HEARSAY 801 EXCLUSIONS

Case Law (Statements Not Hearsay)

• U.S. v. Moon, 512 F.3d 359 (7th Cir. 2008) (machine readouts are not “statements”; a machine is not a “witness against” anyone, since a machine cannot be cross-examined)
• U.S. v. Carmichael, 379 F. Supp. 2d 1299 (M.D. Ala. 2005) (statements introduced not for truth but to show they were false)
• U.S. v. Moreno, 233 F.3d 937 (7th Cir. 2000) (utterance of consent to search by police and subsequent retraction are verbal acts, and, as such, are admissible hearsay)
• Quartararo v. Hanslmaier, 186 F.3d 91 (2d Cir. 1999) (a question is not an assertion and cannot be a hearsay statement)
• U.S. v. Bellomo, 176 F.3d 580 (2d Cir. 1999) (statements offered as evidence of commands, threats or rules directed to witness are not hearsay)
• Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241 (6th Cir. 1995) (racial slurs allegedly made by owners offered not for truth but demonstrate their racial attitudes)
• Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918 (3d Cir. 1986) (publications offered for limited purpose of showing industry practice)
• U.S. v. Pheaster, 544 F.2d 353 (9th Cir. 1976) (hearsay evidence is admissible if it bears on the state of mind of the declarant and if that state of mind is an issue in the case)

801(d)(1)(A) – Prior Inconsistent Statements

Rule 801(d)(1)(A) exempts witnesses’ prior statements from hearsay if they are inconsistent with the present testimony and the prior statements were previously given under oath subject to the penalty of perjury in another trial, hearing, proceeding, or deposition.

• U.S. v. Butterworth, 511 F.3d 71 (1st Cir. 2007), cert. denied, 129 S. Ct. 37 (2008) (witness previously testified before grand jury, but current testimony was inconsistent with testimony she provided during the grand jury, and thus the grand jury testimony was admissible as prior inconsistent statements within meaning of hearsay exemption; at the grand jury, the witness testified that defendant sold weed and crack for a significant amount of money and that she met defendant’s supplier ten or more times, but at trial, witness testified she only met defendant’s supplier three or four times, that defendant did not make much money, and witness denied remembering what she told grand jury)

801(d)(1)(B) – Prior Consistent Statements

Rule 801(d)(1)(B) allows certain prior witness statements to be allowed into evidence if the following requirements are met:

• (1) Statement is consistent with prior testimony;
• (2) Prior testimony is offered “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”; and
• (3) Prior testimony is offered “to rehabilitate the declarant's credibility as a witness when attacked on another ground.”

• U.S. v. Frazier, 469 F.3d 85 (3d Cir. 2006), cert. denied, 549 U.S. 1328 (2007) (no abuse of discretion when trial court admitted officer’s prior consistent statement as non-hearsay since counsel satisfied the recent fabrication element by suggesting the officer consciously altered his testimony)
• U.S. v. Ruiz, 249 F.3d 643 (7th Cir. 2001) (statements made at the time of the incident by the officer to another officer over a walkie-talkie that were consistent with the current testimony are admissible under 801(d)(1)(B) as well as the present sense impression rule)

801(d)(1)(C) – Statements of Identification

Rule 801(d)(1)(C) exempts a witness’s prior identification of a person from the hearsay rule. This rule is most common when a witness is identifying a person for the second time after identifying that person in a police line-up the first time. Although a prior identification may overcome the hearsay rule, it still must overcome Constitutional hurdles, as well.

• Kirby v. Illinois, 406 U.S. 682 (1972) (right to counsel only applies to post-indictment lineups
• Gilbert v. California, 388 U.S. 263 (1967) (Sixth Amendment right to an attorney applies to lineup identifications)

801(d)(2)(A) – Admission by Party-Opponent

Under Rule 801(d)(2)(A), a party’s own statement made in his own individual capacity is not hearsay when offered by an opposing party. Under this exception, basically anything the opposing party has ever said or done will be admissible as an exception to hearsay, as long as the admissions have something to do with the case.

• U.S. v. Brinson, 772 F.3d 1314, 96 Fed. R. Evid. Serv. 148 (10th Cir. 2014) (Facebook posting written by a "Twinchee Vanto" was sufficiently established to be by defendant because the phone number on the bill of sale for defendant's SUV matched the number that Twinchee Vanto gave Facebook as a contact number and witnesses said that was defendant's Facebook name and that he was known as “Twin”; therefore, party admission)
• U.S. v. Monserrate-Valentin, 729 F.3d 31 (1st Cir. 2013)
• Jones v. National American University, 608 F.3d 1039 (8th Cir. 2010) (job postings of a university were not inadmissible hearsay because they were party admissions under Rule 801(d)(2)(A); one of the job postings was not hearsay at all because offered only to show that the university had a certain practice)

801(d)(2)(B) – Adoptive Admissions

Under Rule 801(d)(2)(B), evidence is not hearsay if the admission is adopted by a party-opponent. This evidence will only be admitted over hearsay upon a showing that the party-opponent heard, understood, and acquiesced in the statement. Adoption of an admission may manifest through language, conduct, and even silence.

• F.T.C. v. Ross, 743 F.3d 886 (4th Cir. 2014) (where defendant’s own earlier affidavit adopted the contents of another's affidavit which had included a profit and loss summary; that summary was admissible in defendant’s trial as an adoptive admission)
• U.S. v. Duval, 496 F.3d 64 (1st Cir. 2007), cert. denied, 128 S. Ct. 2499 (2008)and cert. denied, 128 S. Ct. 952 (2008) (statement that the defendant wanted to sell firearms, made in the presence of defendant in a small room, with defendant remaining silent, was properly admissible as adoptive admission by defendant because adequate foundation was laid from which it could reasonably be inferred that the defendant heard the statement in question)
• U.S. v. Miller, 478 F.3d 48 (1st Cir. 2007), cert. denied, 551 U.S. 1158 (2007) (transcript of defendant’s change of plea hearing reporting judge’s statement of the facts was properly admissible as adoptive admission since defendant remained silent during the hearing and failed to respond to judge’s statement when given ample opportunity)
• U.S. v. Magbaleta, 234 Fed. Appx. 718 (9th Cir. 2007) (National Park Service medical screening form was admissible as adoptive admission in criminal prosecution because defendant signed the form, thereby manifesting an adoption or belief in its truth)
• Schering Corp. v. Pfizer Inc., 189 F.3d 218 (2d Cir. 1999) (Pfizer employee helped design physician's survey and later wrote report analyzing its results; survey was adoptive admission)
• U.S. v. Jinadu, 98 F.3d 239 (defendant replied “yes” to agent’s question “you know that’s China White heroin” adopted the contents of the question)
• U.S. v. Warren, 42 F.3d 647 (D.C. Cir. 1994) (sworn affidavit submitted to magistrate to obtain search warrant was admissible as non-hearsay statement offered against the government which had “manifested an adoption or belief in its truth.”)
• Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996 (3d Cir. 1994) (statements by trade association president and its chief executive in article written by association employee and appearing in its newsletter were adoptive admissions)

801(d)(2)(C) – Admission by Authorized Person

Under Rule 801(d)(2)(C), a statement is not hearsay if it “was made by a person whom the party authorized to make a statement on the subject.”

• U.S. v. Valencia, 826 F.2d 169 (2d Cir. 1987) (defense attorney’s statements to prosecutor during informal meeting to obtain defendant's release on bond were within the scope of Rule 801(d)(2)(C); however, court rejected them on policy grounds)
• U.S. v. Iaconetti, 540 F.2d 574 (2d Cir. 1976) (businessman solicited by government official for bribe who carries message back to his partners is speaking as agent for government official; not hearsay because of 801(d)(2)(C))

801(d)(2)(D) – Admission by Agent

Under Rule 801(d)(2)(D), a statement is not hearsay if it “is offered against an opposing party and . . . was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.” In order for the agent exception to apply, the party offering the statement must show that (1) an agency or employment relationship existed between the declarant and the party, (2) the statement was made during the agency or employment relationship, and (3) the statement concerned a matter within the declarant’s scope of agency or employment.

• Marra v. Philadelphia Housing Authority, 497 F.3d 286 (3d Cir. 2007) (trial court properly admitted testimony against the company by employee regarding statements from supervisor, as non-hearsay statements under (d)(2)(D), since as his supervisor he was authorized to speak with his employee about his perception of the company’s disciplinary practices; supervisor speaking as authorized agent of the company)
• Marcic v. Reinauer Transp. Companies, 397 F.3d 120 (2nd Cir. 2005)
• Guzman v. Abbott Laboratories, 59 F. Supp. 2d 747 (N.D. Ill. 1999) (the statement must have been made during the scope of employment of the declarant for it to be admissible)
• Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) (statements made to torture victims by members of the Philippine military were vicarious admissions by then-President Ferdinand Marcos under Rule 801(d)(2)(D) and were admissible to show he ordered their abuse or knew of and failed to prevent it)
• Boren v. Sable, 887 F.2d 1032 (10th Cir. 1989)
• Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981) (an agent “who speaks on any matter within the scope of his agency or employment during the existence of that relationship is unlikely to make statements damaging to his principal or employer unless those statements are true.”)

801(d)(2)(E) – Admission by Co-Conspirator

Under Rule 801(d)(2)(E), “[a] statement is not hearsay if . . . [it] is offered against an opposing party and was made by the party’s coconspirator during and in furtherance of the conspiracy.” During the course of a conspiracy, an admission by one conspirator is considered an admission by all. For an admission by a co-conspirator to be admitted over hearsay, the proponent must establish that (1) there was a conspiracy, (2) its members included the declarant and the party against whom the statement is now being offered, and (3) the statement was made both (a) during the course of, and (b) in furtherance of the conspiracy.

• Bourjaily v. United States, 483 U.S. 171 (1987) (seminal case on admitting co-conspirator admissions)
• U.S. v. Conrad, 507 F.3d 424, 429 (6th Cir. 2007) (there must be some independent corroborating evidence of the defendant’s participation in the conspiracy for the hearsay statement to come in)
• U.S. v. SKW Metals & Alloys, Inc., 195 F.3d 83 (2d Cir. 1999) (company president took notes to memorialize information supplied by co-conspirators, which were held to be statements of co-conspirators)
• U.S. v. McGlory, 968 F.2d 309 (3d Cir. 1992) (“owe sheets” found in defendant’s trash showing sales of heroin were admissible under Rule 801(d)(2)(E) because there was sufficient evidence to show that the declarant was, more likely than not, a co-conspirator)
• U.S. v. Broome, 732 F.2d 363 (4th Cir. 1984) (conspiratorial statements were made during marital communication in which commission of a crime was discussed, to which both spouses are alleged participants; held: marital privilege does not apply, thus applicability of 802(d)(2)(E) not limited)