The jury returned a guilty verdict on all counts. The district court sentenced Cummings to a 75-year term of imprisonment.The Appeal On appeal, Cummings challenged the district court’s admission of Volcy’s testimony on the grounds that it constituted hearsay under Federal Rule of Evidence 802 and was not subject to an enumerated exception. The Second Circuit held: (1) that Cummings had not waived his hearsay claim, notwithstanding counsel’s failure to contemporaneously object at trial; (2) the district court’s failure to exclude Volcy’s evidence as hearsay was in error; and (3) that error was not harmless.Waiver Federal Rule of Evidence 103 requires parties to timely and specifically object to an evidentiary ruling.

As this argument was not addressed by the parties, it is difficult for us to make the call here except to note that the document may not even be hearsay."The panel goes on to hold, nevertheless, that the document could be admitted even for hearsay purposes under FRE802(8) (public records) or FRE802(6) (business records). "The district court erred in refusing to allow plaintiff to introduce into the record the employment application of a coworker.

Finally, the Board explained that Mr. Lee’s “understanding” that he would only be examined in Korea was not “an extraordinary circumstance” that could justify his unavailability.The PTAB also excluded Mr. Lee’s declaration as inadmissible hearsay under FRE 801 and 802 because it included out-of-court statements offered for their truth. An exception under FRE 804(b)(1) did not apply because the petitioner did not have “an opportunity ... to develop” Mr. Lee’s testimony by cross-examination.

Finally, ToolGen asserted that none of these exhibits were authenticated by Broad's expert witness, Dr. Seeger who "[did] not profess to have any knowledge of the aforementioned exhibits."ToolGen's second basis for its Motion to Exclude is related to Exhibit Nos. 2708, 2710, 2716, 2734, 2751, 2770, 2771, 2772, 2773, 2775, 2777, 2780, 2781, 2782, 2784, 2829, 2830, 2842, and 2845, introduced in support of Broad's Substantive Motion No. 1, and also Exhibit Nos. 2704, 2705, and 2793 introduced in support of Broad's Substantive PreliminaryMotion No. 3, and was that they were hearsay and inadmissible under FRE 801 and 802. These Exhibits all contain out-of-court statements offered for the truth of the matter asserted, specifically "to prove that Broad's experiments allegedly showed successful reduction to practice of Broad's Proposed Count 2."ToolGen's third ground for its Motion to Exclude is related to Exhibits published after December 12, 2012, as being irrelevant under FRE 401 and 403 for not providing information about the state of the art at the time the application was filed.

5 Bright-line guidance has yet to emerge from the PTAB on applying the FRE to nonpatent literature, or how it may differ from district courts in this area. This article reviews exemplary cases applying the FRE’s hearsay rules in both venues to highlight the various precedent litigants should consider.At the PTABPetitioners,in some AIA trials, have overcome FRE 802 hearsay challenges to alleged publication dates printed on the nonpatent literature or associated with the nonpatent literature both with and without testimonial evidence. InEricsson Inc. v.Intellectual Ventures I LLC,6 without the need for testimonial evidence, the PTAB admitted evidence of anInstitute of Electrical and Electronics Engineerspublication’s copyright date under FRE 803(17) as a “list[], etc., generally relied on by the pubic or by persons in particular occupations” noting that ”[the publisher,] IEEE is a well-known, reputable compiler and publisher of scientific and technical publications.

But, the amendment to the ancient documents exception to the rule against hearsay contained in Fed. R. Evid. 803 (16) suggests otherwise. Fed. R. Evid. 803 (16) provides that statements in an ancient document are not excluded by the rule against hearsay (Fed. R. Evid. 802) if the document’s authenticity can be established. See Rule 803 of the Federal Rules of Evidence.

But, the amendment to the ancient documents exception to the rule against hearsay contained in Fed. R. Evid. 803 (16) suggests otherwise. Fed. R. Evid. 803 (16) provides that statements in an ancient document are not excluded by the rule against hearsay (Fed. R. Evid. 802) if the document’s authenticity can be established. SeeRule 803 of the Federal Rules of Evidence.

Briefly, FRE Rule 801(c) defines hearsay as “a statement that (1) the declarant does not make while testifying at the current trial or hearing and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” FRE 802 The Rule Against Hearsay provides that such a statement is not admissible as evidence unless the statement falls into one of the many exceptions to the hearsay rule detailed in the FRE. The ancient document exception set out in the Rule provides one such exception.Text and Origin of the Ancient Document Exception Rule 803(16) currently provides that a “statement in a document that is at least 20 years old and whose authenticity is established” is not excluded by the hearsay rule.

” Id. at *8-9. The EEOC objected to Mr. Peters’ deposition and declaration statements regarding his girlfriend’s discovery of the statements, asserting that the challenged statements constituted inadmissible hearsay under Federal Rule of Evidence 802 and were conclusory. The Court rejected this argument, finding that they were not presented for the truth of the matter asserted and that the employee actually published the claimed statements to the Internet, which were personally viewed by Mr. Peters after his girlfriend discovered the statements.

Grounds : Employee fails to present genuine issue of material fact about having a "record of" disability, where - though claiming that he was substantially limited in the major life activity of work - he failed to present any evidence addressing his vocational training, geographic area to which he had access and number and type of jobs available for person with comparable background. Doctor's note and certification do not bear on employee's ability to perform in a broad range of jobs, and contained FRE802 hearsay.Allen v. State of Utah , 483 F.3d 1057, 100 FEP 911 (10th Cir. 2007). Panel : FIGA, Tymkovich, Baldock.