Evidence Learning Questions - Set 8 Flashcards
In certain instances, a party may prove a witness’s prior inconsistent statement by use of extrinsic evidence.
Which statement regarding the permissibility of extrinsic evidence is false?
A
A hearsay declarant’s inconsistent statements may be used to impeach her despite the lack of a foundation.
B
Generally, a witness must be given an opportunity to explain or deny her inconsistent statement.
C
The prior inconsistent statement may concern any matter that casts doubt on the witness’s credibility, whether or not it is related to the case.
D
The prior inconsistent statement must be relevant to the case.
C
To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party’s statement. QUESTION ID: E0004
Under the Federal Rules, when offered to prove the truth of the matter asserted, a testifying witness’s prior inconsistent statement made at a deposition is:
A
Hearsay, but admissible as an exception
B
Not hearsay, as long as the witness is subject to cross-examination
C
Inadmissible hearsay
D
Not hearsay, as long as the witness is given an opportunity to explain or deny the prior statement
B
A testifying witness’s prior inconsistent statement made at a deposition is not hearsay because the statement was made under penalty of perjury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay under the Federal Rules as long as the declarant is now testifying and subject to cross-examination (i.e., willingly responding to questions).
Whether the witness is given an opportunity to explain or deny the inconsistent statement relates to whether extrinsic evidence of the statement can be used to impeach the witness. It does not relate to the hearsay analysis.
A witness testifies on direct examination that he saw defendant’s car go through a red light. On cross-examination, defense counsel asks whether the witness said on another occasion that the light was green when defendant drove through. If offered to prove the truth of the matter asserted, the prior statement is hearsay if it was made:
A
Before a grand jury
B
To a police officer
C
At a deposition
D
At a prior hearing
B
The witness’s prior inconsistent statement is not hearsay if it was made at a deposition, a prior hearing, or to a grand jury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules if the declarant is now testifying and subject to cross-examination.
The statement to the police officer, however, is hearsay. It is an out-of-court statement that was not made under penalty of perjury, and will only be admissible if it falls within a hearsay exception.
Which of the following statements is true regarding the impeachment of a hearsay declarant who is not available to testify at trial?
A
An unavailable hearsay declarant may be impeached, but her credibility may not be rehabilitated.
B
An unavailable hearsay declarant may be impeached, but not with prior inconsistent statements because there is no opportunity for the declarant to explain or deny the statement.
C
An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness.
D
An unavailable hearsay declarant may not be impeached by any method because she is not present at trial.
C
Under Federal Rule 806, the credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. There is no requirement that a declarant must be present at trial to be impeached. If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply. Furthermore, where the declarant’s credibility is impeached, it may also be rehabilitated.
A woman was injured when the car she was driving was struck by a moving truck. The woman brings an action for personal injuries against the moving company. The complaint alleges that the driver was drunk at the time of the accident and that the moving company was negligent in hiring him and permitting him to drive knowing that he had a drinking problem and convictions for drunk driving. The driver is called as a witness by the moving company and is expected to testify that he was not drunk at the time of the accident. Instead, the driver states on direct examination that he had had several beers as he drove his truck that evening and was under the influence of drugs when his truck struck the woman’s car. The counsel for the moving company wants to confront the driver with his deposition testimony that he was completely sober at the time of the accident.
Will this evidence be permitted?
A No, the statement is hearsay not within any recognized exception.
B No, the moving company cannot impeach its own witness.
C Yes, but it may be used only to impeach the driver.
D Yes, it can be used to impeach the driver and as substantive evidence that the driver was sober.
D
The evidence will be permitted to impeach and as substantive evidence. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Furthermore, a prior inconsistent statement made while under oath and subject to penalty of perjury in a deposition or prior hearing is not hearsay under the Federal Rules. (A) is therefore incorrect. (B) is incorrect because the Federal Rules permit a party to impeach its own witness, even if not “surprised.” (C) is incorrect because it is too narrow.
The plaintiff sued the defendant for injuries suffered when the defendant’s car struck the plaintiff as she was crossing a busy intersection. The plaintiff planned to have a bystander who had witnessed the accident testify on her behalf, but he died prior to trial. At trial, the plaintiff called the wife of the bystander to testify that, although she had been facing the other way, she had heard her husband exclaim, “My God, the woman was crossing on the green light!” Over objection, the statement was admitted as an excited utterance. The defendant now wishes to call the bystander’s friend, who is prepared to testify that, a few hours after the accident, the bystander said to him: “You know that accident I saw this afternoon? The driver didn’t run a red light. The light was yellow.”
Should the friend’s testimony be admitted over the plaintiff’s objection?
A Yes, but only to challenge the credibility of the bystander’s earlier inconsistent statement.
B Yes, both for impeachment purposes and as substantive evidence.
C No, because the bystander is not available to explain or deny the statement.
D No, because it is hearsay, not within any recognized exception to the hearsay rule.
A
The friend’s testimony is admissible only to challenge the credibility of the bystander’s earlier inconsistent statement. Because the credibility of a hearsay declarant is as much at issue as the credibility of an in-court witness, Federal Rule 806 allows statements of a hearsay declarant to be impeached to the same extent as those of an in-court witness. Thus, a statement of the declarant made at any time that is inconsistent with his hearsay statement may be offered into evidence for impeachment purposes. Here, the bystander’s hearsay statement (which was admissible as an excited utterance) was testified to by his wife. His subsequent statement to his friend is inconsistent with his hearsay statement and is therefore admissible to discredit that statement. (B) is wrong because the statement is hearsay not within any exception, and thus not admissible as substantive evidence. Under Federal Rule 801(d)(1), a prior inconsistent statement is only considered nonhearsay when (i) the declarant is now testifying at trial and subject to cross-examination and (ii) it was made under penalty of perjury at a prior trial, hearing, or other proceeding, or in a deposition. Here the bystander is not testifying at trial and did not make the statement to the friend under penalty of perjury. so the statement is hearsay. Furthermore, it does not fall within any apparent hearsay exception. (C) is wrong because the general requirement that an impeached witness be given an opportunity to explain or deny an apparently inconsistent statement does not apply to hearsay declarants. Because hearsay statements are often admissible at trial after the declarant has died or is otherwise unavailable, Rule 806 provides that the declarant need not be given an opportunity to explain or deny statements that are inconsistent with the declarant’s hearsay statement. (D) is wrong. While it is true that the statement is hearsay not within an exception (and thus inadmissible as substantive evidence), it is still admissible for the purpose of impeachment.
A defendant is on trial for robbing a liquor store. The store clerk testified that the defendant came into the store at about 11 p.m., pointed a black gun with a silver grip at him, and demanded that he give him all the money in the cash register. The clerk testified that the store was well lit and that the defendant was not wearing a mask. The defendant’s attorney called the clerk’s employer to testify that when the clerk gave her a report of the robbery, he told her that the defendant pointed a silver gun with a black grip at him.
How should the trial judge rule on the admissibility of this testimony?
A Admissible, because it tends to show that the clerk is an unreliable witness.
B Admissible, because it has bearing on the clerk’s truthfulness and veracity.
C Inadmissible, because it is extrinsic evidence of a prior inconsistent statement on a collateral matter.
D Inadmissible, because it is hearsay not subject to any exceptions.
C
The testimony should be found inadmissible. Extrinsic evidence of a prior inconsistent statement may not be used to impeach a witness upon a collateral matter. The clerk testified that he could recognize the defendant’s face, and so the color of the gun is not material to any issue in the case under the facts given. (A) and (B) are incorrect because, even if the evidence does have some bearing on the clerk’s credibility as a witness, it will be excluded because it will possibly confuse the issues or because it is a waste of time. (D) is not correct because the defendant is not seeking evidence to prove the truth of any material issue, but to impeach the clerk. The hearsay rule does not apply.
The plaintiff, an electrical contractor, sued the defendant homeowner for refusal to pay for extensive wiring repairs performed on his home by the plaintiff’s employee. The plaintiff called the employee to the stand. The employee, under oath, testified that he did not perform any work at the defendant’s home. The employee also denied writing a letter to a friend telling the friend that the employee was going to do electrical work on the home. Without releasing the employee as a witness, the plaintiff offers into evidence the letter written by the employee to his friend.
If the employee’s letter to his friend is properly authenticated, should the court admit the letter?
A Yes, for impeachment purposes only.
B Yes, as both substantive and impeachment evidence.
C No, because a party may not impeach his own witness.
D No, because it is inadmissible hearsay.
B
The letter is admissible as substantive evidence as well as for impeachment purposes. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. This may be done by first questioning the witness as to the prior inconsistent statement that he has made. If the witness denies having made the statement or fails to remember it, the making of the statement may be proved by extrinsic evidence. A proper foundation must be laid by giving the witness an opportunity to explain or deny the statement, and it must be relevant to some issue in the case. Here, the plaintiff’s employee has denied that he wrote the letter to his friend. The plaintiff can then impeach the employee by offering the letter into evidence. Because the employee has not been released as a witness, he will have an opportunity to explain or deny the statement, and it is relevant to whether any work was done at the home. Because prior inconsistent statements are generally hearsay, they often are admissible only for purposes of impeachment. The Federal Rules do categorize a testifying witness’s prior inconsistent statement as nonhearsay if it was made under penalty of perjury at a prior trial, hearing, or proceeding, or in a deposition. Here, of course, the employee’s letter to the friend was not made under oath, so it is hearsay. However, it is still admissible as substantive evidence because it falls within an exception to the hearsay rule. Under Rule 803(3), a statement of a declarant’s then-existing state of mind is admissible as a basis for a circumstantial inference that the declarant acted in accordance with his state of mind. [See also Mutual Life Insurance Co. v. Hillmon (1892)] The employee’s statement that he was going to do electrical work on the home is admissible as circumstantial evidence tending to show that he followed through with his plans and did the electrical work, which is what the statement is being offered to establish. In this case, therefore, the letter should be admissible as both substantive and impeachment evidence, making (B) correct and (A) incorrect. (C) is incorrect because the Federal Rules provide that the credibility of a witness may be attacked by any party, including the party calling him. [Fed. R. Evid. 607] (D) is incorrect. The letter is hearsay because it is being offered to prove the truth of the matter asserted—that the employee was going to do electrical work on the home—as a basis for inferring that the employee did do the work. Additionally, it is not categorized as nonhearsay under the Federal Rules because it was not made under oath. However, as discussed above, it falls within the “present state of mind” exception to the hearsay rule.
