Chapter 8 Hearsay: Exclusions (Evidence Book p. 338- 340

Question 1

There are two general categories of statements that technically satisfy the definition of Hearsay FRE 801(a)-(c) but nevertheless are not defined as hearsay under the rules.

What rules?

Answer 1

FRE 801(d)(1)
FRE 801(d)(2)

Question 2

These two general categories of statements can be thought as “________ ________ or ________.” FRE 801(d)(1)-(2).

Answer 2

heresy exclusions or exemptions

Question 3

These two general categories of statements can be thought as “Hearsay Exclusions or Exemptions.” They are
1.
2.

Answer 3

(1) FRE 801(d)(1) - Declarant-Witness’s Prior Statements (A) - (C)

(2) FRE 801(d)(2)(A)-(E) - Opposing Party Statement’s

Question 4

FRE 801(d)(1)(A)-(C) refer to what?

Answer 4

Declarant-Witness’s Prior Statements

Question 5

Under Rule 801(d)(1), if the _________-________(referred to as both a _______ and a _______ here because the ________ on the stand is being asked about a prior out of court statement made by that _________ when she was in her capacity as a __________ who made the prior statement in question) is available at trial, and subject to cross- examination, there are three types of prior statements that are NOT considered hearsay and therefore admissible.

Answer 5

Declarant-Witness

Declarant

Witness

Witness

Witness

Declarant

Question 6

FRE 801(a)(1)(A)

Refers to what?

Answer 6

Prior Inconsistent Statements

Question 7

If the declarant-witness’s prior out-of-court statement is inconsistent with what she is now saying in court, and that previous statement was made _____ _______ and given at a _____, ________, _________ or ________ _________ then that prior inconsistent statement is admissible and can be used for the truth of the matter asserted herein.

Answer 7

under oath

trial
hearing
deposition
other proceeding

Question 8

If the declarant-witness’s prior out-of-court statement is ________ with what she is now saying in court, and that previous statement was made under oath and given at a trial, hearing, deposition, or other proceeding then that prior _________ statement is admissible and can be used for the truth of the matter asserted herein.

Answer 8

inconsistent

inconsistent

Question 9

Note that the prior inconsistent statement need not be ________ _______ to the declarant witness’s current testimony in order to be considered inconsistent.

Answer 9

diametrically opposed

Question 10

Thus, a _____ _____ of _______ by the declarant-witness can make her more definitive prior statement “inconsistent” with her current, less definitive, testimony.

Answer 10

present lapse of memory

Question 11

FRE 801(d)(1)(B): If the declarante -witness’s prior statement is consistent with what she is now saying in court, and that previous statement was made ________ a charge of recent fabrication or improper motive, then that statement is admissible and can be used to prove that the declarant-witness is now lying.

Answer 11

BEFORE

Question 12

FRE 801(d)(1)(B): If the declarant-witness’s prior statement is _________ with what she is now saying in court, and that previous statement was made BEFORE a charge of recent fabrication or improper motive, then that prior __________ statement is admissible and can be used to prove that the declarant-witness’s story has been consistent all along, despite the suggestion that the declarant-witness is now lying.

Answer 12

Consistent
Consistent

Question 13

FRE 801(d)(1)(B): If the declarant-witness’s prior statement is consistent with what she is now saying in court, and that previous statement was made BEFORE a charge of recent _________ or _______ ______, then that prior consistent statement is admissible and can be used to prove that the declarant-witness’s story has been consistent all along, despite the suggestion that the declarant-witness is now lying.

Answer 13

Fabricaron

Improper motive

Question 14

Note, that prior ________ _________ need not be made under oath, or given at a trial, hearing, deposition or other proceeding, like a prior inconsistent statement under FRE 801(d)(1)(A).

Answer 14

Consistent statement

Question 15

However, if the prior consistent statement is not used to rebut a charge of recent fabrication or improper motive, then even though it is a prior consistent statement, it will be ____________ _________.

Answer 15

Inadmissible hearsay

Question 16

However, if the prior consistent statement is not used to rebut a charge of _______ _______ or ________ ______, then even though it is a prior consistent statement, it will be inadmissible hearsay. If it were otherwise, trials would slow down greatly because all prior consistent statements would be used with every declarant-witnes on direct examination to support credibility.

Answer 16

Recent fabrication

Improper motive

Question 17

FRE 801(d)(1)(C).

What does this refer to?

Answer 17

Prior Statement of Identification of a Person

Question 18

If the declarant-witness’s prior statement is an _________ of a _____ made after perceiving him, then that prior identification will be admissible (whether consistent or inconsistent with current testimony) to prove the declarant-witness previously identified the person. Note that the specific requirements of either FRE 801(d)(1)(A) or (B), prior inconsistent or consistent statements are not necessary. Prior identifications are considered reliable and are admissible.

Answer 18

Identification of a person

Question 19

If the declarant-witness’s prior statement is an _________ of a _____ made after perceiving him, then that prior identification will be admissible (whether consistent or inconsistent with current testimony) to prove the declarant-witness previously identified the person. Note that the specific requirements of either FRE 801(d)(1)(A) or (B), prior inconsistent or consistent statements are not necessary. Prior identifications are considered reliable and are admissible.

Answer 19

Identification of a person

Question 20

If the declarant-witness’s prior statement is an identification of a person made after perceiving him, then that prior identification will be admissible (whether consistent or inconsistent with current testimony) to prove the declarant-witness previously identified the person. Note that the specific requirements of either FRE 801(d)(1)(A) or (B), prior inconsistent or consistent statements are not necessary. Prior identifications are considered _________ and are admissible.

Answer 20

Reliable

Question 21

FRE 801(d)(2)
(A) ?
(B)
(C)
(D)
(E)
5 types of statements that are made by a party, or someone acting in a representative capacity of that party, that are admissible and not considered hearsay, provided these statements are used by the opposing party, and against the party who made them. Thus, a party cannot offer his own previous, self-serving out-of-court statements if used in a self-serving manner, such statements are inadmissible hearsay.

Answer 21

(A) A Party’s Own Statement

Question 22

FRE 801(d)(2)
(A)
(B) ?
(C)
(D)
(E)
5 types of statements that are made by a party, or someone acting in a representative capacity of that party, that are admissible and not considered hearsay, provided these statements are used by the opposing party, and against the party who made them. Thus, a party cannot offer his own previous, self-serving out-of-court statements if used in a self-serving manner, such statements are inadmissible hearsay.

Answer 22

(B) Adopted Statements

Question 23

FRE 801(d)(2)
(A)
(B)
(C) ?
(D)
(E)
5 types of statements that are made by a party, or someone acting in a representative capacity of that party, that are admissible and not considered hearsay, provided these statements are used by the opposing party, and against the party who made them. Thus, a party cannot offer his own previous, self-serving out-of-court statements if used in a self-serving manner, such statements are inadmissible hearsay.

Answer 23

(C) Authorized Statements

Question 24

FRE 801(d)(2)
(A)
(B)
(C)
(D) ?
(E)
5 types of statements that are made by a party, or someone acting in a representative capacity of that party, that are admissible and not considered hearsay, provided these statements are used by the opposing party, and against the party who made them. Thus, a party cannot offer his own previous, self-serving out-of-court statements if used in a self-serving manner, such statements are inadmissible hearsay.

Answer 24

(D) Statements by a Party’s Agent

Question 25

FRE 801(d)(2)
(A)
(B)
(C)
(D)
(E) ?
5 types of statements that are made by a party, or someone acting in a representative capacity of that party, that are admissible and not considered hearsay, provided these statements are used by the opposing party, and against the party who made them. Thus, a party cannot offer his own previous, self-serving out-of-court statements if used in a self-serving manner, such statements are inadmissible hearsay.

Answer 25

(E) Statements by Co-Conspirators

Question 26

FRE 801(d)(2)
(A)
(B)
(C)
(D)
(E)
5 types of statements that are made by a party, or someone acting in a representative capacity of that party, that are admissible and not considered hearsay, provided these statements are used by the opposing party, and against the party who made them. Thus, a party cannot offer his own previous, self-serving out-of-court statements if used in a self-serving manner, such statements are inadmissible hearsay.

Answer 26

(A) A Party’s Own Statement
(B) Adopted Statements
(C) Authorized Statements
(D) Statements by a Party’s Agent
(E) Statements by Co-Conspirators

Question 27

If a party personally made a statement, then that statement can be used by the opposing party, against the party who made the statement.

What does this refer to?

Answer 27

FRE 801(d)(2)(A) - A Party’s Own Statement

Question 28

FRE 801(d)(2)(A): A Part’s Own Statement. If a party personally made a statement, then that statement can be used by the _________ party, against the party who made the statement.

Answer 28

Opposing

Question 29

Even if the party does not personally make the statement, if the party adopts the statement of another person, as her own statement, or does something to show her belief in that statement (even by remaining silent), then that other person’s statement can be used by the opposing party, against the party to whom it is attributed, as if that party had made the statement herself.

What does this refer to?

Answer 29

FRE 801(d)(2)(B). Adopted Statements

Question 30

FRE 801(d)(2)(B). Adopted Statements. Even if the party does not personally make the statement, if the party adopts the statement of another person, as her own statement, or does something to show her belief in that statement (even by________ ________), then that other person’s statement can be used by the opposing party, against the party to whom it is attributed, as if that party had made the statement herself.

Answer 30

Remaining silent

Question 31

If a party officially authorizes someone to make statements on her behalf (like a publicist or spokesperson), then any representative statement made by that authorized person can be used by the opposing party, against the party to whom it is attributed, as if that party had made the statement herself.

What does this refer to?

Answer 31

FRE 801(d)(2)(C). Authorized Statements

Question 32

FRE 801(d)(2)(C). Authorized Statements. If a party officially authorizes someone to make statements on her behalf (like a publicist or spokesperson), then any _________ _________ made by that authorized person can be used by the opposing party, against the party to whom it is attributed, as if that party had made the statement herself.

Answer 32

Representative statement

Question 33

If a party has hired someone, or has arranged for someone to act as her agent in an employment context of some type, and if that agent made a statement that is (1) made in the scope of his employment/ agency; and, (2) made during the existence of that relationship, then that statement of the agent/employee can be used by the opposing party, against the party to whom it is attributed, as if that party had made the statement herself. However, a statement made by an employer/principal, of a party employee/agent, is not attributable to the party employee/agent. It is a “one-way street” only, from employee/agent to employer/principal.

What does this refer to?

Answer 33

FRE 801(d)(2)(D). Statement’s by a Party’s Agent

Question 34

FRE 801(d)(2)(D). Statement’s by a Party’s Agent. If a party has hired someone, or has arranged for someone to act as her agent in an employment context of some type, and if that agent made a statement that is (1) __________________________; and, (2) _______________________, then that statement of the agent/employee can be used by the opposing party, against the party to whom it is attributed, as if that party had made the statement herself. However, a statement made by an employer/principal, of a party employee/agent, is not attributable to the party employee/agent. It is a “one-way street” only, from employee/agent to employer/principal.

Answer 34

(1) made in the scope of his employment/ agency
(2) made during the existence of that relationship

Question 35

If a party was involved in a conspiracy, and a co-conspirators in that conspiracy made a statement that was (1) made during the course of the conspiracy; and (2) in furtherance of the conspiracy, then that statement can be used by the opposing party, against the party to whom it is attributed, as if that party had made the statement herself. Note that for parts (C)-(E) of FRE 801(d)(2) statements made by others in some representative capacity there is no pure bootstrapping allowed. This means that although these statements made in a representative capacity themselves can be considered when determining whether an authorization, agency, or conspiracy exists, there must ALSO be corroborating evidence showing the existence of these various representative capacity relationships with the party in question.

What does this refer to?

Answer 35

FRE 801(d)(2)(E). Statements by Co-Conspirators

Question 36

FRE 801(d)(2)(E). Statements by Co-Conspirators. If a party was involved in a conspiracy, and a co-conspirators in that conspiracy made a statement that was (1)______________________; and (2) ____________________________________________________________ Note that for parts (C)-(E) of FRE 801(d)(2) statements made by others in some representative capacity there is no pure bootstrapping allowed. This means that although these statements made in a representative capacity themselves can be considered when determining whether an authorization, agency, or conspiracy exists, there must ALSO be corroborating evidence showing the existence of these various representative capacity relationships with the party in question.

Answer 36

(1) made during the course of the conspiracy
(2) in furtherance of the conspiracy, then that statement can be used by the opposing party, against the party to whom it is attributed, as if that party had made the statement herself.