#9134 - Article 8 Hearsay - Evidence

ARTICLE VIII: HEARSAY:

• FRE 801: Definitions

  • 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

  • FRE 801(b): Declarant: Person who makes a statement

    • Animals not hearsay declarants

    • Machines not hearsay declarants

  • FRE 801(c): Hearsay is:

    • A statement

    • Other than one made by the declarant while testifying at the trial/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

        • 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

  • 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 statement AND

      • The statement is:

        • 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 OR

          • Smith: 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)

              • She wrote statement in her own words

              • She signed each page

              • Detective signed as witness on three pages

              • Notary read her statement and oath

              • She reread statement and oath

              • 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 of proof

          • Forgetfulness/Evasive Answers/Silence:

            • If court believes you are feigning forgetfulness/being evasive/refusing to answer, prior inconsistent statement will come in 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)

        • 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 OR

          • Tome: 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

              • 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

              • As here, cannot be offered merely to bolster truth of declarant’s story

        • 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’s physical characteristics

            • Admissible as prior identification

              • No express temporal limit, but identification should be done close in time to perception: res gestae

          • 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

        • 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

              • Must sever trials OR

              • Must redact or paraphrase the statement

      • FRE 801(d)(2)(B) Statement of which party has manifested an adoption or belief in its truth (Adoptive admission) OR

        • 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 to deny such a statement if it were untrue

          • Notes: Minimum Requirements of Tacit Admission:

            • Party heard the statement

            • Matter asserted was within his knowledge AND

            • Occasion and nature of statement were such that he would likely have replied if he did not mean to accept what was said

              • But excluded if:

                • Party did not understand the statement or its significance

                • Some physical or psychological factor explains the lack of reply

                • Speaker was someone whom the party would likely ignore OR

                • Silence was post-Miranda silence

        • No impeachment through post-arrest, post-Miranda 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

              • Meaning of silence ambiguous because may just be exercise of right

              • Prejudicial because of jury’s inability to separate substantive and impeachment uses

        • 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

        • 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 selling baking 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

        • Mahlandt: Statements that “Sophie bit a child.”

          • Admissible against Poos as adoptive admission (FRE 801(d)(2)(B))

          • Admissible against Wild Canid Survival and Research Center because fits three requirements of admission by agent in scope of employment (FRE 801(d)(2)(D)

      • FRE 801(d)(2)(E) Statement by coconspirator of party during course and in furtherance of conspiracy

        • Bourjaily: Existence of conspiracy and D’s participation in it are preliminary questions of fact under FRE 104(a)

          • Determined by court by a preponderance of 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

        • 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’s participation (E)

      • *Victim is a party represented by the state for purposes of this doctrine, so victim’s admissions come in against her

• Common Law Hearsay Exclusions (NOT HEARSAY):

  • Imperatives: No truth of the matter asserted

    • But cannot use the statement “Look at the red barn” to prove there was a red barn.

  • Interrogatories: No truth of the matter asserted

  • Impeachment by prior inconsistent statement: Not offered to prove the truth of the matter asserted

  • Verbal Act: Words of independent legal significance, offered to prove the act

    • Words of offer and acceptance (contract)

    • Words of passing of title

      • E.g. pointing to corn and saying “This corn belongs to you.”

    • Words that are themselves illegal acts

      • Offers of prostitution

      • Threats to do bodily harm

  • Effect on the Hearer: Hearer’s reaction must be at issue

    • E.g. Reasonableness of going to inspect gas leak with man who claimed he was from the gas company

    • E.g. Reliance on statement that man was from gas company

      • N.B. “I’m from the gas company” does not establish that declarant actually WAS agent of gas company.

  • Verbal Object/Chattel: Words on object that are an integral part of the object itself; not separate statements

    • Generally applies to words attached to object in the course of a business operation

      • E.g. Matchbook with “Eagle’s Rest Bar and Grill” printed on it, offered as proof that owner has been to that bar and grill

      • E.g. United States v. Duffy: Shirt with laundry mark “DUF,” offered to prove that he stole the car it was found in

  • Circumstantial Evidence of State of Mind: Circumstantial (i.e. not direct) evidence, offered to support an inference regarding a person’s state of mind—when that is at issue

    • E.g. Statement in Anna’s will “I give Ira $1,” offered to support the inference that Ira had no reasonable expectation of good companionship or support from Anna. At issue because of his tort claim to recover those damages.

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