A witness at trial is testifying about statements made by the defendant at the scene of an accident. She also is asked about a subsequent phone conversation she had with the defendant regarding the accident. On direct examination, the plaintiff’s attorney asks, “What did the defendant say at the scene of the accident?” Witness answers, “He said he was trying to answer his cell phone, and swerved into the oncoming lane of traffic. He said he was sorry and that it all happened so quickly!” Witness is asked what defendant said on the phone the next week. Witness replies, “The defendant said that he felt bad that he hurt the plaintiff, who is his neighbor. He said he is never going to talk on the phone while driving again.” What objections can defendant’s attorney make

Question

to these questions? What arguments would each side raise to the objections? How should the judge rule?

What will be an ideal response?

Answer 1

The defendant would object to these questions because each calls for a hearsay answer. Hearsay is a statement made by a declarant (defendant) who is not presently testifying that is offered to prove the truth of the facts contained in the statement.

The plaintiff’s attorney would argue that the statement made by the defendant at the scene is not hearsay because it is not offered to prove the truth of the statement but only that the defendant was present at the scene and talking. The defendant’s attorney would say that that is not an issue in the case and the question is not material.

The plaintiff’s attorney would also argue that the statement is an exception to the hearsay rule because it is a present sense impression describing an event or condition made at the time of declarer perceived the event or condition or immediately thereafter. The defendant’s attorney would argue that it does not qualify. Another exception to be raised by the plaintiff’s attorney is that the statement was an excited utterance relating to a startling event or condition made while the declarer was under the stress or excitement caused by the startling event or condition. Alternatively, the plaintiff’s attorney may claim that it is a statement of the declarer’s then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), considered trustworthy because of its spontaneity. Lastly, the plaintiff’s attorney may argue that it is a statement against interest and is trustworthy because it was made by someone who is now unavailable and that was, at the time of its making, so far contrary to the declarer’s financial, legal, or other interests that a reasonable person in the declarer’s position would not have made the statement unless he or she believed it to be true. However, the defendant is available, unless this is a criminal case in which he chooses not to testify.

With regard to the statement made the following week on the phone, the plaintiff’s attorney may argue exceptions based on statement against interest or state of mind.