Rule 801(d)

Question 1

Rule 801(d)(1) A declarant-witness’s prior statement

Answer 1

(A) Prior inconsistent statements

(B) Prior consistent statements

(C) Statements of identification

Question 2

Rule 801(d)(2): Opposing parties’ statements

Answer 2

(A) A party’s own statements

(B) Adopted statements

(C) Statements by spokespersons

(D) Statements by agents

(E) Coconspirators’ statements

Question 3

Opposing parties’ statements: The party’s own words

Answer 3

1. Is it her own statement?
2. Statements against interest?

The party can’t introduce their own statements; the opposing party has to introduce it.

Question 4

Opposing parties’ statements:

Adopted admissions

Answer 4

1. Did they hear? Understand?
2. At liberty to respond?
3. Do circumstances call for a response?
4. Fail to respond or responds and fails to rebut

Silence after Miranda rights are read cannot be used as adopted admission.

Can use silence to impeach if Miranda rights have not been read

Question 5

Opposing parties’ statements: Statements of agents

Answer 5

Want to know the relationship; is he an employee of the management company? When he made those statements? And does the statement concern a matter in scope?

The judge determines this by a preponderance of the evidence.

Question 6

801(d) overarching requirements:

Answer 6

1. Declarant must be a witness
2. Witness must testify
3. Witness must be subject to cross examination

Question 7

Rule 801(d)(1)(A)

Answer 7

Must be an inconsistent statement

Must be given under penalty of perjury

If court believes witness is lying then it treats as inconsistent.

If no memory then is witness subject to cross-examination? Yes, can cross but not very effective

The standard for the Judge is by a preponderance of the evidence

Question 8

Rule 801(d)(1)(B)

Answer 8

Must be consistent with declarant’s testimony

And then must be to rebut an express or implied charge that the declarant recently fabricated it, OR to rehabilitate the declarant’s credibility as a witness when attacked on another ground

Then Tome adds a requirement that is not in the rule: Prior consistent must be made before the motive to lie arose → i.e. before the DA offers defendant a deal

Question 9

Rule 801(d)(1)(C)

Answer 9

Past statement identifies a person and was made after Declarant perceived the person

Memory of faces fade quicker than memory of what happened

Despite the fact that a witness may not remember anything, he is subject to cross examination if he is there and willing to undergo cross examination under rule 801

• Although under 804 no memory makes declarant unavailable
• How is this possible? Justice Scalia says different rules