EvidenceProf Blog

The Best of Everything: Court Strikes Portions of Affidavit Referencing Non-Produced E-Mails in Fraud Case

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

A few days ago, I posted an entry about the Best Evidence Rule and the exchange of text messages between a criminal defendant and an alleged victim. Today, let's look at Grant v. Van Natta, 2013 WL 466212 (S.D. Ind. 2013), a case involving the Best Evidence Rule and the exchange of text messages between a civil plaintiff and a civil defendant.

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Better Evidence or Best Evidence?: Does the Best Evidence Rule Apply if the Witness Saw a Live Video Feed?

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

It is clear, however, that the Best Evidence Rule does not apply if a witness has independent personal knowledge  of an event that was later or simultaneously reduced to a writing, recording or photograph. Let's say, for instance, that William is in a bank when he observes Dan robbing the bank. The bank robbery is also captured on the bank's surveillance camera. William could testify about the robbery because he has independent personal knowledge of the bank robbery, i.e., his knowledge is not dependent on the surveillance footage. In other words, even if there were no surveillance camera, William would still have personal knowledge of the robbery. Conversely, if Police Officer Peters were not in the bank, later looked at the surveillance footage, and then destroyed the footage, the Best Evidence Rule would preclude him from testifying about the robbery at trial.

The recent opinion of the Eleventh Circuit in United States v. McKenzie, 2013 WL 323237 (11th Cir. 2013), however, presents an interesting twist on this scenario: What if an officer is watching a live video feed of a of drug sale and the prosecution then wants the officer to identify the defendant as a participant in that drug sale at trial without producing the video recording of that sale? Does such testimony violate the Best Evidence Rule?

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Gettin' (Un)lucky in Kentucky, Take 2: Why I Disagree With a Strict Prosecution-as-Proponent Construction of Rule 1004

Yesterday's post dealt with what turns out to be an interesting question not even addressed by the Supreme Court of Kentucky: what to do with under the Best Evidence Rule when the alleged victim of a crime destroys a writing, recording, or photograph in bad faith. Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

In turn, Federal Rule of Evidence 1004(a) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;

This begs the question of who is the proponent in a criminal case: the prosecution, the alleged victim, or both?

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Gettin' (Un)lucky in Kentucky: Supreme Court of Kentucky Apparently Badly Botches Best Evidence Ruling Regarding Text Messages

Similar to its federal counterpart, Kentucky Rule of Evidence 1002 provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules, in other rules adopted by the Kentucky Supreme Court, or by statute.

Now, take a look at the recent opinion of the Supreme Court of Kentucky in Simmons v. Commonwealth, 2013 WL 674721 (Ky. 2013), and tell me if you think that it makes any sense.

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Non-Event: Court of Appeals of Texas Finds "No Records" Certificate Admissible Under Rule 803(10)

Similar to its federal counterpart, Texas Rule of Evidence 803(10) provides the following exception to the rule against hearsay:

(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report statement, or data compilation, or entry.

As the recent opinion of the Court of Appeals of Texas, Houston, in Texas Municipal Power Agency v. Johnston, 2013 WL 744395 (Tex.App.-Houston [1 Dist. 2013]), makes clear, this exception frequently applies to "no records" certificates.

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Freeze Frame: Court of Appeals of Michigan Applies Rule 803(13) to Postcard

Continuing my discussion of lesser known hearsay exceptions, today let's look at Federal Rule of Evidence 803(13), which provides an exception to the rule against hearsay for

A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

I have only seen this Rule and its state counterparts applied in a handful of cases, including Matter of Egbert's Estate, 306 N.W.2d 525 (Mich.App. 1981).

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Losing My Religion?: Texas Applied Rule 803(11) to Records of Celestial Marriage in FLDS Church

Similar to its federal counterpart, Texas Rule of Evidence 803(11) provides an exception to the rule against hearsay for

Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

Like the hearsay exceptions that I have been discussing the last few days, Rule 803(11) is rarely applied. The Rule, however, was applied in the recent opinion of the Court of Appeals of Texas, Austin, in Jessop v. State, 368 S.W.3d 653 (Tex.App.-Austin 2012), a case involving the Fundamentalist Church of Jesus Christ of Latter Day Saints.

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Born in the U.S.A.: District of Oregon Finds Family Members' Statements About Birth Admissible to Prove Citizenship

Yesterday, I posted an entry about Lopez v. U.S. Dept. of State, ex rel. Clinton, 2013 WL 121804 (D.Or. 2013), in which the United States District Court for the District of Oregon deemed admissible a midwife's sworn affidavit that she was present in Washington for the birth of a man who claimed that he was born in the United States. The court deemed that affidavit admissible under Federal Rule of Evidence 804(b)(4), a rarely applied hearsay exception that I had not previously discussed on this blog. The Lopez case also gives me my first chance to discuss Federal Rule of Evidence 803(19), which provides an exception to the rule against hearsay for

A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

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We Are Family: District of Oregon Finds Midwife's Statement Admissible Under Rule 804(b)(4) in Citizenship Dispute

Federal Rule of Evidence 804(b)(4) provides the following exception to the rule against hearsay:

(4) Statement of Personal or Family History. A statement about:

(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.

Rule 804(b)(4) has to be one of the least applied hearsay exceptions. A search of 804(b)(4) in ALLFEDS in Westlaw returns only 86 results, and many of these cases don't even involve an application of the Rule. For instance, there are three 2013 cases in which the Rule has been mentioned but only one in which it was applied. In Lewis v. Likens, 2013 WL 633208 (S.D.W.Va. 2013), the court noted that a conversation did "not appear to qualify as a statement of personal or family history, which is the only other possible Rule 804 exception that could apply. See Fed R. Evid. 804(b)(4)." And, in Cardenas v. Whittemore, 2013 WL 244375 (C.D.Cal. 2013), the court noted that a statement did "not fall within exceptions to the hearsay rules in Fed.R.Evid. 803(19) or (20); 804(b)(4); or 807."

In Lopez v. U.S. Dept. of State, ex rel. Clinton, 2013 WL 121804 (D.Or. 2013), however, the court did find that Rule 804(b)(4) applied.

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Dying Declarations and the Hypochondriac

I've been writing a good deal recently about Federal Rule of Evidence 804(b)(2), which provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

A popular question that often comes up in my Evidence classes is what to do with the hypochondriac under Rule 804(b)(2). If a declarant suffers a relatively minor injury, honestly but unreasonably believes that he is going to die, and makes a statement, does that statement qualify as a dying declaration if the declarant is "unavailable" at trial? I think that the answer is "yes." For support, let's look at Satterwhite v. Commonwealth, 2010 WL 2899044 (Va.App. 2010).

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Until My Dying Day: Were There Any Abortion Cases With True Dying Declarations Admitted?

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

A couple of days ago, I noted that the Advisory Committee indicated that some courts applied the common law analogue to this modern "dying declaration" exception in abortion cases. After some research, however, I haven't found any such cases. Let's take a look at the opinion of the Supreme Court of Pennsylvania in Railing v. Commonwealth, 1 A. 314 (Pa. 1885).

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Speaking Ill Of The Dead: D.C. Court Of Appeals Grants New Trial Based on Failure to Impeach Dying Declarant

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

So, how often is a defendant found "not guilty" when the prosecution admits a dying declaration against him? In Kigozi v. United States, 55 A.3d 643 (D.C. 2012), defense "counsel candidly admitted that a dying declaration is 'very powerful,' and that he had 'only won one case ever where there was a dying declaration out of all [the] cases [he had] ever won.'" So, what else about Kigozi was interesting?

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The Talking Dead: 4 Observations About the Dying Declaration Exception Based on the Advisory Committee's Notes

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Working off of my post from yesterday about dying declarations being admissible for ("The defendant didn't do it") and against ("The defendant didn't do it"), I wanted to take a look at the Advisory Committee's Note to Rule 804.

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It Wasn't Him: Mattox v. United States & The Use of Dying Declarations by Defendants

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Typically, this "dying declaration" exception is considered to be an arrow in the prosecutorial quiver, with the victim's statement that the defendant shot/stabbed/choked him being used to prove his guilt. But that's not always the case, with the Supreme Court's opinion in Mattox v. United States, 146 U.S. 140 (1892) being the classic example of a dying declaration being used to exonerate the defendant.

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Did You Know That?: NY Case Reveals Personal Knowledge Requirement for Hearsay Statements

I've been writing a good deal recently about Federal Rule of Evidence 804(b)(2), which provides an exception to the rule against hearsay 

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

The opinion of the United States DIstrict Court for the Eastern District of New York in United States v. Velentzas, 1993 WL 37339 (E.D.N.Y. 1993), however, notes an important limitation on the dying declaration exception and all hearsay exceptions.

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As We Lay Dying, Take 2: The Admissibility of Dying Declarations In Multiple Victim Situations

Following up yesterday's post about the admissibility of dying declarations in multiple victim situations, today let's look at the opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Key, 407 N.E.2d 327 (Mass. 1980).

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As We Lay Dying: The Admissibility of Dying Declarations In Multiple Victim Situations

In a comment on my post from a few days ago, Fred Moss asked:

How about this hypo? A is on trial for the murder of B by shooting him. A shot several times in killing B. C -- the declarant -- was hit by one of the shots. As he lay on the street he tells the EMT, "I hear the wings of the Angel of Death hovering over me. Tell my wife I love her. And, by the way, I was shot by A as he was shooting at B." C either dies or cannot testify at A's trial because he's in a coma. Under the FRE, the statement is admissible at A's trial, no?

I think that C's statement would be admissible in this hypothetical, and that belief is partially confirmed by the opinion of the Supreme Court of Nevada in Maresca v. State, 748 P.2d 3 (Nev. 1987).

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There's Just One More Thing: Why Do Excited Utterances & Dying Declarations Have To Relate to Their Cause?

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Meanwhile, Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

I have always wondered about the same limitation that applies in each of these Rules. A statement qualifies as a dying declaration under Rule 804(b)(2) only if it was "made about [the] cause or circumstances" of what the speaker believes to be his impending death. And a statement only qualifies as an excited utterance under Rule 803(2) if it "relat[ed] to [the] startling event or condition. Why?

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Suicide Solution?: Supreme Court of West Virginia Finds Suicide by Witness for the Prosecution to be a Dying Declaration

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

A student in my Evidence class and the esteemed Fred Moss both raised the same question with regard to this "dying declaration" hearsay exception today: Can it apply to a declarant who is not the homicide victim? Here is what Fred Moss wrote in a comment to yesterday's post:

We always believe, I think, that the declarant in the homicide case must be the victim of the homicide, that is, the person the defendant is accused of killing. But the rule refers to "the declarant," not "the victim," so they can be -- theoretically -- different people.

How about this hypo? A is on trial for the murder of B by shooting him. A shot several times in killing B. C -- the declarant -- was hit by one of the shots. As he lay on the street he tells the EMT, "I hear the wings of the Angel of Death hovering over me. Tell my wife I love her. And, by the way, I was shot by A as he was shooting at B." C either dies or cannot testify at A's trial because he's in a coma. Under the FRE, the statement is admissible at A's trial, no?

I think that this analysis is correct, which takes me to the strange case of State v. Satterfield, 457 S.E.2d 440 (W.Va. 1995).

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Die Another Day: Does the Dying Declarations Exception Apply in Attempted Murder Cases?

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

When I teach Rule 804(b)(2), students often ask whether this "dying declaration" exception applies in attempted murder cases. I always answer that the answer is likely "no" because homicide means homicide: the killing of one human being by another human being. That said, I've never come across a case on the issue, and I'm not sure whether one exists. Why? Well, consider the complicated fact pattern that would have to exist for a prosecutor to try to admit a dying declaration in an attempted murder trial. First, the victim would have to have reason to think that he was about to die when he made the statement but then make a miraculous recovery. Second, for Rule 804(b)(2) to potentially apply, the victim would have to be unavailable to testify at the attempted murder trial, meaning that the victim would need to miraculously survive the defendant's act but then become unavailable through some independent cause. 

So, is there any reason beyond speculation to believe that Federal Rule of Evidence 804(b)(2) does not apply in attempted murder cases? Let's take a look at Pennsylvania Rule of Evidence 804(b)(2).

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