Chapter 8 Hearsay Exclusions Another Map Is the

Chapter 8 Hearsay: Exclusions

Another Map Is the statement in question one that meets the definition of hearsay under Rule 801(a) -(c)? No Hearsay Analysis Ends Yes Is the hearsay statement defined as “Not Hearsay” under Rule 801(d)(1) or 801(d)(2)? This question is the focus of Chapter 8. No Hearsay analysis continues as examined in Chapter 9 Yes Statement is not excluded by the Hearsay Rule

FRE 801(d). Statements Which Are Not Hearsay (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

FRE 801(d). Statements Which Are Not Hearsay There are two types of statements which are considered “Not Hearsay” under Rule 801(d): (1) A Declarant-Witness’s Prior Statement and (2) An Opposing Party’s Statement

At this point, you have determined that the evidence in question: 1) IS a statement; 2) The statement in question meets the definition of hearsay;

Now you must determine whether the declarant is: 1) A witness; or 2) An opposing party.

801(d)(1) Declarant-Witness’s Prior Statement • 801(d)(1) has three different possibilities of statements which would be defined as “Not Hearsay” and, therefore, would not be excluded under the Hearsay rule of exclusion.

FRE 801(d)(1)(A) A Declarant-Witness’s Prior Statement This Rule [801(d)(1)(A)] has the following requirements: o The declarant testifies [and] o The declarant is subject to cross-examination [and] o The statement (being offered) is inconsistent with the declarant’s testimony [and] o The statement (being offered) was given under penalty of perjury [and] o The statement was made at a trial, hearing, or other proceeding or in a deposition.

FRE 801(d)(1)(A) A Declarant-Witness’s Prior Statement If all of the requirements of Rule 801(d)(1)(A) have been met then the statement is “non-hearsay. ” That is, it is not excluded by the hearsay rule. If all of the requirements are NOT met, then the statement might meet the requirements of 801(d)(1)(B) or 801(d)(1)(C).

FRE 801(d)(1)(B) A Declarant-Witness’s Prior Statement This Rule [801(d)(1)(B)] has the following requirements: o The declarant testifies [and] o The declarant is subject to cross-examination [and] o The statement (being offered) is consistent with the declarant’s testimony [and] {Either i or ii below} [i] The statement (being offered) is offered for the purpose of rebutting an express or implied charge of recent fabrication or improper influence or motive [ii] rehabilitate the declarant’s credibility as a witness when attached on another ground

FRE 801(d)(1)(B) A Declarant-Witness’s Prior Statement If all of the requirements of Rule 801(d)(1)(B) (i) or (ii) have been met then the statement is “non-hearsay. ” That is, it is not excluded by the hearsay rule. If all of the requirements are NOT met, then the statement might meet the requirements of 801(d)(1)(C).

FRE 801(d)(1)(C) A Declarant-Witness’s Prior Statement This Rule [801(d)(1)(C)] has the following requirements: o The declarant testifies [and] o The declarant is subject to cross-examination [and] o The statement identifies a person as someone the declarant perceived earlier.

FRE 801(d)(1)(C) A Declarant-Witness’s Prior Statement If all of the requirements of Rule 801(d)(1)(C) have been met then the statement is “non-hearsay. ” That is, it is not excluded by the hearsay rule. If all of the requirements are NOT met, then the statement might meet the requirements of 801(d)(2).

Another - Another Map Is the statement in question one that meets the definition of hearsay under Rule 801(a) -(c)? No Hearsay Analysis Ends Yes Does the statement meet the Requirements of 801(d)(1)(A)? Yes No Does the statement meet the Requirements of 801(d)(1)(B)? Yes No Does the statement meet the Requirements of 801(d)(1)(C)? No Move on to 801(d)(2) analysis. Yes Statement is not excluded by the Hearsay Rule

FRE 801(d)(2)(A) An Opposing Party’s Statement This Rule [801(d)(2)(A)] has the following requirements: o The statement (being offered) is offered against an opposing party [and] o The statement (being offered) was made by the party in an individual capacity [or] o The statement (being offered) was made in a representative capacity.

Follow a logical path for your analysis: Similarly to what you did with 801(d)(1) you will examine the statements under each subpart of 801(d)(2). In other words, if 801(d)(2)(A) does not apply then look at B then C then D et cetera.

FRE 801(d)(2)(B) An Opposing Party’s Statement This Rule [801(d)(2)(B)] has requirements: o The statement (being offered) is offered against an opposing party [and] o The statement (being offered) is one that the party manifested that it adopted or believed to be true.

FRE 801(d)(2)(C) An Opposing Party’s Statement This Rule [801(d)(2)(C)] has requirements: o The statement (being offered) is offered against an opposing party [and] o The statement (being offered) was made by a person whom the party authorized to make the statement on the subject.

FRE 801(d)(2)(D) An Opposing Party’s Statement This Rule [801(d)(2)(D)] has requirements: o The statement (being offered) is offered against an opposing party [and] o The statement (being offered) was made by a party’s agent or employee on a matter within the scope of that relationship and while it existed.

FRE 801(d)(2)(E) An Opposing Party’s Statement This Rule [801(d)(2)(E)] has requirements: o The statement (being offered) is offered against an opposing party [and] o The statement (being offered) was made by the party’s coconspirator during and in furtherance of the conspiracy.

We will now examine many of these exclusions in greater detail.

A Declarant-Witness’s Prior Statement Prior Inconsistent Statement Rule 801(d)(1)(A)

FRE 801(d)(1)(A) A Declarant-Witness’s Prior Statement This Rule [801(d)(1)(A)] has the following requirements: o The declarant testifies [and] o The declarant is subject to cross-examination [and] o The statement (being offered) is inconsistent with the declarant’s testimony [and] o The statement (being offered) was given under penalty of perjury [and] o The statement was made at a trial, hearing, or other proceeding or in a deposition.

United States v. Mornan 3 rd Circuit 413 F. 3 d 372 (2005) 326

A Declarant-Witness’s Prior Statement Prior Consistent Statement Rule 801(d)(1)(B)

FRE 801(d)(1)(B) A Declarant-Witness’s Prior Statement This Rule [801(d)(1)(B)] has the following requirements: o The declarant testifies [and] o The declarant is subject to cross-examination [and] o The statement (being offered) is consistent with the declarant’s testimony [and] {Either i or ii below} [i] The statement (being offered) is offered for the purpose of rebutting an express or implied charge of recent fabrication or improper influence or motive [ii] rehabilitate the declarant’s credibility as a witness when attached on another ground

Tome v. United States Supreme Court of the United States 512 U. S. 150 (1995) 330

A Declarant-Witness’s Prior Statement of Identification of a Person Rule 801(d)(1)(C)

United States v. Lewis 2 nd Circuit 565 F. 2 d 1248 (1977) 336

An Opposing Party’s Statement A Party’s Own Statement Rule 801(d)(2)(A)

Jordan v. Binns 7 th Circuit 712 F. 3 d 1123 (2013) 340

An Opposing Party’s Statement Adopted Statements Rule 801(d)(2)(B)

United States v. Miller 1 st Circuit 478 F. 3 d 48 (2007) 344

An Opposing Party’s Statement Authorized Statements Rule 801(d)(2)(C)

Kirk v. Raymark Industries 3 rd Circuit 61 F. 3 d 147 (1995) 348

An Opposing Party’s Statements by a Party’s Agent Rule 801(d)(2)(D)

Mahlandt v. Wild Canid Survival & Research Center, Inc. 8 th Circuit 588 F. 2 d 626 (1978) 351

An Opposing Party’s Statements by Coconspirators Rule 801(d)(2)(E)

Preliminary Factual Determinations 1) Was there a conspiracy? 2) Was the declarant a member of the conspiracy? 3) Was the statement made while the conspiracy was in existence? 4) Was the statement made in furtherance of the conspiracy?

Bourjaily v. United States The United States Supreme Court 483 U. S. 171 (1987) 358

Review the Logic Maps of 801(d)(1) and 801(d)(2) 364 -365

End of Chapter 8