42. Is the plaintiff's testimony admissible?

A is correct. What the defendant said to the plaintiff, even in a private conversation, is an admission of a party-opponent and is admissible under Rule 801(d)(2)(A) of the Federal Rules of Evidence (FRE). The plaintiff has personal knowledge of what the defendant said and can testify about it. The fact that the audiotape might be better evidence of what the defendant actually said makes no difference. The best evidence rule applies only when a witness testifies about the content of a writing or recording. Here the plaintiff would not be testifying about the content of the audiotape but rather about what she personally heard.

B is incorrect. The testimony is admissible because the plaintiff will testify about what she heard directly from the defendant, not about what she heard on the audiotape. Therefore, she would not be attempting to prove the content of the audiotape and there would be no violation of the original document rule. The answer is incorrect in stating that the original document rule does not apply to audiotapes. The original document rule, Rule 1002 of the FRE, applies to writings, recordings, and photographs.

C is incorrect. Rule 1002 of the FRE requires a recording to be introduced only when its contents are being proved. Here, the plaintiff is offering to testify about what she heard directly from the defendant, not about what she heard on the audiotape. The fact that an audiotape was contemporaneously made does not mean that the tape has to be produced because the plaintiff has independent knowledge of what the defendant said. If the plaintiff had only learned of the defendant's statements by listening to the audiotape, then the audiotape would have to be produced.

D is incorrect. There is no rule automatically barring evidence obtained by deception. Moreover, the evidence obtained by deception (the secretly recorded audiotape) was not in fact offered. Some state and federal statutes do regulate secret recordings of conversations, and violations of such statutes will sometimes result in the exclusion of recordings so obtained. But the recording was not offered in evidence in this case. Only the statements made by the defendant to the plaintiff have been offered, and they would be admissible whether or not a contemporaneous recording was made.