CA Bar Evidence Essay July 2007 Q3
PURPOSE OF EVIDENCE
Helpers testimony is being offered to show that Mechanic observed D’s bad brakes. Logical Relevance (applies to items 1-4 offered below): Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more probable than it would be without the evidence. Polly is offering Helper’s testimony to strengthen his theory of liability that Dave was aware that his brakes were bad. Helper assisted in repairing D’s car before the accident especially when D was given notice that his brakes needed repair right before the accident.
Hearsay: Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, oferd in evidence to prove the truth of the matter asserted. If no exceptions apply the statement must be excluded upon appropriate objections. Statement #1 is an oral assertion not made by a party to the suit. There are several possibilities this statement can come into testimony
A statement not offered for the truth of the matter, but for another reason such as: effect on hearer or listener. It is not being offered for the truth of the matter asserted. It is being offered to show that Mechanic, in his regular conduct in business tells his Helper what is wrong with a car to document it and ultimately disclose/solicit future service and repairs to the car owner.
Present Sense Impression: Comments made concurrent with the sense or impression of an event that is not necessarily exciting may be admissible. There must not be a time lapse for a misstatement to occur, and the statement should be contemporaneous. Mechanics statement to Helper was contemporaneous with his observation of the brakes and it was his observation and impression of D’s brakes. Under this hearsay exception, statement #1 is admissible.
Hearsay: (See above) Statement #2 is an out of court conduct as communication being offered...
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