Full access allows:
- Solve all tests online without limits;
- Remove all advertisements on website;
- Adding questions to favorite list;
- Save learning progress;
- Save results of practice exams;
- Watching all wrong answered questions.
23. The tape recording is
A plaintiff sued a defendant for illegal discrimination, claiming that the defendant fired him because of his race. At trial, the plaintiff called a witness, expecting him to testify that the defendant had admitted the racial motivation. Instead, the witness testified that the defendant said that he had fired the plaintiff because of his frequent absenteeism. While the witness is still on the stand, the plaintiff offers a properly authenticated secret tape recording he had made at a meeting with the witness in which the witness related the defendant's admissions of racial motivation.
Comments (0)
There are no comments at the moment. If you found an error or think question is incorrect, tell everyone about it
Only signed in users can write comments
Signin
If a witness makes a statement at trial, use of a prior inconsistent statement made out of court by that witness will not be hearsay when used to impeach the witness's present testimony. What is being shown is not that the prior out-of-court statement was truthful, but that the conflict between the two statements raises questions about the witness's credibility. Prior inconsistent statements are only admissible as substantive evidence if the witness made them under the penalty of perjury, at a prior trial, proceeding, or deposition. Fed. R. Evid. 801(d)(1)(A).
B is correct. This is the best answer because the recording contains statements that were made out-of-court, and if only offered to impeach the witness's testimony, it is not for the truth of the matter asserted. The recording may only be offered for purposes of impeachment, however, because if offered as substantive evidence to establish racial motivation, it would be for the truth of the matter asserted. The only way the recording will be admissible is for purposes of impeachment.
A is incorrect. This answer is only partially correct. The recording is admissible as impeachment evidence, but not as substantive evidence to establish racial motivation. The exception of using prior inconsistent statements as substantive evidence does not apply here because the prior statements were not made under penalty of perjury at a prior trial or proceeding or in a deposition.
C is incorrect. As explained above, the statements on the tape recording, if offered as substantive evidence for the truth of the matter asserted, would be inadmissible hearsay. However, if offered only for the limited purpose of impeaching the witness, they are admissible.
D is incorrect. There are no facts offered indicating that the tape recording contained privileged communications. Further, the recording was done by a private citizen, not the government, and as such, there is no privacy violation under the U.S. Constitution.