February 2023 Second Example Ten-point Answers to Virginia Essay Questions
February 2023 - QUESTION 6 – VIRGINIA BAR EXAMINATION
6. Drake Davis was involved in an automobile accident in Fairfax County, Virginia. Drake’s car struck and killed a pedestrian in a crosswalk. Drake and his passenger, Theresa Freeman, were not injured.
Officer Carla Ramirez, the investigating police officer, arrived at the scene within a few minutes of the crash. As she exited her car, Officer Ramirez overheard an eyewitness to the accident standing on the street corner, who kept yelling into his phone, “He drove right through the red light! He almost hit me!”
When she spoke to Drake, Officer Ramirez asked if she could look at his phone. Drake handed her the phone that was in his lap and gave her the password to open it. Officer Ramirez saw that an unsent and incomplete text message was visible on the phone, which read, “Joe- I am running late to your house. Theresa and I will get there as...” Drake told Officer Ramirez that he was on his way to Joe’s house immediately before the accident.
Officer Ramirez then noticed that Drake’s passenger, Theresa, also had a cell phone in her hand. Officer Ramirez asked Theresa, “Were you taking a video of Drake just before the crash?” Without saying a word, Theresa nodded her head and handed Officer Ramirez her phone. Based on Theresa’s reaction, Officer Ramirez concluded that she had, in fact, been videotaping right before the crash. With Theresa’s permission, Officer Ramirez looked at her phone. The only video clip found on Theresa’s phone was a video in which Drake could be heard laughing as the camera zoomed in on the speedometer of his car showing 92 mph.
Drake was charged with involuntary manslaughter, and at his trial, the prosecutor called Officer Ramirez to the stand:
Prosecutor: “Officer Ramirez, tell the jury what the eyewitness said on his phone at the scene of the crash.”
Defense: “Objection. The question calls for inadmissible hearsay.”
The court overruled the objection and allowed Officer Ramirez to testify that, at the scene, she overheard the eyewitness yelling into his phone, “He drove right through the red light! He almost hit me!”
Next, Officer Ramirez testified that when she asked to see Drake’s phone, he took it from his lap, gave it to her and gave her the password. Then, the following exchange took place:
Prosecutor: “Officer Ramirez, when you first looked at the phone Mr. Davis handed you, please tell the jury what you read.”
Defense: “Objection. The question lacks a proper foundation establishing the authorship of the statement and calls for inadmissible hearsay.”
The court overruled the objection as to foundation, finding a sufficient foundation had been laid that Drake was the author of the text, but found that the unsent text message on the phone was inadmissible hearsay.
Finally, the prosecution sought to enter the following into evidence:
Prosecutor: “Officer Ramirez, please describe to the jury Theresa’s behavior when you asked her, ‘Were you taking a video of Drake just before the crash?’ and show the jury the video you found on her phone.”
Defense: “Objection. The question calls for inadmissible hearsay and, therefore, the video lacks a proper foundation and should not be shown to the jury.”
The court overruled the objection and allowed Officer Ramirez to describe how Theresa had nodded her head and handed the phone to Officer Ramirez in response to her question, and Officer Ramirez’s conclusion from this reaction was that Theresa had, in fact, been videotaping just before the crash. With this foundation, the court permitted the jury to see the video.
| (a) | Did the court err in overruling the objection and allowing Officer Ramirez to testify that at the scene, she overheard the eyewitness yelling into his phone, “He drove right through the red light! He almost hit me!” Explain fully. | |
| (b) | Did the court err in finding that a sufficient foundation had been laid establishing that Drake was the author of the incomplete and unsent text message on his phone? Explain fully. | |
| (c) | Did the court err in excluding the incomplete and unsent text message on Drake’s phone as inadmissible hearsay? Explain fully. | |
| (d) | Did the court err in overruling the objection to Officer Ramirez’s description of Theresa’s reaction to the question, “Were you taking a video of Drake just before the crash?” as hearsay and in allowing the jury to see the video? Explain fully. |
February 2023 - QUESTION 6 – EXAMPLE ANSWER
6a. The court did not err in overruling the objection because the eyewitness's statement was an excited utterance.
The rule against hearsay provides that an out of court statement made by a declarant is not admissible to prove the truth of the matter asserted. There is a hearsay exception for an excited utterance. An excited utterance is made about a startling event or condition, made at or near the time of the event or condition, made while under the distress caused by the event or condition.
Here, the eyewitness's statement "He drove right through the red light! He almost hit me!" is an out of court statement, because it was not made at the current proceeding. Rather, it was made by an eyewitenss at the time of the accident. It was made by a declarant, because the eyewitness said it. It is offered to prove the truth of the matter asserted, because the Prosecutor is offering it to prove that Drake drove through the red light and therefore is liable for involuntary manslaughter. However, the excited utterance exception applies. The statement relates to a startling event or condition, the running of the red light and the pedestrian's nearly being struck. The statement is made at or near the time of the event, because Officer Ramirez heard the pedestrian make it as she exited her car after arriving within a few minutes of the crash. A person who was nearly hit by a car surely would still be under the stress of such event within a few minutes of its occurrence. Finally, the pedestrian is clearly still under the distress caused by the event, because he is yelling and using speaking in an excited manner.
Therefore, the court did not err in overruling the objection, because the statement fits the excited utterance exception to the rule against hearsay.
6b. The court likely did not err in finding that sufficient foundation had been laid establishing that Drake was the author of the unsent text message.
In order to be admitted, tangible evidence must be authenticated by sufficient evidence that it is what its proponent asserts it to be. Authentication may occur by witness testimony, expert testimony, jury comparison, or by circumstantial evidence such as chain of custody.
Here, the prosecutor offered witness testimony to authenticate the text message: the testimony of Officer Ramirez. The Officer testified that when she asked to see Drake's phone, he took it from his lap and handed it to her. This establishes that the phone was Drake's, because the Officer asked to see Drake's phone, not just any phone that happened to be in Drake's lap. The fact that it was in Drake's lap is crucial because it suggests that Drake, as the possessor of the phone, had been the one recently using it. Additionally, Officer Ramirez testified that he gave it to her along with the password. Generally, only the owner of a phone knows its password. Drake gave her the correct password, because Officer Ramirez was able to oepn it and read the incomplete text message. She would not have been able to do so without the password, absent additional facts. However, on some phone models it is possible that a person can edit a text message from the lock screen, depending on their security settings. To make the foundation stronger, the Prosecutor should have had Officer Ramirez testify (if such was the case) that she was required to enter the password that Drake gave her in order to view the unsent text message. This would have established a stronger connection to the message's having been typed by Drake rather than by Theresa. Finally, the text message was written from Drake's point of view, because it said "Theresa and I will get there as...". This makes it more likely that Drake, rather than Theresa, was the author of the text.
Therefore, the court likley did not err in finding that sufficient foundation was laid establishing that Drake was the author of the text message.
6c. The court likely erred in excluding the unsent text message on Drake's phone, because it is not hearsay as the statement of an opposing party.
The rule against hearsay is provided in section 6a above. The statement of an opposing party is not hearsay and is admissible even to prove the truth of the matter asserted.
Here, the prosecutor is seeking to admit the unsent text message. The text message was on Drake's phone and, as the analysis in 6b shows, the prosecutor has laid sufficient foundation to suggest that the phone belonged to Drake. Drake, as the defendant, is an opposing party. Drake's statements are admissible against him even to prove the truth of the matter asserted.
Therefore, the court erred in excluding the unsent text message as inadmissible hearsay, because it is not hearsay as the statement of an opposing party.
6d. The court likely erred in overruling the objection to Officer Ramirez's description of Theresa's reaction and in allowing the jury to see the video.
The rule against hearsay is provided in section 6a above. The acts of a person may constitute a statement for the purposes of the hearsay rule. The rule about authentication is provided in section 6b above.
Here, the "statement" at issue is Theresa's nodding her head and handing over her phone. This qualifies as a statement even though Theresa did not actually say anything, because it is meant to indicate that Theresa was taking a video of Drake just before the crash. It was made out of court because it was made at the scene of the accident. It is offered to prove the truth of the matter asserted, because the prosecutor is offering Theresa's reaction to prove that Theresa was taking a video of Drake just before the accident, in order to lay the foundation for what is depicted in the video. There is no applicable exception that would allow the statement to come in, except possibly the residual exception. That exception requires notice to the opposing party before trial, so it would not be applicable here. As evidence, the video must be authenticated to be admissible. If Theresa's reaction is the only way to authenticate it, then the video is not admissible. Because the reaction is inadmissible, the video is not admissible either unless the Prosecutor had some other way of authenticating it, i.e., the live testimony of Theresa that she took the video.
Therefore, the court likely erred in overruling the objection to Officer Ramirez's description of Theresa's reaction and allowing the jury to see the video.
February 2023 - QUESTION 6 – EXAMPLE ANSWER
6a. The issue is whether the statement of the eyewitness is inadmissible hearsay.
Hearsay is an out-of-court statement made by someone other than the witness that is offered to prove the truth of the matter asserted in the statement. Hearsay is generally inadmissible unless it falls under one of the exceptions to the hearsay rule or is defined as nonhearsay by the rules of evidence. A statement that is hearsay may be admissible if it is an excited utterance, which is a statement that is made about a surprising or startling event while the declarant is still under the excitement of experiencing or witnessing that event.
In this case, the statement by the witness is an out-of-court statement offered by someone other than the witness, Officer Ramirez, that seems to be offered for the truth of the matter asserted, since it appears to be offered to show that Drake drove through the red light or at least that he was driving dangerously and posed a threat to others. As such, it is hearsay. However, this statement likely falls under the excited utterance exception to the hearsay rule. The eyewitness had just witnessed the event he was describing, which was Drake’s running the red light and coming close to hitting him, and he was apparently still excited from the event since he was shouting into his phone and in an animated state. Therefore, the statement is likely admissible as an exception to the hearsay rule. Under this exception to the hearsay rule, it does not matter if the declarant is available to testify as a witness or not; the statement is admissible regardless. Therefore, the court did not err in overruling the objection to this evidence and allowing Officer Ramirez to testify as to what the eyewitness said.
6b. The issue is whether proper foundation was laid to establish that Drake was the author of the text message on the phone.
In order for evidence to be admissible, it must be authenticated, meaning that there is reason to believe that it is what it purports to be. Evidence may be authenticated in a number of ways, including by establishing the chain of custody of the evidence. Circumstantial evidence can give rise to a reasonable belief that the evidence is what it is claimed by the proponent to be.
In this case, the evidence in question is the text message on Drake’s phone. Officer Ramirez arrived on the scene of the crash within minutes of its occurrence, and she obtained the phone from Drake shortly after arriving at the scene when he took the phone from his lap and gave it to her. It can be established from this evidence that the phone was in the control of Drake immediately before the crash and that any message on that phone was likely to be sent by him. Additionally, the phone required a password held by Drake, which makes it even less likely that anyone else was the author of the text. There is no need for the authenticity of evidence to be established beyond a reasonable doubt or conclusively, but there does need to be reasonable grounds to believe that the evidence is what it is claimed to be, which do exist here based on the evidence of the chain of custody of the phone. Therefore, the court did not err in finding that a sufficient foundation was laid establishing that Drake was the author of the text message.
6c. The issue is whether the unsent text message is inadmissible hearsay.
Hearsay is an out-of-court statement made by someone other than the witness that is offered to prove the truth of the matter asserted. A statement that is not offered to prove the truth of the matter asserted is not hearsay. Hearsay is generally inadmissible unless it falls under one of the exceptions to the hearsay rule or is defined as nonhearsay by the rules of evidence. A statement that is made by a party-opponent, such as a defendant in a criminal case or the plaintiff or a defendant in a civil case, is admissible when it is offered by the opposing party. Under the Federal Rules of Evidence, such a statement is considered nonhearsay, while under the Virginia Rules of Evidence, such a statement is considered admissible as an exception to the hearsay rule. Since this case is presumably in a Virginia state court, the Virginia rule will apply.
Drake’s text message is admissible as an exception to the hearsay rule as an admission by a part-opponent. While it is an out-of-court statement offered by a person other than the witness, the question of whether it is hearsay depends on the purpose for which it was offered. It is not entirely clear from the exchange between the prosecutor and Officer Ramirez, but the statement may not have been offered for the truth of the matter asserted. The prosecution is likely trying to prove that Drake drove recklessly and dangerously, and if the text message is being offered only to prove that Drake was texting while driving, it is not being offered to prove the truth of the matter asserted in the statement, which is that Drake was running late to Joe’s house. If, however, it is being offered to prove that Drake was in fact running late to Joe’s house, a fact the prosecution may want to prove to establish a reason why Drake was speeding when the crash occurred, then it is hearsay and not admissible unless it is permitted by another rule. Even if it is being offered to prove that Drake was running late to Joe’s, it will be admissible as a statement by a party-opponent since it is being offered by the prosecution in a criminal case against a defendant. Under the Virginia rules of evidence, this statement will be admissible as an exception to the hearsay rule. Therefore, the court did err in excluding this evidence as hearsay.
6d. The issue is whether Officer Ramirez’s description of Theresa’s actions is inadmissible hearsay.
Hearsay is an out-of-court statement made by someone other than the witness that is offered to prove the truth of the matter asserted. Hearsay is generally inadmissible unless it falls under one of the exceptions to the hearsay rule or is defined as nonhearsay by the rules of evidence. A statement for the purposes of the hearsay rules can include verbal statements or nonverbal conduct that is intended to be a statement. In order for nonverbal conduct to be considered a statement, it must be intended to communicate something. Certain nonverbal gestures may be considered to be statements.
In this case, Officer Ramirez asked Theresa whether she was recording a video at the time of the crash, and Theresa nodded her head. A nod of the head is generally considered to be communicative nonverbal conduct, as it indicates agreement, assent, or approval of another statement. Theresa’s nod is likely considered a statement for the purposes of the hearsay rule, and since she is not a party-opponent and no other exception to the hearsay rule applies, this statement is inadmissible hearsay, and the court did err in overruling the objection to its admission.