Hearsay AND Exclusions_1

Is the statement one made by a declarant outside of the trial or hearing and offered in evidence to prove the truth of the matter asserted? 801(c)
1. No? Admissible, unless some other rule prohibits its use
2. Yes? The statement is hearsay; consider possible bases for admissibility
  1. Is there a non-hearsay purpose?
    1. No? Consider exceptions under 803 and 804
    2. Yes? Permitted for its non-hearsay purpose; but not permitted to prove the truth of the matter asserted, unless an exception or exclusion applies; also consider 403, or whether some other rule would bar its use
    3. Yes? Does a Hearsay EXCLUSION apply?
      1. 1. Prior Statement by witness: Is the statement a prior statement by the witness who is presently testifying and who is now subject to cross concerning the statement? 801(d)(1)
        Yes? Is the prior statement inconsistent with the declarant's testimony?
        Yes? Was the prior statement given under oath? 801 (d)(1)(a)
        Yes? Admissible as proof of the truth of the matter asserted 801 (d)(1)(A)
        No. Admissible for impeachment purposes only (613) (NOTE: Extrinsic evidence of a prior inconsistent statement is admissible only if the witness is afforded an opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.) 613(b)
        No? Is the statement consistent with the declarant's testimony and is it being offered to rebut a charge of recent fabrication? 801(d)(1)(B)
        Yes? Admissible.
        No? Is the statement one that identifies a person as someone the declarant perceived earlier? 801(d)(1)(C)
        Yes? Admissible
        No? Inadmissible, unless another exclusion or exception to the hearsay rule applies
        No? Inadmissible, unless another exception or exclusion to the hearsay rule applies
      2. 2. Admission by Party Opponent: Is the statement being offered against a party? 801 (d) (2)
        No? Inamissible, unless another exception or exclusion to the hearsay rule applies
        Yes? Is the statement the party's own statement, in either an individual or representative capacity? 801(d)(2)(A)
        Yes? Admissible
        No? Is the statement one that the party has adopted? 801 (d)(2)(B)
        Yes? Admissible
        No? is the statement made by a person authorized by the party to make a statement concerning the subject? (C), OR one made by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship? (D), OR, one made by a co-conspirator of a party during the course of and in furtherance of the conspiracy? (E) NOTE: In establishing authority, agency or employment relationship, or existence of conspiracy, the contents of the statement shall be considered but are not alone sufficient to establish these preliminary facts. 801(d)(2)

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Hearsay AND Exclusions_1

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