Team Presentations - Law 16 - Spring 2015

Estate of Giddy

 

remember to look at Hearsay Triangle - click here, and to see that the 4 infirmities of a hearsay statement are 1. ambiguity 2. insincerity (i.e. lieing) 3. erroneous memory 4. inaccurate perception.

also click here for more information on Hearsay Rule

Facts : Will contest action brought by the decedent's daughter, Vera, in an effort to set aside her late father's will as the product of insane dilusions. The will, dated June 28 of the year before Giddy's death, leaves Giddy's entire estate to a charity, Save the Easter Seals. Testifying on Vera's behalf is Howard Huge, formerly a close friend of the decedent.

 

 

Direct examination by counsel for contestant
(Prelimiary questioning omitted)

 

 

Q. Mr. Huge, do you recall the evening of July 2 of the year before Mr. Giddy's death?
A: I do. I was at Mr. Giddy's house for dinner.

 

 

1. Q: How is it you can be certain that you were together that particular evening?
Does this question "exactly quote" the statement of the witness? What is your objection to this question, if any?

 

 

2. A: I remember because it was the same day that my stockbroker had told me to be sure to buy shares in a company called Hugh's Tool Co., because they were part of a new issue that she thought would skyrocket.
Is it proper for a witness to say why he or she recalls a particular event? Is the statement being offered "for the truth of the matter asserted therein ("fotomat")

 

 

Q: Please tell us what you had for dinner that night

 

 

Respondent's Attorney: Objection, Your Honor, irrelevant.

 

 

Contestant's attorney: Your Honor, this is offered to show the clarity of the witness' recollection of the details of that particular evening.

 

 

3. The court: I'll sustain the objection.
Proper Ruling? why or why not? What about a FRE 403 objection, any grounds for that? Relevant or not? Does it make a difference whether witness credibility has not yet been attacked vs. time and confusion issues?

 

 

Q: All right, let's move on, Mr. Huge, do you recall a conversation you and Mr. Giddy had after dinner?

 

 

A: I do.

 

 

Q: Please tell use what if anything Mr. Giddy said about his family during this conversation..

 

 

A: He said that Vera was just waiting for him to die so that she could inherit his money and pay off gambiling debts.

 

 

Respondent's Attorney: Objection and move to strike as hearsay. Also, anything said by Mr. Giddy after the will was executed is irrelevant.

 

 

4. The Court: overruled.
Ruling correct? is the Statement hearsay? Offered for its truth? Is it offered instead as circumstantial evidence? if so what does it support? Since statement was made a few days after the will was signed, what can we infer? about decedent's state of mind? why relevant, or not?

 

 

Q: Did you ever tell anyone else that Giddy had made this statement to you?

 

 

5. A: Yes, when I got home that evening I told my wife what Giddy had told me.
Is this a hearsay statement, even though he is IN court, and testifying about it? Is it technical hearsay?

 

 

Q: Had Mr. Giddy ever made a similar statement to you?

 

 

A: Yes, it was about 2 years earlier. We were taking a walk, and he said something about Vera owing millions to the Mafia.

 

 

Respondent's Attorney: Same hearsay and relevance objections.

 

 

6. The Court: same rulings
is Hearsay ruling correct, why? what about a relevance objection here, successful, why?

 

 

7. Q: Was Mr. Giddy just kidding around?
What objection do you make here? does the witness have personal knowledge, if not then what is witness doing?

 

 

A: No, I'm sure he meant it.

 

 

Q: Had you ever heard of Mr. Giddy making remarks about his family members to other people?

 

 

A: Yes. The next day, another friend of Giddy's and mine, Rocky Feller, told me that Giddy had recently told him, "Everyone in my family is deeply in debt to the Mafia because they do nothing but gamble and drink."

 

 

Respondent's Attorney: Objection to Feller's statement, hearsay.

 

 

8. The Court: Sustained.
Ruling correct? is Feller's statement hearsay? why or why not? is it being offered "for truth of statment?"

 

 

Q: Without using Feller's exact words, can you give us the gist of what Feller told you that Giddy said?

 

 

A: Giddy basically told Feller the same thing about gambling that Giddy had told me the night before.

 

 

Respondent's Attorney: Objection, hearsay.

 

 

9. The Court: sustained.
Ruling correct? if you use witness' own words, does it avoid hearsay problems, why or why not?

 

 

Q: Let me ask it this way, Without telling us anything that Mr. Feller told you, was it your belief, after talking to him that Mr. Giddy had made the same remark about gambling to Mr. Feller that he had made to you?

 

 

10. Respondent's Attorney: What if any objection would you make?
Relevant or not? why or why not? does witness belief have bearing on the issues? why or why not?

 

 

Q: Mr. Huge, let me turn your attention to the afternoon of June 13, about a week before Mr. Giddy executed his will. Do you recall that date?

 

 

A: I do.

 

 

Q: Did you see Mr. Giddy on that date?

 

 

A: I stopped by his apartment, but didn't actually see him.

 

 

Q: What happened?

 

 

A: Well, I had knocked on the front door of his apartment, but gotten no answer. Then I heard a couple of voices coming from down the hallway, I heard someone ask, "How are the kids ?"

 

 

Q: Do you know whose voice this was?

 

 

A: No, I didn't recognize it at all.

 

 

Q: All right, please continue.

 

 

A: I heard a different person say, "My poor daughter is dead." The the person said, "No, she's not, she called you last week, remember?" Then the second voice said, "I'm crazy as a nuthouse."

 

 

Q: Did you recognize this second voice?

 

 

A: Being down the corridor and everying, it was hard to tell, but I'd say the second voice was Giddy's.

 

 

Q: Did you try to see who it was?

 

 

A: Yes, I turned the corner and walked down the corridor, but couln't see anyone. So I just went home.

 

 

Q: What leads you to say the second voice was that of Mr. Giddy?

 

 

A: I've known him for years, it just sounded like him.

 

 

Respondent's Attorney: Objection to this conversation, on the ground that the witness lacks sufficient personal knowledge as to whether the second voice was that of the decedent.

 

 

11. The Court: The question is whether the jury could reasonably conclude that the voice was that of Mr. Giddy.
is this correct standard applied by the court? why or why not?

 

 

12. The Court: Let me ask some additional questions by way of foundation. On the average, how often had you spoken to Mr. Giddy, in the year prior to this hallway discussion?
is it proper for a judge to ask questions, when would he or she do so, and what kinds of questions are acceptable, if any?

 

 

A: That's hard to say. Sometimes I'd talk to him 2 or 3 times a week, other times not for a few weeks.

 

 

The Court: And had you ever correctly identified his voice by hearing it when you couldn't see Mr. Giddy?

 

 

A: No.

 

 

13. The Court: the issue is close, but I find the foundation sufficient to all ow the jury to conclude that the second voice was that of Mr. Giddy.
does the court have this discretion, why or why not? Would ruling be sustained on appeal, why or why not?

 

 

Respondent's Attorney: Also object to what the second person said as hearsay.

 

 

14. The Court: overruled.
Ruling on statement "My poor daughter is dead." is that correct? what does that statement go to prove, and is it hearsay or non-hearsay statement under FRE 801 (d)?
Second statement: "No, she's not, she called you last week, remember?" Then the second voice said, "I'm crazy as a nuthouse." is this hearsay, if so what exception to hearsay, under FRE 803 and 804 - click here.

 

 

Cross Examination by Responent's Counsel

 

 

Q. Mr. Huge, do you know Ivana Frump?

 

 

A: Yes, she's a neighbor of mine.

 

 

15. Q: Didn't you tell her just a week ago, "I feel awful that Giddy cut off Vera without a cent. She deserves to get a lot of his money"
is this non-hearsay, if so what does it show? be specific.

 

 

A: I may have.

 

 

Q: Isnt't it a fact that you did make that statement?

 

 

Plaintiff's Attorney: Objection, argumentative.

 

 

16. The Court: Overruled.
good ruling from Court? why or why not? why overruled?

 

 

A: I probably did say that.

 

 

Q: Now, you testified to a statement about goldfish that Mr. Giddy made on June 26, correct?

 

 

A: I did.

 

 

17. Q: Didn't Mr. Giddy also tell yu during that conversation that Vera had no respect for the value of money, and that she was a big disappointment to him?
hearsay or non-hearsay? why or why not? what are possible non-hearsay uses.

 

 

18. A: That's true. But I told him that he was wrong, that in fact Vera was very careful with money.
Cross examiner should move to strike the witness' remarks because no question pending, also is statement hearsay, why or why not?