GROUP 2

QUIZ BETA

QUESTION 1
1. P & D were each driving automobiles involved in a
right angle collision at an intersection. P was driving in a
northerly direction on a through street; D was driving in
a westerly direction on a street with a stop sign. P sued
D, contending that D had failed to stop at the stop sign.
D encountered that P had passed a truck (which blocked
Ds view) at high speed at the intersection. Determine
the admissibility of the following evidence: (20%)

QUESTION 1.A.
A. P called K, a pedestrian who saw the accident, and
proposed to have him state that ten minutes after the
collision occurred when both drivers were standing on
the sidewalk discussing the matter, K looked at D and
said, Why in the world did you ever run that stop
sign? K would further testify that D glared at him but
said nothing at all in reply.

ANSWER:
The evidence is admissible.
P will contend that Ds failure to respond to Ks question is a tacit
admission and admissible over a hearsay objection. The test for
determining whether this is a tacit admission is whether, under the
circumstances, D would have responded to K by denying that he ran
the stop sign if, in fact, he had not run the stop sign. The burden is on
the proponent of the evidence (P) to establish that this is the case.
Since this is a question of preliminary admissibility, it is for the judge
to decide whether P has met his burden. In this case, the judge would
have to decide whether D glared at K merely because he interrupted
his conversation or because of the substance of Ks remark, or even if
D heard Ks question.

If the judge determines that D heard the question, it

is likely that she would find the evidence admissible. A
reasonable person in Ds situation (i.e. discussing the
accident with the other driver soon after it occurred
who had not run the stop sign would likely respond to
such question by denying that he had run the stop
sign. P might also argue that Ks question to D is not
hearsay under the federal rules since it is not in the
form of an assertion (it was a question). Therefore, Ks
question is (according to his argument) not a
statement as defined in FRE 801 and cannot be
hearsay.

QUESTION 1.B.
B.
D called J, who worked with P, and proposed to
have him testify that he often rode with P at the
intersection where the collision occurred, and that on
many occasions, P, passing slower moving vehicles,
drove through intersections at more than 60
kilometers per hour. J would further testify that he had
often mentioned the dangers of these actions to P.

ANSWER
Testimony of J
a.) As to Ps prior conduct.
This is inadmissible character evidence.
Its relevance flows from the inference that because P
drove recklessly on previous occasions, he did so on the
occasion in question. D might argue that this is admissible
habit evidence. This argument would fail, however,
because the testimony fails to establish that P routinely,
invariably and habitually drove recklessly through this
intersection.

b.) As to Js mentioning dangers to P.

This is inadmissible.
Nothing in the question indicates that there is an
issue as to whether P failed to realize the danger in
fast driving. Therefore, if offered to prove that P was
put on notice about the dangerousness of that type of
behavior, it is irrelevant. If offered to prove that P
dangerously on previous occasion, it is inadmissible
for the same reason Js testimony about Ps prior
conduct was inadmissible. In addition, Js statement to
P is hearsay if offered to prove that driving in that
manner is dangerous.

QUESTION 1.C.
c. D called E, a highway safety engineer, who described
the highway on which P was driving as having a short but
fairly steep rise which made a car on that highway
difficult for a driver on Ds street to see until it was within
about 150 meters of the intersection. E was then asked
whether, in his opinion, the intersection where the
collision took place was dangerous, and whether D could
have avoided a collision by exercising ordinary care.

(a.) Description of Scene is admissible evidence.

The condition of the intersection (short but fairly

steep rise) at the time of the accident is a relevant
consideration for the jury. If E had personal knowledge
of the condition, and of the road was in the same
condition at the time it was examined by E as it was
at the time of the accident, Es testimony describing
the scene should be admitted. This is not expert
testimony. Any witness who had seen the highway
and could describe its condition would be permitted to
testify.

(b)Es Opinion as to Dangerousness of the

Interserction is also admissible.

P will argue that this testimony is inadmissible. Ordinarily,

the jury is perfectly capable of deciding whether a described
situation is dangerous without the assistance of an expert.
Not only there is no need for expert testimony on this matter, P
will argue that there is a great risk that the jury will overvalue
the expert opinion and substitute the experts judgment for
its own.
Modern rules allow the admission of such statement if it
would help in the tier of facts.

 (c)

Es Opinion as to Avoiding the Collision is

also admissible.

At common law, this question would provoke an

objection that it goes to an ultimate issue. But
modern rules on evidence provides that the fact that
testimony goes to an ultimate issue in the case is no
longer a ground for objection. Nevertheless, P could
object on the ground that the question calls for a
response that goes beyond Es field of expertise; he is
a highway safety engineer, not an expert on what
driving techniques could have been used to avoid a
particular accident. In addition, it is not clear that Es
idea of what constitutes ordinary care coincides
with how the law defines ordinary care.

Thus, this question involved a mixed question

of law and fact and so presents the danger that
the jury could easily be misled. Many (but not
all) courts would exclude it.

QUESTION 1.D.
d. D called W, who testified in support of Ds version
of the accident. W stated that he had lived on the
corner where the collision occurred and had seen at
least 6 similar collisions in the prior year. When asked
how he recalled the one on trial. W stated that it was
on his birthday, Friday, November 9, 2015. In his
closing argument, counsel for P produced a 2015
calendar (not in evidence) and showed that in 2015,
November 9 was a Monday.

ANSWER
The production of Calendar was inappropriate.
It was inappropriate for two reasons. First, counsel
must base final argument on the evidence adduced in
court or judicially noticed by the trial judge. Here,
counsel is trying to present evidence to the jury
during closing argument. This is improper. If counsel
wanted to establish that March 13 was a Monday,
counsel should have introduced the calendar into
evidence or asked the court to take judicial notice of
such fact.

The second reason goes to the use of extrinsic

evidence for impeachment purposes. The impeachment
technique being used here is contradiction. The general
rule is that extrinsic evidence may not be used to
contradict a witness as to a collateral matter. Since the
point of the impeachment seems to be merely establish
that W was in error as to whether his birthday fell on a
Monday or a Friday (a fact of no direct consequence to
the case), this would be collateral, and extrinsic
evidence should not be permitted.

QUESTION 2
P sued D for damages to Ps auto. Ds car,
driven by C, Ds chauffeur, sideswiped Ps auto
as C attempted to pass P. In the pleadings, D
denied that C was his agent. Discuss the
admissibility of each of the following rulings:
(30%)

QUESTION 2.A.
a. P offered the testimony of M, a motorist who saw
the collision, that he spoke to C after the accident,
and asked C where he was going, and C replied, D
told me to pick up his wife at the airport.

ANSWER
The testimony of M is admissible in evidence.
Under the rules, the act or declaration of a partner or
agent of the party within the scope of his authority and
during the existence of the partnership or agency may be
given in evidence against such party. Moreover under the
Federal Rules of Evidence, an agents statements are
admissible as vicarious admissions of the principal so
long as they are made while agency relationship is in
existence and concern a matter within the scope of that
relationship.

In the case at bar, the issue is whether Cs

statement can be used to establish the existence
of an agency relationship. The rules provided
above are applicable in this case , it leads to the
conclusion that Cs statement D told me to pick
up his wife at the airport can be used to establish
that C was acting as Ds agent. Therefore, a strong
argument can be made for admissibility.

QUESTION 2.B.
b. Ds counsel called H, a hitch hiker whom C picked
up prior to the accident, who gave testimony which, if
believed, would have completely exonerated C of
negligence. P then offered to prove that H had
demanded Php 50,000.00 from D for the injuries
sustained from the accident, and that D settled it for
Php 40,000.00.

ANSWER
The settlement is not admissible as evidence.
Under the rules, the offer to compromise is not
admissible in evidence against the offeror. The law of
evidence ordinarily prohibits evidence of compromise
offer or actual settlements to prove liability. In the
case, the payment of D to the demand of H is not
admissible in evidence because it cannot be used to
prove liability of D. Moreover, there is no showing has
been made that the payment was anything other than
a reasonable payment for injuries suffered by H.

QUESTION 2.C.
c. Ps counsel, at the close of his case, asked the
court permission to have the jury view Ds car which
W parked near the courthouse on the ground that,
this would be the best evidence of the condition of
Ds car. The court denied the request.

ANSWER
The decision of the court to refuse the offered evidence
is correct.
Under the rule, the best evidence rule applies to the contents
of writing. A judge has the discretionary power to permit any
activity if he feels it is important and relevant to the case. In
the case at bar, the best evidence rule is not applicable in this
case. The condition of Ds car appears to have minimal
probative value. A photograph would show the jury everything
it needed to decide the case. And a judge may or may not grant
a jury view of the car. Thus, the refusal of the judge for jury
view of the car is justified and there was no abuse of discretion.

QUESTION 3
P sued D for personal injuries. P claimed that
D had negligently manufactured a wooden
ladder which broke while being used by a man
named Carpenter, causing Carpenter to fall
upon P. Carpenter died as a result of the
injuries received.

QUESTION 3.A.
A police officer was called as Ps witness. He testified
without objection that when he arrived at the scene,
Carpenter was conscious but had lost consciousness
before the ambulance arrived and that when the
ambulance arrived, it backed over the ladder and broke it
in several pieces. Over Ds objection, the police officer
was allowed to testify that at the scene of the accident,
he asked Carpenter what happened and Carpenter said,
The ladder broke and I fell.

ANSWER:

a. The court is correct in overruling the

objection.

Under the rules, independent relevant statements

are statements made by a declarant which is relevant
to an issue in a case from the mere fact that words
were spoken or written, irrespective of the truth or
falsity of the assertion. Independent relevant
statements are not covered by the hearsay rule hence
admissible.

In the problem presented, the testimony of the

police officer who asked Carpenter what happened to
which the latter answered back and said The ladder
broke and I fell may be received in evidence as an
independent relevant statement. Such statement
maybe received not as evidence of truth of what was
stated but only as to the tenor thereof and the
occurrence when it was said, independent of whether
it was true or false.

QUESTION 3.B.

P called Dr. A. It was stipulated that he was an expert in

the field of materials and accident reconstruction. Over
Ds objection, Dr. A was permitted to testify that based
upon information obtained from the police report, wood
fiber analysis reports from an independent laboratory,
records of the company from which Carpenter rented the
ladder, and his own inspection of the scene. It was his
opinion that at least one of the breaks in the ladder preexisted the ladders being smashed by the ambulance.

ANSWER
The court is correct in overruling the
objection.
Under the rules, the opinion of a witness on a
matter requiring special knowledge, skill,
experience or training which he is shown to
possess, may be received in evidence.

In the problem presented, the purpose of

presenting Dr. A is to give his expert opinion
regarding the condition of the ladder at the time of
the accident. Based on his opinion, the ladder had
breaks or cracks even before it was smashed by the
arriving ambulance based on the police report, wood
fiber analysis report and records of the company. Such
testimony was made because he was an expert in
materials and accident reconstruction.

QUESTION 4.C.
c. D called H as a witness. H refused to answer any
questions about the falling of the ladder on the
ground that his answers might tend to incriminate
him. D then called B who testified , over Ps objection,
that H told him that he, H, had kicked the ladder out
from under Carpenter.

ANSWER
The court is not correct in overruling the objection.
Bs testimony as to Hs prior statement is hearsay, an out-of-court
declaration by H that he caused the ladder to fall. The statement
is being used to prove its truth and so a hearsay exception is
required. The most likely hearsay exception is declaration against
interest. First, unavailability of the declarant (H) must be shown.
Under the federal rules and in many jurisdictions, Hs invocation
of the privilege against self-incrimination will be sufficient to
establish unavailability. Second, the statement must qualify as a
declaration against interest. It is certainly a statement that would
tend to subject H for criminal liability.

QUESTION 3.D.
d. On cross-examination, B had difficulty
remembering anything else that happened the day H
made the statement to him, but the court sustained
Ds objection to the question, How can you
remember what H said so clearly when you cant
remember anything else that happened that day?

ANSWER
The court is correct in sustaining the objection.
It was certainly within the discretion of the trial judge
to allow the question to be put to B on crossexamination. B put his credibility into issue by
testifying, and a cross-examiner should be given
broad leeway in challenging credibility.

While the thrust of the question may seem to be

argumentative, it does ask B to reconcile his lack of
money as to some details with his comparatively
precise memory of other details or events which
occurred on the same day. This is a legitimate inquiry
into the credibility of the witness and is appropriate
cross-examination.

QUESTION 4
4. S (Seller), a used car dealer, sued B (Buyer), a
truck driver for breach of contract to purchase a
truck. The following occurred at the trial:

QUESTION 4.A.
a. W, called as a witness for S, testified over objection,
that on March 3, S, while standing beside a `1995 green
and white pick-up truck, said to B, You can have it for
Php 150,000.00 and B replied, Ill let you know tomorrow.

ANSWER
(A) The court is correct in overruling the objection.
The testimony of W relating the conversation between (S)
and (B) raises hearsay issue.
Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted. The testimony here includes outof-court statements of both B and S. However, the statements
are not being offered to prove their truth. Their probative value
flows from the fact that they were made, irrespective of the
declarants credibility. Words of offer, acceptance and rejection
have independent legal significance and thus are not hearsay.

QUESTION 4.B.
b. the only question asked W on the crossexamination was, Isnt it a fact that you hate truck
drivers? An objection to this question was sustained.
Counsel for B asked no further questions of W.

ANSWER
(B) The court is not correct in sustaining the objection.
The question asked W on cross-examination was proper.
Every witness puts his credibility in issue, and a classic form
of impeachment is to demonstrate bias on the part of the
witness. If W really did hate all truck drivers, it would indicate
a bias against B and would, therefore, cast doubt upon Ws
credibility. In defense of the courts ruling, one could argue
that the likelihood that a witness would lie based upon such a
bias is so small that the court acted within its considerable
discretion in sustaining the objection.

QUESTION 4.C.
T, Ss office manager, was called as a witness for S,
and testified over objection that on March 4, she
answered the telephone and a mans voice said, This
is Mr. B. Tell Mr. S. Ill take the green and white pick-up
for P150,000.00.

ANSWER
(C) The court is correct in sustaining the
objection. The judge may admit the evidence and
leave to the jury the weighing of the evidence.
Two evidentiary problems are raised by Ts testimony.
The first question is one of hearsay, but as previously
discussed, statements of offer, acceptance and rejection
are not being offered here for their truth, and thus are not
hearsay. The serious problem is one of authentication. In
order to admit the statement purportedly made by B, S
must offer evidence sufficient to warrant the conclusion
that the statement is what it purports to be, i.e., a
statement of B.

Authentication of a voice heard on a telephone may

not be accomplished solely by self-identification. Nor
did T recognize the voice. It may, however, be
authenticated by the reply message doctrine. The
statements attributed to B specifically refer to a green
and white 95 pickup for the price of P150,000, the
precise elements of the offer shown to have been made
to B the day before. It could be interpreted that this
telephone call was, in essence, a reply to the offer, and
that the repetition of these specifics indicates that the
speaker must be B. B could argue that S may have told
every potential buyer that the green and white 95
pickup was priced at P150, 000, and thus many people
could have known the same information.

However, if W is to be believed, B said he would

let S know the next day. When, on the following
day, a call is received by one representing himself to
be B, there is sufficient evidence to support the
finding of authenticity. The judge should admit the
evidence.

QUESTION 4.D.
d. R, an investigator employed by the Better
Business Company, called as a witness for B, testified
over objection that about three(3) weeks after the suit
was filed. W told him that what B had actually replied
to Ss offer was, I wouldnt give you 99 centavos for
the piece of junk.

ANSWER
(D) The court is correct in sustaining the objection.
Rs testimony relates a statement made to him by W
regarding a statement made by B to S. Breaking down the
testimony out-of-court statement by out-of-court
statement, we see first that Bs statement to S is not
hearsay. As pointed out above, it is not offered to prove
the truth of the matter asserted. The out-of-court
statement of W to R (that B said junk to S) is also not
hearsay. Rather, it is being offered to impeach W by
showing that he previously made a statement
inconsistent with his trial testimony (B said, Ill let you
know tomorrow.).

QUESTION 4.E.
e. After the defense rested, A. Ss attorney, made an
offer of proof that he, A would testify that prior to
filing suit, he interviewed W and W told him about the
conversation between S and B in the exact words that
W testified to in court. Bs objection was sustained.

ANSWER
(E) The court is correct in sustaining the objection on
the ground of hearsay.
Abels offer of proof also relates to an out-of-court
statement made by W. If it is offered for its truth, it is hearsay
and a hearsay exception must be found. None is applicable.
But A will argue that it is being offered for a non-hearsay
purpose. Ws credibility was attacked by showing he made a
prior inconsistent statement. A will argue, therefore, that Wills
s prior consistent statement is being offered to rehabilitate Ws
credibility. Unfortunately for A, however, prior consistent
statements ordinarily may not be used to rehabilitate a witness
whose credibility has been attacked with a prior inconsistent
statement.