Anything I can do (Last Installment)

In Uncategorized on February 16, 2010 at 4:02 pm

Okay folks, last Bar Exam quiz for you today…unless you want to write some practice Commercial Paper or Illinois Civil Procedure essays. Over these last 6 days of multistate subject quizzes, I’ve done well enough that I would have passed. But I hope you did better. Last chance today to prove that anything I can do, you can do better. As always, the answer to the actual question that I missed below is in the comments section. Buena fortuna!

A defendant was on trial for the murder of his business partner. The prosecution offered testimony by the telephone operator in the defendant’s office that she had listened in without the defendant’s knowledge to a telephone call he had received the day before his partner’s death, in which an unidentified man said that he heard talk in a bar the previous night that the business partner was going to tell the cops about a phony insurance claim involving the defendant. The defense attorney objects to the testimony. The trial court should:

a) Sustain the objection, because the operator 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 to show motive.
d) Overrule the objection, because the statement constitutes an admission by a co-conspirator.

  1. Best answer: c

    First, some background. The ever-popular “hearsay rule” is that hearsay = “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (Federal Rule of Evidence Rule 801) Each part of that definition is important at various times to get around the rule. For instance, an in-court statement might “get in” (legalese for “be admissible evidence”) as former testimony. Or usually, if the statement is offered for something other than as proof of what was said, it may be admitted.

    That’s the case here. The statement by the unidentified caller is being used here to show (or infer) the effect it may have had on the defendant. It doesn’t matter that the operator was an eavesdropper- her reason for hearing the statement is immaterial. Also, there isn’t hard evidence that there’s a conspiracy here (the caller may have just been a concerned friend that had nothing to do with the murder). The only question is whether this statement was hearsay or not. It’s not because it doesn’t meet every element of the definition.

    (For those interested, the reason hearsay is generally not admissible in court is that it takes away the opportunity for the party against whom it is used to cross-examine the declarant of the statement. That’s important because we want to make sure that evidence is reliable. For a statement to be reliable, we want witnesses to be sincere – thus, “I promise to tell the truth, the whole truth…” – and have reliable perception. Cross-examining witnesses is the best way to test a witness’s perception powers.)

  2. Phew that was a tough one. Unfortunately, I picked B, and thus can’t stroke my ego today. I think I’m going to stick with my sustainable development studies, let’s leave the lawyering up to the lawyers.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: