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Hearsay (Definitions ((Some) exceptions to "the truth of the matter…

- - - - Assertive: finger pointing or nodding, handing over a shirt with bloodstains, audiotapes
      - Not assertive: photos and videos, machine readouts
- - - - Requirements
        
        The declarant testifies and
        
        is subject to cross-examination about a prior statement (ex. memory loss = subject to cross, claim 5th Am. immunity = not subject to cross
      - Types of admissible statements
        
        (1) Statements that are inconsistent with the witness’s courtroom testimony
        
        Can use Grand Jury testimony (or any statement under oath) to show inconsistent statements for people who feign memory loss to not testify
        
        (2) Statements that are consistent with the witness’s courtroom testimony
        
        (1) the witness’s credibility has been attacked, and
        
        (2) the prior consistent statement helps rehabilitate that credibility
        
        (3) Pretrial identifications of a person (ex. line up or photo array)
    - - Parties cannot introduce evidence of their own statements under this rule—they can only offer evidence of an opponent’s statements
      - Can be a statement made by an agent or employee
      - Spillover (a statement made by one defendant will negatively affect all defendants) can be thwarted by a limiting instruction
      - The Confrontation Clause ("In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him") can be an issue
        
        Limiting instructions are generally good enough to fix this in a civil trial, but cannot cure this if the case is criminal and the defendant chooses not to testify (Bruton). There are three ways to cure it in a criminal trial:
        
        The prosecutor can redact the defendant’s admission so that it does not implicate any other defendants.
        
        A statement that explicitly names a codefendant and implicates that codefendant on its face violates Bruton. The statement cannot be admitted in this form.
        
        A statement that simply replaces the codefendant’s name with blanks or other obvious marks of deletion also violates Bruton. A statement in this form inevitably will tempt the jury to fill in the blanks with the codefendant’s name.
        
        A statement that does not refer explicitly to a codefendant, and that contains no obvious omissions tempting the jury to fill in the gaps, satisfies Bruton. These statements still are admissible only against the defendant who made the out-of-court statement, and the judge will instruct the jury not to consider these statements in connection with any codefendants. The form of the statement makes it plausible that the jury will follow those instructions, resolving the Sixth Amendment concerns raised by Bruton.
        
        The prosecutor can sever the trial and try each of the defendants separately, introducing the out-of-court admission against the defendant who made the statement at that defendant’s trial
        
        The prosecutor can forego use of the statement, relying on other evidence instead
      - Rule 801(d)(2)(E) allows a litigant to introduce the statement of one coconspirator against any other member of the conspiracy, as long as the statement was made during the course of the conspiracy and to further the joint enterprise
        
        Only has to prove that the declarant and the party against whom the statement is offered were members of a common venture
        
        "Conspiracy" is very broad, and basically means "partner in crime." An arrest ends the conspiracy.
        
        Statements after the crime was completed are not conspiracy
        
        Unilateral steps by one conspirator to cover up a crime do not signal an ongoing conspiracy
      - Co-plaintiffs and co-defendants can introduce statements their 'teammate' said (some courts disagree)