Evid 2 Review Q's1

A D was charged with murdering his cousin, whose body was found near the D's office. The prosecution alleged that the cousin, who lived in another state, confronted the D to tell him about an affair that the cousin was having with the D's wife. The D denied having even seen the cousin for several weeks before the was murdered. The prosecution wishes to introduce a propertly authenticated letter from the cousin to the D's wife, dated the day before the cousin's death, that stated: "I am going to go to your husband's office and tell him face-to-face that he must let us be together." Defense counsel objects How should the judge rule on the objection

• Overruled b/c the statement in the letter falls under the present state of mind exception

• Granted, b/c the statement in the letter is hearsay and does not fall within any exception

Answer explanation

803(3) motive, intent & plan come under state of mind

In a personal injury case involving a 2 car collision, the P wishes to introduce a sworn deposition taken from a W who died 2 weeks before the case came to trial. In the deposition, the W stated that she saw the D run a red light at the time of the collision with the P's car. Both the P's and the D's attys were present at the deposition. The D objects in the appropriate manner to the introduction of the W's statement. How should the court rule on the admissibility of the deposition?

• Admissible, b/c the D had an opportunity to cross-examine the W at the time the deposition was taken

• Inadmissible b/c the D has no opportunity to cross-examine the W at trial

The owner of a jewelry store brought a civil action against a former clerk for the value of various pieces of jewelry missing from the store. The d had been fired after another employee had reported that the D was stealing jewelry. At the trial, the P calls his employee as a W. The W testifies that he does not remember either having seen the D take anything from the store or having told the P that she had done so. The P then takes the W stand and proposes to testify to what the W had told him about seeing the D stealing pieces of jewelry from the store. Assuming appropriate objection by the D, woudlsuch testimony b the P be admissible

• Yes, as proper impeachment of the W's testimony

• No, as inadmissible hearsay if offered to prove theft by the D

The P is suing the D for misrepresentation, alleging that the D claimed his business was valued at #250,000 when he sold it to the P, but that an appraiser hired by the P concluded that it was only worth 4150K. At trial, the D's atty offers a report prepared by an accountant shortly after the transfer agreement was signed. While reports of this kind are not normally prepared by the accountant, he prepared this one as a favor to the D. The report contained an extensive analysis of the financial condition of the business and concludes that the value of the business could be placed at $250K instead of $150K. the P's atty objects to the introduction of the report as evid of th value of the business. How should the court rule on the report?

• Admissible non-hearsay, b/c the report constituted the opinion of the accountant

• Hearsay, but admissible as a past recollection recorded

• No, b/c it is a statement attributable to a party-opponent

A motorist who failed to stop at a stop sign was struck by a car being taken for a test drive by a mechanic who had repaired the car's brakes. The motorist sued the repair shop that employed her to recover for his injuries. At trial, the motorist called a bystander to testify that when the mechanic saw that the motorist was injured, she ran over and told him, "I'm really sorry. I guess I didn't fix the brakes as well as I thought." should the repair shop's objection to the bystander's testimony be sustained?

• Yes, b/c the mechanic's statement is inadmissible against the repair shop

• No, b/c it is a statement attributable to a party-opponent

A V was struck by a car in a hit and run accident. a police officer arrived half an hour after the accident. The V was in shock and came in and out of consciousness. As the officer applied first aid, the V muttered, "I know I'm going to die. Oh my, he rant the light!" the V fell back into a deep unconsciousness, but revived again and muttered, "Why didn't he stop?" The officer heard the comments clearly and made a note of them. God police work by the officer and others led to the discovery of the driver of the car that struck the V. The V survived and filed a tort action against the driver. Before the case came to trial, the V died of a heart attack. The causes of the hear attack were totally unrelated to the accident. The laws of the jurisdiction allow for survival of personal injury actions. Thus, the V's estate is substituted for the V as P. If the P's atty seeks to have the officer testify to the V's statements at the time of the accident, how will the court rule?

• Inadmissible, b/c the V did not die as a result of the accident

• Admissible, b/c the statements were made at a time when the V feared impending death

Undercover police arrested a brother and a sister after a 4-month investigation into a series of residential burglaries. During interrogation, the brother admitted that he had committed 8 of the burglaries, including one where he stole a valuable painting that he "fenced" to the sister. According to the brother, the sister subsequently sold the painting and gave the brother a share of the sale price. The sister was charged with receipt of stolen property, a misdemeanor offense, and was subsequently convicted. The painting was not recovered and the owners filed suit against the sister for damages. At trial, the brother testified to having "fenced" the painting to the sister. If the owners' atty trieds to introduce a certified copy of the recored of the sister's conviction to corroborate the brother's testimony that the sister possessed and sold the painting on proper motion will this evidence be admitted?

• No b/c it is hearsay not within any exception

• Yes, b/c it is an official record

A W was stopped at an interscetion when she saw a car run a red light, strike the V in the crosswalk, and proceed through the intersection. The W gave a very detailed description of the driver to the police officer at the scene. Based on this description, the police apprehended the D and charged him with several criminal counts for the accident that seriously injured the V. the W testified at the trial, but the d was acquitted. The V then filed a civil suit against the D to recover for her injuries. Before the trial of the V's suit, the W died. In her suit against the D, the V offers into evidence the police report containing the W's description of the driver. The D objects. How should the court rule on the admissibility of the report?

• Admissible, b/c the report is relevant and is not hearsay

• Inadmissible, b/c the report is hearsay not within any exception

A test preparation course sued a rival program for interference with business relations. The rival program had taken the test preparation course's reply cars from various colleges and mailed them in hoping to swamp the clerks with work and cut the course's profit margin. The rival program also induced a professor under contract with the course to break his contract and lecture with the rival program for a percentage of the profits. the course director caught on to what the rival program was up to after the professor suddenly left the course. The director ordered his clerks to log in, for a 2 week period, any and all business reply requests from the rival program's city. Immediately after the tally record was complete, the test preparation course filed its suit. At trial, the course's atty offers the tally record into evidence. The defense atty objects. should the court find the tally record to be admissible?

• Yes, as a business record

• No, b/c it is hearsay not within any exception

A decedent was prosecuted for criminal violations of a hazardous waste disposal act and convicted, inpart on the testimony of a W. After the decedent's death, the P on whose property the decedent dumped the hazardous waste brought suit to recover the cleanup costs against the executor of the decedent's estate. Because the W is currently incarcerated in another state beyond the reach of the court's subpoena powers, the P seeks to intorduce the transcript of the W's testimony from the decedent's criminal trial in the present action. The executor objects to its admission. How should the court rule on the admissibility of the transcript?

• Admissible, b/c the w was subject to cross-examination in the previous action

• Inadmissible, b/c the P has not shown that the w is truly unavailable