Exclusions (Exemptions) to the Hearsay Rule Flashcards
Preliminary Question Standard
The judge uses FRE 104(a) for most of these unless there is a question of whether the declarant actually made statement. Then the judge uses 104(b)
FRE 801(d)(1)(A)
Statements That Are Not Hearsay
Declarant-Witness’s Prior Statement
The declarant testifies and is subject to cross-examination about the prior statement, and the statement is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing or other proceeding or in a deposition
FRE 801(d)(1)(B)
Statements That Are Not Hearsay
A Declarant-Witness’s Prior Statement
A declarant testifies and is subject to cross-examination about the prior statement, and the statement is consistent with the declarant’s testimony and is
- To rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper motive in so testifying or
- To rehabilitate the declarant’s credibility as a witness when attacked on another ground
FRE 801(d)(1)(C)
Statements That Are Not Hearsay
A Declarant-Witness’s Prior Statement
A declarant testifies and is subject to cross-examination about the prior statement, and the statement identifies a person as someone the declarant perceived earlier
FRE 801(d)(2)(A)
Statements That Are Not Hearsay
An Opposing Party’s Statement
The statement is offered against an opposing party and was made by the party in an individual or representative capacity
FRE 801(d)(2)(B)
Statements That Are Not Hearsay
An Opposing Party’s Statement
The statement is offered against an opposing party and is one the party manifested it adopted or believed to be true
FRE 801(d)(2)(C)
Statements That Are Not Hearsay
An Opposing Party Statement
The statement is offered against an opposing party and was made by a person whom the party authorized to make a statement on the subject
FRE 801(d)(2)(D)
Statements That Are Not Hearsay
An Opposing Party Statement
A statement is offered against an opposing party and was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed
FRE 801(d)(2)(E)
Statements That Are Not Hearsay
An Opposing Party’s Statement
The statement is offered against an opposing party and was made by the party’s coconspirator during and in furtherance of the conspiracy
United States v. Owens
1998
Facts
A correctional counselor was attacked by inmates and suffered injuries to such an extent that he couldn’t remember much about the fight or his hospitalization. The one thing he remembered was a conversation with an FBI agent where the counselor identified the defendant in a picture
United States v. Owns
1998
SCOTUS Ruling
SCOTUS reversed. Memory loss does not impede effective cross-examination. In fact, exposing memory loss is part of the purpose of cross-examination. As long as a witness is on the stand, under oath and responding to questions, FRE 801(d)(1)(C) is satisfied.
United States v. Owens
1998
Procedural History
At the district court trial, the counselor admitted he couldn’t see his attacker. The defendant was convicted of intent to commit murder. He appealed based on the Confrontation Clause and FRE 801(d)(1)(C). The Ninth Circuit reversed, saying the counselors statements were not admissible under FRE 801(d)(1)(C) because the witness couldn’t be cross-examined because of his faulty memory
United States v. Owens
1998
When Witnesses Are not Subject to Cross-Examination
There are only two circumstances where a witness would not be considered subject to cross-examination
- When a trial court puts so many limits on the scope of examination that cross-examination is not possible
- When a witness asserts a privilege that makes cross-examination not possible
Common Law v. FRE 801(d)(1)(A)
- Under the common law, inconsistent statements could only be used to impeach the witness by giving the jury a reason to question the witness’s testimony
- The FRE added that a witness’s prior inconsistent statements can be used as substantial evidence
Bruton v. United States
1968
Facts and Procedural History
The defendant and his accomplice had a joint trial. The trial court allowed the government to admit the accomplice’s confession that they committed a robbery. The court of appeals said the confession should not have been admitted but affirmed the conviction because the judge instructed the jury that the confession must be disregarded in determining the defendant’s guilt
Bruton v. United States
1968
SCOTUS Ruling
- SCOTUS reversed. The Confrontation Clause prohibits the introduction of a defendant’s confession unless the defendant testifies and is subject to cross-examination by his co-defendant
- The rationale for this is that a confession is so powerful that there is a heightened risk that the jury will ignore any limiting instructions and use the confession against both defendants
- In another line of cases, SCOTUS has explained that such a confession might be admissible if it can be suitably redacted to eliminate reference to the co-defendant (not just redacting the co-defendant’s name)
Adopted Statement Analysis
- When a party attempts to introduce an adopted statement, the judge must determine
- That the declarant heard and understood the statement and
- Whether, in the circumstances in which the statement was made, a reasonable person would have expressed his disagreement with it
- This is a 104(a) issue. But if there is a dispute about whether the statement was made, then that’s a 104(b) issue.
A Defendant’s Silence in Criminal Cases – Pre-Arrest
Silence is not thought to be an adoption of police statements or accusations. However, if the defendant starts talking to the polices and then stops, that can be used against the defendant as an adopted statement
A Defendant’s Silence in Criminal Cases – Post-Arrest
Silence cannot be used as an adoption. However, if the defendant starts talking, he waives his Miranda rights and silence can be used against him
FRE 801(d)(2)(C) Opposing Party Statements
Who the Declarant Talks To
It doesn’t matter who the declarant talks to for this exclusion.
FRE 801(d)(2)(C) Opposing Party Statements
Authorized Persons on Behalf of a Business
With regard to a person authorized to speak on behalf of a business entity, the exclusion would apply the same whether the authorized person spoke to someone external to the business or to someone internally
FRE 801(d)(2)(D) Opposing Party Statements
Who the Declarant Talks To
It doesn’t matter who the declarant talks to for this exclusion
FRE 801(d)(2)(D)
Personal Knowledge
The declarant doesn’t have to have personal knowledge for this exclusion
Bourjaily v. United States
1987
Facts
An FBI informant arranged to sell a kilogram of cocaine to a middleman, Lonardo, who agreed to find someone to distribute the drug. Lonardo conspired with Bourjaily to sell the cocaine and recorded their conversations. Bourjaily was charged with conspiring to distribute cocaine and possession with intent to distribute.
Bourjaily v. United States
1987
Procedural History
- The district court determined by a preponderance of the evidence that Lonardo’s recorded statements were made during and in furtherance of the conspiracy and therefore were excluded from the hearsay rule. The Sixth Circuit affirmed
- Bourjaily appealed because he argued that the court should have looked at the evidence surrounding the statement, but not the statements itself, to determine whether to admit it
Bourjaily v. United States
1987
Ruling
SCOTUS ruled that courts should use the preponderance of the evidence to determine whether the defendant was in a conspiracy with the party against whom the statements are being offered and that courts must look at the hearsay statements when deciding whether to admit them
Judge’s Findings About Conspiracies
The judge’s finding about whether there was a conspiracy must be done outside the hearing of the jury and the judge can’t tell the jury about it
Prosecutor’s Role in Conspiracy Hearsay
The prosecutor does not have to bring a charge of conspiracy to use this exclusion
