practice essay ANSWERS set 1

EVIDENCE

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 PRACTICE ESSAY ANSWERS 1.

EVIDENCE

ANSWER TO QUESTION 1

1. Brent’s statement: Alice’s testimony regarding Brent’s statement, “I’m so sorry I ran that stop
sign and hit you,” is admissible. At issue is whether this statement constitutes inadmissible hearsay.
Hearsay is a statement, other than one made by the declarant while testifying at the current trial or
hearing, offered in evidence to prove the truth of the matter asserted. Some statements are excluded
from the definition of hearsay, and other statements are admissible because of exceptions to the general
rule. Statements attributable to a party-opponent are not hearsay under the Federal Rules.

Here, Brent is a party. He made the statement and it is offered against him. Therefore, it is not hearsay
under the Federal Rules of Evidence and is admissible.

This statement also could come in as an exception to the general hearsay rule. Under the excited utter-
ance exception, a declaration made by a declarant during or soon after a startling event is admissible.
The declaration must be made under the stress of excitement produced by the startling event and must
concern the immediate facts of the event. A traffic accident is certainly a startling event, and Brent
made the statement regarding the accident immediately after it happened. Thus, the statement is likely
admissible as an excited utterance.

2. John’s testimony: John’s testimony regarding his brother’s statement is not admissible. At issue is
whether this statement constitutes inadmissible hearsay. (See 1., above, for a discussion of the hearsay
rule.)

Here, the statement, “Brent stopped at the stop sign and looked both ways before cautiously proceeding
into the intersection,” is apparently offered to prove the truth of the matter asserted—that Brent
stopped at the stop sign. It was made by a declarant—John’s brother—outside of the trial. Therefore, it
meets the definition of hearsay and is inadmissible unless otherwise permitted. It does not fit into any
of the exclusions (nonhearsay) or exceptions. Although Brent might argue that the statement qualifies
as a present sense impression, he will be unsuccessful. A statement regarding an event or condition,
made while the declarant is perceiving that event or condition or immediately thereafter, is admissible
as an exception to the hearsay rule. Here, however, there are no facts indicating that John’s brother
made the statement during or immediately after the accident. Thus, the evidence should be excluded.

3. The mechanic’s testimony: The admissibility of the mechanic’s testimony regarding his state-
ment to Brent depends on the purpose for which it is being offered. At issue is whether this statement
constitutes inadmissible hearsay. (See 1., above, for a discussion of the hearsay rule.)

The mechanic’s statement, “These brakes are barely functioning,” is hearsay if it is being offered for its
truth—that there was a mechanical problem with the brakes on Brent’s car. Because no hearsay excep-
tions apply, the statement would be inadmissible.

However, it is possible that Alice is offering the mechanic’s statement for a more limited purpose—
not to prove that the brakes were faulty, but to prove that Brent was aware of the problem prior to the
accident and drove the car anyway. A statement offered to prove its effect on the hearer is not consid-
ered hearsay. Thus, the mechanic’s statement would be admissible for this purpose (although the judge
may provide the jury with a limiting instruction).

PA1

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 2. EVIDENCE

ANSWER TO QUESTION 2

1. Conversation between Ramirez and Onway: No, the judge did not err in overruling the objection
to Field’s testimony regarding the statement he overheard. At issue is whether the statement is hearsay,
thus precluding Field’s testimony. Hearsay is defined as an out-of-court statement offered to prove the
truth of the matter asserted. Here, the statement by Ramirez falls within the traditional definition of
hearsay—it was originally made out of court and is being offered to prove that Onway should not have
been on the roof until all the barricades were erected. However, a statement attributable to a party-
opponent is removed from the definition of hearsay and is admissible. Here, Ramirez—the defen-
dant—stated that Onway should not have been on the roof until all the barricades were erected. This
is a statement by a party, and it is relevant in determining whether Onway acted negligently in erecting
the barricades. Thus, the statement is admissible and the judge did not err in overruling the objection to
Field’s testimony.

2. Field’s deposition statement: No, the judge did not err in overruling the objection to Field’s prior
statement. The issue is whether Field’s prior inconsistent statement made during the deposition consti-
tutes hearsay when offered in the subsequent trial. As stated above, hearsay is an out-of-court statement
offered to prove the truth of the matter asserted. Here, Field’s prior statement falls within the defini-
tion of hearsay—it is being offered to prove whether Boyd was lying inside or outside of the barricade.
However, a witness’s prior inconsistent statement is not considered hearsay under the Federal Rules if
given under oath at a prior proceeding (e.g., a deposition) and the witness is subject to cross‑examina-
tion. Field was presumably under oath when he made the statement at the discovery deposition. He is a
witness at trial and subject to cross-examination regarding the statements. Therefore, the judge did not
err in overruling the objection to Field’s prior statement.

3. Introduction of DSS report: Yes, the judge erred in sustaining the objection to the admissibility
of the DSS report. The issue is whether the DSS report is admissible. Generally, the report constitutes
hearsay because it is an out-of-court statement offered to prove the truth of the matter asserted—that
the barricades were installed as indicated on the diagram at 7:45 a.m. However, the report is admis-
sible under the business records exception to the hearsay rule. The business records exception provides
that a writing or record made as a memorandum or record of any act, transaction, occurrence, or event
is admissible in evidence as proof of that act, transaction, occurrence, or event, if made in the regular
course of any business and if it was the regular course of such business to make it at the time of the
act, transaction, occurrence, or event or within a reasonable time thereafter. The business record must
consist of matters within the personal knowledge of the entrant or within the personal knowledge of
someone with a business duty to transmit such matters to the entrant. The record must also be authen-
ticated by testimony of the custodian or other qualified witness to identify the record and its mode of
preparation, or by a written certification.

Here, the DSS is clearly within the ordinary course of the roofing company’s business. It is a routine
“daily” record. The facts state that Onway was responsible for its completion and that he “always” did
so, which indicates that he had a business duty to make the record. Onway had personal knowledge
regarding the matters in the DSS because he had erected the barricades himself, and he completed the
report immediately thereafter. Finally, Onway authenticated the record by testifying about its identity
and preparation. Thus, the DSS is admissible hearsay pursuant to the business records exception, and
the judge erred in sustaining the objection to its admissibility.

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