Hearsay Exemptions [Big Ticket Item]

Question 1

Types of Statements by Party Opponent

Answer 1

1. Direct statement by a party
2. Adoptive admission—either by conduct or silence
3. Authorized admission
4. Vicarious admission
5. Admission by a co-conspirator

Question 2

Opposing Party’s Statement

Answer 2

A statemetn is not hearsay when the statement is offered against an opposing party, and the statement is:

1. made by the party in an individual or representative capacity;
2. one the party manifested that it adopted or believed to be true;
3. made by a person whom the party authorized to make a statement on the subject;
4. made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
5. made by the party’s co-conspirator during and in furtherance of the conspiracy.

Question 3

Statement by Party Opponent

Answer 3

• A statement of a party offered by his opponent.
• Unavailability and personal knowledge of the declarant are not required.
• Statement need not be against interest when made.
• Guilty pleas are included as admissions, but final judgments of criminal convictions are hearsay exceptions under Rule 803(22)

Question 4

Adoptive Statement (or Statement by Silence)

Answer 4

Circumstances must be such that a reasonable person would have denied the assertion.

Question 5

Authorized Statement

Answer 5

• A statment by a party’s agent or representative
• Authority to speak may be express or implied.
• Independent proof may be required to show extent of agent’s authority in partnership situations—including statements of predecessors-in-interest during the time of ownership of land

Question 6

Vicarious Statement of an Agent or employee

Answer 6

• A statement of a party’s employee offered against the party by the opponent
• The statement must:
  
  1. Be made during the scope of the employee/employer relatinship
  2. Concern a matter within the scope of employment

Question 7

Co-Conspirator’s Statement

Answer 7

• Statements of co-conspirators, whether or not a conspiracy is charged, can be used against all other co-conspirators, even if they are not aware that a conspiracy exists
• Requirements:
  
  1. existence of a conspiracy is a preliminary fact that must be proven to the court by a preponderance of the evidence
  2. declarant was member of the conspiracy
  3. statement was made in furtherance of the conspiracy
  4. statement was made during the existence of the conspiracy

Question 8

3 Types of Prior Statements

Answer 8

1. Prior Inconsistent Statment
2. Prior Consistent Statement
3. Prior Identification

Question 9

Requirements for Prior Statements

Answer 9

1. Declarant must testify at trial
2. Declarant must be available and subject to cross-examination

Question 10

Prior Inconsistent Statement

Answer 10

A prior inconsistent statement is permitted to be offered for its truth if it was made under oath

**Sworn means subject to penalty of perjury, and includes depositions and grand jury testimony, but not an affidavit. It must be under oath and subject to cross-examination.

Question 11

Prior Consistent Statements

Answer 11

Admissible to rehabilitate the witness after an inference of recent fabrication has been raised

OR

To rehabilitate the declarant’s credibility as a witness when attacked on another ground

Question 12

Prior Identification

Answer 12

A prior identification will be admissible non-hearsay only where the declarant (eyewitness) is presently testifying at the trial (i.e., available)