26. The plaintiff's testimony concerning her husband's statement 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).

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.

Under the FRE 801(d)(2), a statement by an opposing party (traditionally known as an «admission by a party-opponent») is not hearsay. Under this Rule, when the opposing party's statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible.

Statements by a declarant that serve as circumstantial evidence of the declarant's state of mind are not hearsay. Such statements are not offered to prove the truth of the matters asserted but only that the declarant believed them to be true.

Regarding «prior bad acts,» the majority view is that, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to any immoral vicious, or criminal act of his life that may affect his character and show him to be unworthy of belief. Inquiry into «bad acts» is permitted even though the witness was never convicted. FRE 608 permits such inquiry, at the discretion of the court, only if the act of misconduct is probative of truthfulness (i.e., an act of deceit or lying).

D is correct. The plaintiff's proffered testimony contains multiple out-of-court statements: (i) the deceased's statement that he had a chance meeting with the defendant on the street in which the defendant threatened him; and (ii) the statement by the defendant to the deceased: «I'm going to blow your head off one of these days.» Multiple hearsay requires that each statement meet its own exception to the rule. Here, it is true that the defendant's statement to the deceased may be admissible to establish the defendant's state of mind. However, the deceased's statement to the plaintiff that the defendant told him that the defendant was going to blow the deceased's head off one of these days is an out-of-court statement that is being offered for the truth of the matter asserted — that the defendant threatened the deceased. This statement is thus hearsay and is inadmissible because it does not meet the requirements for any exceptions to the hearsay rule.

A is incorrect. The defendant's statement to the deceased may be admissible to show the defendant's state of mind, but the deceased relaying that statement to the plaintiff is another level of hearsay that has no applicable exception and is thus inadmissible.

B is incorrect. As explained above, each statement must have its own basis for admissibility. Even though the statement made by the defendant to the husband may be an admission by a party-opponent, the statement made from the husband to the plaintiff does not meet any exception and is therefore inadmissible.

C is incorrect. This answer reaches the correct answer with the wrong reasoning. The plaintiff's testimony is inadmissible because it is hearsay, not because it is improper evidence of a prior bad act. Prior bad acts are used to impeach testifying witnesses by confronting them with their own bad conduct, to attack their character for truthfulness. There are no facts indicating that the defendant has or will testify. Rather, the proffered testimony is being offered for the truth of the matter asserted and is thus inadmissible hearsay.