Hearsay

Question 1

How to approach hearsay:

• isolate statement
• who made statement?
• is it offered for its truth (to prove contents of statement) or not?
• can it be admitted under an exemption or exception?

Answer 1

That’s it.

Question 2

What are hearsay exemptions?

Answer 2

Hearsay exemptions are non-hearsay (aka “admissible because not hearsay.”)

These include: admission by a party-opponent and certain prior statements by a testifying witness.

Question 3

What is hearsay?

Answer 3

Hearsay: is an out-of-court statement of a person (oral or written) AND it is offered to prove the truth of the matter asserted.

• Out-of-court statement = any statement except what was made at witness stand during the present trial
• Person = cannot be electronic statement (date signs) or clock

Offered to prove the truth of the matter asserted means to identify if the proposition is to prove and identify the fact/belief asserted.

Question 4

Trial concerning accident: D asserts that P died instantly in the car crash that D is not liable for. Witness on the stand proposes to testify that shortly after the accident, P said: “D’s car ran the red light.”

Hearsay if offered to prove who ran the red light?

Answer 4

“D’s car ran the red light.”

Is it an out-of-court statement? Yes, occurred at accident scene.

Prove truth of matter asserted? Yes, D is saying that he is not responsible for the crash but running a red light indicates otherwise.

Question 5

Trial concerning accident: D asserts that P died instantly in the car crash that D is not liable for. Witness on the stand proposes to testify that shortly after the accident, P said: “D’s car ran the red light.”

Hearsay if offered to prove P was alive following the accident?

Answer 5

“D’s car ran the red light.”

Is it an out-of-court statement? Yes, occurred at accident scene.

Prove truth of the matter asserted? No, P being alive or dead after the crash isn’t relevant to D’s culpability - just to damages. So this is not hearsay.

Question 6

G sued B for breach of an oral contract. Witness takes the stand and proposes to testify as follows: “I heard B say to G - ‘I accept your offer.’” Hearsay?

Answer 6

This is not hearsay because words of acceptance (contracts) are legally operative. Legally operative facts are NOT hearsay. This also includes contract offer or cancellation, making a gift, bribes, perjury, fraud, defamation, and words accompanying ambiguous acts.

Question 7

S is charged with the murder of her husband B. To prove motive, prosecutor seeks to introduce an anonymous note to S that was found in her possession at time of her arrest. The note stated, “B is having an affair with P.”

Hearsay?

Answer 7

This is not hearsay because it is offered to show motive. It is an out-of-court statement but it falls outside the hearsay exception because it does not meet the second element - is about motive (effect on S), and not on whether S killed her husband B.

Question 8

H is prosecuted for murder. Defense: Insanity.

Witness for H proposes to testify: “Two days before the killing, H said, ‘I am Elvis Presley. It’s good to be back.’”

Hearsay?

Answer 8

This is not hearsay because it is offered as circumstantial evidence of declarant’s state of mind.

Question 9

T/F: Generally, a witness’s own prior statement, if not offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception applies.

Answer 9

True.

Question 10

Prosecution of D for robbery. D takes the stand in his own defense and testifies:

1. “I didn’t do it.”
2. “And I told the cops when they arrested me that I didn’t do it.”

Should (1) and (2) be excluded as hearsay?

Answer 10

(1) D is on the stand saying this so it is not an out-of-court statement. Hearsay requires an out-of-court-statement that is offered to prove the truth of the matter asserted.
(2) This statement is an out-of-court statement (what he told the police when arrested, not on the witness stand right now) and it is offered to prove the truth of the matter asserted (that he is not guilty of robbery.)

Question 11

What prior statements of a testifying witness are excluded from the definition of hearsay?

Answer 11

• prior statement of identification
• prior inconsistent statement IF made under oath and during a formal trial, proceeding, or deposition
• prior consistent statement offered to rehabilitate the witness

Question 12

P was struck by a car driven by D. W witnessed the accident and said that P looked sober as he crossed the street. At trial, W testifies for P, “He looked sober as he crossed the street.”

On cross-examination, W is asked whether she was having memory problems due to a medication she was taking, to which she answers, “No.” On re-direct, may W properly testify that she told the police that P looked sober?

Answer 12

Yes, W may testify that she told the police that P looked sober. This is non-hearsay because it’s based on W’s prior statement and it is to rehabilitation because her credibility (memory) was attacked.

Question 13

What is rehabilitation?

Answer 13

Rehabilitation is (i) when a character witness is permitted to provide reputation or opinion testimony about witness’s good character for truthfulness when the opponent attacks it; and (2) permitting prior consistent statements when witness is charged with fabrication based on a recent motive or improper influence and statement was from before the motive arose OR rehabilitates a witness impeached on another ground.

Question 14

What is an opposing party’s statements?

Answer 14

It is any statement made by a party is admissible against that party. (You say something, it’ll be used against you.) This is called non-hearsay.

Personal knowledge is not required and the statement need not be against interest when made. Declarant also does not need to be available.

Question 15

What is vicarious opposing party statements?

Answer 15

Certain statements by some person are admissible against a party because of the relationship between them, such as:

• statement by agent/employee admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the agency/employment
• statement of co-conspirator admissible against party if made during and in furtherance of the conspiracy

Question 16

D, the truck driver, smashed into P’s house while on the run for Acme Trucking, his employer. D descended from the vehicle and told P, “Sorry for wrecking your home. I guess I took my eyes off the road. I was reaching down to get a beer and a joint.” In P vs. Acme Trucking, is D’s statement admissible against Acme?

Answer 16

Yes, D’s statement is admissible against Acme.

It is admissible because it is a statement by the employee that concerns matter within scope of employment (how he drives) and is made during the employment (was an employee when he made the statement).

Question 17

B vs. Acme Trucking. B offers a statement of D, an Acme truck driver, who told her over drinks one night, “I know Acme has a policy against hiring women no matter how qualified they are.” D’s statement is inadmissible because:

Answer 17

His statement is inadmissible because it did not concern a matter within the scope of his employment (he’s a truck driver, not in the company’s HR).

Question 18

What is a declaration against interest?

Answer 18

A statement against interest is when an unavailable declarant’s statement is against his pecuniary, property, or penal interest. Personal knowledge is required. Declarant does not need to be a party to the action.

Question 19

Bus passengers A and B were seriously injured. A sued Bus Co., alleging negligence by bus driver. At trial, witness testified for A that bus driver was intoxicated at time of accident. After, witness died. B now sues Bus Co. and seeks to admit a transcript of witness’s former testimony.

Admissible?

Answer 19

This is admissible hearsay because it falls under the former testimony hearsay exception. The former testimony of a now-available witness (from death, illness, absence from jurisdiction, lack of memory, stubborn refusal, privilege), if given at a former proceeding or in a deposition, is admissible against a party who had a prior opportunity and motive to cross-examine or develop the testimony of the witness.

Question 20

Bus passengers A and B were seriously injured. A sued Bus Co., alleging negligence by bus driver. At grand jury, witness testified that bus driver was intoxicated at time of accident. After, witness died. Bus driver is prosecuted for DWI. Prosecutor seeks to admit a transcript of the witness’s grand jury testimony.

Admissible?

Answer 20

This is inadmissible hearsay because there is no cross-examination or opportunity to develop the testimony of the now-deceased witness due to the grand jury. The confrontation clause of the 6th Amendment would also preclude admissibility.

Question 21

T/F: In criminal cases, statements against penal interest must be corroborated.

Answer 21

True.

Question 22

What is a dying declaration?

Answer 22

A dying declaration is a statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death.

Criminal case: only relevant hearsay exception in homicide cases

Civil cases: relevant hearsay exception

Question 23

Prosecution of D for bank robbery. At the scene, a bank officer spoke with wounded teller, who gasped: “I’m a dead man. Get me a priest, D shot me as he made his getaway.” T then lapsed into a coma from which he has not emerged. May the bank officer testify to T’s statement as a dying declaration?

Answer 23

The bank officer may not testify as to T’s dying statement because dying declarations are only hearsay exceptions in criminal homicide cases - not bank robbery.

Question 24

Prosecution of D for bank robbery. At the scene, a bank officer spoke with wounded teller, who gasped: “I’m a dead man. Get me a priest, D shot me as he made his getaway.” T then lapsed into a coma from which he has not emerged. May the bank officer testify to T’s statement as a dying declaration in a civil action?

Answer 24

Yes, the bank officer may testify as to T’s dying declaration because dying declarations are admissible hearsay in civil cases.

Question 25

What is an excited utterance?

Answer 25

An excited utterance is a hearsay exception and concerns a statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event.

Look for exclamation points.

*Declarant does not have to be unavailable.

Question 26

What is a present sense impression?

Answer 26

A present sense impression is a hearsay exception, in which a person gave a description of an event made while the event is occurring or immediately after. No time to fabricate.

Declarant does not have to be unavailable.

Question 27

P alleges that D is the hit-and-run driver who struck him. P testifies, “I saw a silver Acura speeding away. A couple seconds later, some unknown bystander told me he saw the Acura and its license plate number was ‘007’.”

Is this admissible hearsay?

Answer 27

Yes, this is admissible hearsay because it is a present sense impression. This is a description of the event made immediately after the event occurred.

Question 28

Probate of W’s will: W’s family challenges the will on the ground that W was insane when she executed it. Pet cemetery offers testimony that a few days before execution of the will, W said to her friend, “I do not love my family anymore.”

Admissible over hearsay objection?

Answer 28

Yes, this is admissible because this concerns the speaker’s state of mind (present) a few days before executing the will.

Question 29

T/F: Contemporaneous statement concerning declarant’s own present state of mind, feelings, emotions, or physical condition are admissible hearsay.

Answer 29

True. This can also include declarant’s intent to do something in the future.

Question 30

S died and her family sues Life Insurance Co. for non-payment of the policy proceeds. Defense: Suicide. Life Insurance Co. seeks to introduce a note found in S’s apartment (in S’s handwriting) in which she said, “I’m going to end it all next week.”

Is this admissible hearsay?

Answer 30

Yes, this is admissible hearsay because it is contemporaneous statement that gives the declarant’s state of mind and intent to do something (kill herself) in the future. Thanks for the real chipper example, Barbri. Assholes.

Question 31

P, whose arm was broken in accident with D, sues for damages for pain and suffering. P may testify about the pain she experienced, but P also calls neighbor to testify:

(1) “I was with P last July when she said, “I’m feeling a lot of pain in my arm” and again
(2) in December she said, “I sure did feel a lot of pain in my arm last July.”

Are both statements admissible over hearsay objections?

Answer 31

(1) The first statement, “I’m feeling a lot of pain in my arm” is a statement on present physical condition and is admissible hearsay.
(2) “I sure did feel a lot of pain in my arm last July” is not a contemporaneous statement with a physical condition. It is inadmissible.

Question 32

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 __________.

Answer 32

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.)

Personal knowledge is not required and it does not need to be 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.

Question 33

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

Answer 33

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.

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).

Question 34

There are three requirements for silence in the face of an accusatory statement to qualify as an adoptive statement of an opposing party: (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) __________.

Answer 34

For silence to be admissible as an opposing party’s statement, 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. *Not for criminal cases

Question 35

A statement may be attributable to an opposing party without being made by that party in an individual capacity. A party can be held vicariously liable for statements made by people in what types of relationships?

Answer 35

1. Authorized spokesperson: (e.g., statement by company’s press agent) can be admitted against the party.
2. 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.
3. Partners: After a partnership is shown to exist, a statement 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.
4. Co-conspirators: statements 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.

Question 36

Personal injury case: P offers hospital records, which include statement of surgeon, “Surgery to repair broken arm partly successful. Neurologist reports surgery could not repair severed nerve.”

Admissible?

Answer 36

Yes, this is admissible because there was a business duty to report and it’s in a business record at or near the time of the event recorded.

Question 37

Personal injury case: P offers hospital records, which include statement of surgeon, “Surgery to repair broken arm partly successful. Neurologist reports surgery could not repair severed nerve.”

P then offers another part of hospital records, which state “P admitted with broken arm. P reports he was hit by car driven by someone with a suspended license.” Is this second paragraph admissible?

Answer 37

No, this is inadmissible. No independent duty to report what patient says unless for medical diagnosis purposes.

Question 38

T/F: Police reports and investigatory findings are inadmissible against the defendant in a criminal case.

Answer 38

True. Prosecution is also not allowed to introduce a police report against the defendant under the alternative theory of business records.

Question 39

What is the 6th Amendment right to confrontation?

Answer 39

The 6th Amendment right of confrontation prohibits the use of “testimonial” hearsay statements against a criminal D if the declarant is unavailable and D has had no opportunity for cross-examination.

Question 40

What are “testimonial” hearsay statements?

Answer 40

*Subject to 6th Amendment right of confrontation, which prohibits the use of “testimonial” hearsay statements against a criminal D if the declarant is unavailable and D has had no opportunity for cross-examination.

Testimonial = sworn testimony + statements to police (sworn or unsworn) + forensic analysis reports

Question 41

911 call to the police: caller states, “D is here attacking me - please help me!” Caller dies of unrelated heart attack before D has opportunity to cross-examine the caller.

Prosecution seeks to introduce the statement from the call. D objects, hearsay, violates 6th Amend right to confront. Result?

Answer 41

Overruled. This was a statement during an ongoing emergency and does not violate the 6th Amendment right to confrontation. Providing information to aid police in an ongoing emergency is non-testimonial.

Question 42

911 call to the police: caller states, “D is here attacking me - please help me! … He’s left, he’s driving a blue Lexus, with license plates DOG 4EVR.” Caller dies of unrelated heart attack before D has opportunity to cross-examine the caller.

Prosecution seeks to introduce the statement from the call. D objects, hearsay, violates 6th Amend right to confront. Result?

Answer 42

Sustained. This statement was not for an ongoing emergency, but is a hearsay statement to provide information to help gather police for eventual prosecution. So the statement is now testimonial and violates the 6th Amendment.

Question 43

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:

Answer 43

The nod constitutes nonverbal conduct intended as an assertion and would thus be considered a “statement” for purposes of the hearsay rule. But, this statement constitutes a statement of a party-opponent and hence is not hearsay.

Question 44

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?

Answer 44

The judge should rule the evidence admissible as an adoptive statement of an opposing party. Statements by or attributable to a party and offered against that party are not hearsay. If a party fails to respond to accusatory statements where a reasonable person would have spoken up, his silence may be considered an adoptive statement. 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.

*Not a case of a statement against one’s interest because the 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 personally. Furthermore, the exception requires the unavailability of the declarant (i.e., the employee), and there is no indication that the employee is unavailable.

Question 45

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?

Answer 45

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.

Question 46

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?

Answer 46

The evidence is admissible. 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. Here, 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.

*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.

Question 47

A local news station broadcast a live interview with a bystander about his views concerning the state of local education. The bystander responded by saying that the principal of his daughter’s high school had been embezzling school funds for years. The principal saw the telecast and also recorded it. He sued the owner of the station for defamation. At trial, the principal sought to testify to the defamatory statement made in the interview.

Will the principal’s testimony likely be held to be admissible?

A - No, because the testimony would be hearsay not within any exception.

B - No, because a recording of the interview exists.

C - Yes, because the statement is being offered to show its effect on the principal.

D - Yes, because the principal personally saw the interview on television.

Answer 47

(D) Because the principal had firsthand knowledge that the statement was made, his testimony will be admissible. Witnesses are generally presumed competent to testify. While a witness may not testify to a matter unless evidence is introduced to support a finding that the witness has personal knowledge of the matter, this evidence may consist of the witness’s own testimony.

Question 48

The defendant was on trial for murdering his mother, who was found dead in her bathtub. At trial, the prosecutor called the nurse of the defendant’s aunt to testify to what the aunt told the nurse just before the aunt died of cancer. The nurse is prepared to testify that, shortly before she died, the aunt stated, “I know I don’t have much longer to live, so I must tell someone what my nephew said to me yesterday. He told me that he was very angry with his mother and that he wanted to kill her and make it look like an accident!”

Should this testimony be admitted?

Answer 48

The testimony is inadmissible. Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. An out-of-court statement that incorporates other hearsay is “hearsay within hearsay.” Hearsay within hearsay is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule. Here, the aunt’s statement incorporating the defendant’s statement constitutes hearsay within hearsay. Therefore, both statements must fall within an exception to the hearsay rule to be admissible.

The defendant’s statement to his aunt ordinarily would be hearsay because it is being offered to prove the truth of the matter asserted—that he intended to kill his mother. However, statements by a party-opponent are admissible nonhearsay under the Federal Rules. Thus, the defendant’s statement is admissible as a statement by a party-opponent.

But the aunt’s statement made to the nurse regarding the defendant’s statement must also fall within an exception to the hearsay rule. Because no exception applies to that statement, the entire testimony is inadmissible.

Question 49

A plaintiff sued a defendant in a contract dispute. The plaintiff calls a witness to testify as to his personal knowledge of the agreement. The plaintiff now wants a second witness to testify as to her knowledge of the first witness’s honesty. The defendant objects and the court sustains the objection.

Why is the testimony of the second witness inadmissible?

A - The first witness’s credibility has not been questioned.

B - It would be inadmissible under the hearsay rule.

C - The second witness may not testify as to an opinion.

D - Character evidence is generally inadmissible in civil cases.

Answer 49

(A) The plaintiff may not call the second witness to testify about the first witness’s honesty because his credibility has not been questioned. Generally, a party may not bolster or accredit the testimony of her witness until the witness has been impeached. Here, the defendant has not tried to cast any adverse reflection on the first witness’s truthfulness (i.e., he has not been impeached). Thus, the second witness’s testimony as to her knowledge of the first witness’s honesty will not be allowed.

Question 50

A defendant was involved in an accident in which her car struck the rear end of the car driven by the plaintiff. The police issued tickets to the defendant, charging her with reckless driving and speeding. When the defendant’s case came before the traffic court, her attorney entered into a plea bargain with the prosecutor. Under the plea bargain, the defendant agreed to plead guilty to speeding and to pay a fine of $100, and the prosecution agreed to drop the reckless driving charge. Accordingly, the defendant pleaded guilty and the court fined her $100.

In the later civil suit, where the plaintiff is seeking damages from the defendant for personal injuries, is the guilty plea before the traffic court admissible?

Answer 50

The defendant’s guilty plea is a statement by an opposing party and thus is admissible. A statement by an opposing party (commonly called an admission) is not hearsay.

A plea of guilty to a traffic infraction is a formal judicial statement. The statement is conclusive in a prosecution for that infraction, but if the plea is used in another proceeding, it is merely an evidentiary statement (i.e., it is not conclusive and can be explained). Here, the defendant has acknowledged by her guilty plea that she was speeding at the time of the accident. This fact is relevant to the plaintiff’s suit for personal injuries because it increases the likelihood that the defendant was at fault in the accident that caused those injuries. Therefore, the defendant’s guilty plea is admissible in the current civil action as an evidentiary statement.

Under the Federal Rules, withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, and evidence of statements made in negotiating such pleas are not admissible in any proceeding. But there is no prohibition against admitting the guilty plea itself. This question asks whether the guilty plea is admissible, not whether statements made in negotiation thereof are admissible. Thus, the policy favoring plea bargains is irrelevant.

Question 51

A defendant is on trial for murder. The only evidence linking the defendant to the crime is some blood found at the scene. The lead detective testifies that an officer took a vial containing a blood sample that had been retrieved by a crime scene technician and drove off with it. The officer is now dead. Next, the prosecution presents as a witness a crime lab chemist. The chemist will testify that he took a vial of blood that contained a label identifying it as having been retrieved from the subject crime scene, and that he performed tests that established a match between that blood and a blood sample taken from the defendant.

Is the testimony of the chemist admissible?

A - Yes, because there has been proper authentication.

B - Yes, because the chemist qualifies as an expert witness.

C - No, because there is insufficient evidence of chain of custody.

D - No, because he did not take the original blood sample at the scene of the crime.

Answer 51

(C) The testimony is inadmissible because it has not been shown what happened to the blood between the time the officer took it and the time the chemist examined it. Real evidence presents an object in issue directly to the trier of fact. One of the general requirements for admissibility of real evidence is that it be authenticated; i.e., that it be identified as being what its proponent claims it is. If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must present evidence of chain of custody. The proponent must show that the object has been held in a substantially unbroken chain of possession. What is required is to show adherence to some system of identification and custody. Here, the proponent of the blood sample (the prosecution) has not shown what the officer did with it after leaving the crime scene. There is no showing that the vial was placed directly in a properly secured area so as to diminish the possibility of tampering. In short, it has not been demonstrated that there was adherence to some defined system of identification and custody. In the absence of a substantially unbroken chain of custody, the evidence is inadmissible for lack of proper authentication.

Question 52

T/F: Under Federal Rule 609, evidence of conviction of a crime requiring proof of an act of dishonesty or false statement can always be used to attack a witness’s character for truthfulness.

Answer 52

True.

Question 53

The plaintiff is suing the defendant for personal injuries suffered when she was struck by the defendant’s car. The plaintiff testified regarding the extent of her injuries. The defendant seeks to testify that when she visited the plaintiff in the hospital, the plaintiff said that if the defendant paid all of her medical bills and gave her $25,000, she would not institute legal proceedings. The plaintiff’s attorney objects to the offered testimony.

How should the judge rule on the admissibility of the testimony?

A - Inadmissible, because it is hearsay.

B - Inadmissible, because it was an offer of compromise.

C - Admissible, because it is a statement against interest and, thus, an exception to the hearsay rule.

D - Admissible, because it is relevant to show that the plaintiff tried to “blackmail” the defendant, and does not really have a claim.

Answer 53

(B) The judge should rule the testimony inadmissible. Evidence of compromises or offers to compromise is inadmissible to prove or disprove the validity or amount of a disputed claim. (A) is incorrect; the evidence is not hearsay because it is a statement made by and offered against a party. (C) is incorrect because the statement against interest exception requires that the witness be unavailable. Here, the plaintiff is available to testify. (D) may be relevant, but the facts show that it was merely an offer to compromise a disputed claim, and therefore public policy encouraging settlements precludes the introduction of such evidence. Thus, (B) is correct.

Question 54

A plaintiff sued a defendant for damages suffered when a load of bricks fell off the defendant’s truck directly in front of the plaintiff while she was driving on a highway. The plaintiff charged that the defendant was negligent in supplying his truck with a defective load chain clamp, which helped tie the load to the bed of the truck, and in failing to secure the load properly on the truck. The plaintiff calls a witness who testifies that he was formerly employed as a truck driver and is an acquaintance of the defendant. The witness further testifies that immediately prior to the accident he had coffee with the defendant at a cafe, and mentioned to the defendant that the tie chains holding the load of bricks looked kind of loose.

Assuming proper objection by the defendant’s attorney, how should the court rule on the admissibility of such testimony?

Answer 54

The witness’s testimony is admissible nonhearsay. The statement by the witness is not being offered to prove the truth of the matter asserted therein and thus is not hearsay. Hearsay is a statement made out of court by the declarant, offered in evidence to prove the truth of the matter asserted. In a negligence case, where knowledge of a danger is at issue, a person’s warning statement is admissible for the limited purpose of showing knowledge or notice on the part of a listener. Here, one of the theories of recovery underlying the plaintiff’s lawsuit is that the defendant negligently failed to secure the load. Therefore, the plaintiff must show that the defendant either knew or should have known that the load was not properly secured. Consequently, the witness’s statement that the chains looked loose is admissible to show that the defendant had notice of the possible danger. If this same out-of-court statement were offered to show that its contents were true (i.e., that the chains were in fact loose), then it would constitute hearsay, but because the statement is offered to show notice to the defendant of a possible danger, it is nonhearsay.

Question 55

Several members of a small terrorist group are on trial in federal court for conspiring to bomb a military installation. The prosecution would like to introduce the testimony of a military guard at one of the installation’s gates. The guard had been present when a bomb that was being planted by a member of the group had exploded prematurely. The guard will testify that she ran over to administer first aid to the member, who in great pain told her that his group was in the process of planting three other bombs in other areas of the military installation and was going to detonate them all at the same time to get publicity for their cause. The guard will also testify that the member disclosed the locations of the other bombs and the names of two other members of the group. The authorities were able to prevent the other bombings and arrest the other members of the group. The member died from his injuries.

What is the best basis for allowing the guard to testify as to the member’s statements?

A - As a statement of a party-opponent’s co-conspirator.

B - As a statement against interest.

Answer 55

The member’s statements are admissible as a statement against interest. Under the Federal Rules, statements of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest when made are admissible as an exception to the hearsay rule. Here, the member’s statements implicating himself in the bombing conspiracy were against his penal interest when he made them; hence, they are probably admissible under that exception.

(A) is wrong because for a co-conspirator’s statement to qualify as a vicarious statement of an opposing party, the statement must have been in furtherance of the conspiracy by a participant in it. Here, the member’s statements were not made in furtherance of the conspiracy but instead served to thwart its success.

Question 56

A beneficiary has filed a petition in the probate court to contest the validity of a testator’s will. The beneficiary contends that when the testator executed the will eight years before, he had a severe mental illness and was incapable of forming a valid testamentary intent. In support of this contention, the beneficiary seeks to offer an affidavit prepared by the testator’s former attorney, which states that she was asked to prepare a will for the testator just four months before this will was made. The attorney had refused to do so because it was her opinion that the testator seemed incoherent and paranoid.

How should the judge rule on the admissibility of this affidavit?

A - Admissible.

B - Inadmissible, as being violative of the attorney-client privilege.

C - Inadmissible, because it is hearsay not within any exception.

Answer 56

The judge should rule this affidavit to be inadmissible hearsay. This affidavit is clearly hearsay, and there is nothing in the facts that shows that it is admissible under any of the exceptions to this rule. Hence, (A) is wrong. (B) is wrong because the observations of the attorney would not be deemed a “communication received from the client.” Also, while the attorney-client privilege generally survives the client’s death, it does not apply to communications relevant to an issue between parties who are claiming through the same deceased client, such as in the probate proceedings here.

Question 57

A husband and a wife were arrested by federal agents and charged with distributing obscene materials through the United States mails. When called before a grand jury, the wife refused to say anything, invoking her Fifth Amendment right to be protected from compelled self-incrimination. The husband was terrified of the grand jury and readily admitted under questioning that he sent obscene matter through the mail. He also incriminated his wife in the illegal activity. The thought of a trial and a prison term drove the husband over the edge, and he committed suicide two days before his trial was to begin. A month later, the wife was put on trial in federal district court. The federal prosecutor seeks to introduce a transcript of the husband’s grand jury testimony into evidence against the wife. The defense attorney objects.

How should the court rule on the admissibility of the grand jury transcript?

A - Admissible, as a vicarious statement of an opposing party.

B - Admissible, as former testimony.

C - Inadmissible, because the wife can invoke the testimonial privilege, even though her husband is now deceased.

D - Inadmissible, because the husband’s testimony was not subject to cross-examination.

Answer 57

The grand jury transcript is not admissible because the husband’s testimony was not subject to cross-examination. The husband’s testimony was hearsay because it was an out-of-court statement offered to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] If a statement is hearsay, and no exception to the rule is applicable, the evidence is inadmissible. [Fed. R. Evid. 802] Under the former testimony exception to the hearsay rule, the testimony of a now unavailable witness given at another hearing is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful. [Fed. R. Evid. 804(b)(1)] The party against whom the former testimony is offered must have had the opportunity to develop the testimony at the prior proceeding by direct, cross-, or redirect examination of the declarant. Thus, the grand jury testimony of an unavailable declarant is not admissible as former testimony against the accused at trial. This is because grand jury proceedings do not provide the opportunity for cross-examination. Therefore, because the husband’s testimony was in front of the grand jury and was not subject to cross-examination, it is inadmissible as hearsay.

Question 58

T/F: A hearsay statement will not be admitted-even if it falls within a hearsay exception-when: (i) the statement is offered against the accused in a criminal case; (ii) the declarant is unavailable; (iii) the statement was testimonial in nature; and (iv) the accused had no opportunity to cross-examine the declarant’s “testimonial” statement prior to trial.

Answer 58

True. When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial. Here, the homeowner’s statement was hearsay because it was made out of court and is being offered for its truth-that the robber punched her in the head. It appears that the emergency had already resolved by the time the statement was made. Although only a few minutes had passed since the physical altercation and the homeowner was still upset, the robber no longer posed any danger because he was locked in the police car and the homeowner was aware of this (“Thank you for catching him!”). Therefore, the homeowner’s statements to the officer were testimonial.