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Rule 804
Trial Handbook
Rule 804(b)(1)—Prior Testimony Exception
Established Doctrine
Rule 804(b)(1) permits former testimony elicited in
the course of the same or another proceeding to be
admitted, if the party against whom the testimony
is now offered had an opportunity and similar
motive to develop the testimony by direct, cross, or
redirect examination. However, such testimony is
excluded as non-hearsay only if the declarant is
unavailable as a witness. United States v. Kennard,
472 F.3d 851 (11th Cir. 2006); Stanley Martin
Cos. v. Universal Forest Prods. Shoffner, LLC, 396
F. Supp. 2d 606 (D. Md. 2005); Kamara v. United
States, 2005 U.S. Dist. LEXIS 20651 (S.D.N.Y.
2005); United States v. Garcia, 117 F. App’x 162
(2d Cir. 2004); United States v. McElhiney, 85 F.
App’x 112 (10th Cir. 2003); Budden v. United
States, 748 F. Supp. 1374 (D. Neb. 1990).
For purposes of Rule 804(b)(1), “similar motive”
does not mean “identical motive.” When considering whether the similar motive requirement has
been met, courts look to the similarity of issues and
the purpose for which testimony was given. Circumstances or factors that influence motive to develop
testimony include (1) the type of proceeding in
which the testimony was given, (2) trial strategy, (3)
the potential penalties or financial stakes, and (4)
the number of issues and parties. United States v.
McElhiney, 85 F. App’x 112 (10th Cir. 2003);
United States v. Reed, 227 F.3d 763 (7th Cir. 2000).
Rule 804(b)(1) indicates that if the opportunity to
cross-examine is lacking, the prior testimony must
be excluded. However, the rule does not require
that the opposing party actually cross-examine the
witness; it is instead enough that the opposing
party be given a meaningful opportunity to crossexamine if it wishes to do so. The opportunity-tocross-examine requirement is generally satisfied
when the defense is given a full and fair opportunity to probe and expose the infirmities of testimony through cross-examination, thereby calling
to the attention of the factfinder the reasons for giving scant weight to the witness’s testimony. Antonucci v. Morgan Stanley Dean Witter & Co., 2005
U.S. Dist. LEXIS 1621 (S.D.N.Y. 2005); United
States v. Garcia, 117 F. App’x 162 (2d Cir. 2004);
A.I.A. Holdings, S.A. v. Lehman Bros., Inc., 2002
U.S. Dist. LEXIS 22675 (S.D.N.Y. 2002).
The fact that prior testimony meets the criteria set
by this rule and hence is not excludable on the
ground that it is hearsay does not, however, make
it admissible. The court retains its normal discretion
to exclude the evidence on other grounds such as
lack of relevance, improper purpose, or undue
prejudice. Jian v. Canarozzi, 142 F.3d 83 (2d Cir.
1998).
Specific Applications
Each element of Rule 804(b)(1) must be satisfied in order for the former testimony of an
unavailable witness to be deemed admissible,
and the proponent of the evidence bears the burden of establishing that all of the elements have
been satisfied. United States v. Burge, 2009 U.S.
Dist. LEXIS 34667 (N.D. Ill. 2009).
Rule 804(b)(1) requires that a defendant have
an opportunity for cross-examination. Mere
“naked opportunity” to cross-examine is not
enough; there must also be a perceived real need
or incentive to thoroughly cross-examine at the
time the former testimony was given. United
States v. Burge, 2009 U.S. Dist. LEXIS 34667 (N.D.
Ill. 2009).
The opportunity for cross-examination is generally satisfied for purposes of Rule 804 when the
defense is given a full and fair opportunity to
probe and expose the infirmities of testimony
through cross-examination, thereby calling to the
attention of the factfinder the reasons for giving
scant weight to the witness’s testimony. Ordinarily, the fact that the opponent of the former testimony actually undertook an extensive crossexamination of the unavailable witness when that
testimony was given would foreclose any need for
a court to continue the Rule 804 “opportunity”
inquiry. United States v. Burge, 2009 U.S. Dist.
LEXIS 34667 (N.D. Ill. 2009).
The question under Rule 804(b)(1) is whether
the opponent of the former testimony of an unavailable witness had the opportunity during crossexamination to fully develop such testimony on relevant issues. The rule does not require that an
opportunity be had to fully develop testimony on
collateral matters. United States v. Burge, 2009
U.S. Dist. LEXIS 34667 (N.D. Ill. 2009).
Rule 804(b)(1) requires that the court determine
whether the opponent of the former testimony of an
unavailable witness had a similar motive in developing the testimony. In determining whether a
party had such a motive, a court must evaluate not
only the similarity of the issues, but also the purpose for which the testimony was given. Factors to
be considered include (1) the type of proceeding in
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which the testimony was given, (2) trial strategy, (3)
the potential penalties or financial stakes, and (4)
the number of issues and parties. United States v.
Burge, 2009 U.S. Dist. LEXIS 34667 (N.D. Ill.
2009).
Rule 804(b)(1) does not prohibit the admission
of testimony from a prior civil proceeding in a
later-filed criminal case where the motive underlying the cross-examination is similar. United
States v. Burge, 2009 U.S. Dist. LEXIS 34667 (N.D.
Ill. 2009).
The requirement that the party had an opportunity to develop former testimony of an unavailable
witness for purposes of Rule 804(b)(1) is generally
satisfied when the defense was given a full and fair
opportunity to probe and expose the infirmities of
the testimony through cross-examination. United
States v. Carneglia, 256 F.R.D. 366 (E.D.N.Y.
2009).
A motive to develop testimony is “sufficiently
similar” for purposes of Rule 804(b)(1) when the
party now opposing the testimony would have had,
at the time the testimony was given, an interest of
substantially similar intensity to prove (or disprove)
the same side of a substantially similar issue now
before the court. The nature of the two proceedings
and, to a lesser extent, the cross-examination at the
prior proceeding are relevant though not conclusive on the ultimate issue of similarity of motive.
United States v. Carneglia, 256 F.R.D. 366
(E.D.N.Y. 2009).
The rigor of a preliminary hearing’s cross-examination may support a finding of a “sufficiently similar” motive to what one would expect at a
subsequent criminal trial, for purposes of Rule
804(b)(1). United States v. Carneglia, 256 F.R.D.
366 (E.D.N.Y. 2009).
Similarity of motive, as required by Rule
804(b)(1), does not imply that the charges facing
the defendant at the prior and current proceedings must be identical. Where both cases involve
serious felonies with substantial potential punishments and the conduct to be proven by the prior
testimony in the first trial is identical to that to be
proven by the testimony in the second trial, a
defendant’s motive is sufficiently similar to justify
admission. United States v. Carneglia, 256 F.R.D.
366 (E.D.N.Y. 2009).
The mere fact that prior testimony meets the
criteria set by Rule 804(b)(1), and hence is not
excludable on the ground that it is hearsay, does
not make it admissible. After the district court
finds by a preponderance of the evidence that a
hearsay statement is admissible under Rule
804(b)(6), it must still perform the balancing test
(Sinclair, Rel. #14, 9/09)
Rule 804
required under Rule 403. United States v. Carneglia, 256 F.R.D. 366 (E.D.N.Y. 2009).
Under Rule 804(b)(1), “similar motive” does
not mean “identical motive.” Determining whether
a motive is sufficiently similar is a factual inquiry,
depending in part on the similarity of the underlying issues and on the context. United States v.
Carneglia, 256 F.R.D. 366 (E.D.N.Y. 2009).
Prior trial or preliminary hearing testimony is
admissible under Rule 804(b)(1) only if the defendant had an adequate opportunity to cross-examine. An adequate opportunity to cross-examine
means the defense must be given a full and fair
opportunity to probe and expose infirmities in the
testimony through cross-examination, thereby
calling to the attention of the factfinder the reasons for giving scant weight to the witness’s testimony. United States v. Fitzgerald, 2009 U.S. Dist.
LEXIS 15656 (S.D. Cal. 2009).
The former testimony of an unavailable witness
is not admissible under Rule 804(b)(1) unless the
party against whom the testimony is offered or, in a
civil action or proceeding, a predecessor in interest had an opportunity and similar motive to
develop the testimony by direct, cross-, or redirect
examination. Under this rule, refusal to answer pertinent questions on cross-examination bars the use
of the witness’s direct testimony. SEC v. Ficken, 546
F.3d 45 (1st Cir. 2008).
In a bankruptcy proceeding in which a debtor
becomes unavailable, the transcript of the debtor’s
meeting with creditors conducted under 11 U.S.C.
§ 341 is not admissible as “former testimony,” as
the debtor has no opportunity to develop such a
meeting by direct or cross-examination. Salven v.
Mendez (In re Mendez), 2008 Bankr. LEXIS 653
(Bankr. E.D. Cal. 2008).
Answers to interrogatories do not constitute
former testimony under Rule 804(b)(1), as the party
has no opportunity to cross-examine those
answers. Knudsen v. City of Tacoma, 2008 U.S.
Dist. LEXIS 11842 (W.D. Wash. 2008).
Rule 804(b)(1) implements the command of the
Sixth Amendment’s Confrontation Clause that the
accused shall enjoy the right to be confronted with
the witnesses against him. Accordingly, the prosecution may not offer proof of a prior statement that
is testimonial in nature unless (1) the accused has
or will have forfeited the opportunity to be confronted with the witness who made the statement,
and (2) the witness is unavailable to testify at trial.
The latter requirement stands on separate footing
that is independent of and in addition to the
requirement of a prior opportunity for crossexamination. United States v. Yida, 498 F.3d 945
(9th Cir. 2007).
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Trial Handbook
Pursuant to Rule 804(b)(1), deposition testimony from a prior civil proceeding is not admissible in a criminal case unless the declarant is
unavailable as a witness and the party against
whom the testimony is offered in the criminal case
had an opportunity and similar motive to develop
the testimony by direct, cross-, or redirect examination in the prior civil proceeding. United States v.
Kennard, 472 F.3d 851 (11th Cir. 2006).
In unusual circumstances, separate sovereigns
may be treated as one for the purposes of the
Rule 804(b)(1) exception. However, if federal
authorities control the actions of a state prosecutor
before the grand jury, it may well be that the state
and the federal governments should not be considered separate sovereigns for the purposes of this
exception. United States v. Carson, 455 F.3d 336
(D.D.C. 2006).
When prosecutors seek to admit a nontestifying
witness’s preliminary hearing testimony under Rule
804(b)(1), the Confrontation Clause requires two
things. First, the prosecution must establish that the
declarant is “unavailable” by showing that prosecutorial authorities have made a good-faith effort to
obtain the declarant’s presence at trial. Second, to
satisfy the “indicia of reliability” requirement, the
prosecution must demonstrate that the defendant
had an adequate opportunity to cross-examine the
declarant at the preliminary examination. Gibbs v.
Harry, 2006 U.S. Dist. LEXIS 82094 (E.D. Mich.
2006).
Nothing in the language of Rule 804(b)(1) suggests that a court may admit former testimony
absent satisfaction of each of the rule’s elements.
Kamara v. United States, 2005 U.S. Dist. LEXIS
20651 (S.D.N.Y. 2005).
The fundamental purpose of the prior opportunity to cross-examine is to ensure that the former
testimony was endowed with some indicia of reliability; the trier of fact must have a satisfactory
basis for evaluating the truth of the prior statement.
United States v. Garcia, 117 F. App’x 162 (2d Cir.
2004).
In determining whether the former testimony of
an unavailable witness, whom defendant has had
a prior opportunity to cross-examine at an earlier
trial, can be admitted at a subsequent trial without
violating the Confrontation Clause, courts have
looked to the actual transcript of the witness’s testimony—in particular to defense counsel’s crossexamination of the witness—to determine whether
the cross-examination imbued the testimony with
the requisite indicia of reliability, through a serious
effort by defense counsel to undermine and discredit the witness’s testimony, including by questioning the witness about certain inconsistencies in
his testimony and eliciting testimony on the witness’s own criminal record. United States v. Garcia,
117 F. App’x 162 (2d Cir. 2004).
Where both proceedings are trials and the same
matter is seriously disputed at both trials, it will normally be the case that the side opposing the version
of a witness at the first trial had a motive to develop
that witness’s testimony similar to the motive at the
second trial. United States v. Garcia, 117 F. App’x
162 (2d Cir. 2004).
Vigorous cross-examination conducted at the
first trial—which included references to past criminal activities and previous instances in which the
witness lied to the government, as well as questions
regarding his motive for testifying—sufficiently
allowed the jury at the second trial to evaluate the
truth of the testimony. United States v. Garcia, 117
F. App’x 162 (2d Cir. 2004).
The “similarity of motive” requirement necessitates an inquiry into whether the party resisting the
offered testimony at a pending proceeding had an
interest of substantially similar intensity to prove (or
disprove) the same side of a substantially similar
issue. Antonucci v. Morgan Stanley Dean Witter &
Co., 2005 U.S. Dist. LEXIS 1621 (S.D.N.Y. 2005).
Where a party failed to provide signed authorizations in a timely manner for release of medical
records, none of this ammunition was available to
the examining party when a deposition began. As
a consequence, the questioning party clearly did
not have an adequate opportunity to question the
witness regarding several of the central factual
issues in the case. The opportunity to cross-examine must be full, substantial, and meaningful in
view of the realities of the situation. Antonucci v.
Morgan Stanley Dean Witter & Co., 2005 U.S.
Dist. LEXIS 1621 (S.D.N.Y. 2005).
Under Rule 804(b)(1), the federal courts no
longer draw a distinction between discovery depositions and trial depositions. Accordingly, any deposition taken by a party may potentially be
introduced at trial if the deponent becomes
unavailable through no fault of the party proffering
the testimony. For this reason, attorneys taking depositions in federal cases often must make a strategic decision as to whether to treat a deposition as a
discovery deposition (in which unearthing the facts
and committing the deponent to a position are the
primary goals), or a trial deposition (in which there
is often an effort to tarnish the witness’s credibility),
or both. Antonucci v. Morgan Stanley Dean Witter
& Co., 2005 U.S. Dist. LEXIS 1621 (S.D.N.Y.
2005).
The “similar motive” requirement protects the
party to whom the witness is “unavailable” in order
to accord that party some degree of adversarial
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fairness, thereby assuring that the earlier treatment
of the witness is the rough equivalent of what the
party against whom the statement is offered would
do at trial if the witness were available to be examined by that party. When the declarant is unavailable to the party against whom the testimony is
being offered, the “similar motive” requirement not
only ensures that the right of cross-examination is
preserved, but also ensures that the party against
whom the testimony is offered has been afforded a
fair chance to seek the truth, and is not blindsided
at trial by the hearsay testimony. Antonucci v. Morgan Stanley Dean Witter & Co., 2005 U.S. Dist.
LEXIS 1621 (S.D.N.Y. 2005).
The opportunity to examine a relative of a party
cannot serve to fill the gaps in the showing necessary under Rule 804(b)(1) if the opportunity to
question the central witness was stymied in the
prior proceeding because of refusal to disclose
needed information for exploration on cross-examination. Antonucci v. Morgan Stanley Dean Witter
& Co., 2005 U.S. Dist. LEXIS 1621 (S.D.N.Y.
2005).
Former testimony in a juvenile court litigation
involving a governmental department of children’s
services was not admissible under Rule 804(1)
because the children’s agency was not the predecessor in interest of the present adversaries. Harville v. Vanderbilt Univ., 95 F. App’x 719 (6th Cir.
2003).
Rule 804(b)(1) does not require that the prior
testimony be given in the context of identical
charges. United States v. McElhiney, 85 F. App’x
112 (10th Cir. 2003).
A state supreme court determination that
because a suppression hearing focused on different
issues from the trial the state didn’t have the incentive or opportunity to test co-defendant’s reliability
fully is nonsense; the issues were different—probable cause to seize the drugs versus the defendant’s
possessing them—but the incentive to destroy the
co-defendant’s credibility during the suppression
hearing was the same as it would have been had
he testified at the trial; the issues were different
from a legal standpoint, but they were not different
so far as the relevance of the co-defendant’s testimony was concerned. Rice v. McCann, 339 F.3d
546 (7th Cir. 2003).
Testimony of grand jury witnesses was not
admissible to prove drug quantity beyond a reasonable doubt at sentencing under former-testimony exception to hearsay rule, where, even if the
witnesses were “unavailable,” defendant had no
opportunity to cross-examine them in grand jury
proceedings. United States v. Darwich, 337 F.3d
645 (6th Cir. 2003).
(Sinclair, Rel. #14, 9/09)
Rule 804
Statements made by a coconspirator during his
plea hearing were inadmissible, under exception
to hearsay rule for a testimony given at another
proceeding by an unavailable witness, in a prosecution for drug conspiracy, where government’s
motive at coconspirator’s plea hearing was to
ensure that plea was knowing, voluntary, and intelligent, and that there was an adequate factual
basis to accept it, and the government had no need
or motive to develop a testimony about defendant.
United States v. Preciado, 336 F.3d 739 (8th Cir.
2003).
Statements made by a coconspirator at his plea
allocution, which arguably exculpated defendant,
were not admissible at defendant’s trial under hearsay exception for testimony from a prior hearing or
proceeding; although the coconspirator was
unavailable at defendant’s trial because he had
properly invoked his Fifth Amendment right against
self-incrimination, government had neither an
opportunity nor a similar motive to examine the
coconspirator at latter’s plea allocution as it would
have had at trial. United States v. Jackson, 335
F.3d 170 (2d Cir. 2003).
The opportunity to cross-examine cannot be an
empty formality. It must be full, substantial and
meaningful in view of the realities of the situation,
and this standard is not met when a deponent unilaterally decides not to appear for cross-examination. A.I.A. Holdings, S.A. v. Lehman Bros., Inc.,
2002 U.S. Dist. LEXIS 22675 (S.D.N.Y. 2002).
Depositions taken in a separate case may be
admissible under the former testimony exception
when: (1) they involve the same counsel, (2) they
involve the same issue, and (3) the unavailable witnesses were fairly examined on the subject matter
for which their testimony may have been relevant in
the instant case. Clay v. Buzas, 208 F.R.D. 636 (D.
Utah 2002).
An arresting officer’s testimony from a state
suppression hearing was properly admitted as
prior testimony where the officer died prior to a
federal suppression hearing and defendant had
similar motive in both proceedings to demonstrate
that his taped confession was coerced and involuntary; any failure to more fully cross-examine the
officer in the state proceedings resulted from counsel’s attorney’s failure to do so, not from lack of
opportunity. United States v. Geiger, 263 F.3d
1034 (9th Cir. 2001).
Testimony at a prior trial, unlike a written confession or recorded conversation, is a particularly
reliable form of hearsay evidence. United States v.
Thomas, 2000 U.S. App. LEXIS 2224 (2d Cir.
2000).
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Trial Handbook
In prosecution for smuggling of illegal aliens,
two of the aliens were unavailable because they
were inadvertently returned to Mexico, were
beyond the subpoena power of the district court,
and at least one of them failed to respond to efforts
to persuade them to return to the United States to
testify. United States v. Olafson, 213 F.3d 435 (9th
Cir. 2000).
Where a defendant had ample opportunity to
cross-examine and impeach a witness at a former
trial, where he had the same motive, Rule
804(b)(1) is satisfied. United States v. Reed, 227
F.3d 763 (7th Cir. 2000).
The fact that a former witness was actually sentenced and received a downward departure in sentencing after the first trial does not really change
the defendant’s motives on cross. Where defendant knew of the plea agreement well before the
first trial, the incentives were present, and the testimony was later admissible under Rule 804(b)(1).
United States v. Reed, 227 F.3d 763 (7th Cir.
2000).
Mere naked opportunity to cross-examine is
not enough; there must also be a perceived real
need or incentive to thoroughly cross-examine at
the time of the deposition. The testimony must be
subject to the scrutiny of a party thoroughly interested in testing its validity. Schimpf v. Gerald, Inc.,
52 F. Supp. 2d 976 (E.D. Wis. 1999).
In a suit alleging excessive use of force by corrections officers, prior testimony given by the plaintiff, who had subsequently passed away, during a
criminal prosecution of the plaintiff, was admissible
against the police officers. The prior testimony
occurred in a prosecution for assault in which
plaintiff took the stand in his own defense and was
subjected to vigorous cross-examination. Because it
was a criminal trial, the stakes were as high if not
higher than the civil case, and the prosecutor had a
very strong motive to develop the testimony. The
prosecutor in the criminal case, and the defendants
here, each seek to show that plaintiff, not the officers, initiated the use of force. The court found that
the motivations of the prosecutor in the criminal
trial and the defendant police officers in the instant
case were similar, and that the prosecutor can be
viewed as a “predecessor in interest.” Wright v.
Kelly, 1998 U.S. Dist. LEXIS 20424 (W.D.N.Y.
1998).
In an antitrust prosecution of foreign manufacturers, videotaped testimony of a foreign deponent taken abroad may be admitted under the
former testimony exception, if it approximates trial
conditions to a significant degree. United States v.
Nippon Paper Indus. Co., Ltd., 17 F. Supp. 2d 38
(D. Mass. 1998); United States v. McKeeve, 131
F.3d 1 (1st Cir. 1997).
When evaluating the similarity of the government’s motive in different proceedings for purposes of Rule 804(b)(1), it is the government’s
interest in the particular proceeding, as prosecutor, not its broader interest in achieving justice, as
sovereign, that must be examined. United States v.
Bartelho, 129 F.3d 663 (1st Cir. 1997).
Statements at a suppression hearing were properly excluded where the government had no interest in developing the declarant’s credibility. United
States v. Bartelho, 129 F.3d 663 (1st Cir. 1997).
The similar motive inquiry under Rule 804(b)(1)
requires scrutiny of the factual and procedural context of each proceeding to determine both the issue
in dispute and the intensity of interest in developing
the particular issue by the party against whom the
disputed testimony is offered. United States v. Bartelho, 129 F.3d 663 (1st Cir. 1997).
A purely tactical decision not to develop particular testimony despite the same issue and level of
interest at each proceeding does not constitute a
lack of opportunity or a dissimilar motive for purposes of Rule 804 (b)(1). United States v. Bartelho,
129 F.3d 663 (1st Cir. 1997).
The Rule 804(b)(1) hearsay exception for prior
testimony extends, where all its conditions are met,
to grand jury testimony taken at the government’s
behest and later offered against it in a criminal
trial. United States v. Omar, 104 F.3d 519 (1st Cir.
1997); United States v. Dinapoli, 8 F.3d 909, 914
(2d Cir. 1993) (en banc).
A grand jury proceeding can be regarded as a
“hearing,” especially in the context of a rule that
applies as well to depositions, and—assuming “an
opportunity and similar motive to develop the testimony”—the rationale for an exception to the hearsay rule is made out, namely, that the party against
whom the testimony is now offered earlier had the
opportunity and similar motive to discredit the testimony, and so did then whatever it would do now if
the declarant were on the stand. United States v.
Omar, 104 F.3d 519 (1st Cir. 1997).
The prosecution may not in a grand jury proceeding have the kind of motive to develop testimony that it would in an ordinary trial or that is
required to meet the express test and rationale of
Rule 804(b)(1). United States v. Omar, 104 F.3d
519 (1st Cir. 1997).
Deposition testimony of a nonparty witness can
be read into the record only if the witness is
unavailable. O’Berry v. Allendale Police Dep’t,
1997 U.S. App. LEXIS 252 (4th Cir. 1997).
If a witness testifies, inconsistencies between the
witness’s deposition and trial testimony can be used
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for impeachment under Rule 32 of the Federal
Rules of Civil Procedure. O’Berry v. Allendale
Police Dep’t, 1997 U.S. App. LEXIS 252 (4th Cir.
1997).
A defendant was properly denied permission to
offer state grand jury testimony in a federal trial
because the United States was not a party to the
state proceeding. United States v. Peterson, 100
F.3d 7 (2d Cir. 1996).
The fact that former testimony may qualify under
the hearsay rule does not address the issue whether
use of the former testimony is barred by an applicable “dead man statute.” Rosenfeld v. Basquiat,
78 F.3d 84 (2d Cir. 1996).
In an antitrust action alleging price-fixing by
several dairies, prior testimony by an unavailable
witness from a criminal proceeding where the dairy
officials were defendants was admissible. Supermarket of Marlinton, Inc. v. Meadow Gold Dairies,
Inc., 71 F.3d 119 (4th Cir. 1995).
The exception for former testimony of unavailable declarant was inapplicable where defendant,
against whom testimony was offered, had no
opportunity to develop that testimony at the prior
trial of his coconspirator, even if the reason for the
missed opportunity was that the defendant was a
fugitive from justice at that time. United States v.
Shaw, 63 F.3d 1249 (4th Cir. 1995).
District court abused its discretion in admitting
testimony of expert witness for manufacturer of
products containing asbestos which was given in
earlier, unrelated trial under former testimony
exception to hearsay rule in subsequent products
liability action where no finding was made on
record by trial court that the expert was unavailable. Kirk v. Raymark Indus. Inc., 61 F.3d 147 (3d
Cir. 1995).
Admission at fraud defendant’s trial of deceased
witness’s testimony from prior trial of defendant
and coconspirators was not an abuse of discretion
even though different counsel with different defense
theories conducted the cross-examination at prior
trial. United States v. Tannehill, 49 F.3d 1049 (5th
Cir. 1995).
In a suit alleging legal malpractice for settling a
claim against plaintiff’s insurer, transcripts from the
prior trial offered by the defendant law firm to
show the impossibility of winning should have been
admitted not for the truth of the testimony under
Rule 804(b)(1), but to show the damaging effect of
the testimony. Transcraft, Inc. v. Galvin, Stalmack,
Kirschner & Clark, 39 F.3d 812 (7th Cir. 1994).
A defendant seeking to use exculpatory testimony of grand jury witnesses is required under the
text of this rule to demonstrate that the government
had an incentive to question them similar to its
(Sinclair, Rel. #14, 9/09)
Rule 804
goals at a trial (United States v. Salerno, 120 L. Ed.
2d 255 (1992)), along with the obvious opportunity to question; where the examination was the
rough equivalent of what cross-examination would
have provided in the case on trial, the requirement
of the rule is met. United States v. Salerno, 974 F.2d
231 (2d Cir. 1992).
Testimony of jointly charged co-defendants on
separate suppression motions was not subject to
examination with a motive and opportunity to
cross-examine similar to that arising later at the
separate trial of defendant, where the suppression
applications turned in part on standing (on which
the two perpetrators differed) and the defendant
was not participating in the hearing “qua defendant” but as a movant on a different motion.
United States v. Taplin, 954 F.2d 1256 (6th Cir.
1992).
Because a combine manufacturer had similar
motive in previous products liability proceedings to
develop the testimony of three of its employees,
their sworn testimony given in prior proceedings
could be admitted despite a hearsay objection.
Burke v. Deere & Co., 780 F. Supp. 1225, 1261–
62 (S.D. Iowa 1991).
Declaration against interest by a witness who
was in prison in the Bahamas was improperly
admitted, since the government had not shown the
witness to be unavailable. United States v. Curbello,
940 F.2d 1503, 1505 (11th Cir. 1991).
Where the government refused defense counsel’s request to grant witness use immunity, absent
witness’s grand jury testimony exculpating defendant was admissible despite government claim that
it had lacked similar motive to develop the testimony. United States v. Salerno, 937 F.2d 797, 805
(2d Cir. 1991).
Absent government agent’s deposition describing investigation results was admissible as former
testimony. Moss v. Ole S. Real Estate, Inc., 933 F.2d
1300, 1311 (5th Cir. 1991).
Where a legislative governmental unit took certain testimony, and another unit was involved in
prosecuting the pending case, the “party” against
whom the prior transcript would be offered was
perhaps not the same. United States v. North, 910
F.2d 843 (D.C. Cir. 1990).
Where the party against whom the transcript is
offered was a party to the prior proceeding, the
transcript is inadmissible unless the motive to
develop or contest the evidence was the same previously. United States v. North, 910 F.2d 843 (D.C.
Cir. 1990). Accord United States v. Powell, 894
F.2d 895 (7th Cir. 1990) (sentencing statements not
admissible against government in later prosecution
of co-actor).
CA–699
Rule 804
Trial Handbook
A deposition of the former supervisor in an
employment discrimination case, taken on six days’
notice, was properly admitted under this rule, since
the party against whom it was later offered had the
opportunity to cross-examine. Pearl v. Keystone
Consol. Indus., 884 F.2d 1047 (7th Cir. 1989).
Prior cross-examination motive is more important than whether in fact all questions were asked.
United States v. McClellan, 868 F.2d 210 (7th Cir.
1989).
Testimony of a true predecessor in interest may
be received under this rule. United States v.
McDonald, 837 F.2d 1287 (5th Cir. 1988) (here
civil fraud case deposition was not admissible
against government since the strategic incentive of
the private plaintiffs was not sufficiently similar to
that of a state prosecutor’s office to establish similar
motive for examination).
Generally: United States v. Gravely, 840 F.2d
1156 (4th Cir. 1988); Azalea Fleet, Inc. v. Dryfus
Supply, 782 F.2d 1455 (8th Cir. 1986) (predecessor in interest had motive and interest to make the
same claim of negligence against the same party);
Hannah v. City of Overland, 795 F.2d 1385 (8th
Cir. 1986) (depositions of third parties inadmissible
due to different setting and motives); Lohrmann v.
Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.
1986) (deposition in earlier suit not admissible in
present action since issues and incentives were different); In re Bankers Trust Co., 752 F.2d 874 (3d
Cir. 1984); Dartez v. Fibreboard Corp., 765 F.2d
456 (5th Cir. 1985); United States v. Feldman, 761
F.2d 380 (7th Cir. 1985); United States v. Young
Bros., 728 F.2d 682 (5th Cir. 1984).
Letters rogatory as the form of former testimony. United States v. Salim, 664 F. Supp. 682
(E.D.N.Y. 1987).
Videotaped deposition of deceased witness
was properly admitted under the rule. Mainland
Indus. v. Standal’s Patents, Ltd., 799 F.2d 746 (Fed.
Cir. 1986).
Failure to cross-examine earlier testimony does
not bar its use if opportunity and motive existed
then. DeLuryea v. Winthrop Labs., 697 F.2d 222
(8th Cir. 1983).
Depositions of unavailable foreign witnesses
were properly admitted in criminal case where
issue material and opponent had opportunity to
participate in deposition. United States v. Steele,
685 F.2d 793 (3d Cir. 1982).
Participation or opportunity of “predecessor in
interest” construed broadly in civil cases to permit
use of former testimony. In re Johns-Manville, 93
F.R.D. 853 (N.D. Ill. 1982).
Identity of parties not required, so long as
party against whom testimony will be used had
opportunity and motive to oppose the former testimony now being offered. Neal v. Carey Canadian
Mines, Ltd., 548 F. Supp. 357 (E.D. Pa. 1982).
Post-plea statement, possibly helpful in related
civil action, not admitted. United States v. L’Hoste,
640 F.2d 693 (5th Cir. 1981).
Statements at plea not admissible later on
behalf of a defendant since government did not
have motive or opportunity to cross-examine in
normal fashion at earlier plea proceeding. United
States v. Lowell, 490 F. Supp. 897 (D.N.J. 1980),
aff’d, 649 F.2d 950 (3d Cir. 1981).
Neutral portions of incriminating statement
admitted along with the parts against interest
where integral to statement as a whole. United
States v. Lieberman, 637 F.2d 95 (2d Cir. 1980).
Preliminary hearing testimony admissible if
defendant had incentive to cross-examine similar to
that at trial. Glenn v. Dallman, 635 F.2d 1183 (6th
Cir. 1980); see Scott v. State, 612 S.W.2d 110
(Ark. 1981) (finding no incentive for defense to disclose theory of case at preliminary examination).
Statement purporting to admit to lesser crime
than charged, not corroborated by other facts, not
received. United States v. Evans, 635 F.2d 1124
(4th Cir. 1980).
Prior testimony may be shown by transcript or
testimony of one who heard it; summaries or secondhand descriptions are not adequate. Black
Hills Jewelry Mfg. Co. v. Gold Rush, Inc., 633 F.2d
746 (8th Cir. 1980).
Rule 804(b)(2)—Dying Declarations
Though they are admissible under Rule
804(b)(2), dying declarations are often not reliable. In particular, the lack of inherent reliability of
deathbed statements has often been pointed out.
Experience suggests that the desire for revenge or
self-exoneration or to protect one’s loved ones may
continue until the moment of death. United States v.
Carneglia, 256 F.R.D. 384 (E.D.N.Y. 2009).
Rule 804(b)(2) exempts a declarant’s statements
from the hearsay rule when the declarant believes
that he or she faces imminent death, and the statement concerns the circumstances or cause of his or
her death. SEC v. 800America.com, Inc., 2006
U.S. Dist. LEXIS 85571 (S.D.N.Y. 2006).
Dying declarations are well-established exceptions to the hearsay rule and are admissible in evidence under Rule 804(b)(2). Pippin v. Dir., Tex.
Dep’t of Criminal Justice, 434 F.3d 782 (5th Cir.
2005).
Proponents of a “dying declaration” must lay a
foundation showing a declarant’s belief that his
death is imminent. This state of mind may be evident from the individual’s own statements, circum-
CA–700
Case Authority
stantial evidence, or the opinion of a physician.
Vazquez v. Nat’l Car Rental Sys., Inc., 24 F. Supp.
2d 197 (D.P.R. 1998).
The proponent’s failure to lay adequate foundation for dying declaration exception, including the
extent of the declarant’s wounds, precluded admission of the statement under this Rule. United States
v. Tolliver, 61 F.3d 1189 (5th Cir. 1995).
Generally: United States v. Layton, 549 F. Supp.
903 (N.D. Cal. 1982), aff’d, 702 F.2d 548 (9th
Cir. 1983).
Rule 804(b)(3)—Declarations Against
Interest
Established Doctrine
Rule 804(b)(3) provides an exception to the general rule against admission of a hearsay statement.
A statement against penal interest offered to exculpate a defendant is not admissible via Rule
804(b)(3) unless three elements are met: (1) the
declarant must be unavailable; (2) the statement
must be so far contrary to his pecuniary, proprietary, or penal interest that a reasonable person in
his position would not have made the statement
unless he believed it to be true; and (3) the statement must be corroborated by circumstances
clearly indicating its trustworthiness. The proponent of the statement bears the burden of proof on
these issues. United States v. Honken, 541 F.3d
1146 (8th Cir. 2008); Sinkfield v. Brigano, 487
F.3d 1013 (6th Cir. 2007); United States v. Loggins, 486 F.3d 977 (7th Cir. 2007); United States
v. Kelley, 2007 U.S. Dist. LEXIS 14854 (S.D. Tex.
2007); Mike’s Train House, Inc. v. Lionel, L.L.C.,
472 F.3d 398 (6th Cir. 2006); United States v.
Leahy, 464 F.3d 773 (7th Cir. 2006); United States
v. Paulino, 445 F.3d 211 (2d Cir. 2006); JVC Am.,
Inc. Guardsmark, L.L.C., 2006 U.S. Dist. LEXIS
59270 (N.D. Ga. 2006); SEC v. 800America.com,
Inc., 2006 U.S. Dist. LEXIS 85571 (S.D.N.Y.
2006); Grace United Methodist Church v. City of
Cheyenne, 427 F.3d 775 (10th Cir. 2005); United
States v. Johnson, 121 F. App’x 912 (2d Cir.
2005); Pavlica v. Behr, 2005 U.S. Dist. LEXIS
29877 (S.D.N.Y. 2005); United States v. Zapata,
2005 U.S. Dist. LEXIS 2025 (S.D.N.Y. 2005);
United States v. Camacho, 2005 U.S. Dist. LEXIS
1430 (S.D.N.Y. 2005); United States v. Phillips,
2005 U.S. Dist. LEXIS 1334 (N.D. Ill. 2005); Nelson v. Pilkington PLC (In re Flat Glass Antitrust
Litig.), 385 F.3d 350 (3d Cir. 2004); United States
(Sinclair, Rel. #14, 9/09)
Rule 804
v. Kostopoulos, 119 F. App’x 308 (2d Cir. 2004);
United States v. Saget, 377 F.3d 223 (2d Cir.
2004); Dora Homes, Inc. v. Epperson, 344 F.
Supp. 2d 875 (E.D.N.Y. 2004); United States v.
Bonty, 383 F.3d 575 (7th Cir. 2004); United States
v. Shukri, 207 F.3d 412, 416 (7th Cir. 2000);
United States v. Ochoa, 229 F.3d 631 (7th Cir.
2000); United States v. Tocco, 200 F.3d 401 (6th
Cir. 2000); Am. Auto. Accessories v. Fishman, 175
F.3d 534 (7th Cir. 1999); United States v. Paguio,
114 F.3d 928 (9th Cir. 1997); United States v.
Jinadu, 98 F.3d 239 (6th Cir. 1996); United States
v. Canan, 48 F.3d 954 (6th Cir. 1995); United
States v. MacDonald, 688 F.2d 224 (4th Cir.
1982).
Where a party seeks to introduce a narrative, each
portion must be examined, and only those individual statements that inculpate the declarant are
admissible under Rule 804(b)(3). In determining
whether a statement is genuinely inculpatory for
purposes of applying the Rule 804(b)(3) exception,
a court must examine the circumstances under
which the statement was given. A statement is not
truly self-inculpatory if it merely attempts to shift
blame or curry favor. Sinkfield v. Brigano, 487
F.3d 1013 (6th Cir. 2007); United States v. Chase,
451 F.3d 474 (8th Cir. 2006); United States v.
Johnson, 430 F.3d 383 (6th Cir. 2005); Elnashar v.
Speedway Super-America, LLC, 2005 U.S. Dist.
LEXIS 23464 (D. Minn. 2005); United States v.
Saget, 377 F.3d 223 (2d Cir. 2004); Pratt v. Harvey, 2004 U.S. Dist. LEXIS 26185 (M.D.N.C.
2004); United States v. Scheurer, 2003 CCA LEXIS
195 (Air Force Ct. Crim. App. 2003); United
States v. Ochoa, 229 F.3d 631 (7th Cir. 2000);
Am. Auto. Accessories v. Fishman, 175 F.3d 534
(7th Cir. 1999); United States v. Valenzuela, 53 F.
Supp. 2d 992 (N.D. Ill. 1999); United States v.
Paguio, 114 F.3d 928 (9th Cir. 1997); United
States v. Mendoza, 85 F.3d 1347 (8th Cir. 1996);
United States v. Jinadu, 98 F.3d 239 (6th Cir.
1996); Williamson v. United States, 512 U.S. 594
(1994); Stephens, Inc. v. Geldermann, 962 F.2d
808 (8th Cir. 1992); Rock v. Huffco Gas & Oil Co.,
922 F.2d 272, 282 (5th Cir. 1991); United States
v. Parker, 903 F.2d 91 (2d Cir. 1990).
CA–701
Rule 804
Trial Handbook
In determining whether there are corroborating
circumstances clearly indicating trustworthiness for
purposes of Rule 804(b)(3), courts may consider,
among other things, (1) whether the declarant, at
the time of making the statement, was still exposed
to prosecution for making the statement and the
extent to which the declaration is truly against the
declarant’s penal interest; (2) the timing of the
statement and whether the statement was made
spontaneously; (3) whether other people heard the
out-of-court statement and the party or parties to
whom the statement was made; (4) whether the
declarant repeated the statement and did so consistently; (5) the relationship of the declarant with
the accused, and whether there was any apparent
motive or reason for the declarant to lie or misrepresent the matter; (6) whether the statements were
made under oath or made after Miranda warnings
were given; and (7) the nature and strength of
independent evidence relevant to the conduct in
question. The purpose of this corroboration
requirement is to circumvent fabrication by the
declarant. Even so, the requirement of corroborating circumstances need not remove all doubt with
with respect to the hearsay statement; rather, the
requirement only mandates that corroborating circumstances clearly indicate the trustworthiness of
the statement itself, as opposed to whether other
evidence in the case corroborates what the statement asserts. Sinkfield v. Brigano, 487 F.3d 1013
(6th Cir. 2007); United States v. Kelley, 2007 U.S.
Dist. LEXIS 14854 (S.D. Tex. 2007); United States
v. Johnson, 440 F.3d 832 (6th Cir. 2006); United
States v. Johnson, 121 F. App’x 912 (2d Cir.
2005); Pratt v. Harvey, 2004 U.S. Dist. LEXIS
26185 (M.D.N.C. 2004); Canter v. Hardy, 188 F.
Supp. 2d 773 (E.D. Mich. 2002); United States v.
Tocco, 200 F.3d 401 (6th Cir. 2000); Am. Auto.
Accessories v. Fishman, 175 F.3d 534 (7th Cir.
1999); United States v. Price, 134 F.3d 340 (6th
Cir. 1998); United States v. Barone, 114 F.3d
1284 (1st Cir. 1997); United States v. Bumpass, 60
F.3d 1099 (4th Cir. 1995); United States v. Moore,
936 F.2d 1508 (7th Cir. 1991); United States v.
Brainard, 690 F.2d 1117 (4th Cir. 1982). But see
United States v. Camacho, 2005 U.S. Dist. LEXIS
1430 (S.D.N.Y. 2005) (inference of trustworthiness
from the proffered corroborating circumstances
must be strong, not merely allowable).
Under Rule 804(b)(3) the proponent of a statement must show that the declarant is “unavailable.” This requirement can be established by
showing, for example, that the witness is either
dead, incapacitated, or outside the subpoena
power of the court, or that the witness has exercised his or her Fifth Amendment right not to testify.
United States v. Anthony, 2006 U.S. Dist. LEXIS
92132 (W.D. Ky. 2006); United States v. Phillips,
2005 U.S. Dist. LEXIS 1334 (N.D. Ill. 2005); Dora
Homes, Inc. v. Epperson, 344 F. Supp. 2d 875
(E.D.N.Y. 2004); United States v. Smallwood, 299
F. Supp. 2d 578 (E.D. Va. 2003).
Rule 804(b)(3) does not allow the admission of
self-exculpatory statements, incriminating others,
even if they are made within a broader narrative
that is generally self-inculpatory. This is so because
portions of inculpatory statements that pose no risk
to the declarants are not particularly reliable; they
are just garden variety hearsay. United States v.
Johnson, 430 F.3d 383 (6th Cir. 2005); United
States v. Jinadu, 98 F.3d 239 (6th Cir. 1996);
United States v. Mendoza, 85 F.3d 1347 (8th Cir.
1996); United States v. Nagib, 56 F.3d 798 (7th
Cir. 1995); Williamson v. United States, 512 U.S.
594 (1994); Carson v. Peters, 42 F.3d 384, 386
(7th Cir. 1994).
See also cases describing unavailability within the
context of Rule 804(a)(4).
Specific Applications
There is no requirement imposed by Rule
804(b)(3) that the statement must of itself establish criminal culpability. On the contrary, a facially
neutral statement can trigger the exception. The
question under Rule 804(b)(3) is always whether
the statement was sufficiently against the
declarant’s penal interest, and that question can
only be answered in light of all the surrounding circumstances. N.H. Ins. Co. v. Blue Water Off Shore,
LLC, 2009 U.S. Dist. LEXIS 24223 (S.D. Ala.
2009).
For a statement against interest to be admissible under 804(b)(3), the proponent must show that:
(1) the declarant is unavailable as a witness; (2) at
the time the statement was made, it was so far contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject the declarant to
civil or criminal liability, that a reasonable person
in the declarant’s position would not have made the
statement unless believing it to be true. Whether a
statement is in fact against interest must be determined from the circumstances of each case.
CA–702
Case Authority
United States v. Bonds, 2009 U.S. Dist. LEXIS
16120 (N.D. Cal. 2009).
Many courts require a broad reading of Rule
804(b)(3). The word “tending” broadens the
phrase, so that the statement need not be a plain
confession making the difference between guilty
and not guilty. The logic of Rule 804(b)(3)—that a
reasonable person would not falsely subject himself
to criminal liability—also requires, however, that
the statements, in a real and tangible way, subject
the declarant to criminal liability. A showing that
the statements solidly inculpate the declarant is
required. United States v. Bonds, 2009 U.S. Dist.
LEXIS 16120 (N.D. Cal. 2009).
Statements against interest are admissible under
Rule 804(b)(3) if they are statements that at the time
of their making are so far contrary to the
declarant’s pecuniary or proprietary interest that a
reasonable person in the declarant’s position would
not have made the statement unless believing it to
be true. Such statements are admissible if a defendant shows (1) that the declarant is unavailable as
a witness, (2) that the statement was against the
declarant’s penal interest when made, and (3) corroborating circumstances clearly suggest that the
statement is trustworthy. United States v. Hatfield,
2009 U.S. Dist. LEXIS 1689 (S.D. Ill. 2009).
The statement against interest exception found in
Rule 804(b)(3) applies only when the declarant is
unavailable as a witness and allows the admission
of a statement that was at the time of its making so
far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the
declarant to civil or criminal liability, or to render
invalid a claim by the declarant against another,
that a reasonable person in the declarant’s position would not have made the statement unless
believing it to be true. The rule requires that the
declarant know that the statement was against his
interests at the time it was made. Kesey, LLC v.
Francis, 2009 U.S. Dist. LEXIS 28078 (D. Or.
2009).
The exception to the hearsay rule embodied in
Rule 804(b)(3) only applies if the declarant is
unavailable as a witness; thus, where the defendant
was available to and did, in fact, testify on his own
behalf at trial, his prior out-of-court statement to
another is not admissible under the statement
against interest exception to the hearsay rule.
United States v. Hughes, 535 F.3d 880 (8th Cir.
2008).
When a defendant invokes his right to refuse
to testify under the Fifth Amendment, he makes
himself unavailable to any other party under Rule
804, but he is not unavailable to himself. United
States v. Hughes, 535 F.3d 880 (8th Cir. 2008).
(Sinclair, Rel. #14, 9/09)
Rule 804
A statement against penal interest under Rule
804(b)(3) is not limited to confessions of criminal
responsibility, but can include statements showing
detailed knowledge of the crime. The fact that the
statement was made to a friend or cellmate does
not effect whether the statement was against the
declarant’s penal interest. United States v. Williams,
2008 U.S. Dist. LEXIS 88383 (C.D. Cal. 2008).
Self-inculpatory statements made in a suicide
note that might otherwise be excepted from the bar
of the hearsay rule as admissions against penal
interest under Rule 804(b)(4) are not against the
declarant’s penal or pecuniary interests, because
such concerns are an interest of no moment to a
dead man. ReliaStar Life Ins. Co. v. Thompson,
2008 U.S. Dist. LEXIS 71726 (S.D. Tex. 2008).
Statements by deceased declarant that he purchased illegal drugs at a house near a school were
admissible under the rule because “a reasonable
man would [not] falsely admit to waiting for
cocaine at the . . . home, a serious crime, knowing
there was a chance, albeit slight, that the admission
could be used to subject him to severe penalties.”
United States v. Westry, 2008 WL 1735384 (11th
Cir. 2008).
A statement may be received under this rule
even if made to a person “close” to the declarant,
with whom declarant had engaged in “frequent
drug-related transactions,” since there was “a
chance, albeit slight,” that the statement could
expose the declarant to severe penalties. United
States v. Westry, 2008 WL 1735384 (11th Cir.
2008).
An unavailable witness’s admission to sexual
relations with a minor is admissible as a statement
against penal interest, even where he claims that
the sex was consensual (a self-exculpatory explanation). United States v. Udeozor, 515 F.3d 260
(4th Cir. 2008).
Under Rule 804(b)(3), statements contained in
a letter may be admissible as a statement against
penal interest. United States v. Leahy, 464 F.3d 773
(7th Cir. 2006).
A statement is against penal interest within the
scope of the hearsay exception embodied in Rule
804(b)(3) if it subjects the declarant to criminal liability; however, it does not include statements that
could possibly subject the declarant to prosecution. United States v. Leahy, 464 F.3d 773 (7th Cir.
2006).
A district court may not just assume, for purposes of this Rule, that a statement is self-inculpatory because it is part of a fuller confession, and
this is especially true when the statement implicates
someone else. United States v. Johnson, 430 F.3d
383 (6th Cir. 2005).
CA–703
Rule 804
Trial Handbook
A police informant’s admission of personal
involvement in criminal activity is presumed reliable under Rule 804 (b)(3). United States v. Randle,
2005 U.S. Dist. LEXIS 22263 (W.D. Wis. 2005).
Diary entries can satisfy the requirements of
Rule 804(b)(3), but a searching inquiry is appropriate where such evidence is offered. Nelson v.
Pilkington PLC (In re Flat Glass Antitrust Litig.), 385
F.3d 350 (3d Cir. 2004).
Courts require corroboration of both the
declarant’s trustworthiness as well as the statement’s trustworthiness. United States v. Johnson,
121 F. App’x 912 (2d Cir. 2005).
A finding that a statement was not adequately
corroborated was supported by findings that the
declarant had made prior inconsistent statements to
his parole officer (denying possession of a gun)
and to the Federal Public Defender’s Office (stating
that another passenger in the car admitted possession of the gun). United States v. Johnson, 121 F.
App’x 912 (2d Cir. 2005).
Noninculpatory statements are not admissible
under Rule 804(b)(3) even if made within a
broader context of a generally inculpatory narrative. United States v. Bonty, 383 F.3d 575 (7th Cir.
2004).
A district court correctly determined, after an
adequately particularized analysis, that the bulk of
a co-actor’s statements were self-inculpatory
because they described acts that the defendant and
the other individual committed jointly. Those statements in which declarant described acts that defendant alone had committed—such as a statement
that the authorities arrested one of defendant’s
straw purchasers while defendant himself escaped
investigation—were self-inculpatory in context, the
court concluded, because the statements reflected
the declarant’s attempt to give the confidential
informant examples of how he and defendant
operated and why their scheme worked. United
States v. Saget, 377 F.3d 223 (2d Cir. 2004).
The circumstances of a proffered statement cast
grave doubt upon the prerequisite of admissibility
that it be against the declarant’s penal interest
where the picture that emerges from was that the
declarant was stating or intimating that he was the
murderer not as an individual making a credible
statement against his own penal interest, but rather
as playing a leading role in a fictitious drama
designed to free the defendants and dismay the
government (which, given the declarant’s world
view, would constitute a gratifying killing of two
birds with one stone). United States v. Camacho,
2005 U.S. Dist. LEXIS 1430 (S.D.N.Y. 2005).
A witness’s statement that a gun was hers in no
way excludes the possibility that the defendant
felon possessed the gun. Ownership and possession are wholly distinct concepts. United States v.
Phillips, 2005 U.S. Dist. LEXIS 1334 (N.D. Ill.
2005).
A statement made under oath before a grand
jury after the witness was fully advised that she
could be prosecuted for perjury if she lied weighs
heavily against a finding that the contrary statements are trustworthy. United States v. Phillips,
2005 U.S. Dist. LEXIS 1334 (N.D. Ill. 2005).
A close relationship between the declarant and
the defendant weighs against a finding of corroborating circumstances. United States v. Phillips,
2005 U.S. Dist. LEXIS 1334 (N.D. Ill. 2005).
The corroboration requirement of Rule
804(b)(3) reflects the long-standing concern that a
criminal defendant might get a pal to confess to the
crime the defendant was accused of, the pal figuring that the probability of his actually being prosecuted either for the crime or for perjury was slight.
United States v. Phillips, 2005 U.S. Dist. LEXIS
1334 (N.D. Ill. 2005).
A declarant’s apology for stealing items was a
declaration against interest admissible under Rule
804(3). United States v. Duran Samaniego, 345
F.3d 1280 (11th Cir. 2003).
Inconsistent out-of-court statements of an undercover law enforcement agent made in the course of
exercise of his authority and within the scope of
that authority, which statements would be admissions against interest binding upon the government in civil cases, were not admissible to prove
the truth of the matter asserted in a criminal prosecution under the exception to the hearsay rule for
admissions against interest by an agent of partyopponent since the agent was an independent disinterested party for the purposes of the prosecution.
United States v. Yildiz, 355 F. App’x 80 (2d Cir.
2004).
Portion of statements to which murder victim’s
roommate was expected to testify at defendants’
trial, in which the victim admitted that he had stolen
drugs from the defendants and had plans to rob
them, was admissible under the exception to the
hearsay rule governing statements against penal
interest; the victim was unavailable to testify
because he had been murdered, the statements
were adverse to the victim’s interests, and a sufficient corroboration existed given that the victim
repeated the statement and had no reason to lie.
United States v. Smallwood, 299 F. Supp. 2d 578
(E.D. Va. 2003).
Because guilty plea allocutions qualify as statements against penal interest, they are admissible
under Rule 804(b)(3). United States v. Viana, 2003
U.S. Dist. LEXIS 19536 (S.D.N.Y. 2003).
CA–704
Case Authority
Rule 804(b)(3) does not allow admission of nonself-inculpatory statements, even if they are made
within a broader narrative that is generally selfinculpatory. United States v. Scheurer, 2003 CCA
LEXIS 195 (Air Force Ct. Crim. App. 2003).
In a prosecution for being a former felon in possession of a weapon, a statement by another witness that the defendant could not have seen the gun
was not admissible because it was not corroborated as required by Rule 804(3). United States v.
Henderson, 86 F. App’x 213 (8th Cir. 2003).
A declarant’s statement that he shot the victims
in self-defense because the statement was exculpatory, and not against his penal interest. United
States v. Shryock, 342 F.3d 948 (9th Cir. 2003).
Statements were not admissible at defendant’s
trial under hearsay exception for statements
against penal interest, for the statements were not
themselves self-inculpatory as to the coconspirator,
and the statements lacked corroborating circumstances indicating their trustworthiness. United
States v. Jackson, 335 F.3d 170 (2d Cir. 2003).
Statements in others’ plea colloquies implicating civil defendant were inadmissible hearsay and
thus could not be considered by court in civil proceeding for truth of matter asserted; those statements did not fall within any exception to hearsay
rule since they were made pursuant to a plea
agreement that served to substantially reduce
pleader’s criminal liability and thus provided no
great indicia of reliability, and were not admissible
as statements against interest because only those
specific statements within a general confession
which are self-inculpatory are admissible as statements against interest. S.E.C. v. Healthsouth Corp.,
261 F. Supp. 2d 1298 (N.D. Ala. 2003).
Former defendant’s plea allocution was admissible against defendant in a prosecution for conspiracy to make an extortionate extension of credit and
for conspiracy to use and using extortionate means
to collect an extension of credit; former defendant’s
plea allocution was against his penal interest since
it exposed him to a potentially long prison sentence, and the allocution did not mention defendant. United States v. Lombardozzi, 2003 WL
1907965 (S.D.N.Y. 2003).
A statement redacted pursuant to Bruton was
properly admitted, where the declarant who made
the statement against his penal interest was
unavailable for trial. In its redacted form, the statement read: “About three months ago, I was offered
$1,500 to kill a kid. I then drove around with the
person who offered me the job looking for the kid. I
also took a handgun from that person. We didn’t
find the kid.” In its redacted form, the statement
inculpated the declarant, and so far tended to sub-
(Sinclair, Rel. #14, 9/09)
Rule 804
ject the declarant to criminal liability, such that a
reasonable person in his position would not have
made the statement unless believing it to be true.
Statement in question was introduced to prove
existence of murder-for-hire conspiracy; on its face,
it did not incriminate the defendant and did not
prejudice rights of the defendant. United States v.
Lee, 2003 WL 1746968 (S.D.N.Y. 2003).
Post-arrest statements made by defendant that
he never touched the weapon that was found inside
his jacket and that the only motion he made was his
arms moving forward and back when he was running did not qualify as admissions against defendant’s penal interest as they were most likely made
to avoid prosecution for assaulting a federal officer
and could not be construed to be an admission of
guilt. United States v. Peeples, 2003 WL 57030
(N.D. Ill. 2003).
A defendant’s descriptions of the sequence of
physical events leading to his wounding during his
arrest are not admissible under Rule 804 when his
statement is likely made to avoid prosecution for
assaulting a federal officer and could not be construed to be an admission of guilt. United States v.
Peeples, 2002 U.S. Dist. LEXIS 106 (N.D. Ill.
2003).
Self-incriminating statements from the guilty
pleas of coconspirators are admissible under Rule
804 when those coconspirators invoke the Fifth
Amendment, provided that the guilty pleas contain indicia of trustworthiness. This requirement is
met when each co-defendant admits participation
in terms that do not attempt to shift the responsibility for guilt to another, under oath, with the advice
of counsel, and in the presence of the judge. United
States v. Aguilar, 295 F.3d 1018 (9th Cir. 2002).
Admissions about selling drugs to a third person were inadmissible under the statement against
interest hearsay exception of Rule 804(b)(3)
because they implicated not only the declarant but
also the third person. United States v. Chapin, 231
F. Supp. 2d 600 (E.D. Mich. 2002).
The credibility of the witness who relates the
statement in court is not a proper factor for the
court to consider in assessing corroborating circumstances for Rule 804(b)(3) purposes, insofar as
it usurps the jury’s role. Canter v. Hardy, 188 F.
Supp. 2d 773 (E.D. Mich. 2002).
To reach the conclusion that an out-of-court
hearsay declaration would be admissible under
Rule 804(b)(3) the court need not conclude that the
testimony of the in-court witness describing that
declaration is credible. United States v. Camacho,
188 F. Supp. 2d 429 (S.D.N.Y. 2002).
A declaration against the interest of the
declarant’s employer does not fall within the
CA–705
Rule 804
Trial Handbook
exception to the hearsay rule under Rule 804(b)(3).
CGB Occupational Therapy, Inc. v. RHA/Pa. Nursing Homes, Inc., 2002 U.S. Dist. LEXIS 21550
(E.D. Pa. 2002).
In order for taped conversations between a
defendant and a co-defendant while confined
together awaiting trial to be admissible under Rule
804, the statements by the co-defendant must be
admissions of guilt which clearly inculpate him in
the crime. United States v. Church, 2002 U.S. Dist.
LEXIS 17887 (W.D. Va. 2002).
A murder coconspirator’s out-of-court-statements inculpating himself and defendant were
admissible statements against interest, including
those statements that apparently implicated solely
defendant. United States v. Westmoreland, 240
F.3d 618 (7th Cir. 2001).
A co-defendant’s statement during a plea allocution that more than one person was involved in a
conspiracy was not sufficiently self-inculpatory to
be admissible as statement against penal interest;
although the answer did not attempt to shift blame,
the question posed at the government’s request
invited the co-defendant to curry the government’s
favor by responding, and lacked necessary guarantees of trustworthiness. United States v. Tropeano, 252 F.3d 653 (2d Cir. 2001).
In a prosecution for murder of a drug dealer, a
tape-recorded conversation between defense counsel and a drug dealer was not admissible as
against penal interest where the attorney promised
to protect the declarant and indicated that
declarant could not be charged with a crime, leaving the impression that the declarant was not subjecting himself to real criminal liability. United
States v. Alvarez, 266 F.3d 587 (6th Cir. 2001).
Police notes of an anonymous call from a tipster referring to the perpetrator of a murder with
which defendant was charged were not admissible
as declarations against penal interest where the
declarant invoked the privilege against self-incrimination and there was no corroboration of identity
of the “boss” mentioned in the call. United States v.
Patrick, 248 F.3d 11 (1st Cir. 2001).
An unavailable coconspirator’s statements
made during his plea colloquy were admissible
under Rule 804(b)(3) given their self-inculpatory
nature, even if they tended to incriminate other
defendants when coupled with other evidence at
trial. United States v. Centracchio, 265 F.3d 518
(7th Cir. 2001).
Because a coconspirator’s statements incriminating the defendant do not fall within a firmly rooted
hearsay exception, the Confrontation Clause
requires that such evidence contain “particularized
guarantees of trustworthiness” such that cross-
examination would be of marginal utility in determining the truthfulness of the statements. Such
guarantees must be shown by the circumstances of
the statements themselves and cannot be proven by
other evidence produced at trial. United States v.
Ochoa, 229 F.3d 631 (7th Cir. 2000).
A very strong presumption of unreliability
attaches to statements of coconspirators where the
statements (1) are produced through government
involvement; (2) describe past events; and (3) have
not been subject to adversarial testing. United
States v. Ochoa, 229 F.3d 631 (7th Cir. 2000).
Where a declarant heard agents say that he
could benefit from testifying, and might not be
charged, gave him a strong incentive to curry favor
with the FBI by falsely implicating his two coconspirators so that he would not be charged. United
States v. Ochoa, 229 F.3d 631 (7th Cir. 2000).
Statements made by a coconspirator to a law
enforcement official are far less likely to be trustworthy than those to family or friends. United
States v. Ochoa, 229 F.3d 631 (7th Cir. 2000).
Where the government seeks to introduce a
statement, otherwise hearsay, which inculpates its
declarant but which, in its detail, also inculpates
the defendant by spreading or shifting onto him
some, much, or all of the blame, the out-of-court
statement entirely lacks necessary indicia of reliability. It is garden variety hearsay as to the defendant and it does not lose that character merely
because it in addition reliably inculpates the
declarant. United States v. McClesky, 228 F.3d 640
(6th Cir. 2000).
An alleged coconspirator in the custody of law
enforcement officials will generally have a salient
and compelling interest in incriminating other persons, both to reduce the degree of his own apparent responsibility and to obtain lenience in
sentencing. United States v. McClesky, 228 F.3d
640 (6th Cir. 2000).
While advice of rights and knowing waiver of
them are strong indicators that a statement was voluntary and therefore presumptively reliable as to
the declarant himself, they offer no basis for finding the necessary circumstantial guarantees of
trustworthiness as to the portion inculpating
another defendant. United States v. McClesky, 228
F.3d 640 (6th Cir. 2000).
It is highly unlikely that post-arrest, custodial
statements, which clearly shift the brunt of the
blame to defendants effectively can be rebutted.
Vincent v. Seabold, 226 F.3d 681 (6th Cir. 2000).
The key for Rule 804(b)(3), and indeed any
hearsay exception, is the reliability of the
declarant’s original statement, not the reliability of
the hearsay witness (who may be cross-examined
CA–706
Case Authority
at trial). United States v. Shukri, 207 F.3d 412 (7th
Cir. 2000).
Where a witness’s statements about a conspiracy linked himself to the others in the conspiracy,
they were against his own penal interest; thus, the
statements were not rendered inadmissible by virtue of the fact that others were implicated. United
States v. Tocco, 200 F.3d 401 (6th Cir. 2000).
Where alleged coconspirator invoked the Fifth
Amendment at trial of defendant, testimony of public defender’s investigator of statements exculpatory
of defendant made by the coconspirator were not
admissible hearsay where the statements were in
direct conflict with the statements made by the
coconspirator in conjunction with her plea agreement and thus were insufficiently trustworthy under
Rule 804(b)(3), although made in an attorney’s
office and with a contemporaneous written record.
United States v. Lumpkin, 192 F.3d 280 (2d Cir.
1999).
No abuse of discretion where the trial judge
excluded as untrustworthy under 804(b)(3) the affidavit of a witness who contended that two packages of cocaine found at the crime scene belonged
to the witness. The affidavit appeared to be carefully drafted to create an impression that a third
package of cocaine found at the scene belonged to
the witness, which, due to its location, was highly
improbable. United States v. Amerson, 185 F.3d
676 (7th Cir. 1999).
Rule 804(b)(3) expressly requires corroborating circumstances only for statements exculpating
the accused. It is best to continue to utilize a unitary
standard for applying Rule 804(b)(3) to statements
offered both to exculpate and to inculpate a third
party. Am. Auto. Accessories v. Fishman, 175 F.3d
534 (7th Cir. 1999).
Given the timing of the settlement agreements
between the declarant and the authorities, it was
reasonable to infer the declarant’s statements were
made to curry favor with them and thus the statements were properly excluded. Am. Auto. Accessories v. Fishman, 175 F.3d 534 (7th Cir. 1999).
Declarant’s statement was neither against his
own interest nor trustworthy, where declarant made
his unsworn statement immediately after his arrest
without the benefit of counsel, was an obvious flight
risk, needed to cooperate to obtain bond to attend
his daughter’s baptism, and pointed to defendant
as ringleader, hopefully shifting blame and reducing any potential prison sentence. United States v.
Valenzuela, 53 F. Supp. 2d 992 (N.D. Ill. 1999).
Statement given by an unavailable declarant to
the FBI regarding his involvement in a racketeering
scheme was admissible against coconspirators
where the agreement between declarant and the
(Sinclair, Rel. #14, 9/09)
Rule 804
FBI required him to provide truthful information,
did not grant immunity for criminal activity of
which he informed the FBI, and did not release him
from the terms of probation, and the favorable
treatment the declarant was to receive under the
agreement was not contingent on convicting the
defendant in the instant case. United States v. Keltner, 147 F.3d 662 (8th Cir. 1998).
Even if the declarant was unavailable and the
statement was against his penal interest, the fact
that the declarant later recanted the statement
under oath in court indicates that it was not sufficiently trustworthy to be admitted under Rule
804(b)(3). United States v. Garcia, 1998 U.S. Dist.
LEXIS 16720 (D. Conn. 1998).
Under Rule 804(b)(3), the term trustworthiness is
analyzed by two distinct elements. In order for a
declaration against penal interest to be trustworthy
evidence, the statement must actually have been
made by the declarant, and it must afford a basis
for believing the truth of the matter asserted. United
States v. Johnson, 19 F. Supp. 2d 720 (W.D. Tex.
1998) (excluding a statement against penal interest
where the declarant volunteered the statement after
an opportunity for reflective thought under circumstances she herself carefully engineered).
Exclusion of statements by an unavailable witness as untrustworthy was appropriate where the
defendant sought to introduce unsworn statements
made to the government during its investigation of
the matter that the declarant later expressly
recanted in a stipulation executed as part of a corporate plea agreement. United States v. Doyle, 130
F.3d 523 (2d Cir. 1997).
The credibility of an absent declarant is a consideration pertinent to the probative value of her or
his testimony and, thus, relevant to a judge’s decision to admit or exclude evidence under the evervigilant Rule 403, even if not a proper question for
the judge under Rule 804. United States v. Doyle,
130 F.3d 523 (2d Cir. 1997).
District court erred in admitting a statement
given to police by a declarant who was offered
leniency in exchange for cooperation. United States
v. Beydler, 120 F.3d 985 (9th Cir. 1997).
The court properly admitted a declarant’s selfinculpatory statements, but incorrectly excluded the
declarant’s statement that the defendant, his son,
had nothing to do with the crime, where there was
sufficient corroborating evidence. United States v.
Paguio, 114 F.3d 928 (9th Cir. 1997).
Williamson does not creates a per se bar to any
and all statements against interest that also implicate another. United States v. Barone, 114 F.3d
1284 (1st Cir. 1997).
CA–707
Rule 804
Trial Handbook
A statement inculpating both the declarant and
defendant may be sufficiently reliable as to be
admissible where the statement is made in a noncustodial setting to an ally, rather than to a law
enforcement official, and where circumstances surrounding the portion of the statement that inculpates the defendant provide no reason to suspect
that this portion of the statement is any less trustworthy than the portion that inculpates the
declarant. United States v. Barone, 114 F.3d 1284
(1st Cir. 1997).
Where it is clear that the statements inculpating
both the declarant and the defendant were not
made in order to limit the declarant’s exposure to
criminal liability, the declarations against interest
exception is firmly rooted for Confrontation Clause
purposes. United States v. Barone, 114 F.3d 1284
(1st Cir. 1997).
In general a plea of guilty is a statement against
the penal interest of the pleader for the obvious
reason that it exposes him to criminal liability, and
so much of the allocution as states that that defendant committed or participated in the commission
of a crime, thereby permitting the court to accept
the plea, is normally against his interest. United
States v. Muyet, 958 F. Supp. 136 (S.D.N.Y. 1997).
Statements made at a bond hearing could be
against the declarant’s penal interest, and hence
admissible under the rule. United States v. Tokars,
95 F.3d 1520 (11th Cir. 1996).
The fact that a person is making a broadly selfinculpatory confession does not make more credible the confession’s non-self-inculpatory parts.
United States v. Mendoza, 85 F.3d 1347 (8th Cir.
1996).
One actor’s admission that drugs “belonged” to
him is not necessarily exculpatory of another actor
charged with knowing possession of the contraband. United States v. Pohlman, 1996 U.S. App.
LEXIS 24775 (10th Cir. 1996).
A statement may be deemed to subject the
declarant to liability if it would be probative at trial
against the declarant. United States v. Jinadu, 98
F.3d 239 (6th Cir. 1996).
A person’s adoption of an agent’s statement,
indicating he knew packages contained China
White heroin, would have been admissible under
Rule 804(b)(3) as a statement against interest if
person had made the statement himself, rather than
adopting the agent’s statement by responding
“yes.” United States v. Jinadu, 98 F.3d 239 (6th
Cir. 1996).
Statements in plea allocutions were against
penal interests, and thus properly admitted. United
States v. Santobello, 1996 U.S. App. LEXIS 4511
(2d Cir. 1996).
Where a declarant agreed to cooperate with
authorities after she was caught red-handed with
$16,000 in drug money, her statement that the
defendant delivered narcotics was not admissible
under the rule because she had “nothing to lose” at
the time of the statement inculpating the defendant. United States v. Mendoza, 85 F.3d 1347 (8th
Cir. 1996).
Statements by one who later invokes the Fifth
Amendment do not necessarily meet the “against
penal interest” requirement of Rule 804(b)(3).
United States v. Thomas, 62 F.3d 1332 (11th Cir.
1995).
In a trial for mail and wire fraud related to operation of a loan brokerage company, statements by
principals of another brokerage firm that defendants prepared their loan packages well and regularly checked on the status of applications were not
statements against declarants’ interests. United
States v. Thomas, 62 F.3d 1332 (11th Cir. 1995).
A self-inculpatory statement in which the defendant confessed to the crime made by a friend of
defendant who later invoked the Fifth Amendment
was not admissible where a government investigator reported rumors that defendant might have
paid his friend to confess and three eyewitnesses
saw defendant shoot the victim. United States v.
Bumpass, 60 F.3d 1099 (4th Cir. 1995).
Self-inculpatory statements by a co-defendant
made during a plea hearing, offered to exculpate
defendant, were admissible as statements against
penal interest. United States v. Nagib, 56 F.3d 798
(7th Cir. 1995).
In criminal trial for illegal possession of firearms, an unavailable declarant’s statements to
police which placed declarant in the room where
the weapons were found did not amount to statements against penal interest. United States v. Butler,
71 F.3d 243 (7th Cir. 1995).
In prosecution for illegal weapons possession,
testimony of a passenger in defendant’s car that
upon seeing the flashing police lights defendant
told him to shove the shotgun through the stereo
speaker into the trunk was admissible as a statement against interest. United States v. Elkins, 71
F.3d 81 (10th Cir. 1995).
In prosecution of defendant for destruction of
motor vehicles and shooting of driver of motor
vehicle as vehicles attempted to cross a picket line,
proffer by a witness’s attorney regarding the witness’s alleged purchase of pistol from defendant
was not admissible as a statement against interest,
due to lack of sufficient corroborating circumstances. United States v. Lowe, 65 F.3d 1137 (4th
Cir. 1995).
CA–708
Case Authority
Investigator’s hearsay testimony pertaining to an
employee’s statement that the employee had been
told by his boss to steal from a customer was
admissible as a statement against interest. PECO
Energy Co. v. Boden, 64 F.3d 852 (3d Cir. 1995).
In a prosecution for drug offenses, a co-defendant’s statement during plea negotiations that
defendants had not known of the proposed drug
exchange at the time the sale was to take place was
not sufficiently corroborated to be admissible as
declaration against penal interest, in light of evidence of defendants’ involvement in the conspiracy and the fact that defendant’s statements did not
preclude the other defendants’ involvement. United
States v. Dean, 59 F.3d 1479 (5th Cir. 1995).
Statements made by two coconspirators to a
third concerning the delivery of a package that
turned out to be a kilogram of cocaine constituted
admissions that they were dealing in cocaine and
thus were statements against their penal interest.
United States v. Saccoccia, 58 F.3d 754 (1st Cir.
1995).
Coconspirator’s statement, made when he was
arrested and found in possession of a gun, that he
had the gun because he had heard that people
were sometimes robbed during drug deals and
there was a lot of money involved in the deal at
issue was admissible as statement against penal
interest. United States v. Sandoval-Curiel, 50 F.3d
1389 (7th Cir. 1995).
Coconspirator who was a fugitive was unavailable as a witness and his statement against penal
interest was, therefore, admissible. United States v.
Sandoval-Curiel, 50 F.3d 1389 (7th Cir. 1995).
Statement made by coconspirator immediately
after being advised of his Miranda rights and
against his penal interest was sufficiently trustworthy to be admissible, where nothing indicated that
it was made in an attempt to gain leverage with
law enforcement officers. United States v. Sandoval-Curiel, 50 F.3d 1389 (7th Cir. 1995).
Though available for use against the declarant
in her own case, her statement made after her
arrest that implicated the defendant could not be
considered against penal interest since she had
already been found with two kilograms of cocaine
and had nothing to lose by implicating herself or
the defendant. United States v. Hazelett, 32 F.3d
1313 (8th Cir. 1994).
A statement by defendant’s brother that a gun
was his and not defendant’s was not admissible
under the rule, upon consideration of whether the
declarant had any motive to misrepresent the facts,
declarant’s character, his relationship with the
defendant, and other factors. United States v. Bobo,
994 F.2d 524 (8th Cir. 1993).
(Sinclair, Rel. #14, 9/09)
Rule 804
No abuse of discretion to exclude decedent’s
statement made during brief recovery from a coma
for lack of trustworthiness where statement
absolved decedent of fault. Pau v. Yosemite Park &
Curry Co., 928 F.2d 880, 890 (9th Cir. 1991).
Newspaper accounts of defendant’s out-ofcourt statement were not more probative on the
point because the reporters were available to testify. Larez v. City of Los Angeles, 946 F.2d 630,
644 (9th Cir. 1991).
Commonwealth’s “Plea of Guilty” form signed
by defendant conclusively established that defendant was advised of his rights, and was admissible
under the residual exception. Raley v. Parke, 945
F.2d 137, 143 n.4 (6th Cir. 1991).
Unavailable conspirator’s statement made after
defendant’s arrest that she had told defendant to
pick up the money lacked sufficient trustworthiness
to be offered by defendant to prove that he was
told to pick up money, not drugs. United States v.
Gomez, 927 F.2d 1530, 1536 (11th Cir. 1991).
Undercover agent’s testimony that deceased
coconspirator had demanded advance payment
because defendant was delinquent in payments
was an admissible statement against penal interest.
United States v. Nazemian, 948 F.2d 522, 530
(9th Cir. 1991).
Tape recordings of defendant’s conversations
were admissible as statements against interest
where corroborating testimony confirmed their
trustworthiness. United States v. Harty, 930 F.2d
1257, 1263 (7th Cir. 1991).
Statements against interest made by unavailable
witness to a stranger that exculpated defendant
lacked trustworthiness. United States v. Hendrieth,
922 F.2d 748, 750 (11th Cir. 1991).
Defendant’s threat “to get” witness for testifying
truthfully was admissible as statement against interest. United States v. Triplett, 922 F.2d 1174, 1182
(5th Cir. 1991).
Co-defendant’s statement was against penal
interest even though declarant had been granted
immunity. United States v. Gabay, 923 F.2d 1536,
1540 (11th Cir. 1991).
Error to exclude unavailable witness’s confession
to FBI, which would have exculpated defendant,
since the statement was against penal interest and
had been corroborated. United States v. Arthur,
949 F.2d 211 (6th Cir. 1991).
Toll record of coconspirator’s telephone calls
was improperly admitted under catch-all exception
because defendant had not received pretrial notice.
United States v. Gomez, 921 F.2d 378, 384 (1st
Cir. 1990).
Declarations putatively made against penal
interest were not properly received where the
CA–709
Rule 804
Trial Handbook
declarant was in custody and had almost irresistible incentives to curry favor with the government,
the government in fact offered to reduce the
declarant’s incarceration by half if he made statements against the target, and the statements trivialized his own role rather than exposing him to any
real risks. United States v. Magana-Olivera, 917
F.2d 401 (9th Cir. 1990).
In the absence of corroborating circumstances,
purported declarations against penal interest are
inadmissible. United States v. Parker, 903 F.2d 91
(2d Cir. 1990).
Generally: United States v. Candoli, 870 F.2d
496 (9th Cir. 1989); United States v. Johnson, 802
F.2d 1459 (D.C. Cir. 1986); United States v. Woolbright, 831 F.2d 1390 (8th Cir. 1987); Pfeil v. Rogers, 757 F.2d 850 (7th Cir. 1985); United States v.
Ford, 771 F.2d 60 (2d Cir. 1985) (corroboration
requirement); United States v. Ospina, 739 F.2d
448 (9th Cir. 1984); United States v. Williams, 738
F.2d 172 (7th Cir. 1984).
Exculpatory statements generally: United States
v. Chalan, 812 F.2d 1302 (10th Cir. 1987) (compatriots’ assertion of the Fifth Amendment, combined with their presence near the crime scene,
was insufficient to make a declaration against
interest).
Corroboration requirement for exculpatory
statements of third parties: United States v. Salvador, 820 F.2d 558 (2d Cir. 1987) (Second Circuit
requires corroboration of both the declarant’s trustworthiness and the statement’s content via other
evidence); United States v. Eagle Hawk, 815 F.2d
1213 (8th Cir. 1987); United States v. Lopez, 777
F.2d 543 (10th Cir. 1985); United States v. Stratton, 779 F.2d 820 (2d Cir. 1986).
Inculpatory statements: United States v. Harrell,
788 F.2d 1524 (11th Cir. 1986) (tape of several
defendants planning crime admissible); United
States v. Rasmussen, 790 F.2d 55 (8th Cir. 1986)
(exclusion of insufficiently corroborated matter).
Co-defendants’ statements: Lee v. Illinois, 476
U.S. 530 (1986) (confrontation right limits use of
co-defendant’s statements).
Statements against penal interest: United States
v. Lopez, 777 F.2d 543 (10th Cir. 1985) (since a
reasonable person would not have made the statements were they not true, attorney for third party
should have been allowed to testify to inculpatory
statement made to him); United States v. Stratton,
779 F.2d 820 (2d Cir. 1986) (foundation amply
laid here); United States v. Scopo, 861 F.2d 239
(2d Cir. 1988) (guilty plea allocution properly
admitted as declaration against interest).
Admissions to help a friend may not qualify.
United States v. Tovar, 687 F.2d 1210 (8th Cir.
1982).
Statements short of implicating declarant in
crime may not be admissible. United States v.
Tovar, 687 F.2d 1210 (8th Cir. 1982).
Guilty plea allocutions of coconspirators,
redacted to avoid direct reference to defendant,
received as trustworthy under this rule. United
States v. Winley, 638 F.2d 560 (2d Cir. 1981).
Benefits to an already-jailed declarant from
confessing and implicating others renders statement inadmissible as not truly against declarant’s
penal interest. United States v. Sarmiento-Perez,
633 F.2d 1092 (5th Cir. 1980); United States v.
Oliver, 626 F.2d 254 (2d Cir. 1980).
Third party’s confession implicating defendant
held inadmissible absent corroborating evidence.
United States v. Alvarez, 584 F.2d 694 (5th Cir.
1978).
Rule 804(b)(4)—Statement of Personal or
Family History
Rule 804 of the Federal Rules of Evidence provides that statements “concerning the declarant’s
own birth, adoption, marriage, divorce, legitimacy,
relationship by blood, adoption, or marriage,
ancestry, or other similar fact of personal or family
history” are not excluded by the hearsay rule if the
declarant is unavailable. Neither party contested
that citizenship was such a personal fact. United
States v. Pluta, 176 F.3d 43 (2d Cir. 1999).
An unavailable witness’s statement to immigration officers regarding his alienage is admissible
under exceptions to the hearsay rule for statements
of personal or family history. United States v.
Castillo-Reyes, 1998 U.S. App. LEXIS 28323 (9th
Cir. 1998).
Generally: United States v. Carvalho, 742 F.2d
146 (4th Cir. 1984); United States v. MedinaGasca, 739 F.2d 1451 (9th Cir. 1984).
CA–710
Case Authority
Rule 804(b)(5)—[Reserved]
Rule 804(b)(6)—Forfeiture by Wrongdoing
Established Doctrine
Rule 804(b)(6), entitled “Forfeiture by Wrongdoing,” applies only when the defendant engaged or
acquiesced in wrongdoing that was intended to,
and did, procure the unavailability of the declarant
as a witness. This rule codifies the common-law
forfeiture doctrine; as such, the requirement of
intent means that the exception applies only if the
defendant, at the time of engaging in the wrongdoing, has in mind the particular purpose of
making the witness unavailable. Giles v. California, ___ U.S. ___, 128 S. Ct. 2678 (2008).
Prior confronted statements by witnesses who are
unavailable are admissible whether or not the
defendant was responsible for their unavailability. Giles v. California, ___ U.S. ___, 128 S. Ct.
2678 (2008).
The rule of forfeiture by wrongdoing extinguishes
Confrontation Clause claims on essentially equitable grounds, providing that one who obtains the
absence of a witness by wrongdoing forfeits the
constitutional right to confrontation. The Federal
Rules of Evidence codify the forfeiture doctrine for
federal trials in Rule 804(b)(6). Hodges v. Att’y
Gen., 506 F.3d 1337 (11th Cir. 2007); United
States v. Carson, 455 F.3d 336 (D.D.C. 2006);
United States v. Natson, 2006 U.S. Dist. LEXIS
85305 (M.D. Ga. 2006); Davis v. Hammon, 547
U.S. 813 (2006); United States v. Rodriguez-Marrero, 390 F.3d 1 (1st Cir. 2004).
A district court may admit hearsay evidence as to
statements by an unavailable declarant under Rule
804 if it finds by a preponderance of the evidence
that (a) the party against whom the out-of-court
statement is offered was involved in, or responsible
for, procuring the unavailability of the declarant
through knowledge, complicity, planning, acquiescence or in any other way, and (b) that party acted
with the intent of procuring the declarant’s unavailability as an actual or potential witness. This rule is
necessary in order to deal with abhorrent behavior that strikes at the heart of the system of justice
itself. United States v. Stewart, 485 F.3d 666 (2d
Cir. 2007); United States v. Carson, 455 F.3d 336
(D.D.C. 2006); United States v. Natson, 2006 U.S.
(Sinclair, Rel. #14, 9/09)
Rule 804
Dist. LEXIS 85305 (M.D. Ga. 2006); Davis v. Hammon, 547 U.S. 813 (2006); United States v.
Johnson, 403 F. Supp. 2d 721 (N.D. Iowa 2005);
United States v. Rodriguez-Marrero, 390 F.3d 1
(1st Cir. 2004); Garcia-Martinez v. City & County
of Denver, 392 F.3d 1187 (10th Cir. 2004); United
States v. Mikos, 2004 U.S. Dist. LEXIS 13650
(N.D. Ill. 2004); United States v. Rivera, 292 F.
Supp. 2d 827 (E.D. Va. 2003); United States v.
Scott, 284 F.3d 758, 762 (7th Cir. 2002); United
States v. Gurmeet Singh Dhinsa, 243 F.3d 635 (2d
Cir. 2001).
While wrongdoing under Rule 804(b)(6) need not
consist of a criminal act, causing a person not to
testify at trial cannot be considered wrongdoing
itself. The courts must focus on the actions procuring the unavailability. Although such malevolent
acts as murder, physical assault, and bribery are
clearly sufficient to constitute wrongdoing, they
are not necessary. The rule merely contemplates
application against the use of coercion, undue
influence, or pressure to silence testimony and
impede the truth-finding function of trials. Applying pressure on a potential witness not to testify,
including by threats of harm and suggestions of
future retribution, is wrongdoing. Hodges v. Att’y
Gen., 506 F.3d 1337 (11th Cir. 2007); United
States v. Scott, 284 F.3d 758 (7th Cir. 2002).
The “forfeiture by wrongdoing” exception contains no limitation on the subject matter of the
statements that it exempts from the prohibition on
hearsay evidence. United States v. Johnson, 403 F.
Supp. 2d 72 (N.D. Iowa 2005); United States v.
Gurmeet Singh Dhinsa, 243 F.3d 635 (2d Cir.
2001).
Specific Applications
A defendant who engages in wrongdoing which
procures the unavailability of a witness does not
forfeit his rights under the Confrontation Clause
with respect to that witness’s statements unless he
engaged in the wrongdoing with the intent to procure the witness’s unavailability. Giles v. California, ___ U.S. ___, 128 S. Ct. 2678 (2008).
California Supreme Court’s theory of forfeiture
by wrongdoing as permitting the admission into
evidence in a murder trial the unconfronted statements the victim made to police that, three weeks
earlier, the defendant had choked her, pulled a
knife on her, and had threatened to kill her, based
on its conclusion that the defendant had forfeited
his right to confront the victim’s testimony by committing an intentional criminal act (murder) that
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Rule 804
Trial Handbook
made the victim unavailable to testify, was erroneous. Such theory is not an exception to the Sixth
Amendment’s confrontation requirement because it
was not an exception established at the founding.
Under the common law at the time of the founding,
unconfronted testimony would not be admitted
without a showing that the defendant intended to
prevent a witness from testifying. In cases where
the evidence suggested that the defendant wrongfully caused the absence of a witness, but had not
done so to prevent the witness from testifying,
unconfronted testimony was excluded unless it fell
within the separate common-law exception to the
confrontation requirement for statements made by
speakers who were both on the brink of death and
aware that they were dying. Giles v. California,
554 U.S. ___, 128 S. Ct. 2678 (2008).
Statements of an unavailable declarant are not
excluded as hearsay when offered against a party
who has engaged or acquiesced in wrongdoing
that was intended to, and did, procure the unavailability of the declarant as a witness, by operation
of Rule 804(b)(6). This exception applies both to
out-of-court statements and to in-court testimony.
United States v. Carneglia, 256 F.R.D. 366
(E.D.N.Y. 2009).
A court may admit hearsay evidence as to statements by an unavailable declarant under Rule
804(b)(6) if it finds by a preponderance of the evidence (a) that the party against whom the out-ofcourt statement is offered was involved in, or
responsible for, procuring the unavailability of the
declarant through knowledge, complicity, planning
or in any other way, and (b) that that party acted
with the intent of procuring the declarant’s unavailability as an actual or potential witness. United
States v. Carneglia, 256 F.R.D. 366 (E.D.N.Y.
2009).
Rule 804(b)(6) is prophylactic in nature and
deals with deliberate and wrongful behavior which
strikes at the heart of justice itself. To permit the
defendant to profit from such conduct would be
contrary to public policy, common sense, and the
underlying purpose of the Confrontation Clause.
United States v. Carneglia, 256 F.R.D. 366
(E.D.N.Y. 2009).
Where a party has intentionally procured a
declarant’s unavailability as a witness, Rule
804(b)(6) allows the declarant’s hearsay statements
to be offered against that party at future proceedings. A defendant who wrongfully and intentionally
renders a declarant unavailable as a witness in any
proceeding forfeits the right to exclude, on hearsay
grounds, the declarant’s statements at any subsequent proceeding. United States v. Carneglia, 256
F.R.D. 366 (E.D.N.Y. 2009).
Rule 804(b)(1) permits cross-examined, sworn
testimony of an unavailable witness to be admitted
as an exception to the hearsay rule. Former testimony will not be excluded as hearsay when: (1) the
declarant is now unavailable; (2) it was given at a
formal legal proceeding; (3) at the time it was
given the party against whom it is now offered had
the opportunity to adequately develop it by direct,
cross-, or redirect examination; and (4) at the time
it was given the party against whom it is now
offered had a similar motive to develop it. United
States v. Carneglia, 256 F.R.D. 366 (E.D.N.Y.
2009).
Under Rule 804(6), the wrongdoing that invokes
the rule need not consist of a criminal act, and a
variety of courts have found that something much
less than a defendant’s “extreme action” can lead a
witness to become unavailable at trial. Accordingly, conduct falling short of “extreme action,”
such as a single threat to a witness, does not prevent the application of the forfeiture by wrongdoing doctrine embodied in the rule. Ware v. Harry,
2008 U.S. Dist. LEXIS 96859 (E.D. Mich. 2008).
Rule 804(b)(6) applies in equal force to all parties, whether they be a criminal defendant or the
prosecuting government. It contemplates application against the use of coercion, undue influence,
or pressure to silence testimony. The doctrine of forfeiture by wrongdoing, as codified in Rule
804(b)(6), thus covers a wide range of coercive
and threatening action used to prevent witnesses’
in-court testimony. Ware v. Harry, 2008 U.S. Dist.
LEXIS 96859 (E.D. Mich. 2008).
The Sixth Amendment does not protect the right
to confront witnesses who are absent because of a
defendant’s wrongdoing. Therefore, the “testimonial” standard of Crawford v. Washington, 541
U.S. 36 (2004), does not apply to statements
admitted under 804(6). Morales v. Campbell,
2008 U.S. Dist. LEXIS 10597 (N.D. Cal. 2008).
When confrontation becomes impossible due to
the actions of the very person who would assert the
right, logic dictates that the right has been waived.
The law simply cannot countenance a defendant
deriving benefits from murdering the chief witness
against him. To permit such subversion of a criminal prosecution would be contrary to public policy,
common sense, and the underlying purpose of the
Confrontation Clause, and make a mockery of the
system of justice that the right was designed to protect. Hodges v. Att’y Gen., 506 F.3d 1337 (11th
Cir. 2007).
The text of Rule 804(b)(6) requires only that the
defendant intend to render the declarant unavailable as a witness. The text does not require that the
declarant would otherwise be a witness at any par-
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Case Authority
ticular trial. Thus, a defendant who wrongfully and
intentionally renders a declarant unavailable as a
witness in any proceeding forfeits the right to
exclude, on hearsay grounds, the declarant’s statements at that proceeding and any subsequent proceeding. Indeed, this forfeiture principle applies
even to situations where there was no ongoing proceeding in which the declarant was scheduled to
testify. This result is both logical and fair since a
contrary rule would serve only as a prod to the
unscrupulous to accelerate the timetable and murder suspected “snitches” sooner rather than later.
United States v. Stewart, 485 F.3d 666 (2d Cir.
2007).
Case law has not favored a proffer procedure
as an appropriate mechanism for making the
determinations required under Rule 804(b)(6). Procedures similar to those employed in assessing
coconspirator declarations have been endorsed,
including (a) ruling based on a pretrial proffer, subject to the court’s later determination that, based on
all the evidence admitted at trial, the government
has proven the foundational elements by a preponderance of the evidence; (b) ruling on each statement as it is elicited based on the evidence
adduced to that point; (c) in the absence of a pretrial proffer, conditionally admitting the coconspirator’s statements subject to the government’s eventual
proof of the foundational elements (the penalty for
not so proving being a possible mistrial); or
(d) holding a “full blown” preliminary hearing.
United States v. Mikos, 2004 U.S. Dist. LEXIS
13650 (N.D. Ill. 2004).
The potential importance of the testimony, and
whether the pending case is a capital crime, and
the fact that the alleged wrongdoing is one of the
crimes to be proven at trial all bear on the issue
whether a proper showing under the rule has been
met. United States v. Mikos, 2004 U.S. Dist. LEXIS
13650 (N.D. Ill. 2004).
The sponsor of a declarant’s former testimony
may not create the condition of unavailability and
then benefit therefrom. Garcia-Martinez v. City &
County of Denver, 392 F.3d 1187 (10th Cir. 2004).
“Unavailability,” for purposes of Rule 804(b)(6),
is determined based on whether the proponent was
able to “procure” the witness’s attendance at trial
“by process or other reasonable means.” GarciaMartinez v. City & County of Denver, 392 F.3d
1187 (10th Cir. 2004).
(Sinclair, Rel. #14, 9/09)
Rule 804
The district court refused to decide whether an
unavailable declarant’s hearsay statements could
be admitted under the wrongdoing exception using
a pretrial proffer procedure. The court stated that
it was troubled by the proposed procedure because
the hearsay statements were potentially powerful
evidence against the accused and the accused was
on trial for the very wrongdoing alleged by the
government for purposes of taking advantage of
the wrongdoing hearsay exception. Allowing otherwise inadmissible evidence to prove an accused’s
guilt in a capital case based upon a judge’s pretrial
conclusion that the accused is in fact guilty of that
very crime appeared to be a slippery slope. United
States v. Mikos, 2004 U.S. Dist. LEXIS 13650 (N.D.
Ill. 2004).
Evidence obtained from the defendant’s
recorded conversations with gang members, a letter recovered from the defendant’s cell and the testimony of three gang experts was sufficient to
establish that the witness’s murder was committed
within the scope of and in furtherance of the conspiracy in which the defendant participated, and
that the murder was reasonably foreseeable to the
defendant, and thus the witness’s statements to her
guardian and attorney that incriminated the defendant were admissible in the murder prosecution
under the hearsay exception applicable where a
defendant has procured a declarant’s absence.
United States v. Rivera, 292 F. Supp. 2d 827 (E.D.
Va. 2003).
Under Rule 804(b)(6), a defendant who acquiesces in conduct intended to procure the unavailability of a witness waives his hearsay objection
and that waiver is imputed to a conspirator when
the conduct resulting in the witness’s unavailability
has been committed in furtherance of the conspiracy, is within its scope, and is reasonably foreseeable to a conspirator. United States v. Thompson,
286 F.3d 950 (7th Cir. 2002).
Under 18 U.S.C. § 3731, coconspirators can be
deemed to have waived confrontation and hearsay objections as a result of certain actions that are
in furtherance, within the scope, and reasonably
foreseeable as a necessary or natural consequence of an ongoing conspiracy (murder of a witness). United States v. Cherry, 217 F.3d 811 (10th
Cir. 2000).
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Rule 805
Rule 805:
Trial Handbook
Hearsay Within Hearsay
Established Doctrine
Under Rule 805, hearsay within hearsay is only
admissible if each part of a statement or document containing multiple incidents of hearsay
conforms with an exception to the hearsay rules.
The rule contemplates situations involving two or
more levels of hearsay, where each is independently covered by another hearsay exception.
King v. Marriott Int’l, Inc., 2007 U.S. Dist. LEXIS
23854 (D.S.C. 2007); Chapala v. Interfaith Med.
Ctr., 2006 U.S. Dist. LEXIS 73033 (E.D.N.Y.
2006); Sana v. Hawaiian Cruises Ltd., 181 F.3d
1041 (9th Cir. 1999); New York v. Hendrickson
Bros., 840 F.2d 1065 (2d Cir. 1988); Kulick v.
Pocono Downs Racing Ass’n, 816 F.2d 895 (3d
Cir. 1987); United States v. Stratton, 779 F.2d 820
(2d Cir. 1985); Shafer v. Comm’r, 749 F.2d 1216
(6th Cir. 1984); United States v. Gironda, 758 F.2d
1201 (7th Cir. 1985); United States v. Portsmouth
Paving Co., 694 F.2d 312 (4th Cir. 1982); Petrocelli v. Gallison, 679 F.2d 286 (1st Cir. 1982);
United States v. Torres, 685 F.2d 921 (5th Cir.
1982).
When documents are offered, the proponent must
establish that both the document itself and the
hearsay statements it contains fit within an
exception to the hearsay rule. United States v. Taylor, 462 F.3d 1023 (8th Cir. 2006); Ruffin v. City of
Boston, 146 F. App’x 501 (1st Cir. 2005); Sana v.
Hawaiian Cruises Ltd., 181 F.3d 1041 (9th Cir.
1999); Schneck v. IBM, 1996 U.S. Dist. LEXIS
17486 (D.N.J. 1996).
In the business records context, double hearsay
within the meaning of Rule 805 exists when a business record is prepared by one employee from
information supplied by another employee. It is
excepted from the hearsay rule provided both the
source and the recorder of the information, as well
as every other participant in the chain producing
the record, are acting in the regular course of business. If the information provided to the employee
comes from an “outsider” to the business, such
information must itself fall within a hearsay exception to be admissible. United States v. Gurr, 471
F.3d 144 (D.C. Cir. 2006); United States v. Gwathney, 465 F.3d 1133 (10th Cir. 2006).
Specific Applications
Under Rule 802, hearsay is inadmissible, even if
relevant, unless there is an applicable exception.
Where evidence consists of multiple layers of
hearsay, it is only admissible if there is an exception for each layer, by operation of Rule 805.
AmeriSource Corp. v. RxUSA Int’l, Inc., 2009 U.S.
Dist. LEXIS 6864 (E.D.N.Y. 2009).
Hearsay that is contained within hearsay subject
to an exception is not admissible, by operation of
Rule 805. This rule requires that each instance of
hearsay in a multi-layer hearsay statement be
admissible under some exception, in order for the
multi-layer statement to be admitted into evidence.
Thus, with respect to a police report, placing otherwise inadmissible hearsay statements by third
parties into the report does not make the statements admissible under the public records and
reports exception to the hearsay rule embodied in
Rule 803(8). United Techs. Corp. v. Mazer, 556
F.3d 1260 (11th Cir. 2009).
Where an OSHA report, on the whole, qualified
as a business record under Rule 803(6), and the
report contained an interview of plaintiff conducted
by the OSHA investigator, the statements made by
plaintiff during the interview and recounted in the
report constitute “double hearsay” under Rule 805.
Pursuant to that rule, double hearsay is not admissible unless each level of hearsay is covered by an
exception to the hearsay rule. However, because
the plaintiff is a party to the lawsuit, his statements
in the OSHA report, if they are legible, may be
admitted as non-hearsay party admissions under
801(d)(2)(B). Rodriguez v. Modern Handling
Equip. of N.J., Inc., 604 F. Supp. 2d 612 (S.D.N.Y.
2009).
In accordance with Rule 805, each level of a
multiple-layer statement must conform to an exception to the hearsay rule. The mere fact that one
level of a multiple-level statement qualifies as
“non-hearsay” does not excuse the other levels
from the rule’s mandate that each level satisfy an
exception to the hearsay rule for the statement to
be admissible. Kelly v. Labouisse, 2009 U.S. Dist.
LEXIS 13287 (S.D. Miss. 2009).
Information in a police report otherwise qualifying for admission under Rule 803(8)(c), such as
witness statements offered to prove the truth of the
matter asserted, are “hearsay within hearsay” and
inadmissible under Rule 805 unless each level of
hearsay qualifies under one of the hearsay
exceptions. ReliaStar Life Ins. Co. v. Thompson,
2008 U.S. Dist. LEXIS 71726 (S.D. Tex. 2008).
CA–714
Case Authority
The mere fact that police reports are business
records is not determinative of the question of
whether the reports are properly admissible under
Rule 803(6) for the purpose tendered, because
where there is hearsay within hearsay, or double
hearsay, Rule 805 provides each separate level of
hearsay must fall within an exception to the hearsay rule. No authority exists for the proposition that
the business record exception should apply in a
manner broad enough to swallow the rule requiring level-by-level exceptions for double hearsay.
Bertoni v. Campion, 2008 U.S. Dist. LEXIS 63274
(E.D. Mich. 2008).
Rule 805 of the Federal Rules of Evidence covers
“double hearsay.” Under the rule, in order for
“double hearsay” to be admitted, each statement
in the chain must fit a hearsay rule exception, and
this term should be read also to reach statements
that qualify as “not hearsay” under Rule 801(d), as
well as statements that are hearsay but that are
offered for non-hearsay purposes. United States v.
Calabrese, 2008 U.S. Dist. LEXIS 84583 (N.D. Ill.
2008).
Double hearsay in the context of a business
record exists when the record is prepared by an
employee with information supplied by another
person. If both the source and the recorder of the
information, as well as every other participant in
the chain producing the record, are acting in the
regular course of business, the multiple hearsay is
excused by Rule 803(6). However, if the source of
the information is an outsider, Rule 803(6) does
not, by itself, permit the admission of the business
record. The outsider’s statement must fall within
another hearsay exception to be admissible
because it does not have the presumption of accuracy that statements made during the regular
course of business have, and Rule 805 requires that
all levels of hearsay satisfy exception hearsay
requirements before the statement is admissible.
Koch Indus. v. United States, 564 F. Supp. 2d 1276
(D. Kan. 2008).
Although an OSHA inspection report itself is
admissible hearsay under Rule 803(8) as the
report of a public agency, the employee statements within these reports are inadmissible double-hearsay under Rule 805. Vasquez v. FCE
Indus., 2008 U.S. Dist. LEXIS 91767 (E.D.N.Y.
2008).
Where a person in a managerial position makes
a statement to an employee about a plaintiff’s
employment, and the employee repeats that statement to the plaintiff, both levels of hearsay meet the
standards for a statement by an agent
(801(d)(2)(D)). Hayden v. Freightcar Am., Inc.,
2008 U.S. Dist. LEXIS 9913 (W.D. Pa. 2008);
(Sinclair, Rel. #14, 9/09)
Rule 805
Sweeney v. MARC Global, Inc., 2008 U.S. Dist.
LEXIS 11490 (W.D.N.C. 2008).
Rule 805 allows hearsay within hearsay, and
the Fourth Circuit has extended the rule to include
admissions within hearsay. Wade v. Gutierrez,
2007 U.S. Dist. LEXIS 48137 (D. Md. 2007).
A police report that contains double hearsay is
inadmissible unless each level of hearsay falls
within an exception to the hearsay rule. United
States v. Taylor, 462 F.3d 1023 (8th Cir. 2006).
In some cases, no single hearsay rule is invoked,
but rather many are, in the alternative. Sometimes
several hearsay rules are invoked for a single document: A medical report made out while defendant was at the police station, as well as
testimony based off of this medical report, falls
under multiple hearsay exceptions, argued in the
alternative, as follows: 803(1) (present-sense
impression), 803(5) (past recollection recorded),
803(6) (business record exception), and 803(8)
(public record exception). Statements by defendant
which were themselves incorporated into the
report, hence making double-hearsay, are themselves admissible under 801(d)(2)(A) (admission by
party opponent), 803(2) (excited utterance),
803(3) (existing state of mind), and 803(4) (statements for purposes of medical diagnosis). As such,
they satisfy the double-hearsay rule, Rule 805. Ruffin v. City of Boston, 146 F. App’x 501 (1st Cir.
2005).
Plaintiff’s allegation that he was told by his
mother that someone in library management told
her that the library would never rehire plaintiff
because of his pre-accident letters was inadmissible
hearsay. Although underlying statement (library’s
alleged statement to plaintiff’s mother) was admissible under Rule 801(d)(2) as an admission by a
party opponent, statement allegedly made by
plaintiff’s mother to plaintiff (that she was told that
the library would not rehire her son based on his
pre-accident writings) was inadmissible hearsay to
which no exclusion or exception applied. Adefumi
v. City of Phila. Free Library, 2003 WL 21956417
(E.D. Pa. 2003).
Testimony by the plaintiff police officer about a
statement made to him by a second officer who
was supposedly quoting a third officer was not
admissible. McGivern v. City of Indianapolis, 2003
WL 21989996 (S.D. Ind. 2003).
Report of insurance agent that employee’s
coworkers stated that plaintiff had bumped his
head at work (where defendant contracted viral
encephalitis and became comatose), involved several layers of hearsay: (1) it is an unsworn, out-ofcourt statement by the insurance agent; (2) it contains unsworn, out-of-court statements by plaintiff’s
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Rule 806
Trial Handbook
coworkers; (3) which recall unsworn, out-of-court
statements by plaintiff. For the document to be
admissible, each layer of hearsay must satisfy an
exception to the hearsay rule. Sana v. Hawaiian
Cruises Ltd., 181 F.3d 1041 (9th Cir. 1999).
In an action for age discrimination in employment, a memorandum written by the company’s
CEO containing allegedly ageist comments made
by unidentified company executives who were
authorized to make personnel decisions was properly admitted. Ryder v. Westinghouse Elec. Corp.,
128 F.3d 128 (3d Cir. 1997).
A paragraph within a document, recounting a
conversation with another individual, is hearsay
within hearsay. Bausch & Lomb, Inc. v. Comm’r,
T.C. Memo 199657 (Tax Ct. 1996).
Statements of defendant regarding business
negotiations with plaintiff found in the notes of
plaintiff’s accountant were admissible as nonhearsay within a business record where defendant’s
statements were offered only to show knowledge of
the matters discussed. Hoselton v. Metz Baking Co.,
48 F.3d 1056 (8th Cir. 1995).
Statements made by an officer to a nurse, contained in the progress notes of the latter, do not
qualify under the business records exception, and
are thus inadmissible since a second layer of hear-
Rule 806:
say exists. Romano v. Howarth, 998 F.2d 101 (2d
Cir. 1993).
Nonparty statement about plaintiff contained in
hospital record is double hearsay. Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 272 (5th Cir.
1991).
Plaintiff’s statements recorded in defendant
investigator’s accident report were inadmissible
hearsay within hearsay. Rock v. Huffco Gas & Oil
Co., 922 F.2d 272, 280 (5th Cir. 1991).
Witness’s statement in police report recounting
what plaintiff had said is inadmissible. Parsons v.
Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.
1991).
Portions of absent government investigator’s
deposition relating witness statements are hearsay.
Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300,
1311 (5th Cir. 1991).
Hearsay within hearsay is barred absent an
exception for each link in the chain, and while
statements which are admissions under 801(d)
need no other exception and are treated as nonhearsay, if the admission itself quotes a further
statement, another exception is needed to render
the statement admissible. United States v. Dotson,
821 F.2d 1034 (5th Cir. 1987).
Attacking and Supporting Credibility of Declarant
Established Doctrine
Rule 806 provides that when a hearsay statement
has been admitted in evidence, the credibility of
the declarant may be attacked, and if attacked
may be supported, by any evidence that would be
admissible for those purposes if declarant had testified as a witness. The clear purpose of the rule is
to allow a party to attack the credibility of the
declarant of an admitted statement. United States
v. Mallay, 2007 U.S. Dist. LEXIS 39583 (E.D.N.Y.
2007); United States v. Naiden, 424 F.3d 718 (8th
Cir. 2005); United States v. Perez, 2005 U.S. Dist.
LEXIS 24444 (S.D.N.Y. 2005); United States v.
Chandler, 197 F.3d 1198 (8th Cir. 1999).
Rule 806 does not modify Rule 608(b)’s ban on
extrinsic evidence of prior bad acts in the context
of hearsay declarants, even when those declarants
are unavailable to testify. United States v. Saada,
212 F.3d 210 (3d Cir. 2000).
Impeachment of an out of court declarant is inappropriate, in fact impossible, if the credibility of the
out of court declarant is not at issue (so that there is
nothing to impeach), which is to say if the declaration is not being placed in evidence for its truth
value. Thus, evidence intended to impeach the
declarant may properly be excluded consistent
with Rule 806 under such circumstances. United
States v. Perez, 2005 U.S. Dist. LEXIS 24444
(S.D.N.Y. 2005); United States v. Stefonek, 179
F.3d 1030 (9th Cir. 1999); United States v.
McClain, 934 F.2d 822 (7th Cir. 1991).
Rule 806 does not apply to hearsay statements that
are no longer considered to be hearsay because
the court has deemed them to be nonhearsay (for
example, coconspirator statements). United States
v. Zagari, 111 F.3d 307 (2d Cir. 1997).
Specific Applications
Rule 806 provides that if the government introduces the statement of a coconspirator pursuant to
Rule 801(d)(2)(E), the defendant can introduce
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Case Authority
impeachment evidence just as if the coconspirator had testified. United States v. Cao, 2008 U.S.
Dist. LEXIS 48067 (S.D. Fla. 2008).
Normally a defendant cannot introduce selfexculpatory hearsay statements made by
coconspirators, since they do not further the conspiracy. However, if the government offers inculpatory statements by coconspirators, a defendant
may also introduce exculpatory statements by those
same coconspirators as impeachment evidence.
United States v. Cao, 2008 U.S. Dist. LEXIS 48067
(S.D. Fla. 2008).
The fact that evidence impeaching a hearsay
declarant’s credibility were admitted at an odd
point in trial, even in a “virtual vacuum,” does not
mean that the opponent’s ability to impeach the
declarant was unfairly hindered. Bauer v. United
States, 2008 U.S. Dist. LEXIS 48636 (S.D. Fla.
2008).
Rule 806 does not permit the admission of a
hearsay declarant’s denial of making certain
statements even though a reporting witness testified that the hearsay declarant made such statements because admission of the denial does not
seek to impeach the declarant, but instead seeks to
impeach the reporting witness by contesting
whether such statements were made. Wezorek v.
Allstate Ins. Co., 2007 U.S. Dist. LEXIS 45595 (E.D.
Pa. 2007); United States v. Graham, 858 F.2d 986
(9th Cir. 1988).
Where an informant’s statements were neither
hearsay statements nor statements offered pursuant to one of the recognized hearsay exceptions
under Rule 801, such statements were not subject to
impeachment pursuant to Rule 806. United States v.
Perez, 2005 U.S. Dist. LEXIS 24444 (S.D.N.Y.
2005).
Where out-of-court statements were admitted by
the government to prove that the statements were
made and that the accused knew that it was subject
to a Securities Exchange Commission investigation, the statements were not hearsay; the accused
could not admit statements in a written report
pursuant to Rule 806 to rebut a nonhearsay use of
out-of-court statements. United States v. Andersen, 374 F.3d 281 (5th Cir. 2004).
Whether the Jencks Act requires production of
material usable to impeach a hearsay declarant is
not clearly established. United States v. Jackson,
345 F.3d 59 (2d Cir. 2003).
An affidavit by a coconspirator was admissible
to impeach an agent’s testimony that coconspirator
had told him he had partner, since statements in the
affidavit indicated that he had no partner and that
defendant had no involvement in drug transactions.
(Sinclair, Rel. #14, 9/09)
Rule 806
United States v. Grant, 256 F.3d 1146 (11th Cir.
2001).
Rule 806 allows impeachment of a hearsay
declarant only to the extent that impeachment
would be permissible had the declarant testified
as a witness, which, in the case of specific
instances of misconduct, is limited to cross-examination under Rule 608(b). United States v. Saada,
212 F.3d 210 (3d Cir. 2000).
The language of Rule 806 implicitly rejects the
asserted rationale for lifting the ban on extrinsic
evidence. Rule 806 makes no allowance for the
unavailability of a hearsay declarant in the context
of impeachment by specific instances of misconduct, but makes such an allowance in the context of
impeachment by prior inconsistent statements. Rule
613 requires that a witness be given the opportunity to admit or deny a prior inconsistent statement
before extrinsic evidence of that statement may be
introduced. If a hearsay declarant does not testify,
however, this requirement will not usually be met.
Rule 806 cures any problem over the admissibility
of a nontestifying declarant’s prior inconsistent
statement by providing that evidence of the statement “is not subject to any requirement that the
declarant may have been afforded an opportunity
to deny or explain.” The fact that Rule 806 does not
provide a comparable allowance for the unavailability of a hearsay declarant in the context of Rule
608(b)’s ban on extrinsic evidence indicates that
the latter’s ban on extrinsic evidence applies with
equal force in the context of hearsay declarants.
United States v. Saada, 212 F.3d 210 (3d Cir.
2000).
Admission of an interview with the hearsay
declarant to impeach by omission was an example
of “silence . . . so ambiguous that it is of little probative force.” United States v. Chandler, 197 F.3d
1198 (8th Cir. 1999).
A witness can be impeached by evidence of a
previous conviction. When the witness’s “testimony”
consists of her out-of-court declaration that is
admissible under an exception to the hearsay rule,
the conviction can be used to impeach that “testimony” in the course of cross-examination of the
witness who is testifying to the out of court declaration. United States v. Stefonek, 179 F.3d 1030 (9th
Cir. 1999).
In trial for Medicare and Medicaid fraud, statements by coconspirator that defendant had been
above-board in dealing with lawyer and accountants concerning various categories of employees,
was admitted for the truth of what the conspirator
said to show no intent to defraud, and therefore the
conspirator’s hearsay statements were subject to
CA–717
Rule 807
Trial Handbook
impeachment under Rule 806. United States v. Stefonek, 179 F.3d 1030 (9th Cir. 1999).
An FBI agent’s report of an interview with a
decedent who allegedly purchased cocaine from
the defendant was not legitimate Rule 806
impeachment. United States v. Chandler, 197 F.3d
1198 (8th Cir. 1999).
Evidence of the hearsay declarant’s guilty plea
to crimes involving dishonesty (conspiracy to commit mail fraud and to violate federal securities
laws) “is probative of truthfulness or untruthfulness”
as required by Rule 608(b). In re Adler, Coleman
Clearing Corp., 1998 Bankr. LEXIS 406 (S.D.N.Y.
1998).
The credibility of a hearsay declarant may not
be attacked with specific examples of misconduct,
which, under FED. R. EVID. 608(b), cannot be
proved by extrinsic evidence. United States v.
White, 116 F.3d 903 (D.C. Cir. 1997).
The court erred allowing impeachment of the
testimony of a defense witness, who introduced an
out of court statement made by defendant, with an
inconsistent statement of defendant that the government illegally acquired, where defendant’s hearsay statement was insufficiently inconsistent with
the statement made by the witness. United States v.
Trzaska, 111 F.3d 1019 (2d Cir. 1997).
Rule 806 does not overcome a Rule 410 objection if the statements being offered were obtained
in a proffer session and are being offered against
the person who made the proffer. United States v.
Rosario, 111 F.3d 293 (2d Cir. 1997).
Rule 806 allows an adversary to call the hearsay declarant as a witness and cross-examine him.
United States v. Jackson, 88 F.3d 845 (10th Cir.
1996).
Rule 807:
Denial of defense requests to discover the prior
record of a police informant whose statement was
offered in hearsay form was error, since the rule
allows the declarant to be impeached and Brady
supports such discovery. United States v. Becerra,
992 F.2d 960 (9th Cir. 1993).
Where taped conversations of nontestifying witness and defendant were admitted without qualification, witness comments were hearsay and
defendant should have had chance to impeach.
United States v. Burton, 937 F.2d 324, 326 (7th
Cir. 1991).
When a nontestifying declarant’s statements are
admitted in any trial, the adversary has a right to
offer impeachment about the declarant’s character
trait for truthfulness, including calling witnesses to
give opinion or reputation testimony on the credibility issue. United States v. Moody, 903 F.2d 321
(5th Cir. 1990).
The hearsay declarant may be impeached.
Bourjaily v. United States, 483 U.S. 171 (1987);
United States v. Inadi, 475 U.S. 387 (1986);
United States v. Newman, 849 F.2d 156 (5th Cir.
1988); United States v. Paris, 812 F.2d 471 (9th
Cir. 1987); United States v. Price, 774 F.2d 1526
(11th Cir. 1986); United States v. Robinson, 763
F.2d 778 (7th Cir. 1986); United States v. Vretta,
790 F.2d 651 (7th Cir. 1986); United States v. Bernal, 719 F.2d 1475 (9th Cir. 1983); United States
v. Katsougrakis, 715 F.2d 769 (2d Cir. 1983).
Failure to depose the out-of-court declarant, or
give the declarant an opportunity to explain, will
not bar impeachment of a hearsay declarant,
including a coconspirator, by evidence of inconsistent statements. United States v. Wali, 860 F.2d
508 (3d Cir. 1988).
Residual Exception
Established Doctrine
Rule 807 is an exception to the hearsay rule that
provides for the admissibility of statements that
have the same circumstantial guarantees of trustworthiness as the other hearsay exceptions. Congress intended that this exception to the hearsay
rule be used only rarely in truly exceptional circumstances, and Rule 807 must be construed narrowly to prevent it from becoming the exception
that swallows the general hearsay rule embodied
in Rule 802. Thus, the proponent of a statement
sought to be admitted under the rule bears a heavy
burden to establish its admissibility, and rigorous
analysis by the court considering the question of
admissibility is required. United States v. Ingram,
501 F.3d 963 (8th Cir. 2007); Tatum v. Pactiv
Corp., 2007 U.S. Dist. LEXIS 69867 (M.D. Ala.
2007); Wezorek v. Allstate Ins. Co., 2007 U.S.
Dist. LEXIS 45595 (E.D. Pa. 2007); United States v.
Mallay, 2007 U.S. Dist. LEXIS 39583 (E.D.N.Y.
2007); Ross v. Mercer Univ. Corp., 506 F. Supp.
2d 1325 (M.D. Ga. 2007); United States v. Libby,
475 F. Supp. 2d 73 (D.D.C. 2007); Bouygues Telecom, S.A. v. Tekelec, 473 F. Supp. 2d 692
(E.D.N.C. 2007); Barry v. Trs., 2006 U.S. Dist.
LEXIS 92396 (D.D.C. 2006); State Fin. Bank NA v.
City of S. Milwaukee, 2006 U.S. Dist. LEXIS 67629
CA–718
Case Authority
(E.D. Wis. 2006); United States v. Twoshields,
2006 U.S. Dist. LEXIS 56566 (D.N.D. 2006);
United States v. Dumeisi, 424 F.3d 566 (7th Cir.
2005); Cook v. Miss. Dep’t of Human Servs., 108
F. App’x 852 (5th Cir. 2004); In re Cornfield,
2004 U.S. Dist. LEXIS 26274 (E.D.N.Y. 2004);
Butler v. State Farm Mut. Auto. Ins. Co., 2004 U.S.
Dist. LEXIS 19686 (D. Kan. 2004); Mason v.
Mitchell, 293 F. Supp. 2d 819 (N.D. Ohio 2003);
Schimpf v. Gerald, Inc., 52 F. Supp. 2d 976 (E.D.
Wis. 1999); Conoco, Inc. v. Dep’t of Energy, 99
F.3d 387 (Fed. Cir. 1996); O’Brien v. Nat’l Gypsum Co., 944 F.2d 69, 73 (2d Cir. 1991).
To invoke the residual exception the hearsay rule
embodied in Rule 807, the party offering the statement must give notice of its intention to rely on the
rule. A statement will be admitted under Rule 807
if (1) it is particularly trustworthy; (2) it bears on a
material fact; (3) it is the most probative evidence
addressing that fact; (4) its admission is consistent
with the rules of evidence and advances the interests of justice; and (5) its proffer follows adequate
notice to the adverse party. High degrees of both
probativeness and necessity are required with
respect to the statement under consideration.
United States v. Bonds, 2009 U.S. Dist. LEXIS
16120 (N.D. Cal. 2009); FTC v. Magazine Solutions, LLC, 2009 U.S. Dist. LEXIS 20629 (W.D. Pa.
2009); Land Grantors v. United States, 86 Fed. Cl.
35 (2009); Oelzen v. United States, 2009 U.S.
Dist. LEXIS 27640 (E.D. Mo. 2009); United States
v. Berrios, 2008 U.S. Dist. LEXIS 52951 (D.V.I.
2008); Baude v. Heath, 2007 U.S. Dist. LEXIS
64444 (S.D. Ind. 2007); De Venustas v. De Venustas Int’l, Inc., 2007 U.S. Dist. LEXIS 50143
(S.D.N.Y. 2007); Dorado v. Dial Corp., 2007 U.S.
Dist. LEXIS 25562 (N.D. Ill. 2007); Wezorek v. Allstate Ins. Co., 2007 U.S. Dist. LEXIS 45595 (E.D.
Pa. 2007); United States v. Mallay, 2007 U.S. Dist.
LEXIS 39583 (E.D.N.Y. 2007); United States v.
Nguyen, 2007 U.S. Dist. LEXIS 27623 (W.D.N.Y.
2007); Bouygues Telecom, S.A. v. Tekelec, 473 F.
Supp. 2d 692 (E.D.N.C. 2007); United States v.
Peneaux, 432 F.3d 882 (8th Cir. 2005); Rowland
v. Rowland, 2005 U.S. Dist. LEXIS 30296 (N.D.
Ga. 2005); In re WorldCom Sec. Litig., 2005 U.S.
Dist. LEXIS 2214 (S.D.N.Y. 2005); Cook v. Miss.
Dep’t of Human Servs., 108 F. App’x 852 (5th Cir.
2004); United States v. Marmolejas, 112 F. App’x
779 (2d Cir. 2004); United States v. Morgan, 385
(Sinclair, Rel. #14, 9/09)
Rule 807
F.3d 196 (2d Cir. 2004); In re Cornfield, 2004
U.S. Dist. LEXIS 26274 (E.D.N.Y. 2004); United
States v. Mikos, 2004 U.S. Dist. LEXIS 13650
(N.D. Ill. 2004); Mason v. Mitchell, 293 F. Supp.
2d 819 (N.D. Ohio 2003); Schering Corp. v.
Pfizer, Inc., 189 F.3d 218 (2d Cir. 1999).
Rule 807’s requirement that proffered evidence be
more probative than any other available evidence
goes beyond the evidence’s mere reliability and
trustworthiness. Rather, it must be very important
and very reliable, such that it is the best evidence
to prove the defense’s point and there is no other
evidence available that would have the same
influence. United States v. Libby, 475 F. Supp. 2d
73 (D.D.C. 2007); Bouygues Telecom, S.A. v.
Tekelec, 473 F. Supp. 2d 692 (E.D.N.C. 2007); In
re WorldCom Sec. Litig., 2005 U.S. Dist. LEXIS
2214 (S.D.N.Y. 2005).
In assessing the qualitative degree of trustworthiness of a particular statement, courts should
inquire into the reliability of and necessity for the
statement. A mere suggestion of trustworthiness
cannot suffice. Factors relevant to a “trustworthiness” analysis under Rule 807 include (1) whether
the statement was made under oath; (2) whether
the statement was voluntarily made; (3) whether
the statement was based on personal knowledge;
(4) whether the declarant made a prior inconsistent
statement; (5) whether the statement was videotaped; (6) whether the declarant was subject to
cross-examination; (7) the proximity of time
between the events described and the statement;
(8) whether the statement is corroborated; (9) the
declarant’s motivation to fabricate; (10) whether
the statement is prepared in anticipation of litigation; (11) the spontaneity of the statement;
(12) whether the declarant’s memory was faulty;
(13) whether the witness ever recanted his testimony; and (14) if the witness is “unavailable,” the
reasons for the witness’s unavailability. Wezorek v.
Allstate Ins. Co., 2007 U.S. Dist. LEXIS 45595
(E.D. Pa. 2007); Myers v. Richland County, 2004
U.S. Dist. LEXIS 19944 (D.N.D. 2004); Butler v.
State Farm Mut. Auto. Ins. Co., 2004 U.S. Dist.
LEXIS 19686 (D. Kan. 2004); United States v.
Mikos, 2004 U.S. Dist. LEXIS 13650 (N.D. Ill.
2004); Brown v. Phillip Morris, Inc., 228 F. Supp.
2d 506 (D.N.J. 2002); United States v. SanchezLima, 161 F.3d 545 (9th Cir. 1998); Amcast Indus.
Corp. v. Dotrex Corp., 779 F. Supp. 1519, 1527
(N.D. Ind. 1991); Brookover v. Mary Hitchcock
Mem’l Hosp., 893 F.2d 411 (1st Cir. 1990).
CA–719
Rule 807
Trial Handbook
Specific Applications
Where police reports contain statements of witnesses, the contents of the reports may not be
admitted without analysis of the hearsay contained
within them. Any statement that is made by a
declarant not testifying at trial, offered in evidence
to prove the truth of the matter asserted, is
excluded as hearsay under Rule 802 absent applicability of one of the hearsay exceptions provided
in the rules or a relevant statute. For example, some
statements of witnesses contained in police reports
may constitute excited utterances under Rule
803(2) or present-sense impressions under Rule
803(1). Others may constitute dying declarations
under Rule 804(b)(2). If no other explicit hearsay
exceptions in the Federal Rules of Evidence apply,
however, a hearsay statement may still be admitted under the “catch-all exception” of Rule 807.
United States v. Carneglia, 256 F.R.D. 384
(E.D.N.Y. 2009).
The rules on hearsay should be read to
exclude unreliable hearsay but to admit reliable
hearsay. Such “reliable hearsay” has, of course,
the effect of promoting the truth-seeking function of
a criminal trial and, therefore, ought to be presented to the finders of facts. United States v.
Carneglia, 256 F.R.D. 384 (E.D.N.Y. 2009).
Under the residual hearsay exception of Rule
807, properly considered factors in an analysis of
reliability of hearsay statements contained in
reports of investigative interviews include: (1) the
amount of time that elapsed between the event and
the statements; (2) the degree of specificity of the
statements; and (3) whether they were intended to
be helpful to the officer or agent interviewing the
witness. United States v. Carneglia, 256 F.R.D. 384
(E.D.N.Y. 2009).
Congress intended for the residual exception to
the hearsay rule embodied in Rule 807 to be used
very rarely, and only in exceptional circumstances, and it applies only when certain exceptional guarantees of trustworthiness exist and when
high degrees of probativeness and necessity are
present. A declarant’s position as a target in a
criminal investigation provides him with ample
motivation to implicate others (even falsely) in his
misconduct in order to diffuse and mitigate his own
culpability; thus, his statements in an investigative
report lacked the equivalent circumstantial guarantees of trustworthiness that Rule 807 requires.
United Techs. Corp. v. Mazer, 556 F.3d 1260 (11th
Cir. 2009).
To qualify for the residual exception to the hearsay rule set out in Rule 807, the statement offered
must be evidence of a material fact—in other
words, it must be relevant to the ultimate issue
before the court. Kesey, LLC v. Francis, 2009 U.S.
Dist. LEXIS 28078 (D. Or. 2009).
Rule 807 provides a residual exception for
statements not covered by any of the enumerated
exceptions to the hearsay rules, so long as the
statement has “equivalent circumstantial guarantees of trustworthiness.” In addition to finding that
the statement has such “guarantees,” to admit the
statement under this exception, a court must determine that: (1) the statement is offered as evidence
of a material fact; (2) the statement is more probative on the point for which it is offered than any
other evidence that the proponent can procure
through reasonable efforts; and (3) the general
purposes of these rules and the interests of justice
will be served by admission of the statement. Televisa, S.A. de C.V. v. Univision Comm’s, Inc., 2009
U.S. Dist. LEXIS 33689 (C.D. Cal. 2009).
A court’s most important inquiry under Rule
807 is whether the proffered evidence has trustworthiness equivalent to that of the enumerated
hearsay exceptions in Rules 803 and 804. Aluisi
v. Elliott Mfg. Co., Inc. Plan, 2009 U.S. Dist. LEXIS
20180 (E.D. Cal. 2009).
In determining whether a statement has sufficient equivalent circumstantial guarantees of trustworthiness under the residual hearsay exceptions,
courts compare the circumstances surrounding the
statement to the closest hearsay exception. The
following factors are thus relevant to a court’s
determination of whether the statements possess the
“guarantees of trustworthiness” required under
Rule 807: the declarant’s disinterest; the declarant’s
motivation to lie; whether the statement was made
under oath; the declarant’s probable motivation in
making the statement; the extent of the declarant’s
personal knowledge of the events recounted in the
statement; the probable accuracy of the witness’s
recounting of the declarant’s statement; a testifying
witness’s knowledge of the statement’s contents; the
declarant’s age; the declarant’s character for truthfulness and honesty; the frequency with which the
declarant made similar statements; whether the
declarant recanted the statement; and the statement’s temporal proximity to the event related.
Land Grantors v. United States, 86 Fed. Cl. 35
(2009).
The residual hearsay exception of Rule 807 was
not intended to confer a broad license on trial
judges to admit hearsay statements that do not fall
within one of the other exceptions contained in
Rules 803 and 804(b). Land Grantors v. United
States, 86 Fed. Cl. 35 (2009).
Congress intended the residual hearsay exception embodied in Rule 807 to be used very rarely,
and only in exceptional circumstances. The state-
CA–720
Case Authority
ment must have circumstantial guarantees of trustworthiness, and the reliability of and necessity for
the statement must both be compelling. United
States v. Hughes, 535 F.3d 880 (8th Cir. 2008).
Statements made in a prison yard conversation
obtained via a covert wiretap, which implicated
both speakers and the defendant challenging the
introduction of the conversation, were properly
admitted under Rule 807. There was no reason to
believe that the speakers had any motive to lie, or
were lying, during the discussion. In addition, the
conversation was highly incriminating against the
speakers, and neither was attempting to deflect
criminal liability or to inculpate others, including
the defendant. Moreover, if the speakers had
known that they were being overheard, neither
would have engaged in such a discussion. Thus,
the statements possessed a particularized guarantee of trustworthiness for purposes of applying Rule
807. United States v. Berrios, 2008 U.S. Dist. LEXIS
52951 (D.V.I. 2008).
Plea agreements are not “more probative” on a
point of fact than live witness testimony merely
because they are sworn and because a jury might
be less likely to believe the live witness. United
States v. Hawley, 562 F. Supp. 2d 1017 (N.D. Iowa
2008).
A plea agreement in which the declarant admits
actual intent to defraud does not lack trustworthiness merely because the declarant admitted to
committing said fraud. The penal consequences of
that admission outweigh the fraudulent character of
the offense. Santa Barbara Capital Mgmt. v. Neilson (In re Slatkin), 525 F.3d 805 (9th Cir. 2008).
Critical to the admission of a hearsay statement under Rule 807 is a finding that the statement is trustworthy. Dorado v. Dial Corp., 2007
U.S. Dist. LEXIS 25562 (N.D. Ill. 2007).
Generally, Rule 807 provides that statements not
covered by Rule 803 or 804 but having “equivalent
circumstantial guarantees of trustworthiness” are
not excluded by the hearsay rule if they meet certain requirements. However, if such statements lack
corroborating circumstances indicating their trustworthiness under Rule 804(b)(3), the statements
clearly likewise lack the guarantees of trustworthiness required under Rule 807. United States v. Mallay, 2007 U.S. Dist. LEXIS 39583 (E.D.N.Y. 2007).
Where the defendant’s attorneys notified the
government in a criminal case that they intended to
introduce certain recording transcript excerpts into
evidence on the evening before cross-examination,
they failed to comply with the notice requirement of
Rule 807. United States v. Mallay, 2007 U.S. Dist.
LEXIS 39583 (E.D.N.Y. 2007).
(Sinclair, Rel. #14, 9/09)
Rule 807
By its express terms, Rule 807 only applies to
statements the likes of those discussed in Rules 803
and 804; it does not apply to self-authenticating
documents under Rule 902. Ross v. Mercer Univ.
Corp., 506 F. Supp. 2d 1325 (M.D. Ga. 2007).
The second of the two main requirements of the
catchall exception to the hearsay rule—that the
statement is more probative on the point for which
it is offered than any other evidence the proponent
can procure through reasonable efforts—provides
a basis for a trial court to evaluate the need for the
statement in the case as compared to the costs of
obtaining alternative evidence. Barry v. Trs., 2006
U.S. Dist. LEXIS 92396 (D.D.C. 2006).
The “circumstantial guarantees of trustworthiness” required by Rule 807 are not present where
the statement of the declarant is plainly self-serving and no corroboration is available. Boyd v. City
of Oakland, 2006 U.S. Dist. LEXIS 80303 (N.D.
Cal. 2006).
The materiality requirement in Rule 807 is
merely a restatement of the general requirement
that evidence must be relevant. United States v.
Peneaux, 432 F.3d 882 (8th Cir. 2005).
Mostly this rule serves as a backup, argued in
the alternative, such that if the original rule of evidence does not work, the hearsay in question at
least falls under this “catch-all” exception. Even if
the statements in question were not legitimate
“coconspirator” statements, they would have fallen
under 807. However, it is not entirely clear which
rule they fell under, only that they fell under either
801(d)(2)(E) or 807. United States v. Sanders, 421
F.3d 1044 (9th Cir. 2005).
Semi-official files kept by unofficial associates of
a defendant can be admitted under this rule. United
States v. Dumeisi, 424 F.3d 566 (7th Cir. 2005).
Rule 807 does not apply where the admissibility
of a statement is directly addressed by one of the
listed exceptions in Rule 804. United States v. Zapata, 2005 U.S. Dist. LEXIS 2025 (S.D.N.Y. 2005).
The district court was well within its discretion in
concluding that after-the-fact testimony grand jury
testimony did not have circumstantial guarantees of
trustworthiness for purposes of Rule 807. Nelson v.
Pilkington PLC (In re Flat Glass Antitrust Litig.), 115
F. App’x 570 (3d Cir. 2004).
Faxed documents from a state department of
motor vehicles under Rule 807 were more probative on the point for which they are offered than
any other evidence which may be procured at this
point through reasonable efforts, and served the
general purposes of the rules and the interests of
justice to receive it. United States v. Marmolejas,
112 F. App’x 779 (2d Cir. 2004).
CA–721
Rule 807
Trial Handbook
If a statement is made to a person whom the
declarant believes is an ally rather than a law
enforcement official, and if the circumstances surrounding the portion of the statement that inculpates the defendant provide no reason to suspect
that that inculpatory portion is any less trustworthy
than the part of the statement that directly incriminates the declarant, the trustworthiness of the portion that inculpates the defendant may well be
sufficiently established that its admission does not
violate the Confrontation Clause. United States v.
Morgan, 385 F.3d 196 (2d Cir. 2004).
A letter not written in a coercive atmosphere,
not addressed to law enforcement authorities, written by a co-defendant to an intimate acquaintance,
a boyfriend, in the privacy of her hotel room,
which the drafter had no reason to expect would
ever find its way into the hands of the police was
trustworthy; she did not write it to curry favor with
them or with anyone else. United States v. Morgan, 385 F.3d 196 (2d Cir. 2004).
Two letters, both in existence twenty years or
more at the time they were offered were received
as evidence under Rule 901(b)(8)(C), were authenticated as ancient documents. There was no reason
to suspect their authenticity, and a witness with relevant knowledge testified that the letters were what
they purported to be. The letters were therefore
properly received under the exceptions to the hearsay rule: Rule 803(16) and Rule 807. Martha Graham Sch. & Dance Found., Inc. v. Martha Graham
Ctr. of Contemporary Dance, Inc., 380 F.3d 624
(2d Cir. 2004).
Indictments were far less probative than the
admissible evidence that was available to the parties in a lawsuit, and the general purposes of the
Rules of Evidence and the interests of justice would
in fact be undermined, instead of served, by admitting the documents. In re WorldCom Sec. Litig.,
2005 U.S. Dist. LEXIS 2214 (S.D.N.Y. 2005).
Although a final judgment had not been entered
at the time a plea agreement was admitted into evidence in a subsequent proceeding, the plea agreement was admissible under the residual hearsay
exception because the plea was made under oath
with the advice of a competent attorney and it
subjected the accused to severe criminal penalties. Moreover, the judge who accepted the plea
appraised the accused of his rights and concluded
that the plea was made “knowingly and voluntarily.” Rosen v. Neilson (In re Slatkin), 2004 U.S.
Dist. LEXIS 10555 (C.D. Cal. 2004).
The court admitted survey evidence pursuant to
the residual hearsay exception despite the fact that
people with knowledge of the litigation participated in the administration of the survey, and the
survey contained leading questions that raised the
risk of insincerity in responses and cast doubt on its
trustworthiness. Because the survey focused on
direct perceptions, it approximated a particular
memory survey with enough indications of trustworthiness to be admitted. New Colt Holding Corp.
v. RJG Holdings of Fla., Inc., 312 F. Supp. 2d 195
(D. Conn. 2004).
Hearsay statements made by a murdered
declarant to her sister were admitted under the
residual hearsay exception because the court
deemed them trustworthy. The statements were
adequately trustworthy because there was no serious question as to the declarant’s character for
honesty and truthfulness. She lived and worked at
a church. The declarant was not under investigation and had no apparent reason to lie about her
statements. The declarant told the same story from
the time she was first contacted by law enforcement
agents until the day she was murdered. Moreover,
the declarant’s statements were not elicited by law
enforcement officers or government officials but
were taken from conversations she initiated with
her sister and trusted friends. These conversations
occurred when there was little or no time for reflection, embellishment or fabrication. United States v.
Mikos, 2004 U.S. Dist. LEXIS 13650 (N.D. Ill.
2004).
The district court admitted as trustworthy hearsay statements by an alleged victim of child abuse
under the residual exception, despite the
declarant’s alleged failure to repeat the same facts
consistently. Several circumstantial guarantees of
trustworthiness supported admission of the statements. First, the proximity of the statement to the
alleged acts—seventeen days after the incident,
while one of the declarant’s contradictory statements was made at a motel room almost six months
later. Second, experience of the interviewer—the
interviewer had twenty years of experience interviewing child victims. The interviewer testified that
she asked the victim open-ended questions rather
than leading questions. Third, the victim was ten
years old and discussed the incident of sexual
abuse in a childlike way. Lastly, the declarant
denied on cross-examination making one of the
contradictory statements. United States v. Thunder
Horse, 370 F.3d 745 (8th Cir. 2004).
Purported identification made from a photographic array by severely injured and vocally paralyzed victim five days before his death was not
admissible in a murder prosecution under the
residual hearsay exception, where the victim’s
blinks and nods in the alleged “response” to the
array were simply too ambiguous to constitute a
meaningful statement, and thus lacked the circum-
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Case Authority
stantial guarantees of trustworthiness. United States
v. Lawrence, 349 F.3d 109 (3d Cir. 2003).
A self-exculpatory statement by a third party
did not have the circumstantial guarantees of trustworthiness required under the residual exception.
United States v. Shryock, 342 F.3d 948 (9th Cir.
2003).
To establish that testimony exhibits a guarantee
of trustworthiness, a court should look not to corroborating testimony but to the circumstances surrounding the testimony itself. Thus, if the
declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the
hearsay rule does not bar admission of the statement at trial. Mason v. Mitchell, 293 F. Supp. 2d
819 (N.D. Ohio 2003).
Failure to give the pre-notification required by
the rule bars use of this exception to justify receipt
of hearsay evidence. Chaloult v. Interstate Brands
Corp., 2003 U.S. Dist. LEXIS 13602 (D. Me.
2003).
Coconspirators’ out-of-court statements to a witness regarding amount of drugs they bagged for
sale lacked circumstantial guarantees of trustworthiness and thus were not admissible under residual
hearsay exception to prove drug quantity beyond a
reasonable doubt at sentencing, where the statements were off-the-cuff estimations subject to miscalculations and/or inaccurate representations,
and defendant did not have an opportunity to
explore the integrity and accuracy of those statements through cross-examination. United States v.
Darwich, 337 F.3d 645 (6th Cir. 2003).
Statements made by a coconspirator at his plea
allocution, which arguably exculpated defendant,
were not admissible at defendant’s trial under
residual hearsay exception, for the plea allocution
statements lacked corroborating circumstances
indicating their trustworthiness. United States v.
Jackson, 335 F.3d 170 (2d Cir. 2003).
Survey sent to companies in utility industry on
their usual routine maintenance was not admissible under residual hearsay exception, since the risk
of insincerity was very high, as it was based on
responses from interested parties who were
informed of purpose of survey, risk of faulty memory was inherent in questions regarding projects
that were over sixty years old, and attorney
involvement in the design and administration of
survey exceeded what was necessary to assure
legal relevance of the questionnaire. United States
v. S. Ind. Gas & Elec. Co., 258 F. Supp. 2d 884
(S.D. Ind. 2003).
Affidavits given by an unavailable witness were
not admissible under residual exception to hearsay
(Sinclair, Rel. #14, 9/09)
Rule 807
rule for lack of trustworthiness, shown by witness’s
financial interest in litigation and his personal reasons in refusing to testify at trial. Factors bearing on
trustworthiness of affidavit offered under residual
exception to hearsay rule are whether:
(1) declarant was known and named; (2) statement was made under oath and penalty of perjury;
(3) declarant was aware of pending litigation at the
time he made declaration and thus knew that his
assertions were subject to cross-examination;
(4) statements were based on personal observation; (5) declarant was employed by a party at time
of statements, and thus had financial interest in litigation’s outcome; (6) affidavit was corroborated;
and (7) declarant’s position and background qualified him to make assertions. ID Sec. Sys. Canada,
Inc. v. Checkpoint Sys., Inc., 249 F. Supp. 2d 622
(E.D. Pa. 2003).
News accounts, unsupported by corroborating
evidence and offered to prove that certain statements were made, will usually lack the circumstantial guarantees of trustworthiness that the residual
exception to the hearsay rule requires. Wright v.
Montgomery County, 2002 U.S. Dist. LEXIS 9442
(E.D. Pa. 2002).
Unlike taped interviews under oath, statements
of deported witness contained in the border patrol’s
interview notes do not fall within the catch-all
hearsay exception of Rule 807 because they lack
sufficient indicia of trustworthiness. United States v.
Ramirez-Lopez, 315 F.3d 1143 (9th Cir. 2002).
A statement to a law enforcement officer by an
alleged victim of child sexual abuse indicates sufficient trustworthiness under the catch-all hearsay
exception of Rule 807 when it is consistent with two
other admissible statements, is elicited by a highly
professional law enforcement interrogator, and
contains compelling detail regarding an incident
which occurred four years earlier. United States v.
Harrison, 296 F.3d 994 (10th Cir. 2002).
Inculpatory statements made after arrest and
confrontation with the prospect that cooperation
with law enforcement might help are too inherently
unreliable to warrant admission under Rule 807.
United States v. Chapin, 231 F. Supp. 2d 600 (E.D.
Mich. 2002).
Witness unavailability does not, standing
alone, meet the requirements of Rule 807.
McGrory v. City of New York, 2002 U.S. Dist.
LEXIS 20177 (S.D.N.Y. 2002).
In the context of Rule 807, substantial contemporaneity of an event and statement negate the
likelihood of deliberate or conscious misrepresentation and bolster a finding of trustworthiness. Nat’l
W. Life Ins. Co. v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 213 F. Supp. 2d 331 (S.D.N.Y. 2002).
CA–723
Rule 807
Trial Handbook
The mere fact that a statement is made under
oath is not enough to guarantee its trustworthiness. United States v. Noorlun, 2002 U.S. Dist.
LEXIS 11862 (D.N.D. 2002).
Purchase orders and other records regarding
defendant’s alleged purchase of hydriodic acid
were not admissible under the business records
exception for lack of a showing that the testifying
witness was familiar with the company’s recordkeeping system, but they were admissible under
residual hearsay exception. United States v. Laster,
258 F.3d 525 (6th Cir. 2001).
Bahamian bank records were properly admitted under the catch-all hearsay exception because
the reliance of the banks and customers upon these
records provides circumstantial guarantees of trustworthiness. United States v. Wilson, 249 F.3d 366
(5th Cir. 2001).
An affidavit from a now deceased declarant
was admissible under the rule where the declarant
had been aware of pending litigation at time of
making affidavit and thought that his assertions
were subject to cross-examination, the statements
were base on personal observation, the declarant
was not employed by plaintiff and had no financial
stake in outcome of litigation, his assertions were
partially corroborated by minutes of directors’
meetings, and the adversary had means to rebut
affidavit. Bohler-Uddeholm Am., Inc. v. Ellwood
Group, Inc., 247 F.3d 79 (3d Cir. 2001).
Information in subsidiary company’s annual
financial statements to parent concerning amounts
charged by parent for comprehensive general liability insurance policies purchased by parent for
subsidiary was admissible under the catch-all rule
in the subsidiary’s lawsuit to establish coverage
under the policies. Burt Rigid Box, Inc. v. Travelers
Prop. Cas. Corp., 126 F. Supp. 2d 596 (W.D.N.Y.
2001).
Witness’s grand jury testimony possessed sufficient circumstantial guarantees of trustworthiness
and was properly admitted when witness refused to
testify at trial, where witness was not in policy custody nor charged with any crime at time testimony
was given, was asked non-leading questions by
government and answered them with lengthy narratives. United States v. Papajohn, 212 F.3d 1112
(8th Cir. 2000).
Grand jury testimony of unavailable witness
should not have been admitted under residual
hearsay exception where the government’s consideration of perjury charges against the witness
based on this testimony undermined its trustworthiness. United States v. Bros. Constr. Co. of Ohio,
Inc., 219 F.3d 300 (4th Cir. 2000).
An article in the Chinese People’s Daily newspaper was admissible as the most probative evidence of material fact that could be procured to
reflect the official opinion of the Chinese government. Chase Manhattan Bank v. Traffic Stream
(BVI) Infrastructure Ltd, 86 F. Supp. 2d 244
(S.D.N.Y. 2000).
In prosecution for aiding and abetting harboring an undocumented alien, statements of other,
deported aliens to INS agents were not admissible
under residual hearsay exception because they
were made during informal interview and were not
subject to cross-examination or made under oath
and hence were not trustworthy. United States v.
Perez, 217 F.3d 323 (5th Cir. 2000).
In a drug prosecution, admission of a taped
conversation between co-defendant and third person implicating defendant under the residual
exception did not violate the defendant’s confrontation rights because the statements had a high
degree of trustworthiness. United States v. Bryce,
208 F.3d 346 (2d Cir. 2000).
In prosecution under Hobbs Act for committing
motel robberies, testimony of motel clerks regarding registering of out-of-state guests was admissible to show interstate commerce element. United
States v. Rodriguez, 218 F.3d 1243 (11th Cir.
2000).
Patient’s written statement had circumstantial
guarantees of trustworthiness because it was consistent with a prior interview with and FBI agent
and with other witnesses’ testimony. United States v.
Daniels, 117 F. Supp. 2d 1038 (D. Kan. 2000).
Evidence of defendant’s ownership of a vessel
was taken off Worldwide Web—Coast Guard’s online vessel data base was not satisfactory because
any evidence procured off Internet is adequate for
almost nothing, even under most liberal interpretation of hearsay exception rules found in Rule 807.
St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.
Supp. 2d 773 (S.D. Tex. 1999).
The fact that proffered evidence consists of
memory statements offered to establish the occurrence of remembered events, which excludes evidence from hearsay exception for statements that
express declarant’s present state of mind, does not
automatically preclude admission of evidence
under residual exception to hearsay rule, since
residual exception sets forth additional requirements, such as necessity and trustworthiness, that
must be met before evidence may be admitted. A
hearsay statement need not be free from all four
categories of risk, namely, insincerity, faulty perception, faulty memory, and faulty narration, to be
admitted under residual exception to the hearsay
CA–724
Case Authority
rule. Schering Corp. v. Pfizer, Inc., 189 F.3d 218
(2d Cir. 1999).
Statements by unavailable witness about defendant’s arrest were numerous and inconsistent, and
thus lacked the indicia of trustworthiness required
for introduction under the catch-all exception or as
a statement against interest, and did not constitute
a report containing factual findings resulting from
an investigation. United States v. Hannaford, 1999
U.S. App. LEXIS 18846 (9th Cir. 1999).
Vague testimony by now-deceased witness that
an adjunct professor in plaintiff’s master’s program
with access to her screenplay may have had the
writer/director of the motion picture “Lone Star” in
his home, though the witness had never seen the
two together, does not have equivalent circumstantial guarantees of trustworthiness, nor do double
hearsay rumors of a rift between the professor and
the writer/director. Neither are admissible under
Rule 801 or 807. Herzog v. Castle Rock Entm’t,
193 F.3d 1241 (11th Cir. 1999).
Determination as to trustworthiness of surveys
that asked physicians to relate their memories of
what drug company’s agents stated about particular antihistamine in their presentations to physicians, or physicians’ beliefs about what agents had
said, for purpose of admitting surveys under residual exception to hearsay rule, required evaluation
on basis of surveys’ methodological strengths as
well as their relative susceptibilities to risks of faulty
memory and perception. Schering Corp. v. Pfizer,
Inc., 189 F.3d 218 (2d Cir. 1999).
In a tax case, the government returned records
to the taxpayer and then lost its own copies. The
government made no showing that the original
documents are unobtainable by ordinary service of
process, and therefore the revenue agent’s report
was not admissible as evidence of the contents of a
lost or destroyed document, nor as a summary of
documents otherwise admissible. Since the report
contained the opinions of the revenue agent, and
no guarantee that the determinations of liability
based on the missing documents were correct, here
is no outside guarantee of the worksheets’ trustworthiness and they are not admissible under the
catch-all exception of Rule 807. United States v.
Crisp, 190 F.R.D. 546 (E.D. Cal. 1999).
Hearsay statements by coconspirator in kickback scheme implicating both himself and the
defendant were admissible under Rule 807 where
defendant was unavailable, because the documents
were prepared during the time the kickback
scheme was in operation, and were based upon
the declarant’s personal knowledge of the information included in the documents. Defendant offered
no explanation or evidence suggesting some other
(Sinclair, Rel. #14, 9/09)
Rule 807
purpose for the documents or any incentive for the
declarant to prepare false documents at the time
they were drafted. In re Hanson, 1999 U.S. Dist.
LEXIS 8442 (W.D. Mich. 1999).
The residual hearsay exception does not apply
when a more specific hearsay rule actually deals
with situation. It was not intended to confer a
broad license on trial judges to admit hearsay
statements that do not fall within one of the other
exceptions contained in Rules 803 and 804(b).
Schimpf v. Gerald, Inc., 52 F. Supp. 2d 976 (E.D.
Wis. 1999).
In Title VII national origin discrimination action
court properly refused to admit statement of Egyptian attorney investigator who found that employee,
contrary to his representations to employer, did not
actually graduate from certain university in particular year. Akrabawi v. Carnes Co., 152 F.3d 688
(7th Cir. 1998).
In a suit alleging injuries caused by repeated
use of defendant’s keyboards on the theory that the
defendant had not appropriately warned users of
the possibility of such injury, the court admitted videotapes produced by keyboard manufacturers
other than the defendant, which warned their
employees how to prevent comfort disorders
caused by keyboard use, under Rule 807, because
the court determined that the videotapes were
analogous to business records as they had been
prepared by a company for a legitimate business
reason with no motivation to fabricate, based in
large part on information generated internally.
Gonzalez v. Digital Equip. Corp., 8 F. Supp. 2d
194 (E.D.N.Y. 1998).
The trial court avoided an analysis of the “predecessor in interest” requirement of Rule 801(b)(1)
by holding that the prior testimony was admissible
under Rule 807 where the court was uncertain as to
what would constitute a “predecessor in interest” in
the circumstances of the instant case. In re Indus.
Silicone Antitrust Litig., 1998 U.S. Dist. LEXIS
20460 (W.D. Pa. 1998).
In a prosecution alleging that the defendant
assaulted U.S. border patrol officers, the district
court erred in not admitting sworn videotaped
statements of eyewitnesses deported to Mexico
shortly after the alleged assault, where declarants
(1) were under oath and subject to the penalty of
perjury; (2) made the statements voluntarily;
(3) based the statements on facts within their own
personal knowledge; (4) did not contradict any of
their previous statements to government agents and
defense investigators; and (5) had their testimony
preserved on videotape which would allow the
jurors an opportunity to view their demeanor. The
government had an opportunity to develop the tes-
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Rule 807
Trial Handbook
timony of these witnesses before they were
deported, and the government also had notice and
the option to participate in taking the videotaped
statements. United States v. Sanchez-Lima, 161
F.3d 545 (9th Cir. 1998).
The district court properly allowed the government to read into the record parts of the transcript
of testimony a witness gave at the trial of the
defendant’s coconspirators in 1988 (which was
when the defendant would have been tried also, if
he had not become a fugitive), where the witness
had died in the interim and the witness had been
extensively cross-examined at that earlier trial.
United States v. Tellechia, 1998 U.S. App. LEXIS
18786 (7th Cir. 1998).
In a prosecution for the illegal possession of firearms in which the defendant’s daughters recanted
statements which they made to a state social
worker, the trial court properly admitted the daughters’ statements because sufficient indicia of trustworthiness was present: Both daughters told
different people of the gun incident at different
times; statements were made to government officials in the most serious context of the arrest of their
father; one of the daughter’s bruises corroborated
the part of her story in which she stated that her
father hit her; and evidence of physical abuse supplied a motive for the daughters to testify falsely in
court. United States v. Dunford, 148 F.3d 385 (4th
Cir. 1998).
The district court did not abuse its discretion in
admitting statements made by children who were
victims of sexual abuse to an FBI agent where the
agent had been trained to interview children in
abuse cases, interviewed the children individually
at their home, and did not ask leading questions.
United States v. Rouse, 111 F.3d 561 (8th Cir.
1997).
In a suit for assault and battery and Fourth
Amendment violations by police officers, statements which the decedent made to the Internal
Affairs Department of the police department were
admitted under Rule 803(24). Crawford v. City of
Kansas, 952 F. Supp. 1467 (D. Kan. 1997).
Although as a general rule, the declarant’s
unavailability for cross-examination weighs
against admitting such statements, courts have consistently relaxed the hearsay rule, when the defendant has wrongfully caused the witness’s
unavailability. Crawford v. City of Kansas, 952 F.
Supp. 1467 (D. Kan. 1997).
A Private Offering Memorandum, which contained summaries of the agreements covering the
transactions involved, the opinion letter of a law
firm, financial projections by an accounting firm,
and legally required disclosures for residents of
twenty-six different states, was admitted given the
competency and reliability of those involved in its
preparation. Estate of Bradley v. Comm’r, 1997 Tax
Ct. Memo LEXIS 412 (T.C. 1997).
The majority of circuit courts hold that the
phrase “specifically covered” means only that if a
statement is admissible under one of the prior
exceptions, such prior subsection should be relied
upon instead of the catch-all. If, on the other hand,
the statement is inadmissible under the other
exceptions, these courts allow the testimony to be
considered for admission under catch-all. United
States v. Earles, 113 F.3d 796 (8th Cir. 1997).
Grand jury testimony of now unavailable witness who was not subject to cross-examination was
held to be admissible where there were sufficient
guarantees of the trustworthiness of the statements.
United States v. Earles, 113 F.3d 796 (8th Cir.
1997).
As written, the plain language of the rule does
not require that the issue on which a statement is
most probative be a material fact; it requires only
that it be probative on the point “for which it is
offered.” United States v. Sposito, 106 F.3d 1042
(1st Cir. 1997).
A statement that one defendant voluntarily
made to police after the defendants allegedly
attempted to murdering, was admitted where the
was no indication that police pressured the
declarant into making the statement or gave or
promised anything in return. United States v.
Colon-Miranda, 1997 U.S. Dist. LEXIS 19460
(D.P.R. 1997).
Although the notice requirements of Rule
804(b)(5) are construed “strictly,” when new evidence is uncovered on the eve of trial advance
notice is obviously impossible. United States v.
Bracey, 1996 U.S. App. LEXIS 33871 (4th Cir.
1996).
When “reasonable steps” have been taken to
locate an unavailable witness, and “pretrial notice
was wholly impracticable,” a court should grant
“notice flexibility” under Rule 804(b)(5). United
States v. Bracey, 1996 U.S. App. LEXIS 33871 (4th
Cir. 1996).
A continuance to allow the party entitled to
advance notice an opportunity to prepare to meet
the evidence is often the preferred remedy. United
States v. Bracey, 1996 U.S. App. LEXIS 33871 (4th
Cir. 1996).
Where the defense was substantially aware of
the gist of the testimony, courts have also waived
the notice requirement. United States v. Bracey,
1996 U.S. App. LEXIS 33871 (4th Cir 1996);
United States v. Panzardi-Lespier, 918 F.2d 313,
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Case Authority
317–18 (1st Cir. 1990); United States v. Leslie, 542
F.2d 285, 291 (5th Cir. 1976).
Grand jury testimony of a coconspirator who
had died before trial possessed the “requisite indicia of reliability,” and was properly admitted under
the rule, and did not violate Sixth Amendment
rights. United States v. McHan, 101 F.3d 1027 (4th
Cir. 1996).
The preconditions for deployment of Rule
804(b)(5) are formidable, and statements made
when “litigation was in the wind” were suspect and
hence inadmissible under the rule. Colasanto v. Life
Ins. Co. of N. Am., 100 F.3d 203 (1st Cir. 1996).
Immediacy of the declarant’s knowledge is one
of the key circumstances indicating trustworthiness
of a statement. United States v. Sinclair, 74 F.3d
753 (7th Cir. 1996).
A statement was significantly less probative than
other evidence that could reasonably have been
obtained because live testimony was available.
United States v. Sinclair, 74 F.3d 753 (7th Cir.
1996).
Although statements of credit card holders do
not qualify as business records, both the written
affidavits and the oral statements made to the bank
personnel are admissible under the residual exceptions to the hearsay rules. United States v. Ismoila,
100 F.3d 380 (5th Cir. 1996).
Lack of motivation to dissemble is not alone sufficient to support the admission of evidence over a
hearsay objection. Conoco, Inc. v. Dep’t of Energy,
99 F.3d 387 (Fed. Cir. 1996).
Summaries apparently prepared long after the
events they purport to record, designed to be
passed on to others, not to be relied on by the preparing company itself, were not admissible under
the residual exceptions. Conoco, Inc. v. Dep’t of
Energy, 99 F.3d 387 (Fed. Cir. 1996).
Where the documents underlying proposed
summary exhibits were available, the proffered
summaries were not more probative than other evidence reasonably available, and hence were not
admissible under the residual exceptions. Conoco,
Inc. v. Dep’t of Energy, 99 F.3d 387 (Fed. Cir.
1996).
Statements by the mother of an abused thirteenyear-old handicapped child to a nurse examining
the victim a few days after the incident made in
connection with allegations of sexual abuse, where
the child was incapable of communicating with the
nurse herself, were reliable and could not be
admitted under this rule. Lovejoy v. United States,
92 F.3d 628 (8th Cir. 1996).
Taped statements made during a phone conversation between defendant and an alleged drug
dealer that the dealer could not pick defendant up
(Sinclair, Rel. #14, 9/09)
Rule 807
at airport were not admissible under residual
exception to hearsay rule where defendant did not
explain why the dealer did not testify at trial, defendant presented no circumstantial guarantees of
trustworthiness, and defendant did not show that
the statements were the most probative evidence
reasonably available to him. United States v. Collins, 66 F.3d 984 (8th Cir. 1995).
In a criminal prosecution for drug crimes, the
former testimony of now deceased declarant was
not admissible under the exception for former testimony where the defendant, against whom testimony was offered, had no opportunity to develop
that testimony at the prior trial of a coconspirator,
even if reason for missed opportunity was that
defendant was fugitive from justice at that time.
United States v. Shaw, 63 F.3d 1249 (4th Cir.
1995).
District court erred in looking beyond the immediate circumstances of a deceased witnesses’ statements to other corroborating evidence in the
record, in determining that statements were admissible under residual hearsay exception, as trustworthiness must emanate from circumstances of
hearsay statement, not from its consistency with
other evidence offered in case. United States v.
Shaw, 63 F.3d 1249 (4th Cir. 1995).
Testimony of witnesses at the previous trial of a
coconspirator was sufficiently trustworthy to warrant admission in prosecution of defendant under
residual exception to hearsay rule, and did not violate Confrontation Clause where the prior trial
involved the same events, the witnesses testified
under oath and in the presence of a judge and
jury, and defendant’s interest in undermining the
witnesses’ testimony was effectively represented by
coconspirator’s counsel through cross-examination. United States v. Shaw, 63 F.3d 1249 (4th Cir.
1995).
Evidence that a witness who testified at the prior
trial of coconspirator “hated” defendant did not
render the witness’s testimony so untrustworthy as
to preclude admission of the testimony in defendant’s trial where the testimony did not focus on
defendant and defendant was permitted to introduce evidence of the witness’s bias. United States v.
Shaw, 63 F.3d 1249 (4th Cir. 1995).
The trial court erred by allowing into evidence
information from a computer database of explosives and arson incidents, which tended to show
that an earlier bomb admittedly made by the
defendant and an alter car bomb attributed to the
defendant were the only bombs, out of 40,867
entries, which had eight characteristics in common, where the source of the data was not known
and there was no standardization of procedures
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Rule 807
Trial Handbook
for verifying and updating the information. United
States v. Trenkler, 61 F.3d 45 (1st Cir. 1995).
Evidence that law enforcement authorities rely
on the information does not guaranty sufficient
trustworthiness to warrant admissibility under the
residual hearsay exception. United States v. Trenkler, 61 F.3d 45 (1st Cir. 1995).
In a criminal trial for sexual abuse of minors, the
testimony of experienced, unbiased social workers
recounting the victims’ graphic descriptions was
sufficiently trustworthy. United States v. Juvenile
N.B., 59 F.3d 771 (8th Cir. 1995).
In a suit alleging that asbestos manufactured by
A caused the death of plaintiff’s spouse, where
plaintiff settled with manufacturer B and offered B’s
response to an interrogatory in rebuttal to A’s
defenses, but did not give notice that she was relying on Rule 803(24) for admissibility, the interrogatory response was not admissible. Kirk v. Raymark
Indus., Inc., 51 F.3d 1206 (3d Cir. 1995).
An interrogatory response of a co-defendant
who is seeking to avoid liability lacks the circumstantial guarantees of trustworthiness required by
Rule 803(24). Kirk v. Raymark Indus., Inc., 51 F.3d
1206 (3d Cir. 1995).
Where a declarant denies the accuracy of statements recorded and the recorder is also uncertain
of the accuracy, the statements do not have “substantial guarantees of trustworthiness” as required
by the catch-all exception. United States v. Severson, 49 F.3d 268 (7th Cir. 1995).
An out-dated FDIC certificate of insurance coupled with a declaration that there is no FDIC record
of insurance termination prior to the date of the
alleged offense is sufficient to establish that the
bank was FDIC-insured on that date, and is admissible as nonhearsay under Rule 801(c) rather than
Rule 803(24). United States v. Alexander, 48 F.3d
1477 (9th Cir. 1995).
Rule 102 provides the definition for the Rule
803(24)(C) requirement that any exception under
that rule to the hearsay doctrine must serve the
general purposes of the Federal Rules of Evidence.
United States v. Johnson, 904 F. Supp. 1303 (M.D.
Ala. 1995).
Self-serving statements made to an investigator
by witnesses to an alleged rape were inherently
unreliable because they had not been subject to
cross-examination. Miller v. Field, 35 F.3d 1088
(6th Cir. 1994).
Prior inconsistent statements of a government
witness that did not meet the standards of Rule
801(d)(1)(A) could be admitted under the catchall
exception since corroborating evidence provided
adequate reliability. United States v. Valdez-Soto,
31 F.3d 1467 (9th Cir. 1994).
An affidavit made under oath by a deceased
deputy police chief could not be admitted since the
death was not unexpected, the plaintiff could have
deposed him prior to death, and the document
itself lacked the required trustworthiness by failing
to describe the context, times, and locations of the
conversations described. Stokes v. City of Omaha,
23 F.3d 1362 (8th Cir. 1994).
In a criminal court-martial for attempted sodomy on a minor, where defendant declined to
cross-examine the victim whose out-of-court statements were later admitted under a catch-all exception, the trial judge properly considered extrinsic
corroborating evidence to determine the circumstantial guarantees of trustworthiness since confrontation had been waived. United States v.
Martindale, 40 M.J. 348 (C.M.A. 1994).
Bills of lading and related shipping documents
were properly received under this residual exception in light of particularized showings of trustworthiness, including reliance on such records by U.S.
Customs Service. United States v. Bachsian, 4 F.3d
796 (9th Cir. 1993).
The trial court noted correctly that hearsay that
is not within an enumerated exception is presumptively unreliable, and the burden of overcoming
that presumption falls on the party seeking to introduce the evidence. Doe v. United States, 976 F.2d
1071, 1079 (7th Cir. 1992).
A three-year-old child’s hearsay statements concerning alleged acts of child abuse were sufficiently
reliable to be admitted under the residual exception to the hearsay rule; although peripheral details
she provided expanded over time, and some of her
responses were prompted by adult questioning, the
basic framework of her story remained the same,
and her core statements were offered on her own
initiative shortly after the alleged incident. Doe v.
United States, 976 F.2d 1071, 1079 (7th Cir.
1992).
A lack of spontaneity (such as exists in statements elicited by questions) is not necessarily fatal
to the admission of hearsay, especially in the child
abuse context. Doe v. United States, 976 F.2d
1071, 1080 (7th Cir. 1992).
The statements of a three-year-old male child
concerning alleged acts of sexual abuse were sufficiently reliable to be admissible under the residual
exception to the hearsay rule, because the core of
his story remained consistent over time, the child
volunteered specific information when asked general, nonleading questions, and he became agitated and uncomfortable when discussing the
incident. Doe v. United States, 976 F.2d 1071,
1081 (7th Cir. 1992).
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Case Authority
The trial court’s failure to determine child victims’ competency to testify did not render their
hearsay testimony inherently unreliable in a sexual
abuse case. Doe v. United States, 976 F.2d 1071,
1081–82 (7th Cir. 1992).
The Ninth Circuit requires “detailed findings”
under this rule, as under Rule 803(24), to provide a
record for review and ensure that the trial court
applies the policies of the rules. Mutuelles Unis v.
Kroll & Linstrom, 957 F.2d 707, 713 (9th Cir.
1992).
An oath alone is not sufficient to guarantee the
trustworthiness of a hearsay declaration, though a
joint offer of the declaration with a related deposition may suffice, since the deposition version could
be used to cross-examine the declaration. Mutuelles Unis v. Kroll & Linstrom, 957 F.2d 707, 714
(9th Cir. 1992).
A survey of realty appraisal firms was admissible under the residual exception to the hearsay rule
because it was the only practical manner for a real
estate firm to meet its burden of proof on the issue
of determining whether such firms had a longstanding practice of treating nonowner appraisers
as employees or as independent contractors. Reag,
Inc. v. United States, 801 F. Supp. 494 (W.D. Okla.
1992).
Statements of audience members at an auction
identifying their company affiliations could be
received under residual rule, where the content of
the declarations was expected information, and the
statements were made at a place where the corporate personnel would be likely to go. F.T.C. v. U.S.
Sales Corp., 785 F. Supp. 737, 746 n.5 (N.D. Ill.
1992).
A videotape of an interview with a retarded
rape victim was properly received under this rule
and did not violate Confrontation Clause rights,
because of particularized evidence negating the
likelihood of fabrication by the victim. United States
v. Lyons, 36 M.J. 183 (C.M.A. 1992).
Pretrial testimony from a government witness
who died under suspicious circumstances before
trial was not admissible under this rule because it
was unreliable, and hence also violated the Confrontation Clause. United States v. Mokol, 939 F.2d
436, 439 (7th Cir. 1991).
Error to admit coconspirator’s confession made
after arrest under residual exception since it lacked
trustworthiness. United States v. Gomez-Lemos,
939 F.2d 326–29 (6th Cir. 1991).
Foreign document’s reference to defendant’s
prior conviction did not satisfy residual exception
because lack of firsthand knowledge suggested
lack of trustworthiness. United States v. Chu Kong
Yin, 935 F.2d 990, 999 (9th Cir. 1991).
(Sinclair, Rel. #14, 9/09)
Rule 807
Social worker’s testimony relaying statements
made by defendant’s children was admissible since
the children also testified about the alleged sexual
abuse. United States v. Spotted War Bonnet, 933
F.2d 1471, 1474 (8th Cir. 1991). See also United
States v. Ellis, 935 F.2d 385, 393 (1st Cir. 1991)
(social worker was allowed to testify under residual exception as to how the victim’s two-year-old
sister had acted while playing with anatomically
correct dolls).
Hearsay statement contained in police report is
beyond residual exception, where the eyewitness is
able to testify. Parsons v. Honeywell, Inc., 929 F.2d
901, 907 (2d Cir. 1991).
An accident victim’s statement absolving herself
of fault, uttered after two days in a coma, cast
doubt on its own trustworthiness and was not erroneously excluded. Pau v. Yosemite Park & Curry
Co., 928 F.2d 880, 890 (9th Cir. 1991) (“the
brakes failed”).
Deceased plaintiff’s past statements to family
members about the incident were too self-serving to
provide circumstantial guarantees of trustworthiness. Rock v. Huffco Gas & Oil Co., 922 F.2d 272,
281–82 (5th Cir. 1991).
Undated affidavit lacked indicia of trustworthiness where counsel declined to reveal circumstances surrounding its preparation because of
attorney-client privilege. Gallo v. John Powell Chevrolet, Inc., 765 F. Supp. 198, 207 (M.D. Pa. 1991).
Where plaintiffs are source of “obscure” hearsay statements, and nonparty had denied those
statements attributed to him, sufficient trustworthiness was lacking. Anesthesia Advantage, Inc. v.
Metz Group, 759 F. Supp. 638, 654 (D. Colo.
1991).
Plaintiff’s testimony that employer’s son advised
her of employer’s discriminatory statement was not
within catch-all exception; the mere fact of a fatherson relationship is not a sufficient indication of reliability. EEOC v. Indep. Stave Co., 754 F. Supp.
713, 717–18 (E.D. Mo. 1991).
Where an expected government witness was
found murdered on the eve of trial, his grand jury
testimony was properly read to the jury under the
residual exception to the hearsay rule. United
States v. Panzardi-Lespier, 918 F.2d 313 (1st Cir.
1990).
“Every circuit has determined” that in a proper
case grand jury testimony may qualify for admission under this rule, and guarantees of trustworthiness are present. United States v. Donlon, 909 F.2d
650 (1st Cir. 1990).
The existence of a former testimony exception
does not foreclose admission of grand jury testimony under the residual exception, and evidence
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Rule 901
Trial Handbook
may be used if admissible under any of the exceptions. United States v. Donlon, 909 F.2d 650 (1st
Cir. 1990).
A deposition of a now-deceased asbestos scientist, taken several years earlier in another suit not
involving the party against whom it was later
offered, qualified for admission under this rule
because of its extraordinary trustworthiness. King
v. Armstrong World Indus., 906 F.2d 1022 (5th
Cir. 1990).
Where grand jury testimony lacks guarantees
of trustworthiness, it will not qualify for admission
under this rule. United States v. Lang, 904 F.2d 618
(11th Cir. 1990) (estranged father’s testimony that
forgery defendant son “had a knack for signing
names”).
Testimony taken at a former trial by a witness
who was examined there, and died prior to the
retrial, was properly admitted under this rule.
United States v. Zannino, 895 F.2d 1 (1st Cir.
1990).
ARTICLE NINE:
Rule 901:
A corporate party’s S1 registration statement,
making a self-serving assertion of ownership of
certain artistic property rights, was properly admitted upon the offer by that company under the
residual exception given the reliability of the statement, exposure to cross-examination, and satisfaction of the other requirements of the rule. Hal
Roach Studios v. Feiner & Co., 883 F.2d 1429 (9th
Cir. 1990).
Letters, reviews, and advertisements concerning
plaintiff’s cookbook were inadmissible where none
of the authors was called as a witness. Branch v.
Ogilvy & Mather, Inc., 765 F. Supp. 819, 822
(S.D.N.Y. 1990).
Simultaneous translation from a foreign language is not hearsay, and if it were, this residual
exception would warrant receipt of the statements
being translated nonetheless. United States v.
Kramer, 741 F. Supp. 893 (S.D. Fla. 1990).
AUTHENTICATION AND IDENTIFICATION
Requirement of Authentication or Identification
General Principles
Established Doctrine
Authentication pursuant to Rule 901 is a special
aspect of relevancy concerned with establishing
the genuineness of evidence. Rule 901 of the Federal Rules of Evidence allows a district court to
admit evidence if sufficient proof has been introduced so that a reasonable juror could find in
favor of authenticity or identification. Under Rule
901, authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. At a minimum,
Rule 901 requires some type of testimony, by one
having personal knowledge, showing that the evidence is what the party offering it says it is. The
witness need not, however, have personal knowledge of the underlying events described in a document, the substance or accuracy of the document,
or the methods of calculation reflected in it. United
States v. Rommy, 506 F.3d 108 (2d Cir. 2007);
Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir.
2007); Harlamert v. World Finer Foods, Inc., 489
F.3d 767 (6th Cir. 2007); United States v. Hyles,
479 F.3d 958 (8th Cir. 2007); United States v.
Stuckey, 2007 U.S. Dist. LEXIS 75624 (S.D.N.Y.
2007); Lachira v. Sutton, 2007 U.S. Dist. LEXIS
33250 (D. Conn. 2007); Bellino v. Mineta, 2007
U.S. Dist. LEXIS 26728 (N.D. Ill. 2007); United
States v. Garcia, 452 F.3d 36 (1st Cir. 2006); U.S.
Info. Sys., Inc. v. Int’l Bhd. of Elec. Workers Local
Union No. 3, AFL-CIO, 2006 U.S. Dist. LEXIS
52870 (S.D.N.Y. 2006); Harris v. City of St. Clairsville, 2006 U.S. Dist. LEXIS 92505 (S.D. Ohio
2006); Schmutte v. Resort Condos. Int’l, LLC, 2006
U.S. Dist. LEXIS 86725 (S.D. Ind. 2006); Consejode Desarrollo Economico de Mexicali, AC v.
United States, 438 F. Supp. 2d 1207 (D. Nev.
2006); R.R. Mgmt. Co. v. CFS La. Midstream Co.,
428 F.3d 214 (5th Cir. 2005); United States v. Sexton, 119 F. App’x 735 (6th Cir. 2005); United
States v. Block, 148 F. App’x 904 (11th Cir. 2005);
Kamara v. United States, 2005 U.S. Dist. LEXIS
20651 (S.D.N.Y. 2005); Bazak Int’l Corp. v. Tarrant Apparel Group, 378 F. Supp. 2d 377
(S.D.N.Y. 2005); Boim v. Quranic Literacy Inst.,
CA–730
Case Authority
340 F. Supp. 2d 885 (N.D. Ill. 2004); Fischer v.
City of Portland, 2004 U.S. Dist. LEXIS 20453 (D.
Or. 2004); Wells v. Liddy, 37 F. App’x 53 (4th Cir.
2002); United States v. Taylor, 1999 U.S. App.
LEXIS 19239 (4th Cir. 1999); United States v.
Henry, 164 F.3d 1304 (10th Cir. 1999); United
States v. Garrison, 168 F.3d 1089 (8th Cir. 1999).
The bar for authentication of evidence under Rule
901 is not particularly high. In other words, the
rule does not impose a particularly high hurdle for
the proponent of the evidence to overcome to render it admissible. The proponent need only demonstrate a rational basis for his or her claim that
the evidence is what he or she asserts it to be. The
burden of authentication under Rule 901 does not
require the proponent of the evidence to rule out
all possibilities inconsistent with authenticity, or to
prove beyond any doubt that the evidence is what
it purports to be. Rather, the standard for authentication, and hence for admissibility, is one of reasonable likelihood. There need only be a prima
facie showing, to the court, of authenticity, not a
full argument on admissibility. The opponent of the
evidence, on the other hand, bears the burden of
showing that a genuine issue of authenticity exists.
Once the court determines that the proponent of a
document has produced evidence sufficient to
show by a “reasonable likelihood” that the document in question is what its proponent claims, then
the evidence may be admitted and any outstanding issues regarding its authenticity are to be
resolved by the fact-finder. United States v.
Gagliardi, 506 F.3d 140 (2d Cir. 2007); United
States v. Hyles, 479 F.3d 958 (8th Cir. 2007);
United States v. Stuckey, 2007 U.S. Dist. LEXIS
75624 (S.D.N.Y. 2007); Lachira v. Sutton, 2007
U.S. Dist. LEXIS 33250 (D. Conn. 2007); Bellino v.
Mineta, 2007 U.S. Dist. LEXIS 26728 (N.D. Ill.
2007); United States v. Garcia, 452 F.3d 36 (1st
Cir. 2006); U.S. Info. Sys., Inc. v. Int’l Bhd. of Elec.
Workers Local Union No. 3, AFL-CIO, 2006 U.S.
Dist. LEXIS 52870 (S.D.N.Y. 2006); United States
v. Block, 148 F. App’x 904 (11th Cir. 2005); Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318 (3d
Cir. 2005); Kamara v. United States, 2005 U.S.
Dist. LEXIS 20651 (S.D.N.Y. 2005); Bledsoe v. Potter, 2005 U.S. Dist. LEXIS 19600 (N.D. Ill. 2005);
Bazak Int’l Corp. v. Tarrant Apparel Group, 378 F.
Supp. 2d 377 (S.D.N.Y. 2005); Boim v. Quranic
Literacy Inst., 340 F. Supp. 2d 885 (N.D. Ill.
2004); Fiordalisi v. Zubek, 342 F. Supp. 2d 737
(Sinclair, Rel. #14, 9/09)
Rule 901
(N.D. Ohio 2004); Telewizja Polska USA, Inc. v.
Echostar Satellite Corp., 2004 U.S. Dist. LEXIS
20845 (N.D. Ill. 2004); APA Excelsior III, L.P. v.
Windley, 329 F. Supp. 2d 1328 (N.D. Ga. 2004);
United States v. Jackson, 345 F.3d 59 (2d Cir.
2003); Wells v. Liddy, 37 F. App’x 53 (4th Cir.
2002); Transclean Corp. v. Bridgewood Servs.,
Inc., 77 F. Supp. 2d 1045 (D. Minn. 1999); Lentz
v. Mason, 32 F. Supp. 2d 733 (D.N.J. 1999);
United States v. Arce, 997 F.2d 1123 (5th Cir.
1993); United States v. Caldwell, 776 F.2d 989,
1002 (11th Cir. 1985).
There is no single way to authenticate evidence for
purposes of Rule 901. The direct testimony of a
custodian or a percipient witness is not a sine qua
non to the authentication of a writing. Thus, a document’s appearance, contents, substance, internal
patterns, or other distinctive characteristics, taken
in conjunction with circumstances, can, in cumulation, even without direct testimony, provide sufficient indicia of reliability to permit a finding that it
is authentic. Authentication of item of real evidence
may be accomplished by any means sufficient to
support finding that item is what its proponent
claims, and may be based upon circumstantial evidence. United States v. Garcia, 452 F.3d 36 (1st
Cir. 2006); Schmutte v. Resort Condos. Int’l, LLC,
2006 U.S. Dist. LEXIS 86725 (S.D. Ind. 2006);
United States v. Dumeisi, 424 F.3d 566 (7th Cir.
2005); Bouriez v. Carnegie Mellon Univ., 2005
U.S. Dist. LEXIS 18324 (W.D. Pa. 2005); United
States v. Henry, 164 F.3d 1304 (10th Cir. 1999);
United States v. Lepanto, 817 F.2d 1463, 1466
(10th Cir. 1987). Mauldin v. Upjohn Co., 697 F.2d
644, 648 (5th Cir. 1983); United States v. Williams, 809 F.2d 75 (1st Cir. 1986) (reasonable
probability that evidence was not altered is the
required showing); United States v. O’Connell,
841 F.2d 1408, 1420 (8th Cir. 1988);
McQueeney v. Wilmington Trust Co., 779 F.2d
916, 928 (3d Cir. 1985); United States v. Gironda,
758 F.2d 1201, 1218 (7th Cir. 1985); United
States v. Bruner, 657 F.2d 1278 (D.C. Cir. 1981).
Specific Applications
Under Rule 901(a), to establish that evidence is
authentic, a proponent need only present evidence
sufficient to support a finding that the matter in
question is what the proponent claims. The factual
determination of whether evidence is that which
the proponent claims is ultimately reserved for the
jury. United States v. Vidacak, 553 F.3d 344 (4th
Cir. 2009).
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Rule 901
Trial Handbook
The district court’s role in conducting a Rule 901
authenticity inquiry is to serve as gatekeeper in
assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic. In other
words, the court need not find that the evidence is
necessarily what the proponent claims, but only
that there is sufficient evidence that the jury ultimately might do so. The burden to authenticate
under Rule 901 is not high—only a prima facie
showing is required. United States v. Vidacak, 553
F.3d 344 (4th Cir. 2009).
The burden of proof for authentication under
Rule 901 is slight. Under the rule, the requirements
of authentication or identification as a condition
precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in
question is what its proponent claims. Importantly,
there need only be a prima facie showing, to the
court, of authenticity, not a full argument on admissibility. Once such a showing is made, the evidence
goes to the jury and the jury will ultimately determine the authenticity of the evidence, not the court.
Jiminez v. United States, 2009 U.S. Dist. LEXIS
40358 (E.D. Pa. 2009).
Under Rule 901, a bag of crack cocaine is
admissible in a prosecution for possession with
intent to distribute if the evidence supports a finding that the specific bag in question was in the
defendant’s possession at the time of his arrest. Tate
v. United States, 2009 U.S. Dist. LEXIS 31761 (D.
Conn. 2009).
Rule 901 does not erect a particularly high hurdle, and the proponent of the evidence is not
required to rule out all possibilities inconsistent
with authenticity, or to prove beyond any doubt
that the evidence is what it purports to be. The
requirement under Rule 901 is satisfied if sufficient
proof has been introduced so that a reasonable
juror could find in favor of authenticity or identification. Ibrahim v. City of Houston, 2009 U.S. Dist.
LEXIS 31735 (S.D. Tex. 2009).
The proponent does not have to rule out all
possibilities not consistent with authenticity; the
standard is one of “reasonable likelihood.” To
authenticate documents used to support a motion,
a party must attach the documents as exhibits to an
affidavit made by a person through whom the
exhibits could be admitted into evidence at trial. To
authenticate by affidavit, an affiant must affirmatively show that he has personal knowledge and is
competent to testify to the matters stated therein.
The parties may also authenticate exhibits with
deposition excerpts as long as these excerpts are
accompanied by the court reporter’s certification
that the copy is true and correct. Madison One
Holdings, LLC v. Punch Int’l, NV, 2009 U.S. Dist.
LEXIS 27406 (S.D. Tex. 2009).
Authentication, required by Rule 901(a), is not
satisfied simply by attaching a document to an
affidavit. The affidavit must contain testimony of a
witness with personal knowledge of the facts who
attests to the identity and due execution of the document. Frost v. Robertson, 2009 U.S. Dist. LEXIS
24006 (D. Idaho 2009); Scott v. United States,
2009 U.S. Dist. LEXIS 14945 (D. Idaho 2009).
Pursuant to Rules 901 and 902, evidence other
than live testimony must be authenticated as a condition precedent to a finding of relevance. In addition, under Rule 901, the proponent of the
evidence bears the burden of providing evidence
sufficient to support a finding that the matter in
question is what its proponent claims. United States
v. Bonds, 2009 U.S. Dist. LEXIS 16120 (N.D. Cal.
2009).
When an evidentiary item is not readily identifiable—as with a blood or urine sample—the
authentication required by Rule 901 can be
accomplished by establishing through a “chain of
custody” that there is a reasonable probability that
the evidence has not been altered in any material
aspect since the time of the crime and that the evidence is relevant. A defect in the chain of custody
goes to the weight, not the admissibility, of the evidence introduced. Nevertheless, the existence of
serious gaps in the chain or suspicious discrepancies in the records, descriptions, or quantum or
nature of the material may raise enough doubt to
require exclusion. United States v. Bonds, 2009
U.S. Dist. LEXIS 16120 (N.D. Cal. 2009).
Authentication under Rule 901 does not erect a
particularly high hurdle to admissibility and is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent
claims. The party offering the evidence is not
required to rule out all possibilities inconsistent with
authenticity, or to prove beyond any doubt that the
evidence is what it purports to be. Asher v. Baxter
Int’l, 2009 U.S. Dist. LEXIS 7877 (N.D. Ill. 2009).
Under Rule 901(a), the bar for authentication of
evidence is not particularly high, and proof of
authentication may be direct or circumstantial. The
rule is satisfied if sufficient proof has been introduced so that a reasonable juror could find in
favor of authenticity or identification. United
States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008);
Pugliese v. Verizon N.Y., Inc., 2008 U.S. Dist. LEXIS
52677 (S.D.N.Y. 2008).
Rule 901(a) provides that the requirement of
authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in
CA–732
Case Authority
question is what its proponent claims. Under the
rule, the party offering the evidence is not
required to rule out all possibilities inconsistent
with authenticity, or to prove beyond any doubt
that the evidence is what it purports to be. Collins
v. Cook County, 2008 U.S. Dist. LEXIS 92748
(N.D. Ill. 2008); Pugliese v. Verizon N.Y., Inc.,
2008 U.S. Dist. LEXIS 52677 (S.D.N.Y. 2008).
Testimony by a “witness with knowledge” that a
matter is what it is claimed to be is sufficient for
authentication, for purposes of Rule 901. Stated
differently, a document can be authenticated
under the rule by a witness who wrote it, signed
it, used it, or saw others do so. Shanklin v. Columbia Mgmt. Advisors, L.L.C., 2008 U.S. Dist. LEXIS
91797 (S.D. Tex. 2008); C.N. v. L.A. Unified Sch.
Dist., 2008 U.S. Dist. LEXIS 80429 (C.D. Cal.
2008).
Rule 901 provides, as a matter of conditional
relevance, that documents are authenticated if
there is evidence sufficient to support a finding that
the matter in question is what its proponent claims.
A document may be either self-authenticating or it
may be authenticated by a witness laying the
proper foundation for such evidence. The burden
of proof for authentication is slight and may be
satisfied by the distinctive characteristics of the
document itself, if they suggest an official appearance. Capital City Cab Serv. v. Susquehanna Area
Reg’l Airport Auth., 2008 U.S. Dist. LEXIS 89707
(M.D. Pa. 2008).
Rule 901 provides that authentication or identification of a document is a condition precedent to
the document’s being admissible into evidence. To
be admissible, documents must be authenticated by
and attached to an affidavit that meets the requirements of FED. R. CIV. P. 56(e) and the affiant must
be a person through whom the exhibits could be
admitted into evidence. Shannon v. Potter, 2008
U.S. Dist. LEXIS 87627 (S.D. Fla. 2008).
Authentication, required by Rule 901(a), is not
satisfied simply by attaching a document to an
affidavit. The affidavit must contain testimony of a
witness with personal knowledge of the facts who
attests to the identity and due execution of the
document. Estate of Young v. County of Boundary,
2008 U.S. Dist. LEXIS 62196 (D. Idaho 2008).
Even where some witnesses were unable to positively identify a bat as the same used in the assault,
the prosecution made a prima facie showing sufficient such that a reasonable juror could find in
favor of authenticity or identification, and for the
district court to conclude that the evidence in question is what its proponent claims. United States v.
Quagigant, 282 F. App’x 633 (9th Cir. 2008).
(Sinclair, Rel. #14, 9/09)
Rule 901
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent
claims, not a particularly high hurdle. The requirement under Rule 901 is satisfied if sufficient proof
has been introduced so that a reasonable juror
could find in favor of authenticity or identification.
United States v. Ford, 279 F. App’x 68 (2d Cir.
2008).
If in the court’s judgment it seems reasonably
probable that the evidence is what it purports to be,
the command of Rule 901(a) is satisfied, and the
evidence’s persuasive force is left to the jury. United
States v. Ford, 279 F. App’x 68 (2d Cir. 2008).
The Rules of Evidence do not provide an exception for the case of a possible authenticator who is
too frightened to appear and authenticate an item
of evidence. Authentication requirements satisfy the
legitimate interest in the criminal trial process of
screening unreliable photographs, and authentication is neither arbitrary nor does it disproportionately constrict a defendant’s right to present a
complete defense. The rule is not so narrow as to
limit authentication only to the photographer. The
rule ably ensures that the trier of fact has some evidence linking the photograph to the object other
than the submitting counsel’s good word. James v.
Smith, 2008 U.S. Dist. LEXIS 50073 (E.D.N.Y.
2008).
Under Rule 901(b)(4), appearance, contents,
substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances, can support a finding that the matter in
question is what its proponent claims. Bauer v.
Bayer A.G., 564 F. Supp. 2d 365 (M.D. Pa. 2008).
A party’s pro se status did not exempt him from
compliance with relevant rules of procedural and
substantive law, such as the authentication of
records relied upon. Shambreskis v. Bridgeport &
Port Jefferson Steamboat Co., 2008 U.S. Dist.
LEXIS 37841 (E.D.N.Y. 2008).
The purpose of the authentication requirement is
to ensure that the evidence submitted is what the
proponent claims. While this purpose is served if
the opposing party supplies a record during discovery, it is not necessarily served when a third
party, such as a doctor or hospital, is the source. In
order for such records to be admissible, the offering party needed to properly authenticate the documents as it did other records. Am. Gen. Life Ins.
Co. v. Green, 2008 U.S. Dist. LEXIS 39985 (E.D.
Cal. 2008).
If the party offering evidence is unable to selfauthenticate it pursuant to Rule 902, the party is
not precluded from attempting to authenticate it
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Rule 901
Trial Handbook
under the general provision of Rule 901 that the
requirement of authentication or identification as a
condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the
matter in question is what its proponent claims.
Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007).
Illustrative examples of evidence sufficient to
support a finding that the matter in question is what
its proponent claims include the testimony of a witness with knowledge that a matter is what it is
claimed to be, or testimony describing a process
or system used to produce a result and showing
that the process or system produces an accurate
result. United States v. Rommy, 506 F.3d 108 (2d
Cir. 2007).
With respect to the authentication of computer
business records under Rule 901, it is not necessary that the person authenticating the record
have technical knowledge of how the computer
functions, nor is it necessary that the authenticator be the one who created the file. It is sufficient
if the person authenticating the records has personal knowledge of the record system and is the
custodian of the record in question itself. Linderoth
Assocs. Architects, Inc. v. Amberwood Dev., Inc.,
2007 U.S. Dist. LEXIS 67716 (D. Ariz. 2007).
A public record is self-authenticating under Rule
902 if it is submitted under seal or if it is a certified
copy. If a public record does not fall into one of
these two categories, however, the proponent of the
record must produce evidence that it complies with
the requirements of Rule 901(b)(7). Lachira v. Sutton, 2007 U.S. Dist. LEXIS 33250 (D. Conn. 2007).
Unauthenticated documents cannot be considered in a motion for summary judgment. Reed v.
Haferkamp, 2007 U.S. Dist. LEXIS 45079 (E.D.
Cal. 2007).
The issue for the trial judge considering authentication under Rule 901 is whether there is prima
facie evidence, circumstantial or direct, that the
document or other evidence is what it is purported to be. Consejo de Desarrollo Economico de
Mexicali, AC v. United States, 438 F. Supp. 2d
1207 (D. Nev. 2006).
Rule 901(b) lays out a nonexhaustive list of factors that courts may consider as evidence of
authenticity. Bowoto v. Chevron Corp., 2006 U.S.
Dist. LEXIS 41776 (N.D. Cal. 2006).
Objections predicated upon Rule 901 are
appropriate in the context of a motion for summary
judgment under FED. R. CIV. P. 56. In re Burch,
2006 U.S. Dist. LEXIS 36506 (E.D. Cal. 2006).
For purposes of Rule 901, authentication relates
only to whether the documents originate from their
alleged source; it is not synonymous to vouching
for the accuracy of the information contained in
those records. Casey v. Phelan Ins. Agency, 2006
U.S. Dist. LEXIS 31120 (N.D. Ind. 2006).
Evidence that is not oral testimony must, under
Rule 901, be shown to be what it purports to be
rather than a forgery or other fabrication or an
innocent misidentification. However, there are no
rigid rules, such as chain of custody, for authentication; all that is required is adequate evidence of
genuineness. United States v. Dawson, 425 F.3d
389 (7th Cir. 2005).
The showing of authenticity under Rule 901 is
not on a par with more technical evidentiary rules,
such as hearsay exceptions, governing admissibility. Rather, there need be only a prima facie showing, to the court, of authenticity, not a full
argument on admissibility. Once a prima facie
case is made, the evidence goes to the jury and it is
the jury who will ultimately determine the authenticity of the evidence, not the court. The only requirement is that there has been substantial evidence
from which they could infer that the document was
authentic. Lexington Ins. Co. v. W. Pa. Hosp., 423
F.3d 318 (3d Cir. 2005).
For authentication purposes, Rule 901(a) does
not require the document to be probative of a
particular fact, but requires only that there be sufficient evidence for a jury to conclude that it is what
its proponent claims it to be. Lexington Ins. Co. v.
W. Pa. Hosp., 423 F.3d 318 (3d Cir. 2005).
No rule of evidence makes a jury incompetent to
determine genuineness of a signature by comparing it to a signature known to be genuine. United
States v. Spano, 421 F.3d 599 (7th Cir. 2005).
The key question under FED. R. EVID. 901 is
whether the matter in question is what its proponent claims. Thus, with respect to videotapes
depicting the defendant engaging in various conduct, evidence of how the tapes were made and
handled prior to their seizure was not required.
United States v. Damrah, 412 F.3d 618 (6th Cir.
2005).
Authentication evaluates the genuineness of a
document, not its admissibility. Bouriez v. Carnegie
Mellon Univ., 2005 U.S. Dist. LEXIS 18324 (W.D.
Pa. 2005); see Orr v. Bank of Am., NT & SA, 285
F.3d 764, 776 (9th Cir. 2002).
For a document to be properly authenticated
by a nonexpert opinion on handwriting, Rule
901(b)(2) requires that the nonexpert’s opinion as
to the genuineness of handwriting be based upon
familiarity with the writing that was not acquired
for purposes of the litigation. When there is nothing in the record to indicate that the lay witness
was familiar with the handwriting at issue outside
of his preparation for the instant case, the purported authentication is questionable under this
CA–734
Case Authority
Rule. Thomas v. Fred Meyer Jewelry, Inc., 2005
U.S. Dist. LEXIS 18204 (D. Or. 2005).
Distinctive characteristics of intelligence communications used in authenticating them under the rule
included the style and form of the documents, symbols, codes, abbreviations, and signatures of some
fellow officers. The “circumstances” which to be
considered in conjunction with the physical characteristics include those surrounding discovery of an
item. United States v. Dumeisi, 424 F.3d 566 (7th
Cir. 2005).
Rule 901 requires only some competent evidence in the record to support authentication, and
circumstantial evidence of where the documents
were found can be sufficient to authenticate documents in the absence of any evidence of adulteration or forgery. United States v. Dumeisi, 424 F.3d
566 (7th Cir. 2005).
As for authentication, Rule 901(a) states that the
requirement of authentication is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims. An exhibit
containing the Internet domain address from which
the table was printed, and the date on which it was
printed, checked by the court, was sufficient to
authenticate the exhibit. U.S. Equal Employment
Opportunity Comm’n v. E.I. Dupont De Nemours &
Co., 2004 U.S. Dist. LEXIS 20753 (E.D. La. 2004).
The proponent of evidence need not establish a
proper foundation through personal knowledge; a
proper foundation can rest on any manner permitted by Rules 901(b) and 902. Jazz Photo Corp. v.
United States, 2004 Ct. Int’l Trade LEXIS 149 (Int’l
Trade Ct. 2004).
Courts may look to other evidence in the case to
determine whether a challenged document meets
the authenticity standard of Rule 901. APA Excelsior III, L.P. v. Windley, 329 F. Supp. 2d 1328 (N.D.
Ga. 2004).
Authentication is a condition precedent to
admissibility under Rule 901, and the court will not
consider evidence that has not been properly
admitted in compliance with the requirements of
the evidentiary rules. Lowe v. Experian, 340 F.
Supp. 2d 1170 (D. Kan. 2004).
District court ruled that a lay person laid an
inadequate foundation to testify concerning handwriting. The lay person asserted that she saw the
person in question write correspondence, review
documents he executed, and received correspondence from him. But the lay witness was obligated
to provide more detailed information regarding
any “correspondence,” “documents,” or the like,
relied upon to establish familiarity with handwriting. Such instruments must be identified with particularity. Moreover, the lay witness was obligated to
(Sinclair, Rel. #14, 9/09)
Rule 901
(but did not) provide detailed information regarding his or her relationship with the signatory—
whether it be familial, professional, or otherwise
personal. Hall v. United Ins. Co. of Am., 367 F.3d
1255 (11th Cir. 2004).
Where only copies of original receipts were
available, they were sufficient for Rule 901’s minimal standards for authentication to show that they
were signed by the accused at the times and places
where they were generated. The combined proffered testimony (1) the accused’s wife (that she had
not made the purchases), (2) the store managers
(regarding their transaction practices), and (3) a
handwriting expert (identifying the accused’s signature) was sufficient. United States v. Tin Yat Chin,
371 F.3d 31 (2d Cir. 2004).
Breaks in the chain of custody do not bear upon
the admissibility of evidence under Rule 901, only
the weight of the evidence. United States v. Jackson, 345 F.3d 59 (2d Cir. 2003).
Ball of crack cocaine was properly authenticated in a police officer’s trial for distribution of
cocaine, where another officer testified that he took
a bag containing crack cocaine during a search of
an apartment, he gave it to defendant officer while
they were still in the apartment, later in the day he
retrieved the bag from defendant officer, and that
on following day he gave the bag to an informant,
an agent testified that he picked up the informant
within minutes of informant receiving the bag, and
the agent gave the bag to another agent within
minutes. United States v. McGraw, 62 F. App’x 679
(7th Cir. 2003).
Rules 901(a) and 104(b) provide a framework
for preliminary admissibility. The trial judge may
conditionally admit the evidence if sufficient proof
has been introduced so that a reasonable juror
could find in favor of authenticity or identification,
even though the authenticity of a recording is ultimately a factual determination for the jury to
decide. United States v. Stephens, 202 F. Supp. 2d
1361 (N.D. Ga. 2002).
Authentication of documents requires a prima
facie showing of genuineness, leaving it to the jury
to decide the true authenticity and probative value
of evidence. United States v. Thornton, 197 F.3d
241 (7th Cir. 1999).
It has long been recognized that one of the principal situations where the authenticity of a letter is
provable by circumstantial evidence arising out of
the letter’s context, other than proof of handwriting
or the business records exception, is where it can
be shown that the letter was sent in reply to a previous communication. United States v. Henry, 164
F.3d 1304 (10th Cir. 1999).
CA–735
Rule 901
Trial Handbook
While the mere assertion by a person talking on
the telephone of his or her identity is not sufficient
evidence of the authenticity of the conversation, the
requisite additional evidence need not fall in any
set pattern. Indeed, a telephone conversation may
be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts
known peculiarly to him. United States v. Garrison, 168 F.3d 1089 (8th Cir. 1999).
Evidence must be shown to have suffered no
material alteration after coming into custody of the
proponent, though the rule does not expressly state
this requirement. United States v. Collado, 957 F.2d
38 (1st Cir. 1992).
A writing or object must be identified as a condition precedent to admissibility. Nolin v. Douglas
County, 903 F.2d 1546 (11th Cir. 1990).
Proper authentication under Article IX does not
resolve hearsay defects in a document. Fagiola v.
Nat’l Gypsum Co., 906 F.2d 53 (2d Cir. 1990).
Physical objects should be shown to be in the
same condition as when seized, where presence of
drug fragments is in issue. United States v. Dickerson, 857 F.2d 1241 (9th Cir. 1988) (airplane).
The “requirement of showing authenticity falls in
the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the
procedure set forth in Rule 104(b).” In re Bobby
Boggs, Inc., 819 F.2d 574, 580 (5th Cir. 1987).
Production of item by a party may support
authentication, even if done by attorney. United
States v. Brown, 688 F.2d 1112 (7th Cir. 1982).
Initial showing of caution in chain of custody
will normally be sufficient to admit; defects go to
weight. Ballou v. Henri Studios, Inc., 656 F.2d
1147 (5th Cir. 1981).
Chain of Custody Issues
Established Doctrine
The chain of custody requirement of Rule 901 is
properly considered a hybrid of several of its provisions, all of which conclude that authentication or
identification may be established by any evidence
sufficient to support a finding that the matter in
question is what its proponent claims. The “chain
of custody” rule requires that admitted items be
preceded by such evidence. In this way, the proponent may convince the court that the items are in
substantially the same condition as they were when
acquired, and that it is improbable that the originals have been exchanged with others or that they
have otherwise been tampered with. United States
v. Krieger, 2007 U.S. Dist. LEXIS 37941 (S.D. Ill.
2007); Galaxy Computer Servs. v. Baker, 325 B.R.
544 (E.D. Va. 2005); United States v. Jones, 356
F.3d 529 (4th Cir. 2004).
When physical evidence is authenticated by a
chain of custody pursuant to Rule 901, any flaws
or “breaks” in the chain of custody bear only on
the weight of the evidence, and not on its admissibility. United States v. Stuckey, 2007 U.S. Dist.
LEXIS 75624 (S.D.N.Y. 2007); United States v.
Barrow, 448 F.3d 37 (1st Cir. 2006); Galaxy Computer Servs. v. Baker, 325 B.R. 544 (E.D. Va.
2005); United States v. Jones, 356 F.3d 529 (4th
Cir. 2004); United States v. Taylor, 1999 U.S. App.
LEXIS 19239 (4th Cir. 1999); United States v. Morrison, 153 F.3d 34 (2d Cir. 1998); United States v.
Gelzer, 50 F.3d 1133 (2d Cir. 1995); United States
v. Sparks, 2 F.3d 574 (5th Cir. 1993).
Specific Applications
Breaks in the chain of custody for a laboratory
report go to the weight of the exhibit and not its
admissibility. United States v. Elm, 283 F. App’x
554 (9th Cir. 2008).
The showing required under Rule 901 is satisfied by sufficient proof that the evidence is what it
purports to be and has not been altered in any
material respect, and is not intended as an “ironclad” rule that requires exclusion of real evidence based on a missing link in its custody.
United States v. Fuller, 269 F. App’x 274 (4th Cir.
2008).
Handbag bearing allegedly counterfeit trademarks was admissible in a trademark infringement
action despite the claim that trademark holder had
not satisfactorily established a chain of custody
over the bag so as to confirm the manufacture by
alleged infringer; there was a deposition testimony
by a representative of the alleged infringer that the
large bag currently not containing an identifying
marker had one such marker when the bag was
brought to the evidentiary hearing but that it
slipped off during the course of the hearing. Gucci
Am., Inc. v. Ashley Reed Trading, Inc., 2003 WL
22327162 (S.D.N.Y. 2003).
There was a sufficient basis to find in favor of
the authenticity of drugs where the government
established a chain of custody consisting of (i) a
videotape that showed defendant giving the substance to a paid informant for DEA; (ii) a DEA
agent’s testimony regarding the government’s surveillance of the paid informant for most of the time
before, during and after the videotaped transac-
CA–736
Case Authority
tion; (iii) an agent’s testimony regarding the DEA’s
field-testing and storage of the drugs; and (iv) the
testimony of the forensic chemist who subjected the
substance to laboratory testing. United States v.
Jackson, 345 F.3d 59 (2d Cir. 2003).
Shipping evidence from investigators’ offices to
crime analysis laboratories by Federal Express did
not create a problematic gap in the chain of custody. United States v. Jones, 356 F.3d 529 (4th Cir.
2004).
To prove that a proffered tape is a true, accurate, and authentic recording, the government must
either establish the tape’s chain of custody or otherwise lay a foundation as to the trustworthiness and
accuracy of the evidence. The recollection of eyewitnesses is sufficient to establish such a foundation. United States v. Westmoreland, 312 F.2d 302
(7th Cir. 2002).
It was sufficient to establish the chain of custody
where a forensic chemist with the U.S. Postal
Inspection Service testified that drugs introduced
into evidence, which were in sealed bags bearing
his initials, were the same drugs that he had evaluated. United States v. Taylor, 1999 U.S. App. LEXIS
19239 (4th Cir. 1999).
Even a radically altered item of real evidence
may be admissible if its pertinent features remain
unaltered. Transclean Corp. v. Bridgewood Servs.,
Inc., 77 F. Supp. 2d 1045 (D. Minn. 1999).
Breaks in the chain of custody of a tape recording do not bear upon the admissibility of evidence,
only the weight of the evidence where the tape
recording can be authenticated based on its content. United States v. Morrison, 153 F.3d 34 (2d
Cir. 1998).
“Gaps” in the evidence went to the weight that
could be accorded to the evidence, not to its admissibility. United States v. Williams, 1996 U.S. App.
LEXIS 30038 (4th Cir. 1996).
A break in the chain of custody was not fatal to
authentication where it was more likely than not
that the gun offered at trial was the same as the
gun recovered from the defendant. United States v.
Gelzer, 50 F.3d 1133 (2d Cir. 1995).
Where defendant failed to object to the government’s chain of custody and there is no evidence of
tampering, admission of the evidence following a
presumption that a system of regularity accompanied the handling of evidence within official custody did not constitute plain error. United States v.
Williams, 44 F.3d 614 (7th Cir. 1995).
Any objection to authentication based on chain
of custody was waived where defense counsel
failed to challenge the introduction of the item into
evidence. United States v. Gelzer, 50 F.3d 1133
(2d Cir. 1995).
(Sinclair, Rel. #14, 9/09)
Rule 901
The break in the chain of custody that occurred
when the first person to receive the two pill bottles
containing crack cocaine from the arresting officer
did not testify only went to the weight, not the
admissibility, of the evidence since the arresting
officer testified as to the bottles being the same and
a proper chain of custody existed after the break.
United States v. Sparks, 2 F.3d 574 (5th Cir. 1993).
Chain of custody established by lack of evidence
of tampering; mere possibility of tampering goes
only to weight of evidence, not admissibility.
United States v. Harrington, 923 F.2d 1371 (9th
Cir. 1991).
In “chain of custody” cases the proffering party
need only show a rational basis for concluding that
the exhibit is what it is claimed to be, leaving for
the jury any questions about the weight of the offer.
United States v. Hon, 904 F.2d 803 (2d Cir. 1990).
See Huss v. United States, 738 F. Supp. 1098
(W.D. Mich. 1990).
A chain of custody was required for bag of
drugs, but the chain need not be “perfect” with all
witnesses testifying. United States v. Cardenas, 864
F.2d 1528 (10th Cir. 1989) (sufficient if “no substantial break” is shown); United States v. Mays,
822 F.2d 793 (8th Cir. 1987) (testimony about
integrity of dollar bills obviated need to piece chain
of custody together); United States v. Doddington,
822 F.2d 793 (8th Cir. 1987) (sergeant who had
custody of powder at one point was not called to
testify).
Internet Communications and Email
A series of archived web pages from the “Wayback Machine” Internet service, which preserves
old versions of web pages, suffers from fatal problems of authentication under Rule 901, where not
accompanied by evidence sufficient to meet the
requirements of the rule. Chamilia, LLC v. Pandora
Jewelry, LLC, 2007 U.S. Dist. LEXIS 71246
(S.D.N.Y. 2007).
In a criminal case concerning a charge of
attempting to entice a minor to engage in illegal
sexual activity pursuant to 18 U.S.C. § 2422(b),
the defendant’s claim that emails and transcripts of
instant-message chats offered by the government
as exhibits were not properly authenticated pursuant to Rule 901 was rejected. Two witnesses, one of
whom was an undercover informant, testified that
these documents were accurate records of the
defendant’s conversations and, based on this testimony, a reasonable juror could have found that the
exhibits did represent those conversations, notwithstanding that the emails and online chats were editable. United States v. Gagliardi, 506 F.3d 140 (2d
Cir. 2007).
CA–737
Rule 901
Trial Handbook
Reproductions of portions of “instant message”
or “chat” conversations conducted via computer,
accomplished by “cutting and pasting” notes taken
by a law enforcement officer from the online chats
into a Microsoft Word document, were held not to
be authentic for purposes of Rule 901, in that the
document into which the selections were “pasted”
did not accurately represent the entire conversations that took place and included editorializing by
the officer. United States v. Jackson, 488 F. Supp.
2d 866 (D. Neb. 2007).
A district court did not abuse its discretion in ruling that the admission of audio tapes containing
recordings of the defendant’s voice was supported
by sufficient evidence to satisfy the foundational
requirements of Rule 901(a). Despite the fact that
the law enforcement official who testified that he
recognized the voice on the tapes as being that of
the defendant did not speak Spanish, only minimal
familiarity with the defendant’s voice was required,
and the law enforcement official testified that he
recognized the defendant’s voice through the
defendant’s use of his nickname, “Cacho,” in at
least one of the recordings. United States v.
Zepeda-Lopez, 478 F.3d 1213 (10th Cir. 2007).
To authenticate printouts from a website pursuant to Rule 901, the party proffering the evidence
must produce some statement or affidavit from
someone with knowledge of the website; for example, a web master or someone else with personal
knowledge would be sufficient. St. Lukes Cataract
& Laser Inst. v. Sanderson, 2006 U.S. Dist. LEXIS
28873 (M.D. Fla. 2006).
Printouts from government websites have been
held to be self-authenticating pursuant to Rule
901(a) and/or 902(5). Colt Defense LLC v. Bushmaster Firearms, Inc., 2005 U.S. Dist. LEXIS 20874
(D. Me. 2005).
An “Internet Archive” does not fit neatly into any
of the nonexhaustive examples listed in Rule 901,
since it is a relatively new source for archiving
websites. Nevertheless, where an adversary has
presented no evidence that the Internet Archive is
unreliable or biased, and has neither denied that
the exhibit represents the contents of its website on
the dates in question, nor come forward with its
own evidence challenging the veracity of the
exhibit, the proponent had supplied sufficient foundation to satisfy Rule 901’s threshold requirement
for admissibility. The opponent remains free to
raise its concerns regarding reliability with the jury.
Telewizja Polska USA, Inc. v. Echostar Satellite
Corp., 2004 U.S. Dist. LEXIS 20845 (N.D. Ill.
2004).
Emails sent to two witnesses were properly
authenticated where each bore defendant’s email
address, which was same as email sent by defendant, where a second witness testified that when he
replied to the email in question, the reply function
on his email system automatically used defendant’s
email address as the sender, the context of the
emails showed the author to have been someone
who would have known details of defendant’s conduct, where one email made reference to a corroborated event, both emails referred to author by
defendant’s nickname, and both witnesses testified
that they spoke with defendant by phone shortly
after emails and he made same requests on phone
that emails had made. United States v. Siddiqui,
235 F.3d 1318 (11th Cir. 2000).
The authenticity of log printouts of chat room
where members discussed, traded, and produced
child pornography was satisfactory where a cooperating witness explained how he created the logs
with his computer and stated that printouts, which
did not contain deleted material, appeared to be
accurate representation of chat room conversations
among members. United States v. Tank, 200 F.3d
627 (9th Cir. 2000).
Recordings, Tapes, and Transcripts
Established Doctrine
Before an audio tape recording may be properly
admitted at trial, Rule 901(a) requires the government to offer evidence sufficient to support a finding that the tape in question is what its proponent
claims. This requires the government to show by
clear and convincing evidence that the proffered
tape is a true, accurate, and authentic recording
of the conversation between the parties. It may
do so by establishing the chain of custody or by
offering testimony of an eyewitness that the recording accurately reflects the conversation he or she
witnessed. United States v. Eberhart, 467 F.3d 659
(7th Cir. 2006).
Regarding authentication of a videotape, the key
question under Rule 901, which states the basic
requirement for admission of an exhibit, is whether
the matter in question is what its proponent claims.
A videotape that clearly identifies the persons
depicted in it may be self-authenticating and thus
may not requiring any additional authentication
testimony from a witness present at the scene
depicted in the video. Courts have often focused
CA–738
Case Authority
on seven criteria for the admission of videotape
recordings: (1) that the recording device was
capable of taking the activity now offered in evidence; (2) that the operator of the device was competent to operate the device; (3) that the recording
is authentic and correct; (4) that changes, additions, or deletions have not been made in the
recording; (5) that the recording has been preserved in a manner that is shown to the court;
(6) that the persons recorded are identified; and
(7) that the activity elicited was made voluntary
and in good faith, without any kind of inducement.
If authentication testimony is required, a witness
can authenticate the video under Rule 901 by
establishing that the tape accurately depicts the
events illustrated in the recording. Jordan v. United
States, 2007 U.S. Dist. LEXIS 67743 (W.D. Va.
2007); Holder v. Gold Fields Mining Corp., 2007
U.S. Dist. LEXIS 7592 (N.D. Okla. 2007); United
States v. Morrow, 2005 U.S. Dist. LEXIS 8328
(D.D.C. 2005); Stringel v. Methodist Hosp. of Ind.,
89 F.3d 415 (7th Cir. 1996).
It is not necessary for a participant of the
recorded conversation to testify to the authenticity
of the recordings so long as other indicia of accuracy and reliability are established. United States
v. Sexton, 119 F. App’x 735 (6th Cir. 2005).
The court has an obligation to ascertain that the
recording itself is sufficiently audible to constitute
reliable evidence of the conversation recorded.
Stringel v. Methodist Hosp. of Ind., 89 F.3d 415
(7th Cir. 1996).
Specific Applications
Under Rule 901, a video recording is admissible as a depiction of the scene it represents. Its lack
of sound, or the presence of visual barriers in the
video, affects the weight that the video receives, but
not its admissibility. Kies v. City of Lima, 2009 U.S.
Dist. LEXIS 20773 (N.D. Ohio 2009).
Testimony by DEA agents identifying defendant’s
voice on an audio tape of the drug transaction satisfied Rule 901(b)(5) where the agents had an
“hour-long discussion” with him; the discussion was
clearly a circumstance connecting the voice with the
defendant. United States v. Norman, 415 F.3d 466
(5th Cir. 2005).
Inaudible portions of the tape were insufficient
to make an audio tape as a whole inadmissible,
especially where the government’s proffer included
sufficient indicia of reliability for the tape to be
admissible. United States v. Norman, 415 F.3d 466
(5th Cir. 2005).
(Sinclair, Rel. #14, 9/09)
Rule 901
A videotape prepared by gang members,
shown to be unaltered, was not erroneously
received. United States v. Fields, 138 F. App’x 622
(5th Cir. 2005).
Audio tapes were properly authenticated under
Rule 901 where law enforcement officers present
during the tapings testified in detail about the procedures used when an individual was outfitted with
the transmitter and recorder during the controlled
narcotics buys. The fact that person who was
“wired up” did not testify to authenticate the tape
recordings or identify the other voices does not render them inadmissible. United States v. Sexton, 119
F. App’x 735 (6th Cir. 2005).
Case law on the prerequisites for admitting videotaped evidence is sparse. However, arguments
that where a videotape is edited its proponent
must call to the stand the tape’s editor to authenticate the tape have been rejected. United States v.
Damrah, 334 F. Supp. 2d 967 (N.D. Ohio 2004).
Absent a challenge that the tape was inaccurate
in any way or that it had been altered since the
date of recording, receipt in evidence was proper.
United States v. Damrah, 334 F. Supp. 2d 967
(N.D. Ohio 2004).
Where there was no claim that videos did not
accurately depict the events that transpired at certain public rallies, and the translations of foreign
words in the tapes was stipulated to be accurate,
and several participants in the rallies were identified in testimony, there was a satisfactory showing
that the videos fairly depicted the actual events that
took place at the rallies. United States v. Damrah,
334 F. Supp. 2d 967 (N.D. Ohio 2004).
Government’s proof satisfied authentication
requirements for admitting voice recordings made
using a digital recording device; defense counsel
could have probed complications of recording and
reproducing technology through cross-examination of government witnesses and opinion testimony
of defense expert witness, with reliability of recordings being left to jury. In the case at bar, the government, as the proponent of voice recordings,
must have offered evidence “sufficient to support a
finding” that recordings were of voices of individuals the government said participated in recorded
conversations at the times and places government
alleged. To that end, government may have relied
upon testimony of a witness with knowledge, Rule
901(b)(1), or upon Rule 901(b)(5), identification of
a voice, whether heard firsthand or through
mechanical or electronic transmission or recording,
by opinion based upon hearing the voice at any
time under circumstances connecting it with alleged
speaker. United States v. Capanelli, 257 F. Supp.
2d 678 (S.D.N.Y. 2003).
CA–739
Rule 901
Trial Handbook
Defendant’s stipulation that tape recordings
offered by government were intercepted pursuant
to court order or consensually recorded, made at
the dates and times stated on corresponding transcripts, over telephones or at locations reflected in
the corresponding transcripts, were accurate copies of originals except for redacted portions, and
that the originals were not altered or tampered
with, established accuracy, authenticity and general trustworthiness. United States v. Panaro, 266
F.3d 939 (9th Cir. 2001).
The trial court erred in not admitting a tape
recording of a telephone conversation, where the
authenticating witness testified that he recognized
the voice on the tape as that of the defendant
based on a conversation some three years earlier.
United States v. Knox, 1998 U.S. App. LEXIS
27655 (6th Cir. 1998).
Videotapes were admissible under Rule
901(b)(4) where the videotapes were clearly
labeled as Apple’s, IBM’s, and other corporations’
materials developed by these companies for their
own use. Gonzalez v. Digital Equip. Corp., 8 F.
Supp. 2d 194 (E.D.N.Y. 1998).
Tape recordings made with a hidden wire transmitter were sufficiently authenticated by the testimony of a police detective that he personally wired
the transporter prior to each transaction and that
he and his partner operated and monitored audio
recording equipment while the other detective dealt
with defendants. United States v. Wilson, 115 F.3d
1185 (4th Cir. 1997).
Videotapes with date and time signatures, supported by stipulations negating any alteration, and
testimony about the setting up of the recording
equipment, were properly authenticated in the
absence of any specific attack. United States v.
Payton, 1996 U.S. App. LEXIS 18955 (9th Cir.
1996).
Based on testimony of an attorney that he compared a transcript to the original tape and found
that it accurately represented the testimony at a
deposition, the foundation for use of the transcript
was satisfactory. United States v. Workinger, 90
F.3d 1409 (9th Cir. 1996).
Where there was no reasonable doubt about
the authenticity of the contents of a tape or about
the accuracy of the recording, there was no basis
for fearing that the tape had been altered, much
less altered in any material respect, and proof of
the chain of custody was not required. United
States v. Campbell, 1996 U.S. App. LEXIS 12141
(9th Cir. 1996).
A defect in evidence of the chain of custody
does not preclude the admission of tapes, if the
judge is satisfied that “in reasonable probability
the article has not been changed in important
respects.” United States v. Tellier, 1996 U.S. App.
LEXIS 10932 (2d Cir. 1996).
Surveillance audiotapes of undercover cocaine
purchases were sufficiently authenticated by an
agent’s testimony that he equipped the confidential
informant with sound monitoring equipment, that
the agent monitored each transaction as it
occurred, and that the agent observed at least part
of each transaction from a short distance while
simultaneously listening to the conversation. United
States v. Polk, 56 F.3d 613 (5th Cir. 1995).
Taped conversations between defendant and
witness had been authenticated when witness identified them at trial. United States v. Singh, 922 F.2d
1169, 1174 (5th Cir. 1991).
A tape recording may be authenticated by circumstantial evidence, such as the telephone numbers called showing that the phone in a defendant’s
home was used. United States v. Degaglia, 913
F.2d 372 (7th Cir. 1990). Accord United States v.
Santana, 989 F.2d 821 (1st Cir. 1990) (combination of tape circumstances, some voice identification, and witness to the live meeting).
A recording found in a defendant’s possession
should not be subject to the same authenticity
requirements applied when a government agent or
informant initiates a conversation knowing that it is
to be recorded. United States v. O’Connell, 841
F.2d 1408, 1420 (8th Cir. 1988).
Tapes in Spanish were authenticated by agent
who spoke to defendant for hours in Spanish and
who heard voice exemplars. United States v. Alvarez, 860 F.2d 801 (7th Cir. 1988); United States v.
Vega, 860 F.2d 779 (7th Cir. 1988) (similar).
Self-identification by a speaker alone is not sufficient authentication of a voice. United States v.
Puerta Restrepo, 814 F.2d 1236, 1239 (7th Cir.
1987) (timing of other calls and defendant’s conduct in accord with calls was sufficient); United
States v. Miller, 771 F.2d 1219 (9th Cir. 1985)
(self-ID plus timing of related calls was sufficient to
identify defendant as caller).
Telephone Conversations
Although Rule 901(a) does not definitively
establish the nature or quantum of proof that is
required to establish the authenticity of a telephone conversation, subsection (b) provides illustrations of what will suffice. Subsection (b)(5),
dealing specifically with voice identification, states
that identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, can be established “by opinion
based upon hearing the voice at any time under
circumstances connecting it with the alleged
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speaker.” Thus, a telephone conversation is
admissible in evidence if the identity of the
speaker is satisfactorily established and the question is for the jury if, as reasonable people, they
could find the claimed identification to be accurate. Pugliese v. Verizon N.Y., Inc., 2008 U.S. Dist.
LEXIS 52677 (S.D.N.Y. 2008).
A single telephone call, combined with hearing
a voice in court, is sufficient for voice identification
testimony to go to the jury under Rule 901, and
such voice identification need only rise to the level
of minimal familiarity. United States v. Parker, 521
F. Supp. 2d 1174 (D. Kan. 2007).
Where a detective had heard a defendant’s
voice for some four hours during an interview, this
was sufficient under Rule 901 to permit the detective to offer opinion testimony identifying the defendant as the person who had made certain 911
calls, which the detective also heard. The fact that
the detective had allegedly made up his mind
who the 911 caller was before he listened to the
tapes goes to the weight, not the admissibility of
the voice identification. United States v. Parker,
521 F. Supp. 2d 1174 (D. Kan. 2007).
The mere announcement of identity by a person
who has placed a telephone call does not suffice to
make it admissible against the person so identified. Rule 901 requires evidence to support the
claim that the self-identifying caller is indeed who
he says he is. Wells v. Liddy, 37 F. App’x 53 (4th
Cir. 2002).
Telephone conversation may be shown to have
emanated from a particular person by virtue of its
disclosing knowledge of facts known peculiarly to
him. The content of a telephone conversation combined with the caller’s self-identification can sufficiently support a finding that the caller is who she
says she is. Wells v. Liddy, 37 F. App’x 53 (4th Cir.
2002).
A detective’s opinion was not facially inadmissible merely because he did not hear the telephone
conversations first-hand, since Rule 901(b)(5) permits “identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing
the voice at any time under circumstances connecting it with the alleged speaker.” United States v.
Hardwell, 80 F.3d 1471 (10th Cir. 1996).
Where a phone call from a woman who identified herself as defendant and provided the address
of defendant’s father was received shortly after the
recipient had left a message on an answering
machine at a number provided by defendant, notes
of that call met the requirement for authentication.
United States v. Khan, 53 F.3d 507 (2d Cir. 1995).
(Sinclair, Rel. #14, 9/09)
Rule 901
Telephone voice identification bases can include
self-identification of the person answering and circumstantial evidence showing that the person
answering is the person called. United States v.
Kingston, 971 F.2d 481 (10th Cir. 1992).
Call “out of the blue” with apparent identification as X is insufficient to offer against X without
more. United States v. Pool, 660 F.2d 547 (5th Cir.
1982).
Expected call, accompanied by self-description
of caller for purposes of meeting, sufficient to
admit. United States v. Leon, 679 F.2d 534 (5th Cir.
1982).
Phone orders to X, followed by receipt of material with X’s fingerprints, sufficient to receive order
conversation against X. United States v. Espinoza,
641 F.2d 153 (4th Cir. 1981).
Phone call to X at his wife’s listed number, followed by meeting set up in call, sufficient to admit
call against X. United States v. Alessi, 638 F.2d 466
(2d Cir. 1980).
Handwriting
A host of legal authority supports the trial
court’s use of comparison as the means by which
to authenticate a signature, using a comparison
with an already authenticated signature. This is in
accord with Rule 901(b)(3), permitting the trier of
fact to authenticate handwriting by comparing the
disputed handwriting with a sample that already
has been authenticated. Generally the trier of fact
may compare a contested sample of handwriting
with an authenticated sample and decide that the
contested sample is authentic even in the absence
of expert testimony. United States v. Miner, 272 F.
App’x 530 (8th Cir. 2008).
The admitted or proven handwriting of any
person is admissible for purposes of comparison,
to determine genuineness of other handwriting
attributed to such person. United States v. Miner,
272 F. App’x 530 (8th Cir. 2008).
Even if there are subtle differences between
two signatures, they may not be so dissimilar in
form and style that the district court’s finding of
identical authorship would be clearly erroneous.
United States v. Miner, 272 F. App’x 530 (8th Cir.
2008).
Under Rule 901(b)(3), where the authenticity of
a signature is in dispute, the trier of fact may make
a comparison with specimens that have been
authenticated. Clifton v. Anthony, 401 F. Supp. 2d
686 (E.D. Tex. 2005).
Deposition testimony that a witness was familiar
with a form and that it bore her signature was
proper authentication, rendering the exhibit admissible under Rule 901(a)(1). Astudillo v. US News &
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Rule 901
Trial Handbook
World Report, 2004 U.S. Dist. LEXIS 18685
(S.D.N.Y. 2004).
Under Rule 901(b)(3), expert opinion on handwriting is not necessary. United States v. Saadey,
393 F.3d 669 (6th Cir. 2005).
Where the government presented known handwriting material—the tax forms that defendant
admitted contained his signature, along with credit
applications, which contained his name, address,
and social security number, and also contained signatures—the district court did not abuse its discretion by allowing the jury, pursuant to Rule
901(b)(3), to make lay comparisons between the
signatures on each of these documents and defendant’s signature on the tax forms. United States v.
Saadey, 393 F.3d 669 (6th Cir. 2005).
Source of handwritten notes seized from defendant’s residence and the correspondence of information contained in the notes to members of drug
conspiracy provided ample foundation for their
admissibility. United States v. Reyes, 798 F.2d 380,
383 (10th Cir. 1986); United States v. Calbas, 821
F.2d 887 (2d Cir. 1987) (notebook of coconspirator found in room with kilo of drugs sufficiently tied
to the coconspirator).
Lay witnesses are allowed to give opinions as to
the genuineness of handwriting in order to authenticate it. United States v. Barker, 735 F.2d 1280,
1283 (11th Cir. 1984).
Union authorization cards can be authenticated
by witnesses to their execution or by comparison
with known specimen of person’s handwriting. Ona
Corp. v. NLRB, 729 F.2d 713, 723 (11th Cir.
1984).
Contents of letter found in defendant’s home
sufficient to authenticate. United States v. Bagaric,
706 F.2d 42, 67 (2d Cir. 1983); Burgess v. Premier
Corp., 727 F.2d 826, 835 (9th Cir. 1984).
Jury can compare known handwriting sample
with this another sample to determine if handwriting in latter sample is genuine. United States v. Clifford, 704 F.2d 86, 91 (3d Cir. 1983).
Handwriting expert may compare records
known to be authored by person with exemplar
under dispute. United States v. Maucklin, 670 F.2d
746 (7th Cir. 1982) (using prison records).
Voice Identification
Established Doctrine
Where evidence includes a voice identification,
Rule 901(b)(5) provides that a witness may identify
or authenticate the voice or speaker if he has
heard the voice at any time under circumstances
connecting it the voice with the alleged speaker,
whether heard firsthand or through mechanical or
electronic transmission or recording. Minimal
familiarity is sufficient for admissibility purposes.
United States v. Rommy, 506 F.3d 108 (2d Cir.
2007); United States v. Sexton, 119 F. App’x 735
(6th Cir. 2005); United States v. Fearon-Hales,
2005 U.S. Dist. LEXIS 21619 (S.D.N.Y. 2005);
United States v. Hull, 74 F. App’x 615 (7th Cir.
2003); United States v. Plunk, 153 F.3d 1011 (9th
Cir. 1998); United States v. Duran, 4 F.3d 800 (9th
Cir. 1993).
Under Rule 901, courts consider the “totality of
the circumstances” to determine whether voiceidentification testimony is sufficiently reliable to be
allowed into evidence, and due process requires
the exclusion of such testimony only where there is
a very substantial likelihood of irreparable misidentification. United States v. Brown, 510 F.3d 57
(1st Cir. 2007).
Expert testimony is not required for identification
of a voice. United States v. Hardwell, 80 F.3d
1471 (10th Cir. 1996).
Specific Applications
Rule 901 governs the authentication of evidence as a precondition to admissibility, and subsection (b) provides examples of acceptable
methods of voice authentication or identification.
Under the rule, a witness properly authenticates a
voice, whether heard firsthand or through mechanical or electronic transmission or recording, by
opinion based upon hearing the voice at any time
under circumstances connecting it with the alleged
speaker. United States v. Recendiz, 557 F.3d 511
(7th Cir. 2009).
Because aural voice identification is not a subject of expert testimony, the requisite familiarity
may be acquired either before or after the particular speaking that is the subject of the identification,
for purposes of the authentication requirement
imposed by Rule 901. As long as the basic requirement of familiarity with the voice is met, lay opinion
testimony is an acceptable means for establishing a
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speaker’s identity. United States v. Recendiz, 557
F.3d 511 (7th Cir. 2009).
A speaker’s voice may be identified under Rule
901(b)(5) by opinion testimony based upon hearing the voice at any time under circumstances
connecting it with the alleged speaker. Once a
witness establishes familiarity with an identified
voice, it is up to the jury to determine the weight to
place on the witness’s voice identification. United
States v. Perez, 283 F. App’x 716 (11th Cir. 2008).
Where there is evidence from witnesses connecting the defendant to a voice, the jury was
properly instructed that the issue of identity was
within their discretion, and a jury’s credibility determinations will not be disturbed on appeal. United
States v. Perez, 283 F. App’x 716 (11th Cir. 2008).
Voice identification testimony can be admitted
under Rule 901 only after it is determined sufficient
evidence supports a finding the matter in question
is what its proponent claims. A speaker’s voice may
be identified by opinion testimony based upon
hearing the voice at any time under circumstances
connecting it with the alleged speaker. Once a witness establishes familiarity with an identified voice,
it is up to the jury to determine the weight to place
on the witness’s voice identification. United States v.
Johnson, 277 F. App’x 890 (11th Cir. 2008).
Where a detective testified he heard a particular voice three times prior to the date on which he
made his identification, this was sufficient to establish his familiarity with Johnson’s voice under Rule
901(b)(5). Accordingly, the voice identification
could properly be permitted to go to the jury, as it
was up to the jury to determine the weight to place
on this identification. United States v. Johnson, 277
F. App’x 890 (11th Cir. 2008).
Where various witnesses, who heard the
recorded conversations and were familiar with the
voices therein, testified as to the identity of the
speakers recorded on the tape, in conformance
with Rule 901, the government adequately demonstrated through testimony by the police who were
monitoring the controlled buys and testimony of
persons familiar with the voices that the tapes were
in fact what they claimed to be, even without testimony of the person wearing the “wire,” and it
was not error to admit the tapes. United States v.
Sexton, 119 F. App’x 735 (6th Cir. 2005).
(Sinclair, Rel. #14, 9/09)
Rule 901
An agent’s familiarity with the voice of a target
person was sufficient to authenticate reliance upon
tapes in which that individual participated in telephone conversations. United States v. Castellon, 80
F. App’x 562 (9th Cir. 2003).
Officer could testify that a voice he heard negotiating a drug transaction over a radio transmitter
was defendant’s, based upon hearing defendant’s
voice after the transaction and defendant’s arrest.
United States v. Townsend, 1999 U.S. App. LEXIS
13872 (5th Cir. 1999).
In a drug case, testimony of a courier that she
received a threatening telephone call a couple of
days before her cooperation with the government,
from someone identifying himself as “Ike,” was
properly admitted. United States v. Garrison, 168
F.3d 1089 (8th Cir. 1999).
Where the detective later heard a party’s voice
both in person and on a tape of his court appearance, he could identify the voice on the tape of the
drug negotiations under Rule 901(b)(5). United
States v. Hardwell, 80 F.3d 1471 (10th Cir. 1996).
The proponent of evidence need not rule out
every conceivable chance that somehow the identity or character of the evidence underwent change.
Hulmes v. Honda Motor Co., 936 F. Supp. 195
(D.N.J. 1996).
Police officer who spoke Spanish, conducted a
wire tap and overheard the conversations in Spanish was capable of authenticating the transcripts
and identifying defendant’s voice even though the
original tapes had been destroyed. United States v.
Puentes, 50 F.3d 1567 (11th Cir. 1995).
Wiretap recordings and transcripts were properly admitted and authenticated, even though none
of the persons who prepared the transcripts testified to their accuracy, where the government established the identity of each speaker through
telephone subscriber information, surveillance, and
self-identification on the tapes. United States v.
Green, 40 F.3d 1167 (11th Cir. 1994).
A DEA agent who met several times with
defendant was permitted to identify his voice on a
tape, authenticating it. United States v. Degaglia,
913 F.2d 372 (7th Cir. 1990); accord United States
v. Carrasco, 887 F.2d 794 (7th Cir. 1989) (meeting
with declarant sufficient).
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