Hearsay Issues Most Relevant in Antitrust Cases

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CHAPTER I

HEARSAY ISSUES MOST RELEVANT IN

ANTITRUST CASES

The evidentiary rules governing the use of hearsay evidence generally

require that evidence be presented by personal appearance before the

finder of fact to ensure that the statements are accurate and that the

witness is subject to cross-examination so his or her credibility,

perceptions, and memory can be evaluated. Exceptions to the hearsay

rule permit the introduction of evidence that does not satisfy this

standard but otherwise does have some indicia of reliability. Five

exceptions to the hearsay rule are most relevant in antitrust cases:

coconspirator evidence, because many antitrust cases involve alleged

conspiracies; 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; 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; public records, because they may

contain important statistical data about the markets in issue; and 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. Chapter four discusses admissions and statements

against interest in the context of admissibility of grand jury testimony

when the Fifth Amendment privilege against self-incrimination has been

asserted.

The following Federal Rules of Evidence are relevant to the hearsay

issues discussed below:

Federal Rule of Evidence 801. Definitions

The following definitions apply under this article:

(a) Statement. A “statement” is (1) an oral or written assertion or

(2) nonverbal conduct of a person, if it is intended by the person as

an assertion.

(b) Declarant. A “declarant” is a person who makes a statement.

2 Antitrust Evidence Handbook

(c) Hearsay. “Hearsay” is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence

to prove the truth of the matter asserted.

(d) Statements which are not hearsay. A statement is not hearsay if–

(1) Prior statement by witness. The declarant testifies at the trial

or hearing and is subject to cross-examination concerning the

statement, and the statement is (A) inconsistent with the

declarant’s testimony, and was given under oath subject to the

penalty of perjury at a trial, hearing, or other proceeding, or in a

deposition, or (B) consistent with the declarant’s testimony and

is offered to rebut an express or implied charge against the

declarant of recent fabrication or improper influence or motive,

or (C) one of identification of a person made after perceiving

the person; or

(2) Admission by party-opponent. The statement is offered

against a party and is (A) the party’s own statement, in either an

individual or a representative capacity or (B) a statement of

which the party has manifested an adoption or belief in its truth,

or (C) a statement by a person authorized by the party to make a

statement concerning the subject, or (D) a statement 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, or (E) a statement by a coconspirator of a party

during the course and in furtherance of the conspiracy. The

contents of the statement shall be considered but are not alone

sufficient to establish the declarant’s authority under

subdivision (C), the agency or employment relationship and

scope thereof under subdivision (D), or the existence of the

conspiracy and the participation therein of the declarant and the

party against whom the statement is offered under subdivision

(E).

Federal Rule of Evidence 802. Hearsay Rule

Hearsay is not admissible except as provided by these rules or by other

rules prescribed by the Supreme Court pursuant to statutory authority or

by Act of Congress.

Hearsay Issues 3

Federal Rule of Evidence 803. Hearsay Exceptions: Availability of

Declarant Immaterial

The following are not excluded by the hearsay rule, even though the

declarant is available as a witness:

* * *

(3) Then existing mental, emotional, or physical condition. A

statement of the declarant’s then existing state of mind,

emotion, sensation, or physical condition (such as intent, plan,

motive, design, mental feeling, pain, and bodily health), but not

including a statement of memory or belief to prove the fact

remembered or believed unless it relates to the execution,

revocation, identification, or terms of declarant’s will.

* * *

(5) Recorded recollection. A memorandum or record concerning a

matter about which a witness once had knowledge but now has

insufficient recollection to enable the witness to testify fully and

accurately, shown to have been made or adopted by the witness

when the matter was fresh in the witness’ memory and to reflect

that knowledge correctly. If admitted, the memorandum or

record may be read into evidence but may not itself be received

as an exhibit unless offered by an adverse party.

(6) Records of Regularly Conducted Activity. A memorandum,

report, record, or data compilation, in any form, or acts, events,

conditions, opinions, or diagnoses, made at or near the time by,

or from information transmitted by, a person with knowledge, if

kept in the course of a regularly conducted business activity,

and if it was the regular practice of that business activity to

make the memorandum, report, record or data compilation, all

as shown by the testimony of the custodian or other qualified

witness, or by certification that complies with Rule 902(11),

Rule 902(12), or a statute permitting certification, unless the

source of information or the method of circumstances of

preparation indicate the lack of trustworthiness. The term

“business” as used in this paragraph includes business,