Hearsay? Admissible?

Question 1

To prove that a race car was in safe condition, a party offers evidence that before the driver got in the car and took off, she walked around the car twice, looking closely at some critical spots.

Answer 1

False (not hearsay): Looking around the car is nonverbal conduct not intended as an assertion - no intent to communicate - thus no sincerity risk.

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 2

Prosecution for auto theft. The prosecution, to prove that defendant stole the car rather than rented it, introduces a printout from a car rental company showing that the car was never rented to the defendant.

Answer 2

True (hearsay): A car rental record, whether showing an act or the absence of an act, is being offered in evidence to prove the truth of the matter asserted, Rules 801(a)-(c), – all four hearsay risks are present.

True (admissible): Rule 803(7) provides a hearsay exception for the absence of an entry in a business record upon introduction of a proper foundation which is assumed in the instructions.

Question 3

Personal injury action. To refute a claim that the road was rain-slicked, the plaintiff calls a witness from the weather bureau who testifies that the agency has a computer attached to a rain gauge in such a fashion that the date and time of any measurable precipitation is recoded in the computer. The plaintiff then introduces a computer printout that shows no rain on the day of the accident.

Answer 3

False (not hearsay): Rule 801(b) defines a declarant as a “person” who makes a statement. The rain gauge is not a statement by a person but rather the result of the mechanical processes of a machine.

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 4

On the issue whether P has adversely possessed Beigeacre. W offers to testify that for the past twenty years P has said “I own Beigeacre.”

Answer 4

False (not hearsay): P’s assertion of ownership of Beigeacre is relevant for the fact said - an operative act - the law attaches independent legal significance to the making of the statement, i.e., a claim of ownership, in an action of adverse possession.

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 5

A confession of a co-conspirator naming the defendant as the head of a drug smuggling ring is introduced to prove defendant’s guilt.

Answer 5

True (hearsay): The confession is an out-of-court statement offered in evidence to prove the truth of the matter asserted, Rules 801(a)-(c), i.e. the defendant is the head of a drug smuggling ring – all four hearsay risks are present. The statement does not meet the not hearsay by definition admission for a party-opponent provided in Rule 801(d)(2)(E) for several reasons but clearly because the statement is not in furtherance of the conspiracy.

False (not admissible): The statement does not satisfy Rule 804(b)(3) or any other hearsay exception contained in Rules 803, 804 and 807.

Question 6

To prove that D, now deceased, was competent to execute his will the legatees under the will offer the testimony of that two days after the will was executed he heard D deliver a lecture on the application of calculus to the prediction of stock market performance.

Answer 6

False (not hearsay): The lecture on the application of calculus to the prediction of stock market performance is being offered to establish that the declarant was competent. It is relevant for that purpose for the fact said – an in court witness can testify that the lecture made sense. Clearly the lecture is not being offered to prove the truth of the matter asserted, Rules 801(a)-(c).

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 7

To prove that D, now deceased, was competent to execute his will the legatees under the will offer the testimony of G, D’s bridge partner, that shortly after the will was executed D told him that “I [D] have never been more healthy and alert in my life.”

Answer 7

True (hearsay): The statement by D as to his health is an out-of-court statement being offered in evidence to prove the truth of the matter asserted, Rules 801(a)-(d), i.e. D is healthy.

True (admissible): Rule 803(3) provides a hearsay exception for statements of the declarant’s then existing state of mind, emotion, sensation, or physical condition.

Question 8

To impeach a police officer who testified that the defendant confessed to the crime, the defense offers the police officer’s prior statement that it was another person who had confessed.

Answer 8

False (not hearsay): The prior inconsistent statement is relevant for the fact said. The mere fact that a witness has previously maintained an inconsistent position is relevant in assessing the weight to be given to the witness’ testimony.

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 9

Murder prosecution. To prove guilt, the prosecution introduces a tape recording of defendants confession to the crime.

Answer 9

False (not hearsay): The confession is an out of court statement offered in evidence to prove the truth of the matter asserted, Rules 801(a)-(c), – all four hearsay risks are present. Rule 801(d)(2)(A) defines as not hearsay a party’s own statement as an admission of a party-opponent when offered in evidence by an opposing party, here the prosecution.

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 10

Personal injury action. To prove damages, a witness testifies that at the scene the plaintiff screamed, “Aaaaaaaagh!”

Answer 10

False (not hearsay): “Aaaaaggggh” is verbal conduct not intended as an assertion - no intent to communicate - thus no sincerity risk.

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 11

Robbery prosecution. Before the grand jury, a police officer testifies that they were chasing the masked robber but lost sight of him. 10 minutes later, a bystander pointed to a nearby garage. They entered and found the defendant sitting in a car and the mask in a garbage can.

Answer 11

True (hearsay): The bystander pointing to a nearby garage, i.e. nonverbal conduct, is being offered into evidence to prove the truth of the matter asserted, Rules 801(a)-(c), – all four hearsay risks are present. The pointing remains hearsay even though the truth of the matter asserted is confirmed when the police find the masked man in the garage. See discussion of Personal knowledge of independently established facts, CH. V A3(a) supra.

True (admissible): The statement should be admitted under Rule 807, although under the facts of the case, Rules 807(A) and (B), the statement is more probative than other available evidence as to a material fact, are more problematic than with the other independently established fact statements discussed in the text.

Question 12

To prove defendant is honest he introduces the fact his employer promoted him from inventory clerk to cashier.

Answer 12

False (not hearsay): Promotion is nonverbal conduct not intended as an assertion – no intent to communicate by act – thus no sincerity risk.

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 13

Commitment proceeding. To show that Sam was crazy, the plaintiff offers his statement: “I am John Wayne.”

Answer 13

True (hearsay): The statement “[I believe] I am John Wayne” is relevant on the issue of commitment only if believed by the declarant to be true – the statement is being offered in evidence to prove the truth of the matter asserted, Rules 801(a)-(c), – the hearsay risks of sincerity and narration are present.

True (admissible): Rule 803(3) provides a hearsay exception for statements of the declarant’s then existing state of mind, emotion, sensation, or physical condition.

Question 14

Prosecution for embezzlement. To show motive, the prosecution calls a neighbor who testified that she heard the defendant’s wife shouting during an argument, “When are you going to stop playing the ponies? You’ll never win.”

Answer 14

True (hearsay): The statement by the wife to her husband that he has lost money betting on horses is being offered in evidence to prove the truth of the matter asserted, Rules 801(a)-(c), i.e., husband has lost money betting on horses – all four hearsay risks are present. The statement is not defined as not hearsay by any of the provision Rules 801(d)(1) or (2).

False (not admissible): The statement does not meet the requirements for any hearsay exceptions contained in Rules 803, 804, and 807.

Question 15

Will contest. To prove that the will is a forgery, plaintiff introduces the out-of-court statement of the defendant’s girlfriend to the defendant, “Well, at least I never forged a will.” The defendant replied, “What the hell are you talking about?”

Answer 15

True (hearsay): The girlfriend’s statement that the defendant forged a will is being offered in evidence to prove the truth of the matter asserted, Rules 801(a)-(c), i.e. the will is a forgery – all four hearsay risks are present. The statement is not an admission of a party-opponent by silence defined as not hearsay by Rule 801(d)(2)(B) because the defendant immediately denied forging the will. Nor is the statement admissible under any other not hearsay definition of Rule 801(d)(1) or (2).

False (not admissible): The statement does not meet the requirements of any hearsay exception provided in Rules 803, 804 and 807.

Question 16

To prove that X was an honest person, that his employer bonded all of his employers except X.

Answer 16

False (not hearsay): The conduct of the employer is nonverbal conduct not intended as an assertion – no intent to communicate by act – thus no sincerity risk.

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 17

Will contest. To prove that the testator was incompetent, the contestants offer the statement of his wife: “Bob Harris thinks he’s the Pope.”

Answer 17

True (hearsay): The out-of-court statement by the testator’s wife that her husband thinks he’s the Pope is offered in evidence to prove the truth of the matter asserted, Rules 801(a)-(c), i.e., that Bob Harris thought he was the Pope – all four hearsay risks are present.

False (not admissible): This is a multiple level hearsay problem. While 803(3) would provide a hearsay exception for Bob Harris saying “I am the Pope,” and no hearsay exception would be required if Bob Harris simply dressed and acted like the Pope, there is no hearsay exception for the wife’s out-of-court statement repeating his statement or describing his conduct.

Question 18

Action on an insurance contract. To prove the insured did not die immediately after impact, his statement, “I’m alive,” is offered.

Answer 18

False (not hearsay): The statement “I’m alive” is relevant for the fact said – the mere uttering of coherent sounds make the speech relevant on the issue of survival following the accident. She could have just as well said – “Don’t forget to feed the dog.” The statement would not be hearsay even if she instead had said “I’m alive.”

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 19

Action for personal injuries. Plaintiff testifies that when a witness at the scene of the accident states, “Joe ran the red light,” Joe (the defendant) said nothing.

Answer 19

False (not hearsay): The statement “Joe ran the red light” is offered in evidence to prove the truth of the matter asserted, Rules 801(a)-(c), i.e. Joe ran the red light. By saying nothing, Joe however manifested adoption by silence of the truth of the matter asserted making the statement not hearsay by definition as an admission of a party-opponent, Rule 801(d)(2)(B), when offered by an opposing party, here the plaintiff.

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 20

Action for personal injuries. The witness testified that defendant ran the red light. Defendant offers evidence that the same witness said at the scene to a police officer investigating the accident, “Sam (the plaintiff) ran the red light,” to prove plaintiff was negligent.

Answer 20

True (hearsay): The statement “Sam ran the red light” is an out-of-court statement offered in evidence to prove the truth of the matter asserted, Rules 801(a)-(c), i.e. Sam ran the red light. Rule 801(d)(1)(A) does not define the statement as not hearsay in that even though the out-of-court declarant is also in court subject to cross-examination, the prior inconsistent statement was not made under oath “at a trial hearing, other proceeding [grand jury], or in a deposition.” The statement is not defined as not hearsay by any other provision of Rules 801(d)(1) or (2).

False (not admissible): The statement does not meet the requirements of any hearsay exception contained in Rule 803, 804, and 807

Question 21

To prove that X loved Y, that X transferred substantial amounts of money to Y.

Answer 21

False (not hearsay): The transferring of money is nonverbal conduct not intended as an assertion – no intent to communicate – thus no sincerity risk.

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 22

Evidence that the witness who at trial says he doesn’t recall seeing the accident at a deposition stated that the “truck ran the red light,” to prove plaintiff was negligent.

Answer 22

False (not hearsay): The statement at the deposition that the truck ran the red light is being offered in evidence to prove the truth of the matter asserted, Rules 801(a)-(c), i.e., the truck ran the red light – all four hearsay risks are present. Rule 801(d)(1)(A) however defines as not hearsay a prior inconsistent statement of a declarant who is also an in court witness testifying subject to cross-examination if the prior inconsistent statement was made under oath in a deposition. Lack of recollection when testifying and a prior statement are inconsistent for purposes of Rule 801(d)(1)(A). Finally, a witness who testifies at trial to a lack of recollection as to the underlying event is nevertheless “subject to cross-examination” for purposes of Rule 801(d)(1)(A).

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 23

To prove an intention to sell a ring rather than to give a ring to Sarah, his wife, Clifford’s earlier signing of a criminal complaint against Sarah for adultery.

Answer 23

True (hearsay): The statement by Clifford to the police that Sarah, his wife, committed adultery is relevant in proving an intent to sell rather than give Sarah the ring only if Clifford “believed” Sarah committed adultery. Thus the hearsay risks of sincerity and narration are present. A person who believes another committed adultery is more likely to sell that person a ring than to give it to her.

True (admissible): Rule 803(3) provides a hearsay exception for a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition. The statement is hearsay and not admissible if offered to prove that Sarah did in fact commit adultery.

Question 24

Murder prosecution. To prove defendant’s guilt, the prosecution introduces evidence that when the police entered the victim’s apartment where the body was found, the victim’s parrot was screeching, “Don’t shoot.”

Answer 24

False (not hearsay): Rule 801(b) defines declarant as a “person” who makes a statement. A parrot is not a person.

True (admissible): As structured, if the answer to question 1 of the set is false, the answer the question 2 is true.

Question 25

As evidence of D’s guilt in killing V with a baseball bat, that victim, V, said sometime before the assault, “D is going to kill me soon.”

Answer 25

True (hearsay): The statement “D is going to kill me soon” is being offered in evidence to prove the truth of the matter stated, Rules 801(a)-(c), i.e. D is going to kill the declarant soon – all four hearsay risks are present. The statement does not meet the requirements to be defined as not hearsay under Rules 801(d)(1) or (2).

False (not admissible): The statement does not meet the requirements of any hearsay exception contained in Rules 803, 804 and 807. The declarant may be saying “I am afraid because D said he will kill me soon.” If this was the statement, it would still be inadmissible. It is not admissible under Rule 803(3), current state of mind, because it would then be a statement of belief offered to prove the fact remembered or believed which is specifically precluded by Rule 803(3).

Question 26

Slip-and-fall case. To prove knowledge, the plaintiff testifies that right after he fell he heard a witness say in a calm voice, “That’s the slippery spot I warned the owners about.”

Answer 26

True (hearsay): The statement about warning the store concerning the slippery spot is being offered in evidence to prove the truth of the matter asserted, Rules 803(a)-(c), i.e., that the witness has so warned the store – all four hearsay risks are present.

False (not admissible): The statement is not an excited utterance, Rule 803(2), because it was not made under the stress of excitement caused by an event – the declarant was calm. Moreover, Rule 803(1), present sense impression, is not satisfied even though the statement was made immediately after perceiving the event because the statement neither “explains” or “describes” the event but rather “relates” to the event.

Question 27

To prove that defendant in a first-degree murder case acted with premeditation, the State will offer the testimony of X. X will say that shortly before defendant shot the victim, X asked defendant if he was “out to get” the victim, and the defendant took a pistol from his pocket, showed it to X, and snarled.

Answer 27

• False (not hearsay)- the conduct with the pistol and the snarl were nonverbal and verbal conduct intended as an assertion, being offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, intent to shoot victim, the hearsay risks of narration and sincerity are present. The conduct and snarling of the d are defined as not hearsay as an admission of a party-opponent, rule 801d2A, when offered by an adverse party– here the State
• True (admissible)

Question 28

Will contest. To show the testator’s feelings toward the defendant, the sole legatee, plaintiff offers to testify that the testator had defendant arrested for forgery.

Answer 28

• True (hearsay)- the statement by the testator to the police that the d committed forgery is relevant in proving the testator’s feeling toward the d only if the testator “believed” that the d committed forgery. Thus the hearsay risks of sincerity and narration are present.
• True (admissible)- rule 803-3 provides a hearsay exception for a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition. The statement is hearsay and not admissible if offered to prove that the d did not commit forgery

Question 29

As P was walking on D’s lawn, P said to a neighbor, “D has a vicious dog.” On the issue P’s assumption of the risk, the neighbor will testify to this statement when called by the defendant.

Answer 29

• False (not hearsay)- the statement that “I know that D has a vicious dog” is being offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, that P knows D has a vicious dog. The hearsay risks of sincerity and narration are present; The statement of p is defined as not hearsay admission of a party-opponent, rule 801d2A, when offered in evidence by an adverse party– here the d.
• True (admissible)

Question 30

On the issue of whether D loved or hates Y, the statement by Y, “D hates me.”

Answer 30

• True (hearsay)- the statement “D hates me” is being offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, D hates Y–all 4 hearsay risks are present. The statement is not defined as not hearsay by any of the provisions of rules 801d1 or 2
• False (not admissible)- the statement does not meet the requirements of any hearsay exception contained in rule 803, 804, 807

Question 31

To prove that defendant was the driver, of the two possible drivers, who ran through a red light (colliding with the other car in the intersection), that his insurance company settled with the other driver. Assume insurance law requires your own carrier to pay when you were the one at fault.

Answer 31

• True (hearsay)- the settlement by the insurance company is an assertion by the insurance company that it believes that the d ran a red light offered in evidence to prove that the d ran a red light. Matter asserted includes both matters directly expressed and matters the declarant necessarily implicitly intended to assert. The statement is not defined as not hearsay by any of the provisions of rules 801d1 or 2
• False (not admissible)- the statement does not meet the requirements of any hearsay exception contained in rules 803, 804, 807

Question 32

To prove that the victim was under a sense of immediate impending death as relevant in assessing weight to be given to a dying declaration, evidence that the victim said, “Call a priest.”

Answer 32

• True (hearsay)- the statement “call a priest” is relevant to establish that the victim had a settled hopeless expectation of death only if the victim truly wished to see a priest, ie. believed that he was dying– a request to see a priest is an implicit assertion that the person believes they are dying– hearsay risks of sincerity and narration are present
• True (admissible)- rule 803-3 provides a hearsay exception for statements of the declarants then existing state of mind, emotion, sensation, or physical condition

Question 33

To prove damage in a personal injury case, the plaintiff calls hospital attendants who testify that the plaintiff was screaming, “My God! My leg hurts!”

Answer 33

• True (hearsay)- the statement “my leg hurts” is offered in evidence to prove the truth of the matter asserted, rule 801c, ie, the plaintiffs leg hurts
• True (admissible)- the statement is admissible under either rule 803-3, then existing physical condition, as well as rule 803-4, statements for purposes of medical diagnosis or treatment

Question 34

To prove bad health when an insured signed an insurance application form, evidence that the insured’s doctor has her under three different high blood pressure pills at the same time.

Answer 34

• False (not hearsay)- prescribing of high blood pressure pills is nonverbal conduct not intended as an assertion– no intent to communicate by act– thus no sincerity risk
• True (admissible

Question 35

Sale of cocaine; defense of entrapment. The defendant testifies that the police informant told him that he needed the drug for the treatment of psoriasis.

Answer 35

• False (not hearsay)- the statement about needing the drugs for a medical purpose is relevant for the fact said– effect on listener. Determining whether a person is predisposes to sell cocaine is affected by what that person is told is the reason the purchases wants the drugs
• True (admissible)

Question 36

Sale of cocaine; defense of entrapment. The prosecution calls a narcotics officer in charge of the investigation to testify that numerous addicts told him that the defendant was dealing in cocaine.

Answer 36

• True (hearsay)- the statements to the narcotics officer that the d deals coke are being offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, d deals coke– all 4 hearsay risks are present. If offered for its effect on listener to explain why the police targeted the d– not hearsay for this purpose– would exclude under rule 403. The statement is not defined as not hearsay by any of the provisions of rules 801d1 or 2
• False (not admissible)- the statement does not meet the requirements of any hearsay exception contained in rules 803, 804, 807

Question 37

To prove that D had motive to kill Z, that W told D that Z had forced his daughter into prostitution.

Answer 37

• False (not hearsay)- the statement that D was told Z forced D’s daughter into prostitution is relevant for the fact said– effect on listener. A reasonable person being advised of such fact is more likely to kill the person who allegedly did that to his daughter than a person with no such advice. If offered to prove that Z forced the d’s daughter into prostitution, the statement is hearsay and inadmissible
• True (admissible)

Question 38

To prove negligence in driving a bus out of the bus company’s station, that a bus mechanic said to the driver, “The front axle is so weak, it could break at any time.” Assume it did break later that morning and that three people died in the accident.

Answer 38

• False (not hearsay)- the statement concerning the weak front axle is relevant for the fact said– effect on listener. The reasonableness of taking the bus on the road is affected by having been told of a weak front axle. If the statement is offered to prove that the front axle was in fact weak and thus caused the accident, the statement is hearsay and inadmissible
• True (admissible)

Question 39

To identify the defendant as the person who assaulted an FBI agent, a witness in a neighboring office testifies that he heard the victim shout, “No . . . Mike . . . Don’t shoot.”

Answer 39

• True (hearsay)- the statement “no.. Mike.. don’t shoot” is being offered in evidence to prove the truth of the matter implicitly being asserted. Rules 801a-c, ie, Mike intended to and thus did shoot the victim–all 4 hearsay risks present
• True (admissible)- rule 803-2 provides a hearsay exception for statements made while the declarant was under the stress of excitement caused by the event. Rule 803-1, providing for a hearsay exception describing an event made while perceiving the event, would also be satisfied

Question 40

Action for libel. To prove damages, the plaintiff testifies that one of his colleagues said: “What’s this I hear that John (the defendant) is saying you stole all of your footnotes from his article?”

Answer 40

• True (hearsay)- the statement to the plaintiff that the declarant heard the d saying the p stole footnotes is relevant on damages only if the declarant believes that the p stole footnotes– thus the hearsay risks of sincerity and narrative are present. Damage to reputation requires that the maker of a statement believe what he is saying to be true
• True (admissible)- rule 803-3 provides a hearsay exception for statements of the declarant’s then existing state of mind, emotion, sensation, or physical condition. The form of the statement being one of reporting and questioning and not being one of acceptance of truth on its face makes application of rule 803-3 questionable but in a tight call most likely applicable

Question 41

To prove that the VA hospital in Miami did not discriminate against women employees that an internal auditor of the VA, as authorized by statute, investigated the Hospital and came to the conclusion that no sexual discrimination existed at the hospital. Assume that the government desires to enter this in a class suit by the Hospital’s female employees, which charges illegal sex bias against the VA.

Answer 41

• True (hearsay)- the conclusion of no sexual discrimination in the report is being offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, that no sexual discrimination existed– all 4 hearsay risks are present
• False (not admissible)- the only not hearsay by definition, rules 801d1 and 2, or hearsay exception rules 803, 804, 807, possibly satisfied is rule 803-6, records of regularly conducted activity, commonly called business records. However, the self-serving nature of the investigation report when offered by the V.A> to show no sexual discrimination argues strongly for exclusion bc, as provided in rule 803-6, “the source of info or the method of circumstances of prep indicate lack of trustworthiness”

Question 42

On the issue whether the plaintiff has poison ivy, evidence that the plaintiff scratches.

Answer 42

• False (not hearsay)- scratching is nonverbal conduct not intended as an assertion– no intent to communicate by act-thus no sincerity risk
• True (admissible)

Question 43

Personal injury action. The plaintiff offers in evidence a police report stating that the defendant said that the accident was his fault.

Answer 43

• True (hearsay)- the police report containing the d’s statement admitting fault is being offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, d was at fault– all 4 hearsay risks are present
• True (admissible)- the statement is admissible as multiple level hearsay rule 805, with rule 803-8 admitting the statement for the fact said and rule 801d2A admitting the statement itself as defined as not hearsay. All the requirements of rule 803-8 are satisfied; the police report is being offered in a civil case and thus rule 803-8Aii does not come into play

Question 44

Suit to quiet title on a claim of adverse possession. The plaintiff offers in evidence his signs that were posted on the premises reading: “No trespassing. John Smith, Owner.”

Answer 44

• False (not hearsay)- in an action for adverse possession the law attaches independent legal significance to the fact that a party has over time openly maintained a claim of ownership to property–an operative act– thus the sign is relevant for the fact said
• True (admissible)

Question 45

On the issue whether there was marijuana in the suitcase, evidence that a dog, trained to wag its tail at marijuana, wagged it tail when sniffing the suitcase.

Answer 45

• False (not hearsay)- a declarant is defined in rule 801-b as a person who makes a statement. A dog is not a person
  -True (admissible)

Question 46

On the issue of D’s good faith in discharging X, an employee testifies that the Chief of Police told D that X has been caught stealing in his store.

Answer 46

• False (not hearsay)- the statement is relevant for the fact said–effect on listener– whether D acted in good faith in discharged X is affected by what D had been told about X’s conduct– X had been caught stealing D’s store
• True (admissible)

Question 47

In a criminal trial to prove that X stole from the store, an employee testifies that the Chief of Police told X’s employer that X has been caught stealing in his store.

Answer 47

• True (hearsay)- the statement that X had been caught stealing money from the store when offered to prove X had stolen money is an out-of-court statement offered in evidence to prove the truth of the matter asserted, rules 801a-c. The statement is not defined as not hearsay by any of the provisions of rule 801d1 or 2
• False (not admissible)- the statement does not meet the requirements of any hearsay exception contained in rules 803, 804, 807

Question 48

On the issue whether D is the White Rock flasher, a photo taken by a bank surveillance camera of D flashing a bank teller.

Answer 48

• False (not hearsay)- the picture depicts nonverbal conduct not intended as an assertion– no intent to communicate by act depicted– thus no sincerity risk. One can argue that the flashing is in fact an intent to communicate. If so perceived, the conduct is nevertheless properly classified as not hearsay bc the inference that can be drawn from the conduct alone parallels the matter intended to be asserted. (See Graham, handbook of Federal Evidence S 801.3 n. 7 5th ed. 2001)
• True (admissible)

Question 49

Will contest. To prove that the testator did not like P, D calls, W, who testifies that a week before he died the testator told W, “I hate P.”

Answer 49

• True (hearsay)- The statement “I hate P” is being offered into evidence to prove the testator hates P. Relevancy depends upon the testator actually believing the matter asserted–the hearsay risks of sincerity and narration are present
• True (admissible)- Rule 803-3 provides a hearsay exception for statements of the declarants then existing state of mind, emotion, sensation, or physical condition. The concept of continuity of inference permits the trier of fact to infer that if testator hated P one week before his death, testator also hated P at the time of his death

Question 50

To prove humiliation, that plaintiff heard people discussing the libelous statement about her.

Answer 50

• False (not hearsay)- the statement is relevant for the fact said- effect on listener- a person who hears a libelous statement about themselves is more likely to feel humiliated than a person who did not hear it and to feel so regardless of the statement’s truth
• True (admissible)

Question 51

On the issue whether P thought the sky was falling, P offers to testify that he listened to a radio broadcast, purporting to be an on-the-scene news report, in which Orson Wells said, “The sky is falling.”

Answer 51

• False (not hearsay)- the statement is relevant for the fact said- effect on listener- a person who hears on the radio that the sky is falling is more likely to think the sky is falling than one who has not so been advised regardless of the truth of the statement
• True (admissible)

Question 52

On the issue of the speed of D’s car, the police officer will testify that his speedometer read 75 MPH

Answer 52

• False (not hearsay)- a declarant is defined in Rule 801b as a person who makes a statement
• True (admissible)

Question 53

In a civil case involving a US gov’t charge that the captain of a US flagship was careless in his approach to another ship in the Panama Canal, the US notifies the captain that a deposition will be taken (under oath and before a US consul) in Tokyo, of a seaman on the vessel. This was done, and the captain’s attorney, though present, did not cross the seaman. The seaman stated that “the captain was blind drunk” at the time. At the civil trial, the seaman testified for the captain that, “he was sober at the time.” The seaman died of a heart attack before he could be crossed. The US offers the seaman’s deposition statement, taken in Tokyo

Answer 53

• True (hearsay)- The testimony at the deposition that the captain was drunk is being offered into evidence to prove the truth of the matter asserted, rules 801a-c, ie., the captain was drunk–all 4 hearsay risks are present. The statement fails to satisfy Rule 801d1a’s not hearsay definition bc the seaman was not available for cross- examination at trial
• True (admissible)- Rule 804b1 provides a hearsay exception for former testimony including that given at a deposition. The captain’s attorney was present and had an opportunity and similar motive to develop the seaman’s testimony

Question 54

To prove that a certain event occurred in the early morning, W testifies that he was in bed at the time of the event and heard his roosters crowing

Answer 54

• False (not hearsay)- A declarant is defined in rule 801b as a person who makes a statement. A rooster is not a person
• True (admissible)

Question 55

To prove that D committed the crime charged, P offers D’s confession made to police officers

Answer 55

• False (not hearsay)- A confession by D- an acknowledgment of each and every element of the criminal charge- is an out of court statement offered in evidence to prove the truth of the matter asserted, rule 801c. Rule 801d2a defines as not hearsay admissions of a party-opponent made in an individual capacity when offered in evidence by an adverse party- here P
• True (admissible)

Question 56

To prove the decedent believed his death was imminent, testimony that just prior to his death his doctor told him, “You have only a few minutes left.”

Answer 56

• False (not hearsay)- the statement is relevant for the fact said- effect on listener- a person’s awareness of whether death is imminent is affected by having been told, “you have only a few mins to live” regardless of the truth of the statement
• True (admissible)

Question 57

To prove the decedent believed his death was imminent, his statement, “I’m going fast”

Answer 57

• True (hearsay)- the statement “I’m going fast” is relevant to show that the decedent believed his death was imminent only if he believed it to be true- the statement is being offered in evidence to prove the truth of the matter asserted, rules 801a-c- the hearsay risks of sincerity and narration are present
• True (admissible)- Rule 803-3 provides a hearsay exception for a statement of declarant’s then existing state of mind, emotion, sensation, or physical condition

Question 58

To prove the value of a stolen automobile, P offers a receipt for the purchase price, $10000, signed by the dealer from whom he bought the car

Answer 58

• True (hearsay)- the receipt is a memorialization of the transaction and not the transaction itself. As such it is an out-of-court statement offered in evidence to prove the truth of the matter asserted, rules 801a-c–all 4 hearsay risks are present. The receipt at hand is similar to the receipt provided at the food store. The operative acts are the total from the items on the cash register followed by the payment–offer and acceptance. The receipt produced by the cash register is solely a memorialization
• True (admissible)- The receipt in the hands of the purchaser of a car is not a business record, rule 803-6. However, the receipt should be admitted, if more probative than other available evidence, as satisfying rule 807- equivalent circumstantial guarantees of trustworthiness are present

Question 59

To show P’s entitlement to damages for pain and suffering, P calls a nurse who testifies that right after the accident P was admitted to the hospital while holding his head and repeating over and over, “my head.”

Answer 59

• True (hearsay)- the statement “my head” said while holding his head is being offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, his head hurts
• True- Rule 803(4) provides a hearsay exception for statements made for purposes of medical diagnosis or treatment. In addition, Rule 803-3 provides a hearsay exception for statements of the declarant’s then existing physical condition

Question 60

Action for personal injuries by a passenger in a car against the driver. To prove defective brakes, plaintiff offers testimony that, one hour before the accident, a mechanic told the d and the p, “The brakes are shot.”

Answer 60

• True (hearsay)- the statement that the brakes are shot is being offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, the brakes are shot– all 4 hearsay risks are present. The statement is not defined as not hearsay by any of the provisions of rules 801d1 or 2. D’s silence does not rise to the level of an adoptive admission, rule 801d2b
• False (not admissible)- the statement does not meet the requirements of any hearsay exception contained in rules 803, 804, 807

Question 61

Action for personal injuries by a passenger in a car against the driver. To prove defective brakes, plaintiff offers testimony that, one hour before the accident, a mechanic told the d and the p, “The brakes are shot.” This time offered to prove assumption of the risk

Answer 61

• False (not hearsay)- the statement is relevant for the fact said–effect on listener. Assumption of risk requires knowledge of the danger and being advised of the danger provides a reason to be aware regardless of the truth of the statement
• True (admissible)

Question 62

Personal injury action by P against D arising out of the breakdown of D’s roller coaster. To prove that the roller coaster was in bad condition, P testifies that just before he got on the ride, he heard a patron exiting the roller coaster say to D’s employee, “the tracks are shaking something awful today”

Answer 62

• True (hearsay)- the statement that the roller coaster is shaking is being offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, the roller coaster is in bad condition– all 4 hearsay risks are present
• True (admissible)- rule 803-1 provides a hearsay exception for statements describing an event made while the declarant was perceiving the event or immediately thereafter. For rule 803-2 to be satisfied, it would be necessary to show that the statement was made under the stress of excitement caused by an event, which may or may not be true as the problem is worded

Question 63

Action for breach of warranty. To prove the warranty, the plaintiff testifies that he asked the d’s salesperson, “If I buy this deodorant, will it help me win the love of my life?” The salesperson nodded affirmatively

Answer 63

• False (not hearsay)- the statement is relevant for the fact said– the saleperson’s affirmation of the p’s q is an operative act- a warranty- the law attaches independent legal significance to the salesman’s conduct
• True (admissible)

Question 64

Negligence action by P, an injured pedestrian against D city for not placing a traffic signal at the intersection at which P was struck by a car. Following the accident D City conducted an investigation and determined that there was no need for a traffic signal at that corner. D City offers its investigators report in evidence

Answer 64

• True (hearsay)- the investigator’s report concluding that a traffic light is not needed is being offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, a traffic light is not needed–all 4 hearsay risks are present
• False (not admissible)- the investigator’s report fails to meet the requirements of rule 803-8c— the report appears to have been made in anticipation of litigation-thus the source of information or other circumstances indicate lack of trustworthiness

Question 65

Breach of contract action. To prove that a contract existed, P testifies that just after a meeting with D, she (P) told her secretary, “I just made a deal to sell D 300 cases of Madonna albums”

Answer 65

• True (hearsay)- the statement by P that she had just made a deal with D is being offered to prove the truth of the matter stated, rules 801a-c, ie, P just made a deal with D–all 4 hearsay risks are present, P’s statement to her secretary is not itself an operative act but rather the reporting of an operative act
• True (admissible)- Rule 803-1 provides a hearsay exception

Question 66

On the issue whether or not X predeceased Y, W offers to testify that shortly after Y was pronounced dead X said, “I think Y is dead.”

Answer 66

• False (not hearsay)- the statement is relevant for the fact said. The fact that a statement was made, regardless of its content, is relevant to establish that the declarant was alive at the moment. The fact that the statement was “I think Y is dead” rather than some other statement does not alter the foregoing analyses.
• True (admissible)

Question 67

On the issue whether or not X predeceased Y, W offers to testify that shortly after Y was pronounced dead X said, “I think Y is dead.” Z offers to testify that at the relevant time the paramedics put a sheet over X’s head and, leaving X at the scene of the accident, rushed Y to the hospital

Answer 67

• False (not hearsay)- Putting a sheet on someone’s head is nonverbal conduct not intended as an assertion– no intent to communicate–thus no sincerity risk
• True (admissible)

Question 68

On the issue of whether the testator intended to give C property in his will (case involving probate of a lost will), the testator’s statement, made after the execution of the will, that “I left C one-half of my estate in my will.”

Answer 68

• True (hearsay)- the statement by the testator as to leaving C one-half of his estate in the will is being offered in evidence to prove the truth of the matter asserted. Rules 801a-c, ie, his will leaves one-half the estate–all 4 hearsay risks present
• True (admissible)- rule 803-3 provides a hearsay exception for statements of the declarant’s memory or belief to prove the fact remembered or believed only when the statement related to the execution, revocation, identification, or terms of declarant’s will

Question 69

On the issue of whether the testator intended to give C property in his will (case involving probate of a lost will), the testator’s statement, made just before the will is signed, “C has treated me shamefully.”

Answer 69

• True (hearsay)- the statement is relevant as to whether C was shortly thereafter left one-half of the declarant’s estate in a will only if the declarant believed his statement that “C has treated me shamefully” to be true regardless of how C actually acted toward the declarant. The risks of sincerity and narration are present
• True (admissible)- Rule 803-3 provides a hearsay exception for a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition

Question 70

To prove that a certain kind of computer was useful in a law practice, a party offers evidence that the partner in charger of purchases for the practice bought 20 of the machines

Answer 70

• False (not hearsay)- the purchase of computers is nonverbal conduct not intended as assertion–no intent to communicate by act- thus no sincerity risk
• True (admissible)

Question 71

Personal injury action. Plaintiff calls W, who testifies that p had the green light. To impeach W’s credibility, d offers a portion of the transcript of W’s deposition in which W stated the d had green light

Answer 71

• False (not hearsay)- a prior inconsistent statement when offered to impeach credibility is relevant bc it was said– the mere fact of failure to maintain the same position over time affects the credibility assessment made by the trier of fact
• True (admissible)

Question 72

To prove that a testator was competent to make a will, a party offers evidence that a week before the testator died, her psychiatrist wrote her a letter in which he stated, “you’ve made marvelous progress on your emotional problems. You won’t be needing my services anymore”

Answer 72

• True (hearsay)- the statement by the psychiatrist as to the testator’s progress on her emotional problems is being offered in evidence to prove the truth of the matter asserted. Rules 801a-c, ie, the testator is well–all 4 hearsay risks are present. The statement is not defines as not hearsay by any of the provisions of rules 801d1 or 2
• False (not admissible)- the statement does not meet the requirements contained in rules 803, 804 and 807. Rule 803-4 does not encompass statements by the person providing medical diagnosis or treatment

Question 73

Medical malpractice action. To prove that he required add’l surgery to correct d’s surgical errors, p offers evidence that the day after d operated, another surgeon operated on him again

Answer 73

• False (not hearsay)- the conducting of the 2nd operation is nonverbal conduct not intended as an assertion– no intent to communicate by act– thus no sincerity risk
• True (admissible)

Question 74

Cil action by p against d Police dept for police brutality following an officer’s shooting of X in an alley. p claims that X was standing around when the officer suddenly entered the alley, called out X’s name and when X turned around shot X. To prove that officer acted in good faith, the officer testifies that before he entered the alley, another person told him that X had a gun

Answer 74

• False (not hearsay)- the statement to the officer that X had a gun is relevant for the fact said–effect on listener– a reasonable person would have their apprehension of danger affected by being told that X had a gun. If offered to prove that X had a gun, the statement is hearsay and inadmissible
• True (admissible)

Question 75

Personal injury action by P against D arising out of a slip and fall in d’s pet shop. To prove that he notified P of the hazard on the floor, D testifies that as P entered the store, D said to him, “Watch the slippery floor. We’ve got a bunch of guinea pigs with intestinal problems”

Answer 75

• False (not hearsay)- On the question of whether P was notified of the hazard, the announcement is relevant for the fact said– it is the notice
• True (admissible)

Question 76

Breach of contract action by P against D. To prove that she offered to sell D 200 crates of kiwi, P testifies that she said to D, “ I offer to sell you 200 crates of kiwi for 2.50 a case”

Answer 76

• False (not hearsay)- the statement is relevant for the fact said– the law attaches independent legal significance to the statement– applying the objective theory of contract the statement by P is an offer
• True (admissible)

Question 77

To prove that she was in great pain after the accident for which she is now suing D, P calls her mother to testify that on the way to the hospital in the mother’s car, P screamed “OWWWWW”

Answer 77

• False (not hearsay)- the “owwww” is verbal conduct not intended as an assertion– no intent to communicate– thus no sincerity risk
• True (admissible)

Question 78

To prove that the traffic light at an intersection was red for cars going in a certain direction, a party offers evidence that all drivers going in that direction stopped their cars when they reached an intersection

Answer 78

• False (not hearsay)- stopping a car is nonverbal conduct not intended as an assertion– no intent to communicate by act– thus no sincerity risk
• True (admissible)

Question 79

To prove which of two persons- husband or wife- survived an accident, testimony that right after the crash, the husband sobbed, “That bastard in the red car ran the red light”

Answer 79

• False (not hearsay)- the statement is relevant for the fact said. The fact that a statement was made, regardless of its content, is relevant to establish that the declarant was alive at the moment
• True (admissible)

Question 80

Testimony that right after the crash, the husband sobbed, “That bastard in the red car ran the red light.” Statement used to prove that the driver in the red car did run the red light

Answer 80

• True (hearsay)- the statement that the red car ran the red light is being offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie. the red car ran the red light– all 4 hearsay risks are present
• True (admissible)- rule 803-2 provides a hearsay exception for statements relating to a startling event made while declarant was under the stress of excitement caused by the event

Question 81

Personal injury action. P claims that he was treated by Dr. X. D calls Dr. X who testifies that his records contain no mention of plaintiff

Answer 81

• True (hearsay)- the business records of Dr. X indicating that there is no mention of P is offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, that P was not treated by Dr. X– all 4 hearsay risks are present
• True (admissible)- rule 803-7 provides a hearsay exception for business records to prove the nonoccurrence of a matter if the matter was of the kind which a business record was regularly made and preserved

Question 82

Prosecution of D for battery upon V. To prove that V struck the first blow, D testifies that the day before the flight, X told D that V had killed 6 people this past year

Answer 82

• True (hearsay)- the statement is relevant to prove that V struck the first blow only when offered to prove the truth of the matter asserted, rules 801a-c, ie, V killed six people in the past year– all 4 hearsay risks are present. The statement is not defines as not hearsay by any of the provisions of rules 801d1 or 2
• False (not admissible)- the statement does not meet the requirements of any hearsay exception contained in rules 803, 804, 807

Question 83

To show that X was ill on a certain date, W offers to testify that on that date X twice doubled over the ground

Answer 83

• False (not hearsay)- doubling over and groaning is nonverbal conduct not intended as an assertion– no intent to communicate by act– thus no sincerity risk
• True (admissible)

Question 84

Action by P to commit a certain law professor to a mental institution. To prove that the law professor was insane, P calls W who testifies that while the professor was in the middle of an evidence class, two white coated gentlemen entered the classroom, gently laid their hands on the professor, and led him away

Answer 84

• False (not hearsay)- the 2 white-coated gentleman’s action is nonverbal conduct not intended as an assertion– no intent to communicate by act– thus no sincerity risk
• True (admissible)

Question 85

Defamation action by P against D. To prove that D uttered the defamatory remarks, P calls W who testifies that she was at a PTA meeting when D stood up and called P a gigolo”

Answer 85

• False (not hearsay)- the statement “gigolo” is relevant bc it was said– it has independent legal significance in an action for defamation constituting the utterance itself that was published that is asserted to be defamatory
• True (admissible)

Question 86

Negligence action by the owner of a ship against the operators of a lighthouse after the ship was destroyed on the rocks in a dense fog. P claims that as the ship approached the rocks, d neither flashed the light nor sounded the foghorn. To prove that she was not negligent, d testifies that as the ship approached, she blew the foghorn

Answer 86

• False (not hearsay)- blowing of the foghorn is an act having independent legal significance in an action asserting negligence on the part of the lighthouse– blowing the foghorn constitutes the operative act of being a warning
• True (admissible)

Question 87

To show that D was home and thus could have killed W, his wife, P calls W’s paramour who testifies that when D was away and the coast was clear, W always pulled the bedroom shade down, but that she left it up when he was home. Then P calls Z, D, and W’s next door neighbor, who testifies that on the murder night, the shade was open. With respect to the paramour’s testimony—

Answer 87

• True (hearsay)- the bedroom shade is conduct intended as an assertion offered in evidence to prove the truth of the matter asserted, rules 801a-c, ie, D was home– a 4 hearsay risks are present
• True (admissible) the leaving open of the bedroom shade should be admitted under rule 807 being more probative than other available evidence while possessing equivalent circumstantial guarantees of trustworthiness to the denominated hearsay exceptions

Question 88

“To show that D was home and thus could have killed W, his wife, P calls W’s paramour who testifies that when D was away and the coast was clear, W always pulled the bedroom shade down, but that she left it up when he was home. Then P calls Z, D, and W’s next door neighbor, who testifies that on the murder night, the shade was open. With respect to the paramour’s testimony—” With respect to Z’s testimony…

Answer 88

• False (not hearsay)- Z is testifying in court on personal knowledge to a fact observed on the night in question, rule 602, Z’s testimony is admissible to prove that the shade was up. Of course, the fact testified to–shade up– is not itself relevant without the paramour’s testimony
• True (admissible)

Question 89

Will contest. To prove that the testator did not like P, D calls W, who testifies that a week before he died the testator told W, “P is a no-good slob”

Answer 89

• True (hearsay)- the statement is relevant only if the declarant believes that P is a no good slob– the statement is being offered to prove the truth of the matter asserted, rules 801a-c–the hearsay risks of sincerity and narration are present
• True (admissible)- rule 803-3 provides a hearsay exception for a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition

Question 90

Action by P against D to recover unpaid rent based on a month-to-month tenancy. D claims that she told P a moth in advance that she was terminating the tenancy. To prove that D did not give notice, P testifies that though he saw D twice around the time D claims to have given notice, D never mentioned anything about terminating the tenancy

Answer 90

• False (not hearsay)- failure to communicate about a month to month tenancy is nonverbal conduct not intended as an assertion–no intent to communicate by act– thus no sincerity risk
• True (admissible)

Question 91

To prove that X and Y were really married, X calls a witness who testifies that he was in a courtroom on the day X and Y claim to be married, and that he heard the judge say to X and Y, “I now pronounce you husband and wife.”

Answer 91

• False (not hearsay)- the pronouncement of marriage is an operative act– the law attaches independent legal significance to the statement– the statement is thus relevant for the fact said
• True (admissible)

Question 92

Civil action by P against Cop D for false arrest at a baseball game. D’s defense is good faith. To prove that he acted in good faith in arresting P, Officer D testifies that one of P’s friends told him that P was carrying a concealed bomb under his coat.

Answer 92

• False (not hearsay)- the statement is relevant for the fact said–effect on listener– whether the person acted in good faith in making the arrest is affected by what he had been regardless of whether it is true
• True (admissible)

Question 93

To prove the value of a stolen car, P offers to testify that he accepted the dealers offer to sell the car and that he pad 10,000 for it.

Answer 93

• False (not hearsay)- acceptance of the offer is an operative act– the law attaches independent legal significance to the acceptance under the objective theory of contract– payment was most likely accompanied by a statement indicating the 10,000 was in full payment for the car– the payment would be an operative act and the statement relevant for the fact said as characterizing an independently relevant act
• True (admissible)

Question 94

Negligence action by the owner of a small plane attempting to land against the owner of another plane that was sitting on the runway. The two planes collided, causing extensive damage and personal injuries. To prove that D knew another was going to attempt to land, P calls W, the air traffic controller on duty at the time of the crash. W testifies that about a minute before the crash, he told the owner of the plane sitting on the ground that another plane had been cleared to land.

Answer 94

• False (not hearsay)- the statement is relevant for the fact said– effect on listener– the air traffic controller’s statement provides notice relevant to determining the listener’s actual knowledge at the time
• True (admissible)