Hearsay Exceptions: Class 14 Flashcards
801(d)(2): Statements That Are Not Hearsay. A statements that meet the following conditions are not hearsay: (2) An opposing Party’s Statement. The statement offered ____ ____ ____ ____ and:
(A) was ____ by the party in an ____ or ____ capacity;
(B) is one the party ____ that it ____ or believed to be true;
(C) was ____ by a person whom the party ____ to make a statement on the ____;
(D) was ____ by the party’s ____ or ____ on a matter within the ____ of the relationship and while it existed; or
(E) was ____ by the party’s ____ during and ____ ____ of the ____.
The statement must be ____ but does not ____ ____ establish the declarant’s ____ under (C); the existence or ____ of the ____ under (D); or the existence of the ____ or participation in it under (E).
801(d)(2): Statements That Are Not Hearsay. A statements that meet the following conditions are not hearsay: (2) An opposing Party’s Statement. The statement offered [against an opposing party] and:
(A) was [made] by the party in an [individual] or [representative] capacity;
(B) is one the party [manifested] that it [adopted] or believed to be true;
(C) was [made] by a person whom the party [authorized] to make a statement on the [subject];
(D) was [made] by the party’s [agent] or employee] on a matter within the [scope] of the relationship and while it existed; or
(E) was [made] by the party’s [co-conspirator] during and [in furtherance] of the [conspiracy].
The statement must be [considered] but does not [by itself] establish the declarant’s [authority] under (C); the existence or [scope] of the [relationship] under (D); or the existence of the [conspiracy] or participation in it under (E).
R. 801(d)(2): Two Limits on Opposing Party:
- Declarant must be a ____
- Statement must be offered ____ the party/declarant
R. 801(d)(2): Two Limits on Opposing Party:
- Declarant must be a [party].
- NOT a police officer or a victim in criminal prosecution. - Statement must be offered [against] the party/declarant.
Which of These Qualify as an Opposing Party Statement?
A. The prosecutor offers the defendant’s confession.
B. A civil defendant offers deposition testimony of the
plaintiff.
C. A civil plaintiff offers a diary entry written by the
defendant.
D. The prosecutor calls the defendant’s girlfriend to
testify about what the defendant told her about the crime.
E. A civil plaintiff offers e-mails sent by the CEO of the
defendant corporation.
F. A civil defendant plays a video of the plaintiff making
statements to a news reporter after the incident.
G. The prosecutor offers letters written by the defendant
to his family members while he was in jail.
A. The prosecutor offers the defendant’s confession.
- Opposing party statement.
B. A civil defendant offers deposition testimony of the
plaintiff.
- Opposing party statement.
C. A civil plaintiff offers a diary entry written by the
defendant.
- Opposing party statement.
D. The prosecutor calls the defendant’s girlfriend to
testify about what the defendant told her about the crime.
- Opposing party statement.
E. A civil plaintiff offers e-mails sent by the CEO of the
defendant corporation.
- Opposing party statement.
F. A civil defendant plays a video of the plaintiff making
statements to a news reporter after the incident.
- Opposing party statement.
G. The prosecutor offers letters written by the defendant
- Opposing party statement.
Why shouldn’t the client discuss the case with anyone unless the conversation is privileged?
Because the person with whom they discussed the case might be called to testify against them under 801(d)(2).
According to the ____ case, a limiting instruction is not an acceptable remedy for a statement admitted under 801(d)(2) because the ____ Amendment right to confront the accuser will be violated and jurors won’t be able to consider the evidence only against one party implicated by the statement.
According to the [Bruton] case, a limiting instruction is not an acceptable remedy for a statement admitted under 801(d)(2) because the [6th] Amendment right to confront the accuser will be violated and jurors won’t be able to consider the evidence only against one party implicated by the statement.
True or False:
When you have two people on the same side of the “v,” a statement against one party that implicates two parties will likely not be admitted because it implicates the 6th Amendment.
True. This is “the Bruton problem:” a person’s statement introduced by an opposing party can’t be admitted if it also goes against another party (on the same side of the “v,” i.e. a co-defendant).
Bruton v. United States, 391 U.S. 123 (1968): In a joint trial of co-____, when the prosecution introduces an ____ or confession made by ____ defendant that implicates another ____, and the declarant opts to not ____ at trial, the trial court must ____ the ____ or order a ____ of ____ to the ____ defendant. When the statement is ____, it is not sufficient merely to insert a ____ or other substitution for the ____ of the defendant; the redaction should not ____ the defendant’s ____ in any manner.
Bruton v. United States, 391 U.S. 123 (1968): In a joint trial of co-[defendants], when the prosecution introduces an [admission] or confession made by [one] defendant that implicates another [defendant], and the declarant opts to not [testify] at trial, the trial court must [sever] the [trials] or order a [deletion] of [references] to the [other] defendant. When the statement is [redacted], it is not sufficient merely to insert a [blank] or other substitution for the [name] of the defendant; the redaction should not [indicate] the defendant’s [involvement] in any manner.
801(d)(2)(E) is like the Pinkerton of the Fed R. Evid.
(E) “was made by the party’s ____ during and ____ ____ ____ the conspiracy.”
was made by the party’s [coconspirator] during and [in furtherance of] the conspiracy.
Compare Richardson v. Marsh, 481 U.S. 200 (1987): after ____, the co-defendant’s ____ contained no indication of defendant’s ____) with Gray v. Maryland, 523 U.S. 185 (1999) (redacted statement that “me, deleted, deleted, and a few other guys killed the victim” ____ ____ to the defendant).
Compare Richardson v. Marsh, 481 U.S. 200 (1987): after [redaction], the co-defendant’s [confession] contained no indication of defendant’s [involvement]) with Gray v. Maryland, 523 U.S. 185 (1999) (redacted statement that “me, deleted, deleted, and a few other guys killed the victim” [clearly referred] to the defendant).
Severance or redaction is not ____ if the declarant ____ at trial because the defendant is given the opportunity to ____-____ the co-defendant. Nelson v. O’Neil, 402 U.S. 622 (1971).
The rule also ____ ____ ____ if the confession is offered for a ____ ____ other than to prove guilt. Tennessee v. Street, 471 U.S. 409 (1985).
Severance or redaction is not [required] if the declarant [testifies] at trial because the defendant is given the opportunity to [cross]-[examine] the co-defendant. Nelson v. O’Neil, 402 U.S. 622 (1971).
The rule also [does not apply] if the confession is offered for a [limited purpose] other than to prove guilt. Tennessee v. Street, 471 U.S. 409 (1985).
“Conspiracy” (for the purposes of 801(d)(2)):
Only have to prove that the declarant and the ____ ____ were members of a ____ ____, i.e. they must have ____ to use their ____ ____ in some way to reach a ____ (typically, though not necessarily, illegal) ____.
Broader than the definition of ____ conspiracy (which requires a ____ of the ____ and often an ____ act).
Conspiracy usually ends with ____.
“Conspiracy” (for the purposes of 801(d)(2)):
Only have to prove that the declarant and the [opposing party] were members of a [common venture] i.e. they must have [agreed] to use their [joint efforts] in some way to reach a [common] (typically, though not necessarily, illegal) [goal].
Broader than the definition of [criminal] conspiracy (which requires a [meeting] of the [minds] and often an [overt] act).
Conspiracy usually ends with [arrest].
True or False:
For something to be done “in furtherance” of the conspiracy, it must actually “further” - not just attempt to further - the objectives.
False. The statement need not actually further the objectives.
The question of whether a statement was made in furtherance of the conspiracy is a preliminary question decided by the judge under rule 104. Rules of Evidence don’t apply.
Rule 807:
(a) In General. Under the following ____, a hearsay statement is not ____ by the rule against ____, even if the ____ is not ____ ____ by a hearsay exception under Rule ____ or ____:
(1) the statement has equivalent ____ ____ of trustworthiness;
(2) it is offered as evidence of a ____ ____;
(3) it is ____ ____ on the point for which it is ____ than any other ____ that the proponent can obtain through ____ ____; and
(4) admitting it will best serve the ____ of these ____ and the ____ of ____.
Rule 807:
(a) In General. Under the following [circumstances], a hearsay statement is not [excluded] by the rule against [hearsay], even if the [statement] is not [specifically covered] by a hearsay exception under Rule [803] or [804]:
(1) the statement has equivalent [circumstantial guarantees] of trustworthiness;
(2) it is offered as evidence of a [material fact];
(3) it is [more probative] on the point for which it is [offered] than any other [evidence] that the proponent can obtain through [reasonable efforts]\; and
(4) admitting it will best serve the [purposes] of these [rules] and the [interests] of [justice].
Rule 807(b) Notice. The statement is admissible only if, ____ the ____ or ____, the proponent ____ an ____ party ____ ____ of the ____ to offer the statement and its ____, including the declarant’s ____ and ____, so that the ____ has a fair ____ to meet it.
Rule 807(b) Notice. The statement is admissible only if, [before] the [trial] or [hearing], the proponent [gives] an adverse] party [reasonable notice] of the [intent] to offer the statement and its [particulars], including the declarant’s [name] and [address], so that the party] has a fair [opportunity] to meet it.
