past recollection recorded. basic structure of a simple legal rule a particular functional legal...
TRANSCRIPT
Basic Structure of a Simple Legal Rule
•A particular functional legal outcome results
• If certain facts (elements) are true
6 Elements
1. Memorandum or record2. About something which W once knew3. About something which W now has
insufficient knowledge eithera. To testify fully orb. To testify accurately
4. Which W eithera. Made orb. Adopted
5. While fresh in W’s memory6. Which accurately reflects W’s knowledge
Legal Outcome If Elements Met
1. It can be admitted into evidence
2. It can be read to the jury
3. It cannot be passed to the jury
a. Unless the opponent wants it given to the jury
Establish Each Element (Start With #2)
1. Memorandum or record2. About something which W once knew3. About something which W now has
insufficient knowledge eithera. To testify fully orb. To testify accurately
4. Which W eithera. Made orb. Adopted
5. While fresh in W’s memory6. Which accurately reflects W’s knowledge
Basic Structure of a Slightly More Complex Legal Rule
• A particular functional legal outcome results
• If certain facts (elements) are true
• Unless certain other (exception) facts are true
7 Elements and 1 Exception1. Memorandum or record in any form2. About essentially anything3. Made at or near the time 4. Made by
a. Person with personal knowledge, orb. Person who got information from source with
personal knowledge and either 1) Source had business duty to report, or2) Source’s statement not barred by hearsay
5. Kept in the ordinary course of business6. By business that ordinarily keeps such records7. Shown by qualified witness (e.g. custodian)Exception: Unless there are indications of
untrustworthiness
3 Easy Problem Areas & 1 Hard One
• What is a “business”?
• What is a record?
• How do you lay foundation?
• What are permissible sources for the information?
Brings Writer to Court
The Record
[Everything that she wrote]
Exhibit 1
The same things that I
wrote in Exhibit 1.
Basically Subject to the
same objections as if Writer
testified in court.
But normally, writer could not testify unless
she had personal knowledge
Brings Writer to Court
The Record
[Everything she wrote]
Exhibit 1
We let record in if
Writer received information from
source with personal knowledge
Writer had personal
knowledge.
Source had
business duty to report.
Source’s statement
is not barred by hearsay.
or
or
and
Record (Written by Writer) Says That People at Table 2 Ate Ham.
• Writer saw them eat it.
• Writer is the cashier and was told by the waiter (who saw it).
• Writer was told by the defendant.
• Writer was told by someone who was still stressed about being served a non-kosher meal.
What Are the 3 Types of Public Records Admissible Under 803(8)?
• Activities of the Office
• Matters Observed
• Factual Findings
Matters Observed: 3 Elements & 1 Exception
Factual Findings: 3 Elements & 1 Exception
Factual Findings: 2 Elements & 2 Exceptions
Identify elements.
Invent a hypothetical and lay the foundation for it
Matters Observed: 3 Elements & 1 Exception
1. Report is about a matter that was observed, and
2. The observer had a legal duty to observe the matter, and
3. The observer had a legal duty to report what he or she observed.
Exception: Report is not admissible if
• The case is a criminal case, and
• The observer was a law enforcement official.
Factual Findings: 3 Elements & 1 Exception
1. The case must be either a. A civil case, orb. A criminal case in which the report is
offered against the government; and2. Report contains factual findings (i.e.,
conclusions about a factual dispute)3. Those findings must result from a legally
authorized investigation
Exception: Not admissible if sources or circumstances indicate it is untrustworthy
Factual Findings: 2 Elements & 2 Exceptions
1. Report contains factual findings (i.e., conclusions about a factual dispute)
2. Those findings must result from a legally authorized investigation
Exceptions:
1. Report is not admissible if sources or circumstances indicate that it is untrustworthy.
2. The report can’t be offered by the government in a criminal case.
An Example
On 3/1/00, I Sam Smith (an EEOC Investigator) went to ER’s plant.
I spoke to Fred Foreman who said that Elmer EE was fired because he hit a supervisor. I then spoke to Elmer who said he never hit anyone and that he was fired after complaining about racial slurs.
Based on the interviews, I find probable cause to believe that ER fired Elmer because of his complaints about racial slurs.
Sam
Observations
Findings
Activities
I started working at the plant right after Elmer was fired. In the lunchroom, I often talked to other employees about Elmer. They consistently told me he was the worst welder they ever met. Most of them told me about the time, just before he was fired, when he left his torch on and almost burned down the plant.