Not Hearsay (By Federal Rule) Flashcards
Non Hearsay - Note: Some are not hearsay by law, and others are still hearsay, but we make exceptions and allow it to be admitted.
1) Statements by declarants who testify
a. Prior inconsistent statements
b. Prior consistent statements
c. Identification
2) Admissions
3) Unrestricted Exceptions – availability of declarant immaterial
4) Statements by unavailable declarant
5) Catchall
Not Hearsay (By Federal Rule)
- Prior Inconsistent Statements
- Prior Consistent Statements
- Prior Identification
- Admission by party opponent
Prior inconsistent statements
Requirements:
o Witness is subject to cross examination currently – can ask about prior inconsistent statement/available for you to confront them (on witness stand or available to be recalled to witness stand if off of it)
o Prior statement is “inconsistent” with current testimony; and
o Prior statement was made while under oath in a “prior proceeding” or “deposition” and while available for cross-examination (required in Federal Court - in CA not necessary) (prior proceeding is prior trial, prior deposition, prior DMV hearing, etc.)
- Allowed in for substantive purposes (not just impeachment). But if prior statement was not made while under oath in prior proceeding, then admissibility of statement limited to impeachment.
- California says whether in prior proceeding or not, can come in substantively
- Federal rules – only when in prior proceeding/deposition can you use it substantively
State v. Smith
Because statement notarized and signed under penalty of perjury, satisfied prior proceeding requirement.
Prior consistent statements
Requirements:
- Witness is subject to cross examination currently
- Prior statement must be consistent with present testimony; and
• Prior statement must be offered to rebut a charge of “recent fabrication or improper
influence or motive”
- Someone needs to make an allegation that your motive has changed in some
way/that you’ve made some fabrication (cannot normally bolster testimony) - Cannot bolster the credibility of someone
- Allegation has to be made to bring in rehabilitating statement (allegation that
motive changed after met person, then bring in prior consistent statement to say made the same statement before met with person)
Prior identification
Requirements:
- Witness is subject to cross examination currently; and
- Witness previously perceived the subject
Party opponent admissions - Categories
(1) Individual
(2) Adoptive
(3) Admissions by speaking agents
(4) Admissions by employees
(5) Co-conspirator admissions
(1) Individual admissions - General Rule
General Rule: A party’s own words or acts may be offered as evidence against that party.
- Broadly admitted
- No first hand knowledge requirement
- Can be an opinion or conclusory statement - can come in
- Conduct may be admitted (ex. slurring speech, flight after crime, obstruction of justice)
- Does not have to be against own interests, but has to be relevant
(1) Individual admissions - Civil Cases
ALL statements made in pleadings are admissions (the
paperwork needed to file any civil case)
(1) Individual admissions - Criminal Cases
- Voluntary requirement for statements of defendant – (cannot threaten person, slam
hand, etc.) - Guilty pleas in criminal cases may be used as admission against defendant in a civil case (v. no contest plea)
- Anything you say in criminal case can be used against you in civil case, and vice versa.
- Limitation with co-defendant admission (Aranda/Bruton issue):
o One defendant implicates himself and another co-defendant
o Problem with right to confront accuser, but do not need to be called as a
witness
–> Court has to institute limitations (sever the statements, order detective to say defendant 1 said he was involved, leave defendant 2 out of it, maybe two juries, or do not bring in statement if too comingled, etc. – not tested)
Limitation on conduct as an admission (Griffin and Doyle Error)
o Griffin Error: Cannot comment on someone’s failure to testify
- Cannot be forced to take witness stand and incriminate itself
- Cannot argue to jury “why didn’t he take the witness stand and tell
you he was not guilty”
- Can be disbarred for doing that
o Doyle Error: Cannot comment on failure of someone to talk after being given Miranda warnings
Notes on party opponent admissions
Defendant made some statement in the past, and the prosecution/plaintiff wants to bring it in. Or defendant wants to bring in something the plaintiff said.
Only the party opponent can bring in the statement. Plaintiff cannot ask the witness to bring in plaintiff’s prior statement (that is hearsay). Defendant cannot ask cop to testify to all of the statements the defendant made – testify to your own statements instead.
If either side opens the door in a criminal case…
Be careful for questions where person tries to bring in own statements. Cannot do that.
Bruton v. United States
Co-defendant situation. Problem: Competing interests. Judge redacts statements, severs trials, or has dual juries.
(2) Adoptive admissions
General Rule: Someone else makes the statement, but by words or conduct, the defendant “adopts” the statement as his own.
Silence may be an adoptive admission depending upon the circumstances. Caveat: REMEMBER in a criminal case, there is a limitation on silence as admission (Griffin error, Doyle error). Accuse directly, and do not deny – seems to be adopt it.
Requirements:
(1) Party must hear the statement;
(2) Party must understand the statement;
(3) Party must have knowledge of the subject matter within the statement;
(4) Party had no impediments to influence comprehension of statement; and
(5) Party really should have denied the statement (if statement had been true, normal person would have statement that would deny it)
United States v. Hoosier
Hoosier convicted of armed robbery of bank. Witness testifies defendant’s gf said in front of defendant that “that ain’t nothing, you should have seen the money,” “sacks of money.” Defendant should have denied the statements and said what are you talking about? Instead, he was silent. Essentially, he has adopted his girlfriend’s statement – attribute statement to defendant (adoptive admission).
