CHAP. 4, part 1 of 3:
DEFINITIONAL EXCEPTIONS
TO THE MEANING OF
HEARSAY
Prof. JANICKE
2015
IF OUT-OF-COURT DECLARANT
IS A WITNESS AT TRIAL
• A FEW DEFINITIONAL EXCEPTIONS
TO “HEARSAY” APPLY [R 801(d)(1)]
2015
Chap. 4, part 1
2
(1) PRIOR INCONSISTENT
STATEMENT
– ALWAYS ALLOWED TO IMPEACH
– NOW PROPONENT IS TRYING TO GET
IT IN TO ESTABLISH TRUTH AS WELL
– HAS TO HAVE BEEN UNDER OATH
– HAS TO HAVE BEEN IN A FORMAL
PROCEEDING [HENCE A LIMITED
RULE]
2015
Chap. 4, part 1
3
(2) PRIOR CONSISTENT
STATEMENT
• [DELETED FROM THIS COURSE]
2015
Chap. 4, part 1
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(3) STATEMENT OF
IDENTIFICATION OF A PERSON
• [DELETED FROM THIS COURSE]
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Chap. 4, part 1
5
A CLOSER LOOK AT
“ADMISSIONS” [R 801(d)(2)]
• RECALL: WE DON’T ANALYZE
WHICH WAY THE STATEMENT CUTS
• IF IT’S A PARTY’S STATEMENT, AND
OFFERED BY THE OPPOSING
LAWYER, IT IS AN “ADMISSION”
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Chap. 4, part 1
6
WHO THE WITNESS ON THE
STAND IS DOESN’T MATTER
•
•
EXAMPLE: OUT-OF-COURT
STATEMENT BY CIVIL-CASE
DEFENDANT
PLAINTIFF’S LAWYER CAN
INTRODUCE IT BY:
1. ASKING PLAINTIFF ABOUT IT
2. ASKING DEFENDANT ABOUT IT
3. ASKING A BYSTANDER ABOUT IT
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Chap. 4, part 1
7
EXAMPLE:
WHAT MR. JONES SAID
2015
TRIAL IN JONES v. SMITH
HIGH UP
BENCH (JUDGE)
JONES
CLERK AND REPORTER
PODIUM
COUNSEL FOR SMITH
JURY
COUNSEL FOR JONES
RAILING
SPECTATORS
( FOR SMITH)
2015
SPECTATORS
(FOR JONES)
TRIAL IN JONES v. SMITH
HIGH UP
BENCH (JUDGE)
BYSTANDER
CLERK AND REPORTER
PODIUM
COUNSEL FOR SMITH
JURY
COUNSEL FOR JONES
RAILING
SPECTATORS
( FOR SMITH)
2015
SPECTATORS
(FOR JONES)
TRIAL IN JONES v. SMITH
HIGH UP
BENCH (JUDGE)
SMITH
CLERK AND REPORTER
PODIUM
COUNSEL FOR SMITH
JURY
COUNSEL FOR JONES
RAILING
SPECTATORS
( FOR SMITH)
2015
SPECTATORS
(FOR JONES)
TRIAL IN JONES v. SMITH
HIGH UP
BENCH (JUDGE)
SMITH
CLERK AND REPORTER
PODIUM
COUNSEL FOR SMITH
JURY
COUNSEL FOR JONES
RAILING
SPECTATORS
( FOR SMITH)
2015
SPECTATORS
(FOR JONES)
TRIAL IN JONES v. SMITH
HIGH UP
BENCH (JUDGE)
BYSTANDER
CLERK AND REPORTER
PODIUM
COUNSEL FOR SMITH
JURY
COUNSEL FOR JONES
RAILING
SPECTATORS
( FOR SMITH)
2015
SPECTATORS
(FOR JONES)
TRIAL IN JONES v. SMITH
HIGH UP
BENCH (JUDGE)
JONES
CLERK AND REPORTER
PODIUM
COUNSEL FOR SMITH
JURY
COUNSEL FOR JONES
RAILING
SPECTATORS
( FOR SMITH)
2015
SPECTATORS
(FOR JONES)
STATEMENT ADOPTED BY A
PARTY [R 801(d)(2)(B)]
– OFTEN VAGUE IN ITS OPERATION
– COULD BE BY EXPLICITLY SAYING
“THAT’S OUR VIEW AS WELL”
– COULD BE BY SILENCE WHEN AN
OUTSIDER SAYS THAT’S THE FACT
– COULD BE BY MERELY FILING AWAY
THE STATEMENT ??
2015
Chap. 4, part 1
15
VICARIOUS ADMISSIONS
(INCLUDING ADMISSIONS OF
ORGANIZATIONS)
• KEEP IN MIND WHO THE PARTIES ARE:
– CRIMINAL CASE: STATE (OR U.S.); AND D
– CIVIL CASE: PLAINTIFF AND DEFENDANT
• ONLY A PARTY’S OUT-OF-COURT
STATEMENT QUALIFIES UNDER THIS
DEFINITIONAL EXCEPTION
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16
THE PARTY NEED NOT HAVE
SAID IT HIMSELF
• COULD BE BY AN EMPLOYEE
• COULD BE BY A CURRENT
ACCOMPLICE
• ETC.
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17
OUT-OF-COURT STATEMENT BY
AGENT OR SERVANT [R801(d)(2)(D)]
• AGENT: ONE EMPOWERED TO BIND
ANOTHER (THE PRINCIPAL) IN
CONTRACT
• SERVANT: PERSON SUBJECT TO
COMMANDS OF ANOTHER; AN
EMPLOYEE
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SERVANTS ARE THE MAIN
SOURCE OF COMPANY’S
ADMISSIONS
– ESPECIALLY INTERNAL DOCUMENTS
•
•
•
•
EMAIL
MEMOS
LETTERS
POSTINGS
– ALSO PHONE CONVERSATIONS
– SALES PITCHES
– ETC.
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THE PARTY NEED NOT HAVE
AUTHORIZED THE DECLARANT
TO SPEAK FOR HER!
• STATEMENTS MADE BY EMPLOYEES
ARE ADMISSIONS OF THE EMPLOYER
IF THEY ARE JOB-RELATED
• THEY DO NOT HAVE TO BE
AUTHORIZED, AND WILL QUALIFY
EVEN IF FORBIDDEN
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20
• IN A MULTIPLE-DEFENDANT OR
MULTIPLE PLAINTIFF CASE:
– THE STATEMENT OF AN EMPLOYEE IS
AN ADMISSION OF THE EMPLOYEE
[801(d)(2)(A)]
– IT IS ALSO AN ADMISSION OF THAT
PERSON’S EMPLOYER [801(d)(2)(D)]
• SAME FOR CO-CONSPIRATORS,
AGENTS, ETC.
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• BUT, IS HEARSAY AS TO OTHER
DEFENDANTS / PLAINTIFFS IN THE
CASE
– IT WAS NOT THEIR SERVANT/AGENT
SPEAKING
• HOW TO DEAL WITH THIS?
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22
OUT-OF-COURT STATEMENT CAN
BE BY AN AUTHORIZED PERSON
[R801(d)(2)(C)]
• INCLUDES, FOR EXAMPLE:
– PARTY’S LAWYER -- E.G., IN A
PLEADING OR MOTION PAPER
– PRESS SPOKESPERSON
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OUT-OF-COURT STATEMENT OF
A PARTY’S CO-CONSPIRATOR
[R801(d)(2)(D)]
• TWO MAJOR CONSTRAINTS -– STMT. WAS MADE DURING THE
CONSPIRACY, i.e., NOT AFTER
ARREST
– STMT. WAS MADE IN FURTHERANCE
OF THE CONSPIRACY
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PROBLEMS / CASES
•
•
•
•
•
•
SMITH
4A
MOTTA
4B
4D
Hoosier
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(cont’d)
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25
•
•
•
•
Doyle
4F
Mahlandt
4H
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26