Evidence Learning Questions - Set 7 Flashcards
Statements by an opposing party (also known as “admissions by a party-opponent”) are considered nonhearsay under the Federal Rules. For a party’s statement or act to qualify as an opposing party’s statement, it must __________.
A
go against that party’s interest at the time it was made
B
be attributable to a party and offered against that party
C
have been within the party’s personal knowledge at the time
D
not be in the form of an opinion
B
To qualify as a “statement by an opposing party,” a party’s statement must be offered against him. (In contrast, if a party introduces his own prior statement into evidence, it may be hearsay.)
Lack of personal knowledge does not necessarily exclude an opposing party’s statement. An opposing party’s statement may even be predicated on hearsay.
An opposing party’s statement need not have been against the party’s interest at the time it was made.
An opposing party’s statement may be in the form of an opinion. The only requirement is that it concern one of the relevant facts.
Under the Federal Rules, a statement by an opposing party offered for the truth of the matter asserted is:
A
Hearsay, and not admissible
B
Nonhearsay
C
Hearsay, but nonetheless admissible as an exception to the hearsay rule
D
Nonhearsay, but only if the party is testifying and subject to cross-examination about her prior statement
B
Although traditionally an exception to the hearsay rule, a statement by an opposing party (also known as an “admission by a party-opponent”) is not hearsay at all under the Federal Rules.
It is immaterial whether the party is a testifying witness. This requirement only applies to the other specific nonhearsay categories under the Federal Rules (prior inconsistent statements, prior consistent statements, and prior statements of identification).
There are three requirements for silence in the face of an accusatory statement to qualify as an admission (also called an “opposing party’s statement”): (1) the party must have heard and understood the statement; (2) the party must have been physically and mentally capable of denying the statement; and (3) __________.
A
There is corroborating evidence that the accusation is true
B
A reasonable person would have denied the accusation under the same circumstances
C
The party must not have denied the accusation at a later time
D
The accusation must have been made by a law enforcement officer
B
For silence to be an admission the following requirements must be met: (i) the party must have heard and understood the statement; (ii) the party must have been physically and mentally capable of denying the statement; and (iii) a reasonable person would have denied the accusation under the same circumstances.
It is immaterial whether the party later denied the accusation, or whether there is corroborating evidence. Additionally, failure to reply to an accusation or statement made by the police in a criminal case can almost never be used as an implied admission of a criminal act.
Under the Federal Rules, a party may be held vicariously responsible for the statement of someone with any of the following relationships to the party:
A
Partner; co-conspirator; co-party; principal-agent
B
Authorized spokesperson; partner; co-conspirator; principal-agent
C
Authorized spokesperson; partner; co-conspirator; co-party
D
Co-conspirator; co-party; principal-agent; authorized spokesperson
B
An admission (i.e., statement attributable to an opposing party) is frequently not the statement or act of the party against whom the admission is offered at trial. A party can be held vicariously liable for statements made by people with the following relationships to the party:
Authorized Spokesperson The statement of a person authorized by a party to speak on its behalf ( e.g., statement by company’s press agent) can be admitted against the party as an admission.
Principal-Agent Statements by an agent concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal. Therefore, if a truck driver-employee has an accident while on the job and admits that she was negligent, this admission may be introduced against her employer even if she was not authorized to speak for the employer.
Partners After a partnership is shown to exist, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others.
Co-Conspirators The Supreme Court has held that admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators.
In contrast, statements of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action.
A defendant is being tried for the murder of a bank teller, which occurred during the robbery of a bank. At trial, a witness, who knew the defendant, is called to testify that on the day after the robbery he saw the defendant buying some groceries, and when the defendant removed a large roll of money, the witness had asked, “You didn’t steal that from someone, did you?” The defendant nodded.
This evidence is:
A Admissible, as an excited utterance.
B Admissible, because it is not hearsay.
C Inadmissible, because it is hearsay not within any exception.
D Inadmissible, because the defendant had no reason to respond to this statement.
B
The nod constitutes nonverbal conduct intended as an assertion and would thus be considered a “statement” for purposes of the hearsay rule. However, this statement constitutes a statement of a party-opponent and hence is not hearsay under Federal Rule 801. (C) is therefore incorrect. Likewise, (A) is incorrect, because (i) an excited utterance is an exception to the hearsay rule and this is not hearsay, and (ii) even if it were hearsay, this does not constitute an excited utterance because the statement was not made during or soon after the startling event and under the stress of that event. (D) is incorrect. The defendant responded to the question with a nod. If the defendant had failed to respond and the prosecutor wished to introduce his silence as an adoptive admission, then it would be necessary to determine whether there was a reason to respond.
A plaintiff sued a defendant for negligence when the tractor that he was driving at a construction site collided with the plaintiff’s car. The plaintiff alleged that she was driving in a proper lane when the tractor collided with her car. The plaintiff’s counsel called the responding police officer to testify that the defendant’s employee made a statement to the police officer, in the defendant’s presence, that the defendant “accidentally went too far into traffic,” and the defendant did not say anything.
Should the trial judge rule that this evidence is admissible?
A Yes, because the employee’s statement is a statement against interest.
B Yes, because silence may be deemed an admission.
C No, because the employee’s statement was hearsay, and the defendant’s silence is also hearsay.
D No, because the employee has not yet testified to his statement.
B
The judge should rule the evidence admissible as an admission. Admissions—statements by or attributable to a party and offered against that party—are not considered hearsay under the Federal Rules. If a party fails to respond to accusatory statements where a reasonable person would have spoken up, his silence may be considered an implied admission. Although it is arguable that a person who may be liable for negligence would reasonably remain silent when in the presence of a police officer, this is the best answer. (D) is wrong because there need be no foundation evidence. (C) is wrong; the silence is deemed the adoption of the employee’s statement. Thus, both the employee’s statement and the defendant’s silence would be admissible. (A) is wrong because the statement against interest exception does not apply here. To fall within the exception, a statement must be against the declarant’s own interest when made—here, the employee’s statement was against the defendant’s interest, not his own. Furthermore, the exception requires the unavailability of the declarant (i.e., the employee), and there is no indication that the employee is unavailable.
During the defendant’s trial for armed robbery, evidence was introduced establishing that a rifle was found in the trunk of the defendant’s car when he was arrested. On direct examination, the defendant testified that when he was arrested and the rifle was found, he stated, “I keep that with me for protection.”
Should the court allow the testimony?
A Yes, because it is a statement of a party.
B Yes, because it is an excited utterance.
C No, because it is hearsay not within an exception.
D No, because it is a self-serving statement.
C
The court should not allow the testimony. The defendant’s testimony is being offered to prove the truth of the matter asserted (i.e., that he keeps the rifle for protection) and is 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. A hearsay problem can arise even if the out-of-court declarant and the in-court witness are the same person, as is the case here. Because the statement is not within any exception to the hearsay rule, it must be excluded. (A) is incorrect because a party’s statement is considered nonhearsay when offered by a party-opponent. This hearsay exclusion does not apply here because the defendant’s testimony was elicited on direct examination—i.e., the defendant was introducing his own statement into evidence. (B) is incorrect because an excited utterance applies only if made in response to a startling event. Although the conditions of the search might have been stressful to the defendant, it is not the type of situation that gives rise to an excited utterance. (D) is incorrect. The fact that a statement is self-serving is not grounds for its exclusion. All of a criminal defendant’s evidence can be considered self-serving in the sense that it furthers his claim of innocence.
A large delivery truck collided with a car. At the time of the accident, the driver of the truck said to the car driver, “The accident was my fault; I wasn’t paying any attention. Don’t worry, my company will make it right.” The delivery company had not authorized the truck driver to make that statement. The subsequent investigation of the accident by the delivery company revealed that the truck driver had been drinking on the day of the accident. He was fired. The car driver brings an appropriate action against the delivery company for damages resulting from the accident. The truck driver has disappeared. The car driver now seeks to testify as to what the truck driver said at the time of the accident.
Is the evidence admissible?
A Yes, as a statement attributable to the defendant.
B Yes, as an excited utterance.
C No, because the truck driver is no longer employed by the delivery company.
D No, because the delivery company had not authorized the truck driver to speak on its behalf.
A
The evidence is admissible. This question raises the issue of whether an employee’s out-of-court statement will be attributed to the employer, and thus considered a statement attributable to a party (i.e., a vicarious admission). The statement can be attributed to the employer, provided (i) it was made while the person was employed by the employer (not before or after the period of employment) and (ii) the statement related to the employment. Thus (A) is correct. The truck driver’s statement was made while he was employed by the delivery company, and it related to his employment since it pertained to an accident that occurred when he was driving a company truck, presumably in the course of employment. Thus, (C) is incorrect. That the truck driver is no longer employed by the delivery company does not bear on the admissibility of his statement; what counts is that he was employed at the time he made the statement. (D) is also incorrect. That the delivery company did not authorize the truck driver to make the statement does not preclude it from being admissible. Although one basis for attributing an employee’s statement to the employer is the employer’s authorization for the employee to speak on its behalf about the matter, that is not the only one. (B) is incorrect because there is little reason to conclude that the truck driver’s statement was an “excited utterance” within the meaning of that hearsay exception. The question does not indicate that the truck driver spoke in an excited manner or that he was agitated. That the truck driver spoke shortly after the accident would not alone be sufficient to make his statement an “excited utterance.”
