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Contributed by Roger Martin, 2L Student by night at Univ. of San Diego, Patent Agent by day at rmartin@qualcomm.com

** State v. Chapple, (1983)

2. Facts: Victim was found in a trailer, dead of a gunshot to the head, and body burned badly.

3. Procedural Posture: Dolan was charged with first degree murder. Witnesses testified that someone named "Dee" confessed to the killing. Dolan insists that he is not "Dee," but was willing to stipulate to the method of the murder and the condition of the body. Photographs showing the gruesome condition of the body were shown to the jury. Dolan was convicted and appeals.

4. Issue: Whether gruesome photographs of a victim's body are admissible when they have no probative value toward any of the issues in controversy, and they may be inflammatory to the jury.

5. Holding: No.

6. Reasoning: Relevance is not the only question. Rule 403 states that the judge may exclude the evidence if the danger of prejudice created by admitting the evidence outweighs the probative value for any issue actually in controversy in the action. Here, the only issue in controversy was the identification of the defendant. The cause of death and the condition of the body were stipulated by the defense. The photographs were not probative on the issue of whether Dolan was "Dee."

7. Notes: 2. Photos may be relevant to show the cause of death, position of the body, nature and relationship of the wounds, viciousness of the attack, etc.

Problem 2-E:
Facts: Wife died of stab wounds inflicted by husband. Husband claims it was an accident - wife fell on the knife during a fight where she had baseball bat. Husband called police. Prosecution offers testimony concerning wife's prior admission to shelter for abused women two years earlier.

Issue: Whether evidence of prior battery is 1) relevant and 2) prejudicial.

Answer: 1) The testimony is relevant because it tends to show that the husband had a reason for killing his wife and was prone to violence. 2) It is prejudicial because it makes the husband look like a bad person. However, we already know that the husband and wife have fought violently because that is how she died. It probably should be let in because its probative value outweighs its danger of prejudice.

Problem 2-F:
Facts: Plaintiff's deceased was a passenger in a car that was hit from behind. The gas tank exploded, killing the deceased. brings a products liability action against the manufacturer for negligence in design of the car. The person who caused the accident has pleaded guilty to involuntary manslaughter, and has admitted to going about 68 mph.

Issue: Whether evidence of the faulty driver's guilty plea should be admissible.

Answer: No. Although the speed of the vehicle is probative on whether the gas tank was properly designed (i.e. manufacturer may or may not have a duty to protect from rear collisions at 68 mph), statements by the other driver concerning whether he felt that he was legally at fault for the death have no probative value on the negligence of the manufacturer. The jury may be confused and believe that the other driver was the sole cause of all injuries since he pled guilty.

Problem 2-G:
Facts: Two cars sideswipe each other. The drivers exchange information. One driver says to the other that she is sure that her insurance will pay for the damage to the other's car. Rule 411 states that evidence of insurance can not be used to show negligence.

Issue: Whether the first driver's statement is admissible.

Answer: Her statement is not admissible for the purpose of showing that existence of liability insurance proves negligence. However, Rule 801(d)(2)(A) states that admissions by a party opponent are admissible, and are not hearsay. The judge should let in the testimony, let the jury decide whether it is a true admission, and then give the jury a limiting instruction that they may not use the presence of liability insurance alone as proof of negligence.

Problem 2-H:
Facts: Flight instructor and student were flying in a training aircraft, when instructor seized the controls and performed an evasive maneuver to avoid another aircraft. The training aircraft crashed, killing both. The flight instructor's husband investigated the crash and generated a report to the supervising officer making several statements apparently detrimental to his case, but concluding that the crash was due to manufacturer negligence. At the husband's trial against the manufacturer for negligence, the manufacturer's attorney calls the husband to testify to the adverse portions, and the court refuses to let the husband testify to the findings.

Issue: Whether the husband's conclusions in the rest of the letter should be admissible.

Answer: Yes. Under FRE 106, when on party introduces part of a writing into evidence, the other party may introduce any other part which ought to be introduced in fairness. Here, the statements that the husband made in his letter are not hearsay because the husband is basing his letter on his personal knowlege of the investigation, and is available for cross-examination. They are not admissions because they were not made by the deceased. Thus, in fairness, because the jury is likely to view them as admissions, the plaintiff should be able to testify to the remainder of the letter.

Problem 2-I:
Facts: Daughter rides bicycle down a hill, and crashes into a tree, fracturing her skull. Parents claim that the brakes failed due to poor design. Expert witness testifies brakes did not work properly when he tested them 2 years later. Defense objects claiming lack of foundation that the bike was in the same physical condition at the time of the accident. Parents then offer testimony by another expert witness concerning tests done just weeks after the accident (which do not show "total loss" of braking), and state that the bike was in storage since. Defense claims that the first set of tests affected the brakes.

Issue: Whether the offered testimony is conditionally relevant.

Answer: The testimony would be relevant to showing negligence in construction if the bicycle were in the same condition that it was when the accident occured. However, there is evidence to show that it is not in the same condition (time elapsed, intervening tests). The judge should allow the evidence and instruct the jury that they must find that the bicycle was in the same condition for the expert testimony to be given any weight.

Problem 2-J:
Facts: Three men rob a bank with .38 caliber handguns. One man confesses and fingers the defendant. The government shows that the defendant has a friend who owns a car matching the description of the one used in the getaway, and that defendant's fingerprints were found in the car. Surveillance films show a man resembling defendant holding a handgun during the robbery.

Issue: Whether evidence that defendant was carrying a .38 caliber handgun when arrested is admissible.

Answer: It is relevant to showing that defendant commited the crime if it is the same gun that was used in the crime. It also tends to show character (persons who carry guns are more likely to be bank robbers than those who don't). However, if jury may confuse the issue and accept the confession of the one robber as proof that this was the same gun that was used because it was the same caliber. The judge should admit the evidence, although circumstantial, because the jury is probably able to apply the proper weight to it.

Problem 2-I:
Facts: Victim is murdered by a person who entered through the garbage compartment. A woman's stocking that had been ripped (like a burgalr's mask) was found under her body. Defendant's fingerprints were found on the garbage compartment door. The victim's rings were stolen and there was evidence that defendant had offered to sell a ring to a witness a few weeks after the burglary.

Issue: Whether evidence that three ripped stockings were found in the defendant's room should be admissible.

Answer: The line of inferences must be that the ripped stockings found in the apartment were made into masks, and that the ripped stocking found at the scene was a mask, and that the one found at the scene matched or belonged to the defendant. The jury might jump to the conclusion that the one found at the scene matched one found at the defendant's house. This evidence is only circumstantial. However, given the fact that ripped stockings are not a common item, the evidence should be let in because the jury is probably able to give proper weight to it.

** People v. Collins, (1968)

2. Facts: An old woman was robbed in an alley. She describes her assailant as a white female in dark clothes. A witness observes a white female with a ponytail get into a yellow car with a black male driver with a beard. The defendants loosely match the description of the people observed leaving the alley.

3. Procedural Posture: The prosecutor introduced an expert witness mathematician who testified concerning the product rule of mutually independent characteristics in a population. The prosecutor selected the categories, and assigned numbers to them, without any emperical basis. The jury convicted and the defendant appeals.

4. Issue: Whether the product rule of probabilities was properly applied in this case.

5. Holding: No.

6. Reasoning: The categories were not mutually exclusive. Also, the probabilities given had no foundation. Furthermore, they appeared to be beyond the defense attorney's and the jury's ability to understand. Thus, it is likely that this improperly used technique was accepted by the jurors, causing prejudicial error.

Problem 2-L:
Facts: Defendant manufacturer makes 80% of the tires that an auto shop uses. One tire explodes, injuring a worker. The technician who tested the exploded tire determined that it was faulty. But no plaintiffs wrote down the markings on the tire, so they can not say conclusively that it was made by the defendant.

Issue: Whether the fact that defendant makes 80% of the tires used at the shop is admissible.

Answer: It is relevant because it tends to establish that the particular tire in question belonged to the manufacturer. However, there is another issue besides who made the tire: whether the manufacturer was negligent in making the tire (i.e whether it was actually defective). It is likely that the jury would confuse the issue and gloss over the negligence issue and latch onto the 80% number to assume that it was 80% likely that the defendant was liable. In this case, the judge should give a special verdict form to the jury that separates the two questions.

Problem 3-B:
Facts: Maserati pulls up next to a Kenworth semi-truck at a stoplight. Maserati can not see the light, or cross traffic because of the truck. When the truck begins to pull forward, Maserati takes this as a sign that the light is green and pulls into the intersection where he is hit. Each driver asserts that the other ran a red light.

Issue: Whether evidence of the truck pulling forward at the intersection is hearsay if it is offered to prove that the light turned green.

Answer: Yes. The truck driver is not present to offer testimony as to whether he thought the light was green, and whether that is why he was pulling forward. There is the risk that the truckdriver was mistaken, or was anticipating the light, or moved forward for some unknown reason.

** Cain v. George, (1969)

2. Facts: Son dies in a hotel room from carbon monoxide poisoning. When his body was discovered in the morning, there was a smoldering chair in the room. There was also a gas heater in the room.

3. Procedural Posture: The parents brought a wrongful death action, claiming that the heater was defective and unmaintained and that caused the death. The defendant motel offered evidence of the number of people who had stayed there previously without complaint. The plaintiff objected that the silence was hearsay (made by persons not testifying).

4. Issue: Whether silence by someone who could reasonably be expected to report a problem is hearsay if used to prove that there was no problem.

5. Holding: No.

6. Reasoning: As a practical matter, silence is not hearsay in this case because it derived its value solely from the credit to be given the actual witnesses themselves (i.e. they could be lying that there were no complaints).

** United States v. Check, 1978)

2. Facts: Defendant is a new york city cop suspected of selling cocaine through an assistant, Cali. An undercover cop arranged to buy some cocaine from the defendant, through Cali. The two met, and the cop was arrested.

3. Procedural Posture: The cop was charged with selling drugs. Cali refused to testify. The prosecutor attempted to circumvent the hearsay rules by instructing the undercover cop to testify as to only his half of the conversation. However, the tetsimony clearly implicated statements by Cali.

4. Issue: Whether a person can testify to one half of a conversation in order to circumvent the hearsay rules when it is clear that the testimony is paraphrasing the alleged statements of the out-of-court witness, and the testimony is being offered to proof the contents of the paraphrasing.

5. Holding: No.

6. Reasoning: This is a blatant and transparent example to circumvent the hearsay rules which are in place to provide procedural safeguards. If this were allowed there would be no practical use for the rules. So much was paraphrased that it was unclear who said what. Thus, the entire testimony should have been thrown out.

Problem 3-C:
Facts: Witness testifies at trial "the blue car ran the red light." However, the attorney (on cross) attempts to get the witness to testify that in a previous statement made to an insurance adjuster, he said that the blue car had a green light. The attorney states that he is offering it to impeach the testimony of the witness and not to prove that the blue car had a green light.

Issue: Whether the previous statement to the insurance adjuster is admissible or is hearsay.

Answer: Admissible to impeach. Also, the policy behind the hearsay rule does not seem to be at risk here because the very person who made the out of court statement is available to testify (and be cross-examined) to it.

Problem 3-D:
Facts: While at a massage parlor, an undercover cop is propositioned by a masseuse who is likely prosititute.

Issue: Whether the prostitute and the undercover cop's out of court statements are admissible to show that an act of soliciting prostitution occurred.

Answer: Yes. The conversation itself is the issue. The act of stating the words is the crime of solicitation, and is part of the requirement of the substantive law. It is being offered to show that it was spoken. Thus, it is admissible.

Problem 3-E:
Facts: A landowner leases part of his land to a farmer in return for a 40% share of the crop. The farmer gets a bank loan using the remaining 60% of his future crop as collateral. After default, the bank collects a portion of the crop that they claim was designated as theirs by the farmer. The landowner claims that the statement by the farmer designating the corn was hearsay. Likewise, the bank claims that the statement by the farmer designating the corn to the landowner is hearsay.

Issue: Whether the verbal act of designating an object as belonging to another person to satisfy a debt is hearsay.

Answer: No. The verbal act is probative of the very issue of whether a debt was discharged (contract law). The words are offered to give evidence of their existence, because it is their existence that is at issue.

Problem 3-F:
Facts: Victim smells a gas leak. Agent appears and says that he is from the gas company, and asks Victim to show him the leak. Victim takes Agent around to the gas leak, and Agent lites a cigarrete which ignites the gas and injures Vicitim. At trial, the gas company asserts that Victim is contributorily negligent for going so close to a gas leak.

Issue: Whether Victim's testimony that Agent stated he was from the gas company is admissible over the hearsay rule.

Answer: If offered to show the effect on Victim (that he was not contributorily negligent because he believed that he was accompanied by someone who knew what they were doing) then it is admissible. It is not being offered to show that Agent was from the gas company, only that Victim thought that Agent was from the gas company.

Problem 3-G:
Facts: College student was arrested and charged with selling drugs at a bar. The evidence was circumstantial and comprised: 1) a matchbook with the name of the bar on it found in his possession, 2) a mug with his name on it found at a drug house, and 3) testimony by a barmaid that she saw another defendant at the bar with the college student, but was able to point him out to an undercover officer, and 4) the undercover officer's testimony that the person that the barmaid pointed out was the college student.

Issue: Whether each of these is hearsay.

Answer: 1) Not hearsay because it is self-authenticating. 2) Also self- authenticating. 3) Not hearsay because witnesses are present to testify and be cross-examined. Identifying the object.

Problem 3-H:
Facts: Husband tries to collect in a wrongful death suit for future income of dead wife. Only a few weeks earlier, wife executed a will in which she limited his inheritance to $1, and made several disparaging comments about him.

Issue: Whether the will may be admissible to show that the future income of the husband was not great.

Answer: Yes. It shows the state of mind of the wife. It is not being offered as proof that the husband was bad, but only that the wife and the husband were not getting along and so the husband was not likely to get future income.

Problem 3-I:
Facts: A child is molested by a man in a room. The room is described by the child to a police officer who testifies to what the girl told her about the appearance of the room.

Issue: Whether the description by the police officer of the girl's description of the room is hearsay.

Answer: Yes. However, it may be let in as a then existing mental impression of the room. Not used to prove that the room was as the girl described it, but rather that the girl had a mental impression of being in the room that could only have come from being in the room.

** United States v. Singer, (1983)

2. Facts: Sazenski and Izquierdo were suspected of smuggling marijuana from Florida to Minnesota. Sazenski had a residence in Minnesota. A letter was sent from Sazenski's landlord to Sazenski and "Almaden" (Izquierdo's alias) notifying them of their eviction.

3. Procedural Posture: The prosecution sought to enter the letter into evidence in order to show that Sazenski and Izquierdo lived together. The defense objected on the grounds that the content of the letter was hearsay ("writing" made out of court by other than the witness).

4. Issue: Whether the letter is admissible or not under the hearsay rule.

5. Holding: Yes.

6. Reasoning: FRE 801(c) defines hearsay as a "statement," meaning that non-assertive conduct, verbal or non-verbal, is not hearsay if not intended by the declarant as an assertion. The purpose of the hearsay rule is to exclude evidence whose veracity can not be tested under cross examination. However, there is an inference of veracity of non-assertive behavior because people base their actions on the assumption of the correctness of their belief. Thus, the letter is admissible to prove that the landlord believed that Saznski and "Almaden" lived together, because it is non hearsay for that use. The letter is not being submitted to assert that its contents are true, only that the landlord believed them to be true.

Problem 3-K: Greg is suspected of robbing a bank. FBI agents question his wife who lies about his whereabouts. FBI then question a friend, who tips them off to Greg's alleged hiding place, where he is found. At trial, the prosecution attempts to have the FBI testify as to what the wife said. The defense objects, claiming that it is irrelevant and hearsay.

Issue: Whether lies made by a declarant out of court are admissible as non-hearsay if used to show the state of mind of the declarant.

Answer: Yes. Here, the out of court statements are not being offered to prove their contents. In fact, just the opposite. They are being introduced to show Greg's wife's state of mind. If she were trying to lie to police, that would be evidence that she felt he was guilty, which is probative on whether Greg was guilty. Her statement is also a performative act because it is an attempt to interfere with the investigation, which also goes to show Greg's guilt.

Problem 3-L: Bruno is charged with importation of drugs. A King-Air plane was tracked as being stolen from Florida, landing on Bruno's property, being flown to Acapulco to pick up drugs, and then back to Mississippi to drop off the drugs. At trial, Bruno denies any involvement with the smugglers, claiming that he let the plane land because it was an emergency. He also offers witness testimony say that she heard him in public say that he was storing a King Air aircraft on his airstrip. The testimony is offered to show that he is innocent because a guilty person would not advertise that a stolen plane was on his airstrip.

Issue: Whether a disclosure made out of court by a declarant which would not ordinarily be made by a guilty person is hearsay.

Answer: No. It is not being asserted to prove that the King Air was on the property. That matter is conceded. It is being offered as conduct by Bruno that tends to prove that he wasn't knowingly involved in the theft of the plane. It does rely on Bruno's truthfulness, because he could have made the statement in order to make it appear that everything was legitimate.

** United States v. Pacelli, (1974)

2. Facts: Pacelli was arrested and charged for the murder of a woman who had been subpoenaed to testify against him in a drug dealing case. After the murder, several of Pacelli's friends met at a friends apartment and discussed the crime. The statements they made did not show surprise or reprehension that Pacelli had been arrested. They only commented on the fact that the murderer had botched the job by leaving the body where it could be found.

3. Procedural Posture: The trial court admitted testimony by one of the friends at the apartment as to what the other conversants said. The defendant appealed, alleging error in allowing hearsay.

4. Issue: Whether testimony by a witness of the statements made by a declarant out of court are hearsay (and inadmissible) if used to imply that the defendant is guilty because the statements do not show surprise at his being arrested (meaning that he told them he did it).

5. Holding: Yes.

6. Reasoning: The admission of the testimony here violated the policy behind the hearsay rule of giving litigants the opportunity to cross- examine the declarant. The statement made may not have been intended by the declarants to assert that they believed that the defendant had killed the victim, or that the defendant told them that he did. Cross- examination would allow the meaning of their statements to be examined. Although there is less danger of insincerity in implied assertions than express assertions, there is the danger of misinterpretation. Thus, the evidence should have been excluded.

7. Dissent: There was no statement here that the defendant confessed to the declarants. Thus, there was no hearsay problem at all. The testimony offers little to the actual eye-witness testimony of the state's witness that they are not hearsay, because they are not being offered to prove the ultimate issue, i.e. that defendant killed the victim. They are being used to prove that the declarants assumed that the defendant killed the victim.

Problem 3-M: Postal inspectors get a tip about 2 men falsifying ID cards and follow suspect 1, Griggs, to a bank where he apparently unsuccessfully tries to cash a check. As they are arresting him, suspect 2, Perry, appears and Griggs says to him "I didn't tell them anything about you." At trial, the prosecution offers the statement made by Griggs as evidence that Perry was guilty.

Issue: Whether the statement is hearsay (an assertion).

Answer: Yes. The statement is being used to show that Griggs was asserting Perry's guilt. Although the statement is not a naked assertion, it clearly implies that Perry is guilty, and is being used with that meaning by the prosecution. The statement's probative value (for the prosecution) depends on the truth of an assumed fact that it implies).

** Betts v. Betts, (1970)

2. Facts: An ex-husband of a woman sued for custody their daughter. Their son died as the result of a severe beating, but the woman's new husband could not be convicted because of lack of evidence. The daughter was put in a foster home.

3. Procedural Posture: At trial, the ex-husband offered testimony by the foster mother that the daughter, then 5, had cried and made statements to the effect that the woman's new husband had killed her brother. The statements were let in over hearsay objections, and the woman appealed on losing.

4. Issue: Whether the statements by the daughter made to the foster mother were hearsay.

5. Holding: No.

6. Reasoning: A judicial interpretive addition to the hearsay rule in 801 is that the out of court statement can be used to show the state of mind of the declarant, if such a statement does not depend on the credibility of the declarant herself. The statements here were not being offered to prove that the man killed her brother, but rather that the state of mind of the daughter was such that there would be unhealthy tension between her and her mother and stepfather if they were awarded custody of her. It does not matter if the stepfather actually killed her brother or not, because these statments circumstantially show the state of the child's mind.

** Bourjaily v. United States, (1987)

2. Facts: An undercover FBI agent arranged for an person to sell cocaine. The person notified the FBI agent that he had found a buyer, and set up a deal. When the person proceeded with the transaction, putting the cocaine in Bourjaily's car, the FBI arrested the person and Burjaily, and found $20,000 in Bourjaily's car.

3. Procedural Posture: At trial, the judge admitted statements made by the person, as evidence that Bourjaily was the drug buyer. Bourjaily objected that the statements were hearsay, but they were let in under 801(d)(2)(E) as being made in the course of and in furtherance of a conspiracy. The court of appeals affirmed.

4. Issue: 1. What is the appropriate standard for allowing in statements by an alleged co-conspirator, when they are being used to prove the very existence of the conspiracy? 2. Whether the judge can consider the content of the hearsay statement in weighing whether it was made in the furtherance of the conspiracy.

5. Holding: 1. Preponderance of the evidence, as determined by preliminary fact finding by the judge. 2. Yes.

6. Reasoning: The preponderance of the evidence standard ensures that the court will have found it more likely than not that the techincal issues and policy concerns addressed by the FRE 104 have been afforded due consideration. Although prior to the enactment of the FRE, the court had held that the hearsay statement by the alleged co-conspirator could not "boostrap" itself into being competent evidence of proof of the conspiracy, absent some independent proof, the FRE 104(a) contains no limitations other than privilege. Since the existence of the statement, although presumed unreliable, is probative on the existence of a conspiracy, when it is taken together with surrounding circumstances, it may be more probative.

7. Notes: A James hearing is often held in criminal cases, before trial, for the prosecutor to show how he will "connect up" the hearsay statements of the alleged co-conspirator with other evidence to establish the existence of the conspiracy. If the hearing is successful, the hearsay statement is admitted. However, if it is not practicable for the prosecution to provide a showing before trial, the statement will come in if the judge believes that there was more likely than not a conspiracy, and the judge may have to give a limiting instruction if the prosecution does not later "connect up" the statement with other evidence.

Prob. 4-H: Three people, Bud, Arlen, and Carol conspire to buy and sell cocaine. At the airport before they leave, Bud says to a friend Connie that 1. "Arlen fronted us the buy money." Arlen attempts to set up a sale with an undercover DEA agent, and tells him 2. "Bud's gone down south to make the buy." After she is arrested, Carol squeals and says that 3. "Bud made the buy" and that she just carried it.

Issue: Whether the statements are admissible exceptions under 810(d)(2)(E).

Answer: The statement must be made "during the course of and in furtherance of the conspiracy." The first and second statement clearly qualify. The third statement was not made during the course of or in the furtherance of the conspiracy, but only after arrest.

** Nuttall v. Reading Co., (1956)

2. Facts: Nuttal died allegedly due to being forced to work while sick.

3. Procedural Posture: Nuttal's wife testified at trial as to what she heard her husband say over the phone to his boss on the day that he was allegedly forced to go to work. Also, she testified as to what he told her after he got off the phone. The trial court excluded the testimony as being hearsay.

4. Issue: Whether Nuttal's wife's testimony is admissible even though it is technically hearsay.

5. Holding: Yes.

6. Reasoning: What the husband said was competent to prove that he was being forced to go to work, because it showed his state of mind. The husbands statements may be used as evidence of coercive statements by the other person on the other end of the phone because the husband was making them cotemporaneously. Although the wife has no personal knowledge of the statements made on the phone, the testimony is independently reliable because the statements were free from the possibility of lapse of memory of the husband.

** United States v. Iron Shell, (1980)

2. Facts: Iron Shell got drunk and assaulted a nine-year old girl. There were several witnesses who reported that they saw her pulling up her pants. The girl made statements to the police about 1 hour after the incident to the effect that "he tried to what you call it me."

3. Procedural Posture: The trial judge let the statement to the police into evidence, and Iron Shell was convicted.

4. Issue: Whether the judge abused his discretion in letting the statement in under the 803(2) excited utterance exception.

5. Holding: No. Although an hour had passed, the length of time is not determinative. The court needs to consider the age, physical and mental condition of the declarant, and other surrounding facts to determine whether it was reasonable that the declarant was operating under the stress of excitement when she made the statement. Here, the finding was reasonable given the additional evidence, and the age of the child.

Prob 4-I: A person who lifts heavy objects for a liveing came home early one day and said to his wife "I feld this suddne pain just a few minutes ago" while lifting objects at work. After going to the doctor, he died later that day from a heart attack. The wife sues for workmen's comp. survivor benefits. At the trial, she wants to admit the statement that the husband made.

Issue: Whether the statement qualifies as an excited utterance under 803(2).

Answer: Yes. It is perfectly reasonable to say that the man was under the stress of the pain when he made the statement that he had the pain. The judge can (using rule 104(a)) admit the evidence to prove that there was pain from the statement itself, given that there was other evidence of pain (i.e. going to the doctor and requiring a sedative to rest).

Prob 4-J: Neff was a smalltime tough guy who was seeking protection money from Quade. Quade was found stabbed in the park. Before he died, he told a friend, "Neff is after me again. He'll kill me if I don't pay protection money."

Issue: Whether these statements are hearsay if offered at 1) and extortion trial against Neff, or 2) a murder trial against Neff, or 3) if Neff claims self-defense.

Answer: The statement tends to show that Quade feared Neff. Fear is a then-existing mental state. At an extortion trial, fear is probative because it is fear that motivates the person to pay. If it were a murder trial, the fear may be probative, and may come in, especially as evidence to show whether Neff was reasonable in fearing for his own life. But it is less probative. Thus, it might be excluded under 403 even though it fits the 803(3) mental state exception.

** Mutual Life Insurance Co. v. Hillmon, (1892)

2. Facts: Hillmon was allegedly shot by accident by his partner at a campfire. He had taken out several life insurance policies before his death. There was evidence that the body that was found was not that of Hillmon, but of another named Walters. Walters had written to his fiancee before disappearing that "[he was] going with a man by the name of Hillmon."

3. Procedural Posture: The wife brought an action to recover the insurance money, and the insurance company sought to introduce the letter as evidence that Walters went with Hillmon, and thus it was Walters' body that was found, not Hillmon's. The trial court refused the letter, stating that it was hearsay.

4. Issue: Whether the letter was nontheless admissible as an exception to the hearsay doctrine as being independently reliable.

5. Holding: Yes.

6. Reasoning: A man's state of mind or intent can only be expressed by gesture, sound or words. When the intent is expressed, it is typically contemporaneous with the declaration of the party. Thus, it is not subject to faulty memory and is independently reliable. The letter is thus admissible to prove that Walters had the intent to go with Hillmon somewhere. From this intent, the jury may logically infer that not only did he go, but thta Hillmon went with him.

** United States v. Pheaster, (1979)

2. Facts: Larry was allegedly kidnapped by Angelo. Larry had made statements to friends that he intended to go meet Angelo in the parking lot of the Sambo's restaurant, and pick up a free pound of marijuana from him.

3. Procedural Posture: The trial court admitted the testimony of the friends as to Larry's statement of intention to meet Angelo. The defense objected, asserting that although Larry's statement was competent to prove Larry's intent and future conduct, it could not be used to prove the conduct of Angelo himself.

4. Issue: Whether the statements of intent of one person that he is going to go meet another person can be used to prove that the two did actually meet. (Hillmon doctrine).

5. Holding: Yes.

6. Reasoning: The court reasoned that the Hillmon doctrine was still intact after the promulgation of the FRE. The inference to be drawn from a person's intent to perform an act is that he did that act. If the statement implies that a second person would engage in some future conduct with the declarant, that makes the likelihood smaller that the conduct actually took place, but it does not make the actual statement any less reliable (it is still free from memory lapse). Thus, it is a question of degree of inference. Thus, Larry's statement still fits under the state of mind exception of 803(3), even though it implies conduct by another party as well.

7. Notes: Some other cases will allow this type of statement to prove the other person's conduct only if there is additional evidence of such conduct to corroborate.

Prob. 4-K: Husband is tried for murder of his wife. There is independent circumstantial evidence of violence between the couple. The prosecutor wants to offer three statements/conduct by the wife as evidence:

** Weeks before death, Wife told her neighbor "I am afraid my husband is going to kill me."

2. Days before death, Wife to her neighbor "I am going to Denver to stay with Mother."

3. Few months before death, Wife left home to spend time in a battered women's shelter.

Issue: Whether each of these statements is admissible under the state of mind exception to the hearsay doctrine.

Answer: The issue is whether Husband killed wife. 1. Shows the wife's state of mind clearly, but her state of mind is not an ultimate issue in the case. However, her fear is probative on whether the Husband killed her. Even more probative to show whether Husband was reasonable in assertion of self-defense. 2. Shows present intention to leave home, so it is admissible to show that she did go to Denver, which implies fear of husband. 3. Also shows fear of husband.

Prob. 4-L: A father, Daniel, has a natural son, Frank, and an adopted son, Ike. Frank and his father have a falling out. Daniel makes a will, leaving half to his new wife (Ike's mother), and half to "his son." There are several statements that Daniel makes to his friend concerning the making of the will. After Daniel dies, there Frank claims that "my son" meant him, and alternatively that the will was made under the undue influence of Ike and his mother. The following statements were made:

** In October, Daniel said "Ike is my son now, and I want to take care of him."

2. In November, Daniel said, "I'm going to do my will this weekend."

3. In January, Daniel said, "I'm taking care of my son Ike, Frank's earning enough."

4. In February, Daniel said, "I just did my will, [after constant nagging by new wife]. She won, she gets the house and the stock that she doesn't deserve."

Issue: Whether each of these statements is admissible under the state of mind hearsay exception for declarant's will.

Answer: 1-3 appear to be clear statements of Daniel's state of mind, i.e. that he intends to leave his money to "his son" Ike. 4 is being used to show undue influence. The declarant's state of mind is relevant, but here he is remembering past events. However, the state of mind exception for wills applies to statements regarding the "execution, revocation, identification, or terms of declarant's will." Here the statement certainly refers to the terms of the will.

** United States v. Iron Shell Part II, (1980)

2. Facts: 9-year old alleged victim of sexual assault met with doctor for examination 2 hours after incident. Doctor asked her several questions to which she eventually responded by telling him what happened in piecemeal.

3. Procedural Posture: The trial court let the statements in as an exception to the hearsay rule under 803(4)'s exception for statements to physicians. The defendant asserts that this was error because the statements made were not "reasonably pertinent" to the diagnosis, as the same diagnosis and treatment and examination would have occurred regardless of the statement.

4. Issue: Whether the statements made by the girl to the doctor were "reasonably pertinent" to the diagnosis or treatment, thus qualifying for the hearsay exception of 803(4).

5. Holding: Yes.

6. Reasoning: The statements by the girl were "reasonably pertinent" to diagnosis or treatment because they disclosed information that a doctor would normally have sought in order to treat the patient. It may be true that the doctor would have eventually found the problem without her statements, however, given the child's age and condition, there is no reason to believe that she was giving the information for any other purpose than to truthfully provide information for her own treatment. Thus, her answers fit the policy behind the exception. The answers also served to narrow the examination.

** Ohio v. Scott, (1972)

2. Facts: Defendant was charged with shooting a man. He allegedly had a conversation with his girlfriend at a movie house right after the incident. The girlfriend wrote down a statement and gave it to police the following day which described the conversation.

3. Procedural Posture: The trial court allowed the past statement to be admitted into evidence after the girlfriend testified at trial that it was an honest statement of the events at the time.

4. Issue: Whether the past written statement by the witness is admissible under the Rule 803(5) exception to the hearsay rule for recorded recollections.

5. Holding: Yes.

6. Reasoning: The statement was 1. recorded concerning a matter that the witness had first hand knowledge about, 2. now the witness has insufficient recollection, 3. the statement was made while the matter was fresh in her mind, and 4. it reflected that knowledge correctly. There is no danger of lack of cross-examination because the witness is available to be cross-examined with regard to her perception and honesty. Her present memory is not in dispute.

** Petrocelli v. Gallison, (1982)

2. Facts: A Dr. Gallison performed a hernia operation on Petrocelli, during which he allegedly cut a nerve. During corrective procedure at another hospital, the attending doctors wrote in the medical record that there was pain due to a severed nerve, but there was no indication of where this information came from.

3. Procedural Posture: The trial court refused to allow the entry of the medical records as hearsay. The defendant won the verdict, and plaintiff appeals charging that it was error not to admit the medical records under the business record exception to the hearsay rule under FRE 803(6).

4. Issue: Whether the medical records fell under the business record exception of FRE 803(6).

5. Holding: No.

6. Reasoning: The business record exception applies only when persons with knowledge make the entries contemporaneously as part of the ordinary course of business. Here, it is unclear who had knowledge of the alleged severed nerve. The plaintiff himself may have told the doctor about the severed nerve, and he had no personal knowledge. The patient is not part of the business.

** Lewis v. Baker, (1975)

2. Facts: Lewis was a brakeman who sued the railroad for personal injuries, alleging that the brake he was using failed. The railroad had a written accident report, prepared by the supervisor, alleging that the brake had functioned properly both before and after the accident, although he did not have personal knowledge of the accident.

3. Procedural Posture: The trial court admitted the written accident report as a business record. The defendant won, and plaintiff appeals.

4. Issue: Whether the accident report qualifies as a business record under the 803(6) exception.

5. Holding: Yes.

6. Reasoning: The record was made to satisfy the ICC requirement that every accident be reported. There was no reason here to believe that the persons making the record had any interest in avoiding blame during litigation, so it is deemed to be independently trustworthy (as opposed to Palmer, where the accident report was generated solely with an eye toward litigation). Lack of personal knowledge by the recorder does not affect the admissibility of the record, only its weight.

** Baker v. Elcona Homes Corp., (1978)

2. Facts: s were the victims in a car accident at an intersection of a highway. The defendant's driver was in a semi, and the s were in a car. The investigating police officer made a traffic accident report in which he found that the car had ran the red light.

3. Procedural Posture: The trial court admitted the police officer's report (under the recorded recollection rule), and the defendants won. Plaintiffs appealed, claiming that it was error to allow the report as hearsay.

4. Issue: Whether the police report was admissible under the public records exception of 803(8).

5. Holding: Yes.

6. Reasoning: A police report is a public record because it was made upon matters he had the duty to report. The police officer's written statement that the car ran the red light was independently trustworthy as a "factual finding" because it was timely made, the officer had special qualifications and experience, and the officer was impartial. The burden was on the plaintiffs to show that the report was untrustworthy, and they made no effort to do so. Also, to the extent that the report contained statements made by the opponent, they were admissible under 801(d)(1)(B) (prior consistent statement) to corroborate the driver's testimony because the cross-examination of the driver implied that his testimony was inconsistent with prior statements.

** United States v. Oates, (1977)

2. Facts: Oates was arrested for heroin possession, and at the time of arrest, was carrying a "white powdery substance." The U.S. Customs Service chemist prepared a lab report on the powder which indicated that it was indeed heroin.

3. Procedural Posture: At trial, the chemist was suddenly sick on the day he was to testify, and so another chemist testified in his place to interpret the report. However, the trial court refused to allow the actual report in since the preparer was not available, and rule 803(8)(B) excludes public records prepared by law enforcement personnel from being used against criminal defendants.

4. Issue: Whether the report is properly admissible under the 803(8) exception for public records, given that this is a criminal trial.

5. Holding: No.

6. Reasoning: The chemist is a law enforcement person under 803(8)(B) because he is an integral part of the prosecution effort. The report was a "factual finding" which was the product of an "investigation" under 803(8)(C). The legislative intent clearly and unequivocally indicates that it was their intention to absolutely exclude all public records made by law enforcement officials from use against the defendant in a criminal trial. Otherwise, the defendant would lose the important right of cross-examination and confrontation of the witnesses against him. It does not matter that the witness was unavailable, or that the report might technically qualify as a business record under 803(6) because the legislative intent is so clear that they intended the exclusion to be absolute.

** United States v. Mann, (1978)

2. Facts: Defendant and a 17 year old Austrailian girl named Shine were detained by Customs in Puerto Rico when Shine's name triggered a "hit" in the custom's computer as being suspected of smuggling cocaine. Shine had cocaine in her possession, but Mann did not. However, Mann was arrested and charged since he was accompanying her. Shine was accidentally held in adult prison, and so the government dropped charges against her, successfully sought her deposition stating that Mann gave her the cocaine, and returned her passport and baggage to her. Shine returned to Australia.

3. Procedural Posture: The government, after asking the Australian consul to verify her unavailability, offered her deposition as evidence because they claimed that she was "unavailable." The trial court accepted the diligence of the government's attempts to procure her, and let the evidence in. Mann was convicted, and appeals claiming that it was error to allow the deposition.

4. Issue: Whether the government met the standard of diligence required for a finding that a witness is unavailable under FRE 804(a)(5).

5. Holding: No.

6. Reasoning: Rule 804(a) requires that the proponent be able to show that he party was unable to procure the witness' attendance by process "or other reasonable means." Furthermore, 804(a) provides that the declarant is not unavailable if he absence was procured by the proponent. Here, the government apparently felt that they wanted to get the girl out of the country as soon as possible so that she did not take action against them. The government probably felt that they could just take her statement and send her home. Thus, they have apparently procured her absence. Furthermore, they did not communicate to her that they would pay for her trip back, nor did they make anything more than a cursory attempt to bring her to the states. The government thus did not meet the standard of Virgin Islands v. Aquino, that the effort must be "genuine and bona fide," especially since this witness was the key witness in the case.

** Barber v. Page, (1968)

2. Facts: Barber and Woods were arrested for a robbery. At a preliminary hearing, Woods made incriminating statements against Barber. At the time of trial, Woods was in a federal penitentiary in Texas. The trial was held in Oklahoma.

3. Procedural Posture: The government stated that since they did not have the power to compel Woods presence at the trial by service of process, that he was therefore "unavailable." The trial court agreed and allowed his testimony from the preliminary hearing to be read in lieu of his presence. Barber was then convicted. Barber sought a habeus corpus action claiming that allowing the recorded transcript was a violation of his 6th amendment right to confront the witnesses against him. The District Court rejected the claim, and the court of appeals affirmed.

4. Issue: Whether the government had taken reasonable steps to procure the adverse witness' attendance at trial in order to declare him legally unavailable.

5. Holding: No.

6. Reasoning: The state made absolutely no effort to acquire the prisoner from out of state. They simply assumed that they had no duty to do so because they could not serve him. However, there are agreements in place between states to cooperate in this regard, in addition to a federal policy of making witnesses available for testimony. The possibility of refusal is not the same as an actual refusal. Even if the defendant had waived his right to cross-examination at the preliminary hearing, the 6th amendment right of confrontation is a trial right that can not be so easily dispensed with.

** Lloyd v. American Export Lines, Inc., (1978)

2. Facts: Lloyd and Alvarez were both merchant sailors on a commercial corgo vessel who got into a violent fight with each other. After the fight, the Coast Guard held a hearing to determine whether Lloyd had sufficient wrongdoing to revoke his merchant marine license. At that hearing, Lloyd was sworn and cross-examined, and represented by counsel.

3. Procedural Posture: Both parties brought an action against the ship owner for negligence. Lloyd was unavailable for trial because of his work schedule. The ship owner sought to introduce Lloyd's previous testimony from the hearing as evidence that Alvarez started the fight. The lower court excluded it as not coming within the exception of 804(b)(1) for prior testimony. The jury returned a verdict for Alvarez, and the ship owner appealed.

4. Issue: Whether the evidence should have been admitted under the 804(b)(1) exception to the hearsay rule for prior testimony given that the declarant was sworn and cross-examined by the Coast Guard in the prior hearing.

5. Holding: Yes.

6. Majority Reasoning: The Coast Guard prosecutor and Alvarez shared a "community of interest." 804(b)(1) requires that the prior cross- examination have been conducted by a person with similar motive and who is a "predecessor in interest." The legislative history shows that "predecessor in interest" wording is not to be woodenly or mechanically construed. Thus, the prior testimony should have been allowed.

7. Concurrence Reasoning: The testimony should have been allowed, but under the catch-all exception of 804(5), not the prior testimony exception of 804(b)(1). The term "predecessor in interest" is a term of art and is to be construed narrowly as one who is in privity. It does not matter that the Coast Guard had merely the same motive, he did not have the duty to represent Alvarez. His search was for the truth, not to win, and so he was not bound to explore all possible avenues. There was overlap between their interests, but the Coast Guard was not a "predecessor in interest." To hold Alvarez liable for the lack of zeal of the Coast Guard is not fair.

** United States v. Barrett, (1976)

2. Facts: A collection of postage stamps was stolen. "Bucky" Barrett was implicated by two witnesses as being involved. However, there was evidence that one of the persons, now dead, who had been involved in the crime said that "Buzzy", not "Bucky" was the person involved.

3. Procedural Posture: The trial court refused to allow a person to testify as to the third person's statement, holding that although the part that implicated the third person criminally as being involved was against his own interest, the part that stated that "Buzzy" not "Bucky" was involved was not sufficiently against his own interest to fit under the hearsay exception of 804(b)(3).

4. Issue: Whether the part of the dead man's statement that stated that "Buzzy" not "Bucky" was involved was not sufficiently against his own interest to fit under the hearsay exception of 804(b)(3).

5. Holding: Yes.

6. Reasoning: The federal rules are a departure from the common law rule that third party statements against penal interest could not be used to exculpate the defendant. However, the last sentence of the rule provides that these types of statements must also be independently corroborated by circumstances clearly indicating trustworthiness. Here, the statement that the third party was involved was clearly against his penal interest. Also, the rest of the statement was naming who else was involved, which gave context, and thus more weight to the first part of the statement because only a person who was involved would know who else was involved. Lastly, the whole statement should be viewed as one integral statement since Congress apparently intended the rule to be broadly interpreted.

** United States v. Williamson, (1994)Supp.,

2. Facts: Harris was arrested carrying two suitcases of cocaine in the trunk of his rental car. Upon being questioned, he first told authorities that he was going to make a delivery to Williamson by trash dumpster, and then changed his story to say that Williamson was travelling with him in another car. Both stories implicated Williamson.

3. Procedural Posture: The trial court admitted the statements of Harris against Williamson under the 804(b)(3) exception to the hearsay rule for statements against interest. Williamson appealed claiming that the statements implicating him were not against Harris' interest but were collateral statements that were either neutral or self-serving. The court of appeals affirmed, and the Supreme Court granted cert.

4. Issue: Whether collateral statements made along with a "statement" that is against a declarant's penal interest are admissible.

5. Holding: No.

6. Majority Reasoning: The policy behind the rule is that statements against a person's interest would not be made by a reasonable person unless he believed them to be true. Collateral statements that are either neutral or self-serving do not have the same guarantee of trustworthiness. Thus, they should be excluded. The ACN notes notwithstanding, all collateral statements are inadmissible because Congress intended the rule to be narrowly applied consistently with the underlying policy for excluding hearsay. "Statement" as used in the rule does not encompass an entire narrative, but should be narrowly construed to include only those portions that are themselves against interest. Note that this could include statements that incuplate others or exculpate others if they are used to show the existence of a conspiracy.

7. Dissent Reasoning: [Kennedy] Excluding collateral statements altogether eviscerates the rule, because most statements against interest are not directly against interest. The court should admit those statements that are facially neutral, but tend to be against the interest of the declarant when viewed as a whole.

** United States v. Dorian, (1986)

2. Facts: Dorian's wife took their daughter to the police station and she was put in emergency foster care. While in foster care, the daughter was examined and interviewed several times concerning alleged molestation by her father. The daughter made several statements implicating her father.

3. Procedural Posture: At trial, the daughter was deemed too young and scared to testify, and thus unavailable. The prosecution successfully sought to enter the examination statements under the 803(24) catchall exception to the hearsay rule. The defendant appeals claiming that the statements were not independently trustworthy because they were inconsistent.

4. Issue: Whether the statements should be admissible under the catchall exception as having guarantees of trustworthiness.

5. Holding: Yes.

6. Majority Reasoning: The trial court's admission of evidence under 803(24) is a matter of discretion. To be admissible, it must satisfy 5 criteria: 1. it must have circumtantial guarantees of trustworthiness, 2. it must be offered to prove a material fact, 3. it must be the best evidence available, 4. justice must be served by its admission, and 5. the proponent must give notice to the adverse party. Here, the statements met each of the requirements and the trial court therefore did not abuse its discretion. Her description was complete enough that it could only have been made by one who observed the events. It also was in the interest of justice, and the best evidence, because she was not able to testify. There was also corroborative evidence of her fear around men, her fear of going home, and fear of examination.

7. Dissent Reasoning: The inconsistencies in the statements were too great. The foster-mother who interviewed her was leading her, and was also not impartial. The medical evidence does not corroborate the testimony because it is inconclusive. Thus, the case should be retried without the girl's exam testimony.

** Ohio v. Roberts, (1980)

2. Facts: Roberts was charged with stealing credit cards. At his preliminary hearing, Anita testified that the knew Roberts, and that she let him use her apartment while she was away. However, Anita denied that she gave him permission to use her credit cards.

3. Procedural Posture: At the time of trial, Anita was unavailable. The trial court allowed her prior testimony, and Roberts was convicted. The court of appeals reversed, and the state supreme court affirmed, reasoning that the preliminary hearing testimony was inadmissible because "the mere opportunity to cross-examine" at the preliminary hearing did not satisfy the Confrontation Clause.

4. Issue: Whether the admission of the preliminary hearing testimony was a violation of the confrontation clause.

5. Holding: No.

6. Reasoning: The confrontation clause operates in two ways to restrict the range of admissible hearsay. First, it establishes a rule of necessity. This requires that the state produce or show the unavailability of the witness. Second, it requires that the evidence have sufficient "indicia of reliability" to be admissible. In this case, the prior opportunity to cross-examine, and indeed the actual prior cross-examination, show that the evidence has sufficient indicia of reliability. Also, the state has shown a sufficient good faith effort to locate the witness, but she is unavailable. Thus, there has been no constitutional violation in allowing the testimony.

** Idaho v. Wright, (1990)

2. Facts: A 2 1/2 year-old girl and a 5 1/2 year old girl were allegedly sexually molested by their parents. At a physical examination, the younger daughter answered the question "Did daddy touch you with his pee-pee" in the affirmative, and volunteered that the daddy did that more to his older sister.

3. Procedural Posture: The trial court found that the 2 1/2 year old was unable to testify, and allowed the examining physician to testify as to the identification made by the 2 1/2 year old under the catchall exception of 803(24). The defendant appealed claiming a violation of the Confrontation Clause, and the state supreme court reversed.

4. Issue: What is the proper standard under which to admit hearsay evidence which does not fall under an exception which is "firmly rooted" for purposes of the Confrontation Clause.

5. Holding: "To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial."

6. Majority Reasoning: Statements admitted under a firmly rooted hearsay exception are so trustworthy that cross-examination would add little to their reliability. To be admissible under any other exception, the evidence must be at least as reliable as that admitted under the firmly rooted exceptions. As such, it must have "particularized guarantees of trustworthiness" of the same nature as those firmly rooted exceptions; namely, that cross-examination would add little to its reliability because it is inherently reliable. Thus, the state may not take into account corroborating evidence in determining whether a hearsay statement is admissible under a non-firmly rooted exception, because corroborating evidence is irrelevant to the inherent trustworthiness of the statement itself. Corroborating evidence only goes to whether the error in admitting the hearsay statement was prejudicial.

7. Dissent Reasoning: To disregard corroborating evidence in determining when a hearsay statement is sufficiently reliable to be admitted goes against common sense.

** Chambers v. Mississippi, (1973)

2. Facts: Chambers was among a crowd of persons who were attempting to free friend from imminent arrest. During the scuffle with police, several shots were fired from a .22 handgun, 4 of which hit an officer named Liberty. Before liberty died, he took aim and shot Chambers in the back of the head and neck as he ran away. Another man, Mc Donald, confessed to the crime in a written statement, and allegedly made other oral confessions to friends shortly after the shooting.

3. Procedural Posture: The trial court, under Miss. law, refused to allow Chambers to bring in the out-of-court oral confessions of Mc Donald, because Miss. did not have a hearsay exception for declarations against penal interest. Also, the trial court did not allow the confessions in to impeach Mc Donald's retraction of the admission, because of a state law forbidding impeachment of a non-"adverse" witness, and Mc Donald did not "finger" Chambers, and so was not "adverse."

4. Issue: Whether the refusal to admit the out of court admissions of Mc Donald was an unconstitutional violation of 14th amendment procedural due process.

5. Holding: Yes.

6. Reasoning: The 14th amendment guarantees fundamental fairness in the conduct of a criminal trial. This includes the right to confront and cross-examine witnesses. Since the oral confessions were made spontaneously to close acquaintances shortly after the murder occured, and since they were corroborated by independent evidence, they had sufficient guarantees of trustworthiness to be admissible. Thus, the exclusion of this evidence, coupled with the inability to cross-examine Mc Donald, denied Chambers a fair trial.

Problem 5-A: Two men get in a fight. The issue is who started the fight. The defense calls a witness who is offers to testify that the other person was "a belligerent, fight-picking fellow with a short fuse."

Issue: Whether the statement is admissible under FRE 404 and/or 405.

Answer: Yes. Under 404(a)(2), the statement is admissible because it is evidence "of a pertinent trait of character of the victim of the crime offered by an accused." It is relevant because if the victim were belligerent in general, it is more likely that the self-defense claim has merit.

Problem 5-B: Same fight as in 5-A, except the prosecution (first) offers witness testimony that the defendant is "agressive...and prone to violence," and the defense (second) offers witness testimony that the defendant is "peaceable...and not likely to start a fight."

Issue: Whether the statement is admissible under FRE 404/405.

Answer: No to the prosecutor, yes to the defendant. 404(a)(1) only allows the prosecutor to introduce evidence of the defendant's character to rebut character evidence introduced by the defendant. However, 404(a)(1) allows the defendant to bring in evidence of his good character.

Problem 5-D: Same fight as above. At trial, after the Reverend testifies that the defendant is peaceable, the prosecutor asks the following question on cross-examination: "Did you know that the defendant beat his wife?"

Issue: Whether the question is proper cross-examination of character evidence under FRE 405.

Answer: Yes. FRE 405 allows "inquiry...into relevant specific instances of conduct." However, the judge might require a limiting instruction. The justification is that once the defendant "puts his character into issue," the prosecution is free to question with the latitude that the rules give him. Also, if the witness hasn't heard of these other offenses, his testimony is weakened.

Problem 5-E: Leslie claims to have been date raped by Fred after a fraternity party. Fred claims consent, and offers testimony that he and Leslie previously had sexual relations, testimony by a friend Greg that "Leslie is very sexually active" and "known as an easy mark", and another friend Thomas, that he had sex with Leslie earlier on the night in question.

Issue: Whether the testimony of Fred, Greg and Thomas each are relevant and admissible under FRE 412 (rape shield rule).

Answer: The testimony of Fred is admissible under 412(b)(1)(B) because it is evidence of "specific instances of sexual behavior" with the accused "offered to prove consent." However, Greg's testimony, although reputational, is barred under 412(a)(1) as being offered to prove that Leslie "engaged in other sexual behavior", and 412(a)(2) as being offered to prove "sexual predisposition." Also, Thomas' remarks are inadmissible under 412(a)(1) as being offered to prove "other sexual behavior." However, Fred might argue that at least Thomas' remarks are admissible under 412(b)(1)(A) to prove that Thomas was "the source of semen, injury, or other physical evidence."

Problem 5-F: Same fight as above. At trial the defense offers testimony that the other other person "started at least six other fights in the last year or so, mostly in" the location of this place. The prosecutor objects, on the ground that 1) the defense can't offer specific instances, 2) character isn't in issue here, and 3) that the witness is testifying on direct, not cross, and so rule 405 doesn't allow him to testify that way.

Issue: Whether the testimony is admissible.

Answer: FRE 405 allows testimony of specific instances of conduct only 1) on cross-examination, or 2) when character is "an essential element of a charge. claim, or defense." Here, the defendant's character is in issue because of his claim of self-defense. Thus, the testimony of specific instances should be allowed.

Problem 5-G: A former roomate of the defendant approaches police as a volunteer informant, and sets up a deal with an undercover officer to buy a large amount of cocaine from the defendant. At the proposed exchange, the defendant does not sell cocaine to the undercover buyer, but he is carrying a small vial of cocaine. At trial, the prosecution offers testimony by the former roomate of numerous previous drug sales. The defendant claims that the aborted sale was a scam between him and his former roomate to take the buyer's cash without selling the cocaine. Thus, the issue is whether he intended to sell drugs.

Issue: Whether the testimony concerning the defendant's prior drug sales are admissible.

Answer: Yes. Prior acts are admissible under 404(b), not to show the propensity of the defendant to sell drugs, but rather that he had the intent to sell drugs. Furthermore, if the defendant claims entrapment (to nullify intent), then he should not be heard to complain of a searching inquiry into his own prior conduct bearing on intent). However, it still may be excluded under 403 as being being more prejudicial on the propensity to sell drugs than probative on the issue of intent.

Problem 5-H: Two men are accused of robbing a bank. Eyewitnesses testify that one of the men ran in hunched over, that two men were seen arriving in separate light and dark cars, in the morning. One of the men is identified by an eyewitness, and the other confesses to eight other similar robberies using the same "modus operandi."

Issue: Whether the confession of the other man is admissible.

Answer: Yes. It is evidence of prior crimes, but is nevertheless admissible under 404(b) as evidence of "preparation", "plan", "motive", or "identity" of the defendant.

Problem 5-I: An uncle is charged with life insurance fraud after collecting over $1 million on the death of his niece, who had muscular dystrophy. The prosecution sought to introduce evidence of the flagrant manner in which he spent the money as evidence of his motive and intent to commit the fraud.

Issue: Whether the evidence of other acts (i.e. big spending) is admissible as relevant.

Answer: Yes. Although the probative value may be slight, big spending is consistent with the reception of a "windfall", similar to gambling winnings. To spend such a large amount of money so flagrantly is a sign that it was easily won. As such, it is more likely that the uncle was involved in the fraudulent concealment of the fact that the niece had a disease. However, the judge may still believe that it is too prejudicial and exclude it under 403.

Problem 5-J: One pro football player hits another from behind, paralyzing him. At the civil case, the injured player seeks to introduce evidence (in the form of testimony by other players) that the defendant is "unusually and unjustifiably" violent on the playing field and that he often throws cheap shots.

Issue: Whether the testimony is admissible in a civil trial.

Answer: General evidence of character is not admissible in a civil case, under any of the 404(a) exceptions, because they only apply to criminal cases. However, specific instances of acts are admissible to show intent. Here, there are no specific acts referred to, just general character evidence. Thus, it would not be admissible. However, if either side were to offer specific acts such as how many times the defendant had been ejected for violence, or penalized for illegal hits, it would probably be admissible.

Problem 5-K: Two cars collide, killing all of the passengers with no eyewitnesses. In the wrongful death trial, one of the parties seeks to introduce testimony that one of the drivers was "a good careful driver" as evidence that the other must have been at fault.

Issue: Whether this evidence is admissible under 406 as a habit.

Answer: No. "Good careful" driving is evidence of general character and thus inadmissible under 404(a). There is no way to characterize being careful as a habit, because habits involve mechanical, reflexive type actions.

Problem 5-L: A mechanic is injured by an exploding can of freon after he heated it in a coffee can of water in order to raise its pressure. The defendant manufacturer seeks to offer testimony by a fellow worker that he had often seen the mechanic use an immersion heater to heat the water.

Issue: Whether the evidence by the fellow worker is admissible as a habit under FRE 406.

Answer: Yes. The repeated use of a certain tool for a certain purpose can be properly characterized as a habit, rather than a character trait. The evidence should be admissible as long as the witness had observed enough occurreces that it was a habit.

Problem 5-M: An illegal immigrant was deported, and returned, subjecting himself to higher penalties for re-entry. He claims that he was not served with the papers telling him of the higher penalties. As proof that he was served, the government seeks to introduce testimony by an INS officer that it is the standard procedure of the agents to sign the warrant, get a thumb print, and give the notice to the deported person.

Issue: Whether the evidence of the normal process of deportation is allowable here to show that it was followed in a particular instance.

Answer: Yes. The evidence does not need to be corroborated under FRE 406.

** Flaminio v. Honda Motor Co., (1984)

2. Facts: Flaminio was injured when the Gold Wing motorcycle he was riding began to wobble, and he lost control.

3. Procedural Posture: The trial court denied Flaminio's offer of evidence that Honda had thickened the front forks of the motorcycle after his accident, under 407's exclusion of subsequent remedial measures. Flaminio appeals, arguing that the evidence was admissible because 1) it was offerred to impeach any testimony by Honda that they would never have thickened the struts, and 2) that Rule 407 should not apply in products liability cases, and 3) the federal court was bound to follow state law interpretation of whether subsequent remedial measures were admissible because it is a matter of substantive law (Erie doctrine).

4. Issue: Whether FRE 407 applies in products liability cases.

5. Holding: Yes.

6. Majority Reasoning: There was no offer by Honda that they would not have thickened the struts, so the evidence can not be used to impeach them. Furthermore, such an exception would swallow up the rule. Also, the policy behind the rule is to encourage people to make things safer. Since a strict liability defendant still has a motivation to make things safer, he would be discouraged from doing so if evidence of subsequent remedial measures was used to show that the product was inherently unsafe. Thus, the rule applies in products liability cases. Lastly, the rule is more procedural than substantive, and thus within the power of Congress under the necessary and proper clause, avoiding a conflict with the Erie doctrine.

Problem 5-N: A seller of herbicides promises a farmer that he will take care of any damages to the crop, by billing the manufacturer.

Issue: Whether this is an offer of settlement and thus excludable under FRE 408.

Answer: No. It is a straightforward admission by a party opponent that they would pay for damages. There was not a negotiation of settlement of a claim.

** United States v. Fowler, (1982)

2. Facts: Lightly got a cut on his hand during a fight in a prison in which one man was stabbed badly. Lightly claims that he was breaking up the fight, and another inmate McDuffie, was the sole attacker. McDuffie was prepared to corroborate that story. However, McDuffie was rule incompetent to stand trial, and criminally insane.

3. Procedural Posture: At trial, the judge denied McDuffie's testimony, finding him to be incompetent to testify.

4. Issue: Whether a person who understands the nature of the oath and has personal knowledge of an event, and is able to communicate that in testimony is nevertheless incompetent to testify if found to be criminally insane.

5. Holding: No.

6. Reasoning: Every witness is presumed to be competent to testify under FRE 601 unless he can be shown not to have personal knowledge, the capacity to recall, or the understanding of the duty to testify truthfully. Here, the witness was not excluded by any of the exceptions. The rule applies equally to insane persons.

** United States v. Fowler, (1979)

2. Facts: Fowler was charged with tax evasion.

3. Procedural Posture: At trial, Fowler represented himself. He refused to either swear or affirm that he would tell the truth. However, he did testify, and did claim to be a truthful man who would not lie to stay out of jail.

4. Issue: Whether it was error to allow Fowler to testify on his own behalf without swearing or affirming.

5. Holding: No.

6. Reasoning: FRE 603 is clear and simple. It requires that no witness has the right to testify but on penalty of perjury and subject to cross- examination. Thus, the court did not err in allowing him to testify without saying the oath, because he was still subject to penalties for not telling the truth.

** Ricketts v. Delaware, (1985)

2. Facts: The defendant was charged with raping a 6-year old girl.

3. Procedural Posture: The trial court conducted voir dire on the child who stated that she knew what a lie was, that it was bad to tell a lie, and that she promised to tell the truth during testimony. The defendant appeals claiming that the girl was not competent to testify, without an adequate foundation as to her competency as a witness.

4. Issue: Whether a child is a competent witness if she can understand the difference between the truth and a lie, and promises to tell the truth.

5. Holding: Yes.

6. Reasoning: The Delaware rules are identical to the federal rule 601. As such, every person is presumed competent to be a witness. This is true even for younger witnesses. The concerns of mental and moral capacity go only to the weight of the evidence, and are the concerns of the jury. Here, the child promised that she would testify truthfully, and this was sufficient affirmation as required under the rules.

** Rock v. Arkansas, (1987)

2. Facts: The defendant's husband was shot while they were fighting. The defendant could not remember much about the shooting until she was hypnotized, and thereafter claimed that she did not have her finger on the trigger.

3. Procedural Posture: The trial court refused the post-hypnotic testimony to come in, applying the state's per se rule against post- hypnotic testimony.

4. Issue: Whether excluding a defendant's post-hypnotic testimony in a criminal case is a violation of the defendant's constitutional right to testify on her own behalf.

5. Holding: Yes.

6. Reasoning: Hypnosis can lead to unpredictable results. However, the per se rule against allowing it precludes its use even when there is corroborating testimony to show its accuracy. As such, the per se rule is unconstitutional because it excludes at least some reliable testimony of the defendant.

Problem 6-A: A jury is instructed not to read newspaper accounts of the trial, or to discuss the case with any person. The judge receives information that one of the jurors has violated these rules, and outside of the presence of the jury, questions the juror regarding these allegations.

Issue: Whether FRE 606(a) bars the judge's questioning of the juror.

Answer: No. The rule only bars the juror's testimony before the rest of the jury, not before the judge.

** Tanner v. United States, (1987)

2. Facts: Tanner was convicted of a crime. After his trial, the defense sought to introduce evidence that many members of the jury were drinking and taking drugs during recesses, and so they were not competent to return a verdict.

3. Procedural Posture: The trial judge denied the defendant's motion for a new trial and for interviewing of the jurors. The defendant claims that failure to allow evidence of jury misconduct violated his right to a trial by a competent jury.

4. Issue: Whether the interviewing of the jurors to determine whether they were under the influence of alcohol or drugs was a violation of FRE606(b).

5. Holding: Yes.

6. Reasoning: Substance abuse does not fall into the category of "outside influence" as recited in 606(b). As such, the jury is not subject to examination, and the verdict is not subject to collateral attack.

Problem 6-B: A juror sends a letter to the judge stating that they disregarded his instruction, and considered the defendant's refusal to take the stand as an admission of guilt.

Issue: Whether the juror who wrote the letter may be questioned regarding its content.

Answer: No. FRE 606(b) precludes the testifying of the witness regarding the mental processes he used in coming to the decision.

Problem 6-C: The jury misinterprets a formula for the calculation of damages, and returns a verdict for an outrageous amount.

Issue: Whether the juror's affadavits in regards to the mistake are admissible.

Answer: No. However, the judge has the ability to grant a new trial from the obvious error that the jury made.

Problem 6-D: Two jurors do an independent "fact finding" visit to the accident site.

Issue: Whether the defense attorney may make inquiry of the two jurors regarding the truth of the report of their misconduct.

Answer: Yes. A visit to the accident site is an "outside influence" that was "improperly brought to bear" upon the juror.

Problem 6-E: A juror has knows from his own experience about certain facets of the case, and shares that information with the other jurors.

Issue: Whether the attorneys may question the jury with regard to whether they were influenced by the one juror's personal knowledge.

Answer: No. Personal knowledge that causes a juror to have a particular opinion is not an outside influence under 606(b).

Problem 6-F: An IRS agent is called to testify that she audited 160 returns made by a certina tax preparer and that 90 to 95 percent of them had overstated itemized deductions. However, she got this information for the individuals for whom the returns were prepared.

Issue: Whether the testimony can be received in light of FRE 602's personal knowledge requirement.

Answer: Yes. Whether an itemized deduction was overstated is the business of the agent to discover. If the individual can not support the deduction, then it is overstated. The IRS agent, after conducting the audit, has personal knowledge of whether the deduction was overstated.

** Baker v. State, (1977)

2. Facts: The defendant was arrested as a suspect in a beating. On the way to the hospital, the police officer transporting the victim took the victim to identify whether the defendant was involved. There was evidence in a police report made out by another officer that the victim stated that the defendant was not one of those who attacked him.

3. Procedural Posture: At trial, the defense, on cross-examination of the officer who took the victim (now dead) to the hospital, attempted to have the officer testify as to whether the victim had exculpated the defendant. However, since the officer could not remember, the defense gave him copies of the arresting officer's report to read in order to refresh his memory. The trial judge prevented the officer from reading the report, apparently applying the strict standard for the hearsay exception of past recollection recorded (i.e. the testifying officer did not have personal knowledge because he didn't write the report).

4. Issue: Whether a report written by another police officer may be used by the testifying officer to refresh his memory, even though the testifying officer may have no personal knowledge of the contents of the report.

5. Holding: Yes.

6. Reasoning: The trial judge confused the standard of past recollection recorded (which requires that the writing be determined to be competent) with the concept of present recollection revived. In past recollection recorded, the writing itself is read into evidence. However, with present recollection revived, it is only a means to jog the memory of the witness, who is testifying thereafter under oath based on his own personal memory, not on the contents of the writing. Anything may be used to jog a memory (songs, smells, writings, etc), subject only to the discretion of the judge in the interest of proper decorum and avoiding wasting of time. In this case, the error was clearly prejudicial.

** James Julian, Inc. v. Raytheon Co., (1982)

2. Facts: Julian seeks injunctive relief and damages under the Sherman act. In the course of preparing witnesses for depositions by Raytheon, Julian assembled a binder of important documents, and used it to refresh the memories of the witnesses before deposition.

3. Procedural Posture: Julian was ordered to turn over the file during discovery as a writing used to refresh memory under FRE 612. Julian claims that the binder contained only important documents, and was therefore protected work product. As such, it should be immune from disclosure under FRE 612.

4. Issue: Whether use of protected work product documents to refresh a witness' memory before deposition is a waiver of that protection.

5. Holding: Yes.

6. Reasoning: The legislative history of FRE 612 indicates that Congress intended to expand discovery of privileged documents used to refresh the witness' memory to those used before testimony, subject to the discretion of the judge on a case by case basis. Without the binder, the defense can not know what material was used to "educate" the witness. Thus, since the plaintiff made the decision to use the binders, he has waived protection under FRE 612.

Problem 7-A: During trial, the plaintiff obtains an order from the court excluding all witnesses. However, right before a certain witness is to be called by the defense, the plaintiff learns that the defense has (legally) bought trial transcripts. The plaintiff suspects that the defense read important portions of prior witness' testimony to the key witness about to be called.

Issue: Whether the court may bar the key witness from testifying on the ground that sharing of the transcripts violates the court order of exclusion.

Answer: The court should allow the witness to testify unless the plaintiff can show by a preponderance that the transcripts were used to coach the witness. However, an alternate approach would be for the court to presume prejudice, and let the defense rebut. If the first path is taken, the court should let the plaintiff ask the witness on cross- examination whether he was shown the transcripts before he testified.

** United States v. Abel, (1984)

2. Facts: Abel and two others were arrested for bank robbery. One of his alleged cohorts, Ehle, pled guilty and promised to testify against Abel in return for a light sentence.

3. Procedural Posture: At trial, Abel produced a witness, Mills, that testified that Ehle had told him that he was going to falsely accuse and frame Abel. The trial court allowed the prosecution to put Ehle back on the stand to testify that Mills, Ehle and Abel were all part of the same secret prison gang whose purpose it was to lie for eachother. The court of appeals reversed, holding that the testimony unduly prejudiced the defendant because mere membership in an illegal organization does not have any probative value with regard to veracity.

4. Issue: Whether the admission of evidence tending to show bias on the part of a witness is inadmissible if it also tends to show that the defendant was lying.

5. Holding: No.

6. Reasoning: The membership of Mills in the prison gang was sufficiently probative of Mills' possible bias towards Abel to warrant its admission, and was within the discretion of the trial court. Even though the rules do not expressly refer to the admissibility of extrnsic evidence to show bias, this evidence is otherwise covered by 402's allowance of "relevant" evidence. Proof of bias is relevant, and thus admissible. Even though the evidence also tended to show that the defendant and his witness were part of an illegal organization, and thus probably lying on the stand, it is still admissible for the purpose of showing bias. Also, even though membership is not sufficient to convict, it is sufficiently probative to be relevant. The trial court took sufficient steps to limit its prejudicial value.

Problem 8-A: General Motors hires an expert witness to testify in a product liability suit. On direct, the defense brings out the fact that they are paying him $400 per day. On cross, the plaintiff wishes to go into further detail about the total of payments, and how much the expert witness relies on these payments for his living.

Issue: Whether the further inquiry into the total of payments is admissible.

Answer: Yes. It is probative on the issue of bias. It gives the jury an idea of the significance of the payments.

** Simmons, Inc. v. Pinkerton, (1985)

2. Facts: Simmons hired a security guard through Pinkerton. A fire started when the guard was on duty.

3. Procedural Posture: Simmons brought a negligence case. At trial, Simmons asked the guard whether he had lied to his superiors about taking and passing a lie detector test, and the guard admitted that he had lied.

4. Issue: Whether, given the ban on impeachment by contradiction as to collateral matters, and the basic rule against admission of lie detector test results, the trial judge should have allowed the testimony of the guard admitting that he lied.

5. Holding: Yes.

6. Reasoning: The collateral evidence rule does not limit the scope of all types of impeachment by cross-examination, it merely precludes extrinsic evidence being admitted to impeach by contradiction. Because the veracity of a witness is always an important consideration, the witness may be cross-examined with respect to whether he has lied. Rule 608(b) allows cross examination of a witness about specific instances of her past conduct, if probative on truthfulness, but prohibits proof by extrinsic evidence. Here, the guard admitted lying. Had he not done so, the plaintiff could not have brought in extrinsic evidence to prove that he had.

** United States v. Lipscomb, (1983)

2. Facts: Lipscomb was charged with possession of heroine.

3. Procedural Posture: At his first trial, Lipscomb testified and had been impeached by cross-examination concerning his conviction for robbery eight years earlier. Lipscomb, in his second trial, sought to have the judge prevent such cross-examination with respect to prior convictions of himself, and his three defense witnesses.

4. Issue: Whether it was proper under FRE 609 to allow cross-examination of the defendant and the witnesses with regard to their prior convictions.

5. Holding: Yes.

6. Reasoning: Rule 609(a)(1) requires a balancing of the probative value against the prejudicial value of prior conviction evidence of the defendant himself, but only requires that the witnesses prior crime be punishable by > 1yr in prison. Any prior crime of untruthfulness may be admitted. Also, in contrasting with 609(b), which requires specific inquiry by the judge into the underlying facts, 609(a)(1) does not require such and inquiry. Thus, the judge has the discretion to determine how far to investigate a prior conviction in performing the balancing of probativeness vs. prejudice. As such, the judge may allow this evidence.

Problem 8-B: Dennet is arrested for a bank robbery. He has a prior robbery conviction. The prime witness for the defense, and the prime witness for the prosecution both have prior robbery convictions.

Issue: Whether evidence of the prior convictions should be allowed as to each witness and the defendant.

Answer: Rule 609 provides that prior conviction for impeachment of a witness is admissible subject to Rule 403, as long as it was punishable by >1 yr imprisonment. So the prior conviction of each of the witnesses should be allowed unless its probative value is "substantially outweighed" by its prejudicial effect (Rule 403). Here, there appears to be no great prejudicial effect, but the prior conviction of the defense witness is probably subject to more careful balancing than that of the prosecution. However, with regard to the defendant himself, Rule 609 states that the probative value must "outweigh" the prejudicial effect. As such, the balancing standard is higher. Since the prior conviction was so similar to the present charge, there is great danger of prejudice. Thus, it should probably stay out.

Problem 8-C: Pratt sues Denko for personal injury damages from a car accident. After Pratt testifies, Denko seeks to impeach him by bringing out prior felony convictions for manslaughter and forgery.

Issue: Whether the evidence of the prior convictions is admissible in either case.

Answer: Only for the forgery. Rule 609(a)(2) provides that crimes involving dishonesty or false statement are admissible, regardless of the punishment. However, since a prior manslaughter conviction is probably excludable under Rule 403 as lacking sufficient probative value with regard to truthfulness.

Problem 8-D: Durston is charged with assault, and testifies to an uncorroborated alibi at trial.

Issue: Whether any of his 5 prior convictions should be admissible.

1. recent falsifying of motel register - Yes. 609(a)(2) dishonesty.
2. recent drug sale - No. 609(a)(1) not probative on veracity.
3. recent conviction for larceny - Depends on underlying facts, but may be probative on veracity 609(a)(1).
4. first degree armed assault - No. 609(a)(1) great danger of prejudice, very little probative value on veracity.
5. forging a bank application, released from prison >10 years ago - No. 609(b) time limit. But, depends on underlying facts, may be admissible if, "in the interest of justice", probative value "substantially" outweighs prejudice.

Problem 8-E: Allen is charged with a burglary, and testifies that he did not do it. The prosecutor attempts to bring out specific instances of lying on a tax return under 608(b). However, since these prior acts resulted in a conviction, the defense wants to limit the inquiry on cross-examination only to the fact that he had a prior conviction.

Issue: Whether the underlying acts which lead to a prior conviction may be admissible in cross-examination of the defendant when the acts are probative on truthfulness, and the prosecutor does not mention the conviction.

Answer: The underlying acts are probative on truthfulness, but only minimally so because most people cheat on their taxes. If the prosecutor is allowed to ask them on cross under 608(b), then he can not introduce any extrinsic evidence of them, or of the subsequent conviction because 608(b) bars use of extrinsic evidence to impeach as to specific instances. Thus, the defendant can merely deny the allegations, and that would be the end of it.

** Luce v. United States, (1984)

2. Facts: Luce was charged with the federal crime of possession of drugs with intent to sell. He had a prior state conviction of possession of a controlled substance.

3. Procedural Posture: Before trial, Luce made a motion in limine to preclude the government from using the evidence of the prior conviction to impeach him, should he take the stand. However, he made no committment to take the stand, nor did he reveal what his testimony might be should he take the stand. The motion was denied, and Luce did not take the stand. Luce was then convicted, and he appeals citing error in denying the motion in limine.

4. Issue: Whether a defendant who does not testify in a federal criminal case is entitled to review of an adverse ruling on a motion in limine to exclude evidence of prior convictions under FRE 609(a).

5. Holding: No.

6. Reasoning: If the defendant would have testified, he would be entitled to review. However, since he did not testify, it is only speculation whether he would have been prejudiced by the impeachment. There is no way to tell whether he decided not to testify because of the prior conviction, or for some other reason. Also, there is no way to tell what his testimony would have been. Also, there is no way to tell whether the government would have used the prior conviction to impeach him. Lastly, there is no way to tell whether the judge would have changed his ruling on the motion during the course of the trial. There is simply not enough factual background in order to review such a case. Thus, the criminal defendant must testify in order to let the trial develop.

Problem 8-F: Welch testifies on direct that Plimpton's attack on Dirk was unprovoked. During cross-examination, adverse counsel makes no inquiry into any prior statements. Welch is then dismissed. Adverse counsel then calls a police officer to testify that Welch told him that the attack may have been provoked. [note, this is not hearsay because it is not dependent on the truth of the matter asserted. It does not matter whether the attacked was provoked. The evidence of the prior inconsistent statement is being used to discredit the witness, and it is only being offered to show that it is inconsistent, not that it is true.]

Issue: Whether counsel may bring up a prior inconsistent statement of a witness for the first time on direct examination of another witness.

Answer: Yes. 613(b) allows extrinsic evidence [here, the police officer's testimony] of a prior inconsistent statement at any time, as long as the witness is afforded an opportunity to explain or deny it, or if the interests of justice otherwise require. Unless Welch is permanently gone, the police officer's testimony should be allowed.

** United States v. Webster, (1984)

2. Facts: Webster was charged with robbing a bank. King pled guilty to the crime, and made statements to an FBI agent that Webster was involved.

3. Procedural Posture: At trial, the prosecution called King to testify, and he denied that Webster was involved. The prosecution then put the FBI agent on to impeach King with the prior statement [which also tended to show that Webster was guilty - a hearsay prohibited purpose]. Webster was convicted and appeals the ruling allowing the prosecution to call King because the sole purpose appeared to be putting him on in order to bring in the otherwise inadmissible hearsay statements as impeachment.

4. Issue: Whether a prosecutor may impeach a witness in good faith if the witness' prior inconsistent statement would otherwise be prohibited hearsay.

5. Holding: Yes.

6. Reasoning: It would be an abuse of FRE 607 for a prosecutor to call a witness that it knew would not give it useful evidence, just so it could introduce otherwise hearsay evidence for the non-hearsay purpose of impeachment. However, here the prosecution offered in good faith to voir dire King outside the presence of the jury, and the defense refused. The defendant still has the opportunity to argue that the impeaching statement be excluded under 403 because of the jury's inability to ignore its substantive use, and use it only for impeachment purposes.

** Harris v. New York, (1971)

2. Facts: Harris was arrested for possession and sale of herion. An undercover officer made the arrest when Harris bought for him. At the police station, before they read Harris his Miranda warning, Harris made incriminating statements that he had sold to the officer on 2 occasions.

3. Procedural Posture: At trial, the trial judge ruled the prior inconsistent statements inadmissible for the prosecution's case in chief as being clearly unconstitutional. However, on cross-examination, the prosecutor asked the defendant about the prior statements in an effort to impeach him.

4. Issue: Whether prior inconsistent statements made before the giving of a Miranda warning are admissible for the purpose of impeaching the defendant.

5. Holding: Yes.

6. Majority Reasoning: The statements in Miranda implying a bar to use of an uncounseled statement for any purpose are dicta. To prohibit the prosecution from impeaching the defendant with otherwise inadmissible statements is to take away a prime method of ensuring his truthfulness on the stand. The defendant does not have the right to use the failure of the Miranda warning to his advantage by perjuring himself. Had the inconsistent statements been made to someone else, they would have clearly been admissible.

7. Dissent Reasoning: The statements allowed in this case were too prejudicial because they were directly implicating of guilt. It is unfair for the prosecution to be able to use uncounseled statements against the defendant in cross examination that they have illegally obtained and therefore can not use in their case in chief. This effectively denies the defendant the right to testify on his own behalf because he can not be free from the prejudice of the uncounseled statements. It also cuts away at the deterrence of police officers to conduct legal interrogations.

** Jenkins v. Anderson, (1980)

2. Facts: Jenkins stabbed and killed a man. He claimed that it was in self defense. However, he made no mention of the stabbing to anyone for two weeks.

3. Procedural Posture: At trial, the defendant tetsified on his own behalf, and the prosecution brought out his pre-arrest silence on cross- examination to impeach his story that it was self-defense.

4. Issue: Whether use of pre-arrest silence to impeach a testifying defendant violates the privilege against self-incrimination.

5. Holding: No.

6. Reasoning: The defendant voluntarily took the stand. As such, he is obligated to tell the truth. He is also subject to cross-examination with regards to any issue reasonably related to his direct examination. The interests of justice to ascertain the truth become relevant and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination. However, prior silence may not be used for impeachment purposes unless it is probative of credibility and the prejudicial value is outweighed by the probative value. Also, on these facts, it is clear that no coercion or governmental action caused the defendant to remain silent.

Problem 8-G: Oswald is charged with a robbery. Ardiss, the owner of a local restaurant, testifies that Oswald was at the restaurant on the night in question. On cross, the prosecutor gets Ardiss to testify that Oswald was in the restaurant every day for a period prior to the robbery. He then offers testimony by a Police Officer that he saw Oswald elsewhere prior to the robbery, and by a waiter in the restaurant that he never saw Oswald in the restaurant.

Issue: Whether either witness' testimony may come in for the purpose of impeaching Ardiss.

Answer: Counsel may not contradict as to a collateral matter. The police officer's testimony is collateral because there is no substantive issue of where Oswald was before the robbery. The waiter's testimony is substantive (and not collateral) if he worked on the night in question.

** United States v. Havens, (1980)

2. Facts: Havens and McLeroth were stopped when McLeroth was searched in customs and found to be carrying cocaine in pockets that were sewn into a tee-shirt he was wearing. That prompted a warrantless illegal search of Havens' luggage, where a cut-up tee-shirt was found which matched the pockets in McLeroth's smuggling shirt.

3. Procedural Posture: At trial, the direct examination of Havens did not mention tee-shirts specifically, but Havens denied that he taped or bandaged or draped any drugs to McLeroth. On cross-examination, the prosecutor elicited testimony from Havens that he "had nothing to do with the sewing of cotton swatches to make pockets" on Mcleroth's tee- shirt. To impeach, the prosecutor brought in the illegally seized evidence.

4. Issue: Whether evidence suppressed as the fruit of an unlawful search may be used to impeach a defendant's testimony on cross-examination where the evidence does not squarely contradict the defendant's direct testimony.

5. Holding: Yes.

6. Majority Reasoning: The cross examination about the tee-shirt and the luggage was closely connected with, and reasonably suggested by, the direct examination. The defendant has the obligation to tell the truth in response to proper questions, and may not ues illegally seized evidence as a shield to lie. Impeachment is a device which serves to divine truth. Thus, the balance between the constitutional rights of the defendant and the interests of justice must be struck in favor of impeachment by illegally obtained evidence when the cross-examination is properly related to the direct examination [but not if the evidence is "smuggled in" by eliciting false statements on cross-examination that were not sufficiently related to the direct testimony.]

7. Dissent Reasoning: The defendant must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured. As such, some portion of the direct testimony of the defendant must rely on the government's inability to challenge his credibility before the evidence can come in. The majority reads the allowable cross-examination broadly enough that any prosecutor would be able to get in otherwise excludable evidence.

Problem 8-H: Young is charged with selling narcotics. On direct he testifies that he did not commit the offense, and was elsewhere. On cross-examination, the prosecutor asks "Have you ever sold narcotics before."

Issue: Whether the cross-examination question was proper.

Answer: No. It goes beyond the scope of the direct examination (611(b)) and appears to be an effort to elicit a statement solely for the purposes of impeachment, because extrinsic evidence of prior bad acts is otherwise excluded under Rule 608. If Young denied selling any narcotics on direct examination, the prosecutor would be able to prove prior convictions by extrinsic evidence under 609.

** United States v. Medical Therapy Sciences, (1978)

2. Facts: Berman was charged with fraud.

3. Procedural Posture: Russell testified against Berman, and testified on direct concerning her past convictions and allegations of embezzlement in an effort to diffuse an anticipated attack by the defense. On cross-examination, the defense put on other witnesses in order to go into more detail about her past conduct. Then the prosecution rehabilitated Russell by bringing on witnesses to her veracity and truthfulness. Berman was convicted, and appeals claiming that the prosecution was forbidden to bolster their witness since it was they who brought out the impeaching evidence on direct.

4. Issue: Whether Rule 608(a) permits the use of bolstering a witness' veracity when it has been impeached on direct in an effort to diffuse an anticipated, and actual, defense attack on veracity.

5. Holding: Yes.

6. Reasoning: Rule 608 itself contains no limitation that precludes the party from offering character evidence under circumstances where it anticpates impeachment. Although a party may not bring out impeaching facts on direct solely for the purpose of getting in character witnesses, it may bring in character witnesses to bolster the credibility of its impeached witness if the defense attacks the witness' credibility. Here, the impeachment on direct was brief, and the defense attack was severe. Thus, the judge was within his discretion to find that the defense attack was an attack on character for veracity.

Problem 8-I: FBI undercover agent Turner arranges a heroin sale with two women, Clair and Arla. At trial, the FBI agent testifies that it was Arla who handed him the heroin. However, on cross-examination the defense implies that the FBI agent forgot, or had a bias against Arla which led him to fabricate the story. The prosecution offers a tape of the FBI agent speaking directly after the arrest which is consistent with his in-court testimony.

Issue: Whether a prior consistent statement may be admissible to rehabilitate a witness who is charged with recent fabrication.

Answer: Yes. A prior consistent statement is not hearsay under 801 when used to rebut an attack of recent fabrication. As such, it can come in substantively for the truth of its contents. Furthermore, it is being offered here for the non-hearsay use of rehabilitation. It is proper rehabilitation because the charge of forgetfulness may be rebutted by showing that his story was the same then as now.

Problem 9-A: Cox showed his girlfriend a newspaper account of a car bombing as proof that he "had a friend" who could blow up cars for $50. At trial, she testified that it was her impression that he was involved based on his showing her the article, even though he said it was a "friend" who blew up the car.

Issue: Whether her opinion on Cox's involvement based on his conduct is admissible in this case.

Answer: Rule 701 requires that the lay witness' testimony be rationally based on her perception, and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Here, the witness has already stated the facts that her opinion is based on, and it is not helpful for the jury to know that she drew the conclusion that he was involved. They can decide that for themselves without her help.

Problem 9-C: was injured due to complications arising after an open heart surgery. The brings on an expert witness doctor to testify that, on the basis of reading what a resident (not present) wrote on the chart about the tube falling out during surgery, that the tube falling out caused air to enter the 's bloodstream, injuring him.

Issue: Whether the expert witness may testify as to what was written on the chart in explaining the basis for her opinion, even though it is hearsay.

Answer: Yes. Under Rule 703, an expert witness may rely on information reasonably relied upon by her profession, and resident's notes on a medical chart fall into that category. The fact that it is hearsay does not prevent an expert from relying on it. However, since the brought out the basis for the opinion on direct, and the jury may be prejudiced by the expert testimony in taking the contents of the medical record as substantively true, the judge may exclude it under 403. However, this is not likely since the chart may be admissible under the business records exception of 803, and therefore admissible substantively anyway.

Problem 9-D: At a criminal trial for DUI, the D. successfully has blood test evidence suppressed since it was taken in violation of the informed consent law. However, the prosecution calls the doctor who performed the blood test to testify that in his opinion, she was drunk, based on the blood test, which measured .24 BAC.

Issue: Whether the doctor's testimony may be admitted under Rule 703, notwithstanding the inadmissible blood tests.

Answer: No. Although the expert is able to rest his opinion on inadmissible evidence under Rule 703, a criminal case also requires that the D.'s constitutional rights be preserved. Here, the opinion that she was drunk is probably admissible, but he may not base it on the excluded evidence, because that is tantamount to introducing the evidence itself.

** Daubert v. Merrell Dow Pharmaceuticals, (1993)

2. Facts: Mother used bendictin when she was pregnant. Child has birth defects.

3. Procedural Posture: Action for strict liability. At trial, D. successfully moved for dismissal on the basis that the could not produce evidence "generally accepted" by the scientific community that there was a correlation between the use of Bendictin and birth defects. The court of appeals affirmed, applying the Frye standard.

4. Issue: Whether evidence that is not "generally accepted" by the scientific community is nonetheless admissible if it has other indicia of reliability.

5. Holding: Yes.

6. Reasoning: The "general acceptance" standard of Frye is too rigid, and results in the exclusion of valid scientific evidence that is cutting edge. Furthermore, Frye has been superseded by FRE 702, which is more liberal. However, there are several guidelines that the judge can use at the outset in making a preliminary determination of admissibility under FRE 104. "Scientific knowlege" in FRE 702 requires a grounding in the scientific method, and more than unsupported speculation. Also, the helpfulness requirement implies that the evidence must be a good "fit", i.e. that it must be scientifically valid [and therefore reliable] for the purpose that it is introduced. General guidelines to be considered are whether 1) the theory has been tested, 2) the theory has been subjected to peer review and publication, 3) the potential rate of error, and 4) the theory is "generally accepted." In any event, Rule 403 is still available to exclude confusing or misleading evidence. Vigorous cross-examination is another safeguard against bogus science in the courtroom.

Problem 9-E: Father is accused of sexually molesting 14 year-old daughter. At trial, she admits on cross that she had previously recanted the accusation. The prosecution responds by putting on an expert witness to testify to the observed behavior of molested children in general, and that the daughter fits the profile.

Issue: Whether the expert's testimony as to the abused child syndrome and the victim's consistent behavior is admissible.

Answer: Yes. FRE 702 allows such testimony. This testimony is scientifically valid, reliable and helpful to the jury in understanding whether the previous recantation was genuine.

Problem 10-A: testifies that harpsichord was undamaged when he gave it to D. moving company. D. does not dispute that it was damaged when returned, but brings on a witness to testify that it was damaged before they picked it up.

Issue: Whether the judge should instruct the jury that if they find that it was undamaged before the moving company picked it up, then they must find the moving company liable for its damage.

Answer: Yes. A presumption arises in a bailor/bailee liablity action if the bailor proves that the goods were undamaged when turned over to the bailee. The only question here is whether that basic fact has been established, because the moving company has not provided evidence that the damage was caused by an act of God or that there was no damage.

Problem 10-B: Wife sues insurance company on life insurance contract for her deceased husband, who was found in the basement, clutching the 30.06 rifle that shot him in the head. The wife produces evidence that the husband did not commit suicide, the insurance company presents evidence that the husband did commit suicide. The wife asks for a presumption of accident.

Issue: Whether, under FRE 301, the wife is entitled to an instruction on the presumption of death by accident if the jury finds her facts to be true.

Answer: No. The burden of persuasion still lies with the wife. The presumption did not shift the burden of persuasion to the insurance company, only the burden of production of evidence to counter it. The insurance company has defeated the presumption by introducing counter- evidence.

** Patterson v. New York, (1977)

2. Facts: Patterson was convicted of murder for the killing of his estranged wife's boyfriend.

3. Procedural Posture: The trial court instructed the jury that under New York statute, the prosecution was required to prove intent to kill beyond a reasonable doubt, but that the defendant was required to prove any affirmative defense, such as provocation or heat of passion, by a preponderance of the evidence.

4. Issue: Whether the New York statute is constitutional given that it requires the D. to bear the burden of persuasion with respect to the affirmative defense of provocation to mitigate murder to manslaughter.

5. Holding: Yes.

6. Majority Reasoning: At common law, the burden of proving affirmative defenses such as provocation or heat of passion rested on the defendant. This was true at the time of the adoption of the 5th and 14th amendments. Requiring the D. to prove provocation or heat of passion does not negate the proof of intent to kill. A person merely has murder reduced to manslaughter if he can prove heat of passion once the prosecutor has proven intent to kill. The state does not need to disprove beyond a reasonable doubt, every fact constituting all affirmative defenses related to the culpability of the accused.

Problem 10-C: Wife shoots husband after a fight over money. The definition of murder in her jurisdiction is purposefully killing with "prior calculation and design." She claims self-defense, which she is required to prove by a preponderance of the evidence.

Issue: Whether this is unconstitutional shifting of burden.

Answer: No. A person may still premeditate a murder, but then be placed in a position of imminent danger of death when she carries out the premeditated murder. Most murder victims can be expected to defend themselves, and thus place their attacker in imminent danger.

** Sandstrom v. Montana, (1979)

2. Facts: Sandstrom killed a friend while drunk or on drugs.

3. Procedural Posture: The trial judge instructed the jury that the "law presumes that a person intends the ordinary consequences of his voluntary acts." The jury convicted.

4. Issue: Whether the instruction given was constitutional.

5. Holding: No.

6. Reasoning: The wording of the instruction could be interpreted by a reasonable juror to mean that they were compelled to find intent unless the defendant produced contrary evidence. This would be an impermissible shift of the burden of the prosecution.

** County of Ulster v. Allen, (1979)

2. Facts: Several defendants and a 16 year old girl were stopped and searched by police, who found weapons and heroin in the car and its trunk.

3. Procedural Posture: The trial court instructed the jury that the New York statute permits them to infer from the presence of an illegal weapon inside a car that each of the occupants possessed the weapon, unless some evidence is produced to rebut that presumption. The defendants were convicted. The Court of Appeals reversed, holding the statute to be unconstitutional on its face.

4. Issue: Whether the statute, as applied by the instructions given in this case, is constitutional.

5. Holding: Yes.

6. Majority Reasoning: The instruction merely allowed a permissive inference to be made. It was not a mandatory presumption. As such, it is constitutional as long as there is a rational connection between the basic facts that the prosecution actually proved, and the ultimate fact presumed, and that the presumed fact is more likely than not to flow from the basic facts proved. Here, it is the jury's province to decide whether the gun was actually possessed by each passenger.

7. Dissent Reasoning: The presumption here is unconstitutional because it does not fairly reflect what common sense and experience tell us about passengers in automobiles and the possession of handguns.

Problem 10-D: Sam is a guest in Burnell's car. The car is stopped by police and searched, and several guns are found in the trunk. The trial judge instructs the jury that the presence of the guns may permit an inference, in the absence of any substantial evidence to the contrary, that each defendant in the car possessed the guns.

Issue: Whether the instruction is valid under Allen.

Answer: Yes.

Problem 11-A: Auto accident. asks judge to take judicial notice of the fact that it did not rain at the location on the day of the accident, and that the intersection was dry, and provides the judge with weather report as support.

Issue: Whether the judge can take judicial notice of these facts given the supporting weather report.

Answer: Yes as to the fact that it did not rain. That is a point that really indisputable. Even though the weather report is hearsay, it is probably reliable. However, since there are other reasons that the intersection may have been wet (broken water main, etc.), the judge should not take judicial notice of the fact that the intersection was dry, only that it was not covered with rain.

Problem 11-B: Westling was judged in default for failure to appear. There is a properly executed return of service filed by the Sheriff. The prosecution asks the judge to take judicial notice of the return of service, and of the fact that Westling has failed to appear twice before, once resulting in a citing for contempt.

Issue: Whether the judge may properly take judicial notice of the return of service and previous failures to appear.

Answer: Only the return of service. It is a legal document that is sufficient proof of service and is indisputable. The previous failures to appear are not judicially noticable, except for the fact that he was cited for contempt. That proceeding is beyond dispute as well.

Problem 11-C: Prosecutor asks the court to take judicial notice of the driving time between New Haven CT, and Rhode Island, and therefore that a person must have known that a call placed by a person travelling between these points was placed from CT because the party called was told earlier that the person calling was on his way and would be calling soon, and that not enough time had elapsed between the two calls.

Issue: Whether judicial notice is proper as to these two issues.

Answer: Only the driving time is the proper subject of judicial notice. The inference to be drawn from the call being placed after the father told him of that the caller was on his way is not proper because it could be that the father was mistaken.

Problem 11-D: Court is asked to take judicial notice that there was no football game playing at any time on any station during the time accused says he was watching football with friends.

Issue: Whether the contents of the TV guide are a proper subject of judicial notice.

Holding: Yes. Note that this does not prove that he was not watching football on TV at a friends house, merely that he was not watching a football game being broadcast by the stations in the TV guide.

Problem 11-E: Court is asked to take judicial notice of the Arab oil embargo of 1973 by the defendant in a breach of contract case who asserts impossibility.

Issue: Whether the existence of an embargo is proper for judicial notice.

Answer: Yes.

Problem 11-F: s ask judge to take judicial notice that asbestos causes cancer. If the request is granted, may the D. put on proof that it does not cause cancer?

Answer: No. However, the D. may put on proof that it did not cause cancer in this case.

** Government of the Virgin Islands v. Gereau, (1975)

2. Facts: During the deliberations of a trial, one juror spoke with a jury attendant, who indicated that she wished to go home soon.

3. Procedural Posture: The defense brought a motion for a new trial based on evidence of jury misconduct, where the juror testified of the conversation, but the jury attendant denied it. The judge found that the conversation did not take place, and gave one of his reasons as the fact from his personal knowlege that the jury attendant was grateful for the extra money from the work.

4. Issue: Whether the judge abused his discretion in taking his personal, extra-judicial knowledge into account in judging the credibility of the witnesses.

5. Holding: Yes.

6. Reasoning: The judge may only take judicial notice of the facts that are 1. beyond reasonable dispute, and 2. either common knowledge or capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy. The judge here went outside of common knowledge or verifiable facts in basing his determination on the fact that the jury attendant was happy for the extra work.

** United States v. Jones, (1978)

2. Facts: D. was convicted of illegally intercepting phone conversations.

3. Procedural Posture: D. appealed on the ground that the prosecution had failed to establish that the telephone company was a common carrier (as required by the criminal statute). The government did not ask for judicial notice of the fact until appeal.

4. Issue: Whether, in a criminal case, the prosecution may ask the judge to take judicial notice of the existence of a fact necessary to prove an element of the crime after the case has already gone to the jury.

5. Holding: No.

6. Reasoning: Although the Rule 201 allows the judge to take notice at any time, even on appeal, in a civil case, the legislative history indicates that Congress intended this not to apply to a criminal case because it violated the spirit, if not the letter of the 6th amendment bar against partially directed verdicts. Thus, if the notice is taken only on appeal, then the jury is not able to pass upon that fact, even though they would have had the power to do so.

Problem 11-G: In an assault trial, the judge takes judicial notice, and instructs the jury, that the hands of a karate expert qualify as a deadly weapon.

Issue: Whether the defense may then put a witness on to testify that the hands of a karate expert are not a deadly weapon.

Answer: No. The defense should present the evidence to the judge to convince him that he should not take judicial notice of such. However, the defense should not present such evidence to the jury during its case in chief. Rule 201(e) provides this opportunity to be heard.

Problem 11-H: The court is asked to take judicial notice that in certain illegal underworld activities, a death threat may be made by saying "this is it, get it and get it straight because you only have once chance."

Issue: Whether this is a proper subject for judicial notice.

Answer: No. The prosecutor should bring in an expert to testify to this because it may not be a matter not subject to reasonable dispute. These words may mean something entirely different, a fact that the jury should find.

** Houser v. State, (1975)

2. Facts: An action challenging a 21 year old age limit for alcohol consumption under equal protection.

3. Procedural Posture: At trial, the court took judicial notice of the findings of the legislature in determining that the age limit was rationally related to a permissible state objective.

4. Issue: Whether the findings of the legislature are proper subjects for judicial notice.

5. Holding: Yes.

6. Reasoning: A court may ascertain any facts it sees fit if it is merely the ground for laying down a rule of law. Here, the court is not taking notice of an adjudicative fact, it is merely determining the basis for the application of a rule of law. It is taking judicial notice of legislative facts.

** United States v. Gould, (1976)

2. Facts: Gould was arrested for smuggling cocaine.

3. Procedural Posture: At trial, the court took judicial notice of the fact that the substance found in Gould's shoe (cocaine hydrochloride) was a derivative of the coca plant, and further that derivatives of the coca plant are specifically listed as Cat. II controlled substances. As such, he instructed the jury that if it found that the substance was cocaine hydrochloride, that they were directed that it was a Cat. II controlled substance. D. appealed, citing error that the judge did not instruct the jury that they could disregard the judicial finding that cocaine hydrochloride is a cat II controlled substance.

4. Issue: Whether the judge erred in failing to instruct the jury that they could disregard the judicial finding that cocaine hydrochloride is a cat II controlled substance.

5. Holding: No.

6. Reasoning: The limitation in FRE 201, requiring a judge to instruct a jury that it may disregard judicial findings of adjudicative facts, is not applicable to judicial notice of legislative facts. Whether a substance is on the controlled substance list is a legislative fact, and not subject to negation by the jury.

Problem 11-I: The court is asked to take judicial notice that certain books are obscene as a matter of law within the meaning of the statute, thus leaving the only issue in the criminal trial as whether the defendant possessed the books.

Issue: Whether the obscenity character of a book is properly the subject of judicial notice of a legislative fact.

Answer: Probably not. Whether a book is obscene may be a question of adjudicative fact. However, if there is sufficient legislative comment on what constitutes an obscene book, then it may be proper.

Problem 11-J: The court is asked to take judicial notice of the fact that the state supreme court has taken judicial notice of the fact that many bar patrons drive to and from the bar. The judicial notice is asked for in order to take the issue of foreseeability away from the jury.

Issue: Whether the foreseeability of a patron leaving a bar in a motor vehicle is a proper subject for judicial notice.

Answer: No. Foreseeability is an adjudicative fact that is subject to reasonable dispute. Some patrons take taxis.

Problem 11-K: The court is asked to take judicial notice that once a charcoal is lit and smoldering the addition of lighter fluid is certain to result in instantaneous flare up of the lighter fluid.

Issue: Whether this is the proper subject for judicial notice, and what type it is.

Answer: It is probably not necessary to take judicial notice because common knowledge of the jurors will take it into account anyway. However, it is probably not subject to reasonable dispute that lighter fluid poured on hot coals may ignite violently. This is an adjudicative fact.

Problem 11-L: The court is asked to take judicial notice of the fact that radar has achieved general scientific acceptance as a reliable speed-measuring technique.

Issue: Whether the court should take judicial notice.

Answer: Yes. It is easily verifiable that radar is generally accepted as reliable. However, there is still the issue of whether it has been used properly.

Problem 12-A: A Dr. Mc Nary is convicted of killing his family. Shortly after sentencing, his attorney gets a call from another criminal defense attorney stating that his client has confessed the killing to him. At Dr. McNary's new trial hearing, both the confessor and his attorney refuse to testify, the first on the 5th amendment, and the second on the basis of attorney-client privilege.

Issue: What are the constitutional arguments for denying, or alternativley upholding, the privilege.

Answer: Con: If the confessor's attorney testifies, it will be a violation of the confessor's 5th amendment right, because he would not have made the statements if he thought they would be used against him. Pro: If the confessor's attorney does not testify, Dr. McNary will be punished despite his innocence. Solution: let Dr. McNary testify as to what he was told by the other attorney, and conduct an investigation, stay the execution pending discovery of other evidence supporting a new trial.

Problem 12-B: Client hires attorney to oversee the consignment sale of a printing press, which has been connected with the printing of counterfeit money by a secret service agent. The attorney claims that he has only communicated with the client by correspondence, and refuses to produce that correspondence when subpoenaed, citing attorney-client privilege on behalf of the client.

Issue: Whether the attorney may invoke the privilege.

Answer: No. The attorney here has not been hired in his capacity as an attorney per se, but rather as a selling agent. These are professional services he is rendering, rather than attorney services.

Problem 12-C: Woodburn is out on bail and fails to appear for the trial. The gov't seeks to add a charge of bail jumping. His attorney is called to testify whether or not he told his client of the date of the trial. The attorney invokes the privilege.

Issue: Whether the attorney may invoke the privilege with respect to whether he informed his client of the date and place of the trial.

Answer: No. The privilege should only cover implied statements made by the defendant, not information supplied to him if it is otherwise neutral. There is no reason to believe that the defendant would behave differently if he knew that this information was being used against him. Anyone could have told him of the time and place of trial.

Problem 12-D: One attorney meets with a drunk man he is representing in a probate matter. After the man leaves his office, he gets into an auto accident. At his trial for drunk driving, the man is being represented by other counsel, and the probate attorney is called to testify against him.

Issue: What may the attorney testify to without the shield of privilege.

Answer: The attorney may testify as to any matter which did not concern his relationship with the defendant, such as his drunken appearance when they met. These matters are observable by anyone, and not the kind of behavior that the client intended to be confidential as evidenced by his driving drunk in public.

Problem 12-E: Defendant in tax evasion case transfers all records to her attorney.

Issue: Whether the court may compel the attorney to disclose the records.

Answer: Not if they contain matter that would have been privileged under the 5th amendment right against self-incrimination had they been kept in her possession.

** People v. Meredith, (1981)

2. Facts: Scott was involved in a murder/robbery. While he was in prison awaiting trial, he disclosed to his first defense attorney that he had taken the wallet belonging to the victim, and placed it in the trash behind his house. The first defense attorney then hired an investigator to retrieve the wallet, and subsequently turned it over to the prosecution.

3. Procedural Posture: At trial, the first defense attorney was called to the stand and compelled, over an assertion of privilege, to testify that he only learned of the location of the wallet through the statements of the defendant. The defendant was convicted.

4. Issue: Whether, if a defense counsel learns of the location of evidence solely through privileged confidential communications from his client, and subsequently removes that evidence from where it was found, the defense counsel may be compelled to testify as to his observations concerning the original location and condition of the evidence.

5. Holding: Yes.

6. Reasoning: There is a balance to be struck. The observations of counsel should be privileged if they are based solely on confidential communications from the defendant. However, if the privilege were to extend to the location and condition of evidence which the counsel has taken possession of, or altered, that would give the attorney license to tamper with evidence. It would be a race to discover evidence because the counsel could effectively sever any ties that the defendant had with it simply by taking it from its original location, and turning it over to the prosecutor. The compromise position of protecting the information unless the police would have found it anyway requires too much speculation as to future conduct of the police.

** United States v. Kovel, (1961)

2. Facts: Kovel was an accountant at a law firm.

3. Procedural Posture: Kovel was subpoenaed to testify as to the work that he had done for one of the law firm's clients, who was now under indictment for tax evasion. Kovel's supervising attorneys asserted the attorney-client privilege, even though he was an accountant.

4. Issue: Whether the attorney client privilege extends to communications made to persons who are acting as agents of the attorney for the purpose of assisting with technical or menial tasks.

5. Holding: Yes.

6. Reasoning: The presence and work of various specialized assistants is necessary for a lawyer to give the best legal advice possible. Without these assistants acting as his agents, the client would be poorly served. However, the privilege would not cover communications made if the advice sought were really the professional services of the specialized assistant, rather than the legal advice of the attorney.

Problem 12-F: A failed disk-importing business. 1. At deposition by a dissatisfied customer, the customer asks the partnership lawyer what the partners told him about the quality of foreign disks. 2. One of the partners sues the other for an accounting, and proposes to testify as to what the other partner said at the meeting where the partnership was originally discussed. 3. At the criminal trial of both defendants, one partner proposes to testify as to what the other partner said at a legal defense strategy meeting.

Issue: Whether the privilege may be invoked in situations 1, 2 and 3.

Answer: 1. Yes. The partners were seeking legal advice concerning their joint partnership, and those communications should be privileged from outsiders. 2. No. The partners' legal interests are now conficting. It is as if the partnership as an entity is willing to waive its privilege, and so the lawyer can not invoke one's privilege to prevent the other from testifying. 3. Yes. The communications were made in a meeting where, again, their interests were sufficiently overlapping. Also, since his own lawyer was present, the one partner may be said to expect some confidentiality in his statements.

** Suburban Sew N Sweep v. Swiss-Bernina, (1981)

2. Facts: Suburban is a retailer of sewing machines distributed by Swiss. Suburban suspected violation of price discrimination laws by Swiss, and so began to search their trash dumpster for evidence. They found several handwritten drafts of letters that were intended to be confidential communications, and on the basis of these brought suit.

3. Procedural Posture: Swiss asserted attorney-client privilege with respect to certain ones of the papers found in the trash. The lower court refused the recovered drafts from being admissible, and further disallowed all evidence gained from the trash.

4. Issue: Whether the deliberate placement of the original drafts of these letters in the trash constituted a loss of the attorney-client privilege.

5. Holding: Yes.

6. Reasoning: The materials not subject to privilege could have been obtained by discovery anyway. The intent of the defendants to maintain the confidentiality of the documents was outweighed by the state interest in strictly construing privilege. Here, the defendants could easily take steps to protect their confidentiality. Thus, the rule does not inhibit legal consultation. For example, the defendants now use a paper shredder.

** Upjohn v. United States, (1981)

2. Facts: It came to the attention of Upjohn's corporate counsel that some illegal payments to foreign governments had been made in order to secure foreign business. In response, and in preparation for litigation, the corporate counsel sent out a questionaire to the employees involved, and also interviewed them.

3. Procedural Posture: At trial, the court demanded that the questionaire responses, and the notes from the interview, be disclosed. Upjohn claimed corporate attorney-client privilege. However, the court denied the privilege, claiming that the employees who responded were not entitled to a privilege because they were not part of the magical "control group" of persons who "controlled" the corporation.

4. Issue: Whether the responses to the questionaires and the notes from the interviews are privileged.

5. Holding: Yes.

6. Reasoning: The corporate counsel was acting in a legal capacity to advise the corporation. As such, employees that discussed the subject for the purpose of securing legal advice were entitled to the privilege. The "control group" approach is too vague and chills communication. However, only communications are privileged, it does not protect disclosure of the underlying facts by the employees themselves. The work-product created during the interviews is protected by Hickman. These privileges are required to encourage corporate clients to seek legal advice as to how to conform to the law.

** In Re Durant, (1983)

2. Facts: Durant is the attorney of someone whom the FBI traced as having stolen checks payable to IBM. Durante refused to tell the FBI the name of the client who paid him with money traced from an account which held the stolen checks, asserting attorney-client privilege.

3. Procedural Posture: Durante was held in contempt.

4. Issue: Whether the identity of the client here falls within one of the exceptions to the general rule that client identity is not privileged.

5. Holding: No.

6. Reasoning: There are several recognized exceptions that make the identity of a client privileged: 1. the name of the client is only material for the purpose of showing an acknowlegment of guilt, 2. the identity would implicate the client in the very matter for which he sought legal advice in the first place [the "legal advice" exception], 3. disclosure of the identity would amount to disclosure of the confidential information. However, these exceptions focus on the connection between the client and the communication, rather than the client and the possibility of criminal liability. Here, the facts do not fit any of the exceptions.

** State v. Phelps, (1976)

2. Facts: Phelps' first attorney withdrew from his DUI case after learning that Phelps lied to him about the facts. He then hired another attorney, and perjured himself to win the case.

3. Procedural Posture: Phelps is tried for perjury. The first attorney is called to testify that Phelps intended to commit perjury. Phelps moves to disallow the testimony based on the attorney-client privilege.

4. Issue: Whether the intent to commit a crime in the future is privileged information under the attorney-client privilege.

5. Holding: No.

6. Reasoning: Although communications concerning a prior wrongdoing are privileged, future wrongdoing is not. The rationale is that only communications made in professional confidence and professional employment are privileged. If the client lies to the attorney about his intent to commit a future crime, then there was no confidence in the attorney. If the client reveals his future plans, then there is no professional employment because the lawyer may not further the conspiracy. As such, the client either conspires with or deceives the attorney as to future crimes.

** State v. Miller, (1985)

2. Facts: Miller called a hospital and told the receptionist on duty that he had just murdered someone. The receptionist called the authorities, and then gave the call to the on-duty psychotherapist. The doctor assured Miller that his information would be confidential. However, this was just a ruse to keep him on the line to trace the call. Miller was found and arrested.

3. Procedural Posture: At trial, the prosecution sought to have both the psychotherapist and receptionist testify as to what Miller said to them.

4. Issue: Whether a criminal defendant may invoke the doctor-patient privilege if the statements were made under circumstances that reasonably led him to believe that they were confidential and necessary for treatment.

5. Holding: Yes.

6. Reasoning: It does not matter that the psychotherapist did not actually intend to develop a doctor patient relationship with Miller. It is sufficient that she led him to reasonably believe that she was going to treat him. The receptionist falls under the necessary agent umbrella of the privilege because a reasonable person would have believed that they needed to disclose the crime to her before being able to talk to the doctor.

** Trammel v. United States, (1980)

2. Facts: Trammel and his wife were jointly involved in smuggling heroin. The wife was caught red-handed, and she agreed to testify against her husband in return for leniency.

3. Procedural Posture: Trammel moved to sever the case, asserting that he held a spousal privilege with respect to his wife's testimony.

4. Issue: Whether the testimonial privilege against adverse testimony by a spouse may be invoked by the defendant spouse.

5. Holding: No.

6. Reasoning: There are no modern reasons to keep this archaic law. Women are no longer property. Furthermore, when one spouse is willing to testify against another, then the marriage is in danger already. Thus, the witness-spouse alone has the privilege to refuse to testify adversely. The defendant-spouse is not the holder of the adverse testimony privilege. However, the defendant spouse still holds the privilege with respect to confidential communications made within the confidence of the marital relationship.

Problem 12-H: Husband flees from a hit-and-run accident that was witnessed by wife. When wife comes home, she tells the babysitter that the husband ran over someone. At trial, the wife invokes the spousal privilege, but the prosecution calls the babysitter.

Issue: Whether the babysitter may relate the wife's statements in court even though the wife asserts her testimonial privilege.

Answer: Yes. The privilege is available only to the extent that it prevents her own in-court testimony. The babysitter is free to testify as to what she observed. Also, the wife waived any confidentiality when she revealed the matter to a third person, breaching confidentiality.

** United States v. Estes, (1986)

2. Facts: Husband came home with a bag of stolen money and told wife that he stole it. They both then proceeded to hide the money and use it. Later they separated, and she went to the FBI with the story.

3. Procedural Posture: At the husband's trial, he unsuccessfully asserted the marital confidence privilege to attempt to prevent his wife from testifying against him concerning the origin of the money, and his participation in the hiding and use of it.

4. Issue: Whether confidential communications concerning ongoing criminal activity between two conspiring spouses are privileged.

5. Holding: No.

6. Reasoning: The communication as to the origin of the money was not part of an ongoing criminal activity, and should not have been admitted. However, the ongoing hiding and use of the money was properly allowed because it was not intended to convey a confidential message. Also, there is a "partnership in crime" exception which is based on the fact that greater good will come from permitting a willing spouse to testify against her husband where they were both engaged in the criminal activity.

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