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The question type came up once in Kaplan Released MBE questions; and I realized I always get this specific type of fact pattern wrong.

Here is an example :

" D is on trial for shooting P's husband. The P offers to testify that the day before her husband was killed, he described her a chance meeting with D on the street in which D said to P's now deceased husband 'I'm going to blow your head off one of these days.'

Is the Plaintiff's testimony concerning her husband's statement admissible?"


Allegedly, the correct answer is "No, because it is hearsay; an out of court statement offered to prove the truth of the matter stated. Further explaining that the testifying witness, Plaintiff, has no personal knowledge so it cannot be authenticated. "

HOWEVER, I would argue that the declarant here, who made the statement "i will blow your head one of these days" is the Defendant, the party opponent in this case, and HE can be crossed, it is HE whose personal knowledge of the statement matters, not the testifying witness'. The personal knowledge required is the personal knowledge of the declarant who made the statement; who is available in court to authenticate/be crossed; and that is exactly WHY the exception "statement of a party opponent" exists!

I would not even go to "personal knowledge of the P" analysis here.

PLEASE explain to me where I am wrong, and why I am wrong.

Or let me know if this question is written whacky. I always, ALWAYS get the wrong answer in questions like this. I will reward the person who can enlighten me with lots of smilies.

espressounius wrote:The question type came up once in Kaplan Released MBE questions; and I realized I always get this specific type of fact pattern wrong.

Here is an example :

" D is on trial for shooting P's husband. The P offers to testify that the day before her husband was killed, he described her a chance meeting with D on the street in which D said to P's now deceased husband 'I'm going to blow your head off one of these days.'

Is the Plaintiff's testimony concerning her husband's statement admissible?"


Allegedly, the correct answer is "No, because it is hearsay; an out of court statement offered to prove the truth of the matter stated. Further explaining that the testifying witness, Plaintiff, has no personal knowledge so it cannot be authenticated. "

HOWEVER, I would argue that the declarant here, who made the statement "i will blow your head one of these days" is the Defendant, the party opponent in this case, and HE can be crossed, it is HE whose personal knowledge of the statement matters, not the testifying witness'. The personal knowledge required is the personal knowledge of the declarant who made the statement; who is available in court to authenticate/be crossed; and that is exactly WHY the exception "statement of a party opponent" exists!

I would not even go to "personal knowledge of the P" analysis here.

PLEASE explain to me where I am wrong, and why I am wrong.

Or let me know if this question is written whacky. I always, ALWAYS get the wrong answer in questions like this. I will reward the person who can enlighten me with lots of smilies.

One problem is the defendant cannot be compelled to take the stand for cross examination, since the defendant has the right against self incrimination. The defendant is not available to be crossed, unless the defendant chooses to testify. Just because a witness intends to testify about what the dead husband told her the defendant said, does not mean the defendant is compelled to testify.

Now, if the witness intends to testify that the defendant told her that statement, it is admissible since the witness would then have direct knowledge of the statement, (and the statement is against penal interest...I think)

FinallyPassedTheBar wrote:

espressounius wrote:The question type came up once in Kaplan Released MBE questions; and I realized I always get this specific type of fact pattern wrong.

Here is an example :

" D is on trial for shooting P's husband. The P offers to testify that the day before her husband was killed, he described her a chance meeting with D on the street in which D said to P's now deceased husband 'I'm going to blow your head off one of these days.'

Is the Plaintiff's testimony concerning her husband's statement admissible?"


Allegedly, the correct answer is "No, because it is hearsay; an out of court statement offered to prove the truth of the matter stated. Further explaining that the testifying witness, Plaintiff, has no personal knowledge so it cannot be authenticated. "

HOWEVER, I would argue that the declarant here, who made the statement "i will blow your head one of these days" is the Defendant, the party opponent in this case, and HE can be crossed, it is HE whose personal knowledge of the statement matters, not the testifying witness'. The personal knowledge required is the personal knowledge of the declarant who made the statement; who is available in court to authenticate/be crossed; and that is exactly WHY the exception "statement of a party opponent" exists!

I would not even go to "personal knowledge of the P" analysis here.

PLEASE explain to me where I am wrong, and why I am wrong.

Or let me know if this question is written whacky. I always, ALWAYS get the wrong answer in questions like this. I will reward the person who can enlighten me with lots of smilies.

One problem is the defendant cannot be compelled to take the stand for cross examination, since the defendant has the right against self incrimination. The defendant is not available to be crossed, unless the defendant chooses to testify. Just because a witness intends to testify about what the dead husband told her the defendant said, does not mean the defendant is compelled to testify.

Now, if the witness intends to testify that the defendant told her that statement, then it is not hearsay and is admissible since the witness would then have direct knowledge of the statement.

Thank you very much. That is helpful. I was operating under the assumption that the D has taken the stand.

espressounius wrote:

FinallyPassedTheBar wrote:

espressounius wrote:The question type came up once in Kaplan Released MBE questions; and I realized I always get this specific type of fact pattern wrong.

Here is an example :

" D is on trial for shooting P's husband. The P offers to testify that the day before her husband was killed, he described her a chance meeting with D on the street in which D said to P's now deceased husband 'I'm going to blow your head off one of these days.'

Is the Plaintiff's testimony concerning her husband's statement admissible?"


Allegedly, the correct answer is "No, because it is hearsay; an out of court statement offered to prove the truth of the matter stated. Further explaining that the testifying witness, Plaintiff, has no personal knowledge so it cannot be authenticated. "

HOWEVER, I would argue that the declarant here, who made the statement "i will blow your head one of these days" is the Defendant, the party opponent in this case, and HE can be crossed, it is HE whose personal knowledge of the statement matters, not the testifying witness'. The personal knowledge required is the personal knowledge of the declarant who made the statement; who is available in court to authenticate/be crossed; and that is exactly WHY the exception "statement of a party opponent" exists!

I would not even go to "personal knowledge of the P" analysis here.

PLEASE explain to me where I am wrong, and why I am wrong.

Or let me know if this question is written whacky. I always, ALWAYS get the wrong answer in questions like this. I will reward the person who can enlighten me with lots of smilies.

One problem is the defendant cannot be compelled to take the stand for cross examination, since the defendant has the right against self incrimination. The defendant is not available to be crossed, unless the defendant chooses to testify. Just because a witness intends to testify about what the dead husband told her the defendant said, does not mean the defendant is compelled to testify.

Now, if the witness intends to testify that the defendant told her that statement, then it is not hearsay and is admissible since the witness would then have direct knowledge of the statement.

Thank you very much. That is helpful. I was operating under the assumption that the D has taken the stand.

Ok cool. Just ignore the second paragraph of my answer though. I think it is wrong analysis in a criminal case.

Now that I re-read the question, there are no facts that indicate this is a criminal trial. It does not say the defendant is being prosecuted, and it labels the other party as "Plaintiff" which suggest it is a civil trial (Wrongful death). In that case, the defendant is available to testify!

So now I think your "statement of party opponent" analysis has more weight!

FinallyPassedTheBar wrote:

espressounius wrote:

FinallyPassedTheBar wrote:

espressounius wrote:The question type came up once in Kaplan Released MBE questions; and I realized I always get this specific type of fact pattern wrong.

Here is an example :

" D is on trial for shooting P's husband. The P offers to testify that the day before her husband was killed, he described her a chance meeting with D on the street in which D said to P's now deceased husband 'I'm going to blow your head off one of these days.'

Is the Plaintiff's testimony concerning her husband's statement admissible?"


Allegedly, the correct answer is "No, because it is hearsay; an out of court statement offered to prove the truth of the matter stated. Further explaining that the testifying witness, Plaintiff, has no personal knowledge so it cannot be authenticated. "

HOWEVER, I would argue that the declarant here, who made the statement "i will blow your head one of these days" is the Defendant, the party opponent in this case, and HE can be crossed, it is HE whose personal knowledge of the statement matters, not the testifying witness'. The personal knowledge required is the personal knowledge of the declarant who made the statement; who is available in court to authenticate/be crossed; and that is exactly WHY the exception "statement of a party opponent" exists!

I would not even go to "personal knowledge of the P" analysis here.

PLEASE explain to me where I am wrong, and why I am wrong.

Or let me know if this question is written whacky. I always, ALWAYS get the wrong answer in questions like this. I will reward the person who can enlighten me with lots of smilies.

One problem is the defendant cannot be compelled to take the stand for cross examination, since the defendant has the right against self incrimination. The defendant is not available to be crossed, unless the defendant chooses to testify. Just because a witness intends to testify about what the dead husband told her the defendant said, does not mean the defendant is compelled to testify.

Now, if the witness intends to testify that the defendant told her that statement, then it is not hearsay and is admissible since the witness would then have direct knowledge of the statement.

Thank you very much. That is helpful. I was operating under the assumption that the D has taken the stand.

Ok cool. Just ignore the second paragraph of my answer though. I think it is wrong analysis in a criminal case.

After second-thoughts, I believe I am still confused because then would the same reasoning apply in a civil case where the defendant has pleaded the 5th?

By this logic, any time a def pleads the 5th; anything a Witness testifies along the lines of "Defendant said blablabla to out of court person who told me what Def said" would be HEARSAY.

Then what is the point of 801(d)(2) - statement by part opponent?

I'm thoroughly confused now. Probably be up all night thinking about this.

FinallyPassedTheBar wrote:I'm thoroughly confused now. Probably be up all night thinking about this.

I apologize sincerely for having caused that.

My personal confusion actually boils down to one issue :

Whether unavailability of a witness by having pleaded a privilege such as the 5th, limits the applicability of 801(d)(2) - statements by party opponent?

espressounius wrote:

FinallyPassedTheBar wrote:I'm thoroughly confused now. Probably be up all night thinking about this.

I apologize sincerely for having caused that.

My personal confusion actually boils down to one issue :

Whether unavailability of a witness by having pleaded a privilege such as the 5th, limits the applicability of 801(d)(2) - statements by party opponent?

As a prosecutor, I can tell you it does not. Deft always has right not to testify and, with a couple rare exceptions, his statements are always admissible.

Isn’t the problem that the witness isn’t repeating what the D told her but what her husband said the D told him? Normally people who testify to party-opponent statements are the people to whom the party-opponent made the statement.

espressounius wrote:The question type came up once in Kaplan Released MBE questions; and I realized I always get this specific type of fact pattern wrong.

Here is an example :

" D is on trial for shooting P's husband. The P offers to testify that the day before her husband was killed, he described her a chance meeting with D on the street in which D said to P's now deceased husband 'I'm going to blow your head off one of these days.'

This statement is hearsay within hearsay. These statements are double hearsay. Meaning that the original statement from D to husband is hearsay and from husband to P is hearsay. Both statements have to be admissible in court or be an exception to hearsay. While one can argue that the statement from D to husband is a party admission, the statement from husband to P cannot be argued as a party admission. Without more facts the statements are inadmissible.

megamega88 wrote:

espressounius wrote:The question type came up once in Kaplan Released MBE questions; and I realized I always get this specific type of fact pattern wrong.

Here is an example :

" D is on trial for shooting P's husband. The P offers to testify that the day before her husband was killed, he described her a chance meeting with D on the street in which D said to P's now deceased husband 'I'm going to blow your head off one of these days.'

This statement is hearsay within hearsay. These statements are double hearsay. Meaning that the original statement from D to husband is hearsay and from husband to P is hearsay. Both statements have to be admissible in court or be an exception to hearsay. While one can argue that the statement from D to husband is a party admission, the statement from husband to P cannot be argued as a party admission. Without more facts the statements are inadmissible.

Agreed.