Class 22: Hearsay Exemption for Statements by Opposing Party, Opposing Party Statements in Multiple Party Cases and Statements of Co-Conspirators - Mar. 28 Flashcards
Is a statement made by an opposing party excluded from the rule against hearsay only if a prior out-of-court statement is being offered against the party who made the statement? (Q)
Yes. A statement made by an opposing party is only excluded from the rule against hearsay if a prior out-of-court statement is being offered against the party who made the statement, not on behalf of a party who made the statement. A prosecutor could admit prior out-of-court inculpatory statements made by the defendant, but the defendant could not admit his own prior out-of-court exculpatory statements.
Is a prior out-of-court statement made by an opposing party admissible for the truth of the matter asserted in the prior statement? (Q)
Yes. Any prior out-of-court statement made by an opposing party is excluded from the rule against hearsay and is admissible when offered against the party who made the statement. The statement can have been made in an individual or representative capacity and need not carry any additional guarantees of trustworthiness. Thus, the statement need not be against interest, made under oath, or offered for a particular enumerated purpose.
What FRE governs the hearsay exception for opposing party statements?
FRE 801(d)(2)
To which statements do opposing party statements apply? (Russo)
Applies to every statement made by opposing party.
(3/28)
Does the party who made the opposing party statement need personal knowledge? (Russo)
No. The party who made the statement doesn’t need personal knowledge.
(3/28)
Can a party adopt a statement by another? (Russo)
Yes.
(FRE 801(d)(2)(B)) (3/28)
Who can make statements attributable to corporations, businesses, and individuals? (Russo)
Agents, employees, spokespeople can make statements attributable to corporations, businesses, and individuals.
(FRE 801(d)(2)(C)(D) (3/28)
Are co-conspirators statements attributable to their co-conspirators? (Russo)
Yes. Co-conspirators statements attributable to all, even if no conspiracy is charged and co-conspirators are not on trial.
(FRE 801(d)(2)(E))
What are the elements of the hearsay exception to opposing party statements? (Russo)
(1) You said something (or wrote it, agreed with it, adopted it, authorized it, an agent or employee said it in the course and scope of their agency or employment, or a co-conspirator said it in furtherance of the conspiracy while it was ongoing)
(2) The opposing party offers it in evidence
(3) It is admissible against you for its truth
(4) Neener, Neener
(3/28)
Can silence sometimes be considered adoption of an opposing party statement? (Russo)
Yes. Silence can sometimes be considered an adoption of this statement (adoption by silence).
“Whether the circumstances show that the lack of denial is so unnatural as to support an inference that the undenied statement is true” (Weston-Smith v. Cooley, 282 F.3d 60 (2002))
(3/28)
In a multiple party case, can opposing party statements be brought in? (Russo)
Yes. Admissible against the person who made the statement. In a civil case, you can bring it in, but that gets a specific instruction.
(3/28)
Can the hearsay exception for opposing party statements be used against a person on the same side of the litigation? (Russo)
No.
(3/28)
What ate the elements of a co-conspirator’s statement to be used as an opposing party statement under the hearsay exception? (Russo)
Makes any statement made by any co-conspirator admissible for its truth against all members if the conspiracy as long as:
(1) Statement was made while the conspiracy was ongoing
(2) The statement was made in furtherance of the conspiracy
(FRE 801(d)(2)(E)) (3/28)
Can employees saying things in the scope of their employment be attributable to the company itself? (Russo)
Yes.
(FRE 801(d)(2)(D)) (3/28)
