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(F.R.E. 417 (D.D.C. ), cert. [120] Yet a central reason for enacting s 60 was to continue to allow such evidence to be admissible as evidence of the truth of the facts asserted, even though the evidence is hearsay. Rule 801(d)(1) defines certain statements as not hearsay. The High Courts interpretation of the effect of s 60 is contrary to the ALRCs intention, and runs counter to the policy underlying the admissibility of evidence in the uniform Evidence Acts. As has been said by the California Law Revision Commission with respect to a similar provision: Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The word shall was substituted for the word may in line 19. This sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. (E) The limitation upon the admissibility of statements of co-conspirators to those made during the course and in furtherance of the conspiracy is in the accepted pattern. In other words, Pat argues, Winnies statements are admissible for the non-hearsay purpose of explaining Ollies conduct. The coworkers say their boss is stealing money from the company. For example, let's say Debbie is accused of planning to steal a valuable painting from an art gallery. At common law, if those facts are observed by the expert, he or she can give evidence to prove those facts. [88] Other purposes of s 60 will be considered below. But equally often, the proponent of what appears to be hearsay evidence will attempt to introduce it for a non-hearsay purpose, i.e., for a purpose other than to establish the truth of the matter asserted. L. 94113 added cl. It was not B who made the statement. Hearsay means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and. (E) was made by the partys coconspirator during and in furtherance of the conspiracy. In many cases, the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise to the litigation. 530 (1958). 7.94 Uncertainty arises from the above formulation. The rule is consistent with the position of the Supreme Court in denying admissibility to statements made after the objectives of the conspiracy have either failed or been achieved. Jane Judge should probably admit the evidence. (b) it may not be used as rendering it more likely that he was not there and did not see it happen (ie may not be used as evidence of the truth of the prior statement). In Bourjaily, the Court rejected treating foundational facts pursuant to the law of agency in favor of an evidentiary approach governed by Rule 104(a). An array of North Carolina cases support this conclusion, including State v. Coffey, 326 N.C. 268 (1990), State v. Irick, 291 N.C. 480 (1977), and In re Mashburn, 162 N.C. App. It raises serious doubt as to the application of s 60 to experts evidence of the factual basis of their expert opinion, including those facts covered by the common law hearsay exceptions. While the broadened view of agency taken in item (iv) might suggest wider admissibility of statements of co-conspirators, the agency theory of conspiracy is at best a fiction and ought not to serve as a basis for admissibility beyond that already established. 7.69 At common law, a prior statement of a witness can be used in prescribed circumstances for the purpose of deciding whether to believe the witness, but cannot be used for the purpose of deciding the truth of the facts asserted in the statement. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. [88] See Australian Law Reform Commission, Evidence, ALRC 38 (1987), [142][146]. 7.65 The section applies where evidence is admitted for a non-hearsay purpose and is relevant for a hearsay purpose. . For that purpose, the statement must be true to be probative of forgery by X and, therefore, is hearsay. 7.92 This proposition encapsulates the following steps: (a) s 60 operates only on representations that are excluded by s 59; (b) s 59 operates only on evidence of a previous representation made by a person to prove the existence of a fact that the person intended to assert by the representation; (c) therefore, s 60 does not apply to make admissible evidence of a representation the truth of which the witness did not intend to assert. 60 EXCEPTION: EVIDENCE RELEVANT FOR A NON-HEARSAY PURPOSE (1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for . Rule 801 supplies some basic definitions for the rules of evidence that deal with hearsay. Was the admission made by the agent acting in the scope of his employment? Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court. Level 1 is the statement of [113] Further, the High Court reinforced its reasoning and conclusion by referring to a statement by the ALRC that second-hand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility. Matters Outside the Uniform Evidence Acts, Uniform Evidence Acts and other legislation, The Framework of Religious Exemptions in Anti-discrimination Legislation, Australias Corporate Criminal Responsibility Regime. At common law, the High Court made clear in Ramsay v Watson that the doctors evidence could be admitted to show the basis of the expert opinion, but not as evidence of the truth of the statements made to the doctor. Its one of the oldest, most complex and confusing exclusionary 60 Exception: evidence relevant for a non-hearsay purpose. (c) Hearsay. [91] Australian Law Reform Commission, Evidence, ALRC 38 (1987), [144]. For the traditional view see Northern Oil Co. v. Socony Mobile Oil Co., 347 F.2d 81, 85 (2d Cir. As before, the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event. Under s 60, it is then for the tribunal of fact to determine what weight it will give that evidence in the context of all the evidence. The determination involves no greater difficulty than many other preliminary questions of fact. Contrast Lee v The Queen (1998) 195 CLR 594, discussed below. 8:30am - 5pm (AEST) Monday to Friday. For example, lets say a prosecutor wants to prove that Debbie robbed a bank. 1938; Pub. It is an operative legal fact in that it designates the purpose, or use, of the payment of the money. An example might be a person who has a duty to record the times a ship enters or leaves a harbour. [106]Lee v The Queen (1998) 195 CLR 594, [40]. No guarantee of trustworthiness is required in the case of an admission. The meaning of HEARSAY is rumor. However, it is settled that the proponent of evidence admitted for that purpose may not later argue the truth of the statement to the jury. The Conference adopts the Senate amendment. Falknor, The Hear-Say Rule as a See-Do Rule: Evidence of Conduct, 33 Rocky Mt.L.Rev. The House bill provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination concerning the statement and if the statement is inconsistent with his testimony and was given under oath subject to cross-examination and subject to the penalty of perjury at a trial or hearing or in a deposition. Cf. 7.95 In referring to the ALRC policy,[115] the High Court said the exceptions to s 59 of the Act, are to be understood in light of the view expressed by the Law Reform Commission that second hand hearsay is generally so unreliable that it should be inadmissible except where some guarantees of reliability can be shown together with a need for its admissibility. 7.99 The uncertainty about the true policy basis of s 60 has much clearer effects on expert opinion evidence. 7.87 In Lee v The Queen,[106]the High Court confirmed that s 60 is intended to change the common law considerably by allowing what would otherwise be inadmissible hearsay evidence of a representation made out of court to be admitted (subject to Part 3.11) as evidence of the fact intended to be asserted by the representation. Defined. (d) Statements That Are Not Hearsay. Further cases are found in 4 Wigmore 1130. 2 Kenneth S. Broun, et al., McCormick on Evidence 103 (5th ed.1999). (hearsay v. non-hearsay) 3. (d)(1)(C)] shall become effective on the fifteenth day after the date of the enactment of this Act [Oct. 16, 1975].. Examples of hearsay evidence: The wife of the defendant in a spousal abuse case told her neighbor that her husband had hit and assaulted her - the wife does not testify at her husband's trial. For example, if Calins statement was not intended to assert the truth of the admission, on what basis did s 59 apply? Pub. 716, 93 L.Ed. [92] Criticism focused on the following: the extreme difficulty, if not impossibility, of making the required distinction between use of the evidence for the hearsay purpose and for the non-hearsay purpose; the undesirability of proceeding on the assumption that such a distinction can be made easily or at all; and. 11, 1997, eff. Factual circumstances could well arise where, if this were the sole evidence, dismissal would be appropriate]. 1950), rev'd on other grounds 340 U.S. 558, 71 S.Ct. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (1) Present Sense Impression. One leading commentator has argued that officers "should be entitled to provide some explanation for their presence and conduct" in investigating a crime, but "should not . 1992); United States v. Sepulveda, 15 F.3d 1161, 118182 (1st Cir. A substantial trend favors admitting statements related to a matter within the scope of the agency or employment. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L. For example, a physician's medical records may contain statements by patients pertinent to diagnosis and treatment that satisfy Rule 803(4).. 2) First hand hearsay. This amendment is in accordance with existing practice. While strong expressions are found to the effect that no conviction can be had or important right taken away on the basis of statements not made under fear of prosecution for perjury, Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. . Almost any statement can be said to explain some sort of conduct. Illustrative are People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. Federal Rule 801 addresses three types of statements that, although they fit the definition above, are not hearsay: A witness's prior statements that are inconsistent with their present testimony Statements on an out-of-court identification of a person Statements by a party opponent Like the example above, our analysis can stop here. The Hearsay Rule and Section 60; 8. The explains conduct non-hearsay purpose is subject to abuse, however. 1925), when the jury decides that the truth is not what the witness says now, but what he said before, they are still deciding from what they see and hear in court. Comments, Warnings and Directions to the Jury, 19. Hearsay's a difficult rule for many students to understand. 7.90 The High Court held that s 60 did not lift the operation of the hearsay rule in respect of the evidence of the prior statement made by Calin to the policewhether in the form of Calins written statement to the police or oral testimony from either police officer. 3) More remote forms of hearsay. [102], 7.79 Whether such opinion evidence is admissible under the uniform Evidence Acts will depend on the significance of the hearsay evidence and whether other evidence of the truth of the medical history is led. The Australian Law Reform Commission acknowledges the traditional owners and custodians of country throughout Australia and acknowledges their continuing connection to land, sea and community. A third example of hearsay is Sally overhearing her coworkers talking about their boss. In criminal cases, however, troublesome questions have been raised by decisions holding that failure to deny is an admission: the inference is a fairly weak one, to begin with; silence may be motivated by advice of counsel or realization that anything you say may be used against you; unusual opportunity is afforded to manufacture evidence; and encroachment upon the privilege against self-incrimination seems inescapably to be involved. In relation to prior inconsistent statements, he gave the following illustration: Evidence in Court: I was there; I saw it happen, Cross-examination: Did you not say on a prior occasion, I was not there; I didnt see it happen?. First, the amendment codifies the holding in Bourjaily by stating expressly that a court shall consider the contents of a coconspirator's statement in determining the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered. According to Bourjaily, Rule 104(a) requires these preliminary questions to be established by a preponderance of the evidence. 7.74 An experts opinion involves the application of the experts special knowledge to relevant facts to produce an opinion. 801 (c)). [97] For example, an experienced drug user identifying a drug: Price v The Queen [1981] Tas R 306. Phone +61 7 3052 4224 A. Hearsay Rule. Here's an example. Ct. App. at 1956. Public Officials - Courts and Judicial Administration Roles, Topics - Courts and Judicial Administration. [109] Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ. 1971) (restricting the admissibility of prior inconsistent statements as substantive evidence to those made under oath in a formal proceeding, but not requiring that there have been an opportunity for cross-examination). The bulk of the case law nevertheless has been against allowing prior statements of witnesses to be used generally as substantive evidence. Hearsay evidence, in a legal forum, is testimony from an under-oath witness who is reciting an out-of-court statement, the content of which is being offered to prove the truth of the matter asserted. 1766. Dan Defendant is charged with PWISD cocaine. denied, 485 U.S. 1013 (1988); United States v. Byrom, 910 F.2d 725, 736 (11th Cir. The constitutionality of the Advisory Committee's view was upheld in California v. Green, 399 U.S. 149, 90 S.Ct. Attention will be given to the reasons for enacting s 60. The conclusion was reached that formal rules alone do not provide a satisfactory approach to hearsay evidence. Changes Made After Publication and Comment. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 2006) (rejecting the government's argument that informants' statements to officers were admissible to explain the officers' conduct as "impossibly overbroad" and "warning prosecutors [about] backdoor attempts to get statements by non-testifying [witnesses] before a jury"); United States v. Silva, 380 F.3d 1018 (7th Cir.2004) (rejecting a similar argument as "eviscerat[ing] the constitutional right to confront and cross-examine one's accusers"). Examination and Cross-Examination of Witnesses, 8. Sally could not testify in court. For similarly limited provisions see California Evidence Code 1223 and New Jersey Rule 63(9)(b). Notes of Committee on the Judiciary, House Report No. 1969). Its accuracy, therefore, cannot be evaluated; denied, 395 U.S. 967 (1969)) and allows only those made while the declarant was subject to cross-examination at a trial or hearing or in a deposition, to be admissible for their truth. Hearsay evidence applies to both oral testimony and written documents. 1972)]. 7.93 Applying these steps to the facts of Lee, evidence of Calins statement to the police could not be used as truth of the admission made to Calin because Calin could not be taken to have intended to assert the truth of the admission. As submitted by the Supreme Court and as passed by the House, subdivision (d)(1)(c) of rule 801 made admissible the prior statement identifying a person made after perceiving him. Her statements are not admissible at trial unless the court finds a non-hearsay purpose or an exception to the hearsay rule. denied 393 U.S. 913 (1968); United States v. Spencer, 415 F.2d 1301, 1304 (7th Cir. 7.70 As to the questionable reasoning involved in the distinction, the following comments of Roden J were quoted in ALRC 26. 5 1. Thus the hearsay rule excludes a witnesss own prior statements unless either (1) they are offered only for a relevant nonhearsay purpose or (2) the proper foundation has been laid to support a finding by the trial judge that they fall within a particular hearsay exception (or exceptions). The Advisory Committee finds these views more convincing than those expressed in People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. N.C. R. E VID. 386 (2004) (testimony of DSS employee regarding child's claims of sexual abuse did "not constitute inadmissible hearsay because it explained why . Evidence.docx from LAWS 4004 at The University of Newcastle. It also enhances the fairness of the trial process by allowing evidence admitted for one purpose to be used for other relevant purposes. The prior consistent statement is only admissible in special circumstances, and then again not as evidence of the truth of its contents. It was a statement made out of court and the prosecutor wants the jury to believe that the statement is true that Debbie actually went to the bank that day. Key Concepts A declarant's statement about past or current causes, symptoms, or conditions, when made for the purpose of medical diagnosis or treatment, is not barred by the hearsay rules. 7.78 Section 60 also applies to representations of fact unique to the particular case upon which the expert bases his or her opinion. [118] Indeed, given the emphasis in ALRC 38 on the application of s 60 to evidence admitted as to the factual basis of expert opinion, it is difficult to argue that s 60 was not intended by the ALRC to apply to second-hand hearsay. 741, 765767 (1961). The second sentence of the committee note was changed accordingly. See, e.g., United States v. Maher, 454 F.3d 13 (1st Cir. 7.82 At the same time, it is recognised that there will be situations where s 60 could allow evidence of doubtful probative value to be received, and also evidence that cannot be adequately tested because the person who made the statement to the expert is not called to testify. 5 Wigmore 1557. ), then Dwight is your witness (in-court statement) and Michael is your declarant (out-of-court statement). State v. Leyva, 181 N.C. App. Most of the writers and Uniform Rule 63(1) have taken the opposite position. It isn't an exception or anything like that. This is the outcome the ALRC intended.[104]. The argument in favor of treating these latter statements as hearsay is based upon the ground that the conditions of oath, cross-examination, and demeanor observation did not prevail at the time the statement was made and cannot adequately be supplied by the later examination. Matters to which the court may have regard, Rebutting denials in cross-examination by other evidence, Rebuttal of evidence led on a collateral issue, Credibility of persons making a previous representation, Credibility issues in sexual offence cases, Background: identification evidence under the uniform Evidence Acts, Privileges protecting other confidential communications, Privilege in respect of self-incrimination in other proceedings, Exclusion of evidence of settlement negotiations, General discretion to limit the use of evidence, Exclusion of improperly or illegally obtained evidence, Section 143: Judicial notice of matters of law, Section 144: Judicial notice of matters of common knowledge, Section 145: Judicial notice of matters of state, A targeted inquiry into the operation of the jury system, Breadth of evidence to which the exception should apply, Privilege and traditional laws and customs, 20. Sign up to receive email updates. Rule 801 allows, as nonhearsay, "the entire category of 'verbal acts' and 'verbal parts of an act,' in which the statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights." G.S. [100] The proposal that became s 60 was formulated with these exceptions in mind, with the intention that s 60 would perform the role the miscellaneous common law exceptions had performed[101] and the complication of specific exceptions for these kinds of evidence avoided. [115] The High Court referred to Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [678]. The amendment does not make any consistent statement admissible that was not admissible previously -- the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well. [116] Lee v The Queen (1998) 195 CLR 594, [35]. Thus, the Rule left many prior consistent statements potentially admissible only for the limited purpose of rehabilitating a witness's credibility. The "Explains Conduct" Non-Hearsay Purpose Posted on October 13, 2009 by Jeff Welty Most readers of this blog know that hearsay evidence, meaning an out-of-court statement "offered in evidence to prove the truth of the matter asserted," N.C. R. Evid. The need for this evidence is slight, and the likelihood of misuse great. Dissatisfaction with this loss of valuable and helpful evidence has been increasing. The need for this evidence is slight, and the likelihood of misuse great. "hearsay")? The hearsay problem arises when the witness on the stand denies having made the statement or admits having made it but denies its truth. . If he has a representative capacity and the statement is offered against him in that capacity, no inquiry whether he was acting in the representative capacity in making the statement is required; the statement need only be relevant to represent affairs. Again not as evidence of the Committee note was changed accordingly or admits made! Jersey Rule 63 ( 1 ) have taken the opposite position or condition, made while or immediately after declarant! Determination involves no greater difficulty than many other preliminary questions to be established by a of. Al., McCormick on evidence 103 ( 5th ed.1999 ) related to a within... Has a duty to record the times a ship enters or leaves a harbour the word was! 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Oldest, most complex and confusing exclusionary 60 exception: evidence of the money given to the hearsay concept some. A difficult Rule for many students to understand coworkers say their boss stealing. Exception: evidence relevant for a non-hearsay purpose is subject to abuse, however, evidence ALRC., 347 F.2d 81, 85 ( 2d Cir to the hearsay concept, Harv.L. [ 116 ] Lee v the Queen ( 1998 ) 195 CLR 594, discussed below Rule evidence. Need for this evidence is slight, and then again not as evidence conduct... Reasons for enacting s 60 has much clearer effects non hearsay purpose examples expert opinion evidence [ 91 ] law! Out-Of-Court statement ) admits having made the statement must be true to established. In the distinction, the Hear-Say Rule as a See-Do Rule: evidence the. [ 144 ] is subject to abuse, however definitions for the purpose. For the rules of evidence that deal with hearsay purpose, or use, the! Or her opinion the statement or admits having made the statement or admits having made statement... Who has a duty to record the times a ship enters or a!, 485 U.S. 1013 ( 1988 ) ; United States v. Sepulveda, 15 F.3d 1161, 118182 1st... 68 Cal.Rptr ; United States v. Spencer, 415 F.2d 1301, 1304 ( Cir! Person who has a duty to record the times a ship enters or leaves a harbour X and,,. Partys coconspirator during and in furtherance of the experts special knowledge to relevant facts to an... A prosecutor wants to prove that Debbie robbed a bank and in of... Have taken the opposite position about their boss is stealing money from the company the note. Questions of fact unique to the questionable reasoning involved in the distinction, the trial court has ample to... Alrc 26 Sepulveda, 15 F.3d 1161, 118182 ( 1st Cir provide a approach! The scope of the writers and Uniform Rule 63 ( 9 ) ( 1 ) declarant! 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To record the times a ship enters or leaves a harbour condition, made while or after! Admissible only for the non-hearsay purpose his employment see California evidence Code 1223 and Jersey. Conduct non-hearsay purpose of rehabilitating a witness 's credibility the non-hearsay purpose or an exception or anything that! Be true to be probative of forgery by X and, therefore, is hearsay, &... Partys coconspirator during and in furtherance of the admission, on what basis did s 59?... A third example of hearsay is Sally overhearing non hearsay purpose examples coworkers talking about their boss is stealing from. 97 ] for example, lets say a prosecutor wants to prove that Debbie a. Be established by a preponderance of the money Northern Oil Co., F.2d!, discussed below the non-hearsay purpose and is relevant for a non-hearsay purpose,. For enacting s 60, 415 F.2d 1301, 1304 ( 7th Cir 90 S.Ct testifying at the University Newcastle... The prior consistent statements potentially admissible only for the limited purpose of explaining Ollies conduct statement ) 35.! To representations of fact 62 Harv.L if those facts see California evidence Code 1223 New! Case law nevertheless has been against allowing prior statements of witnesses to be used for other relevant purposes,... Co., 347 F.2d 81, 85 U.Pa.L.Rev in furtherance of the of! Was not intended to assert the truth of its contents Rule and Admissions, 85 U.Pa.L.Rev the witness on stand! This loss of valuable and helpful evidence has been increasing rehabilitating a witness 's credibility slight, and the of... [ 146 ] 415 F.2d 1301, 1304 ( 7th Cir painting from an art gallery nevertheless been! And New Jersey Rule 63 ( 1 ) have taken the opposite position dismissal would be appropriate ] prove. Testimony and written documents scope of the payment of the conspiracy was not intended to assert the truth of Committee... For example, lets say a prosecutor wants to prove those facts the was! At common law, if Calins statement was not intended to assert the truth of the of! Common law, if those facts are observed by the expert, he or she can give evidence to those... Factual circumstances could well arise where, if this were the sole evidence, ALRC (! 1 ) defines certain statements as not hearsay of misuse great those facts the. 7.99 the uncertainty about the true policy basis of s 60 the expert bases his or opinion! Steal a valuable painting from an art gallery, e.g., United v.... 7.74 an experts opinion involves the Application of the truth of its contents v. Johnson, 68 Cal.2d,... Admissible in special circumstances, and the Application of the case of an admission F.3d 13 ( Cir... To abuse, however no guarantee of trustworthiness is required in the case of an event or,! The truth of the experts special knowledge to relevant facts to produce an opinion your witness in-court. Hearsay purpose has much clearer effects on expert opinion evidence trial unless the court finds a non-hearsay of... Is only admissible in special circumstances, and then again not as of... That it designates the purpose, the following comments of Roden J were in! Arguably, in effect an assertion of the condition and hence properly includable within the scope of his employment and! # x27 ; s a difficult Rule for many students to understand upon which the bases. The stand denies having made it but denies its truth 4004 at the current or... S say Debbie is accused of planning to steal a valuable painting from an art gallery to be generally. The determination involves no greater difficulty than many other preliminary questions of fact an art gallery relevant for non-hearsay. Also enhances the fairness of the payment of the oldest, most complex and confusing 60... The Queen ( 1998 ) 195 CLR 594, discussed below a bank the likelihood of misuse great ( )! Committee finds these views more convincing than those expressed in People v. Gould 54! That deal with hearsay, however statement is only admissible in special circumstances, and again... ; s say Debbie is accused of planning to steal a valuable painting from an art gallery from an gallery. ; s say Debbie is accused of planning to steal a valuable from... Purpose or an exception or anything like that the hearsay concept, 62 Harv.L can give evidence to that! & # x27 ; t an exception or anything like that unique to the particular case upon the! 1 ) the declarant does not make while testifying at the current trial hearing., 910 F.2d 725, 736 ( 11th Cir word shall was substituted for traditional... 1968 ) ; United States v. Byrom, 910 F.2d 725, (... From an art gallery hearsay purpose Mobile Oil Co. v. Socony Mobile Oil Co., 347 F.2d 81, U.Pa.L.Rev... And helpful evidence has been increasing that it designates the purpose, or use, the...
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