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Sample Question 1
Sample Question 2
Sample Question 3
Sample Question 4
Sample Question 5

Question 3

Police, acting on a tip from a reliable informant, obtain a search warrant and proceed to Doug's house seeking to find illegal drugs. Pursuant to the search warrant the police enter his house and find marijuana. At this point, Doug appears and states to the officers, " I was unaware there were drugs in my house." He is arrested and the offices search his person. In his pocket they find a sealed, addressed letter to a third party, but not stamped. The police open the letter which says in part, "We sure have been getting high a lot on this new stuff Doug brought home." The letter is signed by Doug's wife. At Doug's trial the prosecution offers in evidence the statement in the letter. Upon objection, the letter should be ruled

A) Admissible, as an adoptive admission.
B) Admissible, as a statement against interest.
C) Inadmissible, as a privileged communication.
D) Inadmissible, hearsay not within an exception.

 

(answer below)

Answer

(A) is the best answer

because it is the best one available in this array of selections. Ostensibly a criminal procedure question, the issue becomes one of evidence when the selections are presented. Note that the discovery of the letter itself is the result of an apparently valid search warrant. Note further, Doug's sudden appearance on the scene and that he makes a "spontaneous utterance" outside any custodial interrogation and therefore no Miranda requirement or violation resulted. It is a given, therefore, that the police had grounds for arrest (and even if they didn't, that fit doesn't factor into any of the proposed answers). After a "custodial search " the police find the letter on Doug's person. Note with particularly that the letter, while from Doug's wife is (a) to another person and (b) signed and sealed, but not stamped. The inference, therefore, is that Doug's wife handed him the letter for him to mail. He has "custody " of it on his person at the time of his arrest and the strong inference is that he has no objection to its contents since he was about to disseminate information which would incriminate him in a crime. While a strong argument could be made for excluding the letter in real life, the selections here do not allow of any such arguments. As a result, Doug appears to have adopted his wife's statement that he has been supplying at least her with controlled substances. When the prosecutor wants to put his statement into evidence against Doug at his trial, the statement in the letter therefore becomes an "adoptive admission " of a party opponent under Rule 801(d)(1)(2). Although not one of the proposed answers, note that the statement might have come in under the same theory coupled with the " prior inconsistent statement " exception to the hearsay Rule 801(d)(1)(A). If there is a ruling that Doug has adapted his wife's previous statement in the letter as an admission that he knew about and supplied illegal drugs, then his subsequent statement to the police just prior to his arrest that "I was unaware there were any drugs in my house" is inconsistent with his prior admission to same. While neither they be admitted for the truth, both may be admitted so as to assist the jury in gauging Doug's credibility if he testifies. As it is, however, the prosecutor will prefer to get the statement in as an adoptive admission since that statement will come before the jury as "real evidence" for its truth whether Doug testifies at trial or not, rather than mere "impeachment evidence, " which does not come in for the truth of its contents, in the event that Doug does testify.

(B) is not the best response here for the reasons set forth in (A) above. The prosecutor will not want to "jump through the procedural" hoop embodied in the "statement against penal interest" exception of 804(b)(3) by proving that Doug is "unavailable" as defined by Rule 804(a) if he takes refuge in his Fifth Amendment right not to testify and thus not to incriminate himself. Of course since this is his own criminal trial, it would not be going on at all if he were physically unavailable from the outset (although it might if he "absconded" during the trial itself). This in unnecessarily stretching the point, however, since the "admission" principle of Rule 801(d)(2)(A) is more appropriately operative here.

(C) is incorrect because of its superficial and incomplete interpretation of the "marital privilege." Note that the letter from Doug's wife which he was carrying was not from her to him; it was to someone else. Thus it is not a privileged interspousal communication. (C) is therefore wrong.

(D) is incorrect because there are in fact hearsay exceptions applicable here, as discussed in (A) and (B) above. TEST TIP: You may want to remember the mnemonic CAPPP for out-of-court statements that come in as substantive evidence and are not considered hearsay under FRE 801:

Co-conspirators' statements
Admission by a party opponent
Prior inconsistent statements under oath
Prior consistent statements of a witness offered to refute a charge of recent fabrication
Prior identification of a person