Evidence Outline.docx

The following conditions is not hearsay 1 a declarant

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the following conditions is not hearsay: (1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross- examination about a prior statement, and the statement: (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (B) is consistent with the declarant’s testimony and is offered: o (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or o (ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or (C) identifies a person as someone the declarant perceived earlier. Prior Inconsistent Statements (801(d)(1)(A)) o Impeachment v. Substantively The statements covered by this exemption can be used for impeachment or for their substance (their truth). They can only be admitted substantively if the prior statement is made under oath in a prior proceeding. Prior Consistent Statements (801(d)(1)(B)) o The statements do not have to have been made under oath at a prior proceeding. Page 39 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar Prior Statement of Identification of a Person (801(d)(1)(C)) o The statements do not have to have been made under oath at a prior proceeding. An Opposing Party’s Statement 802(d)(2). An Opposing Party’s Statement o Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: (2) An Opposing Party’s Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the party’s coconspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E). Personal Knowledge o Personal knowledge is not required, so 602 does not apply. Opinion Testimony o There is no prohibition on opinion testimony, so 701 does not apply. o Witnesses can give ultimate opinion. Statements by the Opposing Party (801(d)(2)(A)) o There needs to be a 403 analysis. Adoptive/Tacit Admissions (801(d)(2)(B)) o Test for Tacit Admissions Whether a reasonable person would, under the circumstances, protest the statement made in his presence as not true.
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