federal firearms charge and conspiracy, and convicting appellant Grady of illegal exportation of firearms. | "Fed.R.Evid. 803(8)(B). Rule 803(8)(B) allows admission of records and reports of public offices or agencies setting forth 'matters observed pursuant to duty imposed by law as to which matters there was a duty to report,' but is subject to an exception for 'matters observed by police officers and other law enforcement personnel.'" |
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Stroud v. Cook District of Nevada, 1996 931 F.Supp. 733 Pg. 292 |
The case arose from a car collision between Plaintiff and Defendant. Plaintiff sought to introduce Defendant's misdemeanor judgment of conviction for failing to use due care in the operation of a motor vehicle as evidence of Defendant's negligence. | "[J]udgments of misdemeanor convictions are admissible under the public records exception to the hearsay rule." Fed. R. Civ. P. 803(8). |
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Turbyfill v. International Harvester Co. United States District Court, Eastern District of Michigan, 1980 486 F.Supp. 232 Pg. 305 |
Plaintiff motioned for a new trial, alleging, among other things, that the trial court's admission of a deceased witness's handwritten unsworn statement was error. | A statement not "fall[ing] within any of the hearsay exceptions embodied in F.R.E. 803 or 804" but "having equivalent circumstantial guarantees of trustworthiness [is not excluded by the hearsay rule] if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence." |
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United States v. Dent United States Court of Appeals, Seventh Circuit, 1993 984 F.2d 1453 Pg. 307 |
Defendants were charged with being felons in knowing possession of a firearm. Both were found quilty at trial. On appeal, defandants challenge the admission of grand jury testimony. | "Rule 804(b)(5) of the Federal Rules of Evidence. . . permits the admission of a statement by an unavailable witness that does not fit within one of the specific hearsay exceptions but has 'equivalent circumstantial guarantees of trustworthiness.' The district court must determine that the statement goes to a material fact and is more probative of that fact than other evidence that can reasonably be found. The court must determine that the interests of justice as well as the general purposes of the evidentiary rules will be served by admission of the statement." |
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Ohio v. Roberts Supreme Court of the United States, 1980. 448 U.S. 56 Pg. 315 |
At defendant's criminal trial for forgery of checks and possession of stolen credit cards, the trial court admitted testimony, from a preliminary hearing, by a witness not present at trial. The testimony contradicted defendant's testimony that he had permission to use the checks and credit cards. The appellate court reversed defendant's convictions, and the Ohio state supreme court affirmed, holding that the defendant's right to confront witnesses against him had been violated when the preliminary hearing testimony of a witness who did not appear at defendant's trial was admitted in evidence. Certiorari was granted to consider issues arising under the Confrontation Clause of the Sixth Amendment. | "When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause, U.S. Const. amend VI, normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." |
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Crawford v. Washington Supreme Court of the United States, 2004 541 U.S. 36 Pg. 323 |
Defendant was convicted in state court of assault. Defendant asserted that the admission of his wife's statement to police, after defendant invoked state marital privilege to preclude her testimony at trial, violated defendant's constitutional right to confront witnesses against him. | "The bedrock procedural guarantee of confrontation of witnesses applies to both federal and state prosecutions. " "Even if the right to confrontation under the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class. " "Testimonial statements of witnesses absent from trial are admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. "Where non-testimonial hearsay is at issue, it is wholly consistent with the intended constitutional design to afford the states flexibility in their development of hearsay law, as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. Whatever else the term "testimonial" covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations." |
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United States v. Cromer United States Court of Appeals for the Sixth Circuit, 2004. 389 F.3d 662 Pg. 339 |
Defendant appealed a decision of the United States District Court for the Western District of Michigan at Grand Rapids, which convicted him of possession of cocaine with intent to distribute. Defendant raised several arguments on appeal including that his Sixth Amendment rights were violated by the introduction of certain statements made by a confidential information (CI) and by the district court's failure to give him Faretta warnings. | "Testimonial, out-of-court statements offered against the accused to establish the truth of the matter asserted may only be admitted where the declarant is unavailable and where the defendant has had a prior opportunity to cross-examine the declarant. The term "testimonial" applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." "Statements of a confidential informant are testimonial. Indeed, such statements fall squarely within the paradigm: A statement made knowingly to the authorities that describes criminal activity is almost always testimonial. Tips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial. The very fact that the informant is confidential- i.e., that not even his identity is disclosed to the defendant heightens the dangers involved in allowing a declarant to bear testimony without confrontation. The allowance of anonymous accusations of crime without any opportunity for cross-examination would make a mockery of the Confrontation Clause." "Statements of a confidential informant are testimonial in nature and therefore may not be offered by the government to establish the guilt of an accused absent an opportunity for the accused to cross-examine the informant." |
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Key v. State Court of Appeals of Texas, Twelfth District, Tyler, 2005. 173 S.W.3d 72 Pg. 348 |
Defendant appealed his conviction for a misdemeanor assault, contending his constitutional right to confrontation of witnesses was violated. Defendant argued that the trial court erred in allowing an officer to testify regarding the victim's statements to him at the scene. | "[T]he underlying rationale of an excited utterance supports a determination that it is not testimonial in nature. Such a declaration from one who has recently endured physical abuse, and with no time for reflection or deliberation, is likely to be truthful. It is consistent with the definition of an excited utterance to conclude that it is not a statement that has been made in contemplation of its use in a future trial." |
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Chambers v. Mississippi Supreme Court of the United States, 1973. 410 U.S. 284 Pg. 352 |
"Petitioner was tried by a jury in a Mississippi trial court and convicted of murdering a policeman. The jury assessed punishment at life imprisonment, and the Mississippi Supreme Court affirmed, one justice dissenting. . . Subsequently, the petition for certiorari was granted to consider whether petitioner's trial was conducted in accord with principles of due process under the Fourteenth Amendment." In particular Petitioner challenged the trial court's failure to allow him to cross-examine a key witness and the exclusion of exculpatory evidence by application of the hearsay rule. | "The availability of the right to confront and to cross-examine those who give damaging testimony against the accused [does not] depend on whether the witness was initially put on the stand by the accused or by the State." In addition, "hearsay statements originally made and subsequently offered at trial under circumstances providing considerable assurance of their reliability [may be admitted]." Factors which lend weight to such reliability include the spontaneity with which the out-of-court statements were made, whether the statements are corroborated by some other evidence, and the availability of the declarant to testify and be cross-examined. |
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Green v. Georgia Supreme Court of the United States, 1979 442 U.S 95 Pg. 355 |
Petitioner and a codefendant were indicted together for rape and murder. Petitioner was convicted of murder, and received a capital sentence. At trial, Petitioner was not allowed to introduce the testimony of a witness who had testified for the State at the codefendant's trial. According to the witness, the codefendant had confided to him that he, the codefendant, had killed the victim. The trial court ruled that the testimony constituted inadmissible hearsay. | "Regardless of whether testimony proffered by a defendant comes within a state's hearsay rule, the exclusion of such evidence constitutes a violation of the Due Process Clause of the Fourteenth Amendment where the excluded testimony is highly relevant to a critical issue in the punishment phase of the trial and substantial reasons existed to assume its reliability." |
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State v. Meeks Supreme Court of Kansas, 2004. 88 P.3d 789 Pg. 359 |
Defendant appealed his conviction for first-degree premeditated murder. Defendant argued that the trial court erred in admitting a statement by the victim, shortly before his death, indicating that defendant shot him. | "[W]hen confrontation [of a witness] becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived." |
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People v. Collins Supreme Court of California, 1968. 68 Cal.2d 319 Pg. 368 |
A jury found defendant and his wife defendant guilty of second degree robbery. Defendant husband appealed from the judgment of conviction. Defendant argued that the court erred in admitting, over defendant's objection, evidence pertaining to the mathematical theory of probability. | "Mathematical odds are not admissible as evidence to identify a defendant in a criminal proceeding so long as the odds are based on estimates, where the validity of which has not been demonstrated." |
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People v. Mountain Court of Appeals of New York, 1985 66 N.Y.2d 197 Pg. 378 |
"The defendant, a former police officer, [was] convicted of raping and sodomizing a woman being held for arraignment in a detention cell at a police station." On appeal, "[t]he primary issue concern[ed] efforts by the prosecutor to establish a relationship between the defendant's blood type and the blood type found in the assailant's sperm, a procedure universally accepted in other jurisdictions but previously not allowed in this [New York]." | "[Blood test] evidence should be admissible unless prejudice is shown." |
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Kammer v. Young Court of Special Appeals of Maryland, 1987 73 Md.App. 565 Pg. 379 |
Appellee gave birth to a child on May 24, 1982. She alleged that appellant was the only man with whom she had had sexual intercourse in the year immediately preceding the child's birth. Appellant responded that his sexual relations with appellee had ended more than 15 months before the birth. The court admitted into evidence, over objection, the results of the blood tests of appellant, appellee and the child, obtained in accordance with MD.FAM.LAW CODE ANN. Section 5-1029. Appellant appeals from jury finding that he fathered the child. | "Md. Code Ann., Fam. Law 5-1029(a)-(e) (1984) provides: On the motion of a party to the proceeding or on its own motion, the court shall order the mother, child, and alleged father to submit to blood tests to determine whether the alleged father can be excluded as being the father of the child. . . A copy of the results of each blood test shall be provided to the parties or their counsel in the manner that the court directs. The results of each blood test shall be received in evidence if: definite exclusion is established, or the testing is sufficiently extensive to exclude 97.3 percent of alleged fathers who are not biological fathers, and the statistical probability of the alleged father's paternity is at least 97.3 percent. A laboratory report is prima facie evidence of the results of a blood test. . . Genetic testing is valid, subject to cross-examination of those responsible for performing and evaluating the tests." |
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Cleghorn v. New York Central & Hudson River Railroad Co. Court of Appeals of New York, 1874 56 N.Y. 44 Pg. 384 |
Defendant railroad appealed the decision affirming a judgment in favor of plaintiff and affirming an order denying defendant's motion for a new trial in an action to recover for injuries alleged to have been caused by defendant's negligence. Plaintiff was a passenger on defendant's railroad and was injured when a switchman's error caused two trains to collide. The evidence at trial showed that the switchman was intoxicated at the time of the accident and that "he was a man of intemperate habits, which were known by the agent of the company." | Evidence is competent when admitted to show the gross negligence on the part of a defendant employer in employing or continuing the employment of a subordinate known to be unfit for his position by reason of intoxication. |
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Michelson v. United States Supreme Court of the United States, 1948 335 U.S. 469 Pg. 387 |
In 1947 petitioner Michelson was convicted of bribing a federal revenue agent. The Government proved a large payment by accused to the agent for the purpose of influencing his official action. The defendant, as a witness on his own behalf, admitted passing the money but claimed it was done in response to the agent's demands, threats, solicitations, and inducements that amounted to entrapment. The determination of the issue turned on whether the jury believed the agent or the accused. Michelson introduced evidence of his own good character through witness testimony. The prosecution responded by asking the character witnesses whether they had heard of Michelson's previous conviction twenty years earlier for receiving stolen goods. The Court overruled Michelson's objection and Michelson was found guilty. | When a defendant introduces character evidence through witness testimony, the prosecution may question those witnesses regarding the prior bad acts of the defendant. |
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United States v. Carrillo United States Court of Appeals, Fifth Circuit, 1993. 981 F.2d 772 Pg. 406 |
"A jury found the defendant guilty of distribution of heroin and cocaine based on an undercover officer's testimony that he purchased a narcotics-filled balloon from the defendant. At trial, the defendant's alibi was mistaken identity: he claimed that the police officer misidentified him as the seller. The district court allowed the government to present evidence of two other sales of controlled substances by the defendant as modus operandi to help establish his identity as the drug seller in the present case. [Defendant] challenge[d] the admission of those extrinsic acts under the identity exception of Federal Rule of Evidence 404(b)." | "The admissibility of extrinsic act evidence under Fed. R. Evid. 404(b) is determined by application of a two-part test. First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of Fed. R. Evid. 403. Character evidence is not excluded because it has no probative value, but because it sometimes may lead a jury to convict the accused on the ground of bad character deserving punishment regardless of guilt." In addition, "[a]n extrinsic offense is not admissible under Fed. R. Evid. 404(b) to show identity merely because it is similar, but only if it bears such a high degree of similarity as to mark it as the handiwork of the accused." |
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United States v. Beasley United States Court of Appeals, Seventh Circuit, 1987 809 F.2d 1273 Pg. 411 |
Appeallant was convicted in the District Court on seven counts of obtaining Dilaudid with intent to distribute, in violation of 21 U.S.C.S. sec. 841(a)(1), and two counts of attempting to obtain Dilaudid by misrepresenting the name of the person to appear on the prescription, in violation of 21 U.S.C.S. sec. 843(a)(3) and 846. Appellant appealed, arguing that the trial judge erred in admitting evidence of prior bad acts. | "Bad act evidence must be clear and convincing, must show a similar act close enough in time, must have value that outweighs the risk of unfair prejudice under Fed. R. Evid. Rule 403 standard. . . When the same evidence has legitimate and forbidden uses, when the introduction is valuable yet dangerous, the district judge has great discretion. There are no bright line rules; it is easy to identify polar cases but impossible to draw a line of demarcation. . . Trial judges have a comparative advantage because they alone see all the evidence in context, and the judicial system as a whole takes advantage of the division of labor. . . There must be a principled exercise of discretion in determining whether evidence is admissible under Fed. R. Evid. 403 and 404(b). The district judge must both identify the exception that applies to the evidence in question and evaluate whether the evidence, although relevant and within the exception, is sufficiently probative to make tolerable the risk that jurors will act on the basis of emotion or an inference via the blackening of the defendant's character. Discretion, when exercised, will rarely be disturbed." |
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United States v. Cunningham United States Court of Appeals, Seventh Circuit, 1996. 103 F.3d 553 Pg. 418 |
Defendant nurse was convicted in the United States District Court of tampering with consumer product with reckless disregard for risk that another person would be placed in danger of bodily injury, which was based on allegation that she removed Demerol from syringes in hospital, allegedly to feed her addiction. Defendant appealed. | "Fed. R. Evid. 404(b) forbids the introduction of evidence of a person's prior conduct, wrongful or otherwise, but normally wrongful, for the purpose of showing a propensity to act in accordance with the character indicated by that conduct. Evidence of prior conduct may be introduced, subject to the judge's power to exclude it under Fed. R. Evid. 403 as unduly prejudicial, confusing, or merely cumulative, for other purposes, for example to show the defendant's motive for committing the crime with which he is charged. . . The admission of bad-acts evidence to contextualize, and by contextualizing enable the jury to understand, other evidence is a recognized exception to the prohibition of bad-acts evidence." |
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Tucker v. State Supreme Court of Nevada, 1966 82 Nev. 127 Pg. 421 |
Defendant was convicted of second-degree murder, and he appealed. Defendant argued that the trial court erred in permitting the jury to hear and consider evidence of a prior homicide occurring at defendant's home, in the absence of a showing that defendant committed prior homicide. | "Nevada follows the rule of exclusion concerning evidence of other offenses. The court excludes any evidence which shows that the defendant committed other offenses, unless relevant to prove the commission of the crime charged. The "unless" portion of the rule is stated in the form of exceptions. Thus the court has held that evidence of an offense, other than that for which the accused is on trial, may be allowed as an exception if relevant to prove: motive, identity, the absence of mistake or accident or a common scheme or plan. . . Before evidence of a collateral offense is admissible for any purpose, the prosecution must first establish by plain, clear and convincing evidence, that the defendant committed that offense. Fundamental fairness demands this standard in order to preclude verdicts which might otherwise rest on false assumptions." |
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Huddleston v. United States Supreme Court of the United States, 1988 485 U.S. 681 Pg. 422 |
Petitioner Guy Huddleston was charged with selling stolen goods in interstate commerce and possessing stolen property in interstate commerce in connection with the sale of video cassette tapes. There was no dispute at trial that the video cassette tapes were stolen. There only issue was whether Huddleston knew they were stolen. The District Court allowed the Government to introduce evidence of "similar acts" under Rule 404(b). The Supreme Court granted certiorari to determine whether the trial court must make a preliminary finding before "similar acts" and other Rule 404(b) evidence is submitted to the jury. | "Federal Rule of Evidence 404(b) - which applies in both civil and criminal cases - generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or knowledge." The Supreme Court held, pursuant to Rule 404(b), that the court need not make, prior to admitting past acts introduced to show motive or knowledge, a preliminary finding that the acts occurred. |
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Tuer v. McDonald Court of Appeals of Maryland, 1997 701 A.2d 1101 Pg. 467 |
Plaintiff's surgery was delayed. The hospital discontinued the use of Heparin. The Plaintiff had a heart attack and died. Subsequently, the hospital changed their policy regarding discontinuing the use of Heparin prior to surgery. The plaintiffs try to make use of the feasibility aspect of Fed R. Evid. 407, which establishes that you can circumvent the subsequent remedial measures rule, if it is used to controvert feasibility. | The feasibility exception of Fed R. Evid. 407 establishes that you can circumvent the subsequent remedial measures rule, if it is used to controvert feasibility. If the defense had just continued to say that they made the best use of the information they had at the time rather than saying it would have been dangerous, they would not have fallen into the feasibility trap of Fed. R. Evid. 407. |
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United States v. Hogan United States Court of Appeals, Fifth Circuit, 1985 763 F.2d 697 Pg. 494 |
Defendants, Barry Kendall Hogan and Mark Bradford (Brad) Hogan, were convicted of importing marijuana and conspiracy to import and possess with intent to distribute. Defendants claim on appeal that during the trial, the government called a witness for the primary purpose of impeaching him with otherwise inadmissible hearsay evidence. | "The prosecution, . . . may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony, for such a scheme merely serves as a subterfuge to avoid the hearsay rule." |
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United States v. Owens United States Court of Military Appeals, 1985 21 M.J. 117 Pg. 506 |
The appellant, Gary Owens, was convicted for the unpremeditated murder of his wife, whom he shot with a hunting rifle. The government contended that he shot his wife in anger following a domestic dispute. Owens claimed that he accidentally shot her and took the witness stand in his own defense. On cross-examination, the trial counsel questioned the Owens about omissions regarding previous convictions on his application for military promotion. | Under Military Rule of Evidence 608(b) and under Federal Rule of Evidence 608(b), trial counsel is authorized to impeach appellant by extracting on cross-examination his admission to a prior act of intentional falsehood under oath. In this case, (1) the admission was relevant under Federal Rule of Evidence 401 / Military Rule of Evidence 401, because the prior convictions and arrests were the matters omitted in his answers, and were thus relevant to establish the prior act of falsehood; (2) there was no alternative evidence to establish acts of prior falsehood; and (3) the strength of the evidence showing Owens' prior falsehood was considerable. |
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United States v. Drake United States Court of Appeals, Tenth Circuit, 1991 932 F.2d 861 Pg. 516 |
Roger Drake was convicted for fraud related to the financing of a business of which he was vice president, as he had covered up a third party's security interest in after-acquired accounts receivable. Drake testified that he was unaware of the security interest, because he had no formal training in business management. In support of this, he was asked about his education. He stated that he majored in psychology in college. He testified on cross-examination that he received a college degree. The Assistant U.S. Attorney sought to impeach him on prior inconsistent facts. The Assistant U.S. Attorney then alleged on cross-examination that Drake had been dismissed from the University of Illinois for violation of terms of his probation and for falsification of facts in a disciplinary investigation. Drake argued that the questioning on his dismissal from the University of Illinois constituted the introduction of extrinsic evidence in violation of Federal Rule of Evidence 608(b). | Cross-examination questions do not constitute extrinsic evidence. |
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United States v. Saada United States Court of Appeals for the Third Circuit, 2000 212 F.3d 210 Pg. 519 |
Isaac Saada and his son, Neil, were convicted of fraud charges arising out of a scheme to cheat an insurance company. They staged a flooding in the warehouse of their business - Scrimshaw Handicrafts, Inc. - by intentionally breaking a sprinkler head. Yaccarino, who was the vice president of Scrimshaw, was there when the sprinkler was broken. Yaccarino runs into the office kitchen screaming, "Oh my God, Neil did something stupid, [threw] something, now he has got a mess. . . . I can't believe it. It is so stupid. He threw it. He is stupid, he is dumb." Saada sought to introduce Yaccarino's statement, because it helped show that the breaking of the sprinkler head was accidental. The prosecution sought to impeach Yaccarino by having the Court take judicial notice of Supreme Court decisions of having Yaccarino's removal from the bench for unethical conduct. | Extrinsic evidence of a hearsay declarant's prior bad acts are not admissible for impeachment purposes even when those declarant's are unavailable to testify. Federal Rule of Evidence 806 does not modify Federal Rule of Evidence 608(b)'s ban on extrinsic evidence of prior bad acts in the context of a hearsay declarant, even when those declarants are unavailable to testify. Federal Rule of Evidence 608(b) disallows extrinsic evidence to prove specific instances of conduct and only allows it if you can prove specific instances of conduct through cross-examination. Since Yaccarino was dead, there was no way to cross-examine and therefore the appellant's argue that taking judicial notice was improper under the language of Federal Rule of Evidence 608(b). The Government argued that Federal Rule of Evidence 806 allows a party against whom a hearsay statement is admitted to call the declarant as a witness as if under cross-examination. And thus, if Yaccarino had been alive, they would have been able to inquire into Yaccarino's misconduct through cross-examination. However, since Yaccarino is now dead, they argue that they should be allowed to enter extrinsic evidence to show his misconduct. Essentially, the government is arguing that when a hearsay declarant is unavailable to testify, they should be allowed to prove specific instances of misconduct through extrinsic evidence. However, the court disagrees with this. |
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United States v. Sanders United States Court of Appeals, Fourth Circuit, 1992 964 F.2d 295 Pg. 524 |
Sanders and Ricky Alston, both inmates, were indicted for assault with intent to commit murder and possession of a knife or shank. Before trial, Sanders filed a motion to exclude evidence of his prior convictions. The district court allowed the government to cross-examine Sanders about his prior assault and contraband possession convictions, ruling them admissible under Federal Rules of Evidence 609(a) and 404(b). The trial ended in a mistrial. Before the second trial, Sanders again sought to have the evidence of his previous convictions excluded. At trial the government cross-examined Sanders on his prior convictions. The jury returned a verdict of the lesser included offense of assault with a dangerous weapon with intent to do bodily harm. Sanders appealed. | Federal Rule of Evidence 609(a)(1) requires that "evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if . . . the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the defendant." In this case, the court held that the evidence was inadmissible because of the high likelihood of prejudice. |
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Sirico v. Cotto Civil Court of the City of New York, 1971 67 Misc.2d 636, 324 N.Y.S.2d 483 Pg. 686 |
Plaintiff called on a specialist in radiology to testify as to the results of X-ray photographs of plaintiff's spine. The original plates were not available and their absence was not explained by the plaintiff. | McCormick states that the best evidence rule is this: "in proving the terms of a writing, where such terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason other than the serious fault of the proponent." McCormick, Evidence, 409, 411-12 (1954). IN THIS CASE, because (1) the evidence offered (the specialist's testimony) was secondary evidence of the contents of the X-ray plates and (2) the plaintiff did not explain the absence of the original X-ray plates, the specialist's testimony was inadmissible. |
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Herzig v. Swift & Co. United States Court of Appeals, Second Circuit, 1945 146 F.2d 444 Pg. 689 |
Plaintiff appeals from a dismissal of her action in a wrongful death suit where her husband had been a partner in a construction firm. The testimony at issue was that of one of the other partners in the firm, who testified on the amount of the partnership earnings and the share due the plaintiff's deceased husband. The issue was whether the firm's accounting records provided best evidence and therefore should have been produced. | "In its modern application, the best evidence rule amounts to little more than the requirement that the contents of a writing must be proved by the introduction of the writing itself, unless its absence can be satisfactorily accounted for." IN THIS CASE, there was no attempt to prove the contents of writing; the issue was partnership earnings. The court held that the "best evidence rule" is limited to cases where the contents of the writing are to be proved and that the district judge erred in excluding the oral testimony as to the earnings of the partnership. NB: The Courts have been divided on the issue as to whether oral testimony is admissible to prove matters contained in the books of account. |
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Meyers v. United States United States Court of Appeals, District of Columbia, 1948 84 U.S.app.D.C. 101, 171 F.2d 800 Pg. 690 |
Defendant, Lamarre, was prosecuted for subornation of perjury for his testimony before a United States Senate subcommittee. Although a transcript of defendant's testimony was available, William P. Rogers, chief counsel to the senatorial subcommittee, who had examined Lamarre, was permitted to testify as to what Lamarre had sworn to the subcommittee. | The best evidence rule is limited to cases where the contents of a writing are to be proved. In this case, the Court held that there was no attempt to prove the contents of a writing and therefore the best evidence rule did not apply and the testimony of William P. Rogers was admissible. |
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People v. Enskat Appellate Department, Superior Court, Los Angeles County, California, 1971 20 Cal.App.3d Supp. 1, 98 Cal.Rptr. 646 Pg. 692 |
The defendant, Enskat, was charged with two counts of exhibiting obscene motion pictures. The motion picture was not seized or placed in evidence by the prosecution. The officers entered the theater and took pictures of portions of the film. The balance of the film was the subject of testimony. The issue on appeal was whether the best evidence rule applies to motion pictures. | The best evidence rule (where the content of a writing is sought to be proved, secondary evidence is inadmissible unless failure to offer the original writing as primary evidence is satisfactorily explained) applies to motion pictures. |
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United States v. Dockins United States Court of Appeals, Fifth Circuit, 1993 986 F.2d 888 Pg. 695 |
Dockins appealed his convictions for illegal possession of a firearm by a convicted felon and for knowingly making false statements during the purchase of a firearm on the grounds that evidence of his status as a felon was not properly authenticated. The evidence at issue was a fingerprint card and police record sheet, linking Dockins to the conviction of Carl Tyron Smith. | Federal Rule of Evidence 901(a) states, "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." In this case, the evidence was not self-authenticating and should have been excluded. However, other evidence proved beyond a reasonable doubt that Dockins was a felon so the judgment was affirmed. |
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First State Bank of Denton v. Maryland Casualty Co. United States Court of Appeals, Fifth Circuit, 1990 918 F.2d 38 Pg. 697 |
The Millses' residence, insured by Maryland Casualty Co. (defendant), was completely destroyed by fire. The defendant concluded that the fire was set intentionally and refused to make payments on the insurance policy. The Millses brought suit, but died before trial. Plaintiff, First State Bank of Denton, continued claim as executor. At trial, the insurance company produced evidence, which tended to prove that Mills was implicated in setting fire to his house. The evidence at issue was that of a police dispatch call at 1:00 a.m. The police dispatcher spoke to an unidentified person, who claimed that Mills was not at home. The trial court allowed the insurance company to introduce the evidence and the plaintiff appeals on the grounds that the evidence was not properly authenticated. | Federal Rule of Evidence 901(b)(6) provides that authentication can occur for a "telephone conversation, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone." In this case, the plaintiff argued that the person did not identify himself as the proper party, but instead said, "the Millses' residence." However, the court concludes that all that is needed for authenticating a phone call is that the proponent offer "sufficient authentication to make a prima facie case that would allow the issue of identity to be decided by the jury." |
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Hill v. Skinner Court of Appeals of Ohio, 1947 81 Ohio App. 375, 79 N.E.2d 787 Pg. 700 |
The infant plaintiff, Hill, claimed that he was bit by "Chang," a dog owned by the defendant, Skinner. The child stated that the dog bit him on the head and mouth while the child was "loving him." The issue on appeal was whether the child was competent to give testimony. | "The essential test of the competency of an infant witness is his comprehension of the obligation to tell the truth and his intellectual capacity of observation, recollection and communication." The Court found that the child comprehended his obligation to tell the truth, as the child mentioned that if he lied, "God won't love me." And, the child demonstrated a capacity for memory of events, observation, recollection and communication. |
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State ex rel. Collins v. Superior Court Supreme Court of Arizona, 1982 132 Ariz. 180, 644 P.2d 1266 Pg. 709 |
Over a three year period eighteen reported rape incidents took place in unpopulated areas in west Phoenix. Couples in vehicles were approached by a masked man, carrying paraphernalia to help him effectuate the rape. The defendant was arrested when he approached a decoy vehicle containing a male and female officer in plain clothes. The defendant moved to suppress the evidence of witnesses that testified against him that had been hypnotized. | Hypnotically refreshed testimony is not per se admissible. Thus, the case was remanded to the trial court. |
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Rock v. Arkansas Supreme Court of the United States, 1987 483 U.S. 44 Pg. 719 |
Petitioner Vickie Lorene Rock was charged with manslaughter in the death of her husband, Frank Rock. She shot him in the chest following a dispute, but could not recollect the details of the shooting. Petitioner's attorney suggested that she submit to hypnosis to refresh her memory. Petitioner was hypnotized twice and remembered that at the time of the incident she did not have her hand on the trigger and that the gun discharged when her husband grabbed her arm. As a result of those details, her counsel arranged to have a gun expert examine the handgun. The inspection revealed that the gun was defective and prone to fire when hit or dropped, without the trigger's being pulled. However, the trial judge held that her testimony was inadmissible due to the per se rule excluding a criminal defendant's hypnotically refreshed testimony. The issue before the Supreme Court was whether a criminal defendant's right to testify could have been restricted by a state rule that excludes her post-hypnosis testimony. | "Arkansas' per se rule excluding all posthypnosis testimony infringes impermissibly on the right of a defendant to testify on his or her own behalf." |
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Tanner v. United States Supreme Court of the United States, 1987 483 U.S. 107 Pg. 728 |
Petitioners were convicted of conspiracy to defraud the United States and of committing mail fraud. After the trial, Tanner's attorney received an unsolicited phone call from one of the jurors, who informed Tanner's attorney that several of the jurors consumed alcohol during the lunch breaks at various times throughout the trial, causing them to sleep through the afternoons. Tanner's attorney also received a visit at his house from a second juror who reported "he felt like . . . the jury was on one big party." The second juror additionally reported that jurors used alcohol, marijuana and cocaine during the trial. The issue was whether the District Court was required to hold an evidentiary hearing, including juror testimony, on juror alcohol and drug use during the trial. | Federal Rule of Evidence 606(b) states "Competency of Juror as Witness . . . Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) or whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror concerning may not be received on a matter about which the juror would be precluded from testifying be received for these purposes." In this case, the Court held that the allegations of substance abuse were an internal matter and thus the jury testimony could not be permitted pursuant to F.R.E. 606(b). |
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Smith v. Rapid Transit, Inc. Supreme Judicial Court of Massachusetts, 1945 317 Mass. 469, 58 N.E.2d 754 Pg. 762 |
Plaintiff claimed that a bus veered her off the road, causing her to crash into a parked car. The bus line that plaintiff claimed caused the crash did not constitute all the buses that traveled the route on which the accident occurred. | A "proposition is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there." In this case, the Court held that the most that could have been said by the evidence was that perhaps the mathematical chances somewhat favor the proposition that a bus of the defendant caused the accident, which the Court held was not enough. |
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Dyer v. MacDougall United States Court of Appeals, Second Circuit, 1952 201 F.2d 265 Pg. 764 |
The case was an appeal by the plaintiff from a summary judgment dismissing two counts of a complaint for libel and slander. Plaintiff asserted that defendants slandered plaintiff in plaintiff's absence but in the presence of only two other persons. If there were to be a trial, plaintiff couldn't himself have testified, for he knew of his own knowledge none of the facts that were necessary to support his case. To prove his case, he would have had to call defendant, who, in his oral testimony, would have denied that he had uttered the alleged slanderous statement. Plaintiff was aware at the time of the summary judgment proceeding, that the only two other possible witnesses he could have summoned would have corroborated with defendant. | A judge may order summary judgment where a plaintiff is unable to produce any witnesses at trial who will testify to his allegations. |
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Atkinson v. Hall Supreme Court of Maine, 1989 556 A.2d 651 Pg. 781 |
The defendant, Robert Hall, dated the plaintiff, Julie Atkinson, on and off and engaged in sexual intercourse with her. Subsequent to their affair, Atkinson married another man, Gerald Marshall, and told Hall that she was pregnant with the other man's child. The child's birth certificate listed Marshall as his father. Marshall and Atkinson divorced and Atkinson sued Hall for child support. Blood tests showed a 98.27 percent probability that Hall was the father of the child. In Maine, when a blood test shows the probability of paternity to be 97 percent or higher, "the alleged father is presumed to be the father, and the evidence must be admitted." At the same time, because Atkinson was married to Marshall at the time of the child's birth, there was a second presumption that asserts that whenever it is established in an action that a child was born to or conceived by a woman while she was lawfully married, the party asserting the illegitimacy has the burden of producing evidence and the burden of persuading the trier of fact beyond a reasonable doubt of such illegitimacy. Thus, the two presumptions were in direct conflict. | "If two presumptions arise which are conflicting with each other, the court shall apply the presumption which is founded on the weightier considerations of policy and logic. If there is no such preponderance, both presumptions shall be disregarded." |
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