🚀 go-pugleaf

The question was:
>
>A has sued C for injuries received in an automobile accident.  F, a 
>passenger in A's car, testified on direct examination that C caused the 
>accident by turning without warning into the traffic lane occupied by A's 
>vehicle.  On cross-examination, F specifically denied telling an 
>insurance investigator for F's insurance company that A had been speeding 
>at the time of the accident.  Later in the trial the insurance 
>investigator testified that F had told him that A had been speeding.  
>During the cross-examination of the insurance investigator, A's attorney 
>has the investigator authenticate the report of the interview that the 
>agent prepared and F signed.  The report contains the following: "We were 
>in a hurry to get to an appointment, but I knew we would be late.  The 
>traffic was so bad that we just couldn't move very quickly.  And then C's 
>car cut right in front of us."  A's attorney now offers the report into 
>evidence.  Should it be admitted?

My tentative answer is:

The report signed by F is hearsay if it is an out of court written 
assertion used for the purpose of proving the truth of the matter 
asserted.  FRE 801(a), (c).  Before considering hearsay use, though, 
there are two non-hearsay uses of the evidence.

First, the report could be used as a prior inconsistent statement to 
impeach the testimony of the insurance investigator.  Regardless of 
whether the statement is true, the fact that it was in the investigator's 
report undermines the probative value of the later testimony at trial.  
Second, the report could be used to bolster F's credibility, which has 
been impliedly been attacked by the investigator's testimony.  The first 
use seems permissible; I'm not sure whether the second use is permissible.

The hearsay use of the report is governed by FRE 801(d)(1).  If used 
against the insurance investigator, 801(d)(1)(A) controls.  The 
investigator is available at trial and would be subject to 
cross-examination.  The report appears to be somewhat inconsistent with 
the testimony at trial, but may in fact not be.  Regardless, the report 
should not be admitted under this section because the investigator did 
not make it under oath subject to the penalty of perjury.

F appears to be available at trial and subject to cross-examination.  If 
the investigator's testimony is an "implied charge . . . of recent 
fabrication or improper influence or motive," then the report can be 
admitted to rebut this inference under FRE 801(d)(1)(B).  The report is 
consistent with F's testimony because he states traffic prevented them 
from driving "very quickly" (i.e., speeding).

The report is relevant to show whether it was more likely or not that A, 
not C, caused the accident by speeding.  FRE 401.  Assuming the report is 
admissible for its truth under a hearsay exemption, the judge may still 
exclude it if the probative value is substantially outweighed by 
consideration of undue waste of time.  FRE 403.  Since the Federal Rules 
have a bias towards admitting evidence, this evidence probably would be 
admissible.

Did I miss anything?

Fred