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Della Defendant is charged with committing murder on June 1, 2000.

At the trial, which begins exactly one year after the alleged homicide, on June 1, 2001, Della Defendant's Defense is insanity.

Della Defendant's offer of evidence:

Wanda Witness to testify that on May 30, 2000, she heard Della Defendant say,

"I am Queen Elizabeth."

Prosecutor states, "Objection. Hearsay."

The trial court states, "That's not hearsay. Objection overruled."

Please give a black-letter explanation for the court's ruling.

David Defendant is charged with Murdering Valiant Victim on June 1, 2000.

Defense: Insanity.

David Defendant's offer of evidence:

Walter Witness to testify that on May 30, 2000, he heard David Defendant say,

"I think I am king Tut."

Prosecution states, "Objection. Hearsay."

Question 1: Is the statement hearsay?

Why is the answer "arguably yes"?

Question 2: "Functionally speaking," is there a significant difference between statement #1 {I am King Tut} and statement #2 {I believe I am King Tut}?

Why is the answer "arguably not"?

So?

Peripheral (forward-looking) comment: The statement "I think I am king Tut" is admissible under an exception to the hearsay rule; i.e., to show the declarant's then-existing state of mind. See FRE 803(3).

Delia Defendant is charged with Murdering Visa Victim on June 1, 2000.

Delia Defendant is arrested on January 1, 2001.

On May 1, 2001, after consultations with her attorney, Delia Defendant gives notice to the prosecution that her defense will be insanity.

At the trial, which begins exactly one year after the alleged homicide, on June 1, 2001, Delia Defendant -- well, o.k., her attorney, but you know what I mean! --, Delia Defendant makes the following offer of evidence:

Warna Witness to testify that on May 15 & May 30, 2001, she heard Delia Defendant say,

"I am Queen Elizabeth I."

Question 1: Is the statement relevant?

Question 2: Is the statement hearsay?

Question 3: Can you fit the statement within the black-letter definition of hearsay? How?

Question 4: If you do make the statement fit the definition of hearsay, do you also necessarily make the statement fit within an exception to the hearsay rule? {Hint: See FRE 803(3).}

Slip-and-fall case. The parties are Paula Plaintiff, plaintiff, and Super Supermarket, defendant. Paula Plaintiff's complaint alleges that she fell and injured herself in aisle number 3 in Super Supermarket, at 11:15 a.m., on June 1, 2000. She alleges that her injuries were the result of Super Supermarket's negligence. Super Supermarket's answer denies these allegations and it also asserts several affirmative defenses, including contributory negligence.

(a) At the trial Paula Plaintiff offers to have Walter Witness testify:

"I didn't see what happened. However, I spoke with Big Bystander at 12:15 p.m. on June 1, 2000, after Paula was taken to the hospital. He said, 'I was next to Paula when she fell. She fell on some catsup in the aisle.'"

Hearsay?

(b) At trial Paula Plaintiff offers to have Weighty Witness testify,

"I heard a conversation between Managing Manager and Big Bystander at 10:15 a.m. on June 1, 2000. I heard Big Bystander say to Managing Manager, "There's catsup in aisle number 3.'"

Hearsay?

(c) At trial Paula Plaintiff offers to have Wrongful Witness testify,

"I spoke with Managing Manager at 10:15 a.m. on June 1, 2000. I heard him say, 'There's catsup in aisle number 3.'"

(d) At trial Paula Plaintiff offers to have Watchful Witness testify,

"I heard a conversation between Paula Plaintiff and Managing Manager at 10:15 a.m. on June 1, 2000. I heard Paula Plaintiff say to Managing Manager, 'There's catsup in aisle number 3.'"

Hearsay? If not, admissible?

(e) At trial Paula Plaintiff offers to have Wanda Witness testify,

"I spoke with Managing Manager's spouse at 10:15 a.m. on June 1, 2000. Managing Manager's spouse said there was catsup on the floor in aisle number 3."

Hearsay?

(f) At trial PP offers to have Wooden Witness testify,

"I spoke with Managing Manager at 3:15 p.m. on June 1, 2000. He said to me, 'Doggone it, there was catsup in aisle number 3 this morning.'"

Hearsay?

(g) At the trial PP offers to have Wavering Witness testify:

"I didn't see what happened. However, I spoke with Big Bystander at 12:15 p.m. on June 1, 2000. He said to me, 'I didn't see what happened. However, I just spoke with Paula Plaintiff, just before the attendants put her in the ambulance and took her away. I heard her screaming, "That d--d catsup. Ooh, that d---d catsup."'"

Hearsay?

If so, is WW's testimony nevertheless admissible? (Please explain.)

{Hints: See FRE 805, FRE 803(1), FRE 803(2) & FRE 803(3).}

{I -- P. Tillers -- say:}

You {Mr. -- or Ms. ---} represent Paula Plaintiff, the plaintiff in a civil action.

You, Mr. --- or Ms. ----, would you be kind enough to represent David Defendant, the defendant in this action? Thank you so much.

Excuse me.

{Addressing counsel for plaintiff, I say:}

I need to confer with counsel for David Defendant.

{I do so. I then say to the assembled throng in my courtroom:}

I am the judge.

{Addressing counsel for Paula Plaintiff, I say:}

Counsel for Paula Plaintiff,

•Your complaint avers that David Defendant slandered plaintiff on June 1, 2000. Defendant's answer denies that Defendant slandered Plaintiff. Defendant avers, in the alternative, that the slanderous statement is true.

•You have a witness on the stand.

There she is. Her name is Watchful Witness. Excuse me for a moment, I need to confer with Ms. Witness. {I do so.}

{I -- the judge -- then say}:

Counsel for Plaintiff, Ms. Witness has been sworn and you have established that she was sitting in a restaurant on June 1, 2000, listening to a conversation between David Defendant & Foul Friend.

You {I am addressing counsel for plaintiff} then ask Ms. Witness:

Did David Defendant say anything about Paula Plaintiff?

{Plaintiff's counsel complies with my request. David Defendant's Lawyer then states:}

Objection, your Honor. Hearsay.

{I -- the judge -- say:}

Objection overruled. The question does not ask for information about what David Defendant said. It asks whether or not David Defendant said anything about Paula Plaintiff. The objection is premature. The witness will answer.

{Ms. Witness' states:}

Yes.

{I state:}

Counsel for Plaintiff, you may ask the next question.

Counsel for Plaintiff may ask something like the following question:

What did David Defendant say?

{If Plaintiff's counsel does ask the above question, David Defendant's Lawyer states:}

Objection, your Honor. As far as we know, Witness' answer will be irrelevant. Moreover, it will be hearsay. Witness is being asked to relate the contents of an out-of-court statement. That's hearsay.

{The judge states:}

Counsel for Plaintiff and Defendant, let's have a little conference up here at the bench.

•{I interrupt the developing drama and I say something like the following to the members of the class:}

We are whispering at the bench, but you can hear us.

{I then say something like the following:}

Counsel for Plaintiff, what do you have to say about these objections for lack of relevance and on the ground of hearsay?

{Plaintiff's lawyer may explain that if Witness is allowed to answer she will say "Defendant stole my watch" and PP's lawyer may explain both why this testimony is relevant and why it is not hearsay. However, no matter what Plaintiff's lawyer says, I will sustain DD's objection by saying:}

Objection sustained.

{Smiling my best crocodile smile and addressing Plaintiff's counsel, I then say:}

Do you want to have an exception, counsel? Do you want to do anything else?

{Paula Plaintiff's lawyer may respond:}

Yes, I want to make an offer of proof.

{Please explain why Plaintiff's counsel thinks (s)he may have to make an offer of proof.}

{After Paula Plaintiff's lawyer says or suggest that she wants to make an offer of proof, David Defendant's counsel states:}

Your Honor, I don't see the need for an offer. You have already excluded his evidence. Let's proceed.

 

{The judge then states:}

Counsel for Plaintiff? What do you have to say to that?

{Please explain what you think counsel for plaintiff might or should say.}

{After some discussion, the trial judge may say:}

Well, o.k., counsel for Plaintiff, go ahead and make your offer of proof.

• Question 1. How would you make your offer of proof?
• Question 2. How would you make an informal offer of proof?
• Question 3. How would you make a formal offer of proof?

{A bit later counsel for Plaintiff asks Watchful Witness:}

What did David Defendant say?

{Watchful Witness replies:}

David Defendant said, "Paula Plaintiff stole my watch. I heard him say that."

The trial then proceeds. Eventually verdict and judgment are for David Defendant.

What is Paula Plaintiff's likely fate on appeal?

The setting for the next story is Minnesota. The actors are Tenant (T), Landlord (L), and Bank (B).

T is a tenant farmer in Minnesota. L is the landlord. The agreement between T & L provides that L is entitled to 1/3 of T's crop at harvest. When the corn is harvested, Tenant is to designate the 1/3 that goes to Landlord and give it to him.

T borrows money from B in anticipation of the harvest. The loan secured by T's crops. The corn grows and T harvests it.

After the harvest L drops over to his farm, and T, pointing to a pile of corn, states, "This here's your share of the corn, Lovely Landlord." L loads that pile of corn in his wagon and takes it home.

T defaults on the loan. B seizes the 2/3 of corn that is still in T's hands. B asks L to give it the other 1/3, but L refuses. L asserts that the corn is his.

B brings an action to recover the 1/3 portion of the corn in L's hands. At the trial L offers to testify to T's statement to him, "This here's your share of the corn, Lovely Landlord."

B objects, "Hearsay."

The trial court overrules the objection.

(a) First explain why T's statement looks like hearsay.

(b) Then explain why the trial court overruled B's objection.

(i) Please give a black-letter explanation for the court's ruling.

(ii) Please give a policy-oriented explanation for the result.

••You need to make some assumptions about Minnesota law to construct the above two explanations.

(c) Find one or more hearsay exceptions that seem to cover T's statement to L.

Cf. Hanson v. Johnson, 161 Minn. 229 (1924)(words constituting a partition).

• Is it possible that Hanson v. Johnson and cases like it were wrongly decided? On what theory? {Hints: Are there advantages to "stickperson hearsay"? Is there good reason to keep evidence rules simple, very simple?}

The charges against Della Defendant {DD} are (a) conspiracy and (b) extortion.

It is alleged that Della Defendant {DD} and Common Culprit {CC} conspired to rob the Last National Bank and that Common Culprit, acting on behalf of Della Defendant, committed extortion against Valiant Victim.

At the trial Common Culprit testifies that on June 1, 2000, he and Della agreed to rob the Last National Bank; that DD then said, "We'll need a gun"; and that Culprit then said, "I'll get the money for a gun from Valiant Victim. He thinks you're a violent person. He'll give me the money."

The prosecutor then offers the following testimony by Common Culprit:

I spoke with Valiant the next day, June 2. I told him, "'Give me your money. I need it to buy a gun. You'd better give me your money. Della is in this with me. And, as you know, she's a violent person.'" Valiant said, "O.K. You can have my money." He then gave me his money.

The trial court overrules Della Defendant's hearsay objection; it rules that Culprit's testimony is not hearsay.

Question 1: There are at least two possible theories for the trial court's ruling. What are they?

Question 2: What about the statement "We'll need a gun."? Is this Hearsay if it is offered to show that CC believed they would need a gun? If it is offered to show that DD believed they would need a gun?

Question 3: What about the statement by Valiant, "O.K. You can have my money"? Is this statement hearsay?

PP sues DD's insurer, International Insurer, in a so-called "direct action state." PP claims that she was injured on June 1, 2000, as a result of the negligent driving of DD, International's insured. At the trial International offers to show that on May 15, 2000, DD called one of II's agents on the telephone and said, "I want my insurance cancelled."

Question:

Is DD's statement an "admission"?

(No.)

Further questions:

Is DD's statement hearsay?

Does the answer to this question depend on something else?

(Yes.)

On what?

More questions:

If DD's statement is hearsay is it nevertheless admissible to show that DD cancelled his insurance? Please explain. {Hint: See FRE 803(3).}

Mortified Moribund Mortimer -- a/k/a/ 3M -- fell to his death from a window in Room 423 on the 20th floor of the Xenon Building. Common Claimant sues to recover from International Insurer on an accidental death policy on the life of 3M. International Insurer does not deny that Common Claimant is the designated beneficiary of the policy or that 3M is dead. It does deny that 3M died accidentally; it claims that 3M did not inadvertently fall out of the window, but that he committed suicide by deliberately jumping out the window.

At the trial Common Claimant offers to have Wally Witness testify that he spoke with 3M in Room 423 two hours before 3M fell to his death and that Moribund said to him, "There's a stash of crack out on the ledge out there" and that 3M pointed toward the window ledge from which he fell to his death.

Please explain why International Insurer's hearsay objection is overruled.

• If any essential facts are missing, make reasonable factual assumptions and state what those assumptions are.
• For purposes of this problem please assume that the life insurance policy did not purport to exclude liability under the policy when the insured's death occurred during the insured's commission of a crime or attempt to commit a crime.
  • Why is this assumption necessary to render the hypothetical problem imaginable?}