Evidence Outline - Professor Tilly - Campbell Law - Part 8

D. all of these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statue permitting certification; and

1. Need sponsoring witness to lay foundation but DOESN’T HAVE TO BE SOMEONE WHO MADE THE STATEMENT OR KNOW WHO DID
   1. Just need someone to testify to the process in which the records are developed
   2. I.E. – can be an undercover agent in a gang, or a receptionist who wasn’t even working there at the time
2. 902 affidavit exception

E. neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Hearsay within hearsay often applies here → look to each level of communication and apply the rule

• This rule only applies to business insiders (think- people with the duty to pass along information)
• I.E. – Patient tells Dr. symptoms (statement for medical diagnosis) → Dr. puts diagnosis in records (regularly conducted business activity)

FRE 803(7) Absence of a Record of a Regularly Conducted Activity: Evidence that a matter is not included in a record for (business record exception) is exception to hearsay if:

1. The evidence is admitted to prove that the matter did not occur or exist;
2. A record was regularly kept for a matter of that kind; and
3. The opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness

We never covered this but on syllabus

Permits proof of the nonoccurrence or nonexistence of a matter by showing that no record of it is found in regularly kept records that would be expected to have recorded it if it did occur or exist

• Requirements:
  1. foundation sufficient to qualify the record under 806(6) (four predicates;
  2. either the record must be introduced, or the custodian/other qualified witness must testify that a diligent search failed to disclose the matter

FRE 803(10) is the same rule for public records exception

• FOR EITHER OF THESE!! Best evidence rule not violated by testimony that a writing does not contain any reference to the matter (or that it doesn’t exist in the first place)

FRE 803(8) Public Records: A record or statement of a public office

A. if it sets out:

1. the office’s activities;
2. a matter observed while under a legal duty to report , (But if Pros. offering in criminal case: does not include a matter observed by law-enforcement personnel ); OR
3. in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

B. (B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

A. Records that set out office’s activities

1. Broad, ministerial activities
   1. I.E. – Payroll records, personnel hiring, meetings held, office hours, committee assignments, agendas, employee handbook, etc.

B. a matter observed while under a legal duty to report,

1. Must be within scope of the agency’s duties
   1. Ex: TSA report on contraband items recovered;
   2. National Weather Service report on hurricane activity
2. Records containing observations of law enforcement cannot be used by the prosecution in criminal cases
   1. But i can use them to show the government is lying trying to bring me down

C. in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation

1. Crim defense can still use against the government, just not vice versa
   1. Think- not gonna let these fuckers have their cake & eat it too
2. Fair game in civil court
   1. I.E. – coroner report; social worker report
3. “Factual findings” is very broad
   1. FAA investigations re: plane crashes, FDA investigations re: drug safety; CDC investigation re: disease outbreaks
   2. Opinions and conclusions often come in under this

Differences from business record exception?

• No regularity or timing requirement for this rule
• No need to call witness for authenticating foundation
  • Self authenticating
• Must be public agency/office!
• BUT- still have same possible hearsay w/in hearsay dilemma
  • I.E. – statements of bystanders at the scene

FRE 804: Hearsay Exceptions: When Declarant is Unavailable as a Witness

1. Former testimony.
2. Statement made under belief of imminent death.
3. Statement against interest.
4. Statement of personal or family history.
5. Statement offered against a party that wrongfully caused the declarant’s unavailability.

First step to be proven, necessary predicate for ANY of these exceptions

• who is witness; 2) why can’t they testify
• Witness may even be in the courtroom, yet unavailable for another reason
  • I.E. – privilege
• If available? → none of these exceptions can apply

Categories of Unavailability (I went to pick him up during PM RDU but he wasn’t there)

1. Privilege (spousal, 5th Amendment)
2. Lack of subject matter Memory
3. Refusal (after ordered by judge)
4. Dead or very sick
5. Unable to locate/serve

Remember- unavailability is a preliminary question to applicability of hearsay exceptions → judge not bound by rules of evidence when finding witness is unavailable