CHAP. 4, part 1 of 3: DEFINITIONAL EXCEPTIONS TO THE MEANING OF HEARSAY Prof. JANICKE 2018

IF OUT-OF-COURT DECLARANT IS A WITNESS AT TRIAL A FEW DEFINITIONAL EXCEPTIONS TO “HEARSAY” APPLY [R 801(d)(1)] 2018 Chap. 4, part 1

(1) PRIOR INCONSISTENT STATEMENT ALWAYS ALLOWED TO IMPEACH NOW PROPONENT IS TRYING TO GET IT IN TO ESTABLISH TRUTH AS WELL HAS TO HAVE BEEN UNDER OATH HAS TO HAVE BEEN IN A FORMAL PROCEEDING [HENCE A LIMITED RULE] 2018 Chap. 4, part 1

(2) PRIOR CONSISTENT STATEMENT [DELETED FROM THIS COURSE] 2018 Chap. 4, part 1

(3) STATEMENT OF IDENTIFICATION OF A PERSON [DELETED FROM THIS COURSE] 2018 Chap. 4, part 1

A CLOSER LOOK AT “ADMISSIONS” [R 801(d)(2)] RECALL: WE DON’T ANALYZE WHICH WAY THE STATEMENT CUTS IF IT’S A PARTY’S STATEMENT, AND OFFERED BY THE OPPOSING LAWYER, IT IS AN “ADMISSION” 2018 Chap. 4, part 1

WHO THE WITNESS ON THE STAND IS DOESN’T MATTER EXAMPLE: OUT-OF-COURT STATEMENT BY CIVIL-CASE DEFENDANT PLAINTIFF’S LAWYER CAN INTRODUCE IT BY: ASKING PLAINTIFF ABOUT IT ASKING DEFENDANT ABOUT IT ASKING A BYSTANDER ABOUT IT 2018 Chap. 4, part 1

EXAMPLE: WHAT MR. JONES SAID 2018 Chap. 4, part 1

TRIAL IN JONES v. SMITH JURY BENCH (JUDGE) HIGH UP JONES 2018 CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 4, part 1

TRIAL IN JONES v. SMITH JURY BENCH (JUDGE) HIGH UP BYSTANDER 2018 CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 4, part 1

TRIAL IN JONES v. SMITH JURY BENCH (JUDGE) HIGH UP SMITH 2018 CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 4, part 1

TRIAL IN JONES v. SMITH JURY BENCH (JUDGE) HIGH UP SMITH 2018 CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 4, part 1

TRIAL IN JONES v. SMITH JURY BENCH (JUDGE) HIGH UP BYSTANDER 2018 CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 4, part 1

TRIAL IN JONES v. SMITH JURY BENCH (JUDGE) HIGH UP JONES 2018 CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) 2018 Chap. 4, part 1

STATEMENT ADOPTED BY A PARTY [R 801(d)(2)(B)] OFTEN VAGUE IN ITS OPERATION COULD BE BY EXPLICITLY SAYING “THAT’S OUR VIEW AS WELL” COULD BE BY SILENCE WHEN AN OUTSIDER SAYS THAT’S THE FACT COULD BE BY MERELY FILING AWAY THE STATEMENT ?? 2018 Chap. 4, part 1

VICARIOUS ADMISSIONS (INCLUDING ADMISSIONS OF ORGANIZATIONS) KEEP IN MIND WHO THE PARTIES ARE: CRIMINAL CASE: STATE (OR U.S.); AND D CIVIL CASE: PLAINTIFF AND DEFENDANT ONLY A PARTY’S OUT-OF-COURT STATEMENT QUALIFIES UNDER THIS DEFINITIONAL EXCEPTION 2018 Chap. 4, part 1

THE PARTY NEED NOT HAVE SAID IT HIMSELF COULD BE BY AN EMPLOYEE COULD BE BY A CURRENT ACCOMPLICE ETC. 2018 Chap. 4, part 1

OUT-OF-COURT STATEMENT BY AGENT OR SERVANT [R801(d)(2)(D)] AGENT: ONE EMPOWERED TO BIND ANOTHER (THE PRINCIPAL) IN CONTRACT SERVANT: PERSON SUBJECT TO COMMANDS OF ANOTHER; AN EMPLOYEE 2018 Chap. 4, part 1

SERVANTS ARE THE MAIN SOURCE OF COMPANY’S ADMISSIONS ESPECIALLY INTERNAL DOCUMENTS EMAIL MEMOS LETTERS POSTINGS ALSO PHONE CONVERSATIONS SALES PITCHES ETC. 2018 Chap. 4, part 1

THE PARTY NEED NOT HAVE AUTHORIZED THE DECLARANT TO SPEAK FOR HER! STATEMENTS MADE BY EMPLOYEES ARE ADMISSIONS OF THE EMPLOYER IF THEY ARE JOB-RELATED THEY DO NOT HAVE TO BE AUTHORIZED, AND WILL QUALIFY EVEN IF FORBIDDEN 2018 Chap. 4, part 1

IN A MULTIPLE-DEFENDANT OR MULTIPLE PLAINTIFF CASE: THE STATEMENT OF AN EMPLOYEE IS AN ADMISSION OF THE EMPLOYEE [801(d)(2)(A)] IT IS ALSO AN ADMISSION OF THAT PERSON’S EMPLOYER [801(d)(2)(D)] SAME FOR CO-CONSPIRATORS, AGENTS, ETC. 2018 Chap. 4, part 1

BUT, IS HEARSAY AS TO OTHER DEFENDANTS / PLAINTIFFS IN THE CASE IT WAS NOT THEIR SERVANT/AGENT SPEAKING HOW TO DEAL WITH THIS? 2018 Chap. 4, part 1

OUT-OF-COURT STATEMENT CAN BE BY AN AUTHORIZED PERSON [R801(d)(2)(C)] INCLUDES, FOR EXAMPLE: PARTY’S LAWYER -- E.G., IN A PLEADING OR MOTION PAPER PRESS SPOKESPERSON 2018 Chap. 4, part 1

OUT-OF-COURT STATEMENT OF A PARTY’S CO-CONSPIRATOR [R801(d)(2)(D)] TWO MAJOR CONSTRAINTS -- STMT. WAS MADE DURING THE CONSPIRACY, i.e., NOT AFTER ARREST STMT. WAS MADE IN FURTHERANCE OF THE CONSPIRACY 2018 Chap. 4, part 1

PROBLEMS / CASES SMITH 4A MOTTA 4B 4D Hoosier (cont’d) 2018 Chap. 4, part 1

Doyle [4F] Mahlandt [4H] 2018 Chap. 4, part 1