Bloggin big willy style |
|
William D. Randall's Blog (of no particular interest to no one in particular)
Yep that's right there is no e-mail address on this page (I h8 !@#$#% Spam !@#$@). Vistors: thanks for visiting! Friends: Drop me a line through the usual channels, Thanks.
"We Have Just Begun to Fight...." Winston Churchill "Audentes Fortuna Juvat" - "Fortune Favors the Bold"
Archives
The Bookshelf
|
Saturday, November 11, 2006
FINALS BLOGGING SERIES: EVIDENCE & CON LAW I didn't blog last night, something about it being Friday, and just having too many things on my mind. After coming home from work, chatting it up with another Law Student on the train, watching my obligatory episode of Battlestar Galactica, and getting sidetracked on Digg, the last thing I wanted to discuss was the levels of scrutiny used by the Supreme Court to determine the validity of statutes perceived to be violations of the Equal Protection clauses of the Fifth and Fourteenth Admendments. On an aside, they are Strict Scrutiny, Intermediate Scrutiny, and Rational Basis. Strict scrutiny applies when the suspect classification is Race or Ethnicity. In order for acts to be held constitutional there must be a compelling governmental purpose for such a measure. (see Korematsu where the Court held that the placement of persons of Japanese ancestry was valid as the government had a compelling purpose to prevent sabotage during a time of war. Of course, I agree with the strongly worded dissent by Justice Murphy, who states there were other less restrictive methods available to determine loyalty, and the singling out of a specific race was a "sweeping and complete deprivation of constitutional rights in the history of the nation." 323 U.S. 214, Murphy (dissenting). This case is hopefully to remain an exception, rather then the rule.) Briefly, Intermediate Scrutiny and Rational Basis (RBT) are lesser forms of review in that under Intermediate Scrutiny, where the classification is based on gender or non-marital children, a law will be held constitutional when it is substantially related to an important government purpose. (I.e. Height and weight limits for police officers even though such limits may disproportionaly effect women, etc...). Under the RBT, the law must be rationally related to a legitimate government purpose when the suspect classifications deal with age, alienage, or wealth for example. (i.e. discrimination against a class of persons, such as non-related household residents for purposes of receiving food stamps because part of the class consists of "Hippies," is not a rational relation to a legitimate government purpose, such as preventing fraud. Additionally, the Court held that other measures of the Agricultural Act allowed for the prevention of fraud, thus concluding that the measure passed by congress did not serve a legitimate purpose. See Moreno 413 U.S. 528 (1973). In contrast, a state law requiring residents to see optometrists and not opticians to obtain eyeglass lenses, did serve a legitimate purpose however as (1) The law did not serve a discriminatory purpose, and (2) there was a legitimate public health aspect in making sure persons receive properly fitted lenses.Williamson v. Lee Optical) The above is in no way intended to be a complete and true representation of the levels of scrutiny applied by the court. Any one using the above does so at their own risk. EVIDENCE: PAST RECOLLECTION RECORDED After posting the above, the rest is going to be in an outline format. I: What may be used to refresh the recollection of a witness? R: (1) Declarant Testifies (i.e. is witness), (2) Declarant has firsthand knowledge, (3) Declarant lacks sufficient recollection, (4) A memorandum or record is offered, (5) The record or memorandum is made or adopted by the witness, (6)Accurate, and (7) is read into evidence. (See FRE 803(5) A: Note: PRR must be distinguished from Present Recollection Revived (FRE 612) where the witness is not required to have first hand knowledge of the statement. The document, or other stimulus, is merely used to jog the witness's memory and is not admissible into evidence. PRR (803(5)) however is admissible when the declarant witness has first hand knowledge of the facts at issue, the witness declarant has insufficient recollection, and the record accurately recorded facts known by the declarant witness. Basically, the process to determine the admission of 803(5) Evidence follows the same procedure as 612 evidence up to the point where the witness/declarant lacks sufficient recollection. From there, the L must authenticate the document, determine the document was made or adopted "at or near the time of the event while he events where still fresh in the declarants memory, and the facts recorded are accurate. BUSINESS RECORDS: AKA RECORDS OF A REGULARLY CONDUCTED ACTIVITY I: When may business records be received into evidence? R: Such records may be received into evidence under a hearsay exception when (1) The person providing the information in the business record has first-hand knowledge and is under a regular business duty to acquire and report the information. (i.e. Nurses conducting bed checks), (2) Record, (3) Regularly conducted business activity, (4)Record made at or near time events occurred, person has duty to record, and it is part of the regular course of business to do so, (4) Business keeps record. (803(6)) A: Lutz basically explains the purpose behind the business records exception, since records prepared in the regular course of business are given credit and weight by others in an industry or trade, it would be impractical for the courts to do otherwise. Additionally, this requires that the preparer of the report have first hand knowledge of the facts supporting the report, and hearsay statements integrated in, a police report for example, are inadmissible as the officer was not the original source of information of the statements. Statements made by an outsider to the business that are recorded on business forms are considered hearsay, as there is no need for the outsider to be truthful in making the statements whereas an employee (or other business agent) regularly conducts the activity and business incentives to keep accurate records act as a "check" on the truthfulness of the statements made. (Vigneau) ABSENCE OF ENTRY IN BUSINESS RECORDS The business has a regular procedure to record the occurrence of an event and witness has conducted a diligent search of the relevant records. That's It. Note: The Court in Palmer held that accident records are not reports, "Routinely prepared in the course of business." If they were, the exception would essentially swallow the rule, as accident reports prepared in anticipation of litigation would fall under the more liberal common law rule of "regular course of conduct which may have some relation to the business. The determination of "scope of the business is to be determined by 1) the inherent nature of the business and 2) Methods systematically used by the business. Today, some commentators consider this one of William O's worst decisions and it's holding is trounced by other aspects of the FRE. PUBLIC RECORDS A. Public Agency Proper Foundation Any internal or external record prepared by the agency is admissible for evidentiary purposes, as long as it has indicia of trustworthiness. B. Matters observed and Reported according to duty FHK of Gov employee/agent Official Duty to observe or report Agency has official duty to observe or report. EX: Attorney seeks to enter into evidence a NTSB Report of a recent plane crash for insurance purposes. Under this rule, L may have the author of the report testify as to observations of the accident scene, but not as to matters of causation, as the author is an agent of a government agency and has an official duty to report on the conditions surrounding aircraft accidents. C. Factual Findings. Continuing with the above hypothetical, the L may also submit the NTSB report into evidence in lieu of placing the author on the stand. HOWEVER, a government prosecutor may not use this rule. - The factual findings of a public record may be challenged through 1) the timeliness of the investigation, 2) Special skill or experience in conducting the investigation, 3) Whether a hearing was held or the level of which a hearing was conducted, 4) Motivational problems (I.e. Litigation) So that's it for today. Trust me, I'm going to be up to my eyeballs in multiple-choice questions and practice exams for the next few weeks. Going somewhat crazy....WDR
Comments:
Post a Comment
|
