CHAP. 4, part 1 of 3:DEFINITIONAL EXCEPTIONS

TO THE MEANING OF HEARSAY

P. JANICKE2012

2012 Chap. 4, part 1 2

IF OUT-OF-COURT DECLARANT IS WITNESS AT TRIAL

• A FEW DEFINITIONAL EXCEPTIONS TO “HEARSAY” APPLY [R 801(d)(1)]

– PRIOR INCONSISTENT STATEMENT

2012 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]

2012 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

2012 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

2012 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

2012 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

2012 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]

2012 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 . . . .

2012 Chap. 4, part 1 10

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

2012 Chap. 4, part 1 11

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:

1. ASKING PLAINTIFF ABOUT IT2. ASKING DEFENDANT ABOUT IT3. ASKING A BYSTANDER ABOUT IT

2012 Chap. 4, part 1 12

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 ??

2012 Chap. 4, part 1 13

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

2012 Chap. 4, part 1 14

THE PARTY NEED NOT HAVE SAID IT DIRECTLY

• COULD BE BY AN EMPLOYEE

• COULD BE BY A CURRENT ACCOMPLICE

• ETC.

2012 Chap. 4, part 1 15

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

2012 Chap. 4, part 1 16

• 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.

2012 Chap. 4, part 1 17

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

2012 Chap. 4, part 1 18

• 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.

2012 Chap. 4, part 1 19

PROBLEMS/CASES

• STATE v. SMITH• 4A• MOTTA• 4B• 4D• Hoosier (cont’d)

• Doyle• 4F• Mahlandt• 4H

2012 Chap. 4, part 1 20

2012 Chap. 4, part 1 21

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

2012 Chap. 4, part 1 22

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