Short and Happy Guide Chapter 6: Hearsay 3

Question 1

There are two major subsections to 801(d) which define certain statements as “not hearsay”. Subsection _______ address statements which are made by a witness who was also the declarant and subsection ________ governs statements which are made by an opposing party.

Answer 1

FRE 801(d)(1)

FRE 801(d)(2)

Question 2

There are 4 different types of statements that will be considered “non-hearsay.” Each of these is a statement that was made by the ________ prior to the trial at which they are being offered:

Answer 2

witness

Question 3

There are 4 different types of statements that will be considered “non-hearsay.” Each of these is a statement that was made by the witness prior to the trial at which they are being offered:
(A) ?
(B)(i)
(B)(ii)
(C)
These types os statements are categorized as “declarant-witness’s prior statements.”

Answer 3

(A) inconsistent statements

Question 4

There are 4 different types of statements that will be considered “non-hearsay.” Each of these is a statement that was made by the witness prior to the trial at which they are being offered:
(A)
(B)(i) ?
(B)(ii)
(C)
These types os statements are categorized as “declarant-witness’s prior statements.”

Answer 4

(B)(i) statements used to rebut a charge of recent fabrication

Question 5

There are 4 different types of statements that will be considered “non-hearsay.” Each of these is a statement that was made by the witness prior to the trial at which they are being offered:
(A)
(B)(i)
(B)(ii) ?
(C)
These types os statements are categorized as “declarant-witness’s prior statements.”

Answer 5

(B)(ii) statements to rehabilitate a witness

Question 6

There are 4 different types of statements that will be considered “non-hearsay.” Each of these is a statement that was made by the witness prior to the trial at which they are being offered:
(A)
(B)(i)
(B)(ii)
(C) ?
These types os statements are categorized as “declarant-witness’s prior statements.”

Answer 6

(C) statements of identification

Question 7

FRE 801(d)(1)(A):
1. ?
2.
3.
4.
*
*
*
*

Answer 7

1. The declarant testifies at the current trial or hearing FRE 801(d)(1)

Question 8

FRE 801(d)(1)(A):
1.
2. ?
3.
4.
*
*
*
*

Answer 8

2. The declarant is subject to cross-examination FRE 801(d)(1)

Question 9

FRE 801(d)(1)(A):
1.
2.
3. ?
4.
*
*
*
*

Answer 9

3. The statement is inconsistent with the declarant’s in court testimony FRE 801(d)(1)(A) and

Question 10

FRE 801(d)(1)(A):
1.
2.
3.
4. ?
* ?
* ?
* ?
* ?

Answer 10

4. The statement was given under penalty of perjury at
   * A trial
   *A hearing
   * another proceeding; or
   *A deposition

Question 11

FRE 801(d)(1)(A): Remember, the statement being analyzed was given somewhere other than this court proceeding. The fact that it may have been given in a court room would NOT exclude it from meeting the requirements of 801(a)-(c). However, once (a) - (c) have been met, if the conditions of 801(d)(1)(A) are met, then the statement would be _____________.

Answer 11

non-hearsay

Question 12

FRE 801(d)(1)(B)(i):
1. ?
2.
3.
4.

Answer 12

1. The declarant testifies at the current trial or hearing FRE 801(d)(1)

Question 13

FRE 801(d)(1)(B)(i):
1.
2. ?
3.
4.

Answer 13

2. The declarant is subject to cross-examination FRE 801(d)(1)

Question 14

FRE 801(d)(1)(B)(i):
1.
2.
3. ?
4.

Answer 14

3. The statement is consistent with the declarant’s in-court testimony FRE 801(d)(1)(B)

Question 15

FRE 801(d)(1)(B)(i):
1.
2.
3.
4. ?

Answer 15

4. The statement is offered to rebut an express or implied charge that the defendant recently fabricated or acted from a recent improper influence or motive in so testifying. FRE 801(d)(1)(B)(i).

Question 16

Suppose Husband and Wife are involved in a hotly contested divorce case. Wife alleges that Husband has been abusive. Husband alleges that Wife is making up the allegations and has never made these allegations prior to this case (an express or implied charge that declarant (wife) recently fabricated the allegations). In response, the wife offers statements that she had previously made to a counselor, where she told the counselor that her husband was abusive.

These statements, which would be considered hearsay under FRE 801(a)-(c), would not be considered __________ because the wife’s prior statement to her counselor is consistent with her in court testimony.

What rule?

Answer 16

non-hearsay

FRE 801(d)(1)(B)(i)

Question 17

FRE 801(d)(1) (B)(ii):
1. ?
2.
3.
4.

Answer 17

1. The declarant testifies at the current trial or hearing FRE 801(d)(1)

Question 18

FRE 801(d)(1) (B)(ii):
1.
2. ?
3.
4.

Answer 18

2. The declarant is subject to cross-examination FRE 801(d)(1)

Question 19

FRE 801(d)(1) (B)(ii):
1.
2.
3. ?
4.

Answer 19

3. The statement is consistent with the declarant’s in-court testimony FRE 801(d)(1)(B)

Question 20

FRE 801(d)(1) (B)(ii):
1.
2.
3.
4. ?

Answer 20

4. The statement is offered to rehabilitate the declarant’s credibility as a witness when attacked on another ground. FRE 801(d)(1)(B)(ii)

Question 21

FRE 801(d)(1)(B)(ii). This type of statement is a prior consistent statement that is being used to rehabilitate a witness who has been attacked, based on a matter other than a recent fabrication, or improper influence, or motive. Examples that would apply would be factors including an alleged inconsistency in the witness’s testimony or an allegation that the witness has some sort of sensory deficiency, such as ______ or _____.

Answer 21

vision or hearing

Question 22

FRE 801(d)(1)(C).
1. ?
2.
3.

Answer 22

1. The declarant testifies at the current trial or hearing
   FRE 801(d)(1)

Question 23

FRE 801(d)(1)(C).
1.
2. ?
3.

Answer 23

2. The declarant is subject to cross-examination
   FRE 801(d)(1)

Question 24

FRE 801(d)(1)(C).
1.
2.
3. ?

Answer 24

3. The statement is one which identifies a person as someone the declarant perceived earlier
   FRE 801(d)(1)(C)

Question 25

FRE 801(d)(1)(C). The type of statement implicated by this rule is typically one of a _______ _________, but can be other types of identification, such as a live visual line-up.

Answer 25

photo identification

Question 26

While statements that fall within the provisions of 801(d)(1)(A)-(C) are considered __________, Rule 801(d) has an additional part that applies to statements made by an opposing party. FRE 801(d)(2).

Answer 26

non-hearsay

Question 27

Rule 801(d)(2) sets out ______ different types of statements, any of which will be considered “non-hearsay.” Each types has the same requirement that the statement is offered against an opposing party. The subparts to the rue are variations of what legally constitutes a statement by an opposing party.

Answer 27

5

Question 28

FRE 801(d)(2).
The statement is offered against an opposing party and:
A. ?
B.
C.
D.
E.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Answer 28

A. was made by the party in an individual capacity

Question 29

FRE 801(d)(2).
The statement is offered against an opposing party and:
A.
B. ?
C.
D.
E.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Answer 29

B. is one the party manifested that it adopted or believed to be true

Question 30

FRE 801(d)(2).
The statement is offered against an opposing party and:
A.
B.
C. ?
D.
E.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Answer 30

C. was made by a person whom the party authorized to make a statement on the subject

Question 31

FRE 801(d)(2).
The statement is offered against an opposing party and:
A.
B.
C.
D. ?
E.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Answer 31

D. was made by the party’s agent for employee on a matter within the scope of that relationship and while it existed; or

Question 32

FRE 801(d)(2).
The statement is offered against an opposing party and:
A.
B.
C.
D.
E. ?
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Answer 32

E. Was made by the party’s co-conspirator during and in furtherance of the conspiracy.

Question 33

FRE 801(d)(2)(A). Statements that comply with this rule have historically been called an “admission by a party-opponent.” The change to the current title, “statements by opposing party,” reflects the fact that the statements need not actually be any kind of “admission.” This rule provides that if a ______ to the lawsuit makes an out-of-court statement, and that statement is _________ ________ ______ _______, then the statement is not hearsay.

Any statement that meets a definition under the Rule qualifies.

Answer 33

party

offered against that party

Question 34

There are only 2 requirements for admissibility under Rule 801(d)(2)(A):
1.
2.

Answer 34

1. a statement was made by a party and
2. the statement was offered against the party

Question 35

FRE 801(d)(2)(A). A statement that falls under this rule will not be excluded based on a lack of ________ ___________ because “trustworthiness is not the touchstone for admissibility of party admissions.”

Answer 35

personal knowledge

Question 36

FRE 801(d)(2)(A) does not “extend to a party’s attempt to introduce his or her own statements through the testimony of other witnesses… If such statements were deemed admissible under this rule, parties could effectuate an end-run around the adversarial process by, in effect, testifying without swearing an oath, facing cross-examination, or being subjected to first-hand scrutiny by the jury. !!

Answer 36

!!

Question 37

FRE 801(d)(2)(B). A party ______ the statement of another person as his or her own. This ________ must be express or implied.

Answer 37

adopts

adoption

Question 38

FRE 801(d)(2)(B). A party adopts the statement of another person as his or her own. This adoption may be _______ or ________.

Answer 38

express or implied

Question 39

FRE 80(d)(2)(B). Under certain circumstances, a party may adopt the statement of another by silence. This adoption is an inference that may arise when the following facts occur:
1. ?
2.
3.

Answer 39

1. A statement is made in the adopting party’s presence (this means that the adopting party heard and understood the statement).

Question 40

FRE 80(d)(2)(B). Under certain circumstances, a party may adopt the statement of another by silence. This adoption is an inference that may arise when the following facts occur:
1.
2. ?
3.

Answer 40

2. The nature of the statement is such that it normally would induce the adopting party to respond; and
   (this means that a reasonable person would have denied the statement under the circumstances)

Question 41

FRE 80(d)(2)(B). Under certain circumstances, a party may adopt the statement of another by silence. This adoption is an inference that may arise when the following facts occur:
1.
2.
3. ?

Answer 41

3. The adopting party nonetheless fails to take exception.

(This means that the person did not deny the statement).

Question 42

A party may ______ a written statement if the party uses the statement, or the party takes action in compliance with the statement. The adopting party need not have actually reviewed the document, but courts look to see “whether the surrounding circumstances tie the possessor and the document together in some meaningful way.

Answer 42

adopt

Question 43

Admissions may also take the form of vicarious statements. These statements which the party does not actually make but, instead, are made for him or her. In cases such as these, the statement will be considered as though it was made by the party whom it is offered against. What rules?

Answer 43

FRE 8801(d)(2)(C)-(E)

Question 44

FRE 801(d)(2)(C)-(E) cover these vicarious admissions made under the following circumstances:

FRE 801(d)(2)(C): ?

FRE 801(d)(2)(D):

FRE 801(d)(2)(E):

Answer 44

the statement was made by a person whom the party authorized to make a statement on the subject

Question 45

FRE 801(d)(2)(C)-(E) cover these vicarious admissions made under the following circumstances:

FRE 801(d)(2)(C):

FRE 801(d)(2)(D): ?

FRE 801(d)(2)(E):

Answer 45

the statement was made by the party’s agent or employee

Question 46

FRE 801(d)(2)(C)-(E) cover these vicarious admissions made under the following circumstances:

FRE 801(d)(2)(C):

FRE 801(d)(2)(D):

FRE 801(d)(2)(E): ?

Answer 46

or the statement was made by a co-conspirator

Question 47

When a person is specifically ________ to speak on behalf of another person, then that statement may be offered against that party. FRE 801(d)(2)(C).

Answer 47

authorized

Question 48

A statement made by a party’s _____ or _____ on a matter within the scope of that relationship and while it existed will be deemed an admission under FRE 801(d)(2)(D). However, the employee’s position within the organization is NOT a factor in the FRE 801(d)(2) analysis.

Answer 48

agent or employee

Question 49

The foundation to establish the agency relationship under FRE 801(d)(2)(D) is:
1. ?
2.
3.

Answer 49

1. the existence of agency relationship

Question 50

The foundation to establish the agency relationship under FRE 801(d)(2)(D) is:
1.
2. ?
3.

Answer 50

2. that the statement was made during the course of the relationship; and

Question 51

The foundation to establish the agency relationship under FRE 801(d)(2)(D) is:
1.
2.
3. ?

Answer 51

3. That it relates to a matter within the scope of the agency (employment).

Question 52

_____ _______ may also be considered agents if, once a partnership is shown to exist, the proponent shows that the statement relates to matters within the scope of the partnership. If both of those requirements are met, one partner’s statement will be binding on the other partners.

Answer 52

Business Partners

Question 53

Statements of co-conspirators are also considered “non-hearsay” FRE 801(d)(2)(E) when the following requirements are met:
1. ?
2.
3.
4.

Answer 53

1. The conspiracy existed

Question 54

Statements of co-conspirators are also considered “non-hearsay” FRE 801(d)(2)(E) when the following requirements are met:
1.
2. ?
3.
4.

Answer 54

2. Both the defendant and the declarant were members of the conspiracy

Question 55

Statements of co-conspirators are also considered “non-hearsay” FRE 801(d)(2)(E) when the following requirements are met:
1.
2.
3. ?
4.

Answer 55

3. The statement was made in the course of the conspiracy; and

Question 56

Statements of co-conspirators are also considered “non-hearsay” FRE 801(d)(2)(E) when the following requirements are met:
1.
2.
3.
4. ?

Answer 56

4. The statement was made in furtherance of the conspiracy.

Question 57

Statements of co-conspirators are also considered “non-hearsay” FRE 801(d)(2)(E) when the following requirements are met:
1.
2.
3.
4.

Answer 57

1. The conspiracy existed
2. Both the defendant and the declarant were members of the conspiracy
3. The statement was made in the course of the conspiracy; and
4. The statement was made in furtherance of the conspiracy.

Question 58

The statement itself may be considered when determining whether or not the statement meets the requirements. However, “causal conversation” between two or more co-conspirators would not satisfy the “in furtherance of the conspiracy requirement.”
What rule?

Answer 58

FRE 801(d)(2)(E)

Question 59

A rating of the co-conspirator FRE 801(d)(2)(E) might lead you to think that a conspiracy only involves a criminal activity. However, the rule itself demands NO such requirement. True or False.

Answer 59

True

Question 60

Admissibility under FRE 801(d)(2)(E) does not turn on the criminal nature of the endeavor. Instead, a statement may be admissible under the rule if it is made in furtherance of a lawful joint undertaking. One can qualify as a _____ _______ for the purposes of the rule merely by engaging in a joint plan distinct from the criminal conspiracy charged that was non-criminal in nature.

Answer 60

joint venturer

Question 61

Pursuant to this joint venture theory, a statement is not hearsay if it was made during the course and in furtherance of a common plan.. with a party, regardless of the non-criminal nature of that endeavor. True or False

Answer 61

True

Question 62

Pursuant to this _____ ______ ______, a statement is not hearsay if it was made during the course and in furtherance of a common plan.. with a party, regardless of the non-criminal nature of that endeavor.

Answer 62

joint venture theory

Question 63

Hearsay statements that contain hearsay statements are ____ ____ ______.

Answer 63

hearsay within hearsay

Question 64

There was a wreck involving two people at an intersection. Immediately after the wreck, witnesses Judy and Cindy engaged in the following dialogue at the scene of the accident:

Judy: Did you see that? The little silver car just ran that red light and hit that truck.

Cindy: No it didn’t. The little silver car had the green light.

After the wreck, a police officer arrives and takes down a report. The report includes the following dialogue:

Police: Can you tell me what happened?

Cindy: The little silver car had the green light, but Judy said the light was red.

The police officer writes a comprehensive report. At trial, the police report is offered into evidence to prove the truth of the matter asserted in the statements; this means that each statement is offered for the turret as to the color of the light. This scenario has multiple levels of hearsay.

What are they?

Answer 64

The Police Report - Out of Court Statement

Cindy’s Statement to the Police Officer - Out of Court Statement

Judy’s Statement to Cindy - Out of Court Statement

Question 65

FRE ______ provides that hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

Answer 65

805

Question 66

Put another way, where multiple levels of hearsay exist, each level must undergo a separate hearsay analysis. Each level must be: not hearsay, “non-hearsay” or meet an exception under Rules 803, 804, or 807. What rule?

Answer 66

FRE 805

Question 67

The content in the report would be offered for the truth of the matter asserted, and would need to meet an exception, (i.e., The Business Records Exception). Assume that it does in fact, meet an exception. The report would not be excluded by the hearsay rule!

Answer 67

!!

Question 68

Although the report is not excluded parts of the report might be excluded because the report contains multiple levels of _______.

Answer 68

hearsay

Question 69

This means that each statement in the report might contain another level of hearsay (in this case, the statement from Cindy to the Police Officer and the statement from Judy to Cindy) that must be analyzed separately to determine whether each statement also meets an exception. !!

Answer 69

!!

Question 70

Statements that do not meet all of the parts of FRE 801(a)-(c).

Hearsay or not?

Answer 70

NOT HEARSAY

Question 71

Statements that meet all of the parts of FRE 801(a)-(c) but do not meet any of the non-hearsay definitions of FRE 801(d). Note, these statements might be subject to an exception under 803, 804, or 807.

Hearsay or not?

Answer 71

HEARSAY

Question 72

Statements that meet one of the definitions in either 801(d)(1) or (d)(2). The Rules refer to statements that meet one of these definitions as “not hearsay” which makes things confusing. Accordingly, this book refer to statements that meet one of the definitions under FRE 801(d)(1) or (d)(2) as non-hearsay. It might help to think of these statements as meeting an exception.

Hearsay or non-hearsay?

Answer 72

Non-hearsay

Question 73

Hearsay statements that meet an exception under either 803, 804, or 807.

Answer 73

Exceptions