Legal Three

Federal Rules of Evidence – Nonhearsay Under FRE (FRE 801, et al.)

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Federal Rules of Evidence Law School Supplements

Non Hearsay Under FRE 801

Chapter 4: Hearsay Exceptions (NOT REALLY EXCEPTIONS)

 

Introduction—Organization of the Hearsay Exceptions

  • How to Tackle Hearsay Questions:
    • 1) Recognize whether hearsay or not hearsay
    • 2) If hearsay/nonhearsay filter through the other rules to see if it fits within exception that makes it admissible or inadmissible
    • 3) Make sure hearsay rule applies before you look at exceptions
  • Statements Which Are Not Hearsay:
    • Rule 801(d) provides special rules defining certain statements as not hearsay
      • 1) Prior inconsistent and consistent statement by witness as set forth in Rule 801(d)(1)
      • 2) Admission by party-opponent as set forth in Rule 801(d)(2)
    • Federal rules define certain situations where D is subject to cross examination at trial and exclude those situations as nonhearsay
      • This ONLY applies when we’re offering it substantively (for the truth of the matter) and NOT impeachment
      • If using evidence for impeachment purposes then it’s NOT hearsay to begin with
  • Rule 801:
    • The following definitions apply under this article:
    • (d) Statements which are not hearsay: A statement is not hearsay if—
      • 1) Prior statement by witness: The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
        • A) inconsistent w/ the declarant testimony, and was given under oath subject to penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or
        • B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or
        • C) one of identification of a person made after perceiving the person;
  • Prior Inconsistent Statements:
    • If witness makes prior inconsistent statement you may impeach because it’s not hearsay
    • Can use statement substantively if you fit within 801(d)
    • ACN: “Prior inconsistent statements traditionally have been admissible to impeach but not as substantive evidence.”
    • Problems arise:
      • What does other proceeding mean
      • What does cross-examination mean
        • Rule doesn’t say “concerning the subject matter of the statement”
        • If witness takes witness stand and refuses to answer any questions on cross, that won’t be subject to cross
      • How do we define inconsistent
        • Evasiveness is generally considered inconsistent
      • NOTE:
        • As long as you remember making statement that is enough, you don’t have to remember subject matter of statement
  • Problem 4-A:
    • Barlow is tried on charges of racketeering
    • At grand jury proceeding Breen testifies at grand jury hearing that 3 of them committed crime
    • Then at trial he testifies that he can’t remember
  • 5 Main Groups of Exceptions:
    • 1) Statements by Declarants Who Testify:
      • Rule 801(d)(1)
    • 2) Admissions:
      • Rule 801(d)(2) 5 variations on single idea = admissions doctrine
    • 3) Unrestricted Exceptions:
      • Rule 803 = 23 unrestricted exceptions
    • 4) Statements By Unavailable Declarants:
      • 804 (has five exceptions) that can be invoked only if the declarant is unavailable as a witness under 804(a)
    • 5) Catchall:
      • Rule 807 = Catchall exception
  • Confrontation Clause:
    • Applies in federal and state courts and is the idea that the accused has the right to be confronted with Witnesses against him and has long been the reason against for blocking out of court statements (even some that fit within hearsay exception)
    • CC constrains ONLY prosecutors (not accused) and its exceptions apply to all parties in both civil and criminal trials
    • Restrictions to Confrontation Clause:
      • In Crawford Supreme Court held that CC applies only to “testimonial” statements (statements cannot be used against accused unless he has chance to cross-examine declarant)
    • Exceptions to Confrontation Clause
      • 1) Declarant testifies at trial where he can be cross-examined
        • Prior opportunity to be cross-examined, at deposition or prelim hearing may also be sufficient
      • 2) Forfeiture:
        • Court allows use of statements by witnesses who are “unavailable” b/c they cannot or won’t testify on account of “wrongful” behavior by party against who the statements are offered
        • Usually invoked against criminal Ds and behavior = threatening/killing witnesses
      • 3) Other Statements:
        • Coconspirator statements are admissible, and dying declarations too

 

A. Exceptions in FRE 801(d)(1)—Declarant Testifying

  • General Notes:
    • 801(d)(1): defines as “not hearsay” 3 different kinds of prior statements by testifying witnesses:
      • A) Certain prior inconsistencies – prior inconsistent statement won’t be hearsay if 3 conditions are met:
        • 1) Witness must be cross-examinable concerning prior statement
        • 2) Statement must be inconsistent w/ present testimony
        • 3) Statement must have been made under oath in a prior proceeding or deposition
      • B) Certain prior consistencies
      • C) Statements of identification

1. Prior Inconsistent Statements:

  • State v. Smith (Washington Supreme Court, 1982):
    • Facts:
      • Assault victim wrote statement on form supplied by police in which she named D as assailant oath was signed under penalty of perjury
      • At trial, victim names another man as attacker TC allowed prior inconsistent statement to be used as substantive evidence
        • TC granted new trial saying 801(d)(1)(i) didn’t apply
    • Legal Issue:
      • What do the words “other proceeding” mean in the on context of 801(d)(1)(A)?
    • Holding/Rationale:
      • Other Proceedings:
        • Includes, but not limited to, grand jury proceedings
        • NOT TRUE that every sworn statement given at police station during interrogation is admissible
        • 2 purposes to consider:
          • 1) remove doubt as to making of prior statement
          • 2) provide least minimal guarantees of truthfulness which an oath and the circumstance of a formalized proceeding tend to assure
      • Doubt as to First Statement:
        • Since witness testified to reason for lying and reason for new statement jury was in position to determine which story was true
      • All 3 requirements of 801(d)(1)(A) are met therefore TC should reinstate jury verdict and statements were admissible
    • Class Notes:
      • Prosecution can impeach her under Rule 607
      • Prosecution is trying to meet burden and needs to use evidence substantively
      • Federal cases suggest that station house affidavits are excluded under federal rules as an “other proceeding”
      • It never says that rule mandates that proceeding has right to cross-examination (i.e. grand jury proceeding)
        • Preliminary hearings are proceedings
    • NOTE:
      • Witness can be said to be “cross-examined” presently even if they “can’t remember” past events and previous testimony before grand jury about past events is being submitted
        • But not remembering is inconsistent with the fact the he remembered before
        • Although this argument is too broad, no one will ever repeat exactly what they said before. This argument fails because now every statement would prob be inconsistent

2. Prior Consistent Statements:

  • General Notes:
    • 3 Conditions to Prior Consistent Statements that are NonHearsay:
      • 1) Witness must be cross-examinable at trial concerning prior statement
      • 2) Statement must be consistent with present testimony
      • 3) Statement must be offered to rebut a charge of “recent fabrication or improper influence or motive”
        • Ex. Cross examiner might suggest that witness just made it up or changed his story b/c he was cajoled, paid, or frightened
  • Class Notes:
    • Examples of Prior Consistent Statements Allowed Under Common Law:
      • 1) W’s credibility is attached by prior inconsistent statement. W denies making statement. Prior consistent statement may be used to support denial of making such prior inconsistent statement (i.e. rehabilitate W’s credibility)
      • 2) W’s memory is attacked …
      • 3) W’s credibility is attacked by claims of recent fabrication or improper influence or motive. Prior consistent statement used to rebut this charge or recent fabrication or improper motive or influence
      • NOTE: Only allowed if the statement was made before the alleged fabrication, influence or motive came into existence
    • Federal Rule Notes:
      • ACN: Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. Under the rule they are substantive evidence.
        • We can take the statement and bring it in under 801(d)(1)(B). Does not mandate a prior inconsistent statement be made under oath.
  • Tome v. United States (United States v. Supreme Court, 1995):
    • Facts:
      • D = convicted of abusing daughter A.T.
      • During cross defense counsel suggests she was motivated by desire to live with mother
        • Court then lets in statements by A.T. to babysitter, social worker and doctors about abuse
      • Court allowed prior statements on basis that they refuted claim that wishing to live w/ mom motivated testimony
    • Legal Issue:
      • At issue = admissibility of statements, made by declarant who testifies as witness, that are consistent w/ testimony and are offered to rebut charge or a recent fabrication or improper influence or motive
      • Are out of court consistent statements made after alleged fabrication, or after alleged improper influence or motive arose, admissible under FRE?
    • Holding/Rationale:
      • Common Law Rule = Prior consistent statement introduced to rebut charge of recent fabrication or motive was admissible if statement had been made before alleged fabrication, or motivation came into being, but was inadmissible after
        • Does 801(d)(1)(B) embody this temporal requirement? YES
      • Rule 801 and Credibility:
        • 801 defines prior consistent statements as nonhearsay only if they are offered to rebut charge of recent fabrication or motive
          • Purpose is to rebut attack on witness’ credibility
          • TEMPORAL REQUIREMENT NECESSARY
      • CAN also disclose legislative purpose
    • Dissent:
      • Thinks rule means “if a TC properly admits a statement that is consistent w/ declarant’s testimony for the purpose of rebutting an express or implied charge of recent fabrication or motive, then the statement is not hearsay and the jury may also consider it for truth of what it says.”
    • Class Notes:
      • 801(d)(1)(B) carries forward temporal requirement of common law
      • Rule 801(d)(1)(b) defines as not hearsay a statement offered to rebut an express or implied…
      • What is left for common law uses of prior consistent statements after Rule 801(d)(1)(B) and Tome decision?
        • Not clear, but the following is better view:
          • 1) Prior consistent statements not offered for the truth of the matter asserted are still allowed
          • 2) However, if you use prior consistent statement to rebut claims of fabrication or improper influence or motive, then such statement must predate alleged fabrication, influence or motive. If satisfied, then such statement may be used substantively and to rehabilitate

3. Prior Statements of Identification:

  • General Notes:
    • Since pretrial IDs are more reliable 801(d)(1)(C) creates another statement NOT HEARSAY for previous statements of identification made by witness after perceiving subject, provided that witness is subject at trial to cross concerning the statement
    • Wade-Gilbert Doctrine:
      • Establishes a per se rule that blocks use of some pretrial statements of ID that might fit 801(d)(1)(C)—those obtained in postindictment lineups where D is denied counsel (or possibly those obtained in unnecessarily suggestive circumstances)
  • Class Notes:
    • 801(d)(1)(C) …one of identification of a person made after perceiving the person
  • State v. Motta (Hawaii Supreme Court, 1983):
    • Facts:
      • Coffee house cashier is robbed at gunpoint by D gives description to police artist who draws, sketch, picks D in photo array, positively IDs him at preliminary hearing and points him out at trial
        • Jury found D guilty even though he gave alibi defense
      • D contends that TC erred in admitting sketch based on cashier’s description b/c it was inadmissible hearsay under 802 (hearsay defined as statement, other than one made by declarant while testifying at trial, offered to prove truth of matter asserted)
    • Legal Issue:
      • Was the sketch hearsay or admissible? Sketch is hearsay but admissible under 801(d)(1)(C)
    • Holding/Rationale:
      • Court says that sketch is statement that would otherwise count as hearsay but falls under 801(d)(1)(C) and counts as an ID of person made after perceiving person so long as
        • 1) delcarant testifies at trial (according to 801(d)(1)), and
        • 2) is subject to cross-examination
    • Class Notes:
      • 801(d) doesn’t apply if witness is DEAD –> but may be some other way to get the info in
      • If you have statement that is hearsay, then ask yourself, is witness alive, is it prior consistent, inconsistent or ID that could fit 801(d)(1)

 

B. Exceptions in FRE 801(d)(2)—Admissions By Party Opponent

  • General Notes:
    • When statement by party is offered against him, usually it conflicts with his position at trial, so it has nonhearsay significance as evidence of vacillation (impeachment, credibility
    • If I sue you, if you make admission that fits 801(d)(2), then it can be used substantively
  • Class Notes:
    • Admissions by a party opponent are nonhearsay under 801(d)(2)
      • Hearsay is therefore a statement made out of court, offered for truth of the matter, not otherwise excluded under 801(d)(2)
        • Ask yourself, who is the declarant?
        • Is the declarant the party opponent? If so, it could be admission by party opponent.
      • If D takes witness stand (civil or criminal case) he puts his credibility in issue and subjects himself to being impeached
        • He can be cross examined and impeached with prior statement
    • Why Are Party Opponent Admissions Considered Nonhearsay?
      • Parties to a law suit should be forced to live up to their statement or explain it
      • The other side is going to make or have the opportunity to make you do that
      • Advisory committee tells us that admissions by party opponent are excluded from hearsay because their admission into evidence is result of adversary system not hearsay provisions
    • Lawyer can also make admission on behalf of client
  • 1. Individual Admissions (801(d)(2)(A))
    • In the case of individual admissions, there are almost no limits
    • 801(d)(2): Statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity
    • Prior Guilty Pleas:
      • Usually such pleads are admitted in later damage suits arising from incident
      • Plea of nolo contendere can sometimes help: It’s not admissible in a later civil suit, but it requires D to submit to punishment and allow entry of a criminal judgment against him and courts do not always allow such pleas
    • Class Notes:
      • Very broad
  • Problem 4-B:
    • Martin leaves truck at Carters Automotive Repair and Refinishing where employee negligently leaves flaming torch near paint room fire ensues and Martin’s car is destroyed
    • M sues Carter to recover M calls insurance agent Esther who spoke with employer/owner before trial
      • Esther will testify that Carter said “Fire started in paint shed when [employee] put flaming welding torch … too close to fumes.”
    • Class Notes:
      • Martin is suing Carter and shop and they want to use statement
      • Would be hearsay under 801(c), BUT P wants to use D’s statement as an admission under 801(d)(2)
      • Carter HOWEVER has no personal knowledge of statement that he made AND his statement was self-serving b/c he was trying to get money from insurance company
      • RULE: Party opponent DOES NOT HAVE TO HAVE PERSONAL KNOWLEDGE under rules to have statement come in
        • This is the only exception to the personal knowledge requirement aside from expert witnesses
  • Bruton v. United States (United States Supreme Court, 1968):
    • Facts:
      • Burton and Evans were charged and convicted of armed robbery
      • Postal Inspector testified that Evans made oral confession that he and Burton committed the robbery while being interrogated at jail
      • Jury was then instructed to consider confession by E as NOT against anyone not present or party to it
    • Legal Issue:
      • Was it proper to let in Evans confession with only a limiting instruction? NO
    • Holding/Rationale:
      • Limiting Instruction:
        • Not sufficient to stop jury from considering evidence as against the second D jury will infer guilt from one’s confession
      • Confrontation Rule:
        • This also goes against the idea that a party has a right to question adverse witnesses D can’t do this if 3rd party testifies that fellow D confessed
    • Class Notes:
      • Supreme Court says there is right of confrontation
        • Evans made statement but Postal Inspector gives testimony in court so D can’t cross-examine Evans
      • Prosecution is suing both B and E (so E is not going to testify)
      • Admitting evidence violates B’s 6th amendment right
      • You could get around this by redacting the “B did it part” and just have the “I did it” part or you could try them separately
    • Variation:
      • If civil case and plaintiff is suing B and E
      • There is statement from E saying B and I did it
      • Statement comes in because
  • Problem 4-C:
    • Sally claims she was sexually assaulted by Brixton criminal charges are filed
    • Brixton considers plea of guilty for lesser charge
    • If Brixton pleads guilty his statements can be admitted in subsequent civil suit under 801(d)(2)(A) that makes what would be out of court statements nonhearsay
    • Admissions:
      • This is why in civil damages suit admissions for small infractions are inadmissible
  • Limits on the Use of Admissions:
    • 403: We must argue that admission is culmulative or unfairly prejudicial that it outweighs probative value of admission
    • Constitutional Limitations:
      • Focuses on 6th amendment right of confrontation
      • If you’re going to use statement made out of court for truth of matter asserted if person who made statement can’t be confronted by criminal accused and it’s prosecution who’s using it against D, then at least we should discuss 6th amendment right of confrontation
  • 2. Adoptive Admissions:
    • United States v. Hooser:
      • Facts:
        • H was convicted of an armed robbery 4 witnesses ID-ed him as the perpetrator
        • Witness Rogers testified that he’d been w/ D before and after robbery
          • R said D told R he was going to rob bank and R saw D with money after and that D’s girlfriend made comments about how much money they had
        • D argues testimony elicited from R concerning girlfriend’s statements was inadmissible hearsay
      • Legal Issue:
        • Were statements RE girlfriend hearsay? NO, judgment affirmed.
      • Holding/Rationale:
        • Statement was made in D’s presence with only girlfriend and R present
        • Under total circumstances court believes that probable human behavior would have been for D promptly to deny his girlfriend’s statement if it had not been true
      • Class Notes:
        • You’re talking about using silence to establish an admission
        • They’re going to say this is a factually driven issue and the jury should decide under 401

NonHearsay Under the Federal Rules (Cont) – 195-220

 

Doyle v. Ohio (United States Supreme Court, 1976)

  • Facts:
    • Doyle and Wood were convicted of selling 10 pounds of pot to narcotics informant Bonnel
    • Bonnel was to meet D and W to get pot but shortchanged them $430 in cash they go looking for B and are then apprehended by police
    • At trial defense tries to show that arresting agents never saw what happened
      • Defense claims at trial that D and W were actually going to buy from B but deal went south, but story was not to police after reading of Miranda rights
      • Prosecution asks D why they didn’t give this story to police at time of arrest
  • Legal Issue:
    • Does the use of post-Miranda warning silence violate due process? YES
  • Holding/Rationale:
    • Miranda:
      • Silence after Miranda warnings may be nothing more than an arrestee’s exercise of his rights therefore ambiguous and fundamentally unfair to allow arrested person’s silence to be used to impeach an explanation subsequently offered at trial
    • Rule: Use for impeachment purposes of D’s silence at time of arrest and after receiving Miranda warnings, violates Due Process Clause of 14thAmendment
  • Class Notes:
    • Precludes substantive use of post arrest and post Miranda silence as well even though hear they are talking about impeachment
  • Pleadings:
    • Very important so lawyers should willy nilly put things in their pleadings
    • Even pleadings outside present case may be admissions

 

3. Admissions by Speaking Agents:

  • General Notes:
    • Agency law defines conditions under which one person may act for another
      • There are conditions under which a statement by one person is viewed as an admission by another and considered nonhearsay
    • Idea = When one person hires another to speak for him, it is fair to allow the words of the latter to esbalish facts at trial against the former
  • Notes on Admission in Judicial Proceedings:
    • Pleadings from prior lawsuits, as well as pleadings superseded by amendment in the pending suit, are generally admissible against the party who filed them (so are answers to interrogatories)
    • Under FRCP 36(a) a matter admitted is conclusively established in pending suit, but is NOT an admission for any other purpose
  • Problem 4-F:
    • Child Garment crosses in front of bus after exiting and his killed when driver (not seeing him) runs him over
      • Parents sue driver and company they think is seller (which turns out to be wrong and they are dismissed)
      • In allegation against seller of bus, P alleges that mirrors were positioned such that driver could not have seen child driver wants this allegation from dismissed complaint read into evidence
    • Purpose of alternate pleading is for judicial economy
      • However can we use pleadings plead in the alternative are used as admissions in this type of circumstance
      • If we allow this, we’re gutting the underlying public policy reasons for trying to encourage parties to plead in the alternative
    • Rule 36 says you can ask other side to admit or deny if you make admission under 36, it is for purposes of the pending action and nothing else
    • 3rdParty?
      • Statements don’t have to be made to 3rd party to be an addmission there’s no such restriction in the rules
  • 801(d)(2)(C) and (D) are different because someone might not be authorized specifically but is making statement in course and scope of employment
    • This is because most employers don’t have authorize employees to make statements that are harmful to company, the statements can be admitted under (D)
  • Personal Knowledge:
    • Person that speaks within scope of employment does NOT have to have personal knowledge

4. Admissions by Employees and Agents:

  • Multiple or “Layered” Hearsay:
    • Statements by employees often rest upon or repeat what others in the workplace have said
    • Under FRE 805 multiple or layered hearsay is admissible if each statement fits an exception
    • NOTE: no personal knowledge requirement
  • Government Admissions:
    • Traditionally, statements by public employees have not been admissible against the government on the grounds that:
      • 1) such people do not have the same sort of personal stake in the outcome of any dispute as private employees have, and
      • 2) agents cannot bind the sovereign
  • Mahlandt v. Wild Canid Survival & Research Center (US Court of Appeals 8th Circuit, 1978):
    • Facts:
      • Action for damages arising from alleged attack by wolf on child
      • Child was sent to neighbor’s to get brother he walked past gate where wolf was chained on other side
      • Neighbor hears scream and runs to child who has wolf on top of it child has cuts
        • Later comes out that child went under fence and got cuts from fence and wolf was only licking child’s face
      • HOWEVER there was statement from wolf keeper’s employer (Owen) to wolf keeper stating “Owen, would you call me at home…Sophie bit a child that came in your back yard…” there were also meeting minutes that referred to wolf biting child
        • TC excluded note and minutes b/c their sources did not have personal knowledge of the facts and therefore admissions were based on hearsay
    • Legal Issue:
      • Are statements admissible against Wild Canid Survival and Research Center?
    • Holding/Rationale:
      • Statements:
        • Were made by employe as agent/servent of Wild Canid Survival and concerned a matter within scope of his employment
      • Rule 801(d)(2)(D):
        • There is no express requirement of personal knowledge on the part of the declarant written into the rule therefore statements by employee were admissible against D
      • Evidence from Meeting:
        • Falls under 801(d)(2)(C) but this rule does NOT suggest that minutes of corporate board meeting can be used against non-participating corporate employee therefore meeting minutes NOT admissible
      • Rule 403: Exclusion of Relevant Evidence if Probative Value Outweighed by Prejudice:
        • Since relevant evidence is usually prejudicial
    • Class Notes:
      • Employee had no personal knowledge but was making statement within course and scope of employment
        • 801(d)(2) covers statements made in course of employment even if they don’t have personal knowledge

5. Coconspirator Statements

  • Class Notes:
    • Conspiracy = some type of agreement and intent
      • People can take actions in furtherance of that conspiracy
    • If you have A, B and C in conspiracy and are making statements during pendency of conspiracy in furtherance of conspiracy
      • These are admissions by A, for example, as to what A says what A says is also admission by B and C
    • If one of conspirators makes damaging statement during pendency of conspiracy in furtherance of conspiracy, it is an admission and is as if all other conspirators also made the statement
    • If statement is made during pendency of conspiracy but that is NOT in furtherance of conspiracy it is NOT admission by B and C the same is true when the conspiracy is over
    • Conspiracy doesn’t have to be charged and the admission doesn’t really have to have anything to do with conspiracy
    • Disbarred lawyer does time in federal person and is released brags that he’s excellent sailor and gets call from buddy inside federal prison
      • Buddy and lawyer comes up with scheme where lawyer will buy pot in Asia and sail boat back to buddy who’s waiting
      • Lawyer decides he wants to steal drugs and not give them to buddy he calls his son and they create scam
      • Son makes various statements in furtherance of this scam
      • In charges against buddy and lawyer for conspiracy to distribute drugs, prosecutor wants to use statements of son and can do so under a new “uncharged conspiracy” to steal drugs from prison buddy
  • General Notes:
    • Coconspirator Exception set out in 801(d)(2)(E):
      • “A coconspirator statement is admissible if:
        • 1) declarant and defendant conspired (coventurer requirement), and
        • 2) the statement was made during the course of the venture (pendency requirement)
        • 3) and in furtherance thereof (furtherance requirement)
    • Allowed in criminal and civil cases but generally only appears in criminal cases
    • Applying exception difficult because:
      • 1) proof of conspiracy is invariably circumstantial and diffuse
      • 2) the coventurer requirement introduces a problem of coincidence because conspiracy is both a predicate fact in the exception and an element of guilt or innocence
      • 3) coconspirator statements often assert or imply that declarant and D conspired, which introduces the problem of bootstrapping because statement asserts very fact on which its admissibility depends
  • Bourjaily v. United States (United States Supreme Court, 1987):
    • Facts:
      • FBI undercover agent arranged to sell cocaine to L who stated on tape-recorded conversation that he had “friend’ who had questions about cocaine
        • FBI agent speaks to friend and they all arrange time for deal
        • At deal FBI arrest L and friend friend is charged w/ conspiracy to disbribute
      • Prosecution got in L’s out of court statements over phone under Rule 801(d)(2)(E)
      • Friend (D) argues that b/c there was no opportunity to cross-examine L, statements violated constitutional right to confront witnesses against him
    • Legal Issue:
      • Were the out of court statements admissible as evidence of a conspiracy? YES
    • Holding/Rationale:
      • Rule 801(d)(2)(E):
        • Requires evidence that 1) there was a conspiracy involving the delcarant and the nonoffering party, and 2) that the statement was made in the course and in furtherance of the conspiracy
        • Standard to show this is a predponderance of the evidence (more likely than not) lower courts applied this standard
      • Bookstrapping:
        • But D thinks they should look only at independent evidence (evidence other than statements sought to be admitted) to determine existence of conspiracy
        • Court DISAGREES says that rule against bootstrapping did not survive FRE creation and Rule 104 permits court to look at any evidence it wishes in determining conspiracy under 801(d)(2)(E)
        • Out of court statements sough to be admitted under 801(d)(2)(E) themselves can be probative in determining whether there was conspiracy under 801(d)(2)(E)
    • Class Notes:
      • Court says this is a 104 determination whether there was conspiracy not the jury
        • Court also tells us that TC courts don’t have to find predicate facts by independent evidence alone
        • You can use conspiracy facts themselves to show that conspiracy existed
        • Leaves open the door to show whether co-conspirator statement can be used only to show conspiracy under 801(d)(2)(E)
      • Burden of Proof: preponderance of the evidence (NOT beyond a reasonable doubt)
      • TC doesn’t have to find conspiracy by independent facts
  • Problem 4-H:
    • Statement (1):
      • Hearsay under 801(c) but does it fit 801(d)(2)(E)?
        • No, because even though there is conspiracy, the statements are not made in furtherance of conspiracy these aren’t statements furthering illegal conspiracy as established
        • Just because coconspirator makes statement during pendency of conspiracy, doesn’t mean it fits 801(d)(2)(E)
    • Statement (2):
      • Fits into nonhearsay under 801(d)(2)(E) as coconspirator
      • Declarant and D conspired, the statements furthered the conspiracy and the statement was made during course of conspiratorial venture
    • Statement (3):
      • Doesn’t fit 801(d)(2)(E) because conspiracy was already over by this point
  • Hearsay General Notes:
    • 1) First step = determine if hearsay
      • a) Determine arguable statement and delcarant
      • b) Ask whether it was out of court
      • c) As whether it was offered for the truth of the matter asserted
    • NOTE:
      • You might be able to use something for impeachment but you should also look to whether we want to use it substantively and then we look for further carve outs

 

NonHearsay Under the Federal Rules (Cont) – 195-220

 

Doyle v. Ohio (United States Supreme Court, 1976)

  • Facts:
    • Doyle and Wood were convicted of selling 10 pounds of pot to narcotics informant Bonnel
    • Bonnel was to meet D and W to get pot but shortchanged them $430 in cash they go looking for B and are then apprehended by police
    • At trial defense tries to show that arresting agents never saw what happened
      • Defense claims at trial that D and W were actually going to buy from B but deal went south, but story was not to police after reading of Miranda rights
      • Prosecution asks D why they didn’t give this story to police at time of arrest
  • Legal Issue:
    • Does the use of post-Miranda warning silence violate due process? YES
  • Holding/Rationale:
    • Miranda:
      • Silence after Miranda warnings may be nothing more than an arrestee’s exercise of his rights therefore ambiguous and fundamentally unfair to allow arrested person’s silence to be used to impeach an explanation subsequently offered at trial
    • Rule: Use for impeachment purposes of D’s silence at time of arrest and after receiving Miranda warnings, violates Due Process Clause of 14thAmendment
  • Class Notes:
    • Precludes substantive use of post arrest and post Miranda silence as well even though hear they are talking about impeachment
  • Pleadings:
    • Very important so lawyers should willy nilly put things in their pleadings
    • Even pleadings outside present case may be admissions

 

3. Admissions by Speaking Agents:

  • General Notes:
    • Agency law defines conditions under which one person may act for another
      • There are conditions under which a statement by one person is viewed as an admission by another and considered nonhearsay
    • Idea = When one person hires another to speak for him, it is fair to allow the words of the latter to esbalish facts at trial against the former
  • Notes on Admission in Judicial Proceedings:
    • Pleadings from prior lawsuits, as well as pleadings superseded by amendment in the pending suit, are generally admissible against the party who filed them (so are answers to interrogatories)
    • Under FRCP 36(a) a matter admitted is conclusively established in pending suit, but is NOT an admission for any other purpose
  • Problem 4-F:
    • Child Garment crosses in front of bus after exiting and his killed when driver (not seeing him) runs him over
      • Parents sue driver and company they think is seller (which turns out to be wrong and they are dismissed)
      • In allegation against seller of bus, P alleges that mirrors were positioned such that driver could not have seen child driver wants this allegation from dismissed complaint read into evidence
    • Purpose of alternate pleading is for judicial economy
      • However can we use pleadings plead in the alternative are used as admissions in this type of circumstance
      • If we allow this, we’re gutting the underlying public policy reasons for trying to encourage parties to plead in the alternative
    • Rule 36 says you can ask other side to admit or deny if you make admission under 36, it is for purposes of the pending action and nothing else
    • 3rdParty?
      • Statements don’t have to be made to 3rd party to be an addmission there’s no such restriction in the rules
  • 801(d)(2)(C) and (D) are different because someone might not be authorized specifically but is making statement in course and scope of employment
    • This is because most employers don’t have authorize employees to make statements that are harmful to company, the statements can be admitted under (D)
  • Personal Knowledge:
    • Person that speaks within scope of employment does NOT have to have personal knowledge

4. Admissions by Employees and Agents:

  • Multiple or “Layered” Hearsay:
    • Statements by employees often rest upon or repeat what others in the workplace have said
    • Under FRE 805 multiple or layered hearsay is admissible if each statement fits an exception
    • NOTE: no personal knowledge requirement
  • Government Admissions:
    • Traditionally, statements by public employees have not been admissible against the government on the grounds that:
      • 1) such people do not have the same sort of personal stake in the outcome of any dispute as private employees have, and
      • 2) agents cannot bind the sovereign
  • Mahlandt v. Wild Canid Survival & Research Center (US Court of Appeals 8th Circuit, 1978):
    • Facts:
      • Action for damages arising from alleged attack by wolf on child
      • Child was sent to neighbor’s to get brother he walked past gate where wolf was chained on other side
      • Neighbor hears scream and runs to child who has wolf on top of it child has cuts
        • Later comes out that child went under fence and got cuts from fence and wolf was only licking child’s face
      • HOWEVER there was statement from wolf keeper’s employer (Owen) to wolf keeper stating “Owen, would you call me at home…Sophie bit a child that came in your back yard…” there were also meeting minutes that referred to wolf biting child
        • TC excluded note and minutes b/c their sources did not have personal knowledge of the facts and therefore admissions were based on hearsay
    • Legal Issue:
      • Are statements admissible against Wild Canid Survival and Research Center?
    • Holding/Rationale:
      • Statements:
        • Were made by employe as agent/servent of Wild Canid Survival and concerned a matter within scope of his employment
      • Rule 801(d)(2)(D):
        • There is no express requirement of personal knowledge on the part of the declarant written into the rule therefore statements by employee were admissible against D
      • Evidence from Meeting:
        • Falls under 801(d)(2)(C) but this rule does NOT suggest that minutes of corporate board meeting can be used against non-participating corporate employee therefore meeting minutes NOT admissible
      • Rule 403: Exclusion of Relevant Evidence if Probative Value Outweighed by Prejudice:
        • Since relevant evidence is usually prejudicial
    • Class Notes:
      • Employee had no personal knowledge but was making statement within course and scope of employment
        • 801(d)(2) covers statements made in course of employment even if they don’t have personal knowledge

5. Coconspirator Statements

  • Class Notes:
    • Conspiracy = some type of agreement and intent
      • People can take actions in furtherance of that conspiracy
    • If you have A, B and C in conspiracy and are making statements during pendency of conspiracy in furtherance of conspiracy
      • These are admissions by A, for example, as to what A says what A says is also admission by B and C
    • If one of conspirators makes damaging statement during pendency of conspiracy in furtherance of conspiracy, it is an admission and is as if all other conspirators also made the statement
    • If statement is made during pendency of conspiracy but that is NOT in furtherance of conspiracy it is NOT admission by B and C the same is true when the conspiracy is over
    • Conspiracy doesn’t have to be charged and the admission doesn’t really have to have anything to do with conspiracy
    • Disbarred lawyer does time in federal person and is released brags that he’s excellent sailor and gets call from buddy inside federal prison
      • Buddy and lawyer comes up with scheme where lawyer will buy pot in Asia and sail boat back to buddy who’s waiting
      • Lawyer decides he wants to steal drugs and not give them to buddy he calls his son and they create scam
      • Son makes various statements in furtherance of this scam
      • In charges against buddy and lawyer for conspiracy to distribute drugs, prosecutor wants to use statements of son and can do so under a new “uncharged conspiracy” to steal drugs from prison buddy
  • General Notes:
    • Coconspirator Exception set out in 801(d)(2)(E):
      • “A coconspirator statement is admissible if:
        • 1) declarant and defendant conspired (coventurer requirement), and
        • 2) the statement was made during the course of the venture (pendency requirement)
        • 3) and in furtherance thereof (furtherance requirement)
    • Allowed in criminal and civil cases but generally only appears in criminal cases
    • Applying exception difficult because:
      • 1) proof of conspiracy is invariably circumstantial and diffuse
      • 2) the coventurer requirement introduces a problem of coincidence because conspiracy is both a predicate fact in the exception and an element of guilt or innocence
      • 3) coconspirator statements often assert or imply that declarant and D conspired, which introduces the problem of bootstrapping because statement asserts very fact on which its admissibility depends
  • Bourjaily v. United States (United States Supreme Court, 1987):
    • Facts:
      • FBI undercover agent arranged to sell cocaine to L who stated on tape-recorded conversation that he had “friend’ who had questions about cocaine
        • FBI agent speaks to friend and they all arrange time for deal
        • At deal FBI arrest L and friend friend is charged w/ conspiracy to disbribute
      • Prosecution got in L’s out of court statements over phone under Rule 801(d)(2)(E)
      • Friend (D) argues that b/c there was no opportunity to cross-examine L, statements violated constitutional right to confront witnesses against him
    • Legal Issue:
      • Were the out of court statements admissible as evidence of a conspiracy? YES
    • Holding/Rationale:
      • Rule 801(d)(2)(E):
        • Requires evidence that 1) there was a conspiracy involving the delcarant and the nonoffering party, and 2) that the statement was made in the course and in furtherance of the conspiracy
        • Standard to show this is a predponderance of the evidence (more likely than not) lower courts applied this standard
      • Bookstrapping:
        • But D thinks they should look only at independent evidence (evidence other than statements sought to be admitted) to determine existence of conspiracy
        • Court DISAGREES says that rule against bootstrapping did not survive FRE creation and Rule 104 permits court to look at any evidence it wishes in determining conspiracy under 801(d)(2)(E)
        • Out of court statements sough to be admitted under 801(d)(2)(E) themselves can be probative in determining whether there was conspiracy under 801(d)(2)(E)
    • Class Notes:
      • Court says this is a 104 determination whether there was conspiracy not the jury
        • Court also tells us that TC courts don’t have to find predicate facts by independent evidence alone
        • You can use conspiracy facts themselves to show that conspiracy existed
        • Leaves open the door to show whether co-conspirator statement can be used only to show conspiracy under 801(d)(2)(E)
      • Burden of Proof: preponderance of the evidence (NOT beyond a reasonable doubt)
      • TC doesn’t have to find conspiracy by independent facts
  • Problem 4-H:
    • Statement (1):
      • Hearsay under 801(c) but does it fit 801(d)(2)(E)?
        • No, because even though there is conspiracy, the statements are not made in furtherance of conspiracy these aren’t statements furthering illegal conspiracy as established
        • Just because coconspirator makes statement during pendency of conspiracy, doesn’t mean it fits 801(d)(2)(E)
    • Statement (2):
      • Fits into nonhearsay under 801(d)(2)(E) as coconspirator
      • Declarant and D conspired, the statements furthered the conspiracy and the statement was made during course of conspiratorial venture
    • Statement (3):
      • Doesn’t fit 801(d)(2)(E) because conspiracy was already over by this point
  • Hearsay General Notes:
    • 1) First step = determine if hearsay
      • a) Determine arguable statement and delcarant
      • b) Ask whether it was out of court
      • c) As whether it was offered for the truth of the matter asserted
    • NOTE:
      • You might be able to use something for impeachment but you should also look to whether we want to use it substantively and then we look for further carve outs

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