MBE Tip of the Day: Evidence

Answer to the Evidence MBE Question

Subject: Evidence

Legal Issue: Hearsay and the Confrontation Clause

Legal Rule and Analysis: Hearsay is an out of court statement offered to prove the truth of the matter asserted.  Hearsay is inadmissible unless it falls under an exception or is otherwise excluded from the definition.  One exception to the hearsay requirement is a statement against interest.  For this exception to apply, the declarant must be unavailable; the statement must be against the declarant’s pecuniary, proprietary, or penal interest; the statement was against the declarant’s interest when made; and the declarant knew it was against his interest when the statement was made.  A declarant will be considered unavailable if they refuse to testify.  Even if a statement meets the requirements of a hearsay exception, its admission must still be constitutional.

The 6^th Amendment guarantees all criminal defendants the right to confront witnesses who testify against them.  The confrontation clause applies when the statement is testimonial (the primary purpose of the questioning is to establish or prove past events potentially relevant to criminal prosecution), the declarant is unavailable, and the defendant had no opportunity for cross-examination.  So, if these requirements are met, the statement will be inadmissible.

In this case, the statement meets the requirements of being a statement against the co-conspirator’s interest.  The co-conspirator is unavailable, the statement was against the co-conspirator’s penal interest when made, and the co-conspirator certainly knew this when he confessed.  However, the confrontation clause would apply and bar this statement.  This statement is testimonial because the primary purpose is to establish or prove events relevant to criminal prosecution.  A reasonable person in the co-conspirator’s position would anticipate his statement being used against the defendant in investigating and prosecuting the crime.  The co-conspirator was unavailable since he refused to testify.  Finally, the defendant had no opportunity for cross-examination.

Conclusion: The statement should not be admitted because it would violate the defendant’s constitutional rights.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. 

The answer choice (C) is therefore correct. (A) is incorrect because a statement by a co-conspirator is only admissible against the other conspirator if made by one party during the course of the conspiracy. Here, the conspiracy had already been completed.  (B) is incorrect because while this statement does meet the requirements for the statement against interest hearsay exception, admitting the statement would violate the defendant’s constitutional rights.  (D) is incorrect because the statement does fall under a hearsay exception.  Further, this is not why the statement would be inadmissible.

MBE Tip: Do not ignore constitutional principles, even in evidence questions!  While the admissibility of a piece of evidence might satisfy the Federal Rules of Evidence, the Constitution will still have the final say of whether something is admissible.  Thus, while learning the federal rules is critical, make sure you understand how constitutional principles are interwoven with the rules and when applying the rules alone is not sufficient.