Answers to Summer 2014
California Bar Exam Questions

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Summer 2014 Bar Question 2

Evidence

  Question
 

Pete was a passenger on ABC Airlines (ABC), and was severely injured when the plane in which he was flying crashed because of a fuel line blockage.

Pete sued ABC in federal court, claiming that its negligent maintenance of the plane was the cause of the crash.

At trial, Pete’s counsel called Wayne, a delivery person, who testified that he was in the hangar when the plane was being prepared for flight, and heard Mac, an ABC mechanic, say to Sal, an ABC supervisor: “Hey, the fuel feed reads low, Boss, and I just cleared some gunk from the line. Shouldn’t we do a complete systems check of the fuel line and fuel valves?” Wayne further testified that Sal replied: “Don’t worry, a little stuff is normal for this fuel and doesn’t cause any problems.”

On cross-examination, ABC’s counsel asked Wayne: “Isn’t it true that when you applied for a job you claimed that you had graduated from college when, in fact, you never went to college?” Wayne answered, “Yes.”

ABC then called Chuck, its custodian of records, who identified a portion of the plane’s maintenance record detailing the relevant preflight inspection. Chuck testified that all of ABC’s maintenance records are stored in his office. After asking Chuck about the function of the maintenance records and their method of preparation, ABC offered into evidence the following excerpt: “Preflight completed; all okay. Fuel line strained and all valves cleaned and verified by Mac.” Chuck properly authenticated Sal’s signature next to the entry.

Assuming all appropriate objections and motions were timely made, did the court properly:

    1. Admit Wayne’s testimony about Mac’s question to Sal? Discuss.

    2. Admit Wayne’s testimony about Sal’s answer? Discuss.

    3. Permit ABC to ask Wayne about college? Discuss.

    4. Admit the excerpt from the maintenance record? Discuss.

Answer according to the Federal Rules of Evidence.

 
Analysis

Evidence
Question 2, Summer 2014

The Federal Rules of Evidence (FRE) applies, unless the exam question specifies that it is asking for the California Evidence Code. So far, no exam has ever asked you to answer according to both federal and state law.

Evidence organizes in interrogatory order.
For each interrogatory, look for problems in these four areas:
A. Form – the form of the question or the answer, e.g., leading question.
Best Evidence Rule.
B. Logical Relevance. Does the evidence tend to prove a material issue raised by the claims of plaintiff or defendant?
C. Substantive issues:
            1. Hearsay
            2. Impeachment
            3. Opinion, lay or expert
            4. Character
D. Legal Relevance. Is there a policy or privilege raised by the evidence that causes the court to exclude it, even though it has value as proof?

Organize your answer in interrogatory order.

ANSWER
1. Wayne, witness, testified what he heard Mac, mechanic, say.
Logical relevance. Evidence is logically relevant when it tends to prove or disprove a material fact in issue.
            Material fact. P claims ABC negligently maintained airplane that caused a fuel line blockage.
            Tends to prove. The evidence that Mac told his supervisor, Sal, the fuel feed was reading low, that he cleared some gunk from the fuel line and asked whether a complete systems check should be done tends to prove P’s claim.

Therefore the evidence is logically relevant.

Hearsay
Hearsay is an out of court statement being offered for the truth of the matter stated.
            Out of court. W heard M speaking at the hangar. This is out of court.
            Truth. P is offering this evidence to prove that the fuel line was low and that there was gunk in the line. Therefore it is offered for the truth of the matter stated.

Therefore, it is hearsay and is admissible only if a hearsay exception applies.

Present sense impression. A declarant’s report of his perceptions while he is perceiving them or immediately after he perceived them is admissible as a hearsay exception.

Here, M said: “fuel feed reads low” and “just cleared gunk from line.” If M had just taken the fuel feed reading and just cleared the gunk within moments of making the report to Sal, then this qualifies as a present sense impression and is admissible as a hearsay exception.

“Shouldn’t we do complete systems check?”
State of mind, intent. A declarant’s statement of his intent that an action should be taken is admissible as a hearsay exception. It is not necessary that the declarant intends to take the action himself, but only that he intends that it be done by someone. Here, Mac’s question to Sal indicates that Mac intends that a systems check be undertaken.

Non-hearsay? An argument could be made that W’s report of what M said is not offered for the truth, but to show that ABC had notice or knowledge of the mechanic’s concerns. In that case, the evidence is non hearsay and is admissible if a nonhearsay ground under the FRE is present.
            Vicarious admission. Under the FRE, an admission is nonhearsay. The rationale is that when a declarant says something that runs counter to a claim he is making at a later trial, it is noteworthy, regardless of whether it is true.
            An admission is a statement against the claims of a party at trial made by a party.
            Against claims. P is suing ABC for negligently maintaining its aircraft, leading to a fuel line blockage that caused the plane to crash. Since ABC is contesting this, ABC must be claiming that it did not negligently maintain its aircraft.
            It could be argued that M is asking a question, not making a statement. Normally, a question would not be considered a statement against interest. But in this case it is offered to show M though a complete systems check should be done, and that an ABC supervisor had notice of that.

            By a party. ABC is the party. Mac is not a party.
            Vicarious admission. When the declarant is an agent of a party and the statement he makes is within the scope of his employment, the statement can be attributed to the party.
            Here, Mac is ABC’s mechanic. It is his job to check out the airplane systems before flight. He is making a report to his supervisor, Sal. Therefore Mac made the statement within the course and scope of his employment.

Therefore, Mac’s statement is a vicarious admission, non hearsay.

Effect on hearer. A statement is admissible to show notice on the person who hears the statement is admissible as nonhearsay. The statement is not being offered to prove the truth of what is said. Here, Wayne heard Mac tell Sal that the fuel lines were showing problems and advising that they be checked. This is admissible to show that Sal had notice of Mac’s concerns.

State of mind, belief. A declarant’s statement of what he believes is admissible to show what he was thinking, not to show that his belief was true. This is admissible as nonhearsay. Here, Mac believed that there was a problem with the fuel lines. This could be seen as Mac’s belief.

Therefore, W’s testimony on Mac’s statement and question are admissible, regardless of whether they are offered for the truth or not.

2. Wayne’s report: Sal’s reply
Logical relevance
            Material fact: P claims ABC was negligent in maintaining the plane.
            Tends to prove: Sal’s statement telling Mac not to worry about the fuel line problems and that a little stuff in the fuel doesn’t cause any problems tends to prove P’s claim because an ABC mechanical supervisor was informed of the mechanic’s concerns and did not act on them.

Therefore, the evidence is logically relevant.

Hearsay
            Out of court: at hangar. Therefore, out of court.
            Truth: the evidence is not coming in to prove the truth that there was nothing to worry about, but rather only to show that this is what Sal said. Therefore, it is not offered to prove the truth of the matter stated.
“Don’t worry”
            Vicarious admission
            Statement against claims at trial. ABC’s position must be that it was not negligent in maintaining the plane, specifically, its fuel line. This evidence, that Sal said not to worry in response to Mac’s question as to whether a complete check of the fuel system should be done is against ABC’s position at trial.
            Party. The defendant is ABC. Sal is not a party.
            Vicarious admission. When the declarant is an agent of a party and the statement he makes is within the scope of his employment, the statement can be attributed to the party.
            Here, Sal is ABC’s mechanical supervisor. It is his job to supervise the mechanical preflight checks of the airplane systems. Sal is directing his mechanic no to do a fuel line systems check. Therefore Mac made the statement within the course and scope of his employment.

Therefore, Sal’s statement is a vicarious admission, admissible as non hearsay.

State of mind intent. A declarant’s statement that an action be done or not taken is admissible as a hearsay exception, state of mind, intent. Here, Sal is instructing Mac not to do a fuel systems check. He is expressing his intent that a systems check not be done.

Therefore, Sal’s statement is admissible as a hearsay exception, state of mind, intent.

“A little stuff is normal, doesn’t cause problems.”
 Vicarious admission—see above

State of mind, belief . A declarant’s statement of what he believes is admissible, not to show that the belief is true, but that it was the declarant’s state of mind. It is nonhearsay. Here, Sal is expressing his belief that a little stuff in this fuel doesn’t cause any problems. That is his belief.

Therefore it is admissible as nonhearsay, state of mind, belief.

3. Cross exam of Wayne
Form—leading
A question by the examiner which, by its wording, indicates the answer the examiner seeks is leading and is improper on direct examination.
Answer sought. By phrasing the question, “Isn’t it true…” the examiner indicates he expects the witness to answer, yes. Therefore the question is leading.

Cross examination. Leading questions are permitted on cross examination, as here.
Therefore, the question is proper.

Logical relevance. Whenever a witness takes the stand his credibility is subject to attack This question attacks Wayne’s honesty, by pointing out that he lied on a job application. Therefore, the evidence is logically relevant

Impeachment—bad acts
Whenever a witness takes the stands, he is subject to impeachment by
1. attacking him personally or
2. contradicting his testimony.

Bad Acts
One form of attacking the witness personally by asking him if he engaged in immoral or unethical acts that would make the jury less likely to believe him. These are called bad acts, and must be asked of the witness on cross-examination. They cannot be established by extrinsic evidence. Here, the question is whether Wayne liend on a job application. This is an unethical act

Therefore, it is admissible to impeach Wayne on cross examination

4. Maintenance record
Best evidence rule. When the contents of a writing are at issue, the original of the writing must be submitted, or its absence explained.

Here, there contents of the maintenance record is at issue, since the issue is whether ABC did proper maintenance on the plane. The reason for requiring the original is to minimize the risk of altering the writing. We are not told whether the portion from the maintenance record was the original. The fact that is appears to be an excerpt makes it less likely that it is the original.

We are not told Chuck’s position at ABC, nor are we told the conditions under which the records were kept. For example, were they kept in a safe, or in a locked file cabinet. So the court is given no information that would assure it that the records were protected from tampering.

Unless the record submitted is the original, the best evidence rule is not satisfied.

Logical relevance.
Material fact at issue. P claims ABC was negligent in maintaining the plane that caused his injury.
Tends to prove. This evidence, that the maintenance records indicate the plane was subjected to preflight checks, including the fuel line, tends to disprove P’s claim.

Hearsay
            Double hearsay. When an out of court statement contains within it the statement of another person, it is double hearsay. Both statements must be admissible under a hearsay exception or non hearsay ground.

                        Sal’s statement—“prefight completed; all okay.”
                        State of mind, belief.
                       
                        Maintenance records
Business record. A record that is made regularly by a business in its regular course of operations by one with a duty to record, at or near the time of the events and with personal knowledge is admissible as a business record.
Business. ABC.
Regularly kept. Maintenance records are regularly kept.
Duty to record. Sal as maintenance supervisor had a duty to make the record.
At or near the time. The preflight inspection was probably made right before Sal recorded it in the maintenance record.
Personal knowledge. Sal appears to be saying “all okay” from his personal knowledge. Sal may have relied on Mac to verify that the fuel lines were strained and the valves were cleaned. While the actual activities were not in Sal’s personal knowledge, Sal did have personal knowledge that this is what Mac reported to him. Therefore, it was within Sal’s personal knowledge.
Authenticated. Chuck authenticated Sal’s signature next to the
entry. As the custodian of records, Chuck would also able to authenticate the maintenance record itself.

If P has any doubt as to the veracity of the maintenance record entry ABC provided, it can request that ABC provide the entire document of which the excerpt is a part.

Therefore, it is likely the maintenance record is admissible as a business record, including Sal’s embedded statement.

 

Expert Opinion—Sal’s statement. The FRE does not permit expert opinion to be admitted when it is embedded within a business record. The expert’s statement is admissible only if the expert is properly qualified and takes the stand in court, subjected to cross examination. Here, Sal, as the mechanical supervisor, is arguably an expert on the plane’s maintenance. He must appear in court be qualified and submit to cross examination about his opinion that the plane was “all okay.”

Impeachment
A witness who has taken the stand may be impeached by contradicting the substance of his testimony. When the contradiction concerns a material issue at trial, the impeachment can be done though another witness or by documents, that is, it can be done extrinsically.
Wayne testified that he heard M express concern over the plane’s fuel lines.
The maintenance record contradicts Wayne’s testimony of what M said. It is material to the central issue at trial, whether ABC negligently maintained the plane’s fuel lines.
Therefore, Wayne’s testimony can be impeached extrinsically.

Wayne also testified that he heard Sal tell Mac not to worry about checking the fuel lines, since a little stuff in the fuel doesn’t cause any problems. The maintenance record also contradicts Wayne’s testimony of what Sal said. Because it is material to the central issue at trial, Wayne’s testimony can be impeached extrinsically.

Therefore, the maintenance record is admissible to impeach Wayne’s testimony.

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