Evidence B Examination (Tillers), Cardozo School of Law, Fall Term 2009

Evidence B

Fall Term 2009

Prof. Peter Tillers

Exam Instructions

This is a closed-book examination. However, you are provided with a copy of the Federal Rules of Evidence. See the appendix following the examination questions.

The entire examination lasts 160 minutes.

The examination has two parts, Part I and Part II. Part I is a modified multiple-choice exam; it has 20 questions. Part II is an essay exam; it has one question.

Approximately 75% of your grade will be based on Part I of the exam; approximately 25% of your grade will be based on Part II.

I recommend that you devote 100 minutes to Part I of the exam and 60 minutes to Part II.

Assume that the Federal Rules of Evidence apply to all problems in the questions in this examination.

Examination: Part I

Instructions

This part of the exam is a modified multiple-choice examination. It has 20 questions. Check your answer to each question in one of the two spaces provided after each question—for example, (i) check either the space that follows “objection sustained” or the space that follows “objection overruled,” (ii) check either the space that follows “motion granted” or the space that follows “motion denied,” and (iii) so on.

Do not check both spaces after a question. If you do so, you will get no credit for your response to the question.

However, check at least one answer to each question. If you do not do so, you will get no credit for your response to the question.

If you think the answer to a question is uncertain, check the answer that you think is more probably the correct answer.

Give a brief explanation for each checked answer. Checked answers without explanations will get no credit.

Your explanations need not be elegant. But they must be intelligible.

Some questions have more than one plausible checked answer. If you provide a plausible answer for your checked answer, you will get full credit for your checked answer.

If you give an implausible explanation for a checked answer, you will get no credit for your response to the question.

In short, check an answer for each question and give a plausible explanation for each of your checked answers. If you check an answer and give a plausible explanation for your checked answer – and only if you do so – you will get full credit for your response to a question.

Question 1

Murder trial. David Defendant is charged with killing Vila Victim. Defendant's defense is self-defense. Defendant invokes his privilege against self-incrimination and does not testify. Wordy Witness testifies that in his opinion Vila Victim (now deceased) was a violent person. Later in the trial the government offers to have Observant Observer testify, "I have known David Defendant for many years. I know him well. He is a violent person."

Defense counsel's objection should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 2

Trial of David Defendant for murder and robbery. At the trial the prosecutor offers to show that prior to the trial Defendant broke out of the jail in which he was confined pending the trial.

Defense counsel's objection should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 3

Beta, a prosperous person, has a chauffeur, Calvin. Beta orders Calvin to get some groceries. Beta remains home and Calvin leaves for the grocery store. On his way to the grocery store, Calvin literally runs into Alpha, a pedestrian, with Beta's Rolls Royce. Alpha brings a civil action for damages against Beta. Alpha avers that his injuries were caused by Calvin's negligent driving and that Beta is liable for the injuries caused by Calvin's negligence. At the trial Alpha offers to show that when Beta was told of the accident involving Alpha and Calvin, Beta said, “M’gosh, Calvin was reckless.”

Beta's objection to this offer should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 4

Calvin's objection to this offer of evidence should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 5

Beta, a prosperous person, has a chauffeur, Calvin. Beta orders Calvin to get some groceries. Beta remains home and Calvin leaves for the grocery store. On his way to the grocery store, Calvin literally runs into Alpha, a pedestrian, with Beta's Rolls Royce. Alpha brings a civil action for damages against Beta. Alpha avers that his injuries were caused by Calvin's negligent driving and that Beta is liable for the injuries caused by Cavin's negligence. At the trial, Alpha offers to show that two weeks after the collision between Calvin and Alpha Calvin was killed by a falling tree during a rainstorm but that before his death Calvin said to his neighbor, “I’m about to kick the bucket. I’m gonna have a heart attack soon. I had better come clean before I meet my Maker. A few days ago I ran into Alpha with Beta's car. It was my fault.”

Beta's objection to this offer of evidence should be

sustained ____ OR overruled ____

Please explain:

______________________________________________________________________________

Question 6

Beta, a prosperous person, has a chauffeur, Calvin. Beta orders Calvin to get some groceries. Beta remains home and Calvin leaves for the grocery store. On his way to the grocery store, Calvin runs into and kills Alpha, a pedestrian, with Beta's Rolls Royce. Calvin is indicted for the crime of reckless homicide. At the trial the prosecutor offers to show that after the collision a police officer went to Beta's home after Alpha's death and told Beta that Alpha had died after Calvin ran into him with Beta's Rolls Royce, that Beta replied, "I guess I'm in trouble. I shouldn't have hired Calvin. I knew Calvin for many years. I always knew he was always reckless. I'm sure Calvin's recklessness was the cause of Alpha's death," and that Beta then keeled over and died of a heart attack.

Defense counsel's objection to this offer of evidence should be

sustained _____ OR overruled ______

Please explain:

_____________________________________________________________________________

Question 7

Civil action against David Defendant for the death of Vila Victim as the result of Defendant's negligent driving. Plaintiff seeks damages for Vila's pain and suffering as well as for her death. The defense claims that Vila's death after she was hit by Defendant's car was instantaneous and that Vila therefore did not experience any pain or suffering. At the trial plaintiff's counsel offers to have Big Bystander testify that he rushed up to Vila after she had been hit by Defendant's car, he shouted at Vila, "How are you?," and Vila shouted back, "I'm alive. But I'm in great pain."

David Defendant's hearsay objection to this offer should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 8

Murder trial. David Defendant is charged with killing Vila Victim on September 1, 2008. Defendant's defense is that the killing was accidental. Defendant invokes his privilege against self-incrimination and does not testify. At the trial Windy Witness, a defense witness, testifies, "I have known David for decades. He and I went to elementary school together and high school. We have lived next to each other for more than three decades. I know David better than I know my mother. I know that David is non-violent person. He wouldn't hurt a fly." The prosecutor proposes to a the following question during her cross-examination of Windy. She proposes to ask the following question: "Didn't you see David viciously beat up the local trash collector on May 1, 1995?"

Defense counsel's objection should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 9

Prosecution of David Defendant for bank robbery. David denies committing the crime. The defense offers to have Wispy testify that he and David were playing poker at Wispy's home at the time of the robbery. In response to to this offer, the prosecutor conducts a voir dire examination of Wispy and establishes beyond any doubt that David paid Wispy $20,000 to testify in David's defense. The prosecutor then objects to the proposed testimony of Wispy as irrelevant and unduly prejudicial. The prosecutor adds, "The testimony of this witness has obviously been bought. So having the jury hear the worthless testimony of this witness is obviously a complete waste of everyone's time."

Should the prosecutor's objection be

sustained ___ OR overruled ____

Please explain:

______________________________________________________________________________

Question 10

David Defendant is on trial for raping Vila Victim by forcing Vila to have sexual intercourse with him on June 1, 2009. David Defendant waives his privilege against self-incrimination and he testifies that Vila consented to have sexual intercourse with him. During cross-examination the prosecutor proposes to ask David if he raped Abbie Argyle on July 13, 2009, Julie Johnson on January 3, 2009, Wendy Wilson on April 3, 2004, and Cindy Crawford on March 7, 2000.

The defense objection to these proposed questions should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 11

Plaintiff's car and Defendant's car collide at an intersection. Plaintiff brings a civil action against Defendant. Plaintiff avers that the collision happened because Defendant ran a red light. At the trial Plaintiff offers to testify that immediately after the collision, Defendant got out of his car, approached Plaintiff, and said, “Gee, I'm sorry about this. Are you O.K.? Can I take you to the hospital?”

Defense counsel's objection to Plaintiff's proposed testimony should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 12

David Defendant is prosecuted for armed robbery of a bank. Defendant admits committing the robbery but he denies committing armed robbery. The prosecution offers to have Telly Teller, a bank teller, testify that he saw Defendant carrying a small pistol during the robbery. Defense counsel states, "I object, your Honor. Not the best evidence. The bank has a surveillance camera that records in brilliant detail what goes on in the bank. The prosecution has already conceded that the surveillance camera produced detailed and high-resolution images of the robbery that day. Those are the best evidence. Teller's testimony is not."

Defense counsel's objection should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 13

David Defendant is on trial for possession of stolen property on June 1, 2009. The indictment charges that Defendant possessed a flat-panel TV screen that had been stolen from Vista Victim and that Defendant knew that the TV screen had been stolen. In her opening statement Defendant's counsel states that the evidence will show that on June 1, 2009, John Jones gave Defendant the TV screen, that before giving the TV screen to Defendant John Jones told Defendant that the TV screen belonged to him (John Jones) and the TV screen was a gift, and that Defendant believed John Jones. Later in the trial the prosecutor offers to show that John Jones gave Defendant 27 stolen bicycles in the year 2008, 25 stolen televisions in 2006, and 100 pairs of stolen alligator shoes in 2004.

Should Defendant's objection to these offers of evidence be

sustained ____ OR overruled ____

Please explain:

______________________________________________________________________________

Question 14

Paula Plaintiff brings a civil action against Grand Home Insurance Company. Paula avers her home burned down and that Grand Home had insured her home against loss by fire but that Grand Home refused to pay and still refuses to pay Paula the money due to her under the insurance policy issued by Grand Home. Although Grand Home does not deny that Paula's insurance policy protected Paula against the loss of her home by fire, it avers that Paula canceled the policy before the fire. At the trial Grand Home offers to have one of its agents testify that a few days before the fire the agent received a handwritten note in the mail signed by Paula Plaintiff and that the note said, "I want to cancel my policy NOW!"

Plaintiff's objection to this offer of evidence should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 15

Della Defendant is indicted and tried for the murder of her husband, Harry Husband. Della's defense is self-defense. At the trial defense counsel offers to have Della testify:

After the shooting I remembered nothing. I remembered seeing Harry being shot but I couldn't anything else. But several nights after the shooting, my son, who is an amateur therapist, hypnotized me. Then my memory came back to me. I now remember that I shot that dirty dog -- Harry, I mean -- when he was about to stab me. I killed Harry to save my life.

The prosecutor states, "Your Honor, the testimony of Della is clearly worthless. Della herself admits that her son is not a qualified hypnotist. Any supposed memory that her son, a profoundly-biased junk hypnotist, generated is the result of suggestion or worse and is pure junk. In any event, your Honor, hypnosis of any kind is junk science, and so is any testimony that such junk science generates."

Should the prosecutor's objection to Stella's testimony be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 16

David Defendant is on trial for robbery. Defendant's defense is that he did not commit the crime; his defense is that someone else committed the robbery. Defense counsel seeks to have Defendant testify at the trial. However, Defendant stumbles and lurches as he approaches the witness stand. During the administration of the oath Defendant slurs his words. A strong odor of alcohol pervades the courtroom. The prosecutor states, "Your Honor, Mr. Defendant is obviously drunk. A drunk does not have the qualifications to be a witness."

Should the prosecutor's request that Defendant be prevented from testifying be

granted _______ OR denied ______

Please explain:

______________________________________________________________________________

Question 17

Civil action for damages by Paula Plaintiff against Mighty Market Company. Paula's complaint avers that on June 13, 2009, she fell and injured herself in aisle number 8 in Mighty Market Company's store "Big Store." Paula claims that Defendant’s employees negligently failed to mop up spilled catsup in aisle number 8 and that she slipped on the catsup and injured herself. Defendant denies that there was spilled catsup on the floor. At the trial Paula offers to have Big Bystander testify, "I didn't see Paula fall. But I heard several people say that Paula fell on catsup. So I walked over to Managing Manager [the manager of Big Store] and I said, 'How can you leave catsup and other such things lie undisturbed in your store's aisles?' The manager glared at me and said nothing."

Should defense counsel's hearsay objection should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 18

David Defendant is on trial for raping Vila Victim on June 1, 2009. David offers to show that on May 3, 1999, he and Vila had intercourse after Vila consented to have intercourse with David.

The prosecutor's objection should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 19

David Defendant is on trial for murder on June 1, 2009. The indictment charges that Defendant shot and killed a teller, Telly Teller, during a botched attempt to rob the First National Bank with Ollie Osborne. Defendant's defense is that he was at home at when Telly Teller was shot and that someone else someone else shot Teller. At the trial the prosecutor establishes that on May 18, 2009, David and Ollie agreed to rob the First National Bank. The prosecutor then offers to have a bank manager testify that immediately after Teller was shot on June 1, Ollie shouted, "David, it's over! Run!"

Defense counsel's hearsay objection to this offer should be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Question 20

David Defendant is on trial for rape. The indictment charges that on March 1, 2009, Defendant forced Vila Victim to have intercourse with him. Defendant's defense is that Vila consented to have intercourse with him. At the trial Vila testifies that Defendant forced her to have intercourse with him. The defense offers to have Clarissa Counselor, a rape counselor at a rape counseling center, testify that on March 3, 2009, Vila sought counseling at the counseling center and that during Vila's first counseling session Vila said to Clarissa, "David didn't rape me. I agreed to have sex with him."

Should the prosecutor's objection to this offer be

sustained _______ OR overruled ______

Please explain:

______________________________________________________________________________

Examination: Part II

Instructions

This part of the examination is an essay examination. Identify the issues, discuss them, and state whether the defense motions should be granted or denied.

Your answer must not exceed 3,000 words. You are free to write less than 3,000 words.

Do not use any acronyms, abbreviations, cryptic phrases, or catchwords. Write complete sentences. Use appropriate punctuation and capitalization. Use paragraphs. Check your spelling. Follow the rules of grammar. Organize your answers.

Question

David Defendant, a 50 year-old adult, is charged with the sexual molestation of a minor child, Vila Victim. The case is tried in a United States District Court (and therefore the Federal Rules of Evidence apply).

If permitted to testify, Vila will be the government's chief witness. The government proposes to have Vila testify that in 2007, when Vila was 12 years old, she and David had sexual intercourse with each other.

In response, the defense requests and the trial judge grants a voir dire hearing. Pal Polk, a qualified expert witness in psychiatry, then testifies that (i) he treated Vila for six weeks when Vila was 13 years old, (ii) Vila repeatedly told him that she believes that all men are devils, and (iii) Vila is a paranoid schizophrenic who is prone to have delusions, including sexual delusions.

After this testimony is presented to the trial court, the defense asks the trial court to bar Vila from testifying at the trial. The defense asks, in the alternative, that Pal Polk be allowed to present to the jury the testimony he presented to the trial judge. The prosecution opposes the defense motion for an order barring Vila from testifying at the trial and it moves for a trial court order barring Pal Polk from presenting his testimony to the jury.

How should the court rule on these motions? Please explain.

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