Wednesday, June 19, 2013
Hearsay in the W.D. Va.
Judge Jones of the W.D. Va. has written two recent opinions in which important hearsay evidence was kept out of the case. In Electro-Mechanical Corp. v. Power Distribution Products, Inc., the Court excluded the minutes of a meeting between the plaintiff and a potential customer, finding that the substance of the document along with the timing of when it was created "indicated a lack of trustworthiness," in the language of the business records exception to the hearsay rule, FRE 803(6). In U.S. v. Benko, where Mr. Benko is accused of lying about something someone else did, and that someone else made a statement that he never did it, Mr. Benko is out of luck in trying to get that evidence admitted because the declarant has invoked the Fifth Amendment and refused to testify, the Court cannot require the government to give him immunity and make him testify, and the out-of-court statement is not admissible as a statement against interest under FRE 804(3) because the statement lacked "corroborating circumstances that clearly indicate its trustworthiness." These opinions excluding highly relevant evidence because it was too obviously self-serving to the point of unbelievability are a far cry from what Magistrate Judge Roy Wolfe described to me as the only evidentiary rule of the Western District, "let it in for what it's worth," which I heard from the bench only once in an actual case.