22 Sunday Jan 2017
Posted in Authentication, Discovery, E-Discovery, Evidence, Rule 803 Exception, Rule 902
≈ Comments Off on New Federal Rules in Evidence in 2017 Will Affect The Hearsay Exception and E-Discovery.
Tags
BakerHostetler, Carey Busen, Discovery Advocate Blog, E-Discovery, Federal Rules of Evidence, Gilbert S. Keteltas, Gregg Kettles, Hearsay, Santa Clara Law Review
24 Wednesday Jun 2015
Posted in Admissibility, Authentication, Evidence, Hearsay, Legal Technology
≈ Comments Off on 9th Circuit Rules Google Earth Coordinates Are Not Hearsay.
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. . . .
17 Friday Apr 2015
Posted in Admissibility, Authentication, Evidence, Federal Rules of Evidence, Hearsay, Litigation, Summary judgment
≈ Comments Off on “Read Receipt” Email Message Is Not Hearsay.
Tags
Doug Austin, eDiscoveryDaily Blog, Email, Evidence, Federal Rules of Civil Procedure, Hearsay, Motion for Summary Judgment, Read Receipt
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.
Case Background
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’s Opinion
Judge Flanagan made a swift ruling on this issue when she stated ‘Defendants’ argument fails. The Read Receipt is not hearsay.’ . . .
24 Saturday May 2014
Posted in Depositions, Discovery, Objections
≈ Comments Off on Deposition Objections – What’s Proper and What’s Not.
Tags
Compound Questions, Deposition Objections, Hearsay, Lawyerist Blog, Privilege and Confidentiality, Relevancy, Speculation, Susan Minsberg
Proper Deposition Objections, by Susan Minsberg, Lawyerist Blog
http://lawyerist.com/16801/proper-deposition-objections/
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. . . .
26 Saturday Apr 2014
Posted in Court Rules, Evidence, Hearsay, Trial Tips and Techniques
≈ Comments Off on Is Double Hearsay in 911 Call Admissible Evidence?
Tags
911, Colin Miller, Double Hearsay, Evidence, Evidence Rule 805, EvidenceProf Blog, Hearsay, Sexual Assault
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.’ . . . .
23 Sunday Mar 2014
Posted in Evidence, Hearsay, Rule 803 Exception, Rule 807
Tags
Colin Miller, Evidence, Evidence ProfBlogger, Federal Rules of Evidence, Hearsay, Jeffrey Bellin, Rule 403, Rule 803, Rule 807, United States v. Boyce
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. . . .
23 Sunday Mar 2014
Posted in 7th Circuit Court of Appeals, Evidence, Excited Utterances, Hearsay, Present Sense Impression, Rule 803 Exception
≈ Comments Off on Judge Posner’s Theories On Hearsay Exceptions.
Tags
Colin Miller, Evidence ProfBlogger, Exited Utterances, Federal Rules of Evidence, Hearsay, Judge Posner, Present Sense Impression, Rule 803, United States v. Boyce
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.
22 Saturday Mar 2014
Posted in 11th Circuit Court of Appeals, Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Legal Writing, Motion to Suppress, Motions, Rule 602, Rule 803 Exception
≈ Comments Off on New Theory of Hearsay, Take 3!
Tags
Anonymous Hearsay Declarant, Colin Miller, EvidenceProf Blog, Federal Rules of Evidence, Hearsay, Motion to Suppress, Rule 602, Rule 803, United States v. Daniels
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?
11 Tuesday Feb 2014
Posted in 1st Circuit Court of Appeals, Admissibility, Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses
≈ Comments Off on A New Theory of Hearsay – Part 2.
Tags
Colin Miller, Criminal Defendants, Evidence, Evidence ProfBlogger, EvidenceProf Blog, Federal Rule of Evidence, Hearsay, Hearsay Exception, Impeach, Nonhearsay Purpose, Rule 609
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?
11 Tuesday Feb 2014
Posted in Admissibility, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses
≈ Comments Off on A New Theory of Hearsay – Part 1.
Tags
Character Evidence, Colin Miller, Evidence, Evidence ProfBlogger, EvidenceProf Blog, Federal Rules of Evidence, Hearsay, Hearsay Declarant, Hearsay Exceptions, Objections, Witness
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?
26 Sunday Jan 2014
Posted in E-Discovery, Hearsay, Judges, Legal Technology, Litigation, Litigation Hold, Preservation, Sanctions, Trial Tips and Techniques
≈ Comments Off on Excellent Case on Document Retention Policies and Litigation Holds.
Tags
Asbestos Insurance Coverage Litigation, Document Retention Policy, E-Discovery, Hearsay, Judge Paul Grimm, Litigation Hold, Sanctions, State of Mind Execption
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).
