Hearsay Issues Most Relevant in Antitrust Cases

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CHAPTER I

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

statement.

(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

Hearsay is not admissible unless any o f the following provides

otherwise:

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

knowledge;

(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;