1. 801 Define what we know is HS: (c) HS is a STM made OOC, by anyone other than the DEC, off.

. in E FTMA (a) STM - oral, written, or non-verbal assertion (intended to communicate a fact); must be communicative (b) DEC - person who made the OOC STM; has 1sthand PK re: REL fact Even if W quotes his own OOC STM HS (c) FTMA - Ask: If I assume the content of the STM is a lie, do I still want it? If Y FTMA; NOT: for asserting falsity BUT: ADM if for other purposes (e.g. state of mind to show: intent, attitude, belief, knowledge, insanity; or notice, publication, effect on listener, legally-binding statements/operative facts)

(a) Q: N told his friend I like working in the mill. Minutes later, N hit his hand with a hammer; yelled ouch! Are his utterances STMs? A: STM re: working in the mill STM b/c assertive (commun. opinion re: how he likes job. Ouch! assert. (its an exp. of pain). (b) Q: B saw a motorcycle acc. as he sat in his yard w/ his wife, C. B immediately wrote down what happened. @ trial 1 yr. later, B test. re: the date in question. He read his notes to the jury since his mem. of the event was incomplete. Is there a HS DEC here? A: B is both the test. W and the HS DEC. When he read his notes, he was not test. based on pres. memory, rather to his own OOC STM, i.e. the written notes. Thus HS DEC of the notes. (c) Q: Look! J is running away from the cops! FTMA? A: May be off. for truth that J was running away inferring that he was more likely guilty of crime w/ which he was charged. Other purposes: - St.of mind/eff. on listener: Yo! Watch out for!, Pls. be advised... - Insanity: I am the walrus! not FTMA that he is walrus; more likely to be used to prove insanity - Impeachment: Q: J test. @ trial that crash caused tire to roll 10 yds. J was asked whether she told her friend C prior to trial: I saw the tire roll 20 yds. Is Js prior STM off. FTMA? A: No. Off. b/c it was said, not for truth about how far tire rolled. J < believable as W if she said contrad. STMs . Only if Js PIS made under oath in a prior proceed. could it be ADM FTMA under 801(d)(1)(a). - Legal. Op. Facts: Q: While playing cards, A said she would give $50 to anyone who knew the cap. of Kentucky. L correctly answered Frankfort. Is As STM an oper. fact? A: As STM is an off. to enter into unilat. K. If A test. to her prior STM @ trial, ADM not for its truth, but simply b/c words were spoken. Her offer created a legal obligation.

2. 802 Start w/ general rule that HS is NOT ADM.

3. EXCEPTIONS to 802: 801(d)(1) - Prior Statements 1. DEC must test. @ trial, & 2. Must be subject to cross BUT: If W invokes 5th Amen. avail. for cross 3. If above met, 3 types of ADM HS Note: the prop. of a HS STM bears the burden of proving, by a preponderance of the E, that the STM meets one of the EXCs. (d)(1)(A) Prior Inconsistent STM if: 1. Incons. w/ Ws Ctrm. test. 2. Made under oath, & 3. Occurred @ depo., trial, or other proceeding NOT to police (d)(1)(B) Prior Consistent STM 1. Must be off. to rebut charge (exp. or imp.) of fabrication, improper influence, motive 2. Must have been made before motive to fab. or imp. inf. began 3. Does NOT have to be in proceeding under oath 4. Only must be cons. w/ trial test. under attack (d)(1)(C) OOC Identification

(1)(A) Q: R (eyeW) deposed 2 wks. prior to trial for bank robbery. After test. @ trial for the gov., he was cross-ex. by defense. Def.: You just stated robbery occ. @ window 3, right? R Yes. Def.: Didnt you say in depo. that the robbery occ. @ window 2? STM ADM FTMA? A: PIS gen. ADM solely to impeach, not FTMA. Rs PIS, however, was made under oath sub. to penalty of perj. in a prop. proc. under (d)(1)(a) (a depo.). Further, R could be cross-ex. @ trial on his PIS. T/f ADM not only to impeach R but also FTMA. (1)(B) W, a W to robbery, test. @ trial that robber was not D. Pros. asserts in cross that D recently intimidated W and gotten him to change his story. Ds lawyer may substantively intro. A STM made by W @ a grand jury, in which W told the same story.

801(d)(2) - Statements by Party Opponent (Anything you say can/will be used against you.) Note: Biggest hole in the net; most used HS exc. 1. 2. 3. 4. Must be off. against a party (only), & Must be partys own STM, OR Party must have adopted, OR Made by person authorized by the party to make STM, OR 5. STM by a partys agent (or servant) re: matter w/in scope of EEment/agency made during the existence of the rship BUT: (1) partys intro. own

(1)(C) e.g. lineup

STMs, (2) crim. cases: vic. party - STM can be signing a doc. - Silence can be adoptive if circ. ind. that RPP would speak up (vs. rem. silent) - PK required

(d)(2): ALL ADM: - The prosecutor offers the Ds confession. - A civil D offers deposition testimony of the P. - A civil P offers a diary entry written by the D. - The prosecutor calls the Ds girlfriend to testify about what the D told her about the crime. - A civil P offers e-mails sent by the CEO of the D corporation. - A civil D plays a video of the P making statements to a news reporter after the incident. - The prosecutor offers letters written by the D to his family members while he was in jail. Civil spillover - Q: P, passenger in Ss car, suff. inj. when S collided with Rs car. P sued S and R, claiming that the acc. occurred b/c (1) R ran red light & (2) S was driving so fast that he couldnt stop. At trial, P

Same-Side STMs: ADM if D (or P) offers co-D (or co-P)s STM against them Against - contrary to partys position @ trial Civil Cases (Spillover Effects): STM can only be used ag. party who made it J will give lim. instr. that jury may only consider content of STM in assessing speakers liab. (NOT: in eval. other co-Ds behavior) Criminal Cases (& the Confrontation Clause): lim. instr. insuf. if ct. admits OOC STM ag. one D that also incriminates other co-Ds Pros. options for OOC admission from one of several Ds (Brunton): Redact Ds admis. so implicate other Ds. (STM still ADM ag. D

calls B as a witness. B test. that he talked to R after the acc. and he said I know I ran a red light, but that guy was traveling @ the speed of light. I couldnt get out of his way. S and R object; claim HS. A: ADM against R; she made STM and P off. against her as a party. BUT, NOT ADM ag. S; he didnt make the STM so HS.

who made) Sever trial; try Ds separate. (intro. admis. ag. D who made STM @ his trial) Forego use of STM & use other E instead Redaction guidelines: 1. STM that explicitly names and implicates co-D 2. STM that simply replaces co-Ds name w/ blanks NOT ADM 3. STM that doesnt refer explic. to co-D and doesnt contain obvious omissions (tempting jury to fill in gaps) ADM Pros. can adm. STMs in initial form or can be redacted to above form (b/c plaus. that jury will fol. lim. instr.)
NOT ADM

Bruton

Q: A & W charged w/ robbery; tried jointly; neither took stand. Cop test. that W admitted during station interrog.: I did it! I didnt think youd catch me b/c I dressed like a vampire. Gov. also intro. E that cops found a vampire costume in As car. Ws STM ADM? A: Yes ag. W. No ag. A (b/c not As STM). J will instruct jury to consider STM only re: Ws guilt. Even then, costume in As car = circ. E of guilt. This use of Ws STM does not viol. Bruton. The STM when comb. w/ other E implicitly links A to crime. 6th Amend. concerns only when OOC STM explicitly refers to coD. (d)(2)(E) Q: Bling Ring; Alexis says I did nothing; Nick did all burglaries, he told me this after the police let him go. ADM? A: No. Made STM after arrest & not trying to furth. conspiracy.

801(d)(2)(E) - Statements of Co-conspirators (conspiracy - JV; partnership tow. com. goal) Note: this is an avenue for attrib. STM to co-Ds (avoids 6th Amend. iss.) ADM even if test. 1. OOC STM ag. party (only), & 2. By a co-conspirator, & 3. During the course of the conspiracy, & Arrest usually ends the conspiracy 4. In furtherance of the conspiracy

Boasting

furtherance

807 - Residual Exception 1. STM must not be covered by 803 or 804 2. STM must have circumstantial guarantees of trustworthiness (like 803804) 3. STM must offer E of a material fact 4. Must be more probative of info. it conveys than any other E that prop.

Q: C (fmr. CEO) dying of cancer; tells wife My company dumped toxic waste in river over 10-yr span. C dies; wife reports STM. Info. becomes public; town sues co. claiming dumping birth defects. @ trial, Ps call widow to report Cs STM. ADM? A: Cs STM = HS; doesnt fit any exc. Not dying dec. b/c not re: cause/circ. of Cs death. Not ag. int. b/c C

could procure through reasonable efforts 5. Trial J must find that adm. of STM = consistent w/ the purp. of FRE & interests of justice 6. Must give notice. HS Policies OOC STM more reliable than most OOC STM more necessary than most Residual Exception OOC STM has guar. of trustworthiness OOC STM satisfies imp. need

knew he was about to die (t/f no pec. loss or liab. from STM). BUT, ADM b/c policy and Ps have no other way to intro. E b/c Cs dead. Trial J has discretion to adm. if sufficiently trustworthy. Q: T, travel co., used aggressive sales techniques to dupe buyers into paying more for trips. FTC sued T after rec. numerous complaints. FTC submitted several affidavits from customers who descr. their experiences. T objected as HS. A: ADM. Each contained suff. guar. of trustworthiness (made under oath subj. to perj.) Plus, would be cumbersome and $$ to bring all cust. to ct. to test.

4. 803 EXCEPTIONS BASED ON RELIABILITY that apply even if DEC UNAVAILABLE (1) Present Sense Impressions - STM describing event as it unfolds 1. Only applies to descriptions/explanations of an event NOT complex analysis/interpretations 2. DEC must make it while perceiving event or immediately after (2) Excited Utterances! - excited people responding to startling event 1. DEC must speak while excited by startling event (subjective) 2. Must relate to the event If unrelated NOT ADM (even if DEC makes while still excited) 803(1) PSI Desc. vs. Must Relate Timing Subj. or Obj.? Desc. (NOT analysis!) Contemporaneously or immediately after More narrow 803(2) EU! Must relate to (no desc.) While still exc. (even >30min) Subj. (genuine exc. or stress) Broad

(1) Q: O sees a car speed by in opp. direction and says If the driver keeps that speed, hell crash! ADM? A: Yes, ADM to show car was traveling fast.

(2) Q: D, age 14, was hit by a car. She was uninjured but very frightened. 1 hr. later when her mom got home, D exclaimed: A blue truck hit me! At drivers subseq. trial, Ds mom intends to test. re; Ds STM. Can her mom test.? A: Ds STM is tech. HS. Its OOC , a STM (assert. that truck hit her), by DEC (D); and off. FTMA (truck committed hit-&-run). ADM as HS under EU! Made under exc. caused by starling event and STM related to event. Even if D is pres. and able to test. b/c UAV not req. for 803s.

(3) State of Mind - intention to do something 1. Expression of state of mind, mental, emotional, or physical condition (e.g. plan, motive, pain, bodily health) & 2. To be admitted FTMA & 3. Must be contemporaneous and forward-looking NOT: STM of memory/belief if offered to prove that he remembered/believed BUT: exception to exception - ADM to prove the fact remembered/believed if fact relates to validity Klein: E.g. I am thinking X ADM to prove what DEC thinking on a partic. day, BUT not to prove X. Note: OOC STMs only HS when off. FTMA. If STM off as circ. E of DECs mental condition HS

(3) O says, I believe my BF poisoned me. Even though this is STM of present belief, NOT ADMN under (3) to prove that BF really did poison O, since it is offered to prove the fact believed. (3) Q: B plays a trick on N. B climbs a tree; when N sits down, B drops an apple on his head. N says, Ouch! I think my skull is fractured! B on trial for batt. Is Ns STM (to prove N was in pain) ADM? A: Yes.

Hillmon - Q: L tells friends he plans to meet MJ who is going to give him a lb. of free weed. L is never seen

 Hillmon and Circumstantial E to prove that someone acted in accordance w/ state of mind: Yours is ADM to prove that someone acted in accordance w/ state of mind: If you mention someone else, E may be used against them too b/c: 1. Relevant & 2. Shows state of mind (4) Statement for the Purpose of Medical Treatment or Diagnosis 1. DEC must make STM for purp. of medical treatment, & 2. STM must be reasonably pertinent to diagnosis or treatment, & 3. Must either describe: 1. Medical history, or 2. Past or present symptoms, pain, or sensations, or 3. Inception/character of cause or external source Note: (1) Does not have to be to a Dr.; (2) can be someone obtained for litigation

again. At Ds trial for kidnapping, pros. Intro other E to show D was the man L knew as MJ; then seeks to intro. Ls STM to friends. A: ADM (under Hillmon) (4) Q: M is in ER and tells nurse she was riding escalator at Macys when my heel got caught in metal causing me to fall. I think my ankle is broken! At negligence trial for improper elevator maintenance, Macys claims M fell outside of the store. Can nurse test. To prove M really did fall on escalator at Macys? A: Yes. Ms STM re: cause was prob. reas. pertinent to diag./treatment. However, ct. might hold that ID of place (Macys) not reas. pertinent. At the least, STM re: acc. Occ. On escalator would be pertinent/ADM even if the part about Macys isnt.

[DOCUMENTARY] (6) Q: J works for Q RR Co. His duty = prep. a rep. on any Q train accident (RR uses to def. against claims by (6) Business Records - nearly every doc. orgs. (profit or not) make in reg. shippers whose merch. is damaged.) Art is transported conducted biz. on a Q train; damaged. J describes in rep.: Art 1. Made by someone w/ PK or one insider (w/ PK) to another [602 PK], & improperly packed by owner. Fell out of box, onto

2. Timing: on or near the time data arose (NOT: as strict as contemporaneous), & 3. Made in course of reg. conducted biz. activity & have reg. prac. of keeping ,& 4. Qualified W (or cert.) must intro. E Note: NOT ADM if NOT trustworthy! (8) Public Records - ADM if FTMA 1. Activities of the office/agency, & 2. Matters observed - only to matters agency has a duty to observe, & NOT: info. observed by 3rd parties NOT: records observed by cops in crim. cases Note: Cts. have construed to limit pros. only 3. Factual findings from investigation includes investigators opinion Must be conducted pursuant to auth. granted by law NOT ADM if NOT trustworthy! See: 4 Factors Timeliness of investigation 3. Special skill of investigator Hearing before report? 4. Suspect? (e.g. prep. for lit.) (5) Recorded Recollection 1. W must NOT have memory 2. Must appear in memo/rec. (i.e. DEC memorialized in some way), & 3. W must be either (1) DEC, or (2) one who saw/agreed i.e. someone avail. for cross Made Adopted Made or adopted = as long as W approved of content of rec. while recollect. fresh BUT: if W refuses NOT ADM 4. W must test. he had PK when made memo (602) & it accurately reflected knowledge 5. Made record when PK fresh (NOT: as strict as contemporaneous) [Add chart of diff. b/w 803(5) and 612 (outline)] Other 803 Exceptions

tracks. Arts owner sues Q for neg. RR seeks to intro. Js report into E in support of RRs def. that acc. caused by owners neg. ADM? A: Probably not. For BR exc., rec. must be kept as part of reg. prac. of biz. activity. acc. reports made in ant. of lit. dont qualify. i.e. Qs main function is trans. goods, and acc. reps. dont relate closely to that. +, since J knows main use of reps. is to def. against claims, has strong int. to write to blame customer, not RR. Thus not trustworthy. (8) Q: EPA officer investigated an oil spill on Crescent Beach. Officer wrote: 9:15am I observed crude oil spread one in. thick for approx. 300 yds. along beach. Resident informed me oil came ashore 5 hrs ago. ADM in civil suit? A: 1st STM w/ EPA invest.s dir. obs. ADM, but 2nd STM (residents) within the exc.. J will redact unless another HS exc. supports it.

(5) Q: In case for forged checks, Ds friend G test. for pros. G recalled some details about Ds check-cashing activities (but not others). Gov. off. portions of STM G made to FBI agent before trial. Agent (not G) wrote the STM merely summarizing Gs comments; not verbatim. Although agent wrote STM, G read, agreed it was accurate, and signed. Def. obj. as HS. What result? A: ADM. G adopted it (read, agreed it was accurate, and signed). (Note: the pros. satisfied all other reqs.)

(7) & (10): - Sales recs. from pharmacy showing no narcotic sales one day. - Recs. from Sec. of State office showing no rec. of articles of incorp. for

 (7) Absence of Biz. Recs. (not really

HS, but:)

(10) Abs. of Public Recs. (not really

HS, but:)

a certain company.

1. Show recs. kept in acc. w/ 803(6), & 2. Show absence relates to matter which biz. regularly made, & 3. Be prepared to rebut arg. that absence of record unreliable (16) Ancient Docs. 1. Must be >20 yrs. old, & 2. Must be est. as authentic (18) Learned Treatises 1. Must always be connected to EW, & NOT: intro. by itself 2. May be read into E NOT: rec. as exhibits 3. Prop. must est. treatises reliability EW may confirm, or Another W may est. face, or J may take judicial notice

1. Show absence relates to matter which biz. regularly made/preserved, & 2. May present cert. doc. attesting diligent search but no yield

(17) Mkt. Reports & Comm. Publications 1. Only compilations of data, & NOT evaluative 2. Must show that general pub. or partic. occup. relied upon report/pub.

5. 804 EXCEPTIONS BASED ON UNAVAILABILITY (only apply when DEC UAV) (a) Generally (defined) - DEC cant or wont testify live Klein: It doesnt matter whether theyre physically there; its their testimony thats UAV. 1. Privilege Must call to stand to est. priv. 2. Persists in refusing 3. Lack of memory

4. Death or physical/mental illness 5. Absent Party find using reas. means Must subpoena Must use reas. means to get DECs depo. Also, wrongdoing caveat: absence cant be prop.s fault Note: Prop. burden to prove UAV.

(b)(1) Former Testimony Recall why HS < reliable than 1sthand: 1. Compounds risk of mistake/lie 2. Opp. for cross 3. Fact-finder can assess cred. 4. 1sthand test. occurs under oath N/A here N/A here Only diff. N/A here

(b)(1) Q: C test. for def. in civil forefeiture trial. Verdict reversed on appeal and case retried by same parties. C = dead @ time of retrial. If D offers Cs test. from 1st trial, ADM as FT? A: Yes. Prior proc. + same parties + P in earlier proc. had opp. + similar motive to dev. Cs test. on cross.

1. Prop. FT must show DEC. UAV (i.e. lay the foundation), & 2. FT must have occurred @ hearing or depo., i.e. under oath, & NOT: have to be part of the same suit 3. Opp. (or pred.) must have had opp. to quest. DEC (i.e. devel. test.) @ prior hearing/depo. 4. Opp. (or pred.) in prior H or Ds motive in questioning must have been similar to opp. partys motive in current Factors (based on facts of the case + legal issues): 1. Type of proceeding 3. Potential stakes/penalty 2. Trial strategy 4. # of Parties/issues 5. Same parties? Criminal: Must be same parties Differences: Civil: Pred. in interest Ask: What are they trying to prove?

Former Testimony 804(b)(1) DEC: Must be unavailable

Prior Inconsistent STM 801(d)(1)(A) Must (1) testify, & (2) be sub. to cross @ cur. trial re: STM Inconsistent w/ cur. test. - Under oath - Made @ any prior proceeding, depo. or grand jury pres.

Content of STM: Context of prior STM:

Any content - Under oath - Made @ prior proceeding @ which opp. (or if civil pred.) had opp. to cross or develop on direct & had similar motive

(b)(2) Q: A was the vic. of a gunshot wound after he investigated a noise hear his back door. He said to F, F! Im dying! G shot me! Goodbye!Can F test. for the pros.? A: Yes. Although As STM = HS, ADM as dying dec. A is dead (UAV), STM made when he believed he would die; about cause/circ. of death.

N/A

(b)(2) Dying Declarations 1. STM must be HS, & 2. DEC must be UAV, & 3. Content of STM must concern & is limited to: cause or circ.. of death Note: other exc. may apply, e.g.: Excited Utterances, State of Mind, Obtain Med. Treatment, Forfeiture

I robbed Burger King! I owe you $500.

(b)(6) Forfeiture - by causing a Ws UAV party waives right to obj. to Ws prior STMs as HS 1. DEC UAV, & 2. Opp. party engaged/acquiesced in wrongdoing, & 3. Intended to cause UAV, & 4. Wrongdoing caused UAV (b)(3) Statements Against Interest - So far contrary to DECs interest that no RPP in DECs position would have made it unless believing it to be true. 1. Must be UAV 2. Must be against DECs interest @ time made How (3 ways): Pecuniary ($) or proprietary (ownership) Civil or criminal liab. Render invalid claim

(b)(3) Q: N embezzled $400,000 from his company by making out checks to fictitious payees. L Co. cashed the checks for N knowing they werent made out to him. Ns boss confronted him; N admitted that he did it and that he cashed the checks with L. N told his boss that A (Ls owner) agreed to cash the checks in exchange for a kickback. N and boss settled. Boss sued A. N claimed privilege (not test.) Boss tried to intro. Ns prior STMs to show that A cashed checks for N. ADM? A: No. He confessed after boss confronted him with E of his wrongdoing, when he had strong interest in placating his boss and shifting blame. Although he admitted wrongdoing b/c of the circ., he was trying to minimize his own guilt. E.g. of against interest: Prior test. under grant of immunity (i.e. if under immunity, no concern re: against

3. Any STM that exposes DEC to crim. liab. ADM to exculpate (show NG) crim. D only when corroborating circ. clearly indicate STMs trustworthiness Most cts. req. corrob. of both DECs & STMs trustworthiness 6 Factors Whether DEC plead guilty b/f making STM, or was still exposed to prosecution DECs motive in making STM (was there reason to lie?) Whether DEC repeated STM (& did so consistently) Who STM made to Rship of DEC & accused Nature/strength of ind. E rel. to conduct in question J determines trustworthiness Standard: preponderance of the E

interest)

803 EXCEPTIONS (DOCUMENTARY) (6) Business Records - nearly every doc. orgs. (profit or not) make in reg. conducted biz. 1. Made by someone w/ PK or one insider (w/ PK) to another [602 PK], & 2. Timing: on or near the time data arose (NOT: as strict as contemporaneous), & 3. Made in course of reg. conducted biz. activity & have reg. prac. of keeping , & 4. Qualified W (or cert.) must intro. E Note: NOT ADM if NOT trustworthy! (8) Public Records - ADM if FTMA 1. Activities of the office/agency, & 2. Matters observed - only to matters agency has a duty to observe, & NOT: info. observed by 3rd parties NOT: records observed by cops in crim. cases Note: Cts. have construed to limit pros. only 3. Factual findings from investigation includes investigators opinion Must be conducted pursuant to auth. granted by law NOT ADM if NOT trustworthy! See: 4 Factors Timeliness of investigation 3. Special skill of investigator Hearing before report? 4. Suspect? (e.g. prep. for lit.) (5) Recorded Recollection 1. W must NOT have memory 2. Must appear in memo/rec. (i.e. DEC memorialized in some way), & 3. W must be either (1) DEC, or (2) one who saw/agreed i.e. someone avail. for cross Made Adopted Made or adopted = as long as W approved of content of rec. while recollect. fresh BUT: if W refuses NOT ADM 4. W must test. he had PK when made memo (602) & it accurately reflected knowledge 5. Made record when PK fresh (NOT: as strict as contemporaneous)

(6) Q: J works for Q RR Co. His duty = prep. a rep. on any Q train accident (RR uses to def. against claims by shippers whose merch. is damaged.) Art is transported on a Q train; damaged. J describes in rep.: Art improperly packed by owner. Fell out of box, onto tracks. Arts owner sues Q for neg. RR seeks to intro. Js report into E in support of RRs def. that acc. caused by owners neg. ADM? A: Probably not. For BR exc., rec. must be kept as part of reg. prac. of biz. activity. acc. reports made in ant. of lit. dont qualify. i.e. Qs main function is trans. goods, and acc. reps. dont relate closely to that. +, since J knows main use of reps. is to def. against claims, has strong int. to write to blame customer, not RR. Thus not trustworthy. (8) Q: EPA officer investigated an oil spill on Crescent Beach. Officer wrote: 9:15am I observed crude oil spread one in. thick for approx. 300 yds. along beach. Resident informed me oil came ashore 5 hrs ago. ADM in civil suit? A: 1st STM w/ EPA invest.s dir. obs. ADM, but 2nd STM (residents) within the exc.. J will redact unless another HS exc. supports it.

(5) Q: In case for forged checks, Ds friend G test. for pros. G recalled some details about Ds check-cashing activities (but not others). Gov. off. portions of STM G made to FBI agent before trial. Agent (not G) wrote the STM merely summarizing Gs comments; not verbatim. Although agent wrote STM, G read, agreed it was accurate, and signed. Def. obj. as HS. What result? A: ADM. G adopted it (read, agreed it was accurate, and signed). (Note: the pros. satisfied all other reqs.)

[Add chart of diff. b/w 803(5) and 612 (outline)]

Other 803 Exceptions (7) Absence of Biz. Recs. (not really

HS, but:)

(10) Abs. of Public Recs. (not really

HS,but:)

(7) & (10): - Sales recs. from pharmacy showing no narcotic sales one day. - Recs. from Sec. of State office showing no records

1. Show recs. kept in acc. w/ 803(6), & 2. Show absence relates to matter which biz. regularly made, & 3. Be prepared to rebut arg. that absence of record unreliable (16) Ancient Docs. 1. Must be >20 yrs. old, & 2. Must be est. as authentic (18) Learned Treatises 1. Must always be connected to EW, & NOT: intro. by itself 2. May be read into E NOT: rec. as exhibits 3. Prop. must est. treatises reliability EW may confirm, or Another W may est. face, or J may take judicial notice

1. Show absence relates to matter which biz. regularly made/preserved, & 2. May present cert. doc. attesting diligent search but no yield (17) Mkt. Reports & Comm. Publications 1. Only compilations of data, & NOT evaluative 2. Must show that general pub. or partic. occup. relied upon report/pub.

(16) Q: A civil suit involves the issue of whether D cig. company knew that cigs could cause cancer in 54. P offers letter found under the following: N (Ds prez.) died in 62. In his safe was a copy of a letter he wrote to his son in 53: T, the scientists at the company just finished experiments showing smoking probably caused lung cancer. The box was not discovered until 93. No other E has been offered proving that N actually wrote the letter. ADM? A: Yes. As long as authenticity established [901(b)(8)]. (17) Stock prices, not articles (18) Grays Anatomy

5. 804 EXCEPTIONS that apply when DEC UAV [UNAVAILABILITY] (a) Generally (defined) - DEC cant or wont testify live Klein: It doesnt matter whether theyre physically there; its their testimony thats UAV. 6. Privilege Must call to stand to est. priv. 7. Persists in refusing 8. Lack of memory 9. Death or physical/mental illness 10.Absent Party find using reas. means Must subpoena Must use reas. means to get DECs depo. Also, wrongdoing caveat: absence cant be prop.s fault Note: Prop. burden to prove UAV.

(b)(1) Former Testimony Recall why HS < reliable than 1sthand: 5. Compounds risk of mistake/lie 6. Opp. for cross 7. Fact-finder can assess cred. 8. 1sthand test. occurs under oath N/A here N/A here Only diff. N/A here

(b)(1) Q: C test. for def. in civil forefeiture trial. Verdict reversed on appeal and case retried by same parties. C = dead @ time of retrial. If D offers Cs test. from 1st trial, ADM as FT? A: Yes. Prior proc. + same parties + P in earlier proc. had opp. + similar motive to dev. Cs test. on cross.

6. Prop. FT must show DEC. UAV (i.e. lay the foundation), & 7. FT must have occurred @ hearing or depo., i.e. under oath, & NOT: have to be part of the same suit 8. Opp. (or pred.) must have had opp. to quest. DEC (i.e. devel. test.) @ prior hearing/depo. 9. Opp. (or pred.) in prior H or Ds motive in questioning must have been similar to opp. partys motive in current

Factors (based on facts of the case + legal issues): 1. Type of proceeding 3. Potential stakes/penalty 2. Trial strategy 4. # of Parties/issues 10.Same parties? Criminal: Must be same parties Differences: Former Testimony 804(b)(1) DEC: Must be unavailable Prior Inconsistent STM 801(d)(1)(A) Must (1) testify, & (2) be sub. to cross @ cur. trial re: STM Inconsistent w/ cur. test. - Under oath - Made @ any prior proceeding, depo. or grand jury pres.
(b)(2) Q: A was the vic. of a gunshot wound after he investigated a noise hear his back door. He said to F, F! Im dying! G shot me! Goodbye!Can F test. for the pros.? A: Yes. Although As STM = HS, ADM as dying dec. A is dead (UAV), STM made when he believed he would die; about cause/circ. of death.

Civil: Pred. in interest Ask: What are they trying to prove?

Content of STM: Context of prior STM:

Any content - Under oath - Made @ prior proceeding @ which opp. (or if civil pred.) had opp. to cross or develop on direct & had similar motive

(b)(2) Dying Declarations 4. STM must be HS, & 5. DEC must be UAV, & 6. Content of STM must concern & is limited to: cause or circ.. of death Note: other exc. may apply, e.g.: Excited Utterances, State of Mind, Obtain Med. Treatment, Forfeiture

N/A

I robbed Burger King! I owe you $500.

(b)(6) Forfeiture - by causing a Ws UAV party waives right to obj. to Ws prior STMs as HS 5. DEC UAV, & 6. Opp. party engaged/acquiesced in wrongdoing, & 7. Intended to cause UAV, & 8. Wrongdoing caused UAV

(b)(3) Q: N embezzled $400,000 from his company by making out checks to fictitious payees. L Co. cashed the

 (b)(3) Statements Against Interest - So far contrary to DECs interest that no RPP in DECs position would have made it unless believing it to be true. 4. Must be UAV 5. Must be against DECs interest @ time made How (3 ways): Pecuniary ($) or proprietary (ownership) Civil or criminal liab. Render invalid claim 6. Any STM that exposes DEC to crim. liab. ADM to exculpate (show NG) crim. D only when corroborating circ. clearly indicate STMs trustworthiness Most cts. req. corrob. of both DECs & STMs trustworthiness 6 Factors Whether DEC plead guilty b/f making STM, or was still exposed to prosecution DECs motive in making STM (was there reason to lie?) Whether DEC repeated STM (& did so consistently) Who STM made to Rship of DEC & accused Nature/strength of ind. E rel. to conduct in question J determines trustworthiness Standard: preponderance of the E

checks for N knowing they werent made out to him. Ns boss confronted him; N admitted that he did it and that he cashed the checks with L. N told his boss that A (Ls owner) agreed to cash the checks in exchange for a kickback. N and boss settled. Boss sued A. N claimed privilege (not test.) Boss tried to intro. Ns prior STMs to show that A cashed checks for N. ADM? A: No. He confessed after boss confronted him with E of his wrongdoing, when he had strong interest in placating his boss and shifting blame. Although he admitted wrongdoing b/c of the circ., he was trying to minimize his own guilt. E.g. of against interest: Prior test. under grant of immunity (i.e. if under immunity, no concern re: against interest)

5. 804 EXCEPTIONS BASED ON UNAVAILABILITY (only apply when DEC UAV) (a) Generally (defined) - DEC cant or wont testify live Klein: It doesnt matter whether theyre physically there; its their testimony thats UAV. 1. Privilege Must call to stand to est. priv. 2. Persists in refusing 3. Lack of memory 4. Death or physical/mental illness 5. Absent Party find using reas. means Must subpoena Must use reas. means to get DECs depo. Also, wrongdoing caveat: absence cant be prop.s fault

Note: Prop. burden to prove UAV.

(b)(1) Former Testimony Recall why HS < reliable than 1sthand: 1. Compounds risk of mistake/lie 2. Opp. for cross 3. Fact-finder can assess cred. 4. 1sthand test. occurs under oath N/A here N/A here Only diff. N/A here
(b)(1) Q: C test. for def. in civil forfeiture trial. Verdict reversed on appeal and case retried by same parties. C = dead @ time of retrial. If D offers Cs test. from 1st trial, ADM as FT? A: Yes. Prior proc. + same parties + P in earlier proc. had opp. + similar motive to dev. Cs test. on cross.

1. Prop. FT must show DEC. UAV (i.e. lay the foundation), & 2. FT must have occurred @ hearing or depo., i.e. under oath, & NOT: have to be part of the same suit 3. Opp. (or pred.) must have had opp. to quest. DEC (i.e. devel. test.) @ prior hearing/depo. 4. Opp. (or pred.) in prior H or Ds motive in questioning must have been similar to opp. partys motive in current Factors (based on facts of the case + legal issues): 1. Type of proceeding 3. Potential stakes/penalty 2. Trial strategy 4. # of Parties/issues 5. Same parties?

Criminal: Must be same parties Differences:

Civil: Pred. in interest Ask: What are they trying to prove? Prior Inconsistent STM 801(d)(1)(A) Must (1) testify, & (2) be sub. to cross @ cur. trial re: STM Inconsistent w/ cur. test. - Under oath - Made @ any prior proceeding, depo. or grand jury pres.

Former Testimony 804(b)(1) DEC: Must be unavailable

Content of STM: Context of prior STM:

Any content - Under oath - Made @ prior proceeding @ which opp. (or if civil pred.) had opp. to cross or develop on direct & had similar motive

(b)(2) Dying Declarations 1. STM must be HS, & 2. DEC must be UAV, & 3. Content of STM must concern & is limited to: cause or circ.. of death Note: other exc. may apply, e.g.: Excited Utterances, State of Mind, Obtain Med. Treatment, Forfeiture

(b)(2) Q: A was the vic. of a gunshot wound after he investigated a noise hear his back door. He said to F, F! Im dying! G shot me! Goodbye!Can F test. for the pros.? A: Yes. Although As STM = HS, ADM as dying dec. A is dead (UAV), STM made when he believed he would die; about cause/circ. of death.

(b)(6) Forfeiture - by causing a Ws UAV party waives right to obj. to Ws prior STMs as HS 1. DEC UAV, & 2. Opp. party engaged/acquiesced in wrongdoing, & 3. Intended to cause UAV, & 4. Wrongdoing caused UAV (b)(3) Statements Against Interest - So far contrary to DECs interest that no RPP in DECs position would have made it unless believing it to be true. E.g. I robbed Burger King! I owe you $500. 1. Must be UAV 2. Must be against DECs interest @ time made How (3 ways):

(b)(6) e.g. gangsters, mob

(b)(3) Q: N embezzled $400,000 from his company by making out checks to fictitious payees. L Co. cashed the checks for N knowing they werent made out to him. Ns boss confronted him; N admitted

Pecuniary ($) or proprietary (ownership) Civil or criminal liab. Render invalid claim 3. Any STM that exposes DEC to crim. liab. ADM to exculpate (show NG) crim. D only when corroborating circ. clearly indicate STMs trustworthiness Most cts. req. corrob. of both DECs & STMs trustworthiness 6 Factors Whether DEC plead guilty b/f making STM, or was still exposed to prosecution DECs motive in making STM (was there reason to lie?) Whether DEC repeated STM (& did so consistently) Who STM made to Rship of DEC & accused Nature/strength of ind. E rel. to conduct in question J determines trustworthiness Standard: preponderance of the E

that he did it and that he cashed the checks with L. N told his boss that A (Ls owner) agreed to cash the checks in exchange for a kickback. N and boss settled. Boss sued A. N claimed privilege (not test.) Boss tried to intro. Ns prior STMs to show that A cashed checks for N. ADM? A: No. He confessed after boss confronted him with E of his wrongdoing, when he had strong interest in placating his boss and shifting blame. Although he admitted wrongdoing b/c of the circ., he was trying to minimize his own guilt. E.g. of against interest: Prior test. under grant of immunity (i.e. if under immunity, no concern re: against interest)