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Hearsay—Excited Utterances Must “Relate to the Startling Event or Condition”

July 5, 2011

One of my students raised an interesting point today about United States v. Marrowbone, 211 F.3d 452 (8th Cir. 2000) which warrants a brief discussion.  In Marrowbone, the young victim told his mother he had gotten drunk, and then was raped by the defendant.  His mother called the police asking that her son be arrested for unlawful intoxication.  When the police did not show for two hours, she again called and made the same request, saying nothing to the police about the rape.  When the police finally arrived and took the young victim into custody for intoxication, he made statements to an officer about the rape.  The trial judge allowed the officer to testify as to the victim’s statements, ruling the statements were excited utterances. 

The Eighth Circuit reversed, holding the statements, which were made more than three hours after the rape, did not meet the second element we discussed before, “the statement [must] be made before there is an opportunity to contrive or misrepresent.”  United States v. Beverly, 369 F.3d 516, 540 (6th Cir. 2004).  The court went on to explain that the victim had a particular “reason to fabricate because making a charge of molestation might enable him to avoid a night in jail for being intoxicated.”  The student’s comment in class today follows up on this point made by the Marrowbone court.  The comment was that perhaps the young victim’s statement was made under the stress caused by being arrested and having to spend a night in jail, not under the stress caused by the rape.  The comment points out an element of the foundation for the admission of an excited utterance that often is overlooked, one not mentioned by the Sixth Circuit in Beverly.  As the rule clearly states, the statement must be one “relating to a startling event or condition,” meaning the subject matter of the statement must relate to the event or condition that caused the stress, not some unrelated event.

So, let’s consider another version of the elements for the admissibility of an excited utterance, this one from Miller v. Keating, 754 F.2d 507 (3d Cir. 1985) (Our Book at 729).  The Miller court called the elements “the established case law requirements for admission of a statement under Fed. R. Evid. 803(2),” and then said:

Wigmore defines these requirements as: (1) a startling occasion, (2) a statement relating to the circumstances of the startling occasion, (3) a declarant who appears to have had opportunity to observe personally the events, and (4) a statement made before there has been time to reflect and fabricate.

This also gives us a chance to think about another point.  While the startling event must be one to which the statement is related, the startling event need not be the crime or event out of which the litigation arises.  This is shown by the facts of Beverly itself.  The startling event was Mrs. Parks seeing a photo of her husband robbing a bank four years earlier.  Her statement, however, was one “relating to [the] startling event” of seeing the photograph.  Beverly was discussed in the “Oh, my God” blog on July 3.

Hearsay—The Business Records Exception

July 5, 2011

Lawyers and Judges often refer to the hearsay exception found in Rule 803(6) as the “business records exception.”  It’s real name, however, is “Records of regularly conducted activity.”  Let’s look at what the rule says:

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6) Records of regularly conducted activity.  A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Names aside, the admissibility of any record is determined by whether it meets the elements set forth in the Rule.  As we have discussed, the elements of the foundation of a hearsay exception can be formulated differently by different people and still be consistent with the rule.  Here is what the Tenth Circuit has to say about the elements:

To satisfy Rule 803(6) the inventory records must (1) have been prepared in the normal course of business; (2) have been made at or near the time of the events recorded; (3) be based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) indicate the sources, methods and circumstances by which the record was made were trustworthy.  (citation omitted).  The proponent of the document must also lay this foundation for its admission.

United States v. Ary, 518 F.3d 775, 785 (10th Cir. 2008).

The important point is that the listing of elements tracks the language of the rule.  In an outline I prepared for a previous class, I listed the elements as follows:

(1) A memorandum, report, record, etc.; (2) Of acts, events, conditions, opinions, or diagnoses; (3) Made at or near the time; (4) Made by, or from information transmitted by, a person with knowledge; (5) If kept in the course of a regularly conducted business activity; (6) If it was their regular practice to do so; (7) All as shown by the testimony of the custodian or other qualified witness, or by certification under Rule 902(11) or (12); (8) Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

It’s absolutely no accident that my listing of the elements tracks the rule almost perfectly.  Remember how many times I stop in the middle of a discussion of a point of evidence and make us all pull out our rule book?  Do that on the exam, and in court, and you’ll help yourself!

Let’s see what Our Book says about the business records exception.  The primary case discussed is United States v. Vigneau, 187 F.3d 70 (1st Cir. 1999).  As we think about Vigneau, let’s remember the structure of evidence, and how we even get to the question of whether the documents meet the elements of Rule 803(6). 

Is it relevant?

The Vigneau brothers were charged with selling drugs.  The government’s theory was that Richard Crandall would ship drugs from Texas to Patrick Vigneau in the northeast, and Patrick would wire money back to Richard in Texas via Western Union.  In order to prove that Patrick was the one who wired the money to Richard, the government sought to introduce 21 Western Union “To Send Money” forms, each of which listed “Patrick Vigneau” as the sender.  The court explained the context in which these forms were used.  A customer wishing to send money would fill out the left side of the form, “writing (1) the sender’s name, address and telephone number; (2) the amount of the transfer; and (3) the intended recipient’s name and location.”  It fit the government’s theory nicely; someone named Patrick Vigneau sent money on 21 occasions to a drug dealer in Texas.  Patrick Vigneau is the defendant … it’s relevant!

What is it?

Well, it really is a form on which someone wrote the name “Patrick Vigneau.”  The government argued that meant the sender was in fact Patrick.  The defense, following our “small steps,” argued:

  1. the words of the statement are “Patrick Vigneau”
  2. the government claims the matter asserted in those words is “I am Patrick Vigneau”
  3. the government’s case depends on the truth that the sender was Patrick Vigneau
  4. the statement is offered to prove that the person who filled out the “To Send Money” forms was Patrick Vigneau
  5. the statement meets the definition of hearsay under Rule 801(c) because it is an out of court statement offered to prove the truth of the matter asserted in the statement

The court agreed and stated:

Whoever wrote the name “Patrick Vigneau” on the “To Send Money” forms was stating in substance: “I am Patrick Vigneau and this is my address and telephone number.”

The court ruled the forms were hearsay.

How can we get it in anyway?

Since the forms were offered to prove the truth of the statements in them, and therefore excluded by Rule 802, the court then considered whether the statements fit into any exception to the hearsay rule.  The court first considered whether the statements were admissions under Rule 801(d)(2).  Interestingly, the court treated “admissions” just like an exception: 

Of course, if there were independent evidence that the writer was Patrick Vigneau, the statements would constitute party-opponent admissions and would fall within an exception to the rule against hearsay, Fed. R. Evid. 801(d)(2) (the rule says admissions are “not hearsay,” but that is an academic refinement).

The crux of the Vigneau opinion is the court’s discussion of the foundation for the admissibility of a document under the business records exception in Rule 803(6).  Here’s a challenge for our discussion on Tuesday:

What is the court’s ruling, and which element of the foundation did the court find the government failed to meet?

We’ll leave Vigneau alone until we have had a chance to discuss it in class.  For now, let’s look at a few of the elements of the foundation required for Rule 803(6):

Who is a proper “custodian or other qualified witness” to lay this foundation?

First of all, you might not even need a witness if you can use Rule 902(11) or (12) to get the document self-authenticated.  Here’s the text of Rule 902(11):

Rule 902. Self-authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(11) Certified domestic records of regularly conducted activity.  The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian  or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

Our Book explains what this means on page 770-71 in the carry-over paragraph.  We’ll talk more about that in class too.

If you do need a witness, who does it have to be?  Our Book quotes the Seventh Circuit on page 770.  I went to the opinion itself and expanded the quote:

A qualified witness is not required, however, to have “personally participated in or observed the creation of the document,” United States v. Moore, 791 F.2d 566, 574 (7th Cir. 1986), or know who actually recorded the information, United States v. Dominguez, 835 F.2d 694, 698 (7th Cir. 1987). We broadly interpret the term “qualified witness” as requiring only someone who understands the system used. Moore, 791 F.2d at 574-75. “The witness ‘need only be someone with knowledge of the procedure governing the creation and maintenance of the type of records sought to be admitted.’ ” Dominguez, 835 F.2d at 698 (quoting United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985), cert. denied, 476 U.S. 1183 (1986)); United States v. Wables,731 F.2d 440, 449 (7th Cir. 1984).

Although this court has not previously examined whether a law enforcement agent may act as a “qualified witness” in this context, we and other circuits have liberally interpreted the term “qualified witness” under Rule 803(6).

United States v. Franco, 874 F.2d 1136, 1139 (7th Cir. 1989).

Personal Knowledge?

What does Rule 803(6) mean when it says “… a person with knowledge … ?”  Keep this very simple, the “personal knowledge” requirement applies to the person who records the data in the record, not to the “custodian or other qualified witness” who testifies to the elements of the foundation.  This comes up in Vigneau, which we’ll discuss more later.

What about trustworthiness?

The rule says:

… unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

This passage gives lawyers a chance to make creative arguments, and calls on the trial judge to use discretion.  The indication of a lack of trustworthiness most often discussed is that the document was prepared in anticipation of litigation.  In this situation, there might just be a hard and fast rule.  In United States v. Blackburn, 992 F.2d 666, 670 (4th Cir. 1993), the Fourth Circuit applied “the well-established rule that documents made in anticipation of litigation are inadmissible under the business records exception.”  The Fourth Circuit again discussed the trustworthiness of documents prepared in anticipation of litigation in Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 204-05 (4th Cir. 2000):

Sinkovich also argues that the district court abused its discretion by admitting Geary’s investigative report of the accident as a business record under Fed.R.Evid. 803(6). Sinkovich maintains that Geary’s incident report lacks the requisite indicia of reliability and trustworthiness that are necessary for the business record exception to apply because the report was not made in the ordinary course of business, but instead, it was compiled with an eye towards litigation.

Reports and documents prepared in the ordinary course of business are generally presumed to be reliable and trustworthy for two reasons: “First, businesses depend on such records to conduct their own affairs; accordingly, the employees who generate them have a strong motive to be accurate and none to be deceitful. Second, routine and habitual patterns of creation lend reliability to business records.” United States v. Blackburn, 992 F.2d 666, 670 (7th Cir.1993) (citing United States v. Rich, 580 F.2d 929, 938 (9th Cir.1978)). The absence of trustworthiness is clear, however, when a report is prepared in the anticipation of litigation because the document is not for the systematic conduct and operations of the enterprise but for the primary purpose of litigating. As Blackburn, 992 F.2d at 670, points out, the Advisory Committee’s notes in § 803(6) provide in terms: “[a]bsence of routine raises lack of motivation to be accurate.” See also Palmer v. Hoffman, 318 U.S. 109, 114 (1943);  Scheerer v. Hardee’s Food Sys. Inc., 92 F.3d 702, 706-07 (8th Cir.1996) (stating that a report lacks trustworthiness because it was made with knowledge that incident could result in litigation).

The Certain Underwriters panel, which included Judge Wilkins and my former boss United States District Judge G. Ross Anderson, Jr., sitting by designation, said the facts of the case

… illustrate the often-quoted words of Judge Jerome Frank, in Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir.1942), that such documents prepared specifically for use in litigation are “dripping with motivations to misrepresent.”

I’m not sure when this gets posted, but I am writing it on the morning of July 4, and it’s time to go celebrate our Independence!  Enough Blogging for now!

Hearsay—Present Sense Impression

July 4, 2011

We’ll start with the Rule, and then ask, and perhaps even answer, a few important questions.

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

What are the elements of the foundation?

The following statement is representative of what most courts say are the elements of the foundation for a present sense impression:

There are three principal requirements which must be met before hearsay evidence may be admitted as a present sense impression: (1) the declarant must have personally perceived the event described; (2) the declaration must be an explanation or description of the event rather than a narration; and (3) the declaration and the event described must be contemporaneous.

United States v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998).

What is “contemporaneous?”

“Contemporaneous” is short for the language in the rule “while the declarant was perceiving the event or condition, or immediately thereafter.”  It’s easy to know what it means to make a statement “while … perceiving the event,” but what does it mean to say “immediately thereafter?”  It means a very short period of time, measured in terms of minutes, if not seconds.  Our Book cites a case saying 15 to 45 minutes is too long (Hilyer v. Howat Concrete Co., 578 F.2d 422 (D.C. Cir. 1978)), and I’ll cite a case saying less than a minute is quick enough (United States v. Davis, 577 F.3d 660, 668 (6th Cir. 2009)), but what does that tell us?  What happens if it’s in the middle?  Here is a discussion from a recent opinion of the Third Circuit:

The fundamental premise behind this hearsay exception “is that substantial contemporaneity of event and statement minimizes unreliability due to [the declarant’s] defective recollection or conscious fabrication.”  …  “The idea of immediacy lies at the heart of the exception,” thus, the time requirement underlying the exception “is strict because it is the factor that assures trustworthiness.”  …  Put differently, the temporality requirement must be rigorous because the passage of time-or the lack thereof-is the effective proxy for the reliability of the substance of the declaration; hence the greater the passage of time, the less truthworthy the statement is presumed to be, and the more the scales should tip toward inadmissibility.  [United States v.] Manfre,368 F.3d [832,] 840 [(8th Cir. 2004)] (“The opportunity for strategic modification undercuts the reliability that spontaneity insures.”). Nevertheless, some brief temporal lapse is permissible so as to accommodate “the human realities that the condition or event may happen so fast that the words do not quite keep pace.”  … ; Fed.R.Evid. 803(1) Adv. Comm. Notes (1975) (“[w]ith respect to the time element, [803(1)] recognizes that in many, if not most, instances precise contemporaneity is not possible and hence a slight lapse is allowable”).

While it is true, as the Government notes, that courts have not adopted any bright-line rule as to when a lapse of time becomes too lengthy to preclude Rule 803(1)’s application, we are nevertheless unaware of any legal authority for the proposition that 50 minutes after the fact may appropriately be considered “immediately thereafter.” On the contrary, given the clear language of the rule and its underlying rationale, courts consistently require substantial contemporaneity. See, e.g., United States v. Shoup, 476 F.3d 38, 42 (1st Cir.2007) (911 phone call made “only one or two minutes … immediately following” event admissible); United States v. Danford, 435 F.3d 682, 687 (7th Cir.2006) (statement made “less than 60 seconds” after witnessing robbery qualified as present-sense impression); United States v. Jackson, 124 F.3d 607, 618 (4th Cir.1997) (statement by witness to police upon their arrival at scene that defendant was threatening to kill her family was admissible as “description of ongoing events”); [United States v.] Blakey, 607 F.2d at 779, 785-86 [(7th Cir. 1979)] (not error to admit statement made at most 23 minutes after event); cf. Manfre, 368 F.3d at 840 (statement made after “an intervening walk or drive” following event not admissible; “The present-sense-impression exception … is rightfully limited to statements made while a declarant perceives an event or immediately thereafter, and we decline to expand it to cover a declarant’s relatively recent memories.”); . Indeed, we have previously expressed skepticism that a statement made some 40 minutes after the fact could be properly admitted as a present-sense impression. Mitchell, 145 F.3d at 577 (where robbery occurred between 9:00am and 9:15am and notes were found in getaway car a mile from the crime scene at approximately 10:00am, intervening lapse was “probably too long for applicability of the present-sense impression[,] … which requires the statement to be made virtually contemporaneously with the event being perceived”); … .

United States v. Green, 556 F.3d 151, 155-57 (3d Cir. 2009).

So, “what is ‘contemporaneous’?”  As usual, it’s discretionary!  Make an argument in terms of “spontaneity” (another look at the Advisory Committee Notes for reference) and the language used in the cases cited by the Third Circuit, keeping in mind the distinction between perception and recent memory in Manfre, and your argument will be a winner!

Give me Some Examples!

What type situation gives rise to a present sense impression?  We saw some from the discussion above, like 911 calls (Shoup), statements about crimes that just occurred (Danford), and statements about ongoing situations (Jackson).  What about note taking?  If someone takes notes during a conversation, can those notes be admissible under Rule 803(1) to prove the truth of what the note taker wrote?  Can such a conversation be an “event” under the rule?  What if the conversation is adversarial, and in anticipation of litigation?  Under that circumstance, would allowing the notes be consistent with the requirement of “spontaneity” and the goal of preventing “conscious fabrication?”  In Tracinda Corp. v. DaimlerChrysler AG, 362 F. Supp. 2d 487, 501-02 (D. Del. 2005), the court allowed into evidence the notes of an employee of the plaintiff from a meeting with the defendants in anticipation of litigation.  Think about this, and think about some argument that the notes do not meet the elements of the foundation for Rule 803(1). 

Now you help me! 

Think of an example of some contemporaneous account of an event that you have seen which would qualify as a present sense impression, and share it with me in class on Tuesday.

Hearsay—“Oh My God!” it’s an Excited Utterance

July 3, 2011

As always, we start with the text of the rule:

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

To study the foundation for the admissibility of an excited utterance, let’s consider United States v. Beverly, 369 F.3d 516 (6th Cir. 2004).  Johnny Crocket was one of three men on trial for bank robbery.  The following passage from the opinion describes the facts, and shows how the government was able to lay the foundation for the admissibility of excited utterances under Rule 803(2):

Following Crockett’s arrest in July 1999, FBI Agent Trombitas went to Crockett’s home in order to interview Crockett’s wife, Mrs. Parks. Trombitas first informed Mrs. Parks that her husband had been arrested earlier in the day for his involvement in several bank robberies. Agent Trombitas then showed her a photograph that was taken during the bank robbery at the Security National Bank, which occurred on May 18, 1995, approximately two years before Crockett and Mrs. Parks were married, but nevertheless during their acquaintance. Mrs. Parks identified the man that Trombitas pointed to in the photograph as her husband.

The government sought to admit this pretrial identification at trial and Crockett filed a motion to suppress. As a result, Judge Graham held a pretrial hearing on the admissibility of Mrs. Parks’s identification. At the pretrial hearing, Trombitas testified as to the circumstances under which the identification was made. Trombitas explained that he took out the photograph, placed it in front of her and asked, “do you recognize that person there?” According to Trombitas, Mrs. Parks picked up the photograph, and with one hand on her mouth, said “oh, my God, that looks like Johnny.” At that point, Trombitas noticed her eyes tearing up and asked her to reaffirm the identification, saying: “so that looks like Johnny?” Ibid. Mrs. Parks responded “yes, it does, it’s him, and I’m not going to lie for him.” Ibid. At this point, Mrs. Parks began to cry. Upon Trombitas’s request, Mrs. Parks turned over the photograph and placed her name, the date, and Crockett’s name on the back of the photograph. Judge Graham ruled that, based upon the totality of the circumstances, the photographic identification procedure was sufficiently reliable to permit the witness to testify.

The Sixth Circuit analyzed the admissibility of the statements in terms of the elements of the foundation:

The district court separately analyzed the question of whether Agent Trombitas would be allowed to testify about the statements made by Mrs. Parks during his interview, in which she identified Crockett as one of the men in the bank surveillance photo. It is undisputed that Trombitas’s testimony with regard to Mrs. Parks’s identification of Crockett was hearsay; what is disputed is whether the comments were “excited utterances” and therefore within an exception to the hearsay rule. Federal Rule of Evidence 803(2) provides that “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is not barred by the hearsay rule. The excited utterance rule requires that 1) there be an event startling enough to cause nervous excitement; 2) the statement be made before there is an opportunity to contrive or misrepresent; and 3) the statement be made while the person in under the stress of the excitement caused by the event.

369 F.3d at 539-40.

Discussing whether this second element was satisfied, the Sixth Circuit noted the words “oh, my God,” indicate the statement was made “before she could have had an opportunity to ‘contrive or misrepresent.’”  The “oh, my God,” preface to any comment indicates spontaneity, which is what the Advisory Committee says is at the core of the exception:

The theory of Exception [paragraph] (2) is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. 6 Wigmore § 1747, p. 135. Spontaneity is the key factor … .

The elements of the foundation for an excited utterance are described slightly differently under the South Carolina Rules of Evidence.  In State v. Ladner, 373 S.C. 103, 644 S.E.2d 684 (2007), our supreme court examined Rule 803(2) to determine the elements:

Looking at the rule, there are three elements that must be met to find a statement to be an excited utterance: (1) the statement must relate to a startling event or condition; (2) the statement must have been made while the declarant was under the stress of excitement; and (3) the stress of excitement must be caused by the startling event or condition.

373 S.C. at 116, 644 S.E.2d at 691.

In State v. Washington, 379 S.C. 120, 665 S.E.2d 602 (2008), our supreme court applied those three elements as including a “spontaneity” requirement.  The State claimed a statement given by a murder witness was admissible as an excited utterance.  The court held the State failed to satisfy the elements of the foundation, and the statement should not have been admitted.

Cropper’s statement to police does not qualify as excited utterance. Cropper made her statements in a formal interview with law enforcement at police headquarters almost ninety minutes after the events. These statements were made in response to the Officer’s questions. None of the statements were independent assertions or exclamations regarding the events. Indeed, it is apparent that the Officer was seeking detailed answers regarding the specific facts of the incident as opposed to emotional, unprompted, or inherent responses.  …  While we have no doubt that Cropper was certainly upset as a result of the stabbing, the trial court’s finding that statements made in a formal interview or interrogation to be excited utterances greatly expands the scope of the exception.

We note that this Court has found statements made to law enforcement qualify as an excited utterance under other circumstances. See Burdette; Harrison, Quillien, … . However, an important distinction between Burdette, Harrison, and Quillien and the instant case is the fact that Cropper’s statements were responses made in a formal police interview. In this way, Cropper’s out-of-court statements are fundamentally different from the off-the-cuff, volunteered responses to law enforcement that the Court has allowed under the excited utterance exception. See State v. McHoney, 344 S.C. 85, 94, 544 S.E.2d 30, 34 (2001) (observing that an excited utterance expresses the real belief of the speaker because the utterance is made under the immediate and uncontrolled domination of the senses, rather than under reason and reflection).

379 S.C. at 124-25, 665 S.E.2d at 604.

The admissibility of hearsay statements as exceptions to Rule 802 depends on whether the proponent can lay the foundation, and whether the opponent can defeat the foundation.  The elements of the foundation can be described differently and both descriptions be correct, as we see comparing Beverly to Ladner and Washington.  In any event, examining the existence of those elements is critical to admissibility.  We’re going to focus on “elements of foundation” for the rest of the summer, and you will do well to bring that focus to the exam.

The Importance of the Advisory Committee Notes

June 30, 2011

Well, the blogging has been slow, but get ready for much more soon.  Here’s a little tidbit to help us understand the Federal Rules of Evidence:

Read the Advisory Committee Notes!

In one of our reading selections for today, Tome v. United States, 513 U.S. 150 (1995), the Supreme Court tells us why:

Our conclusion that Rule 801(d)(1)(B) embodies the common-law premotive requirement is confirmed by an examination of the Advisory Committee’s Notes to the Federal Rules of Evidence. We have relied on those well-considered Notes as a useful guide in ascertaining the meaning of the Rules.  (citations omitted).  Where, as with Rule 801(d)(1)(B), “Congress did not amend the Advisory Committee’s draft in any way … the Committee’s commentary is particularly relevant in determining the meaning of the document Congress enacted.”  (citation omitted).  The Notes are also a respected source of scholarly commentary. Professor Cleary was a distinguished commentator on the law of evidence, and he and members of the Committee consulted and considered the views, criticisms, and suggestions of the academic community in preparing the Notes.

513 U.S. at 160.

As you prepare for the exam, and for the evidence struggles you will face throughout your career, study these Notes for a deeper comprehension of the Rules, and a better chance to win.  Remember that you can access the Notes on the Cornell University Law School website, which maintains a current version of the Rules with a link to the applicable Note at the end of each rule. 

If you want to learn more about the Advisory Committee, read Federal Rules of Evidence Advisory Committee: A Short History of Too Little Consequence, 191 F.R.D. 678 (2000).

An Introduction to the Admissibility of Expert Opinion

June 23, 2011

We have talked repeatedly about July 1, 1975 as the date the Federal Rules were adopted.  So, because of that watershed event, hardly anything that happened before then remains particularly important to the modern practicing trial lawyer who wants to do what trial lawyers do: win cases.  On the other hand, much of what happened before that date remains important to law professors and other academics who don’t have to argue and win evidence struggles in a courtroom.  (There is an interesting passage about this in Daubert.)  Happily, we have an exception with expert testimony; one that will help us to understand what the law currently says about the “foundation” for the admissibility of expert opinion. 

Until 1993 when the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 585 (1993), no court had definitively explained the role of Rule 702 in the admissibility of expert opinion.  Until then, most courts used as the test for admissibility of expert opinion the rule set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  There are two interesting things about the “Frye test” that inform modern trial lawyers on how to introduce expert opinion, and also how to oppose its admission.  First, an analysis of Frye tells us that the central issue regarding the admissibility of expert opinion has not changed since 1923.  While there are three elements to the “foundation” for expert opinion, it often really boils down to the reliability of the underlying principles and methods the expert used in arriving at the opinion (knowledge) to be presented to the jury in the trial.  Second, the way the court expressed its rule is simply awesome!  The Frye rule is called the “general acceptance” test, and though it is no longer applied in trials, it helps us to understand the modern requirement of reliability. 

James Alphonso Frye was charged with murder.  At his trial in the District of Columbia in the early 1920’s, he offered into evidence the testimony of an expert witness who would testify that Frye was telling the truth when he denied guilt.  As it does now in almost every challenge to the admissibility of an expert’s opinion, the admissibility of the opinion came down to reliability.  Let’s look at it as two questions:

  1. How did the expert arrive at this opinion?
  2. Was this method sufficiently reliable that the opinion should be allowed into evidence?

The D.C. Circuit explained all this in compelling terms.  As to the first question, the answer was that the expert used a lie detector test.  The court stated:

In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant.  The test is described as the systolic blood pressure deception test.  It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system.  Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject’s mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.

293 F. at 1013-14. 

The court then focused in on the question we still find most important even today under the Federal Rules of Evidence: the reliability of the method used by the expert.  Discussing the challenge of distinguishing between an acceptable level of reliability and something too speculative, the court stated:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define.  Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs

293 F. at 1014 (quoted as an “infamous passage,” and emphasis added, in Daubert, 509 U.S. at 585-86).

In 1923, as today, the inquiry into the admissibility of expert opinion included reliability: “the thing from which the deduction is made,” meaning the principles and methods the expert used in arriving at the opinion to which he is now proposing to testify, must have been reliable as measured by “general acceptance” in the applicable field of study.  However, the Daubert Court held the “austere standard” of Frye was too “rigid” a test for measuring reliability, and ruled that “the Frye test was superseded by the adoption of Federal Rules of Evidence.”  The Court held, nevertheless, that reliability remained a focus for determining the admissibility of expert opinion.  The Court then applied the requirement of reliability in the context of Rule 702, and left us with three elements for the foundation for the admissibility of expert opinion:

  • The expert must be qualified
  • The opinion must assist the trier of fact
  • The principles and methods [way the expert went about … ] the expert used in reaching the opinion must be reliable

Since then, Rule 702 has been amended to set forth three subelements related to reliability.  Here’s the text of the rule:

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The Concept of “Foundation”

June 21, 2011

“Foundation” is one of the central concepts of the art of evidence.  In order to understand this critical concept, let’s go back to the starting point for all evidence analysis:

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided … by these rules … . Evidence which is not relevant is not admissible.

If evidence is determined to be relevant, then an experienced trial lawyer next analyzes whether there are any other evidentiary issues associated with the evidence.  This is the “what is it?” question I called “the second level of authentication.”  No matter what we call it, it’s the next thing a trial lawyer or judge does, after considering relevance, in analyzing the admissibility of a piece of evidence.  If this next step leads to an argument that the evidence should be excluded, and if that lawyer makes the argument well enough, then the judge might be inclined to keep the evidence out.

But the judge can’t exclude it just yet!  Whenever there is a rule excluding relevant evidence, the rule almost always allows the possibility of the evidence being admitted despite the rule.  We talked about this in “Thinking Through the Structure of Evidence.”  For example, if an out of court statement meets the definition of hearsay under Rule 801(c), then Rule 802 excludes it.  But, three are twenty-nine exceptions to the rule against hearsay, so that if one of them applies the statement can still come in.  This gives rise to a third question: what has to happen in order for a trial lawyer to get the judge to admit the evidence?  The answer is:

The lawyer must lay the foundation!

What is that?  In general, laying the foundation for the admissibility of evidence means to do whatever is necessary to get the trial judge to admit the evidence.  In some situations, laying the foundation for evidence may involve demonstrating that it’s relevant.  Sometimes the evidence must be authenticated as an element of its foundation.  Many times, the task to be accomplished in laying the foundation is to avoid the exclusionary effect of some rule such as the hearsay rule.  We’ve talked a lot about relevance and a little about authentication, and we’ll talk more later about each later.  For now, let’s talk about “foundation” in terms of avoiding the exclusionary effect of some rule. 

Foundation for Hearsay Exceptions

Since we started with hearsay, let’s keep going.  Recently we discussed a hypothetical automobile accident at the corner of Meeting Street and Mary Street, just outside the law school building.  One of you was on the sidewalk enjoying a break from class and heard a crash, and then you heard some bystander exclaim: “the blue car ran the red light!”  The lawyer representing the driver of the green car calls you to the stand at trial and asks “did you hear anyone say anything, and if so what did the person say?” 

The lawyer for the driver of the blue car makes an objection.  We analyze the problem like this:

Is it relevant?  We know the answer is going to be a statement about who ran the red light, so we can easily see the evidence is relevant. 

What is it?  The objection is that it is an out of court statement offered to prove the truth of the matter asserted, and thus excluded by the rule against hearsay.  In analyzing whether it is hearsay, we examine the statement, consider the words, and determine what is asserted in the statement.  We then look to see whether the statement is offered to prove the truth of what is asserted in the statement.  The assertion is that the blue car ran the red light.  Since it is offered in evidence by the driver of the green car to prove that the blue car ran the red light, it is offered to prove the truth of the matter asserted, and Rule 802 excludes it. 

Can we get it in anyway?  The lawyer for the driver of the green car argues the “excited utterance” exception found in Rule 803(2) applies.  In order to get the statement admitted into evidence using the excited utterance exception, the lawyer must lay the foundation for that exception, which is:

Foundation for 803(2)—Excited Utterance

  • Statement relates to a startling event or condition
  • Declarant was still under the stress of excitement caused by the startling event or condition

In some other scenario, a party might offer the testimony of a doctor or nurse that a patient made a statement.  Even though that statement is offered to prove the truth of what the patient said, it may be admissible under the “statements for purposes of medical diagnosis or treatment” exception found in Rule 803(4).  Like all exceptions, with some variability from court to court as to its elements, the exception has a foundation which must be established in order to get the statement admitted into evidence:

Foundation for 803(4)—Statements  for purposes of medical diagnosis or treatment

  • Statement made for the purpose of
  • Medical diagnosis or treatment
  • Declarant had personal knowledge of what is asserted in the statement
  • Statement is describing medical history; or past or present symptoms, pain, sensations; or Inception or general character of the cause or external source thereof
  • Insofar as reasonably pertinent to diagnosis or treatment

Foundation for Expert Opinion

In the next class we begin covering experts.  As we stated earlier in the “why” blog, the foundation for the admissibility of an expert’s opinion is:

  • The expert must be qualified
  • The opinion must assist the trier of fact
  • The science the expert used in reaching the opinion must be reliable. 

In order to admit an expert opinion into evidence, the proponent of the opinion must establish these three elements of the foundation.  We’ll cover that foundation in much more detail shortly. 

The point here is to understand the role of foundation in the admissibility of evidence.  For the next few weeks, we are going to be discussing how to understand and prove the foundation for numerous pieces of evidence.