Bar Exam (Uniform) Quiz: Non Hearsay

20 questions · exam conditions

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Non HearsayQuestion 1 of 20

Two men, suspected of conspiring to import illegal narcotics, are arrested. After the arrest, they are placed in the back of a police car. A hidden recording device captures one man saying to the other, "If you had just destroyed the ledger like I told you, we wouldn't be in this mess." The man who made the statement refuses to testify at his co-defendant's separate trial.

At the co-defendant's trial, can the prosecution introduce the recording of this statement against the co-defendant? Select one.

Yes, because it is a statement by a coconspirator.

Yes, because it is a statement against penal interest by an unavailable declarant.

No, because the conspiracy had terminated upon the arrest of the men.

No, because admitting the statement would violate the defendant's Sixth Amendment right to confront witnesses.

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Bar Exam (Uniform) Quiz

Bar Exam (Uniform) Quiz: Non Hearsay

Practice Non Hearsay in Bar Exam (Uniform) with focused quiz questions that help you check what you know, review explanations, and build confidence with test-style prompts.

What this quiz covers

This quiz focuses on Non Hearsay, giving you a quick way to practice the rules, question types, and explanations that matter most for Bar Exam (Uniform).

How to use this quiz

Try each quiz question before looking at the correct answer. Use the explanations to review missed ideas, then come back to similar questions until the pattern feels familiar.

All questions

Question 1

At the co-defendant's trial, can the prosecution introduce the recording of this statement against the co-defendant? Select one.

Yes, because it is a statement by a coconspirator.
Yes, because it is a statement against penal interest by an unavailable declarant.
No, because the conspiracy had terminated upon the arrest of the men. (correct answer)
No, because admitting the statement would violate the defendant's Sixth Amendment right to confront witnesses.

Explanation: Under FRE 801(d)(2)(E), a statement by a coconspirator is admissible against other members of the conspiracy only if it was made 'during and in furtherance of the conspiracy.' A conspiracy generally terminates upon the arrest of its members. Statements made after arrest are almost always considered to be not in furtherance of the conspiracy's objectives. Therefore, the statement is not admissible under this rule. (A) is incorrect because the 'during and in furtherance' requirement is not met. (B) is a plausible hearsay exception, but (D) highlights a major problem: since the statement is testimonial (made during police custody) and the declarant is unavailable and there was no prior opportunity for cross-examination, its admission would likely violate the Confrontation Clause as established in Crawford v. Washington. However, (C) provides the most direct evidentiary reason for exclusion under the coconspirator rule itself.

Question 2

A plaintiff brought a medical malpractice action against a surgeon, alleging that the surgeon operated on the wrong knee. The plaintiff seeks to introduce the testimony of a nurse who was in the operating room. The nurse would testify that she heard another surgeon, who was assisting in the operation and was also an employee of the same hospital as the defendant surgeon, exclaim during the procedure, "Wait, the chart says we're supposed to be operating on the left knee, not the right!"

The defendant surgeon objects to the nurse's testimony about the assisting surgeon's statement. The hospital is not a party to the lawsuit. Is the statement admissible against the defendant surgeon? Select one.

Yes, because it is an excited utterance.
Yes, because the assisting surgeon was an agent of the defendant surgeon during the operation.
No, because the assisting surgeon is not a party to the lawsuit. (correct answer)
No, because the statement refers to the contents of a medical chart, violating the best evidence rule.

Explanation: The statement is not admissible against the defendant surgeon as a party admission. While the assisting surgeon was an employee of the hospital, he was not an agent or employee of the defendant surgeon for purposes of making admissions. The hospital is not a party. Therefore, FRE 801(d)(2) does not apply. (A) is plausible, as the statement might qualify as an excited utterance under FRE 803(2). However, in a complex medical case, courts might be wary of such a statement without more context. But the key is that it cannot be admitted as a party admission against the surgeon. (B) is incorrect because there is no evidence of an agency relationship that would make one surgeon's statement binding on the other as a party admission. (C) correctly identifies that because the declarant (assisting surgeon) is not a party, and his statement cannot be attributed to the defendant party, it cannot come in as an opposing party's statement. (D) is incorrect because the best evidence rule applies when proving the contents of a writing, not when a statement merely refers to a writing.

Question 3

In a criminal conspiracy case, the prosecution's key witness is a coconspirator who agreed to testify against the defendant in exchange for a lighter sentence. On cross-examination, the defense attorney aggressively questions the witness about his plea deal, suggesting his testimony is a lie invented to avoid a long prison term. On redirect examination, the prosecutor seeks to introduce a letter, written by the witness to his brother from jail, six months before any plea negotiations began. The letter describes the defendant's role in the conspiracy in detail, consistent with the witness's trial testimony.

The defense objects to the admission of the letter. Is the letter admissible? Select one.

Yes, as a prior consistent statement to rebut an implied charge of recent fabrication. (correct answer)
Yes, as a statement against the witness's penal interest.
No, because the letter is an unsworn, out-of-court statement and is inadmissible hearsay.
No, because a party cannot bolster the credibility of its own witness until it has been impeached.

Explanation: The defense's cross-examination created an implied charge that the witness fabricated his testimony due to a specific motive: the plea deal. Under FRE 801(d)(1)(B), a prior consistent statement can be admitted to rebut such a charge, provided the statement was made before the alleged motive to fabricate arose. Here, the letter was written six months before plea negotiations began, so it predates the motive. The letter is therefore admissible for its truth. (B) is incorrect because the statement against interest exception requires the declarant to be unavailable, and the witness is testifying. (C) is incorrect because FRE 801(d)(1)(B) creates a specific non-hearsay category for such statements, and they need not be sworn. (D) is incorrect because the witness's credibility was impeached on cross-examination, opening the door for rehabilitation on redirect.

Question 4

A homeowner sued a contractor for using substandard materials in a renovation project. At trial, the contractor's attorney calls one of the contractor's carpenters as a witness. The carpenter testifies that only top-grade lumber was used. On cross-examination, the homeowner's attorney asks the carpenter, "Isn't it true that you told the homeowner's neighbor, 'My boss is a cheapskate; he made us use warped, low-grade wood for this whole job'?" The carpenter denies making the statement.

The homeowner's attorney now seeks to call the neighbor to testify that the carpenter did, in fact, make this statement to him. The contractor's attorney objects. How should the court rule? Select one.

The testimony is admissible as substantive evidence because the carpenter is an agent of the contractor.
The testimony is admissible for the purpose of impeaching the carpenter's credibility. (correct answer)
The testimony is inadmissible because extrinsic evidence cannot be used to prove a prior inconsistent statement.
The testimony is inadmissible hearsay not within any exception.

Explanation: The carpenter's prior statement to the neighbor is inconsistent with his trial testimony. Because the statement was not made under oath, it is not admissible as substantive evidence under FRE 801(d)(1)(A). However, it is admissible for the non-hearsay purpose of impeachment. A prior inconsistent statement can be proven by extrinsic evidence (like the neighbor's testimony) as long as the witness is given an opportunity to explain or deny it, which happened here. (A) is incorrect because for a statement to be a party admission under 801(d)(2)(D), it must be about a matter within the scope of employment. While the type of wood is within that scope, the statement is being offered against the carpenter himself to impeach him, not as an admission of the contractor. More importantly, its primary use when introduced through another witness after denial is impeachment. (C) is incorrect because extrinsic evidence is permissible for non-collateral matters. (D) is incorrect because the statement is not being offered for its truth (that the boss is a cheapskate), but to show the witness has said two different things.

Question 5

A plaintiff sued a restaurant after getting food poisoning. The plaintiff's attorney seeks to introduce a police report prepared in response to a 911 call from another patron. The report contains the officer's own observations about the restaurant's kitchen. The report also contains a statement from the restaurant's owner, who was present, which the officer transcribed: "I admit it, the health inspector cited us yesterday for leaving the chicken out too long."

Is the owner's statement as recorded in the police report admissible against the restaurant? Select one.

Yes, because the entire police report is admissible under the public records exception.
No, because police reports are generally inadmissible against defendants in civil actions.
No, because the owner's statement is hearsay within hearsay and requires a separate exception.
Yes, because the owner's statement is non-hearsay, and the report is an exception to the hearsay rule. (correct answer)

Explanation: This question tests your understanding of hearsay rules and the admissibility of statements within police reports. When analyzing hearsay issues, you need to identify each level of hearsay separately and determine if an exception applies to each. The owner's statement "I admit it, the health inspector cited us yesterday for leaving the chicken out too long" is an admission by a party opponent. Under Federal Rule of Evidence 801(d)(2), admissions by party opponents are classified as non-hearsay when offered against that party. Since the restaurant owner made this statement and it's being offered against the restaurant, it qualifies as non-hearsay. The police report itself contains hearsay (the officer's out-of-court observations being offered for their truth), but it likely qualifies for the public records exception under Rule 803(8), assuming proper foundation is laid. Answer A is incorrect because while the public records exception might apply to the officer's observations, this doesn't address the hearsay analysis for the owner's statement specifically. Answer B is wrong—police reports aren't categorically inadmissible in civil cases, though certain portions may be excluded. Answer C misapplies the hearsay within hearsay concept. While there are two levels here, the owner's statement isn't hearsay at all when offered against the restaurant, so you don't need a separate exception for it. The correct answer is D because it properly identifies that the owner's statement is non-hearsay (admission by party opponent) and acknowledges that the report itself may qualify for a hearsay exception. Study tip: Always analyze each level of hearsay separately, and remember that party admissions are treated as non-hearsay, not exceptions to hearsay.

Question 6

The testimony is admissible as substantive evidence because the carpenter is an agent of the contractor.
The testimony is admissible for the purpose of impeaching the carpenter's credibility. (correct answer)
The testimony is inadmissible because extrinsic evidence cannot be used to prove a prior inconsistent statement.
The testimony is inadmissible hearsay not within any exception.

Question 7

You are representing a client in a defamation lawsuit. Your client, a chef, is suing a food critic who wrote in a review, "The chef at this restaurant is a fraud who probably just microwaves frozen dinners." At trial, you call the critic to the stand and ask, "Isn't it true that the day before you wrote the review, you told your editor, 'I have no idea how the chef actually cooks, but I'm going to destroy his reputation'?" The critic denies making the statement.

You now wish to call the editor to the stand to testify that the critic did, in fact, make that statement to her. The opposing counsel objects. On what basis would the editor's testimony be admissible? Select one.

As substantive evidence under the exception for statements of then-existing mental, emotional, or physical condition.
As substantive evidence because it is a statement by a party-opponent. (correct answer)
Only to impeach the critic's credibility, because the prior statement was not made under oath.
It is inadmissible because it is extrinsic evidence of a prior inconsistent statement on a collateral matter.

Explanation: The critic is the defendant and thus a party-opponent. Any statement made by the critic that is offered against him is admissible as non-hearsay under FRE 801(d)(2)(A). It can be used as substantive evidence of his malice or intent. (A) is a plausible hearsay exception, but the party-opponent rule is broader and more direct. (C) is incorrect because while it could be used for impeachment, it is also admissible substantively because the declarant is a party. The rule for prior inconsistent statements in FRE 801(d)(1)(A) (requiring an oath for substantive use) applies to non-party witnesses, not to party-opponents. (D) is incorrect because the critic's intent is a central issue in a defamation case, not a collateral matter.

Question 8

A plaintiff is suing a defendant for breach of an oral contract. The defendant denies that a contract was ever formed. The plaintiff seeks to testify that during a phone call, the plaintiff said, "I will sell you my car for $10,000," and the defendant replied, "It's a deal."

The defendant objects to the plaintiff's testimony, arguing it is hearsay. Is the testimony regarding the parties' statements admissible? Select one.

Yes, because the statements are admissions by party-opponents.
No, because the plaintiff's own statement is inadmissible self-serving hearsay.
No, because there is no written evidence of the contract, violating the statute of frauds.
Yes, because the statements constitute legally operative facts. (correct answer)

Explanation: When analyzing hearsay objections, you need to distinguish between statements offered for their truth versus statements that have legal significance regardless of whether they're true. This question tests your understanding of legally operative facts. The correct answer is D because both statements constitute legally operative facts - words that have independent legal significance in forming a contract. The plaintiff's offer ("I will sell you my car for $10,000") and the defendant's acceptance ("It's a deal") are the very words that allegedly created the contractual obligation. These statements aren't being offered to prove the truth of any assertion, but rather to show that certain legally significant words were spoken. The formation of a contract depends on these verbal acts occurring, not on whether the statements were truthful. Option A is incorrect because while the defendant's statement could qualify as a party-opponent admission, the plaintiff's own statement cannot be admitted under this exception - you can't admit your own statements as admissions against yourself. Option B misses the mark because although the plaintiff's statement would normally be inadmissible self-serving hearsay, both statements here qualify as legally operative facts, which aren't hearsay at all. Option C incorrectly focuses on the statute of frauds, which is a separate legal issue about contract enforceability, not evidence admissibility. The statute of frauds doesn't make oral contract testimony inadmissible hearsay. Remember: When parties' words themselves create, modify, or terminate legal relationships, those statements are legally operative facts, not hearsay. Focus on whether the statement's legal significance depends on its truth or merely on it being spoken.

Question 9

A plaintiff sued a defendant for damages resulting from a car accident. At trial, the defendant testifies that the plaintiff's car ran the red light. The plaintiff's attorney, on cross-examination, asks the defendant about a written statement he gave to his own insurance company a day after the accident, in which he wrote, "I was looking at my GPS and I'm not sure what color the light was." The statement was signed but not sworn under penalty of perjury.

How can the plaintiff's attorney use the defendant's statement to his insurance company? Select one.

For impeachment purposes only, because the statement was not made under oath.
It cannot be used unless the defendant is first shown the statement to refresh his recollection.
It cannot be used because it is a privileged communication with an insurer.
As substantive evidence that the defendant was unsure of the light's color. (correct answer)

Explanation: This question tests your understanding of how prior inconsistent statements can be used in evidence law, specifically whether they serve only as impeachment tools or can also be substantive evidence. When a witness makes a prior statement that contradicts their current testimony, that statement can typically be used for impeachment purposes. However, under Federal Rule of Evidence 801(d)(1)(A), a prior inconsistent statement can also be admitted as substantive evidence (meaning it can be considered for the truth of the matter asserted) if the statement was made under oath at a trial, hearing, deposition, or other proceeding. Here, the defendant testified under oath at trial that the plaintiff ran the red light, but his earlier written statement to his insurance company said he wasn't sure what color the light was - a clear inconsistency. The correct answer is D because this prior inconsistent statement can be used as substantive evidence that the defendant was genuinely unsure about the light's color, directly contradicting his confident trial testimony. Answer A is incorrect because the statement can be used for more than just impeachment - it's admissible as substantive evidence since the witness (defendant) is now testifying under oath and subject to cross-examination. Answer B is wrong because there's no requirement to show the witness the statement first when using it to impeach or as substantive evidence. Answer C is incorrect because communications with insurance companies are generally not privileged - insurance privilege is very limited and doesn't apply to basic claim statements. Remember: Prior inconsistent statements by testifying witnesses can serve dual purposes - both impeachment and substantive evidence when the witness is under oath at trial.

Question 10

In a breach of contract action, the plaintiff claims the defendant failed to deliver goods as promised. The defendant's defense is that the plaintiff repudiated the contract first. The defendant seeks to testify that before the delivery date, the plaintiff called him and said, "I will not accept the shipment when it arrives." The plaintiff objects on the grounds that his own out-of-court statement is inadmissible hearsay.

How should the court rule on the plaintiff's objection? Select one.

Sustain the objection, because the statement is self-serving hearsay offered by the defendant.
Sustain the objection, because the plaintiff is available to be cross-examined about the statement.
Overrule the objection, because the statement is not offered to prove the truth of the matter asserted. (correct answer)
Overrule the objection, because the statement is a recorded recollection of the defendant.

Explanation: The statement is not being offered to prove that the plaintiff would not, in fact, accept the shipment. Instead, it is being offered as a legally operative fact (a verbal act). The very utterance of these words constitutes an anticipatory repudiation of the contract, which is the relevant legal issue. Because it is not offered for the truth of the matter asserted (TOMA), it is not hearsay under FRE 801(c). (A) is incorrect because the concept of 'self-serving' is not a basis for a hearsay objection. (B) is incorrect because the availability of the declarant is irrelevant to whether a statement is hearsay in the first place, though it could also be admissible as a party-opponent statement under 801(d)(2)(A). However, not being hearsay at all is the most fundamental reason for admission. (D) is incorrect as it misapplies the recorded recollection exception.

Question 11

A corporation is sued by a former employee for wrongful termination. The employee alleges the termination was in retaliation for her reporting of safety violations. The corporation's defense is that the termination was based on poor performance. The employee seeks to introduce an email sent by her direct supervisor to the head of Human Resources one week before she was fired. The email reads: "We need to find a way to let her go. She's causing too much trouble with her constant safety complaints."

The corporation objects to the admission of the email. What is the employee's best argument for the email's admissibility? Select one.

The email is admissible as a business record kept in the ordinary course of business.
The email is admissible as a statement by the corporation's agent concerning a matter within the scope of her employment. (correct answer)
The email is admissible to show the then-existing state of mind of the supervisor.
The email is admissible because it is a prior inconsistent statement of the supervisor.

Explanation: The most direct and powerful basis for admission is FRE 801(d)(2)(D). The supervisor is an agent/employee of the defendant corporation, and the statement (about firing the plaintiff) concerns a matter within the scope of the supervisor's employment. Therefore, the email is treated as a statement of the opposing party and is not hearsay. (A) is a possible hearsay exception, but the admission rule is more direct. (C) is also a possible hearsay exception, but it is narrower than the admission rule, which allows the statement to be used for any purpose. (D) is incorrect because there is no indication the supervisor has testified inconsistently.

Question 12

A plaintiff sued a delivery company after one of its trucks hit his car. The plaintiff alleges the truck driver was speeding. The plaintiff's attorney took the deposition of a person who used to be the truck driver's supervisor but retired from the delivery company two months before the deposition. In the deposition, the former supervisor testified under oath, "That driver was always pushing the speed limit. I wrote him up for speeding three times in the year before the accident."

At trial, the plaintiff's attorney calls the former supervisor to the stand, but he now testifies that he cannot recall ever writing up the driver. The plaintiff seeks to read the deposition testimony into the record. On what ground is the deposition testimony most likely admissible? Select one.

As a statement of the delivery company's agent under FRE 801(d)(2)(D).
As a business record under FRE 803(6).
As former testimony under FRE 804(b)(1).
As a prior inconsistent statement under FRE 801(d)(1)(A). (correct answer)

Explanation: When you encounter questions about using prior statements to impeach or support witness testimony, focus on whether the witness is available and testifying, and what specific rule applies to the type of statement being offered. Here, the former supervisor is present and testifying at trial, but claims he cannot recall the events he previously described in his deposition. This creates a classic scenario for using a prior inconsistent statement. Under FRE 801(d)(1)(A), a prior statement is not hearsay if the declarant testifies and is subject to cross-examination about the statement, and the statement is inconsistent with the declarant's testimony and was given under oath at a trial, hearing, or deposition. The deposition testimony meets all these requirements: it was given under oath, the supervisor is now testifying and available for cross-examination, and his current claim of no memory is inconsistent with his detailed prior testimony about writing up the driver multiple times. Answer A fails because while the supervisor was an agent, this rule applies to statements offered against the company, not by the plaintiff. Answer B is incorrect because deposition testimony isn't a business record—it's litigation testimony, not records kept in the regular course of business. Answer C doesn't apply because the witness is available and testifying; FRE 804(b)(1) requires the declarant to be unavailable. Remember: When a witness changes their story or claims memory loss, look first to prior inconsistent statements under FRE 801(d)(1)(A) if the prior statement was under oath. The unavailability rules in FRE 804 only apply when the witness truly cannot testify.

Question 13

As a statement of the delivery company's agent under FRE 801(d)(2)(D).
As a business record under FRE 803(6).
As former testimony under FRE 804(b)(1).
As a prior inconsistent statement under FRE 801(d)(1)(A). (correct answer)

Question 14

Is the owner's statement as recorded in the police report admissible against the restaurant? Select one.

Yes, because the entire police report is admissible under the public records exception.
No, because police reports are generally inadmissible against defendants in civil actions.
No, because the owner's statement is hearsay within hearsay and requires a separate exception.
Yes, because the owner's statement is non-hearsay, and the report is an exception to the hearsay rule. (correct answer)

Question 15

In a civil trial for assault, a witness for the plaintiff testified that she saw the defendant punch the plaintiff. On cross-examination, the defense attorney implies that the witness fabricated her story in exchange for the plaintiff paying off her debts, a payment that occurred last month. On redirect, the plaintiff's attorney seeks to have the witness testify that one year ago, long before the alleged debt payment, she told her best friend that she saw the defendant punch the plaintiff.

Is the witness's testimony about her prior statement to her friend admissible? Select one.

No, because it is a prior consistent statement offered to bolster the witness's credibility before it was attacked.
No, because the prior statement was not made under oath and is therefore inadmissible hearsay.
Yes, to rebut the implied charge of recent fabrication and as substantive evidence of the assault. (correct answer)
Yes, but only to rehabilitate the witness's credibility, not as substantive evidence of the assault.

Explanation: Under FRE 801(d)(1)(B), a prior consistent statement is admissible as non-hearsay to rebut a charge of recent fabrication or improper influence or motive, and it can be used as substantive evidence. The defense has implied a motive to fabricate (the debt payment) that arose last month. The prior consistent statement was made a year ago, before this motive arose. Therefore, it is admissible both to rehabilitate the witness and for its truth. (A) is incorrect because the statement is offered after her credibility was attacked. (B) and (D) are incorrect because FRE 801(d)(1)(B) does not require the prior statement to be under oath and explicitly allows for its use as substantive evidence.

Question 16

A plaintiff sued a power tool manufacturer for injuries sustained when a circular saw's safety guard allegedly failed. During a videotaped deposition, the manufacturer's chief executive officer (CEO) was asked about the design of the saw model in question. The CEO testified under oath, "In hindsight, given the reports we'd seen about similar incidents, we probably should have used a more robust spring mechanism for the guard on that model."

At trial, the plaintiff's attorney seeks to play the portion of the CEO's deposition testimony containing this statement. The manufacturer's attorney objects. Is the CEO's statement admissible when offered by the plaintiff? Select one.

Yes, because it is a statement by an opposing party's officer offered against that party. (correct answer)
Yes, because it is a statement against interest made by a declarant who is now unavailable.
No, because the statement is an opinion about a safety design, which is an ultimate issue for the jury to decide.
No, because it is a subsequent remedial measure, as it discusses a potential design improvement.

Explanation: The statement is admissible as non-hearsay under Federal Rule of Evidence 801(d)(2)(D). The CEO is an officer of the defendant manufacturer, and the statement concerns a matter within the scope of his employment. Therefore, it is considered a statement of a party-opponent. (B) is incorrect because the statement against interest exception (FRE 804) requires the declarant to be unavailable, which the CEO is not. Furthermore, the non-hearsay category of an opposing party's statement (FRE 801(d)(2)) is the more direct and appropriate basis. (C) is incorrect because opinions in admissions are generally admissible. (D) is incorrect because the statement is not a remedial measure itself, but an admission about the design at the time of manufacture.

Question 17

A driver is being prosecuted for vehicular manslaughter. The prosecution's theory is that the driver was texting while driving. A witness testifies for the prosecution that she was a passenger in the driver's car. On direct examination, the witness testifies that she does not remember if the driver was texting. The prosecutor then seeks to introduce a transcript from a pretrial deposition in which the witness testified under oath, "I saw the driver looking down and typing on his phone for at least ten seconds before the crash."

Is the witness's deposition testimony admissible? Select one.

Yes, as a prior inconsistent statement offered as substantive evidence. (correct answer)
Yes, as a recorded recollection to help the jury understand what happened.
No, because the witness must be impeached before a prior inconsistent statement can be introduced.
No, because it is inadmissible hearsay without an applicable exception.

Explanation: Under FRE 801(d)(1)(A), a declarant-witness's prior statement is not hearsay if it is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. Here, the witness's trial testimony ('I do not remember') is inconsistent with her deposition testimony. Because the deposition testimony was under oath, it is admissible as substantive evidence, meaning for the truth of the matter asserted. (B) is incorrect because the foundation for recorded recollection (e.g., witness once knew but now cannot recall well enough to testify fully) was not properly laid, and this rule fits prior inconsistent statement better. (C) is incorrect because the inconsistency itself is the basis for admission, not a separate impeachment step. (D) is incorrect because the statement falls squarely into the non-hearsay definition of FRE 801(d)(1)(A).

Question 18

A pedestrian sued a city after tripping on a broken sidewalk and breaking her leg. The city's defense is that the pedestrian was not paying attention. The pedestrian's attorney calls a witness who will testify that one week before the accident, he called the city's public works department and told the clerk, "The sidewalk on the corner of Elm and Oak is severely cracked and is a major hazard." The city objects to this testimony as hearsay.

Is the witness's statement to the clerk admissible? Select one.

Yes, as a present sense impression of the sidewalk's condition.
Yes, to prove the city had notice of the dangerous condition. (correct answer)
No, because the statement was made by a witness, not a party to the lawsuit.
No, because there is no corroborating evidence that the call was actually made.

Explanation: The statement is not being offered to prove that the sidewalk was actually cracked and hazardous (the truth of the matter asserted). Instead, it is being offered to show its effect on the listener—the city. The statement is relevant to prove that the city was put on notice of the alleged defect, which is a crucial element in a negligence claim against a municipality. Because it is not offered for its truth, it is not hearsay. (A) is incorrect because while it might be a present sense impression, its primary relevance and basis for admission is to show notice. (C) is incorrect because the identity of the declarant is irrelevant when the statement is not offered for its truth. (D) is incorrect because corroboration goes to the weight of the evidence, not its admissibility.

Question 19

How can the plaintiff's attorney use the defendant's statement to his insurance company? Select one.

For impeachment purposes only, because the statement was not made under oath.
It cannot be used unless the defendant is first shown the statement to refresh his recollection.
It cannot be used because it is a privileged communication with an insurer.
As substantive evidence that the defendant was unsure of the light's color. (correct answer)

Question 20

Yes, because it is an excited utterance.
Yes, because the assisting surgeon was an agent of the defendant surgeon during the operation.
No, because the assisting surgeon is not a party to the lawsuit. (correct answer)
No, because the statement refers to the contents of a medical chart, violating the best evidence rule.