801(d)(2) (c) and (d)- lawyer was disqualified due to
professionalism and gov could use at witness now
Even though McKeon is not declarant his agent made an admission as to his consciousness of guilt and it comes
in at the 3rd trial substantively -
Before permitting use the dist ct must be satisfied tha
t the prior argument
n assertion of fact inconsistent with similar assertions in a subsequent trial –
moreover should be clear and of a quality which obviates any need for the trier of fact to explore other events at
the prior trial.
Some participatory role of the client must be evident, either directly or inferentially as when the argument is a
direct assertion of fact which in all probability had to have been confirmed by the D.