Not Hearsay
Hypo: Declarant says, “I’m going to confront Mark tonight,” dies later; offered to show he planned to meet Mark.
FRE 803(3) — Then-existing state-of-mind (intent) exception.
Admissible because it expresses current intent, not past belief.
Declarant leaves voicemail: “I’m driving toward the warehouse now — he said he’s waiting there with a gun. I’m scared."
Declarant is murdered 30 minutes later. State offers the voicemail to show declarant intended to meet D, that declarant believed D had a gun, and that declarant feared D. Which parts are admissible?
“I’m driving toward the warehouse now” → 803(3) (intent/plan). Admissible
“He said he’s waiting there with a gun” → Admissible as long as prosecution can show that "he" is the defendant, in which case it would be party opponent.
“I’m scared” → admissible under 803(3) (emotion).
Question: Witness claims lack of memory; defense wants to introduce evidence witness lied repeatedly on loan applications and wants to introduce the loan documents.
Answer: Under 608(b), counsel may ask about specific dishonest acts but may NOT introduce extrinsic documents; cross-exam only.
Question: Plaintiff testifies, “The written contract guaranteed delivery by March 1.” Defendant objects under Best Evidence. Plaintiff admits the original contract is stored in Defendant’s cloud drive but made no attempt to obtain it through discovery. Plaintiff wants to proceed with oral testimony.
Answer: Inadmissible under Rule 1002 — where the original is obtainable, secondary evidence of its contents is not allowed.
Question: After an accident involving a ladder collapse, Defendant redesigned the ladder. Plaintiff introduces the redesign to prove Defendant’s original design was negligent. Defendant objects.
Answer: Inadmissible under Rule 407 — subsequent remedial measures cannot be used to prove negligence or culpability.
Hypo: Unsworn police-station statement sought as substantive evidence.
Answer: FRE 801(d)(1)(A) — Prior inconsistent statement under oath (NOT satisfied here).
Thus it cannot come in for truth.
Question: Witness claims total memory loss after being assaulted. Prosecution offers her prior videotaped statement to police given minutes after assault, describing attacker. It was NOT under oath. Which portions, if any, may come in for their truth?
Answer: Not admissible under 801(d)(1)(A)(Prior Inconsistent Statement), but admissible under 803(2) as an excited utterance if still under stress; therefore may come in substantively.
Question: Witness denies conviction for embezzlement from 9 years ago. Defense offers certified record. Judge wants to exclude under Rule 403 as unfairly prejudicial.
Answer: Must be admitted under 609(a)(2) — crimen falsi; no 403 discretion except undue delay.
Question: Prosecutor offers a printed PDF screenshot of security footage showing Defendant inside the warehouse. Defense objects that this is not the “original video.” The prosecution cannot locate the underlying digital file due to overwriting.
Answer: Admissible under Rule 1001(d) and 1004 — printouts of electronic data are treated as originals; secondary evidence allowed when the original data is lost without bad faith.
Question: During settlement negotiations over a disputed claim, Defendant says: “I’ll pay $50,000, but between us, we both know my brakes failed because I never serviced them.” Plaintiff offers both statements.
Answer: Inadmissible under Rule 408 — both the offer and the accompanying statements made during compromise negotiations cannot be used to prove liability.
Witness B testifies for the prosecution. On cross, defense suggests B fabricated to get a cooperation deal offered two months ago. Prosecutor wants to introduce B’s pre-deal written statement to the FBI, consistent with trial testimony. Defense objects hearsay.
Answer: Admissible under FRE 801(d)(1)(B)(i) — prior consistent statement offered to rebut a charge of recent fabrication, and it predates the alleged motive to lie (the cooperation deal).
Question: Deceased engineer left a memo: “If they find out I approved the defective weld, I’m financially ruined.” Offered to show engineer approved the weld. Engineer unavailable. Defense objects hearsay.
Answer: Admissible under 804(b)(3) — statement against pecuniary/proprietary interest; exposes engineer to liability; no corroboration requirement in civil case.
Question: Witness denies telling police, “I saw D punch him.” Defense calls officer who says witness did say that. Statement unsworn.
Answer: Admissible only for impeachment under 613; not admissible substantively.
Question: Witness testifies to contents of an email allegedly written by Defendant: “I moved funds offshore.” Prosecution cannot produce the email, claiming it was deleted. Defense establishes that all emails are automatically archived by the provider and recoverable.
Answer: Inadmissible — Rule 1004 requires a showing that the original cannot be obtained by judicial process; no secondary evidence permitted when original is accessible.
Question: Victim tells EMT immediately after a car crash, “I wasn’t wearing my seatbelt, but none of this would’ve happened if Defendant hadn’t been drunk.” Defendant wants to admit the first part (“I wasn’t wearing my seatbelt”) but exclude the second part as unfair prejudice.
Answer: The statement is admissible for its non-hearsay purpose (effect on listener / medical diagnosis), but Rule 403 permits exclusion of the “Defendant was drunk” portion if unfair prejudice substantially outweighs probative value.
Bar fight criminal case. Police interrogate X (an alleged co-conspirator). X, during custodial interrogation, says: “D told me to start the fight—he planned everything.”
X refuses to testify at trial. Prosecutor wants to introduce the statement under co-conspirator admission. Defense objects Confrontation + hearsay.
Answer: Inadmissible — fails 801(d)(2)(E) because (1) custodial interrogation is not “during and in furtherance” of conspiracy; and (2) X is unavailable + testimonial statement → Confrontation Clause under Crawford bars use.
Question: Declarant, dying of blood loss, whispers: “D stabbed me because I threatened to expose him yesterday.” Offered after declarant dies.
Answer: “D stabbed me” admissible as dying declaration; “because I threatened to expose him yesterday” inadmissible (beyond “cause or circumstances” of death).
Question: Character witness testifies another witness “is honest.” Opposing counsel asks, “Did you know he filed false tax returns last year?”
Answer: Admissible inquiry under 608(b); no extrinsic evidence allowed.
Question: Defendant wants to testify about the contents of a signed promissory note. Defendant claims it “went missing,” but evidence shows Defendant intentionally refused to turn it over after receiving a subpoena.
Answer: Inadmissible — a party may not rely on Rule 1004 when their own misconduct caused the original’s unavailability; secondary evidence barred.
Question: Defendant in a sexual assault trial seeks to introduce evidence that the victim previously engaged in sexual conduct with Defendant. Prosecutor objects under Rule 412. Defendant argues it is necessary to show consent.
Answer: Admissible only under Rule 412(b)(1)(B) — past sexual behavior with the defendant is admissible in criminal sexual misconduct cases to prove consent, subject to 403 and procedural requirements.
In a workplace harassment case, plaintiff testifies that defendant said to her supervisor: “If she files a complaint, I’ll ruin her career.” Supervisor testifies defendant said the same thing. Defendant denies ever speaking to supervisor. Offered against defendant. Defense objects: hearsay because “I never authorized the supervisor to repeat my words.”
Answer: Admissible under 801(d)(2)(A) — defendant’s own statement, regardless of whether they expected or authorized repetition. Party-opponent’s own words are non-hearsay.
Question: Officer testifies, “The taxi dispatcher told me the passenger screamed, ‘He’s going to kill me!’” Offered for truth.
Answer: Fails under 805 — dispatcher’s statement has no exception; victim’s statement may fit 803(3) but entire chain is inadmissible because one layer fails.
Question: Witness testifies D was sober. Defense introduces witness’s prior statement: “He was definitely drunk,” made next day, unsworn.
Answer: Impeachment only under 613; not admissible for truth (fails 801(d)(1)(A)).
Question: Prosecution wants to introduce testimony about what a destroyed handwritten confession said. The original was lost in a flood. A photocopy is partially legible. A witness who read the original before it was destroyed can testify to its contents.
Answer: Admissible under Rule 1004(1) — when originals are lost or destroyed without bad faith, secondary evidence including witness recollection is permissible; weight goes to the jury.
Question: A character witness testifies, “Defendant is a cautious and honest person.” On cross, prosecution asks, “Did you know Defendant was fired last year for falsifying insurance forms?” Defense objects as improper character evidence.
Answer: Admissible under Rule 405(a) + Rule 608(b) — prosecution may inquire into specific instances probative of truthfulness to test the basis of a character witness’s opinion. However, there will be no extrinsic evidence allowed.