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

2. 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

3. (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

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

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

6. 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

7. 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

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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

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

20. 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

21. 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

22. 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

23. 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

24. 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

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

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