The petitioner rejected the offer and moved to exclude Mr. Lee’s declaration.In its motions to exclude, the petitioner argued that failing to make Mr. Lee available for cross-examination violated the PTAB’s discovery rules, that Mr. Lee’s declaration was inadmissible hearsay, and that submitting a transcript of the Korean examination—in place of cross-examination by its IPR counsel—would prejudice the petitioner. In response, the patent owner argued that the Korean examination qualified as a “cross-examination” in the IPR proceedings and, alternatively, that a hearsay exception applied under FRE 804(b)(1) because the petitioner’s Korean counsel had “an opportunity and similar motive to develop” Mr. Lee’s declaration testimony in Korea.The PTAB agreed with the petitioner and excluded Mr. Lee’s declaration.

Such articles can still be probative of what a skilled person would have understood at the time of filing" CVC contended, citing Plant Genetic, 315 F.3d at 1344.Finally, turning to Dr. Marrafini's testimony, CVC argued that deposition testimony is admissible under "various hearsay exceptions" (Fed. R. Evid. 804(b)(1),(3); Fed. R. Civ. P. 32(a)(8)) and ToolGen had had the opportunity to cross-examine him on this testimony and waived it, citing Fed. R. Evid. 801(d), 803(b)(and making the further point that to the extent that Dr. Marrafini is indeed not available this provides further support for the Board's consideration of this testimony, under Fed. R. Evid. 804(b)(1); Cf. Fed. R. Civ. P. 32(a)(4)).ToolGen's Reply addresses CVC's argument that expert witnesses are permitted to rely on assumptions by asserting that they are not permitted to rely on incorrect or unsupported legal assumptions or ones that are contrary to facts the witness admits, citing Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 389 (5th Cir. 2009).

During the hearing, the District Court admitted—over Ojudun’s hearsay objection—a video recording of Gray’s confession and permitted Medina to testify about Gray’s statement. The court reasoned that Gray’s confession constitutes a ‘statement against interest’ under Federal Rule of Evidence 804(b)(3),[1] and that Gray was unavailable to testify, having invoked his Fifth Amendment right against self-incrimination. The District Court found that Ojudun had violated the conditions of supervised release by engaging in bank fraud and sentenced him to 30 months’ imprisonment.The Court’s Decision On appeal, Ojudun raised two arguments.

One widely-employed exception to the hearsay rule is where the witness who is making the statement is “unavailable” at trial, and the statement to be offered is previous sworn testimony by the witness, where all the parties to the lawsuit had the opportunity to cross-examine the witness during his previous testimony (like in a deposition). (Federal Rule of Evidence 804(b)(1) or state law equivalent). This kind of testimony is very commonly used in civil trials.

As Prof. Colin Miller TG points out in a new post, Fed. R. Evid. 804(b)(6), applies to both sides. The Mil. R. Evid. contains the same language.

Here is an interesting thread he’s had going with Prof. Duane at Regent’s. Professor Duane by the way is one of the guru’s of presumptions and their uses, or improper uses.Back in November, I posted an entry about an e-mail sent by Regent Law School Professor James Duane to the Evidence professor listserv concerning an odd paragraph in the 2009 Advisory Committee Note to the amendment to Federal Rule of Evidence 804(b)(3). In that paragraph, the Committee indicated that it did not "need to address the relationship between Rule 804(b)(3) and the Confrontation Clause, because the requirements of this exception assure that declarations admissible under it will not be testimonial."

Here is a follow-up on a proposed change to Fed. R. Evid. 804(b)(3), a good recommendation.On April 23-24, 2009, the Advisory Committee on Evidence Rules, of the U.S. Judicial Conference, recommended a proposed amendment to Evidence Rule 804(b)(3).

On September 19, 2008, Fed. R. Evid. 502, a new evidence rule concerning the attorney-client privilege and work-product doctrine, was enacted. See Pub. L. No. 110-322, 122 Stat. 3537.Pending Rule Amendment: Fed. R. Evid. 804(b)(3) (Declarations Against Interest)The amendment process for a potential new rule is already underway. On August 8, 2008, the U.S. Judicial Conference Committee on Rules of Practice and Procedure issued a draft amendment to Fed. R. Evid. 804(b)(3) for public comment.

Testimony that goes against the witness's self-interest is perceived to have enhanced credibility. See, e.g., Fed. R. Evid. 804(b)(3) (exception to hearsay rule in the case of statements against interest). By contrast, a subsequent affidavit submitted in opposition to the summary judgment motion will serve the witness's interests.4. Reliance by the Adversary.

Reading Wahlgren as erecting a “categorical bar” on admission of former deposition testimony of party witnesses, the court declined to follow it. The court reasoned that Wahlgren’s absolute rule was out of step with the more flexible approach in federal court under the similarly worded federal rule, Federal Rule of Evidence 804(b)(1). The court found that Ford’s interest and motive was presumptively similar based on the identical nature of the issues in the cases and that Ford had not demonstrated any dissimilarity.Notwithstanding the post-argument settlement, the Supreme Court recognized the importance of the decision and the need for guidance.