Questions & Answers Series

Evidence Topics: Authentication; Classification of Evidence As Hearsay or Not Hearsay; Preliminary Questions of Fact; Witness Competency

Witness Competency

Question:
Prosecution of D for assault and battery. The prosecution calls W, who was present when the altercation took place. W is six years old. D objects on the ground that W is not competent to be a witness.

How should the court rule, and why?

Answer:
The court should overrule D's objection. FRE 601 removes all common law grounds of incompetency by providing that "[e]very person is competent to be a witness except as otherwise provided in these rules." There is no provision regarding the age of the prospective witness. At common law, a party was usually required to prove that the prospective witness was capable of accurate observation, recollection, and narration, and that the person understood the obligation to tell the truth while testifying. That rule is not preserved by FRE 601, which generally leaves such matters to the fact-finder as questions of weight. If a prospective witness is so clearly useless that it would be a waste of time to take the person's testimony, the court has authority under FRE 403 to refuse to permit the person to testify.

Authentication

Question:
Prosecution of D for assault with a deadly weapon, a baseball bat. At trial, the prosecution wishes to authenticate a particular baseball bat as the one used by D. Assume the bat has no marks that would distinguish it from other bats of its type. 

What is the best way for the prosecution to authenticate the bat?

Answer:
The prosecution will probably try to establish chain of custody. One or more witnesses will testify to the location of the bat from the time it was found (presumably in D's possession) until the time it was brought into court. Often, a police officer will testify that she marked the item at the scene and placed it in a secure location (such as an evidence locker). That witness or other witnesses will establish the movements (if any) of the item from the time it was discovered until the time of trial. Any breaks in the chain might be fatal, but need not be. The basic standard for authentication is the same as for all other situations: whether there is evidence sufficient to support a finding that the item is what its proponent claims (FRE 901(a)).

Classification of Evidence As Hearsay or Not Hearsay

Question:
For the following question, indicate whether the utterance or act is hearsay for the purpose for which it is offered, and explain why. Apply the Federal Rules of Evidence. If something would not be hearsay under the Federal Rules, call it non-hearsay. Also, do not assume that a declarant is a party unless the facts indicate such.

To prove that a certain event occurred at 5:10 p.m. W testifies that she was sitting in Professor Wigmore's evidence class one day when the professor looked in the direction of the clock and said, "I see our time is up." The class ended at 5:10.

Answer:
Hearsay. Professor Wigmore was asserting that the time was 5:10. The statement is offered to prove that it was 5:10.

Preliminary Questions of Fact

Question:
Negligence action by P against D arising from a skateboard accident. P claims D, owner of a small skateboard shop, improperly fixed the wheels on P's skateboard, causing P to crash. D denies negligence, and claims P assumed the risk by riding a defective skateboard. To prove assumption of risk, D wishes to testify that when P showed D the skateboard and asked her to fix it, D told P, "all I can do is tighten the wheel trucks, but it won't do any good. If you don't replace the trucks, the wheels will fall off when you're riding." D will testify that after she said this, P gave her an angry look and took back the skateboard. Assume this statement would only be admissible to prove assumption of risk if P "adopted" D's statement as true, making it a party admission under FRE 801(d)(2)(B). P claims D has not proven adoption.

How should the court rule?

(A) The court should overrule the objection if it finds that there is sufficient evidence to support the jury's conclusion that P adopted D's statement as true.

(B) The court should overrule the objection if it finds, by a preponderance of the evidence, that P adopted D's statement as true.

(C) The court must admit the evidence because P's purported adoption of D's statement is a question of fact that the jury must decide.

(D) The answer depends on the approach taken by the jurisdiction.

Answer:
Answer (D) is correct. The answer depends on the jurisdiction. The issue here is whether this is a case of "conditional relevancy" governed by FRE 104(b). The preliminary fact at issue is whether, by his action, P adopted D's statement as true. If, by giving D an angry look and taking back the skateboard, P was adopting D's statement as true, it would tend to show that D knowingly rode a defective skateboard. But who should decide that question, ultimately? There are two approaches.

Some jurisdictions hold that because the evidence (here, D's statement about the skateboard's trucks) is relevant whether or not P adopted it as true, the court must decide adoption pursuant to FRE 104(a). If the matter were left to the jury, these courts reason, the jury might find that P did not adopt the statement but consider it anyway because it tends to show that the wheel trucks were defective. Because it is not admissible for that purpose if P did not adopt the statement as true, the jury would be considering evidence it should ignore. In these courts the correct answer would be (B). (Arguably, this is the better approach.)

Other jurisdictions point out that P's response to D's statement (the angry expression and taking back the skateboard) would not be relevant if D was not adopting the truth of D's statement. (It wouldn't advance or impede the finding of any other proposition of consequence to the action.) For that reason, these courts would hold that this is a case of conditional relevancy. In these courts the correct answer would be (A).

Answer (C) is incorrect because it fails to recognize that some questions of fact are for the court under FRE 104(a).