Short and Happy Guide Chapter 6: Hearsay 3 Flashcards
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.
FRE 801(d)(1)
FRE 801(d)(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:
witness
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.”
(A) inconsistent statements
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.”
(B)(i) statements used to rebut a charge of recent fabrication
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.”
(B)(ii) statements to rehabilitate a witness
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.”
(C) statements of identification
FRE 801(d)(1)(A):
1. ?
2.
3.
4.
*
*
*
*
- The declarant testifies at the current trial or hearing FRE 801(d)(1)
FRE 801(d)(1)(A):
1.
2. ?
3.
4.
*
*
*
*
- The declarant is subject to cross-examination FRE 801(d)(1)
FRE 801(d)(1)(A):
1.
2.
3. ?
4.
*
*
*
*
- The statement is inconsistent with the declarant’s in court testimony FRE 801(d)(1)(A) and
FRE 801(d)(1)(A):
1.
2.
3.
4. ?
* ?
* ?
* ?
* ?
- The statement was given under penalty of perjury at
* A trial
*A hearing
* another proceeding; or
*A deposition
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 _____________.
non-hearsay
FRE 801(d)(1)(B)(i):
1. ?
2.
3.
4.
- The declarant testifies at the current trial or hearing FRE 801(d)(1)
FRE 801(d)(1)(B)(i):
1.
2. ?
3.
4.
- The declarant is subject to cross-examination FRE 801(d)(1)
FRE 801(d)(1)(B)(i):
1.
2.
3. ?
4.
- The statement is consistent with the declarant’s in-court testimony FRE 801(d)(1)(B)
FRE 801(d)(1)(B)(i):
1.
2.
3.
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).
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?
non-hearsay
FRE 801(d)(1)(B)(i)
FRE 801(d)(1) (B)(ii):
1. ?
2.
3.
4.
- The declarant testifies at the current trial or hearing FRE 801(d)(1)
FRE 801(d)(1) (B)(ii):
1.
2. ?
3.
4.
- The declarant is subject to cross-examination FRE 801(d)(1)
FRE 801(d)(1) (B)(ii):
1.
2.
3. ?
4.
- The statement is consistent with the declarant’s in-court testimony FRE 801(d)(1)(B)
FRE 801(d)(1) (B)(ii):
1.
2.
3.
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)
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 _____.
vision or hearing
FRE 801(d)(1)(C).
1. ?
2.
3.
- The declarant testifies at the current trial or hearing
FRE 801(d)(1)
FRE 801(d)(1)(C).
1.
2. ?
3.
- The declarant is subject to cross-examination
FRE 801(d)(1)
FRE 801(d)(1)(C).
1.
2.
3. ?
- The statement is one which identifies a person as someone the declarant perceived earlier
FRE 801(d)(1)(C)
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.
photo identification
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).
non-hearsay
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.
5
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).
A. was made by the party in an individual capacity
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).
B. is one the party manifested that it adopted or believed to be true
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).
C. was made by a person whom the party authorized to make a statement on the subject
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).
D. was made by the party’s agent for employee on a matter within the scope of that relationship and while it existed; or
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).
E. Was made by the party’s co-conspirator during and in furtherance of the conspiracy.
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.
party
offered against that party
There are only 2 requirements for admissibility under Rule 801(d)(2)(A):
1.
2.
- a statement was made by a party and
- the statement was offered against the party
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.”
personal knowledge
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. !!
!!
FRE 801(d)(2)(B). A party ______ the statement of another person as his or her own. This ________ must be express or implied.
adopts
adoption
FRE 801(d)(2)(B). A party adopts the statement of another person as his or her own. This adoption may be _______ or ________.
express or implied
FRE 801(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.
- A statement is made in the adopting party’s presence (this means that the adopting party heard and understood the statement).
FRE 801(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.
- 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)
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. ?
- The adopting party nonetheless fails to take exception.
(This means that the person did not deny the statement).
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.
adopt
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?
FRE 801(d)(2)(C)-(E)
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):
the statement was made by a person whom the party authorized to make a statement on the subject
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):
the statement was made by the party’s agent or employee
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): ?
or the statement was made by a co-conspirator
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).
authorized
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.
agent or employee
The foundation to establish the agency relationship under FRE 801(d)(2)(D) is:
1. ?
2.
3.
- the existence of agency relationship
The foundation to establish the agency relationship under FRE 801(d)(2)(D) is:
1.
2. ?
3.
- that the statement was made during the course of the relationship; and
The foundation to establish the agency relationship under FRE 801(d)(2)(D) is:
1.
2.
3. ?
- That it relates to a matter within the scope of the agency (employment).
_____ _______ 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.
Business Partners
Statements of co-conspirators are also considered “non-hearsay” FRE 801(d)(2)(E) when the following requirements are met:
1. ?
2.
3.
4.
- The conspiracy existed
Statements of co-conspirators are also considered “non-hearsay” FRE 801(d)(2)(E) when the following requirements are met:
1.
2. ?
3.
4.
- Both the defendant and the declarant were members of the conspiracy
Statements of co-conspirators are also considered “non-hearsay” FRE 801(d)(2)(E) when the following requirements are met:
1.
2.
3. ?
4.
- The statement was made in the course of the conspiracy; and
Statements of co-conspirators are also considered “non-hearsay” FRE 801(d)(2)(E) when the following requirements are met:
1.
2.
3.
4. ?
- The statement was made in furtherance of the conspiracy.
Statements of co-conspirators are also considered “non-hearsay” FRE 801(d)(2)(E) when the following requirements are met:
1.
2.
3.
4.
- The conspiracy existed
- Both the defendant and the declarant were members of the conspiracy
- The statement was made in the course of the conspiracy; and
- The statement was made in furtherance of the conspiracy.
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?
FRE 801(d)(2)(E)
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.
True
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.
joint venturer
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
True
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.
joint venture theory
Hearsay statements that contain hearsay statements are ____ ____ ______.
hearsay within hearsay
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?
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
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.
805
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?
FRE 805
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!
!!
Although the report is not excluded parts of the report might be excluded because the report contains multiple levels of _______.
hearsay
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. !!
!!
Statements that do not meet all of the parts of FRE 801(a)-(c).
Hearsay or not?
NOT HEARSAY
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?
HEARSAY
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?
Non-hearsay
Hearsay statements that meet an exception under either 803, 804, or 807.
Exceptions
