Widow, the administrator of Pedestrian’s estate (P), is suing Driver as a result of an automobile accident in which a truck, driven by Driver and owned by Oil, Inc., struck Pedestrian and caused extensive injuries to Pedestrian which eventually caused his death one month after the accident.
Bystander, who witnessed the accident, gave a signed written statement about the accident to an investigator several days later, in which she said that Pedestrian crossed the street at a time when Driver had a green light. At trial three years later, when called by Driver’s attorney, Bystander testified on direct examination that Driver went through a red light and hit Pedestrian. Driver’s attorney may:
A. Upon proper authentication of Bystander’s signature, introduce the statement to prove that Driver had a green light at the time of the accident.
B. Show the written statement to Bystander to attempt to refresh her recollection.
C. Hold the statement until Bystander gets off the stand and leaves the courtroom, and then introduce the statement through the investigator for the purpose of impeaching Bystander’s credibility.
D. Not use the statement in any way.
{ 9 comments… read them below or add one }
No questions posted today???
Answer B is correct. Driver’s attorney is not offering the statement in evidence when he merely shows it to the witness so that her memory will be refreshed and she will testify differently than she did on direct examination. Almost any document can be used for this very limited purpose.
Answer A is incorrect. If the statement is offered to prove that Driver had a green light at the time of the accident, it is being used to prove the truth of the matter asserted in the statement and is therefore hearsay. If the statement were an admission by a party-opponent, or if it was a statement under oath by a witness who is now on the stand, it would be nonhearsay and would be admissible to prove the truth of the matters stated. Since it is not nonhearsay and does not come within any exception to the hearsay rule, it is admissible only for impeachment purposes and may not be offered for its truth.
Answer C is incorrect. A prior inconsistent statement not made under oath, although hearsay when offered to prove its truth, may still be offered to impeach the credibility of a witness. In order to introduce such evidence, however, the attorney must first ask the witness, while the witness is on the stand or otherwise available to explain the statement, if the witness made such a statement. Since Bystander has left the courtroom, this prerequisite can not be met. Only if the witness is given the opportunity to explain or deny the statement will it be admissible as extrinsic evidence.
Answer D is incorrect. The statement may be used for the limited purpose of refreshing the witness’s recollection.
I laughed out loud at C too! Between yesterday’s question and today’s, this has been very interesting lol. I almost thought C may be the right answer in light of the other choices, but with a prior inconsistent statement, a witness must be given the opportunity to explain or deny that statement. If she leaves the courtroom before the statement is introduced, she will not have that opportunity.
Therefore, I’m choosing A. I’m not sure, but I think that the signed written statement here is not a “statement” as defined by the FRE. At the time the witness made this statement, she was not making an assertion (or I don’t think this was an assertion), which the FRE requires; she was simply telling what she witnessed. Thus, this does not meet the definition of hearsay, and would not be excluded on those grounds. The statement is certainly relevant, and so long as the writing is properly authenticated (all that needs to be shown here is that it is in fact her signature, because writings signed by the party or witness being questioned are self-authenticating), it will be admissible.
B is incorrect because the witness never said that she could not remember what she told the investigator at the time of the accident, and thus her memory could not be “refreshed.”
D is incorrect because the statement is not “hearsay” and it is relevant, and therefore, so long as it is properly authenticated (only by showing her signature, here), it will be admissible.
b
D.
Answer B
Answer: D is correct.
D.
And I hope if I’m wrong, that the correct answer isn’t C, because it made me laugh out loud.
A. to impeach the witness.
C is weird: B does not need to leave the courtroom to be impeached!