Hearsay: Statements that are Nonhearsay under FRE

Question 1

In general, what are the two categories of statements that are non-hearsay under the federal rules?

Answer 1

1. Certain prior statements by witnesses

2. Statements by or Attributable to Opposing Party

Question 2

What is the rule re: Non-hearsay and certain prior statements by witnesses?

• prior inconsistent statements
• prior consistent statements
• prior ID’s

What are the CA distinctions?

Answer 2

Under FRE, the following are NOT hearsay, if made by TESTIFYING WITNESS, who is SUBJECT TO CROSS-EXAMINATION:

1. prior statement is:
   (i) INCONSISTENT w declarant’s in-court testimony; and
   (ii) was given UNDER OATH at prior proceeding or deposition

CA Distinction –>
-Under CEC, prior inconsistent statement is an exception to the hearsay rule.
- It is admissible for impeachment AND as substantive evidence, even if not made under oath or at a prior proceeding/deposition
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2. prior statement is:
(i) CONSISTENT w declarant’s in- court testimony; AND
(ii) OFFERED TO REBUT a charge that witness was LYING or EXAGGERATING because of some MOTIVE, AND statement was made prior to alleged motive; or
(iii) offered to REHABILITATE a witness whose credibility has been impeached on some OTHER GROUND (other than character for truthfulness), such as inconsistency or sensory deficiency); OR

CA distinction –> prior consistent statement is an exception to hearsay rule IF:

1. offered to rebut attack on witness’s credibility based on IMPROPER MOTIVE or PRIOR INCONSISTENT STATEMENT; AND
2. made BEFORE improper motive arose or prior inconsistent statement was made

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3. prior statement is one of IDENTIFICATION of a person as someone the witness perceived earlier, even if witness cannot currently remember the ID

CA distinction –>

1. witness MUST HAVE MADE ID while memory of event was fresh; AND
2. witness must CONFIRM in court that:
   (i) she made prior ID; AND
   (ii) that it truly reflected her opinion at the time

Question 3

What is the rule re: Non-hearsay and admissions by party-opponent?

Federal?

Answer 3

FEDERAL –> Any statement made by party opponent and used against them is NOT hearsay.
- it is admissible non-hearsay

NOTE –> statement NEED NOT have been against declarant’s interest when made

NOTE –> statement MAY be the form of an opinion

NOTE –> personal knowledge is not required, statement MAY be predicated on hearsay

CA –> same, but:
- it’s an exception to hearsay rule and called “party admission”

Question 4

With regards to admission by a party-opponent, what is the rule re: “adoptive admissions”?

CA?

Answer 4

FEDERAL –> A party may make an admission by EXPRESSLY or IMPLIEDLY adopting or acquiesing in the statement of another
- it is admissible non-hearsay

CA –> same.
-This is an exception from hearsay rule

Question 5

With regards to admission by a party opponent, when may silence count as an implied admission?

Answer 5

1. the party HEARD and UNDERSTOOD the statement;
2. the person was mentally and physically CAPABLE OF DENYING the statement;
3. A REASONABLE PERSON would have denied the statement

NOTE –> silence in face of police accusation in criminal case is almost NEVER considered an admission

Question 6

With regards to admission by a party opponent, are the statements of a party admissible against her co-parties merely bc they are joined as parties?

Answer 6

NO

Question 7

With regards to admission by a party opponent, are the statements of an authorized spokesperson admissible against a party as an admission?

Answer 7

YES

Under FRE –> admissible non-hearsay
In CA –> exception to hearsay rule

Question 8

With regards to opposing party admissions, what is the rule with regards to statements of an agent against the principle?

FRE?

CA distinction?

Answer 8

FRE –> the following are ADMISSIBLE non-hearsay, admissible againts Principle

1. Statements by: an AGENT or EMPLOYEE
2. concerning any matter WITHIN THE SCOPE of her AGENCY or EMPLOYMENT
3. made WHILE AGENCY RELATIONSHIP EXISTS

CA –>

1. has no related provision
2. HOWEVER –> in respondeat superior civil cases:
   - statement of EE is admissible against ER IF EE’s negligent conduct is basis for ER’s liability

Question 9

With regards to opposing party admissions, what is the rule with regards to partnerships?

Answer 9

After showing a PARTNERSHIP exists:

1. An admission of ONE partner
2. relating to matters WITHIN the SCOPE of PARTNERSHIP BUSINESS
3. is binding against CO-Partners

Question 10

With regards to opposing party admissions, what is the rule with regards to co-conspirators?

FRE ?

CA?

Answer 10

FRE —> the following is ADMISSIBLE non-hearsay against co-conspirators:

1. a statement by 1 conspirator
2. made IN FURTHERANCE of conspiracy
3. at a time when conspirator was participating in the conspiracy

NOTE –> court must use statement itself, together w other evidence, to determine if it is admissible

CA –> Same, but it’s an exception to the hearsay rule

Question 11

What is the rule re: preliminary determinations by the court when an opponent admission is sought to be entered via vicarious admission?

Answer 11

Before admitting a hearsay statement as a vicarious admission, the court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered.

In doing so, court MUST consider the contents of the statement.

HOWEVER –> the contents of the statement alone are not enough to establish the required relationship