Hearsay: Conceptual Hearsay

Question 1

Hearsay or Not Hearsay?

On the terms of a marriage promise between Rebekah and Isaac, the statement by Isaac’s servant to Rebekah: “I have been authorized by my master to offer you jewels of sliver, jewels of gold, precious raiment, and all the benefits of Abraham’s birthright if you will agree to marry Isaac, sight unseen.” (Genesis 24).

Answer 1

Not Hearsay

Question 2

Hearsay or Not Hearsay?

On the issue of whether the above servant is an agent for Isaac and has authority to make the above offer of proposal, Rebekah offers the same statement above.

Answer 2

Hearsay

Question 3

Hearsay or Not Hearsay?

On the issue of whether a contract had been formed for the sale of the birthright between Isaac’s twin sons, Esau’s statement to Jacob, “Feed me, I am famished. If you give me some of your red pottage I will sell you my birthright.” (Genesis 25:29-33).

Answer 3

Not Hearsay

Question 4

Hearsay or Not Hearsay?

On the issue of whether the brothers Esau and Jacob had formed a contract for the sale of the birthright, Jacob offers the following statement made by Esau, the day after the above sale of Esau’s birthright: “I should not have sold you my birthright for a mess of pottage. You took unfair advantage of my hunger.”

Answer 4

Hearsay

Question 5

Hearsay or Not Hearsay?

To prove the identity of the murderers of Shechem the Hivite, the state offers evidence that Dinah (Jacob’s only daughter), shortly before the murder, told her twelve brothers (Jacob’s sons) that Shechem had raped her. (Genesis 34).

Answer 5

Not Hearsay

Question 6

Hearsay or Not Hearsay?

In a wrongful death action where the scope of damages for pain and suffering turns on whether Shechem survived the murderous assault, Shechem’s estate offers Shechem’s comments following the attack: “Jacob’s sons did it.”

Answer 6

Not Hearsay

Question 7

Hearsay or Not Hearsay?

In a wrongful death action, to prove the identity of the assailants, Shechem’s estate offers Shechem’s comments following the attack: “Jacob’s sons did it.”

Answer 7

Hearsay

Question 8

Hearsay or Not Hearsay?

To prove O.J. Simpson’s killed his wife Nicole, the fact that O.J. fled along the interstate after he had been accused of the crime. (“The wicked flee when no man pursueth: but the righteous are bold as a lion.” Proverbs 28:1).

Answer 8

Not Hearsay

Question 9

Hearsay or Not Hearsay?

As tending to prove “Mom” was guilty of the hit-and-run accident for which “Son” was charged, Mom’s flight shortly after the accident that she undertook solely to draw suspicion upon herself.

Answer 9

Hearsay

Question 10

Hearsay or Not Hearsay?

In an employment discrimination case, to prove that the African American plaintiff was fired for a non-discriminatory purpose, the defendant offers a pre-firing statement by plaintiff’s supervisor to the head of the plant, that plaintiff’s negative attitude about everyone and everything was having a “toxic effect” on the department. (Luckie v. Ameritech Corp., 389 F.3d 708 (7th Cir. 2004)).

Answer 10

Not Hearsay

Question 11

Hearsay or Not Hearsay?

To prove that an establishment in the North End of Boston was carrying on illegal betting, testimony by Starsky and Hutch that when they raided the place in September of 2004 when the Red Sox were down three games to none in the pennant series against the Yankees, they received at least twenty calls the first ten minutes they were there each stating, with some variation only in the amount offered: “Put $100 bucks on the Red Sox to win the pennant over the `Evil Empire’ in seven games.”

Answer 11

Not Hearsay

Question 12

Hearsay or Not Hearsay?

To prove the insanity of the defendant Brian Mitchell in the Elizabeth Smart kidnapping case, statements by Elizabeth Smart and others that her kidnapper Mitchell offered referred to himself as the “Messiah.”

Answer 12

Not Hearsay

Question 13

Hearsay or Not Hearsay?

In a defamation case brought by Liberace against a tabloid claiming he was gay and had AIDS, to prove that Liberace had AIDS the defendant tabloid offers evidence that Liberace’s personal physician secretly hospitalized Liberace in a clinic dedicated to the treatment of AIDS.

Answer 13

Not Hearsay

Question 14

Hearsay or Not Hearsay?

To prove that 89-year-old Texas oil billionaire Howard Marshall promised former Playboy centerfold stripper Anna Nicole Smith half of his estate if she would marry him, Nicole calls friends, employees and professional associates, each of whom will state that they heard Howard promise to give Anna Nicole half of his estate if she would marry him.

Answer 14

Not Hearsay

Question 15

Hearsay or Not Hearsay?

To prove her claim that Marshall’s son and otherwise heir apparent E. Pierce improperly interfered with her claim on the estate, Anna Nicole offers evidence that Pierce instructed Howard Marshall’s attorney to destroy, alter, and backdate documents that might support “Miss Cleavage’s” interest in a share of Howard Marshall’s estate at his death.

Answer 15

Not Hearsay

Question 16

Hearsay or Not Hearsay?

To prove he is married to Goldie Hawn and is entitled to guardianship over her while she recovered from temporary amnesia, Kurt Russell offers his to hospital officials his insider knowledge that she has a distinctive birthmark on an intimate part of her anatomy. Before releasing her to Russell, the hospital officials confirmed the presence of the distinctive birthmark. (Movie Overboard).

Answer 16

Not Hearsay

Question 17

Hearsay or Not Hearsay?

In a slip and fall case, to prove notice to the store of a slippery aisle the plaintiff offers statements by several customers of the store that they had warned the store manager shortly before the accident that “the produce aisle is getting very slippery because someone left on the sprayer, which has sprayed a lot of water on the floor.”

Answer 17

Not Hearsay

Question 18

Hearsay or Not Hearsay?

In a slip and fall case, to prove that the produce aisle was slippery from water being sprayed on the floor, the plaintiff offers statements by several customers of the store that they had warned the store manager shortly before the accident that “the produce aisle is getting very slippery because someone left on the sprayer, which has sprayed a lot of water on the floor.”

Answer 18

Hearsay

Question 19

Hearsay or Not Hearsay?

In a slip and fall case, the defense offers evidence to the contrary that no customer had alerted them to any problem with water on the floor in the produce aisle, suggesting the absence of a dangerous condition.

Answer 19

Not Hearsay

Question 20

Hearsay or Not Hearsay?

In an insurance coverage case to prove that the insured had provided the contractually required notice to the insurance agent that he had replaced a vehicle prior to the accident, the insurer offers the original copy of the notice that he claims to have faxed to the insured prior to the accident.

Answer 20

Not Hearsay

Question 21

Hearsay or Not Hearsay?

In an insurance coverage case, the insured initially could not find a copy of the notice that he claimed to have faxed to the insurer. He eventually found the original notice that he claimed to have faxed after the insured had sued the insurance agent for denial of insurance coverage. In addition to the original notice that he claimed to have faxed he also offers a cover sheet that he drafted when he found the original notice, and which he faxed to his attorney which states: “To prove I sent this fax on the date I signed on the original document, why don’t we subpoena the telephone records for that date to show I really did fax it that date.”

Answer 21

Not Hearsay

Question 22

Hearsay or Not Hearsay?

To prove that a rape occurred, the state seeks to offer the 911 tape wherein you can clearly hear her sobbing and accusing the defendant of raping her.

Answer 22

Hearsay

Question 23

Hearsay or Not Hearsay?

To prove that the defendant is the person who raped her, the state offers a shirt she ripped off the assailant’s body which was monogrammed “WXZ”, the same initials as the defendant’s name.

Answer 23

Not Hearsay

Question 24

Hearsay or Not Hearsay?

In a rape case, the state offers a shirt the victim ripped off the assailant’s body which was monogrammed “WXZ”, the same initials as the defendant’s. To prove that the shirt belonged to the defendant, the state offers that when the police (responding to the 911) presented the shirt to their tracking dog, Ole Yeller, the dog took off on a tear sniffing along until it found the defendant hiding in a tree four blocks away. When Ole Yeller found defendant in the tree the dog stopped and howled persistently until the police arrived and arrested the defendant.

Answer 24

Not Hearsay

Question 25

Hearsay or Not Hearsay? In a rape case, to prove the identity of the rapist without calling the victim, the state seeks to offer the testimony of the arresting officers that after they arrested the defendant they put him in a lineup wherein the victim pointed him out and exclaimed, “That’s the rapist. I will never forget his face.”

Answer 25

Hearsay

Question 26

Hearsay or Not Hearsay? In a personal injury litigation, Plaintiff testifies that there was a red octagonal sign facing the intersection toward the direction that the defendant had come which stated: "STOP."

Answer 26

Not Hearsay

Question 27

Hearsay or Not Hearsay? In a suit based upon a will, the distribution depends upon which spouse, if any, survived the other in a crash of an airplane carrying only the married couple. A witness will testify that when she approached the plane following the crash, she heard a woman’s voice saying, “I’m dying.”

Answer 27

Not Hearsay

Question 28

Legal malpractice action by P against D, P's former attorney. P claims that D committed malpractice by inaccurately advising him in a handwritten note that if he crossed out the “payment in full” restrictive endorsement that the debtor had given him before cashing the check, his cashing the check would not extinguish the debt. P seeks to admit the handwritten note to prove the incorrect advice given him by his attorney that he relied upon to his detriment. If the opponent objects on hearsay, the testimony is: A. Inadmissible hearsay. B. Admissible non-hearsay. C. Excludable under Rule 403. D. Excludable under attorney-client privilege.

Answer 28

B. Admissible non-hearsay.

Question 29

Property dispute. The defendant claims title by adverse possession. The defendant calls witnesses who testify that when they attempted to cross the disputed strip of land to get to the beach, the defendant came running out of the woods with a bandanna around his head, waving an AK-47 assault rifle and screaming: "Get off my land or I'll blow your head off!" This testimony is A. Inadmissible as hearsay. B. Admissible for a non-hearsay purpose of defendant’s claim of ownership. C. Inadmissible as irrelevant to the issue of legal ownership. D. Admissible as nonhearsay because the statement was made by a party to the action who will testify.

Answer 29

B. Admissible for a non-hearsay purpose of defendant’s claim of ownership.

Question 30

Action for personal injury. The plaintiff calls the ambulance attendant to testify that all the way to the hospital, plaintiff was "screaming in pain." This testimony is A. Admissible as nonhearsay. B. Inadmissible as irrelevant. C. Inadmissible as hearsay to prove pain and suffering. D. Admissible as nonhearsay because the statement was made by a party to the action who will testify.

Answer 30

A. Admissible as nonhearsay.

Question 31

Suit for injuries from heat prostration suffered when the plaintiff was forced by a football coach employed by the defendant to run 50 wind sprints in the late afternoon heat. The plaintiff testifies that just before he was ordered to run the sprints, he looked over at the time and temperature sign on the bank across from the practice field and the sign flashed: "3:47 PM . . . 114 degrees." This testimony is A. Admissible as nonhearsay. B. Inadmissible as irrelevant. C. Inadmissible hearsay unless offered only to show notice to the coach. D. Inadmissible hearsay because the witness has a bias as a party.

Answer 31

A. Admissible as nonhearsay.

Question 32

Action for wrongful death arising from the collapse of a roller coaster at an amusement park. The president of the defendant-corporation testifies that when he told the designer of the ride that some other employees had expressed doubts about the safety of the ride, the designer grabbed her five-year old daughter, jumped into one of the cars, and rode from one end to the other. This testimony is A. Inadmissible hearsay. B. Admissible because no verbal statement was made. C. Admissible because the designer will testify and will be subject to cross examination and, therefore, his out-of-court statements cannot be hearsay. D. Admissible as non-hearsay because made by an agent of a party.

Answer 32

A. Inadmissible hearsay.

Question 33

P sued D for personal injuries. P claimed that she was struck on the head by a wrench dropped by D from a high scaffold, on which D was working in the course of a construction project. As evidence that P assumed the risk of injury, D offers the testimony of the construction foreman that just before the accident he stopped P and said, “Don’t walk under that scaffold without a hard hat. Workers have been dropping objects off the scaffold all day.” If P objects to the statement as hearsay, the court should A. Overrule the objection because the out-of-court declarant is in court subject to cross examination and testifying as to what he previously stated to P. B. Overrule the objection for the nonhearsay purpose of notice. C. Sustain the objection because it is offered to prove the truth of the matter asserted even if the declarant is subject to cross examination. D. Sustain the objection unless the statement falls within a hearsay exception.

Answer 33

B. Overrule the objection for the nonhearsay purpose of notice.

Question 34

D is on trial for the murder of his business partner, X. The prosecution offers testimony by Rachel, the telephone operator in D's office, that she had listened in without D's knowledge to a telephone call D had received the day before X's death. She recalls an unidentified man exclaimed to D, "I heard talk in Al's Bar last night that your partner, X, is going to spill the beans to the cops about the insurance fraud scam that you and X have been conducting." If D's attorney objects to this testimony as hearsay, the trial court should A. Sustain the objection because Rachel was an eavesdropper. B. Sustain the objection because the testimony is hearsay not within any exception. C. Overrule the objection because the statement is relevant for a nonhearsay purpose. D. Sustain the objection on Rule 403 grounds because no one can identify the declarant or whether the parties were planning an insurance fraud.

Answer 34

C. Overrule the objection because the statement is relevant for a nonhearsay purpose.

Question 35

To prove the license number of a getaway car used in a criminal mischief attack on Herbie Husker after a Creighton basketball game victory over Nebraska, the prosecution offers the testimony of a witness who witnessed the attack and saw the getaway car bearing a license plate that read "GOC8TN." Separate evidence connects the defendant with a car bearing the license plate “GOC8TN.” If the defense objects on hearsay to the witness’s testimony about what the out-of-court license plate stated, the court should A. Sustain the objection because the assertive statement on the license plate is hearsay. B. Overrule the objection because the plate is not a hearsay statement within the meaning of Rule 801. C. Sustain the objection on the basis of bias of the witness, who is prejudiced against GOC8TN. D. Sustain the objection unless the prosecution can establish foundation for a hearsay exception.

Answer 35

B. Overrule the objection because the plate is not a hearsay statement within the meaning of Rule 801.

Question 36

Louis Vuitton (Vuitton), an exclusive maker of purses ($805) and wallets ($455), brings a patent infringement action against a small company named Louis Louis, alleging that Louis Louis copied the design of Vuitton’s expensive line of purses and profited by Vuitton’s reputation by selling the Louis Louis purses for $200 and $50 respectively. To prove that the public was fooled into thinking that the Louis Louis purses were made by Louis Vuitton, Vuitton calls W, a purchaser of the Louis Louis purse, to testify that she has been complimented many, many times as she traveled with the purse by statements “Nice Louis Vuitton purse you have.” If Louis Louis objects on the basis of hearsay and relevancy to W’s recounting the out-of-court compliments she has received concerning her Louis Louis purse, the court should A. Sustain the objection because without cross examining the out-of-court declarants the jury has no way of knowing whether the declarants really were deceived by the imitation purse. B. Sustain the objection because Vuitton cannot show that any of these comments represents a true indication of consumer opinion, and the comments are therefore irrelevant. C. Overrule the objection because the statements are admissible as nonhearsay. D. Sustain the objection on Rule 403 grounds because the comments are more confusing than helpful in deciding whether the public may have been fooled by the imitation product.

Answer 36

C. Overrule the objection because the statements are admissible as nonhearsay.

Question 37

In a nuisance action brought against an Iowa hog confinement facility, the plaintiff offers twenty-three questionnaires circulated to neighbors of the facility concerning the odors emanating from the facility, each of which essentially describe a pretty serious odor problem. If defendant objects on hearsay, the court should A. Sustain the objection. B. Overrule the objection because the questionnaires are relevant to notice of an odor problem. C. Overrule the objection because answers to questionnaires are relevant circumstantial evidence establishing the common state of mind of the neighbors. D. Overrule the objection because the questionnaires are the equivalent of a verbal act establishing the fact of an odor nuisance.

Answer 37

A. Sustain the objection.

Question 38

In an unemployment benefits case, where the claimant’s unemployment benefits depend upon whether the claimant was fired from employment for good cause, the defendant fund seeks to offer customer complaints filed against the claimant after she had received a written warning that she would be fired if she did not improve her customer relations. If the claimant objects on hearsay to the admissibility of the customer complaints, the court should A. Exclude the evidence as hearsay. B. Admit the evidence as nonhearsay conceptually because it went to the reason for claimant’s termination. C. Hearsay, but within the excited hearsay exception. D. Nonhearsay as a verbal act.

Answer 38

B. Admit the evidence as nonhearsay conceptually because it went to the reason for claimant’s termination.

Question 39

In an employment case involving claims of sexual harassment and retaliation, to establish evidence of a hostile work environment, the woman claimant seeks to testify that her coworkers repeatedly called her sexist, derogatory, and obscene names. If the employer defendant objects on grounds of hearsay, the court should A. Sustain the objection. B. Overrule the objection because the statements are admissible for nonhearsay purposes. C. Overrule the objection under 803(3), then existing state of mind. D. Sustain the objection on grounds of prejudice under Rule 403.

Answer 39

B. Overrule the objection because the statements are admissible for nonhearsay purposes.

Question 40

In a prosecution of Liberty’s wife, Ima Boss, for domestic violence against Liberty, the prosecution offers into evidence a police report where the investigating officer reported that when the officer asked Liberty what had happened, Liberty embarrassingly mumbled “My wife beat me up for looking at a Sports Illustrated Swimsuit issue.” If the defendant objects to this statement, the court should A. Sustain the objection as hearsay. B. Overrule the objection on grounds of the public records exception. C. Sustain the objection on grounds of the Confrontation Clause. D. Sustain the objection on grounds of (A) and (C).

Answer 40

A. Sustain the objection as hearsay.

Question 41

In a Boston Marathon bombing case, the prosecution introduces three different statements D gave to three separate FBI investigating officers. Although D consistently denied any involvement in the bombing, each time he gave different explanations of where he had been on the day of the bombing. Defendant refused to testify at trial. If the defendant objects to his prior statements both on hearsay and relevancy grounds, the court should A. Admit the testimony as nonhearsay and relevant to consciousness of guilt based upon his conflicting stories of his whereabouts on the day of the bombing. B. Exclude the testimony because the prior statements were not given under oath in prior proceedings. C. Admit the testimony for impeachment purposes alone. D. Exclude the testimony because the only relevant purpose of such statements would be to challenge the defendant’s credibility, but defendant did not testify at trial and his credibility is not at issue.

Answer 41

A. Admit the testimony as nonhearsay and relevant to consciousness of guilt based upon his conflicting stories of his whereabouts on the day of the bombing.

Question 42

In a race discrimination case brought by plaintiff, who alleges that he was terminated as a drug counselor because of his race, the Defendant seeks to admit evidence that two employees told the Center’s supervisor two weeks prior to the employee’s firing that the plaintiff was dealing drugs. If Plaintiff objects on hearsay and improper character evidence, the court should A. Sustain the objection because without proof of drug dealing the prior bad acts would be unfairly prejudicial under Rule 403. B. Sustain the objection under Rule 404 grounds because the allegations amount to prior bad acts that were unrelated to the cause of the termination. C. Overrule the objection because the accusatory prior statements are admissible for the nonhearsay purpose of proving a non-discriminatory purpose for the firing. D. Sustain the objection on hearsay.

Answer 42

C. Overrule the objection because the accusatory prior statements are admissible for the nonhearsay purpose of proving a non-discriminatory purpose for the firing.

Question 43

In a criminal drunken driving case, if the state, rather than having the state lab technician who processed the blood sample testify as to his findings, offered the technician’s supervisor’s testimony both as to the regular business practices of the lab, and that the technician’s lab report appears in proper order given those routine practices. If the defense objects both on hearsay and Confrontation to the “testimonial” testimony of the supervisor who did not perform the lab testing, the court should A. Admit the evidence as falling within the business record exception, 803(6). B. Admit the evidence as factual findings of a public office admissible under 803(8)(A)(ii). C. Sustain the objections both on hearsay and Confrontation. D. Admit the evidence on the grounds of both answers (A) and (B).

Answer 43

C. Sustain the objections both on hearsay and Confrontation.

Question 44

In the prosecution of Liberty Valence for child molestation prosecution, the prosecution seeks to offer Peabody’s testimony, (the news reporter for Shinn Bone), that when he was interviewing Liberty about the alleged assault, Liberty confessed to Peabody that Liberty had sexually assaulted the child, but Liberty was convinced that the jury would be too afraid to convict him. If Defendant objects to the admissibility of “hearsay” and “Confrontation” to the reporter’s testimony, the court should A. Overrule the objections because the testimony is neither hearsay nor subject to Confrontation Clause exclusion because it was nontestimonial statement by a party opponent. B. Sustain the objection because the statement is inadmissible hearsay. C. Sustain the Confrontation objection because the news reporter was interviewing the accused for the purpose of assisting in the prosecution of the case, which would make the statement testimonial. D. Both (B) and (C) are correct.

Answer 44

A. Overrule the objections because the testimony is neither hearsay nor subject to Confrontation Clause exclusion because it was nontestimonial statement by a party opponent.