Evidence Outline - Professor Tilly - Campbell Law - Part 5

a) Inconsistent “Other proceeding” means more than just “under the penalty of perjury”

• I.E. – extends to grand jury but not “station house interrogation” or affidavit
  • I.E. – grand jury testimony: “oh yeah i saw him shoot that man” but in trial: “nah he dint do nuffin” → can use the grand jury testimony
    • But couldn’t do this with station house interrogation affidavit
• Can be used to prove facts, but must be under oath in proceeding!!!!
  • Otherwise, can just use to impeach (later)
• “Inconsistency” may be found in evasive answers, inability to recall, or change of position

b) Consistent

• Can’t be used to bolster, must be offered after your witness is attacked by opposing counsel
• (a) If other party implied motive to fabricate- statement you’re rebutting with must have been made before motive to fabricate arose
• (b) Rehabilitate credibility when attacked on another ground
  • I.E. – dumbass prosecutor says to your aged witness “wow your memory must get better with age huh?” → you get to bring in that written statement your witness wrote that’s consistent boiiiiii
• No oath requirement for previous testimony

c) Identification

• Mere descriptions are not exempt, must make actual identification
  • I.E. – ID’ing at a lineup is exempt
    • But- telling cop what dude looked like after is not
• Rule not limited to testimony by identifying witness, other witness who was present can attest to that person’s identification why though? Look into
  • I.E. – cop who was there when photo ID occurred, if witness testifies (thus, subject to CX) to facts of what happened, but not the ID, and then the cop testifies to the ID → admissible, other party still had opportunity to CX (think this only applies in civil case though?)
• No oath requirement (for original statement)!!!
• No consistency requirement!
  • Doesn’t even have to remember the statement!!!
    • US v. Owens, man got the shit beat out of him, ID’d D right after but got memory loss after having his ass whooped so bad. Way later he’s brought to trial and doesn’t remember ID’ing the dude but someone else who was there produces it → admissible
      • He’s still subject to cross examination even though he doesn’t remember
      • Also, no confrontation clause concern!!!
• Requirement of cross examination is satisfied if witness is available to be recalled for re-cross examination
  • Just has to be subject to cross examination at some point!!! (I.E. – in deposition)

801(d)(2). Statement of Party Opponent. The statement is offered against an opposing party and:

1. Was made by the party in an individual or representative capacity;
2. Is one the party manifested that it adopted or believed to be true;
3. Was made by a person whom the party authorized to make a statement on the subject;
4. Was made by the party’s agent or employee on a matter within the scope of the relationship while it existed ; or
5. Was made by the party’s co-conspirator during and in furtherance of the conspiracy

*remember- whether statement was adopted, sufficient relationship, etc. are all 104(a) issues (preponderance of the evidence standard) Also: no first-hand knowledge requirement for any of these

A. Made by the party in an individual or representative capacity

1. In criminal trial, prosecution represents the State, not the victim. Thus, out of court statements made by a victim do not come in under this Rule (exam trick)
2. Doesn’t actually have to be admission/confession
3. Declarant must be the opposing party
4. No personal (first-hand) knowledge requirement for declarant
   1. I.E. – Bieber wasn’t with cab driver but tweets “my cab driver ran over someone lol” → he can’t object on lack of P.K. when it is used against him

B. “Is one the party manifested that it adopted or believed to be true”

1. Opposing party MUST:
   1. hear/see statement (context matters); and
   2. do something to signal adoption or belief
      1. I.E. – nod head
      2. What about facebook likes, etc? Depends on context
         1. I.E. – liking a picture of Anne Frank on general public post vs. liking a picture in a private skinheads group
2. Original “statement” doesn’t even have to actually assert anything, just may be answered in the affirmative
   1. I.E. – “is Mike a baby back bitch” doesn’t assert anything, but when I nod back, I am asserting that Mike is a baby back bitch
3. Adoption by silence?
   1. Must hear AND understand statement
   2. “whether the circumstances as a whole show that the lack of a denial is so unnatural as to support an inference that the undenied statement is true”
      1. Context is huge
      2. I.E. – cop- “this is your cocaine” declarant: “.....” → declarant said this is cocaine
      3. I.E. – someone says, “everyone here hates Trump” and you love the fact that our economy is on top of the world and we finally have a president with cajones but you don’t speak up to avoid conflict → not an adoption b/c not unnatural to speak up
4. Imputed statement to the party, words or conduct can apply
   1. Even if question that doesn’t assert anything but is answered in the affirmative → still an adoption
   2. Ex in Comments: Reprinting newspapers and distributing to person with whom defendants were doing business → defendants manifested their adoption of statements made in newspapers

C. “Was made by a person whom the party authorized to make a statement on the subject”

1. Specific authorization for person to speak on a particular subject matter on your behalf
   1. Ex- spokesperson, attorney, PR firm, letter of recommendation
2. Statement itself does not establish the declarant’s authority to speak on the subject!!!
   1. I.E. – Mike: “Miller told me to confess on his behalf” → NOT getting in without more evidence (104(a))
3. Depends on nature of authorization
   1. I.E. – focus on “xyz” → person isn’t authorized to talk about abc
4. Statement must be on subject matter authorized, narrower than “relating to” (I.E. – agent/employee admissions)