Evidence Practice Problems

5-7 Larry allegedly sexually assaulted Jan. Then, Larry allegedly similarly assaulted another person 3 months later. At trial for the assault against Jan, the prosecutor attempts to admit evidence of the more recent assault. Is this permissible?

In that case, the court found this evidence admissible, holding that there is no chronological limitation implied under the rules surrounding character and propensity evidence related to sexual misconduct.

6-2: This problem is based on United States v. Gross, 603 F.2d 757 (9th Cir. 1979). In the actual case, the court applied the same basic factors from the Brewer case. It considered the nature of the crimes, the time of the conviction, the similarity between the past and current crimes, and the importance of the defendant's testimony, and its centrality to the case. It found that previous drug dealing had minimal probative value, but perhaps more than other crimes of violence. It also held that the facts of the prior convictions were not so similar as to cause substantial prejudice (think about preventative lock up concern). Nevertheless, the specific facts of this case could make admission of the prior drug offenses particularly harmful. Thus, the court says this evidence is inadmissible.

In the actual case, the court applied the same basic factors from the Brewer case. It considered the nature of the crimes, the time of the conviction, the similarity between the past and current crimes, and the importance of the defendant's testimony, and its centrality to the case. It found that previous drug dealing had minimal probative value, but perhaps more than other crimes of violence. It also held that the facts of the prior convictions were not so similar as to cause substantial prejudice (think about preventative lock up concern). Nevertheless, the specific facts of this case could make admission of the prior drug offenses particularly harmful. Thus, the court says this evidence is inadmissible.

4-11Herbert was sexually abused at knifepoint by another male prisoner while being held in "protective custody." Herbert now brings § 1983 claims against several prison guards and officials, alleging that they violated his due process rights by placing him in the "protective custody" unit. He is also arguing that he experienced emotional anguish because of the experience. At trial, the defendants want to present evidence that Herbert may be gay or bisexual. They want to present evidence attesting to this fact. Herbert filed a motion in limine to exclude this evidence pursuant to FRE 404(b). Should the court admit this evidence

In the actual case, the court denied the admission of this evidence, concluding that is was irrelevant character evidence. The prior acts here alleged—consensual sexual behavior with a person of the same sex—is not sufficiently similar to the acts alleged in the present case. And the risk of prejudice here is potentially great. Thus, the court did not admit this evidence

5-5 Defendant testifies that he killed a corrections officer because the officer was going to let other inmates out of their cells to injure or kill him. Defendant also admits to prior killings. Prosecutor says that these comments opened the door, allowing the prosecutor to ask about whether the defendant was known to be a peaceable man. Prosecutor then goes into detail about prior conduct. Did the defendant open the door in this case?

In the actual case, the court held that the defendant did not actually open the door here. While prior convictions were admissible under FRE 609 (we'll get to that soon), the sarcastic question about peacefulness was inadmissible

4-8Corrections officers allegedly beat an incarcerated man, George, after he spit on them. George files a § 1983 suit. At trial, the issue is whether the officers used the necessary force required to maintain order, or whether they used force maliciously with the intent to cause harm. The officers want to admit George's disciplinary record showing that he regularly had confrontations with the officers. Meanwhile, George wants to admit some prior incident reports where George claims that officers previously used excessive force against him. George claims the prison never investigated these incidents.

In the actual case, the court held that the disciplinary records were inadmissible, but the prior incident reports were relevant to speak to motive and intent. For the plaintiff's records, the key inquiry is whether the defendant's use of force was excessive so as to reach the level of being an unconstitutional act, or whether force was used in good faith to maintain order. Given this standard, the court concludes that the intent or motive of the plaintiff is not particularly important. Conversely, the intent of the defendants matters—making their record of use of force probative to intent or motive in the actual case.

5-8 Defendant faces charges for molesting his 10 year old niece. The niece's mom wants to testify that the defendant also raped her 11 years earlier when she was 20. Is this admissible?

In the actual case, the court held that this evidence is admissible with a limiting instruction. But the case is close. The limiting instruction was as follows: "Ladies and gentlemen of the jury ... this is evidence that is received for a limited purpose only. Congress passed a rule that said that in cases of alleged sexual assaults that evidence of other alleged sexual assaults may be admissible in evidence. It's—it doesn't mean that the Defendant is guilty of the crimes for which he's on charge here. But the jury can give this evidence plus the cross-examination, of course, as much weight as you want to give it. And so that's the purpose of this evidence. Normally, as I said before, the fact that you were speeding five years ago doesn't mean that you were speeding yesterday or something of that nature, okay?"

6-5

In the actual case, the court held that this evidence is only admissible to prove that the victim allegedly fabricated a story of rape in the past. Her testimony and her credibility are critical to prove that this rape actually happened. False claims of rape are not protected by FRE 412. Thus, court says evidence of prior false claim is admissible, but evidence of prior consensual sexual activity is inadmissible.

5-1

In the actual case, the court held that this evidence was inadmissible. The court said that this was not evidence that she had some pertinent character trait related to this case. It was direct evidence of prior behavior. This, the court said that she could not offer this type of direct evidence under the rules.

5-2

In the actual case, the court held that this was not a crude attempt to elicit character evidence. It was also an attempt to introduce religious affiliation, which is more akin to a specific instance of conduct. But putting that issue aside, the way this evidence is presented is not pertinent. Just because someone is a Rastafarian doesn't mean they have a character for nonviolence. We need character evidence to be based on a witness's observation of the defendant over time--not a mere assumption based on religious affiliation.

5-3 A defendant faces drug trafficking charges. The defendant presents his girlfriend as an alibi witness. The girlfriend says that the defendant had dropped off his son that night and had dinner with his family, suggesting he is a family man.Prosecutor says this is impermissible character evidence under FRE 404(b). Defendant says it is permissible as it constitutes an opinion as to his character on a pertinent matter in the case. Thus he has the option of presenting it. Should the trial judge admit this evidence?

In the actual case, the court in says that this is not a pertinent trait of character. It is not incompatible for someone to be both a family man and a drug trafficker. Even if it were considered pertinent, the court at the appellate level says that it should have been denied under FRE 403 balancing

4-7 A police officer chases two presumably armed robbers, Anthony and Tammy. The officer eventually catches up to them with his dog Iron. The officer releases Iron on Anthony and Tammy. Iron bites the robbers several times. When they fight back against Iron, the officer yells "Don't touch my dog," and allegedly beats them. They suffer serious injuries. Anthony spends five months in rehabilitation, but never fully recovers. He eventually pleads guilty to robbery and is killed while serving time in state prison. Anthony's mother brings a § 1983 suit against the officer involved in the dog mauling. The issue at trial is whether the officer hit Anthony by mistake or intentionally as retribution for hitting the officer's dog. To support her case, the mother seeks to introduce evidence that in 1982, a fleeing burglar stabbed the officer's prior dog, Rebel. The officer then shot and killed the suspect. The officer gave Rebel a full funeral and made various comments to the press.

In the actual case, the court says the trial court should have admitted the evidence. The court says it speaks to intent and lack of mistake. It helps corroborate Obloy's testimony and the testimony of the paramedic, suggesting that the prior act might have convinced the jury that Wing struck Casella with the intent to punish him for kicking Iron. Thus, it seems possible that the blow to the head was no mistake

4-9 Andrew allegedly shot and killed two Chicago police officers. He confessed during interrogation. Later, he claims that police used electroshocks and physical violence to coerce a false confession out of him. Andrew brings a § 1983 suit against the officers. Andrew wants to admit evidence of allegations by 2 prior individuals who claim to have suffered similar torture at the hands of the same officers. Should the trial court admit this evidence?

In the actual case, the court ultimately admitted the evidence. Court says it could prove intent, opportunity, preparation, and plan. This practice problem is also a particularly helpful example of how courts employ the missing word of common plan or scheme. In the facts of this case, it does not appear that the plaintiff is arguing that the defendant police officers electrocuted a previous person as part of a plan to electrocute them. There wasn't a single, persistent goal. Nevertheless, the individual acts seem sufficiently similar to support an inference of a common plan or scheme. This is how many courts will employ this missing word in other similar cases

5-10 : A woman claims that her doctor sexually assaulted her. She wants to admit a prior questionable civil claim against the doctor. They are somewhat similar, but still factually distinguishable. The civil claim was ultimately dropped. Is this evidence still admissible?

In the actual case, the court ultimately held that this failed the FRE 403 balancing test.

4-10 Two See-Doos collide. One side (the survivor) wants to sue See-Doo, arguing that products had a defective stop switch. See-Doo denies this and wants to present evidence that the plaintiff engaged in dangerous 180 and 360 degree tricks at the time of the collision. See-Doo also wants to admit evidence that the plaintiff engaged in such dangerous conduct many times before.

In the actual case, the defendant was not seeking to show a character trait of reckless conduct on the part of the plaintiff. Rather, defendant was simply seeking to prove plaintiff's conduct shortly before the collision in order to demonstrate that his own negligence was the proximate cause of the collision. This makes the evidence of the behavior immediately leading up to the accident relevant. But the prior behavior appears to be simple character or propensity evidence prohibited by FRE 404(b).

6-4

The court in the actual case said that, while this evidence may theoretically be admissible to show an alternative source of an injury, it fails FRE 403. The likelihood that the evidence would speak to the injury in question appears to be small, given the lack of details and information on timing. And the possibility of unfair prejudice is high

5-4 The defendant is charged with selling drugs. In his defense, he claims that he was well to do, meaning that he had no reason to sell these drugs. He also claims that he had plans to open a different business. He makes these claims in the opening arguments. Prosecutor says that this opened the door. Did the defendant open the door, allowing the prosecutor to now talk about prior marijuana convictions?

The court in this case held that this did not open the door. This did not raise a character judgment sufficient to allow the prosecutor to refute this. Plus, under FRE 609, this is a misdemeanor that does not involve dishonesty. Inadmissible.

6-3: This problem is based on United States v. Miller, 2004 U.S. Dist. LEXIS 23299 (E.D. Pa. 2004). The court in this case ultimately excluded the evidence. Under FRE 609, the court held that the probative value is outweighed by the unfair prejudice of the evidence. The court worried that the jury would draw unfair, prejudicial conclusions. The court was also concerned that car theft does not speak to truthfulness. The court also said that the defendant's testimony is important in this case for him to rebut these claims. The admission of this evidence would unfairly deter the defendant from testifying on his own behalf at trial.

The court in this case ultimately excluded the evidence. Under FRE 609, the court held that the probative value is outweighed by the unfair prejudice of the evidence. The court worried that the jury would draw unfair, prejudicial conclusions. The court was also concerned that car theft does not speak to truthfulness. The court also said that the defendant's testimony is important in this case for him to rebut these claims. The admission of this evidence would unfairly deter the defendant from testifying on his own behalf at trial

6-1 This problem is based on United States v. Whitemore, 359 F.3d 609 (D.C. Cir. 2004). The court in this case ultimately holds that Officer Soto's failure to report his suspended license is admissible, but the character assessment is inadmissible given the witness's lack of personal knowledge to offer such a character assessment. The court says that failure to report a suspended license to an employer is probative as to the truthfulness of Officer Soto.

The court in this case ultimately holds that Officer Soto's failure to report his suspended license is admissible, but the character assessment is inadmissible given the witness's lack of personal knowledge to offer such a character assessment. The court says that failure to report a suspended license to an employer is probative as to the truthfulness of Officer Soto.

5-9: Defendant is arrested for child pornography. The case goes to trial, where the government wants to introduce a prior conviction for child pornography against the defendant. The defendant says that child pornography is not molestation or assault under FRE 413-415. Should the court admit this evidence?

The court says this is admissible. The defendant is accused of a violation of Chapter 110 of Title 18 of the U.S. Code. Congress intended these rules to be read broadly. Here, sexual interest in children and the production/transportation of child pornography is a form of child sexual abuse

5-6Defendant faces charges for assault with a deadly weapon. The defendant alleges he acted in self-defense. Defendant also says that victim carried brass knuckles and had previously severely injured a family member that slighted him. Defendant said that this fact gave him reasonable fear of the victim. The prosecutor attempts to exclude this evidence under FRE 404(a). Is it admissible?

The court there held that this evidence is admissible, not to show propensity or character, but rather under FRE 404(b) to show that the defendant had the requisite state of mind for self-defense.

10-1: A man is accused of killing and raping his neighbor. His defense is that he did not intend to kill her. Two witnesses claim that, in their opinion, blood staining on a shirt of the victim appeared to have been caused by the killer wiping the knife with it. The trial court allowed this testimony. The man appeals. Should the trial court have admitted this evidence?

The goal of this practice problem is to examine the low threshold for a lay opinion and to explore the line between expert and lay opinion. As to Anderson, the court thought that a lay person could clearly make a determination about the shape of an object and the likely resulting blood stain. As to Branyon, there is some concern that the jury may give his opinion extra credibility (more than it deserves) due to his background and training. But the court ultimately allowed him to testify to this matter

4-12 A criminal defendant claims that he could not have committed the crime because he would have been honoring the Sabbath. To prove this, he calls his Rabbi as a witness, who will testify to his "habit" of staying home on the Sabbath. Is this testimony admissible as habit evidence under FRE 406?

The goal of this practice problem is to help us better understand the distinction between character evidence and habit evidence. In the actual case, the court found the evidence inadmissible. The behavior in question falls short of "invariable regularity." The observation of the Sabbath in a particular manner involves a volitional act. Normally, habits will involve automatic responses to stimuli or events that involve minimal volition or conscious choice.

7-33: A witness says that his memory has faded over time. While he recalls the general subject matter of a conversation in the past, he doesn't recall the specifics. Can this witness be "partially unavailable" under FRE 804(a)?

The goal of this problem (like the last one) is to examine the scope of unavailability. The statement was deemed inadmissible as the declarant had no memory of the events to which his hearsay statement related.

10-7

The goal of this problem is to analyze the primary purpose test and the requisite formality of police records. The government in the actual case argued that the STEP notices are not created for the primary purpose of producing evidence for later use at trial. The STEP notices, they argued, serve many purposes, including a community outreach to dissuade gang activity. The defense argued that STEP notices are testimonial because the issuing officer signs the notice under penalty of perjury and memorializes any incriminating evidence for future use. The court found that it was "clear" that the officer to swear to its accuracy. As to formality, this was an official police form containing an officer's sworn attestation. As such, it was little different from the sworn attestation other major cases where the U.S. Supreme Court found that the Confrontation Clause applied. As a result, the court concluded that the expert was relying on testimonial hearsay, and the conviction was thus reversed.

7-41: Josephine stands accused of multiple bad acts: assault against her husband and wire/mail fraud. Her husband Robert claims that she threatened his life if he testified against her. He reports this to police. He then ends up dead. Prosecution wants to admit his out-of-court statements, arguing that Josephine made him unavailable. Josephine denies making him unavailable, but also makes a unique argument. She says, even if the allegation is true, she would not have killed him with the intent to silence him for the wire or mail fraud, but instead for the other criminal charges against her. Would this qualify under the exception for forfeiture by wrongdoing?

The goal of this problem is to determine if the Rule applies to any trial in which the witness is made unavailable. Here, the defendant was aware of his status as a witness, so this justifies the inference that the killing was motivated, at least in part, to stop him from being a witness. The preponderance of the evidence standard is met.

7-13

The goal of this problem is to determine whether a translator is an agent. The court notes that translators are usually regarded as agents of the defendant and therefore such statements are ordinarily admissible. However, the court says that this case is unusual because the agent is a law enforcement officer. This means he wasn't just a language conduit. He was, in a sense, the adversary of the individual being questioned. This greatly reduces the likelihood that a law enforcement officer translator will be considered an "agent" for purposes of this rule.

7-19: Napier appeared to have kidnapped and injured Caruso who ultimately underwent multiple brain surgeries making her unable to testify. But Caruso's family says that roughly one week after returning from the hospital, Caruso sees a picture of Napier and says "he killed me". It this statement an excited utterance

The goal of this problem is to determine whether one can "re-ignite" their excitement. The defendant argues that "he killed me" means the startling event is the initial assault. The court disagrees and admits the evidence. First, the startling events are not limited to accidents, assaults, etc. The viewing of the photograph could be sufficiently startling. Second, utterances must be sincere and immediate and show uncontrolled domination of the senses. This seems to be satisfied here. Third, courts look primarily to the effect of the event on the declarant. Here, the fact that the declarant was unexpectedly and suddenly confronted with the picture of the alleged assailant, having never discussed the event with her family, "there can be no doubt that the event was sufficiently startling to provide adequate safeguards against reflection and fabrication."

9-6: Edwards Conway was injured truing to help a passenger with a foot locker. He sues his employer (Amtrak). Conway wants to testify that Amtrak would not allow him under their rules to stop passengers from using or boarding with footlockers. Can he testify to this? Or does the best evidence rule require him to admit the documents related to Amtrak policies?

The goal of this problem is to examine a situation where a witness relied on a document rather than his own person knowledge, thereby potentially implicating the best evidence rule. The trial court in the actual case denied his testimony on the rules, citing the best evidence rule. The appellate court affirmed. The proposed testimony related to rule and regulations, so they are the best evidence. If, instead, he had referred to his responsibilities (rather than the content of the rules or regulations), then his testimony would have been admissible.

7-4: Conroy accused of sexual assault. One of the accusers gives somewhat inconsistent testimony at trial according to defendant's attorney. State responds by introducing evidence of consistencies in her story--but importantly, these consistencies do not relate to the part of her story that was actually inconsistent. Should the trial court allow this evidence?

The goal of this problem is to examine how the scope of impeachment may influence this hearsay exemption. The court ultimately held that this is admissible under this exemption. Prior statements that do not specifically relate to the subject matter of the impeached statement nevertheless may be admitted under the prior consistent statements exception of FRE 801(d)(1). If the impeaching party is arguing the witness's testimony is inconsistent with a previous statement, the proponent can use other portions of that statement if they relate to the cross-examination and meet the force of the impeachment. In order words, if the impeaching argument is focused on the statement in its entirety, then you can use consistencies in that statement to rebut the impeaching attack. It was not an abuse of discretion for the court in the actual case to act in this manner

7-9

The goal of this problem is to examine if an accusatory statement is implicit in the question involved in this question. The primary inquiry is whether the statement was such that, under the circumstance, an innocent defendant would normally be induced to respond, and whether there are sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement. Here, Bartee's question was not accusatory at all. Because there is no accusatory statement, there is no statement that Williams could have adopted by remaining silent. Thus, the court say there is no adoptive admission

7-6: Truck driver rapes and kills a woman. The family of the woman files suit against the trucking company arguing that they negligently hired the driver. A private investigator talks with the murderer, who claims that managers at the trucking company knew of his criminal past and told him not to say anything. Is this a statement by opposing parties?

The goal of this problem is to examine our understanding of opposing parties. Belew is a party to this action, but the statements that are at issue here were not offered against Belew, but rather against Three Rivers to establish its knowledge of Belew's prior criminal history. Under FRE 801(d)(2)(A), a party's statement is admissible as non-hearsay only if it is offered against that party. The district court, therefore, properly refused to consider Blakely's affidavit.

7-40:Skilling is the former CEO of Enron. He is facing charges in a high-profile white collar crime investigation. He says that because of the high-profile nature of the case, no one will testify on his behalf. He says, as a result, the government has effectively made these witnesses unavailable. Prosecution claims that they have no plans to retaliate against any witness who defends this CEO. Would this fall under the forfeiture by wrongdoing exception?

The goal of this problem is to examine the burden of proof under the Rule. Though the government can violate the forfeiture by wrongdoing exception as stated in the Advisory Committee Notes, it did not here. This is because there is a no evidence the government intended to procure the absence of witnesses through its prosecution of Enron employees and the government's letters assuring all potential witnesses that there would be no retaliatory prosecutions should have assuaged any unintentional worries about intimidation

7-34: McFall stands accused of extortion and mail fraud. He wants to call Sawyer to the stand, but Sawyer invokes his Fifth Amendment privilege against self-incrimination making him unavailable (under 804(a)). In response, McFall tries to admit Sawyer's grand jury testimony. Grand juries involve no cross-examination in a traditional sense. It is a one-sided affair where the prosecutor is the only party able to examine a witness. The prosecution objects to the admission of Sawyer's grand jury testimony. Does this fall under FRE 804(b)(1)?

The goal of this problem is to examine the degree to which the motive to question a witness must be similar under the former testimony exception. In the actual case, the court held that the government had the same motive and opportunity to question Sawyer when it brought him before the grand jury as it did at trial, so the former testimony exception applies. The government's fundamental objective in questioning Sawyer before the grand jury to draw out testimony would support its theory that McFall conspired to commit extortion; and this was the same motive it possessed at trial. "That motive may not have been as intense before the grand jury, but Rule 804(b)(1) does not require an identical quantum of motivation." Note, that circuits are split evenly on this issue. The Ninth Circuit here explicitly rejected the Second Circuit conclusion that the similar motive must be of a substantially similar intensity from the first proceeding to the second

7-28: Sinkovich sunk his yacht. He files an insurance claim. Lloyd (insurer) hires Geary to investigate. Geary files a report which finds that Sinkovich breached his insurance agreement. The report also makes several accusations against Sinkovich. Lloyd now wants to admit Geary's report at trial. Does this qualify as a business record?

The goal of this problem is to examine the factors that relate to whether a document was created for a business purpose or for litigation. Even though this document was created as part of the business's ordinary business practices, we cannot ignore that it was created in preparation of litigation. This reduces its trustworthiness (under the U.S. Supreme Court case on this issue, Hoffman v. Palmer, which we do not discuss in class). This creates the possibility of inaccuracy or misrepresentation. The court ultimately concludes that since the primary motivation of this document is to prepare for litigation, it is not covered by the business records exception.

10-2: Police set up surveillance of the defendant and observe what they believe to be drug transactions. At trial, (1) a police officer testifies to multiple cars arriving on the scene of a transaction, which he says "raised red flags" and is consistent with them trying to surveil for law enforcement, and (2) another officer states that the corners being cut off the bags is consistent with how cocaine dealers package drugs for sale. He said this as based on his personal experience. The defendant appeals, saying the admission of these statements by lay witnesses violated FRE 701.

The goal of this problem is to examine the fine line between lay opinion and expert opinions. As to Reno, the court noted that although his specialized knowledge informed his mental state, he was not called upon to testify generally about narcotics counter-surveillance practices or to offer an explicit opinion that what he observed was counter-surveillance. Instead, he described his own state of mind while observing a particular drug deal. So, his comments were permissible according to the court. As to Gourley, although his testify was ostensibly couched as a matter of direct observation, his testify fit more squarely within the court's precedent defining expert testimony by officers as to matters within their experience observing narcotics trafficking practices. This makes it beyond the realm of a layperson. The testimony was not limited to what he observed in the search or to other facts exclusively from this particular investigation; instead, "he brought the wealth of his experience as a narcotics officer to bear on those observations and made connections for the jury based on that specialized knowledge." This is specialized knowledge (obtained outside of this particular case) so it is not particularized knowledge, which the rule allows

7-2: Hester makes a statement swearing in signature to the accuracy of a prior statement implicating others in a crime. At trial, Hester denies or fails to recall anything from this statement. Should the court admit his prior statements?

The goal of this problem is to examine the level of formality required in a "proceeding" or a "deposition." The court ultimately ruled this evidence inadmissible. Though the statement she gave was sworn under penalty of perjury, the court found that the home interview of Hester did not qualify as a "trial, hearing, or other proceeding." The rule seems to contemplate situations in which an official verbatim record is routinely kept, whether stenographically or by electronic means, under legal authority. A minority of courts do not allow investigator reports under any circumstances. Here the court cites approvingly to investigator taping a statement, so in the actual case, they did not go that far

7-36: A man suffers horrible burns on his body after being doused in gasoline and set ablaze. He is able to identify the culprit responsible for his victimization. Medical officials never tell him of his chances or survival, nor does he explicitly say anything suggesting he is dying. He makes statements at the scene and at the hospital. Do these statements qualify as dying declarations, assuming he passes away shortly thereafter?

The goal of this problem is to examine the requirements for expectation of death in applying the dying declarations exception. In the actual case, the court held that the statements at the scene were inadmissible. They found there to be sufficient evidence to suggest that the man believed his death to be imminent. While Garrison surely experienced excruciating pain, the court peculiarly found that his failure to explicitly state his belief in his imminent death cautioned against such a conclusion. Then, the court held that the statements in the hospital were also inadmissible. They held that there was no reason to believe that his chances of survival had decreased in the hospital. But they did allow in the first statement in the end, arguing that it was an excited utterance

7-43

The goal of this problem is to examine trustworthiness under FRE 807. Perhaps surprisingly, the court found this statement to be trustworthy and thus admissible. The court relied upon the facts that there were no leading questions, the lack of police station interview (rather more like an observation), and the lack of rehearsal. Furthermore, the declarant was considered trustworthy due to the teacher's testimony and no evidence of bias toward the defendant.

10-3: Jinro and Cobbi food companies enter into a contract for the trade of frozen chicken. Cobbi backs out, alleging that the contract was a front for a currency avoidance scheme by Jinro. During the trial, Cobbi brings an American "expert" in Korean business practices, who testifies to the commonality of these currency avoidance schemes. Some of the testimony feels racist based on the excerpts. Is this expert qualified to speak on this topic?

The goal of this problem is to examine when an expert witness offers an opinion that exceeds his qualifications. Pelham came before the jury cloaked with the mantle of an expert - significant for two reasons: (1) it allowed him to testify based on hearsay information, and to couch his observations as generalized "opinions" rather than as firsthand knowledge about Jinro and its activities in particular; (2) as the opinion of a purported "expert" on Korean business practices and culture, his statements were likely to carry special weight with the jury. His qualifications amounted to little more than the limited perspective of a professional investigator whose work experience had exposed him to instances of corrupt business behavior; he did not have the legal, business or financial expertise to evaluate the substance of the Jinro transaction; he had no education or training as a cultural expert generally, or as an expert on Korean culture specifically - he was not a trained sociologist or anthropologist and offered no empirical evidence for his sweeping indictments. Pelham perhaps might have been qualified to testify based on his experience as a professional commercial investigator (his "discipline") about the structure of the Korean governmental and banking systems to illuminate for the jury how that country's regulatory system worked - instead, he culturally stereotyped businesses and commented on a particular business he didn't even investigate. Thus, he is unqualified, and, even if qualified, evidence fails under FRE 403 due to the blatant ethnic and/or cultural stereotyping - it invited the jury to mistrust the defendant due to a racial or ethnic stereotype.

7-1: A burglar stole 72 postal money orders. Months later, police apprehend Kenneth Polin, who cashed the money orders. Polin testifies before a grand jury saying that Richard Russell asked him to cash the money orders. Polin also provides other incriminating information about Russell. Polin then called to the stand at Russell's trial, where he claims he cannot remember anything. Should trial court allow the government to introduce his prior statements? Is the prior statement truly inconsistent with the prior testimony?

The goal of this problem is to examine when lack of memory qualifies as an inconsistent statement. The court in the actual case held that this evidence was admissible. Inconsistency is not limited to diametrically opposed answers, but may be found in evasive answers, inability to recall, silence, or changes in position. Polin's statement on the stand that he could not recall having any contact with Russell qualifies. It seems likely that he would remember testimony before a grand jury regarding a matter that implicated him in a crime.

7-29: Defendant arrested for bank robbery after he is found with bait money. Government wants to introduce bait money records as business records. Are these covered?

The goal of this problem is to examine whether a business record was maintained "regularly," as required by the rule. In the actual case, the court held that even though the bank did not necessarily compile its bait money list regularly, there was enough indicia of reliability in the facts (they verified it three times a year and relied upon it when there was a robbery) to make it admissible under the business records exception. The court said it fit the spirit of the rule

7-20: A defendant stands accused of injuring a 19-month old child. The state wants to admit evidence from the babysitter, who will testify to the fact that the child attempted to pull himself away from the defendant. Also, the babysitter will testify that, when asked what happened, the child balled his hand into a fist and placed it against his right cheek. Can we admit this evidence as an excited utterance?

The goal of this problem is to explore how age may affect excited utterance analysis. The court ultimately admitted this evidence. First, the punching action constitutes out-of-court assertive conduct offered to prove the truth of the matter asserted, making it hearsay. Second, substantial physical trauma is enough to constitute a startling event. Third, even if physical trauma is not enough to constitute the startling event, an ongoing stressful condition - the extreme bruising of the child's head - constituted an ongoing stressful situation; he was still "laboring under physical pain." Fourth, the fact that the was asked a question is a factor against this being a spontaneous statement, but that by itself is not dispositive. Fifth, even though he was asked a question, the fact that he rambled indicates that his response was given on an impulse, and not necessarily the result of reflection or fabrication. And finally, a child's stress lasts longer than an adult's stress, favoring admission here.

7-3: Price saw Shannon Wilson leave his restaurant before getting shot. Price says Wilson yelled "he shot me." Price later testifies to having seen the shooter. The alleged shooter's attorney sarcastically suggests that Price's recollection got better over time. In response, the prosecution introduces Price's past statements that make a similar claim. Should the trial court admit this evidence?

The goal of this problem is to explore how broad an implied charge of poor recollection need be. This is an expressed or implied charge of a poor recollection when the counsel said, "Mr. Price, your memory gets better with time, doesn't it?" The out-of-court statements were consistent - the statement supported Price's testimony that Reliford had looked at him as Reliford got into the victim's car and again as Reliford back the car and prepared to drive away. The court found the evidence admissible

2-6: man arrested during a drug raid alleges that the arresting officer used excessive force. At trial, two fellow officers testify on behalf of the arresting officer. The man wants to admit evidence that these fellow officers have previously been suspended for excessive use of force. Should the court admit this evidence?

The goal of this problem is to explore how prejudice can be mitigated. The evidence of the prior suspension for use of excessive force attacks the credibility of the officers. The officers did not deny the suspension and the nature of their misconduct is of the same type that the arresting officer is accused. Thus, the court may admit the evidence as it may tend to show bias on the part of the witnesses. However, had the details of the events leading to the suspension been provided, they may have been considered prejudicial if inflammatory details were included such that they had an undue tendence to cause an emotional response in the jury that could cause them to base their decision on something other than the established proposition in the case

9-2: A lone gunman robs a bank in Savannah, Georgia. The manager of the bank activated the security system and surveillance camera. After the apprehension of the alleged assailant, an FBI agent took film from the surveillance camera. The FBI had a model wear clothing in exhibit 14. The agent said he did not personally take the photographs and could not testify to the distance or lighting used in the photographs. The defendant says the 5 photographs in exhibit 14 do not show that the state had personal knowledge of their accuracy. No bank employees testified to their accuracy. Are these sufficiently authenticated?

The goal of this problem is to explore how to authenticate a photograph and introduce the silent witness method of authentication. The court in the actual case held it was admissible. The rule is a witness qualifying a photograph need not be the photographer or see the picture taken. It is sufficient if he or she recognizes and identifies the object depicted and testifies that the photograph fairly and correctly represents it. That is satisfied here. Photos also need not be taken near in time. No one specifically authenticated this photo. It is permissible under the silent witness theory with its five factors (not all of which need to be present): (1) establish time and date, (2) any evidence of editing or tampering, (3) does the operating condition of equipment create accuracy and reliability, (4) procedure employed in preparing, testing, operating, and security of equipment, and (5) relevant participants depicted in the photo.

7-42

The goal of this problem is to explore the "near miss" theory and factors that determine trustworthiness. In the actual case, the court admitted this evidence. The court borrows from U.S. v. Barlow, 693 F.2d 954 (6th Cir. 1982). There the court delineated a non-exhaustive 5-facto test for determining whether grand jury testimony had the equivalent guarantee of trustworthiness. Although this was not the case here, the court finds those factors helpful. They are: (1) the witness's relationship with both the defendant and the government, (2) the witness's motive for testifying, (3) whether the testimony was from personal knowledge, (4) whether the witness had ever recanted the testimony, and (5) whether the testimony was corroborated. The court ultimately found that she had person reasons for working as a confidential informant. She was not a coconspirator. She had no motivation to implicate Anderson or to exonerate herself. Her interest in gaining favor with the police was to avoid prosecution more likely gave her a greater incentive to be extremely accurate in her statements. She knew the agents had the area under surveillance. Any attempted deception would have aroused the suspicions of the officers and caused them to disfavor her. Her identification is corroborated by a Detective's in-court testimony, who testified during a pre-trial hearing and will testify at trial that he also identified Anderson twice that evening

9-1: Police are charging defendants with conspiracy to distribute drugs. The government now seeks to introduce notebooks found in the suspected drug house, which appear to note amounts of drugs distributed in "buttons" and the amount paid. The defendants claim that the notebook has not been properly authenticated. How would you rule in FRE 901?

The goal of this problem is to explore the circumstantial facts that can lead to authentication. This problem also offers example of the multiple avenues available to authenticate the same evidence. Under FRE 901(b)(4), the contents of a writing can be used to aid in determining the identity of the declarant. As the textbook author explains, "the evidential hypothesis in the authentication step is this: only those who knew the details in the (writing) could have written it; if the purported writer can be shown to have probably known the details and if no other person is likely to have known them when the (writing) was written, it likely that he wrote it. The force of the inference decreases as the number of people who know the details and may have written the (writing) increases." The use of nicknames of individuals and the code term "buttons" help authenticate the notebook as potentially belonging to one of the defendants. Additionally, although the fact that the identity is unknown, there is at least a prima facie showing that declarant was a member of a drug conspiracy charged in the indictment. Other evidence also exists to corroborate the authenticity of the notebooks. They were found in an apartment which the informant said both "Punkin" and Brenda frequented and in which drugs were sold. There was an unusual hole in its door fitting the informant's description. The informant further described that the defendants' drug transactions were recorded in notebooks.

2-7: Janet is unable to work after several alleged incidents of sexual harassment. She then sues her previous employer. She wants to testify that she heard that her alleged harasser had beaten his wife, thereby justifying her fear of him. She also wants to admit evidence of the alleged harasser's conviction for "accosting" her. Should the court admit these two pieces of evidence under FRE 401 and 403?

The goal of this problem is to explore the compromises courts make in attempting to limit the possible prejudicial value of evidence. The problem also gives students an opportunity to examine how admission of previous legal determinations in a future case may be unfair to a defendant. Janet's testimony may be unfairly prejudicial if the jury uses this testimony to improperly conclude that the harasser is a domestic abuser. Alternatively, the information could be used to simply illustrate Janet's state of mind (and not be considered for the truth of the matter asserted). One compromise would be for Janet to testify that she heard "something" from a coworker that led her to fear the alleged harasser. The criminal conviction is certainly relevant in the sense that it reflects a social judgment that the harasser's conduct was criminally blameworthy, and this may have some bearing on whether the conduct was sufficiently serious to constitute harassment. But this also raises a serious potential risk of confusion and unfair prejudice. The standards for harassment (unwelcome advances and hostile environment) and accosting (defined as a when a person, with offensive and disorderly acts or language, accosts or annoys a person) may sound similar, but are legally distinct. Thus, the court in this actual case excluded the conviction under FRE 403 due to the risk of confusion of the issue.

9-7: Crystal Cartier sues Michael Jackson for copyright infringement for the song "Dangerous" from 1991. She claims that Jackson had access to her song well before 1991. At trial, she says she gave away all of these original tapes by 1990. So she could not produce one of these original tapes. In its place, she tries to offer lyric and cord charts. She also tries to recreate the recording from memory. Jackson's attorney objects. The district court agrees with Jackson under FRE 1004, concluding she had not "diligently" searched for the originals by subpoenaing the record company. She says since the "original" tape was destroyed when it was erased, she satisfies FRE 1004. Does she?

The goal of this problem is to explore the concept of an "original" and the efforts one must undertake to find the original. In the actual case, despite Cartier's allegations that a subpoena would be futile, the district court found Cartier's efforts insufficient, regardless of futility. Her calling family, searching residence, and calling record company was not enough. Not an abuse of discretion to say that her efforts were insufficiently diligent. The demos were the original - she as trying to prove the contents of the demos, not the original master tape - thus, she must prove that these were lost or destroyed, which she failed to do

4-5 The plaintiffs claims sexual harassment and gender discrimination. They complain to their supervisor who would not recognize the problem. The plaintiffs claim that their employer then retaliated against them. In response, the employer must prove that they took corrective action after becoming aware of the claims. As part of this claim, the plaintiffs say that the employer put Senesi in charge of investigating. The plaintiffs say that Senesi is widely known to be "the porno king of the Whitestone Bridge." The employer objects to that last piece of evidence, saying that it lacks probative value and ought to be prohibited under FRE 404(b). Should we allow the plaintiffs to admit evidence of Senesi's prior bad acts in the current case? Or would that be barred under FRE 404(b)?

The goal of this problem is to explore the concept of knowledge. Here, the appropriateness of TBTA's actions rests in part on whether they took appropriate action in investigating and addressing the plaintiff's complaint. If Senesi was the sole TBTA representative in charge of plaintiffs' complaints, as plaintiffs allege, then Senesi's background and credentials become relevant. His prior behavior shows not just a propensity towards bad conduct. It also highlights the appropriateness of his selection to investigate the plaintiffs' claims of harassment. This would fall under "knowledge," because it demonstrates that the TBTA knew that Senesi may not have been an appropriate choice for this role if they were taking their responsibilities seriously.

7-17: DEA gets an identification from a confidential informant. The informant, after being shown an ID array of photos, identifies one of the people involved in a drug transaction. Can the state then admit this ID as a present sense impression?

The goal of this problem is to explore the concept of spontaneity and contemporaneousness as it relates to these two exceptions. In the actual case, the court said: "a photographic identification involves an intervening step that required Duncan to reflect back to what she saw that night and perhaps other occasions when she may have seen Anderson." With such reflections, the ordinary trustworthiness associated with excited utterances or present sense impressions is diminished. However, the court notes that this is a nonetheless a "close call."

10-5: The defendant is a member of the military and stands accused of sexual abuse of a child. Defendant says the child is lying. Prosecutor offers an expert witness who testifies that only around 2-5% of child sexual abuse cases involve a child fabricating charges. Is this an appropriate topic for the expert?

The goal of this problem is to explore the degree to which an expert can testify as to credibility. By testifying to the rate at which children lie about sexual abuse in a divorce context, the doctor has vouched for the credibility of the victim's testimony - He effectively testified that the chance that the victim lied was between 2-5% - This crosses the threshold of expert testimony into the realm of human lie detection, which is an expertise that courts do not respect; the jury must weigh credibility, so the expert cannot vouch for the witness's credibility. This does not mean that Dr. Acklin was not allowed to testify about common symptoms that children in similar situations experience or consistent patterns that exist within their stories, but he went too far when he put a percentage at the rate which people in this situation lie

7-11: Cheyenne denies a zoning request for a church to open a daycare. When denied, the church claims that the decision substantially burdens their exercise of religion. To refute this claim, Cheyenne wants to admit correspondence between the Bishop and the Church pastor where the Bishop acknowledges that this looks more like a "commercial venture" than a religious endeavor. Does this constitute a statement by an agent, making it exempt from the usual bar on hearsay evidence?

The goal of this problem is to explore the facts that make a person an agent for purposes of this rule. In the actual case, the court admitted the evidence. The defendant argued that the Bishop is responsible for the entire Rocky Mountain region and was not intimately involved in the practices of any church. They are argued that he had no personal knowledge on which his stated opinion on the nature of the day-care center could have been rationally based. The court does not accept this argument. The court found that Bishop Brown essentially functions as an administrative superintendent of the church. He is responsible for appointing clergy, performing ordinations, and safeguarding the doctrine and discipline of the church. Therefore, they compared him to an upper-level manager within a business. They also said that it doesn't matter if the Bishop had limited personal knowledge. The point of this exemption is not personal knowledge but ensuring fair play in an adversarial system

7-12

The goal of this problem is to explore the facts that make a person an implied agent. The court in the actual case held this evidence was inadmissible. First, they said that that the rule requires the statement be made "during the existence of the relationship" in order to be admissible. Because his resignation terminated his professional relationship with JGM, Olsen was no longer an agent when the statements were made. Second, permitting the admission of this evidence would go against the spirit of the exception. Statements by agents are considered reliable because an agent is supposed to represent their client's interests. Here, Olsen was not speaking as an employee on behalf of an employer after he resigned, but instead as an adversary

7-26: One prison inmate hits another with a metal object in a prison gym. The state convicts the inmate of assault with a dangerous weapon and intent to do bodily harm. This inmate objects to the admission of a report by an FBI agent investigating the incident. The agent had transcribed an interview with a witness to the assault. Four months later, that witness refused to sign it, claiming it may be inaccurate. Should the trial court admit this document?

The goal of this problem is to explore the foundational requirements of FRE 803(5). The court finds this evidence inadmissible. Here one person perceived an event and another person recorded the statement. In such cases, it is ordinarily expected that both individuals must testify to establish that the statement is a past recollection recorded under FRE 803(5). The person who witnessed the event must testify to the accuracy of his oral report to the person who recorded the statement. The recorder must also testify to the accuracy of the transcription. Perhaps more importantly, though, the witness here has not seemingly adopted the statement in the allegedly recorded recollection, meaning that the basic requirements of FRE 803(5) have not been met. This is not a situation where a witness merely fails to remember something from a record.

2-1: Angela faces charges for aiding and abetting her boyfriend in the murder of five people, including 2 children. Angela allegedly asked an inmate serving a life sentence to take responsibility for the crimes. The inmate is an informant. Angela gives this informant highly incriminating information. Law enforcement use this information to locate the bodies. Soon thereafter, Angela attempts to commit suicide.What further facts would you need to know to determine whether the evidence of Angela's attempted suicide is relevant under FRE 401? Why would those facts be helpful? Can you imagine a jury instruction to inform the jury of the permissible use of this evidence?

The goal of this problem is to explore the idea that relevance is context dependent. By adding different facts to the hypothetical, the suicide may become more or less relevant. In the actual case, the jury instruction looked like this: "You must first find that an actual suicide attempt had occurred. You must then consider whether that attempt was made to avoid the burdens of prosecution and punishment. You must also determine whether defendant's attempted suicide demonstrated consciousness of guilt. If you credit any alternative explanation offered by the defendant, you may not infer consciousness of guilt from the evidence of a suicide attempt."

7-24: Joe Melvin ran over his wife, Julia, with his car. About 8 days before the murder, Julia saw Dr. Smoker to discuss an alleged rape. In that conversation, she communicated three different topics to Dr. Smoker: (1) She was afraid, (2) Joe was the rapist, (3) Joe threatened to kill her. Are any of these admissible under the exceptions we have talked about in class?

The goal of this problem is to explore the interplay of FRE 803(3) and 803(4), and to examine the rationales behind 803(4). It is also designed to remind students that other objections (for example, character and propensity evidence objections) are at play when discussing hearsay. In class, we will discuss this problem in much more detail. I'd encourage students to write out complete answers to this problem as a sort of mini-final exam practice question.

1-4: Defendant is accused of tax evasion for failure to file taxes for multiple years. He represents himself. He wants to take the stand, but he doesn't believe he should have to take an oath to tell the "truth." Doing so, he says, will run counter to his conscience. He proposes an alternative oath: "Do you affirm to speak with fully integrated Honesty, only with fully integrated Honesty, and nothing but fully integrated Honesty?" Judge denies his request. He does not testify and the court returns a guilty verdict. Defendant appeals. Should the trial court have allowed the defendant to testify using his proposed oath?

The goal of this problem is to explore the need for an oath, as well as the potential alternative forms of the oath. In the actual case, the court first examined whether Ward's peculiar notions are protected as religious beliefs. They ultimately concluded that under the Free Exercise's generous definition of religion, Ward's beliefs are protected because he is attempting to express a moral or ethical sense of right and wrong. He also demonstrated his preferred risk of conviction and incarceration over abandoning his version of the oath. Next, the court turned to the language of FRE 603, which they said does not require any particular form of an oath. All that is required by the language of the rule is some statement or form that impresses upon the mind and conscience of a witness the necessity to tell the truth. Ultimately, the court ruled that Ward's proposed oath took nothing away from his commitment to tell the truth under penalty of perjury and seemed to impose an even higher obligation upon himself than the original oath. Thus, the court's interest in administering a precise form of an oath must yield to Ward's First Amendment rights.

7-16: Estep calls 9-11 and describes police severely beating a suspect. Estep also says that the suspect had a gun, "so I guess its legal." Is this a present sense of impression? Excited utterance? Assume for the purposes of this problem that Estep cannot see what is happening, but is repeating what other people are telling him.

The goal of this problem is to explore the personal knowledge requirement of these exceptions. Remember, that the proponent has the burden of establishing the elements. Here there is no firsthand knowledge of what the declarant describes, as the facts seem to indicate that he was repeating things he could not personally see. Likewise, the police officer on the 9-11 tape is not relying on firsthand knowledge, as he was not at the scene. Thus, it is likely not covered by either of our exceptions here

7-32: A witness is 28 weeks pregnant. She says she is unavailable to testify and produces a doctor's note. She previously testified at the last trial. The attorney wants to introduce her prior testimony because she is currently unavailable. Does her unavailability meet the requirements of FRE 804(a)?

The goal of this problem is to explore the physical or mental infirmities that lead to a witness being unavailable. The court in the actual case found this declarant/witness to be unavailable and the testimony to be admissible. The factors they considered were: (1) the nature of the infirmity, (2) the expected time of recovery, (3) the reliability of the evidence concerning the infirmity, and (4) other special circumstances. In this case, they said the stresses of a trial can exacerbate the risks posed to a mother in the 28th week of a pregnancy. The witness was probably going to be "unavailable" for another roughly 8 weeks. There was no reason to doubt the reliability of the doctor's opinion. And the trial court had a large number of witnesses, lawyers, and a judge coming from outside the district. Under these circumstances, postponing the entire trial for one witness would be unreasonably burdensome

9-3: This is about the state's attempt to authenticate the voice of a 9-11 call. The full facts describe possible drug/alcohol use and a length of time that has passed that may call into question the attempts at authenticating the voice. Was the voice properly authenticated?

The goal of this problem is to explore voice authentication. FRE 901(b)(5) permits authentication based on having heard the voice at any time under any circumstances - a single telephone call along with an identification in court has been held sufficient for authentication. Such identification need only arise to the level of minimal familiarity. Here, the defendant's arguments go to weight, not admissibility. The court does not discuss the officer using knowledge of voice during investigation - this might not be allowed if a writing, where you cannot develop your familiarity due to an investigation

11-1: Robinson is facing drug charges and seizure of around $3,500. Thomas represented Robinson on these drug charges. Thomas got a notice of the intended seizure. Robinson then decided that he wanted Cantrell to represent him on the seizure case. Cantrell ultimately declined to represent Robinson. Robinson now represents himself. He claims he never received notice of the seizure as required by the law. The AUSA contacts the Thomas, who shows the AUSA that he received the notice. Robinson says that Thomas can't do this because it violates attorney-client privilege. Does it?

The goal of this problem is to explore what kind of communications receive protection under the attorney-client privilege. In the actual case, the court concluded that there is no privilege under these circumstances. Robinson is not arguing that the existence of the notice was subject to the privilege, but that his receipt of it was. On this point, there is a circuit split about whether the passing of preexisting documents to a lawyer make the communications that the information was passed confidential. Some courts hold this to be confidential, while other courts construe the privilege more narrowly under the theory that if the defendant would operate the same way regardless if the privilege attached, then the privilege should not attach. In this case, it is arguable that Robinson passed the notice along to Thomas and then Cantrell to get a professional to represent him, not facilitate a confidential communication. Under this line of reasoning, Robinson has not satisfied his. Burden that his passage of the note was confidential or that he communicated this information. Further, the more the substance of a communication has been subjected to disclosure, the more it detracts from its confidential nature. Here, it was disclosed to numerous people. In addition, the reasonable scope of representation in a forfeiture action would involve disclosure of the fact that the attorney had reviewed such a note. Since the fact that an attorney had received a forfeiture note is beyond the scope of the attorney-client privilege with respect to a forfeiture action, it is reasonable to conclude that even had the attorney-client privilege applied in this circumstance, this aspect of the communication would not have fallen within the scope of the privilege

7-10: A defendant faces charges for knowingly offering counterfeit currency. A witness claims that the defendant did not object when a cashier demanded that defendant give her real (not counterfeit) money. Witness testifies to this fact. Is this failure to respond under these circumstances an adoptive admission?

The goal of this problem is to explore when it is reasonable to respond for adoptive admissions purposes and how to analyze such responses. The court in the actual case admitted this evidence. It concluded that the appellant demonstrated that he understood the cashier by his simple response of returning to his wallet the counterfeit money and choosing instead four genuine bills. Appellant did not contest the cashier's implications nor even request an explanation. He did not express any of the surprise that might be expected of an innocent person. And the cashier's statement definitely assumes the accusation that Robinson knowingly gave them counterfeit currency

11-2: Claus von Bulow faces claims that he assaulted his wife with the intent to commit murder via an insulin injection. Alan Dershowitz represented von Bulow. On appeal, with von Bulow's permission, Dershowitz published a book in which he described the case and conversations between von Bulow and himself. After getting an advanced copy, the plaintiff's attorney notified von Bulow that they would treat the book as a waiver of attorney-client privilege. Dershowitz says no such waived occurred. The district court said the discovery of the conversations referenced in the book were proper. On appeal, would you overturn this lower court's decision?

The goal of this problem is to explore when someone waives their protection under attorney-client privilege. The court in the actual case held that Von Bulow effectively waived the privilege by consenting to an endorsing his attorney's disclosure of his confidences in the published book. The privilege goes not extend to those topics that were the subjects of the conversations in the book

7-22: A man suffering from a mental illness seemed to believe he was being raped when prison guards tried to change his clothes. He died a week later after getting bailed out of prison. He told his sister that he "believed he was being raped." There is now a § 1983 suit filed by his surviving family, and they want to admit this statement to show his then-existing mental, physical, or emotional state. Does this fit under this hearsay exception?

The goal of this problem is to explore whether a statement is being offered to prove a feeling or an underlying fact. This is a tricky problem, as well. The appellate court found the statement admissible, as it was not being offered to prove the fact remembered, but the "mental feeling" of Vogel. His mental feeling was relevant because the testimony established the impact that the event had on him at the time he made the statement. A passionate dissent argued that it is hearsay, because it was offered to prove he actually believed he was raped.

7-23: A manufacturer of an insomnia drug faces suit. They tested the product on prisoners, who submitted reports to them about the effects of the drug. Are these reports covered as statements intended for medical diagnosis or treatment?

The goal of this problem is to explore whether a statement was made for treatment. The motive of the declarant must be for treatment and the statement must be consistent with the promotion of treatment. Here, the declarations were made as part of a research protocol and not for the subjects' treatment or diagnosis. The overseeing physician was an institutional researcher, not a treating physician. Thus, it is inadmissible

7-7

The goal of this problem is to explore whether the acceptance of the report constitutes a reply or an adoptive admission. In the actual case, the court admitted this evidence, holding that Tuft's President Mayer adopted the statements in the committee report by implementing them without comment. The committee was convened under Tuft's established grievance procedures, and its recommendations given to Mayer. Tufts does not dispute that Mayer implemented all three of these recommendations

7-8

The goal of this problem is to explore whether these circumstances naturally call for a reply. In the actual case, the court admitted this evidence. It concluded that the response "next question please" to an accusation in a press conference that the defendants were "cooking the books" was an adoptive admission. Under these circumstances, the court concluded that the natural response to such an accusation would be to address or deny it.

7-39: Love stands accused of sex-trafficking. One girl involved in this trafficking is a minor. This minor gives a statement to police about a prostitution arrangement. Detectives write this statement and she signs it. She is now unable to testify at trial, but the prosecution wants to admit this statement as a statement against interest. Does it qualify?

The goal of this problem is to further examine how to distinguish between self-incriminating and non-selfincriminating statements. The court explained, "Even a broadened penal interest exception must have some boundaries and must be limited at least to statements admitting a particular crime for which prosecution is possible at the time." In this case, it was not clear she was facing any real risk of prosecution. First, the North Dakota prostitution charges had already been disposed of at the time the statement was given in Minnesota. Second, she was not subject to federal prosecution because under the MANN act, she is a victim rather than a perpetrator. And the court said even if she mistakenly believed she was at risk of prosecution, her statement did not indicate that it was "so far contrary to her interest when made that a reasonably person in her position would not have made the statement unless she believed it to be true."

10-6

The goal of this problem is to practice a step-by-step FRE 703 analysis. Here, the court finds that the statements of other inmates were of a type reasonably, but admittedly cautiously, relied upon by experts in the mental health field in forming opinions regarding whether a particular inmate is a malingerer. So was the information trustworthy in this case? The court found it permissible, as the defendant had a full opportunity at trial to cross-examine Dr. Dana on this point and to make such an argument to the jury in closing arguments. On appeal, the defendant argued that there was no explicit application of a reverse FRE 403 test as required by the rule. But the appellate court in the actual case found that the lower court implicitly made such a finding. They found that the information Dr. Dana relied upon in formulating his expert opinion was highly and directly relevant to the jury's task in evaluating that opinion.

7-18: Mr. Jones is charged with involuntary manslaughter for the death of his 9-month old son. As part of the case, the government wants to introduce a statement made by Jones's wife. Mrs. Jones dropped off her son at a babysitter and was "crying" and appeared "very nervous." Then, after getting back from work, the babysitter asked Mrs. Jones "what was wrong," and she responded that her husband "got mad this morning and tried to destroy everything of Christopher's because he was jealous." The state wants the babysitter to testify to these statements by Mrs. Jones. Do they qualify as either excited utterances or present sense impressions?

The goal of this problem is to review contextual variables to determine whether a declarant was under the stress of excitement in making this out of court statement. In the actual case, the court found the statements inadmissible. First, they say the temporal scope is too long. The statement was made 12 hours after the attempted destruction of the child's things. Second, during the 12-hour period, Mrs. Jones had gone to work, giving her time to reflect. Third, unlike a child who will remain excited longer, Mrs. Jones is an adult. Fourth, she had an opportunity to speak with Mr. and Mrs. Andrews when dropping Christopher off in the morning. Fifth, her answer was in response to a question about her emotional state. Sixth, little is known about the "startling event" itself. There is no information about the attempted destruction outside of the statement, so it is hard to corroborate.

4-6 Serrano and Martinez are charged with smuggling drugs from San Francisco to Hawaii. Police detained Serrano's girlfriend (York) at the airport with drugs taped to her body. York calls Serrano. During this call, it sounds like Serrano understands that his girlfriend is finishing up a drug transaction. Martinez then drives Serrano to the airport and police arrest both men, charging them with conspiracy and complicity in the importation of drugs. To prove the case against Martinez, the police want to admit his prior conviction for a similar crime. Should police be allowed to admit this prior criminal history under FRE 404(b)?

The goal of this problem, like 4-5, is to examine the application of the knowledge as a missing word in FRE 404(b) cases. In the actual case, the government needed to prove that Martinez was aware that he was bringing Serrano to the airport for a handoff. Martinez's prior convictions for the importation of drugs suggests that he has a sort of specialized knowledge that many other individuals lack—including the kind of packaging used in these handoffs, how they are conducted, transportation, and how to avoid apprehension or detection. Even though the conviction was for a different type of drug smuggling, it still suggests that the has the requisite knowledge of the smuggling world. This would suggest that he is more likely to understand the significance of driving Serrano to the airport. This conclusion, while reasonable, is certainly debatable.

7-21: Leonard stands accused of possession of stolen contraband cigarettes and conspiracy. When the FBI apprehended him, he said, "I only came to get some cigarettes real cheap." Leonard says "real cheap" means bootleg, not stolen. If true, this would disprove the mental state requirement for the criminal charge. Would this be admissible as a then-existing mental, physical, or emotional state?

The goal of this tricky problem is to explore when backward-looking facts are implicated in a hearsay statement. Here, the statement was not offered to prove that they were stolen, but that DiMaria thought they were not stolen. Thus, it is not a statement of what someone had done in the past, but rather of what he was thinking in the present. The trial judge rejected the statement because it was so self-serving, going to its credibility. However, the appellate court states that such considerations should go to the evidence's weight and not its admissibility. Ultimately, the court is drawing a fine line. It is admitting backwards-looking memories or beliefs as long as these are not offered to prove the facts remembered or believed (e.g. I thought this was bootleg versus these were bootleg). In an almost identical case, U.S. v. Cosentino, decided by the same court, the statements were held inadmissible.

7-27: Vargas claims that Reyes ordered him to kill multiple people. Vargas claims that these orders happened when he visited Reyes in prison. To verify part of his story, the state introduces visitor logs created by the prison. A prison guard with 8 years experience testifies to how the prison keeps these records. Does this fall under the business records exception?

The pedagogical goal of this problem is to help students understand how the to apply the business records exception. In the actual case, the court held that the prison employee was a sufficient custodian of the records to verify the prison's regular practice of keeping this record

2-3: The defendant was arrested for embezzling money from his employer. Embezzlement is a "wobbler" (can be a felony or misdemeanor). Prosecutor officers defendant chance to plead to a misdemeanor with a light sentence. Defendant ultimately rejects this because he knows it will hurt his immediate employment with his blue collar union (conviction for crime of dishonesty). At trial, defendant attempts to raise the fact that he refused a plea bargain. Is this evidence relevant?

The purpose of this hypothetical is to help you explore context in determining the relevance of a consciousness of innocence claim. In the actual case, the court says the evidence is not highly probative as to the defendant's consciousness of innocence. Because the defendant was a first-time defendant, he probably lacked a full grasp of the nuances of the misdemeanor versus felony distinction. The court also found that the defendant may have lacked an understanding of the relative severity and stigma associated with his employment opportunities after the plea agreement. In addition, he probably felt as if going to trial was his only chance to keep his job and union eligibility and/or sustain job prospects, something that is very important, especially to unionized blue collar workers. Thus, given these facts, and the historical tendency of courts to exclude rejections of plea offers, future courts will exclude evidence that defendant rejected the plea agreement.

3-2: John and Kyle are chopping wood in 2006 using tools they bought in 2004. The tool John is using gets caught in the wood. In trying to free the tool, Kyle inadvertently chips the tool, injuring John's eye. John files suit against the tool's manufacturer saying the tool was defective. He wants to admit evidence that, in 2005, the company that made the tools uncovered this defect and made a design change without notifying consumers. Can John admit this evidence under FRE 407?

The purpose of this practice problem is to explain the meaning of the term "subsequent." The problem is based on Traylor v. Husqvarna Motor, 988 F.2d 729, 733-34 (7th Cir. 1993). The event in this case is not the sale of the maul. The event is the accident that caused the injury to John. The remedial measure that John now seeks to admit was taken in 2005, which is before the event in question (2006). This makes it admissible under FRE 407. This is the majority viewpoint. So how can a producer limit liability in these cases? They can recall the product

3-1: John was dismounting from a forklift. Rather than lowering it all the way, he jumped down from 2 feet up. His safety belt caught onto a ring/pole installed on the forklift, causing him to injure his back. John wants to admit evidence of a design change that happened after the incident to rebut testimony from an expert who claimed that the original design was "excellent and proper." Is this evidence prohibited under FRE 407?

The purpose of this practice problem is to explore how far a witness can go until the so-called "Hubris Test" is violated. In the actual case (Kelly v. Crown Equipment Co., 970 F.2d 1273 (3d Cir. 1992), the court said that this evidence was inadmissible. The phrase "excellent and proper" did not go so far as to require admission of the subsequent measure for impeachment purposes. It could be that the initial design was "excellent and proper," while still allowing for some improvement in future designs. That does not necessarily establish a contradiction in the testimony requiring impeachment of the witness. The court concluded that to rule otherwise would effectively mean that any subsequent remedial measure would lead to contradiction and the Hubris Test exception would swallow the rule

3-4 A company fires Fred at age 52. Almost all other recently terminated employees are also 40+ years of age. As part of this initial firing, the company proactively offers Fred a severance package of $18,000 if he agrees to waive all possible lawsuits, including claims of age discrimination. Fred refuses to sign, and later retains lawyers to file a suit for age discrimination. Can he admit the severance package?

The purpose of this practice problem is to explore the gray area of when a claim has arisen. This problem is based on Cassino v. Reichhold Chem., Inc., 817 F.2d 1338 (9th Cir. 1987). Mr. Jones had not asserted any claim at the time that the corporation asked him to sign the release. Thus, in the version of facts presented in (a), FRE 408 does not bar admission as no dispute existed. Under the facts as stated in (b), there is likely is a dispute. Legal counsel infers the presence of a claim, even if nothing is filed in court.

3-3 Milwaukee agrees to a contract for sewage infrastructure improvements. The contractor requests additional funding because of a complication. Initially, the city engineer says that this claim "probably has merit." But after doing more thorough review, the city engineer rejects the contractor's claim. A breach of contract suit follows. Can the contractor introduce evidence of the engineer's initial comment?

The purpose of this practice problem is to help students understand when a claim has arisen for FRE 408 purposes. The problem is based on S.A. Healy Co. v. Milwaukee Metro. Sewerage District, 50 F.2d 476, 480 (7th Cir. 1995). The contract in this case contains a disputes clause. The "claim" in the language of the contract does not imply dispute. A dispute only arises when a claim is rejected at the initial level or some subsequent level. Had the sewage authority accepted Healy's claim for a price adjustment, no dispute would have arisen. And it follows that until the rejection of that claim, no dispute had arisen. When the engineer remarked that Healy's claim might have had merit, the claim had not yet been rejected, so that statement is admissible.

1-1: Fifteen year-old Allen J. charged with aggravated sexual abuse for allegedly raping his twelve year-old cousin. Evidence suggests the victim, now thirteen years-old, suffered from Fetal Alcohol Syndrome and some developmental disabilities. The victim wouldn't answer some of judge's questions, but did answer prosecutor's questions. Victim said she knew difference between right and wrong. But the victim had some trouble answering some basic questions (i.e. stating her age).

The purpose of this practice problem is to illustrate the process that courts use to determine competency under FRE 601. In the actual case, the court concluded that the victim was competent to testify because her answers suggested that she could appreciate her oath and the difference between honesty and dishonesty. Courts have found even younger children than her to be competent to take the stand, including some young some children with mild mental limitations. The inconsistencies of her story, the court concluded, go to the credibility of her testimony, not her inherent competence. These issues can be addressed through cross-examination. Credibility goes to weight rather than admissibility.

1-2: A fire started in a home in Ohio. This fire may be related to the use of two Black and Decker battery chargers. The home owners sued Black and Decker in federal court. Diversity jurisdiction applies. At trial, the home owners wanted their children Samuel and Nathanial to testify. The judge attempted to ascertain their competency to take the stand. During this examination, both children could correctly state their name, ages, teachers, and schools. They seemed to understand it was wrong to lie. But when asked about the fire, the children gave vague and inconsistent statements.

The purpose of this practice problem is to work on our understanding of competency of children to testify under FRE 601. In the actual case, the court concluded that the children were not competent to testify, and it held that the statements they made to the investigator were inadmissible as excited utterances (a topic we'll cover later this semester). Ohio state law applies here because the case arises under diversity jurisdiction. Nathanial and Samuel are likely competent to testify about anything that happened close to the date of the trial, as they can today correctly state their ages, names of teachers, and more. And today they appear to know the difference between right and wrong. But competency looks not just at their competency today, but their ability to perceive the events at the time they occurred. At the time of the fire, they were younger (3 and 5 years old) and their recollections of the events at that young of an age seem vague and inconsistent at best. Thus, the court prevented their testimony under FRE 601.

2-4: Two police officers reported to the scene of a reported robbery. One officer suspected that the culprit was Gary Duckworth. When the officers arrived, they spotted Duckworth parked in a lot adjacent to the robbery. The officers pulled over the car and ordered the men in the car to raise their hands. The suspects did not immediately comply with this order. One suspect allegedly made a quick movement with his hands into his coat as if he was reaching for a weapon. One of the officers fired at the suspect, killing him. The father of the shooting victim filed a civil suit against the officer. The officer alleged self-defense. At trial, the father wanted to admit evidence that a post-mortem search failed to find any weapon.

The purpose of this problem is to build on James and help us understand the different ways of building evidential hypotheses. This case turns on what the defendant knew at the moment of his testimony. The evidence is likely inadmissible under these specific facts. Under the officer's self-defense theory, it is irrelevant whether the suspects were actually armed. All that matters is whether the officer reasonable believed the suspect may be armed and dangerous at the time he acted in selfdefense. Now, if the officer had claimed to see a shiny metal object before opening fire, then this evidence would likely be relevant. It would speak to the truthfulness of the officer's testimony. We could imagine different courts reaching different conclusions, depending on the facts.

7-31

The purpose of this problem is to define the term "factual findings" for the purposes of the public records exception to hearsay. The court concludes that the statements in question are not factual findings of an investigation as permitted under the exception. The court here believes that factual findings in public records must be made by the government in order to qualify.

7-35: 17 Black iron workers file suit alleging discriminatory practices by the local and national labor unions. These plaintiffs want to admit evidence of depositions given by officers and officials of the local labor union to the government in a separate investigation. Defense attorney for the labor union says these are inadmissible because the suit here is against more than just the local labor union, while the other case was only involving the local labor union. Here, same attorney represents both the local and national labor union. They are clearly closely related to one another. Under FRE 804(b)(1), does this qualify as a like or similar motive to question a witness?

The purpose of this problem is to determine how courts evaluate the like motive to question a witness. In the actual case, the court held that the evidence was admissible. It held that parties need not have been party to the prior suit if the interest of the objecting party in the prior suit was "calculated to induce as thorough a crossexamination as the interest of the present opponent." Put simply, they held that there was no motivation to cross-examine that exists now that did not exist then simply because the national union is now an official party.

7-38: Chase allegedly stabs a man named Bad Bear with a knife. Chase alleges he was acting in self-defense. During this melee, Fast Horse allegedly drove her car into a group of people. Fast Horse is indicted and now invokes her Fifth Amendment rights. Chase wants to admit Fast Horse's statement to police. Fast Horse says two important things: first, Fast Horse says that she drove her car into the group, and second, Fast Horse described the scene as an unruly mob. Chase thinks this latter statement helps his self-defense claim. The prosecution says this is impermissible hearsay. Does this statement qualify as a statement against interest?

The purpose of this problem is to examine how to "scalpel" non-self-incriminating statements from self-incriminating statements and to remind students that whatever statement remains must also be relevant. Under Williamson, only the truly self-inculpatory portions of a declarant's statement should be admitted under FRE 804(b)(3). The second part of Fast Horse's statement - that the mob attacked her car - was not self-inculpatory. The only portion of the testimony that was selfinculpatory was that she drove the car into the crowd, but this fact is irrelevant to the self-defense claim at issue. Therefore, the entire statement is inadmissible.

7-37: A man faces murder charges for the death of his girlfriend's son. When the victim goes to the hospital, he says, "Mom's wife" and "Mike" caused the injuries. He also says, "I'm dead." He then dies shortly thereafter. Are these dying declarations

The purpose of this problem is to examine the factors used by courts in deciding whether a settled, hopeless expectation of death existed, and considering how that ought to apply to children. In the actual case, the court admitted the evidence. They rejected the defendant's assertion that a fouryear-old could not understand his impending death. As with adults, dying declarations must be examined on a case-by-case basis. Jack's statements in conjunction with his injuries suggested he had an understanding of his likely impending death. Since the victim's statement to the nurse that it was "Mike" who hurt him were given under an impending belief in his imminent death, this is covered by FRE 804(b)(2)

4-2Police in Indiana set up an internet sting operation designed to identify and prosecute adults targeting children online for sexual encounters. As part of this operation, the defendant chats with a police officer operating under the fake name "Ashley." In her profile, the undercover officer claims to be in her 20s. But during chats with the defendant, the undercover officer claims to be 13. From these interactions and later investigations, police in Indiana acquire the following incriminating pieces of evidence against the defendant: (1) sexually explicit instant messenger conversations involving the defendant and other underage girls, (2) a large number of images of child pornography, and (3) testimony from "Jane Doe," who claims that she had sex multiple times with the defendant at age 15. The government is now trying this case against the defendant (assume the charges are for soliciting a minor). Assume as well that the government needs to prove as part of its case that the defendant believed the undercover police officer was actually less than 18 years of age. Which pieces of the evidence above are admissible under FRE 404(b) and other rules discussed thus far in our course?

The purpose of this problem is to examine the multiple interpretations of multiple pieces of evidence. If you're looking for practice problems for the midterm or final exam, consider writing out a detailed answer to this problem. Because of the length of this probable, we will talk about it in great detail in class. I will not reproduce a full explanation here. In the end, the court in the real case excluded all three types of evidence under FRE 403.

9-5: Richard Nano was convicted of theft of a box of calculators. To prove the calculators were not lawfully obtained, the manager of the store says the records do not show any of them being sold. The defendant objects, arguing that the best evidence requires the admission of the sales records. The judge disagrees and overrules the objection. Does the best evidence rule require admission of these sales records?

The purpose of this problem is to examine whether the best evidence rule should apply to the non-existence of an item. In the actual case, the court admits the evidence as presented. They hold this case does not involve a dispute about the term of a document. This is not a situation where a small variance in words makes any real difference. Its frivolous to produce records of the non-existence of something.

3-6: Martha slips and falls on grapes at a grocery store. The store manager tells her to see a doctor and promises the store will take care of her medical bills. The store then refuses to pay her $500 medical bill. Can she admit evidence of the store's promise to pay her medical bills to prove there was a promise to pay?

The purpose of this problem is to explore alternative uses of offers to pay medical expenses. Remember that FRE 409 bars the admission of evidence of offers to pay medical expenses only when they are offered as proof of liability for injuries. But arguably, in this case, she is trying to prove that there was a contract between the parties to pay her medical expenses. She is now arguing that the store violated this contract. Under this theory, the court admitted the evidence.

10-4: A refugee is raped by a man assigned to help her find a job in Washington state. The refugee files a § 1983 suit. She offers an expert witness, who testifies to the expectation of submissiveness among women in her culture, as well as her culture's traditional reliance on government and "awe" of government officials. Should the trial judge have allowed this expert to testify on this topic?

The purpose of this problem is to explore how expert testimony can be limited in order to ensure that he gives the jury tools to assess a legal question. The district court properly limited the testimony to a general explanation of Hmong culture and the role of women in that culture, which was relevant. In a hearing that preceded the evidentiary ruling the court stated that "Hurlich is ... the only expert that either side has located who can explain to the trier of fact who these people are, where they came from, and why they have responded the way they have in these various functions and various relationships."

4-3

The purpose of this problem is to explore the doctrine of chances. In the actual case, the court concluded that the evidence was admissible. When applying the doctrine of chances, the factual bases between the charged and uncharged. Conduct ordinarily need not mere each other exactly. But there must be something more than the "crudest sort" of similarity. Otherwise, there is too great a risk that minor similarities would be allowed to admit prior acts that are not particularly probative beyond their use to infer that the defendant is a "bad person." The doctrine of chances should be used rarely, but the court felt it was justified in this instance.

3-5 Tom is facing a deficiency suit from the IRS claiming that he undervalued timber. Tom finds a previous case where the IRS hired an outside consultant who did a market valuation of timber that was similar to his own market valuation. He believes the IRS Commissioner is being unfair and biased towards him. Can Tom admit this prior valuation?

The purpose of this problem is to explore the problem of bias—a non-liability purpose for the admission of evidence. This problem is based on Hudspeth v. C.I.R., 914 F.2d 1207 (9th Cir. 1990). The court will admit the evidence for the purpose of showing bias, which is a nonliability purpose for the evidence. The evidence would be excluded under FRe 408 if offered to prove the amount of damages, but that may not be the purpose here.

4-1 Carl allegedly murdered Karen. At trial, the government introduced evidence that Carl was involved in a satanic cult with Karen. Government claims that Carl previously killed another cult member (Dorthy). After witnessing this murder, the government claims that Karen became frightened of Carl and asked to leave the cult. This request, the government argues, led Carl to murder Karen. The government presented witnesses supporting this story. The government also requested that Carl show the jury his "Satan's Avengers" tattoo. Should all of this alleged prior conduct have been admitted at trial?

The purpose of this problem is to explore the themes developed by the Zackowitz dissent in greater detail. In the actual case, the prosecutor was entitled to present as full a picture as possible of the events surrounding the incident. The evidence in the present case shows the entire relationship between the victim and the defendant. The defendant's involvement in Satanism and the victim's desire to leave the cult were inextricably intertwined with the description of the events on the night of the killing. Without the evidence, both the killings and the defendant's other actions "could have appeared to the jury as ... essentially inexplicable act[s] of violence." Thus, the court found the evidence admissible.

7-30

The purpose of this problem is to explore what types of public records qualify under FRE 803(8). The court in the actual case held that the transcript of a former proceeding is not covered by the public records exception to prove the matter asserted by a witness or trial participant quoted therein. Even though a transcript may technically seem as if it fit the description of a public record, such admissions would "emasculate large portions of the hearsay rule."

3-8 Jack sustained an injury on a commercial fishing vessel. Jack primarily speaks and writes Portuguese, not English. An insurance adjuster for Jack's company helps Jack translate and document his statement. In doing so, the adjuster allegedly misrepresents what Jack said. Jack's lawyers want to refer to the insurance adjuster during some witness examination, and during the closing argument. Can Jack's lawyer do this under FRE 411?

The purpose of this problem is to help explore alternative uses of insurance information. Here, the court determined the information was admissible to show possible bias or prejudice. The entire defense is based on the credibility of the insurance adjuster's translation of Smith's statement, after all.

3-7: Todd asks Blair to loan him $50,000 because his overseas investment was "delayed." He promises to pay her $100,000 for the loan. It turns out that Todd defrauded Blair. The government takes action against Todd, and the AUSA assigned to the case meets with Todd and his lawyer. During this meeting, Todd admitted to fraud, believing that such an admission and offer to pay would help him avoid indictment. The government never offers a plea bargain. The government now seeks to admit Todd's statement from this meeting. Is it admissible?

The purpose of this problem is to help us understand how to define, "in the course of plea discussions." Generally, statements offered voluntarily before any sort of plea negotiation has officially begun or once a plea agreement has been officially reached are not necessarily considered "in the course of plea negotiations." The court in the actual case determined that facts were not demonstrative of plea discussions. The government never offered to discuss a plea. Todd did not seem to intend to discuss a plea, but rather to avoid an indictment. Not all courts would necessarily agree with this ruling

2-2: (Petersen Financials) Should the judge admit the evidence of the Peterson's financials? Why or why not? How would you evaluate this evidence

The purpose of this problem, based on the facts from the Peterson case, is to explore possible relevance objections and articulate whether the evidence meets the required threshold— whether it has "any tendency" to make a material matter in the case more or less likely. Here you have the court opinion which provides ample guidance

2-5: On page 71, you have a summary of some of the evidence against Michael Peterson, including (1) emails exchanged with a male escort, (2) reviews of the escort, and (3) pornographic images. Assuming this evidence passes the FRE 401 test for relevance, should the could admit this evidence under FRE 403?

The purpose of this problem, based on the facts from the Peterson case, is to explore possible relevance objections and the application of the FRE 403 balancing test to the evidence of Michael Peterson's sexual orientation. Here you have the court opinion which provides ample guidance on how one court answered this question

1-3: Frazier stole two Claymore landmines and two wire/blasting cap sets. Defense alleged that Frazier stole these items to resolve his mother's financial problems. Defense calls witness to testify to Frazier's excellent military service record. But on cross examination, the prosecution asks witness, "What type of people do you sell Claymore Mines to?" Defense objects to this question, saying it calls for speculation, and the witness lacks personal knowledge under FRE 602.

This problem is based on United States v. Frazier, 33 M.J. 260 (1991). The purpose of this practice problem is to improve our understanding of speculation by witnesses. Thus, this problem is a hypothetical test of our understanding of FRE 602. The court ultimately ruled that the court properly admitted the testimony. The court says that, had the witnessed been asked to whom Frazier sold or planned to sell these military explosives, that would have been a problem (lack of foundation). But the question was more focused: basically, who in the community may want to buy these kinds of military explosives? And before asking this question, the advocate established some type of foundation by asking about the witness's familiarity with explosives, their dangerous nature, and the absence of any civilian counterpart to this type of military explosive. The court says this provides sufficient foundation for the witness to provide a subsequent personal opinion as to the potential deadly use of these explosives among civilians. This is a very close call for the judge.

4-4 The defendant has two daughters from different marriages. One daughter shows signs of sexual abuse. Now the other daughter shows similar signs of sexual abuse. Can we admit evidence of one daughter's apparent signs of sexual abuse in a proceeding about the other daughter's sexual abuse?

This problem is designed to explore the concept of identity. Here the court found the evidence admissible to prove not the depravity of the defendant's character, but rather to show that the defendant is more likely to be the perpetrator. Only the defendant had access to both victims. No other piece of evidence could have comparably probative impact as ton the identity of Tina's assailant. It also rebuts the defense of self-infliction of the injuries