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Question 1

What is the extrinsic policy for liability insurance?

Answer 1

Evidence that a person was or wasn’t insured is not admissible to prove whether he acted negligently or wrongfully.

But this can be admitted for another purpose such as proving the witness’ bias or prejudice, or for proving agency/ownership/control

Question 2

What is the rationale behind the extrinsic policy about liability insurance?

Answer 2

The law wants to encourage people to have insurance, so you don’t want people to not get insurance because they are afraid that having it will go against them in litigation

Question 3

If the P sues the defendant for negligence from an accident, and the plaintiff wants to introduce that the defendant has a $1 million insurance policy, is that permissible?

Answer 3

No, because a jury may use this to infer that the defendant drove more recklessly because he was insured (aka: moral hazard theory) or to find against him because they know the insurance company will pay anyway

Question 4

In a negligence case for a car accident, on cross of the defendant, the plaintiff’s attorney asks, “isn’t it true you were fine with speeding because you knew you had insurance to cover it?“ Would that be allowed?

Answer 4

No

Question 5

If in a negligence case based on a car accident, the defendant testified that he wasn’t driving the car and wasn’t the owner of the car, on cross-examination can the plaintiff’s attorney ask why the defendant was paying the insurance on the car if he wasn’t the owner or driver?

Answer 5

Yes, because even though you can’t ask about insurance in order to prove negligence or wrongful behavior, you can ask about it to rebut a contention that the defendant wasn’t the owner

Question 6

In the plaintiff’s case in chief she calls a witness to the car accident and asks if the witness was also involved in the accident and whether her insurance company already settled the plaintiff’s claim against the witness, so now the witness is asked if she is looking to have the defendant found responsible to make sure that her insurance rates do not go up. Would that be OK?

Answer 6

Yes, because the information about insurance is not being offered to show negligence, but to show bias or a personal interest in the outcome

Question 7

If the plaintiff sues the defendant for injuries from a car accident and the plaintiff tries to introduce that the defendant was driving uninsured, would that be allowed?

Answer 7

No, because it is being used to show negligence

Question 8

What is hearsay?

Answer 8

An out-of-court statement offered for the truth of the matter asserted

Question 9

What is the rationale behind courts excluding hearsay evidence?

Answer 9

The law wants people that have relevant first-hand knowledge about an event to go to court, swear to tell the truth, look the jury in the eye, and tell them what they saw, then be subject to cross-examination. They don’t want the jury to be told what someone else saw or told you they saw

Question 10

What happens to hearsay?

Answer 10

It is excluded unless a rule says otherwise

Question 11

What are the steps to determine if something is hearsay?

Answer 11

• out of court statement repeated by or embedded in the evidence?
• what fact is asserted by that statement?
  – What is the statement offered to prove? AKA: purpose

Question 12

Is hearsay allowed?

Answer 12

Yes, if an exception or non-hearsay purpose applies to both levels of the hearsay

Question 13

What is double hearsay?

Answer 13

Hearsay embedded within hearsay

Question 14

What is the major essay approach to hearsay?

Answer 14

• is there a statement/assertion about a fact?
  – Is it an out-of-court statement?
• is the statement offered to prove the truth of the matter asserted?
  – Are there any exceptions or exemptions?
  – Does undue prejudice affect anything?

Question 15

What are the three categories to consider when you are asking in a hearsay analysis whether a statement has been made?

Answer 15

– assertive conduct
– verbal acts
- Animals and machines

Question 16

What is assertive conduct?

Answer 16

Actions and silence that are not statements unless they are intended to substitute for it

Question 17

What is a verbal act?

Answer 17

Words are not considered to be statements if they are acts. I.e.: contracts, bribes, conspiracy, bets, defamation

Question 18

What is the rule about animals and machines when it comes to hearsay?

Answer 18

They cannot make statements

Question 19

What are the things you can testify about that are not considered to be hearsay, and the things you cannot?

Answer 19

A witness can testify about what he did or what he saw. But he cannot testify about what he heard someone else say, or what he said on an earlier occasion

Question 20

Is this hearsay? “X said he saw a D hit P.“

Answer 20

Yes because it refers to what somebody else saw, not what the speaker saw

Question 21

Is this hearsay? “I told the police I saw defendant hit plaintiff.“

Answer 21

Yes, because you shouldn’t talk about what you said on an earlier occasion, you should just talk about what you said originally

Question 22

What are some things that it is OK to present hearsay for?

Answer 22

– to show the declarant was conscious/alive
– to explain conduct
- to prove a warning was given
– to show an investigation was needed
– to show someone had knowledge
– to show the nature of the place
– to impeach a witness
– to show the declarant’s state of mind
– for verbal acts