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.
Tuesday, January 17, 2012
Intro to the Federal Rules of Evidence - 52
3. The truth of the matter asserted
a. Relevancy issue
If the statement is offered for any purpose other than for its truth, it is not hearsay. Thus, the hearsay character of the statement cannot be examined until we know why the proponent is offering the evidence – i.e., its relevancy.
Deciding that a string of words is a statement does not mean it is hearsay. That depends on whether it is offered to prove what it asserts, which in turn depends on the proponent’s purpose, the speaker’s intent, and often on the broader factual context in which the statement was made.
b. Inapplicability of the rule
i) Verbal acts
A statement may be, by itself, an operative fact which gives rise to legal consequences under substantive law, e.g., words of a contract, defamation, threats, and the like. Such a statement, which is usually called a “verbal act,” is relevant, regardless of the truth of the word spoken. The fact that such words were said matters, not that they are true.
ii) Effect on hearer or reader
A statement that is offered to show its effect on the person who heard the statement is not hearsay, e.g., where the statement is offered to show only knowledge, good faith, reasonableness, emotional effect, etc.
iii) Declarant’s state of mind
A statement that is offered, as circumstantial evidence, to show the state of the mind of the declarant is not hearsay. For example, to show the intent of a party to contract negotiations; to show the state of mind of a criminal defendant; to show a witness’s bias.
a. Relevancy issue
If the statement is offered for any purpose other than for its truth, it is not hearsay. Thus, the hearsay character of the statement cannot be examined until we know why the proponent is offering the evidence – i.e., its relevancy.
Deciding that a string of words is a statement does not mean it is hearsay. That depends on whether it is offered to prove what it asserts, which in turn depends on the proponent’s purpose, the speaker’s intent, and often on the broader factual context in which the statement was made.
b. Inapplicability of the rule
i) Verbal acts
A statement may be, by itself, an operative fact which gives rise to legal consequences under substantive law, e.g., words of a contract, defamation, threats, and the like. Such a statement, which is usually called a “verbal act,” is relevant, regardless of the truth of the word spoken. The fact that such words were said matters, not that they are true.
ii) Effect on hearer or reader
A statement that is offered to show its effect on the person who heard the statement is not hearsay, e.g., where the statement is offered to show only knowledge, good faith, reasonableness, emotional effect, etc.
iii) Declarant’s state of mind
A statement that is offered, as circumstantial evidence, to show the state of the mind of the declarant is not hearsay. For example, to show the intent of a party to contract negotiations; to show the state of mind of a criminal defendant; to show a witness’s bias.
Intro to the Federal Rules of Evidence - 51
2. Out-of-court
“[O]ther than one made by the declarant while testifying at the trial or hearing.”
The following statements will be deemed “out of court”
a. Statements by non-witness
A witness’s delivery of a third person’s statement constitutes hearsay.
b. Prior statements by witness
An out-of-court statement does not lose its hearsay character simply because the declarant later becomes a witness at trial and testifies about the statement.
A witness’ prior statement made in a deposition or in an earlier trial, or even when spoken in the judge’s chambers during the present trial, are all out of court, and so will constitute hearsay, unless FRE 801(d)(1) exception is applied.
EXAMPLE:
Plaintiff: Ms. Jones, what did you say to your son after you looked up?
Witness: I told him that I saw the green car go through the stop sign.
Defense: Objection, your honor. Hearsay.
Court: Objection sustained.
“[O]ther than one made by the declarant while testifying at the trial or hearing.”
The following statements will be deemed “out of court”
a. Statements by non-witness
A witness’s delivery of a third person’s statement constitutes hearsay.
b. Prior statements by witness
An out-of-court statement does not lose its hearsay character simply because the declarant later becomes a witness at trial and testifies about the statement.
A witness’ prior statement made in a deposition or in an earlier trial, or even when spoken in the judge’s chambers during the present trial, are all out of court, and so will constitute hearsay, unless FRE 801(d)(1) exception is applied.
EXAMPLE:
Plaintiff: Ms. Jones, what did you say to your son after you looked up?
Witness: I told him that I saw the green car go through the stop sign.
Defense: Objection, your honor. Hearsay.
Court: Objection sustained.
Intro to the Federal Rules of Evidence - 50
1. Statement
a. Oral or written assertion
The term of assertion means a “forceful or positive declaration.” U.S. v. Zenni, 492 F.Supp. 464 (E.D.Ky. 1980).
It is scarcely doubted that an assertion made in words is intended by the declarant to be an assertion. Hence, verbal assertions readily fall into the category of statement (ACN).
An oral assertion is made when a witness testifies that somebody said “…”. Any written document that is offered in evidence constitutes a statement for hearsay purposes.
EXAMPLE
Q: What did the crossing guard say to you immediately after the accident?
OPPOSING PARTY: Hearsay, Your honor.
JUDGE: Sustained.
Q: May I make an offer of proof?
JUDGE: Certainly. Proceed.
Q: If the witness were allowed to testify, he would state that the crossing guard made the following statement to him: “I saw the fire truck and heard the siren. All of the traffic stopped except for the red care in the left lane, which just ran right into the back of the blue car without even slowing down.”
JUDGE: Very well. The ruling stands. Ask another question.
EXAMPLE
Q: What was the content of the radio bulletin from the dispatcher?
OPPOSING PARTY: Objection, hearsay.
JUDGE: Sustained.
b. Non-verbal conduct intended as an assertion
Assertive conduct is treated as if it were a statement, so that it can be hearsay.
Any conduct might have assertive intent, so it might be a statement in which case it would be hearsay if offered to whatever the actor sought to express. In this setting, the burden is on the objecting party to prove that the actor had the requisite intent.
i) Nonassertive conduct
Nonassertive conduct is not conduct the declarant did not intend as an assertion but which is being offered as an assertion. Evidence of nonassertive conduct is not hearsay.
The rationale is that the likelihood of fabrication is less with nonassertive conduct than with assertive or verbal conduct.
c. By person
The hearsay rule does not apply to devices or animals.
a. Oral or written assertion
The term of assertion means a “forceful or positive declaration.” U.S. v. Zenni, 492 F.Supp. 464 (E.D.Ky. 1980).
It is scarcely doubted that an assertion made in words is intended by the declarant to be an assertion. Hence, verbal assertions readily fall into the category of statement (ACN).
An oral assertion is made when a witness testifies that somebody said “…”. Any written document that is offered in evidence constitutes a statement for hearsay purposes.
EXAMPLE
Q: What did the crossing guard say to you immediately after the accident?
OPPOSING PARTY: Hearsay, Your honor.
JUDGE: Sustained.
Q: May I make an offer of proof?
JUDGE: Certainly. Proceed.
Q: If the witness were allowed to testify, he would state that the crossing guard made the following statement to him: “I saw the fire truck and heard the siren. All of the traffic stopped except for the red care in the left lane, which just ran right into the back of the blue car without even slowing down.”
JUDGE: Very well. The ruling stands. Ask another question.
EXAMPLE
Q: What was the content of the radio bulletin from the dispatcher?
OPPOSING PARTY: Objection, hearsay.
JUDGE: Sustained.
b. Non-verbal conduct intended as an assertion
Assertive conduct is treated as if it were a statement, so that it can be hearsay.
Any conduct might have assertive intent, so it might be a statement in which case it would be hearsay if offered to whatever the actor sought to express. In this setting, the burden is on the objecting party to prove that the actor had the requisite intent.
i) Nonassertive conduct
Nonassertive conduct is not conduct the declarant did not intend as an assertion but which is being offered as an assertion. Evidence of nonassertive conduct is not hearsay.
The rationale is that the likelihood of fabrication is less with nonassertive conduct than with assertive or verbal conduct.
c. By person
The hearsay rule does not apply to devices or animals.
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