How to Get Google Earth Images Admitted for Litigation, by Morgan C. Smith, Cogent Legal
Many attorneys rely on Google Earth as the primary source for finding visual information for specific locations, all over the world, involved in litigation (see my prior post discussing how to use Google Earth for images and obtaining archival images). However, when finding great images, or determining precise locations based on GPS coordinates, the next question is always:
‘How do I get this into evidence?’
This is not an easy question to answer, yet a recent decision by the Ninth Circuit Court of Appeals helps resolve one issue of admissibility for such imagery: Google Earth coordinates are not hearsay. . . .
Court Rules that Automatically Generated Read Receipt is Not Hearsay: eDiscovery Case Law, by Doug Austin, eDiscoverydaily
In Fox v. Leland Volunteer Fire/Rescue Department Inc., 7:12-CV-354-FL. (E.D.N.C. Mar. 10, 2015), North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.
In this wrongful termination case, the court was considering the defendants’ motion for summary judgment, as well as the defendants’ motion to strike certain exhibits attached to plaintiff’s brief in opposition to summary judgment for failure to comply with Federal Rule of Civil Procedure 56(c) & (e). One of the items that the defendants sought to exclude was a read receipt sent from defendant Grimes email address to plaintiff, triggered when an email plaintiff sent defendant Grimes was opened, arguing that the Read Receipt was ‘unauthenticated hearsay’.
Judge Flanagan made a swift ruling on this issue when she stated ‘Defendants’ argument fails. The Read Receipt is not hearsay.’ . . .
Proper Deposition Objections, by Susan Minsberg, Lawyerist Blog
Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself. . . .
Rescue 911: Court of Appeals of South Carolina Grapples With Double Hearsay Issue, by Colin Miller, EvidenceProf Blog
Similar to its federal counterpart, South Carolina Rule of Evidence 805 provides that
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
So, assume that a daughter reports to her mother that she was sexually assaulted and that the mother then calls 911 and relays what her daughter told her. Should the 911 call be admitted? According to the Court of Appeals of South Carolina in State v. Hendricks, 2014 WL 1614844 (S.C.App. 2014), the answer is ‘no.’ . . . .
A New Theory of Hearsay, Take 4: Further Thoughts on United States v. Boyce, by Colin Miller, Editor, EvidenceProf Blogger
It’s interesting that Jeff [Jeffrey Bellin] posted an entry about Judge Posner’s concurrence in United States v. Boyce yesterday [February 14, 2014]. My latest set of hearsay posts has come in connection with a CLE I’m conducting in which I argue, in essence, that Rule 807 should swallow much of Rules 801 through 806. So, it’s refreshing to see that such an esteemed jurist apparently holds a similar viewpoint. Here are some more thoughts on Boyce:
United States v. Boyce is a garden variety case in which a 911 call was admitted under the present sense impression to the rule against hearsay (Federal Rule of Evidence 803(1)) and/or the excited utterance exception (Federal Rule of Evidence 803(2)). They also again raise the question of why courts are not engaging in a Rule 403 balancing of such statements. . . .
Judge Posner Advocates Reforming the Hearsay Rules, by Evidence ProfBlogger, Colin Miller, Editor, EvidenceProf Blogger
As Colin explores alternate hearsay theories in his posts, it is worth highlighting a concurrence in U.S. v. Boyce, decided today in the Seventh Circuit, where Judge Richard Posner attacks the merits of both the present sense impression and excited utterance hearsay exceptions (FRE 803(1) and (2)). As Judge Posner notes, the arguments against these exceptions are not new, but his no-holds-barred critique, stating the exceptions are “not even good folk psychology,” is sure to generate interest in revisiting the hearsay thicket.
A New Theory of Hearsay, Take 3: Rule 602 & Anonymous Hearsay Declarants, by Editor Colin Miller, Evidence ProfBlogger, EvidenceProf Blog
Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
As a Rule 803 exception, this present sense impression exception applies “regardless of whether the declarant is available as a witness….” Indeed, the exception can apply even if the declarant has not been identified. But, like with a witness’s testimony at trial, a statement offered under a hearsay exception is only admissible if the declarant had personal knowledge under Federal Rule of Evidence 602. So, where does that leave us?
A New Theory of Hearsay, Take 2: Rule 609(a)(1)(B) & Statements Offered For a Nonhearsay Purpose, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog
Dan is on trial for aggravated battery. He has a prior conviction for aggravated battery. After Dan testifies, the prosecution seeks to impeach him through evidence of his five year-old conviction for armed robbery. To be admissible, the evidence cannot simply satisfy Federal Rule of Evidence 403; instead, pursuant to Federal Rule of Evidence 609(a)(1)(B), the prosecution must affirmatively prove that the probative value of the conviction outweighs its prejudicial effect.
A defendant calls an alibi witness at trial. After the alibi witness testifies on direct examination, the prosecution seeks to impeach him with evidence of a prior inconsistent statement that tends to incriminate the defendant. The prior statement is hearsay and only admissible to impeach that alibi witness, not to prove the truth of the matter asserted. My question today is: Should courts apply the same modified Rule 403 analysis that they would apply in the case above?
A New Theory of Hearsay: Incorporating Rule 403 Into the Hearsay Analysis, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog
Federal Rule of Evidence 803 provides exceptions to the rule against hearsay that apply regardless of the availability of the hearsay declarant. Federal Rule of Evidence 804 provides exceptions to the rule against hearsay that apply if the hearsay declarant is ‘unavailable.’ As exceptions to the rule against hearsay, these Rules merely place qualifying statements beyond the scope of Federal Rule of Evidence 802. And what this means is that, like all evidence, statements falling under a hearsay exception must be relevant under Federal Rule of Evidence 401 and have a probative value that is not substantially outweighed by dangers such as the danger of unfair prejudice under Federal Rule of Evidence 403. And yet, parties almost never make Rule 403 objections to evidence offered under a hearsay exception, and courts almost never sustain such objections. Why?
No Sanctions for Following Records Retention Policy, by Joshua Gilliland, Esq., Bow Tie’s Law Blog
It is not every day you see lawsuits about insurance policies from 1986 to 1987.
Add Judge Paul Grimm’s powerhouse footnotes and you get a great lesson in document retention policies and litigation holds (plus a great footnote on the state of mind exception to hearsay for all the evidence fans).