Answers to Summer 2014
Summer 2014 Bar Question 2
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.
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.
Organize your answer in interrogatory order.
Therefore the evidence is logically relevant.
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?”
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.
By a party. ABC is the party. Mac is not a party.
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
Therefore, the evidence is logically relevant.
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.”
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
Cross examination. Leading questions are permitted on cross examination, as here.
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
Therefore, it is admissible to impeach Wayne on cross examination
4. Maintenance record
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.
Sal’s statement—“prefight completed; all okay.”
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.”
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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