All Prior Testimony Is Former Testimony

Subject distribution

• Evidence1

• 20307_bethany_banners_transcript · EVIDENCE · Choice BAdmitted under the recorded recollection exception to the hearsay rule.

  Why it's attractive

  The choice sees a written record and reaches for a record-style hearsay exception. The breaker is that this is a court transcript, not the employee's adopted memory record.

  Why it's wrong

  Recorded recollection is a true Evidence category, but this transcript is not Peter's adopted memory record.

  Spot it next time

  Ask whether the witness made or adopted the record as a memory aid.

• 20307_bethany_banners_transcript · EVIDENCE · Choice CExcluded as hearsay not within any exception or exclusion.

  Why it's attractive

  The choice correctly senses a hearsay problem and gives the safe-sounding exclusion answer. The breaker is that multiple hearsay is not automatically excluded when each layer has a path.

  Why it's wrong

  The answer identifies hearsay but omits the available paths for each layer.

  Spot it next time

  For every transcript, ask what admits the speaker's statement and what admits the transcript.

• 20307_bethany_banners_transcript · EVIDENCE · Choice DAdmitted under the former testimony exception to the hearsay rule.

  Why it's attractive

  The choice sees earlier sworn testimony and reaches for the familiar former-testimony exception. The breaker is that the current opponent did not have the required earlier opportunity and motive to examine.

  Why it's wrong

  Former testimony is the wrong context because the current civil defendant did not examine Peter in the earlier criminal case.

  Spot it next time

  Ask whether the current opponent had the prior chance and similar motive to examine.