Hearsay: Res Gestae

Question 1

True or False?

To prove that her husband was working the time of his death, the plaintiff may introduce the out-of-court statement by Joe as he left the home that morning: “Hey baby, I’m off to work.”

Answer 1

True

Question 2

True or False?

To prove that Angelo Pheaster killed the multi-millionaire Larry Adell, the state seeks to offer Adell’s statement, “Hey baby, I’m off to meet Angelo who promised to give me a free pound of marijuana.

Answer 2

True

Question 3

True or False?

To prove which dog bit her, the plaintiff may offer the injured daughter’s statement to her mother “Our neighbor’s dog `Benji’ bit me hard, can we get dad to shoot Benji with his big gun?”

Answer 3

True

Question 4

True or False?

On the issue of whether W, who is not a party and is unavailable, was in Crooked Creek Colorado on July 24, a witness may testify that on July 25 W said to him, “Yesterday I was in Crooked Creek.”

Answer 4

False

Question 5

True or False?

On the issue of whether W, who is not a party and is unavailable, was in Crooked Creek Colorado on July 24, a witness may testify over an hearsay objection that on July 23, W said to the witness “Tomorrow I will go to Crooked Creek Colorado with Hillman.” This statement would be admissible.

Answer 5

True

Question 6

True or False?

A spontaneous statement that a declarant saw an exciting occurrence is admissible without any proof that the declarant had personal knowledge of the occurrence referenced.

Answer 6

False

Question 7

Prosecution of D for burglarizing the home of X at 1:00 in the morning on a certain day. D claims that he was home in bed at the time. To prove that he was home at 1:00 a.m., D testifies that he works the 2:00 a.m. to 11:00 a.m. shift at the local plant, and that on the day in question, as always, he set his alarm clock to wake him up at 1:00. He then offers to testify that he woke up to a ringing sound, asked his wife what time it was, and that she answered “1:00.” His testimony relating to his wife’s statement concerning the time is

A. Inadmissible hearsay.
B. Hearsay but admissible under the present sense impression exception.
C. Admissible as nonhearsay because the clock is not a person.
D. Admissible as within 803(3) state of mind exception.

Answer 7

B. Hearsay but admissible under the present sense impression exception.

Question 8

Prosecution of D for assault on Herbie Husker. The assault occurred at the Omaha Quest Center during a Creighton/Nebraska basketball game. D’s defense is that he wasn’t the attacker. At trial, the prosecution calls W to testify that during the attack he heard an unidentified bystander scream: “The man with a Mohawk dyed blue is pummeling that Nebraska fan!” D concedes that at that time, he had a Mohawk that he had dyed blue for the Creighton/Nebraska game. Evidence of this statement is

A. Hearsay and inadmissible under the excited utterance exception because the bystander has not been identified.
B. Hearsay but admissible under the excited utterance exception.
C. Admissible as a present sense impression.
D. (B) and (C) are correct.

Answer 8

D. (B) and (C) are correct.

Question 9

Action for wrongful death. A paramedic testifies that they found the decedent seated in his car by the side of the road, suffering from an apparent cardiac arrest that eventually caused his death. The paramedic asked the decedent, “What happened?” The decedent answered, “Some idiot in a red Porsche cut in front of me and forced me off the road. That’s when the old ticker started to go.” If there is other evidence that the defendant owns a red Porsche, the statement of the decedent is

A. Admissible.
B. Inadmissible as irrelevant.
C. Inadmissible as hearsay.
D. Inadmissible as speculative.

Answer 9

C. Inadmissible as hearsay.

Question 10

Prosecution of Mark Hoffman for the murder of Mary Sheets. Mary’s husband, Gary Sheets testifies that while his wife was talking to him on a cell phone she mentioned that Mark Hoffman had left a package for him. When he told her to open it, she responded “OK” and then he heard an explosion and the phone went dead. When he arrived home he discovered that his wife had been killed by a bomb. The husband’s account of his wife’s statement is

A. Admissible as a present sense impression.
B. Inadmissible hearsay.
C. Admissible as an excited utterance.
D. (A) and (C) are correct.

Answer 10

A. Admissible as a present sense impression.

Question 11

Prosecution for Miss Hood for poisoning her grandmother. Immediately before the elderly lady expired, her doctor told her that she had gingerbread poisoning and would not live out the night. The doctor asked, “I need to know where you got the gingerbread, because without knowing the exact poison you have no chance to live. Her grandmother responded: “My granddaughter, Miss Hood, gave it to me.” The doctor is called by the prosecution to testify to the above for the purpose of proving Miss Hood supplied the poisoned gingerbread.

A. This statement comes within the present sense impression exception.
B. This statement comes within the then existing state of mind exception.
C. The statement is inadmissible hearsay.
D. This statement comes within the statement for medical diagnosis or treatment exception.

Answer 11

D. This statement comes within the statement for medical diagnosis or treatment exception.

Question 12

Prosecution of D for robbery of an ice cream parlor. The robbery occurred at 10:30 p.m. on a certain date. D’s defense is that she was home in bed at the time the crime was committed. D takes the stand to testify that at 9:00 p.m. on the evening of the robbery, she said to her husband, “Honey, I’m feeling really tired, so I think I’ll go to sleep now.” This evidence is

A. Hearsay but admissible to prove that D was in fact tired and planned to go to bed, which tends to show that she indeed went to sleep.
B. Hearsay but admissible because the Constitution requires that exculpatory statements by criminal defendants be admitted.
C. Inadmissible because the statement could have very well been intended as an alibi to cover for her whereabouts that night.
D. Inadmissible because there is no evidence that D in fact went to sleep, and without such evidence, the statement is irrelevant.

Answer 12

A. Hearsay but admissible to prove that D was in fact tired and planned to go to bed, which tends to show that she indeed went to sleep.

Question 13

Winter sued Hyland for $100,000 for injuries received in a traffic accident. Hyland charges Winter with contributory negligence and alleges that Winter failed to have his lights on at a time when it was dark enough to require them. Bystander will testify that an hour after the accident, while sitting at home alone thinking about what happened, he muttered to himself, “I wonder why that car did not have its lights on?” Bystander’s testimony as to his muttered statement is

A. Inadmissible hearsay.
B. Admissible because there was no assertion made to anyone, and therefore, the statement isn’t hearsay.
C. Inadmissible because speculation.
D. Admissible as a present sense impression.

Answer 13

A. Inadmissible hearsay.

Question 14

In an action by Roberto Duran to recover his championship boxing belts which he claims were stolen by a cousin, if the Defendant objects on hearsay grounds to an out-of-court apology by his cousin made to several family members for stealing the belts, the court should

A. Overrule the objection because the statement is not offered to prove the truth of the matter asserted;
B. Overrule the hearsay objection on the basis of 803(3) because the statement is the declarant’s then-existing state of mind;
C. Overrule the hearsay objection on the basis of 804(b)(3) statement against interest without determining the availability of the declarant;
D. Sustain the objection because the declarant’s state-of-mind (remorse) is not relevant except to prove the fact remembered, a backwards looking fact.

Answer 14

D. Sustain the objection because the declarant’s state-of-mind (remorse) is not relevant except to prove the fact remembered, a backwards looking fact.

Question 15

In a child dependency proceeding, to prove sexual abuse by the father the state offers into evidence statements by a foster mother to the child’s therapist, that she had observed the foster child put her mouth on another foster girl’s genitalia. The father objects on the basis hearsay. The court should

A. Admit the statement as within 803(4), a statement for medical diagnosis or treatment.
B. Exclude the statement because the 803(4) exception applies only to statements made by a declarant patient, not to statements made by a third party.
C. Exclude the statement because 803(4) applies only to statements made to a medical provider, which does not include psychological therapists.
D. Exclude the statement on Confrontation grounds.

Answer 15

A. Admit the statement as within 803(4), a statement for medical diagnosis or treatment.

Question 16

In a federal Civil Rights action brought by an arrestee for an improper arrest, the plaintiff offers the notes taken by her treating physician following her arrest indicating that she was traumatized when the police officers shoved a gun in her face at the time of the improper arrest. If the defense objects to the admissibility of these medical notes on grounds of hearsay, the court should

A. Sustain the objection because a statement by the plaintiff to the treating physician of the facts of the arrest would not be relevant to either diagnosis or treatment.
B. Overrule the objection under Rule 803(4) because the statement would be relevant to the treatment for trauma.
C. Sustain the objection because the statement would be unreliable as self-serving of a plaintiff about to file a Civil Rights action.
D. Overrule the objection on Rule 803(2) as an excited utterance.

Answer 16

B. Overrule the objection under Rule 803(4) because the statement would be relevant to the treatment for trauma.

Question 17

In a prosecution for aggravated assault, if the state offers a 911 tape from the accused’s wife (wherein she testified that her husband was ramming her car and chasing her in his vehicle), and the defense objects on hearsay and confrontation, the court should

A. Sustain the hearsay objection if the wife does not testify at trial but overrule the Confrontation objection.
B. Overrule the hearsay objection as an excited utterance regardless of whether the wife testifies at trial about the event but sustain the Confrontation objection.
C. Sustain both the Confrontation objection and the hearsay objection.
D. Overrule both the hearsay and Confrontation objections.

Answer 17

D. Overrule both the hearsay and Confrontation objections.

Question 18

A plaintiff sued a ladder manufacturer for injuries he suffered to his neck and back when a rung of the ladder on which he was standing gave way. When the plaintiff’s back and neck continued to be very sore more than two weeks after his fall, his treating physician had sent him to an orthopedist for an evaluation. Though the orthopedist did not treat the plaintiff, he diagnosed an acute cervical strain. At trial the plaintiff has call the orthopedist to testify that, in response to the orthopedist’s inquiry about how the plaintiff had injured his back, the plaintiff told him, “I was standing near the top of a 15-foot ladder when I abruptly fell, landing hard on my back, after which the ladder toppled onto my neck.” Should the statement be admissible?

A. Yes, because the plaintiff is present and can be cross-examined about it.
B. Yes, because it was made for the purpose of medical diagnosis or treatment.
C. No, because it was not made to a treating physician.
D. No, because it relates to the inception or the cause of the injury rather than the plaintiff’s physical condition.

Answer 18

B. Yes, because it was made for the purpose of medical diagnosis or treatment.

Question 19

Rance Stoddard, a passenger on a stagecoach, was nearly beaten to death in an armed robbery. Liberty Valence is being prosecuted for robbery and assault and battery of Stoddard. To prove circumstantially the identity of the robbery, Rance Stoddard will testify that immediately prior to the robbery while he was talking with a woman passenger, Hallie, another passenger in the coach warned Rance, “I would be careful hustling Hallie. That’s Liberty Valence’s girl and I can see him riding up to our coach right now.” If the defendant Liberty objects on hearsay grounds to this cautious advice by the passenger to Rance Stoddard, the court should

A. Sustain the objection as hearsay.
B. Overrule the objection as a present sense impression, 803(1).
C. C. Overrule the objection as within the excited utterance exception 803(2).
D. Overrule the objection on 803(3), then existing state of mind.

Answer 19

B. Overrule the objection as a present sense impression, 803(1).

Question 20

In the trial for bank robbery and assault with a deadly weapon (the Colt 45), one issue is whether the assault involved the element of intimidation. To prove intimidation, the prosecution offers the testimony of a bystander that when the robber presented his demands to the teller, the bank teller began to plea in tears “Please Don’t shoot, I’m pregnant!” If the defendant objects on hearsay, the court should

A. Overrule the objection because the teller’s statement is nonhearsay.
B. Sustain the hearsay objection.
C. Overrule the hearsay objection because the victim’s statement fits within the excited utterance hearsay exception under Rule 803(2).
D. Overrule the objection on the grounds of both (A) and (C).

Answer 20

D. Overrule the objection on the grounds of both (A) and (C).

Question 21

In the Ima Boss prosecution, to prove Ima’s identity as the assailant the prosecution offers testimony of Liberty’s friend who will testify that while he was talking to Liberty on his cell phone Liberty asked, “Could you hold for a moment, my wife just came home,” and then he overheard the husband’s matter-of-fact apology, “I’m sorry Ima, I don’t know how that Sports Illustrated Swim Suit issue got into our home, it must have been the kids….” and then the phone went dead. If the defendant objects, the court should

A. Sustain the objection as hearsay.
B. Overrule the objection as an excited utterance.
C. Overrule the objection as a present sense impression.
D. Overrule the objection as within the state of mind exception.

Answer 21

C. Overrule the objection as a present sense impression.

Question 22

In a sexual molestation prosecution, the prosecution offers into evidence statements by a seven-year-old victim to a family doctor, who was consulted because of the victim’s vaginal bleeding. When the physician asked, “I need to know how this happened to know how to treat you appropriately,” the victim answered, “My father caused the bleeding by doing ‘naughty things’ to my bottom.” If defendant objects to the child’s statement to the physician, the court should

A. Admit the evidence under Rule 803(4) as a statement for medical diagnosis or treatment that does not violate the Confrontation Clause because the statement is nontestimonial.
B. Exclude the testimony as hearsay.
C. Exclude the testimony as a violation of the Confrontation Clause.
D. Exclude the testimony on the basis of the reasons in (A) and (B).

Answer 22

A. Admit the evidence under Rule 803(4) as a statement for medical diagnosis or treatment that does not violate the Confrontation Clause because the statement is nontestimonial.

Question 23

In a criminal action for possession of an illegal and concealed sawed-off shotgun, the prosecution seeks to admit the testimony of two unidentified declarants. A police officer will testify that as he was interviewing a witness in another crime, two unidentified African American males came running up the street waving their hands and screaming that they were being chased by a guy around the corner who threatened to shoot them with a sawed-off shotgun because he hated Blacks. A moment later the officer observed a man who came running around the corner. Upon a search of the suspect’s trench coat the officer discovered a concealed sawed-off shotgun. If the Defendant objects on the basis of hearsay to the statements made to the police officer by the unidentified declarants, the court should

A. Overrule the objection based upon Rule 803(2) excited utterance and also hold that the statement was not testimonial within the Confrontation Clause.
B. Sustain the objection as hearsay and a violation of Confrontation.
C. Overrule the objection because the statements are relevant for the nonhearsay purpose of showing why the police officer searched the Defendant and are nontestimonial.
D. Overrule the objection because both (A) and (C) are correct.

Answer 23

D. Overrule the objection because both (A) and (C) are correct.