1
00:00:00,040 --> 00:00:03,920
Usually when you break your arm,
the X-ray shows a jagged white 

2
00:00:03,920 --> 00:00:06,440
line and the doctor points at 
the film and says, well, there 

3
00:00:06,440 --> 00:00:07,880
it is. 
Right, it's visible. 

4
00:00:08,160 --> 00:00:10,320
I mean it is binary. 
It's either broken or not 

5
00:00:10,320 --> 00:00:11,480
broken. 
Exactly. 

6
00:00:11,680 --> 00:00:13,840
But imagine stepping into a 
courtroom. 

7
00:00:13,840 --> 00:00:16,480
You sit down at the counsel 
table and you realize the 

8
00:00:16,480 --> 00:00:20,080
diagnostic machine for truth is 
just completely shattered. 

9
00:00:20,080 --> 00:00:24,720
Oh yeah, opposing counsel stands
up and introduces a statement 

10
00:00:24,720 --> 00:00:26,080
from a phantom. 
Right. 

11
00:00:26,320 --> 00:00:29,880
A witness who isn't even in the 
room, whispering into the jury's

12
00:00:29,880 --> 00:00:32,400
ear through a piece of paper or 
like a second hand story. 

13
00:00:32,560 --> 00:00:35,480
And this is really the invisible
ghost of evidence law. 

14
00:00:35,520 --> 00:00:39,160
You run your mental diagnostic 
and the statement is absolutely,

15
00:00:39,160 --> 00:00:43,680
undeniably, 100% hearsay. 
It is an out of court statement 

16
00:00:43,680 --> 00:00:46,120
being offered to prove the truth
of the matter asserted. 

17
00:00:46,120 --> 00:00:48,920
Which means you know under the 
standard rules of engagement 

18
00:00:48,920 --> 00:00:50,640
that evidence is dead on 
arrival. 

19
00:00:50,640 --> 00:00:52,280
Right. 
The judge slams the gavel, 

20
00:00:52,320 --> 00:00:55,560
sustains your objection, and the
jury is instructed to disregard 

21
00:00:55,560 --> 00:00:57,760
it entirely. 
Because the system is built on 

22
00:00:57,760 --> 00:01:01,240
the premise that we do not trust
statements unless we can look 

23
00:01:01,240 --> 00:01:04,599
the speaker in the eye, we want 
to put them underoath and 

24
00:01:04,599 --> 00:01:09,000
subject them to the absolute 
Crucible of cross examination. 

25
00:01:09,440 --> 00:01:11,600
But imagine you aren't the one 
objecting. 

26
00:01:11,960 --> 00:01:14,880
Imagine you are the one offering
that phantom statement. 

27
00:01:15,240 --> 00:01:17,440
Oh, that's a terrifying place to
be. 

28
00:01:17,440 --> 00:01:20,520
It really is. 
Your entire case hinges on it. 

29
00:01:20,840 --> 00:01:24,640
Your star witness is gone, and 
this hearsay is literally the 

30
00:01:24,640 --> 00:01:27,120
only thread keeping your 
client's case alive. 

31
00:01:27,240 --> 00:01:29,560
And that is our mission for this
deep dive. 

32
00:01:29,680 --> 00:01:33,600
Yes, we are looking for the life
lines, the secret passages in 

33
00:01:33,600 --> 00:01:36,080
the Federal Rules of Evidence 
that save out of court 

34
00:01:36,080 --> 00:01:38,760
statements from the shredder. 
We are going to master rule 

35
00:01:38,760 --> 00:01:43,040
eight O 4 and rule eight O 3 
before we eventually face the 

36
00:01:43,080 --> 00:01:45,480
ultimate constitutional boss 
fight at the end of the 

37
00:01:45,480 --> 00:01:46,960
gauntlet. 
The confrontation clause. 

38
00:01:47,000 --> 00:01:49,840
Exactly. 
And if you are studying for a 

39
00:01:49,840 --> 00:01:53,320
law school final or, you know, 
preparing for the bar exam, this

40
00:01:53,320 --> 00:01:55,440
is where you have to 
fundamentally reorganize your 

41
00:01:55,440 --> 00:01:57,520
brain. 
Yeah, you cannot just memorize a

42
00:01:57,560 --> 00:02:00,240
laundry list of acceptance. 
No, not at all. 

43
00:02:00,560 --> 00:02:03,880
You have to degrade these life 
lines into two entirely 

44
00:02:03,880 --> 00:02:05,800
separate, impenetrable 
universes. 

45
00:02:05,840 --> 00:02:08,120
Unpack that for us. 
Well, you have the tomb 

46
00:02:08,120 --> 00:02:11,160
exceptions, which live under 
rule eight O 4, and you have the

47
00:02:11,160 --> 00:02:14,160
ghost exceptions, which live 
under rule 8 O three. 

48
00:02:15,000 --> 00:02:18,320
Mixing up the philosophy behind 
these two rules is honestly the 

49
00:02:18,320 --> 00:02:21,200
number one reason brilliant 
students hemorrhage points on an

50
00:02:21,200 --> 00:02:22,480
exam. 
I wanted to get into that 

51
00:02:22,480 --> 00:02:26,200
architecture, actually, because 
calling them tomb versus ghost 

52
00:02:26,200 --> 00:02:29,200
implies a totally different 
level of desperation on the part

53
00:02:29,200 --> 00:02:31,320
of the lawyer offering the 
evidence. 

54
00:02:31,320 --> 00:02:33,600
Desperation is exactly the right
word. 

55
00:02:33,640 --> 00:02:37,440
I mean, let's look at the rule 
eight O 4 tomb exceptions. 

56
00:02:37,880 --> 00:02:41,360
The fundamental philosophy here 
is that the law actually hates 

57
00:02:41,360 --> 00:02:44,280
these exceptions. 
The courts do not want this 

58
00:02:44,280 --> 00:02:46,040
evidence. 
They view it as second rate. 

59
00:02:46,320 --> 00:02:48,360
Right. 
Inherently flawed and dangerous.

60
00:02:48,520 --> 00:02:51,960
So to unlock a tomb exception, 
you have to prove to the judge 

61
00:02:51,960 --> 00:02:53,920
that you are entirely out of 
options. 

62
00:02:54,360 --> 00:02:57,960
Person who made the statement. 
The declarant must be legally or

63
00:02:57,960 --> 00:03:01,720
physically sealed away. 
Yes, they cannot be brought into

64
00:03:01,720 --> 00:03:03,560
the courtroom. 
They're strict. 

65
00:03:03,720 --> 00:03:07,200
Legally defined Unavailability 
is the heavy iron key that 

66
00:03:07,200 --> 00:03:10,560
unlocks the tomb. 
Contrast that with Rule 803, the

67
00:03:10,560 --> 00:03:12,600
ghost exceptions. 
If I'm understanding the 

68
00:03:12,600 --> 00:03:16,640
structure, these are statements 
that the law actually kind of 

69
00:03:16,640 --> 00:03:18,640
loves. 
Well, loves might be a strong 

70
00:03:18,640 --> 00:03:21,040
word, but the law deeply trusts 
them. 

71
00:03:21,040 --> 00:03:24,160
OK, the ghost exceptions come 
floating into court regardless 

72
00:03:24,160 --> 00:03:26,120
of whether the declarant is 
sitting right there at the 

73
00:03:26,120 --> 00:03:29,040
plaintiffs table totally 
healthy, or if they have 

74
00:03:29,040 --> 00:03:30,600
vanished off the face of the 
earth. 

75
00:03:30,640 --> 00:03:32,800
Wow. 
Yeah, the law assumes the 

76
00:03:32,800 --> 00:03:36,240
circumstances surrounding these 
specific statements are so 

77
00:03:36,240 --> 00:03:39,480
inherently reliable, so 
profoundly spontaneous, or so 

78
00:03:39,480 --> 00:03:43,000
boringly routine that bringing 
the witness into court to face 

79
00:03:43,000 --> 00:03:46,000
cross examination wouldn't 
actually add any value. 

80
00:03:46,480 --> 00:03:49,240
So availability is totally, 
completely immaterial. 

81
00:03:49,240 --> 00:03:51,320
Precisely. 
So before we can even touch the 

82
00:03:51,320 --> 00:03:55,120
specific rules inside the eight 
O 4 tune, we have a massive 

83
00:03:55,120 --> 00:03:57,680
gateway issue. 
The gateway of unavailability. 

84
00:03:58,000 --> 00:03:59,840
Right. 
We have to prove to the judge 

85
00:03:59,840 --> 00:04:02,400
that our witness is truly 
legally unavailable. 

86
00:04:03,320 --> 00:04:06,800
And if I put myself in the shoes
of a first year law student, my 

87
00:04:06,800 --> 00:04:09,880
instinct is to say, well, the 
witness is dead, That's 

88
00:04:09,880 --> 00:04:11,760
unavailable. 
Sure, death is the ultimate 

89
00:04:11,760 --> 00:04:14,920
unavailability, certainly. 
But the drafters of the Federal 

90
00:04:14,920 --> 00:04:18,160
Rules of Evidence recognize that
a witness can be just as useless

91
00:04:18,160 --> 00:04:21,279
to a trial lawyer while sitting 
in the witness box with a pulse 

92
00:04:21,399 --> 00:04:23,560
as they would be 6 feet under. 
Interesting. 

93
00:04:23,760 --> 00:04:29,160
So Rule 8 O 4A carves out five 
distinct, highly specific 

94
00:04:29,160 --> 00:04:33,680
categories of unavailability, 
and the diagnostic acronym you 

95
00:04:33,680 --> 00:04:36,440
want to burn into your memory 
here is PRISM. 

96
00:04:37,200 --> 00:04:39,400
PRISM. 
Prism, OK. 

97
00:04:39,440 --> 00:04:42,680
If your witness doesn't fit into
one of these 5 letters, the tune

98
00:04:42,680 --> 00:04:45,480
door stays shut and your hearsay
is excluded. 

99
00:04:45,640 --> 00:04:48,000
Let's run the PRISM diagnostic, 
starting with P privilege. 

100
00:04:48,400 --> 00:04:51,040
Imagine you're a prosecutor. 
You finally get the mob boss's 

101
00:04:51,040 --> 00:04:53,000
wife on the stand. 
She knows where the bodies are 

102
00:04:53,000 --> 00:04:54,280
buried. 
She saw everything. 

103
00:04:54,280 --> 00:04:57,440
Star witness, Exactly. 
You ask her the golden question 

104
00:04:57,440 --> 00:04:59,960
and she leans into the 
microphone and invokes the 

105
00:04:59,960 --> 00:05:04,240
spousal privilege. 
Or maybe an accomplice invokes 

106
00:05:04,240 --> 00:05:06,240
the 5th Amendment right against 
self incrimination. 

107
00:05:06,840 --> 00:05:09,520
They are sitting right in front 
of the jury, breathing the 

108
00:05:09,520 --> 00:05:12,720
courtroom air. 
But legally, they have ceased to

109
00:05:12,720 --> 00:05:15,480
exist. 
The court has formally ruled 

110
00:05:15,480 --> 00:05:18,800
that a recognized privilege 
exempts them from testifying 

111
00:05:18,800 --> 00:05:21,520
about the subject matter. 
And the friction here is 

112
00:05:21,520 --> 00:05:23,080
fascinating. 
You know how so? 

113
00:05:23,360 --> 00:05:25,880
Well, the justice system is 
desperate for the truth, but 

114
00:05:25,880 --> 00:05:28,360
society has decided that 
protecting the sanctity of 

115
00:05:28,360 --> 00:05:31,440
marriage, protecting the 
constitutional shield against 

116
00:05:31,440 --> 00:05:34,160
self incrimination is actually 
more important than your 

117
00:05:34,160 --> 00:05:36,400
specific trial. 
So the judge honors the 

118
00:05:36,400 --> 00:05:38,360
privilege. 
Yes, and the moment that 

119
00:05:38,360 --> 00:05:42,280
happens, the witness is deemed 
unavailable under the P in 

120
00:05:42,280 --> 00:05:44,000
Prism. 
Which brings us to the R in 

121
00:05:44,000 --> 00:05:47,440
prism Refusal. 
Now I want to push back on the 

122
00:05:47,440 --> 00:05:50,800
mechanics of this a little bit. 
If I'm a witness and I just 

123
00:05:50,800 --> 00:05:52,920
don't want to get involved, like
maybe I don't like the 

124
00:05:52,920 --> 00:05:55,600
prosecutor, maybe I'm annoyed I 
had to take time off work. 

125
00:05:55,760 --> 00:05:59,360
Can I just walk in, cross my 
arm, say I refuse to answer, and

126
00:05:59,360 --> 00:06:02,240
suddenly the lawyer gets to use 
all my out of court hearsay 

127
00:06:02,240 --> 00:06:04,320
statements? 
No, absolutely not. 

128
00:06:04,600 --> 00:06:06,800
Does the law reward sheer 
stubbornness? 

129
00:06:07,240 --> 00:06:09,800
The law absolutely punishes 
stubbornness. 

130
00:06:09,800 --> 00:06:12,720
You cannot just express a casual
preference not to talk. 

131
00:06:13,040 --> 00:06:16,760
For a witness to be deemed 
unavailable due to refusal, it 

132
00:06:16,760 --> 00:06:19,840
has to be a high stakes standoff
with the judicial system itself.

133
00:06:19,840 --> 00:06:22,600
Walk me through that. 
OK, The witness takes the stand.

134
00:06:22,840 --> 00:06:26,280
The lawyer asks the question. 
The witness refuses. 

135
00:06:27,000 --> 00:06:30,480
The judge then leans over the 
bench and gives a direct, formal

136
00:06:30,480 --> 00:06:32,800
court order. 
You must answer the question. 

137
00:06:33,040 --> 00:06:35,160
And if they still say no? 
Then they are staring down the 

138
00:06:35,160 --> 00:06:39,280
barrel of contempt of court. 
Yeah, they are risking fines or 

139
00:06:39,280 --> 00:06:41,840
more likely sitting in a jail 
cell until they decide to open 

140
00:06:41,840 --> 00:06:44,320
their mouth. 
The refusal has to persist 

141
00:06:44,320 --> 00:06:47,400
despite the court order. 
So the judge has to essentially 

142
00:06:47,400 --> 00:06:50,320
throw their hands up and say I 
have threatened them with jail 

143
00:06:50,600 --> 00:06:52,880
and they still won't talk. 
Exactly. 

144
00:06:52,880 --> 00:06:55,760
I cannot physically force the 
words out of their throat. 

145
00:06:56,040 --> 00:07:01,000
Only when that absolute defiant 
threshold is crossed does the R 

146
00:07:01,000 --> 00:07:03,920
in Prism trigger. 
That paints a much clearer 

147
00:07:03,920 --> 00:07:07,840
picture of the the stakes. 
So asserting a right gets you 

148
00:07:07,840 --> 00:07:11,320
off the stand, and defiant 
stubbornness in the face of jail

149
00:07:11,520 --> 00:07:14,600
gets you off the stand. 
Let's move to the I in prism. 

150
00:07:15,280 --> 00:07:17,160
Incapacity. 
This is the one we touched on 

151
00:07:17,160 --> 00:07:19,760
earlier. 
Death, obviously, but the rule 

152
00:07:19,760 --> 00:07:23,480
also includes a then existing 
severe physical or mental 

153
00:07:23,480 --> 00:07:27,160
illness or infirmity, and this 
is where the medical reality 

154
00:07:27,160 --> 00:07:29,160
crashes into the legal schedule.
Exactly. 

155
00:07:29,160 --> 00:07:32,000
Let's look at the Fifth Circuit 
case, United States versus 

156
00:07:32,000 --> 00:07:33,880
Amaya. 
This perfectly illustrates the 

157
00:07:33,880 --> 00:07:35,760
tension. 
OK, you have a witness who was 

158
00:07:35,760 --> 00:07:38,800
in a severe automobile accident 
resulting in a loss of memory. 

159
00:07:39,040 --> 00:07:41,280
The proponent of the hearsay 
wants to use their prior 

160
00:07:41,280 --> 00:07:43,360
statements claiming they are 
incapacitated. 

161
00:07:43,360 --> 00:07:45,600
Makes sense. 
But the opposing counsel cries 

162
00:07:45,600 --> 00:07:48,800
foul, arguing wait a minute, you
haven't brought in an expert 

163
00:07:48,800 --> 00:07:51,360
neurologist to prove this memory
loss is permanent. 

164
00:07:51,360 --> 00:07:52,760
Maybe they just have a 
concussion. 

165
00:07:53,280 --> 00:07:54,720
Postpone the trial until they 
heal. 

166
00:07:54,760 --> 00:07:57,080
Which puts the judge in a 
terrible position. 

167
00:07:57,280 --> 00:08:01,320
Do you freeze the entire justice
system for six months waiting to

168
00:08:01,320 --> 00:08:03,520
see if a witness regains their 
memory right? 

169
00:08:03,720 --> 00:08:06,720
How does a judge define the 
duration of an illness for the 

170
00:08:06,720 --> 00:08:10,400
sake of unavailability? 
Well, the Amaya court provided a

171
00:08:10,400 --> 00:08:14,560
brilliant pragmatic standard. 
They clarified that establishing

172
00:08:14,600 --> 00:08:18,040
absolute medical permanence of 
an illness isn't required. 

173
00:08:18,240 --> 00:08:21,320
We aren't asking for a guarantee
that the witness will be sick 

174
00:08:21,320 --> 00:08:23,200
forever. 
OK, so what's the standard? 

175
00:08:23,440 --> 00:08:27,000
The legal standard is whether 
the duration of the illness is 

176
00:08:27,000 --> 00:08:30,480
in all probability long enough 
that the trial simply cannot be 

177
00:08:30,480 --> 00:08:32,960
postponed. 
Because criminal defendants have

178
00:08:32,960 --> 00:08:36,280
a right to a speedy trial, you 
can't just leave someone sitting

179
00:08:36,280 --> 00:08:39,440
in pretrial detention for three 
years because a witness is in a 

180
00:08:39,440 --> 00:08:40,600
coma. 
Precisely. 

181
00:08:40,760 --> 00:08:43,280
The judge balances the severity 
of the illness against the 

182
00:08:43,280 --> 00:08:45,800
importance of the testimony and 
the logistics of the trial 

183
00:08:45,800 --> 00:08:48,240
calendar. 
It is a practical standard, not 

184
00:08:48,240 --> 00:08:51,320
a purely medical one. 
Now, some legal scholars get 

185
00:08:51,320 --> 00:08:54,280
incredibly pedantic here, 
pointing out that analyzing a 

186
00:08:54,280 --> 00:08:58,400
car crash memory loss under the 
illness prong of incapacity is 

187
00:08:58,400 --> 00:09:02,040
messy because the drafters 
actually created a specific 

188
00:09:02,200 --> 00:09:04,920
separate letter just for memory.
Oh, for sure. 

189
00:09:05,160 --> 00:09:08,840
But before we get to that, let's
tackle the in Prism subpoena 

190
00:09:08,840 --> 00:09:11,680
failure. 
This is the ultimate exam trap, 

191
00:09:11,960 --> 00:09:15,720
and honestly, in real practice, 
it's where sloppy lawyers lose 

192
00:09:15,720 --> 00:09:17,120
their cases. 
How so? 

193
00:09:17,440 --> 00:09:20,520
Well, subpoena failure happens 
when the witness is absent from 

194
00:09:20,520 --> 00:09:23,120
the hearing and the proponent of
the statement has been 

195
00:09:23,120 --> 00:09:25,520
completely unable to procure 
their attendance. 

196
00:09:25,520 --> 00:09:29,000
So let's say my witness gets 
wind of the trial, panics and 

197
00:09:29,000 --> 00:09:31,240
flees to a country with no 
extradition treaty. 

198
00:09:31,520 --> 00:09:34,520
I walk into court and say, your 
Honor, my witness is in a 

199
00:09:34,520 --> 00:09:37,000
Chateau in the South of France. 
They are unavailable. 

200
00:09:37,480 --> 00:09:40,040
I win, right? 
The tomb opens. 

201
00:09:40,040 --> 00:09:42,480
You lose and the door stays 
bolted shut. 

202
00:09:42,800 --> 00:09:43,680
Wait, really? 
Why? 

203
00:09:43,960 --> 00:09:45,680
Because you just said they are 
in France. 

204
00:09:45,680 --> 00:09:47,760
You didn't tell the judge what 
you did about it. 

205
00:09:48,040 --> 00:09:51,520
The rule demands that you show 
you used reasonable means to get

206
00:09:51,520 --> 00:09:52,400
them. 
Oh, I see. 

207
00:09:52,560 --> 00:09:54,480
Did you contact the State 
Department? 

208
00:09:54,640 --> 00:09:56,720
Did you attempt to serve them 
internationally? 

209
00:09:56,920 --> 00:09:59,320
Did you offer to pay their 
travel expenses back to the 

210
00:09:59,320 --> 00:10:01,920
jurisdiction? 
You cannot just shrug and say 

211
00:10:01,920 --> 00:10:04,680
they are gone. 
You have to prove you exhausted 

212
00:10:04,680 --> 00:10:07,360
the judicial machinery trying to
drag them back. 

213
00:10:07,680 --> 00:10:11,280
And the trap goes even deeper 
than just geographic distance, 

214
00:10:11,280 --> 00:10:13,560
doesn't it? 
Especially in civil cases. 

215
00:10:13,640 --> 00:10:18,440
It's a massive hidden tripwire. 
Let's say you are trying to 

216
00:10:18,440 --> 00:10:22,480
introduce a dying declaration, 
or a statement against interest,

217
00:10:22,480 --> 00:10:26,960
or a family history statement. 
If you are in a civil lawsuit, 

218
00:10:27,160 --> 00:10:29,680
it is not enough to just show 
you couldn't get them to 

219
00:10:29,680 --> 00:10:31,840
physically walk into the 
courtroom for the trial. 

220
00:10:31,960 --> 00:10:35,040
You actually have to prove you 
attempted to depose them first. 

221
00:10:35,160 --> 00:10:38,400
Why the distinction? 
Why do civil cases require this 

222
00:10:38,400 --> 00:10:41,200
extra hoop of a deposition? 
Because civil cases are 

223
00:10:41,200 --> 00:10:44,800
fundamentally about money, and 
they drag on for years, the law 

224
00:10:44,800 --> 00:10:47,560
assumes you had plenty of time 
during the discovery phase. 

225
00:10:47,920 --> 00:10:51,560
Look at the North Dakota Supreme
Court case State versus POITRA. 

226
00:10:52,000 --> 00:10:55,600
It's construing a state rule 
that is identical to the federal

227
00:10:55,600 --> 00:10:56,640
rule. 
What happened there? 

228
00:10:56,720 --> 00:11:00,360
In Poitra, a party wanted to 
introduce testimony of someone 

229
00:11:00,360 --> 00:11:04,080
who overheard A confession. 
The declarant couldn't attend 

230
00:11:04,080 --> 00:11:06,440
the trial. 
But here is the kicker. 

231
00:11:06,720 --> 00:11:10,000
The declarant had been deposed 
by agreement of counsel prior to

232
00:11:10,000 --> 00:11:11,520
the trial. 
So they already had their 

233
00:11:11,520 --> 00:11:13,120
testimony on the record. 
Right. 

234
00:11:13,120 --> 00:11:16,040
And because they had that 
deposition, the court said they 

235
00:11:16,040 --> 00:11:19,440
are not unavailable for the 
purposes of unlocking hearsay 

236
00:11:19,440 --> 00:11:22,400
exceptions. 
But a logic is simple. 

237
00:11:22,400 --> 00:11:25,320
If you have a deposition, you 
don't need the hearsay exception

238
00:11:25,320 --> 00:11:27,800
because you already have sworn 
testimony that was subject to 

239
00:11:27,800 --> 00:11:30,720
cross examination. 
And if you could have reasonably

240
00:11:30,720 --> 00:11:34,200
deposed them but just got lazy, 
the judge will punish you by 

241
00:11:34,200 --> 00:11:37,320
keeping the hearsay out. 
That is a brutal mechanism for 

242
00:11:37,320 --> 00:11:39,280
enforcing diligence. 
Very brutal. 

243
00:11:39,280 --> 00:11:42,640
OK, let's hit the final letter 
of Prism, the M memory. 

244
00:11:42,840 --> 00:11:44,760
Yes. 
The witness takes the stand and 

245
00:11:44,760 --> 00:11:48,040
testifies to a genuine lack of 
memory regarding the subject 

246
00:11:48,040 --> 00:11:49,960
matter. 
But I have to put on my 

247
00:11:49,960 --> 00:11:52,960
skeptical student hat again. 
I know exactly where you are 

248
00:11:52,960 --> 00:11:55,360
going. 
The feigned amnesia. 

249
00:11:55,600 --> 00:11:56,600
Exactly. 
Yeah. 

250
00:11:56,840 --> 00:11:59,800
Imagine a witness who is 
terrified of the defendant. 

251
00:12:00,480 --> 00:12:04,440
The defendant is a known cartel 
enforcer staring daggers at the 

252
00:12:04,440 --> 00:12:06,640
witness from the defense table. 
Intimidating. 

253
00:12:07,080 --> 00:12:08,480
Right. 
The witness panics. 

254
00:12:08,840 --> 00:12:11,680
They know if they refuse to 
testify, the judge will hold 

255
00:12:11,680 --> 00:12:13,720
them in contempt. 
So they take the stand and 

256
00:12:13,720 --> 00:12:17,080
certainly say, you know what? 
I don't remember a single thing 

257
00:12:17,080 --> 00:12:18,600
about that night. 
Total blank. 

258
00:12:19,240 --> 00:12:22,920
Does that legally establish a 
lack of memory and unlock the 

259
00:12:22,920 --> 00:12:25,120
hearsay? 
This brings us to the NSANA 

260
00:12:25,120 --> 00:12:27,440
standard. 
The answer is no, it is not 

261
00:12:27,440 --> 00:12:29,680
automatic. 
The courts are deeply cynical 

262
00:12:29,680 --> 00:12:31,840
about sudden bouts of selective 
amnesia. 

263
00:12:31,840 --> 00:12:34,800
So the judge just decides. 
Basically, the judge is not a 

264
00:12:34,800 --> 00:12:36,960
robot who just hears the words I
forget and pushes the 

265
00:12:36,960 --> 00:12:39,360
unavailability button. 
The judge has to act as a 

266
00:12:39,360 --> 00:12:42,360
gatekeeper of credibility. 
They will evaluate the demeanor 

267
00:12:42,360 --> 00:12:44,840
of the witness, the surrounding 
circumstances, and the nature of

268
00:12:44,840 --> 00:12:47,640
the questions being asked. 
OK, if the judge determines the 

269
00:12:47,640 --> 00:12:51,160
claimed lack of memory is a that
they are faking it out of fear 

270
00:12:51,160 --> 00:12:54,120
or loyalty, then they are not 
unavailable under the memory 

271
00:12:54,120 --> 00:12:56,040
Bron. 
Which creates an incredible 

272
00:12:56,040 --> 00:12:58,640
paradox. 
If the judge says I don't 

273
00:12:58,640 --> 00:13:00,600
believe you, you're faking your 
memory loss. 

274
00:13:00,760 --> 00:13:04,480
Then the witness is technically 
available, but they still aren't

275
00:13:04,480 --> 00:13:06,560
talking. 
So the lawyer is stuck with a 

276
00:13:06,560 --> 00:13:10,840
mute witness on the stand and no
hearsay exceptions to save them.

277
00:13:11,320 --> 00:13:13,960
It's a nightmare for the 
proponent of the evidence. 

278
00:13:14,240 --> 00:13:17,600
And Speaking of nightmares, 
there is an ultimate overriding 

279
00:13:17,600 --> 00:13:20,440
caveat to everything we just 
discussed with Prism. 

280
00:13:20,560 --> 00:13:22,680
Oh boy. 
A master lock that prevents the 

281
00:13:22,680 --> 00:13:25,960
tomb from ever opening. 
Forfeiture by wrongdoing. 

282
00:13:26,280 --> 00:13:28,360
The ultimate unclean hands 
doctrine. 

283
00:13:28,400 --> 00:13:31,080
Precisely if the judge finds 
that the proponent of the 

284
00:13:31,080 --> 00:13:34,400
statement wrongfully procured 
the witness's absence, the PRISM

285
00:13:34,400 --> 00:13:37,600
diagnostic is irrelevant. 
You cannot murder your star 

286
00:13:37,600 --> 00:13:40,520
witness to keep them off cross 
examination or bribe them to 

287
00:13:40,520 --> 00:13:41,920
flee to Mexico. 
No. 

288
00:13:41,920 --> 00:13:44,720
And then waltz into court in a 
tailored suit and say, your 

289
00:13:44,720 --> 00:13:47,280
Honor, tragically the witness is
unavailable. 

290
00:13:47,520 --> 00:13:49,880
I'd like to use their previous 
hearsay statement. 

291
00:13:49,880 --> 00:13:52,640
You cannot benefit from your own
obstruction of justice. 

292
00:13:52,880 --> 00:13:56,600
The door slams shut forever. 
OK, so let's assume we have 

293
00:13:56,600 --> 00:13:58,440
successfully navigated the 
gateway. 

294
00:13:59,160 --> 00:14:02,160
We have proven genuine 
unavailability without dirtying 

295
00:14:02,160 --> 00:14:04,760
our hands. 
The heavy stone door to the tomb

296
00:14:04,760 --> 00:14:07,080
exceptions rolls open. 
We're in. 

297
00:14:07,560 --> 00:14:10,760
Let's explore the specific life 
lines hiding behind that door, 

298
00:14:10,880 --> 00:14:14,320
starting with arguably the most 
famous rule in all of evidence 

299
00:14:14,320 --> 00:14:19,880
law, straight out of a medieval 
courtroom, Rule 8 O 4B2, the 

300
00:14:19,880 --> 00:14:22,600
Dying Declaration. 
The historical roots of this 

301
00:14:22,600 --> 00:14:25,040
exception are deeply embedded in
common law. 

302
00:14:25,600 --> 00:14:28,840
Hundreds of years ago, the legal
scholars working in a highly 

303
00:14:28,840 --> 00:14:31,680
religious society developed a 
psychological theory. 

304
00:14:32,200 --> 00:14:34,640
No one wants to meet their Maker
with a lie on their lips. 

305
00:14:34,640 --> 00:14:37,400
The underlying assumption is 
that the terrifying immediate 

306
00:14:37,400 --> 00:14:41,000
prospect of death strips away 
the human desire to fabricate, 

307
00:14:41,000 --> 00:14:43,480
scheme or seek Betty revenge. 
Right. 

308
00:14:43,600 --> 00:14:46,640
The psychological pressure of 
impending doom forces absolute 

309
00:14:46,640 --> 00:14:48,680
truthfulness. 
So the law is essentially 

310
00:14:48,680 --> 00:14:51,840
treating the fear of Hellfire as
a substitute for the oath and 

311
00:14:51,840 --> 00:14:53,960
cross examination. 
That is exactly the 

312
00:14:53,960 --> 00:14:56,840
jurisprudential trade off. 
But practically, you know, in a 

313
00:14:56,840 --> 00:14:59,240
modern courtroom, what are the 
strict requirements because 

314
00:14:59,240 --> 00:15:00,760
people say crazy things when 
they are hurt. 

315
00:15:00,920 --> 00:15:03,760
True, there are two two ironclad
requirements. 

316
00:15:03,960 --> 00:15:07,240
First, the declarant must 
subjectively believe that their 

317
00:15:07,240 --> 00:15:09,840
death is imminent and absolutely
inevitable. 

318
00:15:09,840 --> 00:15:13,480
Inevitable. 2nd, the statement 
they make must specifically 

319
00:15:13,480 --> 00:15:16,240
concern the cause or the 
circumstances of their impending

320
00:15:16,240 --> 00:15:18,720
death. 
You can't use your dying breath 

321
00:15:18,720 --> 00:15:21,720
to confess to an unrelated bank 
robbery from 10 years ago. 

322
00:15:22,080 --> 00:15:25,200
It has to be about why you are 
dying right now. 

323
00:15:25,720 --> 00:15:29,200
I want to zoom in on that first 
requirement, the belief in 

324
00:15:29,200 --> 00:15:32,960
imminent death, because the 
devil is entirely in the details

325
00:15:32,960 --> 00:15:34,720
of the victim's state of mind. 
Always. 

326
00:15:34,960 --> 00:15:37,560
Let's talk about the landmark 
Supreme Court case, Shepherd 

327
00:15:37,560 --> 00:15:40,880
versus United States. 
This case is a master class in 

328
00:15:40,880 --> 00:15:43,800
how judges dissect the 
psychology of a dying person. 

329
00:15:44,160 --> 00:15:46,400
Shepherd is brilliant. 
Picture the scene in the early 

330
00:15:46,400 --> 00:15:49,160
1930's. 
The victim, Missus Shepherd, is 

331
00:15:49,160 --> 00:15:51,880
suffering terribly from 
bichloride of mercury poisoning.

332
00:15:52,120 --> 00:15:54,280
She's fading fast. 
And her husband, Doctor 

333
00:15:54,280 --> 00:15:56,000
Shepherd, is the prime suspect, 
Yes. 

334
00:15:56,400 --> 00:15:59,200
She turns to her nurse and says 
Doctor Shepard has poisoned me. 

335
00:15:59,200 --> 00:16:02,000
If the prosecution is 
practically salivating, they try

336
00:16:02,000 --> 00:16:05,080
to get this incredibly damning 
statement in as a dying 

337
00:16:05,080 --> 00:16:07,600
declaration. 
On the surface, I mean, it looks

338
00:16:07,600 --> 00:16:10,120
perfect. 
She's dying from poison, and her

339
00:16:10,120 --> 00:16:13,280
statement is entirely about the 
cause and circumstances of her 

340
00:16:13,280 --> 00:16:15,360
death, identifying her killer, 
right? 

341
00:16:15,640 --> 00:16:17,000
But the Supreme Court threw it 
out. 

342
00:16:17,000 --> 00:16:20,400
Why? 
Because the law demands more 

343
00:16:20,400 --> 00:16:24,400
than just a mortal wound and a 
fearful victim, the Supreme 

344
00:16:24,400 --> 00:16:28,120
Court rigorously analyzed Missus
Shepherd's exact phrasing and 

345
00:16:28,120 --> 00:16:30,240
behavior. 
Yes, she was dying. 

346
00:16:30,720 --> 00:16:33,480
But she had also asked the nurse
for help to get better. 

347
00:16:33,760 --> 00:16:36,880
She had asked for a doctor. 
She still harbored A faint, 

348
00:16:37,040 --> 00:16:41,080
desperate hope of recovery. 
Justice Cardozo, writing for the

349
00:16:41,080 --> 00:16:45,320
court, famously articulated that
mere fear or suspicion of death 

350
00:16:45,360 --> 00:16:47,320
is not enough. 
There must be a settled 

351
00:16:47,320 --> 00:16:49,480
expectation of death. 
A settled expectation. 

352
00:16:49,680 --> 00:16:52,040
You have to believe the Grim 
Reaper is literally standing in 

353
00:16:52,040 --> 00:16:54,600
the room with his hand on your 
shoulder and there's absolutely 

354
00:16:54,600 --> 00:16:56,000
no escape. 
Exactly. 

355
00:16:56,000 --> 00:16:58,800
If there is even a sliver of 
hope that the doctors might save

356
00:16:58,800 --> 00:17:02,040
you, the psychological guarantee
of truthfulness evaporates. 

357
00:17:02,240 --> 00:17:05,200
The law assumes that as long as 
you think you might survive, you

358
00:17:05,200 --> 00:17:08,200
might still have a motive to 
frame your husband for poisoning

359
00:17:08,200 --> 00:17:10,960
you. 
That is so dark but logically 

360
00:17:10,960 --> 00:17:13,000
sound. 
You have to compare Shepherd 

361
00:17:13,240 --> 00:17:16,960
with cases like People versus 
Cavazos, where the victims 

362
00:17:16,960 --> 00:17:19,880
specifically requested last 
rites from a priest or 

363
00:17:19,880 --> 00:17:22,560
explicitly told the paramedics. 
I know I'm not going to make it.

364
00:17:22,560 --> 00:17:23,720
Clear evidence. 
Right. 

365
00:17:23,720 --> 00:17:26,839
Without clear, demonstrable 
evidence of that specific 

366
00:17:26,839 --> 00:17:29,520
fatalistic state of mind, the 
exception fails. 

367
00:17:29,520 --> 00:17:32,800
OK, so the internal state of 
mind is a massive hurdle, but 

368
00:17:32,800 --> 00:17:35,600
there was a structural exam trap
built into this rule that 

369
00:17:35,600 --> 00:17:37,960
catches almost everyone. 
Because it is so 

370
00:17:37,960 --> 00:17:40,760
counterintuitive, I'm going to 
put you in the hot seat with a 

371
00:17:40,760 --> 00:17:43,600
classic bar exam hypothetical. 
Bring it on, I'm ready. 

372
00:17:43,760 --> 00:17:47,720
Imagine you are the prosecutor. 
A guy is shot multiple times in 

373
00:17:47,720 --> 00:17:50,480
a dark alley. 
A police officer runs up to him.

374
00:17:50,960 --> 00:17:53,760
The victim is bleeding out. 
Completely fatalistic. 

375
00:17:54,000 --> 00:17:56,080
He gasps. 
Dave shot me. 

376
00:17:56,440 --> 00:17:58,360
Tell my wife I love her. 
I'm dying. 

377
00:17:58,880 --> 00:18:03,320
He then slips into a deep coma. 
Now, miraculously, modern trauma

378
00:18:03,320 --> 00:18:04,840
surgeons managed to stabilize 
him. 

379
00:18:05,280 --> 00:18:08,040
He survives the gunshot. 
The prosecutor charges Dave with

380
00:18:08,040 --> 00:18:11,280
attempted murder. 
At the time of the trial, the 

381
00:18:11,280 --> 00:18:15,400
victim is still in a persistent 
vegetative state, a coma, so we 

382
00:18:15,400 --> 00:18:19,200
run our PRISM diagnostic. 
He is legally incapacitated, 

383
00:18:19,320 --> 00:18:22,760
completely unavailable. 
Can the prosecutor use that 

384
00:18:22,760 --> 00:18:26,360
gasping alleyway statement as a 
dying declaration against Dave? 

385
00:18:26,360 --> 00:18:29,920
And the gut instinct for every 
student is to scream yes, I mean

386
00:18:30,080 --> 00:18:32,560
the victim thought he was dying,
The statement was about the 

387
00:18:32,560 --> 00:18:35,080
shooting and he is legally 
unavailable. 

388
00:18:35,080 --> 00:18:37,400
It seems perfect. 
But the legal answer is 

389
00:18:37,400 --> 00:18:41,240
absolutely, unequivocally no. 
And this is how test makers 

390
00:18:41,240 --> 00:18:44,080
separate the meticulously 
prepared students from the rest 

391
00:18:44,080 --> 00:18:45,800
of the pack. 
Breakdown. 

392
00:18:45,800 --> 00:18:49,240
Why the system rejects it? 
It comes down to the bizarre 

393
00:18:49,240 --> 00:18:52,360
historical restrictions placed 
on what types of trials are 

394
00:18:52,360 --> 00:18:56,640
allowed to use this exception. 
Under the federal rules, a dying

395
00:18:56,640 --> 00:19:00,680
declaration is only admissible 
in two types of proceedings, any

396
00:19:00,680 --> 00:19:03,120
civil case or a criminal 
homicide case. 

397
00:19:03,440 --> 00:19:06,200
An attempted murder is not a 
homicide because nobody actually

398
00:19:06,200 --> 00:19:07,360
died. 
Precisely. 

399
00:19:07,560 --> 00:19:10,120
In a Criminal Court, someone 
else actually has to be on a 

400
00:19:10,120 --> 00:19:12,120
slab in the morgue for the rule 
to apply. 

401
00:19:12,120 --> 00:19:15,040
It is an archaic relic. 
Under the old common law, you 

402
00:19:15,040 --> 00:19:18,000
could only use dying 
declarations in homicide cases. 

403
00:19:18,680 --> 00:19:22,040
The drafters of the modern 
federal rules decided to expand 

404
00:19:22,040 --> 00:19:26,160
it slightly by allowing it in 
civil cases, figuring money is 

405
00:19:26,160 --> 00:19:29,120
less important than liberty so 
we can be a bit looser with the 

406
00:19:29,120 --> 00:19:31,360
evidence. 
But they were too terrified to 

407
00:19:31,360 --> 00:19:34,000
expand it to all criminal cases,
so the strict homicide 

408
00:19:34,000 --> 00:19:37,680
limitation remains in place. 
It's wildly counterintuitive. 

409
00:19:37,920 --> 00:19:41,240
The rule is called a dying 
declaration, but the declarant 

410
00:19:41,240 --> 00:19:43,360
themselves doesn't actually have
to die to use it. 

411
00:19:43,360 --> 00:19:46,680
They just have to be in a coma 
or otherwise unavailable. 

412
00:19:47,400 --> 00:19:51,200
Yet for a criminal prosecutor to
use it, the charge must be 

413
00:19:51,200 --> 00:19:53,360
homicide. 
The legal acrobatics are 

414
00:19:53,360 --> 00:19:54,640
staggering. 
They really are. 

415
00:19:54,880 --> 00:19:56,720
Let's move to another major tomb
exception. 

416
00:19:56,720 --> 00:20:00,000
Rule 8. 
O 4B one former testimony. 

417
00:20:00,040 --> 00:20:01,840
This is a highly mechanical 
rule. 

418
00:20:02,160 --> 00:20:05,080
It requires that the currently 
unavailable witness previously 

419
00:20:05,080 --> 00:20:08,640
gave sworn testimony at a trial,
a formal hearing, or a lawful 

420
00:20:08,640 --> 00:20:11,160
deposition. 
But the critical element is that

421
00:20:11,160 --> 00:20:14,720
this prior transcript is now 
being offered against a party 

422
00:20:14,720 --> 00:20:18,760
who had an opportunity and a 
similar motive to develop that 

423
00:20:18,760 --> 00:20:21,640
testimony through cross 
examination back when it was 

424
00:20:21,640 --> 00:20:24,680
originally given. 
So if we are in a retrial 

425
00:20:24,680 --> 00:20:28,240
because of a hung jury and a 
witness dies before the second 

426
00:20:28,240 --> 00:20:31,480
trial, the prosecutor can just 
read the transcript of their 

427
00:20:31,480 --> 00:20:33,640
testimony from the first trial 
to the new jury. 

428
00:20:33,640 --> 00:20:35,840
Yes, because the defense 
attorney had the exact same 

429
00:20:35,840 --> 00:20:38,480
motive to tear that witness 
apart in the first trial as they

430
00:20:38,480 --> 00:20:40,160
would in the second. 
The cross examination was 

431
00:20:40,160 --> 00:20:42,800
already performed. 
But let me flag the trap I see 

432
00:20:42,800 --> 00:20:45,800
constantly on message boards in 
law school study groups. 

433
00:20:46,720 --> 00:20:50,480
A student reads a fact pattern 
where a witness gave a grueling,

434
00:20:50,480 --> 00:20:53,640
heavily cross examined 
deposition in the exact same 

435
00:20:53,640 --> 00:20:57,040
civil case six months ago. 
OK, the student sees that 

436
00:20:57,040 --> 00:21:00,240
perfectly preserved sworn 
transcript and immediately jumps

437
00:21:00,240 --> 00:21:02,520
to the conclusion that the 
deposition is automatically 

438
00:21:02,520 --> 00:21:05,200
admissible at trial. 
And they failed a question 

439
00:21:05,200 --> 00:21:08,680
because they forgot the gateway.
You must prove the witness is 

440
00:21:08,680 --> 00:21:12,400
unavailable first. 
The law fundamentally prefers 

441
00:21:12,400 --> 00:21:15,160
live testimony. 
We want the jury to see the 

442
00:21:15,160 --> 00:21:18,000
witness sweat, to see their eye 
contact, to gauge their 

443
00:21:18,000 --> 00:21:19,560
demeanor. 
Right, that human element. 

444
00:21:19,720 --> 00:21:23,560
If that witness is alive, 
healthy, and living in the next 

445
00:21:23,560 --> 00:21:26,640
town over, and the lawyer just 
didn't feel like paying the 

446
00:21:26,640 --> 00:21:30,360
subpoena fee to bring them into 
court, that pristine deposition 

447
00:21:30,360 --> 00:21:33,120
transcript is completely 
inadmissible hearsay. 

448
00:21:33,240 --> 00:21:35,840
You cannot just choose the 
transcript because it's more 

449
00:21:35,840 --> 00:21:38,800
convenient than managing a live 
human being. 

450
00:21:38,960 --> 00:21:41,600
Convenience is not an exception 
to the hearsay rule. 

451
00:21:41,680 --> 00:21:45,400
Definitely not. 
OK, let's look at Rule 8 O 4B3, 

452
00:21:45,400 --> 00:21:48,920
the statement against interest. 
The psychological theory here is

453
00:21:48,920 --> 00:21:51,400
the exact opposite of the dying 
declaration. 

454
00:21:51,440 --> 00:21:54,120
Instead of relying on the fear 
of death, we rely on the 

455
00:21:54,120 --> 00:21:56,800
fundamental human instinct for 
self preservation. 

456
00:21:56,800 --> 00:22:00,800
OK, the rule applies when a 
statement at the exact moment it

457
00:22:00,800 --> 00:22:03,920
was made was so incredibly 
contrary to the declarant 

458
00:22:03,920 --> 00:22:07,000
self-interest that a reasonable 
person would never have said it 

459
00:22:07,000 --> 00:22:08,920
unless they firmly believed it 
was true. 

460
00:22:09,080 --> 00:22:10,600
What kind of interest are we 
talking about? 

461
00:22:10,600 --> 00:22:12,400
Like any interest. 
No. 

462
00:22:12,600 --> 00:22:15,800
The law recognizes 3 specific 
types of interest. 

463
00:22:16,320 --> 00:22:20,280
Pecuniary, meaning it costs them
money or invalidates a debt. 

464
00:22:20,880 --> 00:22:23,520
Proprietary, meaning it 
diminishes their property 

465
00:22:23,520 --> 00:22:25,640
rights, like admitting the 
boundary of your farm is 

466
00:22:25,640 --> 00:22:27,720
actually 10 feet smaller than 
you claimed. 

467
00:22:27,840 --> 00:22:30,680
And then third penal, meaning it
subjects them to criminal 

468
00:22:30,680 --> 00:22:32,560
liability. 
Let me give you a hypo. 

469
00:22:33,120 --> 00:22:37,440
Imagine I'm sitting in a bar and
I told my friend, yeah, I've 

470
00:22:37,440 --> 00:22:39,560
been cooking the books at my 
company for five years. 

471
00:22:39,560 --> 00:22:41,440
I've stolen millions in tax 
revenue. 

472
00:22:41,560 --> 00:22:44,120
OK, spicy. 
A month later, I flee the 

473
00:22:44,120 --> 00:22:46,920
country to avoid arrest. 
I'm legally unavailable. 

474
00:22:47,000 --> 00:22:50,160
The IRS is auditing my company. 
Can they use my bar room 

475
00:22:50,160 --> 00:22:51,400
confession? 
Absolutely. 

476
00:22:51,680 --> 00:22:54,800
Admitting to massive tax fraud 
is a profoundly powerful 

477
00:22:54,800 --> 00:22:57,400
statement against your penal and
pecuniary interest. 

478
00:22:57,840 --> 00:23:01,120
No rational human being brags 
about committing a major federal

479
00:23:01,120 --> 00:23:03,040
felony unless it actually 
happened. 

480
00:23:03,480 --> 00:23:06,240
The law trusts the sheer 
self-destructive nature of the 

481
00:23:06,240 --> 00:23:08,520
words. 
But there is a massive red flag 

482
00:23:08,520 --> 00:23:11,480
when we deal with penal interest
in criminal cases, specifically 

483
00:23:11,480 --> 00:23:14,000
when it involves pointing the 
finger away from the defendant. 

484
00:23:14,120 --> 00:23:17,200
Oh yes, the some guy named Jimmy
did it defense. 

485
00:23:17,200 --> 00:23:19,720
Exactly. 
If a statement exposes the 

486
00:23:19,800 --> 00:23:23,480
unavailable declarant to 
criminal liability and it is 

487
00:23:23,480 --> 00:23:27,200
offered in a criminal trial to 
exculpate the accused, meaning 

488
00:23:27,200 --> 00:23:29,680
the defense is trying to use it 
to get their client off the 

489
00:23:29,680 --> 00:23:32,840
hook, the rule throws up an 
enormous roadblock. 

490
00:23:32,880 --> 00:23:35,440
Well, it's the roadblock. 
The defense must provide 

491
00:23:35,440 --> 00:23:38,600
corroborating circumstances that
clearly indicate the 

492
00:23:38,600 --> 00:23:40,440
trustworthiness of the 
statement. 

493
00:23:40,560 --> 00:23:43,480
Why the extra hurdle? 
Because the justice system is 

494
00:23:43,480 --> 00:23:47,880
deeply, inherently suspicious of
a conveniently absent person 

495
00:23:47,880 --> 00:23:50,520
taking the fall for the guy 
sitting at the defense table. 

496
00:23:50,560 --> 00:23:53,520
Criminals have friends. 
It is incredibly easy for a 

497
00:23:53,520 --> 00:23:56,680
defendant to find a buddy who is
already fleeing the jurisdiction

498
00:23:56,680 --> 00:23:59,080
to say, hey, write a letter 
saying you robbed the bank, not 

499
00:23:59,080 --> 00:24:01,760
me, you're leaving anyway. 
That makes total strategic 

500
00:24:01,760 --> 00:24:04,000
sense. 
Without independent, objective 

501
00:24:04,000 --> 00:24:07,520
corroboration tying that absent 
friend to the crime scene, the 

502
00:24:07,520 --> 00:24:10,760
judge will exclude the statement
to prevent blatant fraud on the 

503
00:24:10,760 --> 00:24:13,120
court. 
Now there are a couple of other 

504
00:24:13,120 --> 00:24:18,360
minor eight O 4 tomb exceptions 
like family history or pedigree,

505
00:24:18,640 --> 00:24:21,080
which allows unavailable 
relative to testify about 

506
00:24:21,080 --> 00:24:23,720
births, marriages and 
bloodlines. 

507
00:24:23,840 --> 00:24:26,880
Yeah, and we already deeply 
explored forfeiture by 

508
00:24:26,880 --> 00:24:29,760
wrongdoing. 
So I want to execute a hard 

509
00:24:29,760 --> 00:24:30,720
pivot. 
Let's do it. 

510
00:24:30,800 --> 00:24:33,800
We are leaving the cemetery. 
Time to step into the light and 

511
00:24:33,800 --> 00:24:35,960
look at the ghost exception. 
Exactly. 

512
00:24:36,360 --> 00:24:38,760
We are transitioning to rule 
eight O 3. 

513
00:24:39,440 --> 00:24:41,400
The paradigm completely shifts 
here. 

514
00:24:41,840 --> 00:24:44,680
We no longer care if the witness
is dead, alive, in a coma, 

515
00:24:44,800 --> 00:24:47,280
hiding in France, or sitting in 
the front row of the jury 

516
00:24:47,280 --> 00:24:49,160
gallery eating a sandwich. 
Not at all. 

517
00:24:49,160 --> 00:24:51,200
Availability is absolutely 
immaterial. 

518
00:24:51,200 --> 00:24:52,680
And we have to ask ourselves 
why? 

519
00:24:52,680 --> 00:24:55,560
Why does the law suddenly drop 
the unavailability requirement? 

520
00:24:55,680 --> 00:24:58,160
Right. 
The unifying theory behind all 

521
00:24:58,160 --> 00:25:02,040
Rule 803 exceptions is that 
these specific types of 

522
00:25:02,040 --> 00:25:04,360
statements are generated under 
conditions that are so 

523
00:25:04,360 --> 00:25:08,600
incredibly spontaneous or so 
deeply embedded and routine 

524
00:25:08,600 --> 00:25:11,960
institutional bureaucracy, that 
dragging the witness into the 

525
00:25:11,960 --> 00:25:14,920
courtroom wouldn't actually 
enhance the reliability of the 

526
00:25:14,920 --> 00:25:17,080
evidence. 
Cross examination is useless 

527
00:25:17,080 --> 00:25:19,680
against a perfectly formed 
spontaneous reaction. 

528
00:25:20,120 --> 00:25:22,320
Exactly. 
Let's unpack the spontaneous 

529
00:25:22,320 --> 00:25:25,360
family first. 
We have present sense impression

530
00:25:25,600 --> 00:25:28,000
and excited utterance. 
They are cousins. 

531
00:25:28,320 --> 00:25:31,240
They look similar on a law 
school exam, but they operate on

532
00:25:31,240 --> 00:25:33,680
fundamentally different internal
mechanisms. 

533
00:25:33,800 --> 00:25:36,280
Very different. 
One is governed by the clock and

534
00:25:36,280 --> 00:25:37,880
the other is governed by the 
heart rate. 

535
00:25:38,040 --> 00:25:40,880
Let's start with the clock. 
Present sense impression Federal

536
00:25:40,880 --> 00:25:45,240
Rule of Evidence 8 O3 one. 
I like to call this the play by 

537
00:25:45,240 --> 00:25:48,000
play rule. 
It is a statement describing or 

538
00:25:48,000 --> 00:25:51,840
explaining an event or condition
made while or immediately after 

539
00:25:51,840 --> 00:25:54,600
the declarant perceived it. 
Like a sports announcer calling 

540
00:25:54,600 --> 00:25:57,360
a football game. 
He's at the 20, the 10. 

541
00:25:57,440 --> 00:26:01,640
He dodges the tackle touchdown. 
The announcer is describing the 

542
00:26:01,640 --> 00:26:04,520
event exactly as the photons are
hitting his retinas. 

543
00:26:04,520 --> 00:26:06,640
Perfect analogy. 
If a husband and wife are 

544
00:26:06,640 --> 00:26:09,280
standing at their living room 
window and the husband says look

545
00:26:09,280 --> 00:26:11,600
at that blue car speeding 
through the red light, the 

546
00:26:11,600 --> 00:26:14,240
husband is the declarant. 
Even if that husband is sitting 

547
00:26:14,240 --> 00:26:16,560
right there at the counsel 
table, perfectly available to 

548
00:26:16,560 --> 00:26:19,960
testify, the wife can take the 
witness stand and repeat his 

549
00:26:19,960 --> 00:26:22,400
exact quote. 
But the timing constraint here 

550
00:26:22,400 --> 00:26:25,840
is incredibly rigid. 
We're talking about strict 

551
00:26:25,840 --> 00:26:28,840
contemporaneity. 
Let's change your hypothetical 

552
00:26:28,840 --> 00:26:32,360
slightly, OK? 
The husband watches the blue car

553
00:26:32,360 --> 00:26:34,840
blow the red light. 
He doesn't say anything. 

554
00:26:35,360 --> 00:26:38,200
He turns around, walks into the 
kitchen, pours a cup of coffee, 

555
00:26:38,200 --> 00:26:42,440
takes a sip and 15 minutes later
says to his wife, Hey, I saw a 

556
00:26:42,440 --> 00:26:44,880
maniac in a blue car run the 
light earlier. 

557
00:26:45,000 --> 00:26:47,160
The present sense impression 
vanishes entirely. 

558
00:26:47,160 --> 00:26:50,240
It's gone, and the reason is 
rooted in cognitive science. 

559
00:26:50,800 --> 00:26:53,760
The reliability of this 
exception comes from the sheer 

560
00:26:53,920 --> 00:26:56,640
physical lack of time to 
fabricate a lie. 

561
00:26:56,720 --> 00:26:59,160
The brain needs time. 
A human brain needs time to 

562
00:26:59,160 --> 00:27:02,280
process an event, calculate the 
implications, invent a 

563
00:27:02,280 --> 00:27:05,600
falsehood, and then speak it. 
If you speak while the event is 

564
00:27:05,600 --> 00:27:07,680
happening, your brain is 
entirely occupied with 

565
00:27:07,680 --> 00:27:09,920
perception. 
It cannot multitask and build a 

566
00:27:09,920 --> 00:27:12,880
lie simultaneously. 
But give a human brain 15 

567
00:27:12,880 --> 00:27:14,760
minutes. 
Oh, it can invent an entirely 

568
00:27:14,760 --> 00:27:17,480
fictional universe. 
Once the timeline detaches from 

569
00:27:17,480 --> 00:27:19,400
the event, the exception dies. 
You talk. 

570
00:27:19,800 --> 00:27:23,000
The clock is unforgiving. 
Now let's contrast that with 

571
00:27:23,000 --> 00:27:25,840
it's more dramatic cousin, the 
excited utterance. 

572
00:27:26,280 --> 00:27:30,080
Rule 8 O 3-2. 
This is the OMG rule. 

573
00:27:30,240 --> 00:27:34,720
Yes, a statement relating to a 
startling event or condition 

574
00:27:35,080 --> 00:27:37,640
made while the declarant was 
under the stress of excitement 

575
00:27:37,640 --> 00:27:39,960
that it caused. 
The exam distinction here is 

576
00:27:39,960 --> 00:27:41,840
paramount. 
You have to stop looking at the 

577
00:27:41,840 --> 00:27:44,720
stopwatch and start looking at 
the emotional trauma. 

578
00:27:45,480 --> 00:27:48,800
Let's look at the chilling North
Carolina case state versus 

579
00:27:48,800 --> 00:27:50,520
right. 
Oh, that's a heavy one. 

580
00:27:50,520 --> 00:27:55,040
It is, the court admitted, A911 
tape where a son, breathing 

581
00:27:55,040 --> 00:27:59,400
heavily and frantic, tells the 
operator mom shot a minute ago. 

582
00:27:59,800 --> 00:28:02,920
Now, a defense attorney might 
argue a minute or two has 

583
00:28:02,920 --> 00:28:05,000
passed. 
The present sense oppression is 

584
00:28:05,000 --> 00:28:07,120
dead. 
The brain had time to think. 

585
00:28:07,120 --> 00:28:09,520
And they would be right about 
present sense impression, but 

586
00:28:09,520 --> 00:28:12,800
wrong about excited utterance. 
Hearing your mother get shot is 

587
00:28:12,800 --> 00:28:15,480
an inherently traumatizing, 
startling event. 

588
00:28:15,720 --> 00:28:19,120
The law recognizes that massive 
psychological shock completely 

589
00:28:19,120 --> 00:28:21,240
short circuits the brain's 
reflective capacity. 

590
00:28:21,240 --> 00:28:23,120
You are in fight or flight mode.
Exactly. 

591
00:28:23,400 --> 00:28:26,080
Your capacity to scheme and 
fabricate is completely 

592
00:28:26,080 --> 00:28:28,360
suspended by the adrenaline and 
terror. 

593
00:28:28,360 --> 00:28:31,000
So the statement comes in. 
And the really fascinating part 

594
00:28:31,000 --> 00:28:34,680
is how long that shockwave can 
last depending on the biology of

595
00:28:34,680 --> 00:28:37,520
the declarant. 
Look at the state versus young 

596
00:28:37,520 --> 00:28:40,640
case. 
A heartbreaking but brilliant 

597
00:28:40,800 --> 00:28:43,840
legal precedent. 
You have a 2 1/2 year old child 

598
00:28:43,840 --> 00:28:46,960
at a daycare center. 
The child is violently hitting 

599
00:28:46,960 --> 00:28:49,880
two dolls together and saying 
mommy has Boo boos all over. 

600
00:28:49,880 --> 00:28:52,280
Wow. 
This event at the daycare 

601
00:28:52,280 --> 00:28:55,560
happened a full six days after 
the child's mother was murdered 

602
00:28:55,560 --> 00:28:57,840
in front of them. 
The trial court admitted the 

603
00:28:57,840 --> 00:29:00,160
child's statement as an excited 
utterance. 

604
00:29:00,240 --> 00:29:02,880
Six days? 
I mean a six day delay would 

605
00:29:02,880 --> 00:29:06,520
obliterate a present sense 
impression 1000 times over. 

606
00:29:06,720 --> 00:29:09,440
How can someone be under the 
stress of excitement for nearly 

607
00:29:09,440 --> 00:29:11,760
a week? 
Because the law adapts to the 

608
00:29:11,760 --> 00:29:15,080
psychological reality of the 
declarant, child psychology 

609
00:29:15,080 --> 00:29:18,160
experts confirm that massive 
traumatic stress lasts much, 

610
00:29:18,160 --> 00:29:20,600
much longer in toddlers than in 
adult brains. 

611
00:29:20,600 --> 00:29:22,440
Right. 
A2 year old does not have the 

612
00:29:22,440 --> 00:29:24,680
coping mechanisms to process 
grief or terror. 

613
00:29:25,120 --> 00:29:27,800
The traumatic event literally 
suspends their capacity to 

614
00:29:27,800 --> 00:29:31,320
invent a narrative for days. 
The stress is a continuous, 

615
00:29:31,320 --> 00:29:34,040
unbroken chain from the murder 
to the daycare center. 

616
00:29:34,040 --> 00:29:36,200
OK, let me throw a Socratic 
curveball at you. 

617
00:29:36,400 --> 00:29:38,840
Let's hear it. 
If a law student is sitting in a

618
00:29:38,840 --> 00:29:42,760
cavernous exam hall and they 
read a fact pattern where there 

619
00:29:42,760 --> 00:29:46,040
is a 10 minute delay between a 
car crash and the statement to 

620
00:29:46,040 --> 00:29:49,680
the police officer, how on earth
did they choose between present 

621
00:29:49,680 --> 00:29:52,200
sense impression and excited 
utterance? 

622
00:29:52,520 --> 00:29:55,040
That is the ultimate test of 
diagnostic skill. 

623
00:29:55,400 --> 00:29:59,200
You immediately stop looking at 
the 10 minutes and you scan the 

624
00:29:59,200 --> 00:30:02,000
text for adjectives describing 
the physical state of the 

625
00:30:02,000 --> 00:30:04,800
declarant. 
OK, if the fact pattern says the

626
00:30:04,800 --> 00:30:07,600
witness is standing on the curb 
calmly narrating the events to 

627
00:30:07,600 --> 00:30:10,120
the officer 10 minutes later, 
well, it fails both. 

628
00:30:10,720 --> 00:30:13,080
It fails present sense 
impression because 10 minutes is

629
00:30:13,080 --> 00:30:16,720
way too long for a play by play,
and it fails excited utterance 

630
00:30:16,720 --> 00:30:19,080
because they are calm, the 
stress is evaporated. 

631
00:30:19,120 --> 00:30:21,200
But what if the text changes one
word? 

632
00:30:21,440 --> 00:30:24,600
If the fact pattern says the 
witness is trembling, bleeding 

633
00:30:24,600 --> 00:30:27,640
and speaking frantically, 10 
minutes later the excited 

634
00:30:27,640 --> 00:30:30,680
utterance wins the day. 
The physical manifestation of 

635
00:30:30,680 --> 00:30:34,000
stress, the trembling, the 
frantic tone is your flashing 

636
00:30:34,000 --> 00:30:36,960
green light. 
Emotion overrides the clock. 

637
00:30:37,200 --> 00:30:39,120
That is a phenomenal exam 
metric. 

638
00:30:39,480 --> 00:30:42,040
Let's transition from 
exclamations about external 

639
00:30:42,040 --> 00:30:45,160
events like car crashes and 
shootings to statements about 

640
00:30:45,160 --> 00:30:46,840
the declarant's internal 
universe. 

641
00:30:47,280 --> 00:30:49,320
Rule eight O 3. 
Three and eight O 34. 

642
00:30:49,800 --> 00:30:52,560
Rule 8 O 33 is the state of mind
exception. 

643
00:30:53,160 --> 00:30:55,920
It allows a statement of the 
declarant's then existing 

644
00:30:55,920 --> 00:30:58,160
mental, emotional or physical 
condition. 

645
00:30:58,720 --> 00:31:02,880
It's the law allowing you to be 
the narrator of your own current

646
00:31:02,880 --> 00:31:05,880
internal reality. 
I am terrified right now or my 

647
00:31:05,880 --> 00:31:08,000
lower back is an agonizing pain 
but. 

648
00:31:08,520 --> 00:31:11,520
There is a massive structural 
restriction built into this rule

649
00:31:11,640 --> 00:31:14,680
that prevents it from destroying
the entire concept of hearsay. 

650
00:31:15,280 --> 00:31:18,320
It cannot be a statement of 
memory or belief used to prove 

651
00:31:18,320 --> 00:31:20,160
the fact remembered. 
This is crucial. 

652
00:31:20,160 --> 00:31:22,080
You can say I am terrified of 
Frank. 

653
00:31:22,080 --> 00:31:24,840
That statement comes in to prove
your internal emotional state. 

654
00:31:24,840 --> 00:31:28,120
That fear exists in your body. 
But you absolutely cannot say I 

655
00:31:28,120 --> 00:31:30,560
am terrified of Frank because he
hit me with a tire iron 

656
00:31:30,560 --> 00:31:32,320
yesterday. 
Because the second-half of that 

657
00:31:32,320 --> 00:31:35,680
sentence he hit me yesterday is 
a memory of a past event. 

658
00:31:36,080 --> 00:31:39,520
Exactly. 
If we allowed memories of past 

659
00:31:39,520 --> 00:31:42,120
events to come in just because 
they are attached to a current 

660
00:31:42,120 --> 00:31:44,720
emotion, it would swallow the 
hearsay rule whole. 

661
00:31:45,200 --> 00:31:49,360
Every single piece of hearsay 
ever spoken is technically a 

662
00:31:49,360 --> 00:31:52,120
reflection of the declarant's 
current state of mind regarding 

663
00:31:52,120 --> 00:31:55,120
a past memory. 
The courts aggressively sever 

664
00:31:55,120 --> 00:31:58,640
the emotion from the memory. 
Emotion comes in the factual, 

665
00:31:58,640 --> 00:32:02,280
memory stays out. 
But here is where the state of 

666
00:32:02,280 --> 00:32:05,120
mind exception becomes one of 
the most powerful offensive 

667
00:32:05,120 --> 00:32:09,560
weapons in a trial lawyer's 
arsenal, the Hillman Doctrine. 

668
00:32:09,800 --> 00:32:12,840
This is heavily tested and it is
beautifully logical once you 

669
00:32:12,840 --> 00:32:14,800
grasp it. 
Oh, Hillman is a classic. 

670
00:32:14,960 --> 00:32:17,480
The Supreme Court case Mutual 
Life Insurance Company versus 

671
00:32:17,480 --> 00:32:20,760
Hillman established A paradigm 
that a statement of present 

672
00:32:20,760 --> 00:32:23,760
intent to do something in the 
future can be used as evidence 

673
00:32:23,760 --> 00:32:25,760
to prove that the person 
actually followed through and 

674
00:32:25,760 --> 00:32:27,680
did it. 
Let's map this onto a modern 

675
00:32:27,680 --> 00:32:30,120
hypothetical. 
A guy tells his Co worker on a 

676
00:32:30,120 --> 00:32:34,040
Friday afternoon, I'm going to 
drive to Colorado with Larry 

677
00:32:34,040 --> 00:32:38,000
this weekend to go fishing. 
Tragically, a body is found on 

678
00:32:38,000 --> 00:32:41,160
the Colorado mountains on Monday
burned beyond recognition. 

679
00:32:41,640 --> 00:32:45,240
Larry is the prime suspect. 
Can the prosecutor use the dead 

680
00:32:45,240 --> 00:32:47,880
man's Friday afternoon statement
against Larry? 

681
00:32:49,000 --> 00:32:52,280
Under the HILM on doctrine, that
statement of present intent is 

682
00:32:52,280 --> 00:32:56,280
admissible to prove 2 incredibly
damaging things to Larry, Which 

683
00:32:56,280 --> 00:32:59,520
are first, it proves the victim 
actually acted on his intent and

684
00:32:59,520 --> 00:33:02,760
traveled to Colorado. 2nd, and 
more dangerously, it proves he 

685
00:33:02,760 --> 00:33:04,440
was likely in the company of 
Larry. 

686
00:33:04,640 --> 00:33:07,320
It bridges the gap between a 
thought in the brain and a 

687
00:33:07,320 --> 00:33:09,240
physical action in the real 
world. 

688
00:33:09,400 --> 00:33:12,720
It's evidentiary time travel. 
You use a statement from Friday 

689
00:33:12,720 --> 00:33:14,680
to prove a physical reality on 
Sunday. 

690
00:33:14,840 --> 00:33:16,680
Perfectly said. 
Let's move to the physical 

691
00:33:16,680 --> 00:33:18,880
reality of the human body. 
Rule 8. 

692
00:33:18,920 --> 00:33:22,560
O 3-4 Statements made for 
medical diagnosis or treatment. 

693
00:33:22,680 --> 00:33:26,320
The theory underlying this rule 
is one of raw self preservation.

694
00:33:27,080 --> 00:33:29,960
When you are sitting on an 
examination table in an 

695
00:33:29,960 --> 00:33:33,880
emergency room bleeding, you do 
not lie to the person holding 

696
00:33:33,880 --> 00:33:37,360
the scalpel and the antibiotics.
The overwhelming desire to be 

697
00:33:37,360 --> 00:33:41,160
healed properly overrides any 
motive to fabricate. 

698
00:33:41,240 --> 00:33:43,560
But there's a razor sharp 
distinction in how courts apply 

699
00:33:43,560 --> 00:33:46,800
this, and it revolves around the
difference between cause and 

700
00:33:46,800 --> 00:33:48,920
fault. 
Let's use the ER triage 

701
00:33:48,920 --> 00:33:51,600
scenario. 
You walk in with a smashed 

702
00:33:51,600 --> 00:33:53,800
shoulder. 
You tell the intake nurse I was 

703
00:33:53,800 --> 00:33:56,000
hit in the shoulder by a wooden 
baseball bat. 

704
00:33:56,360 --> 00:33:59,360
That statement is completely 
admissible because the medical 

705
00:33:59,360 --> 00:34:02,160
team needs to know the physical 
mechanism of the trauma to treat

706
00:34:02,160 --> 00:34:05,320
you properly. 
A bat causes blunt force trauma 

707
00:34:05,320 --> 00:34:07,880
requiring X-rays for bone 
fractures and checks for 

708
00:34:07,880 --> 00:34:10,199
internal hemorrhaging. 
It dictates their medical 

709
00:34:10,199 --> 00:34:11,679
protocol. 
But what if you finished the 

710
00:34:11,679 --> 00:34:13,600
sentence? 
I was hit in the shoulder by a 

711
00:34:13,600 --> 00:34:16,560
wooden baseball bat swung by my 
furious wife. 

712
00:34:16,800 --> 00:34:20,600
The phrase swung by my furious 
wife is inadmissible hearsay. 

713
00:34:20,960 --> 00:34:23,440
It is completely severed from 
the medical reality. 

714
00:34:23,840 --> 00:34:26,840
The trauma surgeon does not need
to know the name, identity or 

715
00:34:26,840 --> 00:34:29,800
motive of your attacker to 
stitch up your flesh or set your

716
00:34:29,800 --> 00:34:32,080
bone. 
Identity is an issue of legal 

717
00:34:32,080 --> 00:34:34,520
fault, not medical costs. 
Exactly. 

718
00:34:34,560 --> 00:34:37,239
You could have been hit by your 
wife, a stranger or a pitching 

719
00:34:37,239 --> 00:34:39,120
machine. 
The medical treatment is 

720
00:34:39,120 --> 00:34:42,159
identical, therefore the 
guarantee of trustworthiness 

721
00:34:42,159 --> 00:34:44,400
doesn't extend to the naming of 
the attacker. 

722
00:34:44,880 --> 00:34:48,080
But we have to address the one 
major profanity, profoundly 

723
00:34:48,080 --> 00:34:52,040
tragic exception to this cause 
versus fault divide. 

724
00:34:52,360 --> 00:34:56,199
There is a scenario where naming
the attacker is actually a 

725
00:34:56,199 --> 00:34:59,760
medical necessity. 
Yes, child abuse cases occurring

726
00:34:59,760 --> 00:35:02,320
within the home. 
In these specific scenarios, the

727
00:35:02,320 --> 00:35:04,760
courts recognize that the 
identity of the abuser is 

728
00:35:04,760 --> 00:35:07,840
fundamentally, inextricably 
linked to medical diagnosis and 

729
00:35:07,840 --> 00:35:09,480
treatment. 
Because treatment doesn't end 

730
00:35:09,480 --> 00:35:11,320
when the stitches are tied. 
Exactly. 

731
00:35:11,520 --> 00:35:13,840
A pediatrician's medical duty 
includes creating a safe 

732
00:35:13,840 --> 00:35:16,640
discharge plan. 
A doctor cannot medically or 

733
00:35:16,640 --> 00:35:19,600
ethically discharge a battered 
child back into a living room 

734
00:35:19,600 --> 00:35:22,560
where the predator is waiting to
prevent the re injury. 

735
00:35:22,880 --> 00:35:26,440
To complete the medical care, 
the doctor must know who 

736
00:35:26,440 --> 00:35:29,320
inflicted the wounds to ensure 
the child goes to a safe 

737
00:35:29,320 --> 00:35:32,120
environment. 
Therefore, a child statement 

738
00:35:32,120 --> 00:35:35,160
identifying their parent or 
guardian as the abuser becomes a

739
00:35:35,160 --> 00:35:38,240
statement made for medical 
treatment and it is admissible. 

740
00:35:38,480 --> 00:35:41,160
The logic is grim, but 
absolutely bulletproof. 

741
00:35:41,240 --> 00:35:42,360
It is. 
OK. 

742
00:35:42,880 --> 00:35:46,040
We have covered the spontaneous 
exclamations, the internal 

743
00:35:46,040 --> 00:35:49,400
emotional states, and the 
medical triage realities. 

744
00:35:49,760 --> 00:35:52,480
Now I want to leave the realm of
spoken words and guide our 

745
00:35:52,480 --> 00:35:55,440
listeners into what I call the 
boring but incredibly reliable 

746
00:35:55,440 --> 00:35:58,760
world of paper trails. 
We are moving to the corporate 

747
00:35:58,760 --> 00:36:03,240
and government machinery. 
Rule 8 O3 6 business records and

748
00:36:03,240 --> 00:36:07,360
Rule 8 O 38 public records. 
These are the twin engines that 

749
00:36:07,360 --> 00:36:09,760
drive almost all complex civil 
litigation. 

750
00:36:10,280 --> 00:36:13,120
Without these exceptions, 
prosecuting corporate fraud or 

751
00:36:13,120 --> 00:36:16,160
trying a breach of contract case
would be logistically 

752
00:36:16,160 --> 00:36:17,880
impossible. 
Let's start with business 

753
00:36:17,880 --> 00:36:19,640
records. 
The foundation is strict. 

754
00:36:19,640 --> 00:36:21,840
You can't just wave a piece of 
paper and say it's a receipt. 

755
00:36:22,160 --> 00:36:25,240
You must have a custodian of 
records or other qualified 

756
00:36:25,240 --> 00:36:28,760
witness take the stand. 
They have to testify to a multi 

757
00:36:28,760 --> 00:36:31,680
part formula. 
The record was made at or near 

758
00:36:31,680 --> 00:36:33,800
the time of the event. 
It was made by someone with 

759
00:36:33,800 --> 00:36:36,680
personal knowledge and, 
crucially, it is kept in the 

760
00:36:36,680 --> 00:36:39,760
ordinary course of a regularly 
conducted business activity. 

761
00:36:40,240 --> 00:36:42,560
And that last element is where 
the battles are fought. 

762
00:36:42,880 --> 00:36:45,480
Let's look at one of the most 
famous cases in American 

763
00:36:45,480 --> 00:36:47,800
jurisprudence, Palmer versus 
Hoffman. 

764
00:36:48,280 --> 00:36:50,880
This is a Supreme Court case 
that defines the boundaries of 

765
00:36:50,880 --> 00:36:53,760
corporate trustworthiness. 
Picture the scene. 

766
00:36:53,920 --> 00:36:57,800
It's the 1940s. 
A massive railroad locomotive 

767
00:36:57,880 --> 00:37:00,160
plows into a vehicle at a grade 
crossing. 

768
00:37:00,160 --> 00:37:03,360
It's a catastrophic accident. 
The railroad company immediately

769
00:37:03,360 --> 00:37:05,160
dispatches their risk management
team. 

770
00:37:05,520 --> 00:37:08,560
They interview the engineer, 
they take measurements, and they

771
00:37:08,560 --> 00:37:11,600
produce a highly detailed formal
accident report. 

772
00:37:12,320 --> 00:37:15,720
At trial, the railroad's defense
attorneys try to introduce this 

773
00:37:15,720 --> 00:37:20,040
report as a business record. 
They argue to the judge, look, 

774
00:37:20,160 --> 00:37:23,680
we are a massive railroad 
business and unfortunately train

775
00:37:23,680 --> 00:37:26,080
crashes are part of our regular 
operations. 

776
00:37:26,280 --> 00:37:29,400
It is our standard regular 
practice to write these reports 

777
00:37:29,400 --> 00:37:32,160
whenever a train hits something.
Therefore, it's a business 

778
00:37:32,160 --> 00:37:34,640
record. 
It sounds incredibly logical on 

779
00:37:34,640 --> 00:37:36,600
its face. 
They followed a routine 

780
00:37:36,600 --> 00:37:39,520
corporate protocol, but the 
Supreme Court saw it right 

781
00:37:39,520 --> 00:37:42,360
through the illusion. 
The court excluded the report, 

782
00:37:42,440 --> 00:37:44,640
ruling it was not a valid 
business record. 

783
00:37:44,760 --> 00:37:46,880
Breakdown the court's rationale 
because it's brilliant. 

784
00:37:46,960 --> 00:37:49,640
It comes down to the underlying 
incentive of the author. 

785
00:37:49,680 --> 00:37:51,920
Why do we trust a normal 
business Ledger? 

786
00:37:52,080 --> 00:37:55,080
We trust a Ledger because the 
business relies on its accuracy 

787
00:37:55,080 --> 00:37:57,920
to make money. 
If a grocery store inventory is 

788
00:37:57,920 --> 00:38:00,840
wrong, they go bankrupt. 
But an accident report prepared 

789
00:38:00,840 --> 00:38:05,160
immediately after a fatal crash?
That document is not created to 

790
00:38:05,160 --> 00:38:07,080
facilitate the business of 
railroading. 

791
00:38:07,360 --> 00:38:10,880
It is created specifically in 
anticipation of a massive 

792
00:38:10,880 --> 00:38:14,000
lawsuit. 
Its primary purpose is to shield

793
00:38:14,000 --> 00:38:19,000
the corporation from liability. 
The incentive is entirely self 

794
00:38:19,000 --> 00:38:21,680
preservation, not objective 
accuracy. 

795
00:38:22,120 --> 00:38:24,760
The court ruled that you cannot 
manufacture your own 

796
00:38:24,760 --> 00:38:27,680
self-serving defense evidence 
and launder it into court under 

797
00:38:27,680 --> 00:38:30,720
the guise of routine paperwork. 
Which perfectly illustrates the 

798
00:38:30,720 --> 00:38:33,600
primary purpose analysis. 
But let's Fast forward from 

799
00:38:33,600 --> 00:38:37,760
1940s trains to modern finance. 
There is a heavily tested trap 

800
00:38:37,760 --> 00:38:41,160
involving the 2008 financial 
crisis and modern corporate 

801
00:38:41,160 --> 00:38:43,600
mergers. 
The modern successor trap. 

802
00:38:43,600 --> 00:38:46,760
We see this litigated constantly
in cases like Hunter versus 

803
00:38:46,760 --> 00:38:49,360
Aurora Loan Services and the 
Wamsi case. 

804
00:38:49,360 --> 00:38:51,040
This is a massive battleground 
right? 

805
00:38:51,040 --> 00:38:53,200
Now think about the modern 
mortgage industry. 

806
00:38:53,440 --> 00:38:57,200
Bank A originate your home loan.
Two years later, Bank A goes 

807
00:38:57,200 --> 00:38:59,080
bankrupt, or they bundle the 
loan and sell it. 

808
00:38:59,080 --> 00:39:02,080
Bank B takes over, then Bank B 
merges with Bank C. 

809
00:39:02,360 --> 00:39:04,240
OK, a mess. 
Exactly. 

810
00:39:04,480 --> 00:39:07,640
Suddenly, Bank C decides to 
foreclose on your house. 

811
00:39:08,040 --> 00:39:10,440
Bank C brings their current 
employee into court to 

812
00:39:10,440 --> 00:39:13,040
authenticate the digital 
financial records showing you 

813
00:39:13,040 --> 00:39:15,560
missed your payments. 
But those records were 

814
00:39:15,560 --> 00:39:18,640
originally typed into a computer
10 years ago by some unknown 

815
00:39:18,640 --> 00:39:21,680
clerk at Bank A. 
So the defense attorney jumps up

816
00:39:21,680 --> 00:39:25,760
and says, objection, This 
witness works for Bank C They 

817
00:39:25,760 --> 00:39:28,760
have no personal knowledge of 
how Bank A's computer system 

818
00:39:28,760 --> 00:39:31,560
worked a decade ago. 
They can't authenticate the 

819
00:39:31,560 --> 00:39:34,200
creation of this record. 
And for a while, some lower 

820
00:39:34,200 --> 00:39:37,200
courts, like the initial rulings
in the Hunter case Trajectory, 

821
00:39:37,400 --> 00:39:40,440
mistakenly bought that argument 
and blocked the foreclosures. 

822
00:39:40,680 --> 00:39:44,680
But the prevailing correct 
interpretation of Rule 8O36, 

823
00:39:44,680 --> 00:39:47,600
which the WAMCO court 
articulated perfectly, is far 

824
00:39:47,600 --> 00:39:49,560
more pragmatic. 
How does the law bridge the 

825
00:39:49,560 --> 00:39:51,840
corporate gap? 
A qualified witness does not 

826
00:39:51,840 --> 00:39:54,200
need to be the person who 
physically typed the data. 

827
00:39:54,400 --> 00:39:56,080
They don't even need to have 
worked at the the original 

828
00:39:56,080 --> 00:39:58,720
company. 
When a successor entity like 

829
00:39:58,720 --> 00:40:02,840
Bank C purchases Bank A's 
portfolios, integrates those 

830
00:40:02,840 --> 00:40:06,960
files into its own proprietary 
computer system, audits them for

831
00:40:06,960 --> 00:40:10,280
baseline accuracy, and then 
relies on those records for its 

832
00:40:10,280 --> 00:40:14,880
own daily $1,000,000 business 
operations, those documents 

833
00:40:14,880 --> 00:40:17,880
legally transform into Bank C's 
business records. 

834
00:40:18,280 --> 00:40:21,560
The witness simply needs to be 
able to testify about how Banksy

835
00:40:21,560 --> 00:40:25,320
currently relies on the system. 
The systemic integration cures 

836
00:40:25,320 --> 00:40:27,560
the hearsay. 
That is a critical nuance for 

837
00:40:27,560 --> 00:40:30,360
modern corporate practice. 
Now, what about the double 

838
00:40:30,360 --> 00:40:32,520
hearsay trap lurking within 
these records? 

839
00:40:32,520 --> 00:40:34,120
The Russian nesting doll 
problem? 

840
00:40:34,120 --> 00:40:35,760
Oh. 
Well, this is a classic exam 

841
00:40:35,760 --> 00:40:37,960
hypothetical. 
Let's use the grocery store slip

842
00:40:37,960 --> 00:40:40,160
and fall. 
A customer slips on a puddle of 

843
00:40:40,160 --> 00:40:43,200
spilled milk. 
The store manager rushes over 

844
00:40:43,200 --> 00:40:45,800
and fills out the official 
corporate incident log. 

845
00:40:46,440 --> 00:40:49,320
The manager writes. 
I arrived at aisle 4 and saw a 

846
00:40:49,320 --> 00:40:53,120
puddle of milk on the floor. 
That sentence is perfectly 

847
00:40:53,120 --> 00:40:55,480
admissible. 
The manager is a corporate 

848
00:40:55,480 --> 00:40:58,960
employee fulfilling A strict 
business duty to accurately 

849
00:40:58,960 --> 00:41:01,880
report their own observations. 
But the log continues. 

850
00:41:02,720 --> 00:41:04,400
The manager writes a second 
sentence. 

851
00:41:05,400 --> 00:41:08,720
A random shopper who was walking
by told me that a kid dropped 

852
00:41:08,720 --> 00:41:12,160
the milk jug 10 minutes ago. 
And there the trap snap shut. 

853
00:41:12,480 --> 00:41:14,920
That second sentence is entirely
inadmissible. 

854
00:41:14,960 --> 00:41:17,280
It is hearsay nested inside 
hearsay. 

855
00:41:17,320 --> 00:41:20,000
But wait, the manager's report 
is a perfectly valid business 

856
00:41:20,000 --> 00:41:21,920
record. 
Doesn't the umbrella of the 

857
00:41:21,920 --> 00:41:24,280
business record shield 
everything written inside it? 

858
00:41:24,280 --> 00:41:27,040
No, the corporate umbrella only 
protects the actions of the 

859
00:41:27,040 --> 00:41:29,760
people standing underneath it. 
The random shopper is not an 

860
00:41:29,760 --> 00:41:31,120
employee. 
They are not part of the 

861
00:41:31,120 --> 00:41:33,920
business enterprise. 
They have absolutely no legal or

862
00:41:33,920 --> 00:41:36,080
corporate duty to accurately 
report report anything to the 

863
00:41:36,080 --> 00:41:38,040
manager. 
They could just be gossiping or 

864
00:41:38,040 --> 00:41:40,760
making a wild guess. 
Because the outer layer, the 

865
00:41:40,760 --> 00:41:44,520
manager's log, cannot cure the 
unreliability of the inner 

866
00:41:44,520 --> 00:41:46,600
layer, the random bystanders 
gossip. 

867
00:41:46,920 --> 00:41:50,760
The court will literally redact 
that second sentence out of the 

868
00:41:50,760 --> 00:41:52,600
document before handing it to 
the jury. 

869
00:41:52,920 --> 00:41:54,680
It's surgical extraction of 
hearsay. 

870
00:41:55,200 --> 00:41:58,280
Let's move to the sibling of 
business records, Public 

871
00:41:58,280 --> 00:42:03,000
records, Rule 8 O 3/8. 
This exception covers the vast 

872
00:42:03,000 --> 00:42:06,680
machinery of government records 
of public offices setting out 

873
00:42:06,680 --> 00:42:10,080
their internal activities or 
observations made under a strict

874
00:42:10,120 --> 00:42:13,320
legal duty to report. 
Think weather reports from the 

875
00:42:13,320 --> 00:42:16,080
National Weather Service or 
Health Department Restaurant 

876
00:42:16,080 --> 00:42:18,680
inspections. 
But there is a massive, 

877
00:42:18,680 --> 00:42:22,280
incredibly dangerous trap hidden
inside this rule, specifically 

878
00:42:22,280 --> 00:42:25,560
for criminal prosecutors. 
In criminal cases, matters 

879
00:42:25,560 --> 00:42:28,200
observed by police officers and 
other law enforcement personnel 

880
00:42:28,200 --> 00:42:30,560
cannot be used by the 
prosecution against the 

881
00:42:30,560 --> 00:42:32,440
defendant under the public 
records exception. 

882
00:42:32,440 --> 00:42:34,120
Why not? 
I mean, a police officer is a 

883
00:42:34,120 --> 00:42:36,680
public servant under a strict 
legal duty to report their 

884
00:42:36,680 --> 00:42:39,160
observations accurately. 
Why does the law suddenly 

885
00:42:39,160 --> 00:42:41,440
distrust them? 
It's not about distrusting the 

886
00:42:41,440 --> 00:42:44,720
officer's integrity, it's about 
the fundamental fairness of the 

887
00:42:44,720 --> 00:42:47,760
adversarial system. 
The prosecution cannot be 

888
00:42:47,760 --> 00:42:52,120
allowed to just hand the jury a 
cold, sterile police report to 

889
00:42:52,120 --> 00:42:56,080
prove the defendant's guilt. 
A piece of paper cannot be cross

890
00:42:56,080 --> 00:42:58,760
examined about lighting 
conditions, bias, or poor 

891
00:42:58,760 --> 00:43:01,760
eyesight. 
The law forces the prosecution 

892
00:43:01,760 --> 00:43:04,960
to bring the actual living 
police officer to the witness 

893
00:43:04,960 --> 00:43:07,400
stand so the defense attorney 
can look them in the eye and 

894
00:43:07,400 --> 00:43:10,040
test their observations. 
What's fascinating though is 

895
00:43:10,040 --> 00:43:11,960
that this restriction is a one 
way St. 

896
00:43:12,480 --> 00:43:16,080
The defense is absolutely 
allowed to use the police report

897
00:43:16,640 --> 00:43:19,320
against the prosecution if it 
contains exculpatory 

898
00:43:19,320 --> 00:43:22,520
observations, say an officer, 
noting that the suspect was 

899
00:43:22,520 --> 00:43:25,000
wearing a red shirt when the 
defendant was arrested in a 

900
00:43:25,000 --> 00:43:26,200
green shirt. 
Exactly. 

901
00:43:26,200 --> 00:43:28,080
The shield only protects the 
accused. 

902
00:43:28,360 --> 00:43:31,320
But let me play the role of a 
hyper aggressive, clever 

903
00:43:31,320 --> 00:43:33,800
prosecutor. 
I'm in trial. 

904
00:43:34,120 --> 00:43:36,720
My key police officer is 
suddenly unavailable. 

905
00:43:37,160 --> 00:43:39,760
The judge tells me I can't use 
their police report under the 

906
00:43:39,760 --> 00:43:42,280
public records exception because
of the law enforcement 

907
00:43:42,280 --> 00:43:44,600
restriction. 
Can I just pivot, point out that

908
00:43:44,600 --> 00:43:47,760
a police precinct is technically
a functioning enterprise and 

909
00:43:47,760 --> 00:43:52,040
sneak the report into evidence 
as a business record under Rule 

910
00:43:52,080 --> 00:43:56,200
8O36 instead? 
It is a brilliant attempt at a 

911
00:43:56,200 --> 00:43:59,840
workaround, and prosecutors have
tried it for decades, but the 

912
00:43:59,840 --> 00:44:02,440
courts have slammed that back 
door permanently shut. 

913
00:44:02,760 --> 00:44:05,840
We looked at cases like State 
versus Forte in North Carolina 

914
00:44:05,840 --> 00:44:08,800
to see how courts handle this. 
Walk us through the Forte logic.

915
00:44:08,920 --> 00:44:11,640
In Forte, you had an analyst 
from the State Bureau of 

916
00:44:11,640 --> 00:44:14,080
Investigation, which is law 
enforcement personnel. 

917
00:44:14,560 --> 00:44:16,600
The analysts left the Bureau 
before the trial. 

918
00:44:16,680 --> 00:44:20,040
The state, desperate to get the 
lab results into evidence, tried

919
00:44:20,040 --> 00:44:22,320
to bring in the analysts 
forensic reports by having a 

920
00:44:22,320 --> 00:44:26,080
supervisor testify attempting to
authenticate the lab reports as 

921
00:44:26,080 --> 00:44:28,760
standard business records under 
exception 6. 

922
00:44:28,760 --> 00:44:31,520
Trying to bypass the exception 8
restriction entirely. 

923
00:44:31,720 --> 00:44:35,080
Yes, and the Supreme Court of 
North Carolina, aligning with 

924
00:44:35,080 --> 00:44:38,440
the vast majority of federal 
courts, shut it down entirely. 

925
00:44:38,760 --> 00:44:40,800
They noted that the rules are 
interlocking. 

926
00:44:41,240 --> 00:44:44,480
If a document is specifically 
categorized as a law enforcement

927
00:44:44,760 --> 00:44:48,560
public report and the drafters 
explicitly made it inadmissible 

928
00:44:48,560 --> 00:44:51,760
against a criminal defendant 
under Exception 8, you cannot 

929
00:44:51,760 --> 00:44:55,360
just use a different, more 
general rule to subvert that 

930
00:44:55,360 --> 00:44:57,400
specific constitutional 
protection. 

931
00:44:57,480 --> 00:45:00,120
That makes total sense. 
The rules are not a menu where 

932
00:45:00,120 --> 00:45:03,480
you can just order a different 
exception to bypass a strict 

933
00:45:03,480 --> 00:45:05,760
prohibition. 
That is a critical boundary 

934
00:45:05,760 --> 00:45:07,760
line. 
Before we leave the paper 

935
00:45:07,760 --> 00:45:11,080
trails, I want to briefly touch 
on learned treatises Rule eight 

936
00:45:11,640 --> 00:45:14,720
O 318. 
If you have an expert witness on

937
00:45:14,720 --> 00:45:17,640
the stand, say a neurosurgeon 
testifying in a malpractice 

938
00:45:17,640 --> 00:45:20,800
suit, you can read excerpts from
a recognized authoritative 

939
00:45:20,800 --> 00:45:24,440
medical textbook to the jury. 
But there is a weird mechanical 

940
00:45:24,440 --> 00:45:27,160
quirk to this rule. 
The quirk is that while the 

941
00:45:27,160 --> 00:45:29,720
words can be read aloud into the
transcript, the physical 

942
00:45:29,720 --> 00:45:31,840
textbook itself is not received 
as an exhibit. 

943
00:45:31,960 --> 00:45:34,280
It does not go back into the 
jury deliberation room. 

944
00:45:34,480 --> 00:45:37,680
Why, if it's a brilliant piece 
of medical literature, shouldn't

945
00:45:37,680 --> 00:45:40,240
the jury be allowed to study it?
Absolutely not. 

946
00:45:40,720 --> 00:45:44,000
The law is terrified of a jury 
full of lay people taking a 

947
00:45:44,000 --> 00:45:48,160
complex neurosurgery textbook 
into a closed room and trying to

948
00:45:48,160 --> 00:45:50,880
play amateur doctor. 
They might misinterpret a 

949
00:45:50,880 --> 00:45:54,520
diagram, read a section out of 
context, and reach a wildly 

950
00:45:54,520 --> 00:45:57,040
unscientific conclusion. 
That is a fairpoint. 

951
00:45:57,280 --> 00:46:00,640
The expert is required to be on 
the stand to contextualize the 

952
00:46:00,640 --> 00:46:03,760
dense academic language. 
We trust the experts 

953
00:46:03,760 --> 00:46:07,080
interpretation, but we don't 
trust a jury alone in a room 

954
00:46:07,080 --> 00:46:09,880
with a medical journal. 
The law is so paternalistic. 

955
00:46:10,960 --> 00:46:13,080
OK, take a breath. 
We have survived the tomb 

956
00:46:13,080 --> 00:46:14,640
exceptions. 
We have mapped the ghost 

957
00:46:14,640 --> 00:46:16,680
exceptions. 
We have navigated the paper 

958
00:46:16,680 --> 00:46:19,480
trails and the exclamations, but
as we warned at the very 

959
00:46:19,480 --> 00:46:22,200
beginning of the session, 
there's a final boss waiting at 

960
00:46:22,200 --> 00:46:25,400
the end of the hearsay gauntlet.
The constitutional blockade. 

961
00:46:25,840 --> 00:46:28,560
The 6th Amendment. 
In all criminal prosecutions, 

962
00:46:28,760 --> 00:46:31,280
the accused shall enjoy the 
right to be confronted with the 

963
00:46:31,280 --> 00:46:34,080
witnesses against him. 
This is the Confrontation 

964
00:46:34,080 --> 00:46:36,480
clause. 
And here is the terrifying 

965
00:46:36,480 --> 00:46:40,240
reality for a prosecutor. 
Even if a statement perfectly 

966
00:46:40,400 --> 00:46:44,280
Florida State fits a hearsay 
exception, it's a textbook 

967
00:46:44,280 --> 00:46:47,880
excited utterance or a perfectly
authenticated business record, 

968
00:46:48,520 --> 00:46:51,200
the United States Constitution 
might still rise up and 

969
00:46:51,200 --> 00:46:53,280
completely block it from coming 
into evidence. 

970
00:46:53,480 --> 00:46:57,240
The Constitution overrides the 
rule book every single time, and

971
00:46:57,240 --> 00:47:00,120
the modern era of the 
Confrontation Clause is entirely

972
00:47:00,120 --> 00:47:03,680
defined by 1 earthquake of a 
Supreme Court case, Crawford 

973
00:47:03,680 --> 00:47:06,600
versus Washington. 
To understand how revolutionary 

974
00:47:06,600 --> 00:47:08,920
Crawford was, we have to 
understand the history it 

975
00:47:08,920 --> 00:47:11,080
overturned. 
Let's talk briefly about Sir 

976
00:47:11,080 --> 00:47:14,920
Walter Raleigh in 16 O 3. 
It is the founding myth of the 

977
00:47:14,920 --> 00:47:17,520
Confrontation Clause. 
Sir Walter Raleigh was tried for

978
00:47:17,520 --> 00:47:20,440
treason against the Crown. 
The primary evidence against him

979
00:47:20,440 --> 00:47:23,440
was a written confession from an
alleged Co conspirator, Lord 

980
00:47:23,440 --> 00:47:25,720
Cobham. 
Raleigh begged the judges to 

981
00:47:25,720 --> 00:47:28,440
bring Cobham into the courtroom 
so they could argue face to 

982
00:47:28,440 --> 00:47:31,720
face. 
He famously demanded call my 

983
00:47:31,720 --> 00:47:35,440
accuser before my face, but the 
judges refused. 

984
00:47:35,760 --> 00:47:38,720
They just read the piece of 
paper and Raleigh was sentenced 

985
00:47:38,720 --> 00:47:40,840
to death. 
And the framers of the US 

986
00:47:40,840 --> 00:47:44,240
Constitution were obsessed with 
preventing that exact scenario. 

987
00:47:44,680 --> 00:47:48,000
They hated trial by affidavit. 
They demanded the physical 

988
00:47:48,000 --> 00:47:51,040
confrontation of accusers. 
But over the centuries, the 

989
00:47:51,040 --> 00:47:53,800
American courts drifted away 
from that strict physical 

990
00:47:53,800 --> 00:47:56,440
requirement. 
Before Crawford, the Supreme 

991
00:47:56,440 --> 00:47:59,520
Court had developed a test based
purely on reliability. 

992
00:47:59,920 --> 00:48:03,200
If a hearsay statement fit a 
firmly rooted hearsay exception,

993
00:48:03,200 --> 00:48:06,160
like an excited utterance, the 
courts figured, well, it's 

994
00:48:06,160 --> 00:48:08,440
reliable enough so the 
Confrontation Clause is 

995
00:48:08,440 --> 00:48:10,600
satisfied. 
The rulebook essentially 

996
00:48:10,600 --> 00:48:14,200
swallowed the Constitution. 
But then Justice Scalia writes 

997
00:48:14,200 --> 00:48:17,480
the Crawford opinion, and he 
completely destroys that 

998
00:48:17,480 --> 00:48:20,640
reliability framework. 
Scalia pointed out that the 6th 

999
00:48:20,640 --> 00:48:23,680
Amendment doesn't say you have a
right to reliable evidence, it 

1000
00:48:23,680 --> 00:48:25,680
says you have a right to 
confront witnesses. 

1001
00:48:25,880 --> 00:48:28,840
He shifted the entire paradigm 
away from the reliability of the

1002
00:48:28,840 --> 00:48:31,840
statement and focused purely on 
the nature of the statement. 

1003
00:48:32,040 --> 00:48:34,560
Which brings us to the elements 
of the Crawford blockade. 

1004
00:48:34,960 --> 00:48:37,880
It is a strict checklist. 
First, it must be a criminal 

1005
00:48:37,880 --> 00:48:39,760
case. 
The Confrontation Clause does 

1006
00:48:39,760 --> 00:48:43,120
not exist in civil lawsuits. 
Corporations don't have a right 

1007
00:48:43,120 --> 00:48:45,040
to confront each other under the
6th Amendment. 

1008
00:48:45,400 --> 00:48:49,200
Second, the evidence must be 
offered against the defendant by

1009
00:48:49,200 --> 00:48:52,480
the prosecution. 
And 3rd and this is the entire 

1010
00:48:52,480 --> 00:48:54,880
ball game. 
The statement must be 

1011
00:48:54,880 --> 00:48:57,960
testimonial. 
If all three of those prongs are

1012
00:48:57,960 --> 00:49:00,520
met, the statement is blocked. 
Period. 

1013
00:49:01,120 --> 00:49:02,760
It doesn't matter how reliable 
it is. 

1014
00:49:02,760 --> 00:49:05,040
It doesn't matter if an 
Archbishop swore it was true. 

1015
00:49:05,480 --> 00:49:08,520
It is blocked unless the 
prosecutor can prove two things.

1016
00:49:08,920 --> 00:49:11,880
The declarant is currently 
unavailable and the defendant 

1017
00:49:11,880 --> 00:49:14,400
had a prior opportunity to cross
examine them. 

1018
00:49:14,880 --> 00:49:17,880
So the entire architecture of 
modern criminal evidence hinges 

1019
00:49:17,880 --> 00:49:20,480
on one word, testimonial. 
What does it actually mean? 

1020
00:49:20,560 --> 00:49:23,720
It is the $1,000,000 question 
and the Supreme Court has spent 

1021
00:49:23,800 --> 00:49:27,560
20 years trying to refine it. 
The core test courts use today 

1022
00:49:27,560 --> 00:49:31,160
is the primary purpose test. 
We asked when the declarant was 

1023
00:49:31,160 --> 00:49:34,120
speaking, what was the primary 
objective purpose of their 

1024
00:49:34,120 --> 00:49:36,200
statement? 
Were they trying to resolve an 

1025
00:49:36,200 --> 00:49:40,400
active, chaotic, ongoing threat?
Or were they acting essentially 

1026
00:49:40,400 --> 00:49:43,720
as a witness, building a 
historical factual record for 

1027
00:49:43,720 --> 00:49:45,720
the police to use in a future 
prosecution? 

1028
00:49:45,800 --> 00:49:48,840
This is best understood to the 
classic bar exam favorite, the 

1029
00:49:48,840 --> 00:49:52,200
911 call Hypo. 
I am going to give you 2 

1030
00:49:52,200 --> 00:49:56,120
scenarios that look similar but 
result in vastly different 

1031
00:49:56,120 --> 00:49:57,760
constitutional outcomes. 
Let's do it. 

1032
00:49:57,800 --> 00:50:01,680
Scenario A. 
A woman calls 911. 

1033
00:50:01,800 --> 00:50:03,720
You can hear glass shattering in
the background. 

1034
00:50:03,960 --> 00:50:06,040
She is screaming. 
My husband is punching me right 

1035
00:50:06,040 --> 00:50:07,160
now. 
He has a knife. 

1036
00:50:07,400 --> 00:50:09,600
Send the police immediately. 
The husband was later arrested. 

1037
00:50:09,800 --> 00:50:11,600
The wife refuses to testify at 
trial. 

1038
00:50:11,800 --> 00:50:13,760
Can the prosecutor play that 
911? 

1039
00:50:13,960 --> 00:50:15,880
Plus, let's analyze the primary 
purpose. 

1040
00:50:16,200 --> 00:50:19,520
The woman is facing a terrifying
ongoing emergency. 

1041
00:50:19,960 --> 00:50:22,520
The objective of her call is not
to build a legal case. 

1042
00:50:22,560 --> 00:50:26,080
Her objective is to summon armed
officers to stop an active 

1043
00:50:26,200 --> 00:50:29,400
lethal threat to her life. 
Because the primary purpose is 

1044
00:50:29,400 --> 00:50:32,600
to resolve an emergency, the 
Supreme Court has ruled that 

1045
00:50:32,600 --> 00:50:34,920
this statement is non 
testimonial. 

1046
00:50:35,520 --> 00:50:38,400
Therefore, the confrontation 
clause does not apply at all. 

1047
00:50:39,200 --> 00:50:42,080
The prosecutor can simply use 
the excited utterance hearsay 

1048
00:50:42,080 --> 00:50:44,160
exception to play the tape for 
the jury. 

1049
00:50:44,440 --> 00:50:49,120
Now let's look at scenario. 
BA woman calls 911. 

1050
00:50:49,640 --> 00:50:51,560
He sounds incredibly uset. 
He's crying. 

1051
00:50:51,920 --> 00:50:54,840
He tells the operator, my 
husband beat me U 10 minutes 

1052
00:50:54,840 --> 00:50:57,040
ago. 
He grabbed his keys, got into a 

1053
00:50:57,040 --> 00:50:59,160
blue pickup truck, and he just 
drove away. 

1054
00:51:00,000 --> 00:51:02,600
He's wearing a blue shirt. 
Same husband, same charge. 

1055
00:51:02,880 --> 00:51:05,640
She refuses to testify. 
Can the prosecutor play this 

1056
00:51:05,640 --> 00:51:06,960
tape? 
Absolutely not. 

1057
00:51:06,960 --> 00:51:09,120
The Constitution walks it. 
Let's look at the primary 

1058
00:51:09,120 --> 00:51:11,320
purpose here. 
The physical emergency is over. 

1059
00:51:11,320 --> 00:51:13,440
The immediate threat. 
The husband has left the scene. 

1060
00:51:13,440 --> 00:51:15,040
There is no act of violence 
occurring. 

1061
00:51:15,480 --> 00:51:17,920
When she describes the truck in 
the shirt, she is providing 

1062
00:51:17,920 --> 00:51:20,520
historical facts to help the 
police track him down, catch him

1063
00:51:20,520 --> 00:51:23,240
and eventually prosecute him. 
She has transitioned from a 

1064
00:51:23,240 --> 00:51:27,400
victim crying for help into a 
witness building a factual 

1065
00:51:27,400 --> 00:51:29,920
record. 
Exactly because she is 

1066
00:51:30,000 --> 00:51:32,560
functioning as a witness for the
state, her statement is 

1067
00:51:32,560 --> 00:51:36,200
classified as testimonial. 
If she refuses to testify at 

1068
00:51:36,200 --> 00:51:39,240
trial and the defendant never 
had a chance to cross examine 

1069
00:51:39,240 --> 00:51:42,400
her, the prosecutor is legally 
forbidden from playing that 

1070
00:51:42,400 --> 00:51:45,480
tape. 
And here is the brutal part for 

1071
00:51:45,480 --> 00:51:47,720
prosecutors. 
It doesn't matter that she was 

1072
00:51:47,720 --> 00:51:49,200
crying. 
It doesn't matter that the 

1073
00:51:49,200 --> 00:51:51,600
statement Florida State 
qualifies as an excited 

1074
00:51:51,600 --> 00:51:56,080
utterance under Rule eight O 3. 
The hearsay rule says admit, but

1075
00:51:56,080 --> 00:51:59,720
the Constitution says block. 
And the Constitution always 

1076
00:51:59,720 --> 00:52:02,160
wins. 
It is a stunning, brilliant 

1077
00:52:02,160 --> 00:52:05,080
distinction that forces 
prosecutors to rely on live 

1078
00:52:05,080 --> 00:52:08,480
witnesses rather than audio 
recordings of domestic violence.

1079
00:52:09,040 --> 00:52:11,720
Are there other context where 
this primary purpose test gets 

1080
00:52:11,720 --> 00:52:13,160
complicated? 
What about children? 

1081
00:52:13,480 --> 00:52:15,480
Children complicate everything 
in the law. 

1082
00:52:15,480 --> 00:52:18,120
Look at the Supreme Court case 
Ohio versus Clark. 

1083
00:52:18,360 --> 00:52:21,160
You had a situation involving a 
very young preschooler. 

1084
00:52:21,400 --> 00:52:24,520
A teacher noticed suspicious 
bruising on the three-year old 

1085
00:52:24,520 --> 00:52:26,160
child and asked who did this to 
you? 

1086
00:52:26,160 --> 00:52:27,680
The child named the mother's 
boyfriend. 

1087
00:52:27,920 --> 00:52:30,240
The question for the court was 
is a three-year old child's 

1088
00:52:30,240 --> 00:52:32,280
answer to a preschool teacher 
testimonial? 

1089
00:52:32,400 --> 00:52:35,280
I mean, a three-year old has no 
concept of building a 

1090
00:52:35,280 --> 00:52:37,600
prosecutorial record. 
And that is exactly what the 

1091
00:52:37,600 --> 00:52:40,040
court concluded. 
Statements made by very young 

1092
00:52:40,040 --> 00:52:43,560
children to civilian caregivers 
like teachers or doctors, are 

1093
00:52:43,560 --> 00:52:47,040
generally non testimonial. 
The primary purpose of the 

1094
00:52:47,040 --> 00:52:50,280
teacher asking the question was 
to protect a vulnerable child 

1095
00:52:50,280 --> 00:52:54,360
from immediate ongoing harm, not
to gather evidence for a grand 

1096
00:52:54,360 --> 00:52:56,960
jury. 
So the Confrontation clause did 

1097
00:52:56,960 --> 00:52:59,960
not block the child's statement.
What about our old friend, the 

1098
00:52:59,960 --> 00:53:02,280
dying declaration? 
Let's say I'm shot. 

1099
00:53:02,880 --> 00:53:05,360
I know I'm dying. 
I look at the police officer 

1100
00:53:05,360 --> 00:53:08,240
kneeling next to me and I gasp 
out the name of my killer. 

1101
00:53:08,560 --> 00:53:11,840
My primary purpose is obviously 
to ensure my killer is brought 

1102
00:53:11,840 --> 00:53:14,040
to justice. 
That is the definition of 

1103
00:53:14,040 --> 00:53:17,520
building a prosecutorial record.
It is wildly testimonial. 

1104
00:53:17,680 --> 00:53:19,800
Does Crawford block dying 
declarations? 

1105
00:53:19,800 --> 00:53:22,880
It's the great paradox. 
By all modern logic, a dying 

1106
00:53:22,880 --> 00:53:25,200
declaration made to a police 
officer is completely 

1107
00:53:25,280 --> 00:53:27,800
testimonial. 
However, the Supreme Court has 

1108
00:53:27,800 --> 00:53:31,320
strongly signaled in dicta that 
dying declarations are a sui 

1109
00:53:31,320 --> 00:53:34,160
generous historical exception to
the Crawford Rule entirely. 

1110
00:53:34,440 --> 00:53:37,840
A grandfather clause. 
Exactly because the dying 

1111
00:53:37,840 --> 00:53:41,120
declaration exception was firmly
established at common law at the

1112
00:53:41,120 --> 00:53:44,240
exact time the Framers drafted 
the 6th Amendment, the Court 

1113
00:53:44,240 --> 00:53:47,000
assumes the Framers never 
intended the Confrontation 

1114
00:53:47,000 --> 00:53:50,480
Clause to override it. 
It is the one historical anomaly

1115
00:53:50,480 --> 00:53:52,960
that survives the Crawford 
Revolution intact. 

1116
00:53:53,640 --> 00:53:56,320
We have covered an immense, 
staggering amount of doctrinal 

1117
00:53:56,320 --> 00:53:58,200
ground today. 
We have moved from the 

1118
00:53:58,200 --> 00:54:01,480
philosophy of unavailable 
phantoms to the constitutional 

1119
00:54:01,480 --> 00:54:03,760
rights of the accused. 
But I want to bring it all 

1120
00:54:03,760 --> 00:54:06,160
together into a final, 
actionable framework. 

1121
00:54:06,520 --> 00:54:09,920
If you are walking into a brutal
evidence final exam or sitting 

1122
00:54:09,920 --> 00:54:13,200
down for the multi State Bar, 
you cannot just rely on vague 

1123
00:54:13,200 --> 00:54:15,880
concepts. 
You need a mental algorithm, a 

1124
00:54:15,880 --> 00:54:19,400
day 5 hearsay protocol. 
I cannot stress enough how vital

1125
00:54:19,560 --> 00:54:22,560
disciplined adherence to this 
specific order of operations is.

1126
00:54:22,560 --> 00:54:24,120
If you jump around, you'll miss 
a trap. 

1127
00:54:24,320 --> 00:54:25,880
If you follow the checklist you 
will pass. 

1128
00:54:25,880 --> 00:54:28,600
Step one, the definition. 
You look at the fact pattern. 

1129
00:54:28,720 --> 00:54:30,360
Is this statement actually 
hearsay? 

1130
00:54:30,400 --> 00:54:33,320
Is it an out of court statement 
made by a human being offered to

1131
00:54:33,320 --> 00:54:35,240
prove the truth of the matter 
asserted in the text? 

1132
00:54:35,560 --> 00:54:38,920
If no, admit it. 
If yes, move to Step 2. 

1133
00:54:39,040 --> 00:54:43,040
Step 2. 
The exemptions Is it explicitly 

1134
00:54:43,040 --> 00:54:46,560
exempt under Rule 8 O 1D? 
Things like opposing party 

1135
00:54:46,560 --> 00:54:49,520
admissions or certain prior 
sworn inconsistent statements. 

1136
00:54:49,880 --> 00:54:52,200
The law treats these as simply 
not hearsay. 

1137
00:54:52,360 --> 00:54:55,160
If yes, admit it. 
If no, you are officially in 

1138
00:54:55,160 --> 00:54:57,560
hearsay territory. 
Move to Step 3. 

1139
00:54:57,720 --> 00:55:00,880
Step 3. 
The tomb is the declarant 

1140
00:55:00,880 --> 00:55:03,440
unavailable. 
You run your Prism diagnostic 

1141
00:55:03,920 --> 00:55:07,000
privilege, refusal, incapacity, 
subpoena, failure, memory. 

1142
00:55:07,400 --> 00:55:09,760
You check for the forfeiture 
trap if they're genuinely 

1143
00:55:09,760 --> 00:55:12,360
legally unavailable. 
You check your eight O 4 tune 

1144
00:55:12,360 --> 00:55:14,960
rules Dying declaration 
Statement against interest 

1145
00:55:14,960 --> 00:55:18,000
former testimony. 
Step 4, the ghosts, if they are 

1146
00:55:18,000 --> 00:55:20,120
available or if the tomb 
exceptions don't fit, you move 

1147
00:55:20,120 --> 00:55:22,920
to rule 8 O3 Does it fit a ghost
exception? 

1148
00:55:23,240 --> 00:55:25,520
These are the spontaneous 
family, present sense 

1149
00:55:25,520 --> 00:55:28,240
impression, excited utterance, 
the internal state, family state

1150
00:55:28,240 --> 00:55:31,280
of mind, medical and the paper 
trail, family business records, 

1151
00:55:31,280 --> 00:55:33,640
public records. 
Remember for these you do not 

1152
00:55:33,640 --> 00:55:35,240
care if the witness is dead or 
alive. 

1153
00:55:35,440 --> 00:55:39,240
Step 5, The final check, the 
boss fight. 

1154
00:55:40,240 --> 00:55:42,960
If it is a criminal case and the
hearsay evidence is being 

1155
00:55:42,960 --> 00:55:45,440
offered by the prosecutor 
against the defendant, you must 

1156
00:55:45,440 --> 00:55:47,840
ask, does the confrontation 
clause block it? 

1157
00:55:48,520 --> 00:55:50,920
Is the primary purpose of the 
statement testimonial? 

1158
00:55:51,160 --> 00:55:53,840
If yes, it is constitutionally 
blocked, period. 

1159
00:55:54,000 --> 00:55:56,800
Unless the defendant had a prior
chance to cross examine that 

1160
00:55:56,800 --> 00:55:59,880
unavailable witness. 
If you run that five step 

1161
00:55:59,880 --> 00:56:03,400
algorithm ruthlessly on every 
single hearsay question you 

1162
00:56:03,400 --> 00:56:06,880
encounter, you will navigate the
muddiest waters of evidence law 

1163
00:56:06,880 --> 00:56:09,840
with absolute precision. 
I want to congratulate you on 

1164
00:56:09,840 --> 00:56:12,680
surviving the deepest, most 
complex architecture of evidence

1165
00:56:12,680 --> 00:56:14,240
law. 
You have mastered the life 

1166
00:56:14,240 --> 00:56:15,720
lines. 
You know how to resurrect the 

1167
00:56:15,720 --> 00:56:17,720
phantom witness. 
But I want to leave you with a 

1168
00:56:17,720 --> 00:56:20,360
final provocative thought to 
Mull over before our next 

1169
00:56:20,360 --> 00:56:22,680
session. 
Today, we focused entirely on 

1170
00:56:22,680 --> 00:56:26,000
human communication. 
The spoken words, the frantic 91

1171
00:56:26,000 --> 00:56:28,880
calls, the corporate paper 
trails drafted by employees. 

1172
00:56:29,120 --> 00:56:31,720
We focused on the ghosts and 
tombs of human declarants. 

1173
00:56:32,280 --> 00:56:34,560
But what happens when the 
evidence isn't human at all? 

1174
00:56:34,880 --> 00:56:36,960
What happens when the evidence 
is entirely fizzy? 

1175
00:56:37,200 --> 00:56:41,040
We have a dangerous tendency in 
modern litigation to just assume

1176
00:56:41,040 --> 00:56:43,400
that physical things are exactly
what they appear to be. 

1177
00:56:43,680 --> 00:56:45,560
We trust the object. 
Exactly. 

1178
00:56:46,000 --> 00:56:48,600
But how do you prove a piece of 
evidence is actually what you 

1179
00:56:48,600 --> 00:56:50,680
claim it is in a modern 
courtroom? 

1180
00:56:51,520 --> 00:56:54,080
If I hand the judge a bloody 
knife, how do I prove it's the 

1181
00:56:54,080 --> 00:56:56,880
same knife from the crime scene 
and not one I bought at a 

1182
00:56:56,880 --> 00:56:59,240
hardware store? 
If I introduce an audio 

1183
00:56:59,240 --> 00:57:02,280
recording, how do I prove it 
hasn't been altered by AI? 

1184
00:57:02,720 --> 00:57:05,720
How do you prove a physical 
contract on the mahogany desk is

1185
00:57:05,720 --> 00:57:08,960
the real contract and not a 
flawless high resolution 

1186
00:57:08,960 --> 00:57:12,320
forgery? 
We have mastered the words, but 

1187
00:57:12,320 --> 00:57:14,760
next time we have to master the 
objects. 

1188
00:57:15,200 --> 00:57:18,200
Get ready because our next deep 
dive will plunge into the best 

1189
00:57:18,200 --> 00:57:21,160
evidence rule, the chain of 
custody, and the incredibly high

1190
00:57:21,160 --> 00:57:23,920
stakes of authentication. 
Thank you for joining us on this

1191
00:57:23,920 --> 00:57:25,680
deep dive into the hearsay 
exceptions. 

1192
00:57:25,920 --> 00:57:29,080
Keep running that five step 
diagnostic, trust the protocol, 

1193
00:57:29,080 --> 00:57:31,440
and we will see you next time. 
Welcome, everyone. 

1194
00:57:31,720 --> 00:57:35,240
So we've already hammered home 
that hearsay is, as a general 

1195
00:57:35,240 --> 00:57:38,720
rule, inadmissible in court. 
It's a huge roadblock for any 

1196
00:57:38,720 --> 00:57:41,160
trial lawyer. 
But what happens when that piece

1197
00:57:41,160 --> 00:57:44,280
of hearsay is, well, the key to 
your whole case? 

1198
00:57:44,520 --> 00:57:47,160
Is it just game over? 
Not by a long shot. 

1199
00:57:47,440 --> 00:57:50,520
Today we're diving into the 
critical life lines known as 

1200
00:57:50,600 --> 00:57:52,600
hearsay exceptions. 
Let's get into it. 

1201
00:57:53,360 --> 00:57:55,080
So let's just imagine this for a
second. 

1202
00:57:55,320 --> 00:57:58,680
Your entire case, everything 
you've worked on, hangs on one 

1203
00:57:58,680 --> 00:58:01,320
single piece of evidence. 
And then you hear those dreaded 

1204
00:58:01,320 --> 00:58:03,800
words from opposing counsel. 
Objection. 

1205
00:58:04,080 --> 00:58:05,720
Hearsay. 
Is that it? 

1206
00:58:06,000 --> 00:58:07,560
Is your case just dead in the 
water? 

1207
00:58:07,880 --> 00:58:09,600
Do you just pack up your 
briefcase and at home? 

1208
00:58:10,240 --> 00:58:12,920
Well, while that general rule 
excluding hearsay is incredibly 

1209
00:58:12,920 --> 00:58:16,280
powerful, it is not absolute. 
There are essential, and I mean 

1210
00:58:16,360 --> 00:58:18,880
essential tools for saving that 
crucial evidence. 

1211
00:58:19,000 --> 00:58:20,800
And that is exactly what we're 
talking about today. 

1212
00:58:21,280 --> 00:58:25,480
You know this quote right here, 
it perfectly sums up the 

1213
00:58:25,480 --> 00:58:29,480
thinking, the entire theory 
behind all hearsay exceptions, 

1214
00:58:29,760 --> 00:58:32,840
the law is basically saying, 
look, we get it, this is an out 

1215
00:58:32,840 --> 00:58:36,280
of court statement. 
It's a ghost, but we think it's 

1216
00:58:36,280 --> 00:58:39,120
a trustworthy ghost. 
Every single exception we are 

1217
00:58:39,120 --> 00:58:41,640
going to discuss today is a 
loophole, sure, but it's a 

1218
00:58:41,640 --> 00:58:44,840
loophole that is justified by 
this one powerful idea, 

1219
00:58:45,040 --> 00:58:47,760
reliability. 
OK, before we go a step further,

1220
00:58:47,760 --> 00:58:50,360
we have to get this straight. 
It's a crucial distinction. 

1221
00:58:50,720 --> 00:58:53,160
On one side, you have 
exemptions, which we talked 

1222
00:58:53,160 --> 00:58:56,080
about before. 
Under rule AO1D, those things 

1223
00:58:56,080 --> 00:58:58,800
are legally defined as not 
hearsay to begin with. 

1224
00:58:58,920 --> 00:59:00,680
They never even get a hearsay 
label. 

1225
00:59:01,040 --> 00:59:03,680
But what we're talking about 
now, exceptions under rules 

1226
00:59:03,680 --> 00:59:07,160
eight O 3 and eight O 4, they 
work totally differently Here. 

1227
00:59:07,160 --> 00:59:11,000
We actually admit, we concede. 
Yep, this statement is 100% 

1228
00:59:11,000 --> 00:59:12,960
hearsay. 
But then we argue that it's got 

1229
00:59:12,960 --> 00:59:15,040
such a high degree of 
reliability that it should be 

1230
00:59:15,040 --> 00:59:17,480
allowed in any way. 
I promise you, confusing these 

1231
00:59:17,480 --> 00:59:20,240
two on an exam is a guaranteed 
way to lose a lot of points. 

1232
00:59:20,800 --> 00:59:24,520
So let's start by metaphorically
grabbing our shovels and heading

1233
00:59:24,520 --> 00:59:27,960
into the first big category of 
exceptions, rule eight O 4. 

1234
00:59:28,320 --> 00:59:30,800
I like to call these the tomb 
exceptions. 

1235
00:59:31,080 --> 00:59:33,760
And why is that? 
Because to use any of them, the 

1236
00:59:33,760 --> 00:59:36,280
person who actually made the 
statement, we call them the 

1237
00:59:36,280 --> 00:59:38,400
declarant. 
They have to be unavailable to 

1238
00:59:38,400 --> 00:59:40,680
testify in court. 
We're literally dealing with 

1239
00:59:40,880 --> 00:59:45,080
testimonial ghosts. 
So the absolute first step, the 

1240
00:59:45,080 --> 00:59:48,560
gateway to using any Rule 84 
exception, is that you have to 

1241
00:59:48,560 --> 00:59:51,000
prove to the judge that the 
declarant is legally 

1242
00:59:51,000 --> 00:59:53,800
unavailable. 
Now, a really common mistake is 

1243
00:59:53,800 --> 00:59:56,280
to think that unavailable just 
means the person has died. 

1244
00:59:56,600 --> 00:59:59,400
And while death certainly 
counts, the legal definition is 

1245
00:59:59,400 --> 01:00:00,920
actually way, way bigger than 
that. 

1246
01:00:01,240 --> 01:00:03,640
And to help you remember the 
ways to establish 

1247
01:00:03,640 --> 01:00:06,520
unavailability, there's a great 
mnemonic, PRISM. 

1248
01:00:07,120 --> 01:00:12,520
Think PRISMP is for privilege, 
like when someone invokes their 

1249
01:00:12,520 --> 01:00:14,600
5th amendment right against self
incramation. 

1250
01:00:15,200 --> 01:00:18,920
R is for a direct refusal to 
testify, even when a judge 

1251
01:00:18,920 --> 01:00:22,600
orders them to. 
I is for incapacity, that's 

1252
01:00:22,600 --> 01:00:26,640
death, a coma, a serious 
illness, S is for subpoena 

1253
01:00:26,640 --> 01:00:30,480
failure, meaning you just can't 
find the witness, and M is for a

1254
01:00:30,480 --> 01:00:33,680
genuine lack of memory. 
You have to check one of these 

1255
01:00:33,680 --> 01:00:37,080
prism boxes before you can even 
think about using the powerful 

1256
01:00:37,080 --> 01:00:39,040
exceptions waiting for you 
inside. 

1257
01:00:39,040 --> 01:00:41,200
Rule 804. 
OK, now let's talk about the 

1258
01:00:41,200 --> 01:00:45,040
most famous, the most dramatic, 
and probably the most tested 

1259
01:00:45,040 --> 01:00:47,920
hearsay exception of them all, 
the dying Declaration. 

1260
01:00:48,160 --> 01:00:51,680
The theory behind it is, well, 
it's powerful, even if it feels 

1261
01:00:51,680 --> 01:00:54,760
a little old fashioned today. 
The law just presumes that a 

1262
01:00:54,760 --> 01:00:57,520
person who truly believes 
they're about to die isn't going

1263
01:00:57,520 --> 01:00:59,120
to lie. 
They're going to be compelled to

1264
01:00:59,120 --> 01:01:02,160
tell the truth. 
Now, to get this into evidence, 

1265
01:01:02,160 --> 01:01:06,000
you have to prove three specific
things. 1st, and this is the big

1266
01:01:06,000 --> 01:01:09,240
one, the declarant must have a 
subjective belief that their 

1267
01:01:09,240 --> 01:01:11,520
death is imminent, that it's 
right around the corner. 

1268
01:01:11,640 --> 01:01:13,880
It doesn't matter what the 
doctors think, it only matters 

1269
01:01:13,880 --> 01:01:16,600
what's going on in the 
declarant's head. 2nd, and this 

1270
01:01:16,600 --> 01:01:19,320
always surprises people, they 
don't actually have to die. 

1271
01:01:19,480 --> 01:01:22,840
And 3rd, the statement itself 
has to be about the cause or 

1272
01:01:22,840 --> 01:01:25,480
circumstances of what they 
believe is their impending 

1273
01:01:25,480 --> 01:01:27,880
death. 
OK, everybody listen up. 

1274
01:01:28,080 --> 01:01:31,440
Pencils down for a second. 
This is the massive, enormous 

1275
01:01:31,440 --> 01:01:34,160
exam trap that catches so many 
smart students. 

1276
01:01:34,840 --> 01:01:38,520
You cannot, I repeat, cannot use
a dying declaration in just any 

1277
01:01:38,520 --> 01:01:41,520
criminal trial. 
It is only admissible into very 

1278
01:01:41,520 --> 01:01:45,880
specific situations. 
One, any civil case or two, a 

1279
01:01:45,880 --> 01:01:49,480
criminal homicide case. 
That's it, full stop. 

1280
01:01:49,640 --> 01:01:51,480
You have to memorize this 
limitation. 

1281
01:01:51,520 --> 01:01:54,920
It will save you on an exam. 
All right, let's see how this 

1282
01:01:54,920 --> 01:01:58,400
trap actually plays out. 
A man gets shot, he thinks he's 

1283
01:01:58,400 --> 01:02:02,680
dying, and he gasps out. 
Dave shot me, then he survives. 

1284
01:02:02,800 --> 01:02:06,080
So Dave gets charged, but with 
attempted murder. 

1285
01:02:06,320 --> 01:02:08,320
Can the prosecutor use that 
statement in court? 

1286
01:02:08,480 --> 01:02:10,240
Well, let's just run through the
analysis. 

1287
01:02:10,560 --> 01:02:12,080
Is this a civil case? 
Nope. 

1288
01:02:12,400 --> 01:02:14,560
Is it a criminal homicide case? 
No. 

1289
01:02:14,560 --> 01:02:17,720
It's attempted murder, so 
therefore the dying declaration 

1290
01:02:17,720 --> 01:02:20,480
exception does not apply. 
That evidence is blocked. 

1291
01:02:20,680 --> 01:02:23,440
Simple as that. 
OK, so we're leaving the 

1292
01:02:23,440 --> 01:02:26,600
graveyard of rule eight O 4 now,
and we're entering a totally 

1293
01:02:26,600 --> 01:02:28,520
different world. 
Rule eight O 3. 

1294
01:02:29,040 --> 01:02:31,920
For this whole set of 
exceptions, we do not care one 

1295
01:02:31,920 --> 01:02:34,240
bit whether the declarant is 
available or not. 

1296
01:02:34,440 --> 01:02:36,640
They could be sitting right 
there in the courtroom. 

1297
01:02:36,880 --> 01:02:39,560
With these, the reliability 
doesn't come from the speaker's 

1298
01:02:39,560 --> 01:02:42,960
status, but from the inherent 
trustworthiness of the context 

1299
01:02:42,960 --> 01:02:46,400
in which the statement was made.
A classic example of a rule 

1300
01:02:46,400 --> 01:02:49,480
eight O 3 exception, One you'll 
see all the time is the business

1301
01:02:49,480 --> 01:02:51,760
records exception. 
And the thinking here is pretty 

1302
01:02:51,760 --> 01:02:53,800
simple. 
Businesses need accurate records

1303
01:02:53,800 --> 01:02:56,440
to function to make money, so 
that gives their records an 

1304
01:02:56,440 --> 01:02:58,800
inherent reliability. 
To get a business record 

1305
01:02:58,800 --> 01:03:00,960
admitted, you'll have a 
custodian testify to a few 

1306
01:03:00,960 --> 01:03:04,160
things that was made at or near 
the time of the event, that it 

1307
01:03:04,160 --> 01:03:06,440
was made by someone with 
knowledge, and it was kept as 

1308
01:03:06,440 --> 01:03:08,760
part of a regularly conducted 
business activity. 

1309
01:03:09,280 --> 01:03:12,400
And this brings us to another 
classic exam trap, what we call 

1310
01:03:12,400 --> 01:03:15,120
hearsay within hearsay or double
hearsay. 

1311
01:03:15,480 --> 01:03:18,560
So look, if a Business Report 
says the cashier noted the floor

1312
01:03:18,560 --> 01:03:20,320
was wet, that's probably coming 
in. 

1313
01:03:20,320 --> 01:03:21,880
The cashier is part of the 
business. 

1314
01:03:21,880 --> 01:03:25,080
They have a duty to report. 
But what if the report says a 

1315
01:03:25,080 --> 01:03:27,880
random customer told the cashier
the floor was wet? 

1316
01:03:28,120 --> 01:03:31,000
Ah, now we have a problem. 
That customer statement is a 

1317
01:03:31,000 --> 01:03:33,840
whole other layer of hearsay. 
And for the entire report to 

1318
01:03:33,840 --> 01:03:36,840
come in, that customer statement
has to find its own separate 

1319
01:03:36,840 --> 01:03:40,480
hearsay exception. 
And now we get to the final and,

1320
01:03:40,480 --> 01:03:43,840
frankly, most important part of 
our analysis because everything 

1321
01:03:43,840 --> 01:03:46,640
we've talked about so far, all 
these detailed exceptions and 

1322
01:03:46,640 --> 01:03:50,400
rules, can be completely wiped 
out by a single constitutional 

1323
01:03:50,400 --> 01:03:52,840
dragon. 
This, my friends, is the final 

1324
01:03:52,840 --> 01:03:56,560
boss fight, the 6th Amendment's 
Confrontation Clause, brought to

1325
01:03:56,560 --> 01:04:00,280
life by the landmark case 
Crawford V Washington Core. 

1326
01:04:00,280 --> 01:04:02,960
Holding in Crawford is just 
profound. 

1327
01:04:03,320 --> 01:04:06,360
It says that in a criminal case,
a defendant's 6th Amendment 

1328
01:04:06,360 --> 01:04:09,520
right to confront their accuser 
Trump's the rules of evidence. 

1329
01:04:10,280 --> 01:04:13,800
What does that mean in practice?
It means a prosecutor can't just

1330
01:04:13,800 --> 01:04:16,840
use an otherwise valid hearsay 
exception to sneak in an 

1331
01:04:16,840 --> 01:04:19,040
accusation. 
If the defendant hasn't had a 

1332
01:04:19,040 --> 01:04:22,960
chance to cross examine that 
accuser, the Constitution wins. 

1333
01:04:23,640 --> 01:04:27,240
Justice Scalia put it perfectly.
He said dispensing with 

1334
01:04:27,240 --> 01:04:31,400
confrontation because testimony 
is obviously reliable is akin to

1335
01:04:31,400 --> 01:04:34,200
dispensing with jury trial 
because the defendant is 

1336
01:04:34,240 --> 01:04:36,360
obviously guilty. 
The point is that the 

1337
01:04:36,360 --> 01:04:38,960
Confrontation Clause is about 
procedure. 

1338
01:04:39,200 --> 01:04:41,680
It's a guarantee. 
It doesn't ask a judge to guess 

1339
01:04:41,680 --> 01:04:44,480
about reliability. 
It demands that reliability be 

1340
01:04:44,480 --> 01:04:47,680
tested in what he called the 
Crucible of cross examination. 

1341
01:04:48,200 --> 01:04:51,240
So this Crawford rule, it 
doesn't apply to all hearsay. 

1342
01:04:51,560 --> 01:04:54,280
It only kicks in for a specific 
kind of statement, what the 

1343
01:04:54,280 --> 01:04:56,120
court calls a testimonial 
statement. 

1344
01:04:56,360 --> 01:04:58,920
So what is that? 
Well, a statement is testimonial

1345
01:04:58,920 --> 01:05:01,520
when its primary purpose is to 
establish past events 

1346
01:05:01,640 --> 01:05:04,120
specifically for a future 
criminal prosecution. 

1347
01:05:04,600 --> 01:05:07,160
Think about a formal police 
interrogation after an emergency

1348
01:05:07,160 --> 01:05:09,600
is over or testimony given to a 
grand jury. 

1349
01:05:09,960 --> 01:05:11,160
That's the stuff we're talking 
about. 

1350
01:05:11,800 --> 01:05:13,960
Let's look at this classic bar 
exam hypo. 

1351
01:05:14,160 --> 01:05:16,080
It makes the distinction so 
clear. 

1352
01:05:16,240 --> 01:05:19,640
On the left, you've got a 911 
call happening during an attack.

1353
01:05:19,800 --> 01:05:21,440
My husband is punching me right 
now. 

1354
01:05:21,440 --> 01:05:23,520
Send help. 
What's the primary purpose 

1355
01:05:23,520 --> 01:05:25,720
there? 
It's to get help to resolve an 

1356
01:05:25,720 --> 01:05:28,760
ongoing emergency. 
That's non testimonial and it 

1357
01:05:28,760 --> 01:05:30,240
can probably come in under an 
exception. 

1358
01:05:30,520 --> 01:05:32,760
But look at the right. 
The emergency is over. 

1359
01:05:32,920 --> 01:05:35,560
The caller says my husband beat 
me up 10 minutes ago. 

1360
01:05:35,680 --> 01:05:38,080
He just drove away. 
Now, what's the purpose? 

1361
01:05:38,440 --> 01:05:40,880
Get shifted? 
Now she's recounting historical 

1362
01:05:40,880 --> 01:05:43,600
facts to help the police 
investigate and prosecute. 

1363
01:05:43,920 --> 01:05:46,840
That statement is testimonial, 
and Crawford's going to block it

1364
01:05:46,840 --> 01:05:49,880
if she doesn't testify in court.
OK, you made it. 

1365
01:05:50,040 --> 01:05:51,560
You survived the hearsay 
gauntlet. 

1366
01:05:51,720 --> 01:05:53,680
You've been through the tombs of
rule eight O 4. 

1367
01:05:53,800 --> 01:05:56,160
You've walked the land of the 
living in Rule eight O 3, and 

1368
01:05:56,160 --> 01:05:58,240
you have faced down the Crawford
dragon. 

1369
01:05:58,480 --> 01:06:01,240
So what's your reward? 
It's the single most important 

1370
01:06:01,240 --> 01:06:03,120
tool you can have for any 
evidence exam. 

1371
01:06:03,200 --> 01:06:05,880
A solid attack plan. 
And here it is. 

1372
01:06:05,880 --> 01:06:09,080
The five step protocol for any 
hearsay problem you see on an 

1373
01:06:09,080 --> 01:06:11,400
exam. 
Follow it in this exact order 

1374
01:06:11,520 --> 01:06:13,120
every time. 
Step one. 

1375
01:06:13,360 --> 01:06:14,960
Is it even hearsay to begin 
with? 

1376
01:06:15,280 --> 01:06:17,400
Out of court statement offered 
for the truth of the matter 

1377
01:06:17,400 --> 01:06:18,760
asserted. 
Step 2. 

1378
01:06:18,960 --> 01:06:21,320
If it is, is it exempt under 8 O
1D? 

1379
01:06:21,640 --> 01:06:23,960
Step three? 
If not, is our declarant 

1380
01:06:23,960 --> 01:06:26,680
unavailable? 
Check PRSM and open the door to 

1381
01:06:26,680 --> 01:06:28,600
rule eight O 4. 
Step 4. 

1382
01:06:28,680 --> 01:06:31,480
Or does the rule eight O 3 
exception apply where we don't 

1383
01:06:31,480 --> 01:06:34,080
care about availability? 
And finally, Step 5. 

1384
01:06:34,080 --> 01:06:37,360
The final boss check is this a 
criminal case with a testimonial

1385
01:06:37,360 --> 01:06:39,000
statement? 
Because if it is, the 

1386
01:06:39,000 --> 01:06:40,840
confrontation clause might block
it anyway. 

1387
01:06:41,240 --> 01:06:44,440
This structure, this protocol is
the key to mastering hearsay. 

1388
01:06:44,760 --> 01:06:48,320
And that really just leaves us 
with one last big question to 

1389
01:06:48,320 --> 01:06:50,720
think about. 
We've seen these two systems 

1390
01:06:50,720 --> 01:06:53,160
working side by side. 
You have the evidence rules, 

1391
01:06:53,320 --> 01:06:56,720
which are all built on finding 
these guarantees of reliability.

1392
01:06:57,040 --> 01:06:59,320
And then you have the 
Constitution, which demands the 

1393
01:06:59,320 --> 01:07:01,800
procedure of a face to face 
confrontation. 

1394
01:07:02,280 --> 01:07:04,400
So when these two powerful 
principles collide in a 

1395
01:07:04,400 --> 01:07:07,520
courtroom, which one do you 
think truly serves the higher 

1396
01:07:07,520 --> 01:07:09,640
purpose of justice? 
Some to think about.