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CHAP. 4, part 1 of 3: DEFINITIONAL EXCEPTIONS TO THE MEANING OF HEARSAY

CHAP. 4, part 1 of 3: DEFINITIONAL EXCEPTIONS TO THE MEANING OF HEARSAY. P. JANICKE 2012. IF OUT-OF-COURT DECLARANT IS WITNESS AT TRIAL. A FEW DEFINITIONAL EXCEPTIONS TO “HEARSAY” APPLY [R 801(d)(1)] PRIOR INCONSISTENT STATEMENT. (1) PRIOR INCONSISTENT STATEMENT. ALWAYS ALLOWED TO IMPEACH

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CHAP. 4, part 1 of 3: DEFINITIONAL EXCEPTIONS TO THE MEANING OF HEARSAY

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  1. CHAP. 4, part 1 of 3:DEFINITIONAL EXCEPTIONS TO THE MEANING OF HEARSAY P. JANICKE 2012

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

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

  4. RECALL: • BY OUT-OF-COURT WE MEAN OUTSIDE THE PRESENT HEARING [R801(c)] • TESTIMONY AT FIRST TRIAL IN SAME CASE IS “OUT-OF-COURT” • TESTIMONY IN ANOTHER CASE IS “OUT-OF-COURT” • DEPOSITIONS: • TEXAS STATE PRACTICE: TREATED AS PART OF TRIAL • FED. PRACTICE: REGARDED AS DIFFERENT HEARING Chap. 4, part 1

  5. TEXAS RULE ON PRIOR INCONSISTENT STMTS. • TEXAS RULE 801(e)(1)(A) SAYS YOU CAN’T USE A 3d PERSON’S PRIOR GRAND JURY TESTIMONY IN THIS WAY • CAN OF COURSE USE IT TO IMPEACH • IMPACT OF THE TEXAS RULE: CAN’T CONVICT BASED ON A 3d PERSON’S RECANTED GRAND JURY TESTIMONY Chap. 4, part 1

  6. (2) PRIOR CONSISTENT STATEMENTS • NOW BEING OFFERED FOR THEIR TRUTH • THE RULE, 801(d)(1)(B), MATCHES THE RULE FOR REHABILITATING A WITNESS’S CREDIBILITY: • MUST FIRST BE ATTACKED • CAN USE STMT. MADE PRIOR TO ONSET OF ALLEGED MOTIVE TO FALSIFY Chap. 4, part 1

  7. (3) STATEMENT OF IDENTIFICATION OF A PERSON • NEED NOT HAVE BEEN UNDER OATH OR IN A PROCEEDING • EXAMPLES: • TESTIMONY BY POLICEMAN THAT W PICKED D OUT OF A LINEUP • TESTIMONY BY A BYSTANDER THAT W SELECTED D’S PHOTO FROM A COLLECTION • TESTIMONY BY W THAT W PICKED D OUT OF LINEUP OR PHOTO SET Chap. 4, part 1

  8. NOT SO OBVIOUS EXAMPLE: • “THE MAN WAS DRIVING” • BORDERLINE CASES: • “SHE ID’D THE ONE WITH THE BROWN HAIR” • “I TOLD THEM HE HAD BROWN HAIR” [THERE COMES A POINT WHERE THE STMT. NO LONGER IDENTIFIES] Chap. 4, part 1

  9. RECALL: WIT. CAN ALWAYS SAY WHAT SHE SAW • HERE WE ARE TALKING ABOUT TESTIMONY THAT SHE SAID, OUT OF COURT, THAT SHE SAW . . . . Chap. 4, part 1

  10. 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 QUALIFIES Chap. 4, part 1

  11. WHO THE WITNESS ON THE STAND IS DOESN’T MATTER • EXAMPLE: OUT-OF-COURT STATEMENT BY CIVIL DEFENDANT • PLAINTIFF’S LAWYER CAN INTRODUCE IT BY: • ASKING PLAINTIFF ABOUT IT • ASKING DEFENDANT ABOUT IT • ASKING A BYSTANDER ABOUT IT Chap. 4, part 1

  12. STATEMENT ADOPTED BY A PARTY [R 801(d)(2)(B)] • OFTEN VAGUE IN ITS OPERATION • COULD BE BY EXPLICITLY SAYING “THAT’S OUR VIEW” • COULD BE BY SILENCE WHEN AN OUTSIDER SAYS THAT’S OUR VIEW • COULD BE BY MERELY FILING AWAY THE STATEMENT ?? Chap. 4, part 1

  13. 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 STATEMENTS QUALIFY UNDER THE DEFINITIONAL EXCEPTION Chap. 4, part 1

  14. THE PARTY NEED NOT HAVE SAID IT DIRECTLY • COULD BE BY AN EMPLOYEE • COULD BE BY A CURRENT ACCOMPLICE • ETC. Chap. 4, part 1

  15. OUT-OF-COURT STATEMENT BY AGENT OR SERVANT [R801(d)(2)(D)] • AGENT: ONE EMPOWERED TO BIND ANOTHER (THE PRINCIPAL) IN CONTRACT • SERVANT: AN EMPLOYEE • BY FAR THE MOST PROLIFIC SOURCE OF CORPORATE ADMISSIONS • ESP. INTERNAL DOCUMENTS Chap. 4, part 1

  16. AGENT AND SERVANT ADMISSIONS SHOULD BIND GOVERNMENTS AS WELL AS CORPORATIONS • BUT COURTS ARE RELUCTANT IN SOME GOVERNMENT CASES • THEY LIMIT “SERVANTS” TO LOCAL POLICE, ETC. Chap. 4, part 1

  17. 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 Chap. 4, part 1

  18. 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 THE EMPLOYER [801(d)(2)(D)] • SAME FOR CO-CONSPIRATORS, AGENTS, ETC. Chap. 4, part 1

  19. PROBLEMS/CASES • STATE v. SMITH • 4A • MOTTA • 4B • 4D • Hoosier (cont’d) Chap. 4, part 1

  20. Doyle • 4F • Mahlandt • 4H Chap. 4, part 1

  21. 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 1

  22. 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 1

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