Thread: Model Answers for July 2007 California Bar Exam - Evidence

Can someone provide a model answer to this question or draft one if you are really good at it? Thanks

TUESDAY MORNING
JULY 24, 2007

Dave brought his sports car into the local service station for an oil change. While servicing the car, Mechanic checked the brakes and noticed that they needed repair. The following events occurred:

1. Mechanic commented to Helper, “Dave had better get these brakes fixed. They look bad to me.”
2. Mechanic instructed Helper (who did not himself observe the brakes) to write on the work order: “Inspected brakes — repair?”, which Helper then wrote on the work order. However, Helper currently does not remember what words he wrote on the work order.
3. Many hours later when Dave picked up his car, Helper overheard Mechanic say to Dave, “I think your brakes are bad. You’d better get them fixed.”
4. Dave responded, “I am not surprised. They’ve felt a little funny lately.”
5. Later that day, when Helper was walking down Main Street, he heard the sound of a collision behind him, followed by a bystander shouting: “The sports car ran the red light and ran into the truck.”

The sports car involved in the accident was the one that Dave had just picked up from Mechanic. Polly owned the truck. Polly sued Dave for negligence for damages sustained in the accident. Polly’s complaint alleged that the accident was caused by the sports car running the red light because the sports car’s brakes failed. Polly’s theory of liability is that Dave knew or should have known that his brakes were bad and that driving the car under those circumstances was negligent. Polly called Helper as a witness to testify as to the facts recited in items (1) through (5) above, and she also offered into evidence the work order referred to in item number (2).

Assume that in each instance, appropriate objections were made.
Should the court admit the evidence offered in items numbers (1) through (5), including the work order referred to in item number (2)? Discuss.

Category: CA - California Bar Exam

Essay 3 (2007 July Cal Bar Exam):
EVIDENCE
Answer Provided by National Bar Review, LLC

Relevancy

Relevancy relates to the tendency of evidence to prove or disprove a material issue in an action. Thus, in determining whether certain evidence is relevant, there first must be a determination of the issue in question.

Relevant evidence is admissible unless it is excluded. Further, if the offered evidence tends to make the truth of a proposition more or less probable, it has probative value and is thus considered to be relevant.

Exclusion for unfair prejudice, confusion, or waste of time (Rule 403)
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

1. “Dave had better get these brakes fixed”
The above statement made to Helper is relevant because it shows whether Dave knew or should have known that his brakes were bad and is therefore a contributing factor to the damages sustained in the accident.

Hearsay

Mechanic’s comment to Helper is an out of court statement and may be considered hearsay. Hearsay is a statement other than one made while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Thus, if a statement is introduced for some other reason than to establish the truth of its contents, it is not hearsay. Hearsay is inadmissible unless it falls within one of the exceptions. The exclusion of hearsay evidence is designed to protect the integrity and fairness of the court by forcing parties to introduce their witnesses into court making them available for cross-examination, by preserving testimony made under oath, by allowing the judge and jury to personally observe demeanor of witnesses and by providing more accurate testimony.

Mechanic’s state of mind
Out of court statements of opinion are inadmissible when used to establish the truth of their contents. Nonetheless, such statements may be used to show the state of mind of the declarant. Helper’s testimony of Mechanic’s statement could be used to show that
Mechanic was simply providing an opinion that Dave needed to get his brakes fixed. As a result, the court should admit Helper’s testimony into evidence.

2. Introduction of work order
Mechanic instructed Helper to write on the work order: “inspected brakes-repair,” which
Helper then wrote on the work order. The problem here is that Helper at the time of trial, does not recall what words he wrote on the work order. In order to introduce the actual work order into evidence, a number of issues must be addressed.
Hearsay

As discussed, hearsay is a statement other than one made while testifying at a trial or hearing and offered in evidence to prove the truth of the matter asserted. Hearsay statements are generally deemed inadmissible unless a recognized exception applies. A double hearsay problem is apparent here. The work order itself constitutes one level of hearsay, and the contents of the work order constitute yet another level. Unless each level of hearsay is satisfied by a recognized exception, the entire work order will be excluded.

Business records exception
Business records is an exception from the hearsay rule provided they meet certain requirements. First, the record must involve some sort of writing. Here this is obvious because we have a written work order. Second, it must be Mechanic’s regular course of business to keep such records, and the records must have been made in the regular course of business. In addition, it must have been routine to make such records either at the time of the event or while the recorder’s memory was still fresh. Finally, the recorder must either have personal knowledge of the subject matter of the records or have the responsibility of recording such entries on the basis of reports by others with both personal knowledge and the duty to report that knowledge to the recorder.
An assumption can be made here that work orders are kept in the regular course of
Mechanic’s business and that Helper had personal knowledge of Mechanic’s instructions.
Although the work order may qualify under the Business Records exception, the statement contained in the work order would still be considered hearsay.
Past recollection recorded
Past Recollection Recorded is excepted from the hearsay rule. For this exception to apply, the person who made the out of court statement must take the witness stand and must once have had personal knowledge of the contents of the memorandum. In addition, the witness must be unable, even after reviewing the memorandum, to testify fully and accurately about its contents. Whether Helper wrote the memorandum himself or adopted it after Mechanic composed it, it must have been made or adopted when
Helper’s memory was fresh and it must reflect his memory accurately. If two or more persons collaborated in composing the memorandum, each would have to testify as to his part in its preparation.
Assuming Helper is called to the stand as a witness, the contents of the work order may only be read into evidence and to the jury. While there is a substantial overlap between the Past Recollection Recorded exception and the Business Records exception, the main difference is that with past recollection recorded there is no requirement of a regularly conducted business activity. Conversely, the business records exception requires neither the presence of the witness nor exhaustion of memory about the matter involved. In either case, these two exceptions to the hearsay rule may ultimately allow the introduction of the work order into evidence.
Best Evidence Rule
To prove the content of a writing, the original must be produced. The introduction of the actual work order will satisfy best evidence.

3. “I think your brakes are bad.”
Relevancy
The introduction of this statement is relevant to prove that Dave was on notice regarding his faulty brakes.

Hearsay
Helper’s testimony regarding Mechanic’s statement to Dave would be deemed hearsay because it is refers to a statement other than one made while testifying at trial. As discussed, hearsay statements are excluded unless a recognized exception applies.
Statement against Interest
Statements against interest are admissible as an exception to hearsay if at the time of its making, the statement is so far contrary to the declarant’s pecuniary, proprietary or penal interest, or so far tended to subject him to civil or criminal liability, that a reasonable man in his position would not have made the statement unless he believed it to be true.
By telling Dave, “I think your brakes are bad. You better get them fixed,” Mechanic is effectively absolving himself from potential liability if in fact the brakes are bad.
Although Dave brought the car into the service station for a simple oil change, a prudent mechanic would conduct a brief inspection that would reveal any mechanical defects.
His statements to Dave therefore should qualify under this exception. However, the one limitation of the rule is that the declarant must be unavailable. Although Mechanic was not yet called to testify, there is nothing to indicate that he was unavailable at the time of trial. The statement will therefore be inadmissible.

4. “I am not surprised….
Hearsay
Dave’s response, “I am not surprised,” is again an out of court statement and thus deemed inadmissible under the FRE. Again, hearsay statements are excluded from evidence unless a recognizable exception applies.

Admissions of a Party –Opponent
Statements or conduct by a party that constitute an admission are admissible. At common law, admissions were considered exceptions to hearsay while modernly they are deemed non-hearsay. Dave’s response, “I am not surprised. They’ve felt a little funny lately,” qualifies as an admission of guilt or at least knowledge of his malfunctioning breaks. The court will undoubtedly admit his statement into evidence.

5. “The sports car ran a red light…..”
Lay Opinions
All witnesses are lay witnesses (unless qualified as experts) and are required to testify on the basis of first hand knowledge. However, if a witness’s opinions are based on personal perception and are either helpful to explain the testimony or to determine a fact in issue, such opinion testimony will be admitted. Laypersons may testify to the color of a traffic light and to the apparent speed of a moving vehicle. Here, Helper will testify to what he heard a bystander say, and although the statement may be qualified as a lay opinion, some hearsay considerations must be carefully considered,
Hearsay
Helper will testify that he heard the sound of a collision followed by a bystander shouting, “The sports car ran the red light and ran into the truck.” Again, the bystander statement is made out of court and will be deemed hearsay absent a recognized exception.
Present Sense Impression
An expression of present sense impression is one describing or explaining an event either during or shortly following the event or observation of the condition. It need not be based on an exciting event and some time lapse between the event and the statement is permitted. It must merely be made early enough to be reliable. Helper heard a collision and then heard the bystander shouting. It appears that the collision and the statement were made in close proximity and hence the court should admit the statement.
Excited Utterance
The court is more likely to apply what is known as the Excited Utterance exception. It is assumed that under the tension of an exciting event, a person will have had neither the time nor the inclination to make a false statement. For the exception to apply, three requirements must be met:

1. The statement must have been made while the declarant personally perceived the event or condition. Although the collision occurred behind
Helper, the bystander’s statement came right after and, as such, it is apparent that she perceived the event presently.
2. The statement must have been made while the declarant was under the stress of the exciting event. Helper heard bystander shouting right after the collision indicating that she was under the stress of the collision.
3. The statement must have been made so close in time to the event that there was no opportunity for deliberation or fabrication. Again, Helper heard bystander shout immediately after he heard the collision.
The court will admit the evidence based on the aforementioned.

If this answer is completely accurate, I’m praying that the bar graders gave me a break when they graded my answer (given the fact that this is the first time California Evidence was supposed to be included) . . . I realize that the bar instructions indicate that unless the question “expressly” asks you to apply California law, then you should only apply legal theories of general application. But why is it that when we answer Professional Responsibilities essays that do not expressly ask us to distinguish between the ABA and CA Rules, BarBri instructs its students to still distinguish them (some of the CA Bar model answers distinguish the rules too) without the call of the question asking for the distinctions?

From what I remember, there was not much to discuss on the California Rules of Evidence, but I did briefly touch on some California counterparts . . . I guess I’m just hoping that the bar graders are looking for answers similar to the Professional Responsibility answers that don’t expressly ask for California law . . . thoughts anyone?