EVIDENCE (LAW 543)
EVIDENCE (LAW 543) Fall 2017
HANDOUT # 3
CASES & PROBLEMS:
TOPICS:
Hearsay
Professor John Barkai
William S. Richardson School of Law
University of Hawaii at Manoa
barkai@hawaii.edu
Cases are reprinted from Westlaw with permission.
TABLE OF CONTENTS
HEARSAY
HEARSAY Case squibs …………………………….………………… ….……1
STATE v. FELICIANO, 2 Haw.App. 633, 638 P.2d 866 (1982) 3
STATE v. CONNALLY, 79 Haw. 123, 899 P.2d 406 (1995) 4
HEARSAY HYPOTHETICALS 5
PRIOR STATEMENTS
STATE v. ILDEFONSO, 72 Haw. 573, 827 P.2d 648 (1992) 7
PRIOR STATEMENT PROBLEMS 10
PAST RECOLLECTION RECORDED PROBLEMS 11
ADMISSIONS
STATE v. GANO, 92 Haw. 161, 988 P.2d 1153 (1999) 12
ADMISSIONS PROBLEMS 14
803 EXCEPTIONS
PRESENT SENSE IMPRESSIONS & EXCITED UTTERANCES
STATE v. ZUKEVICH, 84 Haw. 203, 932 P.2d 340 (1997) 16
STATE v. MACHADO, 109 Haw. 445, 127 P.3d 941 (2006) 16
STATE v. ORTIZ 74 Haw. 343, 845 P.2d 547 (1993) 25 17
STATE V. DELOS SANTOS, Unpublished Opinion, 121 Haw.471 (2009) (Haw. App.) 18
PRESENT SENSE IMPRESSION & EXCITED UTTERANCE PROBLEMS 19
PRESENT STATE OF MIND OR PHYSICAL CONDITION
MUTUAL LIFE INS. CO. v. HILLMON, 145 U.S. 285 (1892) 20
PRESENT STATE OF MIND OR PHYSICAL CONDITION PROBLEMS 23
MEDICAL DIAGNOSIS OR TREATMENT PROBLEMS 24
BUSINESS RECORDS
PALMER v. HOFFMAN, 318 U.S. 109 (1943) 25
JOHNSON v. LUTZ, 170 N.E. 517 (1930) 26
STATE v. FORMAN, 125 Haw.417, 263 P.3d 127 (2011) ICA 27
BUSINESS RECORDS (RCA) PROBLEMS 29
PUBLIC RECORDS
STATE v. OFA, 9 Haw.App. 130, 828 P.2d 813 (1992) 31
STATE v. JHUN, 83 Haw. 472, 927 P.2d 1355 (1996) 32
PUBLIC RECORDS PROBLEMS 33
EXPERT TREATISE, JUDGMENT OF PREVIOUS CONVICTION
& OTHER 803 HEARSAY PROBLEMS 34
804 EXCEPTIONS -UNAVAILABILITY
STATE v. KIM, 55 Haw. 346, 519 P.2d 1241 (1974) 36
FORMER TESTIMONY
FORMER TESTIMONY PROBLEMS 37
DYING DECLARATIONS
SHEPARD v. UNITED STATES 39
DYING DECLARATION PROBLEMS 40
DECLARATIONS AGAINST INTEREST
STATE v. BATES 70 Haw. 343, 771 P.2d 509 (1989) 41
WILLIAMSON v. U.S., 512 U.S. 594 (1994) 42
STATEMENT AGAINST INTEREST - MATCHING QUESTIONS 44
STATEMENT OF RECENT PERCEPTION - HRE 804(b)(5)
HEW v. ARUDA, 51 Haw. 451, 462 P.2d 476 46
HEARSAY "RESIDUAL" or CATCH-ALL EXCEPTIONS
STATE v. DURRY 47
CONFRONTATION & HEARSAY
CONFRONTATION CASES SUMMARIZED 48
NO MAJORITY RATIONALE IN CRIME LAB TESTIMONY RULING 50
SUMMARY -6TH AMENDMENT AND LAB TESTS - MERRITT 51
OHIO V. CLARK 576 U.S. ___ (2015) 54
HAWAII CONFRONTATION CASES 56
STATE V. DELOS SANTOS, 124 Haw. 130, 238 P. 3d 162, (2010) 58
STATE V. NOFOA, 135 Hawai’i 220, 349 P.3d 327 (2015 60
HEARSAY
HEARSAY
Recent Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook
Nonverbal conduct as hearsay. Testimony about a person's out-of-court nonverbal conduct can constitute hearsay, but only if the conduct was intended as an assertion.
Example—Hearsay. Testimony that a person pointed to a particular vehicle when asked to locate the source of drugs was assertive conduct and hearsay under Rule 801(a)(2).
Example—Nonhearsay. Evidence that U.S. mining inspector ate his lunch in area alleged to have been unsafe, and that other inspectors who observed area issued no citations, nonhearsay as evidence of safety. [JB: compare to common law hearsay hypothetical where a sea captain’s taking his family on board ship was considered hearsay]
Matter implied by utterance. An out-of-court utterance offered to prove a matter implied by, but not asserted in, the utterance is not hearsay.
Example—Nonhearsay. In a prosecution for illegal bookmaking, it was not hearsay for government agents to testify that while searching defendant's premises pursuant to warrant, agents answered the telephone several times, and unknown callers stated directions for placing bets on sporting events. United States v. Zenni (1980).
Example—Nonhearsay. In drug prosecution, it was not hearsay for officer to testify that unidentified caller to defendant's "beeper" asked, "Did you get the stuff
Example—Nonhearsay. "The question, 'Is this Kenny?' cannot reasonably be construed to be an intended assertion, express or implied.
Example—Nonhearsay. "The assertion Herlinda made was that Mara would not come home as long as the police were there. The statement was offered to prove that Ybarra lived at the house. Whether Ybarra would come home and, if not, why not, was not at issue in the trial. Therefore, the statement was not offered to prove the truth of the matter asserted and, by definition, was not hearsay."
Nonhearsay statements. An out-of-court statement is not inadmissible as hearsay if it has relevancy apart from the truth of the matter that it asserts or implies. If the making of the statement is in itself relevant, evidence that the statement was made is not barred by the hearsay rule.
Example—Admissible. A statement offered to show the reason for an investigation. (statements were to be used only to show why the officer went to Gilbert's house, not to prove that anything stated by the dispatcher or the caller were true."); ("Evidence about the tip the DEA received was relevant to show something other than the tip's truth. That evidence was relevant to show why the DEA was watching Mejia's home, a fact that in no way depended upon the tip's truth.").
Example—Inadmissible. "In this case, the 'background' evidence offered by Detective Hamilton was entirely unnecessary to explain the context of the police investigation of Hinson. The reason the police focused their investigation on Hinson was perfectly clear: After arresting Pingry, he told the police that Hinson was his supplier. The government offered ample admissible evidence to show that this conversation took place, and Detective Nicholson's testimony that she had heard that someone named 'Kevin' was Pingry's supplier was, therefore, completely unnecessary to explain the police's subsequent actions.
Nonhearsay statements—Verbal acts. One common type of nonhearsay statement is usually referred to as a "verbal act" or "operative fact": a statement the making of which has substantive legal significance.
Example. The words that constitute the offer, acceptance, or terms of a contract.
Example. A certificate of insurance issued by the FDIC, as evidence of "the fact of the legal relationship of insurer and insured
Example. Words that operate as a conveyance. (words constituting a partition of crops between landlord and tenant farmer).
Example. Tape recorded conversations of illegal gambling.
Nonhearsay statements—Machine generated data. Raw data generated by machines are not normally "statements" subject to the hearsay rule or the Confrontation Clause.
STATE v. FELICIANO, 2 Haw.App. 633, 638 P.2d 866 (1982)
- issues on appeal: (1) whether the trial court erred in admitting, over his hearsay objection, a police officer's testimony recounting a neighbor's statement to him prior to the officer's issuance of an all-points bulletin (APB) that resulted in the arrest of the appellant... For the reasons stated herein, we affirm the conviction.
… Police Officer Ferry was permitted to testify over defendant's objection that … Mrs. Powell reported a burglary at her neighbor's house on Wanaao Road in Kailua; that when he arrived on the scene, Mrs. Powell told him that she had heard a car's motor running out front and observed a beige Toyota with four local males inside, one of whom she described as very, very large; that when she went outside, she saw two local males carrying a television set out of her neighbor's home, prompting her to yell at them; that, thereupon, the set was dropped, and the men jumped into the car and left the scene; and that she managed to get the license plate number of the beige Toyota and gave it to him, whereupon he issued an APB on the vehicle. Mrs. Powell did not testify.
Later on the same day, the vehicle was located by other officers about a mile from the scene in a driveway at the home of one Richard Moniz…the arresting officer, heard a "ruckus" out back but decided to check the interior of the house instead. …and found the appellant standing behind the clothing hanging inside. Appellant was arrested and charged with burglary.
In this appeal, Rapozo argues that the court erroneously admitted Officer Ferry's hearsay testimony. At trial, when queried by the court as to the use of the testimony, the prosecuting attorney responded,
[Prosecuting Attorney]: I'll offer it for state of mind, Your Honor.
THE COURT: State of mind? Objection overruled. Just that a statement was made.
It is clear that the testimony objected to would be hearsay if offered to prove the truth of the statements made. The question is whether the court properly admitted the testimony under any of the hearsay rule's innumerable exceptions. At trial the prosecutor urged the court to apply the state of mind exception to the testimony. The court seemed to question the applicability of that exception yet chose to admit the testimony. Both parties agree that the state of mind of Mrs. Powell is not a relevant issue in this case.
However, there is a line of authority recently adopted by our supreme court which permits the court to admit extrajudicial statements offered to explain an officer's conduct during the investigation procedures leading up to the arrest of the defendant, but not for their truth.
In State v. Perez, 63 Haw. ---, (1981) an anonymous phone caller identified Perez as the "raper" and the police officers placed his photo in the photographic lineup viewed by the victim. She subsequently identified him at the lineup and at trial as the person who raped her. The court permitted the out-of-court statements offered to explain the subsequent actions of the police officers and later specifically instructed the jury that they were limited to that purpose. * * * [JB: this was a R105 limiting instruction]
In this case, although the prosecutrix rather inartfully expressed it as "state of mind," it is clear that the purpose of the testimony was not to prove the truth of what Mrs. Powell said, but to establish the basis for the officer's subsequent actions.
* * *
- we find no error. Moreover, even had the evidence objected to been admitted erroneously, it was harmless beyond a reasonable doubt.
STATE v. CONNALLY, 79 Hawai'i 123, 899 P.2d 406 (1995) Hearsay
Prostitution case
Officer Orton heard Defendant say, in Japanese, "Asobi masho ka?" which the officer testified is literally interpreted as, "Would you like to play?" but is also a "street term or vernacular used to solicit or imply sexual activities."
… we are of the opinion that the statements in question were "verbal acts" or "operative facts" offered as evidence of Defendant's offer to engage in sexual conduct with another person in exchange for a fee--the basis of the offense charged. As such, the statements were not offered to prove the truth of the matter asserted, i.e., that Defendant would actually perform sex acts for money. Thus, the statements were not hearsay and lay outside the purview of the hearsay rule.
This court has previously held that, in general, statements demonstrating formation of a contract are verbal acts possessing independent legal significance and thus fall outside the hearsay category. The same principle applies to prostitution cases, where statements of solicitation by alleged prostitutes are offered as evidence against the defendant. Clearly, in the present case, Officer Orton's testimony was not being offered to prove the truth of the fact asserted: that the declarants actually intended to carry out the exchange of sexual activity for money. Rather, the statements were evidence of verbal acts demonstrating that Defendant made the requisite offer as defined in the prostitution statute. Thus, Officer Orton's testimony as to the statements made by Defendant and the Japanese males was not hearsay and was properly admitted into evidence.
... Accordingly, we affirm Defendant's conviction.
[JB: note. Statements of the defendant could also be consider admissions (or what under the restyled rules are called “statements of a party opponent” – that applies in criminal cases too). Statements of by standers (potential clients of the defendant who was charged with prostitution) do not fall into any traditional hearsay exception.
HEARSAY HYPOTHETICALS
Are the following statements hearsay?
1. Auto accident. In court, plaintiff's witness testifies, "The red car drove through the red light."
2. Same case. Cop testifies, "When I got to the accident scene, an eyewitness told me the red car ran the red light."
3. Same. Cop testifies "When I got to the accident scene, an eyewitness told me the red car was at fault."
4. Same. Cop testifies "I got the eyewitness to write out what he saw. Here's the written statement." Is the written statement hearsay?
5. Same. What the eyewitness wrote was notarized by a priest, who was passing by at the time of the accident. Is the notarized statement hearsay?
6. Same. Eyewitness testifies "I told the cop at the scene that the red car ran the light."
7. Same. Cop testifies "At the scene, I asked the crowd who ran the light, and a tall guy pointed to the Defendant."
8. Eyewitness #2 testifies that the red car had a green light. D then offers eyewitness #2’s prior written statement to cop, written during the post-accident investigation, that the red car had the red light. Is the written statement hearsay? Admissible?
9. Treason prosecution of Sir Walter Raleigh in 1603. Prison guard testifies that "Yesterday Lord Cobham told me that he and Sir Walter Raleigh were planning to cut the throat of the soon-to-be king." Lord Cobham was not brought to the courtroom. Hearsay?
10. Testimony that a tracker dog went from the dropped glove to O.J. Simpson and wagged its tail.
11. Contract action. P claims D said, "I accept your offer."
12. Defamation action. P claims that D said, "P is a lying pig."
13. Prostitution case. Cop testifies that defendant said, "Want to have sex for money?" "Asobi masho ka?" [translated 'Would you like to play?']
14. D was found in possession of P's car and charged with theft. D claims P loaned him the car. Issue: Did P give or loan her car to D? P testifies that she told the defendant that "You can borrow my car for a week." Is the statement hearsay?
15. Negligence case. Auto accident. P, driver of car # 1, is injured. Is mechanic's statement made to driver # 2 (D), "Your brakes are bad," made before the accident, admissible?
16. xx
17. Will contest. A witness testifies that 5 months before he died, the deceased said, "My son Larry is a no good spendthrift bum." Larry objects. Is that hearsay?
18. Criminal insanity defense to a murder prosecution. W testifies that before the crime, the defendant said, "I am the Pope, and I am on a mission from God."
19. What if the defendant said, "I think I am the Pope."
20. On the issue of whether P was suffering from a heart condition, evidence that P's doctor transferred P to the cardiac ward of the hospital.
21. During a post-robbery investigation, a cop describes to a suspect (who is later the Defendant) what the criminal was wearing during the crime. D says to his wife, "I don't have any clothes like that do I honey?" Wife faints. Is the fainting hearsay?
22. Same case, but during the investigation, the cop asks the wife, "What was your husband wearing yesterday?" Wife hands cop a shirt. Is handing the shirt hearsay?
23. Prosecution for illegal bookmaking. While raiding the house, FBI agents answer the phone and hear "Give me U.H. this weekend for $50."
24. Prosecution for reckless driving. When the police stopped the car, a passenger was overheard by the police to say, "I would never ride with him again."
25. Bob is charged with battery. Witness will testify that the victim called out, "Bob, let me go."
26. If you are using conduct or implied assertions as circumstantial evidence of a person's belief, and you are trying to prove the truth of that belief, is it hearsay?
PRIOR STATEMENTS
STATE v. ILDEFONSO, 72 Haw. 573, 827 P.2d 648 (1992)
HRE 802.1(3)
(police officer’s “finding a match” between the face of a driver pulled over for a traffic violation and the photo on that driver’s license amounted to “an out-of-court statement” and was hearsay).
Ildefonso appeals his conviction of failing to stop at an intersection (HRS) § 291C-63(b) and contends that his conviction should be reversed [because] the citing police officer, failed to identify Ildefonso in court as the person who failed to stop at the intersection; ... we affirm the conviction.
I.
... Officer Lock testified that at the time of the incident, he obtained the driver's license of the driver of the vehicle in question and compared the picture on the license to the face of the driver. Finding a match, he wrote the name on the license (Julius H. Ildefonso) on the citation...
There is a split of authority as to whether testimony of a prior identification is admissible where the identifying witness fails to make an in-court identification. ..., the most frequent objection to this evidence is that it is hearsay because it is offered by a third party for the truth of the matter asserted. Here, Officer Lock's prior identification is an out-of-court statement offered to prove that Ildefonso was the driver of the vehicle in question. Hence, it is hearsay. The State contends, however, that the evidence is admissible under the exception found in HRE 802.1(3)
In State v. Motta, 66 Haw. 254, 659 P.2d 745 (1983) … one of the contended errors was the admission into evidence of a police composite sketch of the robbery suspect. The composite sketch was drawn by a police artist based on a description given by the victim. Although a composite sketch is hearsay, it may still be admissible under Haw.R.Evid. 802.1(3)
... we held HRE 802.1(3) "allow[ed] the admission of pretrial identifications, not merely as corroborative evidence, but also as substantive proof of identity."
Other courts have admitted as substantive proof of identity prior identification testimony by witnesses who were unable to make in-court identifications. [talks about a Washington Court of Appeals case] that held that any inconsistency in the identification testimony went only to its weight, not its admissibility.
In the present case, Officer Lock testified that he obtained the driver's license of the motorist he detained for failing to stop at the South King Street-Cooke Street intersection and compared the picture on the license to the face of the driver of the vehicle. Finding a match, he wrote the name on the license, Julius H. Ildefonso, on the citation that he issued. We conclude that this procedure constituted Officer Lock's prior identification. Officer Lock then testified at trial regarding the circumstances of his prior identification, vouched for its accuracy, and was available for cross- examination by defendant. Thus, we find that the requirements of HRE 802.1(3) were met and the prior identification evidence was properly admitted as substantive proof of identity…. affirmed.
Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook
Rule 803(5). Recorded Recollection (same as HRE 802.1(4))
"Fresh memory." Rule 803(5)'s requirement that the memorandum or record "have been made or adopted by the witness when the matter was fresh in his memory" is far less strict than Rule 803(6)'s requirement of "at or near the time." (witness's grand jury testimony reporting conversations with defendant admitted under Rule 803(5) though recorded testimony given "at least ten months" after the conversations), --- (memorandum of conversations made six months afterward),
Memorandum not made but adopted by witness. Rule 803(5) extends to a memorandum or record "adopted" by a witness, such as where the witness orally recounted a matter to another who reduced the account to a written statement which the witness then verified.
Form of memorandum. A transcript, made by others, of a taped telephone call between the sponsoring witness and another, qualified under Rule 803(5).
Prior Consistent Statements
Example—Admissible. " the declarants, Chi and Lian, both testified at trial and were subject to cross examination. Liu challenged the credibility of Lian and Chi by presenting evidence that the women had received financial assistance from the FBI. Liu implied Lian and Chi fabricated their testimony in order to receive financial assistance from the FBI. Agent Barry, the proponent, testified about the content of Lian and Chi's statements before the FBI began providing them with financial assistance. Lian and Chi's statements, as presented by Agent Barry, were largely consistent with their in-court testimony. Accordingly, all four elements are satisfied by Agent Barry's testimony. Rather than reversible error, this is a textbook example of when to apply Federal Rule of Evidence 801(d)(1)(B), and we conclude the district court did not abuse its discretion when it permitted Agent Barry to testify about Lian and Chi's prior consistent statements." United States v. Chang Da Liu, 538 F.3d 1078, 1086 (9th Cir.2008).
The rule altered the common law only insofar as it grants substantive status; it does not change the circumstances in which a prior consistent statement is permitted or forbidden. Tome v. United States, 513 U.S. 150, (1995);
PRIOR STATEMENT PROBLEMS
1. In a slip-and-fall case, the plaintiff calls a witness to testify that moments before the plaintiff slipped in a certain area, the ground was full of mud and "muck." On cross examination, Wanda was asked if she had stated in a deposition just three weeks after the accident that the surrounding area "looked damp, but was actually firm and solid." Is the witness's prior statement admissible? If it is admitted, is it allowed as (a) impeachment? (b) for the truth of the matter asserted? (c) both impeachment and substantive evidence? or (d) neither impeachment nor substantive evidence? (JB Note: SF)
2. At trial, Lenny is cross-examined about the contents of a briefcase he was carrying two years earlier. Lenny responds to plaintiff's counsel by saying, "The briefcase only contained two pairs of socks and no classified papers."
a. If one month prior to trial, Lenny had made a prior inconsistent statement to a friend, Melissa, about the contents of the case ("The case had two top secret documents," said Lenny.) Can the statement to Melissa be offered for the truth of the matter asserted?
b. If Lenny had made the prior statement about the briefcase to the police during an interrogation, would it be admissible for the truth of the matter asserted?
c. If the prior inconsistent statement to the friend (a) is elicited on cross-examination, can Lenny testify on redirect examination that, "I told my wife, Shari, two years ago that the case contained only two pairs of socks and nothing else."
3. The defendant testifies in a civil suit about the accounting books kept by his company, Gilko and Associates. On cross-examination Bob is asked whether the figures he quoted were recently created "due to the potential multi-million dollar judgment in this lawsuit." On re-direct examination, Bob indignantly stated, "Hey, I told my partner more than one year ago, before I had ever heard of this lawsuit, that those were the correct figures?'
a. If Bob's statement is objected to as hearsay, what ruling and why?
b. Does it matter whether Bob's prior statement is under oath?
4. Rebecca gave a "7-11" Store cashier a counterfeit $20 bill, and the cashier called the police. When the police arrived, the cashier pointed to Rebecca as the person who handed her the counterfeit bill. Rebecca was arrested and later prosecuted.
a. At trial, almost two years later, the cashier testified that she does not remember what the robber looked like. The cashier then testifies that she does remember identifying a person as the robber in the store just after the robbery. Is the cashier's testimony about this prior identification hearsay? Is it admissible?
b. The day Rebecca was charged with passing a counterfeit bill, a stock boy came down to the police station and picked Rebecca out of a line-up as the person who passed the $20 bill. By the day of trial, the stock boy has moved to the mainland and is not available as a witness at trial. May the police officer testify about the stock boy's identification of Rebecca?
PAST RECOLLECTION RECORDED PROBLEMS
FACTS: While witness (W) was walking down the street, he saw an accident and immediately wrote in his note pad, "The blue car went through the red light."
1 W is not available for the trial, but his notes are. Can the notes be offered into evidence as past recollection recorded?
2 W is available at trial, but does not remember. Are the notes admissible? Under what conditions? Can the Proponent of the evidence introduce the notes? Can the Opponent introduce the notes?
3 Driver of the blue car said to W, "I ran the red light." Is the statement admissible by the driver of the other car, if the statement is included in W's notes above?
4 Pedestrian said to W, "I saw the blue car run the red light." Is the pedestrian's statement admissible if it is included in W's notes?
5 W is actually a reporter for the newspaper. He calls his office and dictates notes regarding the accident to his secretary. Are the notes, as transcribed by the secretary, admissible?
6. XX
7 Assume that W cannot remember the details of the accident at trial. Assume further that W did not dictate notes, but he did tell his secretary about the accident. The secretary does remember the conversation with W about the accident. Is the secretary's testimony admissible?
8 Jane is prosecuted for murder after allegedly participating in a drug deal that went sour. At trial, the government informant, Iggy, testified that Jane told him to call a certain telephone number for the drugs. That phone number linked Jane to the victim. Iggy wrote down the phone number two hours after learning about it. Iggy has taken too many drugs. He can't remember the phone number at trial. The paper with the number on it does not refresh his memory. Can the prosecutor introduce the paper?
9 What questions are necessary to lay the foundation for the notes under any of the above situations in which the notes would be admissible? Can you ask them to a witness?
ADMISSIONS
STATE v. GANO
92 Hawai'i 161, 988 P.2d 1153 (1999) HRE 408, 104, & ADOPTIVE ADMISSIONS
The Supreme Court held that:...(2) whether a defendant has manifested an adoption or belief in another's statement [regarding events leading to the sexual assault and kidnapping charges] is a preliminary question of fact for the trial judge; (3) evidence was not sufficient to support a finding that defendant by his silence and nonverbal conduct adopted, as his own, statements made by relatives at meeting with alleged victim's parents; and (4) improper admission of evidence concerning alleged adoptive admissions was reversible error. Reversed and remanded for new trial.
Defendant and Complainant were friends. Complainant, age sixteen, attended Defendant's twenty-second birthday party. [They were alone for a while. Things happened. The complainant charges sexual assault; the defendant claims consensual acts. After a police complaint was filed, the mothers, aunt, cousin meet and discussed things. Defendant and complainant were also present but were mainly passive and did not speak. Some of the people only spoke Tagalog, others only Ilocano. There was testimony that while other adults talked] defendant remained silent during the conversation, and was “shaking his head” the entire time….At trial, Aunt denied asking Complainant's parents to drop the charges, and Cousin denied offering the parents money. Defendant claimed he did not speak, did not hear any offers, and did not ask the parents to drop the charges. Additionally, Defendant testified that, when Mother asked him directly, he affirmatively denied using force upon Complainant.
Prior to trial, Defendant filed a Motion in Limine to exclude, among other things, any evidence regarding the meeting... [but it was denied]
This court previously dealt with the ambiguous nonverbal conduct of silence in State v. Hoffman, 73 Haw. 41, 828 P.2d 805 (1992):...
Although the nonverbal conduct analyzed in Hoffman was silence alone, we believe that in any circumstance in which a defendant's head or other body movement, including silence, is ambiguous, a closer examination is in order. Thus, in accordance with Hoffman, whether a defendant manifested an adoption of or belief in the truth of a statement of another by ambiguous nonverbal conduct requires proof that: (1) the defendant actually heard and comprehended the effect of the words spoken; (2) under the circumstances, an innocent defendant would normally be induced to respond; and (3) no other explanation is equally consistent with the defendant's words or conduct.
Courts and scholars are split on whether adoption of another's statement is a preliminary question of fact for the trial judge under Rule 104(a) or a question of conditional relevancy under Rule 104(b)...
our determination [is] that whether a defendant has adopted a statement is a preliminary question of fact for the trial judge is consistent with the holding in Hoffman that, “[b]efore admitting a proffered admission by silence, the trial court must preliminarily determine that the Defendant actually heard and comprehended the effect of the words spoken and that under the circumstances an innocent Defendant would normally be induced to respond.” Hoffman, 73 Haw. at 49, 828 P.2d at 810. This determination is also consistent with the policy expressed in HRE Rule 104(c), which states: “Hearings on ... preliminary matters shall be ... conducted [out of the hearing of the jury] when the interests of justice require....” Accordingly, we hold that whether a defendant has manifested an adoption of or belief in another's statement is a preliminary question of fact for the trial judge under HRE Rule 104(a).
From the record, there does not appear to be a preliminary finding by the court that Defendant understood what was said, would have responded if innocent, and had no other explanation for his conduct. Rather, it appears that the trial court erroneously left the question of Defendant's adoption of the alleged offer to the jury when it stated, “If that is the testimony, the court will permit the testimony and, of course, the aunt, the cousin, and the Defendant can rebut whatever happened that evening.” The error, however, is not reversible if the entire evidence in support of an adoptive admission was sufficient to support the finding. We hold that it was not.
The prosecution argues that Defendant was present at the meeting, understood the statements of his Aunt and Cousin, and affirmatively assented to those statements when he “nodded” his head.... However, as previously indicated, Father testified only that Defendant was “shaking” his head, not nodding...
In our view, the testimony at trial reveals that Defendant's nonverbal conduct, specifically his silence coupled with the head shake or nod, was ambiguous and, therefore, required a closer examination.
- the record is unclear as to whether Defendant actually heard and comprehended the effect of the words spoken
- it is unclear whether, under the circumstances, Defendant, if innocent, would have normally been induced to respond to the statements made by his cousin and his aunt.
- The record also does not reflect whether, in a cultural context, at this meeting between two Filipino families, an innocent defendant would be induced to respond to offers made by a family member in the absence of a statement alluding to the guilt or accusation of the defendant.
- Finally, from the record, we cannot say that there was no other explanation for Defendant's conduct.
Accordingly, we hold that the evidence of the meeting and the statements allegedly made thereat were erroneously admitted…
- we cannot say that the admission of the evidence was harmless beyond a reasonable doubt.
CONCLUSION - we vacate the circuit court's judgment and sentence and remand this case for a new trial.
ADMISSIONS PROBLEMS
Are the following statements admissible? Why or why not?
edited after used in class
1. Auto accident "Dart out" case. Billy Boy was hit on his bike by a car. W1 heard driver say the next day, "I am real sorry about the little boy. I never saw him." (G)
2. In Billy Boy's case, W2 heard the driver say, "It must be my fault."
3. W3 heard Billy Boy's mother (who didn't see the accident) say, "I knew my son's wild bike riding would get him in trouble some day." (G)
4. Two brothers (B1 & B2) are in a dispute over who owns a family heirloom. Before the dispute arose, W heard B1 say, "B2 is great. He is letting me use his heirloom." B2 later sues B1 to establish ownership of heirloom, claiming that the heirloom belongs to him, B2. Is B1's statement admissible against B1? (TG)
5. Criminal case. Dan is charged with robbing a store. W testifies that she saw Dan running away from the store right after the robbery. Admissible?
6. Same case. A week after the robbery, Dan told his friend that robbed the store a week ago. If the friend testifies about Dan’s statement in Dan’s trial will a hearsay objection keep the statement out of evidence?
7. P was badly injured when attacked by a large dog outside of D's warehouse. It is undisputed that D was out of the state on the day of the attack. D denies ownership of the dog. Two weeks later while trying to purchase theft insurance, D tells an insurance agent, "We should qualify for a low rate. Recently one of our watchdogs bit a prowler and laid him up." Is the agent’s testimony admissible at if P sues D? (F&S)
8. P claims his back was injured last year when he was rear-ended while driving his car. In the auto accident trial, defendant wants to introduce a Xerox copy of P’s employment application from when he applied for a new job last week. The employment application has the following question:
"Q: Physical disabilities?" To which P answered, "None." Admissible?
9. Would your answer be different if in the above question P instead attached a report of a health physical in which the doctor said that P is in "excellent health?"
10. In a small claims case to collect a $2,000 debt, P testifies about a conversation he had with D a few months ago which went like this:
Def. I owe you $1,000.
P. No, it's $2,000.
Def. (Silence) Is the silence admissible?
11. Slip and fall in Long's Drugs. Clerk who saw the fall comes by and says, "Sorry you fell. I was just getting ready to mop up that mess." Is the clerk's statement admissible against Longs?
12. P is injured in rental car accident. Rental car company mechanic told the P's investigator that the rental car needed new brake linings. Can the investigator testify about the mechanic's statement?
13. Mechanic in the above question is fired for sloppy brake work before he makes the statement to the investigator. The investigator finds the mechanic at home and gets the above statement. Is the statement admissible?
14. A company driver takes the company truck home overnight for personal use, and that night he hits a pedestrian. The driver and the company both are sued by the pedestrian. The driver later tells a witness, "The brakes were bad." Admissible? Against whom?
15. P signs a civil complaint, alleging the accident happened on a rainy day. P later amends complaint to allege the weather was clear and dry. D wants to introduce the first complaint into evidence. Admissible? Binding?
16. Larry, Moe, and Curley methodically planned a series of bank robberies. Before the first robbery, when Larry told Curley to "Go steal a car," Groucho overheard that statement. When the three of them are tried for conspiracy to commit bank robberies, the prosecutor offers Groucho's testimony about Larry's statement in the trial of Larry, Moe, and Curley. Admissible? (SF:187)
17. Before Larry, Moe, and Curley were able to carry out their second robbery, the police learned of their plans and arrested them. During the arrest, Moe blurted out "Okay, so we were going to rob some banks. You wouldn't have caught us except you got lucky. Larry and Curley had mapped out ingenious plans." If the prosecutor offers Moe's statement, is it hearsay? Admissible?
18. Is there any change in the admissibility of Moe's statement above if the three defendants are charged only with attempted bank robbery and not conspiracy to rob a bank?
19. Does it matter if Larry, Moe, and Curley are tried jointly or separately? How will Bruton v. U.S, 339 U.S. 122 (1966) affect the admissibility of Moe's statement?
21. A owns property. A says, "I know that X is living illegally on the property." A sells to B. X later sues B for title under adverse possession doctrine claiming open, notorious use. Is A's statement admissible against B?
Recent Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook
Coconspirator admissions
Statements by a cooperating coconspirator to known authorities, made after the commencement of cooperation, are not admissible because such statements are not made "in furtherance of the conspiracy."
Coconspirator statements that are made during and in furtherance of a conspiracy are not considered testimonial and so their use does not implicate the Confrontation Clause.
HRE 803(b)(1)&(2), 802.1, 613(b)
PRESENT SENSE IMPRESSIONS & EXCITED UTTERANCES
STATE v. ZUKEVICH
84 Hawai'i 203, 932 P.2d 340 (1997)
5-page opinion removed in 2015; substituted the edited case squibs below from Bowman, Hawaii Rules of Evidence Manual:
(signed statement in which declarant asserted she heard victim say, “I no mo’ gun” just before he was shot by her father was admissible under rules 613(b) and 802.1)) – 613(b) impeaching statement
(declarant’s statement, “I no mo’ gun,” uttered just before he was shot and killed, “described the “condition” of being unarmed” that he was perceiving when he made the remark) [JB: and such qualified as a present sense impression and exception to the hearsay rule]
(declarant’s statement, “I no mo’ gun,” uttered as he was confronted by the defendant who shot and killed him, was a statement made “under the stress of excitement caused by the imminent threat of death and such qualified as an excited utterance and exception to the hearsay rule]
STATE v. MACHADO 109 Hawai'i 445, 127 P.3d 941 (2006) Rule 803(b)(2)
Issue regarding the statements made by complaining witness to officer that were a) coherent and narrative; b) elicited by police questioning; c) after an alleged incident of domestic violence. The police officer testified to the victim's statements at trial. Were the statements admissible as excited utterances?
The ultimate question in these cases is “whether the statement was the result of reflective thought or whether it was rather a spontaneous reaction to the exciting event.” ... This court has said that “[t]he crucial element that buttresses the reliability of [excited utterances] ... is their spontaneity.” Regarding the time span between the “startling event” and the statement to be admitted as an excited utterance, this court has stated that “a "very short" time interval between a startling event and an excited utterance, although a factor in the determination, is not a foundational prerequisite to the admissibility of the statement under HRE Rule 803(b)(2).” Moore, 82 Hawai’i at 221, 921 P.2d at 141.
Other factors that courts often look to in determining whether a statement was the product of excitement include the nature of the event, the age of the declarant, the mental and physical condition of the declarant, the influences of intervening occurrences, and the nature and circumstances of the statement itself.
The police officer recounted a long narrative of the victim. ... lengthy, narrative statements are not admissible as excited utterances...
Based on the nature and circumstances of the CW's statement, we conclude the court erred in admitting the CW's statement under the excited utterance exception to the hearsay rule.
[but]
the majority of the CW's statement was admitted through other evidence properly admitted at trial, namely the tape recording of the CW's 911 emergency call and her testimony. Accordingly, except for the conclusion that the hearsay statement of the CW was properly admitted as an exception to the hearsay rule, we affirm the decision of the ICA, which affirmed the trial court's judgment.
STATE v. ORTIZ 74 Haw. 343, 845 P.2d 547 (1993) HRE 803(b)(2)
Defendant was found guilty of physically abusing his wife, Emily (Abuse of family and household members).
...
The prosecution's case consisted of two witnesses: Emily's father, George Paia (Paia), and Honolulu Police Officer Darren Akiyama (Akiyama). [The victim, Emily, did not appear for trial] At trial, the prosecution made no showing of Emily's unavailability. The record also indicates that the prosecution failed to serve Emily with a trial subpoena.
Both Paia and Akiyama recounted hearsay statements made by Emily. .. the hearsay declarations were received in evidence as excited utterances
Paia testified that while he was watching television in his living room, Emily and Appellant were having a conversation. Paia further testified that he did not pay much attention to their conversation until he heard Emily say, "[w]hy did you hit me for?" Paia then looked at Emily and saw that she was holding her face. Paia noticed that "[s]he was crying because tears was coming out--down her eyes that she was hurt." Upon hearing Emily's statement, Paia immediately went to a nearby phone booth and called the police. Paia testified that it took him five minutes to get to the pay phone and about eight minutes to return home because he had to climb steps to get back up to the apartment.
In evaluating whether a statement was made while the declarant was under the stress of excitement caused by an event, the time span between the event and the making of the statement must be very short.
Paia's testimony regarding Emily's declaration satisfies the foundational requirements. Paia heard Emily say, "Why did you hit me for?" He then looked up and saw her crying and holding the side of her face. The weight of the extrinsic evidence adequately shows that a startling event had in fact occurred and that the startling event and subsequent hearsay statement were reasonably contemporaneous. First, Emily's physical condition, crying and holding her face, indicates that the alleged offense occurred immediately prior to her declaration. Second, her physical condition supports a conclusion that the statement was proximately caused by Appellant's action of striking Emily's head. Third, because the time span between the startling event and the excited utterance heard by Paia was very short, it is unlikely that Emily reflected on or planned her statement. Because reliable evidence, extrinsic to the startling event, supports a conclusion that the event occurred, a fact finder is entitled to rely on the event as a predicate for the admission of Emily's out of court declaration. Accordingly, we hold that the judge properly admitted Paia's testimony regarding Emily's out of court statement under the excited utterance exception.
[The appellate court also reviewed the police officer's testimony, who testified as to what the victim told him (that the defendant stuck her) when he arrived on the scene at least 20 minutes later, and concluded that the time delay between the incident and the victim making the statement to the police officer was too long to be considered an excited utterance.
The father's testimony regarding the excited utterance he heard from his daughter, was also considered to be inadmissible, not for hearsay reasons, but because the prosecutor did not demonstrate that the victim was unavailable for trial, and therefore the trial court improperly admitted the testimony of the victim's father. This 1993 case is really a forerunner of the 2004 Crawford case that we will look at in the Confrontation section]
State v. Delos Santos, Excited Utterance
Unpublished Opinion, 121 Hawai'i 471, 220 P.3d 1052, 2009 (Hawai'i App.)
NOTE. THE ICA REVERSES THIS CONVICTION, BUT THE HAWAII SUPREME COURT LATER VACATES THE ICA JUDGMENT AND REMANDS FOR A NEW TRIAL. THE SUPREME COURT FOLLOWS A LINE OF REASONING SIMILAR TO JUSTICE FUJISE’S DISSENT IN THIS CASE.
-- of Abuse of Family or Household Member.
Officer Kubo arrived at the hotel and immediately observed that Complainant was limping, “really shaken, crying, and appeared to be in a lot of pain.” He asked Complainant what had happened. Complainant was still shaken and crying, and Officer Kubo needed a lot of time to calm her down. Complainant explained that her boyfriend, Delos Santos, had beaten her up. [Over the next few minutes, the office continued to talk with the victim who gave the office a more detailed, longer statement, which the office recounted at trial.]
Dissenting Opinion of FUJISE, J.
I respectfully dissent. … While I agree that the more detailed statement made by the complaining witness (CW) to the police officer in this case did not qualify for the “excited utterance” exception to the hearsay rule, I would hold that CW's initial statement that “my boyfriend beat me up,” made upon the officer's arrival, was admissible under this exception.
[that simple statement,] “my boyfriend beat me up,” when taken in the light most favorable to the government, is sufficient to support the conviction.
From Courtroom Evidence: R803(1) Present Sense Impression
Example—Inadmissible. "(We are ... unaware of any legal authority for the proposition that 50 minutes after the fact may appropriately be considered 'immediately thereafter.' On the contrary, given the clear language of the rule and its underlying rationale, courts consistently require substantial contemporaneity." United States v. Green, 541 F.3d 176, 181 (3d Cir. 2008).
R803(2) Excited Utterance
The startling event that triggers the statement need not be the crime or event out of which the litigation arises.
Example—Admissible. "First, viewing the 'photograph of the individual that she recognized as her husband committing a bank robbery' was a startling event. Second, according to Trombitas's testimony, Mrs. Parks uttered the words 'oh, my God, that looks like Johnny,' as soon as she saw the photograph, and therefore before she could have had an opportunity to 'contrive or misrepresent.' Third, Mrs. Parks identified Crockett in her very first statement upon seeing the photograph, and then with tears in her eyes, reaffirmed that identification, evidence of the fact that she was still under the stress of the moment." United States v. Beverly, 369 F.3d 516, 540 (6th Cir.2004), cert. denied, 543 U.S. 910, 125 S.Ct. 122, 160 L.Ed.2d 188 (2004).
Unidentified bystanders. Statements by unidentified bystanders are not "ipso facto inadmissible" but "are admissible if they otherwise meet the criteria of 803(2)." Miller v. Keating, 754 F.2d 507, 510 (3d Cir.1985).
PRESENT SENSE IMPRESSION &
EXCITED UTTERANCE PROBLEMS
Maybe add Billy Boy later in the semester
OCD = out of court declarant; PA = prosecuting attorney; W = witness
Are the following statements admissible?
1 Two-car auto accident on H-1. W & OCD in a third car. W will testify for D that OCD said as P's car passed them, "They must be drunk. If they keep speeding we are going to find them wrecked up ahead." Admissible? Why or why not?
2. xx
3 To prove Rick killed the OCD, can the prosecutor introduce testimony of W, who was talking to OCD by phone, when OCD said to him, "Rick is here. I'll talk to you later." Admissible?
4 Wrongful death of a Hawaiian Electric lineman. Deceased OCD lineman put away cellular phone and said to co-worker, "I just told them at central to cut the power off to this line". He touches the line and is electrocuted. Admissible?
5 Car and motorcycle accident. P wants to offer the statement that a few minutes after the accident, he heard an unidentified person say to another unidentified person, "I'm sorry, I didn't see him." Admissible?
6 Driver OCD says "Oh my God! The wheel is locked!" Can passenger W testify to that? Admissible?
7 Five weeks after a robbery, the robbery victim sees a picture in the business section (new promotions) of the Sunday newspaper and screams "That's the man! That's the man!" Admissible?
8 When P slips and falls on junk outside of a store, a store clerk, who saw the fall says, "Let me help you up. That junk has been here for several days." Admissible.
9 When P comes home at night, P tells spouse, "My Sure-track shoes couldn't keep me from falling today." Can P introduce this testimony using the spouse as W?
MUTUAL LIFE INS. CO. OF NEW YORK v. HILLMON
145 U.S. 285 (1892)
Statement by Mr. Justice Gray.
On July 13, 1880, Sallie E. Hillmon, a citizen of Kansas, brought an action against the Mutual Life Insurance Company, a corporation of New York, on a policy of insurance, dated December 10, 1878, on the life of her husband, John W. Hillmon, in the sum of $10,000, payable to her within 60 days after notice and proof of his death. On the same day the plaintiff brought two other actions,--the one against the New York Life Insurance Company, a corporation of New York, on two similar policies of life insurance, dated, respectively, November 30, 1878, and December 10, 1878, for the sum of $5,000 each; and the other against the Connecticut Mutual Life Insurance Company, a corporation of Connecticut, on a similar policy, dated March 4, 1879, for the sum of $5,000.
In each case the declaration alleged that Hillmon died on March 17, 1879, during the continuance of the policy, but that the defendant, though duly notified of the fact, had refused to pay the amount of the policy, or any part thereof; and the answer denied the death of Hillmon, and alleged that he, together with John H. Brown and divers other persons, on or before November 30, 1878, conspiring to defraud the defendant, procured the issue of all the policies, and afterwards, in March and April, 1879, falsely pretended and represented that Hillmon was dead, and that a dead body which they had procured was his, whereas in reality he was alive and in hiding.
At the trial plaintiff introduced evidence tending to show that on or about March 5, 1879, Hillmon and Brown left Wichita, in the state of Kansas, and traveled together through southern Kansas in search of a site for a cattle ranch; that on the night of March 18th, while they were in camp at a place called 'Crooked Creek,' Hillmon was killed by the accidental discharge of a gun; that Brown at once notified persons living in the neighborhood, and that the body was thereupon taken to a neighboring town, where, after an inquest, it was buried. The defendants introduced evidence tending to show that the body found in the camp at Crooked creek on the night of March 18th was not the body of Hillmon, but was the body of one Frederick Adolph Walters. Upon the question whose body this was there was much conflicting evidence, including photographs and descriptions of the corpse, and of the marks and scars upon it, and testimony to its likeness to Hillmon and to Walters.
The defendants introduced testimony that Walters left his home at Ft. Madison, in the state of Iowa, in March, 1878, and was afterwards in Kansas in 1878, and in January and February, 1879; that during that time his family frequently received letters from him, the last of which was written from Wichita; and that he had not been heard from since March, 1879. The defendants also offered the following evidence:
Elizabeth Rieffenach testified that she was a sister of Frederick Adolph Walters, and lived at Ft. Madison; and thereupon, as shown by the bill of exceptions, the following proceedings took place:
"Witness further testified that she had received a letter written from Wichita, Kansas, about the 4th or 5th day of March, 1879, by her brother Frederick Adolph; that the letter was dated at Wichita, and was in the handwriting of her brother; that she had searched for the letter, but could not find the same, it being lost; that she remembered and could state the contents of the letter."
"Thereupon the defendants' counsel asked the question, 'State the contents of that letter;'' to which the plaintiff objected, on the ground that the same is incompetent, irrelevant, and hearsay. The objection was sustained, and the defendants duly excepted. The following is the letter as stated by witness:
Wichita, Kansas,
March 4th or 5th or 3d or 4th,--I don't know,--1879.
Dear Sister and All: I now in my usual style drop you a few lines to let you know that I expect to leave Wichita on or about March the 5th with a certain Mr. Hillmon, a sheep trader, for Colorado, or parts unknown to me. I expect to see the country now. News are of no interest to you, as you are not acquainted here. I will close with compliments to all inquiring friends. Love to all.
I am truly your brother,
FRED. ADOLPH WALTERS.'
* * *
The evidence that Walters was at Wichita on or before March 5th, and had not been heard from since, together with the evidence to identify as his the body found at Crooked creek on March 18th, tended to show that he went from Wichita to Crooked creek between those dates. Evidence that just before March 5th he had the intention of leaving Wichita with Hillmon would tend ... show that he went from Wichita to Crooked creek with Hillmon. Letters from him to his family and his betrothed were the natural, if not the only attainable, evidence of his intention.
* * *
The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact as his own testimony that he then had that intention would be. After his death these can hardly be any other way of proving it, and while he is still alive his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander's recollection of what he then said, and is less trustworthy than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation.
The letters in question were competent not as narratives of facts communicated to the writer by others, nor yet as proof that he actually went away from Wichita, 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. In view of the mass of conflicting testimony introduced upon the question whether it was the body of Walters that was found in Hillmon's camp, this evidence might properly influence the jury in determining that question.
The rule applicable to this case has been thus stated by this court: '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. If there be such other testimony, this may be necessary to set the facts thus developed in their true light, and to give them their proper effect. As independent, explanatory, or corroborative evidence it is often indispensable to the due administration of justice. Such declarations are regarded as verbal acts, and are as competent as any other testimony, when relevant to the issue. Their truth or falsity is an inquiry for the jury.' Insurance Co. v. Mosley, 8 Wall. 397, 404, 405.
* * *
Upon principle and authority, therefore, we are of opinion that 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; and that for the exclusion of these letters, as well as for the undue restriction of the defendants' challenges, the verdicts must be set aside, and a new trial had.
Recent Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook
Rule 803(3). Then Existing Mental, Emotional, or Physical Condition
Example—Inadmissible. "Here Aquarium would like to have had Mr. Murray testify to Lerner's statement of memory, that is, Lerner's recollection of the telephone conversation, in order to prove the fact remembered, i.e., the contents of that conversation. This is among the type of testimony that the final phrase of Rule 803(3) was designed to preclude." Marshall v. Commonwealth Aquarium, 611 F.2d 1, 5 (1st Cir.1979).
Example—Inadmissible. "Ms. Joe's statement to Dr. Smoker, though indicating her state of mind, also included a statement of why she was afraid (i.e., because she thought her husband might kill her). This portion of Ms. Joe's statement is clearly a 'statement of memory or belief expressly excluded by the Rule 803(3) exception." United States v. Joe, 8 F.3d 1488, 1492-93 (10th Cir.1993).
Example—Inadmissible. "Turolla's e-mails contain hearsay statements expressing his then existing state of mind (i.e., 'I hate to be in this predicament;' I am at my wits end;' I am concerned for the future') as well as assertions of why Turolla had these feelings (i.e., descriptions of conversations, interactions, incidents, and problems he was allegedly having with Plaintiff). The statements explaining why Turolla had these feelings are expressly outside the state-of-mind exception." McInnis v. Fairfield Communities, Inc., 458 F.3d 1129, 1143 (10th Cir. 2006).
Example—Partly admissible, partly inadmissible. Prosecution for sexual abuse of 11-year-old girl. Over hearsay objections, the mother of the girl was permitted to testify to the girl's account of the crime after the girl awoke her in the middle of the night with a facial laceration. "Limited portions of the mother's testimony are based upon D.D.'s statements concerning her physical state—she was bleeding because Joseph DeMarce hit and tried to rape her. Those statements were properly admitted. This court concludes that the remaining testimony of the mother, however, does not recount statements of D.D.'s present condition, but states D.D.'s memory. The testimony should not have been admitted under Rule 803(3)." United States v. DeMarce, 564 F.3d 989, 996 (8th Cir.2009).
Rule 803(4). Statements for Purposes of Medical Diagnosis or Treatment
Example—Admissible. Statement by sexually abused child to doctor identifying father or stepfather as abuser. United States v. Longie, 984 F.2d 955, 959 (8th Cir.1993); United States v. George, 960 F.2d 97, 99 (9th Cir.1992); United States v. Renville, 779 F.2d 430, 435-36 (8th Cir.1985).
Example—Admissible. Statements by child victim of sexual assault to medical personnel; court rejected argument that reliability of statements was undermined because child, on account of age, was not able to understand medical relationship and necessity of telling truth. United States v. Pacheco, 154 F.3d 1236, 1240-41 (10th Cir.1998). Accord, United States v. Edward J., 224 F.3d 1216, 1219-20 (10th Cir.2000); United States v. Norman T., 129 F.3d 1099, 1105-06 (10th Cir.1997) (five-year-old child), cert. denied, 523 U.S. 1031, 118 S.Ct. 1322, 140 L.Ed.2d 485 (1998). Contra, United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir.2000) ("[I]t must be shown that the child understands the `medical significance of being truthful,' i.e., the role of the medical health professional in trying to help or heal her, which triggers the motivation to be truthful."); Olesen v. Class, 164 F.3d 1096, 1098 (8th Cir.1999).
Example—Admissible. "While the district court was correct that Willingham's statements about a firearm being pointed at her were not relevant to her physical injuries, it is clear from the physicians' notes that Willingham was also seeking treatment for emotional trauma. Willing-ham's statements to her doctors indicate that her emotional trauma stemmed, in part, from having a firearm pointed at her; therefore, these statements were relevant to her diagnosis and treatment." Willingham v. Crooke, 412 F.3d 553, 562 (4th Cir.2005).
PRESENT STATE OF MIND OR PHYSICAL
CONDITION PROBLEMS
FRE803(3) / HRE803(b)(3)
1 xx
2. OCD (Out of Court Declarant) says,
A) "I am going to Crooked Creek."
Can the statement be used to prove OCD's intent to go to Crooked Creek.
B) "I am afraid of Dr. Shepard."
Can it be used to prove she (murder victim) was afraid of the doctor in the homicide case against the doctor?
3. A) "I am going to Crooked Creek."
B) "I am going to Crooked Creek with Hillmon."
C) "I am going with Frank."
Can these statements be used to prove you went there?
4. "I am going to Crooked Creek with Hillmon."
Can this statement be used to prove Hillmon went there?
5. A) "I went to Crooked Creek with Hillmon."
Can this statement be used to prove you went there?
B) "Dr. Shepard has poisoned me."
Can this statement be used to prove Shepard poisoned the OCD?
6. "I am the President of the U.S."
Is the statement admissible on issue of sanity of the declarant?
7. In a case about a contested will, Son sues because he was left out of the will. To prove Testator intentionally left Son out of the will, Witness will testify that Testator said:
A) "My son robbed me blind every chance he got."
B) "I intend to leave nothing to my son." (said 2 weeks before he signed the will)
C) "I left my son out of the will." (said 2 weeks after he signed the will)
Are these statements admissible? Are they hearsay or hearsay exceptions?
MEDICAL DIAGNOSIS OR TREATMENT PROBLEMS
FRE803(3)&(4) / HRE803(b)(3)&(4)
Plaintiff is in an accident at work. Immediately thereafter he walks across the street to a lawyer who has a doctor who works with him. As the lawyer drafts the complaint, the doctor examines the plaintiff. From this office, the plaintiff calls his wife and tells her what happened. She calls his personal doctor and tells him what happened. For the next two years the plaintiff tells his friends about the accident.
Which of the following statements are admissible when they are made to the various people listed on the chart below?
|Statements made by plaintiff to: |Doctor working |Wife |Personal Doctor |Friends |
| |with the Lawyer | | | |
|a) I was feeling dizzy. | | | | |
|b) I tried to throw the switch. | | | | |
|c) It was out of order. | | | | |
|It would not move. | | | | |
|d) It hurt my back. | | | | |
|e) I have pain in it now. | | | | |
|f) I have a bruise on my leg | | | | |
|g) I injured my back 5 years ago too. | | | | |
BUSINESS RECORDS
PALMER V. HOFFMAN, 318 U.S. 109 (1943)
This case arose out of a grade crossing accident which occurred in Massachusetts. Diversity of citizenship brought it to the federal District Court in New York.
* * *
[After the accident] ...the engineer of the train, who died before the trial, made a statement at a freight office of petitioners where he was interviewed by an assistant superintendent of the road and by a representative of the Massachusetts Public Utilities Commission. This statement was offered in evidence by petitioners under [the business records statute in effect at that time.] They offered to prove that the statement was signed in the regular course of business, it being the regular course of such business to make such a statement. Respondent's objection to its introduction was sustained.
We agree with the majority view below that it was properly excluded.
We may assume that if the statement was made 'in the regular course' of business, it would satisfy the other provisions of the Act. But we do not think that it was made 'in the regular course' of business within the meaning of the Act. The business of the petitioners is the railroad business. That business like other enterprises entails the keeping of numerous books and records essential to its conduct or useful in its efficient operation. Though such books and records were considered reliable and trustworthy for major decisions in the industrial and business world, their use in litigation was greatly circumscribed or hedged about by the hearsay rule-- restrictions which greatly increased the time and cost of making the proof where those who made the records were numerous.
In this case those reports are not for the systematic conduct of the enterprise as a railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like these reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading.
It is, of course, not for us to take these reports out of the Act if Congress has put them in. But there is nothing in the background of the law on which this Act was built or in its legislative history which suggests for a moment that the business of preparing cases for trial should be included.
The several hundred years of history behind the Act indicate the nature of the reforms which it was designed to effect. It should of course be liberally interpreted so as to do away with the anachronistic rules which gave rise to its need and at which it was aimed. But 'regular course' of business must find its meaning in the inherent nature of the business in question and in the methods systematically employed for the conduct of the business as a business.
Affirmed.
JOHNSON v. LUTZ, 170 N.E. 517 (1930) RCA
[wrongful death: motorcycle driver collided with defendant's truck] There was a sharp conflict in the testimony in regard to the circumstances under which the collision took place. A policeman's report of the accident filed by him in the station house was offered in evidence by the defendants under section 374-a of the Civil Practice Act, and was excluded. The sole ground for reversal urged by the appellants is that said report was erroneously excluded.
The memorandum in question was not made in the regular course of any business, profession, occupation, or calling. The policeman who made it was not present at the time of the accident. The memorandum was made from hearsay statements of third persons who happened to be present at the scene of the accident when he arrived. It does not appear whether they saw the accident and stated to him what they knew, or stated what some other persons had told them.
The purpose of the [business records act] was to permit a writing or record, made in the regular course of business, to be received in evidence, without the necessity of calling as witnesses all of the persons who had any part in making it, provided the record was made as a part of the duty of the person making it, or on information imparted by persons who were under a duty to impart such information. [It] permits the introduction of shopbooks without the necessity of calling all clerks who may have sold different items of account. It was not intended to permit the receipt in evidence of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto. 'It is a proper qualification of the rule admitting such evidence that the account must have been made in the ordinary course of business, and that it should not be extended so as to admit a mere private memorandum, not made in pursuance of any duty owing by the person making it, or when made upon information derived from another who made the communication casually and voluntarily, and not under the sanction of duty or other obligation.'
... in the business world credit is given to records made in the course of business by persons who are engaged in the business upon information given by others engaged in the same business as part of their duty.
'Such entries are dealt with in that way in the most important undertakings of mercantile and industrial life. They are the ultimate basis of calculation, investment, and general confidence in every business enterprise. Nor does the practical impossibility of obtaining constantly and permanently the verification of every employee affect the trust that is given to such books. It would seem that expedients which the entire commercial world recognizes as safe could be sanctioned, and not discredited, by courts of justice. When it is a mere question of whether provisional confidence can be placed in a certain class of statements, there cannot profitably and sensibly be one rule for the business world and another for the court-room. The merchant and the manufacturer must not be turned away remediless because the methods in which the entire community places a just confidence are a little difficult to reconcile with technical judicial scruples on the part of the same persons who as attorneys have already employed and relied upon the same methods. In short, courts must here cease to be pedantic and endeavor to be practical.'
The Legislature has sought by the amendment to make the courts practical. It would be unfortunate not to give the amendment a construction which will enable it to cure the evil complained of and accomplish the purpose for which it was enacted. In construing it, we should not, however, permit it to be applied in a case for which it was never intended.
The judgment should be affirmed, with costs.
State v. Forman, 125 Hawai'i 417, 263 P.3d 127 (2011) ICA
Absence of RCA – Business Records
Holdings: The Intermediate Court of Appeals, held that on issue of first impression, evidence was admissible under absence of business record exception to hearsay rule; …Affirmed.
Defendant was convicted of Unauthorized Control of Propelled Vehicle (UCPV); he was riding a moped on Ala Wai Boulevard. The moped's license decal was partially missing or had been removed, which, according to the officers, was not uncommon for mopeds that had been stolen. The moped was missing from the company that owned it, but the company had not reported it as stolen. The defendant claimed he had rented the mope for cash.
…
The prosecutor asked owner at trial, “So based on the absence of these contracts, can you tell if anyone had permission to operate the blue moped with license N60317, which for your—according to your company is Moped No. 26?” Forman objected: “Calls for speculation, foundation, hearsay, lack of personal knowledge, competency.” The circuit court overruled the objection. Voight answered that “[n]o one has permission.” …
HRE Rule 803(b)(7) permits the admission of: [e]vidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
The absence of an entry in a business record is technically not hearsay because it “is not, in and of itself, a ‘statement ... offered in evidence to prove the truth of the matter asserted [ ].’ ” Rule 803(b)(7) nevertheless classifies the absent business record as a hearsay exception. ..
The federal courts have cited three concerns when evaluating the trustworthiness of absent records, including both public and business records. First, where a qualifying witness testifies to the purported absence of a record, the trustworthiness of this testimony depends on “the thoroughness or diligence of the records search.” … Second, there must be a showing that the record searched was itself sufficiently complete. … Lastly, if the record is being used to prove that an event did not occur, the event must be of the particular type that would have been mentioned in the record if it had indeed occurred…
Unlike FRE Rule 803(10) and HRE Rule 803(b)(10), which concern the absence of entries in a public record, FRE Rule 803(7) and HRE Rule 803(b)(7) do not require certification or testimony that “diligent search failed to disclose the record, report, statement, or data compilation.” However, this is implied. … “It hardly requires extended discussion to demonstrate that a casual or partial search cannot justify the conclusion that there was no record.” …
[The appellate court found that the trustworthiness concerns were met.]
We affirm defendant's conviction ….
Recent Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook
R803(6) Records of Regularly Conducted Activity
"Lack of trustworthiness" proviso. Courts are likely to invoke the "lack of trustworthiness" proviso with regard to documents prepared in anticipation of litigation, or under circumstances similarly suggesting a motive to misrepresent.
Example—Inadmissible. "The incident report was prepared by a non-witness Hardee's employee and contained not only a description of the condition of the parking lot as dry, not wet or oily, but also a statement attributed to a 'friend' of Mrs. Scheerer that the cause of the accident was Mrs. Scheerer's 'slick shoes.' * * * We hold the incident report was not admissible as a business record under Fed.R.Evid. 803(6) because the source of the information contained therein was never identified at trial. * * * In the absence of any evidence about the source of that information, we cannot test its reliability or trustworthiness. * * * In addition, the incident report was inadmissible as a business record under Fed. R. Evid. 803(6) because it had been prepared in anticipation of litigation," Scheerer v. Hardee's Food Systems, Inc., 92 F.3d 702, 706 (8th Cir.1996).
Example—Inadmissible. "The report is no more trustworthy because Geary prepared it than if Underwriters had done so. Whether Underwriters compiled the report as part of an internal investigation with in-house employees or whether Underwriters hired an outside investigator to prepare the report, the conclusion remains that the primary motive for initially preparing the report was to prepare for litigation. * * * Litigants cannot evade the trustworthiness requirement of Rule 803(6) by simply hiring an outside party to investigate an accident and then arguing that the report is a business record because the investigator regularly prepares such reports as part of his business." Certain Underwriters at Lloyd's, London v. Sinkovich, 232 F.3d 200, 205 (4th Cir.2000).
Example—Inadmissible. "Clearly, the report in this case was not kept in the course of a regularly conducted business activity, but rather was specially prepared at the behest of the FBI and with the knowledge that any information it supplied would be used in an ongoing criminal investigation. * * * In finding this report inadmissible under Rule 803(6), we adhere to the well-established rule that documents made in anticipation of litigation are inadmissible under the business records exception." United States v. Blackburn, 992 F.2d 666, 670 (7th Cir.1993), cert. denied, 510 U.S. 949, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993).
R803(8) Public Records and Reports
Lack of trustworthiness proviso. Reports offered under Rule 803(8)(C) are presumed admissible; the burden is on the party opposing the admission of the report to prove its untrustworthiness. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167, 109 S.Ct. 439, 448, 102 L.Ed.2d 445 (1988). Four factors are frequently cited as bearing on the determination of trustworthiness: "(1) the timeliness of the investigation; (2) the investigator's skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation." Id., 488 U.S. at 168 n. 11, 109 S.Ct. at 449 n. 11; Advisory Committee's Note to Rule 803(8).
Example—Inadmissible. "The inference of doctoring, even in the case of the unamended version of the January 6 minutes, is strong, and the public-records exception to the hearsay rule is inapplicable when the `circumstances indicate lack of trustworthiness.' * * * The provision is tailor-made for a case in which the records are controlled by the defendants themselves rather than by clerks assumed to be disinterested." United States v. Spano, 421 F.3d 599, 604 (7th Cir. 2005).
BUSINESS RECORDS PROBLEMS
RECORDS OF REGULARLY CONDUCTED ACTIVITY
1 A police officer took measurements at an auto accident scene of the Blue Car v. Yellow Car auto accident. However, the officer cannot remember the measurements at trial. What can be done at trial to get evidence about the measurements into evidence? [This is not a business records issue. What is it?]
2 Hawaii Liquor Commission v. Jones. To prove that Cut-Rate Liquors had Thunderbird wine in stock on April 5th, may the plaintiff introduce inventory records made on March 31st? If yes, who could testify about the inventory records?
3 After a pedestrian, Mrs. P, was killed by bus, the bus driver was interviewed by the bus driver's supervisor. Driver signed a statement at the end of the interview in which he denied that he was negligent. The driver died before trial. Can bus company introduce the driver's statement in the trial of P's Estate v. The Bus Company?
4 A hospital record indicates that "patient suffered a broken leg and severe shock when hit by the car that went through a red light." Is the hospital record admissible?
5 Auto accident - Blue Car v. Yellow Car. Defendant, driver of the yellow car, wants to offer into evidence the police accident report written by Officer Jones on the day of the accident. The officer arrived 10 minutes after the accident. Is the whole report admissible?
6 Are the following parts of the Officer Jones' report admissible?
"A woman said that she had seen everything and that the blue car ran the red light."
7 Officer Jones' report also said:
"The driver of the yellow car told me that the driver of the blue car ran the light."
8 Officer Jones' report also said:
"The driver of the blue car said to me that the sun was in his eyes."
9 Officer Jones' report also said:
"The driver of the blue car said that he had been hurrying to get across town."
10 Officer Jones' report also said:
"The driver of the yellow car told me that she had a bad headache."
11 xxx
12 Officer Jones' report also said:
"Officer Lee told me that he heard the crash and arrived within 30 seconds, and that the driver of the yellow car told him that the blue car had run the light.'
13 xxx
14 Issue: whether cargo in a Matson container got contaminated while in transport. It is normal business practice to clean and inspect containers before putting cargo inside, and to put information about the cleaning and inspecting into a report. The record in this case does not indicate any cleaning and inspection. Is the record admissible?
STATE v. OFA, 9 Haw.App. 130, 828 P.2d 813 (1992)
- conviction of driving under the influence of intoxicating liquor (DUI)
The court admitted into evidence, over Defendant's objection, a copy of a page of the record book [that a criminalist] brought into court [that] showed that the Intoxilyzer had been tested [before and after the test on defendant’s evidence] for accuracy by a beam attenuator and two simulator solutions of 0.05 percent and 0.30 percent alcohol concentration, respectively. …
The Log falls within the HRE Rule 803(b)(8)(B) exception. It constitutes a record or report of a public agency, the HPD. It includes matters observed and reported by a HPD operator-supervisor who tested the Intoxilyzer for accuracy as required by provisions of the Rules. The only issue is whether the Log is excludable from the public records and reports exception to the hearsay rule as "matters observed by ... law enforcement personnel" in a criminal case.
In construing the exclusion provision of Fed.R.Evid. 803(8)(B), the Court of Appeals of the Second Circuit took a very restrictive view, holding that in criminal cases reports of public agencies setting forth matters observed by police officers and other law enforcement personnel and reports of public agencies setting forth factual findings resulting from investigations made pursuant to authority granted by law cannot satisfy the standards of any hearsay exceptions if those reports are sought to be introduced against the accused. United States v. Oates, 560 F.2d 45, 84 (2d Cir.1977). The Oates restrictive view has been criticized....
The Court of Appeals of the Ninth Circuit concluded that "the exclusionary provisions of Rule 803(8)(B) were intended to apply to observations made by law enforcement officials at the scene of a crime or the apprehension of the accused and not 'records of routine, nonadversarial matters' made in a nonadversarial setting." United States v. Wilmer, 799 F.2d 495, 500-01 (9th Cir.1986) (quoting United States v. Orozco, 590 F.2d 789, 793 (1979)). Wilmer held that, in a DUI case, the calibration report of a breathalyzer maintenance operator is admissible under Fed.R.Evid. 803(8)(B). See United States v. DeWater, 846 F.2d 528 (9th Cir.1988) (in a DUI case, the intoxilyzer test results were admissible under the public records and reports exception to the hearsay rule).
We opt to follow the rationale in the Orozco, Wilmer, and DeWater cases. Clearly, Wadahara's report in the Log of his testing of the Intoxilyzer for accuracy on the specified dates constituted a record of routine, nonadversarial matters made in a nonadversarial setting. … (certificates of breathalyzer inspections relate to "the routine function of testing breathalyzer equipment to insure that it gives accurate readings").
…
Accordingly, the district court did not abuse its discretion in admitting the Log into evidence and denying Defendant's objections to Chang's testimony.
* * *
[JB: there is still an issue as to whether defendant’s constitutional right to confrontation was violated, but that issue does not sharpen for another decade.
Bowman’s treatise says, “[although] cases approving a “routine, nonadversarial” scientific testing exception to rule 803(b098) (b)’s criminal cases exclusion do not survive Melendez-Diaz [a confrontation case], State v. Ofa (approving HPD criminalist’s report of the testing of an intoxilyzers as part of the foundation for evidence of a breath test result) likely fall within a Melendez-Diaz dictum: “We do not hold…that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device must appear in person as part of the prosecution’s case…[D]ocument prepared in the regular course of equipment maintenance may well qualify as nontestmonial records.”]
STATE v. JHUN, 83 Hawai'i 472, 927 P.2d 1355 (1996)
Issue: the admissibility of a witness’ statement contained within a police report.
The witness made the statement at the scene of the crime.
The officer recorded that statement in his police report.
The witness did not appear for trial and the office read the witness’s statement in to evidence.
Michael's [the witness] statements to Officer Cravalho were hearsay, because they were out-of-court statements that Jhun offered into evidence to prove the truth of the matter asserted, i.e., that Jhun was justified in stabbing Cornelius. Furthermore, Officer Cravalho had transcribed Michael's statements into the HPD-252 forms, which constituted hearsay. Finally, rather than offering the HPD-252 forms into evidence, Jhun attempted in court to elicit Officer Cravalho's testimony about Michael's statements in the HPD-252 forms, which, under these circumstances, was an attempt to elicit hearsay. Without a hearsay exception for each of these three levels of hearsay, Officer Cravalho's testimony was inadmissible.
- when a police report simply records a witness's statement, absent a hearsay exception for the witness's statement, the police report cannot be admitted into evidence [as a public record]
...
Similarly in the instant case, the HPD-252 forms did not contain "factual findings" that Officer Cravalho based on his own investigation. Officer Cravalho did not record any of his own independent conclusions or opinions about his interview with Michael. Rather, the HPD-252 forms merely contained out-of-court statements that Michael had made to Officer Cravalho approximately one hour and forty-five minutes after the events that had culminated in Jhun's arrest. As a result, the HPD-252 forms lacked the typical characteristics of factual findings. Like the police reports at issue in Miller, the HPD-252 forms were merely a recitation of a third-party's out-of-court statements that fell under no other exception to the hearsay rule, and thus, the HPD-252 forms were not admissible under HRE Rule 803(b)(8)(C).
Accordingly, we hold that the trial court correctly ruled that Officer Cravalho's cross-examination testimony about Michael's statements in the HPD- 252 forms was inadmissible hearsay.
...
Based on the foregoing, we reverse the ICA's decision in State v. Jhun, and order the ICA's opinion depublished. We hold that the trial court correctly ruled that Officer Cravalho's cross-examination testimony about Michael's statements in the HPD- 252 forms was inadmissible hearsay. ... Therefore, we affirm the trial court's conviction of Jhun.
PUBLIC RECORDS PROBLEMS
HRE 803(B)(8) = FRE 803(8)
1 Police Officer Onscene arrived at the scene of a Honda v. Buick accident and prepared an accident report. The report included a statement to the officer from a bystander who said, "I can't believe the guy in the Buick made a left turn after the light had turned red." In a subsequent personal injury action, can the report be introduced by either party?
2 Can either party in the above accident introduce the records of the U.S. Meteorological Service showing the weather on the day of the accident?
3 Officer Onscene has been trained in accident reconstruction. Using point of impact, other measurements, vector analysis, and statements of bystanders, the officer concludes that the Buick ran the red light, and writes this conclusion in the report. Can the police officer testify as to her conclusion in court?
4 The police officer comes to court, but has done so many accident investigations, she cannot remember this particular accident. What can the Honda driver do?
5 The police officer died in the line of duty. Can the Honda driver introduce the officer's report?
6 If "yes," what foundation must be laid?
7 The driver of the Honda died as a result of injuries received during the crash. Is Onscene's report admissible in Buick driver's subsequent negligent homicide trial?
8 The Buick driver was tested for alcohol consumption by Officer Bier at the station and registered .18 blood alcohol consumption (legally drunk) using a breathalyzer. Bier wrote a report to this effect. Before the Buick owner's DUI trial, Officer Bier retired and moved to California to run Cut Rate Liquors L.A. Is Bier's report admissible?
9 Bier returns to Hawaii and does testify in the Buick driver's trial. However, the person who gives the breathalyzer its monthly test and certifies in a log that the machine is accurate, is not available to testify. The police ask for your opinion as to whether they will be able to admit the evidence against the Buick driver. What is your opinion?
EXPERT TREATISE,
JUDGMENT OF PREVIOUS CONVICTION
& OTHER 803 HEARSAY PROBLEMS
1. Paul Patient sued Dan the Doctor for medical malpractice for allegedly failing to come to the hospital when Paul needed his attention. Dan had admitted Paul to the hospital for an operation to repair a broken leg. One night at the hospital, at approximately 3 a.m., Paul complained of pain in the leg and lack of feeling in his toes. His toes were cold and bluish in color. These are indications that the cast was cutting off the circulation in Paul's lower leg. Dan's defense is that he was never informed of the seriousness of the symptoms. Paul, in his case-in-chief, seeks to introduce a textbook that during a deposition Dan recognized as a reliable authority. The relevant portion of the textbook states:
"One of the clearest symptoms that a leg has been cast too tightly is the loss of feeling resulting from decreased circulation."
Is the textbook admissible by Paul? (Guer 4.44)
2. Bobby the building owner sued his insurance company because it has not paid him on the insurance policy for his building that was destroyed by fire. The insurance company defends on the ground that Bobby set the fire and is therefore not entitled to the insurance proceeds. Bobby was convicted of arson of the building before his civil trial against the insurance company started. At the civil trial, can the insurance company introduce the fact that Bobby has previously been convicted of arson of his own building?
3. Can the Hawaii Liquor Control Commission introduce the public intoxication conviction of Walter Watkins to show that clerk Dan Jones sold liquor to an intoxicated person? Watkins' conviction was punishable to six months in jail. He served a 10-day sentence.
4. Paula and David have an auto accident. David drives a truck for his Dad's Laundry. Both drivers claim the other ran a red light causing the accident. After the auto accident but prior to trial, David was convicted of driving under the influence of alcohol, a misdemeanor. Is that conviction admissible in the auto accident trial?
After David's truck hit Paula, it ran up on the sidewalk striking Harriet. Harriet died and Dave was tried and convicted of negligent homicide, a felony. Is Dave's conviction for negligent homicide admissible in the auto accident case with Paula?
Does it matter that the conviction will also be used against Dad's Laundry? (Guer 4.45)
5. Plaintiff seeks to establish the value of her property by showing the value of comparable properties. To establish the value of comparable properties, plaintiff seeks to introduce the "Guide to Real Estate," a monthly publication produced by local real estate agencies, showing residential properties for sale in the Honolulu area. Defendant objects. What ruling? (Guer 4.46)
6. Plaintiff brings suit on a life insurance policy, claiming he is entitled to double indemnity because of the accidental death of the insured. The insurance company seeks to introduce a certified copy of the insured's death certificate which states that death was the result of a heart attack. Plaintiff objects. What ruling? (Guer 4.47)
804 EXCEPTIONS –UNAVAILABILITY
STATE v. KIM, 55 Haw. 346, 519 P.2d 1241 (1974) R 804
Convicted of negligent homicide. To prove that Kim was intoxicated while driving a car that collided with another car, killing its two occupants, the prosecutor introduced the transcript of a pre-trial hearing testimony.
The state attempted to show the appellant's grossly negligent operation of the lethal motor vehicle through proof of her intoxication at the time she was driving through the testimony of a doctor who treated Kim at the hospital. The doctor did not appear at trial; his pre-trial hearing testimony was read into the record after a medical secretary for the hospital testified that according to hospital records the doctor’s forwarding address is the Weatern Blueprint Company at 909 Grant Avenue in Kansas City, Missouri.
Under the confrontation clauses of the United States and Hawaii Constitutions, a defendant in a criminal prosecution has the right 'to be confronted with the witnesses against him.
...
We hold that the state did not sufficiently establish the 'unavailability' of Dr. Wally to permit it to use his pre-trial testimony. Establishing that a witness has a forwarding address in another state at best only tends to prove the witness's absence from Hawaii. The state must show a good faith effort to ascertain the actual location of the witness, and thereafter, if necessary, to attempt to compel the witness's attendance at trial through use of the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings.
Unless the state can show a good faith attempt to use this statute to assure attendance of the witness, the state may not introduce the pre-trial testimony of the absent witness.
Since the state failed to show a good faith effort to compel Dr. Wally's attendance at the appellant's trial (and this was admitted during the oral argument), an inadequate foundation was laid for the admission therein of his pre-trial testimony. The trial court erred in admitting this testimony in violation of the appellant's constitutional right to confrontation. For this error, we are required to reverse the conviction and remand this case for a new trial.
FN7. We also note the recent case, State v. Faafiti, 54 Haw, 637, 642, 513 P.2d 697, 701 (1973), in which we were faced with the issue of unavailability. In Faafiti we held that the state's effort to procure the attendance of a key witness, Ira Haskins, was sufficient where the witness was serving in the military and the appropriate military authorities were requested, without avail, to return the witness to this jurisdiction for defendant's trial. The record in the case at bar reflects no effort even arguably comparable to that made in Faafiti.
Judgment reversed and remanded for a new trial.
FORMER TESTIMONY PROBLEMS
1 Criminal case. W testifies before a grand jury that D committed the crime. If W is unavailable for trial, is W's grand jury testimony admissible at trial? Why?
2 Criminal case. W testifies at a preliminary hearing that D committed the crime. If W is unavailable for trial, is W's preliminary hearing testimony admissible at trial? Why or why not?
3 In the example above, if the defendant's lawyer did not cross examine W at the preliminary hearing, is the preliminary hearing testimony admissible at trial?
4 Civil case: At a pretrial deposition, W testifies that P ran the red light. If W is unavailable for trial, is W's deposition testimony admissible at trial against P?
5 Kekona testifies against defendant Lincoln at his criminal trial. Lincoln is convicted, but the case is reversed by the Supreme Court. If Kekona is unavailable for a second trial, is Kekona's testimony admissible?
.
6 FACTS: P1 & P2 are riding in a Taxi that has an accident with a bus. P1 sues Taxi (P1 v. Taxi). P1 testifies to facts that show that the taxi driver was negligent. WT (wit for Taxi) testifies that Taxi was not negligent. Jury finds for P1
P2 now sues Taxi in another suit (P2 v. Taxi), again for negligence. Can P1's testimony be introduced by P2 against T?
7 Assuming P2 can find a good use for it, can P2 introduce WT's testimony against Taxi?
8 Can WT's testimony be introduced by T against P2?
9 P is seeking damages for an asbestos-related disease. In an earlier trial, W gave testimony about the amount of asbestos in Company A's product. In this case, P sues Company B involving a product similar to the one produced by Company A. Is W's testimony from the trial with Company A admissible in the trial with Company B?
10 Another P is seeking damages for asbestos-related disease. P sued Company X claiming that it had made some of the asbestos-containing products that P had worked with during his career as a pipefitter. May P offer testimony of unavailable W who testified at a trial involving similar products produced by Company Y, a company that had merged with Company X just before the current P filed suit?
11 Sam Smith brought a small claims case against Robert Jones and the Owens Construction Company for $500 in damages done to his truck. At the trial, Sally Smith, Sam's daughter, who was a passenger in the bed of truck, testified as to what she knew of the accident. At Billy Boy's trial, Sally Smith is unavailable. Is the testimony of Sally Smith at the small claims hearing admissible against Billy Boy when offered by either Sam Smith or Robert Jones (who are co-defendants)?
Is the prior testimony of Sally Smith admissible when offered by Sam Smith against Robert Jones and the Owens Construction Company in Billy Boy's trial?
12 The Owens Construction Company fired Robert Jones for leaving his job during working hours and using a company car for personal business. Robert Jones brought a case for unfair dismissal. In that case, the deposition of Mary Jackson was taken by counsel for Robert Jones. During the deposition, Mary Jackson answered several questions asked by counsel for Robert Jones and counsel for the Owens Construction Company relating to the details of the accident with Billy Boy. At the time of trial of the case brought by Billy Boy, Mary Jackson is visiting her parents across the country. May Billy Boy introduce into evidence the deposition testimony of Mary Jackson against the Owens Construction Company?
Recent Case Notes from Goode & Wellborn’s Courtroom Evidence Handbook
R804(b)(1) Former Testimony
Similar motive to develop the testimony. Generally, a party or predecessor in interest is regarded as having a similar motive to develop the testimony when the issue to which the testimony related at the former hearing is substantially identical to the issue in the present proceeding. Absolute identity of the issue is not required.
DYING DECLARATIONS
SHEPARD v. UNITED STATES, 290 U.S. 96 (1933)
Dying Declaration case
Shepard is also a state of mind case
Charles A. Shepard was convicted of murder. Affirmed by the Circuit Court of Appeals. Reversed by the Supreme Court, and cause remanded.
The petitioner, Charles A. Shepard, a major in the medical corps of the United States Army, has been convicted of the murder of his wife, Zenana Shepard, at Fort Riley, Kan., a United States military reservation.
The crime is charged to have been committed by poisoning the victim with bichloride of mercury. The defendant was in love with another woman, and wished to make her his wife. There is circumstantial evidence to sustain a finding by the jury that to win himself his freedom he turned to poison and murder. Even so, guilt was contested, and conflicting inferences are possible. The defendant asks us to hold that by the acceptance of incompetent evidence the scales were weighted to his prejudice and in the end to his undoing.
The evidence complained of was offered by the government in rebuttal when the trial was nearly over. On May 22, 1929, there was a conversation in the absence of the defendant between Mrs. Shepard, then ill in bed, and Clara Brown, her nurse. The patient asked the nurse to go to the closet in the defendant's room and bring a bottle of whisky that would be found upon a shelf. When the bottle was produced, she said that this was the liquor she had taken just before collapsing. She asked whether enough was left to make a test for the presence of poison, insisting that the smell and taste were strange. And then she added the words, 'Dr. Shepard has poisoned me.'
* * *
... The voice of the dead wife was heard in accusation of her husband, and the accusation was accepted as evidence of guilt. If the evidence was incompetent, the verdict may not stand.
Upon the hearing in this court the government finds its main prop in the position that what was said by Mrs. Shepard was admissible as a dying declaration. This is manifestly the theory upon which it was offered and received. The prop, however, is a broken reed. To make out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death. The record furnishes no proof of that indispensable condition. So, indeed, it was ruled by all the judges of the court below, though the majority held the view that the testimony was competent for quite another purpose, which will be considered later on.
We have said that the declarant was not shown to have spoken without hope of recovery and in the shadow of impending death. Her illness began on May 20. She was found in a state of collapse, delirious, in pain, the pupils of her eyes dilated, and the retina suffused with blood. The conversation with the nurse occurred two days later. At that time her mind had cleared up, and her speech was rational and orderly. There was as yet no thought by any of her physicians that she was dangerously ill, still less that her case was hopeless. To all seeming she had greatly improved, and was moving forward to recovery. There had been no diagnosis of poison as the cause of her distress. Not till about a week afterwards was there a relapse, accompanied by an infection of the mouth, renewed congestion of the eyes, and later hemorrhages of the bowels. Death followed on June 15.
Nothing in the condition of the patient on May 22 gives fair support to the conclusion that hope had then been lost.... Despair of recovery may indeed be gathered from the circumstances if the facts support the inference.... What is decisive is the state of mind. Even so, the state of mind must be exhibited in the evidence, and not left to conjecture. The patient must have spoken with the consciousness of a swift and certain doom.
What was said by this patient was not spoken in that mood. There was no warning to her in the circumstances that her words would be repeated and accepted as those of a dying wife, charging murder to her husband, and charging it deliberately and solemnly as a fact within her knowledge. To the focus of that responsibility her mind was never brought. She spoke as one ill, giving voice to the beliefs and perhaps the conjectures of the moment. The liquor was to be tested, to see whether her beliefs were sound. She did not speak as one dying, announcing to the survivors a definitive conviction, a legacy of knowledge on which the world might act when she had gone.
* * *
Reversed.
DYING DECLARATION PROBLEMS
1 Homicide prosecution. Victim (V) says to Witness (W):
"I'm dying. X shot me." Is W’s testimony admissible as a dying declaration?
2 Homicide prosecution. V says to W:
"Tell Fate Yanagi I love her." Admissible?
3 Charge: attempted murder. V was shot; V recovered; V moved to India for spiritual enlightenment. V says to W: "X shot me. I may die from this". Admissible?
4 Homicide prosecution. V says to W: "Dr. Shepard poisoned me." Admissible?
5 In civil auto accident case, it is recorded in the hospital record of the patient, who knew he was dying, "Doctor, I saw his head nodding as he crossed the center line." Admissible?
6 Injured and dying in prison riot, declarant says, "Tom didn't mean to shoot the guard at the bank". Prosecutor wants to introduce that statement against Tom in his trial for bank robbery. Admissible?
7 xx
8 Declarant, obviously dying, is asked the following question, "Who shot you?" and answers: [by writing with his finger in his own blood] "Bob."
9 Suicide note says, "I am going to die now. I took poison".
Family of note writer sued insurance company to collect on life insurance policy on note writer. Insurance company defends on grounds the death was a suicide, not an accident, and suicide is excluded from the policy coverage. Is the note admissible for life insurance company as a dying declaration?
10 Same law suit as above, only this time the suicide note reads:
"I am going to take poison soon (said 2 weeks before death)". Is it admissible for life insurance company as a dying declaration?
11 Suicide Note:
"I took poison. I couldn't stand it after Jenny and I stole the money from work." If declarant recovers from the poison, is the statement admissible as a dying declaration if the declarant and Jenny are charged with embezzling funds from work?
12 "Get a priest. Larry shot me in the back"
Is it admissible in murder trial of State v. Larry?
13 "I saw Harry shoot me. Please tell my auntie to take care of my children."
14 xxx
STATE v. BATES 70 Haw. 343, 771 P.2d 509 (1989) HRE 804(b)(3)
Bowman text: State v. Bates, 70 Haw. 343, 771 P.2d 509 (1989) (arrested with another man inside an Ala Moana Beach Park concession stand, declarant’s remark, “Okay, I’m busted. I’m busted. I just came in with the other guy” was against penal interest), with Shea v. City & County of Honolulu, 67 Haw. 499, 509, 692 P.2d 1158, 1166 (1985) (remark of unknown bystander following motorcycle accident, “I’m sorry, I didn’t see him,” was “too uncertain” to qualify under this rule).
Appellant Sonja Pua Bates appeals her conviction for Burglary. Appellant argues that the trial court erred in excluding the exculpatory hearsay statements of her co-defendant Robert Williamson. ... We affirm.
I.
the police responded to a call regarding a possible burglary in progress of a food concession stand at Ala Moana Park, heard a male voice say, "Here Sonja, take this." He then heard Appellant say under her breath, "The cops, the cops." ….
While Williamson was lying handcuffed on the floor of the concession stand, he said, "Okay, I'm busted, I'm busted. I just came in with the other guy." Later that morning, at the police station, Williamson confessed. When asked about the female who was arrested along with him and Perry, Williamson stated he did not know who she was, and that she was not with them and had nothing to do with the burglary. [JB: this is the exculpatory statement that the defendant wanted admitted as a declaration against (Williamson’s) interest.]
* * *
Also prior to trial, Appellant moved in limine to admit the statements of co-defendant Williamson made at the time of his arrest and during his interrogation. Williamson was currently incarcerated in Georgia and was therefore unavailable to testify at trial. The court denied the motion, ruling that the statements were against penal interest but were inadmissible under Hawaii Rules of Evidence (HRE) Rule 804(b)(3) because of a lack of corroborating circumstances of trustworthiness.
* * *
...The court rejected Appellant's argument that Williamson's statement made at the time of his arrest was an excited utterance. Rather, the court ruled that the statement was one against penal interest pursuant to HRE Rule 804(b)(3)...
The trial court made a preliminary finding that Robert Williamson was unavailable within the meaning of Rule 804 since he was then incarcerated in the state of Georgia.
We cannot say that the trial court erred in characterizing Williamson's statement, "I'm busted, I'm busted. I just came with the other guy" as a "statement against interest" under Rule 804(b)(3). We have recognized that an out-of-court declaration may be admitted as a statement against interest "if the 'fact [asserted is] so palpably against the declarant's interest that he must have realized it to be so when he made the statement.' "The statement in question was contrary to the declarant's penal interest in tending to subject Williamson to criminal liability for the burglary and "a reasonable man in his position would not have made the statement unless he believed it to be true."
Nor do we find error in the court's determination that both this statement and Williamson's later statement to the police that he did not know the Appellant and she was not involved in the burglary were inadmissible because of a lack of "corroborating circumstances clearly indicating the trustworthiness of the statements" as required by Rule 804(b)(3).
In this case, the circumstances did not clearly corroborate either Williamson's trustworthiness or the truth of his statements. Williamson was not clearly trustworthy since the record indicates he may have known the Appellant and therefore had a motive to lie for her. As to the truth of Williamson's statements, the trial judge noted that the statements were in direct opposition to other evidence in the record, tending to show that Appellant participated in the burglary as an accomplice by serving as a lookout and receiving the stolen goods as they were passed through the window of the concession stand. The record reveals no independent evidence to corroborate Williamson's claim that Appellant did not participate in the robbery.
… conviction is affirmed.
WILLIAMSON v. U.S., 512 U.S. 594 (1994)
Justice O'CONNOR delivered the opinion of the Court, except as to Part II-C.
In this case we clarify the scope of the hearsay exception for statements against penal interest. Fed. Rule Evid. 804(b)(3).
I
A deputy sheriff stopped the rental car driven by Reginald Harris for weaving on the highway. Harris consented to a search of the car, which revealed 19 kilograms of cocaine in two suitcases in the trunk. Harris was promptly arrested.
Shortly after Harris' arrest, Special Agent Donald Walton of the Drug Enforcement Administration (DEA) interviewed him by telephone. During that conversation, Harris said that he got the cocaine from an unidentified Cuban in Fort Lauderdale; that the cocaine belonged to petitioner Williamson; and that it was to be delivered that night to a particular dumpster. Williamson was also connected to Harris by physical evidence: The luggage bore the initials of Williamson's sister, Williamson was listed as an additional driver on the car rental agreement, and an envelope addressed to Williamson and a receipt with Williamson's girlfriend's address were found in the glove compartment.
Several hours later, Agent Walton spoke to Harris in person. During that interview, Harris said he had rented the car a few days earlier and had driven it to Fort Lauderdale to meet Williamson. According to Harris, he had gotten the cocaine from a Cuban who was Williamson's acquaintance, and the Cuban had put the cocaine in the car with a note telling Harris how to deliver the drugs. Harris repeated that he had been instructed to leave the drugs in a certain dumpster, to return to his car, and to leave without waiting for anyone to pick up the drugs.
Agent Walton then took steps to arrange a controlled delivery of the cocaine. But as Walton was preparing to leave the interview room, Harris "got out of [his] chair ... and ... took a half step toward [Walton] ... and ... said, ... 'I can't let you do that,' threw his hands up and said 'that's not true, I can't let you go up there for no reason.' " Harris told Walton he had lied about the Cuban, the note, and the dumpster. The real story, Harris said, was that he was transporting the cocaine to Atlanta for Williamson, and that Williamson was traveling in front of him in another rental car. Harris added that after his car was stopped, Williamson turned around and drove past the location of the stop, where he could see Harris' car with its trunk open. Because Williamson had apparently seen the police searching the car, Harris explained that it would be impossible to make a controlled delivery.
Harris told Walton that he had lied about the source of the drugs because he was afraid of Williamson. 68; see also id., at 30-31. Though Harris freely implicated himself, he did not want his story to be recorded, and he refused to sign a written version of the statement. Walton testified that he had promised to report any cooperation by Harris to the Assistant United States Attorney. Walton said Harris was not promised any reward or other benefit for cooperating.
Williamson was eventually convicted of possessing cocaine with intent to distribute, conspiring to possess cocaine with intent to distribute, and traveling interstate to promote the distribution of cocaine,. When called to testify at Williamson's trial, Harris refused, even though the prosecution gave him use immunity and the court ordered him to testify and eventually held him in contempt. The District Court then ruled that, under Rule 804(b)(3), Agent Walton could relate what Harris had said to him: "The ruling of the Court is that the statements ... are admissible under [Rule 804(b)(3) ], which deals with statements against interest. "First, defendant Harris' statements clearly implicated himself, and therefore, are against his penal interest. "Second, defendant Harris, the declarant, is unavailable. "And third, as I found yesterday, there are sufficient corroborating circumstances in this case to ensure the trustworthiness of his testimony. Therefore, under [United States v. Harrell, 788 F.2d 1524 (CA11 1986) ], these statements by defendant Harris implicating [Williamson] are admissible."
Williamson appealed his conviction, claiming that the admission of Harris' statements violated Rule 804(b)(3) and the Confrontation Clause of the Sixth Amendment.
***
In our view, the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The district court may not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else. "[T]he arrest statements of a codefendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence." Lee v. Illinois, 476 U.S. 530, 541 (1986). ***
We also do not share Justice KENNEDY's fears that our reading of the Rule "eviscerate[s] the against penal interest exception," post, at 2443 (internal quotation marks omitted), or makes it lack "meaningful effect," post, at 2443. There are many circumstances in which Rule 804(b)(3) does allow the admission of statements that inculpate a criminal defendant. Even the confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry favor.
For instance, a declarant's squarely self-inculpatory confession--"yes, I killed X"--will likely be admissible under Rule 804(b)(3) against accomplices of his who are being tried under a co-conspirator liability theory. See Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946). Likewise, by showing that the declarant knew something, a self- inculpatory statement can in some situations help the jury infer that his confederates knew it as well. And when seen with other evidence, an accomplice's self-inculpatory statement can inculpate the defendant directly: "I was robbing the bank on Friday morning," coupled with someone's testimony that the declarant and the defendant drove off together Friday morning, is evidence that the defendant also participated in the robbery.
Moreover, whether a statement is self-inculpatory or not can only be determined by viewing it in context. Even statements that are on their face neutral may actually be against the declarant's interest. "I hid the gun in Joe's apartment" may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is certainly self- inculpatory. "Sam and I went to Joe's house" might be against the declarant's interest if a reasonable person in the declarant's shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam's conspiracy. And other statements that give the police significant details about the crime may also, depending on the situation, be against the declarant's interest. The question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant's penal interest "that a reasonable person in the declarant's position would not have made the statement unless believing it to be true," and this question can only be answered in light of all the surrounding circumstances.
Justice KENNEDY, with whom THE CHIEF JUSTICE and Justice THOMAS join, concurring in the judgment.
***
In sum, I would adhere to the following approach with respect to statements against penal interest that inculpate the accused. A court first should determine whether the declarant made a statement that contained a fact against penal interest. See ante, at 2437 (opinion of O'CONNOR, J.) ("Some of Harris' confession would clearly have been admissible under Rule 804(b)(3)"). If so, the court should admit all statements related to the precise statement against penal interest, subject to two limits. Consistent with the Advisory Committee Note, the court should exclude a collateral statement that is so self-serving as to render it unreliable (if, for example, it shifts blame to someone else for a crime the defendant could have committed). In addition, in cases where the statement was made under circumstances where it is likely that the declarant had a significant motivation to obtain favorable treatment, as when the government made an explicit offer of leniency in exchange for the declarant's admission of guilt, the entire statement should be inadmissible.
DECLARATION AGAINST INTEREST (DAI) - MATCHING QUESTIONS
Match the Numbered Questions with the Alpha Answers on the next page
1 What's the rationale for SAI?
2 How does SAI differ from the admissions exception? Who makes the statement? Who can introduce it? What is the availability requirement? Does it have to be against interest?
3 Are the following statements, made by unavailable declarants, admissible?
I owe John $1,000
4 John owes me $1,000
5 John has paid me $1,000
6 I owe John $1,000. [said during a dispute over whether the debt is $2,000.]
7 A: I don't have clear title to my house. B: I don't own this car; I borrowed it from a friend. C: I'm just renting, I don't own this house.
8 Day 1, P brings car to a service station and a mechanic works on the brakes. Day 2, mechanic quits. Day 3, P has a auto accident. Day 4, mechanic learns of the accident and tells a friend, "I forgot to finish the brake job on Day 2."
D is charged with the murder of V. D wants to offer at trial the following statements of Joe, who is dead. Assume Joe is a friend. Are the statements admissible?
9 An oral statement to W by Joe: "I killed V."
10 A note, signed by Joe, saying, "I killed V," written just before Joe committed suicide.
11 A statement to W by Joe: "D is not guilty of killing V."
12 A statement to W by Joe: "Frank and I killed V. D had nothing to do with it."
13 Suppose the prosecutor offers, through W, Joe's statement, "D and I killed V."
14 How would you answer the previous question if Joe's statement was made to the police after Joe was arrested for the murder and made the statement while negotiating a plea bargain?
A This statement has exculpatory and inculpatory parts. It is being offered to inculpate the defendant. The FRE now requires the prosecutor (and the Def) to provide corroborating circumstances. A potential Ortiz problem (confrontation) in Hawaii. A big Crawford issue.
B A self-serving statement that is not a SAI, hence not admissible.
C ANY person. Offered by ANY party. Unavailable. Against interest when made.
D Admissibility is questionable. While this appears to be a against penal interest, there is an argument to be made that it is not against interest. Could Joe be prosecuted?
E Admissible. A SAI against pecuniary interest acknowledging payment.
F Many courts would exclude such statements. Great weight would be given to the fact that it might not be against interest, in fact motivation for the statement might be to "curry favor" with the authorities.
G A self-serving statement that is not a SAI, hence not admissible. Must look at the full context.
H Not admissible. It is not against Joe's interest; it does not imply Joe's guilt. It is an opinion.
I Admissible. A classic SAI - against the declarant's pecuniary (financial) interest.
J Admissible. A classic exculpatory statement, clearly against the declarant's penal interest. Needs corroboration.
K Admissible SAI. Tends to expose declarant to civil liability. This not an admission! Why not?
L Admissible. Non-ownership of real or personal property could be contrary to proprietary interest.
M People don't make statements damaging to themselves unless they are satisfied that the statements are true.
N This is a "we" statement which has both exculpatory and inculpatory parts. Under Willaimson, the part of the statement that does not inculpate the declarant would probably not be admissible. Previously, courts either admitted it all, excluded it all, or only admitted the part clearly against the declarant's interest.
Statement of Recent Perception HRE 804(b)(5)
HEW v. ARUDA, 51 Haw. 451, 462 P.2d 476
Joseph Hew ... [t]he plaintiff was the bookkeeper for the Aruda Brothers Ranch from 1957 to 1965. ... the plaintiff claimed that the [Aruda brothers] orally agreed to rent his ... interest in ... land.... This suit was brought over nine years later.
* * *
As part of his theory that no agreement to pay rent existed, the defendant attempted to introduce an oral statement of the deceased managing partner, Enos Aruda, to Judge Wendell Crockett, his attorney at that time. The oral statement was to the effect that there were no outstanding bills against the partnership other than some miscellaneous bills then owing which were irrelevant to the present suit. The testimony of Judge Crockett was stricken as hearsay upon timely motion by the plaintiff. The defendant argued that the hearsay statement was admissible as rebuttal because the declarant had since died, making the statement a necessary, if not crucial, part of the defendant's case.
The trial court found for the plaintiff...
The defendant appeals from the judgment contending (1) that the testimony of Judge Crockett is admissible to show the non-existence of the rental agreement or the lack of assent to the account rendered...
We reverse and remand for a new trial.
A threshold question raised at trial was whether the alleged rental agreement existed or was a fabrication of the plaintiff, who was the bookkeeper for the partnership. …. There was no way of proving the matter except by hearsay testimony since the original declarant was forever unavailable because of his death.
Although not adopted in Hawaii, the so called 'dead man's statute'
Since the decedent is obviously unavailable, there is great need for this particular testimony to be introduced into evidence. No alternative means of introducing the evidence exists. While the great vice of hearsay statements is the potential lack of trustworthiness, this single liability is not enough to justify the exclusion of a decedent's statement when accuracy can be shown in other ways. By focusing the inquiry on the circumstances surrounding the declarant's position when he made the statement, a determination of trustworthiness can be made by the trial judge. … We hold that a statement is not excluded by the hearsay rule if the declarant is unavailable as a witness and the court finds that the statement was made in good faith, upon the personal knowledge of the declarant, and while his recollection was clear, unless other circumstances were present indicating a clear lack of trustworthiness.
In the present case Enos Aruda's statement to his attorney was an attempt to explain the state of the partnership's current financial affairs. There is no evidence that his recollection was other than clear or that the statement was not made in good faith. The defendant should at least be given the chance to prove on retrial that the statement was made under circumstances which offer the necessary assurances of accuracy consistent with the guidelines set down in this opinion.
* * *
Reversed and remanded
[JB: don’t expect to use this exception very often.]
HEARSAY "RESIDUAL" or CATCH-ALL EXCEPTIONS
STATE v. DURRY, 4 Haw.App. 222, 665 P.2d 165 (1983)
803(b)(24)
Defendant Maria Durry (Durry) appeals her conviction of the offenses of manslaughter... and robbery...
Durry contends ... that the court erred in admitting hearsay testimony against her. We find no error and affirm.
Durry argues that the court erred in allowing her twelve-year-old son to testify as to what Faamatau told him on the evening of the murder, contending that the testimony was inadmissible hearsay....
The testimony of Durry's son recounts a hearsay statement made by co-defendant Faamatau. It is clearly inadmissible unless it qualifies as an exception under Rule 803(b), Hawaii Rules of Evidence (HRE), chapter 626, Hawaii Revised Statutes (effective January 1, 1981), and we hold that the only exception that could cover the statement is 803(b)(24) [FN8] which states:
FN8. Durry argues that admissibility is covered by Rule 803(a)(2)C (statement of co-conspirator) and because it is inadmissible under Rule 803(a)(2)C, it cannot be made admissible under Rule 803(b)(24). We agree that the statement is inadmissible under 803(a)(2)C; however, we do not agree that the exceptions are mutually exclusive.
The State argues that the testimony of Durry's son is trustworthy for a number of reasons. The argument is completely erroneous. The trustworthiness requirement of the rule relates to the hearsay statement that is being testified to, not the witness' testimony. Nonetheless, we find the statement was trustworthy, probative and admissible.
However, we are concerned by the fact that the record does not indicate that the trial court in fact made a determination that the evidence was more probative than other evidence which the State could procure through reasonable efforts, and that admission of the statement would best serve the purposes of the HRE and the interests of justice.
The commentary to Rule 803(b)(24) indicates that it is a residual exception designed to allow flexibility to the courts in the admission of hearsay evidence. However, "the exception is not designed to open the door widely for otherwise inadmissible evidence; and to safeguard against abuse the requirements of trustworthiness and a high degree of relevance circumscribe the exercise of judicial discretion."...
… Moore's Federal Practice s 803(24)[7] (2d ed. 1982)…indicates that Rule 803(24) was intended to be used rarely and in exceptional circumstances. … U.S. Senate Committee on the Judiciary said that "[t]he committee does not intend to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions[.]"
Professor Moore also points out that although the rule contains no specific requirement that the court make any finding of the facts and circumstances indicating trustworthiness and necessity so as to justify admission, the committee report clearly indicates that Congress intended for such matters to be stated in the record.
Our research reveals two federal appellate cases dealing specifically with Rule 803(24), Federal Rules of Evidence. In United States v. Guevara, 598 F.2d 1094 (7th Cir.1978), the court held that Rule 803(24) requires that the district court make findings with respect to the evidence sought to be admitted. In Huff v. White Motor Corp., 609 F.2d 286 (7th Cir.1979), the court did not so hold, but indicated that such a record would greatly aid the appellate court in reviewing a ruling made in the exercise of the court's discretion. The appellate court then examined the evidence and found that the court should have admitted the evidence. We agree that the trial court should make its determinations a part of the record, so as to comport with the intent of the rule and provide a record for appellate review.
In the light of the foregoing considerations and the principles set forth in Rule 102, HRE, we hold that when a court relies on Rule 803(b)(24), sua sponte or at the urging of counsel, for admission of hearsay evidence not coming within the other exceptions of Rule 803(b), the court should state on the record the basis for its determination of trustworthiness, probative value, and necessity. Upon doing so, it is not necessary to make an affirmative finding that the general purposes of the rules and the interests of justice will be served by admission of the evidence.
Notwithstanding the court's failure to place its finding on the record in this case, we think the evidence was properly admitted and no reversible error was committed. The requirement of trustworthiness was met, since the statement was by Faamatau and concerned his involvement in the offense. We think the statement was more probative than other evidence available and the purpose of the rules of evidence to ascertain the truth was served by its admission.
We also find that defendant was not prejudiced by the evidence. Faamatau's statement in fact did not directly implicate Durry. Moreover, as we stated earlier, Durry admitted her presence during the offense and the witness Leai Sinai Eli and co-defendant Fereti testified to her complicity. The evidence was harmless beyond a reasonable doubt. Affirmed.
CONFRONTATION
& HEARSAY
CONFRONTATION CASES SUMMARIZED
CRAWFORD v. WASHINGTON, 541 U.S. 36 (2004)(7-2)
Holding that "testimonial" statements of an unavailable witness violated the Confrontation Clause unless there was a prior opportunity for cross-examination
Wife’s statement implicating Def was a Declaration Against Interest. Wife did not testify at trial bex of marital privilege.
•Leaving open the definition of "testimonial" evidence but noting "testimonial" statements at minimum includes statements made to law enforcement officials engaged "in the production of testimony with an eye toward trial" such as "affidavits, custodial examinations, . . . affidavits, depositions, prior testimony, or confessions."
•Supreme Court overturned precedent that had been applied for nearly a quarter of a century, including Ohio v. Roberts, 448 U.S. 56 (1980) (applying "particularized guarantees of trustworthiness" standard to admit statements of an unavailable witness)
DAVIS & HAMMON 547 U.S. 813 (2006) (8-1)
•Victim's response to 911 operator's interrogation was not "testimonial" and not subject to Confrontation Clause because the statement was made under circumstances that objectively indicated an ongoing emergency and the primary purpose of the interrogation was to enable police to assist in meeting that emergency.
•Victim's written statements in affidavit given to police officer were testimonial and excludable under the Confrontation Clause because no emergency existed at the time of the statement and the primary purpose of the interrogation was to investigate a past crime.
GILES v. CALIFORNIA, 554 U.S. 333 (2008) (6-3)
The forfeiture by wrongdoing exception to the Confrontation Clause requires the government to show that "the defendant intended to prevent a witness from testifying"
MELENDEZ-DIAZ v. MASS. 129 S.Ct. 2527 (2009) (5-4)
Certificates of forensic analysis are "testimonial" and "the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.“
BRISCOE v. VIRGINIA, 130 S.Ct. 1316 (2010)
The Supreme Court vacated and remanded the case “for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts
MICHIGAN v. BRYANT 131 S. Ct. 1143 (2011) (6-2, with Kagan recused)
•"Holding that the circumstances of the interaction between [the victim] ... and the police objectively indicate that the 'primary purpose of the interrogation' was 'to enable police assistance to meet an ongoing emergency.' Therefore, [the victim's] ... identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant’s trial did not violate the Confrontation Clause."
BULLCOMING V. NEW MEXICO 131 S. Ct. 2705 (2011) (5-4)
The surrogate testimony of a second forensic analyst, who did not observe or review the original blood alcohol content results, was inadmissible; specifically, the defendant has the right "to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist."
WILLIAMS v. ILLINOIS 132 S.Ct. 2221 (2012) (5-4)
In a plurality holding, the Supreme Court held that the expert testimony did not violate the Confrontation Clause.
First, "When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Applying this rule to the present case, we conclude that the expert’s testimony did not violate the Sixth Amendment." Second, the expert testimony was not "testimonial" under the Sixth Amendment.
No Majority Rationale in Crime Lab Testimony Ruling
New York Times
In a badly fractured 5-to-4 decision in which no rationale commanded a majority, the Supreme Court seemed to retreat from a groundbreaking decision in 2009 that said crime lab reports may not be used in criminal trials unless the analysts responsible for creating them provide live testimony.
That decision, Melendez-Diaz v. Massachusetts, was reaffirmed last year in a second decision, Bullcoming v. New Mexico, which ruled that only the analyst who did the work, rather than a colleague or supervisor, would do.
Those decisions, both decided by 5-to-4 votes, were based on the Sixth Amendment’s confrontation clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.” In a series of decisions starting with Crawford v. Washington in 2004, an odd-bedfellows coalition of justices from the court’s conservative and liberal wings have breathed new but fragile and halting life into the clause. …
Justice Kagan began her dissent with a description of another case, one in which a Cellmark analyst took the stand, only to realize after cross-examination that she had made a “mortifying error” in wrongly concluding that DNA from a bloody sweatshirt matched that of the defendant.
The confrontation clause, Justice Kagan wrote, is “a mechanism for catching such errors,” demonstrating “the genius of an 18th-century device as applied to 21st-century evidence.” Justices Scalia, Ruth Bader Ginsburg and Sonia Sotomayor joined the dissent.
“Under our confrontation clause precedents,” Justice Kagan added, “this is an open-and-shut case.” But the decision, she said, had turned a clear rule into a murky one. She urged lower courts to continue to follow the recent rulings on crime lab evidence “until a majority of this court reverses or confines those decisions.”
Summary of the Sixth Amendment and Lab Tests
Professors Merritt & Simmons
Laboratory Reports. The Supreme Court Justices have divided sharply over the testimonial character of laboratory reports prepared as part of a criminal investigation. Lab reports play a pivotal role in many prosecutions. In drug cases, for example, they often establish both the presence of an illegal drug and the quantity seized from the defendant. For other crimes, lab reports may document facts like blood alcohol content or cause of death.
Example: The state charged Luis Melendez-Diaz with cocaine trafficking. At trial, the prosecutor introduced several bags of white powder seized from Melendez-Diaz. The state also presented three certificates from a state laboratory; each of these certificates declared that the white powder was cocaine and noted the weight of that cocaine. The technicians who tested the samples swore to the truth of these certificates before a notary, but they did not appear at trial. Melendez-Diaz complained that this absence violated his Sixth Amendment right to confrontation.
Analysis: In a 5–4 opinion, the Supreme Court agreed that the laboratory certificates were testimonial statements requiring cross-examination. The majority noted that the certificates were “quite plainly affidavits,” which fell within the “core class of testimonial statements” identified by Crawford. Each affidavit, furthermore, was a “solemn declaration or affirmation made for the purpose of establishing or proving some fact” relevant to the defendant’s crime. The affidavits, finally, were “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Indeed, that was the state laboratory’s only purpose in preparing the affidavits disputed by Melendez-Diaz. The lab reports thus matched the criteria marking testimonial statements.
The Court confirmed this result two years later in Bullcoming v. New Mexico. The report in that case documented the defendant’s high blood alcohol content, supporting his conviction for aggravated driving while intoxicated. This report was not notarized, but the analyst had signed a “Certificate of Analyst” affirming (1) that the blood sample was properly sealed when he received it, (2) that he followed the procedures outlined in the report, and (3) that the reported results were correct.
In another 5–4 decision, the Bullcoming Court ruled that the blood alcohol report was testimonial. Although the certificate was not notarized, the majority concluded that it resembled the Melendez-Diaz reports in “all material respects.” The majority also rebuffed the state’s attempt to send a surrogate technician—someone with no connection to the original analysis—to testify in court. The Supreme Court held that testimony from “an analyst who did not sign the certification or personally perform or observe the performance of the [reported] test” could not satisfy the defendant’s confrontation rights.
Despite the sharp divisions in these two cases, Melendez-Diaz and Bullcoming offered some guidelines to police, prosecutors, defense attorneys, and lower court judges. A majority of the Supreme Court agreed in both cases that laboratory reports are testimonial if “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Unfortunately, Williams v. Illinois disrupts that guidance:
Example: L.J. was raped and robbed. Hospital attendants examined her, took a vaginal swab, and sent the swab to the Illinois State Police. After finding semen in the swab, the police sent the sample to a laboratory for DNA analysis. At that time, the police had no suspect for the rape. Once the lab’s DNA report was in hand, however, a forensic specialist searched the state’s DNA database for a matching profile. The search yielded a match with Sandy Williams, whose blood had been profiled in connection with an unrelated arrest.
The state then charged Williams with the crimes against L.J. Karen Abbinanti, the analyst who created the DNA profile from Williams’s blood, testified live about how she generated that profile. But the state did not call any of the analysts who produced the DNA profile from the rape swab; those analysts worked in a different state. The defendant challenged the introduction of the swab profile under the Sixth Amendment, noting that he had no opportunity to cross-examine the analysts who generated that report.
Analysis: Five Justices concluded that the swab DNA report was not testimonial, but they rested their decision on two different grounds. A plurality of four Justices offered a new definition of testimonial. These Justices declared that evidence is testimonial only when it has “the primary purpose of accusing a targeted individual of engaging in criminal conduct.” The plurality narrowed the Crawford language, in other words, to include the concept of “accusing a targeted individual.” Using this definition, the plurality concluded that the DNA profile generated from the rape swab was not testimonial: Analysts created that profile when no “targeted individual” was accused. Indeed, for all the analysts knew, the profile might have been used to exclude a suspect from further investigation. In Melendez-Diaz and Bullcoming, on the other hand, analysts tested specimens obtained from particular suspects. The resulting reports, under the plurality’s test, qualified as testimonial.
Justice Thomas concurred in the judgment, but emphatically rejected the plurality’s standard. Instead, Thomas decided that the DNA report was non-testimonial because it was not “formalized.” The laboratory reports in Melendez-Diaz and Bullcoming were testimonial, Thomas explained, because of their formality: The first was a notarized affidavit, while the second included a “Certificate of Analyst” attesting that the contents were true. The Williams report, in contrast, was a bare report that “certifie[d] nothing.” Using this route, Justice Thomas joined the four members of the plurality to rule the DNA report non-testimonial.
The four dissenting Justices roundly rejected both the plurality’s test and the line drawn by Justice Thomas. The dissenters adhered to the now-familiar language from Crawford, Melendez-Diaz, and Bullcoming, which defines testimonial evidence as a statement created “to establish ‘some fact’ in a criminal proceeding” and “under circumstances which would lead an objective witness reasonably to believe that [it] would be available for use at a later trial.” Using this standard, the four dissenters concluded that the DNA report in Williams was testimonial, just like the laboratory reports in Melendez-Diaz and Bullcoming.
The fractured Williams decision has been widely criticized by academics, and it is certain to frustrate prosecutors, defense attorneys, and judges. Five Justices rejected the plurality’s standard, and five rejected the dissent’s position. Justice Thomas held the deciding vote, but no Justice supported his reasoning—and no Justice had ever joined his earlier opinions proposing a similar standard. The divisions on the Court, meanwhile, suggest that the Court may revisit the Sixth Amendment status of laboratory reports. How should lower-court judges and advocates proceed under these circumstances?
Although Williams offers a confusing set of opinions, the Supreme Court’s jurisprudence continues to set some boundaries. A laboratory report is not testimonial if it fails both the Williams plurality’s “targeted individual” standard and Justice Thomas’s formality line. Those were the circumstances in Williams itself. Conversely, if a report satisfies both the plurality standard and the Thomas line, it is testimonial. Those were the circumstances in both Melendez-Diaz and Bullcoming.
What if a laboratory report is highly formalized but does not accuse a targeted individual? Suppose, for example, that the DNA swab report in Williams had been notarized: Would the report then have counted as testimonial? The Court’s opinions, stretching from Crawford to Bullcoming, hold that it would. The Williams plurality, which represented only four Justices, could not overrule those precedents—and Thomas supported them. A highly formalized report prepared “under circumstances which would lead an objective witness reasonably to believe that [it] would be available for use at a later trial” is testimonial, even if it does not accuse a targeted individual.
What, finally, about a laboratory report that accuses a targeted individual but fails Thomas’s formality test? Suppose, for example, that Massachusetts amended the laboratory report on page 715 by changing the opening phrase “I hereby certify” to “I hereby report,” and eliminating all of the material below the analysts’ signatures. Is an unsworn “report” about a substance seized from a targeted individual testimonial?
Once again, the Court’s confrontation opinions place this type of report on the testimonial side of Crawford’s line. Even without a sworn statement, any laboratory report prepared as part of a criminal investigation probably meets Crawford’s standard: These reports are “solemn” and prepared “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” The Court’s majority opinions repeatedly endorse these definitions; neither the Williams plurality nor Justice Thomas’s concurrence had the power to overrule precedents joined by five members of the Court.
Ohio v. Clark 576 U.S. ___ (2015)
Holding: The introduction at trial of statements made by a three-year-old boy to his teachers identifying his mother’s boyfriend as the source of his injuries did not violate the Confrontation Clause, when the child did not testify at trial, because the statements were not made with the primary purpose of creating evidence for prosecution. Writing for six members of the Court, Justice Alito reasoned that “neither the child nor his teachers had the primary purpose of assisting in Clark’s prosecution.” That was true despite the teachers’ obligation under Ohio’s mandatory-reporting law to report suspected abuse to government authorities.
Judgment: Reversed and remanded, Alito opinion, 9-0. Scalia, Ginsburg, & Thomas concurring
Comments from Stanford Law Prof George Fisher
Justice Alito presented the outcome in this case as a simple application of the familiar primary-purpose test announced in Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006), and Michigan v. Bryant, 562 U.S. 344 (2011). Rehearsing what has become familiar doctrine, Justice Alito wrote that “a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial.” And in light of “all the relevant circumstances here, [the child’s] statements clearly were not made with the primary purpose of creating evidence for Clark’s prosecution.” Instead, the Court held, the child spoke “in the context of an ongoing emergency involving suspected child abuse.” His preschool teachers rightly wondered if it was safe to send the child home with his mother’s boyfriend and therefore needed to know the cause of the child’s injuries. “[T]heir questions and [the child’s] answers were primarily aimed at identifying and ending the threat,” not at “gather[ing] evidence for Clark’s prosecution.” Their conversation was moreover “informal and spontaneous,” factors the Court in Bryant and elsewhere has identified as indicating that out-of-court statements are nontestimonial. That the teachers were mandatory reporters under Ohio law was irrelevant because “[l]ike all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse.”
Justice Alito dropped some unfamiliar and noteworthy lines. It is familiar doctrine, he said, that the Confrontation Clause extends no protection against admission of nontestimonial statements. “But that does not mean that the Confrontation Clause bars every statement that satisfies the ‘primary purpose’ test.” Here Justice Alito referred to the forfeiture doctrine elaborated by Giles v. California, 554 U.S. 353 (2008), and to dying declarations, reserved in Crawford v. Washington, 541 U.S. 36, 56 n.6 (2004), for future decisionmaking. But his next sentence seemed to open a far wider gap in Confrontation Clause protection than these narrow exceptions to the Crawford framework might suggest: “Thus, the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause.” Justice Alito explained that Clark presents the Court with a “question we have repeatedly reserved: whether statements to persons other than law enforcement officers are subject to the Confrontation Clause.” To this question the Court today “decline[d] to adopt a categorical rule,” but advised that “such statements are much less likely to be testimonial than statements to law enforcement officers. “ What is more, Justice Alito wrote, “Statements by very young children will rarely, if ever, implicate the Confrontation Clause,” for “it is extremely unlikely that a 3-year-old child . . . would intend his statements to be a substitute for trial testimony.”
With this last line the Court seemed to declare that it is the declarant’s purpose that matters when assessing under the primary-purpose test whether an out-of-court statement was made with testimonial intent. Although the Court fell short of stating this conclusion outright, it did reject Clark’s attempt to focus the primary-purpose test on “whether a jury would view the statement as the equivalent of in-court testimony. The logic of this argument,” Justice Alito reasoned, “would lead to the conclusion that virtually all out-of-court statements offered by the prosecution are testimonial” because the prosecution would not offer statements that did not aid its case in the jury’s eyes. (Emphasis added.)
Joined by Justice Ginsburg, Justice Scalia concurred only in the Court’s judgment. There is no need to ask whether the teachers’ reporting obligation rendered them the effective equivalents of investigating officers, Justice Scalia reasoned, because the child’s statements would have been nontestimonial even if made to police officers. The child’s “primary purpose here was certainly not to invoke the coercive machinery of the State against Clark. His age refutes the notion that he is capable of forming such a purpose.” Having reached this simple conclusion, Justice Scalia took pains to reject Justice Alito’s suggestion that the primary-purpose test is not always a sufficient condition for the exclusion of out-of-court statements under the Confrontation Clause: “[T]he primary-purpose test sorts out, among the many people who interact with the police informally, who is acting as a witness and who is not. Those who fall into the former category bear testimony, and are therefore acting as ‘witnesses,’ subject to the right of confrontation. There are no other mysterious requirements that the Court declines to name.”
Also concurring only in the judgment, Justice Thomas hewed to his own longstanding understanding of the highly formalized nature of testimonial statements and noted that the child’s statements in this case “were neither contained in formalized testimonial materials nor obtained as the result of a formalized dialogue initiated by police.”
Hawaii Confrontation Cases
STATE v. MARSHALL, 114 Haw. 396, 163 P.3d 199 (ICA)(2007)
Statements of intoxilyzer supervisor that the machine had been properly calibrated. Sup’s statements were not specific to the defendant and were not testimonial.
STATE v. MARSHALL, 117 Haw. 234, 177 P.3d 1278 (2007)
Acoba dissent of rejection of writ of cert.
Didn’t show unavailability
STATE V. DELOS SANTOS, 124 Haw. 130, 238 P. 3d 162, (2010)
Admission of hearsay statement did not violate confrontation clause since declarant appeared for cross-x at trial
STATE v. BROOKS, 125 Haw.462, 264 P.3d 40 (2011) ICA
Rule of completeness case. Def can’t introduce part of now deceased, accomplice’s statement to show the accomplice “did it” and at the same time use Crawford to exclude that part of the accomplice’s state that implicates the def.
State v. Souleng, 134 Haw. 465, 349 P.3d 327 (2015) ICA
Headnote: Letter signed by supervising driver license clerk as custodian of records, which certified that defendant lacked a valid driver’s license on the date of defendant’s accident, was testimonial, and thus its admission at trial without clerk’s testimony violated defendant’s constitutional right to confront witnesses; letter was prepared for use at trial and was based on clerk’s inability to find record of a driver’s license for defendant despite searching for one, and because clerk did not testify at trial, defendant had no opportunity to cross-examine her.
(driver license clerk’s letter certifying that on date of violation accused did not have a valid Hawaii driver license was testimonial hearsay)
State v. Cruz, 135 Hawai’i 294, 349 P.3d 401 (2015) ICA
The ICA held that declaration used to authenticate cell phone records as business records was non-testimonial and, thus, was admissible without requiring live testimony or cross-examination of declarant.
State v. Nofoa, 135 Hawai’i 220, 349 P.3d 327 (2015)
Headnote: Introduction of victim's preliminary hearing testimony violated defendant's Confrontation Clause rights in prosecution for kidnapping and terroristic threatening, although motive of defendant at preliminary hearing was sufficiently similar to motive and purpose that defendant would have had to cross-examine victim at trial, i.e. to discredit the State's case and victim's testimony, and defendant's cross-examination of victim was not restricted, where defendant was denied opportunity for meaningful cross-examination because he did not have access to relevant discovery materials that would have assisted in the cross-examination of victim, and access to or knowledge of 911 call, all of which would have enabled him to pose questions relevant to victim's credibility
Bowman’s text: State v. Nofoa, 135 Hawaii 220, 349 P.3d 327 (2015) (cross-examination of complainant at preliminary hearing was not meaningful, and thus violative of the confrontation guarantee, because witness statements, which contained “significant inconsistencies,” were not made available at that time).
STATE V. DELOS SANTOS, 124 Haw. 130, 238 P. 3d 162, (2010)
Charge: abuse of family or household members; ICA reversed. HI Sup Ct. vacated and remanded.
The Supreme Court held that:
(1) detailed statement of alleged victim was not admissible as excited utterance;
(2) alleged victim's statement, defendant “beat me up,” was admissible as excited utterance; and
(3) admission of detailed statement did not violate defendant's rights under Confrontation Clause of State constitution.
[W]e hold that the ICA gravely erred by determining that the complainant's statement that “my boyfriend beat me up” was not admissible as an excited utterance.
C. The Admission Of the Complainant's Statements Did Not Violate the Confrontation Clause Of the Hawai‘i Constitution.
The ICA did not reach Delos Santos' argument that the admission of Officer Kubo's testimony violated his right to confront the Complainant.. Because we conclude that the Complainant's first statement was admissible as an excited utterance, we address this argument.
Delos Santos asserts that admission of the statement violated his right to confrontation
we hold that the admission of the Complainant's hearsay statements did not violate the confrontation clause because the Complainant appeared for cross-examination at trial..
Relying on numerous cases from other jurisdictions, this court held that “Crawford does not preclude the admission of a prior out-of-court statement where the hearsay declarant is cross-examined at trial about the out-of-court statement.” Under Fields, the relevant inquiry is whether the Complainant “appear[ed] at trial and [was] cross-examined about [her] statement.”
Neither this court nor the United States Supreme Court has specifically determined whether a witness who is cross-examined by the defendant but testifies that she cannot remember the subject matter of her out-of-court statements or making her prior statements “appears for cross-examination at trial” under Crawford and Fields.
Although Fields is ambiguous regarding whether a witness must recall the subject matter of her statements, our adoption of Crawford as the test for whether a witness “appears at trial for cross-examination” resolves this ambiguity. ..., we ... hold that, under Crawford, a witness who appears at trial and testifies satisfies the confrontation clause, even though the witness claims a lack of memory that precludes them from testifying about the subject matter of their out-of-court statement. …
The Supreme Court's construction of the federal confrontation clause indicates that a witness who forgets both the underlying events and her prior statements nonetheless appears for cross-examination at trial…
In Owens, [United States v. Owens, 484 U.S. 554 (1988)…the Supreme Court held that the “Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ The Court also held that it “is sufficient that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination,) the very fact that he has a bad memory.”….
... a witness “appears for cross-examination” despite a nearly total loss of memory regarding the incident and her statements.
Second, courts in other jurisdictions applying Crawford have held that a testifying witness appears for cross-examination at trial despite a nearly total lapse in memory….
Thus, other courts have held that the admission of hearsay statements does not violate the confrontation clause despite the declarant's complete failure to remember the subject matter of the statements….
... although a witness may not recall the incident or her prior statements, the defendant may still impugn the credibility of the witness.
Based on the analysis above, we hold that the admission of the Complainant's first statement that “my boyfriend beat me up” did not violate the Hawai‘i Constitution's confrontation clause….
...
D. The Proper Relief Is To Remand For a New Trial…. we vacate the ICA's judgment on appeal and remand to the family court for a new trial.
State v. Nofoa, 135 Hawai’i 220, 349 P.3d 327 (2015)
Headnote: Introduction of victim's preliminary hearing testimony violated defendant's Confrontation Clause rights in prosecution for kidnapping and terroristic threatening, although motive of defendant at preliminary hearing was sufficiently similar to motive and purpose that defendant would have had to cross-examine victim at trial, i.e. to discredit the State's case and victim's testimony, and defendant's cross-examination of victim was not restricted, where defendant was denied opportunity for meaningful cross-examination because he did not have access to relevant discovery materials that would have assisted in the cross-examination of victim, and access to or knowledge of 911 call, all of which would have enabled him to pose questions relevant to victim's credibility
B. Admission of CW’s Preliminary Hearing Testimony at Trial Resulted in a Confrontation Clause Violation Requiring Remand
Nofoa additionally contends that the ICA erred when it found that the preliminary hearing provided him with an opportunity to effectively cross-examine CW. In this regard, Nofoa asks that we create a “bright-line rule” barring the use of preliminary hearing testimony at trial. We decline to do so. Instead we hold that in this case, because only limited discovery was provided to Nofoa at the preliminary hearing, and later discovery contained significant inconsistencies, the preliminary hearing did not provide a meaningful opportunity for cross-examination, resulting in a violation of Nofoa’s right to confrontation…
In State v. Fields, we ... additionally determined that Crawford does not prohibit the admission of a prior out-of-court statement where “the hearsay declarant is cross-examined at trial about the out-of-court statement.” ... Fields acknowledges that the right to confront a witness is not satisfied simply by any cross-examination, but instead, that the cross-examination must be sufficient and meaningful.
... the admissibility of CW’s preliminary hearing testimony rests on whether the preliminary hearing provided Nofoa with a sufficient and meaningful opportunity for cross-examination.
Post-Crawford and Fields, our court has not developed a standard to determine under what circumstances cross-examination at a preliminary hearing provides the defendant with a sufficient opportunity to confront a witness….
In State v. Faafiti, ... we recognized the importance of allowing unrestricted cross-examination at the preliminary hearing stage, stating: “We also advise the district judges to permit the counsel for a defendant to examine fully and thoroughly witnesses at all preliminary hearings.”
In Toledo v. Lam, 67 Haw. 20, 22, 675 P.2d 773, 775 (1984), we questioned the admissibility of preliminary hearing testimony at trial where the defendant did not have access to relevant discovery during the preliminary hearing. ... Finally, we stated that “withholding of such matters by the State may well prevent its later use of the witness’ [sic] preliminary hearing testimony if the witness is unavailable at trial.”
In Faafiti and Toledo, we recognized two relevant factors in determining the admissibility of preliminary hearing testimony at trial: 1) the restrictions placed on the cross-examination by the trial court, and 2) the discovery available to counsel at the time of the hearing in relation to the effectiveness of cross-examination.
In Chavez v. State, for example, the Nevada Supreme Court …found ... Similarly, in People v. Torres, the Supreme Court of Illinois ... [JB: the court will connect these 2 cases soon]
We recognize that some jurisdictions have endorsed a complete ban on the use of preliminary hearing testimony at trial, while others have been more permissive of the inclusion of such testimony, based on the nature of the proceedings. ...However, guided by our pre-Crawford cases, we adopt the approach of Chavez and Torres and consider the admissibility of preliminary hearing testimony at trial on a case-by-case basis.
… in order to determine whether Nofoa had a sufficient and meaningful opportunity for cross-examination at the preliminary hearing, we consider the following factors: 1) the motive and purpose of the cross-examination, 2) whether any restrictions were placed on Nofoa’s cross-examination during the preliminary hearing, and 3) whether Nofoa had access to sufficient discovery at the preliminary hearing to allow for effective cross-examination of CW. ...
However, we agree with Nofoa that in relation to the third factor, he was denied the opportunity for meaningful cross-examination because he did not have access to relevant discovery materials that would have assisted in the cross-examination of CW. .... He lacked several of CW’s statements, including her handwritten HPD–252 statement, a thirty-two-page recorded interview, and a five-page police report that included CW’s oral statement. It also does not appear that Nofoa’s counsel had access to or knowledge of the 911 call at the time of the preliminary hearing.
Access to these discovery materials would have enabled Nofoa’s defense counsel to pose questions relevant to a central issue of the defense—CW’s credibility—particularly because there were inconsistencies and/or discrepancies between CW’s preliminary hearing testimony and her earlier statements. ...
Thus, we hold that the circuit court erred in allowing admission of CW’s preliminary hearing testimony at trial. …. Accordingly, because there is a reasonable possibility that the admission of the preliminary hearing testimony at trial might have contributed to Nofoa’s conviction, we remand to the circuit court for a new trial.
C. The 911 Call Was Properly Admitted as a Hearsay Exception and Did Not Result in a confrontation Clause Violation
With the purpose of providing guidance to the circuit court and the parties on remand, we address Nofoa’s claim regarding the admissibility of the 911.
Nofoa contends that the circuit court erred in admitting the 911 call because 1) it did not qualify under the excited utterance hearsay exception; and 2) it was testimonial in nature and not subject to cross-examination, and thus violated his right to confrontation.11 We disagree.
Because CW’s statements were nontestimonial, the two-part test from Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), applies. See Fields, 115 Hawai‘i at 516, 168 P.3d at 968 (“We therefore reaffirm Roberts’ continued viability with respect to nontestimonial hearsay.”).12 Under Roberts, a nontestimonial out-of-court statement is admissible if “(1) the declarant is ‘unavailable,’ and (2) the statement bears some indicia of reliability.”. As previously noted, CW’s unavailability is undisputed. Regarding the second requirement, CW’s 911 call statements were sufficiently reliable because they fell “ ‘within a firmly rooted hearsay exception,’ ” as discussed above. State v. Sua, 92 Hawai‘i 61, 71, 987 P.2d 959, 969 (1999) (quoting State v. Ortiz, 74 Haw. 343, 361, 845 P.2d 547, 556 (1993)). Accordingly, the 911 call was admissible.13
For the foregoing reasons, this case is remanded to the circuit court for a new trial.
................
................
In order to avoid copyright disputes, this page is only a partial summary.
To fulfill the demand for quickly locating and searching documents.
It is intelligent file search solution for home and business.
Related searches
- central dogma evidence of evolution
- statistically significant evidence in nursing
- evidence based strategies for teaching
- arguments and evidence worksheets
- clinically significant evidence in nursing
- scholarly articles on evidence based nursing
- evidence based nursing articles free
- nursing evidence based practice topics
- free evidence based practice articles
- evidence based research essential oils
- examples of evidence based practice in nursing
- nursing evidence based research articles