RELEVANCE

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					RELEVANCE

1.   Brooke Thompson did it. She had money problems that had worsened over the years.
     She had no real love for Leslie. Her gun disappeared. The way Leslie‘s body TWISTED
     after being shot. Kill two birds with one stone – get the money that was supposed to go
     to Leslie AND blame it on her low-life husband.

5.   These facets of the story are particularly relevant if the prosecution‘s theory of the case is
     that Joe meant to kill Brooke. Otherwise, the reaction at the boarding house hurts their
     case – Joe would have to be a pretty good actor to fake grief and shock so convincingly.
     The comments about 1751 Madison not being Leslie‘s home are consistent with this.

6.   The prosecution could argue that this is why Brooke was up waiting for Leslie, and thus
     why she witnessed the killing. If the defense wanted to suggest that Brooke was the
     actual killer, they could argue that when she saw the key, she knew that Leslie would
     have to ring the doorbell.

7.   This is relevant to the prosecution, because they can say that it shows that the shot came
     from the direction of the street and not the door. This sort of testimony is really close to
     expert testimony – the judge probably won‘t let it in.

8.   The direct evidence, here in the form of eyewitness identification, is only as strong as
     Brooke‘s credibility. Her story must be believable and consistent. You must believe that
     the lighting was sufficient. The strongest reason for accepting her account is that as
     Leslie‘s stepmother, and someone familiar with Joe and his car, she has sufficient
     knowledge to make a credible identification. These reasons are born of inferences drawn
     from circumstantial evidence that lead to a conclusion – the probative value of all
     evidence is ultimately circumstantial. That is why the law of evidence doesn‘t
     distinguish between direct and circumstantial evidence.

9)   This testimony would be relevant if it had a likelihood to alter the probabilities that Joe
     had stolen the gun. Defense could likely exclude on a 403 argument that the testimony
     was speculative and not reliable, there was no first-hand knowledge that Joe had stolen
     the gun and the little information available on the other 9 people in the shop that day.

     This should be STRUCK on a 403 Objection – Given the fact that the display hadn‘t been
     checked for two days, it‘s impossible to point the finger at Joe Mitchell. Chris isn‘t even
     sure what he saw – he only ‗thought he caught a glimpse‖ of Joe moving furtively away.
     This is DEFINITELY objectionable on 403 because it would confuse the issues for jury
     and it would unfairly prejudice them into believing Joe is the shooter. Although it seems
     to meet the extremely low logical relevancy standard set out by FRE 401, it is
     objectionable under 401 grounds because the prosecution‘s theory is that Joe used HIS
     gun and cleaned it – if that is true, having another .38 does not make the fact that Joe‘s
     the shooter ANY more probable than not.




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10)    Prosecution argument: makes it more likely that he went to the station voluntarily.
       Defense response: no proof that Slyviak followed his instructions; could have
       intimidated Joe.

11)    Jesse‘s attempts to borrow money are relevant in that they go to Ross‘s state of mind in
       that he knew she was in debt, therefore supplying her with a motive to have stolen the
       brooch. Alternate relevancy: if Plaintiffs are arguing that Kerry has framed Jesse,
       provides Kerry with the means.

12)    Leslie‘s fear of Joe is relevant to show her state of mind that he was a threat, which raises
       the probability that he was the killer. Probably will be excluded on hearsay grounds.


13. Consider the admissibility of the terms of the insurance policy that the Easterfields had on
the missing brooch and their understanding as to the disposition of the proceeds.

Mrs. Easterfield states that her understanding is that if she loses a piece of jewelry, she gets the
insurance money to do with as she pleases. If the theory of the case is that Mrs. E stole or hid the
brooch herself in order to get the insurance proceeds so she could pay off Geo. the tennis pro (or
even that she just wanted the money, I guess), this could be considered relevant. (See q. 220 for
more.)


14. Consider the relevance of such ―background facts‖ as Joe‘s service in the Marines, Ross‘ war
record, Leslie‘s schooling and employment history. Such facts would normally be admitted
simply to fill in the background of the story, though careful trial lawyers know how important
they may be to some jurors.

As for the service example, such testimony could be a way of introducing evidence of a witness‘
good character without necessarily opening the door to the introduction of evidence of the
individual‘s bad character. Some jurors might believe that a person who served in the armed
forces, particularly if he or she was decorated, is presumably an honorable person.

The fact that Leslie graduated from a prestigious prep school (if that is what is implied here) and
thus is of good character (?), or that working for a bank president proves she is trustworthy (?),
or even that her good life makes this a particularly tragic case, might make a jury want to convict
someone for her murder. This is a little more attenuated than the service example, but a similar
idea. Without saying ―Leslie is good,‖ you‘ve implied it, and elicited (sp?) the jurors sympathy.


15. Pros. argue the relevance of each of the pictures in the Mitchell file. Def. argue the
irrelevancy of each of the pictures. What fact does this evidence make more or less probable.
Why?

Pros.: Dead body on porch: Shows wound, shows position of the body, legitimate moral force
according to Wigmore and Burns. Corroborates BLT‘s testimony on the position of the body.



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Pros.: Close up of dead body: Moral force.

Response from defense on both dead body pictures: 403 issues – unduly prejudicial – these are
unnecessarily gory, and might make the jury want to punish someone and that someone could be
Joe (―inflame their passions‖). Not sure that it proves anything – would need expert testimony to
understand anything about the wound, the blood, the position of the body, etc.

Prosecution: Wide-angle view of house: Shows view from front porch is not obscured by trees,
bushes, etc. Shows sources of light. Shows sight line from curb to door. The prosecution might
argue that this photo shows that it was possible for BLT to see from the house to the car and
recognize Joe – nothing in the way, enough light coming from the house to illuminate him.

Defense response: The photo was taken at the wrong time of the year, so it doesn‘t really show
what the trees might have looked like (weak). Wrong time of day, so it doesn‘t show what the
light coming from the house really looked like, or how strong the outside lights are. Not raining
in the picture, either, so visibility isn‘t accurate. It doesn‘t indicate how far away the curb is, so
there could be more stuff in the way that isn‘t shown. Plus, it is a really crappy picture.

Pros.: Close up of porch: Shows details of how door opens, front door, steps, etc. – helps
visualize the scene. Corroborates BLT‘s testimony about how the door opens, etc. (Of course,
also shows that there really aren‘t ―steps‖ down, just one step down.)

Response from defense: Things have changed, including the storm door, planters, mats. Again,
doesn‘t show correct lighting or weather conditions. Not sure that it proves anything.


16. Argue the relevance of BLT‘s negative opinion of Joe if offered by the prosecution. Argue
the relevance if offered by the defense. Put aside for now the opinion‘s admissibility under 701.

For prosecution: This would depend on the theory of the case. If your theory is that he was trying
to kill Leslie, the arguable relevance is that it might show Joe is a bad person – it is character
evidence, and probably not permissible under 404(a). If your theory is that Joe was trying to kill
Brooke and missed, this is relevant if you can prove that Joe was aware of her negative opinion,
which is not to hard.

For defendant: This would be relevant to show BLT‘s bias and possible propensity to lie – bias is
always relevant for impeachment of a witness. Also relevant if your theory is that BLT did it and
tried to frame Joe.


Problem #17:
(1) Joe not stopping to say ―Hello‖: Joe Mitchell is a mystery writer – if he intended to kill
    Leslie that night, he would know that, as the estranged husband, he‘d be a prime suspect. He
    would need to set up an alibi. Calling out to Mrs. Porter at 9:40 would ensure that. By not




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    calling out to her, he was clearly not trying to set up an alibi which means he was not the
    killer.
(2) Brooke giving Leslie a ring: This is logically relevant only if the Defense‘s theory of the
    case is that Brooke shot Leslie. Under that theory, this become relevant because it shows that
    Brooke loved Leslie and would not kill her.

Problem #18:
(a) Joe‘s side: Irrelevant under rule 403 as prejudicial and misleading, although this argument is
    a long shot
    Prosecution: Goes to show Brooke Thompson‘s reasons for believing that Joe had been the
    one to shoot Leslie and her subsequent statement to the Police.

(b) Joe‘s side: Irrelevant because Joe admits that he was drinking, it has no tendency to make a
    fact in the case more or less probable than it would be without the evidence, thus not meeting
    the definition of relevant under rule 401, and therefore inadmissible under 402. Once again,
    a long shot.

   Prosecution: Relevant for a number of reasons. Joe has taken a shot at a person in the past
   after drinking. His blood alcohol level would show that he was very near intoxicated.
   Prosecution would argue that intoxication loosens inhibitions, and that a drunken Joe would
   be a Joe more likely to shoot his wife.

(c) Joe‘s side: This would be relevant only if the defense‘s theory of the case is that Brooke shot
    Leslie. Under that theory, this become relevant because it shows that Brooke had the means
    with which to kill Leslie, and not only the means, but the same caliber pistol as the one used
    in Leslie‘s murder. Moreover, its disappearance lends some credence to the theory because if
    she shot Leslie, Brooke would have a reason to make the gun ―disappear.‖

   Prosecution side: It may be relevant to give an alternative explanation for why Joe‘s gun was
   clean and didn‘t seem to have been fired. Joe knew where she kept it, and its disappearance
   shows that Joe stole it. However, the prosecution will likely argue that Brooke is not on trial
   here and that the evidence is inadmissible under rule 402.

(d) Joe‘s side: This would be relevant to support the defense‘s claim that because Brooke
    Thompson had seen Joe so many times at the same time and place, she had become
    accustomed to seeing Joe Mitchell there and therefore couldn‘t help but see ―Joe Mitchell‖
    there once she saw a white car approaching. In a sense, she had become conditioned to
    associate white cars with Joe Mitchell.

   Prosecution: Would argue that because Brooke had seen Joe so many times there, she knew
   how he would look and thus, would not be mistaken in her identification of him. She is
   familiar with the appearance of his car at night, and she has seen him in similar situations
   before.

Problem #19:




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As to the first count, for the plaintiff, this goes to show that Ross Easterfield knew of Kelly
Emerson‘s habit of eavesdropping on him and his wife, and therefore should have known that his
conversations with Mrs. Easterfield were potentially being published to somebody else. ―A
marital confidence is outside the privilege where the communicating party did not take
reasonable precautions to prevent it from being overheard or intercepted by a third party.‖ M&K
p. 501.
Plaintiff would argue irrelevance for the defendant‘s side based on the fact that just because Ross
Easterfield was harsh with Kelly Emerson once is not a significant precaution to prevent his
conversation from being overheard on July 17.

For the defendant, the fact that Mr. Easterfield was harsh with Kelly Emerson over this incident
may be used to show that he expected that she would not do it again, and therefore he took the
reasonable precaution from having his conversations with his wife overheard by third persons.
Defense would argue irrelevance for the Plaintiff‘s side based on the fact that Kelly Emerson
only eavesdropped once, and there‘s no evidence that this was a habit or that she ever did it
again. Thus, Ross was reasonable in believing that his conversation would not be overheard in
the library on July 17. ―Courts generally recognize a presumption that communications between
a husband and wife are confidential, and the party seeking disclosure has the burden of
overcoming the presumption.‖ M&K 460.

Problem #20:
This is relevant to the Plaintiff for showing Jesse MacIntyre‘s state of mind on the morning of
the 17th and to help explain her reactions to Ross Easterfield. The argument would definitely be
easier to introduce with a claim for assault, as it would explain Jesse‘s apprehension of an
offensive contact.

21.
       a. Ross one of the richest men in the city. While the specific amount of money Ross has is
       certainly relevant for damages, the mere fact that he is one of the richest men in the city
       seems to border on inadmissible character evidence. One might argue that because he is rich,
       he has a propensity to act in a certain way—but this is exactly the kind of evidence frowned
       upon by Rule 404. This evidence may be relevant if the proponent has presented evidence
       that other people (especially Lee Marlow) know of Ross‟s wealth. There seems to be some
       weight to the argument that if other people know how rich Ross is, then they will be more
       likely to defer to his wishes or commands. The proponent might then argue that Ross should
       have exercised greater care, since his statements about Jesse were likely to be heeded by
       others who knew of his wealth and power.

       b. Rumor that Ross is one of the richest men. Addressed above. All of this evidence
       becomes very tangential, and a judge might exclude under Rule 403 (unfair prejudice). As a
       good leftist, I am embarrassed about making this argument. Here it is anyway.


22.    Why not let both sides present the evidence they want to? Under such a system, there will be
       no guarantee that counsel will choose to present the most relevant evidence—only that they
       will present the most persuasive evidence. The two ought to be the same thing, but we‟re
       only human. Hence the rules of evidence. I doubt this one‟ll be on the test.


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23. Don‟t worry about this one.

24. Don‟t worry about this one either.

25. Brooke‘s racial attitudes are not relevant to the case. Her attitudes constitutes 404a character
    evidence and has no real material link to the case-nor does it have any logical relevance.
    Furthermore, its prejudicial effect substantially outweighs the probative value (403).
    Brooke‘s Racial Attitudes – NOT really relevant. Does not play a part in the theory of the
    case (whether it be that she‘s the shooter or she‘s FALSELY accusing Joe). The only way
    that would play a role is if Joe Mitchell was an African-American.
    Her Racial Attitudes might be used to IMPEACH character if she testifies on her direct that
    she‘s a warm friendly person who loves everybody.

26. This is not relevant and inadmissible under 404a character evidence. Its prejudicial effect
   substantially outweighs any probative value (it doesn‘t have any probative value) (403).

27. This is 404a character evidence, used to show action in conformity, and therefore is not
    admissible. It shows that she is a woman who is willing to take advantage of family in order
    to gain an advantage for herself and that she is greedy. Defense may want it to prove that she
    killed Leslie to get the money from the insurance policy and that she is a cruel heartless
    woman.

   But you can turn character evidence around and use this evidence to show that Brooke knows
   how to shoot a gun (knowledge, 404b) or that she is desperate for money (motive-404(b))

   Here, there is a legit inference (Brooke is desperate for money) and an illegitimate inference
   (that she is greedy)-so it must be balanced with 403 test (does prejudicial effect substantially
   outweigh probative value?)

28. It‘s relevant because it goes state of mind and to prove the fact that he is mad-and that goes
    to motive to kill (404b). The theory of admissibility is that because of the belief, there is a
    motive. The question is-does this belief that men should act in self defense against abusive
    wives, really point to a motive? Courts have admitted membership in clubs to prove a certain
    belief that may be material to a case. Defense would argue that this is prejudicial under 403.

29. Argue the relevance of Joe‟s barroom fight four years ago (p. 27).
        If offered to show that Joe was violent or dangerous, this would be inadmissible character
evidence to show action in conformity with character under Rule 404(a).
        Instead plaintiff would say that fact is show a modus operandi. In barroom, Joe was
drinking and then became violent. Thus, on the night of Leslie‘s murder, Joe was preparing to
act violently. Rule 104a issue if the barroom incident is comparable to the present case.
        Defendant would argue that the barroom is not comparable for a modus operandi.
Insufficient specificity and repetition.

30. Argue the relevance of Joe‟s shooting at the motorist (p. 28).



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        Offered to show the accuracy of Joe‘s shooting ability after drinking. This probative
value is outweighed by the prejudicial effect of the inference that Joe is a violent man under R
403. People already know that alcohol affects motor skills.

31. Argue the relevance of Mrs. Thompson‟s shooting in self-defense (p. 5-6).
        To show that Brooke is capable of firing a gun. Since Joe, the criminal defendant, is
offering the evidence the prejudicial effect under R 403 is not so great b/c Brooke will not be
convicted.

32. Argue the relevance of the letter Slyviak describes (p. 18). Consider R 104 issues.
       This is a question of specific fact of whether Joe actually read the rescinding letter
Conditional relevancy under Rule 104b. Must show that there is evidence sufficient to support a
finding that Joe read the letter. If Joe did read the letter would show that Joe‘s writing failure
contributed to his desperation and led him to murder Leslie.

33. Under 104(b), there definitely is a question of ―conditional relevancy‖ here. Jesse‘s claim
    that she was unaware Frank was going to rob the gas station makes Frank‘s prior criminal
    record CONDITIONALLY Relevant ONLY IF she KNEW about it before the attempted
    robbery. [She would be ‗on notice‘ and aware of the possibility, making her ignorance
    LESS LIKELY.]


37. State argues that the evidence is relevant b/c it is Joe‘s modus operandi (He is a wife killer
    same circumstances). Defense would say it‘s not distinctive enough. Rule 104(b) issue is
    whether Joe actually was responsible for the shooting. State can introduce evidence of a
    prior crime and doesn‘t have to prove he was responsible even under a preponderance of the
    evidence standard under Huddelston. Defense will argue there is not enough evidence to
    show Joe did it, and even if he did do it there is not enough modus operandi. It would be
    the same argument but without the Rule 104 issue. (modus operandi argument only).

38. Again, the state could use it as Joe‘s plan of making threats and following through on them
    and need not have a preponderance to show he was responsible. However, the Defense
    would argue it is inadmissible character evidence.

39. Joe, how do you get material for your stories?
        -The Shadow
    How often do you listen to the Shadow?
        -every Saturday night
    Legal relevance: Defense is attempting to establish that watching the show is Joe‘s habit
    under Rule 406. State will argue that it is not reflexive enough to be a habit b/c watching a
    television show requires some degree of planning. State will argue it is prior action in order
    to prove conformity therewith under 404.

40. Defense will argue that Jesse had a plan to conceal things behind things that had her name
    on it. May also try to prove this up by evidence of habit but is not likely. Plaintiff will




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    argue that it is impermissible character evidence, but again defense will probably succeed on
    the 404b argument.

41. It would be admissible to show habit. The objection of bringing it up through Kelly
    Emerson would be speculation/personal knowledge? Won‘t work because Kelly Emerson
    has personally witnessed these events and can testify to them. The Plaintiff may introduce
    the incident on 50-51 b/c Kelly E. was a witness and specific instances of habit may be used.

    Defense should object on the grounds that this is IMPROPER Character Evidence under
    404. Plaintiff is trying to get this in under FRE 406 – habit evidence. Defense could argue
    that the Plaintiff is trying to ‗back door‘ a showing of carelessness (character evidence)
    generally to show that Mrs. Easterfield AGAIN misplaced the jewelry.
    However, it seems that the Plaintiff SHOULD be able to get this in under FRE 406 by
    arguing that this is substantively an ACTION, not a characteristic. Under 406, there are no
    hard and fast criteria as to defining habit. However, there are 3 general criteria the courts
    may use to evaluate whether or not its a habit on a case-by-case basis: (1) the more specific
    the behavior, the better its chance of being habit; (2) Regularity – does NOT have to be
    absolutely invariable but the more regular the response, the higher its probative value and
    the more likely it will be found to be a habit; and (3) if the conduct is semi-automatic or
    unreflective behavior – i.e. habits that involve conduct engaged in without conscious
    thought—the greater the volition, the more difficult to quantify as habit.
              Under the first criterion, misplacing jewelry is NOT a specific behavior.
               However, if the habit is defined as NOT just misplacing the jewelry but also
               blaming the housestaff AND the jewelry showing up later, its characteristics
               under the first criterion are more compelling.
              The second criterion seems to apply because Mrs. Easterfield does misplace her
               jewelry frequently.
              The third criterion seems to apply because there is NO volition, or consciousness,
               to her action. In addition, if you expand the habit to ‗blaming the housestaff,‘ this
               seems to occur on a reflexive nature.

    Habit is USUALLY proved by prior specific instances of conduct so Kelly may recount the
    incident on p. 50 to help establish the pattern. However, there must be a large enough
    sample to determine whether a pattern of behavior exists. [NOTE: As drafted originally,
    could also prove habit by opinion evidence. This may still be the case today.]


42. Defense objects to character. Yet, this probably goes to habit and may be considered one.
    Problematic b/c Chris Ravenna only rode with him twice. On the other hand, the State may
    try to use 404(b) and say that Joe has the knowledge of how to be a fast/skillful driver and
    thus, the evidence is permissible. Defense will maintain it is improper character evidence
    under 404.

43. The letter is relevant to show that Ross Easterfield was on notice that Jesse was sensitive, so
    he should not have attacked her and accused her of theft. It shows he acted maliciously.




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      That bastard. The fact the Ross says he didn‘t receive it raises the issue of conditional
      relevancy.

44. No, Plaintiff may prove it was sent in the ordinary course of business by having the secretary
    testify that the regular procedure was followed.

49.      IRRELEVANT under FRE 408.
         FRE 408 is intended to encourage the resolution OUTSIDE of court so as to reduce
         unnecessary court congestion, delay and costs – 408 furthers this strong social policy by
         making such offers INADMISSIBLE for purposes of liability or damages.
         Under 408, evidence of offers to settle (or REFUSAL to settle) are NOT admissible to
         prove liability for the claim. The only way it IS admissible is to show:
                  bias or prejudice of witness
                  negativizing a contention of undue delay
                  proving an effort to obstruct a criminal investigation or prosecution
In general, facts surrounding offers (or the lackthereof) of settlement are not admissible at trial. see Fre 408. In this
situation, plaintiff is probably trying to offer the lack of an offer to settle as relevant to show the Easterfield‘s
continuing malice towards Jessie. Such a use is not allowed under 408, since showing malice goes directly to the
establishment of one of the plaintiff‘s claims. The Easterfield‘s could be just out for justice, rather than trying to
hurt Jessie, so it is unlikely that there is any real probative value to their lack of an offer. The problem is interesting,
though, because it is the absence of an offer to settle that is in issue; 408‘s language addresses only actual offers to
settle, not their absence. In some ways, allowing the plaintiff to offer such evidence would further the goal of 408,
which was to encourage parties to at least talk about settling without fear of negative consequences. If the plaintiff
could offer this type of evidence, then defendants everywhere would probably start making at least a token offer of
settlement in all their cases. Such a use, though, strikes me as a scare-tactic, and would be fundamentally unfair to
defendants.


50. This one looks simple, which makes me nervous. Someone should let me know if I‘m missing something, but it
seems that because Jessie‘s guilty plea was never withdrawn it is not excluded under 410. That‘s it... although Jessie
could have made an argument that her plea should have been withdrawn because her counsel was incompetent. But
she didn‘t, and that‘s her problem.


51. Under 411, proof of Brooke‘s having a policy out on Leslie could be admitted, although it might in some ways
depend on the defense theory of the case. The presence of the policy cannot be offered to show negligence or
wrongdoing. If the defense is trying to show that Brooke had a motive in the form of this insurance policy to kill
Leslie, it seems that they are attempting to show wrongdoing on her part, so it might not be admissible. However, in
the larger scheme of things it is probably (even under the Brooke did it theory) being offered to show Brooke‘s bias
in the outcome of the case; if Joe is found guilty for a killing she did, she gets away with the 600,000 scott-free. For
that limited purpose (showing bias or prejudice) evidence of the insurance policy is admissible.




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         For the Easterfield part of the question, the presence of the insurance policy is inadmissible, since its only
relevance would be to say that because they didn‘t have the intentional tort homeowner‘s insurance, they were less
likely to have intentionally torted Jessie through defamation. 411 does not allow this use.


52. It is permissible to reveal the insurance policy on cross, since it would be offered not to establish liability but to
impeach a witness (Pirro). Here, the idea is that Mr. Easterfield would have been less careful about what he said to
Winsor on the phone if he had the insurance policy, so it‘s less likely that Easterfield would have made the
statements found on the Winsor statement to Pirro (which are not defamatory). This would support the contention
that Winsor hadn‘t really read over the statements and agreed with them, since they are supposedly less likely to
have been accurate now that we know that Easterfield had the insurance policy, thus impeaching Pirro‘s testimony
that Winsor had read over the statements carefully. This is pretty weak, in my opinion.. .

53.      This one is definitely going to be on the final. So rather than taking personal
         responsibility for messing you all up, I’ll offer two different answers that I’ve found
         from past students:

                                                  The first answer:

 In what way does Rule 412 treat “character-type” evidence differently than do Rules 404
                                            and 405?
Burns is looking for how they differ with regard to legitimate purposes, method/ means by which
prior evidence is offered, standards.

Methods
 Under R404(a)(2) – a criminal defendant (and prosecution to rebut) can offer evidence of
   pertinent trait of character of victim. Under R412, sexual conduct of the victim is
   inadmissible.
 In 404 and 405, character can only be proved by reputation or opinion, not by specific acts.
   Under R412, there is an absolute prohibition on reputation or opinion.

Standards;
 R412 is a codified R403-type objection. Does not leave it up to judge and 403 ruling, rather
   codified. Prior contact with defendant is admissible b/c goes to consent. Prior contact with
   others is inadmissible. If they have very little probative value than the rule makes sense (and
   if no logical relevancy there‘s no problem) a more powerful justification is R403 – the jury
   will be tempted to believe that ―that kind of woman‖ doesn‘t‘ deserve protection of the law.
   You can‘t trust juries to provide to victims of sexual assault the type of protection they‘re
   entitled to.
 Maybe it is not like 405, 404, but like 407, 411 – Extrinsic policy. Not quite a general
   relevancy 404 (not for more specific fact-finding); not quite like 407 – unrelated to jury.
   (this is from my notes, I need to sort out what the hell it means exactly)

Legitimate Purposes:
 Rape is grossly unreported and unrecorded. Particularly because the fear of cross-
   examination. 412 attempts to increase the amount of reporting so prosecutions go up, and
   deterrence increases. Attempt to have the number of prosecutions equal or come close to the


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    number of rapes that occur. 412 enhance accuracy of entire system by increasing the
    number of prosecutions sacrificing accuracy of fact-finding in one particular case. In some
    subset of cases. Political systemic justification that recognizes that truth in system in whole
    needs to sacrifice truth in an individual case.
In sex offense cases, evidence of the victim‘s prior sexual conduct is usually a collateral issue
used to confuse the jury.

Is one approach superior to the other for all cases where a defendant offers to present
evidence of a victim’s character or past behavior?
There is a Constitutional argument against R412‘s prohibition on reputation evidence because
unfair to accused if he relied on reputation (especially in sexual assault to explain why advances
were made). Probably better to exclude all than include all considering the strength of the policy
justification compared to the relative value of introducing a victim‘s character in other cases.

What is there about sex offense cases that justifies a different approach? (see legitimate
purposes above)

The Second Answer:

   One of the most notable distinctions between the way character evidence is treated in
    404/405 versus 412 is the relative preference under 412 for specific acts as opposed to the
    relative preference in 404 for reputation --- they are exact opposites on this point. 404 and
    405 work to put strict limits on when the specific instances of conduct can be admitted,
    probably b‘c of danger of inferences being drawn which were not really substantiate by that
    particular instance of conduct. 412, however, essentially allows no reputation evidence and
    instead, where any character-type evidence is allowed, it can only be in the form of specific
    instances. In criminal trials, the no reputation or opinion evidence is apparent from the ban
    on proof of victim‘s sexual behavior and the ban on the proof of sexual predisposition, and
    the only exceptions to that are references to prior acts. Pre-disposition includes mode of
    dress, speech or life-style.
   Neither approach seems superior for all cases wherein a defendant tries to offer character
    evidence of the victim. One issue against the strictness of 412 is that rape cases are ones
    where the character/ reputation of the victim may in fact be uniquely relevant, more so than
    in virtually any other area, and yet this is the area where it is most limited. Obviously the
    policy issues of promoting the reporting incidents of rape have been deemed more
    substantial. However, for fear of allowing too strong of an inference to be drawn from a
    specific act, 404/405 would rather allow a witness to summarize their conclusion of what the
    specific acts mean than to allow the same witness to tell what specific acts they are drawing
    upon to make that conclusion. Because there is no way to ensure that the jury does not give
    undue weight to either specific acts or reputation evidence, there is no way that a rule
    choosing one over the other could be superior in all cases.
   Also w/ 412 - there has to be prior notice given before this evidence can be admitted & a
    written offer of proof.
   The exclusion of evidence can result in the false conviction of some defendants b‘c of the
    possible highly probative evidence which might be excluded – essentially in violation of the
    defendant‘s due process rights


                                                 11
   Sometimes the victim‘s sexual predisposition may be so highly probative on the issue of
    consent that it violates the defendant‘s constitutional rights not to be able to mention it.
   Sometimes also the reputation evidence of the victim may be the best available evidence of
    how the victim behaved during the alleged rape.

The Third Answer, compliments of Vagnucci:
FRE 412 vs. 404/405
        Tell me ways in which FRE 412 treats character-type evidence differently than FRE
         404 & 405? (Different in 3 ways: (1) evidence; (2) means; and (3) standard.)
         See 9/21 notes
Why is past behavior, per se, excluded under 404? Past behavior is thought to be one of the best
predictors of future behavior and is often used in social and business relationships. However,
under FRE, it is purposefully excluded because it is not ALWAYS accurate predictor. However,
the jury would weigh such past actions TOO HEAVILY and prejudge the accused with the prior
history, NOT giving him a chance to defend against THAT particular charge.
Furthermore, bringing in evidence of PRIOR CONDUCT will divert the jury‘s attention on what
he‘s accused of NOW, forcing him to defend himself regarding all those prior acts and risking a
conviction based on the PRIOR acts and not current ones.
FRE 412 was enacted because evidence of sexual history of a rape complainant has LITTLE IF
ANY probative value in proving CONSENT on the occasion in question. The existence of prior
acts/occurrence/reputation only serves to DIVERT Jury‘s attention from the facts of the charged
incident. Furthermore, evidence of sexual history can be used to harass and embarrass victims,
making them less likely to report or prosecute the sexual offense. FRE 412 seeks to encourage
greater reporting of sex offenses by eliminating the humiliation that rape victims suffered PRIOR
to 412‘s passage.
Another major difference is that 412 has an ABSOLUTE PROHIBITION against use of
reputation or opinion evidence on the past sexual behavior of an alleged victim because these
methods of proof are viewed as LEAST reliable and MOST subject to abuse.
         Note: Some courts have found this to be of questionable constitutionality because the D
         claims that his state of mind was critical in determining whether he thought consent was
         given – therefore, her reputation plays a role in whether he thought consent was given.
THREE Exceptions where Evidence of Prior Sexual Conduct MAY be admitted:
(1) Evidence of prior sexual acts with OTHER people, Offered by Accused, to show that he was
    NOT the source of semen.
(2) When CONSENT is at issue, Evidence of prior sexual behavior between Complainant and
    Accused on issue of WHETHER the victim consented to sexual behavior [NOTE: There is
    no standard for establishing HOW close in time the prior consent must be to charged
    offense.]
(3) CONSTITUTIONALLY compelled evidence in three areas:
    (i)      guaranteeing confrontation
    (ii)     compulsory process
    (iii) due process
             412 vs. 404/405
  412(a) imposes ABSOLUTE Prohibition on use of reputation or opinion evidence on past
                   sexual behavior b/c least reliable and most subject to abuse.




                                                12
          Under 405(a), ONLY reputation and opinion evidence is permissible on direct.
                             Specific instances CAN be brought in on cross.
412 only allows 3 instances where prior sexual conduct can be used and in each case, it is in
reference to prior intereactions with the accused only.
       404 allows multiple ways of bringing in character evidence (under 404(b)) and there is
       no limitation that the prior incidents relate to the accused.

54.    No material fact is really made more or less probable here. The defendant will argue
       that: Because of evidence, it‘s less probable that the bullet came from Joe‘s gun. It
       really only shows the inconclusiveness because there‘s no match between Joe‘s gun and
       the bullet. The Plaintiff will argue that because Joe owns a Smith and Wesson, the
       evidence makes it more likely that he shot Leslie. The Defendant then makes a 403
       objection that the evidence‘s probative value is outweighed by the prejudicial effects of
       the evidence. Burns seems to think that the trend is to not allow statistical evidence.

55.    Again, the skid mark tests do make it more likely that Joe‘s car was there, but the 403
       objection is that the probative value is far outweighed by the evidence. (see 54)

56.     Basically, the objection to all of these is a 403 objection. Each different fact tweak
       makes the evidence more or less probative. I don‘t think there‘s ever an objection here
       that Sanguin‘s testimony isn‘t relevant. Burns says that general statistical information
       (which somehow differs from statistical evidence) is usually admissible, even if it doesn‘t
       have much weight. I‘ll comment on what I think the probative value of each situation is,
       but bear in mind that there‘s a reasonable 403 objection to all of them: (1) Sanguin‘s
       testimony is relevant, because it makes it more likely that the blood on the fire escape
       was Joe‘s. (2a) Sanguin‘s testimony is now much less probative. (2bi) Even less
       probative than 2a. (2bii) More probative than 2a or 2bi. (c) less probative than 2bi. (d)
       Still probative, but much less so than without this fact. So you get the picture. It just
       depends on whether the court thinks the prejudice outweighs the probative value.

WRITINGS AND EXHIBITS

57.    Relevance of pictures – Gives jury a better understanding of where events took place,
       shows wealth of defendant for punitive damages (Subject to a weak 403 objection)
       Authenticity of pictures – Any number of witnesses can testify that the pictures are
       accurate.

       Photograph #1 to show the wealth of the Defendant; since punitive damages are
       permitted in a defamation case, Mr. Easterfield‘s wealth is relevant.
       Defense will object on 403 grounds because it‘s highly prejudicial and the wealth,
       especially regarding the house, can be established in other ways (through the testimony of
       Mr. Easterfield and Jesse).
              Plaintiff can respond that they can show/prove any aspect of the case in any way
              they see fit. Therefore, even if the Defense CONCEDES the issue of wealth (and
              size of the house), the Plaintiff still can show the photo.




                                               13
       Photograph #2 (dining room) is relevant to show the setting of the incident on the
       morning in question. Plaintiff could argue that the photo would assist both Jesse and
       Kelly in explaining their testimony.
       Defense will argue that this photo is irrelevant since the diagram would be more helpful
       in describing locations and assisting testimony. Defense would argue that this is just a
       back door attempt to again show the wealth of the defendant.
               Plaintiff could still respond that they can show any aspect of the case in the way
               in which they choose.
       Photograph #3 (library) is relevant to show the setting of the incident on the morning in
       question. It could also help the witnesses point out the relative locations of the plaintiff
       and defendant.
       SAME Arguments as Picture #2 – both pro and con.

60. State will show it sets the scene for where the crime took place and lays the foundation. The
    defense will claim that it is inadmissible b/c it is not a fair and accurate depiction of the
    scene. (doesn‘t show bushes/ things that would hinder visibility which is an issue). Probably
    will come in as an illustrative aid.

61. The defense will argue that it will confuse the jury under 403 and is not a fair and accurate
    representation of the distance between things, which is at issue in the case. We don‘t even
    know if the distances are accurate. Who created this map? State may say Slyviak could lay
    the foundation by odometer reading 901(b)(9) and that is how they got the distances.

63. Real Evidence: Argue the admissibility of the textbook, Modern Physics by Henry P.
MacIntyre (p. 52).
       Since Kelly Emerson can testify to description of the book, the book‘s relevancy is to
corroborate her testimony.


64. The theater ticket is relevant because it shows that Joe had been to the movie theater that
    night at 7:30. Authenticate by calling Quinn or someone else from theater to say that it is
    really a ticket from the Palace Theater. There is no best evidence problem because it‘s not a
    document.. May need to use chain of custody to show how it got to court.

65. The bullet recovered by Slyviak is admissible because, based on a 104 standard, it is
    probable that this is the bullet used to kill Leslie.
    Since this is ‗real evidence,‘(likely played actual role in incident in question) it must be
    authenticated by showing that the object is the one that was involved. The ―Chain of
    Custody‖ must be shown – indicating each person who handled the item and what they did
    with it.

   Admissibility of bullet, Mitchell. Real evidence doesn‟t always have an obvious relevance, but it
   tends to corroborate other evidence. Here, when the bullet is offered for itself and not as an
   object that has been tested by the crime lab, it adds a degree of persuasiveness to the
   prosecution‟s case.




                                                  14
      To be admitted, the bullet must be authenticated. Slyviak can testify to finding the bullet, placing
      his mark on the bullet, etc., and he can attest that this bullet is the same one he found. If the
      bullet is admitted for some forensic purpose, then the prosecution must establish a chain of
      custody for the bullet. The purpose of establishing a chain of custody is to show that the real
      evidence is authentic (it is what it is purported to be), which includes showing that the bullet has
      not been altered.


Problem #66:
As long as it is relevant, the Nita Transit Authority Bus Schedule is admissible as a self-
authenticating document under rule 902(5).

67. Admissibility of the St. James Parish Schedule of Services

Contents of Writings/Best evidence: I‘m assuming that this a xerox of the original schedule or a
printout from a computer file of the schedule. If it is a xerox, it would be considered a
―duplicate‖ under 1001(4) (a counterpart produced from the same impression by mechanical
means), which is admissible under 1003, which allows admissions of duplicates on the same
basis as an original. A printout of a document saved on a computer is an ―original‖ for the
purpose of rule 1002 by the definition in 1001(3).

Authenticity: I think this is an acknowledged document under 902(8) because it is certified by
Rev. Taylor, who is probably an officer ―authorized‖ to acknowledge – note seal on the back. In
addition, he can give testimony as someone with knowledge under 901(b)(1).

Relevance: I think that probably only the plaintiff would have any interest in this, for showing
that Jesse was in a hurry. Whoever can come up with a creative and reasonable use for this for
the defendant deserves the bonus points.

Hearsay: Exception under 803(6) for records of regularly conducted activities. Also, you could
argue that it isn‘t for the truth, but for Jesse‘s belief that there was a service at 10:30.

68)       The certified crime report is self-authenticating because it is a public record under seal –
          certified copy of a public document. However it is hearsay. The complicated issue is
          that it depends on who is offering this document in a criminal case – the prosecution or
          the defense. If the prosecution is offering it, it will be excluded under hearsay rule
          803(8)(b), which excepts out criminal cases. However, if the defense offers it, 803(8)(c)
          provides an exception for defense only to allow at least part of it in. Typically, the
          prosecution would call all of the lab technicians separately to get each of their portion of
          the report admitted. 803(6) records of regularly conducted activity may be worth a shot
          but is probably not going to work because most courts hold that in criminal cases, 803(8)
          trumps it (depends on the jurisdiction).




                                                     15
69.    The Coroner‘s Report is admissible because it is a public record under 803(8). It is self-
       authenticating because it is a certified copy – its under seal (902(4)). It is relevant to
       show that Jesse is dead and the gunshot was the cause of her death.

72.    The ABC Employment Agency record is admissible under 803(6) – the business records
       exception. Reeve Winsor has to lay foundation. It is relevant, because the plaintiff can
       argue that it shows that Easterfield defamed Jesse. Defense might try a 403 objection,
       saying that the cryptic nature of the notes make it impossible to determine precisely what
       was said, but that the jury will probably see ―theft‖ and ―employee let go‖ and jump to
       the plaintiff‘s conclusion. The defense can also argue that this isn‘t the best evidence:
       where are the original notes? Plaintiff can respond that the notes were thrown away or
       destroyed, and that the record is admissible under 1004(1). This is a non-collateral
       matter, so a 1004(4) would not work.

73)    Easterfield‘s desk calendar notes could be admissible if you lay foundation under 803(6),
       records of regularly conducted activity. Defense would have to argue that in the course
       of his regularly conducted business activity he keeps notes on how he runs his household
       as well. Most judges during the mock trials allowed these in as probative of the fact that
       he at least attempted to mitigate Jesse‘s damages. However, Burns in class recommended
       803(5) recorded recollection. Have to lay foundation that once the witness remembered
       the document, it was usual for him to have done so. May not be able to admit it into
       evidence, even though you can have Ross read it on the stand.

       The Desk Calendar Notes can be authenticated by Mr. Easterfield himself. On direct, he
       can say that the document is what its claimed to be and that the notes are in his
       handwriting.

74. Admissibility of the letter from Reverend Taylor to Ross Easterfield.

For the defense: The defense might introduce this evidence in order to show that even Rev.
Taylor, Jesse‘s friend and ―sponsor‖ (in a sense) believes that she is very sensitive, in order to
support an argument that Jesse reacted the way she did to Ross‘ questions because she is
hypersensitive. That would be argument for relevancy.

Contents of Writings/Best evidence: A printout of a document saved on a computer is an
―original‖ for the purpose of rule 1002 by the definition in 1001(3). Therefore, the original is not
required.

Authentication: Rev. can testify that this is the letter that he wrote (901(b)(1)). There won‘t be
signature at the bottom because it is the printout, not the one he sent, so that won‘t work. The
fact that the letter reveals a familiarity with Jesse‘s personality and her work at the Easterfields
also supports the fact that it is from Rev. Taylor, although that is probably not necessary, because
he is likely to agree that he wrote it (901(b)(4) – distinctive characteristics). Whether or not Ross
received it is immaterial – the relevance is based on the fact that he wrote it.




                                                 16
Hearsay: In our case, Alex laid a foundation for an exception under the business activities
exception, 803(6). He asked the rev. about the work he was doing with the St. James home, the
supervision and assistance the program provides for parolees, the ―zero recidivism rate‖ that the
program boasts, etc. all as support for the concept that Rev. Taylor regularly monitors the women
he places, follows up, etc., and that the letter was part of this process. It worked for us, but I‘m
still a little skeptical.

Plaintiff – I think that the plaintiff would introduce this in order to show either that Ross E. was
on notice that Jesse was very sensitive, and therefore behaved badly with her, and/or that when
he saw Rev. Taylor at church and told him about this great idea he had about giving Jesse
positive reinforcement, he was being untruthful, by taking credit for someone else‘s idea. (Is this
what it would be offered for? This is a little tenuous.) Let‘s take it for granted for the moment
that it is relevant.

Best evidence would be the same. Rev. Easterfield can also identify it as a letter he wrote. As for
proving that Ross received the letter, I don‘t have any notes from the class discussion on this
(9/21), but my recollection is this: if you can lay a foundation that there was a process in the
office whereby a letter placed in the out box would be picked up by the secretary and put in the
mail, there is a presumption that it was received by the addressee. Ross can deny this, but I think
this goes to the weight of the evidence, and is a matter of fact for the jury to determine.

Hearsay: In this case, it is not for the truth (that Jesse is oversensitive), but for the fact that Ross
was on notice of this fact.


Problem #75:
Brooke has seen Joe sign his name before, so she has knowledge and can identify his
handwriting and authenticate it under 901(b)(2)
The Best evidence rule is met because it is the original letter
Any Hearsay problems may be avoided because
      a. not statements, but threats,
      b. the go to Joe‘s state of mind, and the things stated therein are
      c. party admissions

Under rule 1002, it appears that prosecution may not ask Brooke what was said in the letter,
unless it is admissible under rule 1004(1) and (2), if it is lost or destroyed, or otherwise not
available. ―Before other evidence of content may be received under FRE 1004, not only must
there be a showing of unavailability of the original, but the proponent must offer evidence
sufficient to support a finding that the original once existed.‖ M&K 1221. Of course, Brooke is
allowed to tell what was in the letter only to the same extent as the letter did, and the letter must
itself be authenticated.


76. Admissibility of the copy of the Wilson Studios letter.

        (1) The copy itself.



                                                   17
               a. Best evidence: no problem here because the letter was not lost in bad faith (Rule
               1004) and there is no question as to the authenticity of the original (Rule 1003).
               b. Authenticity: this letter might be self-authenticating (Rule 902(9)—commercial
               paper), or the prosecution can just call someone from Wilson Studios as a witness to
               attest to the letter‟s authenticity).
               c. Hearsay: falls under business records exception. Also, the letter has a non-hearsay
               relevance (assuming Joe saw it).
               d. Logical relevance: this is more problematic. The letter is conditionally relevant
               (Rule 104(b)) on a showing that Joe actually read the thing. It‟s unlikely that the
               prosecution would be able to prove that, but here‟s another idea: the letter supports
               Brooke Thompson in her opinion that Joe was a low-down worthless human who
               wasn‟t much of a writer. That‟s how I got it in at trial.


       (2) Can the prosecution simply ask Slyviak to testify as to contents? Yes, notwithstanding
       hearsay and relevance problems. Once the original of a document is lost, any form of
       secondary evidence is admissible to prove the contents of the document.


77. This letter would probably never be admitted because there is no way to authenticate it.
    Brave souls can try to authenticate it using 901(b)(4)-distinctive characteristics and the like
    in conjunction with circumstances. One could theoretically say that what was said in the note
    is something that Jesse would tell Rev. Taylor and that based on the circumstances and the
    timing of the receipt of the letter, it is probably that Jesse wrote it.

78. Letter, Ads, Etc.: Argue the admissibility of the anonymous letter to the Police Department
described by Officer Slyviak (p. 18, 25).
         Authentication: Use 901(b)(4) for the letter‘s distinctive characteristics. The reference in
the letter and the circumstances as to how it was received could only have been written by
someone with knowledge. Most judges will be sympathetic to this type of evidence when
offered by the criminal defendant.
         Hearsay: Could be hearsay exception when the declarant is unavailable: R 804(b)(3)
statement against penal interest.
         Best evidence: no problem, Slyviak has the original.



RULINGS ON EVIDENCE

80.    The attorney made a non-specific objection, so there‘s nothing to appeal. The attorney
       should have stated the basis for his objection after the judge‘s ruling, for the record. Rule
       103(a)(1).

81.     A party must respond promptly to the erroneous admission or exclusion of evidence
       during a trial. Therefore, the party must OBJECT to the improper inclusion of evidence
       OR the party must make a TIMELY OFFER of proof in the face of erroneous exclusion



                                                  18
         of evidence. Otherwise, the party will waive it‘s right to complain about the error on
         appeal.
         [NOTE: the reason to require offers of proof is to let the trial judge evaluate his decision
         in light of the actual evidence to be offered AND to help the reviewing court decide
         whether exclusion affected the substantial rights of the offering party.]
         Since evidence is being EXCLUDED erroneously in this case, Defense Counsel must
         IMMEDIATELY offer proof as to the nature or content of the evidence and why it is
         relevant. This proof must be sufficient because, on appeal, the question as to whether the
         trial judge erred in refusing an offer of proof is based SOLELY on the sufficiency of the
         offer (in light of the ground of admissibility and the purpose stated AT THE TRIAL, not
         referencing anything advanced for the first time on appeal).

         Plain Error Exception: The only exception to this rule is if the appellate court
         concludes that the error was ―PLAIN‖ – in those instances, it may treat such an error as
         grounds for a new trial EVEN IF there was no objection or offer of proof.
                       Under Rule 103(d), the standard for plain error is: ―nothing in this rule
                        precludes taking notice of plain errors affecting substantial rights although
                        they were not brought to the attention of the court.‖
                       Generally, courts are MORE willing to find Plain Error in criminal cases –
                        especially if it involves Constitutional Rights – UNLESS the prosecution
                        ‗beyond a reasonable doubt‘ that this error did NOT affect the verdict.
In order to preserve the error, the defense counsel needs to make an offer of proof which will establish the nature or
content of the evidence and describe its purpose and why it is relevant. These things need to be established with
some degree of accuracy so that the court can have a good basis on which to make its ruling, but during cross
examination lawyers are given more leeway since cross is inherently exploratory.


83. There is no new trial if it was harmless error b/c of waiver; i.e. the evidence has already been
    admitted. We could only get reversal for plain error, which would have changed the
    outcome in the case even though there was no objection.

84. The problem is that the Defense put on rebuttal evidence, so court has to determine if the
    defense used this evidence in their main case. The court will look to the cross-examination
    and determine if the evidence admitted was harmless error (if the defense won this point
    then it is harmless error). *******

86. Answer: The proponent identified the wrong basis for the introduction of evidence. The
appellate court is likely to affirm the exclusion of the evidence because the trial court should
have had first chance to consider any evidentiary basis.

87. Because there was a proper reason for the objection to be overruled, the appellate court can
       affirm the trial court ruling, even though the trial court had given its ruling because of a
       wrong reason

88.       Here, the error is unlikely to affect a substantial right. Therefore, there are no grounds for
         appeal under Rule 103(a). However, assuming that the error did affect a substantial right, in



                                                          19
        order to preserve the issue for appeal Jesse‟s lawyers must make an offer of proof under
        Rule 103(a)(2). That is, Jesse‟s lawyers would have to make the substance of the evidence,
        that Kelly had found the brooch, known to the court (because it might not be apparent from
        the context).

        Under Rule 103(a)(1), the party raising an objection (here, the defendant) must make that
        objection in a timely manner and must state the correct grounds for the exclusion of the
        evidence. In this problem the defendant failed to state the correct grounds for exclusion. If
        the court had incorrectly ruled in favor of the plaintiff, the defendant might have no issue
        for appeal even if the error caused significant harm. However, the grounds for the objection
        might in this case be obvious from the context (even though counsel screwed up), so the
        fact that the defendant stated the wrong grounds for exclusion might not matter at all.


Problem #89:
If they fail to object during trial, the ability to urge error on appeal is lost in the majority of the
jurisdictions.

Courts are split on the question whether the position taken in pretrial motion preserved claims of
error. Some say the objection must be renewed at trial; some say otherwise M&K p. 16 –FN11).
The larger number of cases hold that the objection must be renewed (p. 9) because the motions
are ruled on in a removed, hypothetical setting and therefore, they are subject to change as the
trial unfolds.
Generally, a pretrial ruling is considered only tentative in nature. This means that usually, no
appeal can be had from such rulings. Therefore, the party who obtained the pretrial ruling that
excluded evidence must renew the objection at the trial if the other party offers the evidence.


90. Jesse‘s lawyer objects to the introduction of her criminal conviction to impeach her under
Rule 609. His objections are overruled. In closing argument, he argues extensively that
Easterfield‘s accusations were especially cruel given Jesse‘s previous conviction and
incarceration, justifying a higher award of punitive damages. Assume that the use of the
conviction to impeach would be reversible error. May the plaintiff urge that error on appeal?

Probably not. By absorbing the conviction into the case, and using it to ask for higher damages,
you have probably waived the objection.


91)     Jesse can still urge error on appeal because the evidence of her innocence is offered to
        contradict/rebut the defendent's use of her conviction to impeach. If she would've
        incorporated her conviction into her case-in-chief, (as in #91) then she would've waived
        her ability to object on appeal. Asking for a limiting instruction under 105 (insuring the
        evidence is not used to show a propensity to steal but only impeaching her truthfulness
        under 609) can help preserve the objection and give more leeway to urging error on
        appeal.




                                                   20
92.    No. This is being offered to show Jesse‘s propensity for honesty, and is inadmissible
       under 404(a). The court will perceive this as ―sandbagging‖ – failing to object in order to
       justify the presentation of your own inadmissible evidence. The court will say ―You
       should have objected when you had the chance.‖

IMPEACHMENT

96.    The judge will need to make a 104 determination whether the fact that Mrs. Easterfield
       had a Bloody Mary makes it more likely that she acted with poor judgment. Kelly
       probably won‘t be allowed to give this testimony, because Mrs. Easterfield will not take
       the stand. You can‘t impeach the credibility of the testimony of a witness who doesn‘t
       testify.

97.    Yes. Assuming that the plaintiff is able to establish that the drink is relevant, perhaps that
       it affected Mrs. Easterfield‘s perception of the time it took Jesse to look for the brooch,
       then this is a non-collateral issue. Kelly‘s testimony is extrinsic evidence, but because
       Mrs. Easterfield‘s perception/memory of the event is a non-collateral issue, it is
       admissible.

98)     Calling Kerry "Isadore" shows Jesse's poor memory, and her reaction to Taylor's
       question casts doubt on her perception. Memory and perception are both non-collateral
       matters and can be impeached with extrinsic evidence such as Taylor's testimony. Jesse
       can spin this to her advantage, using it to show how much of a negative effect Mr. E had
       on her.

99)     Joe's rent lapse shows bias by Porter in favor of Joe and is admissible as non-collateral
       impeachment evidence. Using this evidence to impeach does not carry much weight so a
       light touch should be used to avoid giving the jury the impression that you're quibbling.


100. Assume that Lee Marlow gives testimony favorable to Ross E. Argue the admissibility, on
cross examination, of Marlow‘s description testimony concerning the fate of the previous
Executive Director of the club.

See question 101. This goes to bias, and bias is always relevant and never collateral. FRE 608(b)
does not apply as far as bias goes. It‘s semantic: if you were using this to attempt to prove Ross‘
crummy character, this probably wouldn‘t be acceptable under 608(b), but to show bias, it would
be. (Treatise, p. 530. I hope this is right.) That doesn‘t meant that the judge wouldn‘t find it to be
overly prejudicial and not let it in.


101. Reverend Taylor testifies for Jesse. Def. seeks to cross examine Rev. Taylor on the lunch
with Jesse in order to show his bias in her favor (p. 53). Def. knows that Taylor and Jesse will
deny any such meeting. Consider whether she may so inquire on the cross exam. of Taylor. If
Taylor and Jesse deny the meeting, consider whether def. may call Emerson to elicit her
testimony on this matter. Are there Rule 104 issues?



                                                  21
First, I can‘t see why there would be any reason that you could not ask Taylor this question.
Secondly, bias is always relevant and never collateral, and FRE 608(b) does not apply to proof of
bias, according to the treatise (p. 530). This would indicate that you can ask Kelly because you
are asking for bias, and not necessarily to prove that Taylor is lying if he denies it.

There are definitely 104 issues, but I am having a lot of trouble verbalizing them. I think that this
is a ―pragmatic relevancy‖ issue. I‘m not sure we used that phrase in class, but the concept seems
familiar. The judge can decide whether the probative worth of this testimony outweighs the risks
of prejudice and confusion under 403. Here, Kelly isn‘t really sure whether she saw Jesse and the
rev. together. Conditions were bad, she really couldn‘t see the other person, etc. It‘s also a real
stretch from having lunch together to they are having some kind of affair. I think that there is a
likelihood that if a judge were to examine this evidence, it would probably be excluded on those
grounds, especially because they both deny it. It‘s more prejudicial than it is relevant. So, in
short, the answer to the last question is, ―sure.‖


Problem #102:
Kelly Emerson‘s testimony is admissible through Rule 608(a) reputation/opinion witness-
reputation for truthfulness. In showing this, extrinsic evidence is allowed. And any hearsay
problems are averted through 803(21) because Kelly Emerson is a member of the relevant
community of the household staff.

Problem #103:
Assuming Emerson cannot remember the incident, first, refresh recollection—allowing her to
read over her account of the incident. If it‘s a prior inconsistent statement, then you can impeach
with her prior deposition, confronting the witness. If judge doesn‘t believe witness‘ lack of
memory, some judges allow impeachment with prior testimony.
        If she denies the truth of the deposition, then you can‘t offer the transcript or call the
court reporter because this would be extrinsic evidence and contrary to 608(b).

        Witness A                                    Impeaching
       Has Relevant                                Character Witness
        Testimony                                    under 608(a)


Cross Examination R608(b)                             ―Witness a shouldn‘t be believed
For truthfulness. Some prior                          because character for untruthfulness‖
act is collateral cannot use extrinsic
evidence.                                             May testify only on opinion or
                                                      reputation for truthfulness
Cross on
Misconduct of witness;
coorruption, contradiction                            Can cross exam under 608(b) of
                                                      prior acts of the impeaching
All other 13 ways can be crossed                      character witness as to probative



                                                 22
                                                       character for untruthfulness.

                                                       may be impeached with prior acts of
                                                       the principal witness, but you can‘t
                                                       use extrinsic evidence.


104.    Reverend Taylor may testify to Jesse‟s reputation for honesty only if her credibility has been
        called into question already (Rule 608). If her credibility has been attacked, then plaintiff
        must lay the proper foundation for the reputation or opinion testimony by presenting
        evidence that Reverend Taylor belongs to Jesse‟s relevant community and has had an
        opportunity to form an opinion about her character for truthfulness, or to gauge her
        reputation.

        Once Reverend Taylor has testified to Jesse‟s veracity, he may be crossed on specific
        instances indicating Jesse‟s untruthfulness under Rule 608(b). Defendant will likely be able to
        question Taylor about the T-Mart incident, since shoplifting is probative of truthfulness and
        defendant has a good faith basis for discussing the incident. I‟m not sure whether defendant
        has a good faith basis for questioning about the collection box incident, although he
        probably does.

        However, even if he can bring up these specific instances of misconduct, it‟s probably not a
        good idea. Reverend Taylor will then be able to explain the incidents on redirect and also
        talk about other instances of Jesse‟s good conduct that led him to form a positive opinion of
        her veracity.


105.    Question: On direct, Kelly Emerson doesn‟t mention Kerry Easterfield‟s veracity. May
        defendant elicit testimony about Kerry‟s truthfulness on cross?

        No. Evidence of good character may not be offered before impeachment has occurred. This
        question appears to assume that untruthful disposition has not been suggested. There is a
        question about when impeachment has actually taken place. Only when there has been a
        showing of more than a simple interest in the outcome of trial (for instance, by noting
        something more than that Kerry is Ross‟s wife and that her fortunes therefore rise and fall
        with his) can the defendant offer counterproof of truthfulness. At least, that‟s what the
        treatise says.

       FIRST, This is OUTSIDE the scope of the Direct Examination so it violates FRE 611(b).

       SECOND, you cannot BOLSTER one‘s own witness UNTIL the witness‘ credibility has
       been attacked under FRE 608(a)(2). While Kelly CAN give opinion testimony as to
       truthfulness generally, she is BARRED during cross-examination BEFORE the witness in
       question (Mrs. Easterfield) has even been attacked.

106. If she says on the stand that she does not know anything about the lobsters, you can
     impeach her with her prior inconsistent statement. You can show her the deposition


                                                  23
      statement and ask her if that‘s what she said in it (can‘t offer the deposition into evidence
      though because it is extrinsic evidence and this is a collateral matter). You can‘t call the
      court reporter to complete the impeachment because it is a collateral impeachment and you
      can‘t use extrinsic evidence. If calling the court reporter were permitted, but the court
      reporter can not remember-then you could refresh her recollection with the tape of the
      deposition or enter the tape into evidence as past recorded recollection.

107. It is possible to impeach her under 608 because her lies on the loan statement go to her
     honesty/truthfulness. It is a prior inconsistent statement. Under 613, you do not have to
     impeach her with the loan statement while you are doing her cross. As long as she is
     available to be called up again, it is ok to use the loan statement after the plaintiff rests. It
     may or may not be a collateral matter depending on the theory and the judge. The loan
     application does show that she was so desperate for money that she lied and that may be a
     noncollateral issue. If it is noncollateral, you can offer the loan application into evidence.
     Furthermore, the loan application is not offered for the truth of the matter, so there is no
     hearsay problem.


108. Is there any theory on which the loan application could be admitted? If there is, but the
proponent relies on the “wrong theory”, will the opponent be able to successfully urge error on
appeal?

        Didn‘t cover in class. Possible to admit the loan application as a business record. Or
admit as a prior inconsistent statement by Jesse. See answer to problem 107. The loan
application might be used for impeachment by a prior bad act. But proponent can‘t use collateral
evidence for impeachment of prior bad acts. As to second question, the opponent will likely lose
even if the trial court relied on the wrong basis. Presumption for affirmance of the trial court.

109. Ross Easterfield has testified. Argue the admissibility of Winsor‟s testimony concerning
Easterfield‟s reputation in the real estate world of Nita City (“a very aggressive deal-maker and
a very hard, even slick, bargainer . . . willing to conceal material information and even
misrepresent fact”) as described by Winsor (p. 56).

        Winsor is giving testimony about Ross‘ reputation for truthfulness under R 608(a)(1).
Winsor can say that Ross is a ―hard bargainer.‖ Defendant‘s can object and say that reputation
for truthfulness in business is not probative of Ross‘ truthfulness in community. Winsor can‘t
say that Ross is willing to ―misrepresent facts.‖ This testimony goes to prior bad acts. And
impeachment by prior bad acts can‘t use extrinsic evidence under R 608(b). Winsor‘s testimony
is extrinsic evidence.

112. Under 608(a) reputation of truthfulness or untruthfulness may be admitted by Winsor.
     Therefore, assuming Winsor is a member of the relevant community ―real estate,‖ she may
     testify to Ross‘s reputation for untruthfulness.
     She is also describing specific things Ross did Ohio which is 608(b) testimony under the
     guise of 608(a) and therefore, problematic b/c extrinsic evidence can‘t be use in that case.




                                                  24
113. Joe‘s violent acts do not go to his truthfulness. If Chris would have testified that Joe was
     peaceful, the door would be opened to show Joe‘s violent acts, but Chris is testifying under
     608(a) not 404(a)(1)/ 405(a).
     NO – Chris Ravenna testified ONLY regarding Joe Mitchell‘s character for
     TRUTHFULNESS. Under FRE 608(b), specific instances of conduct CAN be used on
     Cross-examination concerning the witness‘ character for truthfulness (FRE 608(b)(1)).
     These other acts pertain to his predisposition towards VIOLENCE. Therefore, they can
     NOT be used to attack the ‗truthfulness‘ statement

114. On cross of Marlow may question about specific acts under 608(b)(2) assuming honesty,
     integrity, and fair dealing are like veracity. Probably only veracity would work here.

115. Under 608(b) you may ask Jesse about the incident at T-mart if it goes to her character for
     truthfulness. It probably does. No, you can‘t call the guard b/c extrinsic evidence may not
     be used under the rule. When questioning Jesse, the attorney must have a good faith basis
     that the event occurred.




118. The two successful civil suits against Easterfield are not admissible, at least through Winsor, even though they
might be probative of Easterfield‘s character for truthfulness. The fact of the judgments is just evidence of a prior
bad act by Easterfield (whatever it was that constituted the misrepresentation). According to 608(b), prior bad acts
cannot be proved up by extrinsic evidence, such as (in this problem) the testimony of Winsor. The only way these
things could come in is through Easterfield himself, or if Winsor or someone else had testified on direct that
Easterfield was a truthful person.


119. Winsor actually saw Easterfield enter the guilty plea, so he‘s competent to testify to the fact of that event.
However, the admissibility of Winsor‘s testimony regarding Easterfield‘s criminal convictions depends on the
particular court‘s view of whether probation is confinement. 609 allows testimony as to a criminal conviction
punishable by death or imprisonment in excess of one year; Congress has determined that conviction of such a crime
is in itself impeaching of a witness‘ credibility. It also always allows evidence of crimes involving dishonesty or
false statement, which Easterfield‘s did. There is a time limit though-- if the conviction or the release from
confinement for the conviction was more than ten years prior to the testimony regarding the conviction, then the
evidence is inadmissible. In the Easterfield case, he pled guilty 11 years ago, but was released from probation seven
years ago. While there is case law saying that probation is not confinement (see US v. Daniels), the judge in my
trial let it in. The issue is still open. The judge can also decide that in the interest of justice the fact of the
conviction should be let in, regardless of the time limit.
         Winsor cannot testify to anything more than the fact that Easterfield pled guilty to a single count of
criminal real estate fraud; he cannot talk about the little old lady or any of the rest of the details of the crime. He can
say the date when the conviction occurred. He can‘t talk about the details surrounding the reception of the guilty




                                                              25
plea (they are hearsay as well as being excluded by 609), unless Easterfield opens the door by trying to explain in
too much detail the circumstances surrounding the guilty plea.


120.     Porter‘s conviction may or may not be admissible, depending on the court‘s discretion.
         Under 609(a)(1), the conviction is not admissible, since Porter‘s sentence was for less
         than a year. Under 609(a)(2), however, the court may find that the conviction for
         receiving stolen property ―involved dishonesty or false statement.‖ In addition, under
         609(b), as long as notice of intent is given to the other party to use her conviction, the
         court may find that her conviction is more probative than prejudicial.

121.    The relevance of the conversation is contradiction impeachment. This is non-collateral,
        so extrinsic evidence may be used to prove it up, since (under Rule 613) Marlow will
        have the opportunity to explain on re-direct.
        Under FRE 613, there is NO requirement that extrinsic evidence of a ―prior inconsistent
        statement‖ be already crossed in order to broach the subject.
       - Here, this statement borders ―prior inconsistent‖ and ―contradiction‖(MORE likely)
          categories – EITHER way, it‘s NON-Collateral. [NOTE: 613 applies ONLY to ―prior
          inconsistent‖.]
       - 104 Condition – knowledge of preliminary question of fact – whether Marlow KNEW
          residents of St. James were ex-convicts.


123.     This is permissible, but it might not be tactically wise. Using this approach puts the
         statement ―Miss MacIntyre has stolen a diamond brooch,‖ spoken by Easterfield, in front
         of the jury – you should never say something you don‘t want the jury to believe. But it is
         a very powerful weapon for impeaching Jesse‘s credibility, so I would probably use it
         anyway.

124.      This accredidation is allowed because the prior consistent statement to Mrs. E. occurred
         before the impeaching testimony occurred and before the motive to fabricate(pleasing
         Ross) existed. It is non-hearsay under 801(d)(1)(B) when used to rebut the charge of
         recent fabrication and improper motive. The club's hiring policy is an important issue to
         the case so the impeachment is a non-collateral one evidenced by the allowance of
         Taylor's extrinsic testimony.


125. Reverend Taylor is the witness. Argue the admissibility of the conversation between Rev.
Taylor and Ross in which Ross told the rev. that he was not willing to employ another young
woman from the St. James home (p. 44). For now, ignore the privilege issues.

This statement does not go to truthfulness or untruthfulness – he said that he doesn‘t want to act
charitably unless he gets more public recognition – it goes to him be a jerk or, less harshly, to the
extent of his charitability. Under 608(b), this is a specific instance of conduct, and probably
would not be permissible unless he lied about it – which he didn‘t in his deposition.

Problem #126:


                                                          26
       This is an inadmissible conversation with Rev. Taylor if he doesn‘t talk about it on direct.
Statements that contradict can be admitted, though, under FRE403.

127.    Question: May Dr. Steinfels offer an expert opinion about Jesse‟s likely truthfulness as a
        witness?

        Doubtful. Steinfels will not be able to give such an opinion without grounding it on some
        scientific foundation, and even if he does it probably still won‟t be allowed. Courts usually
        require counsel to find some other way to call a witness‟s credibility into question. Steinfels
        says that Jesse would be a dishonest witness because of “poor self-definition” and
        “extremely manipulative behavior”—this sort of testimony doesn‟t seem to suggest an
        incapacity to tell the truth (something the expert might actually be allowed to testify about),
        merely an untruthful disposition, which is much more suspect. See the treatise at §6.22.

128. He did not answer this question in class-but here is my two cents on it.
     If Dr. Steinfel is called as an expert witness he can not testify to whether or not Jesse is
     truthful and can‘t testify to her character in general. But if he has some scientific backing
     and can couch it in psychological diagnosis language about why she may have
     misperceived or misinterpreted events, he can probably testify. NOTE: courts are split
     about expert testimony on social sciences (―soft‖ sciences‖). Even if he can testify I think
     he can only testify to the circumstances around her misperception and can not come right
     out and say she misperceived.
     (if anybody has any comments on this one-please speak up)

129. Expert testimony CAN talk about syndromes and people being in the grip of these
     disorders even though sounds like improper character evidence. HOWEVER, they can
     NOT testify about the likelihood of an INDIVIDUAL‘s behavior in a certain situation.
     They can only testify generally.

       Skimmed over in class. Court is suspicious of expert opinion on matters of credibility.

PRIVILEGES

132. Easterfield doesn‘t want Kerry to testify in his criminal case. Ross Easterfield holds the
     privilege in most state courts (14), another (4) say the witness is incompetent to testify and
     Kerry can be prevented from testifying. Note that in the federal system it is the other way
     around, Kerry holds the privilege and can decide whether or not to testify, same with the
     other 11 states. Other states don‘t recognize the privilege.

133. This statement was said w/n the earshot of Brooke Thompson, so the privilege was waived
     (not intended to be confidential). Even so, when it is the issue of one spouse committing a
     crime against another there is no privilege.

134. State would argue again, no privilege b/c it is threats from one spouse to another. Plus, the
     separation issue…if you are separated the privilege may not apply.




                                                   27
135. Plaintiffs argue that the Easterfields were yelling when they have a house full of staff and
     have had past incidents w/ staff eavesdropping on their conversations. If they reasonably
     believed they were the only ones in the house, their intent was to keep the conversation
     private and should be kept privileged.

137. The Husband-Wife Privilege probably does NOT apply here. There are two aspects to this
     privilege: (1) adverse testimony: protecting a spouse from testimony from the other
     spouse; and (2) confidential communications: prohibiting communications from one spouse
     to other to be disclosed.
     Of the two, CONFIDENTIAL COMMUNICATIONS is potentially applicable (adverse
     testimony does not apply because Leslie CANNOT testify).
       -In Confidential Communications, EITHER spouse may assert privilege.
       -They have to be married at the time, which they were.
       - The communications have to be INTENDED to be confidential – here, privilege is
       maintained EVENTHOUGH Leslie invited Quinn to listen in because marital
       confidences cannot be destroyed by the connivance of one spouse to have a 3rd party
       listen in without the knowledge of the communicating spouse. (p. 483)
       -HOWEVER, states have cut out various exceptions to these communications
       INCLUDING crimes against other spouse – therefore, no privilege

         Furthermore, this should NOT be hearsay because it is a party opponent admission.
         Further, it goes to his state of mind and intent regarding Leslie.


138. I‘m fairly confident that in this situation the husband wife privilege which Mr or Mrs. Easterfield could claim
to stop this line of questioning has been waived by Mr. Easterfield‘s lawyers‘ failure to raise it during Mrs.
Easterfield‘s deposition. See the treatise page 327. But the Federal Rules of CP (32)b says that an objection not
made at a deposition can be raised again when the evidence is offered at trial. It‘s possible that the Judge will rule
that the Easterfields have not waived their claim of husband wife privilege by Mrs. Easterfield‘s deposition
testimony. If that is the case, its admissibility over Easterfield‘s privilege objection would be conditioned upon a
showing that Kelly Emerson did in fact hear them speaking in the dining room that day, which would have broken
the privilege through publication. Since Kelly does not testify that she heard them speaking, however, the testimony
would have to be later stricken from the record.


139. I think that Mitchell cannot call the psychiatrist or subpoena his or her notes. While the privilege has been
perforated by the office manager‘s actions, she does not have the power to break the privilege because she is
basically an eavesdropper or interceptor of confidential communications. see treatise page 328. Brooke has not
evinced her willingness to waive her privilege in any way, and her communications with her psychotherapist were
not intended to fall into the office manager‘s hands. Brooke can therefore still assert her privilege and prevent the
material from being used in legal proceedings.




                                                          28
140.   This is a silly privilege objection, since privilege doesn‘t extend to facts.

141.   There‘s a four person chain here:
       Brooke -> Shrink -> Weston -> Joe‘s attorney

       There‘s a therapist/patient privilege between Brooke and her shrink, which Brooke holds.
       There‘s an attorney/client privilege between her shrink and Weston, which her shrink
       holds. So my understanding is that, unless Brooke waives the privilege, no one can
       testify about the conversation, because her shrink can‘t waive the attorney/client privilege
       without violating the therapist/patient privilege. If anyone disagrees, please let me know.

144.   Easterfield intended the original conversation to be communicated to Jesse, so there is no
       expectation of privacy. However, the fact that he retracted this intention the next day
       might lead some courts to rule that the privilege remained intact.

145.   This is an ethical problem. First, Joe‘s attack was a privileged (intended to be
       confidential) communication, so the attorney can testify. The prosecution can ask Joe‘s
       witness ―In forming your opinion that Joe is a peaceful man, did you take into account
       the time he attacked his lawyer?‖ Rule 405 forbids use of extrinsic evidence, so the
       lawyer cannot be subpoenaed.
       (a) Lawyer VOLUNTARILY Coming forward: Under the rules of CONFIDENTIALITY,
           Joe‘s 1st lawyer is PREVENTED from coming forward voluntarily so long as its
           related to the representation.
       (b) Cross-Examine Joe‟s Character Witness re: Event: YES, under FRE 405, opposing
           counsel can cross-examine regarding specific instances.
       (c) State Subpoena 1st Lawyer:
           Since the State is calling the former lawyer, that lawyer would be testifying on
           DIRECT re: Joe‘s character for peacefulness. This is allowed because the defense
           ‗opened the door‘ under 404(a)(1). However, on direct, under Rule 405(a), the
           lawyer could ONLY testify as to his opinion or Joe‘s reputation. Therefore, he could
           NOT testify SPECIFICALLY re: the attack but he COULD testify as to his opinion
           on Joe‘s peacefulness. [Under 405(a), testimony on specific instances is only
           allowable on CROSS.]

146)   Ordinarily the presence of a 3rd party would break any atty/client privilege because it
       prevent the element of confidentiality to be satisfied. Certain exceptions are allowed
       (interpreters, secretaries, paralegals) but Illinois is rather draconian and does not allow
       other present for "moral support". The double privilege here is enough for some courts to
       consider any conversations completely privileged, but a stricter court would require a
       showing that the conversation fell within the role of both privileges before allowing
       protection. (i.e. only talk that pertains to both religeous counseling and legal advice
       would be protected)

147)   Peterson has knowingly assisted in fraud/theft and is ethically accountable for those
       crimes. Any privilege was waived under the crime fraud exception because the crimes




                                                 29
       had yet to take place. Depending on the jurisdiction you must/can report both your client
       and colleague.


148. Assume that the MacIntyre case is a bench trial. Jesse‘s lawyer asserts that she believes that
Easterfield had, with his lawyer‘s help, engaged in a knowing insurance fraud involving the
brooch, and seeks to call Ross‘ trial counsel as a witness to show that. Assume you are
Easterfield‘s counsel. You know that, in fact, Ross did ask a member of your firm about fencing
the brooch, but that this firm member told him it was wrong, that in no circumstances would she
provide any advice on how to go about doing that, and Easterfield was making a big mistake if
he went forward. Jesse‘s lawyer asks to inquire into the conversation between Ross and your
firm member in order to determine whether that conversation is outside the privilege. For Ross
and your firm, respond.

There is a two-prong test, according to the treatise, for the crime-fraud exception to atty-client
privilege. The first is that the client engaged in or was planning the illegal conduct when he
sought advice, or carried out illegal activity after receiving the advice. The second is that the
atty‘s assistance was obtained in furtherance of the bad activity. (p. 411)

Intent of the client is important – if the client knew what they planned was illegal, the exception
comes into play, if the client didn‘t realize that the contemplated conduct was illegal, it is
probably okay. The treatise also says ―[n]or is it necessary that the attorney actually assist in the
illegality in any way.‖ I‘m not sure whether this means that advice not to carry out the activity
would still be part of the exception. The treatise isn‘t clear.

Nevertheless, the answer is probably this: First, the party seeking the information has the burden
of proof the exception applies, so they must present reasonable evidence to the judge in camera
that that the exception applies. If their evidence isn‘t reasonable, it wouldn‘t necessarily get any
farther. If the evidence is reasonable, the side opposing the exception may then have to present
the actual facts to the judge (again, in camera) for the judge‘s determination. The question isn‘t
entirely clear that Ross knew what he was doing is illegal – he probably should know that
fencing and insurance fraud are bad. But the attorney told Ross not to do it, which he apparently
didn‘t. It would be up to the judge to determine whether the exception applies. Because this is a
bench trial, this wouldn‘t actually have to be in camera – I forgot it was a bench trial.


149. Ross asks his lawyer to draw up leases of six-months duration for one of his developments.
You know that the local ordinance makes it a misdemeanor for a landlord to offer written leases
of less that a year‘s duration. He does not seem to know that. Are Easterfield‘s communications
with you on this subject privileged?

If Ross doesn‘t realize that this is illegal, there is no crime-fraud exception to the privilege – he
wasn‘t intending to commit a crime. So the answer is yes.

Problem #150:




                                                  30
        (1) Confidential written communications by the client to the attorney for the purpose of
            obtaining legal advice are privileged. Normally the writing must have been created
            for the primary purpose of communicating with the attorney. If the writing is subject
            to subpoena, discovery or search warrant when in the possession off the client, it
            remains so after transfer to the lawyer.
        (2) Seems like Joe waived the privilege, doesn‘t it?
        (3) Most likely

Problem #151:
In the meeting between Leslie, Joe and the Lawyer, the first question to ask is whether there was
an attorney-client relationship. If not, then the conversation between Joe and the lawyer is not
privileged, and Joe‘s comments to the attorney may not be between an attorney and client. Now,
under 503(d)(5), which was not enacted it is possible to argue that the lawyer was representing
both Joe and Leslie, and that thus there was a privilege that the Attorney may not breach.

152. 3rd party to Joe Mitchell‟s lawyer: Joe told him “I have a problem and I‟m going to solve it
tonight.”

(1) May Joe‟s lawyer discourage the 3rd party from telling the prosecutor? No. There is no attorney-
client privilege in place. The privilege extends only to confidential communications between a client
and his lawyer—3rd party statements to the client‟s lawyers aren‟t covered. See the treatise, § 5.12.

(2) Must Joe‟s lawyer tell the prosecutor about the conversation? No. However, if the prosecutor
finds out (as he did in this problem) then Joe‟s lawyer must disclose the identity of the 3rd party.


153.    (From Mike Vagnucci. I don‟t know about this one, but the answer sounds good to me.)
        Any conversation which takes place between a potential client and an attorney is protected
        under the Attorney-Client privilege, even if the attorney does not end up representing that
        person.

        Attorney-Client privilege is not self-enforcing and MUST be asserted at each stage of the
        proceeding. The MAKING of the privilege objection is NOT by itself sufficient to preserve
        the privilege. The holder normally must REFRAIN from disclosing the privileged matter
        until the court has ruled on the privilege claim.

        The Burden of establishing privilege lies on the Claimant.
        If the privilege claim is erroneously DENIED, remedy depends on whether the party
        opposing introduction of the evidence is the holder. IF the party is NOT the holder and the
        evidence is otherwise admissible, there is NO ground for appeal because denial of a privilege
        belonging to another is NOT an error that a party has standing to assert. If the party IS the
        holder, the party‟s rights are adversely affected. The party CAN comply with the order to
        disclose and challenge the denial of the privilege claim on appeal.


154.(we did not do this questions in class-so this is my best shot at it)



                                                   31
       The att/client privilege survives the death of the client. Brooke‘s lawyer has an ethical
       obligation not to voluntarily come forward with the information. If Brooke‘s lawyer is
       called though, the prosecution can assert her privilege and prevent her lawyer from
       testifying. I think that there would probably be constitutional issues though because this is
       a criminal case and whether or not the lawyer can testify would depend on the judge (104a
       determination).

155. Even if Young is dead, he still holds his privilege and is the only one who can waive it.
    Therefore, Cato is under a duty not to disclose his conversations with Young. Once again,
    there is a constitutional right question as in 154.


156. Mitchell calls Cato. Cato testifies, “Yes, I did have a conversation with Young concerning
his whereabouts on September 10, but that is al I will say about the matter.” By saying that
much, has Cato waived the privilege?
         As long as Cato‘s testimony doesn‘t reveal any substantial portion of the conversation
then the attorney-client privilege is not waived. The fact of the attorney‘s conversation with the
client is not privileged.

  The judge finds that the privilege does not apply after making a preliminary finding that
Young is dead, saying on the record that “I can’t find that it’s more probably true than not
     that he’s dead, but there’s evidence of Young’s death sufficient to support a finding.
        Judge made decision based on R 104(b), conditional relevancy. Judge should have made
a finding under R 104(a), questions of admissibility generally.

  The court orders Cato to testify further. Cato is as certain as he can be that the judge is
   wrong on the law. May he testify to Young’s conversation? Must he testify to Young’s
   conversation? If he does, has he waived the attorney-client privilege? Cato refuses to
  testify. What should the judge do? What should the defense do? What should Cato do?

        An attorney who is compelled to testify does not waive the privilege. The attorney can
decline to follow the judge‘s order and seek an appellate review. The judge can hold the attorney
in contempt of court.

157.    Burns skimmed over in class. The client here is the corporation, Nita City Athletic Club
        and it‘s unclear if the privilege extends to the attorney‘s communication with Marlow, an
        employee. The Supreme Court in Upjohn v. United States listed some factors that should
        be considered: 1) whether the corporation management directed the employee to speak
        with counsel, 2) whether the communication‘s purpose was to obtain legal advice for the
        corporation, 3) whether the employee was aware of the legal implications of the
        communication, 4) whether the subject matter was within the scope of the employee‘s
        duties and 5) whether the communication was considered and kept confidential by the
        corporation.



PRESUMPTIONS AND BURDENS OF PROOF


                                                  32
160. The standard would be evidence sufficient to support a finding that there was guilt beyond
     a reasonable doubt. In a civil case the standard is evidence to support a finding by
     preponderance.

161. No, these are not elements of the crime. Besides, the jury may still convict based on other
     facts.

       NO directed verdict of acquittal because these two facts (retraction letter and fleeing police
       station) are NOT elements of the case.


163. A. In this situation, the insurance company has not provided evidence sufficient to rebut the presumption that
Jerry Young is dead, which was established by the fact that he disappeared nine years ago, has not made contact
within those nine years, and Mrs. Young searched for him continually throughout those nine years. Therefore, in the
absence of evidence sufficient to rebut the presumption of Jerry Young‘s death, the judge should instruct the jury
that they must find the presumed fact, ie that Jerry Young is dead.


         B. I think that in this example the presumption still directs that the judge should instruct the jury to find that
Young is in fact dead.


         C. In this example, because a reasonable juror could find that Mrs. Young‘s efforts were not dilligent, the
court should instruct the jury that they may find that Young is dead, but they are not required to so find.


         D. In this example, the counterproof offered by the otherside is such that they have not met the burden of
production which the presumption places on them. Therefore, the judge should instruct the jury that they must find
Young is dead.


         E. Here, the bubble of the presumption is not burst because the counterproof offered does not affect the
facts creating the presumption. The presumption is still there, but I think that the jury can decide to disregard it if
they find the counterproof offered persuasive.
         F. In this example, the counterproof offered goes directly to contradict the basic facts which brought forth
the presumption. In this situation, the ―bubble of the presumption is burst,‖ and it disappears. This does not mean
that the jury cannot find that Young is in fact dead; it simply means that the jury can only find the presumed fact if
the natural probative force of the basic facts which brought the presumption into play directs such a verdict. In other
words, if the jury just disbelieves that the letter was from Young, then they can still find that he is dead based on his
disappearance for such a long time, his (possible) lack of contact with anyone, and Mrs. Young‘s dilligent search for
him. But there is no longer a presumption based on these facts that he is dead.




                                                            33
         --- I think (although I am far from sure) that the Federal court would apply California law to the claim,
since the presumption establishing that Young is dead goes towards a substantive part of Mrs. Young‘s claim. I‘m
not too clear on Erie, but I think that it held that Federal courts apply the substantive law of the state in which they
sit. Anyway, I doubt this question is going to be on the test. I‘d be happy if anyone has any ideas about the
correctness of this answer.



OPINION TESTIMONY

166.     Under 701, this sort of lay opinion evidence is generally acceptable. It is rationally based
         on the witnesses perception and it helps the trier of fact understand the witnesses
         testimony. A really tough judge might not allow this, ruling that it is a conclusion. Such
         a judge would only allow Quinn to describe the physical characteristics that made Joe
         seem angry.

167.      Slyviak's testimony here is both rationally based on his own perception and helpful to
         understanding his testimony and thus permitted under 701.

168. Quinn Washington (p. 42): ―She (Leslie) said she had received a letter from him that day
and that he made terrible threats against her and her mother in the letter. She seemed to be
frightened of Joe.‖ [Ignore, for the present, the hearsay problem of Quinn‘s reporting what Leslie
said.]

I have no notes on this from class, so I‘m winging it. Rule 602 requires a witness to have
personal knowledge to testify to a matter. Quinn does not have personal knowledge of the
content of the letter, but she can testify to how Leslie was acting, how she seemed. Quinn
witnessed Leslie‘s behavior that night in general, and perhaps her behavior specifically while she
was telling Quinn about the letter (I don‘t know, she grabbed Quinn‘s hand and squeezed really
hard, something like that). In addition, she was also a good friend of Leslie‘s (defense might
respond by saying they hadn‘t spent much time together lately, but for the sake of argument), so
she could compare this to what she knew of Leslie‘s regular behavior. There‘s a fair argument
that her opinion is relevant under 602.

Under 701, you could argue that Quinn‘s opinion was based rationally upon her perceptions –
that a lay person can testify to whether someone appeared to be scared, especially if they could
describe the behavior, and the jury could determine for itself whether the opinion was rational.


Problem #169:
This probably will be permissible. Although he is clearly expressing his opinion as to Joe‘s
motivation, this opinion falls within FRE 701 because it is ―rationally based‖ on his personal
perception and his perception of Joe‘s actions themselves are clearly within the bounds of FRE
602.




                                                           34
170.     Jesse: “From his words and appearance, I felt he was accusing me of stealing the brooch...”
         Objections are 602 (lack of personal knowledge) and 701 (improper lay opinion). This
         testimony is certainly admissible provided that plaintiff can point to specific perceptual facts
         forming a rational basis for Jesse‟s belief that Ross was accusing her.

171. Posh/lavish/exclusive-depends on the judge-this may be a little too conclusory
     Treated me coldly/looked down on me-seems like a conclusion based on more than one
                                             set of perceptions-problematic. Also, seems
                                             like character evidence-also problematic.
     Stiff and aloof-seems like a conclusion and looks a lot like character evid.-problematic
     Careless about jewelry-Could be problematic because it is based on more than one set
                              of perceptions and sounds conclusory.

172. Brooke Thompson (p. 8): “This man had a violent temper.”
       Probably inadmissible because violates the non-opinion rule. Brooke‘s testimony is a
       broad opinion based on many perceptions over a long period of time. Brooke‘s lay
       witness testimony doesn‘t seem rationally-based or helpful to the trier of fact under Rule
       701.

174. It is reasonably based on Slyviak‘s perception and help in understanding the facts in issue.
     He has first hand knowledge. May need to testify in more perception-based terms. He
     can‘t know what Joe thought.

175. Defense will argue that he is not an expert in bullet passage and thus, the testimony is
     inadmissible. State will say he is an expert in knowledge of guns/ he must be qualified to
     testify in the area. As a far as the type of bullet involved it would appear he could testify as
     long as the appropriate foundation was laid.

176. CLEARLY IMPERMISSIBLE. While technically this may qualify as Chris Ravenna‘s
     rationally based on HIS perception/personal knowledge, this goes beyond the pale of lay
     person testimony. Chris‘ testimony speaks to what probably happened given Brooke‘s
     state; Chris is not an expert witness, credentialed as a psychologist/psychiatrist, and can not
     testify as to the motivation. Furthermore, he has no personal knowledge of Brooke‘s
     emotional state at that time.

177. This is clearly impermissible opinion testimony of Chris Ravenna. He has no first hand knowledge of
Brooke‘s mental state towards Joe, and even if he did have some first hand knowledge of her hatred towards him,
for him to draw the kind of conclusion he does in this example is out of bounds for a non-expert witness. It is not
the kind of thing rationally based on the perception of the witness, nor is it likely to help the trier of fact.


178.     This one‘s a toughie. . . (notice there‘s a disclaimer to all of my answers). I think most of
         this is generally admissible, because it‘s testimony reasonably based on Jesse‘s
         perception, and helpful to understand her feelings (goes to damages?). The phrase ―and
         he‘s continuing to do it by making sure that I can‘t get a good job‖ is out, though, I think,
         because it goes to the matter at hand.



                                                             35
180.   This doesn‘t seem to include enough information to show sufficient personal knowledge
       on Jesse‘s part. She would have to testify as to the specifics of how she personally knows
       (as required by 602) that her failure to get the ―10 or 20‖ jobs is the result of Easterfield‘s
       bad reference. Plaintiff could argue that, under 701, this is rationally based on her
       perception, but they would have to lay foundation for such a claim.

181.   Although this testimony is likely to be helpful in determing a fact in issue (i.e. Joe's guilt)
       it would be hard to argue that it is based on perception. Some courts will buy the
       argument that a cop's "gut feeling" is indeed a sixth sense but be careful, getting this
       testimony in opens the door for the prosecution to ask him what he "feels" now during
       rebuttal which can do more damage than the first opinion does good.


182. Jesse (p. 17): ―Reverend Taylor became very angry. He‘s such a mild fellow. I‘ve never
seen him that angry before. ‗I‘ve always thought that Easterfield was a self-centered bas-- ...
person. We‘d have been better off if he hadn‘t gotten involved in this program at all. It‘s pure,
thoughtless, cruelty. A child pulling the wings off a butterfly. I‘m just so sorry Jesse.‘‖ [Ignore
the hearsay problem for now and consider only the admissibility of the various opinions
expressed by MacIntyre and Taylor.)

As to Jesse, I think she can testify to the rev. getting angry. As to 602, she has personal
knowledge of how he reacted because she was there, and she has known him for several years so
she can testify that it is hard to get him angry and this reaction was unique. As to 701, her
opinion is one that you could expect a lay person to be able to testify to – that his reaction was
angry, especially if she can actually describe the facts (he yelled, he had a certain tone of voice,
he almost used a naughty word) and the jury can determine for themselves whether her opinion is
rational.

Rev. Taylor is a different story. He does not have personal knowledge of what happened with
Lee Marlow, so his opinion about whether what he did was cruel or not is very questionable.
(For the defense, I‘d argue that he doesn‘t know if Jesse was really going to get the job, how she
acted at the interview, what Ross said or didn‘t say.) His opinion probably would not be
admissible under 602. Same with 701. He is making moral assumptions about Ross – he is cruel,
he is self-centered. This is character evidence not really based on what happened at the club,
since he doesn‘t know – didn‘t perceive -- what happened at the club. He is not a ―firsthand
observer.‖

Problem #183:
The best evidence rule applies only to documents, so the rule does not apply in this case. Is
Slyviak a lay witness or an expert? One could conceivably tender him as an expert under 702
based on his knowledge and experience as a cop. He could then opine that it was a .38 caliber
bullet based on his ―years of dealing with bullets, the amount of time that he spent on the firing
range, etc. etc.‖ His testimony as a lay witness is tougher to get in because it‘s questionable how
―rationally based‖ his perception is.




                                                 36
184.    May Rev. Taylor testify as an expert in criminology about effect of Ross‟s statements on
        Jesse?

        (1) Can Rev. Taylor be qualified as a witness? Yes—he‟s got a graduate degree and
        experience, which is plenty.
        (2) Will his testimony be “helpful” to the trier of fact? Yes, as long as Rev. Taylor is limited
        to giving opinions as a criminologist. His testimony is likely to be “unhelpful” (and therefore
        inadmissible) if he simply says, “Yes, as a criminologist I could see from how sad Jesse
        looked that she had been damaged by Ross‟s statements.” Expert judgment cannot
        substitute for the jury‟s judgment if the issue is one of common knowledge. Taylor may
        testify specifically as to how Ross‟s statements would harm Jesse‟s rehabilitation process.

185.
       1. Reliability of eye witness testimony is a subject that the courts that the courts are split
          about. The trend is toward not letting this in.
       2. If courts do let in reliability of eye witness testimony, usually they will only allow the
          expert to testify to the circumstances of the situation and how those specific
          circumstances could affect eye witness testimony
       3. but not to the conclusion that a person had misidentified the killer.


186. Joe Mitchell protested his innocence after he was arrested and offered to take a polygraph
test. The detectives at the station obliged him and the test results were that he was telling the
truth when he denied killing his wife. Joe wants to offer the results of the test. Who should Joe
call and how should he go about trying to admit the results? Is he likely to fare any better under
the Daubert test than under the Frye test?

        Frye held that polygraph evidence because polygraph evidence was inadmissible b/c its
        scientific validity was not accepted in the larger community.

        Under Daubert, the polygraph test has to be scientifically valid and not scientifically
        accepted by the community.

        Joe would need to call 2 experts and one more person: 1) A scientist to testify to the
        validity of the underlying science. 2) An engineer to describe how the device deploys the
        particular science and 3) a person testifying that the device was operating on that day.

        The judge will make Rule 104(a) determinations of whether the underlying science is
        valid and if the device is able to employ the underlying scientific principles.

        The need to call 2 experts for polygraph results is different than the admissibility of radar
        evidence. There‘s judicial notice of radar‘s underlying principles and how the radar
        device deploys those principles. So one would only need the testimony that the device
        was operating on that day and that the operator knows how to use the radar.




                                                   37
188. An expert can rely on inadmissible evidence to form an opinion. First, Rev. Taylor must be
     qualified as an expert to testify as to what happened to Jesse. The Federal Rules do not say
     if these facts can be placed in front of the jury. Most would say it is b/c it is not offered for
     its truth but to form the basis of an expert opinion.

189. (1) Assuming that Rev. Taylor is tendered an expert in spiritual direction, and that as an
     expert in that field is qualified to testify to a person‘s motivation. (2). He can definitely
     testify to Easterfield‘s character for truthfulness. He could do this regardless whether he
     was an expert or not under 608(a).

191.   I don‘t think that Steinfels will be allowed to testify as to whether or not Jessie was lying when she testified
       in court. First, the problem does not say that Steinfels was present in the court room when Jessie was
       testifying, so it‘s safe to assume that he has no first hand knowledge (aka data) on which to base his opinion
       that she was lying on this particular occasion (even if he thinks she in general has no concern for the truth).
       Such a baseless opinion is probably of no help to the factfinder, and therefore can be excluded under 703.
       Second, it is the jury‘s job to decide such issues as credibility in the context of a trial, and allowing the
       opinion of the expert to trod too far into that realm is probably something that courts will seek to keep from
       happening through 403.

192.   I think is probably admissibile testimony, (some sources disagree with me), although
       Jesse‘s interpretation of events is something that the jury has to weigh. But they can
       weigh the expert‘s opinion too.

193. This CANNOT Happen (Burns says so) because this is ‗beyond the pale‘ of the testimony.
     An Expert Witness can NEVER testify as to whether the Defendant DID or did NOT do a
     particular act; they can only speak to the likelihood of a certain TYPE of person
     (presumably like the D) acting in a certain way.

195)    Taylor's expert status and whether the conversation with Mr. E was privileged are both
       in dispute. If both are answered affirmatively, three possibilities exist: 1)Expert cannot
       consider privileged information when forming opinion (distinction b/w general
       admissability and privilege under 104 does apply to 703), 2)Expert can testify to opinion
       but not reveal the privileged basis (majority rule), or 3)Expert can testify to opinion and
       reveal the basis because the expert rules trump the privilege rule (distinction b/w general
       admissability and privilege under 104 does not apply to 703).

HEARSAY

203.   The ad is an offer, and therefore is not hearsay. It is self-authenticating under 902(6). It
       is only relevant if foundation is laid to show that Jesse read it.

204.   Once again, this is an offer, but there is a hidden assertion. This testimony hides an
       assertion that Mrs. Easterfield is trying to commit insurance fraud – it is offered for the
       truth of the matter asserted. This is also very prejudicial, so a 403 objection might keep it
       out.

205.   Defendant can argue that this is a prior inconsistent statement being used for
       impeachment purposes under 613(b) – it is not being offered for the truth of the matter


                                                         38
       asserted. Plaintiff, however, should point out that this isn‘t really inconsistent – the letter
       was in regard to a completely different position with different requirements. Judge will
       have to make a relevancy determination whether Taylor‘s refusal to recommend Jesse to
       the transit company is truly inconsistent with his testimony.

206.   Under 613(b), witness had to available to deny or explain inconsistency, so this is
       probably inadmissible. Plaintiff should have introduced this on Holman‘s cross –
       impeaching him with a prior inconsistent statement is OK. However, the court has the
       discretion to admit it.

207.   Plaintiff can argue that this is not offered for the truth of the matter asserted, but rather to
       show that the Easterfield‘s marriage is troubled. This would have to be relevant to the
       plaintiff‘s theory to be admissible.

208.   Plaintiff can argue that this is not being offered for the truth, but rather to show Marlow‘s
       bias – perhaps that he is afraid of repercussions if his testimony hurts Easterfield. There
       is a 104 issue; the court must determine that this would really be sufficient to bias
       Marlow‘s testimony. Defendant can claim prejudicial effect under 403, that the jury
       can‘t help but take it for the truth, and argue that this is rank hearsay.

209.   Plaintiff can argue that this is not being offered for the truth, but rather to show that
       Easterfield was on notice of Jesse‘s sensitivity. Because Easterfield claims he never
       received the letter, there is a 104(b) issue. Plaintiff must lay foundation (how it was
       mailed, etc.) to support a rational inference that defendant must have received and read
       the letter. Taylor must authenticate it as the letter that he wrote, printed out (satisfying
       the requirement of an ―original‖ under 1001(3)), and sent.


210)   Because Jesse‘s statement is offered as evidence of the belief of the declarant in a case in
       which the existence of that belief is relevant, the proper response is that its not hearsay,
       but offered to show Jesse‘s belief. It is relevant to show why Jesse took the plea bargain.
       Possible to use it to rebut a character attack.

211)   Plaintiff: relevant and non-hearsay to show Jesse‘s belief she was going to get the job.
       Relevant to show that it was more likely than not that Ross must have changed Marlow‘s
       mind about hiring Jesse.
       Defense response: not relevant, possibly could make an argument that it was Jesse‘s
       criminal record which was the deciding factor; also, the statement from Marlow is not
       that Jesse was going to be hired, just that she was a good candidate. (Would probably
       come into evidence.)

212)   Response: relevant to show Jesse‘s belief that Ross has ruined her chances of
       employment. This would figure into a damages calculation. However, defense would
       have a 403 argument that this statement is prejudicial and goes to malice which is a major
       issue in this case, particularly with the qualified privilege defense. Therefore, prejudice




                                                  39
       may outweigh probative value because evidence says jury shouldn‘t be considering this
       type of statement.

213)   Relevance: the conversation is relevant because it goes to show that Jesse‘s behavior with
       Reverend Taylor was consistent with her response to the Easterfields. State of mind.
       Hearsay: ―Why do you think…?‖ - question, not a statement; asserts nothing, so its not
       hearsay; ―Oh, I‘m sorry‖ – probably a present sense impression under 803(3); also its
       performative

214)   Hearsay objection: the conversation with Zanoni goes to bolster Ross‘s state of mind and
       his belief that Jesse may have stolen the brooch. (It makes it more likely.) Allowing this
       in bolsters the qualified privilege defense.
       Plaintiff would have a 403 issue to raise in response, but it would probably be allowed in,
       particularly if the Defendant is using the substantial truth defense. Defendant probably
       wouldn‘t want it in if their defense is that it never happened, however. Depends on
       theory of case.

215)   Plaintiff response: not hearsay because it goes to Jesse‘s belief that this was just another
       one of Mrs. Easterfield‘s little dramas. Also could be her present sense impression.

216)   Plaintiff response: not hearsay because it was non-verbal conduct not intended to assert
       anything. May be relevant to rebut an attack on Jesse‘s character.

217. Plaintiff calls Kelly Emerson and questions her concerning Ross Easterfield‘s conversation
with his wife concerning an earlier ―missing‖ piece of jewelry. (pp. 50-51) Consider the
admissibility of each of the sentences in Emerson‘s description of that exchange.

―She looked down at her left hand and didn‘t see the ring on her ring finger. She gave a jump and
shouted in a loud voice, ‗Oh my God, who took my engagement ring?‘‖

This appears to be an excited utterance under rule 803(2). This would be the example that
defines the rule, practically – she reacts before she has time to think. It could also be a statement
that goes to the declarant‘s state of mind under rule 803(3) – that Kerry immediately thought that
someone took the ring (she was suspicious) when she didn‘t see it on her hand.

Another thing to think about: this is a question, so you could say it isn‘t a statement and therefore
not hearsay in the first place. But there is a ―hidden‖ or ―implied‖ assertion here – that someone
stole her ring, so I don‘t think it would be enough to say that it just isn‘t hearsay in the first
place. Also, is it being offered for the truth of the statement? It‘s not being offered for the truth
that someone had stolen the ring at all. It is being offered for the fact that Kelly thinks that her
jewelry has been stolen.

―She was looking at me when she said this and I felt that I was being accused.‖

The second part is speculation – I would object to her testifying as to what Kerry thought. ―She
was looking at me‖ could be objected to by the defense as a nonverbal assertive statement. This



                                                 40
is sketchy – what the plaintiff is trying to prove is that by looking at Kelly, Mrs. E meant to
accuse her – ―You did it.‖ Basically, though, I think that ―hidden assertions‖ have to be a little
more straightforward, unambiguous – like a nod of the head or pointing or something. This is a
little too ambiguous. Who knows what she meant?

If it were a hidden assertive statement, it‘s not for the proof that Kelly did it, but to show Kerry‘s
state of mind – that her first reaction was to assume it was stolen and immediately accuse
someone on the staff. (That Mrs. E is such a delight.) (Maybe you could use it to show Kelly‘s
state of mind – that her first assumption was that Mrs. E was accusing her, because she usually
does.)

―Mr. Easterfield started asking her, ‗Where did you see it last?‘ That sort of thing.‖ After about a
minute of this, she lifted her right hand to gesture. Ross Easterfield said, ‗What‘s that?‘ They
saw it was the ring.‖

Both of these quotes from Mr. Easterfield are questions, and therefore not statements and
probably not hearsay. There really aren‘t any hidden assertions here. (He‘s also a party opponent,
801(d)(2), but I don‘t think we get that far.)

―He threw down his Wall Street Journal and walked out.‖

Really a stretch to call this hearsay, i.e. to say that his behavior was a nonverbal assertive
statement. What would the statement be? That Mrs. E does this all the time.

218. Ross Easterfield testifies for the defense. On cross examination, the plaintiff asks him what
Mrs. Easterfield said as Jesse left the library. (―That vulgar little tramp!‖ p. 26) Argue the
objections.

If hearsay is the objection, one response is that this statement is not being offered for the truth
that Jesse is a vulgar tramp, and therefore not hearsay. Possible exceptions, should you get there:
It‘s purpose is to show Mrs. E‘s state of mind (803(3)) – she‘s a bitch, she hates Jesse, etc. Also,
excited utterance (803(2)) – she‘s angered by Jesse‘s untoward behavior.

There could be a husband-wife privilege objection (501) here, although that‘s not the topic. Ross
said that he heard Jesse run up the stairs and then Mrs. E said this, so Jesse wasn‘t in the room at
the time – they were alone. On the other hand, if Jesse ran out crying and upset, she probably
didn‘t close the door on the way out (no testimony that she slammed it or anything) and Kelly
Emerson was right outside. I‘m not sure that you win an argument that they had an expectation
of privacy in this case.


219. Ross E. testifies for the defendant. During his direct examination, he testifies that he mailed
the original of the letter on page 113 to the insurance company on July 21. (The insurance
company has no record of receiving the original.) Defendant offers the printout of the letter.
Argue any objection.




                                                  41
Hearsay objection: I‘m assuming that if the defense is offering this letter, they are offering it not
for the truth that Mrs. E ―probably lost‖ the brooch, but that he didn‘t tell the insurance company
that Jesse stole it, i.e. Mr. E is a nice guy, and doesn‘t go around accusing people of stuff for no
good reason.

Best evidence: A printout of a document saved on a computer is an ―original‖ for the purpose of
rule 1002 by the definition in 1001(3)

Authentication: Ross can testify that this is the letter that he wrote (901(b)(1)). There won‘t be
signature at the bottom because it is the printout, not the one he sent, so that won‘t work. The
fact that the letter includes the policy number might show that it was likely that he had written it
(901(b)(4) – distinctive characteristic), if you get that far.


220. Marlow testifies for the defense. On cross, plaintiff seeks to inquire into Mrs. E‘s
relationship with Geo. Williams, the tennis coach (pp. 62-63). She asks: (1) Was Mrs. E having
an affair with your tennis coach?; (2) Was there a rumor to the effect that Mrs. E was having an
affair with your tennis coach?; and (3) [After laying foundation for the conversation with G.W.
recounted on pages 62-63] What did you say to him and he say to you? Argue the appropriate
objections to each question.

1. The witness does not have the requisite personal knowledge to testify to this – it is just a
rumor, and she can‘t confirm it. 602

2. I think your best bet would be a relevancy objection and a 608/609 objection – specific
instance of conduct – discussed below. I don‘t think that this would be admissible under 803(21)
because it is not general reputation of character, it is rumor about one thing. Again, I hope I
made this clearer below.

3. Assuming we get past the objection to the general line of questioning, we get to hearsay. Lee
isn‘t specific about exactly what she said. If she simply asked him a question, it is a question and
not a statement. His response is a ―threat‖/promise to be ―a good deal less discreet.‖ The
response to a hearsay objection might be that a threat isn‘t a statement (of something being true
in the world) and that they are not using it to prove the truth of his statement that he will be less
discreet. However, this may be a case of a hidden assertion, that by saying this, he is answering
affirmatively. I can‘t think what else this would be offered for if not for the truth. Lee‘s and
Geo.‘s states of mind are really irrelevant – what they thought has no bearing on the case. It is
only relevant if true. (Excited utterance? Maybe, but I think it is a stretch.)

The relevancy of this line of questioning depends on the theory of the case. Arguably, the fact (if
true) that she was having an affair goes to her character for honesty and truthfulness – not
exactly honest behavior. However, the treatise says that ―if all that can be said about the behavior
is that it might improper, immoral or unlawful ... asking about it cannot be justified under 608.
(p. 549) (I think you still might be able to argue about this – it‘s not a ―rule‖ per se, and it might
depend on the judge.) This is also extrinsic evidence of a specific instance of conduct which is
not permissible to show a witness‘ untruthfulness – it is collateral. (§6.27 of treatise)



                                                  42
However, if this is being offered for motive, interest, etc. and not simply general untruthfulness,
this evidence could be admissible under 608(b). If your theory of the case is that Mrs. E stole the
brooch herself in order to get blackmail money to pay G.W., this is arguably relevant to show
that she might be slanting her testimony to protect herself by making Jesse look guiltily. This is a
stretch, and whether it would be admitted would depend on the judge.

I think that in a real trial, Kerry would have to be given a chance to deny this first – you can‘t not
ask Kerry and then ask Lee Marlow. (If I‘m wrong, please let me know. Or maybe you could just
recall Kerry to ask her and have her deny it?)


221. Argue the admissibility of Jesse‘s statement, offered by her on direct, that Marlow‘s
secretary called her on July 22 and: (1) asked her for her social security number; (2) described at
length the employees‘ lounge at the club and told Jesse in detail how lavish it was; and (3) said,
―I have already prepared your W-4 forms. There are here on my desk.‖

1. This is a question and not a statement, so probably not hearsay on that ground alone.

2. Not hearsay because this is not being offered for the truth that the employees‘ lounge is lavish,
being offered for the mere telling – the implication that Jesse was going to be hired at that point
(before Easterfield interfered).

3. This is a present sense impression, an exception under 803(1). (This is the toughest one to
show, see below.)

All together, these statements could be considered hearsay because there is an implied assertion:
The club was going to hire Jesse before Lee spoke to Ross. I think it must be offered for the
truth: the secretary‘s belief is irrelevant, and really so is Jesse‘s. The fact that Jesse was sure she
would get the job irrelevant to whether they were going to hire her – maybe it justifies her
tantrum in the club, or that it was an especially crushing blow.


222. Quinn Washington is testifying for the prosecution. She testifies that, on the night of Sept.
10, she said to Mitchell, ―Joe, what have you done to Leslie? Why don‘t you leave her alone?
She‘s afraid of you, Joe‖ (p. 42). Defense objects on hearsay grounds and moves to strike. Argue
the admissibility of those sentences, one at a time, for the prosecution. For the defense, respond
to the prosecution‘s arguments.

Pros. resp: 1 & 2: These are both questions and not statements, therefore, probably not hearsay
according to the definition in 801.

3: This depends on your theory of the case. If you are arguing that Joe intended to kill Leslie, and
did, then this is pretty much hearsay. It is offered for the truth of the matter, and Quinn‘s belief is
pretty irrelevant. She can testify that Leslie‘s behavior indicated to Quinn that she was afraid, but
the statement is probably not admissible. On the other hand, if you are arguing that Joe shot



                                                   43
Leslie by mistake and was really aiming at Brooke, you might argue that the statement is not
offered for the truth, but for the fact that Quinn said it to Joe – establishes that he believed that
Leslie had become afraid of him, and it goes to motive – he‘s even more ticked at BLT.

Def. resp.: 1 & 2: They are questions, but they contain hidden assertions – that he has done
something to her and that he won‘t leave her alone – and are therefore hearsay.

3. The jury cannot help but take this statement for the truth of the matter asserted, even if the
prosecution argues that the truth is not what it is for. It‘s prejudicial effect outweighs it‘s
probative value under 403, and that under the same rule, it is confusing and/or misleading.


223. Slyviak is testifying in the Mitchell case. On cross examination defense asks whether
Slyviak told Det. Bradley that Slyviak believed Mitchell didn‘t do it (p. 6). The only objection is
hearsay. For the defense, respond.

Not hearsay because it isn‘t being offered for the truth of the statement -- that Joe didn‘t kill
Leslie -- but for the declarant‘s belief. As the first officer on the scene, the fact that Off. Slyviak
looked at the evidence, talked to BLT, and witnessed Joe‘s behavior, and didn‘t believe that Joe
had committed the murder is arguably relevant. He‘s (without offering him as such) sort of
expert on criminals, and what he thinks is persuasive. Could be an exception under 803(3) as a
statement of belief not for truth, but for declarant‘s state of mind, for the same reason. The
prosecution could argue that if he isn‘t tendered as an expert witness, he shouldn‘t be permitted
to give opinion testimony based on his police experience – and in fact, an expert witness isn‘t
supposed to testify to the ultimate question anyway under 704. This got in at my bench trial
anyway – probably because it was a bench trial, and the judge heard it anyway.


Problem #224:
This problem brings up rule 403 kind of problems in addition to the hearsay problems.
Of course there are hearsay objections
To get around the hearsay objections, first you could argue that it is not offered for the truth of
the matter asserted. One could also argue that the cab drivers comments are a present sense
impression under 803(1), or that they go to his state of mind under 803(3).

Her statements to Marlow may be admissible to show Jesse‘s state of mind, or her then existing
emotional condition under 803(3). The objection to this is that her statements are not a statement
going to state of mind, but rather a series of statements about other things.


Problem #225:
Reeve Winsor‘s deposition testimony is admissible as a prior inconsistent statement and there
fore not hearsay under rule 801(d)(1)(A). Winsor is testifying at the trial and is subject to cross-
examination concerning the statement, so he can be impeached by the statement in the
deposition. Prior inconsistent statements may provide substantive evidence as to the matter to be
asserted on an earlier occasion.



                                                   44
The motion should thus be denied.

Problem #226
This would be offered either as a prior inconsistent statement or as contradiction impeachment
on a non-collateral matter, so you could use extrinsic evidence.

Problem#227
This is an out of court statement consistent with testimony under oath. The prior consistent
statement can, under 801(d)(1)(B) offered to rebut the charge of prefabrication. However, Jesse
has the same motive to lie in that statement as she does today.

This goes to the law on prior consistent statement put forward in US v. Tome, where prior
consistent statements may be offered to rebut as long as they were made pre-motive. This is not
such a statement as Jesse had the same motive to lie before.

Problem #228
May be an excited utterance, but Brooke must still be under the excitement.
It may also be a present sense impression, if you can show the immediacy.
Your best bet for getting this in is by claiming that it isn‘t hearsay under 801(d)(1)(c), where a
statement is not hearsay if the declarant testifies at the trial and is subject to cross-examination
concerning the statement and the statement is one of identification of a person made affter
perceiving the person. This was not the intent of the framers, but some courts have admitted
such testimony.

Problem #229
(a bit cryptic, but this seems to be what everyone wrote down for this one)
Assume 801(d)(1)(c), it doesn‘t matter who the witness is; it‘s only necessary for the declarant at
some time to testify, and be subject to cross-examination.

Problem #230

Under 608(b), extrinsic evidence is inadmissible to show prior bad act, and can‘t show a general
character for untruthfulness.

Jesse‘s motive (as long as your theory is that Jesse stole the brooch).

Moreover, it could go to Ross‘s state of mind.

This is not being offered for the truth that she actually made $150.

Looks like it‘s being offered to show that a) she needed the money, and b) she lied. Probably an
invitation to treat. Probably all you need is to authenticate the document.

Could also lay the business records foundation for the application, and try to get it in that way.




                                                  45
231. On cross, Jesse is asked about a statement made in her deposition (that Ross never seemed to
take Jesse seriously).

(a) Best evidence problem? No. Having the written transcript means nothing.

(b) Hearsay? No--prior statement of party-opponent.

(c) Improper lay witness opinion? Defendant perhaps must lay a little foundation for the testimony,
but otherwise it‟s okay. Jesse will have had a rational basis for forming the opinion that Ross didn‟t
take Kerry seriously.

232. Jesse to Easterfield: “No!” This is not hearsay, merely the refusal of an offer—a verbal act,
non-assertive of fact.

233. Ross silent to Jesse‟s statement that he was calling her a thief? If he was really silent, then he
may have adopted her statement by his silence. Rule 801(d)(2)(B). The statement then falls the party-
opponent exclusion. However, Ross may have shaken his head to the statement. Defendant should
ask for a sidebar to address whether Ross might have adopted the statement, and the judge should
consider the facts about Ross shaking his head in ruling on the hearsay objection. If the judge
overrules the hearsay objection, defendant should make an offer of proof to record the issue for
appeal.

234. Admissibility of Jesse‟s lawyers “admission” about basis for charge of attempted armed
robbery. Assuming that the statements actually are an “admission,” then they are admissible under
801(d)(2)(C) because Jesse‟s lawyer has speaking authority for Jesse. Therefore, the statements are a
vicarious party-opponent admission.

The real question here is whether Jesse‟s lawyer‟s statement, “that would be the evidence,” is actually
an “admission” of the facts alleged by the State in the criminal suit. My instinct is that the statement
is in fact an admission, even though Jesse‟s lawyer was lousy and Jesse now says she knew nothing
about Holman‟s plans to rob the convenience store. Still, the statement is certainly open to
interpretation. One could argue that Jesse‟s lawyer simply admitted that the “basis” would be the
argument of the State at trial, not the events that actually occurred.

235. Kelly Emerson tells Rev. Taylor that breakfast at the Easterfield‟s is served at 9:00 on
weekends. This statement is a vicarious admission under 801(d)(2)(D) (admission by agent of party-
opponent concerning matter in scope of employment), provided that Kelly made the statement
while she was still working for the Easterfields.

236. Statements by co-conspirator.

(1) George Tomas: innocent co-conspirator makes statements to non-conspirator. The statement
Tomas made was during the course of and in furtherance of the conspiracy—it will be excluded
from the hearsay rule by Rule 801(d)(2)(E), according to some caselaw. However, there is no
extrinsic evidence that Tomas was a conspirator—the only evidence of a conspiracy is the statement
itself. According to 801(d)(2)(E), a statement cannot bootstrap itself into the co-conspirator
exclusion. Therefore, the statement is probably inadmissible.



                                                   46
(2) Daniel Kiley: there is extrinsic evidence (phone calls with Joe) that Kiley was a co-conspirator.
The State may argue that Kiley‟s statements to Raleigh Porter (“Joe wanted me to tell you that he
had no intention of shooting Leslie, only „the old lady‟”) were in furtherance of the conspiracy
because Kiley seemed to be soliciting sympathetic testimony from Porter. Therefore, Porter‟s
testimony about the conversation is admissible under Rule 801(d)(2)(E).

237. Chris Ravenna on telling Joe about bullets in gun. This statement falls under either present
sense impression (Rule 803(1)) or excited utterance (Rule 803(2)). Ravenna testifies to being
surprised that there were bullets in the gun. Though the time frame for present sense impression is
short (around 15 minutes or less), this statement was made immediately after Ravenna noticed the
bullets. It therefore falls squarely within the exception.

238.This would be declarant‘s present sense impression. But you would need to establish a
    timing foundation to show that she said this right after she perceived it. Could also try
    impeachment by contradiction-but would only work to have Kerry bring it in if it were a
    non-collateral issue. The word ―hidden‖ here is a legal conclusion-but the non-opinion rule
    is not applied to hearsay declarant.

239. This could be contradiction impeachment or prior inconsistent impeachment-but once
    again Kerry could only testify to this if it were a non-collateral impeachment. Under 613,
    Kelly does not have to be impeached during her cross, but she has to be able to come back
    up onto the stand after the impeachment.

240. One could argue that this is a present sense impression-but it may be tough to make this
    argument because there was a 15 minute gap in time between the perception and uttering the
    statement. So the Judge will make a 104(a) determination to see if this is a present sense
    impression.

241.Brooke‘s statement could be an excited utterance, a present sense impression, or not hearsay
    under 801(d)(1)(c). But 801(d)(1)(c) is usually used for line up situations.

242.Same as 241.

243.The statement is not for the truth of the matter but goes to show that Mr. and Mrs.
    Easterfield was put on notice that Jesse had to go to church.

244. ―I feel so, so, bad.‖-This would be an 803(3) exception-goes to Jesse‘s state of mind.
    ―There‘s nothing for me, just nothing.‖-Not for the truth of matter, but to show Jesse‘s
                                              state of mind.


245. Jesse seeks to testify that she said to Mr. Easterfield in the library on the 17th: “What‟s
going on here? You‟re making me feel very uncomfortable.” (p. 12) Argue the hearsay objection.

―What‘s going on here?‖ has a hidden assertion.
Saying ―I feel uncomfortable‖ is OK.


                                                   47
Saying ―You‘re making me feel uncomfortable‖ is an assertion. Then can use hearsay exceptions
R 803(1) for present sense impression or R 803(3) for then existing mental or emotional
condition.

246. Kelly Emerson testifies for the plaintiff. She testifies that Jesse told her, on the morning of
July 17, “that she didn‟t want to be late that day, since the opening hymn was one of her
favorites and always gave her the courage to go on” (p. 51). Argue the hearsay objection.

       Didn‘t go over in class. Can say that the state is not for the truth but for Jesse‘s state of
mind. Or if it is for the truth then R 803(3) for then existing mental condition.

247. Jesse testifies for the plaintiff. She seeks to testify to Reverend Taylor‟s remarks upon her
return to the rectory on July 17: “I‟ve always thought that Easterfield was a self-centered bas-…
person We‟d be better off if he hadn‟t gotten involved in this program at all. It‟s pure,
thoughtless, cruelty. A child pulling the wings off a butterfly. I‟m just so sorry, Jesse.” (p. 17)
Argue the objection.

        Inadmissible character evidence about Ross under R 404(b). Also opinion-laden. The
truth of the statements goes to so many facts that this is probably inadmissible.

248. Jesse is testifying for the plaintiff. She testifies that when she arrive at Reverend Talylor‟s
on July 17, she said that she “had left the Easterfield‟s because Mr. Easterfield had accused her
of stealing some of his wife‟s jewelry (p. 44-45). Argue the hearsay objection.
        The statement is initially under R 803(3) as Jesse‘s then existing mental state. Don‘t
assert the specific belief. But the statement is a memory or belief so it is an exception to the R
803(3) hearsay exception. Thus, the statement is inadmissible.

249. The objection is sustained Jesse now has been cross examined. The defense suggested on
cross that Jesse left the house because she had been caught in the act of stealing and that the
slander action was an idea hatched by a clever lawyer weeks later. On redirect, Jesse again
seeks to recount her words to Reverend Taylor. Nor argue the objection.
        Consider whether it would matter whether Reverend Taylor was the witness to Jesse‟s
words, rather than Jesse.

        The statement is now admissible as a prior consistent statement used to rebuts a charge of
recent fabrication under R 801(d)(1)(B). The statement was made before the motive to fabricate
that was charged on cross occurred. The motive charged on cross didn‘t exist at the time the
statement was made.

250. Kelly Emerson has testified that she cannot remember how she felt when Easterfield asked
her about the brooch on the 17th and cannot remember whether Mr. Easterfield asked her how
she herself felt about his inquiries on the morning of the 17th. (p. 52) Her recollection cannot be
refreshed. Easterfield testifies that he did indeed speak to Kelly several days after the 17th and
“said something like „Kelly, I hope you know that I did not mean to imply anything by asking you
if you had seen the brooch on the morning Jesse left‟” (p. 27). Argue the hearsay objection.




                                                  48
        Ross‘ statement is not offered for the truth of the matter asserted but to show his state of
mind.
        Some judges might consider statement to be a prior inconsistent statement. The judge
would ask herself if the witness truly does not remember or is the witness lying. If the judge
believes that the witness is lying, the statement is a prior inconsistent statement b/c this is the
kind of thing that a person would likely remember. Other judges believe that if the witness has
no memory this is not inconsistent with any statements.

251. The objection is overruled, Easterfield then testifies that Kelly replied, “No, of course not,
Mr. Easterfield. I didn‟t feel that you were accusing me at all” (p. 27). Again, there is a hearsay
objection and motion to strike. Argue the objection.

       Didn‘t do in class. Seems to be the same analysis as Problem 250. In her deposition,
Kelly says that she doesn‘t remember how she felt when Ross asked her if she had seen the
brooch (p. 52).

258. Plaintiff objects to Jesse‘s loan application.
     Objection: Hearsay. This is not hearsay b/c it is a party admission. Plaintiff may try and
     argue that because Jesse didn‟t write the application it is not but this won‟t fly b/c she
     signed it therefore adopting its contents.

     Objection: Relevancy. This is relevant to impeach the witness b/c she “lied” on the
     application. This is a prior inconsistent statement under 613(b) b/c Jesse testified as to
     what she made.

259. 1006: Plaintiff would have to provide the originals or duplicates to the opposing party at a
     reasonable time and place. The summary itself must be relevant and admissible. It would
     be relevant to impeach Lee Marlow‘s contention that the Club has a policy against hiring
     persons w/ criminal records. It‘s not hearsay b/c it is being used to impeach, but also b/c
     the information has been taking from business records/public documents. Extrinsic
     evidence may be used b/c the Club‘s policy is a non-collateral issue, so the evidence is used
     to impeach by contradiction. (discretion of judge to allow extrinsic evidence but would
     most likely be admitted).

260. Assuming the secretary is on the stand (b/c Lee Marlow couldn‘t lay adequate foundation),
     the Defendant objects on hearsay grounds b/c silence can be an assertion. This information
     is not hearsay under 803(7) which deals with the absence of records kept in accordance w/
     the provisions of 803(6). This is extrinsic evidence used to impeach Lee Marlow by
     contradiction. The Defendant will argue that the issue is collateral and therefore, extrinsic
     evidence is impermissible.

261. Defendant objects on hearsay grounds. Plaintiff argues that the bus schedule is a public
     document under 803(8)(a): activities of the office or agency. Doesn‟t need to be a witness
     to lay the foundation b/c the item is self-authenticating under 902(5). Another issue is that
     we are not offering it for the truth of the matter asserted but to show Jesse‟s mental state in
     relying on the document in order to catch the bus.


                                                 49
262. Defendant objects on best evidence grounds b/c Taylor wants to say what the document
     says w/o entering it into evidence and Taylor can‘t lay the foundation b/c he doesn‘t have
     personal knowledge w/o the actual document. If we had the document Plaintiff could use
     803(8)(c) b/c it‟s a factual finding resulting from an investigation. Plaintiff will argue that
     this is relevant to bolster Jesse‟s credibility b/c it is at issue here.

263. The report is self-authenticating under 902(1) b/c it is under seal. Defendant objects on
     hearsay grounds b/c no exception applies here. According to 803(8)(b) documents
     prepared by police officers or other law enforcement personnel offered against the
     Defendant in criminal matters do not meet the hearsay exception. Only could come in if the
     defense wanted.

264. See above. The issue here is whether the Coroner is considered to be law enforcement
     personnel under 803(8)(b). The state will argue that he/she is not. Courts probably split on
     this issue, and it seems that it most likely will come in.

265. The Government made this document in anticipation of litigation. This is self-
     authenticating because it is under seal. No best evidence problem because it‘s a duplicate.
     The defense will argue hearsay b/c the document was created in anticipation of litigation,
     which indicates a lack of trustworthiness.

266. Defendant will argue that it is admissible under 803(22); judgment of a previous
     conviction. It will most likely come in b/c the facts of her conviction are independently
     relevant to the case b/c it goes to her trustworthiness.

267. Defendant objects on hearsay grounds. Plaintiff argues 803(8), but this could be a problem
     b/c the text of the finding may be a conclusion of law. *******

268. Plaintiff will argue that it is not being offered for the truth of the matter but to impeach
     Mrs. Easterfield. This is extrinsic evidence of contradiction. The issue will be whether it is
     a collateral issue, if so, the Plaintiff can‘t introduce the extrinsic evidence. If non-collateral
     the Plaintiff can introduce the evidence.

269. Your honor, our expert will testify that Kasper‘s is an authoritative work in the field; may
     also get by judicial notice. You would then cross-examine him using the treatise. Then,
     your witness will explain when called. 803(18).

     If we don‘t have our own expert we can‘t offer the statement w/o offering it under the
     cross-examination of Steinfels. We do have an expert in this case, so we can use in her
     direct testimony w/o addressing Steinfels.

     Statements are read into evidence but are not received as exhibits!




                                                  50
276. The deposition testimony of Alice Adams is admissible under the 804 (b)(1) exception to the Hearsay rule.
The foundational elements of this exception are as follows: the declarant is unavailable as defined under 804(a); the
deposition testimony was given in a proceeding; and the opponent against whom the testimony was offered ―had an
oppurtunity and similar motive to develop the testimony by direct, cross, or redirect examination.‖
         A. Alice Adams is unavailable as a witness under 804(a)5. In state civil suits, like MacIntyre, state courts
only have the power to subpoena those within the state borders. While in theory a court might require a proponent
to try to persuade a declarant who lives beyond state bounds to attend the trial, or require the proponent to pay for
the declarant to attend, where there is deposition testimony offered courts are lenient. If the declarant of deposition
testimony now resides out of state, he or she is considered unavailable. see page 1016 of treatise.
         B. The deposition testimony here offered was given in a proceeding in preparation for this trial, so it fits the
first part of 804(b)1. The opposing party in this case was present at the deposition, and in fact developed the
testimony through cross-examination. If deposition testimony is offered in a trial for which it was not prepared, the
question becomes whether the parties and issues are similar enough so that the opposing party would have had the
opportunity and motive to have developed the testimony to his or her best advantage.
         C. In the Alice Adams dep, the opposing counsel had ample opportunity to cross the witness. Opportunity
and motive are the crucial factors; if the party had the opportunity and motive to develop the testimony but did not
maximize it the dep testimony can still be offered.
          This exception is justified because the statements being offered must be offered through hearsay
(necessity) and they are probably trustworthy (because taken under oath and subject to cross).


277. The plaintiff can easily get the rest of the deposition into evidence through the rule of completeness (FRE
106). The rule covers depositions, and is intended to prevent parties from misleading the jury by taking things out
of context. see page 63 of treatise. It‘s clear that in this situation that a jury would be misinformed if it did not have
the rest of the deposition transcript from the Alice Adams deposition.


278. Despite the way this question is worded, I think that the prosecution would be arguing for the admissibility of
the ―oh no Joe‖ statement under 804(b)2, while the defense would argue to keep it out. To get this statement
admitted, the prosecution would have to show that 1. this was a prosecution for homicide(duh), 2. that the statement
was made by the declarant while believing her death was imminent, and 3. that the statement was concerning the
cause or circumstances of her death. Obviously, it‘s pretty easy to establish those things here.
         The defense could argue that there‘s no guarantee that Leslie subjectively thought that she was going to die
at the time of the statement. While a declarant‘s own statements can be used to establish her belief in impending
death, there were no such statements here. Maybe Leslie hadn‘t seen the gun, and was just saying something about
how she didn‘t want to see Joe that night. But the surrounding circumstances indicate that she most likely was
crying out in fear, and that that fear was connected to her belief in impending death. The statement is admissible.
         Oh yeah, Leslie‘s dead (we‘ve all seen the pics) so she ain‘t talking to nobody. Unavailable under
(804)a(4).




                                                            51
279. This problem raises some of the same issues as problem 276, but here the proceeding from which the
testimony is taken is not the same as that in which it is offered. The opposing party in the MacIntyre case has never
had any opportunity to cross examine Holman, and while the purpose for which this testimony is probably being
offered in MacIntyre is Jessie‘s innocence, which was of some importance at Holman‘s trail, it was not really central
and the defense lawyers in MacIntyre couldn‘t cross Holman on it. This testimony therefore does not really fit the
(804) b(1) exception to the hearsay rule, since it fails the second foundation requirement of that exception (that the
opposing party have opportunity and motive to develop testimony).


280. Jessie‘s statement that Marlow told her that tips at the club are 50-75$ a week is hearsay, since its only
relevance to the issue of damages is the truth of how much she would have made in tips per week. The declarant,
Marlow, is available to testify at trial. Also, the source of Marlow‘s knowledge is hearsay itself (she asked around at
the club), so we are faced with hearsay within hearsay. I don‘t think there‘s an exception that applies here, so it
would probably not be admitted. A fairly attenuated (read bullshit) plaintiff‘s argument could be that it‘s being
offered not for its truth, but to show the extent of Jessie‘s trauma, and thus to heighten the compensatory damages
for emotional distress. The plaintiffs could say that they are offering it to show how much money Jessie thought she
was going to get at the club, and how that expectation took poor Jessie to new heights of hopefulness despite the
continuing series of tragedies that was her life. We all know that the higher you are the harder you crash, so when
the news came that she wasn‘t getting the wonderful club job with 50-75$ a week in tips the emotional damage was
just that much more painful. Therefore, Easterfield should have to pay more to compensate Jessie for her emotional
distress.


281. If Marlow testified to this, however, it probably would be admitted, although I can‘t really think of an
exception to get over the fact that it‘s hearsay even coming from her. It might be a good case for the 807 catchall,
since the two factors on which all hearsay exceptions base themselves (necessity and trustworthiness) are both
present here. In the context of this trial, no one else is in a good position to testify to how much people make in tips
at the club, so it‘s necessary in order to properly compute damages that Marlow testify. It‘s also trustworthy
testimony, since Marlow says that she actually uses this figure, gleaned from club employees during salary
negotiations, to figure their base salaries.
            Actually, the statement by the club employee to Marlow during negotiations can maybe be construed as a
statement against pecuniary interest, and since she or he is functionally unavailable for this trial, it would not be
hearsay. To be a statement against interest, someone must know or think that making that statement at that time is
against his or her interest. Since these were salary negotiations, and the person knew Marlow would take the tip
figure into account when computing pay, it is probably against interest. Of course, this could cut the other way, and
the defense could say that it‘s possible the person was lowering the figure because it was a salary negotiation. That
would probably be a bad argument for the defense to make, however. . .




                                                           52
282.   This is a double hearsay problem. The first link is Marlow telling Jesse. The second link
       is Jesse telling Taylor. The admissibility of this (as in many hearsay problems) depends
       on why you‘re trying to get it in. I think the best argument if you‘re trying to get it in is
       that the first link is being offered for Marlow‘s state of mind, and that the second link is
       being offered for either Jesse‘s state of mind or notice to Taylor. It‘s a weak argument,
       because the truth of the matter asserted is probably the real reason why it‘s being offered.
       It would be easier to get it out through Jesse. An alternate possibility is calling Taylor as
       a rebuttal witness to impeach Marlow‘s testimony that Jesse‘s criminal conviction was
       the reason why Marlow didn‘t hire her.

283.   a)      This is also a double hearsay problem. The first link is Jesse to Martha. The
       second link is Martha to Kelly. The first link gets in because it‘s offered for Jesse‘s state
       of mind. At any rate, it‘s a party admission. The second link is a little fuzzier. I would
       argue that the statement to Kelly is ―I heard Jesse say ‗. . . .‘.‖ Therefore, it‘s probably
       also being offered for Jesse‘s state of mind. The argument against it is that the truth of
       the matter is what is relevant to establish Jesse‘s state of mind.

       b)     This also goes to Jesse‘s state of mind, and it‘s a party admission.

       c)     My feeling is that this is an improper lay opinion (speculation), although there‘s
              an argument that it‘s reasonably based on her perception.

       All of these statements are only relevant if the defense argues actual theft, since
       Easterfield never had notice of these statements to form a reasonable belief.

284.   This is a triple hearsay problem: Easterfield to Marlow to Jesse to Taylor. The first link
       is a party admission. The other two links are being offered for the truth, so they‘re
       inadmissible.

285.   There are 3 hidden assertions involved. This question has to be split into two
       possibilities. If Marlow‘s silence at the end of Jesse‘s babbling is equivalent to an
       affirmative nod, then Marlow‘s actually the declarant of the hidden assertions, which are:
       1) Easterfield accused you; 2) Falsely; and 3)You‘ve never stolen. If it‘s not an
       affirmative nod, then Jesse‘s the declarant. The first assertion can‘t really be made by
       Jesse, since she can‘t assert without first hand knowledge. But the other two are
       assertions by her. At any rate, it‘s all inadmissible since it‘s being offered for the truth.

286.   If Mrs. Zanoni‘s testmony is being offered to impeach Mr. Zanoni, it‘s ok under Rule 806
       (Mrs. Zanoni‘s deposition falls under 804(b)(1)), although it might not be relevant. Since
       Mr. Zanoni was the hearsay declarant, his prior or subsequent statement can be
       impeached. It can‘t be offered to impeach Easterfield, though, because Easterfield didn‘t
       make a statement that could be shown as inconsistent or contradicted. If the defense
       offers Mr. Zanoni‘s statement for Easterfield‘s good faith belief, the plaintiff probably
       can‘t get any of Mrs. Zanoni‘s statement in. Mrs. Zanoni‘s statement might be




                                                 53
       independently admissible as non-collateral contradiction evidence, however, to show that
       Jesse didn‘t have the brooch.

287.   This is a double hearsay problem. Holman‘s statement could potentially get in under
       803(3) as his then present intention, but Stiko‘s statement is inadmissible hearsay (and an
       unauthenticated one, at that).

288.   The answer to this is lifted from someone else, because I like it so much:

          This is admissible as nonhearsay because it is an impeachment use of an out-of-court
         statement. It is not offered for the truth, but rather to show that Marlow‘s testimony is
                                                 not credible.
       This is multiple hearsay, however, and the second level of hearsay (that it is a video tape
       of Martha, not her own testimony) would have to fit an exception under R804 – Hearsay
       Exceptions; Declarant Unavailable. The only one it could possibly fit would be statement
       against interest if you could show that Martha still worked at the Club while she made the
       statement and could possibly have been fired for testifying as she did (and knew that she
       could be fired.)




                                               54