Evidence:

      In February and March 1856, a Glasgow clerk named Pierre L'Angelier suffered three attacks of internal pain and vomiting.  The third attack killed him.  An autopsy found arsenic in his stomach.  The following year L'Angelier's former lover, Madeleine Smith, was tried before the High Court of Justiciary in Edinburgh for his murder.  The jury acquitted.  The outcome was widely attributed to an evidence ruling by the three presiding judges:

Amongst L'Angelier's effects was found a little pocket-book. . . .  There are various entries of no particular interest, then comes:  "Thursday, 19th February.  Saw Mimi a few moments.  Was very ill during the night.  Friday, 20th February.  Passed two pleasant hours with Mimi in the drawing room.  Saturday, 21st February.  Did not feel very well.  Sunday, 22nd February.  Saw Mimi in drawing room.  Promised me French Bible.  Taken very ill." These dates cover . . . the dates of the first two illnesses. . . 

      The defence, quite rightly, fought hard to obtain the exclusion of this pocket-book from the evidence.  The Lord Justice-Clerk, Lord Handyside, and Lord Ivory had to decide this vital question of the pocket-book.  The Lord Justice-Clerk and Lord Handyside held that it was not admissible.  Lord Ivory disagreed with them.  The Lord Justice-Clerk said that he was unable to admit such evidence.  "It might relax the sacred laws of evidence to an extent that the mind could hardly contemplate.  One could not tell how many documents might exist and be found in the repositories of a deceased person.  A man might have threatened another, he might have hatred against him and be determine to revenge himself, and what entries might he not make in a diary for this purpose?"  Lord Handyside pointed out that, had the writer of the memoranda still been alive, they could not have been used for evidence. . . . It was generally felt dangerous to admit as evidence memoranda on which no examination could in the nature of things be possible.  The pocket-book was therefore ruled out as evidence. . . .

F. Tennyson Jesse, Trial of Madeleine Smith 35 (1927).  As a result of this ruling, "the prosecution failed to adduce the smallest vestige of evidence that Madeleine met L'Angelier before any of the three occasions on which he was taken ill."  Id. at 32.

      Was the diary hearsay?  Were the judges right to exclude it?  [Click here and here for more about the case.]

1.  The defendant in a prosecution for assault with a deadly weapon testifies that he shot the victim after the victim pulled out a hunting knife and said, "I'm going to slit your throat."  Is the victim's statement hearsay?

 2.  After a gossip magazine describes a soap opera actress as "perpetually intoxicated," the actress sues for libel, and seeks to introduce a copy of the magazine.  Is the magazine hearsay?

 3.  To prove falsity, the actress seeks to introduce a newspaper article describing her as "well known for shunning drugs and alcohol."  Is the article hearsay?

 4.  To prove absence of malice, the gossip magazine calls one of its reporters, who testifies that a director who worked with the actress told the reporter the actress "always has booze on her breath."  Is the director's statement hearsay?

 5.  A patient injured during surgery sues the surgeon and the hospital.  To prove negligence by the hospital, the plaintiff seeks to prove that, a year before her surgery, a nurse told the hospital that the surgeon was incompetent.  Is the nurse's statement hearsay?

 6.  A developer brings an action to quiet title to a tract of farm land.  A farmer intervenes, claiming that she owns the land.  To prove adverse possession, the farmer seeks to call witnesses who have heard her refer to the land as hers.  Would this testimony recount hearsay?

 7.  The plaintiff in an automobile collision case calls the police officer who investigated the accident.  The plaintiff seeks to have the officer testify that an eyewitness, who can no longer be located, told the officer in a tape-recorded interview that the other driver was speeding.  The plaintiff also seeks to play the tape for the jury.  Does any of this evidence involve hearsay?

 8.  The strength of an alibi offered by a criminal defendant depends on when the defendant arrived at a bar.  The prosecution calls a waitress at the bar, who testifies that, shortly before the defendant arrived, the waitress asked the bartender what time it was, and the bartender said, "Nine thirty."  Is the bartender's statement hearsay?  What if the bartender testifies, instead of the waitress, and explains that, although he did not see the defendant arrive, he recalls that the waitress asked him for the time at 9:30?  Would this testimony recount hearsay?

 9.  To prove that a testator was incompetent, his son seeks to prove that the testator claimed to have a summer house on Mars.  Is the testator's claim hearsay?

 10.  To prove that a testator was incompetent, his son seeks to prove that the testator's coworkers complained that the testator kept dead fish in his desk.  Are the complaints hearsay?

1.  A criminal defendant charged with murder claims that the victim's husband killed her. He seeks to introduce evidence that the victim's husband fled the country after the victim was found dead. Would this evidence involve hearsay under the view expressed by Baron Parke in Wright v. Tatham? Would it involve hearsay in federal court today?

2.  A traveler contracts pneumonia after a three-hour bus trip through upstate New York in January. He sues the bus company for the cost of his hospitalization, claiming that he got sick because the driver failed to keep the bus adequately heated. The bus company seeks to prove that none of the other passengers on the bus complained about the temperature, and that two passengers took off their sweaters midway through the trip. Would any of this evidence involve hearsay under Wright v. Tatham? Under the Federal Rules of Evidence?

3.  A police officer testifies in a murder case that when she asked the victim who shot him, the victim pointed to a picture of his wife. Would Baron Parke treat this evidence as hearsay? Would the Federal Rules of Evidence?

4.  The prosecution in a burglary case seeks to prove that a bloodhound, after sniffing a pair of gloves left at the crime scene, led the police to the defendant's house, and then barked quietly when the defendant answered the doorbell. The dog's handler offers to testify that the dog is trained to bark quietly when confronted with the source of the scent the dog has been tracking. Would any of this evidence involve hearsay under Baron Parke's view? Under the Federal Rules of Evidence?

5.  Consider the following remarks by Lord Ackner in Regina v. Kearley, 2 App. Cas. 228 (H.L. 1992):

Following the appellant's arrest and when he was either not at his home nor within earshot, a number of telephone calls were made to his home which were answered by the police, in which the caller inquired whether he could speak to Chippie (the appellant's nickname), and asked to be supplied with drugs. Later, while the police were still on the premises, a number of persons arrived at the house, some with money, also asking to be supplied with drugs. It is these requests that certain police officers were allowed to recount in evidence, none of those who made the inquiries being called by the prosecution.
      Each of those requests was, of course, evidence of the state of mind of the person making the request. He wished to be supplied with drugs and thought that the appellant would so supply him. It was not evidence of the fact that the appellant had supplied or could or would supply the person making the request. But the state of mind of the person making the request was not an issue at the trial; accordingly evidence of his request was irrelevant and therefore inadmissible. . . .
      It will be apparent from what I have already stated that the application of the hearsay rule does not, on the facts so far recited, fall for consideration. The evidence is not admissible because it is irrelevant. It is as simple as that. . . .

      Partly on these grounds and partly on grounds of hearsay—citing Wright v. Tatham—the House of Lords held for the defendant in Kearley. Was Lord Ackner right that the evidence was inadmissible even if it was not hearsay, because it was irrelevant? If so, was United States v. Zenni wrongly decided?

1.  How would Albert v. McKay Co. be decided today under the Federal Rules of Evidence?  Under the California Evidence Code?

2.  In an assault prosecution, the victim testifies and identifies the defendant from the witness stand as her assailant.  The prosecution then seeks to have the victim testify that she earlier picked the defendant out of a lineup.  Is the victim's testimony about the earlier identification barred by the hearsay rule?

3.  Following a bank robbery, a customer picks a suspect out of a lineup and identifies him as the robber.  The customer does not testify at trial, but the government seeks to have a police officer who was present at the lineup testify about the identification.  Is this testimony barred by the hearsay rule?

4.  Suppose the customer does testify at trial but no longer recognizes the defendant: When asked whether the robber is present in court, the customer says he is unsure.  May a police officer who was present at the lineup testify that the customer identified the defendant as the robber?

1.  The owners of all rights to the animated character, "Seymour the Super Spaniel," bring a trademark infringement suit against the manufacturer of a "plush toy" that looks similar to Seymour.  To prove that children are likely to confuse the defendant's toy with Seymour, the plaintiffs seek to prove that the defendant has made the following statements to wholesale purchasers: (a) "Kids can't tell this thing apart from Seymour." (b) "I showed the dog to my six-year-old niece, and she said, 'Oh, it's Seymour!'" (c) "My bookkeeper tells me we run out of inventory every time a new Seymour movie comes out."  Which if any of these statements are barred by the hearsay rule?

2.  In a murder prosecution, a police officer testifies for the government that, when arrested, the defendant said, "I did it.  I shot him."  On cross-examination of the officer, the defense seeks to elicit that, immediately after making those statements, the defendant said, "It was self-defense.  He tried to kill me."  The government objects on grounds of hearsay.  How should the judge rule?

      The plaintiffs in a product liability lawsuit against a bicycle manufacturer seek to introduce evidence that a spokesperson for the company admitted that "the design of that particular bike has proven defective."  The company claims that it fired the spokesperson hours before she made that statement; the defendants claim the spokesperson was dismissed shortly after making the statement.  After hearing conflicting testimony on this question, the judge concludes that it is impossible to tell which side is right, but that the evidence slightly favors the company's account.  Should the jury be told about the spokesperson's statement?

1.  A delivery company fires a driver after his truck collides with a motorcycle.  The driver then telephones the motorcyclist and admits that he was speeding.  The motorcyclist sues the driver and the delivery company for negligence, proceeding against the delivery company on a theory of respondeat superior.  Is the driver's statement admissible against the driver?  Against the company?

2.  A newspaper reports that the "old time marinade" advertised by a fast food chain is mayonnaise and food coloring.  The chain sues for libel.  The newspaper seeks to have its reporter testify that she was told the ingredients by the chain's Vice President for Menus and Recipes.  Is the testimony admissible to prove lack of malice?  To prove the actual ingredients?

      Following his arrest, a bank robber waives his Miranda rights and tells the police that an employee of the bank disabled the security cameras for him.  Is this statement admissible against the employee in a prosecution for aiding and abetting bank robbery, or in a civil suit brought against the employee by the bank?

1.  Pauline sues Devon for Damages caused when their cars collided.  Devon's wife, Wilma, was a passenger in Devon's car at the time of the accident.  Pauline seeks to testify that, immediately following the accident, Wilma told her in a state of great agitation that Devon had "been sleeping terribly all week long."  Does the hearsay rule prohibit this testimony?

2.  Dumbarton is charged with murdering Vasquez.  The prosecution seeks to have a witness testify that she spoke with Vasquez by telephone on the night he died, and that he ended the conversation by saying, "Oh, there's door.  It must be Dumbarton.  Talk to you later."  The defense objects on grounds of hearsay.  How should the judge rule?

1.  Sam is arrested when he tries to enter the United States from Mexico and cocaine is found underneath his car.  At his trial on charges of attempted smuggling, he wishes to elicit testimony from the arresting officer that, when the cocaine was discovered, Sam said, "I don't know where that came from."  The prosecutor objects on grounds of hearsay.  How should the judge rule?

2.  Henry Jumpertz was acquitted in 1859 of the murder of his mistress, Sophie Werner.  The prosecutors argued Jumpertz had killed Werner to rid himself of her, and Jumpertz claimed Werner had committed suicide.  To show that Werner was suicidal and to rebut the prosecution's claim of motive, Jumpertz introduced a letter that he said he had received from Werner shortly before she died.  In the letter Werner declared she soon would "renounce[] the world" and be "in the grave."  Jumpertz also called two witnesses who testified they had discussed the letter with him shortly after he had received it.  See Jennifer L. Mnookin, Scripting Expertise: The History of Handwriting Identification Evidence and the Judicial Construction of Reliability, 87 Va. L. Rev. 1723 (2001).  Should this evidence have been admitted?

3.  Former football star O.J. Simpson was charged in Los Angeles in 1994 with the murders of his former wife, Nicole Brown Simpson, and her friend, Ronald Goldman.  [Click here for more about the case.]  The prosecution sought to introduce evidence that shortly before her death Nicole Brown Simpson told relatives and friends that her ex-husband was stalking her and that she was afraid of him.  The trial judge excluded the testimony on grounds of hearsay.  See Gerald F. Uelmen, The O.J. Files 102-04 (1988).  Following Simpson's acquittal, relatives of the victims won a civil judgment against him for wrongful death.  The judge in the civil case admitted, to prove state of mind, the statements excluded in the criminal case.  The civil plaintiffs argued (but the prosecutors did not) that Nicole's state of mind was relevant to support the claim that she made a final break with him on the day of the murders, which in turn gave him the motive to kill her.  Was the ruling in either the criminal or the civil case erroneous?  (The ruling in the civil case was affirmed on appeal.  See Rufo v. Simpson, 103 Cal.Rptr.2d 492 (Cal. App. 2001).)

1.  A woman brings her infant daughter into the emergency room and tells the intake clerk, "My boyfriend burned her with a cigarette.  He gets nasty when he's been drinking."  Is all or part of this statement admissible against the boyfriend in a subsequent prosecution for battery?

2.  Along with his wife, a miner sues his employer for causing his respiratory illness.  Their lawyer hires a physician as an expert witness, and the miner tells the doctor, "My lungs started to hurt ten years ago, a month or so after I started working in the mine."  The miner dies before trial.  Is his statement to the doctor admissible to prove when the disease began to manifest itself?

      An eyewitness to a hit-and-run accident calls his wife fifteen minutes later, tells her the license plate number of the car he saw leave the scene, and asks her to write it down.  She does so.  Under what circumstances will her note be admissible in a later prosecution of the driver?  Under what circumstances may it be shown to the jury?  Under what circumstances may it be used to refresh the recollection of the husband or the wife?

      An author hurt in an automobile collision sues the other driver for negligence and seeks compensation for money she lost because her injuries prevented her from finishing a novel.  She seeks to introduce copies of daily e-mail messages she sent to her brother before the accident, describing her progress on the novel.  Do the messages qualify as business records?

1.  A newspaper reports that a local hospital illegally disposes of hazardous materials.  The hospital sues for libel.  At trial the newspaper elicits testimony from a janitorial employee of the hospital that the hospital director had him pour toxic waste into a storm drain.  Under what circumstances, if any, will the transcript of this testimony be admissible in a subsequent criminal case against the hospital director for illegal dumping?

2.  The manager of gasoline station is prosecuted for illegally burying engine oil in a vacant field.  A mechanic who works at the station testifies that, at the manager's direction, she buried engine oil in the field.  The jury returns a verdict of not guilty.  Under what circumstances, if any, may the mechanic's testimony be introduced in a subsequent civil suit for cleanup costs, brought by the city against the company that owns the gasoline station?

1.  Dwight, charged with armed robbery of a bank, seeks to elicit testimony from Sarah that her husband told her, just before he died of injuries he suffered in an automobile accident, "I'm not going to make it.  There's something you've got to make right.  That stickup job they're putting on Dwight—it was me."  Is Sarah's testimony admissible?  Does it matter whether some of the money from the robbery was later found in her husband's car?

2.  As part of its case against Dwight, the prosecution seeks to introduce testimony from Frank that, while Frank was on a fishing trip with Greg, Greg boasted of planning a bank robbery and having someone else carry it out.  Frank will further testify that he asked Greg who carried out the robbery, and that Greg said it was Dwight.  Greg cannot now be located.  Is the testimony from Frank admissible?  Does it matter whether a large cash deposit was made to Greg's bank account on the day after the robbery?

[Separately copyrighted material -- see the casebook.]

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