Evidence 36-40

Question 1

What is a Statement by a Party Opponent?

(deemed non-hearsay under the FRE, and a hearsay exception under CA)

Answer 1

Any statement offered against an opposing party,

That either:

Was made by the party in an individual or representative capacity;

Is adopted or believed to be true;

Was made by an authorized person;

Was made by the party’s agent or employee; OR

Was made by the party’s co-conspirator in furtherance of the conspiracy.

Priority: HIGH

Question 2

Hearsay Exclusion

When are Prior Statements of Identification by a declarant witness deemed Non-Hearsay (under FRE and CA)?

Answer 2

FRE:

If the declarant testifies; AND

If the declarant is subject to cross-examination

CA: Prior statements made are an exception to the hearsay rule if:

It identifies someone who participated in the crime;

It was made at the time of the crime and was fresh in the witness’s mind; AND

Before the evidence of the statement is offered, they testify that they made the identification and that it was a true

reflection of his opinion at the time.

Priority: Low

Question 3

Hearsay Exceptions / Exclusions

When does a person’s silence constitute an Adoptive Admission?

Answer 3

When:

The person heard the statement; AND

A reasonable person would have denied the statement.

*This is excluded from hearsay (deemed non-hearsay) under the statements made by a party opponent hearsay rule.

Priority: Medium

Question 4

Hearsay Exceptions / Exclusions

What is a Vicarious Admission?

Answer 4

Admissions made by:

An authorized spokesperson;

A principal or agent made during the scope of the agency relationship - (Not applicable in CA); OR

Co-Conspirators.

*This is excluded from hearsay (deemed non-hearsay) under the statements made by a party opponent hearsay rule.

Priority: HIGH

Question 5

Hearsay Exceptions

What is a Statement Against Interest, and when is it admissible?

Answer 5

When:

it’s a statement made against one’s own penal, proprietary, or pecuniary interest when made;

the declarant has firsthand knowledge;

a reasonable person in the declarant’s position would have made the statement only if the person believed it to be true; AND

the declarant is unavailable.

*In CA, statements made against one’s societal interests are also admissible.

**Under the FRE, if offered in a criminal case, it MUST be supported by corroborating circumstances that clearly indicate its trustworthiness.

Priority: HIGH