801d2 c and d lawyer was disqualified due to

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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 involved a n assertion of fact inconsistent with similar assertions in a subsequent trial – the inconsistency 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. 33
Finally in 104( a) hearing dete rmine by a preponderance of evid that the inference the P seeks to draw is a fair one and that an innocent explanation for the inconsistency does not exist Example of - should be no one better prepared in the courtroom than you also for previous statements of Prosecutors previous witness statements is not admissible unless same witness can use to impeach Mahlandt v Wild Canid Survival & Research Center Inc- Sophie bit the baby- Poos not competent no personal knowledge – said it live with it can try to explain it but still comes in substantively Poos statements come in against him under 801(d)(2)(a) and D by 801(d)(2)(d) even though Poos has no personal knowledge – min of meeting can come in against D under 801(d)(2)(a) or (c) - None of the conditions of 801(d)(2) cover the claim that mins of a corp board meeting can be used against a non- attending, non- participating employee of the corp – not admissible to P oos – Not hearsay so if relevant must pass 403-Passes 403 for 2 statements but mins are repetitive Most cts do not treat the statements of law enforcement as admissions as agents of gov Wilson v City of Pine Bluff Rule 801(d)(2)(b) case Woman says to officer I live here and I want D to leave- D doesn’t say anything doesn’t leave- officers take him into custody charge with crim trespass- By not responding did D admit that it was her house and therefore he was trespassing? Must lay Foundation- Factors to consider in determining whether a party has impliedly admitted the statements are 1. The statement must have been he ar d by the party against whom it is offered 2 . it must have been understood by him 3 . the subject matter must have been with in his personal knowledge 4. he must have been physically or psychologically able to speak 5 . the speaker or his relationship to the party or event must be such as to reasonably expect a denial and 6 . the statement itself must be such that if untrue under the circumstances it would have been denied Whether the person has manifested an adoption should be 104(a) question- judge call– subject to 403 Crawford v Washington SC 2004- Scalia

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