LAW
Evidence Outline.docx

Certification and e the opponent does not show that

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certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. Five requirements: The record must be made close in time to the event; It must be made by a person with personal knowledge or from information supplied by one with personal knowledge; o This is not required for self- authenticated documents under 902(11) and (12). It must be kept in the course of regularly conducted activity; It must be made in the regular course of business; and It must be made by a person acting under a business duty. Remember that all levels of hearsay must be met. “In his police report, the PO said, ‘Smith (bystander) said, ‘the motorcycle was on the wrong side of the highway when the collision occurred.’” Smith is not acting under a business duty; this doesn’t come in. If the document is prepped in anticipation of litigation, it doesn’t come in. o 803(7). Absence of a Record of a Regularly Conducted Activity The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (7) Evidence that a matter is not included in a record described in paragraph (6) if: o (A) the evidence is admitted to prove that the matter did not occur or exist; o (B) a record was regularly kept for a matter of that kind; and Page 46 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar o (C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness. Public Records o 803(8). Public Records The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (8) A record or statement of a public office if: o (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and o (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. o Under (B), the standard to show untrustworthiness is a preponderance standard. Some factors: Timeliness of the investigation; Skill/experience of the investigation; If a hearing was ever held; Motivation o Findings of facts can include reasonable inferences. Beech Aircraft . o 803(6) & (8) Oates : The two do not work independently. So, if it is inadmissible under 803(8), you cannot sneak it in under 803(6). There is a split. Many courts don’t follow Oates. Learned Treatises o 803(18). Statements in Learned Treatises, Periodicals, or Pamphlets Page 47 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
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