parent nodes: Al-Marri v Pucciarelli | Amendment VI | availability-dependent hearsay use | availability-independent hearsay use | Constitution | enemy combatant | evidence | Hamdi v Rumsfield | non-hearsay use | opinion | substantive due process
hearsay
Note also that even if a statement is hearsay, it may be allowed under one of the four exceptions below:
non-hearsay use where an out-of-court statement not used to prove the truth of the matter asserted
hearsay uses:
Rule 807 catch-all exception (below)
Note also that the use of hearsay may be limited by Constitutional issues under Amendment VI after [Crawford v Washington].
General rule
Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.
Rule 801
Definition of hearsay
(a) Statement.
A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant.
A "declarant" is a person who makes a statement.
(c) Hearsay.
"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Rule 801(a)–(c).
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
Rule 805
Generally, whether something is hearsay depends on whether its relevance is fact that it occurred or the content of its message. For example, an action must be intended to communicate something in order to be considered hearsay. Likewise, silence is not hearsay if the actors who did not say anything did not mean to communicate anything by their silence. [Cain v George] (failure of other hotel guests to complain about space heater, which may have killed plaintiff's relative, not hearsay). And lying is not considered hearsay, because it doesn't assert anything; it has a performative quality.
Exceptions to the hearsay definition
Prior statement by witness
A statement is not hearsay if--
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person;
Rule 801(d)(1)
The purpose of 801(d)(1) is not so much to let in what would otherwise be excluded, but to allow what is already admissible to be used more broadly; note that prior statements are already acceptable for impeachment and rehabilitation purposes. 801(d)(1), in contrast, allows prior statements for their substantive worth.
A witness need not be subject to cross-examination regarding the underlying events about which his prior statement was made, but rather about the statement itself.
"Other proceeding" is taken to include grand jury proceedings and immigration proceedings as a matter of course. [State v Smith]. In other cases, the "purposes of the rule and the facts of the case" must be taken into account in deciding whether an "other proceeding" qualifies under Rule 801(d)(1)(A). [State v Smith] (allowing in statement made in police station that produced affidavit). Note that 801(d)(1)(A) specifically does not require that the prior statement was subject to cross-examination at the time.
Prior inconsistent statements
The scope of "inconsisten(cy)" under 801(d)(1)(A) is unclear; it may be that the prior statement actually contradicts the witness' current statement, or that the witness' current testimony is more broadly incompatible with his prior statements. Cf. problem 4-A (whether a current claim by a witness that he has "amnesia" is inconsistent with prior statements that did implicate a criminal defendant directly). Note that the purposes of attacking inconsistency is relevant to the definition of "inconsisten(cy)," so that a witness who changes his testimony by claiming memory loss poses the same risk as a witness who contradicts his previous statements.
Prior consistent statements
A prior consistent statement is only admissible under 801(d)(1)(B) is admissible only if the prior statement occurred before the motive to fabricate arose. [Tome v US]. The doctrine stems from common-law rules for the rehabilitation of witnesses. [Tome v US]. The time requirement may best serve the purposes of rehabilitating a witness; otherwise, the substantive purpose of the rule doesn't make much sense. But see [Tome v US] (Breyer dissenting) (arguing that the timing of the evidence goes to relevance, not to hearsay, so that the time restriction is not germane to whether the evidence is hearsay).
Prior statements of identification
The purpose of 801(d)(1)(C) is to allow prior identifications because in-court identifications are more suspect. Note that there are procedural protections in many cases for what prior identifications are admissible, for example if the identification is made at a police lineup.
Admissions by party opponent
(2)Admission by party-opponent. The statement is offered against a party and is
(A) the party's own statement, in either an individual or a representative capacity or
(B) a statement of which the party has manifested an adoption or belief in its truth, or
(C) a statement by a person authorized by the party to make a statement concerning the subject, or
(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or
(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
Rule 801(d)(2)
Note that 801(d)(2) does not allow a party to bring in his own admission if it helps his case; rather, the evidence is only admissible against that party.
Rule 801(d)(2) covers anything a party says or does. Because persons are more likely to "cross-examine themselves" in making statements, such statements are more likely to be reliable than ordinary hearsay. Conclusory statements, as well as statements that lack personal knowledge, are still admissible despite Rule 602. Guilty pleas are also allowed under Rule 801(d)(2), partially justified by an argument from collateral estoppel.There is, however, an exception given the definition of hearsay by Rule 801(c): if the party making an admission lacks the intention to assert the statement that he makes, for example if the party is asleep, drugged, etc., Rule 801(d)(2) does not apply (nor does hearsay at all).
(Compare generally FRCP 8(f), which precludes a party from contesting a fact it does not controvert in its pleading, and treats any fact that the plaintiff's complaint claims and the answer does not address is treated as admitted by the defendant.)
Multiple parties; agent and master
There is a special problem if one party makes a statement that implicates both himself and a second party, outside of the conspiracy context. There may be an Amendment VI violation if a party implicates himself, and such violation likely could not be resolved with a limiting instruction. [Bruton v US].
In comparison, Rule 801(d)(2)(D) allows in statements of an agent or employee for which the person making the statement would be liable on a tort theory of [respondeat superior]. Note, however, that [respondeat superior] need not be the issue. At the same time, if the agent is no longer employed by the master when he makes the statement, Rule 801(d)(2)(D) does not apply.
But see Problem 4-D (agent runs over plaintiff, agent then leaves master's employment, plaintiff sues both master and former agent; because no Amendment VI violation in civil context, admissibility of evidence against agent's admission of fault is admissible, while the evidence of admissibility against master depends on scope of agent's employment relationship with master; most likely evidence not admissible against master given that agent no longer works for him; at the same time, if the evidence against the agent is admissible, and the agent is negligent, [respondeat superior] controls and the master is negligent as well; some limiting instruction may then be appropriate).
Co-conspirator exception under Rule 802(d)(2)(E)
A statement is not hearsay if--
. . .
(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
Rule 801(d)(2)(E)
Note that the 801(d)(2)(E) coconspirator exception may be invoked even if no conspiracy is charged, since a conspiracy charge would require proof both of an unlawful agreement and an overt act.Note, however, that subsection (E) does not cover statements made either before or after the conspiracy.
While coconspirator evidence is often "bootstrapping"—it offers to prove the fact that a conspiracy exists, thus validating its own authenticity—it may be considered on its own, and may be admitted by a preponderance of the evidence at a Rule 104 preliminary hearing. [Bourjaily v US]. This rule is justified by Rule 104(1), which allows judges to consider all evidence not privileged in considering admissibility of evidence. However, it is unclear that Rule 104(a) was intended to depart from the common law, which required independent evidence of a conspiracy.
[Bourjaily v US] (coconspirator evidence under 801(d)(2)(E) need not require independent confirmatory evidence to be admissible under Rule 104 preliminary hearing)
Catch-all exception: Rule 807
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
Rule 807
The catch-all exception might allow in statements that almost qualify under some other exception and share the same justification (and also have some extra "indicia of trustworthiness"). There are three doctrinal requirements: (1) the statement is evidence of a "material fact," (2) the evidence is the most probative available regarding a particular point, and (3) the evidence serves the "interests of justice."
Note generally that the use of 807 in criminal trials may be invalid under [Crawford v Washington] and its new understanding of Amendment VI's Confrontation Clause.