When is a Statement Not Hearsay?
Statement is not hearsay when offered for any other purpose other than offered to prove the truth of the matter asserted.
Usually falls into one of 6 categories (statement offered for purpose other than to prove the matter asserted)
Impeachment
Verbal Acts
Effect on Listener or Reader
Verbal Objects
Circumstantial Evidence of State of Mind
Circumstantial Evidence of Memory or Belief
Tome
****Once you meet timing requirement you can use consistent statements for rehabilitative purposes and also for substantive purposes. If all you want to use it for is rehabilitative purposes you can do that without meeting the timing requirement. (Just like the impeachment rule, because it is not being used for the truth of the matter asserted.) – For 801(d)???—rebut charge of recent fabrication
When using a prior consistent statement to respond to an attack of recent fabrication or improper motive; and it meets the timing requirement; you can use the consistent statement for substantive purposes and rehabilitative purposes.
If the timing requirement is not met when using a prior consistent statement to respond to an attack of recent fabrication or improper motive; you can’t use the consistent statement for substantive purposes and it is not determinative of whether you can use it for rehabilitative purposes.
When using prior consistent statement to respond to an attack of lack of memory or inconsistent statement; you can most likely use the prior consistent statement for rehabilitative purposes but NOT for substantive purposes.
Limiting Instruction cannot be used with a confession from 1 defendant where 2 defendants are in a joint trial. (very anti-juror opinion) (Bruton)
Tacit Admissions (pg. 198)—not law; but is hornbook
For tacit admission to be admitted as adopted statement, should appear that:
the party heard the statement
the matter asserted was within his personal knowledge; and,
the occasion and nature of the statement were such that he would likely have replied if he did not mean to accept what was said
BUT,
Even if those conditions are satisfied, statement should be excluded if it appears that:
the party did not understand the statement or its significance
some physical or psychological factor explains the lack of reply
the speaker was someone whom the party would likely ignore
the silence can in response to questioning or comments by a law enforcement officer (or perhaps another) during custodial interrogation after Miranda w
king Statement Are NOT Admissible
Shepard
Mrs. Shepard – “Dr. Shepard poisoned me.”
Forward Looking Statement MAY BE Admissible
Hillmon
Walter: “I intend to go to Crooked Creek with Hillmon.” (admissible to prove Walters went to Crooked Creek; unclear result if used to prove Hillmon went to Crooked Creek
Pheaster
Larry: “I am going to meet Angelo in the parking lot.” ( may be admissible if corroborating evidence exists that Angelo went to the parking lot)
Past Recollection Recorded—FRE 803(5)
Elements
Witness lacks recollection of the matter
Nothing “refreshes” his recollection
Declarant must be present
The statement accurately reflects knowledge he once had
He “made” or “adopted” the statement
He did so while the matter was “fresh” in his mind
We don’t allow parties to introduce this stuff without the witness having recollection, because we have a preference for live testimony. Otherwise attorneys would just write up statements write after the event happened and
