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EVIDENCE_ESSAY_QUESTIONS_1-6

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					                              EVIDENCE ESSAY QUESTION #1
                                    MODEL ANSWER

  Dave, a waiter at Bill's Cafe (Cafe), is on trial by jury for the crime of arson, defined by statute
as setting a building afire either intentionally or with gross and reckless disregard for human life.

  1. The prosecution's first witness was Sam, a cook at Cafe, who testified, over objection, that
just prior to the time Cafe burst into flames, Bart, another waiter, ran into the kitchen shouting
that Dave was spilling gasoline all over the lobby, and that someone should call the police
because what Dave was doing would kill them all. Bart cannot be located by either party.

  2. Ellen, assistant manager of Grill Restaurant (Grill), was called as a witness by the
prosecution and testified, over objection, that Dave had been a busboy at Grill before he became
employed at Cafe, and that she had fired him after she found Dave showing other employees
how to construct a gasoline bomb.

   3. After the prosecution rested, Dave took the witness stand and testified that he had been
ordered to clean the lobby doors and ornamental brass work at Cafe, and that he was using
gasoline as a cleaning solution in that work when a patron entered and flipped a lit cigarette butt
on the lobby floor, igniting the gasoline. On cross-examination, over objection, the prosecution
elicited the fact from Dave that, two years earlier, he had been expelled from college for cheating
on a final examination.

  4. The defense next called Dr. Hix, a chemist, who testified, over objection, that based on his
pretrial review of standard scientific treatises, as well as his own experimentation, it was his
expert opinion that although use of gasoline as a cleaning fluid cannot be recommended, its use
for that purpose in normal circumstances is reasonably safe, if the gasoline vapor is kept from
contact with hot filaments or burning objects.

  5. In rebuttal, the prosecution, over objection, asked the judge to take judicial notice that
gasoline vapor is so combustible that use of gasoline as a cleaning fluid in space occupied by
other persons constituted gross and reckless disregard for human life, as a matter of law. The
court stated that it took such notice.

        Assuming that all objections were properly made, should the evidence objected to in
        items I through 5 have been admitted? Discuss.
                             EVIDENCE ESSAY QUESTION #2
                                   MODEL ANSWER

   Dan is charged with the murder of Vickie, who was strangled with a red scarf and left in a
                garbage container. At the trial by jury, the following occurred:


 1.      Roomi, Vickie's roommate, testified for the prosecution that Vickie told her as Vickie
was leaving their apartment on the night of her death, "Dan and I are going to see `The Graduate'
                                        at First Theatre."

  2.     At the prosecutor's request, the court took judicial notice that on the night of Vickie's
                      death, First Theatre was showing "The Graduate."


     3.     Sally, who had dated Dan about a year prior to Vickie's death, testified for the
prosecution that when she rebuffed Dan's sexual advances he dragged her into an alley by some
            garbage containers, produced a red scarf, and attempted to strangle her.

     4.     The prosecution introduced into evidence Dan's constitutionally obtained written
    statement that on the night of Vickie's murder he had gone alone to Second Theatre to see
"Cinderella." The prosecution then called Manny, the manager of Second Theatre, who produced
 a photocopy of the Second Theatre's computer printout that listed the movies shown during the
 two-week period around Vickie's death. It reveals that at no time during that period did Second
Theatre show "Cinderella." The photocopy of the computer printout was received into evidence.


5. Pro, a member of the same country club to which Sally belongs, testified for the defense that
              Sally has a reputation at the club for lying about her golf scores.


             Assume that in each instance all appropriate objections were made.
             Was each item of evidence, 1 through 5, properly admitted? Discuss.
                                 EVIDENCE ESSAY QUESTION #3
                                       MODEL ANSWER


 Phil's car and Don's car collided in the intersection of Main and Elm Streets. Phil sued Don for
 his injuries and for damage to his car. Phil alleged that Don went through the stop sign at Main
    and Elm Streets. In the jury trial of Phil's suit against Don, Phil called Officer Jones as his
                 witness. The following questions were asked and answers given:
                                                   Q. Tell us your name.
                                                        A. Joe Jones.
                                                     Q. Your business?
                                                      A. Police officer.
                          [1] Q. You've been assigned to the traffic division for sixteen years?
                                                            A. Yes.
                          Q. Did you go to the intersection of Main and Elm on July 1, 1993?
                                                            A. Yes.
                                                    Q. What did you see?
                                      A. A red car and a blue car in the intersection.
                                           Q. Describe the condition of the cars.
                A. The front of the blue car was smashed up against the driver's side of the red car.
                               Q. Did you later learn the identity of the drivers of the cars?
                              [2] A. Yes. Phil drove the red car and Don drove the blue car.
                                              Q. Were any persons present?
                                                   A. Yes, Phil and Don.
                                           Q. Did you hear them say anything?
           [3] A. Yes. Don said to Phil, "I'm sorry I blew the stop sign. Let me pay your hospital bills."
                                           Q. Did you observe Phil at that time?
                              [4] A. Yes. He had a concussion, a bloody nose and a cut lip.
                                                 Q. What did you do next?
                 A. I checked out the cars and made some measurements, using my tape measure.
                   Q. Based on what you heard and what you did, what did you think occurred?
                                    [5] A. Don ran the stop sign and plowed into Phil.
                                          Q. What did you next do at the scene?
                             [6] A. I issued a ticket to Don for failing to obey the stop sign.
                               Q. By the way, did you know what happened to that ticket?
                  [7] A Yes. Don was found guilty and his license was suspended for six months.
                                          [Cross-examination by Don's attorney]
                                  Q. Didn't you make a police report about this incident?
                                                            A. Yes.
                                                   Q. Isn't this the report?
                                                   (Tendering document)
  [8] Q. In your report where you refer to Don's statement, all you have written is, "Don said, `Let me pay your
                                           medical expenses."' Isn't that correct?
                                               A. Yes. That's all that's there.
        [9] Q. Isn't it true that you have received four departmental reprimands for using excessive force?
                                                            A. Yes.

What objection or objections could Phil's attorney or Don's attorney reasonably have made to the
question or answer at each of the places indicated above by the numbers in the left-hand margin,
                and how should the court have ruled in each instance? Discuss.
                                 EVIDENCE QUESTION #4


         Mary Smith sued Dr. Jones, alleging that Jones negligently performed surgery on her
back, leaving her partly paralyzed. In her case-in-chief, Mary called the defendant, Dr. Jones, as
                        her witness. The following questions were given:

[1]     Q: Now, you did not test the drill before you used it on Mary Smith’s vertebrae, did you?
           [2]     A: No, That’s not part of our procedure. We don’t ordinarily do that.
    [3]     Q: Well, since Mary’s operation, you now test these drills immediately before using
                                           them, don’t you?
                                                 A. Yes.
  [4]     Q: Just before you inserted the drill into my client’s spine, you heard Nurse Clark say
                              “The drill bit looks wobbly,” didn’t you?
                                           A: No. I did not.
              Q: Let me show what has been marked as plaintiff’s exhibit number 10.
        [tendering document]. This is the surgical report written by Nurse Clark, isn’t it?
                                                 A: Yes.
    [5]     Q: In her report she wrote: “At time of insertion I said the drill bit looked wobbly,”
                                               didn’t she?
                                     A: Yes. That’s her opinion.
   Q: Okay, speaking of opinions, you are familiar with the book, General Surgical Techniques
                                          by Tompkins, aren’t you?
                                                 A: Yes.
                                  Q: And it is authoritative, isn’t it?
                                       A: Some people think so.
[6]     Q: And this book says, at page 255, “Always test drill bits before using them in spinal
                                                  surgery,” doesn’t it?
                              A: I guess so, but again that’s his opinion.
                       Q: Now, you’ve had some trouble yourself in the past?
                                        A: What do you mean?
[7]     Q: Well, you were accused by two patients of having sexually abused them, weren’t you?
                                   A: That was all a lot of nonsense.
[8]     Q: But you do admit that two other operations which you performed in 1993 the drill bit
                     which you were using slipped during back surgery, causing injury to your
                                                patients?
                                       A: Accidents do happen.


          What objection or objections could Dr. Jones' attorney reasonably have made to the
question or answer at each of the places indicated above by the numbers in the left-hand margin,
                and how should the court have ruled in each instance? Discuss.
                              EVIDENCE ESSAY QUESTION #5

 Dan was charged with arson. The prosecution attempted to prove that he burned down his failing
  business to get the insurance proceeds. It is uncontested that the fire was started with
                       gasoline. At a jury trial, the following occurred:

The prosecution called Neighbor, who testified that fifteen minutes after the fire broke out, he saw
                            a blue Corvette speed from the scene.

  The prosecution next called Detective Pry. Pry testified that he checked Motor Vehicle
 Department records and found that a blue Corvette was registered to Dan. Pry also testified
              that he observed a blue Corvette in the driveway of Dan's house.

The prosecution then called Scribe, the bookkeeper for Dan's business. Scribe testified that, two
  months before the fire, Dan told Scribe to record some phony accounts receivable to increase his
  chances of obtaining a loan from Bank. Scribe then testified that she created and recorded an
 account receivable from a fictitious entity in the amount of $250,000, but that Bank denied the
loan anyway. Scribe further testified that, two days after the fire, Dan again told her to create
                some phony accounts receivable, but that she refused to do so.

 The prosecution called Jan, the night janitor at Dan's business, to testify that the evening before
 the fire, as Jan was walking past Dan's office, Jan heard a male voice say, "Gasoline is the best fire
starter." Jan knew Dan's voice, but because the office door was closed and the voice muffled, Jan
                             could not testify that the voice was Dan's.

    Assume that, in each instance, all appropriate objections were made.

                       Should the court have admitted:

                  1. Detective Pry's testimony? Discuss.
                      2. Scribe's testimony? Discuss.
                        3. Jan's testimony? Discuss.
                             EVIDENCE ESSAY QUESTION #6

Dan was arrested and charged with possession of heroin with intent to sell. Dan allegedly sold a
  small bag of heroin to Peters, an undercover officer, at Guy's Bar and Grill. In his opening
statement, Dan's lawyer said the evidence would show that Dan was entrapped. The following
                                   incidents occurred at trial:
1. The prosecutor called Wolf, a patron at Guy's, who testified over defense objections that Dan
told him the night before the alleged sale that Dan intended to "sell some baggies" to Peters the
                                            next night.
2. The prosecutor called Peters, who testified that she was working as an undercover officer and
 received information that Dan was selling heroin at Guy's. She testified she went to Guy's two
 nights before the date of the arrest. Over defense objections, Peters testified she talked to Bob,
   another bar patron, who told her that he had bought marijuana from Dan at Guy's the night
                                              before.
3. Peters testified she found out that Dan used e-mail. Over defense objections, she testified that
she had e-mailed Dan a message to meet her at Guy's with a small bag of heroin on the night in
question. Peters preserved a paper copy of her e-mail message, which, over defense objections,
                                   was introduced into evidence.
  4. The defense called Dan as a witness. Dan testified that Peters had begged and pleaded with
him to get heroin for her because she was suffering from withdrawal and needed a fix. On cross-
   examination, the prosecutor asked Dan, over defense objections: "Isn't it true that you were
 arrested by the police for selling marijuana in 1994?" Dan answered: "Yes, but they didn't have
      any evidence to make the charge stick." The prosecutor moved to strike Dan's answer.
5. The defense called Cal, Dan's employer, as a character witness. The defense laid a foundation
 showing that Cal had known Dan for ten years. Over the prosecutor's objection, Dan's lawyer
    asked Cal if he had an opinion on Dan's good moral character. Cal answered: "Yes, I and
  everyone else who have known Dan for many years know that he always tells the truth." The
                            prosecutor moved to strike Cal's answer.
Assume all appropriate objections were made. Was the objected-to evidence in items 1 through 4
properly admitted, and should the motion to strike in items 4 and 5 have been granted? Discuss.

				
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