T(&A)TTBE #44: Early Answer for Patrons!
Added 2017-10-09 00:47:30 +0000 UTCThis was a fiendishly hard question, as evidenced by the fact that both Thomas and guest Andrew Seidel got the question wrong. Oh, and Thomas's Second-Chance Law Firm also got the question wrong for the first time in nearly forever.
In fact, other than attorney Charone Frankel, I don't know that anyone got this question right. Let's dive in.
Obviously, this was a hearsay question, and to figure our hearsay, we turn to our friend, Rule 801(d) of the Federal Rules of Evidence.
What made this question a challenge is that the thing this testimony was -- namely, an admission by a party witness -- was not offered as one of the choices. Instead, you were left eliminating choices that were wrong until you were left with "C" as the best answer.
Answer "A" (chosen by both Thomas and Andrew) said that no hearsay exception applies; that's wrong, because Rule 801(d)(2)(D) applies here to a statement by a party's employee on a matter within the scope of the employment relationship made while that relationship existed.
Answer "B" -- that the statement was "double hearsay"-- was rightly laughed off by Thomas. Double hearsay is when someone testifies as to hearsay they heard; that's not the case here.
Answer "D" -- -- that the statement is a "spontaneous utterance" -- was rightly laughed off by Andrew Seidel. Spontaneous utterances are what they sound like; the classic example is, "oh my god, you just hit that guy with your car!" at the scene of an accident. Not the case here.
That leaves "C" -- that the statement is generally reliable and not excludable. It's a tough answer but a lot of bar exam questions are like this.
Thomas is now 24-for-44 (54.5%) overall, and on a three-question losing streak.
