Evidence Practice Question 1

D is correct. Hearsay within hearsay, or double hearsay, is when an out-of-court statement incorporates another out-of-court statement within it. Governed by Federal Rule of Evidence 805, hearsay within hearsay is only admissible if both the outer and inner hearsay statements meet an exception to the hearsay rule. In this case, the outer hearsay, the report, does meet an exception, the business records exception. The report itself qualifies as a business record because it is a record made at or near the time of the event, in the regular course of activity, by someone with firsthand knowledge.

Statements made inside of business records may be admissible if both the supplier and the recorder are part of the business and under a business duty to accurately transmit the information. If the supplier of the information is not under a business duty to transmit information, the record is typically not admissible. Because the shopper does not work for the store and has no business duty to accurately report the information, her statement is not admissible under the business record exception. Additionally, the shopper’s statement does not meet any other exception to the hearsay rule; therefore, it is inadmissible.

A is incorrect. The shopper’s statement is hearsay without an exception. The statement is an out-of-court statement being offered for the truth of the matter asserted: that the customer fell because he was running.

B is incorrect. Although the report itself would qualify as a business record, the statement of the shopper contained in the report does not. Her statement would also have to meet its own exception to the hearsay rule.

C is incorrect. The shopper’s statement would be relevant, but it is not admissible because it does not meet a separate exception to the hearsay rule.