1. Which of the items are admissible on the issue of what description the police officer heard?

The Federal Rules of Evidence (FRE) define hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered into evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c). A statement that would otherwise be inadmissible to prove the truth of the matter asserted may nevertheless be admitted to show the statement's effect on the listener, such as to establish knowledge, notice, or motive.

The best evidence rule is more accurately called the «original document rule.» The rule is as follows: In proving the terms of a writing (recording, photograph, or X-ray), where the terms are material, the original writing must be produced. Fed. R. Evid. 1002. The rule only applies when the writing is being offered to prove the terms contained within it.

D is correct. The main determination at trial is what the police officer heard over the police radio, not whether the plaintiff was the actual armed robber. The question specifies this by stating that the police officer's defense was that he reasonably believed the plaintiff was the perpetrator.

Hearsay is defined as an out-of-court statement offered for the truth of the matter asserted. An out-of-court statement is therefore not hearsay and admissible when it is being introduced to show its effect on the listener, not for the truth of its contents. In this case, all three items of evidence (the police officer's testimony, the police dispatcher's testimony, and the note) are relevant and admissible. None of these items are hearsay because they are not being offered for the truth of the matter asserted — what the armed robber actually looked like. Rather, they are being offered to show their effect on the listener — the police officer.

Note that the MBE, in questions that involve statements that are being admitted for the effect they have on their listener instead of the truth of the matter asserted, often specifically states that there is a defense or argument at issue that does not depend upon the statement being admitted for its truth. Here, the question did so by specifying that the police officer's defense was his allegedly reasonable belief.

The best evidence rule requires the production of the original document (if available) when a proponent is seeking to prove the terms of a writing. This rule does not apply the officer's testimony or the dispatcher's testimony because they are not relying on documents, but their own firsthand knowledge. As to the note, although it is a writing, it is not being offered to prove the truth of its terms. It is being offered to establish what the officer heard, regardless of whether the description was accurate. The police officer can testify as to what he believed he heard. The police dispatcher can testify as to what he read over the radio. The note the police dispatcher read from is admissible to show what the police officer heard. Therefore, all three forms of evidence are relevant to aid the fact finder in its determinations, and there are no reasons for their exclusion.

A is incorrect. The police officer's testimony relating to the description that he heard is admissible, but the other two evidence items are admissible as well, for the purpose of showing their effect on the listener. And, as stated above, the best evidence rule does not apply.

B is incorrect. The police officer's testimony regarding the description he heard and the note containing the description are both admissible, but the third piece of evidence, the police dispatcher's testimony, is also admissible to show the effect on the listener.

C is incorrect. As explained above, each of the three items is admissible for the purpose of showing the effect on the listener, and not otherwise excluded as inadmissible hearsay or subject to the best evidence rule.