Statements that are not hearsay - Next Generation Bar Exam
- Under FRE 801(d)(2)(A), what is the status of a party's own statement offered against that party?
- It is not hearsay. The statement need not have been against interest when made or based on personal knowledge.
- An eyewitness who picked the defendant from a lineup testifies and is cross-examined. An officer then describes her lineup identification. What is its status?
- It is not hearsay under FRE 801(d)(1)(C). A prior identification by a testifying witness subject to cross-examination is excluded from hearsay.
- Under FRE 801(d)(2)(E), what are the requirements for admitting a co-conspirator's statement against a party?
- It was made by a co-conspirator during and in furtherance of the conspiracy. Under Bourjaily, the court decides by a preponderance and may consider the statement itself, but it alone is not sufficient.
- What is the status of a statement offered to prove a witness lied, without regard to its truth?
- It is not hearsay, because it is offered to show the statement was made, not that it was true. It is offered for impeachment, not for the truth of the matter asserted.
- Under FRE 801(d)(2)(B), what is an adoptive admission?
- A statement the party manifested it adopted or believed to be true. Silence may be an adoption if a reasonable person would have denied the statement under the circumstances.
- What is the status of an out-of-court statement offered to show its effect on the listener?
- It is not hearsay, because its relevance does not depend on whether the statement was true. Examples include a warning offered to show notice or a threat offered to show fear.
- In a contract dispute, the plaintiff testifies that the defendant said, 'I accept your offer.' What is the status of the testimony?
- It is not hearsay, because the statement is a verbal act forming a contract. The words have legal significance regardless of their truth.
- What is the status of an out-of-court statement offered as circumstantial evidence of the declarant's state of mind, without asserting it?
- It is not hearsay, because it is offered as conduct revealing the declarant's mind rather than as an assertion. For example, a person saying 'I am the Pope' may be offered to show insanity rather than the truth.
- What is a verbal act?
- Words that have independent legal significance, such as an offer, acceptance, or defamatory statement. Such words are not offered for the truth of an assertion, so they are not hearsay.
- Under FRE 801(d)(2)(D), what is the status of an employee's statement offered against the employer?
- It is not hearsay if made on a matter within the scope of the relationship while it existed. The employee need not have been authorized to speak.
- A plaintiff offers evidence that a store manager told her, before her fall, 'That aisle has been slippery all week.' The statement is offered to prove the store had notice. What is its status?
- It is not hearsay as to notice, and it is also admissible as an opposing party's statement. Notice does not depend on the truth of the statement, and the manager spoke within the scope of employment.
- Under FRE 801(d)(2)(C), whose statements are not hearsay when offered against a party?
- Those of a person the party authorized to make a statement on the subject. An authorized spokesperson's statements are attributable to the party.
- Under FRE 801(d)(1)(C), what prior statement of a testifying witness is not hearsay?
- A statement identifying a person as someone the declarant perceived earlier. The declarant must testify and be subject to cross-examination about the statement.