Hearsay Flashcards
Hearsay evidence
Susan threw a huge party at her apartment and invited every student from her first-year section of law school. Everyone was having a great time, although several party-goers had too much to drink. One such attendee tripped over the threshold of Susan’s apartment door, fell on his face, and broke his nose. The student sued Susan, asserting that the threshold was a dangerous condition and hadn’t been nailed down properly. Susan’s sole defense is that the student was contributorily negligent because he was intoxicated. The student seeks to introduce evidence that, after the party, Susan nailed down the threshold properly, solely to prove that Susan exerted control over the entryway to her apartment. Susan objects. Is the evidence admissible?
A. YES, if its prejudicial effect is substantially outweighed by its probative value
B. YES, to show that Susan exerted control over the threshold to the apartment.
C. YES, but only to show the repair was feasible
D. NO
D. No Susan did not raise the issue of control, so the evidence cannot be used to show that the repair was feasible. Evidence of subsequent remedial measures is generally inadmissible. While such evidence can be introduced to show ownership or control when ownership or control is contested by the opponent, Susan is not disputing ownership or control over the threshold to her apartment here, her only defense is that the student was contributorily negligent. Likewise, feasibility was not raised as a defense by Susan, so it cannot be used to show that the repair was feasible.
One day, while driving home from work in her Toyota Camry, Carla is involved in a car accident in which her airbag fails to deploy. As a result, Carla is severely injured. Carla sues both the other driver involved in the accident and Toyota. At trial, during the defendant’s case-in-chief, the lead design engineer for the Toyota Camry takes the stand to testify regarding the design of the airbag. On cross-examination, the plaintiff’s attorney asks the engineer to describe the airbag’s deployment system. The engineer describes the mechanism that allows the airbag to detect a collision and the process by which the airbag is deployed. The engineer further states that this has been the same mechanism used in the Toyota Camry since 2006, and that no changes have been made to the Camry’s deployment mechanism since 2006. The plaintiff’s attorney then asks the engineer whether Toyota, in fact, changed the design of the airbag deployment system after the accident in 2015. Defense counsel objects. How should the court rule?
A. SUSTAIN the objection, because the question calls for evidence regarding subsequent remedial measures
B. OVERRULE the objection, if the evidence is being solely used for impeachment purposes Correct
C. OVERRULE the objection, because the feasibility of the repair was not contested
D. SUSTAIN the objection, because the evidence is irrelevant
B. OVERRULE the objection, if the evidence is being solely used for impeachment purposes CorrectSubsequent remedial measures are generally inadmissible under Rule 407. But when evidence of a subsequent remedial measure is used to impeach a witness on the stand, it is allowed.
Personal injury action by P against D following an auto accident. P claims she suffered a back injury. To prove that she had sustained a back injury, P calls H, her husband, to testify that almost every day for six months after the accident, P said to him, “My back is killing me.” D objects that this statement is inadmissible because it is hearsay. Is this statement admissible?
Select one:
A. YES, as an opposing party’s statement (i.e., an admission by a party opponent)
B. YES, because it does not meet the definition of hearsay
C. YES, as a present-sense impression
D. YES, under the exception for then-existing mental, emotional, or physical condition
D. YES, under the exception for then-existing mental, emotional, or physical condition CorrectThis statement is hearsay and is covered by the exception for then-existing mental, emotional, or physical condition under Rule 803(3). The statement describes the declarant’s then-existing physical condition–that is, her pain.
NOTE: This question and the following question are based on the same fact pattern.
Dr. Burns performed surgery on Walter. As was customary, nurse Houlihan kept track of how many sponges Dr. Burns placed inside Walter during the surgery to insure that Dr. Burns removed all the sponges by the end of the surgery. As Dr. Burns was finishing the surgery, nurse Houlihan told him, “The sponge count came out wrong—there is one sponge unaccounted for.” Dr. Burns said nothing and completed the operation without searching for the sponge. Days later, Walter developed a severe infection. Dr. Pierce operated on Walter and discovered that Dr. Burns indeed had left a sponge inside Walter, and this sponge was the source of Walter’s infection. Walter sued Dr. Burns for malpractice. To show that Dr. Burns was negligent for failing to check for the sponge, Walter offers nurse Houlihan’s testimony about what she told Dr. Burns. Dr. Burns objects based on hearsay. Does nurse Houlihan’s statement meet the definition of hearsay?
A. NO, because she testified as to her statement at trial, so it is an in-court statement rather than an out-of-court statement
B. NO, because Walter is not using nurse Houlihan’s statement for its truth but instead to show its effect on Dr. Burns
C. YES, unless the statement was made for—and was reasonably pertinent to—medical diagnosis or treatment
D. YES, because it is an out-of-court statement used to prove the truth of the matter asserted
B. NO, because Walter is not using nurse Houlihan’s statement for its truth but instead to show its effect on Dr. Burns
NOTE: This question and the previous question are based on the same fact pattern.
Dr. Burns performed surgery on Walter. As was customary, nurse Houlihan kept track of how many sponges Dr. Burns placed inside Walter during the surgery to insure that Dr. Burns removed all the sponges by the end of the surgery. As Dr. Burns was finishing the surgery, nurse Houlihan told him, “The sponge count came out wrong—there is one sponge unaccounted for.” Dr. Burns said nothing and completed the operation without searching for the sponge. Days later, Walter developed a severe infection. Dr. Pierce operated on Walter and discovered that Dr. Burns indeed had left a sponge inside Walter, and this sponge was the source of Walter’s infection. Walter sued Dr. Burns for malpractice. To show that Dr. Burns was negligent for failing to check for the sponge, Walter offers nurse Houlihan’s testimony about what she told Dr. Burns. Dr. Burns objects based on hearsay. Assume for this question only that the court concludes that nurse Houlihan’s statement meets the definition of hearsay. Which one of the following statements reflects Walter’s best argument that nurse Houlihan’s statement is nonetheless not hearsay?
A. Nurse Houlihan’s out-of-court statement was consistent with her in-court testimony.
B. Dr. Burns’s failure to respond to Nurse Houlihan’s statement was so unreasonable that it supports the inference that Dr. Burns agreed with the statement.
C. Nurse Houlihan was involved in the surgery and made her statement in furtherance of Dr. Burns’s malpractice.
D. Nurse Houlihan’s statement described an event made while or immediately after she perceived it.
B. Dr. Burns’s failure to respond to Nurse Houlihan’s statement was so unreasonable that it supports the inference that Dr. Burns agreed with the statement.
Jacqueline Morrow worked for MD Anderson for 20 years. In the course of her employment, Jacqueline embezzled over $60,000 from the hospital. After discovering the missing funds, MD Anderson informed the Harris County District Attorney’s Office. Following an investigation, Jacqueline was indicted for the crime. At the time of the indictment, Jacqueline was 55 years old and extremely scared about the possibility of serving prison time. Jacqueline went to her former boss at MD Anderson to discuss the charges against her and try to negotiate a plea for a reduced charge. Jacqueline admitted guilt, but explained that she only did it to ensure her son could attend college. Jacqueline’s former boss refused to say anything and ordered Jacqueline off of the property. The DA seeks to introduce Jacqueline’s statements to her former boss into evidence at trial. Defense counsel objects. How should the court rule?
A. SUSTAIN the objection, as a statement made during plea negotiations
B. SUSTAIN the objection, because the statement’s prejudicial effect substantially outweighs its probative value
C. SUSTAIN the objection, because the evidence does not meet the test for relevant evidence
D. OVERRULE the objection
D. OVERRULE the objection CorrectWhile statements made to prosecutors in the course of plea negotiations are generally not admissible against a defendant at trial under Rule 410, statements made to others (such as the defendant’s boss) are not excluded under the rule. Jacqueline’s admission of guilt is certainly relevant, and the danger of unfair prejudice does not substantially outweigh its probative value.
Fracme Energy Company was exploring for oil using a technique called hydraulic fracturing, or “fracking.” Monica owned a business nearby. Monica sued Fracme for private nuisance, alleging that Fracme’s fracking activities caused tremors in the ground that damaged her building. Monica hired a scientist named Enrique to measure the tremors with a seismograph, which is an instrument that measures and records details of tremors and earthquakes. At the trial, Monica’s attorney called Enrique as a witness and asked him, “On June 12 at 1:00 p.m., what did your seismograph say?” To prove that there was a tremor of magnitude 4.0 at that time, Enrique planned to testify: “The seismograph said that there was a tremor of magnitude 4.0 at that time.” Fracme’s attorney replied, “Objection . . . calls for hearsay.” How should the judge rule on the objection?
A. SUSTAIN the objection, because Enrique is testifying as to an out-of-court statement
B. OVERRULE the objection, because the present-sense-impression exception applies
C. SUSTAIN the objection, because too much time has elapsed for the present-sense-impression to apply
D. OVERRULE the objection, because the seismograph cannot be a declarant
D. OVERRULE the objection, because the seismograph cannot be a declarant
Under Rule 801(b), a declarant must be a person, and a seismograph is not a person. Nor was any person making any statements through the seismograph—it was merely operating as a machine on its own. Enrique’s testimony is thus his description of an event of which he had personal knowledge.
Question 8 Incorrect Mark 0.00 out of 1.00 Not flaggedFlag question Question text Don was convicted of possession of an unregistered machine gun. The government alleged he had altered a semiautomatic rifle so it would discharge more than one shot per trigger pull—the defining characteristic of a machine gun. The key question was whether the rifle would in fact rapid-fire. The government and Don each had their own experts test-fire it. In the government’s test, the rifle did fire more than one shot per trigger pull, but when Don’s expert (witnessed by two police officers) tested it, it didn’t. Don’s expert suggested the gun may have fired automatically in the government’s test because the internal parts were dirty, worn, or defective. In response, the government attempted to introduce a photo of the rifle which, it argued, showed the rifle was neither dirty, worn, nor defective. The defendant objected, arguing that the photo was irrelevant because it showed nothing of the gun’s interior and that the rifle in question only took up a small part of the photograph—the rest of the photo contained several other weapons including nine other guns and several knives belonging to Don’s roommate. How should the court rule?
A. SUSTAIN the objection, because the photo fails to meet the test for relevant evidence in that an exterior picture of the gun presents no probative evidence of the cleanliness of the gun’s internal parts
B. SUSTAIN the objection, because although the photo meets the test for relevant evidence, the danger of unfair prejudice substantially outweighs its probative value
C. SUSTAIN the objection, because although the photo meets the test for relevant evidence, the probative value does not outweigh the prejudicial effect
D. OVERRULE the objection, because the photo meets the test for relevant evidence, and the probative value outweighs the danger of unfair prejudice
B. SUSTAIN the objection, because although the photo meets the test for relevant evidence, the danger of unfair prejudice substantially outweighs its probative value
John Richardson and Meg Anderson contracted for Meg’s dog-grooming company, “Perfect Pets,” to provide grooming services to John’s veterinary clinics across Houston. Within several months of the initial agreement, John began fielding complaints from the vet offices that dogs were being sloppily groomed. John sued Perfect Pets for breach of contract. John also sued “Groomers R Us,” the company that trained the groomers for Perfect Pets. Meg and John and their counsel met and agreed to settle their case. As a result of the settlement, Perfect Pets did not pay any monetary damages, but as the owner, Meg agreed to hire better groomers and to testify in John’s trial against Groomers R Us. At the trial between John and Groomers R Us, Meg testifies for John. After her testimony, counsel for Groomers R Us seeks to introduce evidence of the settlement agreement between John and Perfect Pets. John objects that the evidence is irrelevant. How should the judge rule?
A. OVERRULE the objection, if the evidence is not offered to show liability
B. SUSTAIN the objection, because evidence of settlement negotiations is inadmissible as a policy matter
C. OVERRULE the objection, if the probative value of the evidence outweighs its prejudicial effect
A. OVERRULE the objection, if the evidence is not offered to show liability
Theresa Grady, Peter Dumont, Daniel Burns, and Colleen First, the “St. Patrick’s Day 4,” were arrested, charged, and tried for destruction of property. The four entered a U.S. Army recruiting center on March 17, got on their knees, prayed for peace, and poured samples of their own blood onto the floor and desks as a protest against the Iraq war. The state government offered the testimony of Sergeant Raul Rodriguez, who was present at the center and witnessed the demonstration. At the state-court level, the St. Patrick’s Day 4 were all acquitted. The four were subsequently indicted on federal conspiracy charges of conspiracy to intimidate a federal officer based upon the same facts. At the federal level, if the federal government offers a transcript of Sergeant Rodriguez’s earlier state court testimony at the federal trial, the evidence should be:
A. ADMISSIBLE, provided that Sergeant Rodriguez is available at the federal trial to be cross examined concerning his earlier testimony.
B. ADMISSIBLE, provided that Sergeant Rodriguez was sworn to tell the truth whether he was cross examined or not.
C. ADMISSIBLE, if Sergeant Rodriguez is unavailable to testify at the federal trial
D. ADMISSIBLE, but only if the federal prosecutors were in privity with the state prosecutors
C. ADMISSIBLE, if Sergeant Rodriguez is unavailable to testify at the federal trial
Bob and Alice robbed a bank together. After the robbery, police detectives apprehended and arrested Bob and Alice. While under interrogation, Alice told the detectives that she was the mastermind of the crime, but that Bob was also involved. Alice died while in custody. Bob was charged and tried for bank robbery. The prosecution sought to introduce Alice’s statement to the detectives to prove that Bob was involved with the robbery. Bob objects. How should the judge rule on this objection?
A. OVERRULE the objection, because Alice’s statement is admissible as a statement against interest
B. OVERRULE the objection, because Alice’s statement is admissible as an opposing party’s statement (i.e., admission by a party opponent) under the co-conspirator rule
C. OVERRULE the objection, because Alice’s statement is not hearsay
D. SUSTAIN the objection, because the admission of Alice’s statement would violate the Confrontation Clause
D. SUSTAIN the objection, because the admission of Alice’s statement would violate the Confrontation Clause
Civil action for battery by Plaintiff against Zed and Corporation. Plaintiff alleges that Zed, who worked as a security guard at Corporation headquarters, committed battery when she forced Plaintiff to submit to an invasive full-body search in the lobby of the building before allowing Plaintiff to take an elevator to a Corporation office. The state also filed criminal assault and battery charges against Zed. At that trial, the prosecution called Witness, who testified that she observed Zed’s search of Plaintiff. Zed cross-examined Witness, seeking without success to get Witness to admit that Zed did not conduct the invasive search alleged by the government. Zed was acquitted. Witness died before the civil action came to trial. In the civil trial, Plaintiff now offers against Corporation the transcript of Witness’s testimony from the criminal trial. Assume Plaintiff claims Corporation is liable on a theory of respondent superior. Corporation raises a hearsay objection. How should the court rule?
A. SUSTAIN the objection, because Corporation was not a party at the criminal trial
B. SUSTAIN the objection, because Zed was acquitted
C. OVERRULE the objection, because Witness’s prior testimony is admissible under the former-testimony exception if the court concludes that Zed was Corporation’s predecessor in interest
D. OVERRULE the objection, because Witness’s prior testimony is admissible as a statement of prior identification
C. OVERRULE the objection, because Witness’s prior testimony is admissible under the former-testimony exception if the court concludes that Zed was Corporation’s predecessor in interest
On May 1 at the corner of First Avenue and Main Street, Stan shot Oleg, who died as a result. Right before the shooting, an eyewitness named Elizabeth standing at Second Avenue and Main Street saw Stan walking down the street carrying a large knife with a red handle. On July 1, Elizabeth was chatting with her daughter, Paige, who had just come home from college. She mentioned to Paige that on May 1, she had seen someone walking down the street carrying a large knife with a red handle. Stan was charged with murder, and his trial began on November 1. At Stan’s trial, the prosecution called Elizabeth as a witness to testify as to what she had seen, and she testified that she saw someone walking down the street carrying a large knife with a red handle. On cross-examination, Stan’s attorney asked Elizabeth, “Isn’t it true that on June 1, someone from the prosecutor’s office offered you a bribe in exchange for testifying the way you just did?” The prosecutor later calls Paige and offers her testimony that on July 1, Elizabeth told him that she had seen someone walking down the street on May 1 carrying a large knife with a red handle. Stan’s attorney objects based on hearsay. How should the judge rule on this objection?
A. OVERRULE the objection, because the prosecution could properly use Paige’s testimony about Elizabeth’s statement to rebut Stan’s express charge that Elizabeth acted from a recent improper influence
B. OVERRULE the objection, because Elizabeth’s out-of-court statement to Paige consisted of words of independent legal significance or was a verbal act
C. SUSTAIN the objection, because Elizabeth made her out-of-court statement after the alleged bribe
D. SUSTAIN the objection, because Elizabeth did not make her out-of-court statement under penalty of perjury at a trial, hearing, or other proceeding or in a deposition
C. SUSTAIN the objection, because Elizabeth made her out-of-court statement after the alleged bribe
Gilfoyle was charged with robbing a bank. A week after the robbery, a witness named Dinesh picked Gilfoyle out of a photographic array and told Detective Bachman that Gilfoyle was the bank robber. A month later, the police caught Gilfoyle and asked Dinesh to identify him from an in-person lineup. During this lineup, Dinesh was very uncertain as to the identity of the robber, and he ended up identifying a police-department employee who was merely filling out the lineup but had nothing to do with the robbery. As a result, the prosecution decided not to call Dinesh as a witness, and Dinesh did not attend Gilfoyle’s trial. At the trial, the prosecution calls Detective Bachman and seeks to offer his testimony that Dinesh picked Gilfoyle out of the original photographic array and identified Gilfoyle as the bank robber. Gilfoyle objects. Is Dinesh’s statement to Detective Bachman hearsay?
A. NO, because Dinesh’s statement is inconsistent with his statement at the in-person lineup and is therefore excluded from being hearsay
B. NO, because Dinesh’s statement identifies a person as someone he perceived earlier and is therefore excluded from being hearsay
C. YES, but it is admissible under the exception for a statement that identifies a person as someone the declarant perceived earlier
D. YES, and the exclusion for a statement identifying a person as someone the declarant perceived earlier does not apply
D. YES, and the exclusion for a statement identifying a person as someone the declarant perceived earlier does not apply
Dryden is tried on a charge of driving while intoxicated. When Dryden was booked at the police station, a videotape was made that showed him unsteady, abusive, and speaking in a slurred manner. The prosecution offers this videotape as evidence of Dryden’s intoxication. What should the judge decide with respect to this evidence?
A. ADMIT the evidence, because although it meets the definition of hearsay, it is an opponent party’s statement (i.e., admission by a party opponent)
B. ADMIT the evidence, because it does not meet the definition of hearsay
C. EXCLUDE the evidence, because it is assertive conduct
D. EXCLUDE the evidence, because its admission would violate Dryden’s Confrontation Clause rights
B. ADMIT the evidence, because it does not meet the definition of hearsay
