Evidence Notes File 4-A

LAW 6330 (4 credits)
Professor Pedro A. Malavet

4.0 Hearsay Exclusions and Exceptions

Introduction for your Review

  • Remember to review the material for Chapter 3. [Go there]
  • You might also want to test yourself by doing the hearsay quiz in your book. [Go there]
  • Though presumptively excludable (FRE 802), there are, as your authors note, 37 express exceptions allowing the use of hearsay within the rules, not to mention the six "non-truth use" categories that we discussed. This might beg the question, why have a hearsay rule at all? Well, we need something to put on the test.
  • Remember that we discuss three major categories of Not-Hearsay:
    • (1) Nonhearsay
      not within the definition
      [FRE 801(c)(2)]
    • (2) “Not Hearsay”
      exclusions from the definition by (Congressional) fiat;  hearsay, but not really
      [FRE 801(d)(1) & FRE 801(d)(2)] [FRE 802]
    • (3) “Exceptions”
      hearsay but admissible
      [FRE 802] [FRE 803] [FRE 804] [FRE 805, 806, 807]

Deconstructing Hearsay:

  • On our Initial Look at Hearsay, ask:
  • Preliminarily: FRE 104(a) or FRE 104(b)
    • Remember that whether or not the hearsay was heard by the witness is a 104(b) question; hence all the self-serving testimony that is subjected mostly to technical hearsay testing under the Rules.
  • (1) Is the offered evidence relevant? [FRE 401] [FRE 402]
  • (2) Is the offered evidence hearsay? [FRE 801, et seq.]
    • (a) Does the evidence fit within the definition of hearsay of FRE 801(a),(b)&(c)?
      • Remember the Non-Truth Uses
      • If "no", go to 403, if "yes" the evidence is presumptively inadmissible under FRE 802[a] unless FRE 802[b] leads to an exemption or exception.
    • (b) Even though it fits the 801(a),(b),(c) definition of hearsay, is it nevertheless within some exclusion that expressly defines it as "not-hearsay" or "nonhearsay" [FRE 801(d)]?
    • (c) Even though it fits the 801(a),(b),(c) definition of hearsay, AND despite it failing to be exempted by 801(d), is it nevertheless within some exception found in the rules, especially in FRE 803 and 804?
  • (3) Should the offered evidence be excluded, despite being relevant, and regardless of the answer to the hearsay question? [FRE 403]
  • The initial part of the chapter provides a very good description of what we will cover for the rest of the semester.

Casebook Excerpts

  • [CB] Much that is hearsay is admissible. A series of standard exceptions paves the way for statements offered to prove what they assert, although exclusion may still be required on other grounds, such as simple relevancy or "unfair prejudice." Many exceptions rest on notions of necessity and trustworthiness, although some are outgrowths of the adversary system and the mechanics of trial.
  • The Rules set out the exceptions in four main groups.
    • [CB] (1) The first group contains three exceptions, and these apply to certain prior statements by testifying witnesses. Rule 801(d)(1) defines these exceptions, and remember that by statutory magic the language makes these statements "not hearsay" even though they fit the basic hearsay definition set out in Rule 801(a) through (c). In substance, these are hearsay exceptions created by statutory magic.
    • [CB] (2) The second group contains five exceptions -really five variations on a single theme or idea- that together make up the "admissions doctrine." These five exceptions are set out in Rule 801(d)(2). The same statutory magic is at work here, for these too are defined as not hearsay" even though they fit the basic definition. Once again, the result is the creation of hearsay exceptions.
    • [CB] (3) The third, and by far the largest group, is comprised of the 24 [actually 23] 'unrestricted' exceptions listed in Rule 803. Statements that fit these exceptions may be offered to prove what they assert regardless whether the declarant testifies, and regardless whether or not he could be produced at trial to give testimony.
    • [CB] (4) The fourth and final group is comprised of five more exceptions set out in FRE 804(b), but these may be invoked only if the declarant is ''unavailable as a witness" under FRE 804(a).

4.01 Hearsay: Prior Inconsistent Statement.

(The cases and problem for this session have not changed in the Sixth Edition, but please pay special attention to the new introduction on Crawford.)

Review FRE 801(d)(1)(A)

Case: State v. Smith

  • [CB] [Prior Statement]
    • Assault victim, Rachael Conlin, wrote out a statement on a form supplied by a detective of the Pasco Police Department, which contained Miranda warnings, in which she named Nova Smith (defendant) as her assailant. She signed under oath with penalty of perjury before a notary. [Statement at Trial] At Smith's trial a month later, she named another man as her attacker. The trial court allowed her prior inconsistent statement to be used as substantive evidence ruling it was not hearsay under Rule of Evidence 801(d)(1)(i). The jury found Smith guilty of assault in the second degree.
    • [CB] At approximately 6:30 A.M. on July 10, 1980, Rachael Conlin was cruelly and severely assaulted in a room at the Double D Motel, Pasco, Washington, which she kept for work-related activities. She was struck in the face, beaten with a wire coat hanger, a belt, and a pipe, kicked several times and pulled back into the room by her hair on her attempt to escape. She received a cracked nose, bruises, black eyes, and required several stitches on her face. At 8 A.M. a police officer was called to the hospital and Conlin stated defendant had assaulted her, she was afraid, [188] and did not know what to do. She was advised that nothing could be done unless she was willing to testify in court. ***
  • [CB] *** [The Statement in Detail]
    • She thereupon wrote, in her own words, a statement describing the details of the assault and identified the defendant as her assailant. She signed each page and the detective signed as a witness on pages 2, 3, and 4 of the statement. The detective then took her before a notary and read her the affidavit portion and oath. She reread the affidavit and oath and signed the affidavit. The notary subscribed the jurat and seal to Conlin's statement.
    • [CB] That same day, Conlin, chased by defendant, ran into her manager's apartment screaming for help. Police were called when defendant, by force, took Conlin's car keys and departed.
  • Malavet:
    • Note that the brutal nature of the assault, combined with the subsequent attack by the same person, creates a strong inference that the witness has changed her version of the events due to fear, rather than because what she is now saying is the truth.
  • [CB] [Note that the witness admits to making the prior statement, and provides an explanation suggesting that the prior statement is false (see FRE 613(b)).]
    • At trial Ms. Conlin testified to the same facts regarding her assault as her original statement indicated, except for the startling deviation that her assailant was a Mr. Gomez, and that defendant had come to her aid. She freely admitted giving the sworn, voluntary statement to the detective and telling the officer at the hospital that defendant had assaulted her. She testified that she was upset with defendant over a fight the night before and blamed him for her having to stay in the motel room overnight with Gomez rather than in her apartment where defendant also lived. She further testified that she had lived with defendant both before and after the assault, and that she had left $150 for him at the jail for cigarettes, although she denied he was her pimp.
    • [CB] The prosecuting attorney was surprised at trial by Conlin's change in the identification of her assailant and introduced the written statement at issue for impeachment purposes. [FRE 607] [FRE 613] The State then moved to have it admitted as substantive evidence also, as it was apparently the only evidence that identified defendant as the perpetrator of the assault. [FRE 801(d)(1)(A)]
  • Malavet:
    • The statement meets all the requirements of FRE 801(d)(1)(A) except the "prior proceeding" which is the object of the Court's analysis.
  • [Bright Line Test? No. Reliability under a totality of the circumstances test]
    • [CB] We likewise decline to answer the issue broadly. We do not interpret the rule to always exclude1 or always admit2 such affidavits. The purposes of the rule and the facts of each case must be analyzed. In determining whether evidence should be admitted, reliability is the key.
    • [CB] *** the inconsistent statement is more likely to be true than the testimony at trial as it was made nearer in time to the matter to which it relates and is less likely to be influenced by factors such as fear or forgetfulness.
  • [Reliability of Conlin's Statement]
    • [CB] Here, there was no question that the statement was made since Ms. Conlin testified to that fact. Minimal guaranties of truthfulness were met since the statement was attested to before a notary, under oath and subject to penalty for perjury. Additionally, the witness wrote the statement in her own words. The jury, seeing Rachael Conlin on the stand, under oath, and hearing her explanation of the inconsistent statement while subject to cross examination, was in a position to determine which statement was true.
    • [CB] (1) filing of an information by the prosecutor in superior court (see Const. art. 1, §25, and RCW 10.37.026);
      (2) grand jury indictment (see RCW 10.[27]);
      (3) inquest proceedings (see RCW 36.24); and
      (4) filing of a criminal complaint before a magistrate (see RCW 10.16).
  • Malavet
    • Note that inquests and hearings before a magistrate are adversary proceedings in which any testimony is subject to oath/perjury, and cross-examination. Moreover, the person in charge will be acting as a neutral judicial officer (a neutral and detached magistrate in constitutional criminal procedure terms). The grand jury proceedings are ex-parte, but they are under oath/perjury and the grand jury is a neutral fact-finder (at least they are supposed to be).
  • [CB] To sum up, each case depends on its facts with reliability the key. Here, the complaining witness-victim voluntarily wrote the statement herself, swore to it under oath with penalty of perjury before a notary, admitted at trial she had made the statement and gave an inconsistent statement at trial where she was subject to cross examination. ER 801(d)(1)(i) is satisfied under the totality of these circumstances.
  • Malavet:
    • It would be nice if the court could pick 5 out of six requirements, but it cannot. It has to find that the term "proceeding" includes the police interrogation in this case.
    • This decision stretches the term "proceeding" beyond recognizable bounds.


  • Note 3: Castro-Ayon differs from police interrogation apparently only in that the statements were audio-recorded. This is a strange case in the Federal system. The setting for grand jury proceedings and police interrogation are vastly different. To allow this analogy is to create a very dangerous slippery slope.
  • Finally, legislators tend to view grand-jury proceedings with special reverence which is not given to other types of ex-parte prosecutorial or police interrogation.

Problem 4-A: "I Got Amnesia": Authors' Answers, with my comments

  • [Arguments for the Defense:]
    • Both defense objections are substantial:
      • [a]Lack of memory (even feigned) is not the standard form of inconsistency, and
      • [b]the unremembering witness (even one who remembers but stonewalls) is hard to test by cross-questions.
    • [Clearly the second argument is more substantial than the first.]
  • [Inconsistent:
    • [(a) Conflict
    • [(b) Any change]
      • Does "inconsistent" require actual conflict between present testimony and earlier statement, or is it enough that one contains a point of detail absent from the other? The standard answer is that the latter suffices -- any change between what was said before and what is said now that might bear on the case in some way seems inconsistency enough.
  • [Inconsistent:
    • [(a) Intentional, or
      [(b) Unintentional, or
      [(c) Both?]
      • Does "inconsistent" reach only differences that seem the product of deliberate change of heart by the witness, or also differences resulting from nonvolitional changes of opinion, perhaps brought on by changing recollection? If inconsistent refers to deliberate change of heart, then genuine memory lapse does not pave the way for a prior positive statement, though a lying claim of lack of memory does. Here Breen's claimed lack of memory seems hard to credit, which makes it easier to conclude that the present stance of the witness is inconsistent with his earlier stance.
      • More generally, something might be gained by holding that lack of memory at trial establishes inconsistency only if it is feigned, since the main purpose of the inconsistency requirement is to limit resort to prior statements as substantive evidence -- we prefer live testimony. Moreover, the genuinely unremembering witness seems less an affront to the system than the witness hiding behind false claims of lack of memory. In the latter case, we worry about letting witnesses sabotage criminal prosecutions, and we worry about the possibility that the reason for the false claims is that the defense has "gotten to" the witness. A position that feigned lack of memory shows inconsistency, but not a genuine lack of memory, would reduce resort to prior statements and would at least ward off the most serious evils.
  • [Cross-Examinability:
    • [How important is it?
      [About what exactly? About the prior statement]
      • The main justification for FRE 801(d)(1)(A) is that the speaker is now subject to cross about what he said before. It is deferred questioning, and trial lawyers like it less than contemporaneous cross, but it is the possibility of such testing that mainly justifies this provision.
      • Read closely, FRE 801(d)(1)(A) requires the witness to be cross-examinable about his prior statement, not necessarily to be cross-examinable about the events reported. The word choice in the Rule seems deliberate, for the framers could easily have said the witness must be subject to cross on the "subject matter" of his prior statement if that were intended. Arguably the Rule is satisfied if Breen remembers going to the grand jury: Then he can answer questions about what was going on with him at the time (maybe he was looking for a deal with the government), which would probe the truthfulness of what he then said.
      • Clearly, however, the vision underlying FRE 801(d)(1)(A) is a witness who answers from present memory all questions about events previously described (here the Halshire Foods robbery). On that score, Breen's lack of memory (or refusal to answer) is so complete that he was not really cross-examinable. If the Rule were read to require responsiveness on this subject, then the Rule cannot be satisfied here.
  • [General Credibility Attack]
    • The only headway Barlow makes is that Breen answers questions relating to general credibility: He's a lifelong burglar; he's out of the racket and dependent on the government; he's still in trouble with the law; he's done soft drugs (valium) in the past while in a correctional facility. All that goes to general credibility, and presumably suggests that his prior statement can be discounted in some measure.

[The Actual Case: Admit]

    • The problem closely tracks United States v. DiCaro, 772 F.2d 1314 (7th Cir. 1985), which approved use of prior grand jury testimony by the government witness Brown.
    • The court concluded that "a professed memory lapse . . . must often be considered as inconsistent testimony," or FRE 801(d)(1)(A) would fail in its purpose to protect against the turncoat witness.
  • [Faked Loss of Memory]
    • On the facts of DiCaro, the court noted that the trial judge "explicitly found" that Brown was lying, and the reviewing court noted that a medical report showed that Brown remembered events from the distant past even after he "supposedly developed amnesia" and concluded that the trial judge "was very likely correct" in believing that Brown was faking it.
  • [Cross-Examination]
    • On the question whether lack of memory kept Brown from being cross-examinable under FRE 801(d)(1)(A), the court said lack of memory about "the subject matter" of the statement (robbery of Halsted Foods) "does not alone render him not subject to cross-examination." But the court in DiCaro was troubled that Brown "claimed no memory of giving the testimony" to the grand jury and no memory of "circumstances surrounding" that testimony:
    • In light of the significance attached to the cross-examination requirement, we must be careful to avoid a construction that would render the requirement effectively meaningless. We thus recognize, as have those commentators who have considered the particular question, that in many or perhaps most cases in which the witness suffers a total memory lapse concerning both the prior statement and its contents, the witness cannot be considered subject to cross-examination concerning the statement under the Rule. As one treatise has persuasively argued, "Rule 801(d)(1)(A)'s cross-examination requirement should not be viewed as an empty formalism that can be satisfied by the mere fact that the witness is present and can be required to sit still long enough for questions to be put." Just as we must avoid interpreting the cross-examination requirement formalistically so as to admit prior statements by witnesses who in effect are not cross-examinable at trial concerning their statements, so we must avoid interpreting it so as to exclude statements by witnesses who in effect are cross-examinable at trial concerning their statements. [Court cites and quotes first edition of what is now 4 Mueller & Kirkpatrick, Federal Evidence §404 (2d ed. 1994) (whether requirement satisfied should depend in part on "the extent to which the opposing party tries to delve into the circumstances and motives underlying the statement" and "the extent to which the answers shed light on those circumstances and motives").]
    • The Court in DiCaro concluded that Brown was adequately cross-examinable because he remembered "being a member of the Witness Protection Program," because the claimed memory lapse probably undercut the jury's idea of his credibility. The court also emphasized that the defense brought in other evidence that Brown admitted to being a "life-long burglar who had committed countless crimes" and had "taken substantial sums of money from the government" while continuing in crimes, and that he had admitted in another hearing that he would "probably tell a lie in order to help himself." DiCaro insists on importance of cross-examinability, but the court does not seem as serious as its language suggests. Brown claimed to have forgotten both his prior testimony and the events. If he was adequately responsive about his prior statements, surely he just barely passes.


  • [CB] *** Federal cases agree that feigned lack of memory is inconsistent, but have not held that lack of memory must be feigned. See United States v. Bigham, 812 F.2d 943, [195] 946-947 (5th Cir. 1987) (leaving for another day the question whether lack of memory justifies a finding of inconsistency only if feigned) .
  • [There is a new note here that discusses Owen more extensively.
    • [In Owens, the Supreme court also rejected a constitutional confrontation challenge to this interpretation of the rule. The Supreme Court, even more than the circuit in the DiCaro case, places a great deal of trust on (a) the jury's ability to see through the claims of memory loss and (b) the effect of the questions during cross-examination. As note 6 indicates, not all courts see it that way.]
    • [The Supreme court explained:]
      • It is sufficient that the defendant has the opportunity to bring out such matters as the witness's bias, his lack of care and attentiveness, his poor eyesight, and even . . . the very fact that he has a bad memory. If the ability to inquire into these matters suffices to establish the constitutionally requisite opportunity for cross-examination when a witness testifies as to his current belief, the basis for which he cannot recall [a reference to Delaware v. Fensterer, 474 U.S. 15 (1985)], we see no reason why it should not suffice when the witness's past belief is introduced and he is unable to recollect the reason for that past belief. In both cases the foundation for the belief (current or past) cannot effectively be elicited, but other means of impugning the belief are available.
        • United States v. Owens, 484 U.S. 554, 558 (1988).
    • Now the issue of construing FRE 801(d)(1):
      • [T]he more natural reading of "subject to cross-examination concerning the statement" includes what was available here. Ordinarily a witness is regarded as "subject to cross-examination" when he is placed on the stand, under oath, and responds willingly to questions. Just as with the constitutional prohibition, limitations on the scope of examination by the trial court or assertions of privilege by the witness may undermine the process to such a degree that meaningful cross-examination within the intent of the rule no longer exists. But that effect is not produced by the witness's assertion of memory loss -- which . . . is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior statement.
        • United States v. Owens, 484 U.S. 554, 563 (1988).

imposes important constraints based on the Sixth Amendment.

4.02 Hearsay: Prior Consistent Statement (FRE 801(d)(1)(B))

    • The timeline regarding the motivation to fabricate is almost never as neatly set up as in the problem involving Marian and David presented by the authors at the start of this section.
    • Indeed, in the Tome case, which is the basis for Problem 4-B, the courts seemed to take the start of the fabrication timeline to be when the child went to live with her mother, but the SCOTUS regarded the attack by the defense to be generally too weak to justify such extensive substantive admission of hearsay.
    • A more substantial showing of motivation would have required more evidence about the divorce being "bitter" rather than amicable, evidence that the actual joint custody agreement was not popular with the parents. But note that the defense was in a very peculiar position. It did not want to open the door to substantive hearsay use, so any evidence designed to suggest fabrication of the charges would have been carefully considered relative to the counter-evidence that it might generate.

New Problem 4-B: He Thinks I am his Wife

  • From the Casebook Authors
    • Heart of the matter.  Both defense objections have merit:  ST’’s statements were made after her alleged motive arose, and they go well beyond what her direct testimony contained.
    • (1) Premotive requirement.  Since ST was in Colorado when she spoke, it is possible that she had formed the idea that life with Bonnie in Colorado was preferable to life with her father in New Mexico.  If so, then ST’s statements to the pediatrician and social worker came after her motive arose, and they reinforce the proposition that she was motivated to stay in Colorado rather than refute it.  Her statement is like the statement Marian made on Day 30 (after talking to David on Day 20; her subsequent statement reinforces the notion that she was acting under David’s influence or was motivated to try to help him).  A problem here, and in many of these cases, is that it is hard to know when the motive arose.  Courts take their cues from the questions asked by the attacking party – if the defense had asked “Isn’t it true that the prosecutor suggested last week that you’re more likely to be able to move to Colorado with your mother if the court puts your father in jail?” then ST’s statements to the pediatrician and social worker would have satisfied the premotive requirement – they would have been made before the suggested motive arose. 
    • (2) Beyond The Content of the Direct.  ST’s direct testimony contained essentially no content apart from adopting the words suggested by the prosecutor’s questions.  The defense is right to say that “the prior detailed statements are everything.”  This use of consistent statements is far from the paradigm behind the Rule, which rests on the idea that the prior statement reiterates what the testimony already contains.  This matter is seldom noticed, but the Farrah decision (note 3) picks up on it, and this important concept is actually more important in guarding against abuse of the Rule than is the premotive requirement.
  • Details of the Prior Statements
    (if you are weak of stomach, you may wish to skip this paragraph)
    • From the casebook authors:
    • Between the opinions by the Tenth Circuit and the Supreme Court, one can glean that there was testimony by a babysitter in Colorado (Lisa Rocha) who said that AT told her that defendant “gets drunk” and “thinks I’m his wife,” and “does nasties to me” (taking off her clothing, “forcing her legs open” and hurting her stomach when he lies on top of her, which caused her to have to go to the bathroom to wipe blood off her).  The government also offered testimony by a clinical caseworker describing an interview in which AT said that Tome “removed her panties, put her down on the floor, and ‘put his balls’ in her.”  The caseworker also said that AT had told of wiping blood from herself with a tissue, that AT kept the tissue and showed it to her grandmother and told her “what Matthew did to me.”  The government also called four pediatricians, who testified to clinical signs of abuse (enlarged vaginal opening and other indicators), as well as statements by AT describing abuse.

Case: Tome v. U.S.

See if the Supreme Court distinguishes Relevance and Ultimate Admissibility properly

  • [Opinion Starts]
    • [CB] . . . At issue is the interpretation of [FRE 801(d)(1)(B)] bearing upon the admissibility of statement, made by a declarant who testifies as a witness, that are consistent with the testimony and are offered to rebut a charge of a "recent fabrication or improper influence or motive." The question is whether out-of-court consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are admissible under the Rule.
    • [CB] [Prior Consistent Statements?] Thereafter the government offered testimony by six witnesses describing seven statements by A.T. A baby sitter described her statement that she did not want to return to her father because he "gets drunk and thinks I'm his wife." The baby sitter also recounted other statements describing abuse, made while her mother Beverly listened from an adjacent room, and she too described these statements. A social worker described details that A.T. provided. Three pediatricians related statements by A.T. describing how and where Tome touched her. (They also testified to clinical evidence of vaginal penetration.)
    • [CB] *** Prior consistent statements may not be [substantively] admitted [under FRE 801(d)(1)(B)] to counter all forms of impeachment or to bolster the witness merely because she has been discredited. In the present context, the question is whether A.T.'s out-of-court statements rebutted the alleged link between her desire to be with her mother and her testimony, not whether they suggested that A.T. 's in-court testimony was true. The Rule speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told.
    • [CB] *** Impeachment by charging that the testimony is a recent fabrication or results from an improper influence or motive is, as a general matter, capable of direct and forceful refutation through introduction of out-of-court consistent statements that predate the alleged fabrication, influence or motive. A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive. By contrast, prior consistent statements carry little rebuttal force when most other types of impeachment are involved.
  • [CB] *** [Are all/most prior consistent statements Relevant, regardless or their timing?] [Relevance of Prior Consistent Statement]
    • Evidence that a witness made consistent statements after the alleged motive to fabricate arose may suggest in some degree that the in-court testimony is truthful, and thus suggest in some degree that that testimony did not result from some improper influence; but if the drafters of FRE 801(d)(1)(B) intended to countenance rebuttal along that indirect inferential chain, the purpose of confining the types of impeachment that open the door to rebuttal by introducing consistent statements becomes unclear. If consistent statements are admissible without reference to the time frame we find imbedded in the Rule, there appears no sound reason not to admit consistent statements to rebut other forms of impeachment as well. Whatever objections can be leveled against limiting the Rule to this designated form of impeachment and confining the rebuttal to those statements made before the fabrication or improper influence or motive arose, it is clear to us that the drafters of FRE 801(d)(1)(B) were relying upon the common-law temporal requirement....
  • [CB] B: [The ACN and Motivation (only got 4 votes because Scalia did not join this part)]
    • [CB] The Notes disclose a purpose to adhere to the common law in the application of evidentiary principles, absent express provisions to the contrary. Where the Rules did depart from their common law antecedents, in general the Committee said so. [Court quotes ACN on FRE 804(b) (2)-(4).] The Notes give no indication, however, that FRE 801(d)(1)(B) abandoned the premotive requirement. [Court quotes ACN to FRE 801(d)(1)(B).]
    • [CB] *** Here, we do not think the drafters of the Rule intended to scuttle the whole premotive requirement and rationale without so much as a whisper of explanation...
    • [CB] Hearsay evidence is often relevant.... That does not resolve the matter, however. Relevance is not the sole criterion of admissibility. Otherwise, it would be difficult to account for the Rule's general proscription of hearsay testimony (absent a specific exception), see FRE 802, [hence, my Deconstructing Hearsay analysis] let alone the traditional analysis of hearsay that the Rules, for the most part, reflect.
    • [CB] The statement-by-statement balancing approach advocated by the Government and adopted by the Tenth Circuit creates the precise dangers the Advisory Committee noted and sought to avoid: It involves considerable judicial discretion; it reduces predictability; and it enhances the difficulties of trial preparation because parties will have difficulty knowing in advance whether or not particular out-of-court statements will be admitted.
  • D: [Sidetracking]
    • [CB] The case before us illustrates some of the important considerations supporting the Rule as we interpret it, especially in criminal cases. If the Rule were to permit the introduction of prior statements as substantive evidence to rebut every implicit charge that a witness' in-court testimony results from recent fabrication or improper influence or motive, the whole emphasis of the trial could shift to the out-of-court statements, not the in-court ones. The present case illustrates the point. In response to a rather weak charge that A.T.'s testimony was a fabrication created so the child could remain with her mother, the Government was permitted to present a parade of sympathetic and credible witnesses who did no more than recount A.T.'s detailed out-of-court statements to them. Although those statements might have been probative on the question whether the alleged conduct had occurred, they shed but minimal light on whether A.T. had the charged motive to fabricate. At closing argument before the jury, the Government placed great reliance on the prior statements for substantive purposes but did not once seek to use them to rebut the impact of the alleged motive. We are aware that in some cases it may be difficult to ascertain when a particular fabrication, influence, or motive arose. Yet, as the Government concedes, a majority of common-law courts were performing this task for well over a century, and the Government has presented us with no evidence that those courts, or the judicial circuits that adhere to the rule today, have been unable to make the determination.
  • [The authors explain why the government wanted the statements to be used substantively (i.e., to prove the defendant guilty) rather than in rebuttal of the fabrication charge (which I classify as rehabilitative of AT's testimony), as follows:]
    • Many of these statements were "extremely compelling," and AT's accounts to Rocha [the babysitter] and Ecklebarger [the social worker] were "the most detailed accounts of the abuse presented at trial" because they "vividly described a particular instance of abuse with great specificity and in graphic terms," painting a "rather brutal picture of defendant," while AT's trial testimony was "not nearly as articulate or comprehensive."
  • [CB] III: [Other bases for admissibility (i.e., 801(d)(1)(B) does not entirely occupy the field of Prior Consistent Statement).]
    • Courts must be sensitive to the difficulties attendant upon the prosecution of alleged child abusers. In almost all cases a youth is the prosecution's only eye witness.... When a party seeks to introduce out-of-court statements that contain strong circumstantial indicia of reliability, that are highly probative on the material questions at trial, and that are better than other evidence otherwise available, there is no need to distort the requirements of FRE 801(d)(1)(B). If its requirements are met, FRE 803(24) exists for that eventuality. We intimate no view, however, concerning the admissibility of any of A.T.'s out-of-court statements under that section, or any other evidentiary principle. These matters, and others, are for the Court of Appeals to decide in the first instance.

[CB] The Dissent:

  • *** The reason for the time limitation was that, otherwise, the prior consistent statement had no relevance to rebut the charge that the in-court testimony was the product of the motive to lie. [Does that deprive it of ALL relevance? No. Problem 8-I] [Deconstructing Hearsay] ***
    • Note that this is clearly not the vision of relevance of the Federal Rules of Evidence, which is different from the old common law view of relevance. One way to make sense of the dissent is to read it as an attempt to contextualize the common law requirement of pre-motive to lie in the common law view of relevance. The problem is that the rules have clearly and quite expressly rejected the old common law view of relevance.
    • A prior consistent statement about the occurrence of the ultimate issue in the case is going to meet the relevance standard of FRE 401 and 402. The better question is what is its probative value? This comes into play at the "reliability" stage, which is the "big question" when dealing with the admissibility of hearsay. It also always comes into play expressly by the language of FRE 403.
    • Note that uttering a prior consistent statement after the motivation to lie has arisen does not necessarily deprive it of all probative value. After all, humans are capable of RESISTING motives to lie, and the statement may in fact be true, even if there was a motive to lie. However, the majority clearly prefers to implement the probative value analysis of FRE 801(d)(1)(B) by creating a bright line that if the statement is made after the motive to fabricate arose then its probative value is very low, thus requiring exclusion, rather than an exercise of balancing/discretion under FRE 403. (On the other hand, even if the PCS was made before the motive to lie arose, probative value must be tested under FRE 403.)
  • [Uses of Prior Consistent Statements]
  • [CB] The majority is correct in saying that there are different kinds of categories of prior consistent statements that can rehabilitate a witness in different ways, including statements []
    • (a) placing a claimed inconsistent statement in context;
      (b) showing that an inconsistent statement was not made;
      (c) indicating that the witness' memory is not as faulty as a cross-examiner has claimed; [Problem 8-I] and
      (d) showing that the witness did not recently fabricate his testimony as a result of an improper influence or motive.
  • Malavet
    • As the majority indicates, category "d" is in fact the area in which prior consistent statements become most highly probative, which explains why the drafters chose it as the gatekeeper to substantive admissibility.
    • This is clearly just plain wrong. Reliability has to be affected by motivation to lie at the time the prior consistent statement is made. To the extent that the dissenters were trying to say that cross-examination is enough to ensure reliability, I think that this is too narrow a view of the concept or reliability as it relates to hearsay.
  • [CB] [Rehabilitative vs. Substantive Use—So What?]
    • At the same time, one can find a hearsay-related reason why the drafters might have decided to restrict the Rule to a particular category of prior consistent statements. Juries have trouble distinguishing between the rehabilitative and substantive use of the kind of prior consistent statements listed in Rule 801(d)(1)(B). Judges may give instructions limiting the use of such prior consistent statements to a rehabilitative purpose, but, in practice, juries nonetheless tend to consider them for their substantive value. It is possible that the Advisory Committee made them "nonhearsay" for that reason, i.e., as a concession "more of experience than of logic."
  • Malavet
    • On remand, the court of appeals held that the statements to the Doctors were admissible under FRE 803(4) but that the other statements were not admissible under any rule for any purpose (it rejected the use of the statements to rehabilitate because the impeachment basis was recent fabrication; it also rejected admissibility under what is now FRE 807, which used to be FRE 803(24); it also rejected a state of mind admissibility argument). 61 F. 3d 1446 (1995).]

Impeachment and Rehabilitation

NOTE THAT impeachment opens the door to rehabilitation. Many of the same well-established doctrines that place the methods of impeachment largely beyond the express language of the rules also apply to rehabilitation.

Nevertheless, as we discussed when we covered Problem 8-I some weeks ago, there is an open question as to the applicability of the pre-motive requirement for non-801(d)(1)(A) rehabilitative uses of the statements (which are "non-truth" rebuttal-of-the-impeachment uses).  

The Examination of AT and the Rebuttal Evidence

 Direct of AT by the Prosecution

She was a weak and reluctant witness

(I understand that this is NOT surprising given the shock of testifying in court for a six and a half year old, but the testimony is still weak). 

Cross-Examination of AT by the Defense

The defense Impeaches AT (essentially alleging bias) and the prosecution clearly thinks that its witness, who was not strong on direct, has been hurt. 

Rebuttal of the Charge of Fabrication by the Prosecution

By presenting extrinsic evidence of Prior Consistent Statements during the continuation of their case-in-chief.

Rehabiliation of the witness to show that she is in fact telling the truth in her direct testimony, thus rebutting the charge of fabrication.

Substantive use to prove defendant guilty. 



  • Notes: I will leave it to you to read the notes. Note 1 is especially important.
  • Let me add that, it seems to me that if (or when) the impeachment that is being countered by the rehabilitation effort was based on reason to fabricate, then the requirement should apply. To do otherwise, it seems to me, would make a mockery of Tome. While I do not believe that 801(d)(1)(B) occupies the entire field of uses of Prior Consistent Statements (thus disagreeing with Note 5), I do believe that it totally occupies both the substantive and rehabilitative uses of PCS to rebut a charge of recent fabrication AND that this ought to include the common-law requirement of pre-motive-to-lie. (But note the discussion in note 1(b) at pages 176-177, of cases such as Eppens, Simonelli and Chew decisions, cited in Note 1(b) at page ).
  • I would add to note 1 a category 1(c) with a third question about the reading of Tome: The more difficult question regarding the motive to fabricate line arises when we use the PCS for rehabilitation under the dissenters' categories other than "d". Personally, I still would apply the requirement, but, some courts would not (as the authors discuss in Note 4 at page 177-178).
  • I am not sure that I can accept the intent argument regarding 801(d)(1)(B) that is made by the authors in note 5. If that was the intent, then they sure wrote a silly rule.

4.2.b Statements of Identification: FRE 801(d)(1)(C)

    • How is a composite sketch prepared by the artist as the witness describes the alleged assailant different from a photograph and more analogous to a transcript of her description?
    • How is the selection of a photo from a photo array a "statement"?
    • How about identifiying someone in a live line-up?
    • Think about how each of these things happen as you read State v. Motta.

State v. Motta

  • Statements of Identification
    • Iwashita gave a description of the robber to the police who arrived at the scene soon thereafter.
    • On May 6, 1980, Iwashita met with Joe Aragon, an artist for the Honolulu Police Department, who drew a composite sketch of the robbery suspect based on Iwashita’s description.
    • On June 3, 1980, Iwashita picked appellant’s photograph from a photographic array of about twenty-five to thirty pictures.
    • On June 9, 1980, Iwashita positively identified appellant in a preliminary hearing.
  • At trial, Iwashita confirmed
    • her prior identifications and pointed out the appellant as the person who robbed her.
    • Sketch offered into evidence
      • Using both Iwashita and Aragon’s testimonies
  • State v. Motta: Composite Sketch offered into evidence
    • Objection: it is Hearsay
    • Court: It was admissible hearsay
      • FRE 801(d)(1)(c)
    • Could be nonhearsay
      • Verbal marker or authenticated thing [what?]
      • Rehabilitation through corroboration
    • Res-Gestae [FRE 803(1) and (2)]
  • State v. Motta: It IS Hearsay
    • Sketch is Hearsay
    • As if description had been relayed to the jury
      … a composite sketch is in fact hearsay. It has the same effect as if the victim had made a verbal description of the suspect’s physical characteristics. Just because the sketch is in picture form does not change the fact that it is being offered as a statement made out of court to prove what the suspect looked like
  • Admissible Hearsay if Declarant Testifies
    • FRE 801(d)(1)(c)
  • State v. Motta: Impeachment v. TOMA
    • Contradiction/Corroboration
      • Appellant contends that the composite sketch was admitted solely to corroborate Wendy Iwashita’s in-court identification.
    • Impeachment/Rehabilitation
      • Appellant consequently argues that since corroborating evidence is only admissible when offered to rebut testimony impeaching the witness and no such impeaching evidence was introduced, the sketch is inadmissible.
  • State v. Motta: Impeachment v. TOMA
    • Substantive TOMA Use Allowed
    • Unlike the common-law extra-judicial identification exception . . . , the prior identification exception . . . allows the admission of pretrial identifications, not merely as corroborative evidence, but also as substantive proof of identity . . . 
  • Extrinsic Evidence of ID?
    • Is Admissible, Examples
      • Sketch art, photo array, testimony about lineup
      • Artist, or Officer who supervised process
    • But Declarant MUST Testify
      • FRE 801(d)(1)(C) so requires
      • Cross-examination delayed until trial is OK,
      • denial by physical absence is not


4.03 Admissions by a Party Opponent

REVIEW FRE 801(d)(2)(A)

Problem 4-B: Fire in the Warehouse


  • Is the statement Relevant?
  • Is it (a) offered by party (b) against another party
  • Is it the other party's own statement (FRE 801(d)(2)(A)).

  • What is the Relevance of this evidence?
    • What does Carter know about what Dugan did?
  • What objections are possible, and how should the court rule on them?
    • (1) The speaker lacked personal knowledge. 
      (2) Statement was self-serving 
      (he wanted to collect insurance proceeds).
      (3) The statement gives an opinion 
      ("too close to the fumes")
      (4) The speaker did not anticipate use of the statement against him.

Authors' notes with my comments

  • [Relevance?]
    • Carter as owner of the automotive shop makes a damaging statement to his insurance adjuster Esher, saying that the fire started in the paint shed when Dugan put a flaming torch on the ground too close to the fumes. Thus Carter acknowledges both cause and negligence.
  • [Personal Knowledge? [FRE 602]]
    • Problem is, Carter has no personal knowledge, is apparently motivated to collect insurance (thus describing the fire advances Carter's interests), and Carter's statement is heavily councilors in nature.
  • [Objection(s) Overruled (even if Carter lacks personal knowledge) [Hearsay] [FRE 801(d)(2)(B)]]
    • The facts suggest four arguments for exclusion, and they should all be rejected (separately and together).
    • (1) The speaker lacked personal knowledge.
      But the ACN rejects this objection: It endorses common law tradition, noting that admissions are not subject to "the rule requiring firsthand knowledge."
    • (2) Statement was self-serving
      • (he wanted to collect insurance proceeds).
        Pretty clearly this argument won't fly: The ACN says common law did not require a showing of any "against-interest circumstance" (the framers continue this tradition), and pretty clearly this point means that a "self-serving" statement fits the exception (the speaker cannot himself exclude what he said on ground that when he spoke he was trying to further his own interests).
    • (3) The statement gives an opinion
      ("too close to the fumes")
      The ACN indicates an intent to continue another tradition, which is that admissions are free of "the restrictive influences of the opinion rule."
    • (4) The speaker did not anticipate use of the statement against him.
      On this point, FRE 801(d)(2)(A) is silent, and here is a place where legislative silence is significant. This concern simply doesn't count.
      • If a statement is self-interested (as seems true here), his willingness to advance his own interest suggests that he should not be allowed to complain when others seek to hold him to what he said (especially if he has a legal or moral obligation to be honest, which seems usually to be the case). A failure to anticipate the use to which a statement might later be put affects our sense of fairness, but on facts such as these it is hard to imagine that the declarant was oblivious to the possibility of being sued. Also he is well situated to offer for consideration at trial whatever explanation he has -- if the statement was wrong, the trier can ignore it.
  • [What the court actually did.]
    • The problem rests on Matthews v. Carpenter, 97 S.2d 522 (Miss. 1957). There the trial court directed a verdict for the defendant, but the reviewing court reversed. It held that the statement by the defendant was admissible, and rejected his argument that it should have been excluded because he lacked personal knowledge. The court quotes from Am Jur, CJS, and caselaw, emphasizing that personal knowledge is not required, and that statements "against interest" are admissible against a party when "inconsistent" with his position at trial (the apparent assumption being that the statement here was against interest because it hurt declarant's position at trial).

Notes [CB]: The notes are very important. Let me just react to their content.

  • 2. It is difficult to understand when FRE 804(b)(3) would allow admission of something that would NOT already be admissible under FRE 801(d)(2)(A). Perhaps 804(b)(3) needs to be read as imposing a special limitation when the declarant is unavailable. Consider also the effect that Crawford might have on this.
  • 6. In the 1869 Flavell case the court ruled that the evidence was not probative enough, but it was admitted! Nevertheless, I cannot conceive of anyone in their right mind admitting sleep-talk as a party admission in the 21st Century!
  • The notes raise questions about capacity to admit and voluntariness. But note that the standard for finding that the admission was involuntary is pretty high.

Problem 4-C: An Encounter Gone Bad

Authors' Notes on the problem, with my comments

  • In General.
    • A plea of guilty to criminal charges is an admission by the defendant that fits FRE 801(d)(2)(A) to the extent that defendant personally enters the plea or FRE 801(d)(2)(C) if the plea is entered on the defendant’s behalf by his attorney. The same points apply to statements made in court by the defendant or his attorney when the matter of accepting the plea is put before the judge. On the question whether such a plea and the accompanying statements should be admitted in a later civil suit, there are three serious issues and one “nonissue.”
  • (A) Plea: Sufficient overlap?
    • [Here you need to look at the statutory language. Note the following descriptions provided by the authors.]
    • Under CRS §18-3-401, “sexual contact” means the “touching of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the victim” (even through clothing) if the purpose is “sexual arousal, gratification, or abuse.”
    • Under CRS §18-3-404, unlawful sexual contact occurs, inter alia, if defendant “knows that the victim does not consent” or knows that she is “incapable of appraising” her own conduct or is “physically helpless,” or if defendant “has substantially impaired” the victim’s power to appraise or control her conduct by “employing” without her consent “any drug, intoxicant, or other means for the purpose of causing submission.”
    • Under CRS §18-1.3-501, the penalty for unlawful sexual contact ranges between a minimum $50 fine and a maximum six months imprisonment and a fine of up to $750 or both.
  • Restatement Second of Torts §§13 (battery) and 21 (assault) (1965). [Explained by the authors.]
    • Thus the Restatement defines the tort of assault as acting with intent “to cause a harmful or offensive contact” with the victim or put her in “immanent apprehension of such contact” if she “is thereby put in such imminent apprehension,” and the Restatement defines the tort of battery as acting with intent “to cause a harmful or offensive contact” with the victim or “imminent apprehension” of such contact and actual “harmful contact” with the person.
  • (B) Plea: Undermined by statements?
    • The purpose of the ritual described in the third paragraph of the problem is to insure that a defendant who pleads guilty understands what he is doing. The judge will likely ask the defendant if he understands that pleading guilty paves the way for conviction and waives his right to a trial by jury and will lead to sentencing, and the judge will likely ask questions directing defendant’s attention to the occasion of the charged crime and will ask whether defendant engaged in sexual touching of the complaining witness without her consent. Assuming that the defendant acquiesces on all these points, his plea of guilty is supported and will likely be admissible in the later civil suit.
  • [CONSIDER: What if the defendants' acts did not quite fit the language of the tort statute? Not at all? What about the type of plea?]
    • See North Carolina v. Alford, 400 U.S. 25 (1970) (defendant may plead guilty while asserting his innocence in fact; purpose is to enable defendant, by agreement with prosecutor, to plead to lesser charges and thus reduce his exposure to penalty when he is not confident in his ability to obtain an acquittal). Students will encounter this doctrine in connection with FRE 609 in Chapter 8 when they read the Lipscomb case (coursebook page 539, and footnote a on that page). In such settings, the question of admitting or excluding the plea raises issues similar to those in Problem 2-E (The Exploding Gas Tank) (page 79), in which the concern is over confusing the issues or misleading the jury, which are grounds of exclusion under FRE 403.
  • (C) Plea: Failing to advise?
    • In the setting of a well-healed defendant like Kenneth Brixton, who is represented from the beginning by a lawyer that he hires, it is inconceivable that a court would worry about the defendant’s awareness of the possible risks of using the criminal plea in the civil case.
    • [Should the lawyer be concerned about his possible malpractice for failing so to advice the client?]
  • (D) Are the statements in court excludable as plea bargaining? The answer is no, at least if the judge accepts the plea and it sticks.

OLD Problem 4-C

  • [Probably Admissible,BUT careful with nolo contendere]
    • Absent unusual circumstances, or a nolo contendere plea (where the purpose is to let the defendant confess guilt without creating civil liability) which would be excludable under FRE 410, the answer is Yes -- a guilty plea is an admission by the person who enters it, which can be offered against him later.
  • [What the court actually did: Admit BUT ONLY at Trial not at Summary Judgment stage]
    • The facts of the problem resemble McMillan v. Williams, 435 N.Y.S.2d 523 (Sup. Ct. 1982), a civil suit for assault where the court held that defendant's prior plea of guilty to the crime of Third Degree Assault was admissible. McMillan rejected the contention that the plea should be excluded because defendant did not "anticipate civil liability in the context of his criminal conviction," concluding that a judge "need not . . . inform the defendant of all possible future contingencies."
  • [Actual Case: No Summary Judgment]
    • But the court concluded that on the facts the criminal plea (and resultant conviction) could not even support partial summary judgment on liability: While the plea minutes adequately and conclusively establish unconsented body contact, and thus the tort of battery, they do not establish any threatening or menacing behavior so as to adequately prove a civil assault.
    • The court also pointed out that the civil complaint did not reveal whether plaintiff was alleging "a civil assault or a battery," did not "specify the nature of the damages claimed," and left room for the possibility of a claim of punitive damages.
  • [Admissibility is pretty easy, but weight/effect of the admission is a more tricky question.]
  • [Questions to be Answered]
    • A guilty plea to a serious crime is an admission by the defendant that fits FRE 801(d)(2)(A) (perhaps (C) if entered by an attorney). On the question whether such a plea should be admitted, the three serious issues are whether
      • (a) differences between the elements of the criminal charge and those of the civil damage action are serious enough to warrant exclusion,
        (b) defendant's statements in entering the plea undermine the plea itself (as by indicating his guilt of a greater offense but his innocence of one or more elements in the lesser offense to which he pleads guilty), and
        (c) failing to advise him of potential collateral consequences of his plea bars its use in the later civil damage suit.
    • The question how much weight or effect to give the plea is more complicated. It should not ordinarily bind defendant in a later case, but should suffice for summary judgment against him if he does not contest some important element by affidavit. Usually neither plea nor ensuing judgment of conviction generates collateral estoppel effect because this doctrine only reaches matters actually litigated.
    • On the admissibility point, and the question whether differences in context warrant exclusion, the problem raises issues similar to those in Problem 2-E (The Exploding Gas Tank) (page 81).
  • [Possible Substantive Problem]
    • Ordinarily criminal assault requires either "attempted battery or intentional frightening," though not all jurisdictions recognize the latter variety. LaFave & Scott, Criminal Law §80 (1972). The tort of assault requires the actor intentionally to put the victim in apprehension of a harmful or offensive contact. Prosser, Torts §10 (4th ed. 1971). The overlap between crime and tort is extensive, and it is hard to believe that a person guilty of the crime of assault could be innocent of the tort of assault.
  • Malavet
    • Collateral estoppel is highly unlikely because of the litigation requirement, except perhaps on a limited issue; summary judgment or judgment as a matter of law is more likely, if there clear overlap between the elements of the crime and tort AND defendant does not contest a material issue by affidavit; but, as the notes from the authors indicate, it is easier to justify admissibility and letting the jury decide, than it is to justify admissibility for Summary Judgment or Judgment as a matter of law purposes, so travel with care.

Notes on Guilty Pleas [CB]

  • [Be mindful of the statutory exceptions, which are especially prevalent in the Traffic Law area.]

4.04. Admissions by a party opponent, continued

Case: Bruton v. U.S.


You have to love this one. The codefendant against whom the confession was admitted has his conviction reversed, BUT the codefendant against whom the admission was NOT admissible has his conviction affirmed because of the curative instructions! Try explaining THAT to your client.

  • Malavet:
    • In a note that was edited out of your casebook, the Supreme Court explained that Evans' conviction had been reversed because his statement had been obtained in violation of the recent Miranda v. Arizona ruling, i.e., he was subjected to custodial law enforcement interrogation without an attorney being present and without adequate warnings about his rights. The court stated:  
      • n1 The trial began June 20, 1966, one week after the decision in Miranda v. Arizona, 384 U.S. 436. The Court of Appeals held, 375 F.2d, at 357, that Miranda and its companion cases were therefore applicable and controlling on the question of the admissibility in evidence of the postal inspector's testimony as to Evans' admissions. Johnson v. New Jersey, 384 U.S. 719. On April 8, 1966, St. Louis police officers, without giving Evans preliminary warnings of any kind and in the absence of counsel, obtained an oral confession during an interrogation at the city jail. The police informed the postal inspector, who interrogated Evans at the jail on April 11 and May 4, 1966; he obtained the oral confession expressly implicating petitioner on the latter date. On the merits, the Court of Appeals held, 375 F.2d, at 361, that Evans' admissions to the postal inspector "were tainted and infected by the poison of the prior, concededly unconstitutional confession obtained by the local officer," and were therefore inadmissible under Westover v. United States, decided with Miranda, 384 U.S., at 494-497. On the retrial, Evans was acquitted.
  • Malavet:
    • Footnote 3, is very important in explaining that Evans' confession was not admissible against Bruton under any other exception. The authors explain specifically that the co-conspirator exception (FRE 801(d)(2)(E)) does not apply.
    • The reference to Krulewitch and Fiswick indicates that the Court had in mind the coconspirator exception (those decisions are emphatic that this exception does not embrace post-arrest statements).
  • [New Vision About Limiting Instructions]
    • [CB] That dissent challenged the basic premise of Delli Paoli that a properly instructed jury would ignore the confessor's inculpation of the nonconfessor in determining the latter's guilt. "The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell." The dissent went on to say, as quoted in the cited note in Jackson, "The government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds." To the same effect, and also cited in the Jackson note, is the statement of Mr. Justice Jackson in his concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453 "The naive assumption that prejudicial effects can be overcome by instructions to the jury. . . all practicing lawyers know to be unmitigated fiction.... " ...
  • [Particular Concern for Co-Defendant Statements?]
    • [CB] In addition to Jackson, our action in 1966 in amending Rule 14 of the Federal Rules of Criminal Procedure also evidences our repudiation of Delli Paoli's basic premise. Rule 14 authorizes a severance where it appears that a defendant might be prejudiced by a joint trial. The Rule was amended in 1966 to provide expressly that "[i]n ruling on a motion by a defendant for severance the court may order the attorney for the [226] government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial."
    • [CB] *** Insofar as this implies the prosecution ought not to be denied the benefit of the confession to prove the confessor's guilt, however, it overlooks alternative ways of achieving that benefit without at the same time infringing the nonconfessor's right of confrontation [6th Am.].10 Where viable alternatives do exist, it is deceptive to rely on the pursuit of truth to defend a clearly harmful practice. Another reason cited in defense of Delli Paoli is the justification for joint trials in general, the argument being that the benefits of joint proceedings should not have to be sacrificed by requiring separate trials in order to use the confession against the declarant. Joint trials do conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial. But the answer to this argument was cogently stated by Judge Lehman
  • [Redacting]
    • [Confessions could be redacted. Footnote 10 in Bruton is generally cited for that proposition. But it is a tricky alternative.]
    • [The authors explain, and warn:]
      • But complying with Bruton by editing out references to the codefendant is tricky. With oral confessions, "human frailty" may make it impossible. And regardless whether a confession is written or oral, redaction may (a) distort it as evidence against the declarant (deleting reference to his co-offender may suggest that declarant is solely responsible for what happened, contrary to his words); or (b) leave "obvious blank spaces" that the Court finally condemned in its decision in Gray (note 7 after the case).
  • [Sixth Amendment Confrontation right:]
    • [CB] We still adhere to the rule that an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them.... We destroy the age-old rule which in the past has been regarded as a fundamental principle of our jurisprudence by a legalistic formula, required of the judge, that the jury may not consider any admissions against any party who did not join in them. We secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high. [6th Am.]
  • [Are we destroying the Jury system?]
  • [Are we assuming that jurors are incapable of following ANY instruction?]
    • [CB] Finally, the reason advanced by the majority in Delli Paoli was to tie the result to maintenance of the jury system. "Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense." We agree that there are many circumstances in which this reliance is justified. Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. "A defendant is entitled to a fair trial but not a perfect one." It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge's instructions to disregard such information. Nevertheless, as was recognized in Jackson v. Denno, supra, there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed....
  • Malavet:
    • Bottom lines:
    • First, confessions are unique in their devastating impact;
    • Second, a bright line rule is more easily understood and implemented;
    • But note that the error may be harmless if there is overwhelming independent evidence of guilt (see note 3).
    • Third, the prosecutor has the option of trying codefendants separately.
    • Also, note the reference to Crawford in note 4.

Problem 4-E: His Master's Car (to close Party-Opponent): Authors' Answers, with my comments.

Could Napton take the stand and so testify? Yeah, sure, why not? BUT, the problem assumes he did not, or, more accurately, has not yet done so.

  • [Constitutional Issue?]
    • Unlike Bruton, the Constitution has nothing to say because the confrontation clause applies only in criminal cases. And a court in this setting will not likely would bifurcate the proceedings. Note 1.
  • Malavet
      • But, don't forget good old Due Process!!
      • The statement regarding the brakes is likely to be fully EXCLUDED. It is IRRELEVANT, and thus inadmissible,  when offered against the declarant NAPTON, assuming he owed no duty to the plaintiff regarding maintenance of the brakes. The statement would be relevant against ACE, but it is not admissible because it IS hearsay and ACE did not make the statement (no 801(d)(2)(A) admission) and NAPTON was not acting within the scope of his employment (he had been fired when he made the statements) (no 801(d)(2)(D)). (Note however that in real life NAPTON is likely to WANT to testify about the brake failure as an Affirmative Defense against the complaint, and perhaps a cross-claim against ACE, which would change the situation substantially).
      • The statement about speeding is relevant against Napton, and admissible against him as his own admission. The statement is relevant about ACE's respondeat superior liability, but it is hearsay and not subject to any of the 801(d)(2) exemptions. It is likely to be admitted against NAPTON accompanied by a limiting instruction in favor of ACE (upon request).
  • [Relevance?]
    • The admission[s] by Napton tends to prove two points relevant to the liability of both himself and Ace:
    • First, the brakes failed suddenly, which suggests that Ace did not properly maintain the truck, hence that Ace is responsible and Napton is not (it looks as though Napton had no prior warning that the truck was unsafe);
    • NOTE 2: The statement "the brakes on that truck just failed" seems to support O'Brien's claim against Ace (assuming the company was responsible to maintain the brakes), but not O'Brien's claim against Napton (assuming he was not responsible for maintaining the brakes).
    • [But, keep in mind our discussion that if Napton was responsible for maintaining the brakes. then respondeat superior may apply as well.]
    • Second, Napton was speeding, which suggests directly that he is responsible and indirectly (through respondeat superior) that Ace is responsible.
  • [Admissibility]
    • The first statement should probably be excluded, and the second admitted under instructions requiring the jury to consider it only against Napton.
  • [Napton: The brakes "just failed."]
    • Probably this statement should be excluded: It is inadmissible (though relevant) against Ace, and it does not advance O'Brien's case against Napton, thus being arguably irrelevant (though otherwise admissible) against him. A problem with this argument is that Napton's statement about the brakes seems relevant to the O'Brien/Napton dispute because it helps Napton: Still, it has that tendency only because it suggests that Ace failed properly to maintain the truck -- and it is inadmissible against Ace. It is incongruous to argue that a statement that is admissible (competent) against Napton but not against Ace should be admitted because it helps Napton by hurting Ace.
  • [Napton: "I was speeding."]
    • This statement by Napton is evidence that is relevant against both defendants (suggesting both Napton and Ace are liable to O'Brien). But again the statement is only admissible (competent) against Napton. No doubt it should be admitted against Napton, though Ace is entitled under FRE 105 to a limiting instruction telling the jury not to consider the statement as evidence against Ace.
  • [Severance? Possible but unlikely]
    • Like criminal cases, civil suits too can be severed for trial (see FRCP 42(b)). But where respondeat superior applies, joinder of claims against agent and principal is commonplace, and severance for trial highly unusual.
  • [Exclusion under FRE 403?]
    [Again, possible, but unlikely]
    • And of course Ace can argue under FRE 403 that limiting instructions will fail to work, so the statements by Napton should be excluded as posing too great a risk of jury misuse ("unfair prejudice"). But unless other evidence of negligence is overwhelming, Napton's statements seem so important to O'Brien's claim that exclusion is unlikely. Limiting instructions are the most that Ace can expect.
    • There is prejudice, but the statement is highly probative as well, and 403 favors admissibility.
  • [Rare 403 Exclusion:]
    • Occasional civil cases do require exclusion of "spillover admissions" that implicate coparties while being admissible against only the speaker. See Re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir. 1982) (class suit against makers of "old technology" aluminum wiring, arising out of nightclub fire that killed 165 people; admissions by some defendants, which were "hearsay as applied to other defendants" on the matter of causation, were properly excluded under FRE 403).
  • [Limiting Instruction under FRE 105 More Likely]
    • Yet in civil cases limiting instructions are looked on more favorably, even where it appears unlikely that the jury can follow their directive. In Beverly Hills Fire Litigation, the reviewing court suggested that the problem with the admissions arose because causation was being tried at the time, and on retrial (on account of misconduct by a juror) the court might try both causation and liability. On the latter point the admissions would be competent against the objecting defendants, and the court could give limiting instructions under FRE 105 that would permit use of these admissions against all defendants on liability, while telling the jury to ignore the admissions as against certain defendants on causation(!).
  • [Respondeat Superior:]
    • Because the doctrine of respondeat superior means Ace is liable for torts by its agent Napton (assuming he acts in scope of employment), it is possible to take the position that no limiting instruction is necessary for Napton's second statement ("I was speeding"). Even without an instruction, the jury will only take the statement as proof of how fast Napton was driving (that is all it says), hence as evidence of Napton's negligence. If the jury finds Napton negligent, then by operation of law (respondeat superior) Ace is responsible in damages to O'Brien. The statement is only evidence against Napton, and when he is found negligent Ace is on the hook.
    • We think this argument and resolution are wrong. The reasoning and conclusion cannot come from the law of evidence, but depend on some other body of law (see below): The law of evidence says each party is entitled to have the case against him proved by evidence competent against him. If O'Brien is to recover against Ace, the law of evidence means that O'Brien must prove Napton's negligence by evidence competent against Ace. We believe this solution is right, and that Ace is entitled to limiting instructions, and to dismissal of any claim that depends on proof competent only as against Napton.
  • [Caselaw on Respondeat Superior:]
    • The Problem resembles several cases that struggled with the old "speaking agency" limitation. Compare Madron v. Thompson, 245 Or. 513, 419 P.2d 611 (1966) (statement by service station attendant admitting he tried to fill tank of truck with motor running was admissible as proof of his own negligence, which could show his employer's negligence: "The admission does not constitute evidence that the employer was negligent, but since it constitutes evidence that the workman was negligent, the employer becomes liable under respondeat superior . . . .") with Branch v. Dempsey, 265 N.C. 733, 145 S.E.2d 395 (1965) (in suit against driver and car owner, court should not have admitted against owner a statement by driver conceding negligence; if plaintiff had sued only the owner "it would be obvious that she should recover only on the basis of evidence, competent as against him," and if she had sued only the agent and recovered judgment, "the matter of his negligence would not be deemed res judicata in a subsequent action against [the owner]"; joining the two "does not change the facts essential for recovery or the applicable rules of evidence") and Big Mack Trucking Co., Inc. v. Dickerson, 497 S.W.2d 283 (Texas, 1973) (similar).

Notes on Bruton and Multi-party cases: [CB]

  • [CB] 3. *** [HARMLESS ERROR.] See Harrington v. California, 395 U.S. 250 (1969) (where defendant's own confession placed him at the scene, error in admitting co-offender's confessions also placing him there was harmless beyond reasonable doubt); Schneble v. Florida, 405 U.S. 427 (1972) (confession by co-offender placing defendant at scene violated Bruton; error was harmless, despite lack of evidence "independent" of defendant's confession, which was perhaps coerced).
    • (1) Try Evans and Bruton separately;
      (2) Redact the confession, but the difficulties this choice are apparent, as Gray recognizes (note 7);
      (3) Hope the confessing defendant X testifies and is subject to cross-examination by codefendant Y (then Y's confrontation rights are satisfied);
      (4) Impanel two juries (both to hear at the same time the evidence admissible against both defendants; each jury would separately hear the evidence admissible against only the defendant that it tries).
    • Note that no. 3 requires great STUPIDITY on the part of the codefendant and can certainly not be predicted. This means:
      (A) That the prosecution cannot compel the testimony because of 5th Amendment protections, AND
      (B) That the codefendant could move for a mistrial or renew the call for a severance of his case when the testimony takes place.
    • No. 4 addresses the effect of Crawford.
  • [CB] 7. Bruton endorses the technique of "redacting" a confession by one defendant to delete any reference to another. See Gray v. Maryland, 523 U.S.185 (1998) (concluding that Richardson does not control, and redactions that "simply replace a name with an obvious blank space or a word such as 'deleted' or a symbol or other similarly obvious indications of alteration" leave statements that "so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result"). Gray doesn't mean that redaction is dead as a technique for complying with Bruton, does it? When might redaction still work?  

4.05 Hearsay: Adoptive Admissions & Speaking Agents Admissions (FRE 801(d)(2)(B))

[Will not be covered, for reference only]

Case: U.S. v. Hoosier

I have just transcribed the whole opinion, since it is so short. Note that this was a strong case against the defendant.  

    Another witness, Robert E. Rogers, testified that he had been with the robbery defendant before and after the bank robbery, that before the bank robbery defendant told him that he was going to rob a bank, [231] and that three weeks after the bank robbery, he saw defendant with money and wearing what he thought were diamond rings, and that in the presence of defendant, the defendant's girlfriend said concerning defendant's affluence at that point, "That ain't nothing, you should have seen the money we had in the hotel room," and that she spoke of "sacks of money." Although both defendant and his girl friend disputed these facts in their testimony, obviously the resolution of that fact dispute was for the jury, and we must assume the jury resolved it in favor of the government by its verdict of "guilty."
  • [CB] Appellant's sole appellate argument to this court, however, is that the testimony elicited from the fifth witness concerning appellant's girlfriend's statement was inadmissible hearsay, and that it was reversible error for the District Judge to fail to grant the objection to its admission.
  • [Court quotes FRE 801(d)(2)(B) and accompanying ACN.]
  • Our analysis of our present problem is made in the context of the Advisory Committee Note which is an appropriately guarded one. First , we note that the statement was made in appellant's presence, with only his girl friend and Rogers present. Since appellant had previously trusted Rogers sufficiently to tell him his plan to rob a bank, we see little likelihood that his silence in the face of these statements was due to "advice of counsel" or fear that anything he said might "be used against him." Under the total circumstances, we believe that probable human behavior would have been for appellant promptly to deny his girl friend's statement if it had not been true-particularly when it was said to a person to whom he had previously related a plan to rob a bank. While we agree with appellant's counsel that more is needed to justify admission of this statement than the mere presence and silence of the appellant, we observe that there was more in this record.
  • Finding no reversible error, the judgment of conviction is affirmed.

Notes On Tacit Admissions

  • [CB] [The authors add the following case analysis to the notes.]
    • The more extensive the pattern of dealings between parties, the more likely it becomes that silence on a given occasion silence means acquiescence. Compare Leach & Co. v. Pierson, 227 U.S. 120, 128 (1927) ("A man cannot make evidence for himself by writing a letter containing the statements he wishes to prove. He does not make the letter evidence by sending it to the party against whom he wishes to prove the facts.") with Megarry Bros., Inc. v. United States, 404 F.2d 479, 488 (8th Cir. 1968) (invoices went from subcontractor to contractor, and payments for work done came back with statements; with this "continuing correspondence concerning the amount due" to the subcontractor, the contractor "would be expected to make some objection" disputing any claim, so its silence "was evidence tending to show that it did not dispute" the amounts owing).
    • The question whether government action amounts to adoption of statements is made complicated by the doctrine that the government is not subject to the admissions doctrine in more ordinary situations (note 4). See the material on FRE 801(d)(2)(C) on pages 242-243 in the coursebook.

Problem 4-F: Couldn't he see the boy?
Authors' Answers, with my questions and comments

  • Questions:
    • Are the two claims in fact in conflict?
    • Are pleadings admissible as evidence of admissions?
    • The Actual case  
  • [The Problem: Pleading vs. Evidence]
    • The amended complaint qualifies as an admission by the Garments under FRE 801(d)(2)(C) because their lawyer is authorized to speak for them on the matters in litigation. (FRCP 11 requires the lawyer to file only pleadings which he considers supportable.) But letting the dismissed second count be read into evidence as an admission by the Garments undermines the policy of FRCP 8(e), which lets a party plead "alternately or hypothetically" and state all claims "regardless of consistency."
    • That policy means pleadings as such do not bring into play the election of remedies doctrine, which is left to operate only on the basis of conduct by a party that raises an estoppel. Here the pleading was dismissed because the lawyer (pressed because the statute of limitations is about to run) named the wrong defendant, which makes the case for exclusion more poignant, but these facts are not critical. The right to plead inconsistently includes a right to get to the jury on inconsistent theories, so the claim against the seller should not be viewed as an admission even if the right seller had been named and the case had gone forward against two defendants. Sometimes it is awkward (even risky) to adduce conflicting evidence and make conflicting arguments at trial.
  • [Are the Claims Really Inconsistent?]
    • On the facts of this case, however, it would seem plausible to argue both that the driver had an inadequate view of the space in front of the vehicle and that he was negligent in driving forward (surely he knew from experience that some children cross in front of the bus to get to homes on the left side of the road).
  • [Are Pleadings Admissible in Evidence as Party Admissions? Maybe.]
    • To the extent pleadings are not superseded by pretrial orders, they should generally be admissible against the party in whose name they are filed.
    • But they should be excluded on facts such as those in the problem where FRCP 8(e) comes into play. Surely exclusion is also wise where the position taken at trial by the pleader is fully consistent with the pleading (and here FRE 403 might indicate exclusion on ground of confusion or needless presentation of evidence). And exclusion may also be proper if the party makes a conclusive showing that the attorney acted beyond his authority in filing the document, although such a claim will likely raise a jury question on the actual scope of the attorney's authority.
  • [What the court actually did.]
    • The facts come from Garman v. Griffin, 666 F.2d 1156 (8th Cir. 1982), which held that the pleading should have been excluded.
    • Judge Woods emphasized that tort cases often rest on multiple theories, which "involve inconsistent and contradictory allegations" authorized by FRCP 8(e), and noted complications introduced by "third-party and joinder practice" and by rules governing contribution and indemnity, concluding that a pleader "should not have to forego a potential claim rather than run the risk of having such a claim used as an admission." The court also emphasized the fact that the pleading was directed against a dismissed party, that it did not allege conduct by the plaintiffs or the bus driver, and that it was "filed at the last opportunity to toll the statute of limitations."
  • [Dissent]
    • Invoking FRCP 11 in dissent, Judge Arnold thought the policy of FRCP 8(e) was not implicated because the complaint "did not allege two theories of liability" which were mutually exclusive. Instead it alleged that "both [busdriver] Griffin and the bus company were responsible," and there was "a tension . . . built into this allegation" in that "the very circumstance alleged to create liability on the part of the bus company also has some tendency to exculpate [busdriver] Griffin." He concluded that while "jury confusion or unfair prejudice" was possible, and the trial judge might have excluded the pleading under FRE 403, the decision should have been allowed to stand.
  • [Conflicting Cases]
    • The logic of Garman should apply as well when the claims are split among several suits. See Estate of Spinosa, 621 F.2d 1154 (1st Cir. 1980) (in suit against truck manufacturer, court properly excluded complaint in earlier suit alleging that accident was fault of owner for negligent failure to maintain truck). Although Garman states what seems clearly the correct view, not all cases reach this result. See Frank R. Jelleff, Inc. v. Braden, 98 U.S. App. D.C. 180, 233 F.2d 671 (1956) (after being sued by customer who suffered burns from flammable garment, retailer sued manufacturer for indemnity in another district [under pressure from statute of limitations], and court in first suit allowed retailer's complaint in second action to be introduced as admission that indeed garment was flammable).