Essay Evidence Exam from Pepperdine 2004
Evidence Essay Exam Question One
Dirk was a professional wrestler, employed by the Wrestling Federation of the Universe ("WFU") under the stage name of "Dirk the Jerk." He was charged with the attempted rape of Velma. Velma claimed that Dirk invited her to his dressing room and after chatting for a few minutes attacked her and raped her. Velma claimed that she repeatedly told Dirk "No!" and that he ignored her pleas. Dirk claimed that Velma initiated things by kissing and caressing him after she entered his dressing room and that she never asked him to stop. He claimed that she consented.
A grand jury was impaneled to investigate Velma's claim. One of the witnesses subpoenaed by the grand jury was Quincy Mack, the president of the WFU who reluctantly testified that the night in question he was walking by Dirk's dressing room when he heard a woman screaming, "No! No! You big jerk." Mack testified that he did not recognize the woman's voice. He did not investigate further, he said, because he figured it was none of his business. The grand jury returned an indictment of Dirk for rape. Dirk pleaded not guilty and the case was tried before a jury.
A. At trial the prosecution called Quincy as its first witness. When asked about the incident, Quincy surprised the prosecution by testifying that he had not been anywhere near Dirk's dressing room the night of the alleged rape. When pressed, he claimed that he did not even remember testifying before the grand jury because of the effects of pain medication he was taking at the time. Discuss the options available to the prosecution to gain admission of Quincy's grand jury testimony and the likely objections from Dirk. How should the judge rule? Explain.
B. The prosecution offered testimony from Yolanda about an alleged prior rape. Yolanda claimed that nine years ago Dirk raped her while they were both students at a community college. They were dating and one night Dirk raped her in her dorm room after a date. Yolanda did not report the rape to the police because at the time she was not sure if it was really rape. After she heard of Velma's claim, Yolanda knew she had to do something. Dirk vigorously denied Yolanda's allegation and claimed that Yolanda had consented to everything that happened.
1) Discuss the admissibility of the alleged prior rape under the Federal Rules of Evidence as amended.
2) Discuss the admissibility of the alleged prior rape under the Federal Rules of Evidence as they were originally enacted in 1975.
C. Velma testified about the attempted rape and on cross-examination Dirk's lawyer sought to question her about the following matters:
1) Her employment for a number of years with an escort service, which provides female "escorts" for businessmen; and
2) Her statement to a friend, Fiona, that before Velma went to Dirk's dressing room on the night in question, Velma said to Fiona: "I hope he's into me as much as I'm into him. I'd love to ‘do it' with a professional wrestler."
The prosecution objected to both matters. Velma will admit, if asked, that she once worked for the escort service (she claims that she recently quit), but she will deny that she made the alleged statement to Fiona. Dirk is prepared to call Fiona to testify to the statement allegedly made by Velma. Should the court allow Dirk to ask Velma about either or both of these matters? Explain. If the judge does allow the questions, should Dirk be allowed to call Fiona to testify to Velma's statement? Explain.
D. Dirk testified in his own defense and denied that he had raped Velma. On cross-examination the prosecution sought to ask Dirk about a four-year-old conviction for unlawful importation of cocaine, arising out Dirk's attempt to transport large quantities of cocaine into the country by hiding them under the floorboard of his Suburban. Dirk objected. How should the court rule? Explain.
Essay Exam Question Two
Dieter Davidson was charged with kidnapping and assault with a deadly weapon. Davidson had attracted police attention by driving his 1979 Mercury Zephyr erratically. He violated any number of traffic laws and refused to stop for the police despite being signaled to do so. Instead of stopping, Davidson drove to a family residence (later determined to be the home of Davidson's Aunt Verna). While driving, Davidson periodically held out a handgun through the driver's side window of his car and brandished a knife. Upon arriving at the residence, Davidson quickly got out of his car and dashed inside. The police department's tactical unit surrounded the home and waited for Davidson to show himself. After an hour or so, Davidson came out onto the front porch with his Aunt Verna. He was holding her and had a knife to her neck. Verna appeared to be trying to get away from Davidson. Ultimately, the police were able to tackle Davidson and wrestle away Verna without any fatal injuries to her. Davidson was arrested and subsequently was tried before a jury on the charges.
A. At trial, the prosecution offered the testimony of Detective Williams. She was prepared to testify about her conversation with Aunt Verna in the moments after the defendant's capture. According to the detective, Aunt Verna fell into the detective's arms after she was released from Davidson's grasp, and said, "Oh my! Oh my! My little Dieter, using me as a shield, treating me like a piece of meat. He wouldn't let me go. While we were inside he was threatening me and waiving that knife around. It was horrible!" She showed the detective a serious cut across her neck. During the conversation Verna was clearly upset and distraught as she cried through most of the conversation. Verna died before trial and the prosecution offered the detective's testimony about Verna's statements. Davidson objected on hearsay and confrontation clause grounds. How should the court rule?
B. The prosecution sought to offer into evidence the videotape of the police chase that happened before the events at Aunt Verna's home. The video was taken by a local television station.
(i) Assume that you are the prosecutor and that the person who shot the video is not available to testify about the video. What would you have to show to establish the authenticity of the videotape? Discuss.
(ii) Assume for this part of the question that an employee of the television station inadvertently taped over the video of the police chase. The prosecution has made a video re-enactment of the chase that it offered into evidence after laying a proper foundation. The defense objected to admission of the taped re-enactment. It was undisputed by the parties that the prosecution had in its possession a video tape copy of the television station's video that an employee of the station had made from the original airing of the chase. How should the court rule? Explain.
C. After the arrest of Davidson, the police conducted a proper search of his car, during which search they discovered a substantial quantity of illegal drugs and drug paraphernalia. Blood tests of Davidson after his arrest revealed a .08 blood alcohol content (over the legal limit), but did not reveal any illegal drugs in his system. The prosecution claimed that the drugs in Davidson's car explained why he refused to stop for the police. Davidson claimed that the drugs were not his and that he did not even know the drugs were in his car. The prosecution offered into evidence the illegal drugs found in Davidson's car, and over an objection by Davidson, the court admitted the evidence. Was the court correct to admit the evidence? Explain.
D. During Davidson's case he sought to introduce two pieces of evidence to contradict the prosecution's evidence regarding the drugs allegedly found in the car that he was driving.
(i) First, Davidson sought to introduce the properly authenticated certificate of title to the car that he was driving on the day of his arrest. The certificate of title showed that the car was owned by someone named Max Stiller. Assume that under state law the certificate of title, which is issued by the state Department of Motor Vehicles, reflects legal ownership of cars, boats, and other such modes of transportation. The prosecution objected to the admission of the certificate of title. How should the court rule? Explain.
(ii) Second, Davidson offered into evidence a properly authenticated police report which included an interview with Mr. Stiller. In the interview Stiller told the investigating detective: "The drugs in the car were mine, all mine; Davidson had nothing to do with them. He didn't even know they were in the car." Stiller invoked his Fifth Amendment privilege against self-incrimination when called to testify and refused to answer any questions. The prosecution objected to admission of the police report. How should the court rule? Explain.
Best Student Evidence Exam Responses
Evidence Exam Essay Question Number 1 (Sixty Minutes)
Evidence Exam Sample Student Answer to part A, Number 1:
Question 1, Part A
Dirk may make the following objections
1. No foundation
The prosecution needs to authenticate the voice Q heard. Voice ID can be by personal knowledge (901(b)(1)), voice ID or distinctive characteristics (901(b)(4)). Here Q did not have personal knowledge of the voice he heard because he did not see the victim; he could identify the voice according to 901(b)(5) if he has sufficient familiarity with the victim's voice, the familiarity could be acquired for the purposes of litigation. The prosecution can also authenticate by distinctive characteristics: the time of rape, no one else would be screaming at that time, and it was a woman's voice. So, this objection will most likely be overruled.
2. Objection "hearsay"
Hearsay is an out of court statement offered for its truth. FRE 802 excludes all hearsay unless there is an exception.
Here the statement being offered is Q's statement at a previous grand jury proceeding that he heard "No, NO you big jerk." This statement is multiple hearsay because Q's statement at a previous grand jury is one layer and the victim's statement is another layer of hearsay.
FRE 805 states that multiple hearsay is inadmissible unless there is an exception for both layers of hearsay
The prosecution will argue that the first layer of hearsay the victim's statement is not being offered for its truth; it is not being offered to prove that D is a jerk but to prove a verbal act - assault. Since assault has its own legal significance it is not hearsay. In the alternative the statement is an excited utterance because it is relating to a startling event while under the stress of such an event 803(2). Here the statement was made while he was raping her so arguably she would be under the stress of the excitement; the statement will also be admissible under present sense impression 803(1) since the statement was made while perceiving the event. So this layer of hearsay is admissible
The prosecution will argue that the second layer of hearsay the statement by Q should be admitted under 804(b)(1) former testimony; the first thing prosecution has to show is that the witness is unavailable; Under 804(a)(3) loss of memory is enough to show that the witness is unavailable. Here Q argues that he does not remember testifying even.
If a witness testifies at a former hearing and now the statement is offered against a party who had an opportunity and the same motive in developing the witness's testimony on direct, cross or redirect, the statement will be admissible. The problem here is that at a grand jury proceeding, the defendant is not even present so under 804(b)(1) it is not admissible.
The prosecution will argue in the alternative to offer his statement under 801(d)(1)(A) prior inconsistent statement; IF a witness is on the stand and is subject to cross examination and the prior statement was given under oath subject to the penalty of perjury and the statement is inconsistent with the person's testimony in this trial, the statement is admissible for substantive purpose.
Here Q is saying that he was not anywhere near D's dressing room the night of rape - this statement is inconsistent with his prior statement. Defense will argue that Q's statement is not inconsistent because he just does not remember because he was on medication at that time. Sometimes memory loss can be prior inconsistent statement if the memory loss is feigned. Here the judge has to determine whether the memory loss is feigned; if it is the statement will come in as a prior inconsistent statement. If not, it can always come in to impeach the witness.
3. Evidence Exam Objection Confrontation Clause
In a criminal case, the defendant has a right to be confronted with witnesses against him. Crawford v. Washington stated that if the statement is testimonial the statement is excluded unless the declarant is unavailable and there was a prior opportunity to cross examine. Here the statement is testimonial because it was given at a grand jury proceeding; However Q is on the stand and willing to answer questions; memory loss is not a problem because he is willingly answering questions.
Evidence Exam Sample Student Answer to part A, Number 2
A. Quincy (Q) grand jury testimony
There are several ways the prosecution can try to get in Q's statements from the grand jury hearing.
(1) It is always preferable that the witness testify from memory at the hearing--as a result, the prosecution will most likely want to first try to refresh Q's memory. Under R.612, the prosecution can show a witness a writing, document, etc. that need not be independently admissible as evidence in order to jog the person's memory--at which time the opposing counsel can ask to have the document produced, inspect it, cross examine the witness with regard to the parts used, etc. Here, however, the fact that Q is claiming no recollection whatsoever means that this method probably won't succeed.
(2) Evidence Exam Recorded Recollection, Excited Utterance, Present Sense Impression
Hearsay exceptions: (a) scream/statement; (b) Q's grand jury testimony. Since Q will not be testifying as to personal knowledge of his own memory--the prosecutor is going to have to the prior statement--and it's going to qualify as hearsay. Hearsay is an out of court statement offered for the truth of the mattered asserted. Here, the prosecutor wants to offer Q's grand jury testimony for the truth of the matter asserted--that Q heard a woman screaming "no" outside the locker room of the night in question. As a result, in order for it to be admissible--the testimony and statement therein must qualify as hearsay exception(s). Note: Velma (V)'s scream (or presumably V, perhaps it was a different woman) is hearsay as well as Q's testimony--therefore we have two layers of hearsay and each must be independently admissible. First, V's scream/statement can come in under either a 803(1) present sense impression or 803(2) excited utterance hearsay exception. Q heard the statement and in his grand jury (GJ) testimony he is describing or explaining the event as it occurred when he describes the scream--he satisfies the contemporaneous/spontaneous requirement of the exception. Second, the scream/statement could also come in under an excited utterance--which occurs when a declarant makes a statement in response to an event while under the stress of excitement. Clearly, "No! . . . " qualifies. Having established that presumably V's statement is admissible, we now turn to Q's GJ testimony. It is possible that the prosecutor could bring Q's GJ testimony under an 803(5) recorded recollection. In order to have a properly admissible recorded recollection--the witness must have had firsthand knowledge of the event in question, made or adopted the statement at issue at the time the event occurred, be presently unable to recollect the statement, and validate that his statement was accurate at the time it was made by one of the following: (a) presently remembering the statement; (b) remembering having made the statement; (c) not remembering the statement but know that the statement was made as a part of a routine/habit and was therefore accurate; or (d) acknowledging that he signed the statement and testifying that he wouldn't have signed it if it wasn't correct. Here, it does not appear that Q is able to do any of the above b/c he testifies that he can't even remember testifying before the grand jury at all.
(3) Former Testimony, Witness Competency, Confrontation Clause Third, under 804(b)(1) Former Testimony--it would seem on the surface that the prosecutor may be able to get Q's testimony in under this hearsay exception. In order to qualify for the exception, a witness must first be "unavailable" according to 804(a)--which would mean the witness either has a privilege, refuses to testify, can't remember, is dead or is physically unable to testify, or the party seeking to admit is unable to procure testimony. Here, Q would be unavailable in accordance with (a)(3) lack of memory. Since he has not recollection whatsoever of the testimony he is unavailable for purposes of the rule. Note: Q also mentions here that he doesn't remember his GJ testimony b/c he was under the influence of pain medication. This calls into question his competency as a witness to begin with. Under R.601 any individual is deemed competent to testify as a witness as long as he (a) has personal knowledge (602), (b) has taken an oath impressing upon him the significance of telling the truth (603), and although it is not statutorily required--has cognitive capacity. The fact that Q was high at the time he testified certainly calls into question his cognitive capacity any statements admitted from that testimony should be accordingly weighted. However, presuming that Q was "competent" at the time of his GJ testimony--admissibility of former testimony hinges on: (a) the witness having testified at a previous hearing or trial under oath, (b) having been subject to cross-examination, and (c) the party against whom the statement is made had the opportunity to cross-examine the witness or a predecessor in interest of the party who shared similar motives had such an opportunity. Here, Q's GJ testimony is clearly not going to qualify b/c there is no cross-examination at a grand jury hearing.
Notably as well, prior to the recent Crawford v. Washington decision, often times a prosecutor would seek to admit grand jury testimony under the R.807 residual exception to hearsay--provided that the testimony was probative (more so than any other reasonably (rx) gathered evidence), material, and carried the same circumstantial guarantees of trustworthiness that do other exceptions to hearsay under 803 and 804. However, in light of Crawford, Confrontation Clause concerns will not allow grand jury testimony in regardless of its apparent trustworthiness. Crawford held that where there is a testimonial statement made out of court (OCS) as there is here, the witness must be (a) unavailable (which Q is), but also must (b) have been cross-examined in no uncertain terms (which Q wasn't).
(4) Prior Inconsistent Statement: under R.801(d)(1)(a)--the prosecutor could try to get Q's testimony in under the hearsay exclusion prior inconsistent statement---but again he's going to run into trouble because there was no cross exam.
(5) Prior Inconsistent Statement: Impeachment: the best that the prosecutor could do is try to bring in Q's statements for their impeachment purpose to attack Q's credibility under R.613 . . . but this will not go to the merits of what Q said and there is no evidence that Q's credibility will carry probative value for the case unless he testifies as to Dirk's (D) character or something along these lines.
Evidence Exam Question 1, Part B
Under 413, in a criminal case, where D is accused of an offense of sexual assault, the prosecution may introduce evidence of Ds commission of a another offense of sexual assault which may be considered for any matter to which it is relevant. This is an exception to the rule against propensity evidence under FRE 404(a). This is a criminal case. D is accused of an offense of sexual assault -- i.e. rape, and the prosecution is attempting to offer evidence of Ds commission of another offense of sexual assault to show Ds propensity to commit rape. This is an admissible route for the prosecution. the offense that the prosecution attempts to offer need not have been convicted and anything can suffice, including allegations, as long as the jury can reasonably believe that the prior offense occurred. It is also relevant evidence, as Ds commission of one offense makes it more likely that he would do it again. Propensity evidence is inevitably relevant and probative. The only question would be whether the evidence passes 403 balancing. Under 413 we are to still use 403 with all strength. Factors to consider in determining probative value of evidence of prier offense are proximity in time, frequency, similarity, intervening events. Here, D supposedly raped Y 9 years ago, there is no evidence that D has raped against or before, and there are sufficient intervening events -- Y only brought up "rape" when saw V suing D. It may in this circumstance be too prejudicial to D as there are motivational problems with Y's reasons for coming forward, the time lapse.
Under the FRE as originally enacted, that is w/o FRE 413-415, the prosecution would not be able to admit this evidence against D. Under FRE 404(a), evidence of character is not admissible to prove action in conformity therewith. Here, this is definitely propensity evidence as it is being offered to show that D did it once and so he is likely to do it again. Character can never be brought up by prosecution in case in chief and D did not open door here for prosecution to rebut. Therefore, under 404(a), it is impermissible character evidence. However, it may be admissible to prove another purpose under 404(b). Although 404(b) reiterates 4049a)'s rule that other crimes, wrongs, acts are not admissible to prove action in conformity therewith, they are admissible to prove other purposes, such as, but not limited to, opp. motive, intent, preparation, identity, etc. Here, the prosecution may be able to argue motive. However, under Huddleston, the other crime must also be relevant and if the court finds that the reasonable jury could not find that D had committed the rape against Y it shall not be admitted. Here, the court could probably find that the jury would find that Y was raped by D and admit. The question again arises if it passes 403 balancing (see above p)
Evidence Exam Question 1, Part C
Is V's employment in escort service admissible? Here it looks like it is being offered for propensity purpose – that she is promiscuous and sexually loose. Usually per rule 404 character evidence propensity regarding the victim accused can offer evidence of a pertinent character trait, but only the opinion of reputation.
Further, if it's a rape case, evidence of a victim's past sexual behavior, disposition aren't admissible generally. Re: 412, here, 1st, escort service evidence is relevant because it calls to the chance that V likely consented. Under 404 re: victim, D's attorney can't offer evidence of V's escort: 1) because its in form of specific acts & 2) because this is a rape case where rape shield: 412 applies. This evidence doesn't fall under Rape Shield exception of consent because evidence of consent is permitted only when between victim and accused. "Escort service" status not admissible to prove she was promiscuous, "would likely consent," but they might be admissible under 404b–specific acts for non-prop reason. Any here? Nope. 406 proof of habit doesn't apply too unfairly prop here, too like character propensity.
2) Statement to Fiona. The advisory committee note to 412 clarifies that "behavior" includes not only physical but also mental activity. Here, this statement would probably constitute "behavior" by V. Can D use it to prove consent? 412, technically speaking, allows evidence of V's conduct with the D to prove consent. Here, this conversation with a friend may not be conduct "with D." If the court isn't feeling "realistically generous" about this second exception, the third exception will most probably serve to admit the statement. Under 412, "other evidence" of V's sexual behavior can come in if it is required by the constitution. Here, D would probably be allowed to bring this evidence in in order to present a "complete defense." (see Chambers). The advisory committee note to 412 specifically gives this kind of "statement of intent" as an example of constitutionally-required evidence that would be admissible. Probably admissible.
3) Fiona's testimony. Not purely contradiction of V's denial, but also goes to merits. Dual relevance allows for contradiction by extrinsic evidence (though really this may just be a merits question). 613 might come into play, if the contradiction element is significant here, in which case the defense would need to allow V an opportunity to explain the discrepancy, and the state would have the opportunity to cross-x Fiona.
Either way, Fiona may testify. What she says is hearsay; it is an assertion by V that is offered to prove consent. Is there an exception? 801(d)(2)(A) will not serve here, because V is not a party in a criminal case. But 803(3) might well serve, as evidence of V's state of mind/intent. This is a forward-looking statement ("I'd love to do it..."), and does not embody memory or belief. As in Hillmon, this would be admissible as evidence of V's state of mind.
Confrontation clause not implicated. Not likely that V's statement to F was testimonial, and in any event, V is present for cross-examination.
Evidence Exam Question 1, Part D
D's character is properly in issue now, because he has chosen to testify. Whether or not evidence of his prior conviction is admissible is a Rule 609 inquiry. Provided that the punishment for unlawful importation can exceed one year, we might be able to get this in under 609(a). D is a criminal-defendant witness, so the standard of admission requires that the probative value of the evidence outweigh the danger of unfair prejudice. The balancing here takes place under the rule from Gordon:
1. Evidence Exam Nature of crime -- smuggling of drugs, concealment. Possibly mid-level probative of truthfulness.
2. Evidence Exam Recency -- Four years ago. Somewhat recent.
3. Evidence Exam Subsequent History -- Unknown. Has he been in jail for three of those years, w/o opportunity to commit more crimes?
4. Evidence Exam Similarity w/ charged crime -- Not similar. Cuts in favor of admission.
5. Evidence Exam Importance of D's testimony -- Highly important, since we are arguing a he-said-she-said consent question in an attempted rape case.
6. Evidence Exam Centrality of credibility -- Very central, as above. Probably washes w/ #5.
Given that the crime involved smuggling, is dissimilar, and somewhat recent, this probably comes in under the Probative>Prejudice standard. 609(b) is also satisfied, because the conviction is w/in the past ten years. Admit, but only insofar as the name of the crime, the date of conviction, and (in some jurisdictions) the sentence. Details about the floorboard of his suburban may be considered by the court in its Gordon balancing, but cannot go to the jury.
The state might also argue that this is a crime involving dishonesty and false statement, because D is concealing the drugs, and (possibly) lying to the customs officials who asked him if he was bringing any contraband across the border. This may not meet the in crimen falsi requirement cited in Brackeen, but if it did, it would automatically come in, subject to the restrictions on details mentioned above.
Evidence Exam Question Two, Part A
Evidence Exam Sample Student Answer for part A, Number 1
HS? -- These statements by Aunt Verna (AV) are assertions, describing what D had done, and are offered for their truth, to support the kidnapping/assault charge. Both the words AV spoke, as well as her actions in showing the cut, were intended to communicate facts to the listener (i.e., "this is where he cut me."), and are assertive in nature under 801. We need an exception to get this in.
803(1) -- Under the 803 exceptions, the availability of the declarant is immaterial, so AV's decease doesn't affect the result. Is this a qualified present sense impression? Rule 801 admits statements describing or explaining an event or condition while or immediately after the event takes place. The question is really one of proximity. As stated in the advisory committee notes, the reliability of these statements is based upon a lack of time to reflect on the event and fabricate an answer. The rule does not require "perfect contemporaneousness," as recognized by the advisory committee, but the statement still must be pretty close in time. AV's statements describing what D did to her on the porch, using her for a shield, are probably contemporaneous enough to qualify under 803(1). The statements about what he did in the house, though (threatening and waving the knife), are probably too distant in time.
803(2) -- Excited Utterance. This exception admits hearsay "related to" a startling event or condition, so long as the declarant is still under the "stress of excitement." Being held at knife-point is pretty stressful, and according to the facts AV was "clearly upset & distraught" throughout her statement to the police. The rules would probably admit all of her statements to the officer under this exception, reasoning that AV's rattled state of mind would preclude the calculation necessary to fabricate a statement.
804(b)(2) -- Dying Declaration? -- This is not a criminal homicide prosecution, so the exception is not available (see below).
Confrontation Clause -- Crawford allows HS against a criminal defendant in the following five cases: (1) the HS is "non-testimonial," (2) the declarant is currently available for cross-x, (3) the defendant had a previous opportunity to cross-x the defendant, (4) the statement was a dying declaration, (5) the "forfeiture by wrongdoing" exception applies. First, we need to determine if AV's statement to the officer was "testimonial" in nature. This was not an ex-parte or other pre-trial statement, so the only option left under Crawford is whether the declarant had a reasonable expectation that her statement would be used prosecutorially. From Moscat we gain four criteria in determining if HS is testimonial in nature.
1. To whom was the statement made? Here, to the police. This tends toward testimonial.
2. Who initiated the conversation? Here, AV did (and not the police). She fell into the officer's arms and started talking. This cuts against testimonial.
3. What was the declarant's motivation in making the statement? It does not appear that AV was trying to "make a case" against D. She is just hysterical and needs to talk things through. Cuts against testimonial.
4. What were the declarant's reasonable expectations? I don't know that AV was thinking clearly enough to foresee a prosecution (though D will argue she did). Most likely she didn't have any expectations about her statement.
On the whole, then, it seems that the statement has a good chance of being non-testimonial. If so, Crawford has no problem with bringing the testimony in, though it does leave the question of non-testimonial HS up to the states (some of whom still follow Ohio v. Roberts and require unavailability + a firmly-rooted HS exception or circumstantial guarantees of trustworthiness). If non-testimonial in federal court, this comes in as admissible HS.
If the statement is found to be testimonial in nature, it is probably excluded. D had no opportunity to cross-x AV in the past, and she's unavailable now. There is no indication that D obtained her unavailability by wrongdoing (we don't know if the cut on her neck even caused her death, nor do we know that D's intent was to procure her unavailability). Nor does this seem to be a dying declaration (again, cause of death may be unrelated). Crawford would exclude this if it is testimonial.
Evidence Exam Sample Student Answer for Question2, part A, Number 2
A. Verna's Statements
D's Confrontation Clause Objections:
Under Crawford v. Washington, we look to see if the statement was testimonial. It is not an in-court statement or functional equivalent, it is not an extrajudicial sworn statement, and there may not have been a subjective expectation by V that her statement would be later used at a trial. This situation does not seem like a custodial interrogation (also always testimonial). Although the Supreme Court has not explicitly said what to do if the statement is not testimonial, the default decision is to follow another Supreme Court decision, Ohio v. Roberts. Here the tests are reliability and necessity. V is dead - the ultimate unavailability, so the need for this HS statement is great b/c there is no other way to get the information. The reliability is also met by the HS exceptions explained below. All of the exceptions besides FRE 807 catch all are considered "firmly rooted" and automatically meet the reliability test.
Evidence Exam D's HS Objections:
D will claim that this is classic hearsay: an out of court statement offered for the truth of the matter asserted. V's statement is being offered to show what D did inside the house and outside of it by threatening her and using her as a shield. P should try to find exceptions to fit it under, and likely can.
FRE 803(1) Present Sense Impression, requires personal knowledge, a description of an event or condition that is made at or immediately following the occurrence of the event or condition. D will argue that the statements here fail the Contemporaneous test, at least with respect to what happened inside the house since they were inside for an hour before coming out onto the porch for the 'hostage' situation. The rest of the statements are likely immediate enough since she made them as soon as she was released from D's grasp.
FRE 803(2) Excited Utterance may be an easier exception to apply. It requires personal knowledge, an event or condition that would tend to cause and does in fact cause stress or excited. The statements are limited to ONLY the event or condition, and must be spontaneous. However the timing requirements here do not require immediacy or contemporaneousness. Here being taken hostage by your nephew by knife and having a fight ensue with the police is a very stressful situation. The facts show V was still under this stress b/c she was crying throughout most of the conversation and "clearly upset."
P's Far Fetched Rebuttal: Depending on the charges, there may be an argument that the statement has independent legal significance and is therefore a verbal act and not OFIT. This will likely not be necessary since there are HS exceptions that are on point.
Evidence Exam Question 2, Part B
i) The video tape. To authenticate, we have a couple of options. One thing we probably need to do is lay a foundation with 901(b)(1) and establish a chain of custody, just to rule out the possibility that the tape was tampered with. More helpful would probably be 901(b)(9), which allows authentication by Process. Here we would need to establish the Fidelity of the system (how does a video recorder work; is it reliable?), the Competency of the operator (who made the tape; was he trained to do so?), the Custody of the tape (has it been kept safe since it was made?) and the Identity of those on the tape (this can be done by means of eyewitness testimony). All we need to authenticate the tape under 901 is sufficient evidence to support a finding that it is what the proponent claims it is (104(b)).
Evidence Exam Objection hearsay
The video re-enactment will be hearsay because it is an out of court non-verbal assertive conduct to show the truth of the matter asserted. the police deliberately made that tape and they are asserting that this is how it happened. Although it is hearsay, prosecution will argue that this is not offered to prove the truth of the matter asserted but only for demonstrative purposes to help the jurors
Objection , the best evidence rule
FRE 1002 states that when one is trying to prove the contents of a writing, recording or a photograph, the original must be offered. FRE 1004 allows secondary evidence to come in and prove the contents of the original if
1. the original is destroyed by no fault of the proponent
3. collateral matter
4. in the opponent's possession
Here one could argue that the original was destroyed because TV station inadvertently taped over the video of the police chase ( and this was in good faith); So prosecution will be able to prove the contents of the tape by secondary evidence; but the other side will argue that since there is a duplicate of the original it is not destroyed.
FRE 1003 says that a duplicate of original is also admissible unless the genuine issue arises as to the authenticity of the original or it would be unfair. Duplicate is anything that is a mechanical reproduction of the original.
Here a copy was arguably was made mechanically, usually this is done by machines and not people. But there is still a chance of tampering and editing so most likely this copy will not qualify as a duplicate; however the party admitting it could argue that under FRE 1008 if there is an issue whether a duplicate correctly depicts the contents of the original this issues is for the jury to decide; most likely the court will allow this duplicate to come as an original.
Evidence Exam Question 2, Part C
The drugs are real evidence. To get them in a proper foundation needs to be laid. These are not distinctive real evidence. If they were you would just need to ask what is it and how do you know. This is the kind of real evidence where it all looks alike. The best way for laying the foundation for this kind of evidence is to show a chain of custody of the evidence. The chain doesn't need every link. There just needs to be enough so that a reasonable jury could find the evidence is what p says it is. This should be satisfied. Also the drugs need to be relevant. This is a 104a issue. They don't seem to be because they are being offered to show why he did what he did but they didn't find any drugs in his car. However the relevance standard is extremely low. it just needs to move the ball forward. Which this does because even if he's said they weren't his, they might be and if they were having drugs is a good reason to run from the cops. This seems like a conditional relevance issue. That is a 104b jury question. Conditional relevance is when it isn't relevant now but upon more evidence it might be. The judge figures that the a reasonable jury will believe the evidence true if the conditions are met and will disregard it if it is not met. here if p can prove later that the drugs are D's then they are definitely relevant as to why he rand from the cops.
Also there is a 404b purpose to these drugs. res gestae. It helps explain why the cops were after him. This is a non-propensity purpose for the evidence. The issue is though it seems like all part of the same act. However they can get in for this with a limiting instruction as to not use them for the propensity purpose. Of course this is all subject to a 403 balancing test which can consider the affect of the limiting instruction. Also it goes to motive, showing why d was motivated to run from the cops --- because he had drugs.
Evidence Exam Question 2, Part D
Is the certificate of title hearsay? Here we have an out of court statement - the actual certificate of title that is offered, used for the truth of the matter asserted - here that the certificate of title shows that the car in fact belonged to M and not D. If we do have hearsay here, we need to find an exception for D to be able to get it in. D may argue the public record exception. When a record of a public agency sets forth its activities, matters observed, or factual findings, unless the source of information, or circumstances suggest a lack of trustworthiness, [the record is admissible hearsay.] Here, D will argue that the DMV is a public agency and that the record sets for the activities that they engage in, that they show ownership of cars, boats, and other modes of transportation. Further D will suggest that the certificate of title is trustworthy since it is offered by the dmv.
Also D could argue that the evidence comes in as party admission - that he inculpates himself by offering that he was driving the car, maybe stolen. But here, the evidence must be offered by the opposing party, which is not the case here - perhaps the prosecution should think about that though. Could give insight into more motive for running, and thus, further admissibility of evidence to come down the road (like the stolen car)
P may attempt to argue relevance - any tendency to make a fact more or less probable. Here the question is whether or not there were drugs in the car. P may argue, perhaps unsuccessfully, that the title of car makes no difference as to whether or not D was carrying drugs on the day of his arrest. That there would be need to be a more substantial amount of evidence suggesting that M is in fact a drug user, which might then have a tendency to show that the drugs belonged to M and not D. Further P may argue that going down that route, and attempting to prove that M in fact does drugs, is a collateral matter, and that even if extrinsic evidence were permitted, here under 403, it would be prejudicial by way of undue waste of time and confusion of issues.
D will argue that there is in fact a brick to be laid here.
P made a valiant attempt, but the evidence will probably come in.
(ii)Evidence Exam Police Report: ADMIT
P should object to the police report, at least the part including S's statement as HS. The document itself is hearsay, but there is also another layer of HS in the contents. FRE 805 says each statement must have it's own exception, but S's statement likely meets one.
Stiller's statements may be offered under Statement Against Interest, 804(b)(3). He is unavailable because he has asserted his 5th amendment privilege (804(a)(1).) But, to prevent collusion among defendants and others, when statements against interest are made that are exculpatory of the accused, then there must be corroborating evidence to show sufficient trustworthiness. The statements were against S's interest to take all of the blame for the drugs since it would expose him to criminal liability. However he was talking to a police officer and may have been trying to save his friend. But because he took all responsibility and wasn't trying to shift blame by saying that D was "more" or "also" involved (like the Williamson case), it doesn't look like the statements would be excluded. If the judge is concerned that the rest of the statements "all mine; D had nothing to do with them; he didn't even know they were in the car", then he may redact them since it is a statement by statement analysis and not the narrative at large. If this were more like Williamson where the declarant said more or less "I did this but he's my boss" then it would be [inadmissible as not against the declarant's interest.]
P may not object that this is an improper 803(8) public record b/c it is being offered by D against the government. 803(8) states that matters observed pursuant to an official duty may be admissible as a public record, except for law enforcement personnel (because of the adversarial system.) P may try to argue that the very same reasons we don't let them in against Defendants apply here (no immediate review of the statements for reliability or accuracy, etc.) *D may also say that these are factual findings pursuant to an official investigation, offered against the government and are ok under the 3rd way too.
JULY 25, 2000
EVIDENCE EXAM QUESTION #1
The following is a summary of a stipulated set of facts to be presented to a federal judge in order to permit pre-trial consideration of evidentiary issues:
Defendant is: Charged with robbing a federally insured bank at First and Main Streets on January 13, 2000.
• 25 years old, white, 6 feet tall, weighs 180 pounds, has red hair and a tattoo on his left cheek.
Barbara Brewer, a bank officer, will testify as follows:
That she was present when a 6 foot 180 pound white male, in his twenties, with red hair and a tattoo on his left cheek came into the bank and pointed a gun at an adjacent teller.
• That she heard the man direct the teller to empty the cash drawer; that the teller did what the man told her to do; that the man then fled.
• That she can and will identify Defendant as the man who robbed the bank.
Fred Floors who will testify as follows:
• That he is an FBI agent who questioned Defendant after Defendant was arrested on the bank robbery charge.
• That he advised Defendant of his rights under Miranda.
• That Defendant said that he was arrested because he had robbed two banks about 10 years earlier, the statute of limitations had run on those charges and that this was the government's effort at trying to get him.
• That he interviewed Ms. Brewer an hour after the robbery and that Ms. Brewer told him that the robber was a 6 foot 180 pound white male, in his twenties, with brown hair and that Ms. Brewer made no reference to the robber having a tattoo.
Ron Roberts will testify as follows:
• That he was Defendant's cellmate on January 20, 2000, after Defendant was arrested on the bank robbery charge.
• That he and Defendant talked about why they were in jail, that Defendant told him that he (Defendant) was in jail for a bank robbery he had pulled at First and Main.
• That at the time of the conversation with Defendant, Roberts had just been sentenced to 20 years imprisonment for dealing in heroin.
• That Roberts' prior cellmate told Roberts that the cellmate's drug charge had been reduced from 20 years to time served (7 years) after he cooperated with the U.S. Attorney's office on a postal burglary charge.
• That Roberts did not receive any promises from anyone in exchange for his testimony.
Defendant will testify as follows:
• That he did not rob the bank at First and Main.
• That he did not tell Roberts that he had robbed a bank.
• That Roberts told him the U.S. Attorney's office would stop at nothing to get a conviction.
The federal statute of limitations on bank robbery is 5 years.
You are a law clerk to the federal judge presiding over the criminal trial. Advise the judge regarding what evidentiary issues may arise at trial. How should the judge resolve them and why?
REPRESENTATIVE GOOD EVIDENCE EXAM ANSWER
The following evidentiary issue may arise in this trial:
First, all evidence that is relevant and material should be admitted provided that it is: 1) likely to show a fact is more probable than not; 2) it has a proper foundation; 3) it is in the proper form; and 4) it is not excluded by a rule. The first piece of evidence to address is that of Barbara Brewer (BB). Her testimony regarding the description of the robber and the fact that he pointed a gun at an adjacent teller is relevant circumstantial evidence as to the identity of the robber. It is not excluded because it is first-hand testimony, BB saw what happened and as long as she is capable of testifying the evidence should be admitted. The second piece of evidence that BB will testify to is the statement by the robber to empty the cash drawer. This is relevant information as it shows the robbers intent to take the money, but it is also hearsay. There are two ways that this statement could be allowed in. The first way is to argue that it's not being offered for the truth of the matter asserted (which is the definition of hearsay), instead it's being offered to show the effect on the listener; i.e. the teller. She opened the cash drawer and gave the robber the money. The second way this statement could come in is as an exception to the hearsay rule and that is statements that are a party's admission. Although it doesn't quite fit the party admission exception, the exception is broadly construed to allow these types of statements. It could also come in as a statement against interest or maybe an argument could be made that it's a verbal marker, or a legally operative statement. In any event, the statement should come in because it's relevant, it's either not hearsay because it's offered for the effect on the listener or it's a party admission. It's not more prejudicial than probative and the teller's (BB) testimony is the correct way to offer the evidence. BB's identification of the robber is permissible. However, as I will discuss later her identification can be impeached using her prior inconsistent statement to FF (even though it's hearsay) and she can be impeached with evidence of her lack of good eyesight and other deficient faculties.
The testimony of Fred Floors (FF). The first issue is whether the statement to FF from robber is admissible. The key fact here is that robber was read his Miranda warnings, which creates a presumption (if waived by the defendant/arrestee) of voluntaries and satisfies the 5th Amendment. Because robber continued to talk after Miranda is an indication that he intended to waive his rights to silence. So the statement will most likely be allowed. It is hearsay, but again it falls under the exception of a party admission. The problem is twofold. First the admissions about a past crime in which the statute of limitations have run, so it's not really relevant to this case and second because it is 10 years old and not relevant. It appears the prosecution may be offering it to show character in conformity therewith which is not admissible. The evidence of his prior convictions can come in under the exceptions to the prohibition on character evidence, i.e., to show motive, intent, lack of mistake, identification or common plan. However, these exceptions do not seem to be relevant to the current case. If the defendant takes the stand he can be impeached with prior convictions if they are felonies or involve truth and veracity. The problem arises in that the defendant was only arrested for these crimes not convicted and they're over 10 years old which is the cut-off for prior convictions. The evidence should probably not be allowed because it is very prejudicial (i.e. robber is showing a propensity to commit this type of crime) and it has no real probative value, except why the robber thinks he was arrested.
The statements made by BB to FF regarding the defendant's description is hearsay. However, prior identifications by a witness are admissible as long as the witness testifies. Also, here statements can be used by the defense to impeach her. But the statement can only come in to impeach not for substantive evidence because it wasn't made under oath.
The testimony of Ron Roberts (RR) regarding what the robber said (he had pulled the job) is a clear party admission. There are no "jail plant" problems because RR was not a government actor; (the jail plant is when the government puts someone in a cell with a suspect in order to get information). The testimony by RR that his prior cellmate told him he could get a reduced sentence for cooperating is hearsay, however, it fits nicely into the exception for hearsay and that is to show motive or bias. Thus, the testimony by RR should be admissible. However, once he is impeached the prosecutor can rehabilitate him by showing he does not have a deal from the government.
Lastly, the defendant's testimony is admissible. He may be impeached with RR's statements when he testifies that he did not tell RR he did it. What RR told the defendant about the US Attorney's Office is hearsay and it doesn't fit an exception. It could be used to show motive by the US Attorney, but isn't very reliable evidence as to their motive coming from a cell plant. However, it may come in if say the cell plant had some previous contact with the US Attorney and it shows motive.
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