CHAP. 4, part 1 of 2: DEFINITIONAL EXCEPTIONS TO THE MEANING OF HEARSAY P. JANICKE 2011

IF OUT-OF-COURT DECLARANT IS WITNESS AT TRIAL A FEW DEFINITIONAL EXCEPTIONS TO “HEARSAY” APPLY [R 801(d)(1)] PRIOR INCONSISTENT STATEMENT 2011 Chap. 4, part 1

(1) PRIOR INCONSISTENT STATEMENT ALWAYS ALLOWED TO IMPEACH NOW PROPONENT IS TRYING TO GET IT IN FOR ITS TRUTH AS WELL HAS TO HAVE BEEN UNDER OATH HAS TO HAVE BEEN IN A FORMAL PROCEEDING [HENCE A LIMITED RULE] 2011 Chap. 4, part 1

RECALL: BY OUT-OF-COURT WE MEAN OUTSIDE THE PRESENT HEARING [R801(c)] TESTIMONY AT FIRST TRIAL IN SAME CASE IS “OUT-OF-COURT” TESTIMONY IN ANOTHER CASE IS “OUT-OF-COURT” DEPOSITIONS: TEXAS STATE PRACTICE: TREATED AS PART OF TRIAL FED. PRACTICE: REGARDED AS DIFFERENT HEARING 2011 Chap. 4, part 1

TEXAS RULE ON PRIOR INCONSISTENT STMTS. TEXAS RULE 801(e)(1)(A) SAYS YOU CAN’T USE A 3d PERSON’S PRIOR GRAND JURY TESTIMONY IN THIS WAY CAN OF COURSE USE IT TO IMPEACH IMPACT OF THE TEXAS RULE: CAN’T CONVICT BASED ON A 3d PERSON’S RECANTED GRAND JURY TESTIMONY 2011 Chap. 4, part 1

(2) PRIOR CONSISTENT STATEMENTS NOW BEING OFFERED FOR THEIR TRUTH THE RULE, 801(d)(1)(B), MATCHES THE RULE FOR REHABILITATING A WITNESS’S CREDIBILITY: MUST FIRST BE ATTACKED CAN USE STMT. MADE PRIOR TO ONSET OF ALLEGED MOTIVE TO FALSIFY 2011 Chap. 4, part 1

(3) STATEMENT OF IDENTIFICATION OF A PERSON NEED NOT HAVE BEEN UNDER OATH OR IN A PROCEEDING EXAMPLES: TESTIMONY BY POLICEMAN THAT W PICKED D OUT OF A LINEUP TESTIMONY BY A BYSTANDER THAT W SELECTED D’S PHOTO FROM A COLLECTION TESTIMONY BY W THAT W PICKED D OUT OF LINEUP OR PHOTO SET 2011 Chap. 4, part 1

NOT SO OBVIOUS EXAMPLE: “THE MAN WAS DRIVING” BORDERLINE CASES: “SHE ID’D THE ONE WITH THE BROWN HAIR” “I TOLD THEM HE HAD BROWN HAIR” [THERE COMES A POINT WHERE THE STMT. NO LONGER IDENTIFIES] 2011 Chap. 4, part 1

RECALL: WIT. CAN ALWAYS SAY WHAT SHE SAW HERE WE ARE TALKING ABOUT TESTIMONY THAT SHE SAID, OUT OF COURT, THAT SHE SAW . . . . 2011 Chap. 4, part 1

STATE v. SMITH, PROBLEM 4-A, TOME V. U.S., STATE v. MOTTA 2011 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 QUALIFIES 2011 Chap. 4, part 1

WHO THE WITNESS ON THE STAND IS DOESN’T MATTER EXAMPLE: OUT-OF-COURT STATEMENT BY CIVIL DEFENDANT PLAINTIFF’S LAWYER CAN INTRODUCE IT BY: ASKING PLAINTIFF ABOUT IT ASKING DEFENDANT ABOUT IT ASKING A BYSTANDER ABOUT IT 2011 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” COULD BE BY SILENCE WHEN AN OUTSIDER SAYS THAT’S OUR VIEW COULD BE BY MERELY FILING AWAY THE STATEMENT ?? 2011 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 STATEMENTS QUALIFY UNDER THE DEFINITIONAL EXCEPTION 2011 Chap. 4, part 1

THE PARTY NEED NOT HAVE SAID IT DIRECTLY COULD BE BY AN EMPLOYEE COULD BE BY A CURRENT ACCOMPLICE ETC. 2011 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: AN EMPLOYEE BY FAR THE MOST PROLIFIC SOURCE OF CORPORATE ADMISSIONS ESP. INTERNAL DOCUMENTS 2011 Chap. 4, part 1

AGENT AND SERVANT ADMISSIONS SHOULD BIND GOVERNMENTS AS WELL AS CORPORATIONS BUT COURTS ARE RELUCTANT IN SOME GOVERNMENT CASES THEY LIMIT “SERVANTS” TO LOCAL POLICE, ETC. 2011 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 2011 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 THE EMPLOYER [801(d)(2)(D)] SAME FOR CO-CONSPIRATORS, AGENTS, ETC. 2011 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 2011 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 2011 Chap. 4, part 1