Two-Minute MBE Question: Evidence (nonhearsay)

(B) is the correct answer. A statement is not hearsay if it is an opposing party’s statement. Because this statement was made by the opposing party, it is not precluded from being admitted into evidence based on hearsay grounds.

Bar Exam Tip: Students tend to make the “opposing party’s statement” hearsay exclusion much harder than it is. The general rule is: If a party says it, it can be admitted against that party! It is actually considered “nonhearsay” or an “exclusion from hearsay” rather than a hearsay exception. (Note: It does not matter if the party whom the statement is being used against denies making it or says he was joking or that the other party took it out of context because he is a party to the case—so, he can simply deny or explain the statement at trial.) If you are getting mixed up with the opposing party’s statement exclusion and the statement against interest exception, remember that to admit a statement as a statement against interest, the declarant has to be unavailable. For an opposing party’s statement, availability does not matter. (Further, for an opposing party’s statement, the statement does not have to be against the party’s interest at the time it was made.) So focus on whether a party says something. If so, and if it is being used against the party, then we know the answer is “an opposing party’s statement.” Don’t make things harder on yourself by looking at hearsay exceptions like statement against interest!

(A) is incorrect because in order for one to have a statement against interest admitted, the witness needs to be unavailable. In this case, the defendant is available. (Further, there is no reason to look for a hearsay exception when the statement, which was made by an opposing party, is not even hearsay to begin with.)

(C) is incorrect. The best evidence rule can keep a statement from being admitted at trial if the original of the statement is not being offered and the statement either (i) has legal significance (e.g., is in a will, contract, etc.) or (ii) the witness is testifying to an event she learned of solely from reading a writing or watching a video and has no independent knowledge of that event.

In this case, there is no record of legal significance, so it does not fall into category (i) above. Further, the plaintiff had personal knowledge of the statement, and it is not a legal document. So the Best Evidence Rule will not preclude its admission under category (ii).

(D) is incorrect because the statement is an opposing party’s statement.