Exemptions from Hearsay Rule

Question 1

Structure of the Hearsay Rules

Answer 1

• Rule 801(d) - exemptions (defined as “not hearsay”)
• Rule 803 - exceptions to rule against hearsay, “regardless of whether the declarant is available as a witness” at trial
• Rule 804 - exceptions to rule against hearsay where dec unavailable
• Rule 805 - hearsay within hearsay
• Rule 807 - residual exception

Question 2

Rule 807

Answer 2

• residual exception
• still requires some indicia of trustworthiness
• BUT ad hoc judgments about specific pieces of evidence in a particular case, vs. 803 and 804 are entire categories for which there are broad exceptions

Question 3

Rule 801(d)(1)

Answer 3

• Hearsay exemption for witness’s prior statement
• “the declarant testifies [at this trial] and is subject to cross-examination [at this trial] about a prior statement, and the statement:” -> three subcategories, needs to meet one to come in
• note that in order for this to apply, the declarant must be on the stand testifying in this trial

Question 4

Rule 801(d)(1)(A)

Answer 4

• declarant witness’s prior statement is inconsistent with his/her/their testimony [at this trial] + was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition [in this or another case]
• core components: inconsistent and given under penalty of perjury
• note that, even though you’re strategically using it to imply the witness is a liar, it technically comes in as substantive evidence (ie. for the truth) if it was under oath - jury still gets to decide which statement to believe, but it is entitled to believe the out-of-court statement if it chooses
  -> if not made under oath, can’t come in substantively, only for impeachment
• don’t need other side to have had prior opp to cross b/c declarant on stand at this trial

Question 5

801(d)(1)(A) and Determination of Inconsistency

Answer 5

• if there is a battle over where the prior statement is in fact inconsistent, it gets decided by the trial judge under Rule 104(a)

Question 6

801(d)(1)(B)

Answer 6

Declarant witness’s prior statement is consistent with declarant’s testimony + is offered:
(i) to rebut an express or implied charge that dec recently fabricated it or acted from a recent improper influence or motive in so testifying;
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground

Must have been made before alleged reason to fabricate - otherwise, shouldn’t be allowed in b/c nothing new in the prior statement

Comes in substantively - jury can use the prior consistent statement for truth (rationale was dec has already testified, so what’s really the harm in also letting jury rely on prior consistent statement?)

Question 7

801(d)(1)(C)

Answer 7

• declarant witness’s prior statement identifies a person as someone the declarant perceived earlier
• doesn’t have to have been made under oath, and not looking at consistent or inconsistent (there doesn’t have to have been an in-court I.D. at all)
• declarant must be subject to cross-examination about the identification though
• can identify anyone relevant, doesn’t need to be the defendant
• id doesn’t require that evidence of the prior id comes from the person who made the prior id, as long as there’s an opp to cross the id’er

Question 8

U.S. v. Owens

Answer 8

• even if trial witness can no longer id the defendant at time of trial, you still get to introduce the prior id
• in this case, witness had lost memory, but still got to introduce the prior id
• cross got witness to admit couldn’t currently id defendant -> goes to weight (jury shouldn’t weigh as heavily in theory) but could still come in

Question 9

Rule 801(d)(2)

Answer 9

Hearsay Exemption for Opposing Party’s Statement

Statement is offered against an opposing party and one of five conditions applies:
- direct
- adopted
- authorized
- agency
- co-conspirator

Question 10

5 Things to Be Aware of for 801(d)(2)

Answer 10

• doesn’t need to be a statement against interests
• although frequently referenced as admissions, doesn’t need to be an “admission” so to speak - doesn’t need to automatically subject you to a penalty or anything, just needs to be something you said
• doesn’t need to be based on a party opponent’s personal knowledge (exception to normal personal knowledge reqs) - here, the fact that you said it is enough, even if you testify you lacked personal knowledge the statement itself is still admissible
• can be oral or written
• Rule of completeness (Rule 106) applies

Question 11

Rule 106

Answer 11

• Rule of Completeness
• if a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part - or any other writing or recorded statement - that in fairness ought to be considered at the same time
• can come in even if would otherwise be hearsay, although doesn’t come in for the truth if only for completeness (may be able to offer for truth later on, but you’d need your own basis)

Question 12

Components of Rule 106

Answer 12

• substantive component - needs to be necessary to correct the misleading nature
• timing component - the misimpression gets corrected immediately (you have the option of having it introduced at the same time as the other part, although you can technically save for cross if you wish)

Question 13

Rule 805

Answer 13

Hearsay Within Hearsay

• not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule
• can be a combo of 801(d) exemptions, 803 exceptions, and 804 exceptions
  (can mix and match rules to solve each layer - as long as you can identify an exception/exemption for each, the statement can come in)
• very important to look at how the statement is phrased

Question 14

Rule 801(d)(2)(A)

Answer 14

Direct Admission

• statement is offered against an opposing party and was made by the party in an individual or representative capacity
• don’t need to prove inculpatory or against interest
• in the adversarial system, you can use against the opposing party anything they’ve said
• no Confrontation Clause issue
• Rule 106 - opposing party can introduce other parts of the statement for context, but doesn’t become substantive unless opposing party introduces in own case

Question 15

Rule 801(d)(2)(B)

Answer 15

Adopted Statements

• prior out of court statements by some third-party, and opposing party has adopted them as true (no personal knowledge required, although other side can argue lack of personal knowledge reduces weight)

Question 16

Rule 801(d)(2)(B) - Implied

Answer 16

• opposing party can impliedly adopt statements - ex: if opposing party says John Smith is reliable, you might be able to argue for admission of a statement by John Smith as an adopted statement
• issue most often litigated is adoption through silence

Question 17

Rule 801(d)(2)(B) - Silence

Answer 17

• in order to establish implied adoption, needs to be something where one would reasonably expect on probable human behavior that opposing party would’ve objected to/rejected the statement in the moment
• judge decides whether true under 104(a)
• in criminal context, you have the right to remain silent - silence in custody can’t be interpreted as adoption of everything the police say, unless you respond to one thing (then can argue other silences are adopted)

Question 18

Moss v. Commonwealth

Answer 18

• shooter explaining his side to the police, not expected to respond to allegation by victim’s wife

Question 19

Southern Stone Co. v. Singer

Answer 19

• example with the letter - letters are often rejected as implied adoptions because there’s not really an expectation that you will respond to all aspects of a letter

Question 20

Rule 801(d)(2)(C)

Answer 20

Authorized Admissions

• statement is offered against opposing party and was made by a person whom the party authorized to make a statement on the subject
• need to be authorized at the time of the statement, and needs to be a particular topic the spokesperson is authorized to speak to (can try to exclude on either of these grounds)
• doesn’t need to be made to a third-party - applies even to a statement that the authorized representative makes to the party opponent

Question 21

Rule 801(d)(2)(D)

Answer 21

Agent/Employee Admissions

• 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 22

Rule 801(d)(2)(D) - Requirements

Answer 22

• must be opposing party’s agent or employee
• must be made during the time the agency/employment relationship existed
• must be something within scope of that agent/employee’s authorization

Question 23

Mahlandt

Answer 23

• ex with Sophie the wolf - all the rep had to say was “I heard that Sophie bit the child” instead of “Sophie bit the child” and none of it would’ve come in
• note and oral statement admissible against the director as direct admissions, or adopted statements
• board minutes - admissible against the company because authorized statements made by the Secretary to the Board, but not admissible against the Director because no employment relationship to the Secretary

Question 24

Sea-Land Services

Answer 24

• case with the email chain
• one employee writes email - this gets in under 801(d)(2)(D)
• other employee forwards it with a “yikes” - this gets in under 801(d)(2)(B) as adopted statement, which means irrelevant in the end if original writer = an employee, as long as the second is and is speaking to something within scope of employment

Question 25

Rule 801(d)(2)(E)

Answer 25

Co-Conspirator

• statement is offered against an opposing party and was made by the party’s coconspirator during and in furtherance of the conspiracy
• judge makes the decision as to whether or not there’s a conspiracy

Question 26

Co-Conspirator - General Requirements

Answer 26

• statement must be made by a co-conspirator (there must be a conspiracy)
• statement must be made during the course of the conspiracy (although you don’t need to have been part of the conspiracy at the time)
• statement must be made in furtherance of the conspiracy (fed courts usually don’t count concealment phase as part of conspiracy)

Question 27

Co-Conspirators and Confrontation Clause

Answer 27

• usually don’t have confrontation clause issues for co-conspirator statements because when it’s during the conspiracy they’re not testimonial, and by the time they become testimonial (ie if your co-conspirator is interrogated) they’re no longer within/in furtherance of the conspiracy

Question 28

Bruton Rule

Answer 28

• Supreme Court case - addresses confessions and co-conspirators
• only applies if tried jointly - if tried separately, use Crawford analysis
• here, Bruton and Evans were in a conspiracy - Evans confessed and his confession implicated Bruton
• they were tried together, and Evans’ confession was admitted as a direct admission, but there was a limiting instruction that told the jury not to consider it for Bruton (since E’s confession not in furtherance of the conspiracy)
• SCOTUS says limiting instruction not enough here, doesn’t trust that jury didn’t consider it, plus Confrontation Clause issue -> violated defendant’s Sixth Amendment right

Question 29

Richardson v. Marsh

Answer 29

• edited confession to remove any reference to co-defendant or existence of any other participant in the crime
• SCOTUS decided this was okay as long as there’s a limiting instruction telling the jury not to admit the confession against the co-defendant

Question 30

Gray v. Maryland

Answer 30

• redacted but confession said “I did it along with ____” -> majority said this counts on Bruton side, comes close enough that limiting instruction won’t work (since jury will automatically conclude who the blank is)