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61. Is the plaintiff's proposed testimony admissible?
A plaintiff, a management trainee, brought a sex discrimination lawsuit against her employer for wrongful termination of her employment. At trial, the plaintiff is prepared to testify that a janitor at the company told her that he had heard her supervisor say to other male coworkers about her, «Make it hard for her. Maybe she'll go home where she belongs.»
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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 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.
A is correct. When an out-of-court statement offered as evidence contains another out-of-court statement, it is called double or multiple hearsay. Both layers of hearsay must be separately admissible. In this question, for the statement to be admissible, both the supervisor's original statement and the janitor's statement to the plaintiff must each have their own ground for admissibility. Although the supervisor's statement may be admissible to prove the defendant's state of mind or as an opposing party admission, the janitor's statement is purely an out-of-court statement for the truth of the matter asserted and does not meet any hearsay exception. Therefore, the entire statement is inadmissible.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. In this case, there are multiple theories under which the employer's statement could be admissible. However, this is a double hearsay situation, and both statements must meet an exception to be admissible. Because the janitor's statement does not meet a hearsay exception, the evidence is not admissible.
C is incorrect. Although the supervisor's statement may be a statement that shows his then-existing state of mind, the janitor's statement is not a present sense impression. A present sense impression is a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. In this case, the facts do not indicate when the janitor heard the employer's statement or how long after he relayed it to the plaintiff.
D is incorrect. It is true that certain vicarious admissions made by an employee may be admissible if they are made concerning any matter within the scope of the employment. However, the statement by the janitor to the plaintiff is not a vicarious admission because it was not in the scope of the janitor's employment.