Evidence Problems
Problem 7-2. Say What? Archie Oakley, age 102, was on his front porch when he observed a purse snatching approximately 20 yards away. While Archie could not positively identify the assailant, he was called to testify by the prosecution to provide other relevant information. Archie concedes that he is deaf in one ear, needs a hearing aid in the other, and has very poor vision. The defendant objects to Archie's testimony, claiming it is extremely unreliable. Is Archie competent to testify?
Does not stop them from taking the oath
Problem 5-59. Illegitimate Prescriptions: Physician Dr. Stephen Kamar is charged with prescribing controlled substances "not in the usual course of professional practice" and "not for a legitimate medicinal purpose." In litigating a motion in limine, the prosecution called five witnesses, each of whom was a woman who testified roughly as follows: When she asked Kamar to prescribe Quaaludes, he responded by asking her to perform fellatio. After each women completed this act, Dr. Kamar wrote her the requested prescription. Should the court grant the prosecution's motion for a pre-trial ruling that this testimony is admissible? Why or why not?
Yes it shows a pattern/plan and the level of proof is a preponderance of evidence. The 5 women taking the oath is enough proof.
Problem 5-6. Custody Fight: The film Kramer v Kramer focuses on a child custody dispute. Resolution of that dispute turns on what the "best interests of the children" require. Joanna had her husband Ted and their 6-year-old son. About a year and a half later she returns and goes to court to gain custody of the son. Cross-examining Ted, Joanna's attorney elicits evidence that Ted's inattentiveness resulted in the son's falling from a park climbing apparatus, resulting in a permanent scar. Moreover, after Joanna left, Ted lost his job because of inattention to a number of important accounts. Ted had to take a new job at a much lower salary. Finally, Joanna's attorney asks Ted whether he has a bad temper. If Ted's attorney were to object to these questions as improper character evidence, should the objections be sustained?
Yes it's likely admissible. You can enter in anything the judge wants to hear that he things will help him determine what is in the best interest of the trial.
Problem 4-11. Double Decker: Suzanne was injured when she was thrown from a ride at the State Fair called the "Double Decker." Suzanne sued the ride's owner and its manufacturer. At trial the ∆s attempted to introduce evidence that no one had been injured in 5,000 previous rides on the Double Decker. How is this problem different from the other offers of similar acts, occurrences, or happenings evidence? Is this evidence unfairly prejudicial?
Yes it's relevant that it happened, but it might confuse and mislead the jury - just because it didn't happen before, there's always a first time.
Problem 7-1. The Habitual Drug Addict: Paul observed an armed robbery in Pacific Heights one foggy Sunday morning. When Paul was called to testify for the prosecution, the defense objected. In an earlier deposition, Paul admitted that he was a heroin addict, and had been one for more than a decade. Should Paul's testimony be permitted? Explain.
Yes they can. If during the time in question (when they take the oath) they can understand and are not exceptionally high. If at the time of the crime they were high on heroin they can be impeached based on their credibility but they are competent to stand trial
Problem 5-79. Stolen Sneakers: The ∆ was accused of stealing sneakers from a sporting goods store. The ∆ claimed at trial that he purchased the goods but was not given a sales receipt. The P then attempted to introduce E showing that it was the custom of the store to give sales receipts w/ every purchase. Is this E admissible? Why? Must specific examples of the store's practice regarding receipts be provided prior to the admission of E showing the habit of a person or a routine business practice?
Yes, because if you can establish under rule 406 that this was a habit - to give people receipts - then it is definitely admissible. Corporate Habit is used a lot. A judge will still require foundation things to establish it - training, repetition, etc.
Problem 7-26. Yeah, Right: Ted, the primary witness for the defense in a tort action, states on direct examination that he was not aware that a lawsuit had been filed until four days prior to trial. On cross-examination, Ted is asked whether he told a good friend eight months earlier, right after the suit had been brought, "I heard that good old π filed suit this week." Is this question permissible impeachment?
Yes. It is a prior inconsistent statement under 613 so you can impeach him with it. You may be able to go extrinsic to prove it if it goes to his bias/he knows the ∆.
Problem 5-64. High-Tech Terrorism: Lteef Ulima was arrested for the bombing of a federal office building after police viewed a videotape that showed Ulima hurriedly leaving the building moments before the explosion. Forensic analysis revealed that the explosion was caused by an experimental explosive device, one that was part of a governmental research project contracted to a private entity. The State offers evidence that three weeks before the explosion, Ulima burglarized a warehouse of Regotech Corporation, the private contractor working on the experimental explosive device. Admissible or not? Why?
Yes. It's being offered for other evidence - it speaks to plan, but more so to ability. The robbery must be proved by preponderance of the evidence. The judge doesn't need to hold a hearing to determine it.
Problem 6-8. Turning on Mr. Big: Morris Mumford is arrested on a charge of distributing cocaine. Detective Jacob Marlee tells Mumford, "Look, I know you're just a little guy. If you turn in Mr. Big, the prosecutor has promised me you'll get probation." Mumford then recounted the complete details of his involvement in the cocaine distribution scheme, and this confession was admitted against him at trial, over Mumford's objection. Did the trial judge rule correctly? Does it matter; in reaching this decision, whether Marlee told Mumford the truth?
Yes. The detective can't promise this only the prosecution authority can. A plea deal to a detective is not within 410 so the judge properly let it in.
Problem 3-C: Which of the following examples will most likely be excluded as irrelevant? 1. In a prosecution for the destruction of property, when the defendant was arrested, he used a false name. The prosecutor wants to offer the fact that the ∆ offered a false name as evidence of guilt. 2. In a prosecution for defacing government property, a protestor allegedly had thrown ashes and mud at the Pentagon walls. In his defense, the protester wants to introduce evidence about the vagaries of United States policy toward nuclear weapons control. 3. In a tort action for strict products liability after a tire exploded, the defendant used a substantially similar tire to test whether the same type of tire was defective. 4. In a prosecution for securities fraud, the fact that just before the ∆ was arrested, the ∆ deleted many of the files on his computer.
#2
Problem 3-6. Beam Me Up: Scotty was a driver for the Letrek Company. While driving a Letrek truck, Scotty collided with a car driven by Kirk. Kirk sued the Letrek Company for damages in tort based on the theory of respondeat superior. The parties reached a written stipulation on most of the facts. The only issue at trial was whether Scotty was acting within the scope of his employment at the time of the accident or whether he was on a "fun and frolic" detour. Plaintiff Kirk offers evidence that "at the time of the accident, Scotty was not looking where he was going. In fact, he was falling asleep. Is this evidence relevant? If so, relevant to what?
- "Stipulation" this narrows the scope of what is relevant. - The parties themselves can agree or stipulate relevancy. - Therefore, that's not relevant
Problem 3-22. On a Cloudy Day: With wispy white clouds drifting lazily overhead one hot and sunny May day, Gilligan was severely injured while cutting the hedges. He claimed that he was injured when the rotary hedge cutter he was using suddenly exploded. At trial, Gilligan offers a piece of steel blade found 10 yards away from the accident site. 1. The defendant objects to this evidence. What is the basis for this objection? 2. How is this evidence conditionally relevant? Does adding visual language to the problem, such as "with wispy white clouds drifting lazily overhead one hot and sunny May day," affect the way this problem is considered? How would this visual language be received by a jury? 3. Does adding visual language to the problem, such as "with wispy white clouds drifting lazily overhead one hot and sunny May day," affect the way this problem is considered? How would this visual language be received by a jury?
- Conditional relevance. To allow it to come in you would have to show that the metal was from the hedge clipper - Standard on appeal for evidentiary rules is abuse of discretion. Abuse of Discretion is a high standard and that abuse must affect a substantial right of the party.
Problem 3-13. The Commuter: Goetz Cose. Sean was approached by four youths while riding on a nearly empty commuter train one weekend morning. The youths stood on both sides of Sean, two to a side. One of them said, "Give me five dollars." Sean, fearing an attack that would result in serious bodily harm, took out a revolver and shot the fourth youths, injuring each of them seriously. In a subsequent prosecution for attempted murder, which of the following facts is relevant?
- He was found liable because of the second shot. Because he didn't testify he was found non-guilty of assault, but in the civil case he was found guilty of murder.
Problem 5-10. The Violent Victim: A ∆ is charged with attempted homicide on a victim named Margie O'Laris. The ∆ claims self-defense, arguing that O'Laris was the first aggressor. To support this claim, the defense offered evidence that the victim was a violent person. Can the prosecution offer evidence that the victim, Margie O'Laris: Had a reputation among students in her night-time GED program as a peaceful woman?
- To establish reputation within a community you must show the witness has knowledge about what other community members think of the person. - GED class: How many times have they met, how many people are in it? - Hasn't met that much -> can object that the witness hasn't known her long enough - Few people in it -> can object that there are only a few people and that's not enough to establish reputation - Reputation: Do you know Mr. Jones, How do you know him?, During that time you've been in his community have you heard other people talk about his reputation for honesty?, From more than one person? How many times? What is that reputation for honesty? - Individual, that lives in the appropriate area, that knows the person, knows other people, and knows what the community thinks about him.
Problem 3-15. Name Your Price: The defendant offers the testimony of Price in a workers' compensation action. Price states, "The plaintiff tried to bribe me to testify in his favor." Is this testimony relevant? If so, relevant to what? Explain.
- Yes it was relevant. Credibility is always relevant.
Problem 3-17. Lions and Tigers : The defendant, Bear, is charged with extortion. Bear allegedly threatened to shoot the local butcher if the butcher did not pay for protection. At the trial, the government offers evidence that the defendant kept several guns in his bedroom. Is this evidence relevant? Explain.
- Yes it was relevant. It could show that he can carry out his threat
Problem 5-3. The Negligent Driver: Jane Lambada loans her car to 17-year-old Murray Straub, who gets into an accident on a freeway while speeding. Murray is killed. Murray's parents bring a civil suit against Jane for negligently entrusting a motor vehicle to a teenager with a well-known record of numerous car accidents and reckless driving. 1. At trial, Murray's parents offer evidence of Murray's reputation as a reckless drive. Admissible or not? Why? 2. Would it make any difference if Murray's parents instead offered evidence of specific acts of Murray's negligent driving? 3. Would it make any difference if no evidence is offered that Jane was aware of Murray's reputation or of his prior instances or negligent driving? 4. Now changed to vehicular manslaughter. The prosecution wants to offer evidence of: Murray's reputation as a reckless driver; Murray's reputation as a speeder; specific instances of Murray's tailgating other drivers; Specific instances of Murray's speeding. Will any or all of this evidence be admissible?
1. Admissible as evidence because it's an element of the crime - they should have never entrusted her the car Rule 405(b). This is proving an "essential element" of the crime. 2. Yes, this is admissible. When a specific element of the crime is required we can go into past bad acts - Rule 405(b) 3. The element in negligent entrustment is proving that they knew or should have known (reasonable person standard - when you're entrusting someone with a car, what duty do you have to determine that they can safely use it). When you're allowing someone else to use something you have control over that can be considered dangerous, you have some requirement to make sure they know how to safely use it. 4. The mercy rule has not been invoked yet, so they cannot enter this evidence yet. They can enter this if the defense chooses to invoke the mercy rule and the prosecution can offer all of this evidence in their rebuttal case. Specific instances would only come in to test the knowledge of the witness that's come in and offered his opinion
Problem 6-19. Gorkey Park: 1. M is charged with two counts of breaking and entering the kitchen of a local restaurant, Sim's. A day after the charges were filed M visited a local police officer Gorkey. M and Gorkey were social acquaintances. M proposed to Gorkey that "if you ditch these charges against me, I can help you catch some big-time crooks. I admit I broke into Sim's but I was hungry and wanted some food; you can understand that, right?" At M's trial for breaking and entering, can the prosecution offer M's statements to Officer Gorkey? 2. Assume that M's friend Bobby also is charged with breaking and entering as an aider and abetter. But the real mastermind of the operation, says Bobby, was M, who planned everything. Bobby agrees to testify against M provided that the prosecution drops the charges against Bobby. Can statements made by Bobby while entering a plea of guilty be used by M to impeach Bobby on cross (e.g. a statement in which Bobby describes his own planning activity in a way suggesting that he, not M was the mastermind, so M could show that he was just Bobby's innocent dupe)? 3. M unsuccessfully attempted to negotiate a plea directly with the prosecutor. At trial, M introduces some of his own statements made during plea discussions with the prosecutor. These are statements suggesting that M thought he had permission to enter the kitchen. What can the prosecutor do in response to M's evidence, if anything? 4. After reading Rule 410 of the FRE, M concluded that the Rule is designed to protect the accused during plea bargaining. Consequently, M offered the statements made by the prosecutor during their unsuccessful plea negotiations. Are the prosecutor's statements admissible?
1. Admissible because Officer Gorkey is not an attorney with the prosecution. 2. Admissible because it's a guilty plea. The rule (410) protects withdrawn guilty pleas, but the person being cross-examined wasn't the ∆. Under Rule 609 this would come in 3. He can bring it in under 410(b)(1) because judges tend to be liberal once they've already opened the door and lets it come in. 4. Yes. The rule does not specifically cover this, but you can argue either way on that.
Problem 7-29. The Young Freud: The young Dr. Freud testified about the cause of death in a prosecution for homicide. 1. Dr. Freud is asked on cross-examination whether his opinion is consistent with Gray's Anatomy, which is considered to be an authoritative medical treatise in the field. Admissible? Why? 2. He is also asked on cross-examination whether he has been convicted of child abuse. Permitted? 3. Dr. Freud is questioned on cross-examination about whether he had been fired from his previous employment because he forged medical records. Admissible? Why?
1. Admissible under the collateral issue rule because it's impeachment relating to a fact at issue and is relevant on direct. A learned treatise can be allowed for this purpose because it's an expert testimony and in doing so you have gone extrinsic. 2. Yes. This is under Rule 609. Since he's not accused it's a 403 balancing test, but it goes to credibility 3. This is a prior bad act that relates to dishonesty. - FRE: It could come in under 608 but you can't use extrinsic evidence. - ARE: Could not come in at all/you cannot ask this question in AL because it's just a prior bad act. However, bias is not a prior bad act, it's an existing basis for impeachment
Problem 5-75. The Comic Book Thief: Morrison is charged with burglarizing Johnson's home and stealing her valuable collection of rare Marvel comic books. The only evidence against Morrison is that the stolen comic book collection was found in his apartment when it was searched. Morrison's counsel plans to argue that this argument supports a conviction for the lesser offense of receiving stolen property (which has a lower sentence) but not burglary. The P offers evidence via eyewitness that Morrison engaged in the following prior uncharged acts (1) a year ago, he used his building passkey to enter a neighbor's home and steal her collection of DC comic books; (2) he used a hatchet five years ago to break into a local comic book store where he stole the entire collection; and (3) two years ago he bribed a salesperson in a comic book store to sell him rare comic books at below their fair market value. Should the D's objection be sustained? Why or why not? Would your answer change if the evidence of each prior act involved the stealing or purchase of Spiderman comic books, with the result that Morrison, after the Johnson burglary, had a copy of every Spiderman comic ever published? What if, in addition, all these prior acts took place within two weeks of the Johnson burglary?
1. If the prosecutions theory is offering this under a common plan or scheme - the only commonality is that they're all comics, but there's not really a common plan he used different methods. This shouldn't be let in. 2. Likely yes. This is more likely to come in because it shows a common plan/scheme and shows his motive. However, the five years ago may still be too long ago. 3. Yes. Definitely coming in because it seems like he was trying to get all of these Spiderman comics as quickly as he could Temporal proximity is important. These things occurring closer together makes it more likely for a judge to see a connection.
Relevant? Example: Criminal case where ∆ is being accused of murder. ∆'s theory: Self defense 1. Plane tickets to CA? 2. Prior fear of deceased?
1. Irrelevant 2. Relevant
Problem 6-4. The Car Crash: Two cars collide. One driver, Harry Marsden, said to the other driver, Julian Cort, "Look, let's not hassle this; will you take $1,000 and let's forget the whole thing?" Cort subsequently files a civil complaint against Marsden, seeking damages caused by Marsden's negligence. Will any or all of Marsden's statements be admissible at the subsequent trial on this complaint? Why or why not? What if, instead, Marsden said, "I screwed up; I wasn't paying attention. How about taking $1,000 to forget the whole thing?" Will any or all of these statements be admissible? Why or why not?
1. No because it's barred by 408 and you're arguing that it's an offering/compromise - Must say "amount of damage or validity." Your honor, he was willing to pay money, but there's no admission of liability. 2. No - The admission is protected. The I screwed up is not admissible it's part of the plea deal. - Even though he's admitting validity, and not contesting liability, he's contesting the amount.
Problem 7-12. Scope: Bam was employed as a truck-driver for a mouthwash company. After detouring from his usual delivery route to visit his friend, Barney, Bam was involved in an accident with a pedestrian, Fred. Fred sued Bam and Bam's employer. The only issue at trial was whether Bam was acting outside the scope of his employment at the time of the accident. At trial, Bam was called to testify by the π Fred. Bam was asked only four questions that elicited whether he was working at the time of the accident. On cross-examination, Ban was asked several additional questions: • ∆: Bam, were you distracted at the time of the crash by your friend, Pebbles, yelling at you from the sidewalk? ○ π: Objection (On what grounds?) ○ Judge: (How should the judge rule? Why?) • ∆: Had you been drinking any alcoholic beverages immediately prior to the crash? ○ π: Objection (On what grounds?) ○ Judge: (How should the judge rule? Why?) • ∆: Describe what you saw immediately after the crash occurred. ○ π: Objection (On what grounds?) ○ Judge: (How should the judge rule? Why?)
Commentary • It would depend whether they are outside the scope of the direct examination. The issue at trial is whether Bam was acting outside the scope of his employment. • The objections here would be on the grounds of relevancy. You could object on the grounds of 611(b), but 611(b) has an exception that the judge may allow it in the interest of justice. • If you object under rule 402 there is not an exception. If it is irrelevant it is not admissible
Problem 6-17. Engulf: Johann is sued by a business partner, Domino. Domino claimed that Johan understated profits by $1 million over a period of five years and clandestinely siphoned off partnership money for personal use. During negotiations with Domino, Johann admitted to taking some money because he needed to pay off gambling losses. Johann claimed, however, that he did not owe Domino anything because Domino has swindled him at the time they had formed the partnership, and, therefore, the money he took was rightfully his. 1. Can Domino offer Johann's statement at trial? 2. If Johann is hoping to get a more favorable settlement by showing his meager current assets, had produced during the negotiations all of the tax forms relating to the years in question and the betting slips verifying his losses, could these documents still be offered at trial? 3. If Johann had agreed that he owed Domino the $1 million as Domino claimed, but offered during negotiations to pay "500 grand" to have the lawsuit dropped, are any factual admissions made in conjunction with Johann's offer to pay admissible? 4. If subsequent criminal proceedings are initiated against Johann for his failure to pay income taxes on the monies in question, would the statements he made during the previous settlement negotiations be admissible in the subsequent criminal case?
1. No under 408 he's contesting liability by saying it was his money to take 2. Yes. They are otherwise discoverable but they cannot be offered only if they were only used or available in the settlement. 3. Yes admissible because there was an amount certain and he was just trying to get out of paying. 408's policy is to protect negotiation not to protect people who aren't paying the full amount they owe 4. 408 doesn't apply in this situation because he's being charged with tax evasion meaning he had more money than he admitted he had
Problem 5-8. The Warden Cross-Examined: John Quinn, a prison inmate, is charged with assaulting another inmate. The prison warden, Warden Jamison, was permitted to testify on the ∆'s behalf that, in his opinion, Quinn is a peaceful person, and Quinn has a reputation in the prison community as a peaceful person. Should the prosecution be permitted, despite defense objections to ask the following questions on cross-examination: 1. Wasn't Quinn written up twice for starting fights in the mess hall? 2. Didn't Quinn severely beat his cell mate when first admitted to the prison five years ago? 3. Doesn't Quinn have a reputation for involvement in failed prison escapes though there was never enough evidence to prosecute him?
1. Offer an objection for improper form - Rule 405(a) Cross-examination of a character witness, you can inquire into specific instances. - Cross-examination: test the knowledge of the person who gave the testimony not trying to determine the underlying fact - Instead of saying "wasn't the ∆ written up twice" you need to say "Did you know" or "Had you heard" - But yes, this evidence can come in. 2. Rule 405(a) Remoteness in time: Under relevancy, the ∆ can argue that this is not relevant because it was so long ago. - A continuing pattern would make it more relevant - This evidence can come in depending on the relevancy decision 3. On one hand, if this was nonviolent, this is irrelevant to the peaceableness and thus should not be admitted. - Admissible if the prosecutor could show that the escape attempt was violent in some way. - Also because it was never proven you can argue speculation
Relevant? Example: Civil case where UPS truck hits a car and hurts the driver of the car. UPS truck runs a red light πs theory: Driver Negligence 1. Past driving issues?
1. Relevant
Relevant? Example: Criminal case where ∆ is being accused of murder. ∆'s theory: Mistaken identity 1. Plane tickets to CA? 2. Prior fear of deceased?
1. Relevant 2. Irrelevant
Relevant? Example: Civil case where UPS truck hits a car and hurts the driver of the car. UPS truck runs a red light πs theory: Negligent hiring/Vicarious Liability 1. Past driving issues?
1. Relevant, but with a limiting instruction that the driving history should only be considered for negligent hiring
Which of these are 608(a) attack? 1. Opinion or reputation evidence that witness is untruthful 2. 609 convictions 3. Contradiction/inconsistent testimony 4. Bias or interest
1. Yes 2. Yes 3. No 4. Yes
Problem 7-15. Cross.com: Caryolyn testified in a commercial litigation action. Which of the following questions are permissible during the cross-examination of Carolyn? Explain. 1. "You used your personal computer to make notes of the meeting with the opposing party only two days after the meeting occurred, not immediately thereafter as you testified on direct examination, isn't that right?" 2. "You have a Macintosh computer, not a Dell as you just testified on direct, isn't that correct?" 3. "You left your office last Wednesday at 5:30 p.m., not 7:30 p.m. as you testified on direct examination, right?" 4. "Your boss, Ms. Sanders, was wrong when she testified that she deposited that March proceeds on March 4th, wasn't she?" 5. "Isn't it true that you are one big liar?
1. Yes the question can be asked it is relevant. This is an impeachment by contradiction. 2. Yes this question can be asked, but it seems to be irrelevant. If it's inconsistent with what they said you can only go extrinsic if it's material to the case 3. Yes the question can be asked. You can likely go extrinsic to prove this because where you were at a specific time can be material to the case. 4. This is the impeachment of the testimony of another witness. This would not be allowed at all. One witness cannot give a testimony about another witness because you're only testifying about what you have personal knowledge of 5. You cannot ask this - it's argumentative.
Problem 6-16. Let's Make a Deal: Barbara owed Alice $500. When Barbara saw Alice hanging out in front of the local convenience store, Barbara asked Alice, "If I give you $350 and a ticket to the Harry Connick Jr. concert, would that be an adequate settlement? I don't have the full $500 I owe you, and I just won't have it by the agreed date. I'm very short on cash at the moment." If Alice does not accept Barbara's offer, can Alice introduce Barbara's statements in a later trial for payment of the $500?
Admissible because she is not disputing the validity or the amount. It wasn't a negotiation at all. This was a certain amount.
Problem 6-14. Columbo: Defense witness, Samantha, testified about the position of two cars involved in an automobile accident at a busy intersection On cross-examination, she was asked by an apparently bumbling attorney named Columbo whether she was employed by the ∆'s insurer. The ∆ objected to the question and the court sustained the objection. Should the lower court's ruling be affirmed on appeal?
Because the record does not say why it was offered in it was affirmed, however if an offer of proof is sent with it to say that this evidence was being offered in to show bias because they were an employee then it would be reversed.
Which type of evidence is this? Seeing blood coming out of a gunshot wound
Circumstantial Evidence
Problem 5-85. Perjuring Clergy Revisited: Assume that the trial judge permits the question in multiple-choice problem 5-84 to be asked, and in response, Father O'Reilly denies the perjury. Orwell's counsel later seeks in the defense case to call O'Reilly's brother to testify that he, the brother, had indeed been an illegal gambler, and had told O'Reilly about the gambling, and heard O'Reilly admit to lying about that knowledge to a grand jury. Maxwell's objection to this testimony should be: A. Sustained because it is extrinsic evidence offered solely to prove character for truthfulness or untruthfulness. B. Overruled because prior crimes used to impeach a witness may be proved by extrinsic evidence. C. Overruled because, although it is extrinsic evidence that may prove character for truthfulness or untruthfulness, it is also relevant as proper impeachment by specific contradiction, provided it survives Rule 403 balancing. D. Sustained because it is hearsay not fitting within a recognized exception.
Commentary • The correct answer is A
Problem 5-86. Maxwell's Silver Tongue: Assume now that O'Reilly was permitted to testify and, on cross-examination is asked, "You have heard that John Maxwell lied by falsely claiming in an employment application last year that he had a Ph.D. in Economics?" Any objection to this question should be: A. Sustained because act propensity character evidence may not generally be proven by specific acts. B. Sustained because the answer would be prejudicial to Maxwell under Rule 403 C. Overruled because the evidence would be admissible under both Rule 405 and Rule 608 D. Overruled because the evidence would be admissible under Rule 405(a) alone.
Commentary • The correct answer is D • Not A: It's not act propensity it's attacking the credibility of a witness. You can ask a specific act of the witness to test their knowledge about the character evidence they've been given. If they deny it you can not offer extrinsic evidence to prove it - 608(b)(2) about a witnesses prior dishonest act. You can only ask the person who is accused whether they committed it. - 405(a) Cross-examination of a character evidence - you can ask about prior events to test their knowledge on the person they've given character evidence about
Problem 7-A: Accountant Zakkiah Jones was arrested for driving under the influence of alcohol one dark night on the main road of her Pennsylvania town. Jones testified in a subsequent trial, stating she made a left turn onto Main Street from 3rd Avenue prior to being stopped. The prosecutor did not ask her any questions on cross-examination about how she ended upon Main Street, but called Officer Lemke in rebuttal. Lemke testified, "After she was stopped, Ms. Jones told me she turned onto Main Street from 4th Avenue." Which of the following statements about the Officer's testimony is the most accurate? A. It is admissible as prior inconsistent statement impeachment, so long as two statements were inconsistent. B. It is admissible as prior inconsistent statement impeachment if the prior statement had been made under oath. C. It is not admissible as prior inconsistent statement impeachment because the statement's probative value is substantially outweighed by its danger of unfair prejudice. D. It is not admissible as prior inconsistent statement impeachment because it is offered by Officer Lemke
Commentary • The issue is whether it's a collateral matter or if it's not collateral. • Calling another witness in rebuttal is going extrinsic to prove something. The prosecutor didn't ask her, she called someone different. This would really turn on whether this is material or not. • The answer depends on how you interpret the parts of this problem.
Problem 5-83. Orwellian Defamation: Maxwell has civilly sued Orwell for defamation. Maxwell's first W Blue True, at trial testified that he overheard Orwell tell a local newspaper, The Daily Globe: "John Maxwell is a well-known liar; he raped my daughter and now he's trying to lie his way out of it; just like he always does." The Globe printed this quote in a story about his daughter's rape. When Maxwell calls his second W, Father O'Reilly (Maxwell's next-door neighbor and parish priest for the past 23 years), to testify that Maxwell has a reputation for truthfulness in the community in which they both live, Orwell objects. Orwell's objection should be: A. Overruled because O'Reilly's testimony is admissible under both Rule 405(b) and Rule 608(a) B. Overruled because O'Reilly's testimony is admissible under Rule 405(b) only. C. Sustained because O'Reilly's testimony is an act propensity uses of character evidence. D. Sustained because the mercy rule doesn't apply.
Commentary This is a special case because it's defamation. In defamation cases you have to make a prima facie case that the statements are untrue. You get to prove the general character trait that disproves what the ∆ said about you. - Not A: He has to prove he's truthful, so 405(b) is important, but not 608(a). - B is the correct answer. - Not C: It's not act propensity truthful evidence can be admitted - Not D: 404(a)(1) the mercy rule really doesn't apply, but it's going to be overruled.
Problem 5-84. Perjuring Clergy: On cross-examining Father O'Reilly, Orwell's counsel asks the following question: "Isn't it true that you perjured yourself 11 years ago, lying to a grand juror about whether your brother ran an illegal gambling operation?" Maxwell's objection to this question should be: A. Sustained under Rule 609 because the perjury occurred more than 10 years ago. B. Overruled under Rule 609 if Orwell gave sufficient written notice to Maxwell of the intent to ask the question, offered a fair opportunity to contest its admissibility, and provided specific facts and circumstances demonstrating that the evidence's probative value substantially outweighs its prejudicial effect. C. Admissible under Rule 608(b) in the discretion of the court. D. Inadmissible under Rule 608.
Commentary This is an attack on the witness - Not A: This is not a conviction so it's not subject to the conviction Rule 609. He's accusing him of perjuring himself. Without the statements: conviction, served time, etc. you can't assume conviction - Not B: It's not governed by 609 because it's not a conviction - The correct answer is C if this is Federal. Correct under federal courts, but not under Alabama. You can ask a question of that witness that relates to dishonesty - The correct answer is D if this is AL.
Problem 6-21. The Signing Sparrow: The ∆, Sparrow, is charged with murdering Goodot. During a plea negotiation with the prosecutor, the ∆ blurts out, "You guys don't know who you're up against! You think I killed Goodot, but you really should ask me about the unsolved murder of Blaine in the next county. I have personal knowledge about that one, and you coppers are way off base in your investigation!" Sparrow is subsequently charged with Blaine's murder. At that trial, can the prosecutor offer Sparrow's inculpatory statements made during the Goodot plea negotiations?
Depends on whether or not he signs the Mezzenato waiver. If he hasn't signed the waiver - if the original plea negotiations fail it's inadmissible under 410 If it's a failed plea negotiation he cannot use those statements made at that time against him. However, you can use the statement to find the new evidence
Which type of evidence is this? Seeing someone fire a gun
Direct Evidence
Problem 7-8. At the Movies: In the film 12 Angry Men, jurors debate whether a young Puerto Rican defendant is guilty of stabbing his father to death with a knife. During the deliberations, the following incidents take place: 1. P claims that the knife found next to V and owned by was unique. During the deliberations, Juror #8 produces a replica that he bought the night before in a shop in ∆'s neighborhood. 2. An elderly P W testifies that he lived under the victim's apartment and heard a violent argument coming from his apartment. W had a limp, but allegedly walked to his front door in time to see ∆ run past. In the jury room Juror #8 walks with a limp over the same distance from W's apartment to W's front door. The experiment suggests that the W could not gotten to his front door in time. 3. Juror #10 argues the ∆ is guilty because "We all know that these kind of people are violent and that human life doesn't mean the same to them as it does to us," the jurors. Following the verdict, which, if any, of these incidents would jurors be competent to testify about under Rule 606(b)?
External information so it cannot be brought in. You can't go do your own research as a juror.
Problem 6-11. Kommander Condominium Club: One crisp fall day at the Kommander Condominium Club, Rob Arbuckle was late for his 10:30 a.m. tennis appointment. He left the elevator while looking at his watch and bowled over 86-year-old Alfred Macumber. A distraught Rob exclaimed, "Oh Mac! I hope you're okay. Why don't you go to the Mellon Hospital, and I'll pay for the check-up?" Later that night, Mac's attorney called Rob and told him that Mac was thinking of bringing suit because of his fairly severe injuries. Rob responded, "Look, I don't want any trouble. I admit I was not looking when I ran into Mac; I was in a hurry. If I gave Mac $1,000, would this whole thing go away?" The attorney refused Rob's proposal. Prior to the civil trial, Rob was prosecuted for battery on Mr. Macumber. He sought a plea bargain in which he would admit guilt if he received a suspended sentence. The prosecutor rejected Rob's offer. Which, if any, of Rob's statements are admissible against him in the civil trial?
First Statement: Evidence of that statement is not admissible under 409 Second Statement: ∆ can argue that the amount is not a specific amount and it's part of a negotiation strategy. Π can argue that this is a clear statement that he owes $1000 and thus should be admitted
Problem 7-14. Cross My Heart: Jim Stone is sued by his neighbor for the conversion of his neighbor's very expensive Cannondale bicycle, which disappeared at around 11:45 a.m. At trial, Jim testifies on his own behalf, claiming misidentification. Jim offered an alibi. He asserted that he was at work several miles away from 9:00 a.m. to noon, including the time when the alleged theft occurred. On direct examination, Jim stated, "If someone too that fancy bicycle of yours, I'm really sorry. But I can tell you this, I was at work several miles away from 9:00 a.m. until noon on that day." On cross-examination, Jim is questioned as follows: 1. Π: Isn't it true that on the day in question, you worked in the morning form 9:00 a.m. to 11:25 a.m., and not to noon as you just testified? ○ ∆: Objection! Irrelevant! ○ Judge: (How should the judge rule? Why?) 2. Π: Are you going to lose your job if you are found liable in this case? ○ ∆: Objection (On what grounds? What type of impeachment is occurring? Explain.) ○ Judge: (How should the judge rule? Why?) 3. Π: Weren't you convicted of a felony, the distribution of marijuana, three years ago? ○ ∆: Objection (On what grounds? What type of impeachment is occurring? Explain.) ○ Judge: (How should the judge rule? Why?) 4. Π: You cheated on your Law School Admission Test last year didn't you? ○ ∆: Objection (On what grounds? What type of impeachment is occurring? Explain.) ○ Judge: (How should the judge rule? Why?) 5. Π: You have intermittent amnesia, Mr. Stone, don't you? ○ ∆: Objection (On what grounds? What type of impeachment is occurring? Explain.) ○ Judge: (How should the judge rule? Why?) 6. Π: Didn't you say in your deposition on June 5th that you drove to work via the Parkway, not U.S. 1, as you testified? ○ ∆: Objection (On what grounds? What type of impeachment is occurring? Explain.) ○ Judge: (How should the judge rule? Why?)
For each question ask could you go extrinsic to prove it. 1. Objection overruled because it's relevant. ○ If the person denied could you go extrinsic to prove it? Yes because it is material to the case 2. This question goes to bias, but the question can be asked. ○ If they denied it could you go extrinsic to prove it? Yes. Credibility is always an important issue so you can always go collateral to prove it. Bias among witnesses is something that the jury would ant to know 3. You shouldn't object to this because it would be allowed under Rule 609. Conviction? Yes. Felony? Yes. Does it deal with truthfulness or untruthfulness? Yes. 4. You can go into this question on cross, but there is a split of opinion based on federal and AL. ○ FRE: if you know about this prior event that relates to dishonesty you can ask the question but it is still subject to Rule 403 § If they deny this you cannot go extrinsic to prove it because it is not collateral. ○ ARE: you cannot ask this question in AL. 5. Objection based on relevance. ○ It will likely be overruled because it relates to the credibility of the witness, but it can also possibly relate to competency. ○ You can go extrinsic to prove this. 6. The impeachment is based on 613(b) as a prior inconsistent statement You can go extrinsic to prove it ○ You can go extrinsic to prove it
Problem 6-18. Battery: Jessel is sued by Cohan for damages resulting from an alleged battery outside of a local nightclub, Crickett Place. Cohan and Jessel engaged in a series of discussions about settling the suit before trial. During one discussion, Cohan stated, "The only reason I hit you from behind was because you were doing a song and dance with my girlfriend inside the club." Negotiations were unsuccessful. At trial, Cohan takes the stand and states, "I was in the club until after Jessel left; I didn't learn about him getting hurt until I heard the sirens and ran outside to see what had happened." Jessel seeks to impeach Cohan with the admissions he made during settlement negotiations. Is this permissible?
He's trying to impeach him with a prior statement. No if the impeachment relates to a statement made only during the settlement agreement it cannot come in.
Problem 5-67. Gambling for Drugs: The prosecution seeks to offer evidence of (1) the Willie Wonka investigation of last year and the betting slips uncovered during that investigation, (2) Dolittle's conviction five years ago for running an illegal lottery, and (3) the lists of bets found during the Co-op City Avenue search. The prosecution argued that these items are admissible to prove Dolittle's identity as the owner of the Co-op City apartment. How should the trial judge rule and why?
If the prosecution is offering this evidence simply on modus operandi then no. If you're letting in the prior betting slips to help show ownership we would need something unique about the betting slips so that we know it was his. Because even if he was the owner of the apartment he could easily say that yes it was his apartment, but the slips were not his. - Preponderance of evidence: We would have to lay down foundation - calling in the police officer who saw it and walked into the store that day. That way it would show that there is enough evidence to show that there's enough evidence to show that it probably happened. It's a close call, so the judge will be protected either way.
Witness 1 is a detective and Exhibit A is the gun found buried in the backyard of the ∆'s house. This is a case about insider trading. Should this be conditionally admissible?
No - this isn't relevant to the case
Problem 6-13. Go Ahead and Jump: π, Laurie, brought suit against a bungee-jumping facility in Michigan. Π jumped and was injured when the rope broke. Π offered evidence at trial that the ∆ was insured, to corroborate her claim that the ∆ operated the business with a lackadaisical attitude. The facility's unofficial motto was: "Why worry? Be happy." Is this evidence admissible?
Not admissible under 411 because it cannot be used to show negligence.
Ex. Sexual harassment in the workplace. Suit alleges that π has been damaged by being harassed. Can you admit evidence of victim's sexual behavior?
Yes if probative value substantially outweighs prejudice
Problem 5-2. At the Movies - Insane Anatomy of Murder: Lt. Manion is charged with murdering Barney Quill. Manion admits that he killed Quill, but claims that he did so as a result of "irresistible impulse," a form of temporary insanity resulting from finding out that Quill has raped and beaten Manion's wife, Laura. The prosecution theory is that Quill and Laura were lovers, and that Manion killed Quill after learning of the affair. Cross-Examining Manion, the prosecutor asks Manion how many enemy soldiers he has killed in combat. The prosecutor argues that Manion's wartime experience may have conditioned him to killing. The defense objects, claiming that evidence of wartime combat killing is irrelevant and an improper attempt to show that Manion has a propensity to be violent. How should the judge rule on the objection?
Overruled. The ∆ used a temporary insanity defense, by using that he opened the door for the prosecution. Now the prosecution is allowed to look at things in the past that may have influenced the ∆s actions under great pressure .Under 404(a)(2)(B) this would come in to show mental propensity
Problem 5-61. Infidelity: Montana Redwood is on trial for homicide. In cross-examining prosecution witnesses, defense counsel revealed the defense theory, that Redwood killed Molly Ringwater because Ringwater was attacking Redwood's wife. The prosecutor offered evidence that Redwood had had sexual relations with at least 20 other women during the year before the killing. Admissible? Why or why not? Should the ruling change if the prosecution also offers evidence that Ringwater had told Redwood's wife of Redwood's infidelity in a conversation that took place shortly before Ringwater's demise?
Part 1: With what we know now then this shouldn't be admissible. - Yes it shows motive of why he would want to kill her because maybe she was one of the women he had sex with Part 2: Yes it should come in now because it speaks to motive
Problem 5-51. At the Movies: Snitch Attack. In the film Anatomy of Murder, Lt. Manion is charged with murdering Barney Quill. Manion admits that he killed Quill, but claims that he did so as a result of "irresistible impulse," a form of temporary insanity resulting from finding out that Quill had raped and beaten Manion's wife. Laura. Miller, incarcerated in the same cell as Manion testifies on the prosecution's behalf that Manion told him during the trial that "I'm pulling the wool over the eyes of my lawyer and the jury, and will take care of Laura after I get out of here." On cross-examination, defense lawyer Paul Biegler elicits testimony that Miller had previously been convicted of three felonies: arson, assault with a deadly weapon, and larceny. Moreover, Miller had been arrested for indecent exposure, peeing into windows, perjury, and disorderly conduct. What, if any, of this evidence would be admissible under Rules 608 and 609? Would it matter if the convictions were for misdemeanors rather than for felonies?
Relevant Information: All 3 are felonies. Trial 9/5/17 Arson conviction 5/5/2005 - 2 years in jail and 5 years probation - Ten year start 5/5/2007 - It's beyond the 10 years, but it's important because Assault conviction 3/12/2001 - 1 year in jail and 2 years probation - Ten year start 3/12/2002 - It's beyond the 10 years, but it's important because it's probative value substantially outweighs the prejudicial effect because Larceny conviction 6/4/2012 - 1 year in jail and 4 years probation - Ten year start 6/4/2013 - Prosecution: We still need to balance the probative with prejudicial
Page 193 NY v Chambers: Preppy Murder Case: Young women was found dead in central park and she appeared to be raped. Later, a man was charged with her murder and rape. The man claimed that they'd had consensual sex and that she had died during rough sex play. He claimed he was so traumatized he didn't get any help at the time and she was found the next morning. She was seen with diamond earrings when she was at a bar before then and they were gone when the police found her. The DA wanted to portray this as a robbery and claim that it was murder in commission of a robbery. He was not caught with diamond stud earrings. Should the judge let this in under 404(b)?
The judge did not let this in under 404(b), but Emens believes he could have. After a 9 day jury deliberation, the defense offered a plea of a 15 year manslaughter decision, so there never was a verdict returned. There was a 25 million dollar civil judgment and in 2008 he was arrested again for 19 years for drug charges. When a jury stays out for a long time the judge will bring them in and ask them to reach a timely decision.
Problem 5-73. Patty Hurst Case: Man's daughter claimed that she was kidnapped and their ransoms were sent through newspapers. Eventually they could recover her, but before that happened she had participated in bank robberies - she was standing there with a gun and the her kidnappers were robbing the bank. She was tried for armed robbery. Her defense was duress - that she was there but she didn't have any intent or knowledge. The prosecutor wanted to insert that in a prior robbery she fired the weapon up in the air to rebut the issue of duress. The idea was that if she was in duress (which is a mental state) then why was she shooting up in the air when at any time you could have turned and run away. Should the judge let this in under 404(b)?
The judge let it in and she was convicted. She was eventually given a pardon because many believed she had Stockholm syndrome from being kidnapped and constantly tortured and that was why she was participating voluntarily.
Problem 7-25: Cavalier and Convicted: Joe Cavalier was convicted of receiving stolen property nine and a half years prior to his trial for mail fraud and conspiracy to commit mail fraud. Cavalier testified in his own defense, and the prosecution offered evidence of the prior conviction in order to impeach him. The defense objected. What ruling and why?
This is a Rule 609 issue. We would want to know if it's a felony, but we don't know that. If it is a felony there's a higher balancing test. Receiving stolen property is not a crime of dishonesty. It is, however, within the 10 year time limit.
Problem 7-3. Dead Again and Again: Josie agreed in writing to sell Bernard her boat, pending an inspection. The inspection occurred and it was a complete success. Before the completion of the sale, however, Josie died. Bernard then brought suit against Josie's estate based on diversity of citizenship. Bernard sought specific performance of the contract. At trial, Bernard took the witness stand to testify about the terms of the contract. Will Bernard be allowed to testify about the agreement if a "Dead Man's State" applies? Explain
Used to be a rule called "Dead Man's Statute" Old Common law rule that said if you are interpreting a contract or sale of land, an oral statement by someone that is now dead cannot be offered to change a contract or sale of land (shutting the mouth of the dead man in order to stop fraudulent acts) Rules of Evidence did away with the Dead Man's Statute
Witness 1 is a detective and Exhibit A is the gun found buried in the backyard of the ∆'s house. This is a case about a murder. Should this be conditionally admissible?
Yes - the gun could be the murder weapon, but you need to connect the gun to ∆
Problem 5-66. Count Dracula: On October 31, at midnight, a man wearing a ski mask and a "count Dracula-like cape" held up a taxicab driver at gunpoint. No one saw the offender's face, but Richard Harrington has been charged with the crime. The prosecution's case consisted entirely of witnesses who linked Harrington to each of four prior cabbie robberies. Each of these robberies took place one year apart, each happening at midnight on Halloween for each of the four years preceding the current robbery. In the first three robberies, eyewitnesses saw Harrington's face when he removed his mask and fled. Harrington was tried but acquitted of all three offenses. In the next case, eyewitnesses saw a caped, ski mask-wearing man flee into Harrington's apartment building. Subsequent police searches with warrants uncovered a cape but no mask. Harrington fled and was thus never arrested. Should any or all of these witnesses be permitted to testify? Why or why not?
Yes. The prosecutor wants to offer into evidence the eyewitness testimony under modus operandi a very special kind of identity. The judge needs to look at if they were operating in a manner linked to the current crime (if there was a signature). - They were all on Halloween, all cab robberies, happening at midnight, a man wearing the same costume, and all took place a year a part. This is not double jeopardy: In terms of evidentiary issues - the fact that a person was found non-guilty does not prevent the evidence from coming in. The standard of a criminal case is higher, so there are two different foundations.
Problem 4-9. Slipped Up: Wally Witness testifies for the π in a "slip and fall" personal injury case. The π contends that the ∆ negligently permitted puddles of water to accumulate on the ∆'s walkway. Can Wally testify that he had observed puddles regularly form on the walkway during the three weeks prior to the π's fall? Can Wally testify that he had seen three people other than the π fall on the same walkway that week? Why?
• It is relevant, but you're going to need to know where the puddles were, what time of day the puddles were there for. • There needs to be a substantial similarity. The closer you can get to that.
Problem 4-10. Spoiled Shrimp: Memphis Frozen Foods shipped three tons of frozen shrimp with Benner Shipping. The shrimp spoiled en route, and Memphis Frozen Foods brought suit against Benner Shipping for damages. The key issue was how to interpret the requirements of the contract. Benner shipping attempted to introduce in evidence prior contracts between the parties concerning the sale of scallops and clams. Memphis Frozen Foods objected, claiming that the prior contracts were irrelevant because they did not deal with shrimp. How should a judge rule on this objection? Why?
• Need to know the standard shrimp shipping standard • The judge would want to look at other substantially similar contracts. So if it's not frozen shrimp, you would look at shipping other frozen foods, so overruled.
Problem 6-1. The Ruptured Bulldozer: π injured while operating a Ford F4 bulldozer. 3 weeks after the incident, Ford added a protected shield to a F5 that would've protected someone from a hydraulic rupture. The π wants to offer evidence of the protective shield. Can they?
• ∆ argument: Relevancy is an issue because it depends on whether the design of the F5 is vastly different from the F4. Must have substantial similarity between the two products. • Relevancy comes up in subsequent remedial measures often whether there is substantial similarity between two products
