Chapter 9 – Hearsay

The Plaintiff, pursuant to discovery in a civil lawsuit, deposed Witness. Defendant’s attorney attended the deposition but did not cross-examine Witness. Witness now testifies differently at the trial, so Plaintiff offers for admission into evidence relevant portions of Witness’s deposition to prove the truth. The trial judge should rule the evidence:

(a) Inadmissible because defendant did not cross-examine witness.

(b) Admissible as a dying declaration.

(c) Inadmissible because it is hearsay.

(d) Admissible as non hearsay prior testimony.

Same facts as #1 except that Witness’s deposition was taken without notice to Defendant’s attorney, who had no opportunity to cross-examine Witness. The Plaintiff still offers the statement as substantive evidence. The judge should rule the evidence:

(a) Inadmissible because the defense attorney did not have the opportunity to cross-examine the witness.

(b) Inadmissible because it is an excited utterance.

(c) Admissible as writing used to refresh memory.

(d) Admissible as prior statement by a witness.

The issue in this lawsuit is whether there was a bright sunshine at Roosevelt Lake in Arizona on July 4, 1995 at 11:00 am. The witness took the stand to testify that he was lying next to his wife (the declarant) on that day and time, when she said: “Now that the sun has come out, I’ll be able to get my tan.” This statement is:

(a) Admissible only if the wife is unavailable.

(b) Admissible as a present sense impression, whether or not the wife is available.

(c) Inadmissible because the witness does not have first-hand knowledge.

(d) Inadmissible as hearsay.

Plaintiff sued Defendant for injuries sustained at an intersection automobile accident. Witness, who was standing on the corner of the intersection, observed the accident and shortly afterward remarked to a nearby homeowner, “Defendant should not have tried to run the red light.” The witness was called to testify in order to establish that the Defendant was at fault, but the witness refused to repeat what he had remarked to the homeowner. The Court ordered him to testify, but the witness resisted. The Court should rule the statement:

(a) Admissible because the witness is constructively unavailable.

(b) Admissible because it’s not offered for the truth asserted in the statement, and therefore it is not hearsay.

(c) Inadmissible because although the witness is constructively unavailable, there is no hearsay exception offered in these answer choices.

(d) All of the above.

Plaintiff wants to proffer the statement of a witness who was deposed before trial by both the plaintiff and the defense attorney. The witness now refuses to testify although the court has ordered him to do so. The statement from the deposition is:

(a) Inadmissible because the witness is available to testify.

(b) Admissible because the witness is constructively unavailable and the proferred statement was made during former testimony when both parties had similar motive and opportunity to question him.

(c) Admissible because the judge said so.

(d) Inadmissible because although the witness is constructively unavailable, there is no hearsay exception,

In another car accident incident, a witness who saw the accident told his friend several days later, “Plaintiff should have been driving with his lights on.” Unfortunately, the witness had about 10 felony convictions for false statement, and Defendant did not think he would be very credible. The Defendant gave the witness $2000.00 to go to Cabo San Lucas during the trial. If the friend of the witness is called by Defendant to testify as to the witness’s statement, this testimony is:

(a) Admissible because the witness is constructively unavailable and there is someone else who can testify and be cross-examined.

(b) Inadmissible because it is hearsay with no applicable exception.

(c) Inadmissible because it was not an excited utterance.

(d) Admissible because the witness is constructively unavailable.

A pedestrian, who was the victim of a speeding car, was in the hospital for several weeks and was expected to live. The Pedestrian kept saying: “Why did the driver in that car drive so fast?” At trial, Pedestrian’s attorney asks the nurse to repeat what pedestrian said in the hospital, to prove that the driver was speeding. The statement should be:

(a) Inadmissible because it is hearsay without an exception.

(b) Inadmissible because it is a description of conduct.

(c) Admissible because it is a statement of present sense impression.

(d) Admissible because it is a statement made upon belief of impending death.

Plaintiff fell from her ladder while washing windows as an employee of Window Washer’s of America (WWA). She fell because she was staring at Hugh Grant as he walked past. He ran to help her, and not wanting to appear more stupid than she already looked, she said to him: “I’m fine, only my pride is hurt.” She then died from embarrassment, and her estate sued WWA. The defendant, WWA, calls Hugh to repeat the statement to show that plaintiff did not die from the fall. It is:

(a) Inadmissible because it is not offered by the correct party.

(b) Admissible as a dying declaration.

(c) Admissible because it is a statement of the declarant’s then existing medical condition.

(d) Inadmissible because it is hearsay without an exception

Window Washers of America offered the certified copy of the public record of the death certificate which showed cause of death as embarrassment. WWA does not call a witness to lay foundation for the record. The record is:

(a) Inadmissible because the defendant failed to provide the proper foundation.

(b) Admissible because the document is a public record compiled pursuant to a duty imposed by law.

(c) Inadmissible because it is hearsay without an exception.

(d) Admissible because it is a party-opponent statement.

Lizzy, who is an avid fan of Elizabeth Taylor, was curious about the value of her new diamond from her intended, Rick Button. The lovey-dovey card he had written her stated, “With all my love, I give you my great great grandmother’s priceless diamond. Lizzy obtained an appraisal revealing that alleged diamond was a cubic zirconia. Lizzy, infuriated, sued for breach of contract (the agreement to marry, in this jurisdiction, constitutes a binding contract) based upon his fraudulent representation about the ring. At trial, her attorney asks her to repeat the lie Rick wrote in the card. Rick’s attorney objects. The statement is:

(a) Admissible because it is information given about a mental condition.

(b) Inadmissible because it is hearsay without an exception.

(c) Inadmissible because Rick is available to testify.

(d) Admissible because it is a statement offered against a party-opponent

Rick testified that he believed the stone in the ring he gave Lizzy was a diamond. Lizzy’s attorney asked him on cross-examination: “Isn’t it true that you bought the ring at Macy’s for $1000.00?” Rick’s attorney argues that the cross-examination about the price of the ring implied that Rick fabricated his belief that the stone was a genuine diamond. The court rules, however, that no such inference could reasonably be drawn from the question asked by Lizzy’s attorney. To prove that Rick really did believe the stone was a diamond, on redirect Rick’s attorney wanted to ask Rick to repeat that he had told Lizzy, “Your love for me is as priceless to me as this diamond.” Should the judge let Rick testify as to what he told Lizzy?

(a) No, because it is irrelevant.

(b) No, because the court found that Lizzy’s attorney did not imply through cross-examination that Rick fabricated his belief about the diamond, so the prior consistent statement cannot be offered to rebut an implied charge of recent fabrication.

(c) Yes, because the statement is admissible under the party-opponent rule.

(d) All of the above.

Later in the trial, Lizzy wants to testify about the time that Lizzy startled Rick by trying to cut glass with the diamond to test its authenticity. (Judicial notice was taken that it is common knowledge that a diamond can cut glass.) The statement Rick screamed was, “Don’t do it, it might not work.” The statement would be:

(a) Admissible as an excited utterance.

(b) Admissible, because it is offered against Rick who is a party in the lawsuit.

(c) Admissible because it is offered to prove Rick’s belief about the diamond, and not to prove that the stone might not cut glass.

(d) All of the above.

Lizzy offered a copy of a report by an appraiser, written for her for purposes of this litigation, showing that the ring is a fake. She wants the report admitted to prove that the ring is a fake. The report is:

(a) Inadmissible because it is hearsay without an exception.

(b) Inadmissible because she doesn’t offer it for the truth asserted in the report.

(c) Admissible because it is not hearsay.

(d) Admissible because the report is a business record kept in the ordinary course of the appraiser’s business.

Lizzy collapsed when the appraiser told her the bad news. She believed that she was meeting her maker i.e., dying. She said: “Rick has caused this.” At the civil trial, Lizzy, who is present, asks the appraiser to repeat the statement. The statement is:

(a) Admissible because it is a dying declaration.

(b) Inadmissible because Lizzy is available to testify, and therefore the dying declaration exception does not apply.

(c) Inadmissible because the statement is irrelevant.

(d) Admissible as a statement against interest.

In an auto accident case, plaintiff offered the testimony of By-Stander who overheard defendant’s wife exclaim hysterically immediately after the accident, “If you hadn’t run that stop sign we would not be in this mess, piston face!” The wife has refused to testify, claiming the marital privilege. (The wife has not been named as a party to the lawsuit.) Her statement is:

(a) Inadmissible as immaterial.

(b) Inadmissible because the wife is available to testify but won’t.

(c) Admissible as a party admission.

(d) Admissible, because although it is hearsay, it falls under an exception as an excited utterance.

In a child custody dispute, the father’s lawyer offered the mother’s statement made to a friend several weeks before the custody suit. The statement was, “I’ll get him for dumping me!” The father wants to show that the mother had a motive to file the custody suit. The father does not want the statement for its truth.

(a) The statement is admissible because it is not hearsay since it is not being offered for the truth(i.e. that the father dumped her) but only to show motive or intent.

(b) The statement is admissible because the mother is not available to testify.

(c) The statement is admissible hearsay because it is a recorded recollection

(d) The statement is inadmissible because it is highly prejudicial and will inflame the jury against the father Barbie Bombshell claims that her nose was injured in a car accident. (She has since had a nose job claiming that it was necessary because of the car accident.)

Barbie Bombshell claims that her nose was injured in a car accident. (She has since had a nose job claiming that it was necessary because of the car accident.) The defendant’s lawyer wants to admit the following statement Barbie made to the paramedic at the accident: “No, honey, the only part of me that is sore is my little pinkie.” (Barbie is present and available at trial).

(a) The statement is inadmissible because her little pinkie is not relevant to the injured nose.

(b) The statement is admissible under the medical diagnosis exception.

(c) The statement is admissible as nonhearsay because it is offered against a party-opponent.

(d) Both b & c, but not a.

On the issue of whether a painting sold to Harvey was a genuine impressionist painting by Claude Monet, the dealer offered as evidence his records (which he kept on all of the paintings he bought and sold), which recorded the canvas sold to Harvey as a Monet. Is the record admissible?

(a) No, because it is being offered for the truth.

(b) No, because it is hearsay.

(c) Yes, because it is not hearsay.

(d) Yes, because although it is hearsay, it is admissible under the businessrecords exception,