FALL 2003 Essay #1
I. Hearsay – Issue, Rule – out of court statement, offered for truth, Analysis – made at hospital, offered to show committed rape, Conclusion – hearsay; Hearsay within hearsay, “It’s Showtime”, not offered for truth Exceptions – Excited Utterance – Issue, Rule – relates to startling event, made while under stress of excitement, Analysis – goes straight to emergency room, across the street, 30 minutes later, single question/”what happened,” speaks softly, periodically trails, off, hair/clothes/makeup show no sign of struggle, no sign she has been crying, only minor discomfort, really wants to know about STDs, not a child/29 years old Present Sense Impression – Issue, describes event of condition made while perceiving or immediately thereafter, 30 minutes later, Conclusion – not satisfied, could work for pelvic condition State of Mind – Issue, Rule – describes then existing condition, Jane has minor pelvic discomfort, Conclusion – comes in Medical Treatment – Issue, Rule – made for medical treatment or diagnosis, describes pain, describes cause or source of pain, reasonably pertinent to diagnosis or treatment, need not be speaking to doctor, Analysis – Ann is a nurse, pelvic discomfort, source or cause of pain is rape, but Cody’s name may not be pertinent Forfeiture by wrongdoing – Issue, Rule – unavailable, offered against party who caused unavailability, waive right to object to hearsay, Jane dead, died day before trial, food poisoning from Cody’s restaurant, died with Ann Catchall – Issue, Rule – general, Analysis – reasonable Confrontation Clause – Issue, Rule – hearsay offered against criminal defendant, firmly rooted exception, Analysis – all above are firmly rooted by catchall II. Refresh recollection – Issue, Rule – can use anything to refresh, Analysis – can show police report, notes from hospital, Nurse Ann’s notes/report, must show now has current recollection Past Recollection Recorded – Issue, Rule – memo, once had knowledge but now insufficient to testify fully, made or adopted while fresh, shown to be accurate when made, Analysis – Bill wrote report, mind is blank, wrote report day after interview, Bill must testify that accurate when made, can read to jury Police Report – Report is hearsay, Exception – Public Records – Issue, Rule – matters observed by public official, except law enforcement personnel, Analysis – Bill is law enforcement, Conclusion – Cannot come in, notes cannot come in either
Hospital Records – Records are hearsay, Exception – Business Records – Issue, Rule – memo or record, events/conditions/diagnosis, made at or near time, by person with knowledge, made in ordinary course, kept in ordinary course, custodian/foundation, Analysis – Ann wrote report in course of business, report written next day, hospital custodian can lay foundation, Notes might qualify as well III. Character Evidence – Similar Offenses in Sex Cases – Issue, Rule – other acts not ordinarily admitted to show character, prior sex offenses admissible to show action in conformity therewith notice, fifteen days, acquittal irrelevant, Analysis – Laura testimony concerns prior “offense,” only one week notice given, must still apply Rule 403, Conclusion – may not come in 404(b) – Issue, Rule – other acts admissible if offered for proper non-character purpose, enough evidence to think it happened, relevant to purpose, 403(3), probative value must be substantially outweighed by prejudice to keep out, Analysis – met at restaurant tour, strobe light, locks door, “It’s Showtime,” raped in luxury box, proper purpose intent/identity/opportunity, reasonable balancing under Rule 403, limiting instruction, must give notice reasonable time IV. Foundation – Voice identification – Issue, Rule – can be familiar with voice under any circumstances, Analysis – never met or spoken with Cody, Cody attends press conferences after every game, Glyn often watched press conferences, Glyn claims to have spoken to Cody on phone, Conclusion – foundation probably laid Distinctive Characteristics – Issue, Rule – can lay foundation through circumstances that connect voice to speaker, Analysis – Cody goes to restaurant every night after home game, Glyn called restaurant, Glyn asked for owner and got male voice, “This is Co-Co” acknowledges earlier game, says Jane’s name though Glyn didn’t, Conclusion – foundation probably laid Telephone Conversations – Issue, Rule – can lay foundation by showing that number called registered to person, or business reasonably transacted over phone, Analysis – phone not at Cody’s home, registered to Cody’s business, unlikely relates to business reasonably transacted over phone V. Impeachment – Bias – Issue, Rule – governed by relevance principles, can impeach witness by showing has reason to slant testimony, extrinsic evidence allowed, Cody hates Breakers and all on team, Conclusion – comes in Prior Inconsistent Statement – Issue, Rule – prior inconsistent statements admissible to impeach, must give witness opportunity to explain, opposing counsel opportunity to question witness on prior statement, extrinsic evidence then allowed, need not bring out on cross, told girlfriend that going to lie, inconsistent with testimony, Conclusion – comes in, limiting instruction, if Glyn flees will have to strike girlfriend’s testimony, Contradiction
FALL 2003 Essay #2
I. A. A/C Privilege – Issue, Rule – confidential communication, reasonable belief communication confidential, for purpose of legal advice, no privilege in front of 3d party, 3d party must be able to understand, Exceptions – crime/fraud, not privileged ab initio, Analysis – no cars in lot, bide by door, Jeff asks if alone, on one else visibly present, Scooter actually present and listening, knew Scooter was around, Mike thinks doesn’t understand, neither Jeff nor Mike see Scooter, destroying walls and saying accidental likely is crime/fraud, actions not communications, not really communicating for legal advice, Conclusion – what Scooter saw not confidential communication B. Competence – Issue, Rule – all witnesses presumed competent, personal knowledge, able to communicate what saw and heard, must be able to tell truth, must be able to testify that could recognize anger/intent, Analysis – Jr. High dropout irrelevant, IQ irrelevant, literacy not required, Conclusion – Scooter is competent Lay Opinion – Issue, Rule – rationally based on perception of witness, helpful to understanding testimony/determination of fact in issue, Analysis – Scooter able to hear conversation, hear conversation, heard Mike say “going to trash place,” “going to have accidents,” saw Mike smash walls, whether destruction was accidental is fact in issue, Conclusion – anger, intent OK, OK that goes to ultimate issue II. Best Evidence – Issue, Rule – must produce original when trying to prove contents of writing, production excused if original lost, must perform diligent search, production excused if original in possession of opponent, gave notice that original subject to proof at hearing, testimony allowed if production of original excused, Analysis – trying to prove contests of lease, lease is a writing, Duplicate originals made, Rick misplaces his original two weeks before hearing, looks for twenty minutes, request for original from Mike is day of trial, Conclusion – not a diligent search, ,request to Mike is not reasonable notice, objection sustained A. Best Evidence – Issue, Rule – may prove contents of original though written admission of opponent, November 6, 2002 letter by Jeff admits two months notice required, Jeff is Mike’s authorized agent, Conclusion – probably comes in, letter is original Hearsay – Issue, Rule – out of court statement, offered to prove truth of matter asserted, Conclusion – hearsay because offered to prove terms of lease Exception/Exclusion – admission by speaking agent – Issue, statement made by person authorized by party to make statement, Analysis – Jeff is Mike’s attorney, Mike authorized Jeff to send letter, Conclusion – comes in, business records/declar. against interest
Verbal Act – Issue, Rule – statement has independent legal significance, Analysis – letter terminates lease, Conclusion – comes in III. Leading Question – Issue, Rule – question that suggest answer, not normally allowed on direct, unless hostile/adverse, Analysis/Conclusion -- sustained Truthfulness of Rick – Issue, Rule – cannot bolster truthfulness unless witness first attacked for untruthfulness, Analysis – reputation evidence, foundation, known for twenty years, owns building next to Rick, Conclusion – not allowed IV. 1991 Felony forgery conviction – Issue, Rule – prior convictions for crimes involving dishonesty automatically admitted, there is no balancing, exception if over ten years, time measured from later of conviction or release, conviction in 1991, served three full years, released 9 years ago, forgery is crime of dishonesty, Conclusion – automatically in 1991 felony cocaine conviction – Issue, Rule – prior conviction of witness admitted unless probative value substantially outweighed by unfair prejudice, Gordon factors – nature of crime, similarity, remoteness, record otherwise clean, importance of testimony/credibility, Analysis – drug offense is low probative value, fairly recent/1999, only one other conviction/none since, not similar/testimony not that important, Conclusion – out
Spring 2000 Essay #2
A. Proof Alcoholic -- Opened door on direct (Opened door, probably all comes in including rehab) -- Relevance (Issue/Rule, analysis) -- Character/Habit (Issue, Rules, analysis, concl. that majority is no) -- 405. not party of claim (Issue, rule, analysis) -- 404(b), absence of mistake (1) (Issue 1) -- 403 (brief analysis) -- Relevance (brief analysis) -- Lay Opinion (Issue, Rule, analysis smell and stagger recognition, concl.) -- Hearsay (issue, rule, analysis not intended to be an assertion) -- 403 -- 609(a) (Issue, rule not accused, so 403, analysis highly probative and highly prejudicial probably comes in) -- 609(b) (Issue time not given, rule, analysis, if 10+ years, then diff. standard -- 608 (Issue, rule/analysis not probative of truthfulness) -- Relevance -- Peter’s Adoptive Admission (Issue, Rule Reasonable person would respond, analysis Molly’s hearsay, excited utterance, present sense, fiancé, circumstances, silence -- Lay opinion – guilty look on Peter’s face (Issue, Rule, Analysis) -- Peter’s Hearsay (Issue, Rules admission and insurance, Analysis admission for statement, but insurance, redacted, Conclusion If redacted may not be relevant -- Spousal privileges (non-existent because not married) -- 403 -- Residual exception -- Relevance -- Leading question (part of B. above) -- Hearsay (Issue, rules, P.S., E.U., analysis timing – quickly ran over, stress – laughing uncontrollably, calmed then again uncontrollable, related to event, conclusion -- Competency (Issue, rule, split on necessity of declarant competence, analysis (saw accident/perfect view, color of cars, but not laughing uncontrollably, aliens in spaceships -- 403
Proof that Drinking
Prior convictions
B
C.
D.
-- 612 Past recollection refreshed (issue, rule can use anything to refresh, analysis could show police report, ID signature, can testify if remembers, report not in evidence) -- 803 Recorded Rec. (issue, rule Once knew – now don’t, adopted when fresh, was correct when written, Analysis fresh in mind when made, correct when written because reviewed and signed, no memory now, Conclusion only read into evidence) -- Officer testimony/report (issue, rule, multiple hearsay, must have exception for each, analysis Kay to Walter OK (see above), Walter to officer – 10 minutes too late for _S., too calm for E.U., officer to paper under 803(8)(B), Conclusion, Authentication