OK Bar Evidence 3 — Questions and Answers
Question 1: A pedestrian struck by a car sues the driver. At trial she offers a bystander's excited 911 statement, "Oh my God, that blue car just blew through the stop sign!" made seconds after the crash. The bystander is unavailable. Admissible?
- No, because the declarant must testify for any hearsay exception to apply
- Yes, but only as a present sense impression, which requires the declarant to testify
- Yes, as an excited utterance relating to a startling event made under the stress of excitement (Correct answer)
- No, because 911 calls are testimonial and barred
Correct answer: Yes, as an excited utterance relating to a startling event made under the stress of excitement
An excited utterance about a startling event made while under the stress of excitement is admissible regardless of the declarant's availability.
Question 2: In a will contest, a party offers the decedent's statement made a week before death: "I intend to cut my nephew out of my will." Offered to prove the decedent later acted on that intent, is the statement admissible?
- Yes, as a statement of then-existing state of mind offered to prove subsequent conduct (Correct answer)
- No, because statements of intent are inadmissible in probate matters
- No, because state-of-mind statements cannot prove future conduct
- Yes, but only if the nephew had an opportunity to cross-examine the decedent
Correct answer: Yes, as a statement of then-existing state of mind offered to prove subsequent conduct
A declarant's statement of present intent is admissible under the state-of-mind exception to prove the declarant later acted in conformity with that intent.
Question 3: A criminal defendant seeks to introduce a sworn statement against penal interest by a now-deceased acquaintance confessing to the charged crime. What additional showing does the exception require in this criminal case?
- That the statement was made to law enforcement
- Nothing more; unavailability alone suffices
- Corroborating circumstances clearly indicating the statement's trustworthiness (Correct answer)
- That the declarant was granted immunity before speaking
Correct answer: Corroborating circumstances clearly indicating the statement's trustworthiness
A statement against penal interest offered to exculpate a criminal defendant requires corroborating circumstances that clearly indicate its trustworthiness.
Question 4: A hospital record states: "Patient says he was hit by a truck that ran a red light." The plaintiff offers the full entry in his suit against the trucker. Which part is most vulnerable to a hearsay objection?
- The entire record, because hospital records are not business records
- The statement that he was hit by a truck, because cause of injury is never admissible
- Nothing; all statements in medical records are automatically admissible
- The statement that the truck ran a red light, because fault attribution is not pertinent to diagnosis or treatment (Correct answer)
Correct answer: The statement that the truck ran a red light, because fault attribution is not pertinent to diagnosis or treatment
Statements of cause pertinent to diagnosis or treatment are admissible, but attributions of fault like running a red light generally are not.
Question 5: At a murder trial, the State offers the victim's statement, "Joe stabbed me," whispered to a paramedic while the victim believed death was imminent; the victim later died. Under the dying declaration exception, is the statement admissible?
- Yes, but only if the paramedic recorded the statement in writing
- No, because the victim actually died, making cross-examination impossible
- No, because dying declarations apply only in civil cases
- Yes, in a homicide prosecution, a statement about the cause of death made under belief of imminent death is admissible (Correct answer)
Correct answer: Yes, in a homicide prosecution, a statement about the cause of death made under belief of imminent death is admissible
A dying declaration concerning the cause or circumstances of impending death is admissible in a homicide prosecution when the declarant believed death was imminent.
Question 6: A prosecutor offers a lab report identifying a substance as cocaine without calling the analyst who wrote it. The defendant objects on Confrontation Clause grounds. What is the strongest result?
- The report is excluded only if the analyst is deceased
- The report is admitted because business records never implicate confrontation
- The report is excluded because it is testimonial and the defendant had no opportunity to cross-examine the analyst (Correct answer)
- The report is admitted because scientific results are inherently reliable
Correct answer: The report is excluded because it is testimonial and the defendant had no opportunity to cross-examine the analyst
Forensic reports prepared for prosecution are testimonial, so admitting them without the analyst's testimony violates the Confrontation Clause absent unavailability and prior cross-examination.
Question 7: A co-conspirator's statement is offered against the defendant. To fit the exemption for co-conspirator statements, the statement must have been made:
- Under oath at any prior proceeding
- In the defendant's physical presence
- After the conspiracy ended but while the declarant was in custody
- During the course of and in furtherance of the conspiracy (Correct answer)
Correct answer: During the course of and in furtherance of the conspiracy
Co-conspirator statements are admissible against a party only if made during and in furtherance of the conspiracy.
OK Bar Evidence 3
A pedestrian struck by a car sues the driver.
At trial she offers a bystander's excited 911 statement, "Oh my God, that blue car just blew through the stop sign!" made seconds after the crash.
The bystander is unavailable.
Admissible?