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- ilnd;;1:16-cv-01963_de684 RegisterActionDate "2020-11-17" @default.
- ilnd;;1:16-cv-01963_de684 RegisterActionDescriptionText "MINUTE entry before the Honorable Virginia M. Kendall. Defendants move to bar any evidence relating to any testimony of Diane Diaz (now Diane Grabowski) regarding any altercation between Bob LaGace and Cathy Trunko prior to her murder 500 . The statements by Grabowski were made to AFC55D8 defense attorney during her preparation for his trial. The former defense attorney took a statement from Grabowski and wrote it down. At the time of the trial, the trial court judge did not allow the Grabowski to testify ruling that the testimony would be hearsay and on a collateral matter. The defense attorney than put Grabowski on the witness stand to make a proffer of what her testimony would be in order to preserve her objection for appeal. Neither the proffer nor the statement were subjected to cross-examination. Defendants do not seek to bar testimony from Grabowski about her telephone conversation with Trunko on the night of the murder or her observations and the actions of LaGrace. Plaintiff's respond by asserting that if Grabowski testifies that all of the hearsay objections would not exist, that LaGace's out of court statements are not hearsay statements because they go to LaGace's existing state of mind. Finally, they assert that the defense attorney's statement can be admitted as a recorded recollection.There are a number of statements that must be parsed here. The original statement written by the defense attorney is hearsay and cannot be presented at trial unless it meets the requirements of Fed. R. Evid. 803(5): the witness must have once had knowledge about the matters contained within the document; 2) the witness now has insufficient knowledge about the matters in the document; and 3) the record was made or adopted at a time when the matter was fresh in the witness's memory and reflected his knowledge correctly. United States v. Cash, 394 Fed.3d 560 (7th Cir. 2005). It is Plaintiff's burden to meet the requirements here and based on the record before the Court, he cannot do so. The hurdle that he must overcome is that Grabowski has no recollection of the statement at all. It is not a case like Cash, where the witness testified that she cannot remember the exact conversation but knows she wrote it down at the time and then was allowed to read her notes to the jury. There, the witness remembered the conversation and remembered the substance of the conversation but could not remember the exact words verbatim. Here, Grabowski has no memory of the matters included in the statement and as such the accuracy of the statement comes into question. Add to that the fact that statements made by others regarding what a witness said are classic hearsay (such as FBI reports) because they are the impressions of the report maker and not the exact words of the witness. Here, Grabowski has failed to adopt the statement and therefore recorded recollection will not cure the otherwise hearsay statement.Other issues may also be problematic. Plaintiff seeks to admit statements of LaGace that were made to Trunko as state of mind exceptions to the hearsay rule. Fed. R. Evid. 803 requires: a statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will. Fed. R. Evid. 803. The statements made to Trunko are clearly hearsay because Trunko cannot testify to them. The statements made to Grabowski must come from Grabowski testifying about La Gace's state of mind. Therefore, Defendant's motion to exclude the prior written statement of the defense attorney who interviewed Grabowski 500 is granted. Any further objections to the testimony of Grabowski will need to be represented with a clear statement of what she intends to testify regarding in order for the Court to make the evidentiary ruling. Mailed notice (lk, ) (Entered: 11/17/2020)" @default.
- ilnd;;1:16-cv-01963_de684 AdministrativeID "684" @default.
- ilnd;;1:16-cv-01963_de684 OntologyLabel minute_entry @default.
- ilnd;;1:16-cv-01963_de684 hasReferenceToOtherEntry ilnd;;1:16-cv-01963_de500 @default.