Hearsay quiz: Spring break edition

It's been a while. Midterms are coming up for kids in school, right before spring break. So perhaps now is a good time to bring back the hearsay quiz, in a spring-semester-midterm edition. (For the sake of this exercise, assume relevance.)

1. A man walking down the street turns to his friend and says, "My brother stole my mother's Picasso." A few seconds later, he steps into the street and is run over by a bus and immediately killed. At the trial of the decedent's brother for theft of the painting, the prosecution seeks to introduce this statement as a dying declaration. Is it admissible as a dying declaration?

A. Yes, because he was killed soon after making the statement.

B. No, because the declarant didn't think he was going to die anytime soon when he made the statement.

C. No, because the statement doesn't relate to the cause of his death.

2. A toddler is taken to her aunt's house by her father, two days after her mother went missing. Immediately after the father leaves, the toddler becomes hysterical and very agitated and blurts out to her aunt that her parents had "a big, big fight and that daddy cut mommy with a knife." The evidence showed that the toddler was extremely agitated when she made the statement and made it immediately after her father left the house, the first time since the incident where the toddler had been alone with a trustworthy adult. The prosecution seeks to admit this statement as a spontaneous statement. Is it admissible under that exception?

A. Yes, because the statement was an immediate, unsolicited, emotional outpouring of previously withheld emotions and utterances.

B. No, because the statement was not spontaneous; it was made two days after the event.

C. No, because the statement did not narrate or describe an event the toddler was perceiving.

3. The deceased owner of an auto-wrecking yard made statements to a water-quality control board that were memorialized. The board's notes state as follows: "He said that drums were either picked up or delivered to the site from a manufacturer. He said the drums were supposed to be empty because they were used for storage of metal waste onsite. He said chances are there was chemical liquid at times in the drums. He said he had employees that weren't always paying attention to the matter." Plaintiffs seek to introduce this statement in a toxic-tort action alleging that private water wells in the area had been contaminated with various chemicals, including those in the drums discussed in the memo. Plaintiff argues that the owner's statement was a declaration against interest. Is the statement admissible under that section?

A. Yes, because the statement subjected the owner to potential liability.

B. No, because the owner was trying to pass the blame and exculpate himself.

C. No, because the owner doesn't explicitly admit liability.

4. In a capital-murder prosecution, there is a record from defendant's time in county jail awaiting trial that documents a ten-day suspension of privileges for defendant.

The prosecution seeks to admit the document as a business record in the penalty phase--not to prove the defendant's underlying conduct, but simply to show that his privileges were suspended for ten days to rebut defendant's evidence regarding his good conduct while in jail. Should it be admitted under that section?

A. No, because the jail is not a "business."

B. No, because this is not the type of record that is made in the regular course of business.

C. Yes, it is a business record made in the regular course of business.

5. In a robbery prosecution, the mother of the defendant sent a text message to the defendant that stated" "And that is why u will b locked up 4 robberey [sic] of the stores in this area." The prosecution argued in a motion in limine that "Defendant's failure to respond to his mother's text message where she accused him of committing the robberies in the area is admissible as an adoptive admission by defendant that he committed these robberies." Should the text message and defendant's silence in response be admitted as an adoptive admission?

A. No, simply because the defendant failed to reply does not establish the basis for the adoptive-admission exception, because text messaging is different than in-person communication.

B. Yes, when a person makes a statement to a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the purpose of showing the party's reaction to it. The defendant's silence can be considered a tacit admission of the statements made in his presence.

C. No, because the adoptive-admission cannot be met by a party's silence in response to a statement made to the party.

6. In a proceeding for a declaratory judgment and to determine heirship, there is a dispute about whether the petitioner is in fact an heir of the deceased. The petitioner seeks to introduce, as evidence of his relation, an urn that states "Here likes Ursula Underwood, mother to Stephen, Tabitha, George, and Lucius." The petitioner's name is Lucius Underwood. The respondent argues that the writing on the urn is inadmissible hearsay. Is it?

A. Yes, it's being proffered for the truth of the matter asserted and no exception applies.

B. Yes, because the mother is deceased.

C. No, because statements such as this one are admissible to show relationship by blood.

7. In a quiet title action between neighbors arising out of a boundary dispute, one party seeks to testify as to his deceased father's statements about where the disputed boundary was located. The deceased father's statements to his son were made long before any boundary dispute came up and that father was familiar with the property. The opposing party argues that the statement is hearsay. Is it?

A. No, because this kind of statement is not barred by the hearsay rule.

B. No, because it is a dying declaration.

C. Yes, because it is an out-of-court statement being offered for the truth of the matter asserted.

8. Some furry-footed fantastical creatures find a golden ring. When the ring accidentally falls into a fire, one of the furry-footed creatures, Hobo, reads a glowing inscription on the ring: it says "STEAL THE PURPLE WIZARD'S CRYSTAL BALL." At a trial for stealing the Purple Wizard's crystal ball, Hobo seeks to introduce the statement on the ring to explain his actions. The prosecution seeks to exclude it as hearsay. Ruling?

A. Hearsay. Hobo wants to introduce the out-of-court statement for the truth that he heeded the statement.

B. Not hearsay: engravings on rings like this can be introduced for this purpose.

C. Not hearsay: Hobo is not introducing the statement for the truth of the matter asserted.

9. In a breach-of-contract case, plaintiff suing for breach of contract seeks to introduce a text chain where the plaintiff and defendant were negotiating the terms of the agreement and defendant responded to the contract terms with a smiling emoji wearing sunglasses, which the plaintiff argues constituted defendant's affirmative acceptance of the contract. Defendant argues that the emoji is hearsay. Ruling?

A. Not hearsay because the emoji is not a writing.

B. Hearsay because plaintiff is seeking to introduce the emoji for the truth of the alleged statement.

C. Not hearsay because the emoji is not being introduced for the truth.

10. In a kidnapping prosecution, the prosecution seeks to introduce defendant's alias that the prosecution alleges defendant wrote into a motel register (along with the make of his vehicle) when he checked into the motel--with his kidnapping victim in his truck. The defendant argues that he did not use that name and that, in any event, the testimony is hearsay. Ruling?

A. It's hearsay because it's being offered for the truth.

B. It isn't hearsay because it's not being offered for the truth of the matter asserted.

C. It isn't hearsay because writing one's name in a register at a motel is a verbal act.

Answers & Explanations:

1. B. (See A. Chowdhury, Last Words: On dying declarations, Daily Journal Oct. 30, 2023, available at << https://www.dailyjournal.com/mcle/1369-last-words-on-dying-declarations >>.)  There's no requirement that the statement at issue relate to the cause of the speaker's death.

2. A. These facts are taken from People v. Trimble (1992) 5 Cal.App.4th 1225, 1228-35, where the court upheld the admission of the toddler's statement as a spontaneous statement under Evid. Code § 1240. (See A. Chowdhury, Reflecting on spontaneous statements, Daily Journal, April 24, 2024, available at << https://www.dailyjournal.com/articles/378180-reflecting-on-spontaneous-statements >>. )

3. B. The facts are taken from Clark v. Optical Coating Lab., Inc. (2008) 165 Cal.App.4th 150, 172-173: "[The owner's] statements as reported do not qualify as declarations against interest because they are, if anything, intended to be exculpatory rather than inculpatory as to [the owner] himself. [The owner] stated that the drums were "supposed to be empty" when he got them from [the manufacturer]. In other words, Kessler's agreement with [the manufacturer] was that [the manufacturer] was to dispose of any contents the drums had once held before the drums arrived at [the yard]. Despite this agreement, "chances are" there was "liquid" in them "at times," according to [the owner]. This was apparently due to the fact that some of [the owner's] employees did not "always pay[ ] attention," implying that he had instructed the employees to make sure the drums were empty. [The owner's] statements are those of a person who is trying to avoid rather than assume liability for any contamination that OCLI's drums might have caused."

There is no requirement under Evid. Code § 1230 that the declarant explicitly admit guilt or liability.

4. C. See People v. Ervin (2000) 22 Cal.4th 48, 96.

5.  A. The facts are taken from People v. McDaniel (2019) 28 Cal.App.5th 519, 529-530: "[G]iven the nature of text messaging, the fact that McDaniel did not text his mother back was not sufficient to show that he had adopted his mother's statement. Text messaging is different from in person and phone conversations in that text exchanges are not always instantaneous and do not necessarily occur in "real time." Rather, text messages may not be read immediately upon receipt and the recipient may not timely respond to a text message for any number of reasons, such as distraction, interruption, or the press of business." 

Silence in the face of a statement can qualify as an adoptive admission. (Id.; see Evid. Code § 1221.)

6. C. See Evid. Code § 1312.

7. A. See Evid. Code § 1323.

8. C. Hobo is seeking to introduce the command inscribed on the ring. Commands, like threats, are verbal acts, and are not introduced for any truth statement. (See A. Chowdhury, "How to do things with words," Daily Journal Oct. 6, 2023, available at << https://dailyjournal.com/articles/375153-how-to-do-things-with-words >>.) This can't come in under Evid. Code § 1312 because the statement doesn't have to do with lineage, blood relation, etc.

9. C. The emoji is being introduced as a sign of acceptance of the terms of the contract--a verbal act, which is not being introduced for the truth of any matter asserted. (See A. Chowdhury, "How to do things with words," supra, Answer to Question 8.)

10. B. While the testimony would likely be hearsay if it were offered to show that the defendant used his own name and that he was in fact there at the hotel, the register is not being introduced to prove the truth of the matter asserted, but to prove that the room was registered under an assumed name, which the defendant denies. (See Henderson v. State (1995) 322 Ark. 402, 409-410.)

How did you do? We'll check in again with a hearsay final at the end of the term.