Clyde is charged with robbing a bank, but in the federal court case alleges that he was vacationing 5 states away in Wisconsin when the robbery occurred. Clyde calls Bonnieas an alibi to testify that she was traveling on vacation with Clyde at the time in question.When questioned where she was during the robbery and with whom, Bonnie says, "Yes,I definitely know that I was at the Grizzard Motel the weekend of the robbery, becausethat is the same weekend as my birthday and I was there to celebrate. The thing is,there's no way I was there with a guy as ugly as Clyde." Clyde's attorney seeks tointroduce evidence that Bonnie was at the Grizzard Motel with Clyde. Clyde had testifiedto that fact in the preliminary hearing. The prosecution objects. The question is:A. Proper, if the judge determines that Bonnie is a hostile witness.B. Proper, as it is simply refreshing the witness's recollection.C. Improper, as it is a leading question on direct.D.Improper, since Clyde's attorney cannot impeach her own witness.
Answer: AThe federal rules state that an attorney may impeach her own witness, even on direct,if the judge has found the witness to be a hostile witness. In light of this, Answers C andD are clearly incorrect.B is wrong as Clyde's attorney is not seeking to refresh Bonnie's memory, but to admittestimony from the preliminary hearing in order to impeach her.
Dumaine owns a bakery, and is charged with murdering Hansel, his employee, by putting him in the baking oven with some muffins. The prosecution seeks to introducethe testimony of Oliver, another employee of Dumaine. Oliver will testify that as he wentto place an order for more flour one day, he accidentally pushed an already lit extensionon the phone and overheard an unknown voice say to Dumaine, "Hey Dumaine, I hearthat Hansel is going to testify about all the illegal prescription drugs that you have beenselling out of the bakery. What are you going to do about him?" Dumaine's attorneyobjects to the introduction of Oliver's testimony on the basis that it is irrelevant. Howshould the judge rule?A. Sustain the objection.B. Overrule the objection, as this testimony is being introduced to show Dumaine's stateof mind and is, therefore, within a hearsay exception.C. Overrule the objection, as this hearsay falls within the business record exception,since the attempted call was made as a part of work during business hours.D. Overrule the objection if, and only if, the evidence is offered to prove motive.
Answer: DRecall that an out-of-court statement offered for the purpose of proving knowledge onthe part of the listener is not deemed objectionable hearsay. Furthermore, the evidencemay be admitted as an admission by silence on the part of Dumaine. In light of thecorrect answer, A is clearly wrong.B is wrong. The state of mind exception only applies if an out-of-court statement isintroduced in an attempt to prove the declarant's state of mind. Here, that is clearly notthe case, making this exception inapplicable.C is wrong. The business record exception does not apply to phone calls made duringwork hours, only to work product that is generated in the course of business (i.e., chartsor documents).