For mock trial, the case is STATE OF WASHINGTON, Plaintiff, vs. SYDNEY CARDEN, Defendant.

Two of the witnesses are Sam Drucker (plaintiff witness), a manager for a local thrift store, and Kahuna Thornhill (defense witness), an assistant manager and employee.

The trouble I have is in understanding what "agent of the party" really means. Thornhill is trying to get a statement made by Drucker in. However, the opponent party is the state, and the state did not make the statement. The manager of the store made the statement. Because Drucker is a witness for the state, can he qualify as an agent for the state? Because then, we can go to the agent-employee relationship matter.

The line in question is

But Drucker chewed me out about being late (five minutes, to be exact) and abruptly told me to start my opening shift rounds (41.38-42.2).

I just need to get into evidence that Thornhill was told to start his opening shift rounds. It doesn't seem like too much of a hearsay problem, but is 801d2D or some different rule an exception for this case?

  • 1
    Hi - welcome! To your question about whether Drucker can qualify as an agent for the state, no. Being a witness for a prosecution does not create an agency relationship. Further, under Rule 801(d)(2)(D), the statement has to be one by the party's agent concerning a matter within the scope of the agency . . . made during the existence of the relationship. I can't think of a statement Drucker, the shop owner / government witness, could make that would be within the scope of him serving as a witness for the government and made while he was a witness for the government. – A.fm. Nov 30 '19 at 5:59

This isn’t hearsay

Thornhill is testifying as to what Drucker said to them. It’s only hearsay if the testimony is trying to show that Drucker’s statements were factual. There is actually nothing in Drucker’s statements that speak to other facts, all Thornhill is saying is that Drucker told them these things. Thornhill can then by cross-examined on that.

Drucker may deny that they said these things or even that a conversation took place. That’s not hearsay either because Drucker is testifying to a conversation (or not) that they were there for and Drucker is available for cross-examination. Conflicting testimony is perfectly normal, the trier of fact has to decide which is more credible.

  • One assumes you mean 801(d)(1) as there is no 802(d); nonetheless, this is a misinterpretation of the Rule. Drucker being there doesn't make it not hearsay. The Rule clearly states it isn't hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement (emphases added). Once that criteria is satisfied, it also has to satisfy the criteria listed in A, B, or C. From the information given by OP, we're unable to complete the analysis. – A.fm. Nov 30 '19 at 5:54
  • @A.fm. Yes, misread the question. – Dale M Nov 30 '19 at 7:43

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