Evidence Outline - Professor Tilly - Campbell Law - Part 7

Shepard, In murder trial for Shepard, prosecution offered statement from dying woman “Dr. Shephard poisoned me” to prove she was not suicidal → Court calls out this was offered for its truth

• 803(3) exception? → no, her statement is only based on belief in memory (backwards looking)

Will exception: when declarant’s statement “relates to the execution, revocation, identification, or terms” of HIS OR HER will

• NOT ie- statement concerning the conduct of others influencing the terms of the will

FRE 803(4) Statement Made for Medical Treatment or Diagnosis: A statement that is:

1. Made for purposes of and pertinent to medical diagnosis or treatment
2. Describing medical history, past or present symptoms, pain, sensation, causes, or source

Doesn’t have to be made to actual medical provider

• I.E. – child telling mom he feels sick

Unlike then-existing condition, this exception extends to past symptoms etc.

• Also extends to statements made to get help for other people

Statement purpose must be to OBTAIN medical diagnosis or treatment

• I.E. – doesn’t extend to dr. giving the actual diagnosis
• Post accident bystander asks if you’re hurt? → typically the answer is not for the purpose of obtaining treatment but just to answer the question
  • (but could get in under then-existing physical condition)

Only part of statement that is relevant to the medical help is admitted

• Must be “reasonably pertinent to treatment”
  • Thus, “i got hit by a car” would be fine
• I.E. – if statement mentions the person that caused the injury → that part of the statement usually doesn’t come in
  • Unless that Identity is pertinent to treatment or diagnosis →
• U.S. v. Joe, victim told dr. about rape and threats from her ex husband
  • Rape statement found admissible b/c ID was pertinent to treatment, Dr. would give different treatment plan based on who the assailant was (this is rare circumstance)
    • But- if it was “I was raped by a 200 pound man with brown hair” → that’s not pertinent to treatment
  • Threat was not admissible

Declarant does not have to be the one getting the treatment!

• I.E. – pass out on floor and someone says “someone call 911 Ben got too drunk”
• I.E. – Paramedic to Dr.: “patient says his hip hurts” → admissible hearsay w/in hearsay
  • Patient to Paramedic: 803(3) & (4)
  • Paramedic to Dr.: (803(4)

FRE 803(5) Recorded Recollection: A record that:

1. is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
2. was made or adopted by the witness when the matter was fresh in the witness’s memory; and
3. accurately reflects the witness’s knowledge.
   1. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party (rare)
      1. Think- getting read into evidence just makes it on par with regular witness testimony

Foundational Elements:

• Witness had knowledge in the past about a matter.
• Present knowledge is insufficient to permit the witness to testify fully and accurately about the matter.
• Memo or record made or adopted by the witness while matter was fresh in witness’ memory.
• Memo or record accurately reflects witness’s prior knowledge.

“Made or adopted” must manifest acceptance of truth and accuracy

• I.E. – signing notepad of police officer’s after cop writes down your statement

At first just try to refresh the witness’s memory through the document, if that doesn’t work → gets to be read into evidence

• Rule 612 covers refreshing ability (doesn’t even need to be witness’ actual statement to just do that), 803(5) is last resort
• RULE DOESN’T HAVE TO APPLY TO JUST REFRESH WITNESS’S MEMORY, THAT’S NOT HEARSAY → ONLY HEARSAY WHEN ACTUALLY, READ INTO EVIDENCE
  • 612 allows other party to cross exam and inspect the recording

Exam trick: look out for if witness is also a defendant

FRE 803(6) Records of Regularly Conducted Business Activity: A record of an act, event, condition, opinion, or diagnosis if:

1. Was exhibit __ made by, or from information transmitted by, a person with knowledge of the events or conditions recorded;
2. Was exhibit ___ made at or near the time of the events or conditions recorded;
3. Was it in the regular course of your business to make these types of records;
4. Was it in the regular course of your business to keep these records.