803 Exceptions Flashcards
Jason Stevens, the engineer of the train, on seeing the explosion of the tank cars, said to the fireman in the train cab with him, “A tank car should not rupture like that.” Plaintiffs in the civil suit wish to use this statement and call Stevens to the stand to repeat what he said. AB objects the statement is hearsay. The plaintiffs make the correct response to the objection. What is that response?
Present sense impression exception 803(1); responding to what is seeing
Same facts as Problem 1, except that Stevens died from breathing the gas. The train’s fireman is called to testify and AB objects the statement is hearsay and as Stevens is not available to testify, no exception exists. How should the judge rule and why?
Availability of declarant is irrelevant since we are using 803 (as opposed to 804 where you have to litigate over availability)
Same facts as Problem 2, except that a “black box” in the train cab recorded the statement made by Stevens. AB objects the statement is hearsay. Plaintiffs respond that a tape recorder is not a declarant and instead is a mechanical devise; therefore, there can be no hearsay. How should the judge rule and why?
Treat it as a declarant so hearsay is still hearsay; standing in place of declarant; box is hearsay
Still hearsay if an object is in the place of a declarant
Stevens makes the same statement 1 day later to a railroad investigator. The plaintiffs wish to have him repeat what he told the investigator in court. AB objects the statement is hearsay. How should the judge rule and why?
Hearsay – not present sense or excited because time has passed
If the statement is held to be inadmissible hearsay, how can the plaintiffs get this evidence before the jury?
Tell us what you think know; say what happened and tell me what you know; Tell me the facts
Immediately after the explosion, Stevens ran towards the tank cars to see what had happened. As he got closer, he saw the cloud of ammonia gas, but he also saw a greenish gas cloud. Not knowing what the green cloud was he breathed a small amount of the gas and began to choke. He began to run from the site yelling, “Poison gas! Run for your life!” The civil plaintiffs call Stevens to repeat this story and what he said. AB objects the statement is hearsay. How should the judge rule and why?
Exception of excited utterance 803(2); could argue judge should kick the statement of “poison” out because how would he know; may not be competent witness to comment to this
Stevens witnessed the deaths of many people. He was in shock and was taken to a local hospital. The next day, while still in the hospital, Stevens was interviewed by an ATF agent and told the agent, “It was poison gas! I ran for my life! Everyone who did not died!” Stevens dies before trial and the plaintiffs call the agent to testify about Stevens’ statement. AB objects the statement is hearsay. How should the judge rule and why? What facts must the plaintiffs produce to allow the judge to admit the statement?
Excited utterance; next day; have to prove record of heart rate, excited state; Person talking to him can also testify to his state to show he is still in an excited state
Cannot use exception if calmed down but then talking about it excites you again; must be constant state of excitement
As Stevens ran from the AB site, he was stopped by a police officer. The officer asked Stevens what was going on. Stevens told the officer, “I have never been so scared in my whole life! It was awful to see people dropping in agony. I will never forget what I saw!” Plaintiffs wish to have the officer repeat Stevens’ statement. AB objects:
a. Stevens is alive and available, so only he should be allowed to repeat the statement;
Not care if the witness is available; rule 806 allows us to ask him about the credibility of Stevens “are you aware of his meth abuse?” Can call Stevens himself and ask if he has a meth problem
806 allows you to treat witness as if they are the declarant
As Stevens ran from the AB site, he was stopped by a police officer. The officer asked Stevens what was going on. Stevens told the officer, “I have never been so scared in my whole life! It was awful to see people dropping in agony. I will never forget what I saw!” Plaintiffs wish to have the officer repeat Stevens’ statement. AB objects:
b. The statement is hearsay.
Mental state at the time; excited utterance
In his statement to the officer, Stevens explained how the green gas had affected him. Plaintiffs also want the officer to repeat what Stevens said. AB objects the statement is hearsay. How should the judge rule and why?
803(3) exception applies here
: EMS takes Stevens to the St. Louis University Hospital for treatment. He enters the emergency room which is overwhelmed with cases from the blast. The head of the ER has assigned nurses and billing personnel to interview patients as they arrive to try to determine who needs care first. Stevens tells a secretary about the explosion, the gas clouds and the green gas causing him to choke. Shortly after that he dies. The plaintiffs wish to have the secretary repeat everything that Stevens said. AB objects the statement is hearsay. How should the judge rule and why?
803(4) statements made to make diagnosis; must be talking to a nurse or a doctor but secretary was directed by nurse/doctor
Phil Peters survived the gas attack, but ultimately suffered so much damage that he cannot speak. Before he lost his voice, he made statements to a St. Louis University Hospital doctor about how he came into contact with the gas, and his immediate physical reactions to the gas he inhaled. The doctor wrote these statements down in the medical record. Peters calls the doctor to testify about the whole incident. The doctor states that while he cannot remember Peters in particular, that St. Louis University Hospital maintains medical records for each patient, and he produces those for Stevens. What must Stevens do to make these records admissible? Will it matter that the doctor says he has no present memory of the events?
Rule 803(6) business records; go through it but another piece of hearsay in middle of records; doctor wrote statements of Peters; those would come in under 803(4) Must show that it was kept in the course of regularly conducted business activities Must be recorded shortly after etc.
EMS takes Stevens to the St. Louis University Hospital for treatment. He enters the emergency room which is overwhelmed with cases from the blast. The head of the ER has assigned nurses and billing personnel to interview patients as they arrive to try to determine who needs care first. Stevens tells a secretary about the explosion, the gas clouds and the green gas causing him to choke. The secretary dutifully reports all that Stevens said to a nurse, who enters it into the nursing notes. These notes become part of the medical record kept for Steven’s case. Shortly after that he dies. The plaintiffs wish to have the medical records admitted and satisfy all of the FRE 803(6) requirements. AB objects the statement is hearsay. How should the judge rule and why?
Business records ok to have person who wrote it down not have personal knowledge; only person who originated document needs to have personal knowledge
One of the civil plaintiffs is Clark Brothers Mfg., a small family run business located across the street from the AB railroad siding. Clark Brothers makes cases used by musicians to transport instruments between concert sites. The explosions caused extensive damage to the Clark Brothers facility, resulting in them closing for 4 months for repairs. To show their losses, Clark Brothers introduces their business accounting. AB objects that the records are hearsay. What must Clark Brothers show to allow the records to be introduced?
Records are day to day; regular activities of the office; records made recently; information has to come from person with knowledge of accounting of the business (803(6))
Know the 4 questions
Show was not prepared in anticipation for litigation
One of the Clark Brothers employees warns AB that Clark Brothers has been cooking the books for years to fool the bank into giving them larger loans. The books are artificially inflated by treating certain expenses as having been forgiven. A real set of books is secretly kept. The employee is willing to testify and to produce the real books. The employee is an office mailroom clerk who cannot testify as a custodian or as a person with knowledge. He learned of the books during an affair with the secretary to the head of Clark Brothers.
a. How can AB make the real books admissible?
Real books would be admissible; statement by a party opponent; Document remains statement of party opponent
