Exclusions (Exemptions) to the Hearsay Rule

Question 1

Preliminary Question Standard

Answer 1

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)

Question 2

FRE 801(d)(1)(A)

Statements That Are Not Hearsay

Declarant-Witness’s Prior Statement

Answer 2

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

Question 3

FRE 801(d)(1)(B)

Statements That Are Not Hearsay

A Declarant-Witness’s Prior Statement

Answer 3

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

1. To rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper motive in so testifying or
2. To rehabilitate the declarant’s credibility as a witness when attacked on another ground

Question 4

FRE 801(d)(1)(C)

Statements That Are Not Hearsay

A Declarant-Witness’s Prior Statement

Answer 4

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

Question 5

FRE 801(d)(2)(A)

Statements That Are Not Hearsay

An Opposing Party’s Statement

Answer 5

The statement is offered against an opposing party and was made by the party in an individual or representative capacity

Question 6

FRE 801(d)(2)(B)

Statements That Are Not Hearsay

An Opposing Party’s Statement

Answer 6

The statement is offered against an opposing party and is one the party manifested it adopted or believed to be true

Question 7

FRE 801(d)(2)(C)

Statements That Are Not Hearsay

An Opposing Party Statement

Answer 7

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

Question 8

FRE 801(d)(2)(D)

Statements That Are Not Hearsay

An Opposing Party Statement

Answer 8

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

Question 9

FRE 801(d)(2)(E)

Statements That Are Not Hearsay

An Opposing Party’s Statement

Answer 9

The statement is offered against an opposing party and was made by the party’s coconspirator during and in furtherance of the conspiracy

Question 10

United States v. Owens

1998

Facts

Answer 10

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

Question 11

United States v. Owns

1998

SCOTUS Ruling

Answer 11

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.

Question 12

United States v. Owens

1998

Procedural History

Answer 12

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

Question 13

United States v. Owens

1998

When Witnesses Are not Subject to Cross-Examination

Answer 13

There are only two circumstances where a witness would not be considered subject to cross-examination

1. When a trial court puts so many limits on the scope of examination that cross-examination is not possible
2. When a witness asserts a privilege that makes cross-examination not possible

Question 14

Common Law v. FRE 801(d)(1)(A)

Answer 14

• 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

Question 15

Bruton v. United States

1968

Facts and Procedural History

Answer 15

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

Question 16

Bruton v. United States

1968

SCOTUS Ruling

Answer 16

• 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)

Question 17

Adopted Statement Analysis

Answer 17

• 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.

Question 18

A Defendant’s Silence in Criminal Cases – Pre-Arrest

Answer 18

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

Question 19

A Defendant’s Silence in Criminal Cases – Post-Arrest

Answer 19

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

Question 20

FRE 801(d)(2)(C) Opposing Party Statements

Who the Declarant Talks To

Answer 20

It doesn’t matter who the declarant talks to for this exclusion.

Question 21

FRE 801(d)(2)(C) Opposing Party Statements

Authorized Persons on Behalf of a Business

Answer 21

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

Question 22

FRE 801(d)(2)(D) Opposing Party Statements

Who the Declarant Talks To

Answer 22

It doesn’t matter who the declarant talks to for this exclusion

Question 23

FRE 801(d)(2)(D)

Personal Knowledge

Answer 23

The declarant doesn’t have to have personal knowledge for this exclusion

Question 24

Bourjaily v. United States

1987

Facts

Answer 24

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.

Question 25

Bourjaily v. United States

1987

Procedural History

Answer 25

• 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

Question 26

Bourjaily v. United States

1987

Ruling

Answer 26

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

Question 27

Judge’s Findings About Conspiracies

Answer 27

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

Question 28

Prosecutor’s Role in Conspiracy Hearsay

Answer 28

The prosecutor does not have to bring a charge of conspiracy to use this exclusion