Let's take another look at the last problem.

If you wish to review the facts of Tidings v. Hoggs, click here.

Tidings wishes to offer the following testimony from Sergeant Muldoon, of the State U. Police:

"On October 25 of last year [two weeks after distribution of the flyers critical of Raoul Tidings], we received an alarm call from the Sports Information office at State U., at 1:10 AM. We then drove to the office, and found Hoggs standing outside it. He said that he had rattled the door to try to get in to obtain a new field hockey media guide. We determined that the door had been jimmied. Further, we determined that jiggling the door knob, or even pounding on the door, would not cause the alarm to sound. I then Mirandized him, and we placed him under arrest."

"When we reached the station, I said to him, 'I suppose you broke into the office in order to get at Tidings' football records.' He stared at me, and didn't say anything for a minute or more. Then he said 'I want my lawyer, Boris Podolsky, and I'm not answering any more questions.' So I called Podolsky and turned Hoggs over to the jailer. "

Suppose that the person next to you said, "Wait a second. Assume Hogg broke into the office. His conduct is ambiguous--he might have done so for a number of reasons, including a belief that his case is weak, a compulsion to be sure that he was right about Tidings' career, or a desire for information for a column about field hockey. Hoggs' belief about the need to break into the office could have rested on inaccurate memories or perceptions about Tidings' football career or any number of other things. So, isn't it hearsay under Rule 801(c)?"

Would the person sitting next to you be in accord with the view of most courts applying the Federal Rules? Would she be right under the common law test?