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Subject: MARCUS ALLEN BRIEF
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IN THE CIRCUIT COURT OF JACKSON COUNTY
AT KANSAS CITY, MISSOURI


STATE OF MISSOURI,
Plaintiff,

v.

MARCUS ALLEN,
Defendant.

Case No. CV95-10746

Division 3-A

MARCUS ALLEN'S TRIAL BRIEF

I.

INTRODUCTION

This matter comes before the Court on the Certificate of the
Trial Court currently presiding over California vs. Orenthal
James Simpson, Case No. BA 097 211 (the "Trial"). That
certificate was issued under the provisions of the Uniform Law to
Secure Attendance of Witness from Within and Without the State in
Criminal Proceedings, 491 400 (R.S.Mo. 1978) (the "Act").

The Jackson County Court's role in this matter is to hold a
hearing and determine - based upon the evidence presented on the
matter set forth in the certificate - whether Mr. Allen is a
material and necessary witness and, if so, whether undue hardship
will result if a summons is issued compelling Mr. Allen to attend
and testify in the Trial. R.S.Mo. 491.410(2) The ultimate
determination of whether Mr. Allen is a material and necessary
witness lies in the sound discretion of this Court, not in the
California court which issued the certificate. State v.
Closterman, 687 S.W.2d 613 (Mo. App. 1985); Matter of State of
N.Y. v. Wagner, 398 N.E.2d 372 (Ill. App. 1979). 81 Am. Jur.2d
Witnesses 42. This is equally true with respect to the issue of
"undue hardship." Closterman, Supra.

II.

THE ESSENTIAL ELEMENTS NECESSARY TO AUTHORIZE A SUMMONS

To justify the issuance of a summons under the Act, Mr. Simpson
must carry the burden of establishing the statutory requirements
of materiality and necessity, a burden which Mr. Simpson cannot
meet. State v. Ivory, 609 S.W.2d 217, 220 (Mo. App. 1981); Am.
Jur.2d Witnesses 43 and cases cited therein. Furthermore, even if
Mr. Simpson could hypothetically satisfy his burden of proving
materiality and necessity (which he cannot), then the Court still
must deny the request for summons if Mr. Allen demonstrates it
would cause him undue hardship. R.S.Mo. 491.410; Closterman,
Supra, at 621; In re Stoddard, 470 A.2d 1185 (Vt. 1983).

The declaration of Mr. Simpson's attorney, Ms. Chapman,
identifies the "evidence" Mr. Simpson contends to be "material"
and which Mr. Allen's testimony is supposedly "necessary" to
establish. The allegation is as follows:

A few weeks before Mr. Allen's marriage in 1993, he admitted to
Mr. Simpson that he had been sexually intimate with Nicole Brown
Simpson In spite of this, Mr. Simpson opened his home to Mr.
Allen, allowing him to use Mr. Simpson's Rockingham Avenue home
for his wedding.

This declaration sets forth the only evidence Mr. Simpson seeks
>from Mr. Allen, and is hereafter referred to as the "Allegation."
No other facts are stated in either the declaration or the
Certificate of the California Court. The declaration and the
Certificate also fail to reveal any material disputed issue in
the Trial which this evidence is expected to resolve.

The cases decided under the Act identify a two-step process in
meeting the requirement that the witness be "necessary." It must
first be shown that the witness will testify favorably to the
requesting party's case People v. Newville, 220 Cal App 2d 267,
33 Cal. Rptr. 816 (1st Dist. 1963). In addition, the witness must
be the only means of providing the evidence sought to be
obtained. Matter of McAuley, 408 N.E.2d 697, 709 (Ohio App.
1979). If either of these propositions is not established, the
witness is not necessary. Applying the requirements of the Act to
the Allegation here yields the following essential elements which
must be proven by Mr. Simpson before this Court is authorized to
issue the requested summons:

1) Mr. Allen's testimony will aid Mr. Simpson in proving the
Allegation, and

2) Mr. Simpson cannot prove the Allegation without Mr. Allen's
testimony, and

3) The Allegation is relevant to a material issue in the trial,
and

4) Compelling Mr. Allen to attend and testify will not cause Mr.
Allen undue hardship.

The first two elements listed here reflect the two-step process
needed to determine if Mr. Allen is a "necessary" witness.  The
third element goes to the issue of materiality and the fourth to
the issue of hardship. Unless all four elements are satisfied,
this Court is not authorized under the Act to issue the summons.

Before addressing each of these elements, it is important to note
that this court's authority is strictly limited to that granted
in the Statute:

Compulsory process usually runs only to those persons who can be
located in [a state's] jurisdiction; constitutional provisions do
not give a defendant a right to compel attendance of a witness
>from beyond its jurisdiction.

State v. Closterman, Supra at 620. Compelling attendance from
beyond the trial court's jurisdiction was "unknown at common law.
[and] the extent to which the application of this act can impinge
upon the personal affairs and liberties of an individual requires
strict construction of the statute." In re Grothe, 208 N.E. 2d
581 (Ill. App. 1965). III.

MR. ALLEN'S TESTIMONY DIRECTLY CONTRADICTS
THE ALLEGATION AND CANNOT BE
NECESSARY TO MR. SIMPSON'S CASE

Contrary to the unsubstantiated declaration which was presented
to the California Trial court, Mr. Allen unequivocally denies
making the alleged statement to Mr. Simpson. It seems elementary
that before Mr. Allen's testimony can be held "necessary" it must
support - not contradict - the Allegation his testimony is sought
to prove.

Counsel for Mr. Allen could locate no cases in which a court
issued a summons to a witness compelling attendance in another
state's trial under the circumstances present here.  Indeed,
there are relatively few cases addressing the issue of an
inconsistency between the witness's actual testimony and that
which the party seeks to obtain. This can probably be explained
by the natural reluctance of a party to call a witness who will
refute that party's theory of the case. Mr. Simpson's decision to
seek Mr. Allen's testimony under these circumstances is
bewildering. It is clear, however, that unless Mr. Allen's
testimony supports the Allegation Mr. Simpson seeks to prove, Mr.
Allen is not a necessary witness.

One reported opinion which does address a comparable situation is
a California case, People v. Newville, Supra There, the defendant
sought to compel the attendance and testimony of his wife, who
was located in another state. The defendant in Newville
maintained that the testimony of his wife would establish his
alibi. However, the wife previously stated that she "could not be
sure" of the facts necessary to establish the alibi.

The California Appellate Court in Newville upheld the Trial
Court's determination that the uncertainty of the wife's
testimony precluded any finding that she was a necessary witness.
The Court held that a "mere possibility" that the witness would
support the defendant's case fails to satisfy the requirement of
necessity Newville, supra. In reaching those conclusions, the
Appellate Court in Newville quoted with approval the following
excerpt from the trial court's decision:

I certainly wouldn't issue an order just based upon the fact that
she might testify favorably to the defense, and in this case we
don't even have the presumption that she would testify favorably.
The presumption would be that . . . she would testify,
undoubtedly [as] an adverse witness. As far as the child is
concerned, we know nothing whatsoever as to what the child would
testify to. I think before I would in any way be justified in
issuing such an order, I should know definitely what the
testimony would be from the witnesses, and then I would determine
whether or not it would be material and whether or not it would
be of any assistance to the defendant.

Newville, Supra at 274.

Mr. Allen's testimony will not support the Allegation Mr. Simpson
seeks to prove, cannot "be of any assistance to" Mr. Simpson's
case, and therefore, Mr. Allen cannot be a necessary witness, as
required by the Act.

The situation presented here is also quite similar to that
addressed in the case of People v. Marcy, 283 N.W. 2d 754 (Mich.
App. 1979). There, a Delaware grand jury sought to obtain the
testimony of a witness located in Michigan. The witness had
conducted a polygraph examination of the target of the grand
jury's investigation. The examination was conducted under
circumstances which gave the examiner a privilege to refuse to
answer any questions about the examination.

The Michigan court in Marcy had no difficulty deciding that under
those circumstances the witness was not "necessary" to the
Delaware grand jury. The opinion in Marcy quotes the trial court
as follows:

I think if I ordered him to go to Delaware, it would be a useless
act . . . because anything he could testify to there would be
privileged . . . and I think it would just be an idle waste of
time on both the part of this Court and the part of the Delaware
court .

Marcy, Supra, at 756. This rather obvious determination was
upheld by the Michigan Court of Appeals in an opinion which
reasoned that if the witness could not provide the requested
testimony, he is neither material nor necessary. Marcy, Supra, at
757.

This situation presents an even starker example of a lack of
necessity than those addressed in Newville and Marcy Mr. Allen is
worse than "useless" to Mr. Simpson's case. Here, Mr. Allen will
not only refuse to corroborate the Allegation, he will testify
that the Allegation is false. The suggestion that Mr. Allen is
"necessary" to Mr. Simpson's case under those circumstances
defies all reason and logic.

IV.

MR. ALLEN IS NOT "NECESSARY" IF MR. SIMPSON HAS OTHER MEANS OF
SEEKING TO PROVE THE "ALLEGATION" OTHER THAN THROUGH THE
TESTIMONY OF MR. ALLEN

The second prong of the test which must be satisfied before this
Court can deem Mr. Allen a "necessary" witness is the lack of
other means of introducing the Allegation into evidence at the
Trial. Since Mr. Allen has denied this Allegation, there must be
some other basis upon which Mr. Simpson's attorney based her
declaration. Since Mr. Simpson was a party to the alleged
discussion, he is certainly free to testify to his version of the
substance of the conversation. we must presume that Mr. Simpson's
testimony would be consistent with his attorney's declaration to
the trial court. If this were not the case, Ms Chapman's already
questionable declaration becomes an intentional attempt to dupe
the Trial Court.

In Commonwealth v. Appleby, 450 N.E.2d 1070 (Mass. 1983), the
Court held that where in-state witnesses would be able to give
testimony similar to that which defendant hoped to elicit from
out-of-state witnesses, the out-of-state witnesses were not
necessary under the Act As set forth below, Mr. Simpson can
testify concerning the Allegation. Thus, Mr. Simpson clearly has
other means to seek to "prove" the Allegation. In light of the
existence of these alternatives, Mr. Allen cannot be a
"necessary" witness, even if his testimony supported Mr.
Simpson's defense

The requirement that a witness be "necessary" is not satisfied by
a showing that the witness might be helpful. [FN1] Where there
are other means to prove the facts upon which the witnesses
testimony is sought, or the evidence to be given is cumulative of
other evidence, the witness is not a necessary witness under the
Act. State v. Wille, 496 So.2d 375 (La. App- 1986): Commonwealth
v. Appleby, Supra; Vannier v. Superior Court of Los Angeles
County, 650 P.2d 302 (Cal. 1982): Matter of McAuley, Supra at
709; Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (Pa. 1976);
In re Allen, 49 Pa. D.C. 631 (1940); 81 Am. Jur.2d Witnesses 42.
As set forth in Matter of McAuley:

. .the person seeking to have [the out -of- state witness]
declared a material witness must first demonstrate that there is
no other available means of obtaining the confidential
information in the [witness's] possession, or that he has
exhausted all of the available sources.

Matter of McAuley, 408 N.E.2d at 709.

Mr. Simpson may argue that if proven, the Allegation will show
his mental state and lack of motive for committing the murders
for which he is charged. [FN2] Surely Mr. Simpson does not
contend that he cannot call any witness located in California to
prove his state of mind was inconsistent with that of the
murderer. If the material issue sought to be proven is Mr.
Simpson's mental state, the only person who can testify as to
this point is Mr. Simpson. Certainly out-of-court conversations
are hearsay under Cal Evidence Code 1200. One exception to the
hearsay rule that would probably be asserted by Mr. Simpson is
the exception which allows such statements to prove mental or
physical state Cal. Evidence Code 1250. The exception only
applies to the declarant's state of mind. Since Mr. Simpson's
state of mind is the only state of mind at issue, under Cal.
Evidence Code 1250, Mr. Simpson should be the only one able to
testify as to any such conversation. See People v. Farr, 63 Cal.
Rptr. 477 (Cal. App. 1967).

In similar circumstances, other courts have refused to issue
summons requested under the Act on the basis that the testimony
sought could be provided by the defendant. In State v. Casados,
271 N.W.2d 849, 851 (Neb. 1978), the Supreme Court of Nebraska
held that the Trial Court properly refused to compel process for
out-of- state witnesses who would have testified as to their
illicit relationships with defendant's wife. The defendant was
being prosecuted for the assault of his wife, and stated that
such evidence was necessary to prove his state of mind. The Court
ruled that the extrinsic evidence of defendant's wife's illicit
relationships through the wife's alleged partners were
inadmissible and such witnesses were not necessary or material.
The Court found that the defendant, however, could have testified
as to his belief as to the illicit relationships and his
resulting state of mind. Since the evidence sought in Casados
could be introduced by the defendant himself, the out- of-state
witnesses were unnecessary. Therefore, since Mr. Simpson is able
- and perhaps the only one able - to testify regarding the
Allegation, Mr. Allen is not a necessary witness under the Act.

V.

MR. SIMPSON HAS FAILED TO ESTABLISH THAT MR. ALLEN IS A MATERIAL
WITNESS

A central purpose of the certificate issued by a trial court in
an out-of-state witness proceeding is to aid the out-of-state
court in its determination of materiality. Facts recited in the
Certificate can be relied upon by the out-of-state court as prima
facie proof of those facts.

On the other hand, bald conclusions as to materiality, such as
those set forth in the Certificate now before this Court, cannot
support a finding of materiality in the out-of-state proceeding.
State v. Ivory, Supra; State v. Sykes, 611 S.W.2d 278 (Mo. App.
1980); State v. Wells, 701 S.W.2d 554 (Mo. App. 1985); 81 Am.
Jur.2d Witnesses 44. See also State v. Blount, 264 P.2d 419 (Or.
1953), cited with approval in Closterman, supra, at 621, (where
declaration in requesting a certificate did not disclose that the
testimony would be favorable and contained merely conclusions as
to materiality, the request for a summons should be denied). It
is sufficient if the certifying court incorporates an affidavit
setting forth the necessary facts upon which a conclusion of
materiality can be based. However, the declaration of Mr.
Simpson's attorneys states no such facts and certainly would be
insufficient to authorize the issuance of a Certificate if
submitted to a Missouri trial court.

Counsel's unsupported statements of materiality are insufficient
to require the issuance of a certificate.

Wells, Supra, at 557.

It was not the prerogative of defendant's counsel to make the
determination that the facts disclosed to him in confidential
communication with his client revealed that the testimony of the
witness would be material to the defense of his client.

Ivory, Supra, at 220. [FN3]

Further, the good faith of the demanding party is always at issue
in either the demanding state or in the state which is requested
to issue a summons. Wright v. state, 500 P.2d 582 (Okl. App
1972). Here, Mr. Simpson's attorneys certainly had and have
knowledge that Mr. Allen denies the Allegation. This fact was not
disclosed to Judge Ito in any document upon which the Certificate
was issued. This denial was not disclosed to this Court.
Therefore, the Certificate and this proceeding could not have
been pursued in good faith, and this Court should deny the relief
sought by Mr. Simpson on this basis alone.

The Certificate issued by Judge Ito was issued without a hearing
on an ex parte basis. Judge Ito literally "rubber-stamped" the
Certificate, which contains no facts upon which the conclusion of
materiality was based. In the absence of requisite facts in the
Certificate establishing materiality, this Court is in no
position to find Mr. Allen's testimony to be material. Nothing in
the record gives any insight to the reasons why the Allegation
relates to any material issue in the Trial. Furthermore, this
defect cannot be corrected at the hearing, since it would be
impossible to establish that the additional facts presented at
the hearing were relied on by the Trial Court as the basis for
its Certificate Only the Trial Court itself is in a position to
explain the basis for its finding of materiality.

Under these circumstances, and as more fully explained in Mr.
Allen's Motion for Judgment on the Pleadings or in the
Alternative to Limit Evidence, filed contemporaneously herewith,
the request for summons should be summarily denied. There is and
can be no foundation for a finding by this Court that Mr. Allen
is a material witness. There is simply nothing in the record
describing the disputed issues in the Trial, nor anything to
explain how the Allegation tends to prove such an issue. There is
likewise no acceptable means of supplying the missing facts
unless the California Court certifies these facts as the basis
for its finding of materiality.

It is certainly not apparent why the Allegation, even if true
(which is denied), is material to the Simpson defense. In the
first instance, the Allegation concerns events occurring over one
year before the murders of June 12, 1994 with which Mr. Simpson
is charged. If proven, the Allegation would not support a defense
of alibi or excuse. Counsel for Mr. Allen has not located any
cases in which a court sent a witness to another state to testify
on any matter as far removed from the crime charged as the
Allegation in this case. On the other hand, courts on many
occasions have refused to issue a summons to compel out-of-state
testimony which was much more important than any testimony sought
here from Mr. Allen.

In State v. Poindexter, 318 S.E.2d 329 (N.C. App. 1984), the
defendant in a murder case sought out-of-state witnesses who
would have testified that they had seen the defendant and the
decedent fighting on previous occasions. The defendant argued
that this evidence was material to the issue of self defense. The
Court noted that there was no evidence in the record that the
witnesses brought by the defendant had knowledge of the events
immediately surrounding the killing. The knowledge of the
witnesses of previous confrontations between the victim and the
defendant was held to be insufficient to support a finding of
materiality. The obvious premise of the Court's conclusion in
Poindexter is that evidence of the way the defendant and the
victim acted prior to the murder was not material, as it did not
prove how they acted on the day of the murder.

In State v. Casados, Supra, the Supreme Court of Nebraska upheld
the trial court's finding that the testimony of the witness
concerning the victim's prior sexual affairs would be immaterial
to the proceeding. Like Mr. Simpson, the defendant in Casados
sought to summon out-of-state witnesses who would allegedly
testify that they had sexual relations with the victim. The
defendant in Casados argued that such evidence was material to
his state of mind at the time of the crime. In addition to its
finding that the evidence was unnecessary because the defendant
was perfectly capable of testifying to his own "state of mind,"
the Court held that such evidence was not material to the
determination of whether a crime had been committed.

This Honorable Court has the discretion to determine for itself
whether Mr. Simpson has met his burden to prove that Mr. Allen is
a material witness. In that regard, the Court can look only to
what Mr. Simpson wants from Mr. Allen, as described in the
declaration and Certificate. It is the opinion of Mr. Allen's
counsel, based on experience in many criminal trials, that events
occurring over a year prior to a crime are of little moment. To
say that purported conduct in 1993 represents a demeanor that
will be exhibited a day later or a year later, takes a large leap
of faith. Things can mount over the course of time or be entirely
forgotten. Feelings can change, beliefs can change Even if Mr.
Simpson was gracious in 1993, it does not tend to prove he was
gracious in 1994.

This Court cannot take that leap of faith requested by Mr.
Simpson. Therefore, even if Mr. Allen were to corroborate the
Allegation in all respects, despite his sworn denial, he is not a
material and necessary witness in the Trial.

VI.

COMPELLING MR. ALLEN TO ATTEND AND TESTIFY IN THE TRIAL IN
CALIFORNIA WILL CAUSE HARDSHIP ON MR. ALLEN

Much will be said at the hearing about Mr. Simpson's rights.
Without expressing any view on how Mr. Simpson was treated prior
to trial, there probably has never been a case where a
defendant's rights at trial have been so zealously guarded and
protected. However, Mr. Allen's rights should also be protected.
One of those rights is the protection from unconstitutional
infringements on his freedom and liberty. Prior to the enactment
of the Act, neither the State of California nor the State of
Missouri had the power to compel a witness in Missouri to attend
and testify at any trial in California. One of the protections
that Mr. Allen is given under the Act is that of not being
compelled to attend and testify at the trial in California if it
would cause "undue hardship." R.S.Mo. 491.410.

Courts have intimated that the Act calls for a "balancing test"
between the hardship to the witness and the need for the
testimony. McAuley, 408 N.E.2d at 709. There is no doubt that the
testimony Mr. Simpson desires Mr. Allen to provide relates to
events not even remotely touching upon events immediately
surrounding the murders. Even if the Allegation would be material
and necessary to prove a material issue is the case, and Mr.
Allen would testify as Mr. Simpson desires, the minimal
materiality and necessity of Mr. Allen's testimony should be
balanced against the inconvenience and hardship that testifying
would cause Mr. Allen. If Mr. Allen had witnessed the murders or
could provide testimony establishing an alibi for Mr. Simpson,
the inconvenience and hardship to Mr. Allen would probably be
outweighed by the great importance of his testimony. But that is
not the case.

Here, Mr. Allen denies the Allegation, and certainly the
Allegation does not concern events immediately surrounding the
murders. In these circumstances, the enormous inconvenience to
Mr. Allen dwarfs any value his testimony has to Mr. Simpson.

If the summons is issued, Mr. Allen would be sent to a trial
where there is daily national and international coverage by not
only the mainstream press, but also the tabloids (although this
distinction has been blurred by this trial, of which the Court
should take judicial notice). The harm to Mr. Allen's reputation
caused by the rumors of some illicit relationship between he and
Mr. Simpson's former wife, even if untrue and denied by Mr.
Allen, would be plastered in the print and electronic media
world-wide. It would be a grave injustice to compel Mr. Allen to
travel to this circus-like atmosphere simply to deny an
immaterial Allegation. Further, Mr. Allen is currently the
starting running back for the Kansas City Chiefs. He is
contractually obligated to report to the Chiefs in Kansas City
for a physical examination, issuance of equipment and team
meetings on July 19, 1995 The football team will then travel to
River Falls, Wisconsin on July 23, 1995 for the start of training
camp. Mr. Allen is currently in Kansas City preparing for the
start of camp. Compelling Mr. Allen to attend and testify in the
Trial could be disruptive to his efforts to prepare physically
and mentally for training camp.

There is nothing in the Certificate that would ensure that Mr.
Allen would be released from the California court's jurisdiction
in time to report to the Chiefs on July 19, 1995. Nor is there
anything this Court could order which would protect Mr. Allen
against the harm which could result if his preparation for the
season were disrupted. This fact alone has been held a sufficient
basis to deny a summons. In re Stoddard, Supra; 81 Am. Jur.2d
Witnesses 49. The season will not be placed "on hold" until Mr.
Allen is able to complete his "testimony" in the Trial. This
hardship would certainly not be offset by the witness fee of
$15.00 per day and .10� per mile provided for under the Act.

To compel Mr. Allen to appear in California under these
circumstances would violate his right to due process granted to
him under Article 1 Section 10 of the Missouri Constitution and
the Fifth and Fourteenth Amendments under the Constitution of the
United States.

In sum, the tangential materiality and relevance of the subject
about which Mr. Allen's testimony is sought is so far outweighed
by the hardship to be experienced by Mr. Allen if he is compelled
to testify, the Court must deny the request.

CONCLUSION

All of us have a right to be free from unwarranted and
unconstitutional governmental infringements on our liberty. The
Uniform. Act recognizes this and has carefully restricted the
instances in which an out-of-state witness can be ordered to
travel across state lines to give trial testimony. Unless all the
requisite elements of the Act are established, this Court has no
power to issue a summons to Mr. Allen.

Mr. Simpson has utterly failed to meet his burden of establishing
that Mr. Allen is a material and necessary witness in the Trial.
It is equally clear that any effort to compel Mr. Allen to attend
and testify in the Trial would create an unwarranted and undue
hardship on Mr. Allen, particularly in light of the nature of the
"testimony" Mr. Simpson seeks from Mr. Allen and would violate
Mr. Allen's constitutional rights. Accordingly, the request for
summons must be denied.

Respectfully submitted,

SEIGFREID, BINGHAIM, LEVY
SELZER & GEE, P.C.

By:
Fred Bellemore, III
Paul G. Schepers
Gregory S. Gerstner
2800 Commerce Tower
Kansas City, Missouri
Phone: (816) 421-4460
FAX:   (816) 474-3447

By:

WYRSCH, ATWELL, MIRAKIAN,
LEE AND HOBBS, P.C.

By:

James R. Wyrsch   #20730
13090 Mercantile Tower
1101 Walnut
Kansas City, Missouri  64106
Phone:  (816) 221-0080
FAX:    (816) 858-3009

ATTORNEYS FOR DEFENDANT MARCUS ALLEN

END NOTES

1 As noted in Section III, this requirement is surely not met by
damaging testimony.

2 As explained in Section V of this Trial Brief, there is no
basis stated in the Certificate for the California Court's
finding of materiality in this case Consequently, there is no
basis on which counsel for Mr. Allen and this Court can speculate
as to the existence of some material issue which Mr. Allen's
testimony is sought to prove. Thus, this discussion is largely
hypothetical and offered merely to illustrate to this Court the
Act's requirement that the defendant demonstrate the absence of
alternative means of securing the proof sought from the out-of-
state witness.

3 The declaration of Mr. Simpson's attorney also falls
dramatically short of the affidavits required to support or
defend motions under Mo. R. Civ. P. 74.04 or Fed. R. Civ. P. 56.
The affidavit must be made on personal knowledge and must set
forth facts as would be admissible into evidence. St. Charles
County v. Purchase Realty Co., 771 S.W.2d 328 (Mo. 1989) and
Matter of Ernst & Young, 892 S.W.2d 3a7 (Mo. App. 1995). The
declaration does not purport, nor could it purport, that the
declarant has personal knowledge of the Allegation, and is based
on hearsay many times removed.

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