EvidenceProf Blog

Murphy's Law: New Jersey Court Finds Admission Of Defendant's 17 Year-Old Conviction Required Reversal

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Moreover, the Advisory Committee's Note to the Rule indicates that "[a]lthough convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness." Conversely, New Jersey Rule of Evidence 609 merely provides that

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

Under this Rule, it is thus unclear how New Jersey courts should treat convictions that are more than ten years old, but it is clear that convictions more than sixteen years old will almost never) be admissible, at least according to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Murphy, 2010 WL 1609379 (N.J.Super.A.D. 2010).

In Murphy, Karl Murphy was convicted of third-degree possession of a controlled substance. At trial, the court deemed Murphy's seventeen year-old conviction for possession of a controlled dangerous substance admissible to impeach him. This ruling formed the partial basis for Murphy's appeal.

And according to the Superior Court of New Jersey, Appellate Division, 

unlike Fed.R.Evid. 609(b), N.J.R.E. 609 contain[s] no benchmark or brightline rule to assist trial judges in making the determination of when a conviction has become so remote that its probative value for impeachment purposes is outweighed by its potential for undue prejudice.

The court went on to find, however, that 

The only reported decision ever to have permitted a defendant to be impeached with a conviction nearly as old as this one was State v. Paige,...in which the State was permitted to impeach the defendant's credibility with a conviction that had occurred sixteen years earlier.  

The court, however, did not find the present conviction comparable to the conviction in Paige because

defendant's prior conviction for possession of CDS with intent to distribute pales in comparison to the murder conviction used for impeachment purposes in Paige. Obviously, the more serious the prior conviction, the greater its probative value....Defendant's prior conviction here cannot be said to be of that character, as he received only a probationary sentence at the time of his 1990 conviction.

Because the court found that this error was not harmless, it thus reversed Murphy's conviction.

-CM

For Your Eyes Only: Court Of Appeals Of Ohio Finds Trial Court Erred By Allowing Witness To Read Rule 612 Writing Aloud

Like its federal counterpart, Ohio Rule of Evidence 612 indicates that

Except as otherwise provided in criminal proceedings by Rules 16(B)(1)(g) and 16(C)(1)(d) of Ohio Rules of Criminal Procedure, if a witness uses a writing to refresh memory for the purpose of testifying, either: (1) while testifying; or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing. The adverse party is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.  

In other words, if a witness once had personal knowledge of an event but now lacks memory of that event, an attorney can use a writing to refresh the witness' recollection and allow the witness to testify independent of the writing. Thus, the witness cannot read aloud from the writing under Rule 612; that can only be done if the writing also qualifies for admission as a recorded recollection under Ohio Rule of Evidence 803(5) (or is otherwise admissible). An Ohio trial court recently missed this point, leading to the recent opinion of the Court of Appeals of Ohio, Twelfth District, in State v. Miller, 2010 WL 1534104 (Ohio App. 12 Dist. 2010).

In Miller, Kimble Miller was convicted of child endangering. Specifically, the prosecution claimed that Miller

shook his 38-day-old daughter four to five times, causing her head to go back and forth, after she would not drink her bottle. Upon her arrival at Cincinnati Children's Hospital, the child was diagnosed as being "neurologically devastated" with a "global dying off of the brain." The child also had several rib fractures, some old, some new, and fractures on one foot. The hospital was able to keep her alive but her brain could not be saved; her brain injuries are permanent. As a result of her injuries, the child has cerebral palsy and vaso quadriplegia, and is at a "continual risk for death."

At trial, Lindsey Breen, the child's mother, testified as a witness for the prosecution. At one point during Lindsey's testimony, she stated that the child did not cry at birth, and was not alert or active. Therefater,

The prosecutor asked Lindsey to review the nurse's notes, and then asked her to read aloud what was written at the bottom of the notes. Lindsey complied and read: "Alert, active, lusty cry." Subsequently, Lindsey testified the notes were incorrect as the child did not cry at birth. The nurse's notes were certified, marked as a state exhibit for identification, but never offered in evidence.

After he was convicted, Miller appealed, claiming, inter alia, that the trial court only deemed the notes admissible under Ohio Rule of Evidence 612, meaning that Lindsey could not read them aloud while testifying. The appellate court agreed, noting that

A party may refresh the recollection of a witness under Evid.R. 612 by showing him a prior writing. However, the party may not read the statement aloud, have the witness read it aloud, or otherwise place it before the jury....Rather, the witness should read the writing silently to refresh his recollection....If his recollection has been revived, the witness may then continue with his testimony....The writing used to refresh the witness' recollection is not admitted into evidence unless admission is requested by the adverse party.

The court thus concluded that

the prosecutor's examination of Lindsey did not comport with the rules governing how a party may refresh the memory of its own witness with a writing. The prosecutor did not simply show the nurse's notes to Lindsey. Rather, the prosecutor had Lindsey read aloud the statement in the nurse's notes describing the child at birth as “alert, active, lusty cry.” The manner in which the prosecutor had Lindsey read aloud was more indicative of impeachment techniques and as such violated the purpose of Evid.R. 612. Evidence that the child cried at birth was therefore improperly admitted.

(Based upon the other evidence in the record, however, the court deemed the error to be harmless)

-CM 

You Can Learn A Lot From A Dummy: Federal Circuit Reads "Qualified Witness" Language Out Of Rule 803(6) In Dicta In Crash Test Dummies Action

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

So, who constitutes a qualified witness? And does that witness need personal knowledge regarding the creation of the document offered, or personal participation in its creation, or knowledge of who actually recorded the information? In its recent opinion in Crash Test Dummy Movie, LLC v. Mattel, Inc., 2010 WL 1508203 (Fed. Cir. 2010), the Federal Circuit suggested that the answer to this latter question is "no." I disagree.

In Crash Test Dummy Movie, LLC v. Mattel, Inc., 2010 WL 1508203 (Fed. Cir. 2010),

Mattel's predecessor-in-interest, Tyco Industries, Inc...., first produced a line of toys under the CRASH DUMMIES marks in 1991. In 1993, Tyco obtained federal trademark registrations for the CRASH DUMMIES marks...Tyco sold toys under the CRASH DUMMIES marks through at least 1994....

On July 14, 1995, CDM entered into an option agreement with Tyco to produce a motion picture based on Tyco's line of toys sold under the CRASH DUMMIES marks. The option agreement expired on July 14, 1996. Although CDM attempted to renegotiate a license later that year, Tyco declined to enter into another option agreement with CDM....

In the mid-1990's, Tyco experienced financial difficulties and began negotiating an acquisition with Mattel. On February 12, 1997, Tyco assigned its trademark portfolio, including the CRASH DUMMIES marks, to Mattel. Mattel officially purchased Tyco on December 31, 1997. Mattel later recorded Tyco's assignment with the United States Patent Trademark Office (“USPTO”) on February 13, 1998....

From 2000 to 2003, Mattel worked on developing a new line of toys under the CRASH DUMMIES marks. In 2000, Mattel began brainstorming ideas for CRASH DUMMIES toys. Mattel researched, developed, and tested its new toys as early as 2001, and obtained concept approval by 2002. Mattel began manufacturing CRASH DUMMIES toys in October 2003, and ultimately reintroduced them into the market in December 2003. While Mattel was developing new toys, the USPTO cancelled the registrations for the CRASH DUMMIES marks on December 29, 2000, because Mattel did not file a section 8 declaration of use and/or excusable nonuse for the marks.

On March 31, 2003, CDM filed an intent-to-use application for the mark CRASH DUMMIES for games and playthings. Mattel opposed CDM's application, claiming priority to Tyco's prior registration and use of the CRASH DUMMIES marks.

In proceedings connected to the lawsuit conducted by the Trademark Trial and Appeal Board, Mattel introduced into evidence product development documents pursuant to Federal Rule of Evidence 803(6). At the time, CDM actually stipulated that the documents were business records of Mattel and Tyco. Thereafter, however, CDM claimed that Mattel failed to lay a proper foundation for admission of the documents, and the United States Court of Appeals for the Federal Circuit found this argument to be without merit based upon CDM's stipulation.

The court then went on to note that even if this were not the case, Mattel properly introduced the documents through a qualified witness, Peter Franks, Mattel's marketing manager. According to the court,

Although Frank began working at Mattel in August 2003 and thus may not have first-hand knowledge of Mattel's product development, he testified that he had learned about the history of the CRASH DUMMIES product line upon joining Mattel's INCREDIBLE CRASH DUMMIES team. He also acknowledged that he had reviewed Tyco and Mattel's documents and spoke with employees who had been with Tyco and Mattel during the relevant time period. The Board reasonably found that Frank was sufficiently competent and trustworthy to testify on the issues before him.  

In other words, the Federal Circuit seems to agree with courts such as the Eighth Circuit, which has found that

As long as the other requirements of the business records exception are met, a custodian or "other qualified witness" need not have personal knowledge regarding the creation of the document offered, or personally participate in its creation, or even know who actually recorded the information. Resolution Trust Corp. v. Eason, 17 F.3d 1126, 1132 (8th Cir. 1994). 

Conversely, other courts require a qualified witness to have such personal knowledge. See, e.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008). I don't see how the former courts can justify their conclusions. In effect, these courts are reading the qualified witness requirement out of the rule, essentially holding that a qualified witness is not needed if all of the other elements of the Rule are satisfied.

-CM

Community Of Interest: Eleventh Circuit Fails To Reach "Predecessor In Interest" Ruling In Maritime Appeal

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

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.

So, who qualifies as a predecessor in interest? Unfortunately, that was a question left unanswered by the Eleventh Circuit in its recent opinion in Hearn v. McKay, 2010 WL 1490344 (11th Cir. 2010).

In McKay, Michael McKay was the National President of AMO, a maritime labor organization, from 1994 until early in 2007, and Robert McKay, Michael's brother, was its Secretary Treasurer from 1994 until 2006. The Department of Justice opened a criminal investigation to determine whether certain AMO officers used their positions to violate federal law, resulting in a federal grand jury indicting Michael and Robert McKay for participating in a RICO conspiracy involving theft and embezzlement from the union and from the benefit plans, mail fraud, and committing Labor Management Reporting and Disclosure Act (LMRDA) record keeping violations.

Members of the AMO later brought a civil action against the McKays and other defendants, asserting, inter alia, violations of the LMRDA. Two witness who had testified against the McKays at their criminal trial were unavailable at the civil trial, leading the plaintiffs to try to introduce their testimony under Federal Rule of Evidence 804(b)(1). The district court found that this former testimony exception was inapplicable because the McKays were mot predecessors in interest to the defendants in the civil trial. After the district court entered a default judgement against the McKays but granted partial summary judgment in favor of the other defendants, the plaintiffs appealed, claiming, inter alia, that the court erred in this evidentiary ruling.

The Third Circuit found however, that it did not need to "interpret the meaning of Rule 804(b)(1)'s "predecessor in interest" clause today" because "[e]ven if the district court erred by refusing to admit the prior testimony, that error was harmless." I wish that the court, though, had addressed the issue because

Courts have produced four different interpretations of the term 'predecessor in interest.' First, some courts have construed the term to mean common law privity. Second, under certain circumstances, courts have treated the United States government as the predecessor in interest of an individual bringing a related private action. Third, courts have determined that a governmental unit sharing a 'community of interest' with a party in a subsequent proceeding is a predecessor in interest of that party. Finally, some courts have viewed any party sharing a 'similar interest and motive' with a party in a subsequent proceeding as a predecessor in interest. Mark Lawrence, The Admissibility of Former Testimony Under Rule 804(b)(1): Defining a Predecessor in Interest, 42 U. Miami L. Rev. 975, 987 (1988).

My sense in that most courts have opted for this last interpretation, which would obviously seem at odds with the ruling of the district court in McKay. Unfortunately, based upon the Eleventh Circuit's opinion, however, we won't find out which how that court views the "predecessor in interest" clause

-CM

The Ultimate Driving Machine?: Third Circuit Seemingly Errs In Subsequent Remedial Measure Dicta In Action Against BMW

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

It is well established that this Rule only precludes the admission of evidence of subsequent remedial measures taken by parties, not evidence of subsequent remedial measures taken by non-parties; consequently, I can't understand the Third Circuit's contrary conclusion (in dicta) in Jacobson ex rel. Jacobson v. BMW of North America, LLC, 2010 WL 1499809 (3rd Cir. 2010).

In Jacobson, 

On May 4, 1999, Robert Jacobson drove [his] BMW 325i to do errands with his two sons, Ryan and Christopher. Ryan, age 12, was seated in the front passenger seat, and Christopher, age 9, was seated in the rear passenger seat. Robert Jacobson stopped at Sam's Bar, in Dormont, Pennsylvania, to buy a six-pack of beer for a family cookout....He claims that, when he parked the car, he placed the shift lever into the “Park” position, turned the engine off, set the parking brake, and removed the keys from the ignition, before exiting the vehicle and entering the bar.....

The parking lot of the bar is on a slope. While his father was inside the store, Ryan began playing with the gear shift lever....While playing, Ryan disengaged the gear shift lever from the "Park" position, shifting it into either "Reverse" or "Neutral," and the car began to drift backwards down the slope. Ryan tried to move the gear shift back into the "Park" position, but was unable to do so.

Ryan and Christopher became scared, and Christopher climbed into the front seat and exited through the driver's side window unhurt. Ryan exited through the passenger side window, but fell to the ground and was struck by the right front part of the car. He sustained multiple fractures, contusions, and lacerations, as well as injuries to his brain and left eye. 

Jacobson thereafter filed suit on behalf of  Ryan against BMW, alleging that BMW was strictly liable for Ryan's injuries because the design of the car was defective. Specifically,

He asserted that BMW should have equipped the vehicle with either a Brake Shift Interlock (“BSI”), a device which would have prevented the car from shifting out of “Park” unless the brake pedal was depressed, or a Park Lock System (“PLS”), a device which would have prevented the gear shift from moving out of “Park” unless the key was in the ignition and had been turned out of the “Lock” position (collectively "Lock Systems").

Before trial,

BMW filed a motion in limine seeking to exclude evidence of other car manufacturer recalls (by Nissan in 1987 and Jeep in 1994) in order to retrofit their vehicles with Lock Systems. While Jacobson had adduced this evidence to show that it would have been feasible for BMW to have included a Lock System in its vehicles at the time the 325i was manufactured, BMW asserted that it would not contest feasibility at trial. The parties agreed to a stipulation that the Lock Systems were “technologically and economically feasible” at the relevant time, and the District Court therefore excluded the evidence of other recalls.

After the jury returned a verdict in favor of BMW, Jacobson appealed, claiming, inter alia, that evidence of these other recalls should have been admissible to prove that the BMW was unsafe without a Lock System. The Third Circuit disagreed, finding that

Notwithstanding the fact that this evidence may have been admissible under Federal Rule of Evidence 407, which allows for evidence of subsequent remedial measures to be admitted in certain instances, it was not necessary to admit this evidence here, since BMW had stipulated to feasibility. It was also not unreasonable to exclude it. Although Jacobson now argues that this evidence would also have shown that the BMW was unsafe without a Lock System, he did not advance this argument in the District Court, and we will not consider it for the first time on appeal.

I agree with most of the court's conclusion but not its conclusion that the evidence may have been inadmissible under Federal Rule of Evidence 407. As the Third Circuit has previously stated, Rule 407 only applies to subsequent remedial measures taken by parties, not subsequent remedial measures taken by no-parties. See, e.g., Diehl v. Blaw-Knox, 360 F.3d 426, 430 (3rd Cir. 2004). Of course, this conclusion was merely dicta and there easily could have been other grounds for excluding the evidence, but the Third Circuit's conclusion still seems plainly wrong.

-CM

 

Quantum Of Stealth: Court Of Appeals Of Minnesota Finds Gross-Misdemeanor Theft Qualified As Crime Of Dishonesty Or False Statement

Like Federal Rule of Evidence 609(a)(2), Minnesota Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime...involved dishonesty or false statement, regardless of the punishment.

As the Advisory Committee's Note to Federal Rule of Evidence 609(a)(2) notes, very few crimes qualify as crimes of dishonsety or false statement:

By that phrase, the committee means crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.

In its recent opinion in State v. Gaiovnik, 2010 WL 1439156 (Minn.App. 2010), the Court of Appeals found that one of the defendant's prior convictions qualified for admission under Minnesota Rule of Evidence 609(a)(2). I'm not sure that I agree.

In Gaiovnik, Christopher Gaiovnik was convicted of simple robbery and theft from a person. At trial, the court allowed the prosecution to impeach Gaiovnik under Minnesota Rule of Evidence 609(a)(2) through, inter alia, his 2006 conviction for gross-misdemeanor theft.

The complaint in the 2006 case allege[d] that appellant entered a bar with two other people, and the three sat at a back booth and had a couple drinks. After several employees left the bar, appellant left the booth, walked into a back hallway, pried open the door to a room where night-deposit bags were kept, and took six bags. Appellant then went to the bathroom before returning to the booth. When he reached the booth, the other two people immediately stood up, and the three walked out of the bar and avoided the surveillance-camera angles as they left.

After he was convicted, Gaiovnik appealed, claiming, inter alia, that this prior conviction did not involve a crime of dishonesty or false statement. The Court of Appeals of Minnesota disagreed, finding that "[t]he ruse of being a bar patron was deceit used to commit the theft." To me, this seems inconsistent with the way that the vast majority of courts construe crimes like theft and larceny. For instance, check out the following passage from United States v. Estrada, 430 F.3d 606, 614-15 (2nd Cir. 2005):

The district court did not err...in determining that the circumstances of Padilla's larceny convictions did not involve falsity or deceit such as to fall within the ambit of Rule 609(a)(2). See United States v. Hayes, 553 F.2d 824, 827 (2d Cir.1977) (noting that "crimes of force, such as armed robbery or assault, or crimes of stealth, such as burglary or petit larceny, do not come within" Rule 609(a)(2) (internal citations omitted)); cf. United States v. Sellers, 906 F.2d 597, 603 (11th Cir.1990) ("[C]rimes such as theft, robbery, or shoplifting do not involve ‘dishonesty or false statement’ within the meaning of Rule 609(a)(2)."). While much successful crime involves some quantum of stealth, all such conduct does not, as a result, constitute crime of dishonesty or false statement for purposes of Rule 609(a)(2). See Hayes, 553 F.2d at 827 (stating that Congress limited the crimes covered by Rule 609(a)(2) because of the Rule's inflexibility and noting that a conviction that "involved nothing more than stealth" could not be introduced automatically under Rule 609(a)(2); cf. United States v. Brackeen, 969 F.2d 827, 829-30 (9th Cir.1992) (en banc) (distinguishing between the broad meaning of "dishonesty" as a lack of integrity or principles and its narrow meaning under Rule 609(a)(2) as a disposition to deceive).

The way I see it, Gaiovnik's prior crime was the classic crime of theft involving some quantum of stealth but an insufficient quantum of dishonesty of deceit to qualify it as a crime of dishonesty or false statement.

-CM

Avoiding A Confrontation?: Eleventh Circuit Finds That Melendez-Diaz Did Not Do Away With Rule 703

In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant's trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their "own" conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).

In Winston, Robert Earl Winston was convicted of aiding and abetting another who murdered Haines City Police Officer Christopher Todd Horner with the intent to prevent Officer Horner from communicating to law enforcement or a judge information related to the commission of a federal offense, and aiding and abetting another who knowingly used and carried a firearm during and in relation to a crime of violence, and, in the course thereof, murdered Officer Horner.

The opinion in Winston doesn't give us many details, but it does tell us that a medical examiner prepared a forensic report and did not testify at Winston's trial. Another medical examiner, however, reviewed the report and offered his "own" conclusions based upon this report, with the report not being admitted into evidence.

After he was convicted, Winston appealed, claiming that the admission of the medical examiner's testimony violated his rights under the Confrontation Clause based upon the Supreme Court's opinion in Melendez-Diaz v. Massachusetts. The Eleventh Circuit disagreed, finding that the testimony was admissible under Federal Rule of Evidence 703, which provides in relevant part that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

In my earlier post on this subject, I stated some of my reasons for disagreeing with this general proposition. There is one sentence in Winston, however, that I find particularly problematic. The Eleventh Circuit found no problem with the medical examiner's testimony because "As the Seventh Circuit stated in United States v. Turner, 591 F.3d 928, 934 (7th Cir.2010), “Melendez-Diaz did not do away with Federal Rule of Evidence 703."

Huh? That would be like an appellate court saying that a nontestifying declarant's excited utterance was admissible without regard to the Confrontation Clause because Crawford v. Washington did not do away with Federal Rule of Evidence 803(2). Such a statement would make no sense because Rule 803(2) only deals with the issue of whether a statement is admissible notwithstanding the rule against hearsay, not the issue of whether it is admissible notwithstanding the Confrontation Clause.

The same should be true with Rule 703. Rule 703 only deals with the issue of whether expert testimony is based upon a proper factual predicate; it does not deal with the issue of whether it is admissible notwithstanding the Confrontation Clause.

-CM