CHAP. 4, part A: DEFINITIONAL EXCEPTIONS TO THE MEANING OF HEARSAY

1. CHAP. 4, part A:DEFINITIONAL EXCEPTIONS TO THE MEANING OF HEARSAY Prof. JANICKE 2019

2. IF OUT-OF-COURT DECLARANT IS A WITNESS AT TRIAL • A FEW DEFINITIONAL EXCEPTIONS TO “HEARSAY” APPLY [R 801(d)(1)] Chap. 4, part A

3. (1) PRIOR INCONSISTENT STATEMENT • ALWAYS ALLOWED TO IMPEACH • NOW PROPONENT IS TRYING TO GET IT IN TO ESTABLISH TRUTH AS WELL • HAS TO HAVE BEEN UNDER OATH • HAS TO HAVE BEEN IN A FORMAL PROCEEDING [HENCE A LIMITED RULE] Chap. 4, part A

4. (2) PRIOR CONSISTENT STATEMENT • [DELETED FROM THIS COURSE] Chap. 4, part A

5. (3) STATEMENT OF IDENTIFICATION OF A PERSON • [DELETED FROM THIS COURSE] Chap. 4, part A

6. A CLOSER LOOK AT “ADMISSIONS” [R 801(d)(2)] • RECALL: WE DON’T ANALYZE WHICH WAY THE STATEMENT CUTS • IF IT’S A PARTY’S STATEMENT, AND OFFERED BY THE OPPOSING LAWYER, IT IS AN “ADMISSION” Chap. 4, part A

7. WHO THE WITNESS ON THE STAND IS DOESN’T MATTER • EXAMPLE: OUT-OF-COURT STATEMENT BY CIVIL-CASE DEFENDANT • PLAINTIFF’S LAWYER CAN INTRODUCE IT BY: • ASKING PLAINTIFF ABOUT IT • ASKING DEFENDANT ABOUT IT • ASKING A BYSTANDER ABOUT IT Chap. 4, part A

8. EXAMPLE:WHAT MR. JONES SAID Chap. 4, part A

9. TRIAL IN JONES v. SMITH HIGH UP JONES BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 4, part A

10. TRIAL IN JONES v. SMITH HIGH UP BYSTANDER BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 4, part A

11. TRIAL IN JONES v. SMITH HIGH UP SMITH BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 4, part A

12. TRIAL IN JONES v. SMITH HIGH UP SMITH BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 4, part A

13. TRIAL IN JONES v. SMITH HIGH UP BYSTANDER BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 4, part A

14. TRIAL IN JONES v. SMITH HIGH UP JONES BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL FOR SMITH COUNSEL FOR JONES RAILING SPECTATORS ( FOR SMITH) SPECTATORS (FOR JONES) Chap. 4, part A

15. STATEMENT ADOPTED BY A PARTY [R 801(d)(2)(B)] • OFTEN VAGUE IN ITS OPERATION • COULD BE BY EXPLICITLY SAYING “THAT’S OUR VIEW AS WELL” • COULD BE BY SILENCE WHEN AN OUTSIDER SAYS THAT’S THE FACT • COULD BE BY MERELY FILING AWAY THE STATEMENT ?? Chap. 4, part A

16. VICARIOUS ADMISSIONS(INCLUDING ADMISSIONS OF ORGANIZATIONS) • KEEP IN MIND WHO THE PARTIES ARE: • CRIMINAL CASE: STATE (OR U.S.); AND D • CIVIL CASE: PLAINTIFF AND DEFENDANT • ONLY A PARTY’S OUT-OF-COURT STATEMENT QUALIFIES UNDER THIS DEFINITIONAL EXCEPTION Chap. 4, part A

17. THE PARTY NEED NOT HAVE SAID IT HIMSELF • COULD BE BY AN EMPLOYEE • COULD BE BY A CURRENT ACCOMPLICE • ETC. Chap. 4, part A

18. OUT-OF-COURT STATEMENT BY AGENT OR SERVANT [R801(d)(2)(D)] • AGENT: ONE EMPOWERED TO BIND ANOTHER (THE PRINCIPAL) IN CONTRACT • SERVANT: PERSON SUBJECT TO COMMANDS OF ANOTHER; AN EMPLOYEE Chap. 4, part A

19. SERVANTS ARE THE MAIN SOURCE OF COMPANY’S ADMISSIONS • ESPECIALLY INTERNAL DOCUMENTS • EMAIL • MEMOS • LETTERS • POSTINGS • ALSO PHONE CONVERSATIONS • SALES PITCHES • ETC. Chap. 4, part A

20. THE PARTY NEED NOT HAVE AUTHORIZED THE DECLARANT TO SPEAK FOR HER! • STATEMENTS MADE BY EMPLOYEES ARE ADMISSIONS OF THE EMPLOYER IF THEY ARE JOB-RELATED • THEY DO NOT HAVE TO BE AUTHORIZED, AND WILL QUALIFY EVEN IF FORBIDDEN Chap. 4, part A

21. IN A MULTIPLE-DEFENDANT OR MULTIPLE PLAINTIFF CASE: • THE STATEMENT OF AN EMPLOYEE IS AN ADMISSION OF THE EMPLOYEE [801(d)(2)(A)] • IT IS ALSO AN ADMISSION OF THAT PERSON’S EMPLOYER [801(d)(2)(D)] • SAME FOR CO-CONSPIRATORS, AGENTS, ETC. Chap. 4, part A

22. BUT, IS HEARSAY AS TO OTHER DEFENDANTS / PLAINTIFFS IN THE CASE • IT WAS NOT THEIR SERVANT/AGENT SPEAKING • HOW TO DEAL WITH THIS? Chap. 4, part A

23. OUT-OF-COURT STATEMENT CAN BE BY AN AUTHORIZED PERSON [R801(d)(2)(C)] • INCLUDES, FOR EXAMPLE: • PARTY’S LAWYER -- E.G., IN A PLEADING OR MOTION PAPER • PRESS SPOKESPERSON Chap. 4, part A

24. OUT-OF-COURT STATEMENT OF A PARTY’S CO-CONSPIRATOR [R801(d)(2)(D)] • TWO MAJOR CONSTRAINTS -- • STMT. WAS MADE DURING THE CONSPIRACY, i.e., NOT AFTER ARREST • STMT. WAS MADE IN FURTHERANCE OF THE CONSPIRACY Chap. 4, part A

25. PROBLEMS / CASES • 4C • Hoosier • Doyle • 4G • Mahlandt Chap. 4, part A