Non-Hearsay

Question 1

When is evidence not Non-hearsay=Not hearsay?

Answer 1

1. PRIOR STATEMENTS
   - Prior inconsistant statements
   - prior consistent statements
   - prior statement of identification
2. OPPOSING PARTY STATEMENTS

Question 2

For all 3 prior statements
prior inconsistent statement
prior consistent statements
prior statements of identification

MUST!!!

Answer 2

The witness who made the statement
1. must testify at the present trial or hearing and 2. be subject to cross-examination concerning the statement in order for it to be admissible. (they don’t have to have actually been crossed)

so evid is good for substantive and impeachment

Question 3

What Is a prior consistent statements

Answer 3

A prior consistent statement, whether made under oath or not, may be admissible to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying. Such a statement is admissible only if it was made before the declarant had reason to fabricate or the improper influence or motive arose. Fed. R. Evid. 801(d)(1)(B).

Question 4

Prior Statements of identification

Answer 4

A previous out-of-court identification of a person after perceiving that person (e.g., lineup or photo array) is not hearsay and may be admissible as substantive evidence.

**Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification.

Question 5

Can a prior statement of identification be admitted if witness is dead?

Answer 5

NO! because he can’t be cross examined..he is unavailable to testify

Question 6

Opposing party statements -party opponent

Answer 6

A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party (the other party-adverse party). The statement may have been made by the party in his individual or representative capacity (e.g., trustee).

opposing party’s statement need not have been against the party’s interest at the time that it was made

Question 7

Can an opposing party statement be admitted if it’s based on opinion or if not based on personal knowledge

Answer 7

YES!

Question 8

What qualifies as an opposing party statement?

Answer 8

Statements made

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