Evidence Exam Answers

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 Fall 2002: Essay 1 I. s a. Relevance: i. Issue ii. Rule: any tendency to make fact of consequence more or less Px than w/o evidence b. Hearsay: i. Issue ii. Rule: out of court stmt offered to prove truth, not intended to be an assertion. c. Matchbook i. Relevance: ties Mike to hotel ii. Hearsay: words not offered to prove won’t tell, offered as verbal object, tying person to place. iii. Conclusion: comes in d. Phil to Juan: i. Relevance: tends to show mike is selling drugs ii. Hearsay: words offered to prove truth 1. adoptive admissions: circumstances suggest Rob heard the stmt, says nothing: silence could be adoption/admission (not a party) 2. Co-conspirator: Rule – D/DL conspiracy, pendency/furtherance, independent evidence. Rob is DL, mike is part of conspiracy, other evidence 3. Verbal Act e. Gunshots i. Relevance: 1. shows committed crime 2. personal knowledge f. Juan to Bob: i. Relevance: ii. Hearsay: out of court offered to prove truth?, effect on listener, shows though he was going to die. g. Rob to Juan: i. Relevance: tends to show Mike is involved in the conspiracy ii. Hearsay: offered for truth 1. excited utterance: rule is startling event, stess of excitement: shot, difficulty breathing, great pain, but may not relate to event 2. Present sense impression 3. co-conspirator: rule is pendency and furtherance: shot not during pendency, talking to cop so not in furtherance 4. Statement to physician not for purposes of medical treatment h. Declaration against Interest: i. Rule: unavailable, contrary to penal interest, reasonable person would not say unless true. ii. Asserts 5 amend, implicates self in crime, may have to divide statement/redact, since dying probably true. iii. Dying declaration: Rule: unavailable, prosecution for homicide, believing imminent death, concerns cause or circumstances of death, on trial for murder, II. III. told by doctor going to die, difficulty breathing/great pain/gunshot to chest  may not concern cause of death. i. Psychotherapist/patient privilege i. Issue: ii. Rule: must have reasonable belief, and for purpose of getting help iii. Analysis: told juan was a shrink and called him Doctor iv. Juan may have obligation to assert on behalf of Rob j. Package from Bridge: i. Issue ii. Relevance: tends to show involved a crime because close to scene, finds package nearby later, words on package tie it to deal iii. Hearsay: may not be offered for truth, possible verbal object/circumstantial evidence iv. Potential BE rule (best evidence?) k. Marijuana smell from trunk: i. Issue ii. Relevance: tends to show involved in drug crime iii. Lay opinion 1. Rule: rationally based on perception, helpfult o jury’s determination 2. under cover cop probably knows smell, but have to lay foundation. l. Post-miranda silence; i. Issue: silence not an assertion ii. Not admissible m. Police Report: i. Issue ii. Relevance iii. Hearsay: out of court and offered to prove truth, public records, matters observed pursuant to duty, not admissible against criminal defendants Bruton – Confrontation Clause: hearsay against a criminal a. Hearsay i. Admission by party opponent: statement made by Rob/offered against Rob  comes in against Rob, Limiting instruction not permissible ii. Co-conspirator: iii. Excited utterance iv. Dying declaration v. Firmly rooted vi. Declaration against penal interest maybe not firmly rooted. b. Options: i. Redact statement: so just says “me” and “I” ii. Separate juries iii. Sever trials iv. Convince rob to testify Daubert a. Qualifies as an expert, professional wine taster b. Daubert i. Issue ii. Rule: testability/feasibility, peer review/publication, rate of error, standards controlling technique, general acceptance iii. Analysis: one local article, not peer reviewed, only person and not generally accepted, never objectively verified so no error rate, knows it when he tastes it so not testable and no standards, flexible/wide discretion as to factors iv. Excluded c. “Strong possibility”: not sufficient to be probably Fall 2002 Essay #2 I. a. Best Evidence (Tapes) i. Issue ii. Rules: must produce original when proving contents of writing/photography, videos are photographs, production of original can be excused if original lost or destroyed w/o bad faith, other evidence allowed, can state what saw even if oringal available iii. Analysis: Tapes erased, no bad faith of prosecution, iv. Amanda can testify as to what she saw on the old tapes. Amanda has personal knowledge and watche carefully. Amanda can testify without producing Saturday tape. b. 404(b): i. Issue ii. Rule: evidence of other bad acts not normally admissible to show action in conformity therewith, except when offered for a different purpose. Identity/MO is proper purpose. Prior acts are relevant to purpose. iii. Analysis: large hat, dark glasses, purple lipstick, Saturday after ad, womens apparel section iv. Conclusion: in with limiting instruction c. 403: i. Issue ii. Rule: probative value substantially outweighed by unfair prejudice iii. Analysis/Conclusion: comes in d. Habit: i. Issue ii. Rule: iii. Analysis: impulsive/every time iv. Conclusion II. a. Character Evidence i. Issue ii. Rule: prosecution cannot attack character of accused raises it first. iii. Analysis: in case in chief, first witness and not raised yet iv. Conclusion: not element of offense b. Leading Questions: i. Issue ii. Rule: questions that suggest an answer, normally not allowed on direct iii. Analysis: on direct, not hostile iv. Conclusion: objection sustained III. a. Hearsay i. Issue: ii. Rule: out of court statement, offered for truth iii. Admission by party opponent: by party offered against a party: made by Ramona, offered against her. iv. Conclusion IV. V. VI. b. Plea Bargain: i. Issue ii. Rule: statement made in course of plea discussions, with prosecuting attorney, unless reasonably believed had authority iii. Analysis: Kent not an attorney, no reasonable belief in authority iv. Conclusion Truthfulness of Amanda by Kent a. Issue b. Rule: cannot bolster truthfulness unless untruth first attacked c. Analysis: opinion, foundation/10 years, no indication Amanda attacked for untruthfulness d. Conclusion Untruthfulness of Amanda by Byron a. Impeachment: i. Rule: can impeach prior witness for untruthfulness. ii. Analysis: Amanda already testified/prior witness, opinion foundation/ten years iii. Conclusion b. Specific Instances of Conduct i. Issue ii. Rule: cannot impeach through SIC with extrinsic evidence iii. Analysis: using specific instances, extrinsic evidence iv. Conclusion s a. Prior Convictions i. Forgery: 1. Issue 2. Rule: prior convictions for crimes involving false statements are admitted, even misdemeanors, subject to 10 year limit, standard is probative value must substantially outweigh danger of unfair prejudice 3. Gordon factors: nature of crime, remoteness, similarity, record otherwise clean, importance of testimony/credibility 4. Analysis: forgery is highly probative, 13 years ago, not similar, other conviction since then 5. Conclusion: either way ii. Shoplifting 1. Issue 2. Rule: prior conviction of criminal accused probative value must outweigh prejudice 3. Analysis: medium probative value, nine years ago, fairly remote, very similar, militates against admitting 4. Conclusion: out, but with wide discretion iii. Preserving error: 1. Issue 2. Rule: must testify to preserve objection, cannot draw sting if want to preserve error. Evidence – Gash – Fall – 2001 – Essay #1 1. Issue – Leading Question a. Rule – Question that suggests an answer, normally not allowed on direct, unless hostile witness b. Analysis –On direct, no indication that neighbor is hostile c. Conclusion – Objection sustained 2. Issue – Character Evidence a. Rule – Cannot raise character/reputation of criminal accused until defendant puts character in issue b. Analysis – Prosecution case-in-chief c. Conclusion – Objection sustained 3. Issue – Present Recollection Refreshed a. Rule – Can use anything to refresh recollection of witness b. Analysis – Can show him police report c. Conclusion 4. Issue – Past Recollection Recorded a. Rule – Memorandum, once had knowledge but now insufficient to testify fully and accurately, made or adopted while fresh, shown to be accurate when made b. Analysis – police report, can’t remember now, wrote report that day, generally only read into evidence; exception to public records preclusion c. Conclusion – 5. Issue - Hearsay a. Rule – Out of court statement, offered to prove truth b. Analysis – Jays statement out of court, and offered for truth; Hearsay w/in hearsay if Jay’s statement contained in police report c. Conclusion 6. Issue – Excited Utterance a. Rule – Relates to startling event or condition, made while under stress of excitement b. Analysis – fight likely started startling event, “horrific”, still under stress, quivering/stammering voice, sobs c. Conclusion - Satisfied 7. Issue – Present Sense Impression a. Rule – Must be during or immediately thereafter b. Analysis – 5 minutes later c. Conclusion 8. Issue – Public Records a. Rule – Observations/factual findings of public officer b. Analysis/Conclusion – law enforcement personnel, criminal case so prohibited c. Conclusion 9. Issue – Confrontation Clause a. Rule - b. Analysis c. Conclusion 10. Issue – Steve – Impeachment of Sensory Capacity a. Rule – Can impeach by showing that witness had defective perception capacity b. Analysis – testimony suggests that not wearing hearing aids, tends to show Jay didn’t hear what was really said c. Conclusion – Extrinsic evidence allowed/need not ask on cross 11. Issue – Impeachment by Contradiction a. Rule – Can impeach by contradicting witness on earlier testimony, as long as relevant to other impeachment point/not collateral b. Analysis – Earlier testimony that wearing hearing aids, goes to other impeaching point/not collateral c. Conclusion - Admissible 12. Issue - Habit a. Rule – specific response to particular occasion b. Analysis – 20 times before, wearing every time, instinctively takes them out c. Conclusion 13. Issue – AMY – Impeachment of Jay’s Untruthful Disposition a. Rule – Opinion of untruthfulness of witness by another permissible b. Analysis – proper foundation laid because known ten years, Jay already testified c. Conclusion - Admissible 14. Issue – Evidence of Brett’s Pertinent Character Trait a. Rule – Can offer evidence of pertinent character trait of accused b. Rule – Opinion testimony permissible c. Analysis – proper foundation/known ten years; peaceful pertinent trait for criminal battery d. Conclusion - Admissible 15. Issue – PAUL – Prior Inconsistent Statement of Jay - Hearsay a. Rule – Out of court statement offered for truth b. Analysis – out of court and offered for truth c. Conclusion - Hearsay 16. Issue – Hearsay Exception, Prior Inconsistent Statement a. Rule – Declarant testifies, subject to cross, inconsistent, given under oath at proceeding b. Analysis – Jay testified, subject to cross, statement in inconsistent, but not under oath at prior proceeding c. Conclusion – Fails to meet exception 17. Issue – Non-hearsay Use For Impeachment a. Rule – Need not meet hearsay exception, must give witness opportunity to explain, opposing counsel opportunity to cross, need not ask question on cross b. Analysis/Conclusion – testimony proper impeachment 18. Issue – Prior Convictions of Brett a. Rule – Can only introduce convictions of witnesses who testify b. Analysis – Facts establish Brett did not testify c. Conclusion – Inadmissible, **Beyond scope of allowable rebuttal 19. Issue – Analysis of convictions a. Rule – prior misdemeanor for dishonesty, prior felony drug conviction low probative b. Analysis c. Conclusion - Fall – 2001 – Essay #2 I - Foundation 1. Issue – Handwriting Comparison a. Rule – Comparison by non-expert, familiarity not acquired for purposes of litigation b. Rule – Comparison by trier of fact, comparison by expert, based upon authenticated exemplar c. Analysis – photograph exists for comparison, anyone familiar w/ Ryan’s handwriting (including Sara) can testify, can introduce photograph and have jury make own determination, Colin is expert in handwriting d. Conclusion – Comes in 2. Issue – Distinctive Characteristics a. Rule – anything distinctive about evidence can help authenticate it, internal spellings can be distinctive b. Analysis – “See” misspelled as “Sea”, contractions lacking apostrophes, salutation the same c. Conclusion – Comes in; Chain of custody for photograph, process or system 3. Issue – Best Evidence a. Rule – Must produce original when contents of writing at issue, production of original can be excused if original lost or destroyed b. Rule – Duplicates allowed, Duplicate not required when original destroyed, no hierarchy of evidence c. Analysis – Original burned by Amy’s mom, no bad faith/no fault of prosecutor, photograph qualifies as duplicate, photograph is available, Colin can testify w/out producing photograph d. Conclusion – Comes in II. Hearsay 4. Issue - Hearsay a. Rule – out of court statement offered for truth, not a statement unless intended to be an assertion 5. 6. 7. 8. 9. b. Analysis – “involuntary”, crying and shaking not intended to assert, nod of head intended to assert, “I don’t want to see him/bad man who took from room” intended to assert and offered for truth c. Conclusion – Hearsay Issue – Hearsay exception – Excited Utterance a. Rule b. Analysis – Seeing photo could create new startling event, clearly under stress, crying and shaking, blurts out/not in response to question c. Conclusion – Issue – Catchall Exception a. Rule – equivalent circumstantial guarantees of trustworthiness, more probative on point than any other evidence b. Analysis – blurts out/not in response to question, Amy unavailable based upon court determination, perhaps more probative than any other point c. Conclusion – Issue – Prior Identification a. Rule – must be on stand and subject to cross/identification after seeing someone b. Analysis – Amy clearly saw face, but not available to testify c. Conclusion – Issue – Lay opinion a. Rule b. Analysis – “Horrified” look, nod indicates yes c. Conclusion – Issue – Confrontation Clause a. Rule – firmly rooted, particularized guarantees of trustworthiness, catchall not firmly rooted, totality of circumstances at time statement made, EU is firmly rooted b. Analysis – court found Amy unavailable, circumstances indicate trustworthy (age, spontaneity) c. Conclusion – III. Relevance 10. Issue - Relevance a. Rule – tends to make fact of consequence more likely than w/out evidence b. Analysis – makes it more likely that Ryan was kidnapper c. Conclusion – Relevant 11. Issue – 404(b) a. Rule – Evidence of other bad acts not normally admissible to show action in conformity therewith, except when offered for a different purpose; identity (**this one word is worth 2 points**) b. Analysis – Sea Lion Café, midnight, three times, dumpster, homeless man c. Conclusion – Satisfies Rule 12. Issue - 403 a. Rule – Admissible unless probative value substantially outweighed by danger of unfair prejudice b. Analysis – very probative because suggests that Ryan was the kidnapper, very prejudicial because tells jury that Ryan uses cocaine c. Conclusion – comes in, limiting instruction/redaction IV. Privilege 13. Issue – Testimonial Privilege (name) a. Rule – Holder of privilege is testifying spouse, allows testifying spouse to refuse to testify if still married/allows testifying spouse to testify even though married b. Analysis – Married, Sara holds privilege so Ryan cannot stop her, Exception for joint participants in crime, so privilege doesn’t exist c. Conclusion – 14. Issue – Spousal Confidences Privilege (name) a. Rule – Both hold privilege/either can prevent other from testifying, privilege relates only to communications made during marriage b. Analysis – Kidnapping communicates made before marriage, Exception for joint participants in crime, so privilege doesn’t exist c. Conclusion – Fall 2000 Essay #1 I. Hearsay a. Issue b. Rule: out of court stmt offered to prove truth of matter asserted c. Analysis: thomas’ statement made out of court and now offered to prove truth d. Conclusion: it is hearsay e. Types: i. Prior inconsistent stmt: 1. Issue 2. Rule: subject to cross-examination, prior proceeding, inconsistent 3. Analysis: on stand answering questions, grand jury qualifdies as prior proceeding, feigned memory loss is inconsistent 4. Conclusion: comes in ii. Prior testimony: 1. Issue 2. Rule: unavailable, prior proceeding, subject to cross at tiome statement made 3. Analysis: memory loss sufficient for unavailability, grand jury is prior proceeding, not subject to cross at time made 4. Conclusion: does not come in iii. Past recollection recorded 1. Issue: 2. Conclusion: not enough facts to get in iv. Catchall: 1. Issue: some courts have used this to get around prior testimony restraints on grand jury testimony 2. Illigetimate because not equivalent guarantees of trustworthiness. v. Admissibility of Transcript: 1. Issue 2. Authentication/Business Record 3. Tom’s personal knowledge vi. Confrontation Clause 1. Issue 2. Conclusion: no problem because hearsay exception met. vii. Rule 403: conclusion – comes in Foundation: a. Issue b. Rule: must lay proper foundation for recording, facts say it was essentially done OR unclear whether completely done, must get testimony identifying voice on tape, need not be an expert, can listen tot ape at any time to identify, no minimum quantity of time to be familiar c. Analysis: Shari heard voice for 20 minutes, now recognizes voice on tape, alck of great familiarity goes to weight not admissibility d. Conclusion; testimony probably comes in Best Evidence: a. Issue b. Rule: must offer original when proving content or writing or recording, tape qualifies as a recording c. Analysis: not offering recording for its content but for the voice identification II. III. IV. V. d. Conclusion: comes in Prior Convictions\ a. Prior Drug possession conviction in 1988 i. Issue ii. Rule: if conviction is more than 10 years ago, then probative value must substantially outweigh danger of unfair prejudice to be admissible, relevant date is later of conviction or release, must give notice if want to use. iii. Analysis: probative value of drug possession low, even if released more recently than 10 yeas ago probatievf value must outweigh prejudice, the fact that he was convicted as a juvenile is irrelevant, he is tried as an adult. iv. Conclusion: does not come in. b. Prior Felony Larceny conviction in 1991: i. Issue ii. Rule: offered against a criminal D iii. Standrad is probative value must outweigh danger of unfair prejudice to come in, Gordan Factors iv. Analsysis: larceny is not a high probative crime, almost 10 years ago, very similar to charged offense, record not otherwise clean v. Conclusion: Reasonable c. Misdemeanor Forgery conviction in 1994 i. Issue ii. Rule: convictions against any witness involving crimes of dishonesty are admissible, need not be a felony, judge has no discretion to exclude under 403 iii. Analysis: forgery is a crime of dishonesty iv. Conclusion: comes in Juror as witness/Impeachment of Verdict a. Issue b. Rule: general rule is that juror testimony cannot be used to impeach a verdict, exceptions include extraneous prejudicial information, and improper outside influence c. Analysis: bias goes to deliberative process of jury, so neither exception applies d. Conclusion: not admissible, possible constitutional claim that civil rights denied, totally and constitutionally incompetent jury. FALL 2000 – ESSAY #2 A. Motion in Limine 1. Hearsay a. Issue b. Rule c. Analysis – out of court statement offered to prove truth of assertion d. Conclusion – hearsay 2. Admission by party opponent a. Issue b. Rule – anything said by party and offered against party is admission c. Analysis – G is a party and will be offered against him at trial d. Conclusion – admission e. Declaration against interest 3. Co-conspirator admission a. Isue b. Rule – must be during pendency of conspiracy c. Analysis – conspiracy over post-arrest d. Conclusion – inapplicable 4. Bruton/Propriety of Limiting Instruction a. Issue b. Rule – normally limiting instructions permitted, as long as admissible against one joint Ds c. Analysis i. Exception for confession of co-D under Bruton ii. Limiting instruction thus constitutionally inadequate iii. Confrontation clause violation of co-D does not testify d. Conclusion – not granted 5. Prosecutorial Options a. Issue, Options – sever trial, but inefficient; redact confession, but cannot change meaning or leave obvious gap; impanel separate juries, but inefficient; forgo use of confession, but loses strong evidence against G; hope G to take stand – but long shot B. Sara’s Observations 1. Sweating, stammering, looking guilty a. Issue b. Rel – issue c. Rule – tends to make fact of cons. more likely d. Analysis – one guilty of comr tends to have consciousness of guilt often manifests itself itself phys. e. Conclusion – relevant 2. hearsay a. issue b. rule – not a statement unless intended to be an assertion, close calls go in favor of not assertions c. analysis – sweating stammering and looking guilty not intended to be assertions d. conclusions – not hearsay 3. Lay opinion a. Issue b. Rule – lay testimony must be rationally on perception of witness, and helpful to clear understanding of testimony c. Analysis – lay people are rationally able to perceive sweating, stammering and looking guilty and such info is helpful to jury d. Conclusion – lay opinion admissible 4. Stuff on lawn a. Issue b. Relevance – issue c. Analysis – tends to show burglary taking place d. Conclusion – relevant 5. Failure to respond to S’s accusation a. Issuer b. Hearsay – issue – tacit/adoptive admission c. Rule – offered against party who manifests itself a believe in or adopts statement d. Elements – heard the statement, concerned something w/in knowledge, reasonable person would have responded if not true, BOP on offering party e. Rebuttal – did not hear or understand, lack of replay explained, speaker likely to be ignored, opposing party had BOP f. Analysis – heard statement and w/in knowledge, close call on whether reasonable person would have responded, no facts showing plausible rebuttal g. Conclusion - reasonable 6. Flight a. Relevant – issue b. Analysis – flight suggest consciousness of guilt, consciousness of guilt suggested guilt c. Conclusion – relevant d. Not hearsay b/c no assertion C. Krispy Kreme Statement 1. Leading Q a. Issue b. Rule – q’s that suggest answer c. A/C – question is leading, objection sustained 2. Relevance a. Issue b. Analysis – makes more likely that involved in burglary 3. Hearsay a. Issue b. Analysis – out of court statement offered to prove truth that burglary about to happen 4. Admission by party opponent against G a. Issue b. Rule – statement made by party, offered against that party c. A/C – G made statement, qualifies as admission, statement against interest 5. Co-conspirator statement against R a. Issue b. Rule – existence of conspiracy, declarant a conspirator, D a conspirator, during pendency of conspiracy, in furtherance of conspiracy, c. A – conspiracy exists, G is a conspirator, R is a conspirator, conspiracy ongoing, close call on whether in furtherance d. Conclusion – reasonable D. Impeachment of Amy 1. X-E on non-conviction misconduct a. Issue b. Rule – specific instances of misconduct may be probed if probative of truthfulness c. A – falsifaction of evidence probative of truthfulness d. Conclusion – proper X-E 2. Extrinsic evidence of falsification a. Issue b. Rule – extrinsic evidence of specific instances of misconduct not permitted c. A/C – must accept denied, not admissible, A may be later prosecuted for perjury 3. Reputation evidence a. Issue b. Rule – allowed to attack character for truthfulness w/ reputation evidence c. A/C – officer will be permitted to state A’s reputation as a liar 4. 404(b) a. issue b. rule – specific instances of conduct allowed if offered for purposes other that action in conformity therewith c. example – such as intent, motive, plan, design, etc d. A – might be used for one of these Spring 2000 Essay #1 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 SPRING 2000 – ESSAY #2 A. Relevance 1. issue 2. rule – makes fact in issue more/less likely 3. A – robbers more likely to wear disguise and carry fake guns than others, C wearing disguise and carrying fake gun, more likely that C robbing bank 4. Conclusion – comes in Hearsay 1. issue 2. rules – general, intent to assert something 3. A – issue is whether a statement, clothing not generally assertive, gun generally no assertive, presumption is non-assertive, bald, arguably assertive when conveying machismo, arguably assertive for toughness 4. C – not offered to prove truth of matter 403 1. issue 2. rule – substantially more prejudicial than probative 3. A – disguise in bank highly probative of intent to rob bank, gun in bank highly probative of intent to rob, while prejudicial, not unduly prejudicial 4. C – comes in B. Hearsay 1. Co-conspirator exception a. R/A – existence of conspiracy, B conspirator, C conspirator, during course, in furtherance b. C – need not be charged, meets exception, judge/jury division of labor 2. Admission by party opponent a. R/A – if can establish C’s voice, then his statements are admissible 3. State of mind exception a. R/A – statement of intent to rob, possible 3rd party Hillmon based on B’s statements Foundation 1. Voice ID a. Competency of operator, fidelity of equipment, absence of alterations, ID of voice, split on rigidity of test b. A – specialist, sophisticated equipment, unable to make voice ID b/c hadn’t heard, get someone else familiar w/ voice, can listen to tape at any time to ID 2. Distinctive Characteristics/Handwriting a. R – can be anything to tie person, can use HW expert to verify it was his, can’t use lay witness on HW unless familiar w/ before b. A – called “Honeybear” on tape, had letter in possession sighed “honeybear”, not hearsay b/c not offering to prove truth 3. General rule – must be authenticated, chain of custody – must have testimony on chain 4. Conditional relevancy – court could tell jury that if think it is him, then can use it as admission C. 1. Foundation – R able to ID B and C 2. Best evidence a. R – videotape is photo under rule, must have original to prove content of photo, original not req’d to is show not obtainable or lost b. A – test goes to content, videotape subject to rule, no showing of lost/unavailable c. C - fails 3. Hearsay a. R/A – while out of court, not offered to prove truth (verbal acts) 4. Character evidence a. Rule – general rule is specific instances of conduct no allowed to show actions in conformity, exception is when offered for other purposes, such as intent b. A – not offered to show character, but to show intent, Notice 5. 403 a. A – highly probative of intent, somewhat prejudicial b. C – comes in D. Marital Privilege 1. Testimonial privilege a. R – privilege operates to bar testimony, must be married at time of testimony, testifying spoure is holder of priv in fed court b. A – married at time, B holds priv c. C – B can decide to testify so not barred 2. Spousal Confidences privilege a. R – protects conversations while married, whether or not married at time of trial, as long as intended to be confidential, both spouses hold priv b. A – conversations thought to be confidential event though eavesdropping, probably married at time, absent exception, C can prevent testimony 3. Joint participation exception a. R – unclear if whether exists in fed court for testimonial, definitely exists for spousal b. C – rule destroys privilege