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 Admissibility of Wayne’s Testimony About Mac’s Question to Sal


Logical Relevance

Although Wayne’s testimony regarding Mac’s question as a mechanic at ABC Airlines (ABC) to his supervisor Sal is logically relevant to prove the disputed issue of negligence, it may also be prejudicial in outweighing its value as probative evidence that a fuel line blockage caused the airplane to crash.


Legal Relevance

Mac’s question — connecting the “low fuel feed” level to “gunk in the fuel line” — may be inadmissible hearsay, and as a result untrustworthy and inadmissible despite its otherwise logical relevance given ABC’s inability to cross-examine Mac about his out-of-court statement.


Non-Hearsay Admission

An admission is a statement or a prior acknowledgment by one of the parties of one of the relevant facts. Further, statements by an agent concerning any matter within the scope of his agency, during the employment relationship, is not hearsay and is admissible against the principal.

As an ABC agent, Mac’s question or statement regarding the condition of the fuel line — combined with his request to his ABC supervisor Sal to do a “complete systems check of the fuel line and fuel valves” — qualifies as an admission because it is a prior acknowledgment of one of the logically and legally relevant facts in the negligence lawsuit. Therefore, it is not hearsay.


Not Privileged

Although Wayne may be considered an eavesdropper in testifying about Mac’s question to Sal, there appears to be no specific federal or common law privilege that ABC could assert to preclude Wayne’s testimony.


Admissibility of Wayne’s Testimony About Sal’s Answer


Logical Relevance

Sal’s reply to Mac’s question that “a little stuff is normal for this fuel and doesn’t cause any problems” is logically relevant given its probative value regarding both the actual and proximate cause of the crash in a negligence action.


Legal Relevance

As discussed above, it is also legally relevant in view of it qualifying as a non-hearsay admission and because it is not privileged.

Sal’s statement would be prejudicial and inadmissible, however, if Mac’s question to him through Wayne’s testimony is not permitted. By itself, the statement is ambiguous and only has relevance within the context of Mac’s question.


Non-Hearsay Admission

As discussed above, Wayne’s testimony about Sal’s statement is admissible as a non-hearsay admission given its prior acknowledgment of a relevant fact concerning ABC’s negligence.


Not Privileged

Again, Wayne’s testimony as an eavesdropper about Sal’s answer is not inadmissible given the absence of any specific federal or common law privilege.


Permitting ABC to Ask Wayne About College


Logical Relevance

Although ABC’s question to Wayne on cross-examination that he lied on a job application regarding his college attendance may be logically relevant for impeachment purposes, there are also factors that may make the question too prejudicial.


Legal Relevance

Pete’s counsel should object that ABC’s question is collateral to the issue of Wayne’s credibility. Further, without a foundation laid as to if or when Wayne even applied for a job, it may also be too remote from the question of whether Wayne’s testimony is believable.



Pete’s counsel would not prevail, however, in asserting that the ABC question is leading the witness given the fact it is asked on cross-examination and that Wayne is a hostile witness.


Assumes Facts

ABC’s questions assumes facts not in evidence because no foundation has been properly laid to prove that Wayne even applied for a job. ABC’s counsel should preliminarily make an offer of proof through admissible documentary or other evidence that Wayne applied for a job.



Pete’s counsel should also object that ABC’s question is based on inadmissible hearsay in view of the fact that Wayne’s “application for a job” is an out-of-court statement offered for the truth that Wayne applied for a job.


Prior Inconsistent Statement (PIS)

ABC would counter that Wayne’s lie about whether he graduated from college is evidence of a PIS and so is admissible as non-hearsay for impeaching Wayne’s testimony in this matter.

Pete’s counsel would overcome ABC’s contention, however, by establishing that ABC failed to prove that the presumed job application was a PIS because ABC did not show it was given under oath. As such, it would be hearsay and — without a viable exception — inadmissible.


Motion to Strike

Wayne’s “Yes” answer should be stricken if ABC’s question is found to be inadmissible on any of the above-mentioned grounds.


Admissibility of the Excerpt From the Maintenance Record


Logical Relevance

The maintenance record excerpt of the preflight check of the fuel line and valves may be logically relevant to prove that ABC acted with due care and was not negligent in the operation of its airline. ABC would also contend that the excerpt logically rebuts the statements attributed to its employees Mac and Sal through Wayne’s testimony.


Legal Relevance

Pete’s counsel would contend that all of the maintenance records — not just an excerpt — are necessary to enable the court to weigh the probative versus prejudicial nature of this evidence. ABC might argue that such evidence is unnecessary because it would be cumulative, collateral, and consume too much time. Pete’s counsel would counter that the excerpt evidence is inadmissible hearsay and would additionally be prejudicial because Sal as the declarant could not be cross-examined.



As noted, Pete’s counsel would argue that the maintenance record excerpt, as an out-of-court statement, is hearsay because it is offered to prove the truth that ABC was properly exercising due care in operating its airline.

ABC would contend, however, that the excerpt is not hearsay because it is not being offered for its truth but as circumstantial evidence of both Mac’s and Sal’s state of mind that there was no fuel line problem as suggested by Wayne’s testimony.


Business Record

ABC could also contend that if the excerpt is considered hearsay that it be admissible under the business-record exception. Here, although the excerpt was evidently made in the regular course of business, Pete’s counsel could argue that its content regarding the safety of the fuel line and valves was within the personal knowledge of Mac — not Sal — and so should not qualify as for the business-record exception.


Multiple Hearsay

Pete’s counsel’s could also contend that the excerpt contains multiple levels of hearsay: First, the excerpt itself. Second, the statement within the excerpt/record attributed to Mac regarding the safe condition of the fuel lines and valves but made by Sal.

As such, exceptions to each level of hearsay would have to be available to admit the whole excerpt. Assuming ABC could prevail on the business-record exception regarding the first level of hearsay, their best argument for the admissibility of that part of the excerpt attributed to Mac would probably be that it falls under the present-sense impression exception to the hearsay rule — assuming Mac made his assessment of the fuel lines and valves concurrent with his inspection of them.



As a writing, a foundation would need to be laid that the excerpt is genuine and is what it purports to represent. The facts state this is the case, given its authentication.


Best Evidence

Pete’s counsel would argue that the excerpt is inadmissible because it is not the best evidence — that the original writings containing the excerpt need to be produced. ABC would successfully contend that the maintenance records are voluminous and that only a summary — the excerpt — is required.


Ultimate Fact

Although ABC might inventively contend — assuming they can overcome the above-noted objections — that the excerpt addresses the ultimate fact of their lack of negligence because they acted with due care in inspecting the fuel lines and valves, testimony on an ultimate fact is only allowed per the federal rules if an expert renders such opinion. The excerpt attributed to Mac’s opinion that the fuel lines and valves were “all okay” would fail on this ground because ABC has not preliminarily established Mac’s qualifications as an expert.


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