EXCLUSIONS FROM HEARSAY Prior Inconsistent Statement, Prior Consistent Statements, Prior Identifications

FRE 801(D)  FRE 801(d) creates 2 situations where a statement is not hearsay.  Technically these are not exceptions because they are taken, by rule, out of the definition of hearsay. (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

PRIOR INCONSISTENT STATEMENT  (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross- examination about a prior statement, and the statement:  (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;  (B) is consistent with the declarant’s testimony and is offered:  (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or  (ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or  (C) identifies a person as someone the declarant perceived earlier.

DO NOT CONFUSE 801(D)(1)(A) WITH 613  801(d)(1)(a) removes a sworn statement from hearsay and allows it into evidence as substantive evidence.  613 allows an unsworn prior statement to be used to impeach!

 1. The Witness must be on the stand, in this trial, and be available for cross- examination.  2. the prior statement

4 ELEMENTS THAT MUST BE MET  The declarant is testifying (or has testified) in this trial.  The declarant is available for cross-examination.  The prior statement is inconsistent with the testimony on a matter relevant to the trial.  The prior statement must have been made under oath (threat of perjury)  At a trial  Hearing  Deposition

PRIOR CONSISTENT STATEMENTS TO REBUT  Witness Testified  Credibility attacked  Explicitly  Implicitly  Prior Statement is consistent with the testimony  Prior statement need not be under Oath!

PRIOR IDENTIFICATION  A statement of identification is not hearsay if it was made after the witness perceived the identified person.  On the stand, subject to cross-examination  Has made a prior identification after seeing the person.

NO HEARSAY PROBLEM  Q. Do you see the man who attacked you in the courtroom today?  A. Yes, I do, it is the man in the maroon shirt (pointing to the defendant).  Q. Have you seen this person before other than when the assault took place?  A. Yes, I picked him out of a lineup.

OR,  Q. Officer Bates, did you conduct a lineup containing the defendant.  A. Yes, I did  Q. And what happened at the lineup?  A. the Victim pointed to the defendant and said “That is the man who attacked me.”

 Q. Do you see the man who assaulted you in the courtroom today?  A. I don’t know, it has been so long.  Q. Do you recall picking a man out of a line up with Officer Bates.  A. Yes, I do  Q. Did you pick the correct person out of the line up at that time?  A. Yes I did.  Call Sgt. Bates.

 Prior Inconsistent statement---under oath  Prior Consistent statement---does not have to be under oath.  Prior Identification---does not have to be under oath

ADMISSIONS : PARTY OPPONENT  801 (d)(2(a)  It is the party’s own statement  Or  The party adopts it  Or  It is made by a party’s servant or employee authorized to speak about it  Or  It is a co-conspirator made during and in furtherance of the conspiracy.  and  Be offered against the party.

 Admission of a Party Opponent is a misnomer.  It doesn’t have to be an admission—just something that can be used.