32 - Hearsay Exemptions 801 Flashcards
801(d) Defines some statements as non-hearsay - 2 categories
- (1) prior inconsistent statements, (2) prior consistent statements, and (3) statements of identification
- Statements (“admissions”) of party opponents: (1) individual admissions, (2) adoptive admissions, (3) authorized admissions, (4) agent admissions, and (5) co-conspirator admissions.
Prior Inconsistent Statements: FRE 801(d)(1)(A)
801 - 4 conditions must be satisfied for admissibility:
(1) the declarant must testify, subject to cross-examination, at the current trial;
(2) the prior statement must be inconsistent with the witness’s trial testimony;
(3) the prior statement must have been given under penalty of perjury (under oath); and
(4) the prior statement must have been made “at a trial, hearing, or other proceeding, or in a deposition.”
Prior Consistent Statements: FRE 801(d)(1)(B)
- Admissible and W is subject to cross-examination at trial. (statement of a witness who asserts the privilege against self-incrimination is not admissible)
Prior Consistent Statements: FRE 801(d)(1)(B) - “Premovtive” Requirement
- Tome v. United States, SC held that Rule 801(d)(1)(B) applies only when the statements “were made before the charged recent fabrication or improper influence or motive.” The Court found that the rule implied a temporal requirement that “the consistent statements must have been made before the alleged influence, or motive to fabricate arose.” In the Court’s view, a consistent statement that predates the improper influence or motive to fabricate forcefully refutes a charge of improper influence or motive, whereas a consistent statement made after the alleged improper influence or motive to fabricate had arisen has far less probative force in refuting the charge.
Ex - A W is cross-examined about receiving money to influence the witness’s testimony, a type of bias impeachment. The cash was provided on June 1. If the witness made a statement consistent with her trial testimony on May 1, the consistent statement rehabilitates credibility. It was made before the alleged motive arose.
- Determining when a motive to fabricate arises has divided the courts.
- According to the Eleventh Circuit, “statements made after arrest are not automatically and necessarily contaminated by a motive to fabricate in order to curry favor with the government.”18 Moreover, the court declined to adopt a bright line regarding arrest.19 Instead, a case-specific factual inquiry is required
Prior Consistent Statements: FRE 801(d)(1)(B) - Rehabilitation
- Fed courts say a statement’s inadmissibility under the rule precludes substantive but not rehabilitative use.
- 2014 amendment also permits the substantive use of prior consistent statements “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.”
- For example, if a witness is impeached based on a deficient memory, a prior consistent statement made near the time of the crime would tend to rehabilitate that witness.
Statements of Identification: FRE 801(d)(1)(C)
- W’s prior statement identifying a person as someone that the witness had perceived earlier is admissible as substantive evidence (regardless of whether or not the witness makes an in-court ID)
- As long as W is SUBJECT TO CROSS-X, testimony of other witnesses who were present at the time of the identification is admissible
- Ex. a robbery V may have IDd the defendant at a lineup when the defendant had a beard. If the victim cannot positively identify the defendant at trial because the beard has been shaved, the lineup identification is nevertheless admissible through the testimony of a police officer who was present at the lineup.
Statements of Identification: FRE 801(d)(1)(C) - Cross-Examination Requirement
- In United States v. Owens, a hospitalized W, who had suffered a fractured skull, identified Owens as his attacker and picked his picture from an array of photographs.
- At trial, the witness testified about the attack, including his identification of Owens while in the hospital.
- On cross-examination, however, the witness admitted that he could not remember seeing his assailant.
- The Supreme Court held that Rule 801(d)(1)(C) had been satisfied. The witness had been subjected to cross-examination about the statement. He took the stand and responded willingly to questions. The witness’s impaired memory did not mean that cross-examination was lacking.
- The Court also ruled that the Confrontation Clause did not bar this evidence. According to the Court, that Clause guarantees only an opportunity for effective cross-examination. This right is satisfied when the defendant has the opportunity to bring out such matters as a bad memory during the examination.
Statements of Identification: FRE 801(d)(1)(C) - Constitutional Requirements
- 801(d)(1)(C) covers only the hearsay aspects of pretrial identifications.
- In criminal cases, identification evidence also must satisfy Sixth Amendment and due process mandates. The Sixth Amendment requires the presence of counsel at some types of identification procedures. Due process directs that identification evidence be reliable
Statements (“Admissions”) of Party-Opponents: Overview
- 801(d)(2) exempts statements (“admissions”) of a party-opponent from the hearsay rule by defining them as non-hearsay.
- FR - an admission is classified as an exception to the hearsay rule under a different theory than the CL
- The rule recognizes five types of party admissions: (1) individual admissions, (2) adoptive admissions, (3) authorized admissions, (4) agent admissions, and (5) co-conspirator admissions.
- Regulated by 408 (excludes compromises and offers of compromise) and 410 (excludes certain pleas, offers to plead, and statements in criminal cases.)
- 2011 title of the rule changed from “admissions” to “statements”:
Statements (“Admissions”) of Party-Opponents: - Rationale
- treated as non-hearsay, rather than as an exception to the hearsay rule, for 2 reasons.
1. Principal objection to hearsay evidence is that the party against whom the hearsay statement is offered has been denied the opportunity to cross-examine the declarant. A party-opponent cannot object on this ground, however, “because he does not need to cross-examine himself.”
2. virtually all hearsay exceptions are based on some circumstantial guarantee of trustworthiness. There is no guarantee of trustworthiness for party admissions. The firsthand knowledge rule does not apply. The opinion rule does not apply. Also, the statement need not be against interest when made. Instead, party admissions “are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule.”- In other words, the adversary system imposes upon a party the burden of explaining her prior statements. Note that this rationale breaks down with vicarious admissions, such as those made by co-conspirators.
Statements (“Admissions”) of Party-Opponents: - Evidential and Judicial Admission Distinguished
- 801(d)(2) deals with evidential admissions not the use of judicial admissions, such as admissions in pleadings or in stipulations.
- Unlike evidential admissions, which can be rebutted at trial, judicial admissions bind a party. JUDICIAL ADMISSION (unless allowed by ct to be withdrawn) IS CONCLUSIVE IN THE CASE whereas an evidentiary admission is not binding and is subject to contradiction or explanation.
Statements (“Admissions”) of Party-Opponents: - Firsthand Knowledge and Opinion Rules
- Neither the firsthand knowledge rule nor the opinion rule applies to admissions of a party-opponent.
- Assume, for instance, that the police telephone me and say my kid was in an automobile accident. I reply: “Oh. I am sure it was his fault.”
- That statement — in opinion form and without any personal knowledge — is admissible if I am sued for the accident. This result follows from the underlying theory of party admissions, which is based on the adversary system and not on the reliability of these statements.
- Parties should not be able to exclude their own statements on the ground that they did not have the opportunity to cross-examine themselves when they made the statement — whether or not they lacked firsthand knowledge or spoke in opinion terms. They are free to take the stand and explain the statement to the jury.
Individual Admissions: FRE 801(d)(2)(A) - Overview
- Statements, oral or written, of a party, in either her individual or representative capacity, are admissible as substantive evidence if offered against that party. (party cannot introduce own statements under this rule.)
Define individual admission
- any statement made by a party that is inconsistent with that party’s position at trial.
OR
- any statement made by a party at any time is admissible as an admission if (1) relevant and (2) offered by the opposing party. They can range from deposition testimony to casual statements made to friends.
Individual Admissions: FRE 801(d)(2)(A) - Confessions
- confession of a crim D is an admission of a party-opponent.
- where confessions can be viewed as a complete acknowledgment of guilt and admissions as something less, the distinction is not important b/c both are ADMISSIBLE under Rule 801(d)(2)(A).48
“[T]he statements need neither be incriminating, inculpatory, against interest, nor otherwise inherently damaging to the declarant’s case.”49 The rule governs only the hearsay aspects of confessions. It is not concerned with the constitutional requirements surrounding how police obtain statements from defendants.
Individual Admissions: FRE 801(d)(2)(A) - “Privity” Admissions
- Privity admissions are not admissible under Rule 801(d)(2).
- No provision encompasses such statements, and thus they are hearsay if offered for their truth content.
- Such statements, of course, may be admissible under a different rule — for example, as statements against interest51 or agent admissions.
