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27. Is the witness's testimony admissible?
In a suit based on a will, the distribution of $1 million depends upon whether the wife survived her husband when both died in the crash of a small airplane. An applicable statute provides that, for purposes of distributing an estate after a common disaster, there is a rebuttable presumption that neither spouse survived the other. A witness has been called to testify that as she approached the plane she heard what she thought was a woman's voice saying, «I'm dying,» although by the time the husband and wife were removed from the wreckage they were both dead.
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Hearsay is 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). When the statement is being offered for any purpose other than to prove the truth of its contents, there is no need to cross-examine the declarant, and so the statement is not considered hearsay.
FRE 601 establishes that for a witness to be competent in federal court, he must have personal knowledge of the matter he is to testify about (i.e., must have observed the matter and must have a present recollection of his observation). This requirement is met if there is evidence «sufficient to support a finding» that the witness is speaking on the basis of personal knowledge. Proof of personal knowledge may consist of a witness's own testimony. Fed. R. Evid. 602.
Regarding opinion testimony by non-experts (lay witnesses), FRE 701 states that «[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Under FRE 301, a presumption is a rule that requires a particular inference to be drawn from an ascertained set of facts. It is a form of substitute proof or evidentiary shortcut where proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption. A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact. In other words, the presumption is of no force or effect when sufficient contrary evidence is admitted.
The «bursting bubble» view, followed by the majority of civil courts, is that once the party opposing a presumption comes up with some evidence showing the non-existence of the presumed fact, the opponent has discharged his burden of production, the presumption disappears from the case, and the jury will decide the issue as if the presumption had never existed.
D is correct. The witness's testimony about hearing what she thought was a woman's voice saying, «I'm dying» is admissible because it is relevant to whether the wife survived the husband and no other rule prohibits it. First, it is relevant under FRE 401 because it has a tendency to make the fact that the wife survived the husband more probable than it would be without such evidence, and this is a fact of consequence in the action. Second, the testimony is not being offered for the truth of the matter asserted (that the woman was, in fact, dying), but rather, that her ability to speak indicated she was still alive. Finally, the witness is competent because her testimony is based on her personal knowledge from hearing the statement first-hand.
A is incorrect. The presumption that neither spouse survived the other can be rebutted under the «bursting bubble» view followed by a majority of courts, which extinguishes the presumption if there is some evidence showing the non-existence of the presumed fact. Here, the testimony of the witness, although not conclusive, is sufficient to rebut the presumption that neither spouse survived the other and supports a jury finding that the wife outlived the husband. Therefore, the presumption is no longer controlling, and the witness's testimony is admissible.
B is incorrect. The witness's testimony, even if speculative, would not be excluded on that basis because a witness is not required to be absolutely certain of matters about which she testifies. Here, the testimony is based on the perception and memory of the witness and thus satisfies the requirements of FRE 701.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the witness's testimony is admissible, it is not because the hearsay rule does not apply. It is admissible because, in addition to its relevance, the testimony is not considered hearsay because it is not being offered for the truth of its contents. As explained above, it is being offered to support a finding that the wife was alive when she spoke, which is relevant to the issue of whether she survived the husband, not that she was literally dying.