25. This evidence is

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). However, FRE 801(d) removes certain statements that would be hearsay under the common law definition. Those statements are admissible as substantive evidence if the statements are relevant.

Under the FRE 801(d)(2), a statement by an opposing party (traditionally known as an «admission by a party-opponent») is not hearsay when offered against that same opposing party. Statements by an agent or employee concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal.

The testimony of a now-unavailable witness given at a trial, hearing, or in a deposition taken in accordance with law is admissible in a subsequent trial as long as there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was meaningful. Fed. R. Evid. 804(b)(1).

A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception. Fed. R. Evid. 805.

D is correct. The facts state that the security guard testified during his criminal trial. Then, after the criminal trial, at a second trial, the plaintiff's estate is trying to admit the guard's prior testimony against the defendant-store where the security guard used to work. The transcript was made outside of the current trial, and is being offered for the truth of the matter asserted: that the defendant's security director had instructed the guard to stop shoplifters «at all costs.» This renders the transcript hearsay. It does not qualify as an admission by a party-opponent because the defendant was not employed by the store when he made the statement, which means it was not made during the existence of the agency or employment relationship. The transcript also does not qualify as former testimony because it is being offered against the store, who was not an original party to the prior proceeding and did not have a chance to develop the testimony. Because the testimony does not meet any exception or exemption to the hearsay rule, it is inadmissible.

A is incorrect. Although admissions that can be attributed to the opposing party may be admissible, including statements by an agent or employee about a matter within the scope of employment during the employment, the defendant's testimony occurred after the defendant no longer worked for the store.

B is incorrect. There are two hearsay statements at issue: (i) the statement made to the security guard by the security director; and (ii) the testimony made by the guard at the prior criminal trial. The security director's statement is included in the guard's prior testimony. For double hearsay to be admitted, both statements must meet a hearsay exception or exemption. Although the director's statement may be admissible on its own, the guard's testimony does not meet a hearsay exception and therefore is inadmissible.

C is incorrect. As explained above, former testimony is only admissible when the party against whom the testimony is offered had the opportunity to develop the testimony by direct or cross-examination. In this case, the testimony was originally given by the guard, but the plaintiff's estate is attempting to use the testimony against the store. The store was not a party to the first action and did not have an opportunity to develop the testimony. Therefore, the authenticated transcript is not admissible as former testimony.