1 / 13

NON HEARSAY

NON HEARSAY. FRE 801(d) Non Hearsay by definition Rule 801(d)(1) Prior Statement by Witness is not hearsay If declarant testifies and is subject to cross examination and the statement is: (A) inconsistent with the declarant’s testimony, and was given under oath at another proceeding; or

kera
Download Presentation

NON HEARSAY

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. NON HEARSAY FRE 801(d) Non Hearsay by definition Rule 801(d)(1) Prior Statement by Witness is not hearsay If declarant testifies and is subject to cross examination and the statement is: (A) inconsistent with the declarant’s testimony, and was given under oath at another proceeding; or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication, improper influence or motive; or (C) one of identification of a person made after perceiving the person.

  2. Cf. Evid. Code Hearsay Exceptions • 1220 statements of a party • 1221 adoptive admission • 1222 authorized admission • 1223 admission of a co-conspirator • 1235 inconsistent statement (in compliance with 770) • 1236 consistent statement (in compliance with 791) • 1238 prior identification

  3. IMPEACHMENT OF HEARSAY DECLARANT • FRE 806 • Evid. Code sec. 1202

  4. Rule 806: Attacking and Supporting Credibility of Declarant • When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

  5. Evid. Code 1202:Credibility of Hearsay Declarant • Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. For the purposes of this section, the deponent of a deposition taken in the action in which it is offered shall be deemed to be a hearsay declarant.

  6. IMPEACHMENT OF HEARSAY DECLARANT (cont) • Inconsistent statements • Prior or subsequent (fairness to opponent) • Admissible to impeach but not for truth • Exception: Evid. Code sec. 1294 • Proponent of hearsay loses opportunity to have declarant explain inconsistency • Cf FRE 613(a) & (b); 801(d)(1); Evid. Code sec 1235 • Prior convictions

  7. Prior Inconsistent Statements:FRE • FRE 613 -- can use to impeach, but not for truth unless statement fits w/i another exception; • FRE 801 (d)(1) – comes in for truth b/c non-hearsay • FRE 806 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant

  8. Prior Inconsistent Statements:Evid. Code • Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant • Sec. 1235 – comes in for truth if offered in compliance with sec. 770 (opportunity to explain or deny or subject to recall) • Sec. 1294 – inconsistent statement at prior hearing or trial in same case comes in for truth if declarant unavailable

  9. Hypo • Witness describes on-viewing murder to police. Witness testifies at preliminary hearing that the police told her what to say when in truth she saw nothing. She is impeached with her statement to the police. Now we are at trial.

  10. SCENARIO # 1 • Scenario #1: witness is unavailable, apply FRE • FRE 613 -- can use to impeach, but not for truth unless statement fits w/i another exception; • FRE 801 (d)(1) – comes in for truth b/c non-hearsay • FRE 806 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant

  11. SCENARIO # 2 • Scenario #2: witness is unavailable, apply Evid. Code • Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant • Sec. 1235 – comes in for truth if offered in compliance with sec. 770 (opportunity to explain or deny or subject to recall) • Sec. 1294 – inconsistent statement at prior hearing or trial in same case comes in for truth if declarant unavailable

  12. SCENARIO # 3 • Scenario #3: witness is available, apply FRE • FRE 613 -- can use to impeach, but not for truth unless statement fits w/i another exception; • FRE 801 (d)(1) – comes in for truth b/c non-hearsay • FRE 806 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant

  13. SCENARIO # 4 • Scenario #4: witness is available, apply Evid. Code • Sec. 1202 – comes in to impeach hearsay declarant; not for the truth of the statement but for credibility of declarant • Sec. 1235 – comes in for truth if offered in compliance with sec. 770 (opportunity to explain or deny or subject to recall) • Sec. 1294 – inconsistent statement at prior hearing or trial in same case comes in for truth if declarant unavailable

More Related