Hearsay Exclusions

Question 1

What are hearsay exclusions?

Answer 1

• These are out-of-court statements offered for their truth that are deemed not hearsay – are excluded from the hearsay rule just because the FRE says so!
• These are admitted as substantive evidence.

Question 2

What are the two general types of exclusions to hearsay?

Answer 2

• Statements by a party opponent
• Prior statements of witnesses

Question 3

What are the five types of statements by a party opponent that are excluded from the hearsay rule?

Answer 3

• Statement by a named party;
• Adoptive admission-either by words, conduct, or silence;
• Authorized admission;
• Employee admission; and
• Co-conspirator’s admission.

Question 4

How can a statement made by a named party be excluded from hearsay?

Answer 4

• These out-of-court statements are admissible substantively if they are:
  o Made by a named party (by a named plaintiff or defendant in the action),
  o Relevant, and
  o Offered against the declarant-party by an opponent.
   “Across the V,” as in a plaintiff can offer a defendant’s statement and a defendant can offer a plaintiff’s statement; a defendant cannot offer a co-defendant’s statement under this rule.
   Does not have to be against the party’s interest when made.
• EXAMPLE: A student likes ice cream. A professor says to the student, “I hate ice cream and also people who like ice cream.” The statement is not against the professor’s interest when made. Later, the professor is charged with homicide, and offers an alibi defense claiming to have been at an ice cream parlor when the shooting happened. Now, the earlier statement is relevant to question the professor’s alibi, and therefore admissible as a statement by party opponent when used AGAINST the professor.

Question 5

How would an adoptive admission be excluded from hearsay?

Answer 5

• There must be evidence sufficient to show the party heard and understood the statement and adopted it as their own, either by words, conduct, or even silence.

Question 6

Can an adoptive admission be done through silence?

Answer 6

• An admission by silence may be found where the named party
  o (1) heard and understood what another said,
  o (2) had an opportunity to deny/correct the statement and
  o (3) a reasonable person would have felt compelled to deny/correct the statement.
  o The statement by the other will be deemed a statement of the named party.
  o EXAMPLE: An undercover police officer approaches several people on a corner and asks for heroin. One person says, “Not me, but nobody sells better dope than my buddy here,” pointing to Defendant. Whether Defendant says, “That’s right,” merely smiles, or merely nods in the affirmative, Defendant has adopted the person’s statement.

Question 7

How would an authorized admission be excluded from hearsay?

Answer 7

• A statement by a party’s agent or representative. A principal authorizes agents to make statements or representations to third parties.
• EXAMPLE: A Kaplan student representative offers a discounted course to a classmate. Kaplan must honor that offer because the student is an authorized agent. The statement is an authorized admission offered against Kaplan.

Question 8

How could an employee admission be excluded from hearsay?

Answer 8

• A statement of a party’s employee offered against the employer/party by their opponent is admissible under this rule if
  o the statement was made during the existence of the employment relationship; and
  o it concerns a matter within the scope of employment to which the employee has sufficient knowledge as it relates to their job.
• EXAMPLE: An employee is driving their employer’s truck while making a delivery, and has an accident, injuring the plaintiff. The plaintiff then sues the driver’s employer. An eyewitness for the plaintiff offers the driver’s statement made at the scene: “I’m not familiar with this part of town and I didn’t see the stop sign.” Result - The employee’s statement is admissible as a vicarious admission against the employer.
• EXAMPLE: At lunch, a landscaper for a large beer manufacturer is talking about how quality control in the manufacturing process has fallen off recently. While this was said during the employment, this is not a matter which relates to the employee’s job title or description. Result - Inadmissible.

Question 9

How could a co-conspirator’s statement be excluded from hearsay?

Answer 9

• Statements of co-conspirators, whether or not a conspiracy is charged, can be used against all other co-conspirators if the statement was made:
  o by a member of the conspiracy;
  o “in furtherance of” the conspiracy (i.e., moved the criminal conspiracy forward); and
  o “during the existence” of the conspiracy.

Question 10

What else must be shown to bring in a co-conspirator’s statement under the exclusion?

Answer 10

• The existence of a conspiracy is a preliminary fact that must be proven to the court by a preponderance of the evidence before a co-conspirator’s statement is admitted under this rule.

Question 11

What are the three types of prior witness statements (besides statements by party opponent) that are excluded from the hearsay rule?

Answer 11

• Prior inconsistent statements made under oath in a court-type proceeding;
• Prior consistent statements offered to rebut an allegation of recent fabrication; and
• Statements of prior identification.

Question 12

What must the declarant do for the prior statement to be excluded from hearsay (and made admissible)?

Answer 12

• The declarant must:
  o testify at the trial or hearing; and
  o be subject to cross-examination concerning the statement.

Question 13

When would a prior inconsistent statement be admissible under the hearsay exclusion?

Answer 13

• A prior inconsistent statement is permitted to be offered for its TRUTH if it is “sworn” - subject to penalty of perjury (under oath) - at a trial, deposition, or other proceeding.

Question 14

How else could a prior inconsistent statement be admissible?

Answer 14

• PINS could also be admissible for impeachment purposes. For impeachment, no oath is required, but the statement could only be used for the limited purpose of impeachment, not for its truth

Question 15

Would grand jury testimony or a preliminary hearing testimony constitute PINS under the hearsay exclusion?

Answer 15

• Yes, because the witness was under oath.
• EXAMPLE: A witness gave an initial statement to police investigating a hit-and-run in which the witness identified the defendant as having hit the victim. The witness then testifies at a preliminary hearing, once again, that the defendant was the driver of the car that hit the victim. If, at trial, the witness says something to the contrary, the statement to the police is admissible for the limited purpose of impeachment, but the transcript of the witness’s testimony from the preliminary hearing on this point is admissible as substantive evidence under this rule.

Question 16

How would a prior consistent statement be admitted under the hearsay exclusion?

Answer 16

• Once a witness has been impeached over a PINS, a PCS is admissible as substantive evidence under the exclusion

Question 17

What was the old rule for PCS that no longer applies?

Answer 17

• Prior to the amendment, a PCS was admissible as a hearsay exemption and admissible as substantive evidence only if a witness was impeached with a suggestion of recent fabrication, and the PCS made before the motive to fabricate arose. That limitation, while still in the rule, is no longer an issue because of the amendment.
• EXAMPLE: On direct examination, a defense witness testifies that the defendant did not drive through a red light. On cross-examination, the witness is asked about a cash deposit from an acquaintance of the defendant into the witness’s bank account to suggest that the witness’s testimony was “paid for.” To rebut this claim, the defense attorney can offer a statement of the witness that is consistent with the direct examination testimony.

Question 18

What is a key distinction between a PINS and a PCS?

Answer 18

• Unlike a PINS admissible substantively, there is no requirement that a PCS be made under oath.

Question 19

How would a statement of prior identification be admitted under the hearsay exclusion?

Answer 19

• An out-of-court statement of identification by a declarant made after perceiving the identified person is admissible as substantive evidence.
• Remember, the witness who made the statement of identification - the declarant - MUST testify and be subject to cross-examination about the statement.
  o If this requirement is satisfied, a witness to the declarant’s statement may testify to the statement as well.
• EXAMPLE: After being robbed, Victim views a line-up in the presence of Detectives Smith and Jones and says, “That’s him, #3. He’s the one who robbed me.” If the Victim testifies in court and is subject to cross-examination about the lineup and the statement, Victim and both officers can testify to Victim’s statement during the line-up.