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

2. 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

3. (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

4. 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

5. 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

6. (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

7. (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

8. 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

9. 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

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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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