Law Outlines Evidence Outlines
In-depth evidence outline gives the nuances of interpretations of the Federal Rules of Evidence in an easy-to-understand layout. Topics of this outline include: procedure and preliminary matters, character, impeachment, hearsay, the Confrontation Clause, expert witnesses, privileges, and California distinctions to the federal rules. This key gives each FRE number alongside each rule section, to allow you to get maximum points on your test. Also included: outline made in preparation for UBE/MBE ba...
The following is a more accessible plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Hearsay: 801-807
FRE 801: definition
Out of court statement
Even if statement is made during preliminary hearing, because there is a different trier of fact (judge and jury)
Statement = oral, written, or nonverbal conduct intended to serve as an assertion
Non assertive conduct = cannot be hearsay
Conduct that the declarant did not intend as an assertion, but is being offered as such. Not intended as a substitute for words.
Question of actor’s intent: FRE 104(a) question for the judge.
Burden on party objecting to admission of the actor’s conduct as hearsay
Policy
No oath
No observation of demeanor
No opportunity to cross examine to determine testimonial/hearsay dangers:
Sincerity
Narration ambiguity
Perception
Memory problems
FRE 802 – the rule against hearsay
Non Hearsay Uses of OOC
Verbal acts or Legally operative facts
Evidence of certain utterances (contract, defamation, bribery, cancellation, permission) = not hearsay. Because the issue is simply whether the statement was made
Example: in contract case, words that constitute offer, acceptance, rejection is not hearsay
Effect on listener
Ex: negligence case where knowledge of danger is the issue, 3d person’s statement of warning is admissible for the limited purpose of showing knowledge/notice on the part of the listener.
Circumstantial evidence of Declarant’s state of mind
Only offered to prove that the declarant believed something to true (not that that thing was actually true)
Most commonly used to prove: insanity, and knowledge.
Ex: In proceeding where declarant’s sanity is in issue, evidence that declarant had stated OOC “I am John the Baptist” would not be introduced as proof of its truth, but as circumsantail evidence of insanity.
DIFFERENT FROM THE EXCEPTION
Statements that reflect directly on the declarant’s state of mind are hearsay but admissible under an exception.
As a practical matter, this distinction makes little difference because the result is the same & courts don’t often distinguish between the two
801(d)(1)(A) – Prior inconsistent statement
Inconsistency
Any substantive divergence between two statements. Doesn’t have to be exact opposite.
Whether there is inconcistency: 104(a) determination: ESSF by preponderance of the evidence
Evasion
Considered inconsistency by some courts: “inconsistency may be found in evasive answers, silence, or changes in position.”
Statement was given under penalty of perjury;
Statement was made at a trial, hearing, other proceeding, or in a deposition
Police lineup/interview generally not within meaning of “other proceedings”
Must be some level of formality
Interrogations by immigration officers are held by some courts to be “other proceedings” (including 9th circuit)
The witness must be subject to cross-X concerning the statement by answering questions willingly; the witness need not necessarily remember the underlying event or making the prior statement.
801(d)(1)(B) – Prior consistent statements
Consistent with declarant’s testimony
To Rebut the charge of motive to lie
Statement must be made prior to the date at which the improper influence of motive allegedly arose
Disagreement over when motive arises
At time of arrest?
When discussions begin about benefits for cooperating? (by DA)
Does not need to be made under oath
The witness must be subject to cross-X concerning the statement by answering questions willingly; the witness need not necessarily remember the underlying event or making the prior statement.
801(d)(1)(C) – Prior statements of identification
Statement identifies person as someone declarant perceived earlier
Original intent: to only admit statements made at traditional lineups
Now: broad interpretation of identification
Courts split on whether physical description of person given by declarant to police (without reperception of person) fits under 801(d)(1)(C)
Does not need to be made under oath.
Admissibility not limited to rehabilitation of the witness
A prior identification that is consistent with in-court testimony can be admitted without proof of any attack on W’s sincerity.
The witness must be subject to cross-X concerning the statement by answering questions willingly; the witness need not necessarily remember the underlying event or making the prior statement.
801(d)(2) – admissions (generally no personal knowledge requirement or lay opinion rule)
For all:
No requirement that the statement be against interest at the time it was made
No personal knowledge requirement
No lay opinion rule application
Standard for Judge
Statement by itself does not establish declarant’s authority under C, the existence of scope of relationship under D, or existence of conspiracy or participation under E
Look at totality of circumstances, including the contents of the statement
Nonassertive conduct is admissible b/c admissions are considered nonhearsay
Specific Rules
A plea of guilty to a criminal charge may be used as an admission against the pleader in any later proceeding involving the same act.
A plea of “no contest” is not an admission of guilt so not admissible in any subsequent proceeding
FREs do not provide for the reception of admissions by predecessors in interest
Example: statement by dead person that OP tries to use in wrongful death suit brought by declarant’s family = not admissible
Conduct that reflects awareness of guilt are admissions – attempts to conceal/destroy damaging evidence, attempt to bribe, flight from scene of crime, assumption of false name, attempt to resist arrest
801(d)(2)(A) – Party admission
Statement made by a party
Trustworthiness not an extra element, up to the jury to decide
Statement offered against that party
801(d)(2)(B) – Party manifested to adopt statement
Statement made
Party has done something to manifest adoption of the statement/belief in its truth
Number of ways to manifest adoption: words, conduct, silence...
Buy the full version of these notes or essay plans and more in our Evidence Outlines.
In-depth evidence outline gives the nuances of interpretations of the Federal Rules of Evidence in an easy-to-understand layout. Topics of this outline include: procedure and preliminary matters, character, impeachment, hearsay, the Confrontation Clause, expert witnesses, privileges, and California distinctions to the federal rules. This key gives each FRE number alongside each rule section, to allow you to get maximum points on your test. Also included: outline made in preparation for UBE/MBE ba...
Ask questions 🙋 Get answers 📔 It's simple 👁️👄👁️
Our AI is educated by the highest scoring students across all subjects and schools. Join hundreds of your peers today.
Get Started