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Evidence Professor Park

MCNAUGH.WPD

ANSWERS TO McNAUGHTON HEARSAY QUESTIONS pp. 384-388, 11th Edition (courtesy of Professor John J. Cound, University of Minnesota) No Yes Arguable. The proponent could reasonably argue that the effect of the statement on D makes it less likely that D would behave aggressively. But probably McNaughton meant to ask whether it was hearsay if offered without limit to show that V was the aggressor. If it is offered without limit to show V's aggressiveness by showing that he in fact attacked other people, then it is hearsay because offered for its truth. Its use would have to be limited to showing its effect on D, and even then it could be excluded under Rule 403 because of the danger of misuse. Arguable, but the statement it was too bad seems to endorse the truth of the statement about falling through the porch, and if so the whole statement qualifies as the admission of D. Excited utterance. Admission, but past recollection recorded or business record/public record exception necessary to get transcript in. (Answer same as #79); plus former testimony plus something to get transcript in--note that all exceptions are necessary; they are not alternatives: "former testimony" is necessary to get evidence of D's statement.) Present sense impression. Then existing mental or physical condition. Then existing mental condition. Admission. Note that under Federal Rules, the flight itself would not be hearsay, but D's statement that he had fled would be if D were not a party (admission).

76. 77.

78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 94. 95.

No No* Yes No Yes* Yes* Yes No Yes No** No* No*** No No* No* No*** Yes

Admission, if nonparty could come in or statement of then existing mental condition (intention). Under the Federal Rules, the statement is arguably covered by 803(4), but a number of courts have balked at applying 803(4) to physician-to-patient statements giving a diagnosis (as opposed to patient-to-physician statements describing symptoms and cause). It is important to be able to cross-examine a physician about her opinion. Business record. (Might be excluded as not sufficiently reliable absent crossexamination (cf. Oates), but I think this would not occur.) Hospital record should be admitted to show making of statement. If offered against P (see #94), it is an admission. If offered for P, we seem to have a Johnson v. Lutz problem (how does P know?).

96. 97.

Yes Yes

98. 99. 100. 101. 102. 103.

No*** No Yes No* No No*

Admission

Probably admissible as an admission by silence (801d2B), depending on circumstances. 104. Yes Past recollection recorded. 105. No If sufficiently authenticated the photo tells us the license number. It is no more hearsay than would be blood taken up with a handkerchief and subjected to tests. The authentication testimony is first-hand, clearly not hearsay. 108. No Best treated as nonhearsay, though some courts do. Again, the evidence may not be admissible (just as might be true with the photo in #105) but the question is one of authentication and foundation. 109. No* Probably an admission. 110. Same answer. (If used, e.g., to show he was unmarked, would not be hearsay.) 111. No 112. No A weaker case of good faith perhaps. But it is not hearsay, even though it would be double hearsay, if offered to prove X was a burglar. 113. Yes 115. No 116. Yes 117. Yes Business of official record to get in W2's report; W1's statement used as impeachment is again not hearsay. 118. Yes Then existing physical condition. 119. No 120. Yes Business record. Note this proves the amount of sale; whether it proves the value is a question of relevance. Might be considered a declaration against interest if X unavailable. 121. No* Admission. 122. No 123. Yes If offered against the defendant in this iteration, an argument can be made that the utterance is an adoptive admission. However, defendant could argue that the reason for his silence ( if he did remain silent) was that he simply did not know the condition of the spindle, not that he agreed with the mechanic. More facts are needed to decide, but probably the statement was not adopted by the defendant. 124. No* Admission; note P's statement is used to prove what it asserts; D's statement is not so used; his statement is used to show the claim was being made. 125. No* Standing by itself such testimony would almost certainly not be sufficient to prove agency. But if A is an agent of D's, he is probably authorized to say so. Under 801(d)(2)(C), or if necessary (D), statement is not hearsay. It could be argued that we should treat this kind of assertion as hearsay, but consider: Suppose we have other evidence that A is an agent, but it is conflicting; do you want to exclude what A asserted in weighing this evidence? Much better treated as a matter of sufficiency. ****** * Admissions are not hearsay under Federal Rules.

** ***

We do not care about the truth of the statement. One could, however, argue that the statement is equivalent to the statement I believe I am the Pope. If one takes that perspective, then the statement would be hearsay but admissible under 803(3). Tatham-type case. Clearly not hearsay under Federal Rules.

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