EvidenceProf Blog

Are Rule 803 Hearsay Statements More Reliable Than Rule 804 Hearsay Statements?

As I was reviewing the Advisory Committee's Notes to Federal Rules of Evidence 803 and 804 yesterday, I came across something that I have never noticed before. And what I noticed has led me to ask the following question: Are statements falling under a Rule 803 exception generally thought to be more reliable than statements falling under a Rule 804 exception?

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Know Thy Enemy: How the Jodi Arias Trial Differed From the George Zimmerman Trial With Regard to Character Evidence

In yesterday's post, I argued that George ZImmerman should not be able to present evidence of specific instances of violent conduct by Trayvon Martin to support his claim of self-defense. In response, Rick Underwood left the following two comments:

1. Great. But that's not what happened in the Jodi Arias case. It all depends on who the defendant is!

Any comment?

2. The point of my previous post was that the Jodi Arias defense was self-defense. Then it morphed into "the guy was nasty" and "abusive." The defendant said whatever she wanted to (apparently nobody believed it). There seemed to be no rules of evidence involved. The expert testimony was pathetic.

Of course, the bottom line is that when death is on the table, the rules get thrown out. Maybe ok and maybe not.

I do agree with your analysis. It is spot on. My point is the the rules don't seem to matter in some cases with some defendants.

So, let's take a look at the Jodi Arias case and the Arizona Rules of Evidence.

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The Character of the Matter George Zimmerman, Trayvon Martin & the Intricacies of Character Evidence

Section 90.404 of the Florida Statutes generally precludes parties from presenting propensity character evidence, such as evidence that a defendant on trial for robbery had committed a prior robbery ("once a robber, always a robber"). That said, Section 90.404(1)(b)1. of the Florida Statutes contains a so-called "mercy rule," pursuant to which a criminal defendant can open Pandora's box and present evidence of the alleged victim's bad character for a pertinent character trait. The consequence of presenting such character evidence, however, is that the prosecution can respond by presenting (1) evidence of the alleged victim's good character for that same trait; and/or (2) evidence of the defendant's bad character for that same trait.

In the build up to his murder trial, George Zimmerman has attempted to get the trial judge to deem admissible evidence of Trayvon Martin's violent past. How should the court rule?

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To Hell & Back: Court of Appeals of Kentucky Finds No Error With Rejected Stipulation

According to the Legal Dictionary,

During the course of a civil lawsuit, criminal proceeding, or any other type of litigation, the opposing attorneys may come to an agreement about certain facts and issues. Such an agreement is called a stipulation. Courts look with favor on stipulations because they save time and simplify the matters that must be resolved. 

Sometimes, parties agree on a stipulation without any goading by the court. For instance, the prosecution and defense might agree to stipulate that the alleged victim was a minor in a statutory rape case, with the only dispute being whether the defendant engaged in prohibited sexual acts with that minor. In other cases, one party wants to stipulate to a certain fact, the other party wants to prove that fact through evidence/testimony, and the court has to decide whether the stipulation is preferable.

Probably the most famous example of this latter situation is Old Chief v. United States, 519 U.S. 172 (1997), in which the defendant was charged with being a former felon in possession of a firearm. The defense wanted to stipulate that the defendant was a former felon. The prosecution wanted to prove this prior felony conviction through evidence/testimony. The district court allowed the prosecution to present its evidence/testimony, and the Supreme Court later reversed the defendant's conviction, finding that the stipulation would have told the jury all that it needed to know: that the defendant was a former felon. So, why didn't the Court of Appeals of Kentucky reach a similar conclusion in Anglin v. Commonwealth, 2013 WL 2257829 (Ky.App. 2013)?

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Gone Fishin': Can an Affidavit Ever Qualify as a Present Sense Impression?

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Can an affidavit qualify as a "present sense impression" under Rule 803(1)? According to dicta in Catfish Farmers of America v. United States, 2013 WL 2250601 (CIT 2013), the answer is "yes." I disagree.

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I'll Admit It: Is Rule 608(b) Evidence "Admissible"?

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

The Federal Rules of Evidence are not coterminous with the discovery rules. Some evidence that would be inadmissible is still discoverable, but some evidence that would be admissible at trial is not discoverable. The recent opinion of the United States District Court for the Southern District of New York in Guercia v. Equinox Holdings, Inc., 2013 WL 2156496 (S.D.N.Y. 2013), ostensibly deals with this latter situation...or does it?

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Uninsurable: Court of Appeals of Rhode Island Finds No Problem With Judge's Sua Sponte Insurance Instruction

Similar to its federal counterpart, Rhode Island Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. However, such evidence may be allowed when offered for another purpose, such as proof of agency, ownership, or control, bias or prejudice of a witness, or when the court determines that in the interests of justice evidence of insurance or lack of insurance should be permitted.

So, in most cases, neither the plaintiff nor the defendant can present evidence or testimony concerning the absence of presence of liability insurance. But what happens if the judge specifically instructs the jury not to speculate on the absence or presence of such insurance? Let's take a look at the recent opinion of the Supreme Court of Rhode Island in Oden v. Schwartz, 2013 WL 2109929 (R.I. 2013).

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Chutes & Ladders: Court of Appeals of Kentucky Finds Evidence of Ladder Switch Inadmissible Under Rule 407

Similar to its federal counterpart, Kentucky Rule of Evidence 407 provides that

When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event 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.

So, let's say that a plaintiff is injured when he falls off of his employer's ladder, and the ladder is later replaced after the accident. If the plaintiff's supervisor testifies at trial that he is unaware that the ladder was replaced, is evidence of the ladder change admissible to impeach him under Rule 407? According to the recent opinion of the Court of Appeals of Kentucky in Durbin v. CSX Transp., Inc., 2013 WL 2120317 (Ky.App. 2013), the answer is "no."

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Talk About the Life in Massachusetts: Supreme Judicial Court of MA Does Not Adopt Federal Rule of Evidence 608(b)

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

The vast majority of states have state rules of evidence that exactly or closely mirror the Federal Rules of Evidence. Massachusetts, however, is not one of those states. So, what did that mean for the defendant in Commonwealth v. Almonte, 2013 WL 2128336 (Mass. 2013)?

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Black & White: D.C. Court of Appeals Finds Trial Courts Have Discretion to Consider Evidence of Juror Racial Bias

Federal Rule of Evidence 606(b) states:

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

D.C. does not have codified rules of evidence, but it applies a common law rule that is very similar to Federal Rule of Evidence 606(b), and, in Kittle v. United States, 2013 WL 2102150 (D.C. 2013), the D.C. Court of Appeals addressed a question of first impression previously addressed by many federal courts: What happens when there are post-verdict allegations of racial bias by jurors?

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Leisure Suit Larry & the IRS: U.S. Tax Court Uses Rule 1003 to Exclude Altered Duplicate

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.

That said, Federal Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

It is rare that a duplicate is deemed inadmissible under Rule 1003, but that is exactly what happened in the recent case, Heinbockel v. C.I.R., 2013 WL 1953732 (U.S.Tax.Ct. 2013).

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This is a Knife: Florida Court Finds Statement About Knife Qualified as an Excited Utterance

Similar to its federal counterpart, Section 90.803(2) of the Florida Statutes provides an exception to the rule against hearsay for

A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

You don't much more of a textbook example of an excited utterance than the one found in the recent opinion of the District Court of Appeal of Florida, Fourth District, in its recent opinion in Thomas v. State, 2013 WL 1980256 (Fla.App. 4 Dist. 2013).

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Learned Person: The Learned Treatise Exception, Impeachment & the Truth of the Matter Asserted

Similar to its federal counterpart, Minnesota Rule of Evidence 803(18) provides an exception to the rule against hearsay 

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, [for] statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

In State v. Thim, 2013 WL 1942975 (Minn.App. 2013), the defendant claimed that he was using Rule 803(18) solely to impeach a witness for the prosecution. Was he correct?

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The Privileged Few: Does Federal Rule of Evidence 408 Create a Settlement Privilege?

Federal Rule of Evidence 408 states:

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

In United States v. Dish Network, L.L.C., 2013 WL 1876419 (C.D.Ill. 2013), the Central District of Illinois addressed an interesting question under Rule 408: Does the Rule merely deem evidence of settlement negotiations inadmissible at trial, or does it also deem such evidence privileged?

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Article of Interest: F. Pat Hubbard's The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force

My colleague, F. Pat Hubbard, has a terrific new article, The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force (forthcoming George Mason Law Review). Professor Hubbard focuses upon three situations in which the State authorizes citizens to use deadly force: (1) executing a citizen's arrest or preventing a certain type of crime; (2) protecting one's home or automobile pursuant to the Castle Doctrine; and (3) protecting oneself pursuant to "stand your ground" laws. And his thesis is that (1) the State has a monopoly on deadly force; (2) "[i]n our constitutional system of legitimacy, there are limits on the state’s power to authorize the use of deadly force;" and (3) "most states have adopted unconstitutionally overbroad authorizations of the use of deadly force by citizens."

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Plea Plea Me: Middle District of Pennsylvania Finds Rule 410 Argument Unavailing for 2 Reasons

Federal Rule of Evidence 410 states

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

In United States v. Bard, 2013 WL 1882984 (M.D.Pa. 2013), the defendant claimed a violation of Rule 410. There were two problems with his argument.

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Picture Perfect?: Does the Officer Who Created a Photo Array Have to Testify to Satisfy the Confrontation Clause?

When police have a suspect and an eyewitness, they often try to get the eyewitness to pick the suspect out of a photo array.

Generally a police officer shows a set of photographs to a victim or witness and asks whether he or she recognizes one of the persons in the photo-graphs as the perpetrator. A positive identification of a suspect can be used to place the suspect under arrest, and the act of identification may be used later as evidence in the prosecution of the defendant.

Similar to its federal counterpart, Texas Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

In Haq v. State, 2013 WL 1890260 (Tex.App.-Houston [1 Dist.] 2013), the defendant claimed that the trial court erred in allowing the admission of evidence concerning a photo array because the officer who created the array did not testify, meaning that there was a failure of authentication. So, how did the court rule, and what would have happened if the defendant made a Confrontation Clause objection?

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The Jig is Up: Post-Arrest Statements & the Co-Conspirator Admission Rule

Similar to its federal counterpart, New Hampshire Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. 

As the language of this Rule and the recent opinion of the Supreme Court of New Hampshire in State v. Rodriguez, 2013 WL 1800059 (N.H. 2013), make clear, Rule 801(d)(2)(E) does not apply to post-arrest statements.

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Inconsistent Consistency: Rule 608(b) & Proving Prior Inconsistent Statements Through Extrinsic Evidence

Federal Rule of Evidence 608(b) states:

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

As the recent opinion of the Fourth Circuit in United States v. English, 2013 WL 1832106 (4th Cir. 2013), makes clear, however, this limitation on the admissibility of extrinsic evidence only applies when the sole reason for proffering that evidence is to attack or support the witness’ character for truthfulness. 

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Down the Toilet: 1st Circuit Find Evidence Concerning Toilet Repair Inadmissible Subsequent Remedial Measure Evidence

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier 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 or its design;

or a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

In many cases, the application of Rule 407 proves fatal for a plaintiff's claim, and that was certainly the case in the recent opinion of the First Circuit in Nieves-Romero v. United States, 2013 WL 1849159 (1st Cir. 2013).

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