– Old Chief v. United States (I)
1. Case Heading:
Parties:
Year: 1997
Court: Supreme Court of the US
2. Disposition:
3. Holding: a district court abuses its discretion under the Federal Rules of Evidence if it spurns a defendant's offer to concede a prior judgment and admits the full judgment record over the defendant's objection.
4. Issue: Whether the govt gets to tell the jury that Old Chief was involved in previous bodily injury.
5. Procedural History:
6. Facts: Old Chief was charged with being a convicted felon in possession of a firearm. Old Chief was also charged with assault with a deadly weapon and using a firearm in a crime of violence. His prior felony conviction was for assault causing serious bodily injury, so the defense offered to stipulate to the conviction in hope of keeping its title and the details from the jury.
7. Rule:
8. Reasoning: Defendant said that reveling the name and nature of his prior conviction would unfairly tax the jury’s capacity to hold the government to is burden of proof beyond a reasonable doubt on current charges. Defendant argued that the offer to stipulate rendered evidence of the name and nature of the offense inadmissible under FRE 403.
The fact that the prior conviction was for assault is a step on one evidentiary route to the ultimate fact since it places Old Chief in a sub-class for whom firearms possession is outlawed.
The accepted rule that the prosecution is entitled to prove its case free from any defendant’s option to stipulate the evidence away rests on good sense. When economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.
Motion in limine- tries to exclude the evidence before the trial starts.
Govt has to prove that Old Chief was a convicted felon and that he had a firearm.
The court says it passes FRE 401 relevance test.
– State v. Chapple
1. Case Heading:
Parties:
Year: 1983
Court: Arizona Supreme Court
2. Disposition: Reverse the conviction.
3. Holding: The only possible use of the photographs would have been to inflame the minds of the jury or to impair their objectivity. The admission was legally erroneous and an abuse of discretion.
4. Issue:
5. Procedural History:
6. Facts: Varnes was found dead of a gunshot wound in the head. Defendant Chapple claimed to have been in another state at the time but was convicted on the basis of testimony by Scott and Buck who were involved in the drug transaction and did not actually see the killing. Buck testified that Dee had confessed to killing Varnes and Scott and Buck identified defendant as Dee by picking out his picture from a photo display.
7. Rule:
8. Reasoning: Defendant contends that the trial court erred by admitting pictures of the charred body and skull of the victim, because the pictures were gruesome and inflammatory.
Photographs having probative value are admissible but must be relevant to an issue in the case.
Admissibility depends not only on relevancy but on a balancing of the various effects of the admission of such evidence.
If the photographs have no tendency to prove or disprove a question which is actually contested, they have little use or purpose except to inflame and would usually not be admissible.
Photographs had little probative value. The facts were not in controversy.
FRE 401 is satisfied and the evidence is relevant.
FRE 403 is probative value substantially outweighed by a danger? Photographs have low probative value because it doesn’t help the case. Unfair prejudice of inflamed passions is involved.
– Old Chief v. US (II)
1. Case Heading:
Parties:
Year: 1997
Court:
2. Disposition: Reverse and remand.
3. Holding: The Supreme Court decides that the trial court should have excluded proof of the name and details of the prior conviction as too prejudicial.
4. Issue:
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: As for the analytical method to be used in FRE 403 balancing: an item of evidence might be viewed as an island, with estimates of its own probative value and unfairly prejudicial risk the sole reference points in deciding…; the question of admissibility might be seen as inviting further comparisons to take account of the full evidentiary context of the case as the court understands it when the ruling must be made.
Old Chief’s proffered admission would have been not merely relevant but seemingly conclusive evidence of the element. Although the name of the prior offense may have been technically relevant, it addressed no detail in the definition of the prior-conviction element that would not have been covered by the stipulation or admission.
Proving status without telling exactly why that status was imposed leaves no gap in the story of a defendant’s subsequent criminality and its demonstration by stipulation or admission neither displaces a chapter from a continuous sequence of conventional evidence nor comes across as an officious substitution.
Unfair prejudice - Jury misuse. When you calculate probative value, you should compare evidentiary alternatives. An offer to stipulate would make jury suspicious. Probative value will take into account that there is a stipulation. Less of probative value.
(1) How important is it? (2) is there an alternative? (stipulation) (3) is it disputed? (not disputed; it is stipulated) (4) danger of prejudice (there is real risk)
- Cain v. George
1. Case Heading:
Parties:
Year: 1969
Court: US Court of Appeals 5th Circuit
2. Disposition:
3. Holding: The testimony of George was clearly the best available evidence to support their position that carbon monoxide did not come from the heater. It was admissible to show how the heater had acted in the past.
4. Issue:
5. Procedural History: A jury verdict in the form of answers to special interrogatories found that the death was not proximately caused by the negligence of Defendants or by his own negligence and that death was due to an unavoidable accident. District Court entered a final judgment for Defendants and dismissed the action on its merits.
6. Facts: Parents brought suit for the death of their son who died of carbon monoxide poisoning while a guest in appellees’ motel. A chair next to the heater had burned and was smoldering at the time of the arrival of the fire department. Plaintiffs allege that the gas heater in the motel was defective because it had been improperly installed, improperly vented, and not inspected or cleaned since installation.
7. Rule:
8. Reasoning: Appellants content that the trial court erred in allowing in evidence the testimony of the motel owners concerning the number of guests who occupied the room and who had no complaints.
The testimony was relevant on the issue that carbon monoxide came from the smoldering chair and clothing and not from the gas heater.
Motel owners are witnesses. Previous customers are declarant. Potential statement is there’s nothing wrong with heater. Statement… hearsay.
If previous customers take a stand, it is in-court statement and is not a hearsay.
Hearsay - US v. Check
1. Case Heading:
Parties:
Year: 1978
Court: US Court of Appeals for the 2nd Circuit
2. Disposition: Conviction reversed and remanded.
3. Holding: The district judge should have granted Check’s motion to strike all of SPinelli’s testimony narrating his conversations with Cali.
4. Issue:
5. Procedural History:
6. Facts: Check was convicted of possessing cocaine with intent to distribute. Spinelli was the key witness against him. Spinelli worked undercover and worked through an informant named Cali. Spinelli testified that Cali arranged a meeting with Check and pursuant to that arrangement, Spinelli and Cali met at a restaurant. Spinelli further testified that after concluding his conversation with Cali, Spinelli left the restaurant and went to a topless bar where he had another conversation with Cali, after which Check indicated that he wanted to speak with Spinelli directly. Cali refused to testify at trial. To introduce the substance of Spinelli’s conversations with Cali without violating the hearsay rule, the government (plaintiff) asked Spinelli to repeat what Spinelli said to Cali, without repeating Cali’s statements to Spinelli.
7. Rule:
8. Reasoning: The government was arguing that the out-of-court statements were admissible because they were somehow excluded from the definition of hearsay or qualified for some supposed exception to the hearsay rule.
Significant portions of Spinelli’s testimony regarding his conversations with Cali were indeed hearsay, for that testimony was a transparent attempt to incorporate into the officer’s testimony information supplied by the informant who did not testify at trial.
Hearsay - Betts v. Betts
1. Case Heading:
Parties:
Year: 1970
Court: Washington Court of Appeals
2. Disposition: Affirmed.
3. Holding: use of foster mother’s testimony does not violate the hearsay evidence rule.
4. Issue:
5. Procedural History: On appeal, Rita urges that the trial court erred in admitting certain testimony by Tracey’s foster mother.
6. Facts: Michael Betts sued Rita in Washington and obtained a judgment awarding him custody of their daughter, Tracey Lynn. In Washington, Rita, Tracey, and James lived with Caporale and James died from internal injuries and multiple bruises. Tracey was placed in protective custody. Caporale was charged with second-degree murder but was acquitted with a finding that the evidence was insufficient. The foster mother testified that Tracey stated that Caporale killed James and that he is mean.
7. Rule:
8. Reasoning: The statements of the child were not admitted to prove the truth of the assertions she made, but merely to indirectly and inferentially show the mental state of the child at the time of the child custody proceedings.
There is a distinction between nonhearsay statements which circumstantially indicate a present state of mind regardless of their truth, and hearsay statements which indicate a state of mind because of their truth. The statements are former.
The mental state of the child is an important element in determining what is best for the child’s welfare.
-hypothetical hearsay use: statement used to prove the guy killed the brother.
-hypothetical nonhearsay use: statement used to show girl is scared of the guy.
- State v. Motta
Prosecutor wants the prior statement for (1) impeachment (2) substantive evidence (hearsay). Declarant: Conlin. Statement: Nova Smith assaulted me.
- State v. Motta
1. Case Heading:
Parties:
Year: 1983
Court: Hawaii Supreme Court
2. Disposition: Affirmed.
3. Holding: A composite sketch is hearsay but nevertheless admissible under the hearsay exception for prior identifications if it complies with HRE 802.1(3).
4. Issue:
5. Procedural History: The jury found appellant guilty of the offense of robbery in the first degree. Appellant contends that the trial court erred in admitting Aragon’s composite sketch based on Iwashita’s description. Appellant argues the sketch was inadmissible hearsay.
6. Facts: Wendy Iwashita, a cashier at Anna Miller’s Coffee House, was robbed at gunpoint by a man who demanded that she give him all the money in her cash register. Aragon drew a composite sketch of the robbery suspect based on Iwashita’s description. Iwashita picked appellant’s photograph from a photographic array of about 25 to 30 pictures. At trial, Iwashita pointed out the appellant as the person who robbed her. Appellant testified that he was at a nightclub at the time and called witnesses to describe his physical appearance to corroborate his alibi.
7. Rule:
8. Reasoning: Other courts have admitted composite sketches into evidence. One view is that a police sketch is not even hearsay because it does not qualify as a statement. Another approach is to view police sketch as hearsay but admissible under various common-law (e.g. res gestae) hearsay exceptions. The other approach is to allow the admission of sketches under the prior identification exception to the general hearsay exclusionary rule.
It is admissible if (1) declarant testifies at trial and is subject to cross-examination concerning the subject matter of his statement and (2) the statement is one of identification of a person made after perceiving him.
- Bruton v. US
1. Case Heading:
Parties:
Year: 1968
Court: US Supreme Court
2. Disposition:
3. Holding: the unreliability of such evidence is intolerably compounded when the alleged accomplice does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.
4. Issue:
5. Procedural History: Bruton and Evans were convicted. The 8th Circuit reversed the conviction of Evans because his confession should not have been admitted against him; it affirmed Bruton’s conviction because the instructions prevented any harm.
6. Facts: In the trial for Bruton and Evans for armed postal robbery, a postal inspector testified that Evans made an oral confession saying that “Bruton and I committed the robbery” while being interrogated in a St. Louis jail. The trial court admitted the confession against Evans but told the jury that it could not be considered in any respect against Bruton. At the close of trial, the judge told the jury that a confession by one defendant “may not be considered as evidence against” another who was not present and in no way a party to it; the jury should leave “out of consideration entirely any evidence admitted solely against” another defendant.
7. Rule:
8. Reasoning: reject the proposition that a jury, when determining confessor’s guilt could be relied on to ignore his confession of guild should it find the confession involuntary.
Challenge Dlli Paoli premise: a properly instructed jury would ignore the confessor’s inculpation of the nonconfessor in determining the latter’s guilt; also repudiated by amending FRCrimP 14.
Argument for reliance on the limiting instruction -> provide a way around the exclusionary rules of evidence that is defensible because it furthers the search for truth. Defense of Delli Paoli -> the benefits of joint proceedings should not have to be sacrificed by requiring separate trials in order to use the confession against the declarant. Tie the result to maintenance of the jury system.
Bruton is only a criminal rule. A statement implicates a co-defendant.
In criminal cases it cannot be used as evidence. Use it only for the permissible.
- US v. Hoosier
1. Case Heading:
Parties:
Year: 1976
Court:
2. Disposition: Affirm the conviction.
3. Holding: more is needed to justify admission of this statement than the mere presence and silence of the appellant, there was more in this record.
4. Issue:
5. Procedural History:
6. Facts: Hoosier was convicted of the armed robbery of a federally insured bank. Four witnesses identified him. Rogers testified that he had been with Hoosier who told Rogers he was going to rob a bank and Rogers saw Hoosier after robbery with diamond rings. Hoosier’s girlfriend spoke of sacks of money. Hoosier argues that the girlfriend’s statement from Rogers was inadmissible hearsay and the District Judge committed reversible error.
7. Rule:
8. Reasoning: appellant would have promptly denied his girlfriend’s statement if it had not been true.
- Mahlandt v. Wild canid survival & research center
1. Case Heading:
Parties:
Year: 1978
Court: US Court of Appels for the 8th Circuit
2. Disposition: Reversed and remanded.
3. Holding: three are admissible (see reasoning).
4. Issue: correctness of three rulings which excluded conclusionary statements against interest. Two of them made by a defendant, an employee of the corporate defendant, and the third as a statement appearing in the records of a board meeting of the corporate defendant.
5. Procedural History: the jury brought in a verdict for the defense. The judge reasoned that Poos did not have any personal knowledge of the facts and the first two admissions were hearsay and the third was subject to the same objection of hearsay and unreliability because of lack of personal knowledge.
6. Facts: Civil action for damages from an alleged attack by a wolf on a child. Mahlandt was sent by his mother to a neighbor’s home on an adjoining street to get his brother, Donald. Daniel’s mother watched him cross the street then turned into the house. Daniel’s path took him along the walkway adjacent to the Poo’s residence. Next to the walkway was a five foot chain link fence to which Sophie had been chained with a six foot chain. Sophie was chained because the evening before she had jumped the fence and attacked a beagle. A neighbor heard a child’s screams and saw a boy lying on his back within the enclosure with a wolf straddling him. The wolf’s face was near Daniel’s face. Clarke Poos got the wolf off of the boy and disappear with the child. Clarke saw Sophie standing back from the boy and wailing, a sign of compassion. Clarke told Daniel’s mother “a wolf got Danny and he is dying” but denies that statement. Poos left note to Sexton that Sophie bit a child but denies its admission. Daniel had lacerations of the face, left thigh, left calf, and right thigh, and bruises of the abdomen and chest.
7. Rule: (1) Clarke told Daniel’s mother “a wolf got Danny and he is dying.” (1) note (2) Poos told Sexton that “Sophie had bit a child that day.” (3) denied offer of an abstract of the minutes containing reference on “incident of Sophie biting the child.” (admissible against Center but not admissible against Poos.)
8. Reasoning: the statement in the note pinned to the door is not hearsay. It was his own statement. He had manifested his adoption or belief in its truth.
(Poos) This is not a 801(d)(2)(C) situation because Poos was not authorized or directed to make a statement on the matter by anyone. But D applies because Poos had actual physical custody of Sophie.
(Center) Neither Rule 805 nor 493 introduces into 801(d)(2)(D) of an implied requirement that the declarant have personal knowledge of the facts underlying his statement. The two statements were admissible against Center.
As to the entry in the records of a corporate meeting, the directors as primary officers had the authority to include their conclusions in the record and the evidence fall within 801(d)(2)(C) as to Center and is admissible.
Rule 403 does not warrant the exclusion of the evidence of Poo’s statements as against himself or the Center.
Note is admissible against Poos as 801(d)(2)(A). It is admissible against Center as 801(d)(2)(D). Statement is the same. For minutes to Center, members of the board are authorized to talk at the meeting and have conclusions in the minutes and 801(d)(2)(C) is applied. Minutes is not admissible against Poos.
Minutes against Center: not 801(d)(2)(D) because not within the scope of relationship.
- Nuttall v. Reading co.
1. Case Heading:
Parties:
Year: 1956
Court: US Court of Appeals 3rd Circuit
2. Disposition: Reverse and remand.
3. Holding: Nuttall’s statements during and following the telephone conversation should be admitted into evidence to prove that he was being compelled to come to work.
4. Issue:
5. Procedural History: Nuttall recovered a verdict of $30000, but the judge ordered a new trial on the ground that an improper claim for damages on behalf of a minor child may have engendered “sympathetic emotion” in the jury. In the second trial, the court directed a verdict against Nuttall. Nuttall urged error in exclusion of (1) two affidavits, (2) her own testimonial account of her husband’s phone conversation with the yardmaster, and (3) testimony by the fireman about remarks Nuttall made in the trainyard.
6. Facts: Florence Nuttall, executrix of the estate of Clarence Nuttall, sued the railroad Reading under the Federal Employers’ Liability Act. Clarence Nuttall worked as an engineman and was required to report to work despite his objection that he was ill.
7. Rule:
8. Reasoning: Judge excluded the affidavits as hearsay. Fireman O’Hara’s affidavit stated that Nuttall did not look well” and declined O’Hara’s offer of a lift home and drove off himself. Conductor Snyder’s affidavit confirmed O’Hara’s version of events.
What Clarence Nuttall said to his wife was competent to prove that he was being forced to go to work. What Nuttall said to O’Hara in the railroad yard was admissible to prove the same point.
When a man talks as Nuttall did and acts as Nuttall did during and immediately following a conversation on the telephone with his boss, it shows that the boss was requiring him to come to work against his will.
She did hear her husband characterize the statements of his boss at the very moment he heard what Marquette had to say and immediately thereafter. Such characterizations, since made substantially at the time the event they described was perceived, are free from the possibility of lapse of memory on the part of the declarant. Contemporaneousness lessens the likelihood of conscious misrepresentation.
- United States v. Arnold
1. Case Heading:
Parties:
Year: 2007
Court: US Court of Appeals for the 6th Circuit
2. Disposition: Affirm.
3. Holding: All of these statements fit the emergency exception under the decision in Crawford.
4. Issue:
5. Procedural History: A grand jury charged Arnold with being a felon in possession of a firearm. Invoking the excited utterance exception, the trial court admitted redacted recording of the 911 call as well as Gordon’s statements at the scene.
6. Facts: Gordon called 911 and told the operator that Arnold just threatened her with a gun. Gordon explained to officers that she was in an argument with Arnold, mother’s boyfriend, and that he pulled a gun on her and said he was going to kill her. She saw a gun in his hand and observed him cock the weapon. Gordon’s mother pulled up in a car with Arnold and Gordon pointed at Arnold to the officers. Officers searched the car and found a plastic bag containing a loaded black handgun.
7. Rule:
8. Reasoning: Arnold challenges admissibility of the 911 call, Gordon’s initial statements to officers, and Gordon’s statement to officers upon Arnold’s return to the scene under the excited utterance exception.
To satisfy the exception, (1) there must be an event startling enough to cause nervous excitement, (2) the statement must be made before there is time to contrive or misrepresent, and (3) the statement must be made while the person is under the stress of the excitement caused by the event.
911 call: meets (1) and (3). There was an immediacy to her statements. Gordon made the statement before there was time to contrive or misrepresent. Considerable nonhearsay evidence corroborated the anxiety-inducing nature of this event.
Initial statements: the time between the end of the 911 call and the officers’ arrival did not give Gordon sufficient time to misrepresent what had happened. Gordon remained visibly agitated by threat.
Statement upon Arnold’s return: admitted statement as part of the same emotional trauma that captured Gordon’s earlier statement to the officers.
Moore dissent: the district court concluded without explanation that phone call appears to have been made before there was time to contrive or misrepresent. The words spoken on the tape do not establish that Gordon offered these statements before there was time to contrive or misrepresent. By the time officers arrived, the emergency had passed.
- Mutual Life Insurance Co. v. Hillmon
1. Case Heading:
Parties:
Year: 1892
Court: US Supreme Court
2. Disposition: Reverse and remand.
3. Holding: the two letters were competent evidence of the intention of Walters at the time of writing them, which was a material fact bearing upon the question in controversy.
4. Issue: are the letters written by Walters admissible?
5. Procedural History: The trial court excluded the letters and the jury returned verdicts favorable to Sallie.
6. Facts: Sallie Hillmon sued Mutual Life Insruance to recover $10000 in proceeds payable under a policy on the life of her husband John Hillmon. She alleged that John died when accidentally shot by his companion John Brown at a campsite at Crooked Creek, Kansas. Sallie filed two other suits for polices on his life. Brown testified that he accidentally shot Hillmon dead. The three insurance carriers argued that the body discovered was that of Adolph Walters, and that Hillmon and Brown sought to defraud and Hillmon had murdered Walters. Brown previously sifnged an affidavit saying that he and Hillmon had conspired to defraud the companies; and that someone’s body was found and Hillmon fired the shot. Insurance provided letters that Walters intended to leave Wichita with Hillmon.
7. Rule:
8. Reasoning: Letters from walters to his family and his betrothed were the natural evidences of his intention to go to Crooked Creek.
The letters in question were competent not as narratives of facts… but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon than if there had been no proof of such intention.
Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Those expressions are the natural reflexes of what it might be impossible to show by other testimony.
Need broad interpretation of the Hillmon doctrine to prove that Hillmon went to Crooked Creek too.
- US v. Pheaster
1. Case Heading:
Parties:
Year: 1979
Court: US Court of Appeals for the Ninth Circuit
2. Disposition: Affirm the convictions.
3. Holding: we cannot conclude that the district court erred in allowing the testimony concerning Larry Adell’s statements to be introduced.
4. Issue:
5. Procedural History:
6. Facts: Larry Adell left his friends at a table in Sambo’s North and disappeared. He told friends that he intended to meet Angelo in the parking lot to pick up free marijuana. On the day Larry disappeared, his father got a phonecall making a ransom demand for $40000 and a threat that he would never see his son alive again if he called police or FBI. He called the FBI. Three attempts to pay the ransom failed and the kidnappers cut off communications. Angelo Insico and another are tried on federal charges of conspiracy to kidnap and of using the mail to demand money and convey threats. Francine and Doug are permitted to testify to Larry’s description of what he planned to do. Francine testifies that while with Larry she met Angelo, identified as defendant.
7. Rule:
8. Reasoning: Hearsay evidence is admissible if it bears on the state of mind of the declarant and if that state of mind is an issue in the case.
Under the Hillman doctrine the state of mind of the declarant is used inferentially to prove other matters which are in issue. When the performance of a particular act by an individual is an issue in a case, his intention to perform that act may be shown.
When hearsay evidence concerns the declarant’s statement of his intention to do something with another person, the Hillmon doctrine requires that the trier of fact infer from the state of mind of the declarant the probability of a particular act not only by the declarant but also by the other person.
The evidence can be used to prove that Larry intended to go to the parking lot.
- Blake v. State
1. Case Heading:
Defendant: Blake. Charge: second degree sexual assault of stepdaughter. Witness: Dr. Bowers. Declarant: the victim. Statement: Blake is the one who sexually assaulted her.
Year: 1997
Court: Wyo Supreme Court
2. Disposition: Affirmed.
3. Holding: The district court did not abuse its discretion by admitting the victim’s hearsay statements into evidence pursuant to FRE 803(4).
4. Issue:
5. Procedural History: At trial, the State relied upon Blake’s typed confession Dr. Bowers’ testimony, testimony of the nurse/DFS investigator/officer who interviewed. Over objection by defense counsel, the district court allowed Dr. Bowers to testify. The jury returned a verdict of guilty convicting Blake of two counts of second degree sexual assault.
6. Facts: Department of Family Services, together with sheriffs, interviewed the victim at a local high school. The victim was transported to the hospital emergency room. During the course of the examination and in response to questions by Dr. Bowers, the victim stated that she had been forcibly subjected to sexual intercourse by stepfather numerous times over the past years.
7. Rule:
8. Reasoning: generally, statements attributing fault or identity usually are not admissible under FRE 803(4). In situations involving physical or sexual abuse of children, statements made by a child victim to a medical professional may be admitted.
Renville test requires that 1) the declarant’s motive in making the statement is consistent with the purposes of promoting treatment or diagnosis and 2) the content of the statement is reasonably relied on by a physician in treatment or diagnosis. -> satisfied in this case.
Dr. Bowers’ testimony indicates that she relied on the victim’s account of the circumstances surrounding the sexual assault, including the abuser’s identity, to determine how to properly treat.
- Ohio v. Scott
1. Case Heading:
Defendant: Randy Scott. Charge: shooting at another with intent to kill, wound, or main, and shooting at two police officers. Witness: Carol Tackett. Declarant: Randy Scott, Carol Tackett. Statement: I wrecked a car and shot a guy.
Year: 1972
Court: Ohio Supreme Court
2. Disposition: Affirmed.
3. Holding: the admission of the signed statement of Tackett as past recollection recorded was proper and that such did not amount to a denial of Defendant’s right of confrontation or cross-examination.
4. Issue: whether the rule of evidence of “past recollection recorded” is recognized, whether it may be employed in a criminal trial, and whether such rule is violative of the 6th Amendment right.
5. Procedural History:
6. Facts: Willard Lee was blinded by a shotgun blast in the face when he opened his door to investigate noises outside. A guest in his house fled by car, and was chased by Scott in a red ford. Scott fired at the police who pursued the Ford. Tackett had a conversation with Scott just prior to his arrest. She gave a handwritten, signed statement to the police that stated that Randy said he wrecked a car and shot a guy and Tackett asked if he was telling the truth and when Randy said he was Tackett tried to find police to tell him.
7. Rule:
8. Reasoning: Defendant argues that “past recollection recorded” has not been recognized in Ohio, the statement was hearsay and its admission in evidence deprived him of confrontation and cross-examination. -> statement was properly admitted as “past recollection recorded.”
In the past recollection recorded situation, the witness’ present recollection is still absent or incomplete, but his present testimony is to the effect that his recollection was complete at the time the memorandum was written and that such recollection was accurately recorded therein.
The statement consisted of facts of which the witness had firsthand knowledge; the written statement was the original memorandum made near the time of the event while the witness had a clear and accurate memory of it; the witness lacked a present recollection of the words used by Randy Scott in the conversation; and the witness stated that the memorandum was accurate.
- Petrocelli v. Gallison
1. Case Heading:
Type: civil. Defendant: Gallison. Charge: medical malpractice; whether he severed ilioinguinal nerve. Witness: . Declarant: Dr. Swartz / physician at Mass. General Hospital. Statement: ilioinguinal nerve was severed.
Year: 1982
Court:
2. Disposition: affirmed.
3. Holding: The business record is so cryptic that pure guesswork and speculation is required to divine the source of the cited information.
4. Issue:
5. Procedural History: The jury returned a verdict for Gallison. Petrocelli allege error in the exclusion of a sentence in Dr. Swartz’s postoperative report and a surgical note by another physician.
6. Facts: Petrocelli sued Dr. Gallison alleging medical malpractice in a hernia operation that Gallison performed on Petrocelli. Petrocelli suffered intense pain in his groin area. Petrocelli went to Mass. General Hospital and consulted Dr. Swartz, who diagnosed a hernia and did a second operation. Petrocelli underwent a third operation. Gallison told Beverly that “he could give Darvon but it is not going to do anything because he cut a nerve.” A consulting physician testified that the ilioinguinal nerve was injured or traumatized in the first operation. A neurologist who examined Petrocelli thought that sensation appeared intact in the ilioinguinal area. Gallison testified that he neither severed the nerve nor told Beverly that he had.
7. Rule:
8. Reasoning: The first item of excluded evidence, Dr. Swartz’s report filed the day after performance, reads that “during the course of that surgical procedure, the left ilioinguinal nerve was severed.” The other record, an entry made by a different physician at a Mass General Hospital, states that “hernia well healed but very worried about pain from transected ilio femoral nerve.” Petrocelli assert that they should have been admitted under FRE 803(6).
We think it entirely uncertain whether the reporting doctors themselves determined from ascertainable symptoms or observations that the nerve had been severed or transected in the previous operation, or whether instead these doctors were simply recording what the patient or his wife had reported. The statements are not obviously diagnostic in quality.
It is impossible to determine from the records themselves whether these reports reflected medical judgments, and there lacks corroborative evidence or testimony offered by the plaintiffs to assure the court that these were professional opinions.
Theories of 803(4) was never presented below. If it had, the statements would be admitted as matters related by the patient or a member of his family, not as professional opinion.
Declaration 1- Swartz: Petrolli said G cut the nerve. (803(6)). Declaration 2 – Petrocelli: G cut the nerve. (803(4)). 805 is satisfied.
- Norcon, Inc. v. Kotowski
1. Case Heading:
Defendant: Norcon. Charge: sexual harrassment. Witness: Ford / Flechsing. Declarant: Stampley / Coyle. Statement: drinking as a springboard for sex / Posehn does favors in exchange for sex.
Year: 1999
Court: Supreme Court of Alaska
2. Disposition:
3. Holding: As supervisors and safety employees, alcohol use and sexual harassments are matters which their jobs required them to report. It was not error to admit the Ford memo.
4. Issue:
5. Procedural History: The jury found Norcon liable for sexual harassment, and negligent and IIED.
6. Facts: Kotowski worked on the cleanup of the Exxon Valdez oil spill. Exxon retained Veco as general contractor. Veco subcontracted with Norcon for services other than security. Veco and Norcon had a policy against alcohol consumption by anyone working on the project or living in company housing. After two weeks working for Norcon, Kotowski was reassigned by Mike Posehn, a Norcon foreman who supervised Kotowski’s direct supervisor. However, Kotowski found that there were no quarters and no work for her on the new barge. Instead, Posehn propositioned Kotowski and invited her to come to his room where he gave her whiskey, despite Norcon’s policy against alcohol consumption. Posehn told Kotowski to come back to his room later for a party and to discuss her employment. Kotowski told Elmo Savell, an Exxon executive, that Posehn was sexually harassing her and agreed to tape record the conversations at the party in Posehn’s room where alcohol was being served. Posehn arranged to be alone with Kotowski and after asking her to spend the night, he unsuccessfully tried to prevent her from leaving the room. The next day, Kotowski was induced to sign a statement admitting to insubordination, and later the same day Kotowski was subjected to hostile questioning by Norcon, Veco and Purcell Security, a subcontractor responsible for security and investigations of rulebreaking. Kotowski and Posehn were fired on the same day, but only Kotowski for alcohol consumption. Kotowski sued Norcon for sexual harassment.
7. Rule:
8. Reasoning: Exhibit 7 is a three-page, handwritten memo from Ford, an investigator with Purcel Security, to Varnell, his superior. Kotowski offered the memo into evidence to prove the truth of the matters asserted. Memo describes how Posehn serves alcohol for sexual activity and would do favors in exchange for sexual activity. Norcon raises hearsay objection, and the court admitted it.
Kotowski argues that the memo fell within the business records exception to the hearsay rule; declarants had business reasons as employees to provide accurate and truthful responses. Alternatively, K argues 801(d)(2) should apply as admissions of a party-opponent.
Declaration 1: Ford wrote: Stampley said that Posehn had female visitors (803(6)). Declaration 2: Stampley: Posehn had female visitors. (801(d)(2)(D)). 805 satisfied.
Declaration 1: Ford wrote: Fleshing said that Coyle said that Posehn did favors for sex. (803(6)). Declaration 2: Fleshing: Coyle said that Posehn did favors for sex. (801(d)(2)(D)). Declaration 3: Coyle: Posehn did favors for sex. (801(d)(2)(D)). 805 satisfied.
- Baker v. Elcona Homes Corp.
1. Case Heading:
Type: Civil. Defendant: Slabach, Elcona Homes Corporation. Charge: negligence. Witness: Hendrikson. Declarant: Slabach. Statement: did not see the color of the light.
Year:
Court:
2. Disposition: affirm.
3. Holding: The Sgt’s own objective findings of fact, specifically his finding that the light was red for traffic approaching the intersection from the north, were admissible.
4. Issue: which vehicle had the right-of-way at the time it entered the intersection. Whether police accident report is admissible.
5. Procedural History: Jury ruled in favor of defendants. The district court admitted the report and the addenda under FRE 803(5).
6. Facts: Valiant automobile traveling southbound and a Ford truck traveling westbound collided, seriously injuring Baker and killing the other five occupants of Valiant. Slabach testified that he could not see the light because he was blinded by the sun. Baker had no recollection of the accident.
7. Rule:
8. Reasoning: the defense introduced the police accident report into evidence. Plaintiffs objected to Sgt record of the statement of Slabach and to Sgt’s notations concerning the fault for the accident. The report included the observation that the Valiant entered intersection against a red light. Sgt also checked the box for failure of the Valiant to yield the right-of-way and driver preoccupation for drivers of both.
The report was more properly admissible as a public record under FRE 803(8).
Whether Slabach’s statement as recorded in the report and the findings of Sgt were properly allowed to be put before the jury as substantive evidence.
Finding that the Valiant ran the red light is a factual finding -> it is. Whether the light was red or green for one driver at the time of the accident is distinctly a factual finding.
The report was timely; Sgt’s expertise and skill is not challenged; a formal hearing is not a sine qua non of admissibility; no improper motive exists.
It was proper under Rule 801 to introduce Slabach’s prior statement given to the police officer as showing that the testimony was consistent with prior statements.
801(d)(2)(A) declared by Slabach and used against him.
803(5) does not work because he can remember when he is refreshed.
803(8)(A)(iii) works.
- Lloyd v. American Export Lines, Inc.
1. Case Heading:
Type: Civil. Defendant: Export, Alvarez. Charge: negligence. Witness: Coast Guard officer. Declarant: Lloyd. Statement: Lloyd entered the resister house, lost recollection, and woke up in hospital days later.
Year: 1978
Court: US Court of Appeals for the 3rd Circuit
2. Disposition: Reverse and remand.
3. Holding: the previous party having like motive to develop the testimony about the same material facts is a predecessor in interest to the present party.
4. Issue:
5. Procedural History: The jury found Export negligent and awarded Alvarez but rejected that Export breached its warranty of seaworthiness. Export appealed, urging error in the exclusion of Lloyd’s testimony, and Alvarez cross-appealed, urging error in not entering JNOV.
6. Facts: Lloyd, an electrician on the SS Export, got into altercation with Alvarez, a third assistant engineer. Lloyd sued Export, alleging negligence. Export impleaded Alvarez and Alvarez counterclaimed against Export. Alvarez contended Export was liable because Lloyd started the fight, while Export argued Alvarez started it. Export sought to introduce a transcript of Lloyd’s testimony, taken by a Coast Guard hearing examiner during proceedings to determine whether Lloyd’s documents should be suspended or revoked.
7. Rule:
8. Reasoning: Rule 804 requires that the declarant is unavailable. Export and Lloyd’s counsel made extensive efforts to obtain Lloyd’s appearance but failed due to his seafaring occupation. -> satisfies 804.
Did Alvarez or a “predecessor in interest” have the “opportunity and similar motive to develop the testimony by direct, cross, or redirect examination as required by 804(b)(1)?
There was a sufficient community of interest shared by the Coast Guard in its hearing and Alvarez in the subsequent civil trial to satisfy Rule 804(b)(1).
The nucleus of operative fact was the same – the conduct of Lloyd and Alvarez aboard the SS Export. Coast Guard contemplated sanctions involving Lloyd’s license and Alvarez sought private substituted redress, but the basic interest advanced by both was that of determining culpability and exacting a penalty for the same behavior.
There existed sufficient opportunity and similar motive for the Coast Guard officer to develop Lloyd’s testimony at the former hearing to justify its admission against Alvarez at the later trial.
Stern concurring: “predecessor in interest” was used in its narrow, substantive law sense and defined in terms of a privity relationship. Coast Guard’s and Alvarez’s efforts do not establish “common motive.”
I cannot endorse a rule which would automatically render admissible against a party evidence which was elicited in a different proceeding by an unrelated person merely because both shared an interest in establishing the same facts.
Lloyd’s absence falls on 804(a)(5). Predecessor in interest is the coast guard officer.
- Williamson v. US
1. Case Heading:
Type: criminal. Defendant: Williamson. Charge: conspiracy, possession, distribution of cocaine. Witness: Sheriff. Declarant: Harris. Statement: Williamson was the mastermind behind the scheme.
Year: 1994
Court:
2. Disposition: Remand.
3. Holding: Nothing in the record shows that the lower courts inquired whether each of the statements in Harris’s confession was truly self-inculpatory.
4. Issue:
5. Procedural History: The court admitted what Harris told Walton. Williamson claims the against interest exception did not apply and that his rights under the Confrontation Clause were violated.
6. Facts: Harris was stopped for weaving on the highway and arrested after a search of the trunk led to the discovery of 19 kilograms of cocaine. Harris said he got the cocaine from a Cuban and got a note to deliver it to Williamson at a dumpster that night. Agent Walton tried to arrange a controlled delivery but Harris said he had lied and Williamson had drove in front in another car and drove past. Harris refused to let his statement be recorded or sign a written version. Williamson was convicted of possessing cocaine with intent to distribute, conspiracy, and traveling interstate to promote distribution. Harris refused to testify.
7. Rule:
8. Reasoning: FRE 804(b)(3) is founded on the notion that reasonable people tend not to make self-inculpatory statements unless they believe them to be true.
The rule cannot be read as expressing a policy that collateral statements are admissible.
A statement that is self-inculpatory does make it more reliable, but not when a statement is collateral to a self-inculpatory statement.
The rule does not eviscerate the against penal interest exception or make it lack meaningful effect.
If it were statement by Williamson we would use 801(d)(2)(A). It’s not so need 804(b)(3). 801(d)(2)(A) cannot be used because Harris is not a party. 801(d)(2)(E) cannot be used because it’s not furtherance of conspiracy. Conspiracy was over by that time. 801(d)(1)(A) or (B) cannot be used because Harris is not testifying.
- Crawford v. Washington
1. Case Heading:
Type: Criminal. Defendant: Crawford. Charge: assault, stabbing of Lee. Witness: police. Declarant: Sylvia. Statement: Sylvia implicated her husband in Lee’s stabbing. Evidence in issue:
Year: 2004
Court:
2. Disposition: Reverse the judgment of the Washington Supreme Court.
3. Holding: the State admitted Sylvia’s testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the 6th Amendment.
The Confrontation Clause applies to testimonial statements.
4. Issue:
5. Procedural History: The Washington Supreme Court affirmed Michael’s conviction, concluding that Sylvia’s statement fit the against-interest exception and faced issues of accomplice liability.
6. Facts: Crawford was convicted of assault after stabbing Lee, a man allegedly tried to rape Crawford’s wife Sylvia. The Court admitted both Crawford’s and Sylvia’s statements. Sylvia was unavailable as a witness because Michael had invoked the spousal testimonial privilege.
7. Rule:
8. Reasoning: Roberts says that an unavailable witness’s out-of-court statement may be admitted so long as it has adequate indicia of reliability. Petitioner argues that this test strays from the original meaning of the Confrontation Clause.
History supports two inferences: (1) The principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.
(2) The Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.
Two proposals: we apply the Confrontation Clause only to testimonial statements, leaving the remainder to regulation by hearsay law – thus eliminating the overbreadth referred to above. We impose an absolute bar to statements that are testimonial, absent a prior opportunity to cross-examine – thus eliminating the excessive narrowness referred to above.
The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability.
The unpardonable vice of the Roberts test is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.
This case is a self-contained demonstration of Roberts’ unpredictable and inconsistent application.
804(b)(6) has to wrongfully prevent from testifying. It does not work here. 804(b)(3)(A).
Confrontation clause also applies to out of court statement. Only applies when the statement is testimonial (ex parte testimony or its functional equivalent). Affidavit count as testimonial. Grand jury counts. Interrogations by police officers are testimonial. Sylvia’s testimony is testimonial (spousal privilege, unavailable declarant but does not fit into (2) so violates 6th Amendment).
- Davis v. Washington
1. Case Heading:
Type: criminal. Defendant: Davis and Herschel Hammon. Charge: felony violation of a domestic no-contact order/domestic battery and violating probation. Evidence in dispute: admission of 911 call. Witness: 911 caller/officer. Declarant: McCottry/Amy Hammon. Statement: Davis is the assailant / Herschel attacked Amy.
Year: 2006
Court:
2. Disposition: affirm the conviction in the Davis case in Washington and reverses the conviction of Hammon in the Indiana case.
3. Holding: this particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall.
4. Issue: when statements made to law enforcement personnel are testimonial and subject to the requirements of the Confrontation Clause.
5. Procedural History: Davis was charged with felony violation of a domestic no-contact order. The court admitted the recorded 911 call. Davis was convicted, and Washington Supreme Court affirmed.
6. Facts: a 911 operator received a call that ended before anyone spoke. The operator reversed the call and reached McCottry in the middle of a domestic disturbance with her boyfriend Davis. McCottry said Davis ran out the door, hit McCottry, and was leaving with someone else. Davis had come to McCottry’s house to “get his stuff.”
7. Rule:
8. Reasoning: statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency.
McCottry was speaking about events as they were actually happening, rather than describing past events. McCottry was facing an ongoing emergency. The elicited statements were necessary to be able to resolve the present emergency. McCottry was frantically answering over the phone in an environment that was not tranquil. -> purpose is to enable police assistance to meet ongoing emergency.
McCottry’s early statements identifying Davis as her assailant were not testimonial.
Thomas concurring and dissenting in part: the statements at issue in both cases are nontestimonial and admissible under the Confrontation Clause.
803(1) present sense impression. Need to dispel other reasons for being inadmissible and confrontation clause is one. 803(2) also works.
McCottry’s statements answering the questions were testimonial. For Amy Hammon, the emergency was over and statements were testimonial.
Excited utterance was used to admit the statement.
- Tuer v. McDonald
1. Case Heading:
Type: civil. Defendant: St. Joseph’s Hospital, McDonald, Brawley. Charge: medical malpractice. Evidence in dispute: after Tuer died, hospital issued a new policy. Witness: . Declarant: . Statement: .
Year: 1997
Court: Court of Appeals of Maryland
2. Disposition: affirm.
3. Holding:
4. Issue:
5. Procedural History: the jury returned a verdict for the defendant. Plaintiff appealed, arguing that the trial court erred in excluding proof that the hospital changed its policy on heparin after death.
6. Facts: Eugene Tuer was put on atenolol and heparin. An anesthesiologist stopped the heparin on Monday morning to prepare for surgery. Surgeons postponed the operation to tend to an emergency involving another patient. At 1:30 p.m., Tuer suffered short of breath and suffered arrhythmia and low blood pressure. Tuer went into cardiac arrest and died the next day. St. Joseph changed its protocol to continue heparin until the patient is taken into the operating room.
7. Rule:
8. Reasoning: plaintiff argued that the change was not a remedial measure because the defense claimed the prior protocol was correct -> rejected.
Plaintiff argued that she was entitled to prove the change to show that continuing heparin was feasible.
Rule 5-407(b) exempts subsequent remedial measure evidence from the exclusionary provision of Rule 5-407(a) when it is offered to prove feasibility, if feasibility has been controverted.
Some courts interpreted the feasibility exception narrowly, disallowing evidence of subsequent remedial measures… others included a broader spectrum of motives and explanations for not having adopted the remedial measure earlier…
Dr. McDonald made clear that, had Tuer exhibited signs of renewed unstable angina, he would have restarted the heparin. It was a matter of a professional judgment call. That does not constitute an assertion that a restarting of the heparin was not feasible. It was feasible but not advisable.
Courts do not allow proof of a subsequent measure to impeach testimony that the measure was thought at the time to be less practical, or if the defendant says that due care was exercised. -> Change in hospital protocol was not admissible to impeach McDonald’s “brief statement that restarting the heparin would have been unsafe.”
- US v. Abel
1. Case Heading:
Type: criminal. Defendant: Abel. Charge: bank robbery. Evidence in dispute: Ehle’s rebuttal testimony that Mills must be lying on the stand. Witness: . Declarant: Ehle. Statement: Mills is part of Aryan Brotherhood..
Year:
Court:
2. Disposition: Reverse.
3. Holding: the evidence showing Mills’ and respondents’ membership in the prison gang was sufficiently probative of Mills’ possible bias towards respondent to warrant its admission into evidence.
4. Issue:
5. Procedural History: the District Court held that the probative value of Ehle’s testimony outweighed its prejudicial effect to Abel. the Court of Appeals held that the District Court improperly admitted Ehle’s rebuttal testimony which impeached one of defendant’s witnesses, because testimony was admitted to show that Mills must be lying on the stand.
6. Facts: Abel and two cohorts were indicted for robbing a savings and loan in Bellflower, CA. Abel informed the District Court at a pretrial conference that he would seek to counter Ehle’s testimony with that of Mills. Mills was a mutual friend who says Ehle had admitted to Mills that Ehle intended to implicate Abel falsely to receive a favorable treatment. The prosecutor disclosed that he intended to discredit Mills’ testimony by bringing Ehle back and elicit the fact that they were all members of “Aryan Brotherhood.” Mills denied that he was a part of a secret type of prison organization and Ehle testified that they were members.
7. Rule:
8. Reasoning: it is permissible to impeach a witness by showing his bias under the FRE. Ehle’s testimony about the prison gang certainly made the existence of Mills’ bias towards respondent more probable. Thus it was relevant to support that inference.
A witness’ and a party’s common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias. For purposes of the law of evidence the jury may be permitted to draw an inference of subscription to the tenets of the organization from membership alone.
The court ordered the name Aryan Brotherhood not be used and offered to give a limiting instruction and sustained defense objections to the questions concerning the punishment meted out to unfaithful members. -> admission of this highly probative evidence did not unduly prejudice respondent. There was no abuse of discretion in admitting Ehle’s testimony as to membership and tenets.
Mills is saying Ehle has bias because he wants to get leniency.
Govt is saying Mills has bias and cross non-conviction misconduct. (this person’s character is untruthful). No extrinsic evidence limitation for bias but limitation exists for non-conviction misconduct. “you Mills has bias“
- US v. Manske
1. Case Heading:
Type: Criminal. Defendant: Manske. Charge: conspiracy to distribute cocaine. Evidence in dispute: whether Pszeniczka’s threats are probative only of violence or truthfulness as well. Witness: . Declarant: . Statement: .
Year: 1999
Court: 7th Circuit
2. Disposition: Reverse and remand.
3. Holding: the trial court construed the threat evidence too narrowly: its error was in perceiving the threats as probative only of violence. Because the threat also implicated Pszeniczka’s truthfulness, the govt’s motion should have been denied.
4. Issue:
5. Procedural History: The district court granted the government’s motion in limine and Manske was convicted.
6. Facts: Manske sought to cross-examine Pszeniczka and Knutowski who testified that Manske was their primary supplier of cocaine. Manske attacked the credibility of Pszeniczka and Knutowski and Colburn and Campbell as receiving leniency in exchange for testifying and that they had histories of drug use and dealing. The government moved in limine to prevent Manske from cross-examining Pszeniczka on threats of physical violence he made to witnesses in a related case and to prevent cross-examination of two other government witnesses regarding the threats made by Pszeniczka. The government argued that the threats were not probative of truthfulness or untruthfulness and only showed “propensity for violence.”
7. Rule:
8. Reasoning: there are three ways of looking at 608(b). the broad view holds that “virtually any conduct indicating bad character indicates untruthfulness, including robbery and assault.” The narrow reading considers a crime as bearing on veracity only if it involves falsehood or deception such as forgery or perjury. The middle view “is that behavior seeking personal advantage by taking from others in violation of their rights reflects on veracity.”
The relationship between the specific acts of misconduct and truthfulness is more compelling in this case. Threatening to cause physical harm to a person who proposes to testify against you is at least as probative of truthfulness as receiving stolen tires or a stolen railroad ticket.
It was legally erroneous for the district court to conclude that the threat evidence was irrelevant under 608(b).
Bias implicates Pszeniczka and governmental witnesses.
- Daubert v. Merrell Dow Pharmaceuticals
1. Case Heading:
Type: Civil. Defendant: Dow. Charge: Bendectin caused birth defect. Evidence in dispute: . Witness: . Declarant: . Statement: .
Year: 1993
Court: Supreme Court of the US
2. Disposition: Vacated and remanded.
3. Holding: FRE do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.
4. Issue:
5. Procedural History: the District Court granted respondent’s motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is sufficiently established to have general acceptance in the field to which it belongs. The court held that the expert opinion which is not based on epidemiological evidence is not admissible to establish causation. The Court of Appeals for the 9th Circuit affirmed.
6. Facts: Daubert and Schuller are minor children born with serious birth defects. Petitioners allege that the birth defects had been caused by the mothers’ ingestion of Bendectin.
Respondent moved for summary judgment, contending that Bendectin does not cause birth defects in humans and that petitioners would be unable to come forward with any admissible evidence that it does. Respondent submitted an affidavit of Lamm, who stated that no study had found Bendectin to be a human teratogen.
Petitioners responded with the testimony of eight experts who concluded that Bendectin can cause birth defects.
7. Rule:
8. Reasoning: “general acceptance” test has been the dominant standard for determining the admissibility of novel scientific evidence at trial.
Petitioners contend that the Frye test was superseded by the adoption of the FRE. We agree.
Frye made “general acceptance” the exclusive test for admitting expert scientific testimony. That austere standard, absent, from and incompatible with the FRE, should not be applied in federal trials.
The requirement that an expert’s testimony pertain to scientific knowledge establishes a standard of evidentiary reliability.
FRE 702 further requires that the evidence or testimony assist the trier of fact to understand the evidence or to determine a fact in issue. This condition goes primarily to relevance.
Judging scientific validity: Whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested; whether the theory or technique has been subjected to peer review and publication; whether the known or potential rate of error has been considered; existence and maintenance of standards controlling the technique’s operation; general acceptance (or not).
Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.
- People v. Meredith
1. Case Heading:
Type: Criminal. Defendant: Scott and Meredith. Charge: first degree murder and robbery. Evidence in dispute: . Witness: . Declarant: . Statement: .
Year: 1981
Court: Supreme Court of CA
2. Disposition: Affirmed.
3. Holding: courts must craft an exception to the protection extended by the attorney-client privilege in cases in which counsel has removed or altered evidence.
Whenever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question.
The trial court did not err in admitting the investigator’s testimony concerning the location of the wallet.
4. Issue:
5. Procedural History: The appellate court affirmed Scott’s conviction.
6. Facts: The police arrested Michael Meredith for killing and robbing David Wade. The police also arrested Frank Earl Scott, believing he had conspired with Meredith. Attorney James Schenk represented Scott. Scott told Schenk that he had picked up Wade’s wallet at the crime scene and brought it home, where he had tried to burn it in his kitchen sink. Scott tossed the partially burned wallet in a burn barrel behind his house. Schenk hired an investigator to look for the wallet. The investigator found the wallet in the burn barrel as described and brought it to Schenk. Schenk gave the wallet to the police, saying only that he thought it had belonged to Wade.
7. Rule:
8. Reasoning: to bar admission of testimony concerning the original condition and location of the evidence in such a case permits the defense in effect to destroy critical information. To extend the attorney-client privilege to a case in which the defense removed evidence might encourage defense counsel to race the police to seize critical evidence.
- Suburban Swe’n Sweep v. Swiss-Bernina
1. Case Heading:
Type: civil. Defendant: swiss-bernina. Charge: antitrust violations. Evidence in dispute: . Witness: . Declarant: . Statement: .
Year: 1981
Court: USDC ND of IL
2. Disposition: Reversed.
3. Holding: privilege is not to be applied to these documents. Precautions may be justified and it is within their power to decide what precautions to take and so to protect against disclosure.
4. Issue:
5. Procedural History: The Magistrate refused to compel answers to the interrogatories on the ground that the Retailers obtained the letters by improper means. The District Court noted that the property put in the garbage is no longer protected by the 4th Amendment.
6. Facts: Sewing machine retailers commenced an antitrust action against Swiss-Bernina alleging price discrimination and conspiracy. To investigate their case, the Retailers searched through a trash dumpster located in the parking lot of a Swiss-Bernina office building. Over a two year period, the Retailers collected various documents from the dumpster, including drafts of letters handwritten by the President of Swiss-Bernina to a lawyer for the corporation.
7. Rule:
8. Reasoning: the case must be distinguished from the involuntary disclosure cases because the documents were not taken from some place for safekeeping but from garbage. This case lies between the inadvertent disclosure cases, where the information is transmitted in public or otherwise clearly not adequately safeguarded, and the involuntary disclosure cases, where the information is acquired by third parties in spite of all possible precautions.
In determining whether the precautions taken were adequate, consider: (1) the effect on uninhibited consultation between attorney and client of not allowing the privilege in these circumstances and (2) the ability of the parties to the communication to protect against the disclosures.
- Upjohn Co. v. U.S.
1. Case Heading:
Type: civil. Defendant: Upjohn. Charge: bribery of foreign officials. Evidence in dispute: . Witness: . Declarant: . Statement: .
Year: 1981
Court: US Supreme Court
2. Disposition: Reverse and remand.
3. Holding: a far stronger showing of necessity and unavailability by other means than was made by the Government or applied by the Magistrate would be necessary to compel disclosure.
4. Issue:
5. Procedural History: The district court enforced the summons, and the United States Court of Appeals for the Sixth Circuit affirmed, holding that the attorney-client privilege did not apply in the corporate context to those employees who were not directly responsible for directing Upjohn’s actions in response to legal advice.
6. Facts: In response to an independent audit reflecting illegal payments to foreign government officials by employees of Upjohn (defendant), Upjohn’s general counsel, Gerard Thomas, sent a questionnaire to Upjohn employees requesting any information they had concerning the payments. The Internal Revenue Service issued a summons requesting Upjohn’s production of the questionnaires, but Upjohn refused to produce the questionnaires on the basis of attorney-client privilege.
7. Rule:
8. Reasoning: the notes and memoranda sought by the Government here are work product based on oral statements. If they reveal communications, they are protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal the attorney’s mental process in evaluating the communications.
- In Re Osterhoudt
1. Case Heading:
Type: criminal. Defendant: Phaksuan. Charge: income tax and controlled substance violations. Evidence in dispute: . Witness: . Declarant: . Statement: .
Year: 1983
Court: Court of Appeals for the 9th Circuit
2. Disposition: affirmed.
3. Holding: nothing in the circumstances of this case suggests that disclosure of the amounts and dates of payments of fees by appellant to his attorney would in any way convey the substance of confidential professional communications between appellant and his attorney. This information is not protected by the attorney-client privilege.
4. Issue:
5. Procedural History: the motion was denied.
6. Facts: Seeking information about legal fees that Phaksuan paid his attorney Osterhoudt, the government issued a subpoena to him. Phaksuan moved to quash the subpoena.
7. Rule:
8. Reasoning: fee arrangements usually fall outside the scope of the privilege simply because such information ordinarily reveals no confidential professional communication between attorney and client.
- U.S. v. Albertelli
1. Case Heading:
Type: criminal. Defendant: Albertelli. Charge: racketeering, conspiracy, and extortion. Evidence in dispute: . Witness: . Declarant: . Statement: .
Year: 2012
Court: US Court of Appels 1st Circuit
2. Disposition:
3. Holding: Albertelli forfeited the privilege under the crime-fraud exception which excludes communications from client to attorney made (1) when the client was engaged in criminal or fraudulent activity and (2) with the intent to facilitate or conceal the criminal or fraudulent activity.
4. Issue:
5. Procedural History:
6. Facts: Defendants ran illegal ambling businesses and sought to burn down a business in North Reading, MA. O’Connor, attorney and long time friend of Albertelli, testified about a conversation he had with Albertelli.
7. Rule:
8. Reasoning:
- US. v. Lightly
1. Case Heading:
Type: Criminal. Defendant: Lightly. Charge: Assault with attempt to commit murder. Evidence in dispute: . Witness: . Declarant: . Statement: .
Year:
Court:
2. Disposition:
3. Holding:
4. Issue:
5. Procedural History:
6. Facts:
7. Rule:
8. Reasoning: McDuffie would have testified that only he assaulted McKinley. Court stopped this testimony because he was deemed criminally insane.