Evidence Outline - Professor Tilly - Campbell Law - Part 10

Standard is really “a reasonable person wouldn’t have made the statement unless it were true”

• Can extend to a statement made to a friend, cellmate, former wife or family member

“Against interest” does not extend to social interests

• I.E. – Cam Newton’s dumbass statement is really only about social harm
• Has to be pretty severe when rendering a claim invalid
  • I.E. – undermines entire claim

Williams v. United States, W gives confession to drug dealing scheme which implicated D to conspiracy but later W becomes unavailable.

• Pushing blame on someone else is not “self-inculpatory” is neutral at best→ doesn’t get in under this rule
  • (this statement wouldn’t have gotten in under Crawford anyways)
• But- you can still implicate someone else and it qualifies as a statement against interest, just not if you’re only being a snitch like this dude
  • I.E. – telling the boys you and your roommate just killed a man is way different than telling the cops someone was in on it with you

Sara and her twin brother Ben both worked for the family business. Millions of dollars disappeared from the business, and the twins’ father concluded that Ben had taken the money. Ben was fired, and the government prosecuted him for embezzlement. Shortly before Ben’s trial, police found Sara’s dead body in a park. A suicide note in Sara’s pocket read, “I can no longer live with what I have done. I have stolen millions from the family business, and my brother has been falsely accused. Now the entire family faces financial ruin because of me. The only way out is to take my life. I’m sorry. Sara”

• Q: Can Ben introduce Sara’s note at his embezzlement trial?
• No, criminal case → need corroborating circumstances
  • (wouldn’t be dying declaration b/c not homicide prosecution)

FRE 807. The Residual Exception (availability doesn’t matter)

(a) In General. Under the following circumstances, a hearsay statement is not exclude by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

1. the statement has equivalent circumstantial guarantees of trustworthiness;
2. it is offered as evidence of a material fact;
3. it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
4. admitting it will best serve the purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarants’ name and address, so that the party has a fair opportunity to meet it.

Summary of Requirements:

1. Equivalent circumstantial guarantees of trustworthiness as the 803 and 804(b) exceptions.
2. More probative than other evidence reasonably available.
3. Notice given to adverse party.
   1. Statement is evidence of a material fact.
   2. General purpose of rules and interests of justice will be served by admitting the statement

Sparingly used--going straight here is just poor lawyering

• Prosecutors are far more successful with this exception (because they are shitty lawyers)
  • But- remember constitutional rights implicated (I.E. – Chambers v. MS)

Factors of trustworthiness

• Oath
• Relationship
• Recantation
• Corroboration
• Bias/motive
• Inconsistency

803(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

1. The statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
2. the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

• Used to bring in other information with an expert witness

803(21) Reputation Concerning Character: A reputation among a person’s associates OR in the community concerning the person’s character (see rule 405(a), 608(a))

803(22) Judgment of a Previous Conviction: Evidence of a final judgment of conviction if: (see Rule 609)

1. the judgment was entered after at trial or guilty plea, but not a nolo contendere plea;
2. the judgment was for a crime punishable by death or imprisonment for more than a year (felony);
3. the evidence is admitted to prove any fact essential to the judgment; and
4. If offered by the prosecutor in a criminal case for a purpose other than impeachment (I.E. – not Rule 609), the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect admissibility.