EVIDENCE CLASS 9

1. EVIDENCE CLASS 9 Rule 801(d) and definition of unavailability

2. REVIEW • HEARSAY: out of THIS court statement by a PERSON offered for the truth of the matter asserted

3. Policy underlying hearsay • POLICY: WANT CONTEMPORANEOUS CROSS OF THE DECLARANT TO ALLOW THE JURY TO DETERMINE THE DECLARANT’S CREDIBILITY (E.G. RISKS OF MISPERCEPTION; MEMORY; INSINCERITY; NARRATIVE AMBIGUITY)

4. HEARSAY REVIEw Declarant is the PERSON who made the contested statement (either orally or in writing); Under federal rules - hearsay = statement other than one made by declarant WHILE TESTIFYING AT THIS TRIAL OR HEARING offered in evidence to prove the truth of the matter asserted; under federal rules (although not true in GA) - any OUT OF COURT STATEMENT — even if the witness is on the stand – may be hearsay

5. Is it Hearsay? • To figure out hearsay: • 1. Figure out the declarant; • 2. Identify the contested statement - put it in quotes; • 3. Determine what is it being offered to prove? • If it’s offered for truth of matter asserted - it’s hearsay - to look at if it’s offered for truth of matter asserted;

6. Is it for the truth? • one way to think about this —ask self- what is offeror trying to prove -- then ask self - do you need declarant on stand to cross examine her to test whether she misperceived, had a faulty memory, had a reason to lie, to explain potential narrative ambiguity - if so, then the truth of what was asserted in the statement is probably at issue

7. SOME “NOT FOR TRUTH PURPOSES” • WORDS THAT HAVE INDEPENDENT LEGAL SIGNIFICANCE (E.G. WORDS THAT BY THEIR MERE UTTERANCE CREATE LEGAL RIGHTS OR LIABILITIES) • WORDS OFFERED TO SHOW THE EFFECT ON THE LISTENER • WORDS OFFERED TO SHOW NOTICE

8. ASSERTIONS • CONDUCT – ONLY EXPRESS ASSERTIONS MAY BE HEARSAY - USUALLY FIND THESE AS: COMMON SIGNAL; RESPONSE TO ?; CONDUCT AS CODE • POLICY: REDUCED RISK OF INSINCERITY WITH IMPLIED CONDUCT

9. ASSERTIONS VERBAL/WRITTEN • MAY HAVE A HEARSAY ISSUE WITH EXPRESS AND IMPLIED WRITTEN/VERBAL ASSERTIONS • Written and Verbal Statements must be intended as an assertion.

10. Is it an Implied Assertion? • As yourself: did the declarant intend to communicate the implication for which the statement is being offered? • Use common sense!!! To the extent that the inference drawn from the out of court expression seems attenuated - e.g. a poor choice if someone really wanted to communicate the implied fact - the more likely it is to be considered nonassertive and thus not hearsay. On the other hand, the more likely a reasonable person would understand what the speaker intended to communicate, the more likely it is an implied assertion (e.g. X got hammered last night).

11. Overcoming a hearsay issue • Even if a statement is hearsay, it may be admissible either because it is statutorily exempt from hearsay (801(d)) or because it falls within an exception (803 & 804)

12. 801(D) – PRIOR STATEMENTS • FOR PRIOR INCONSISTENT/PRIOR CONSISTENT/PRIOR I.D. MUST HAVE: • DECLARANT AT TRIAL AND AVAILABLE FOR CROSS EXAMINATION (CROSS EXAMINATION MEANS TAKES THE OATH AND ANSWERS QUESTIONS WILLINGLY)

13. PRIOR INCONSISTENT STATEMENTS for their “truth” • DECLARANT AVAILABLE FOR CROSS • PRIOR STATEMENT MADE UNDER OATH AT A TRIAL, DEPO, HEARING OR OTHER PROCEEDING (WHERE NORM IS VERBATIM TRANSCRIPT UNDER OATH) • STATEMENT IS INCONSISTENT (SILENCE/FALSE MEMORY “I DON’T RECALL”COUNTS AS INCONSISTENCY)

14. PRIOR CONSISTENT STATEMENTS “for their truth” • PRIOR CONSISTENT STATEMENTS RULE: what are requirements for prior consistent statement exemption?

15. policy • Policy: Generally, don’t want bolstering for sake of bolstering (time waster); Also if regularly admit pre-existing statements – might encourage the manufacture of such statements by unethical witnesses/counsel. However, consistent statements become much more relevant if trial testimony is attacked as recent fabrication or due to improper motive/influence. • How do the requirements for the admissibility of prior consistent statements for their truth comport with the policy underlying the admissibility of these statements for their truth?

16. Recent fabrication, improper influence or motive • How do you know if there is an implied charge of recent fabrication/improper influence or motive?

17. Hypo #1 • Sue is a  witness to a wreck on January 1, 2006.  She tells the investigating officer, “the driver of the green car failed to yield.”March 1, 2006, Sue gives a deposition and in it she says, “the driver of green car had right of way.” May 1, 2006, Sue meets driver of the green car and they start dating    Trial on July 1, 2006 - Sue testifies that “the driver of the green car had the right of way.”

18. Hypo #1 cont’d • Assuming her testimony has not yet been challenged in any way, may driver of green car ask her what she said in her deposition (i.e.-green car had right of way) as a prior consistent statement to show jury that she has said the same thing at another time.  (First analyze whether, absent the prior consistent statement rule, her deposition testimony would be hearsay)

19. Hypo #1 cont’d • Assume opposing side on cross examination, wants to get in (assubstantive evidence) statement to the investigating officer.  May itcome in as an prior inconsistent statement?   (First analyze whether,absent 801(d) the statement would be hearsay)

20. Hypo #1 cont’d • May it come in to impeach her by bringing out the fact that she told the officer something different (i.e. that the green car failed to yield) • Once it comes in to impeach her, on re-direct, may she be asked about her deposition testimony under the prior consistent statement rule? Does it impact your answer change if, as part of impeachment, she is asked about her relationship w/driver of green car?

21. What if dates change  - instead of March 1 deposition testimony , the deposition was on June 15 (at scene, she says Driver of green car didn’t yield; begins dating driver in May; depo in June says driver of green car had right of way Trial in July)  Assume that impeachment at trial was alongthe lines of: you changed story b/c you are dating driver of green car. Can the June 15  depo testimony come in as a prior consistentstatement?                              

22. Not for truth purposes • Prior consistent statements may still be used for non-substantive purposes - e.g. - to rehabilitate a witness. Thus may be introduced to explain that what is presented as an inconsistent statement is not really inconsistent at all; or to understand the context of the statements. E.g. it can be used to clarify or explain or provide context for what has been presented as an inconsistent statement.

23. Example of rehabilitation U.S. v. Denton 246 F3d 786 (2001) • At trial, witness testified that she gave three separate written statements to police after defendant’s arrest. To impeach her at trial, defense counsel attempted on cross-examination to point out inconsistencies in witness’ prior statements – counsel asked witness to read answers to specific questions posed to her by officers, but did not permit her to explain the context of her answers or read the answers to other questions posed by the police. On redirect examination, the government attempted to introduce into evidence all of Forchia's written statements to the police as prior consistent statements under R. 801(d). Held: Not allowed as prior consistent statements but allowed to rehabilitate under R. 106 – the rule of completeness.

24. Prior ID • What are the requirements

25. policy • What is policy underlying prior ID (see US v. Owens)

26. Hypo #2 • Witness at police station identifies the defendant in a line-up.  At trial, the witness cannot say for certain that the person sitting at the defense table is the person who robbed her. A police officer then gets on the stand and testifies, “at the line up,the witness identified the defendant as the man who robbed her.” Witness is still in the courtroom.  Objection “hearsay”.  Whatruling? (First analyze whether the testimony, absent the prior i.d. rule, would be hearsay)TWIST – what if witness is dead?

27. Admissions by a party opponent • MOST IMPORTANT AND MOST FREQUENT EXEMPTION/EXCEPTION!!! • “Admissions” misnomer. Better understand the rule if you think of it as “statements” of a party opponent. Do not have to “admit” ANYTHING for this rule to apply.

28. policy • What’s the policy behind the rule on admissions of a party-opponent as being exempt from hearsay rules?

29. Ask self: who is offering the evidence? • Remember first class - 3 questions - what is evid being offered to prove; who is offering; what is form - w/admissions. Who is offering the evid is very important - admission can be offered AGAINST a party - party cannot offer her own "admission”. (Must be offered by someone on the other side of the “v.” )

30. Preview of the 4 kinds of admissions • 1. By the actual party/opponent(e.g. - I am sued for spilling oil in the GSU parking lot causing a slip & fall - I say to my friend, “ I sure wish I’d been more careful w/that motor oil”. • 2. Authorized admission (e.g. I am spokesperson & on behalf of GSU admit that we should have patrolled the parking lots better to look for slick spots)

31. Admissions overview • 3. Admission of an employee concerning matter w/in scope of employment or agency (e.g. I am an employee of GSU’s parking lot cleaning crew and I say to co-worker, “Gee, wish I’ d done a better job of looking for and cleaning up spills”) • 4. Co-conspirator admissions-admissions made during the course of and in furtherance of a conspiracy (e.g. X and I conspire to collect insurance – I email X, “I’ll spill oil and you slip and fall. Then we can sue GSU.” X slips and falls in the oil I spilled. My statement can be used against X

32. State v. Johnson p. 569 • Issue in case is whether defendant willfully withheld payroll taxes (did defendant have the power to pay) • What’s the contested evidence? • Def argues that state got in statements under the statement against interest exception - does court agree (why/why not)? • What’s dif btwn party admission & statement v. interest • Why could state offer def’s statement but def could not offer his own statement via the accountant?

33. Admissions =statements but MUST be offered by PARTY OPPONENT • “Admissions” = misnomer; really any statement (doesn’t have to “admit” anything. BUT only may be offered by “party opponent (party on the other side of the “v.”)

34. Party opponents

35. hypo • State v. A&B for bank robbery • A says to “C” – “It was all my fault. Poor B didn’t have a clue”. • Who can offer A’s statement as a party opponent admission: (the gov’t? B??)

36. U.S. v. Hoosier p. 572 • What’s the contested evidence? • What’s the argument for admissibility? • How does the court rule and why?

37. Adoptive Admissions • What’s criteria - what should court look at in deciding if silence =s adoptive admission – • NOTE – can have adoptive admission by conduct as well as by silence - see examples in G&W note5

38. Adoptive Admissions – criminal cases - • In criminal cases, pre-arrest statements (or sometimes pre-arrest silence) may be considered an admission. Post-arrest silence following Miranda warnings cannot be considered an adoptive admission. HOWEVER, sometimes post-arrest but pre-Miranda warning silence can also be considered an adoptive admission (however, in cases of silence before and during arrests, courts should, carefully assess the situation to see if the accused’s silence is actually due to a reasonable fear that what he said may be used against him (even if he hasn’t been Mirandized) – See G&W note 6

39. Spokesperson/authorized agent admissions • In addition to individual party/opponent admissions - can have an admission via an authorized spokesperson or authorized agent (someone authorized to give a statement on behalf of that party) (Corporate spokespeople; public relations people, etc)

40. Employer/agent admissions • What are the requirements for the admissibility of statements made by employers/agents against an employer

41. Employee/agent admissions • Policy looks to agency law - the idea that a principal is bound by her agent’s actions and in essence, the principal and agent act as one under substantive law as long as the agent was acting in the course/scope of agency.

42. MAHLANDT • In Mahlandt (wolf allegedly biting the boy case) - Who are the defendants? • Plaintiff alleges wolf bit child - what is the defense - what are defendants saying happened: • What’s the contested evidence (list all) – [do the general hearsay analysis] • What is evidence being offered to prove? • Who is offering it? • Did any of the declarants have first hand knowledge when they made the statements?

43. Mahlandt cont’d • Theory for admission of note/oral statement • Theory for admission of board minutes Against which defendants are each of those statements admissible and why Does the declarants lack of first hand knowledge play a role in your analysis

44. Hill v. Speigel • age discrimination case - Hill argues he fired b/c of his age; • Contested evidence [do the general hearsay analysis] • What were arguments for/against admissibility? Who wins that debate and why?

45. query • BEFORE an agent’s statement is admissible, does the proponent HAVE TO PROVE AGENCY? Who decides if enough evidence of agency? Can you rely simply upon agent’s declaration of agency?

46. Attorney/agent • As an attorney, is it possible for your statements to be admitted against your clients?

47. More on e’ee/agent admissions • “Admission of party opponent via agency/employment – speaker may be describing performance of his own job (whether well or badly) . . . .Speaker need not be engaged in performing his duties or furthering the interests of his employer or principal as he speaks. The basis of the exception is NOT that the words are acts by the employer or principal or that the speaker is pressed toward accuracy by the atmosphere of the workplace. Rather the basis is the same as the basis for admissions generally; what a party says may be admitted against him.” • Taken from; Mueller & Kirkpatrick Evidence Treatise, 3rd edition s.8.32

48. Co-conspirator admissions • What do you have to prove to have a co-conspirator statement admitted?

49. Existence of conspiracy • To prove existence of conspiracy, does the gov’t have to charge someone w/conspiracy to trigger the co-conspirator admissions rule • Does an acquittal mean you can’t get in co-conspirator’s statements? • Can you prove a conspiracy by using just the hearsay statement in issue; if not, why do we need indep evidence of the conspiracy? • Aside - how come a judge can consider the hearsay statement as part of the argument/support for admissibility – see R. 104

50. Harris case p. 593 • To understand this case, need to lay out the basic facts – what are they • What’s the contested evidence • What’s the argument for/against admissibility • (What are the requirements for “in furtherance of the conspiracy”) • What does the court decide about the “in furtherance” issue