Evidence Flashcards
(14 cards)
Summary
The judge should permit the bartender to testify quoting the owner’s out-of-court statement, “I know it’s risky, but I’ll do whatever it takes to get back some money from this lousy restaurant.” Assuming this out-of-court statement is offered by the prosecutor to prove the truth of the matter asserted in the statement (i.e., that the owner was seeking a way to recover money from his failing restaurant business), the owner’s statement does not raise hearsay concerns for two independent reasons. First, it is an “opposing party’s statement.” Second, it is a statement of the declarant’s intent and is admissible under the hearsay exception for “the declarant’s then-existing state of mind.”
The judge should also permit the bartender to repeat the waiter’s out-of-court statement, “Count me in on your plan to burn down the restaurant. I’ve recently done that sort of thing and haven’t been caught.” While this statement is hearsay if offered to prove the truth of the matter asserted, it is admissible under the hearsay exception for “statements against interest.” Alternatively, the statement could be offered for the non hearsay purpose of showing its effect on the owner’s state of mind (i.e., confirming the owner’s idea of committing arson).
The judge should exclude the arson investigation report because it is hearsay. The report is not admissible under the hearsay exception for records of a public office. Although the report contains both “matter[s] observed by law-enforcement personnel” and “factual findings from a legally authorized investigation,” the exception does not apply because the report is being offered against the accused by a prosecutor in a criminal case.
The judge should also exclude the arson investigation report because its admission would violate the owner’s confrontation clause rights under the Sixth Amendment to the Constitution. The arson investigation report is a formalized testimonial statement by a police department witness who is unavailable to testify at trial and cannot be cross-examined. Furthermore, the prosecution would not be able to admit the report through the testimony of the out-of-state arson investigator.
The judge should admit the bartender’s relevant testimony repeating the owner’s out-of-court statement either as an opposing party’s statement or under the hearsay exception for statements of a declarant’s then-existing state of mind.
Federal Rule of Evidence 801(c) defines hearsay as an out-of-court statement that is offered to prove the truth of the matter asserted. If the owner’s statement (i.e., “I know it’s risky, but I’ll do whatever it takes to get back some money from this lousy restaurant”) is offered for its truth—to show that the owner was willing to engage in risky behavior to recover money from his failing restaurant business—then the statement is hearsay.
In this case, there is an applicable hearsay exclusion and an applicable hearsay exception. First, Rule 801(d)(2)(A) provides an exclusion to the rule against hearsay for a statement that “is offered against an opposing party” and “was made by the party in an individual or representative capacity.” Importantly, for a statement to be admissible under Rule 801(d)(2)(A), it does not need to be a confession; instead, any relevant statement of an opposing party is admissible against that party. See, e.g., State v. Maturana, 882 P.2d 933, 937 (Ariz. 1994) (recognizing that statements need to be merely relevant, and need not be not full confessions, to be admissible); United States v. Reed, 227 F.3d 763, 769–770 (7th Cir. 2000) (“statements need neither be incriminating, inculpatory, against interest, nor otherwise inherently damaging to the declarant’s case”). The owner’s statement is obviously relevant because it is probative of his criminal intentions.
Application
Because the restaurant owner’s statement is relevant and would be offered against him by the prosecution, it is admissible under Rule 801(d)(2)(A). See also State v. Weaver, 584 S.E.2d 345, 347 (N.C. Ct. App. 2003) (finding that defendant’s reply, “Whatever [the officer] wants, we can do it,” was admissible under Rule 801(d)(2)(A) in a prosecution for bribery).
Then-existing state of mind
Second, Rule 803(3) contains an exception to the rule against hearsay for, among other things, “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan).” In this case, the restaurant owner’s statement that he would do “whatever it takes to get back some money from this lousy restaurant” is clearly evidence of his desperation as well as his motive or intent to set fire to the restaurant to collect insurance money. See, e.g., Horton v. Allen, 370 F.3d 75, 84–85 (1st Cir. 2004) (finding that an accomplice’s statement that he needed money was admissible to prove intent and motive under Rule 803(3)). Therefore, the restaurant owner’s statement is admissible to prove intent and motive under Rule 803(3). See id.
The judge should admit the bartender’s testimony repeating the waiter’s out-of-court statement as a statement against interest or possibly as a coconspirator statement.
The waiter’s statement (“Count me in on your plan to burn down the restaurant. I’ve recently done that sort of thing and haven’t been caught.”) is hearsay if offered by the prosecutor to prove the truth of the matter asserted in the statement (i.e., that the waiter had previously committed a crime “like” arson, had not been caught, and believing that the owner was planning to burn his restaurant, was offering to help). Here, the prosecutor is likely offering the waiter’s statement for its truth.
Even if offered for its truth, the waiter’s statement would be admissible pursuant to Federal Rule of Evidence 804(b)(3)(A), which allows for the admission of hearsay if it is a statement against interest by an “unavailable” declarant.
Application
First, the waiter is unavailable to testify at trial. Under Rule 804(a)(5), a declarant is “unavailable” as a witness if he is “absent from the trial . . . and the statement’s proponent has not been able . . . to procure the declarant’s attendance or testimony.” See United States v. Flenoid, 949 F.2d 970, 972–73 (8th Cir. 1991) (noting that unavailability of a witness can be established by proof of efforts to serve a subpoena at the witness’s last known address or other attempts to locate and contact the witness). Here, the waiter lives overseas, and the court cannot compel his attendance at trial or his testimony.
Statement against interest
Second, the waiter’s out-of-court statement is a “statement against interest.” Under Rule 804(b)(3), a statement against interest is a statement that a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability.
Application
The waiter’s statement is against interest because it exposes him to criminal liability. See United States v. Briscoe, 742 F.2d 842, 847 (5th Cir. 1984) (finding that statement admitting to taking part in an arson was a statement against interest). Both Rule 804(b)(3)(B) and Rule 801(d)(2)(E) (see below) require corroboration. Under Rule 804(b)(3)(B), the statement against interest must be “supported by corroborating circumstances that clearly indicate its trustworthiness.” Here, such evidence exists based on the waiter’s overseas flight “after learning that he was under investigation for arson.” This fact corroborates the trustworthiness of the statement against interest regardless of whether the waiter’s flight was motivated by the investigation for the arson at issue or an investigation of his recent uncharged crime involving the same “sort of thing.”
Coconspirator’s statement
The waiter’s statement might also be admitted as a coconspirator’s statement. However, this argument is not as well supported as the argument that it is a statement against interest. Rule 801(d)(2)(E), requires (1) proof of an extant conspiracy and (2) proof that the statement was made “during and in furtherance of the conspiracy.” In addition, coconspirator statements cannot be admitted if the statement itself is the only evidence establishing “the existence of the conspiracy” or the declarant’s “participation in it.” Courts have typically understood Rule 801(d)(2)(E) to require that prosecutors “must prove independent evidence outside the statements themselves to establish the existence of the conspiracy.” See Bourjaily v. United States, 483 U.S. 171, 176–181 (1987); United States v. Ragland, 555 F.3d 706, 713 (8th Cir. 2009); United States v. Roach, 164 F.3d 403, 409 (8th Cir. 1998). “[A] co-conspirator’s statement, standing alone, is insufficient to meet the preponderance standard of Rule 801(d)(2)(E),” United States v. Sepúlveda, 15 F.3d 1161, 1182 (1993), because the proponent of the statement must introduce “extrinsic evidence . . . sufficient to delineate the conspiracy and corroborate the declarant’s and the defendant’s roles in it.” United States v. Piper, 298 F.3d 47, 52 (1st Cir. 2002). Courts have also addressed the nature and extent of corroborating evidence. See e.g., United States v. Deluna, 38 Fed. Appx. 644 (2d Cir. 2002) (conspiracy corroborated by DEA seizures, passport records, airline records, and phone and pager records); United States v. Petty, 132 F.3d 373, 379–80 (7th Cir. 1997) (because “we require more than the statements of the conspirators themselves to show a conspiracy, . . . [t]his requirement can be satisfied by the testimony of non conspirators or by corroboration of facts contained in the statements of the conspirators”).
Application
Here, the prosecutor would first need to prove the existence of a conspiracy. In addition to the waiter’s statement itself, the only fact that could corroborate the existence of a conspiracy is his subsequent overseas flight “after learning that he was under investigation for arson.” But unlike the corroboration requirement for statements against interest (see above), this fact cannot corroborate the existence of a conspiracy unless the prosecutor can also prove that the waiter’s flight was motivated by the investigation for the crime at issue and not by the waiter’s recent uncharged crime involving the same “sort of thing.” Assuming that a court finds that the waiter’s flight alone is sufficient corroborating evidence of a conspiracy, the prosecutor would then need to prove that the waiter’s statement was made “during and in furtherance of” the conspiracy. Here, there are no facts indicating the owner’s response to the waiter’s statement or any other extrinsic evidence linking the waiter to the alleged arson. The only proof that the statement was made “during and in furtherance of” the conspiracy would be the relatively close timing between the waiter’s early May statement and the June 1 fire, which a court might or might not find sufficient.
If the court were unwilling to admit the waiter’s statement for its truth, the statement could also be admitted for the limited nonhearsay purpose of showing its potential effect upon the owner (confirming the owner’s plan to commit arson and thus making it more likely that he did, in fact, commit the arson).
The judge should exclude the arson investigation report because it is hearsay and there is no applicable exception under which it can be admitted.
The certified arson investigation report is an out-of-court statement prepared by a police arson investigator and would be offered by the prosecutor to prove the truth of the facts asserted in the report. Therefore, it is hearsay under Federal Rule of Evidence 801(a)–(c).
Rule 803(8) creates a hearsay exception for public records that would, under some circumstances, authorize the admission of a report of this nature. The hearsay exception for public records covers reports containing “matter[s] observed by law-enforcement personnel” and “factual findings from a legally authorized investigation.” The rationale for this hearsay exception is that public officials, in crafting such reports, typically act “properly and without bias.” See Fed R. Evid. 803(8) advisory committee’s note (“Justification for the exception is the assumption that a public official will perform his duty properly.”).
Application
Here, although the arson investigation report meets the definition of a public record, it is not admissible under Rule 803(8) because it has been proffered by the prosecutor in a criminal case. Rule 803(8) explicitly does not apply to “matter[s] observed by law-enforcement personnel” or to “factual findings from a legally authorized investigation” when proffered by the prosecutor against the defendant in a criminal case. See United States v. Oates, 560 F.2d 45, 77–78 (2d Cir. 1977) (clarifying that police and evaluative reports are inadmissible against the accused in a criminal trial).
[NOTE: An examinee should not receive credit for arguing that the arson report is admissible under the Rule 803(6) business records exception for hearsay. Although certain public records are also considered business records, and the business records exception does not include a prohibition on the use of law enforcement reports in criminal prosecutions, courts have held that law enforcement reports are nonetheless inadmissible against criminal defendants under the business records exception. See Oates, 560 F.2d at 70–72.]
The judge should exclude the arson investigation report also because its admission would violate the owner’s confrontation clause rights under the Sixth Amendment to the Constitution.
The confrontation clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The Supreme Court has held that “testimonial” statements are inadmissible under the confrontation clause unless the declarant is “unavailable” and the defendant had the prior chance to cross-examine the declarant. See Crawford v. Washington, 541 U.S. 36, 68 (2004). In Crawford, the Court held that
Various formulations of this core class of “testimonial” statements exist: “ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;” extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; . . . statements that 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.
Id. at 51–52 (internal citations omitted).
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009), the Supreme Court concluded that “affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine” were part of this “core class of testimonial statements.” According to the Court, these affidavits contained the substance of the analysis that the analysts would be expected to provide at trial, making such affidavits or certified reports the functional equivalent to testimony. Id.
Application
The same analysis applies here. The arson investigation report contains the substance of the analysis that the police arson investigator would be expected to provide at trial, making it the functional equivalent to testimony under Melendez-Diaz. Because there is no indication that the defense was able to cross-examine the police arson investigator before he died, the report would be inadmissible based upon the confrontation clause. See Crawford, 541 U.S. at 68; Melendez-Diaz, 557 U.S. at 310.
Furthermore, the prosecution would not be able to admit the report through the testimony of the out-of-state arson investigator. In Bullcoming v. New Mexico, 564 U.S. 647, 661–663 (2011), the Supreme Court held that the confrontation clause precluded a prosecutor from introducing a forensic laboratory report through a “surrogate” expert rather than through the expert who created the report. The defendant is entitled to cross-examine the testing expert about his knowledge and the methods he used in performing his analysis. After Bullcoming, “[w]here the State seeks to introduce testimonial statements into evidence through a surrogate, the State must establish that the surrogate has at least some personal knowledge that the declarant’s statements are true or else the statements are constitutionally inadmissible.” Lara v. State, 487 S.W.3d 244, 251 (Tex. App. 2015).
Therefore, the confrontation clause would provide a second basis for precluding the admission of the arson investigation report.
[NOTE: Although not essential to an accurate analysis of the confrontation clause issue presented here, examinees may also correctly note that after Williams v. Illinois, 567 U.S. 50 (2012), the court may also consider that the following facts make it more likely that the arson investigation report is a testimonial statement: (1) the fact that the owner was arrested before the arson investigation occurred, and (2) the fact that the prosecutor specifically sought to have the report admitted in evidence and was not instead seeking to use it solely for the factfinder evaluation of the bases of an expert’s opinion contemplated by Rule 703.]
