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Article 8 Hearsay Outline

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ARTICLE VIII: HEARSAY:FRE 801: Definitions o FRE 801(a): Statement:
? (1) an oral or written assertion OR
? (2) non-verbal conduct of a person, if it is intended by the person as an assertion o FRE 801(b): Declarant: Person who makes a statement
? Animals not hearsay declarants
? Machines not hearsay declarants o FRE 801(c): Hearsay is:
? A statement
? Other than one made by the declarant while testifying at thetrial/hearing (out of court)
? Offered into evidence To prove the truth of the matter asserted
? Pacelli: Cannot admit hearsay statements that imply the truth of the matter asserted, even if they do not state it directly o Statement: "The murder was bungled by leaving the body where it could be found," when declarants are Pacelli's family, implies that they knew/believed Pacelli was the murderer/that he told them he was the murderer
? Dissent: Not offered for the truth of the matter asserted: Offered to show that he was the murderer, not that he bungled the

murder o FRE 801(d): Statements which are not hearsay (Hearsay Exclusions): A statement is NOT HEARSAY if:
? FRE 801(d)(1): Prior statement by witness: The declarant testifies at trial AND
? Is subject to cross examination concerning the statementAND The statement is: o FRE 801(d)(1)(A): Inconsistent with the declarant's testimony, AND was given under oath subject to penalty of perjury at a trial,

hearing, or other proceeding, or in a deposition ORSmith: Hooker is assaulted at motel by her pimp, she signs statement/affidavit under oath at station naming him as attacker but names different attacker on stand
? Because of the facts under which this statement/affidavit was made, it counts as an "other proceeding": guarantees of reliability/truthfulness (MINORITY RULE) o She wrote statement in her own words o She signed each page o Detective signed as witness on three pages o Notary read her statement and oath o She reread statement and oath o Seal and signature affixed
? N.B. This was first admitted for impeachment purposes as a prior inconsistent statement (FRE 613), then for substantive purposes as a prior inconsistent statement (FRE 801(d)(1)(A))

?

Prosecution needed it for substantive purposes because it was their only evidence and they have the burden ofproof Forgetfulness/Evasive Answers/Silence:
? If court believes you are feigning forgetfulness/being evasive/refusing to answer, prior inconsistent statement will comein under FRE 801(d)(1)(A) If you have a genuine medical reason to forget, e.g. amnesia or brain injury, prior inconsistent statement will not come in under

FRE 801(d)(1)(A) o FRE 801(d)(1)(B): Consistent with the declarant's testimony, AND is offered to rebut an express/implied charge against declarant of recent fabrication/improper influence or motive ORTome: Prior consistent statements of abused child to six witnesses naming father as abuser admitted in error.
? Prior consistent statements must have been made before the alleged fabrication or improper influence/motive came into being o Here, alleged improper motive of desiring to live with mother, starting when father got custody

?

Must be offered to rebut the charge of fabrication/improper motive o As here, cannot be offered merely to bolster truth of

declarant's story o FRE 801(d)(1)(C): One of Identification of person made after perceiving person
? Motta: Sketch artist's composite sketch of robbery suspect based on witness' description admitted
? The sketch is hearsay: it is a statement made out of court to prove what the suspect looked like. Functions the same as verbal description of suspect'sphysical characteristics Admissible as prior identification o No express temporal limit, but identification should be done close in time to perception: resgestae
? Includes hearing person/voice ID FRE 801(d)(2): Admission by party-opponent: The statement is offered against a party* AND is:
? FRE 801(d)(2)(A): Party's own statement (in either individual or representative capacity) OR o Bruton: Joint defendants. Error to admit Evans' jailhouse statement, "Bruton and I committed the robbery."
? When there are two Ds and evidence is admissible against one but not the other:
? A limiting instruction will not suffice to protect the rights of the D against whom the statement is not admissible

o Must sever trials OR o Must redact or paraphrasethe statement FRE 801(d)(2)(B) Statement of which party has manifested an adoption or belief in its truth (Adoptive admission) OR o Hoosier: Hoosier told witness he was going to rob a back. Later, witness saw Hoosier and girlfriend and commented on expensive stuff. Girlfriend said, "That ain't nothing. You should have seen the money we had in the hotel room."Adoptive admission because Hoosier stayed silent and did not deny his girlfriend's statement in a situation in which a person would be expected todeny such a statement if it were untrue Notes: Minimum Requirements of Tacit Admission:
? Party heard the statement
? Matter asserted was within hisknowledge AND Occasion and nature of statement were such that he would likely have replied if he did not mean to accept what was said o But excluded if:
? Party did not understand the statement or itssignificance Some physical or psychological factor explains thelack of reply Speaker was someone whom

the party wouldlikely ignore OR Silence was post-

Miranda silence o No impeachment through post-arrest, postMiranda Silence: Doyle v. Ohio: D's story is that Informant was trying to sell him marijuana, and that Informant got mad and threw cash in his car, so he drove around to give it back.
? Prosecution attempted to impeach D for failing to tell agent that story after he was arrested and Mirandized
? Cannot use post-Miranda silence for substantive OR impeachment (prior inconsistent statement) purposes o Meaning of silence ambiguous because may just be exercise of right o Prejudicial because of jury's inability to separate substantive and impeachment uses o But cf. Jenkins v. Anderson: Can impeach through use of pre-arrest silence e.g. failure to report incident to police and subsequent testimony of self-defense o But cf. Harris v. New York: Can impeach through use of un-Mirandized post-arrest statements e.g. statements that D was selling heroin and subsequent testimony of sellingbaking powder FRE 801(d)(2)(C) Statement by person authorized by party to make statement concerning the subject (Speaking agent) OR

?

FRE 801(d)(2)(D) Statement by party's agent or servant concerning matter within scope of agency or employment, made during existence of relationship (Agent in scope of employment) OR o Mahlandt: Statements that "Sophie bit a child."
? Admissible against Poos as adoptiveadmission (FRE 801(d)(2)(B)) Admissible against Wild Canid Survival and Research Center because fits three requirements of admission by agent inscope of employment (FRE 801(d)(2)(D) FRE 801(d)(2)(E) Statement by coconspirator of party during course and in furtherance of conspiracy o Bourjaily: Existence of conspiracy and D's participation in it are preliminary questions of fact under FRE 104(a)
? Determined by court by a preponderanceof the evidence Court can consider statements sought to be admitted when determining existence of conspiracy/D's participation
? Bourjaily court does not decide issue, but Rule amended below to require independent evidence of conspiracy/participation in

addition to statements o Contents of statement not alone sufficient to establish declarant's authority under (C), agency/employment relationship or scope under (D), or conspiracy and declarant's/party'sparticipation (E)
*Victim is a party represented by the state for purposes of this doctrine, so victim's admissions come in againsther Common Law Hearsay Exclusions (NOT HEARSAY): o Imperatives: No truth of the matter asserted

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