Hearsay 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 __________.
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:
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 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) __________.
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. 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 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 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.
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 statement 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, 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.
Co-Conspirators: The Supreme Court has held that 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.
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 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?
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 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 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. (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?
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?
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 vicarious statement of an opposing party. 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.”
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?
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.
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 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:
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?
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?
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 testifying witness’s 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, and is therefore admissible as substantive evidence of the facts asserted. (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 evidence is admissible as substantive evidence as well as to impeach the driver.
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?
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?
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?
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.
In a property dispute, a granddaughter claims that her grandfather gave her a deed to his home just before he died. The grandfather’s son claims that the property is rightfully his by a previously executed will. At issue is the authenticity and content of the deed. The granddaughter begins to testify as to the content of the deed, but the son’s attorney objects.
Should the court sustain the objection?
The court should rule that the testimony is admissible if the deed could not be found after a reasonable search. When a proponent is attempting to prove the contents of a document, the best evidence rule applies and the original must be accounted for in order to introduce secondary evidence as to its contents. A proper foundation for the admissibility of secondary evidence may be laid by a showing that the original has been lost and cannot be found despite diligent search. Hence, (A) is incorrect. (D) is incorrect because the court may take judicial notice of court records, but the proponent of a recorded document must produce the document or record she desires introduced into evidence. A court has no power to take judicial notice of public records. (B) makes no sense because the court has no way of making such a determination.
A defendant is on trial for a murder that occurred during a robbery at the victim’s home. A witness helped the police artist compose an accurate depiction of the defendant. The witness was unavailable at the time of trial and the prosecutor offers the sketch into evidence.
Is the sketch admissible?
The sketch is inadmissible on hearsay grounds. Under Rule 801 of the Federal Rules, a prior identification can be admissible nonhearsay, and the sketch could be deemed a prior identification by the witness. However, the hearsay exclusion for prior identifications only applies when the declarant is testifying at trial and subject to cross-examination. Here the witness is unavailable; hence, this exclusion does not apply. (D) is therefore incorrect. (A) applies to documentary evidence and has no relevance to this question. (C) is likewise not applicable, because this exception applies only to information within the personal knowledge of the public employee. In this case, the public employee gained the knowledge from the hearsay statements of an absent witness.
The issue at trial is whether the sun was shining in a particular city on a particular day at 11 a.m. A witness testified that he was lying beside his wife on the beach in that city at 11 a.m. that day and she said to him, “Now that the sun is out, I’ll be able to get my great tan!”
Is the statement admissible?
The statement is admissible whether or not the witness’s wife is unavailable. The statement by the witness’s wife is hearsay, an out-of-court statement offered to prove the truth of the matter stated, that the sun was out at a specific time. However, it is admissible as a present sense impression under Federal Rule 803(1) because she was observing the condition of the sun at the time that she made the statement. Unavailability is not required for this exception. Therefore, (A) and (C) are incorrect. (B) is incorrect on the law and the facts. The present sense impression exception to the hearsay rule, which is applicable in this case, only requires that the witness actually hear the declarant make the statement at the time that the declarant is observing the event. It does not require that the witness also observe the event. Moreover, as a factual matter, although it is not legally relevant, the witness would have first-hand knowledge of the event described because he was on the beach, too.
A camper sued the manufacturer of thermal underwear, alleging that while he was attempting to stomp out a fire, the camper’s underwear caught fire and burned in a melting fashion up to his waist because it was defective, and that, a half hour later, he suffered a heart attack as a result of the burns he suffered.
A physician hearing the camper testify to the events that occurred is called by the camper and asked whether the camper’s heart attack could have resulted from the burns.
Is his opinion admissible?
The expert’s opinion is admissible. An expert need not have personal knowledge of the facts on which the expert bases an opinion. Under Federal Rule 703, the expert may base an opinion upon facts or data perceived by or made known to the expert at or before the hearing. Federal Rule 705 permits the expert to give the opinion without prior disclosure of the underlying facts or data, although the opposing attorney can inquire into the basis of the opinion on cross-examination. Here, the witness is volunteering the facts on which the opinion is based by answering a hypothetical question. The expert may give an opinion in response to a hypothetical question, as long as the facts assumed in that question can be found by the trier of fact based upon admissible evidence. Since the underlying facts have been introduced in evidence, this opinion is admissible. (B) is incorrect because the expert’s function is not to judge the credibility of the witness, but rather to assume those facts and use his or her expertise to make a judgment based on those facts. (C) is incorrect because Federal Rule 703 permits an expert to testify concerning facts made known at the hearing. By listening to the plaintiff’s testimony, this expert obtained sufficient knowledge of the facts on which to base an opinion. (D) is incorrect because there is no requirement that the information on which an expert opinion is based be anything other than information supplied by lay persons, as long as the expert can then apply to those facts the expert’s expertise in the field to give an opinion on relevant evidence.
