Hearsay Issues Most Relevant in Antitrust Cases

The rule against hearsay generally requires that evidence be presented by
personal appearance before the finder of fact. This ensures that a witness
is subject to cross-examination so that his or her credibility, perceptions,
and memory can be evaluated. Exclusions and exceptions to the hearsay
rule permit the introduction of evidence that does not satisfy this
standard but otherwise does have some indicia of reliability. Exclusions
and exceptions to the hearsay rule for the following five types of
evidence are most relevant in antitrust cases: (1) coconspirator
statements, because many antitrust cases involve alleged conspiracies;
(2) state of mind, because the declarant’s reasons for buying, selling, or
acting in a particular way are often highly pertinent to issues of market
definition, market power, coercion, or causation; (3) business records,
because parties often refer to corporate business or strategic plans, as
well as regularly prepared memoranda, in presenting evidence of actual
or anticipated competitive effects; (4) public records, because they may
contain important statistical data about the markets at issue; and (5) prior
testimony, because many antitrust cases are preceded by other, related
litigation. The discussion of the prior testimony exception also considers
prior inconsistent statements, prior consistent statements, and past
recollection recorded.
The following Federal Rules of Evidence are relevant to the hearsay
issues discussed in this chapter:
Federal Rule of Evidence 801. Definitions That Apply
to This Article; Exclusions from Hearsay
(a) Statement. “Statement” means a person’s oral assertion,
written assertion, or nonverbal conduct, if the person
intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant do es not make while testifying at the
current trial or hearing; and
2 Antitrust Evidence Handbook
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
(d) Statements That Are Not Hearsay. A statement that
meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The
declarant testifies and is subject to cross-examination
about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and
was given under penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition;
(B) is consi stent with the declarant’s testi mony and
is offered to rebut an express or implied charge
that the declarant recently fabricated it or acted
from a recent i mproper influence or motive in so
testifying; or
(C) identifies a person as someone the declarant
perceived earlier.
(2) An Opposing Party’s Statement. The stateme nt is
offered against an opposing party and:
(A) was made by the party in an individual or
representative capacity;
(B) is one the party manifested that it adopted or
believed to be true;
(C) was made by a person whom the party
authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a
matter within the scope of that relationship and
while it existed; or
(E) was made by the party’s coconspirator during
and in furtherance of the conspiracy.
The statement must be considered but does not by itself
establish the declarant’s authority under (C); the existence or
scope of t he relationship under (D); or the existence of the
conspiracy or participation in it under (E).
Federal Rule of Evidence 802. The Rule Against
Hearsay is not admissible unless any o f the following provides
Hearsa y Issues Most Relevant in Antitrust Cases 3
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Federal Rule of Evidence 803. Exceptions to the Rule
Against Hearsay Regardless of Whether the
Declarant Is Available As a Witness
The following are not excluded by the rule against
hearsay, regardless of whether the declarant is
available as a witness:
* * *
(3) Then-Existing Menta l, Emotional, or Physical
Condition. A statement of the declarant’s t hen-
existing state of mind (such as motive, intent, or plan)
or emotional, sensory, or physical condition (such as
mental feeling, pain, or bodily hea lth), but not
including a statement of memory or belief to prove
the fact remembered or believed unless it re lates to
the validity or terms of the declarant’s will.
* * *
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but
now cannot recall well enough to testify fully
and accurately;
(B) was made or adopted by the witness when the
matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be
received as an exhibit only if offered by an adverse party.
(6) Records of Regularly Conducted Activity. A
record of an act, event, co ndition, opinion, or
diagnosis if:
(A) the record was made at or near the time by or
from information trans mitted by someone with
(B) the record was kept in the course of a regularly
conducted activity of a business, organization,
occupation, or calling, whether or not for profit;

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