Evidence Hypos
Problem II-15 The Defendant is on trial for murder. The star witness for the prosecution, Sam Peabody, testifies that he heard two shots coming from around a corner, at which point he ran to the corner to see what had happened. The prosecutor's next question is, "What did you see next?" Peabody responds, "I saw the Defendant about twenty yards from the house running as fast as he could away from that house because he had just shot the murder victim." Is Peabody's answer objectionable? All of it? Some of it?
All of the testimony is objectionable. First, it is easy to keep out the testimony of why the defendant was running away from the house. Peabody has no personal knowledge as to why the defendant was running away from the house. Second, you can object to Peabody's statement that the defendant was running "as fast as he could." How can Peabody possibly know how fast someone else can run? Lastly, you can object to the testimony that the defendant was running "away from the house." Based on the facts, you could require peabody testify to the direction he was running because Peabody cannot have personal knowledge of whether he was running away from the home. This will be difficult but it can likely be trimmed down so the most damaging parts will not come in.
Problem II-1: Able is charged with arson in New York City. The fire started at about 3 p.m. on Labor Day, 2008. At trial, Able calls his eight year old son, Jimmy, who, if permitted, will testify: "I called my father around 4 o'clock on Labor Day—after I got back from the picnic—at the number he'd given me. It was a long distance call to Chicago. Uncle Sid answered, and said that Daddy was there but he was outside, walking the dog." The prosecutor objects: "This witness has no personal knowledge as a basis for his testimony." Assuming Jimmy knows Uncle Sid well and recognized his voice, is the objection valid? Is there another objection the prosecutor could make?
No, the objection is not valid. An objection for lack of personal knowledge does not work here because Jimmy had personal knowledge that his dad was in Chicago at the time, he is perceiving that the phone call is a long distance call and he is perceiving his uncle tell him that his dad is in Chicago. Another objection that the prosecutor could make is hearsay.
Problem II-11 Sandra Chamallas brought an action to recover damages for personal injuries allegedly caused by the negligence of Acme's employee, Shane. Chamallas claims that Shane, while driving one of Acme's trucks, plowed into her car as she was stopped for a red light. In order to establish respondeat superior liability, Chamallas calls Shane as her first witness. She asks him only whether at the time of the collision he was in the employ of Acme and engaged in Acme's business, and to identify an accident report he had filled out. On cross-examination, Acme seeks to elicit Shane's description of the collision and of the events preceding and following it. On what ground might an objection be made? What should the ruling be? If the cross-examination is allowed, should the defense counsel be allowed to use leading questions?
An objection would be made under rule 611 that cross examination should not go beyond the subject matter of the direct examination. Under direct examination, they were asking about employment for respondeat superior and on cross they were asking about the accident which would be the grounds of the objection. However, this is a waste of the court's time to bring in the same witness to testify twice. The court may allow inquiry into additional matters as if on direct examination to avoid wasting time.
Problem V-10 Dave meets Vivian at Dorian's Red Hand Bar. The two go home together to Vivian's apartment. Towards morning, according to Vivian, Dave ties her up, beats and rapes her, then appears to fall asleep. Vivian frees herself, leaves and calls the police, who return with Vivian to her apartment. Vivian and the police find Dave in the shower merrily singing away, calm and collected as can be. Upon questioning by the police, Dave expresses shock at Vivian's story and claims that, as far as he knew, everything occurring the night before was with Vivian's consent At trial, the prosecutor offers testimony by Anita and Brenda that they, too, met Dave at Dorian's, took Dave home with them, were tied up, beaten and raped, escaped, returned to their apartments with the police, and found Dave merrily showering and singing. Is Anita's and Brenda's testimony admissible? If so, on what theory? Suppose instead that Dave is accused of being the masked rapist who lured Vivian into the hallway outside her apartment with a call on her unlisted cell phone number. Is evidence that Dave purloined Vivian's purse two months earlier at Dorian's Bar admissible? If so, on what theory?
Is Anita's and Brenda's testimony admissible? If so, on what theory? Yes, I think this would be admissible under the theory of common plan or scheme. Dave has a distinct MO and the similarity between the crime against Vivian and the other two crimes supports a strong inference that the same person committed all of them. Probative value is high
Problem II-2: Defendant is charged with bank robbery. At trial the teller who paid over the money is called and testifies that he gave the money to a man wearing a bandanna over his face. Asked if he can identify the bandit, the teller says, "I'm not sure, but I think so." Asked if he sees anyone resembling the bandit in the courtroom, he replies, "That man, sitting at the table there, I think he is the robber." (Indicating the defendant.) Asked by the prosecutor whether he is certain, the teller replies, "No, I can't be certain, but I think he looks like the robber." Defendant moves to strike. Should the motion be granted?
No, the motion should not be granted. The witness is allowed to testify based on their personal knowledge/perceptions (FRE 701). Uncertainty is a question for the fact finder.
Problem III-1 Phoebe Francis, on vacation in Nome, Alaska, was injured by a glass shard when a bottle of Kookie Kola, which a friend had bought from a vending machine and tossed gently to her, exploded in mid-air. Phoebe brought suit against the Nome Bottling Company, relying solely on the argument that the defendant was liable for her injuries under the theory of res ipsa loquitur (i.e., accidents of this sort "speak for themselves" and do not happen unless the defendant has been negligent). At trial, Phoebe might offer the following items of evidence: (1) Her own testimony that the bottle exploded in mid-air, and that a piece of glass from the bottle opened a two-inch cut on her leg. (2) Her friend's testimony to the same effect. (3) Her friend's testimony that he had put $2.00 into a soda machine and pressed the button labeled Kookie Kola. (4) Her friend's testimony that what he took from the machine was a bottle of Kookie Kola. (5) Testimony by Phoebe's mother that her family's vacation had been ruined by her daughter's injury. (6) Testimony by Phoebe's mother that her daughter could catch anything thrown to her. (7) Jill Janitor's testimony that she was called to the scene of the ac
Rule 401 just has to satisfy the standard of having ANY tendency to make a fact more or less probable. (1) Her own testimony that the bottle exploded in mid-air, and that a piece of glass from the bottle opened a two-inch cut on her leg. - IN (2) Her friend's testimony to the same effect. - IN (3) Her friend's testimony that he had put $2.00 into a soda machine and pressed the button labeled Kookie Kola. - IN. This increase the probability that the can was a can of Kookie Kola and that it came out of the machine that the friend put two dollars in. (4) Her friend's testimony that what he took from the machine was a bottle of Kookie Kola. - IN. (5) Testimony by Phoebe's mother that her family's vacation had been ruined by her daughter's injury. - LIKELY IN. Damages will always in be hotly contested in a torts case. While this is not relevant to the question of whether the event happened, it is probably relevant to the calculation of the pain and suffering damages. (6) Testimony by Phoebe's mother that her daughter could catch anything thrown to her. - OUT. The claim is that the can exploded spontaneously in mid air, not when it hit the ground after she missed it. (7) Jill Janitor's testimony that she was called to the scene of the accident and cleaned up a mess, consisting of broken glass and a substance she recognized as the residue of a cola beverage, which was spread throughout the room. - IN. Tendency to show that such an incident took place. (8) Janitor's testimony that while cleaning up she found a large fragment of a bottle with most of the label attached. The portion she found said "ie Kol." and in the lower right hand corner it read "Nome Bottling Company." - IN. Tendency to increase the probability that this bottle was a bottle of Kookie Kola. (9) A sketch Janitor had made of the pattern of cola stains and embedded glass on the room's floor, walls and ceiling. - (10) The fragment of a bottle that Janitor described. - Circumstantial evidence that Phoebe was injured by glass from an exploding soda bottle. - IN. (11) A copy of a contract between the Nome Bottling Company and the Kookie Kola Company, giving Nome Bottling the exclusive right to bottle Kookie Kola in the Nome area. - IN. This t
Problem II-6. Northern Resources (NR), a North Dakota mining company sued Great Plains Construction (GPC) for the cost of asbestos removal from NR's headquarters in Bismarck, North Dakota, which was built by GPC starting in September 1968. NR claims that at the time of construction GPC (but not NR) knew that a fireproofing product called "Monokote" - which GPC sprayed over structural steel and decking for the building contained 20% asbestos, and posed a health hazard. At trial, to show that GPC was aware of the health hazard of asbestos before construction began, NR sought to introduce in evidence an undated memorandum to GPC from its insurance company summarizing a 1966 article on the dangers of construction materials that contained asbestos. The memo was found in a PC folder that contained more than twenty documents, most but not all of which were dated before September 1968. The judge excluded the memo because he found that NR had not proved that GPC received the document before work began on NR's building. The jury found for the defendant, GPC, and NR appeals claiming that the exclusion of the memo was error. How should the appellate court rule on this claim?
The trial judge applied 104(a) but this is a 104(b) issue. The judge's role is not to make a finding on a disputed fact. Rather, the judge is supposed decide if there is sufficient evidence for a jury to make a reasonable decision. The proper ruling would be that there is proper evidence for the jury to support a finding in the case.
Problem III-6 Bertie Wooster is charged with Burglary of a home. He pleads not guilty. The prosecution seeks to introduce evidence that on the night of the burglary Wooster was arrested three houses away from the scene of the burglary for selling narcotics. Is the evidence relevant? Is it admissible? Assume the judge thinks it is both relevant and admissible, what steps might counsel for Wooster take to minimize the prejudicial effect of evidence?
Yes, the evidence is relevant because it has a tendency to make a fact more or less probable than it would be without the evidence. Yes, the evidence is admissible because relevant evidence is admissible. What steps might counsel for Wooster take to minimize the prejudicial effect of evidence? The Defendant could stipulate that he was 1 block from the scene of the crime when the crime happened.
Problem III-2 Alan is charged with killing his wife. One item of evidence offered by the prosecution is the fact that Alan is the beneficiary of a $25,000 insurance policy issued on the life of his wife. Alan objects on the ground that there is absolutely no evidence indicating that he needed money, and that, on the contrary, he has $100,000 in the bank and is free of all debts. Is the evidence of the insurance policy admissible? Would you answer differently if the policy were in the amount of $250,000?
Yes, the evidence of insurance is admissible because there is a tendency to make a fact more or less probable than it would without the evidence..
Problem II-10 Defendant was driving his car when it crashed into and broke the show window of Plaintiff's jewelry store. The accident imperiled Plaintiff's life, as he was pinned beneath Defendant's car. Plaintiff sues Defendant in tort. Plaintiff contends that the accident was caused by Defendant's driving at an excessive rate of speed. At the trial Plaintiff calls witness A, a merchant who owns a bakery three doors down from Plaintiff's store. The merchant testifies, I first saw Defendant's car whiz by the bakery window. It was then going 75 miles per hour." Defendant objects to his testimony. What is the basis of the objection? What is the proper ruling? Defendant calls witness B who was standing on the street corner, and B testifies that Defendant's car was going 35 miles per hour. Plaintiff objects. On what grounds? What is the proper ruling?
Yes, the testimony that the car was going 75 mph should be admitted. Speed is always an estimate and a lay witness can, based upon a car's movement through a window, estimate the speed of that car. However, it was always be an estimate and that means the speed will always be within a range. Therefore, it is best to have a witness be a bit less precise when testifying rather than to have the witness come across as calculating their testimony before hand. A precise number can set the witness up for fire under cross-examination. The testimony of the car going 35 mph should be accepted for the same reasons.
