Hypo 38

Dr. Suess, a board-certified child psychiatrist testifies, "In my opinion, within a reasonable degree of medical probability, Bartholomew Cubbins' preoocupation wiht hats is a disabling psychosis.  My opinion is based on (1) my own clinical interviews and tests of Bartholomew; (2) exhibits 1 and 2 in evidence (MRI test results, medical office records of Dr. Grinch); (3) interviews of Bartholowmew's friends Wump, Gump, and Thump; and (4) a written report prepared by Dr. Sam I Am.

(a) Bartholomew moves to strike Dr. Suess's opinion because it is based, in part, on inadmissible hearsay.

(b) Should Dr. Suess be permitted to testify further, "Let me read to you what Wump said during out interview...and here's what was in Dr. Sam I. Am's report"?

Answer

(a) (1)= personal knowledge; (2) = evidence in trial record; (3) and (4) = hearsay BUT can be relied on if of a type reasonably relied upon by experts in the field.

(b) Not permissible because it is backdoor hearsay

Hypo 39

In a personal injury case, D is alleged to have been driing recklessly at the time of a car accident.  Witness who observed the event testifies that D looked angry, smelled of alcohol and drove away from the scene at 80 m.p.h.  Witness then states, "It looked to me as though D was engaged in conduct constituting a reckless disregard for the safety of others." Objectionable?

(A) Yes, because W is testifying to the ultimate issue.

(B) Yes, because W's opinion is not helpful.

Answer

(B) Yes, because W's opinion is not helpful.

Hypo 40

P calls Witness 1 to the stand.  Witness 1 testifies that she saw D's car run the red light.  Defense counsel states that she has no questions for the wintess.  After Witness 1 steps down, P calls Witness 2 who testifies, "Witness 1 has a good reputation for truthfulness."  Objectionable?

Answer

Yes, and the objection should be sustained because there is no indication of an attack on Witness 1's credibility.

Hypo 41

D is sued for negligence in a multi-vehicle accident in which he was driving his Suburban.  Witness testifies for P that she saw the Suburban run the stop sign.

(a) On cross-examination, may D's counsel seek to establish that a few days after the accident, W told the police that the Jeep Cherokee, not the Suburban. ran the stop sign?

(b) If Witness admits she made the prior inconsistent statement, may D use the statement as substantive evidence that the Jeep Cherokee, rather than the Suburban, ran the stop sign?

Answer

(a) Yes, because there is an inconsistency between trial testimony and prior statement (prior inconsistent statement)

(b) No, it does not come in for the truth because it would be hearsay not within an exception.

Hypo 42

In auto accident case, P testifies that she was wearing her seatbelt.  D does not cross-examine her.  During the defense, D calls Joe the Bartender, who testifies that P told him, at Joe's bar a week after the accident, that she had NOT been wearing her seatbelt.

(a) Should P's motion to strike be granted on the ground that P was not given an immediate opportunity to explain or deny the inconsistency?

(b) Is P's statement admissible to impeach P AND as substative evidence that she was not wearing her seatbelt?

Answer

(a) No (in both TX and on MBE).  D's counsel does not have to give P the opportunity to explain or deny because she is the opposing party.

(b)Yes, because a party's statement is not hearsay so long as it is offered against that party (admission by party-opponent)

Hypo 43

Larry testifies for the prosecution that he saw D commit the crime.  During the defense: D calls Rev. Al to testify that Larry has a lousy reputation for truthfulness among members of Rev. Al's congregation, and in Rev. Al's opinion, Larry is not a truthful person.

(a) Admissible to suggest Larry's testimony is false?

(b) May Rev. Al follow up his opinion as follows: "Let me tell you how I reached my opinion of Larry.  During the past year, he lief to me on six separate occasions."

Answer

(a) Yes, it is admissible to suggest that Larry's testimony is false.

(b) No--specific instances of conduct are not permitted, even to show the basis of an opinion. 

Hypo 44

D is prosecuted for arson.  At trial, D testifies in his own behalg,urging that the fire was an accident.  On cross-examination, may the prosecutor properly ask D:

(a) Whether he was convicted eight years ago for the misdemeanor of income tax fraud?

(b) Whether he was released from prison nine years ago for his misdemeanor conviction for possession of marijuana?

(c) Whether he was convicted two years ago for the misdemeanor of shoplifting?

(d) Whether he was convicted five years ago for felony assault?

Answer

(a) Yes, it is a prior conviction involving dishonesty or false statement.

(b) No, it is not a felony and does not involve dishonesty or false statement.

(c) No.  'Dishonesty or false statement' for purposes of the bar = writing or speaking.

(d) Yes, as long as the balancing test is met (probative value not substantially outweighed by danger of unfair prejudice)

Hypo 45

Witness gives favorable testimony for D. On cross-examinatin, P asks Witness whetehr she assaulted her mail carrier two years ago (no charges were ever brought).  Objectionable?

Answer

Yes, because method of impeachment is limited to character for truthfulness.

Hypo 46

After Witness testifies for D, P asks Witness whether she made false statements in an application for food stamps in July 2001 (no charges were ever brought).  Objectionable?

Answer

(a) Federal rule: Not objectionable because it is a bad act that involves deceit or lying, even though it did not result in a conviction.

(b) Texas rule: Objectionable because if a bad act did not result in a conviction, it is not important enough to inquire into. 

Hypo 47

After Witness testifies for D (in federal court), P asks Witness whether she made false statements in an application for food stamps in July 2001 (no charges were ever brought).  Witness vehemently denies making false statements in the application.  May P thereafter call a welfare agent to prove that Witness made the false statements?

Answer

No--extrinsic evidence is not permitted.

Hypo 48

Federal prosecution of Dieter.  Hans testifies for Dieter.  On cross-examination, Hans is asked whether he was arrested three years ago for passing counterfeit money.  Objectionable?

Answer

Yes.  Although it is a bad act of deceit or lying, there is a problem with use of the word "arrested."  Counsel also cannot use 'indicted' or 'charged' because of risk of confusing the jury.

Hypo 49

Prosecution of Donald.  Winston testifies for the prosecution.  On cross-examination, Winston is asked whetehr he was arrested a month ago for selling marijuana and is awaiting trial on those charges.  Objectionable?

Answer

(a) Federal rule: Admissible because evidence is being used to show that W is trying to curry favor with prosecution = motive to misrepresent.

(b) Texas rule: Admissible to show bias/motive to misrepresent.

Extrinsic evidence to show bias/motive to misrepresent is permitted under both Federal and TX rules.

Hypo 50

In an auto accident case, Witness testifies for P that , while leaning against a maple tree near the intersection of Yale and Harvard on March 1, he saw that the traffic light was red for D as his car entered the intersection and hit P.  On cross-examination, Witness is asked (a) "Isn't it a fact that the tree near the intersection was Yale and Harvard is an oak?" and (b) "Isn't it a fact that the traffic light at the intersection of Yale and Harvard was not functioning at all on March 1?"  Witness insists that his direct testimony was accurate.

(a) During the defense, may D properly prove that the tree at Yale and Harvard is an oak tree?

(b) During the defense, may D properly call a police officer to testify that the traffic light at the intersection of Yale and Harvard was not functioning at all on March 1?

Answer

(a) No, because the type of tree at the intersection is a collateral matter, so extrinsic evidence not permitted.

(b) Yes, because whether the light was functioning is not collateral and can therefore be proved by extrinsic evidence.

Hypo 51

Tom v. Nicole.  On July 1, pedestrian Tom was struck by a car driven by Nicole.  Penelope, a stranger to Tom and Nicole at the time, witnessed the accident and told the police on July 1 that Tom looked sober as he crossed the street.  At trial, six months later, Penelope testifies for Tom, "He looked sober as he crossed the street."

(a) On cross-examination, the only question Penelope is asked is whether she was convicted eight years ago of income tax evasion, to which she answers, "Yes."  On re-direct, may Penelope properly testify that she told the police on July 1 that Tom had looked sober?

(b) Assume that on the cross-examination of Penelope, she is asked, "Isn't it a fact that after this accident, you and Tom became close friends and are now living together as lovers?" to which she answers, "Yes."  On re-direct, may Penelope properly testify that she told the police on July 1 that Tom had looked sober?

Answer

(a) No--counsel cannot rehabilitate Penelope's character for truthfulness with a prior consistent statement here.  Rehabilitation must be by calling a character witness.

(b) Yes, because the prior consistent statement was madde before the alleged motive to fabricate arose.  In this context, her prior consistent statement is admissible as substantive evidence that Tom had been sober (hearsay exclusion). 

Hypo 52

Delbert is sued for his alleged negligence in an auto accident.  He tells his attorney what happened and gives her the cell phone with which he was making a call at the time of the accident.  Before trial, Delbert is deposed by P's counsel.

(a) Must Delbert respond if asked, "What did you tell your attorney about the accident?"

(b) Must Delbert respond if requested to "Describe what you were doing at the time of the accident."

(c) If served with a subpoena, must Delbert's attorney produce Delbert's cell phone?

Answer

(a) No, because of attorney-client privilege.

(b) Yes, because there is no attorney-client privilege as to underlying facts

(c) Yes, becaus the cell phone is physical evidence, not a communication. 

Hypo 53

Physician examines Patient's lungs in hospital room while visitor is present.  (1) Patient tells doctor, "Do you suppose dmy wheezing is due to the 4 packs of cigarettes I smoke every day?" (2) After visitor leaves, Patient says to doctor, "Know any good lawyers? I haven't paid my income taxes in 3 years."

(a) in state court action in which condition of patient's lungs is in issue, could doctor be compelled to disclose statement (1)?

(b) In prosecution for income tax evation, could doctor be compelled to disclose statement (2)?

Answer

(a) Yes--although the statement related to treatment, a visitor was also present, thereby destroying physician-patient confidentiality.

(b) Yes, because the statement is not related to medical treatment.

Hypo 54

Hillmon's widow sues Big Bad Insurance Co. for failure to pay proceeds on Mr. Hillmon's life insurance policy.  Big Bad asserts that Hillmon misrepresented his heart condition when he applied for the policy.  Big Bad subpoenas the medical records of Hillmon's former physician showing Hillmon's heart murmur.  Privileged?

Answer

Not privileged in Texas because the insurance company put Hillmon's physical condition in issue.

Hypo 55

Niles is prosecuted for the murder of his brother Frasier.  Niles and Daphne are a married couple.  Niles comes home on the night of Frasier's demise wearing a blood-stained Armani topcoat, which Daphne observed.

(a) At trial, the prosecutor calls Daphne to the stand to testify to her observations about Niles' topcoat, but she refuses to testify.  The prosecutor seeks to compel her testimony.

(b) Assume Daphne is willing to testify against Niles.  In addition to the topcoat observation, she seeks to testify to the following: "Niles told me when he got home that he stabbed Frasier."  Niles objects.

Answer

(a) Daphne cannot be compelled to testify against Niles because she is the holder of the spousal privilege.

(b) Niles cannot stop Daphne from taking the stand and testifying to what she saw.  What he said to her, however, is a privileged confidential communication.

Hypo 56

Niles is prosecuted for the murder of his brother Frasier.  Niles and Daphne are a married couple.  Niles comes home on the night of Frasier's demise wearing a blood-stained Armani topcoat, which Daphne observed.

Assume that Daphne divorces Niles before his case goes to trial.

(a) Can Daphne be compelled to testify to her observations about Niles's topcoat?

(b) Can Niles prevent Daphne from disclosing his admission to her about stabbing Frasier?

Answer

(a) Yes, Daphne can be compelled to testify because there is no marriage and therefore no spousal privilege.

(b) Yes, Niles can prevent Daphne from disclosing his admission to her because confidential communications made during marriage survive divorce.

Hypo 57

Action by the estate of Percy against Damien seeking damages for the pain and suffering Percy experienced in an auto accident caused by Damien.  Damien denies liability and also asserts that Percy died instantly in the accident.  Witness on the stand proposes to testify that shortly after the accident, Percy said, "Damien's car ran the red light."

(a) Hearsay if offered to prove who ran the red light?

(b) Hearsay if offered to prove that Percy was alive following the accident?

Answer

(a) Yes--hearsay.

(b) Not hearsay becasue statement is being offered for a non-truth prupose and is therefore admissible.

Hypo 58

Gates sued Trump for breach of an oral contract.  Witness takes the stand and proposes to testify as follows: "I heard Trump say to Gates, 'I accept your offer to sell Microsoft.'"  Hearsay?

Answer

No.  The statemeng is a verbal act with independent legal significance (offer/acceptance).

Hypo 59

P v. Supermarket.  P alleges that she slipped and fell on a broken jar of salsa in aisle 3 and that Supermarket had prior notice of the dangerous condition.  P's witness takes the stand and proposes to testify: "Several minutes before P entered aisle 3, I heard another shopper tell Supermarket manager, 'There's a broken jar of salsa on the floor in Aisle 3.'"  Inadmissible hearsay?

Answer

Depends on purpose for the statement:

(1) to prove that salsa was in the aisle = inadmissible hearsay

(2) to prove that Supermarket was told of possible problem in aisle 3 = evidence that Supermarket was on notice and thus admissible

Hypo 60

Sybil is charged with the murder of her husband Basil.  To prove motive, the prosecutor seeks to introduce an anonymous note to Sybil that was found in her possession at the time of her arrest.  The note stated, "Basil is having an affair with Polly."  Inadmissible hearsay?

Answer

No, the note is not inadmissible hearsay because it is not being offered for the truth of the statement asserted. It is bein offered to show motive. 

Hypo 61

Homer is prosecuted for murder.  Defense: insanity.  Witness for Homer proposes to testify: "Two days before the killing, Homer said, 'I am Elvis Presley.  It's good to be back.'"  Admissible?

Answer

Yes, the statement is admissible because it is not being offered for a hearsay purpose.

Hypo 62

Prosecution of D for robbery.  D takes the stand in his own defense and testifies: (a) "I didn't do it. (b) And I told the cops when they arrested me that I didn't do it."  Should (a) and (b) be excluded as hearsay?

Answer

(a) No, the first part of the statement should not be excluded as hearsay-- it is not hearsay because it is not an out-of-court statement. 

(b)Yes, the second part of Homer's statement is excludable hearsay.

Hypo 63

X is charged with income tax evasion for the year 2000.  Prosecutor wants to prove X's income during 2000, and offers into evidence a loan application X submitted to a bank that year.  X objects on the ground that the loan application, which is filled with inflated numbers, was self-serving and unreliable.

Answer

Objection overruled.  There is no need for the statement (loan application) to be against X's interest when it was made.  This is a party admission, and as such is not hearsay.

Hypo 64

Ma v. Life Insurance co. for non-payment of policy proceeds on the life of Pa.  Defense: suicide.  Defendant offers a letter by Ma to her friend in which she wrote, "When I came home from shopping, I found Pa dead on he floor with his revolver nearby.  I didn't see what happened, but this was no accident.  Pa did himself in. "  Admissible despite Ma's lack of personal knowledge?

Answer

Yes, the statement is admissible because personal knowledge is not required for party admissions.

Hypo 65

Charlie the truck driver smashed into Pam's house while on a run for Acme Trucking, his employer.  Charlie descended from the cab and calmly told Pam, "Sorry about wrecking your home.  I guess I took my eyes off the road.  I was reaching down to get a beer and a joint."  In Pam v. Acme, is Charlie's statement admissible against Acme?

Answer

Yes--the statement is a vicarious admission.

Hypo 66

Betty v. Acme Trucking for sex discrimination in failing to hire her.  She offers the statement of Charlie, an Acme truck driver, who told her over drinks one night, "I know the Acme personnel office has a policy against hiring women no matter how qualifid they are."  Charlie's statement is inadmissible because:

(a) Charlie was not on the job when he was speaking to Betty.

(b) Charlie's statement did not concern a matter within the scope of his employment.

Answer

(b) Charlie's statement did not concern a matter within the scope of his employment. 

Note: (a) is incorrect because the requirement is that an employment relationship exists; being on the clock is not necessary.

Hypo 67

Bus accident.  Passengers A and B were seriously injured.  A sued Bus Co., alleging negligence by bus driver.  At trial, Witness testified for A that bus driver was intoxicated at time of accident.  Thereafter, Witness died.  B now sues Bus Co. and seeks to admit a transcript of Witness's former testimony.  Admissible?

Answer

Admissible purusant to former testimony elements and hearsay exception.

Hypo 68

Bus accident.  Passengers A and B were seriously injured.  A sued Bus Co., alleging negligence by bus driver. At grand jury, Witness testifed that bus driver was intoxicated at time of accident.  Thereafter, Witness died.  Bus driver is prosecuted for DWI.  Prosecutor seeks to admit a transcript of Witness's grand jury testimony.

Hypo 68

Not admissible because there was no prior opportunity to cross-examine.  Admitting the transcript would violate the Confrontation Clause.

Hypo 69

Plaintiff v. Acme Trucking, based on Charlie the truck driver's negligent driving.  Charlie was fired immediately after the accident.  Two weeks later, Charlie told P's insurance adjuster that he had been drunk while driving.  At trial, Charlie refused to testify on the ground of self-incrimination.  The insurance adjuster may properly testify to Charlie's statement as evidence against Acme because the statement is:

(a) A vicarious party admission

(b) A statement against interest

Answer

(b) A statement against interest. 

Note: (a) is incorrect because Charlie made the statemetn after he was fired; therefore, there was no employment relationship.

Hypo 70

Prosecution of Doppler for arson of Town Hall.  Doppler calls Waldo to testify that while sitting in a bar, Waldo heard stranger say, "I'm the guy who torched Town Hall, but I'm glad they think it's Doppler.  Just to be safe, I'm leaving town tomorrow."  Doppler's attorney demonstrates that Stranger has not been located despite a diligent search.

Answer

Inadmissible because a statement against penal interest, when offered to exculpate D, must be corroborated.

Hypo 71

Elementary school principal sues Newspaper for libel for article accusing him of having sex with PTA mothers.  To prove defense of truth, Newspaper calls Reporter to testify that Mothers A, B, and C (all of whom are alive and well and live nearby) told him they had sex with principal.  Admissible--

(a) Under Federal rule?

(b) Under Texas rule?

Answer

(a) Federal rule: inadmissible because statements of Mothers do not tend to subject them to civl or criminal liability and are therefore not against interest.  Further, the Mothers must be unavailable under the Federal rule.

(b) Texas rule: admissible because the statemetns are against Mothers' social interest and unavailability of Mothers is not required. 

Hypo 72

Prosecution of Dagger Dan for the murder of Victor Victim.  A passerby found Victor lying in the gutter in a pool of blood with a knife in his stomach.  Victor told the passerby, "It's not looking too good for me.  Dagger Dan did it, and I'm going to get him for this."  Victor died an hour later.  May the passerby testify as to Victor's statement as a dying declaration?

Answer

Probably not because Victim was not under a belief of impending and certain death.

Hypo 73

Prosecution of Dillinger for bank robbery.  At the scene, a bank officer spoke with wounded Teller Tim, who gasped, "I'm a dead man.  Get me a priest.  Dillinger shot me as he made his getaway."  Tim then lapsed into a coma from which he has not emerged.  May bank officer testify to Tim's statement as a dying declaration?

(a) Under Federal rule?

(b) Under Texas rule?

Answer

(a) Federal rule: No because only criminal cases of homicide permit dying declarations.

(b)Texas rule: Yes, because the dying declaration exception is availabe in all cases; declarant unavailable.

Hypo 74

Civil action against Dillinger for Tim's personal injury damages during Dillinger's bank robbery.  At the scene, a bank officer spoke with wounded Teller Tim, who gasped, "I'm a dead man.  Get me a priest.  Dillinger shot me as he made his getaway."  Tim then lapsed into a coma from which he has not emerged.  May bank officer testify to Tim's statement as a dying declaration? 

(a) Under Federal rule?

(b) Under Texas rule?

Answer

(a) Federal rule: Yes--dying declaration exception available in all civil cases; declarant is unavailable.

(b) Texas rule: Yes--dying delaration exception is available in all cases; declarant is unavailable.

Hypo 75

Ernie observes a horrible head-on auto collision and excitedly tells a cop, who arrives 10 minutes later, "Oh my God, Officer! Both of those cars were going 80 miles an hour!"  May the cop properly testify to Ernie's statement in subsequent litigation arising out of the accident?

Answer

Yes because Ernie's statement falls under the excited utterance exception to hearsay; unavailablity of declarant not required.

Hypo 76

Pedestrian alleges that Dora is the hit-and-run driver who struck him.  Pedestrian testifies, "I saw a silver Acura speeding away.  A couple of seconds later, some unknown bystander told me he saw the Acura and its license plate was '007.'"  Admissible?

Answer

Admissible under the present-sense impression exception to hearsay; unavailability of declarant not required.

Hypo 77

Probate of Wanda's Will, in which she left all her money to the local pet cemetary.  Wanda's family challenges the will on the ground that Wanda was insane when she executed it.  Pet cemetary offers testimony that a few days before execution of the will, Wanda said ot her friend, "I do not love my family anymore."  Admissible over hearsay objection?

Answer

Yes, because the statement reflects her then-existing frame of mind, an exception to hearsay.

Hypo 78

Susan has died and her family sues Life Insurance Co. for nonpayment of the policy proceeds.  Defense: suicide.  Life Insurance Co. seeks to introduce a note found in Susan's apartment (in Susan's handwriting) in which she said, "I'm going to end it all next week."  Admissible over hearsay objection?

Answer

Admissible as a declaration of intent.

Hypo 79

Prosecution of Raymond for murder of Vic.  Before going out on Monday night, Vic told wife, "I'm meeting Raymond at the bowling alley."  Vic's dead body was found Tuesday morning outside the bowling alley.  Admissible over hearsay objection?

Answer

Admissible as declaration of intent to do something in hte future with someon else.  The statement puts Raymond at the scene of the crime.

Hypo 80

Plaintiff, whose arm was broken in accident with D, sues for damages for pain and suffering.  P may, of course, testify about the pain she experienced.  But P also clals Neighbor to testify, (a) "I was with P last July when she said, 'I'm feeling a lot of pain in my arm' and again in December when she said (b) 'I sure did feel a lot of pain in my arm last July.  Admissible over hearsay objection?

Answer

(a) Admissible bcause it describes then-existing physical pain.

(b) Inadmissible because it is backwards-looking.

Hypo 81

Plaintiff v. Defendant for pain-and-suffering damages based on alleged accident at D's store.  At trial, P calls one of her treating physicians to testify, "When P came to see me for treatment a year after the accident, she said, (a) 'the pain in my arm is killing me. (b) I've been losing sleep at night for the past six months because of the pain in my arm. (c) This all started when I fell down the stairway-- (d) the one with no treads at D's store.'"  Admissible over hearsay objection?

Answer

(a), (b), and (c): Admissible because they concern past and present symptoms or general cause of P's condition.

(d) Inadmissible because it concerns neither symptoms nor P's medical condition.

Hypo 82

Shooter is on trial for murder of Victim.  In hospital bed, Victim told the nurse, "I'm feeling pretty good considering Billy Ray tried to kill me."  The next day, Victim told a visitor, "I know I'm about to die.  Shooter's the one who shot me."  Prosecution introduces Victim's statement to the visitor as a dying declaration.  Should Shooter be allowed to introduce Victim's statement to the nurse?

Answer

Yes, because the statement to the nurse is a prior inconsistent statement that calls the hearsay declarant's credibility into question.