e. Agent Admissions (D)
i) Definition
Statements by an agent may be used against his party- employer – vicarious admissions by agents i) within scope of agency or employment ii) during time of employment.
ii) Rationale
The rule is justified on the grounds of reliability. An agent is typically well-informed about the business act on which he is commenting since they occur w/in his work. Also, while the employment continues the employee is not likely to make the statements unless they are true.
iii) Proof of an agency relationship (d)(2)
An agent’s own statements to the existence of an agency relationship “shall be considered,” and some otherwise admissible evidence must be presented: e.g., employment records, demeanor during meetings, etc.
f. Coconspirator Admissions (E)
i) Definition
Statements made by one co-conspirator to a third party are admissible against other co-conspirators.
ii) Elements
1) By a co-conspirator
2) During the course of the conspiracy
Statements must be made at a time when the declarant was participating in the conspiracy.
Statements made after the conspiracy has ended are admissible only against the declarant, not against the other members of the conspiracy.
3) In furtherance of the conspiracy
A statement should be admitted against a co-conspirator only if it was made for the purpose of advancing the conspiracy’s objectives, such as inducing, assisting.
Statements by one co-conspirator against another may be admitted even if no conspiracy crime is charged.
iii) Proof of the existence of conspiracy
Existence of the conspiracy, and satisfaction of the other factual requirements, is to be decided by the judge by a preponderance of the evidence (104(a)). Bourjaily v. United States, 483 U.S. 171 (1987).
The statement offered for its truth shall be used, but other evidence also is needed to prevent bootstrapping.
iv) Testimonial admissions
Testimonial admissions of a conspirator are admissible against a co-conspirator only if there was an opportunity to cross-examination the hearsay declarant.
vi) No need to charge conspiracy
Statements by one co-conspirator against another may be admitted under the exception even if no conspiracy crime is formally charged.
Wednesday, February 29, 2012
Intro to the Federal Rules of Evidence - 55
b. Personal Admissions (A)
i) Definition
Any statement made by a party at any time if i) relevant and ii) offered by the opposing party.
ii) Examples
1) Pleas of guilty in later civil or criminal cases
2) Statements made in pleadings
3) Statements to friends
4) Conduct: D’s flight after a crime as an admission of guilt
c. Adoptive Admissions (B)
i) Definition
A party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive admission.
ii) Types
1) Explicit adoption
E.g., “What B has just said is true,” “Yes, that’s right.”
2) Adoption by silence
When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior (ACN).
a) Requirements
For silence to be an admission the following requirements must be met: 1. the party must have heard and understood the statement; 2. the statement was false and of such a nature that a reasonable person would deny it; and 3. the party was able to respond to the statement, but did not.
b) Silence to police accusation
Failure to reply to an accusation or statement made by the police in a criminal case can almost never be used as an implied admission of a criminal act.
d. Explicitly Authorized Admissions (C)
i) Definition
Statements by an agent with speaking authority (e.g., attorneys, partners, corporate officers, presidents) can be used against his party-principal.
ii) Rationale
Some degree of reliability. Trustworthy spokesperson.
iii) Scope
Authorized admissions include statements by the agent to the principal as well as those to third persons.
A party’s ordinary books and records, prepared by employees for the company’s internal use alone, may be admissible as admissions (ACN).
iv) Proof of authority (2nd sentence of 801(d)(2))
i) Definition
Any statement made by a party at any time if i) relevant and ii) offered by the opposing party.
ii) Examples
1) Pleas of guilty in later civil or criminal cases
2) Statements made in pleadings
3) Statements to friends
4) Conduct: D’s flight after a crime as an admission of guilt
c. Adoptive Admissions (B)
i) Definition
A party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive admission.
ii) Types
1) Explicit adoption
E.g., “What B has just said is true,” “Yes, that’s right.”
2) Adoption by silence
When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior (ACN).
a) Requirements
For silence to be an admission the following requirements must be met: 1. the party must have heard and understood the statement; 2. the statement was false and of such a nature that a reasonable person would deny it; and 3. the party was able to respond to the statement, but did not.
b) Silence to police accusation
Failure to reply to an accusation or statement made by the police in a criminal case can almost never be used as an implied admission of a criminal act.
d. Explicitly Authorized Admissions (C)
i) Definition
Statements by an agent with speaking authority (e.g., attorneys, partners, corporate officers, presidents) can be used against his party-principal.
ii) Rationale
Some degree of reliability. Trustworthy spokesperson.
iii) Scope
Authorized admissions include statements by the agent to the principal as well as those to third persons.
A party’s ordinary books and records, prepared by employees for the company’s internal use alone, may be admissible as admissions (ACN).
iv) Proof of authority (2nd sentence of 801(d)(2))
Intro to the Federal Rules of Evidence - 54
2. Party-Opponent Admissions (FRE 801(d)(2))
a. In General
i) Rationale
The notion that people should take responsibility for their own words and act.
Under an adversary system, a party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath.
ii) Evidentiary v. judicial admissions
Judicial admissions, such as admissions in pleadings or in stipulations, are binding; 801(d)(2) out-of-court admissions are evidentiary which can be rebutted at trial.
iii) Inapplicability of the firsthand knowledge & opinion rules
Either one does not apply to admissions of a party-opponent. An admission is admissible even though it contains an opinion or a conclusion of law, and even though it is not based on the declarant’s first-hand knowledge.
Example: After an auto accident, D tells a police officer, “The accident was my fault.” Even though a witness’s in-court expression of an opinion is normally not admissible, this out-of-court expression will be admissible against D. Of course, D is always free to take the stand to explain why his opinion is mistaken, taken out of context, etc. the same rule of admissibility would apply where D expressed a conclusion of law (e.g., “P will probably be able to sue my rear end off.”
iv) Declarations against interest v. admissions
Unlike a declaration against interest, an admission need not be against the declarant’s interest at the time it is made. Even a statement that seems neutral or self-serving at the time it is made may be introduced against the party who made it.
Example: D is charged with murdering his wife by stabbing her. At the beginning of their investigation, police believed that the stabbing took place at 7:00 p.m. D tells them, “I left the house at 6:45. It later turns out that the murder probably took place at 6:30. The prosecution may introduce D’s statement against him, since it is an admission. This is so even though the statement is not a “declaration against interest,” since at the time he made it, D believed the statement was exculpatory.
a. In General
i) Rationale
The notion that people should take responsibility for their own words and act.
Under an adversary system, a party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath.
ii) Evidentiary v. judicial admissions
Judicial admissions, such as admissions in pleadings or in stipulations, are binding; 801(d)(2) out-of-court admissions are evidentiary which can be rebutted at trial.
iii) Inapplicability of the firsthand knowledge & opinion rules
Either one does not apply to admissions of a party-opponent. An admission is admissible even though it contains an opinion or a conclusion of law, and even though it is not based on the declarant’s first-hand knowledge.
Example: After an auto accident, D tells a police officer, “The accident was my fault.” Even though a witness’s in-court expression of an opinion is normally not admissible, this out-of-court expression will be admissible against D. Of course, D is always free to take the stand to explain why his opinion is mistaken, taken out of context, etc. the same rule of admissibility would apply where D expressed a conclusion of law (e.g., “P will probably be able to sue my rear end off.”
iv) Declarations against interest v. admissions
Unlike a declaration against interest, an admission need not be against the declarant’s interest at the time it is made. Even a statement that seems neutral or self-serving at the time it is made may be introduced against the party who made it.
Example: D is charged with murdering his wife by stabbing her. At the beginning of their investigation, police believed that the stabbing took place at 7:00 p.m. D tells them, “I left the house at 6:45. It later turns out that the murder probably took place at 6:30. The prosecution may introduce D’s statement against him, since it is an admission. This is so even though the statement is not a “declaration against interest,” since at the time he made it, D believed the statement was exculpatory.
Intro to the Federal Rules of Evidence - 53
C. NON-HEARSAY
1. Prior statement by witness (FRE 801(d)(1))
a. Rationale
Since the witness is now subject to cross-examination, there is no danger of lack of cross-examination.
b. Inconsistent statement (A)
i) Requirements
1) The declarant must testify, subject to cross-examination, at the current trial.
An inconsistent grand jury testimony is admissible against the accused, though the accused had neither a chance to X-X nor a right to be present. Since in the current trial, W is subject to X-X, there is no Confrontation Clause issue. In contrast, a grand jury testimony other than by W is not admissible under the Confrontation Clause.
2) The prior statement must be inconsistent with the W’s trial testimony.
3) The prior statement must have been given under oath
Though required to be under oath, there is no requirement of cross-examination. Thus, a prior inconsistent statement may be admitted when there was no cross-examination, or even any opportunity for cross-examination.
4) The prior statement must have been made at a trial, hearing, or other proceeding, or in a
deposition.
A hearing is interpreted to include any setting in which sworn testimony by a witness is taken. And a proceeding is interpreted to include any official inquiry conducted in a manner authorized by law whether judicial, administrative, legislative, investigative, or inquisitorial.
ii) Substantive evidence & impeachment evidence
The prior inconsistent statement may be admissible not only as substantive proof but also for impeachment purposes.
c. Consistent statement made before alleged fabrication (B)
i) Requirements
1) To rebut the allegation of improper motive to tell a lie.
2) Statement made before the alleged fabrication
A prior consistent statement made after the motive to lie arose is not admissible. Tome v. United States, 513 U.S. 150 (1995)
ii) No oath requirement
iii) Substantive evidence & rehabilitation evidence
Such a prior consistent statement may be admissible not only substantive evidence but also evidence as to the witness’ credibility.
d. Identification (C)
i) No oath or proceeding required
Prior identifications are easier to get into evidence than are prior inconsistent or consistent statements.
ii) Identification made after perceiving
Photo identifications are within the scope of this rule.
iii) Current ability to cross-examine
So long as an opponent has the ability to ask questions to the declarant about his prior identification, the prior identification qualifies as non-hearsay under FRE 801(d)(1)(C) even though the declarant admits to having a total lack of memory about the event that gave rise to the identification. See U.S. v. Owens, 484 U.S. 554 (1988).
iv) Substantive evidence & rehabilitation evidence
Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct.
1. Prior statement by witness (FRE 801(d)(1))
a. Rationale
Since the witness is now subject to cross-examination, there is no danger of lack of cross-examination.
b. Inconsistent statement (A)
i) Requirements
1) The declarant must testify, subject to cross-examination, at the current trial.
An inconsistent grand jury testimony is admissible against the accused, though the accused had neither a chance to X-X nor a right to be present. Since in the current trial, W is subject to X-X, there is no Confrontation Clause issue. In contrast, a grand jury testimony other than by W is not admissible under the Confrontation Clause.
2) The prior statement must be inconsistent with the W’s trial testimony.
3) The prior statement must have been given under oath
Though required to be under oath, there is no requirement of cross-examination. Thus, a prior inconsistent statement may be admitted when there was no cross-examination, or even any opportunity for cross-examination.
4) The prior statement must have been made at a trial, hearing, or other proceeding, or in a
deposition.
A hearing is interpreted to include any setting in which sworn testimony by a witness is taken. And a proceeding is interpreted to include any official inquiry conducted in a manner authorized by law whether judicial, administrative, legislative, investigative, or inquisitorial.
ii) Substantive evidence & impeachment evidence
The prior inconsistent statement may be admissible not only as substantive proof but also for impeachment purposes.
c. Consistent statement made before alleged fabrication (B)
i) Requirements
1) To rebut the allegation of improper motive to tell a lie.
2) Statement made before the alleged fabrication
A prior consistent statement made after the motive to lie arose is not admissible. Tome v. United States, 513 U.S. 150 (1995)
ii) No oath requirement
iii) Substantive evidence & rehabilitation evidence
Such a prior consistent statement may be admissible not only substantive evidence but also evidence as to the witness’ credibility.
d. Identification (C)
i) No oath or proceeding required
Prior identifications are easier to get into evidence than are prior inconsistent or consistent statements.
ii) Identification made after perceiving
Photo identifications are within the scope of this rule.
iii) Current ability to cross-examine
So long as an opponent has the ability to ask questions to the declarant about his prior identification, the prior identification qualifies as non-hearsay under FRE 801(d)(1)(C) even though the declarant admits to having a total lack of memory about the event that gave rise to the identification. See U.S. v. Owens, 484 U.S. 554 (1988).
iv) Substantive evidence & rehabilitation evidence
Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness’s testimony, but also as substantive evidence that the identification was correct.
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