These Are a Few of My Favorite Things (Hearsay Principles and Exceptions): Exceptions

June 28, 2016
By Hanging Out with Carl Gunn

At the end of my last post on hearsay principles, I said I’d touch on some of the exceptions to the hearsay rule in this next post.  So here are some selected points about some selected exceptions I find interesting.

• The coconspirator’s admission exception in Rule 801(d)(2)(E) (technically not an “exception” but part of the definition of “hearsay”).  Not all statements made by conspirators during the conspiracy are admissible under this exception.  In the language of the rule, they have to be “in furtherance of the conspiracy.”  Cases exclude “merely narrative declarations,” “mere conversation between conspirators,” and “idle chatter.”  See, e.g., United States v. Nazemian, 948 F.2d 522, 529 (9th Cir. 1991); United States v. Bibbero, 749 F.2d 581, 583-84 (9th Cir. 1984); United States v. Layton, 720 F.2d 548, 556 (9th Cir. 1983); United States v. Fielding, 645 F.2d 719, 725-27 (9th Cir. 1981); United States v. Eubanks, 591 F.2d 513, 519-20 (9th Cir. 1979).

• The exception for admissions of a party-opponent in Rule 801(d)(2) (again, technically not an “exception” but part of the definition of “hearsay”).  For a discussion of how this exception can be used against the government to get statements of its representatives and/or government agency reports into evidence, see the prior post titled, “Government Confessions!  Or at Least Admissions,” in the June 2014 link at the right.

• The exceptions for prior consistent statements and prior inconsistent statements (once again, technically not “exceptions” but part of the definition of “hearsay”).  For a discussion of when prior consistent statements and prior inconsistent statements are admissible for their truth and when they’re admissible only to impeach, see the prior posts titled “The Different Rules for Prior Inconsistent Statements and Prior Consistent Statements” and “The New (Well, Sorta New) Rule on Prior Consistent Statements” in the January 2016 and December 2015 links at the right.

• The prior identification exception in Rule 801(d)(1)(c) (once again, technically not an “exception” but part of the definition of “hearsay”).  This exception applies even if the witness fails to make an identification in court, see United States v. Shryock, 342 F.3d 948, 982 (9th Cir. 2003), does not remember making the prior identification, see United States v. Owens, 484 U.S. 554, 561-64 (1988), or denies making the prior identification, see United States v. Jarrad, 754 F.2d 1451, 1456 (9th Cir. 1985).

• The state of mind exception in Rule 803(3).  For an interesting nuance of this exception, see the Supreme Court case of Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892), which is expressly recognized in the advisory committee note.  Hillmon extended the state of mind exception (under the common law rules which controlled prior to the Federal Rules of Evidence) to allow hearsay statements of intent to do an act as evidence that the act intended was actually done.  See, e.g., United States v. Pheaster, 544 F.2d 353, 376-80 (9th Cir. 1976) (testimony about statement by kidnapping victim that he was going to meet defendant in parking lot admissible under Hillmon and Rule 803(3) as evidence victim did in fact meet defendant).

• The public records exception in Rule 803(8).  This exception by its express terms does not apply to “a matter observed by law-enforcement personnel,” Fed. R. Evid. 803(8)(A)(ii), and so excludes police reports.  Case law suggests two exceptions to this limitation, however.  First, it does not apply to law enforcement reports regarding technical or administrative matters. United States v. Orozco, 590 F.2d 789, 793-94 (9th Cir. 1979).  Second, there’s a line of cases from other circuits suggesting the limitation applies only when the police report is offered by the government and does not apply when the police report is offered by the defense.  See United States v. Hudson, 884 F.2d 1016, 1022-23 (7th Cir. 1989); United States v. Versaint, 849 F.2d 827, 831-32 (3d Cir. 1988); United States v. Smith, 521 F.2d 957, 968-69 n.24 (D.C. Cir. 1975).  See also United States v. Insaulgarat, 378 F.3d 456, 465-66 (5th Cir. 2004) (acknowledging “substantial authority, including Smith, supporting this view” but stating bound by prior Fifth Circuit decisions and finding any error harmless in any event).

• The exception for former testimony in Rule 804(b)(1).  This exception applies only if the party against whom the former testimony is offered had an opportunity and similar motive to cross-examine the witness.  The motive need only be similar, however, not identical. This allows a defendant in some circumstances to offer grand jury testimony against the government.  See United States v. McFall, 558 F.3d 951, 961-63 (9th Cir. 2009).  But the exception may not apply to testimony from a suppression hearing offered by the government against the defense at trial (or, presumably, vice versa) because the cross-examination goal at a suppression hearing will often be different than the cross-examination goal at trial.  See, e.g., United States v. Duenas, 691 F.3d 1070, 1089-90 (9th Cir. 2012) (exception inapplicable where cross-examination at suppression hearing focused solely on voluntariness of defendant’s statement, not contents of statement).  Compare United States v. Geiger, 263 F.3d 1034, 1038-39 (9th Cir. 2001) (prior testimony at state suppression hearing admissible at federal suppression hearing; rejecting argument that issues were different because of different case law in state court); United States v. Poland, 659 F.2d 884, 896 (9th Cir. 1981) (testimony at hearing on motion to suppress identification testimony admissible at trial because one of issues in such motion is reliability of identification).

• The exception for declarations against interest in Rule 803(b)(3).  This exception is more limited than you might think from its title.  When offered in a criminal case, the statement not only must be against the declarant’s interest but must be “supported by corroborating circumstances that clearly indicate its trustworthiness.”  This does create an additional hurdle, but it is not an impossible one.  See, e.g., United States v. Paguio, 114 F.3d 928, 933 (9th Cir. 1997).

• The rule of completeness.  Hearsay may be admissible even when it does not satisfy an exception, under what is known as the “rule of completeness,” if an opposing party introduces only part of a statement and introduction of that part alone creates a misleading impression.  For a discussion of this, see the prior posts titled, “Some Case Law Backing Up a Prior Post,” and “Wait a Minute.  That’s Not All I Said!” in the March 2016 and March 2015 links at the right.

You should also keep in mind that there can be hearsay within hearsay, which is actually addressed in Rule 805.  As articulated in the rule, “each part of the combined statements [must] conform[ ] with an exception to the [hearsay] rule.”  As expressed in case law, “each layer of hearsay must satisfy an exception to the hearsay rule.”  Sana v. Hawaiian Cruises, Ltd., 181 F.3d 1041, 1045 (9th Cir. 1999).  This issue of layers of hearsay most often arises in business records or public records.  See, e.g., United States v. Morales, 720 F.3d 1194, 1201-02 (9th Cir. 2013); Sana, 181 F.3d at 1045-46.

Finally, remember that Rule 806 allows impeachment of a hearsay declarant as if the declarant had testified.  For a discussion of this, see the prior post titled, “Another Possibly Overlooked Evidence Rule: Impeaching Those Not Present,” in the October 2014 link at the right.