In Uncategorized on 05/03/2022 at 15:14

Once again, this is a nonpolitical blog. Today Judge Patrick J. (“Scholar Pat”) Urda is ruling on when and for what purpose to admit chains of e-mails in Michael C. Giambrone, Docket No. 11109-18, filed 5/3/22.

On the trial, batches of e-mail chains were offered in evidence, but Judge Scholar Pat reserved decision. Mike and family claim they were the victims of a bank robbery, whereby the bank was stolen from him and family by fraud.

The first batch are e-mails sent by testifying witnesses. Judge Scholar Pat lets them in, but not to prove the truth of what they say. “We will first deny in large part the hearsay objection to the email chains that included emails sent by testifying witnesses. Hearsay is generally ‘a statement …offered in evidence to prove the truth of the matter asserted.’ Fed. R. Evid. 801(c). Statements, including emails, providing context for other admissible statements are not hearsay because they are not offered for their truth.” Order, at p. 2. (Citations omitted, but get them for your memo of law file).

Besides, Mike waived objections in the second stip of facts. So whatever came before Mike’s chains can be used to show context of admissible evidence.

But what came after the chains that Judge Scholar Pat lets in is another story. “These emails do not provide context nor does the Commissioner offer another compelling reason to overcome the pending hearsay objection.” Order, at p. 2.

Now the e-mail chains from the alleged bank robbers come in to show state of mind. And although it’s a close call, so do a couple e-mails (hi, Judge Holmes) from the alleged bank robber’s CEO to and from Freddie Mac, which show state of mind and context, but the rest don’t.

But letting the e-mails into evidence doesn’t mean they make the weigh-in.

“To be clear, our holding that these emails satisfy Rule 803(3) neither establishes their credibility nor dictates the weight to be given them. See, e.g., Kroner v. Commissioner, T.C. Memo. 2020-73, at *20–21; accord United States v. Peak, 856 F.2d 825, 834 (7th Cir. 1988) (finding that a district court does not have discretion to exclude testimony based on untrustworthiness); 30B Charles Alan Wright et al., Federal Practice and Procedure § 6834 (2022 ed.) (‘There is, of course, no authority for adding an additional “trustworthiness” requirement to Rule 803(3).’).” Order, at p. 3, footnote 4.

For the Bert Kroner story, see my blogpost “Imaginary Friend?” 6/1/20.


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