Class 16: Admissible Hearsay and the Hearsay Exemption for Prior Statements by Witnesses - Feb. 29 Flashcards
Are there any out-of-court statements that, despite meeting the definition of hearsay, are specifically exempted from the definition? (Q)
Yes. Some out-of-court statements, despite meeting the definition of hearsay, are specifically exempted from the definition and, therefore, are deemed not hearsay. These include:
Certain prior statements of a declarant-witness, which are exempted because the declarant-witness is at trial and able to be cross-examined about the prior statement; and
Certain statements of a party opponent, which are exempted because the party has the opportunity to explain, clarify, or diminish the importance of the statement at trial. (Q)
Under what circumstances is a prior inconsistent statement made by a testifying witness admissible for the truth of the matter asserted in the prior statement? (Russo)
A prior inconsistent statement made by a testifying witness is admissible for the truth of the matter asserted in the prior statement if:
(1) Declarant must testify at this trial under oath
(2) Declarant must be subject to cross examination
(3) Prior statement must be inconsistent with trial testimony
(4) Prior statement must be under oath
(5) Must have been made at an official proceeding (affidavits don’t count)
(FRE 801(d)(1)(A)) (2/29)
Under what circumstances is a prior consistent statement made by a testifying witness admissible for the truth of the matter asserted in the prior statement? (Russo)
A prior consistent statement made by a testifying witness is admissible for the truth of the matter asserted in the prior statement if:
(1) Declarant must testify at this trial under oath
(2) Declarant must be subject to cross examination
(3) Prior statement must be consistent with trial testimony
(4) Witness-declarant’s credibility must be attacked
(5) Prior statement must have probative value in rehabilitating the witness’s credibility
(FRE 801(d)(1)(B)) (2/29)
Under what circumstances is a declarant-witness’s prior identification exempted from the hearsay rule? (Russo)
A declarant-witness’s prior statement of identification is exempted from the hearsay rule if:
(1) Must testify at this trial under oath
(2) Must be subject to cross examination
(3) Prior statement must have been an identification
.
(FRE 801(d)(1)(C)) (2/29)
A defendant was charged with kidnapping, interstate domestic violence, and using a gun during the commission of a crime of violence against his girlfriend. At the grand jury, the girlfriend testified that the defendant kept a gun in his waistband and at one point chambered a bullet and threatened to kill her. However, at trial she denied that the defendant had a gun and denied that he threatened her with a gun. The prosecutor asked, “Didn’t you tell the grand jury that the defendant, ‘Kept a gun in his waistband, and at one point chambered a bullet and threatened to kill me’?” The defense objected that the statement was hearsay.
How should the court rule on the objection? (Q)
The court should overrule the objection because it is an admissible prior inconsistent statement by a declarant-witness. A witness’s prior inconsistent statement is admissible for the truth of the matter asserted in the prior statement if (1) the prior statement is inconsistent with the witness’s current testimony, (2) the witness is subject to cross-examination, and (3) the prior statement was given under penalty of perjury at a hearing or other proceeding.
Here, the girlfriend’s statement to the grand jury is inconsistent with her trial testimony that the defendant threatened her with a gun, she is on the stand and available for cross-examination, and the prior statement was given under penalty of perjury at the grand jury hearing. A grand jury hearing is a proceeding. The grand jury testimony is admissible as substantive evidence. Thus, the court should overrule the objection.
The defendant and a co-conspirator were charged with attempted robbery and conspiracy to commit robbery after they tried to rob a postal-service delivery truck. After the two were arrested, the co-conspirator made inculpatory statements to the federal agents and eventually testified against the defendant at trial. His statements at trial were consistent with his statements to the federal agents. The defendant argued at trial that the co-conspirator’s testimony was designed to gain favor with the government so he would receive a more favorable plea agreement. To bolster the co-conspirator’s testimony, the prosecutor moved to introduce the statements co-conspirator made to the agents after arrest. The defense objected, arguing that the statements were hearsay.
Should the court allow the prosecutor to introduce the co-conspirator’s prior consistent statement? (Q)
Yes. The court should admit the prior consistent statement. A prior consistent statement made by a testifying witness is admissible for the truth of the matter asserted in the prior statement if (1) the prior statement is consistent with the witness’s current testimony, (2) the witness is subject to cross-examination, (3) the statement is offered to rebut a charge that the speaker recently fabricated the statement, and (4) the consistent statements were made before the alleged motive to fabricate arose.
Here, the co-conspirator’s statement to the agent is consistent with his trial testimony, he is available for cross-examination, the prior statement is offered to rebut a charge that the co-conspirator recently fabricated the inculpatory testimony, and the statements were made before discussions of a plea agreement occurred. Thus, the court should admit the prior consistent statement.
Is a prior out-of-court statement made by an opposing party admissible for the truth of the matter asserted in the prior statement? (Q)
Yes. Any prior out-of-court statement made by an opposing party is excluded from the rule against hearsay and is admissible when offered against the party who made the statement. The statement can have been made in an individual or representative capacity and need not carry any additional guarantees of trustworthiness.
(FRE 801(d)(2))
Is a statement made by an opposing party excluded from the rule against hearsay only if a prior out-of-court statement is being offered against the party who made the statement? (Q)
Yes. A statement made by an opposing party is only excluded from the rule against hearsay if a prior out-of-court statement is being offered against the party who made the statement, not on behalf of a party who made the statement. A prosecutor could admit prior out-of-court inculpatory statements made by the defendant, but the defendant could not admit his own prior out-of-court exculpatory statements.
What is an adoptive admission? (Q)
An adoptive admission is a statement made by another person in which a party has manifested an adoption or belief in its truth.
(FRE 801(d)(2)(B))
Does the personal knowledge requirement apply to opposing-party statements? (Q)
No. The personal knowledge requirement does not apply to opposing-party statements. An opposing-party statement is a prior out-of-court statement made by a party to the case. The statement is admissible if offered against that party, regardless of whether the party had personal knowledge of the matter when the statement was made.
A police officer stopped a defendant for speeding. When the police officer realized the defendant met the description of the suspect in a recent bank robbery, the police officer asked the defendant if the defendant knew anything about the robbery. The defendant denied any involvement in the robbery. The defendant was later charged with that crime. The defendant did not testify at trial. Instead, the defendant called the police officer as a witness and asked, “Didn’t I tell you that I wasn’t involved in the robbery?” The prosecutor objected, arguing that the statement was inadmissible hearsay. The defendant countered that it was an out-of-court statement of a party and therefore admissible as an exclusion to the rule against hearsay.
Is the statement admissible hearsay? (Q)
No. The statement is inadmissible hearsay. Hearsay statements are inadmissible unless an exclusion or exception applies. Statements by an opposing party may be excluded from the ban on hearsay. However, the statements by an opposing party exception applies only if a prior out-of-court statement is being offered against the party making the statement, not on behalf of that party.
Here, the defendant’s statement was made out of court and he is offering it for the truth of the matter asserted in it: that he was not involved in the robbery. The statements by an opposing party exception does not apply because the statement is being offered on behalf of the defendant, i.e., the party making the statement and not against the defendant. Thus, the statement is inadmissible hearsay.
What is the policy justification for hearsay? (Russo)
Reliability (out of court situation more trustworthy) + Need (something at the trial makes the out of court statement more necessary) (2/29)
How do can someone adopt another person’s statement? (Q)
Adoption may occur explicitly:
if the other person was authorized to speak about the subject matter on the party’s behalf; or
if the other person was the party’s agent or employee, and the subject matter was within the scope of the agency or employment.
Silence may also be admissible as an adoptive statement.
(FRE 801(d)(2)(B))
What does FRE 801(d) govern? (LII)
FRE 801(d) governs hearsay exclusions (statements that aren’t hearsay).
What does FRE 801(d)(1) govern? (LII)
FRE 801(d)(1) governs a declarant-witness’s prior statements.
