Chapter 10: NON-HEARSAY Fed. R. Evid. 801(d)(1)-(d)(2) I. FED. R. EVID. 801(d)(1): take category that WOULD have been hearsay, but say that it is NO longer hearsay [NONhearsay] = admissible a. 801(d): Statements which are NOT hearsay. A statement is NOT hearsay if… i. (1) Prior statement by witness—the declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, the statement is: 1. (A) Inconsistent with the declarant‟s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or 2. (B) Consistent with the declarant‟s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or 3. (C) One of the identification of a person made after perceiving the person b. 801(d)(1): Prior statement by testifying witness—admit certain prior statements to prove the truth of the matter asserted [takes statements that might be admissible only as impeachment, but to prove TOMA] i. Requirements: 1. Witness/Declarant [same person] is testifying 2. Witness MUST be subject to cross examination concerning the statements ii. TYPES: 1. (A) Prior Inconsistent Statement: a. Elements: i. Inconsistent ii. Oath/perjury—statement was made while witness was under oath and under the penalty of perjury [authority to do this] iii. Proceeding, trial, hearing, deposition—statement must be made at one of these b. Rationale: under oath increases reliability of the witness‟ statement [more likely to be truthful]; fact that it was in trial proceeding means there was opportunity for scrutiny of witness‟ statement [cross-examinable]causes to feel that these statements are sufficiently reliable to offer for TOMA, in addition to impeachment c. Case: US v. Day (1986)—government introduced a prior sworn recorded statement by D that resulted from interview with government agents…offered for TOMA i. Statements must be given under oath and subject to penalty of perjury = statements made under informal circumstances are tantamount to station house interrogation settingdenied admissibility under 801(d)(1)(A) [prior inconsistent statements for TOMA] ii. NOT sure if the government official had authority to issue oath under penalty of perjury iii. Sworn statement of partisan government official does NOT count d. Cal. R. § 1235: Inconsistent Statement—evidence of a statement made by a witness is NOT made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with § 770 i. NO limitations!! ii. Does NOT have to be under oath/penalty of perjury iii. Does NOT have to be a recent proceeding, trial, hearing, deposition = evidence will come in to prove TOMA, that would be excluded under Federal Rules [prior impeaching statement admitted] e. E.g.—D asks A: didn‟t you say in deposition that robbery occurred at teller number 3, now testifying that occurred at teller number 2Prior statement admitted: i. To impeach A AND ii. For the truth of the matter asserted [deposition made under oath subject to penalty of perjury] 2. (B) Consistent Statement: a. Elements: i. Rebuts improper motive or recent fabrication [means lying] ii. Made before b. Example: i. Sequence of Events: 1. Day 1: declarant witness says “Light was Red” 2. Day 5: defendant gives DW a job 3. Day 30: DW testifies “Light was Red” 4. Trial: DW testifies “Light was Red”…didn‟t you say this because you got a job from D?
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ii. Statement on Day 1 is the ONLY admissible statement at trial…NOT Day 30 because it was after [NOT made before]can be offered for rehabilitation iii. Isn‟t it a fact that you have terrible memory and couldn‟t remember what color the light was?? NOT impeachment by inconsistent statements, but impeachment by lack of memoryNONE of these statements will be admitted [does NOT rehabilitate] c. Example: i. Sequence of Events: 1. Day 1: Light was Red 2. Day 5: Light was Green 3. Day 30: Light was Red 4. Trial: Light was Red ii. NONE of these statements rehabilitate…fact that he said different things does NOT matter: 1. Fed. Rules = inadmissible [do NOT quantify number of inconsistent statements] 2. Cal. Rule § 791 = admissiblecan be offered to prove the truth any time person has offered prior inconsistent statement to prove the truth [will weigh] d. Cal. R. § 791: Prior consistent statement of witness—evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility UNLESS it is offered after: i. Evidence of a statement made by him that is inconsistent with any party of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement ii. Express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen 3. (C) Prior Identification: a. Element: Statement of identification after the witness has perceived the person being identified [essentially ALL prior identifications come in] b. Rationale: Identifications made close in time are more likely to be fresh in mind of witness and in court room the identification is suggestive [prior ID is more reliable than in court ID] c. E.g.—arises in criminal cases where witness has ID alleged perpetrator of crime in lineup, photo array, or show upprior identification is closer in time to event and consequently may be preferable to subsequent in-court identification Cal. R. Evid.—different approach…says that it is HEARSAY, but admissible [exception to hearsay]!! Problems: i. 10-18: Slip and fall case…P called W to testify that moment before P fell the ground was full of mud and muckcross-examination W asked if she stated in deposition 3 weeks after the accident that the area looked damp, but was firm and solid…Prior statement is admissible 1. Can be offered as impeachment of witness [inconsistent statements] = NOT hearsay 2. Can be offered to prove TOMA [deposition under oath] = 801(d)(1)(A) ii. 10-19: At trial, L is cross-examined about contents of attaché case carrying 2 years earlier…L responds to P‟s counsel by saying it only contained 2 pairs of socks and NO classified papers 1. If 1 month prior to trial, L made prior inconsistent statement to friend about contents of case = NOT in trial, proceeding, hearing a. Fed. Rules—NOT admissible to prove TOMA [only impeachment] b. Cal. Rules—admissible for BOTH TOMA and impeachment 2. If L made prior statement about case to police during interrogation a. NOT situation where statement would receive objective scrutiny b. NOT admissible for TOMA 3. If prior inconsistent statement to friend in (1) is elicited on cross-examination can L testify on redirect examination that I told my wife, 2 years ago that the case only contained 2 pairs of socks and NO classified papers a. Fed. Rules—L has already been impeached—does NOT rehabilitate his credibility [attack on credibility based on inconsistent statement does NOT rehabilitate…just shows that changing his story] b. Cal. Rules—will come in under § 291(a) [attack on prior inconsistent statements = admitted as TOMA!]
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iii. 10-20: B testifies in commercial litigation action about books kept by D company…on cross-exam B is asked whether the figures he quotes were recently created due to multi-million dollar judgment in this law suit…on re-direct B stated “Hey, I told my partner more than 1 year ago, before I ever heard of this suit, that those were the correct figures” 1. Attack on credibility based on improper motive 2. Admissible under 801(d)(1)(B) = prior consistent statements that predate improper motive that is being offered to rebut [does NOT matter that prior statement was NOT under oath] iv. 10-21: R gave cashier a counterfeit $20 bill, prompting cashier to call police. When police arrived, cashier pointed to R as person who handed her counterfeit bill. R arrested and prosecuted…at trial cashier testifies that she did NOT remember what perpetrator looked like, then cashier testified about her prior ID of RNON-Hearsay = meets standards of 801(d)(1)(C) of prior identification v. 10-22: Blind man grabs person who was trying to pick his pocket and holds him…police arrive and detain pickpocket…blind man says “This guy tried to rob me” patting the pickpocket at his side, who remains silent…policeman testifies to blind man‟s statementPoliceman could NOT testify UNLESS blind man was also going to testify concerning event = NOT admissible because police testifying [NOT declarant…HEARSAY] vi. 10-23: In robbery trial, E testifies that she saw D snatch victim‟s purse and quickly exit the mall through K-Mart. E added “I ran up to Officer T. I was out of breach and couldn‟t speak. Later, he showed me several photographs. I pointed to the photograph of the D, indicating that he was the guy who snatched the purse and ran out of K-Mart” 1. Classically HEARSAYbut because prior statement of identification under 801(d)(1)(C) it is NOT hearsay 2. E wishes to testify that “my best friend was standing right next to me when D ran out of store. M also told police after looking at the pics that the D was the fellow who snatched the purse”NOT admissible, UNLESS there is indication that best friend is the next witness [declarant (best friend) is NOT testifying] FED. R. EVID. 801(d)(2): a. Fed. R. 801(d): Statements which are NOT hearsay. A statement is NOT hearsay if… i. (2): Admission by party-opponent—The statement is offered against a party and is: 1. (A) the party‟s own statement, in either an individual or a representative capacity or 2. (B) a statement of which the party has manifested an adoption or belief in its truth, or 3. (C) a statement by a person authorized by the party to make a statement concerning the subject, or 4. (D) a statement by the party‟s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or 5. (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy ii. The contents of the statement shall be considered but are NOT alone sufficient to establish the declarant‟s authority under (C), the agency or employment relationship and scope under (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under (E) b. Admission by a Party Opponent: i. Requirements: 1. Party—declarant MUST be a party to the litigation 2. Admission/statement offered 3. Against opponent—1 co-defendant can NOT offer against other co-defendant because NOT opponents ii. TYPES: 1. (A) Own statement—personal knowledge is NOT needed a. E.g.—when made statement was making assumption, NOT with personal knowledge [almost always required as foundation (witness saw it)] = NOT required here…party can get on stand and explain it b. NOT going to limit it [party responsible for own utterances] 2. (B) Adoptive admission a. Person affirmatively answers question or by conduct intends to adopt a statement made by another individual b. Adoption by silence—silence can adopt statement made by another individual...Requirements: i. Heard statement = NO distractions or impediments to hearing ii. Would refute if NOT true 1. E.g.—isn‟t it true that you were the one who stole the money from the cafeteria
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Depends on setting = law school v. gang setting (cool to steal) v. card game (everyone joking) iii. Serious accusation = people would take it seriously iv. Nothing prevents response = NO impediment 1. E.g.—D is told he has right to remain silent = viewed as encouraging D to remain silent and warning bad things may happen if says anything 2. US v. Flecha (2nd Cir. 1976)—D convicted of importing marijuana and agent testified that co-conspirator said to D „If we are caught, we are caught‟ = found that since the conspiracy was over and the statement was NOT in furtherance of it, it is inadmissible; NOT admitted on adoptive admission by silence 3. Can be interpreted differently (C) Speaking agent a. E.g.—lawyer hired as speaking agent of client; PR people; real estate agent b. Authorize agent to offer for sale “House for sale. Barn includes 2 horses.” i. If trying to prove terms of the offer: 1. NOT hearsay because verbal act, classic non-hearsay 2. It is ALSO NOT hearsay because it is by speaking agent ii. If trying to prove the barn contains 2 horses: 1. Verbal act is NOT applicable because offered as TOMA = HEARSAY 2. NON-hearsay because by speaking agent (D) Employee/agent a. Requirements: i. During employment/agency ii. Statement regarding scope of employment/agency [E.g.—manure salesman talking about tax evasion is NOT in scope of employment] b. Cal. R. § 1224: Statement of declarant whose liability or breach of duty is in issue— when the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is as admissible against the party as it would be if offered against the declarant in an action involving that liability, obligation, duty or breach of duty i. Declarant MUST be the person upon whose the liability is based!! ii. LIMITS more than Fed. Rules c. Mahlandt v. Wild Canid Survival & Research Ctr. (8th Cir. 1978)—attack of domesticated wolf on child; P offered note written by employee of D corporation to superior that the wolf bit a child = found made by employee when he was agent/servant of D and concerned matter within scope of his employment [custody of wolf] and during existence of that relationship i. Does NOT need to be made to a 3rd party [a party‟s books or records are useable against them, without regard to any intent to disclose to 3rd persons] ii. Court refused to apply the personal knowledge limitation or to whom the statement was made 1. Employee to supervisor [internal communication is ok] AND 2. NO personal knowledge is required (E) Coconspirator statements—NOT limited to criminal cases [however, 98% in cases where conspiracy is charged] a. Requirements: i. Coconspirator (coventurer) ii. During (pendency) 1. NOT post-arrest, but during conspiracy…termination of their membership, terminates conspiracy as to them 2. Interest has diverged = getting himself off iii. In furtherance (furtherance) 1. Can NOT be casual off hand remark made to a friend 2. E.g.—statements reassuring buyers of cocaine, this guy made 1,000 sells and was never caught [further assurance of buyer and seller] b. Judge has to determine by preponderance of evidence that he believes in existence of conspiracy…jury must decide beyond a reasonable doubt
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iii. Statement that person is speaking agent; employee agent; coconspirator is NOT sufficient to prove, MUST have additional evidence to prove by preponderance of evidence [judge determines] = statement CAN be used though iv. Justification: 1. Opportunity for declarant to clarity—out of fairness 2. Doesn‟t seem fair to hold party to something they said, but can get on stand and explain it 3. More reliable Problems: i. 10-24: B charged with murdering D at the Cotton Club on 6/13 at midnight…B raises defense of mistaken identity, alleging she was out of town…prosecution offers witness she states that “B told me on 6/13 that she intended to go to the Cotton Club that night”NOT statement that admits anything, her own statement offered by prosecution against her = satisfies 801(d)(2)(A) party admission ii. 10-25: Dispute in defamation action of whether statement made by D was about the P as required…on cross-examination of the D, she virtually conceded that the statement in question concerned the P 1. D‟s testimony is NOT binding in that other evidence is barred 2. Pleadings made by attorneys are judicially binding (complaint and answer) iii. 10-26: Plane flying for HA was forced to make emergency crash landing after engines failed…pilot jumped out and stated to press “While I did NOT see the mechanics work on this plane, this landing was due to the incompetence of the mechanics and NOT pilot error, I‟ll tell you that!” 1. Suit against pilot: admissible as NON-hearsay under 801(d)(2)(A) because party‟s own statement…does NOT matter whether pilot had personal knowledge!! 2. Suit against HA: matter within scope of employment (why airplane crashed); personal knowledge NOT required = admissible under 801(d)(2)(D) iv. 10-27: G, at weekly card game, was being teased by other card players…Hey G, I heard you were the person responsible for sticking up the bank last week and escaping with $83,000 in new $50 bills. Is it true? G did NOT respond, but smiled weakly and dealt cards 1. May be another explanation for silencerule out other rational explanations as to why he remained silent…however, weak smile can be read both ways 2. Probably NOT going to be admitted because there is another explanation [teasing in weekly card game] = precludes 801(d)(2)(B) v. 10-28: At Bilkem, the press secretary, JH, spoke to the media about alleged charged of company pollution. JH stated “In the immediate neighborhood, we only release treated sludge that has been proven safe enough to eat, not that I would recommend it”…suit against Bilmenshow that JH is speaking agent and will be admitted as NON-hearsay under 801(d)(2)(C) vi. 10-29: L, account with SBP Co., a chemical manufacturer stated at a private dinner party to friends that SBP is really pouring those hazardous chemicals into the river…in subsequent suit accusing of SBP of dumping chemicals in river, one of friends who heard L‟s statement called to testify for PNOT admissible without some showing that accountant had this within his responsibility [NOT within accountant‟s scope of employment (before fired)] 1. Chemical dumping is NOT equal to accounting duties 2. During employment = NOT within workday, but before fired 3. If dealing with tax evasion = could be within accountant‟s scope of employment vii. 10-30: SC was a driver for Marko Brothers when she collided with another truck…accident caused damage to BOTH vehicles and spilled contents of truck. SC called her boss immediately after accident and said in loud voice “I‟m sorry, I think my foot had fallen asleep when accident occurred”…boss then said “You‟re fired!”SC statements admitted…does NOT matter that communication was made internally [to boss] = admissible, NOT hearsay and can be offered for TOMA [Employee 801(d)(2)(D)] 1. During employment—NOT fired yet 2. Statement regarding scope of employment—driving truck viii. 10-31: D, R and RR are co-owners of Deli…recently prosecuted for racketeering and mail fraud. At trial, prosecution offers statement made by R against BOTH, R said to RR 3 months prior to arrest that „we really need some Swiss Bank accounts to handle these questionable wire transactions”offered as coconspirator statements…if evidence that they were coconspirators, in addition to the statement [preponderance of evidence] 1. Admissible against R no matter what as own statement = 801(d)(2)(A) 2. Against RR = could be coconspirator [coconspirator; during; in furtherance] ix. 10-32: M, L, and S planned series of bank robberies…before they were able to carry out their intentions, police arrested them. During arrest, M blurted out “Okay, we were going to rob some banks. Your wouldn‟t have caught us except you got lucky; L and S mapped out ingenious plans” 1. Prosecution offers M‟s statement to police against L and S at trial = NOT admissible against coconspirator under 801(d)(2)(E) [conspiracy NO longer exists; NOT during; NOT in furtherance of conspiracy]
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Charge changes to attempted bank robbery, NOT conspiracy = a. Admissible against M as party admission = 801(d)(2)(A) b. NOT admissible against L and S 3. It matters whether D are being tried jointly or separately because you can NOT offer statement against co-defendants, UNLESS qualifies as co-conspirator statement [NOT here, because post arrest] a. If being tried together = inadmissible b. If being tried separately = admissible against Moe because own statement can always be admitted against him 801(d)(2)(A) REVIEW PROBLEMS: a. 10-33: M prosecuted for taking bribe from several contractors through attorney, G. At his trial, M testifies he didn‟t take any bribe and he wasn‟t even in same room with G at any time on evening in question… i. On cross, can D M be asked “Didn‟t you state in your deposition, „I was with G only a short time that evening?‟Admissible as prior inconsistent statement 801(d)(1)(A) 1. TOMA: prior statement of witness/declarant; under oath/penalty of perjury; deposition 2. Admissible to impeach witness as well ii. On cross, counsel implied that M recently manufactured his assertion that he did NOT spend time with G…on redirect, M is asked “What did you do later that evening after the party?” M answers “I told my wife that that crook G was at the party and I only yelled hello and exchanged the usual pleasantries from the adjacent room”Admissible as consistent statement offered in face of contrivance 801(d)(1)(B) iii. M also asked on redirect “Who was with G?” M answered “When I saw them, I told my friend S, „Hey, that‟s my opponent‟s campaign manager, T, with Gabe! Strange‟”Statement that is classic HEARSAY [NOT admissible] 1. Prior statement by testifying witness, NOT consistent or inconsistent with testimony 2. NOT relevant for identification!! b. 10-34: MB, black lab, was stolen by dognappers…2 months after theft, neighbor R positively identified dognappers in lineup…at dognappers‟ trial, R testified for prosecution: i. If identification of dognappers was inconsistent before trial than at trialcould come in as NOT hearsay under impeachment ii. If consistent, could offer as a prior identification [801(d)(1)(C)] = closer in time c. 10-35: AG Broker Co., in Mexico City with branches in NY and San Antonio charged with violations of securities regulations…translator for pres. of company stated at news conference, “Pres. is confident that the company will be cleared of all charged. He has fired disloyal member of board of trustees, MP, who set him up on the financial transactions in question”…statements by translator admissible: i. Against Pres.—speaking agent [801(d)(2)(C)] or statement in employment? ii. Against Company—translator is speaking agent [and PR person] = admissible under 801(d)(2)(C) d. 10-36: Dispute at trial whether B was acting as agent of employer GB when there was accident involving GB truck B was driving…truck barreled into home, several hours later B told police officer preparing accident investigation report “I am the agent of GB and accident was all my fault. The bread shifted and I turned to look, boom there I was in the home. I was much better at my other jobs”…B‟s statements admissible against GB in action against company? i. Statement „I am an Agent‟ does NOT alone prove that agent for GB, but driving truck is good indication that he was Agent [preponderance of evidence] ii. Admissible under 801(d)(2)(D): he was agent and in scope of employment when it happened e. 10-37: M was Chief Operating Officer for L‟s Limo Service…after being informed car was in accident for 3rd time that month…M threw hands up and exclaimed “Car is Willie‟s and I‟ll bet the accident was our fault because he was probably drinking again”…M‟s statement admissible at trial in action against L‟s Limo Service: i. She is in charge of company‟s operations…controlling the company‟s drivers is in the scope of her employment ii. She does NOT have personal knowledge that he was drinking, but it is NOT required for 801(d)(2)(D) = statement by agent offered against the company f. 10-38: C and B made elaborate plan to kill C‟s husband, but were caught before they carried it out…as police handcuffed them, B yelled „I didn‟t think this plan of ours about your H had any holes in it; these cops are lucky to catch us” i. B‟s statements are admissible against him for conspiracy to commit murder under 801(d)(2)(A) as party‟s own statement ii. B‟s statements are NOT admissible against C because upon arrest B is NO longer a member of conspiracy [NO pendency]Post arrest statements are NOT admissible!!
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